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Distracted Driving Lawsuits – Are Your Employees Making You A Target?

Using a cell phone while driving is dangerous – we all know that.  Texting while driving is (or will soon be) illegal in 39 states and the District of Columbia.  But are your company’s employees using their cell phones to call or text while driving?  Are they doing it in a company car, with a company phone?  Even if your employees are only handling company business on a personal phone in a personal vehicle, you may still be at risk for a distracted driving lawsuit should they be involved in an accident.  These claims are becoming more prevalent – and more lucrative for plaintiffs and their attorneys.  This article on washingtonpost.com highlights the danger of allowing your employees to use cell phones while driving:  a multi-million dollar verdict against your company.  The unmistakable conclusion is that a business that doesn’t implement some sort of policy restricting the use of cell phones while driving during work or in a company vehicle gets no sympathy from jurors.  Given that the number of traffic deaths involving cell phone usage is rising – the National Highway Traffic Safety Administration has indicated that distracted driving contributed to around 3,092 traffic deaths in 2010 – the likelihood of this type of lawsuit affecting your business is also on the rise.  Because of the significant potential liability, many companies have already banned all employee cell phone use while driving. 

Worried that your employees won’t get as much done, or might not be as efficient if you keep them off the phone while driving?  Two surveys tell a different tale.  A survey of Fortune 500 companies revealed that not only did productivity remain the same, or even rise, for most companies after institution of a policy prohibiting cell phone use while driving, but one out of every five companies with full bans also observed decreased crash rates and property damage.  In a survey of National Safety Council members (primarily manufacturing, transportation, and warehousing companies with fewer than 500 employees) a whopping 99% of those surveyed said that they noticed no decrease in productivity, and some even noticed an increase.  Even if you’re convinced that your employees need to be able to use cell phones whenever and wherever they are because of the nature of your business, consider whether it’s worth the risk of a multi-million dollar judgment and the bad press that comes with it. 

While the National Safety Council has crafted a one-size fits all policy it encourages businesses to use, smart employers will draft a policy that is individually calibrated to coordinate with existing policies, such as any progressive discipline policy, and that takes into consideration any relevant state laws as well as specific or unique circumstances or concerns that the company has.  While “one-size fits all” may be better than being “naked,” without any policy or rules, the best idea is a policy that properly fits your needs and concerns as an employer and “clothes” you with the best protection possible.

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