In case you missed the first three parts of this series, let me sum up what you missed: When an employee uses a cell phone while driving a company vehicle and causes a traffic accident, the victim can sue not just the employee but the company for negligence. This final installment offers a solution to the risk management problem: a model company policy banning cell phone use. Lets look at the six things a policy should cover. There's also a model policy in the Tools section that you can access if you're a SafetyXChange member.

Two Reasons for a Cell Phone Policy

There are two reasons you need to put your cell phone ban in writing:

To Clarify Expectations: Some safety rules are rooted in common sense and instinct. For example, an untrained worker probably doesn't need to be told to keep away from dangerous machines having nothing to do with their jobs. But the danger of talking on cell phones is not something we feel instinctively. On the contrary, many workers feel like they should use cell phones when they drive. They're taught that cell phones are a good thing because they enhance productivity and allow for "multitasking."

To Minimize Liability Risk: Having a written policy can help the company defend itself against negligence because it shows that you did in fact take steps to prevent the risk posed by workers on cell phones. It also makes it harder for the victim to show that the worker was an agent of the company. Why? Because a worker who violates a written company policy is less likely to be considered to have been acting "within the scope of his or her employment."

Writing the Cell Phone Policy

Before getting into the details, let's talk about the overall approach.

Your cell phone policy shouldn't ban workers from having the equipment. This curtails productivity and heightens risk to the extent workers are alone and need to remain in contact. A total ban on cell phones is also likely to be unenforceable. Instead, your policy should impose restrictions on use. Many cell phones fail to do that effectively. Based on what I've seen, there are five loopholes that need to be plugged (Section references are to the Model Policy in TOOLS):

1. Banning Just Cell Phones

The Loophole: Some policies tell workers that they may not use their "cell phones" while driving. But there are plenty of other devices that can cause problems.

How to Plug It: Make sure your policy covers not just the use of cell phones but all "wireless communication devices," including mobile phones, text pagers and two-way radios (Policy, I (a)).

2. Not Covering Personally-Owned Vehicles & Equipment

The Loophole: Some policies apply only to cell phones and communication equipment furnished by the company and/or to company vehicles.

How to Plug It: Specify that the ban applies to all equipment and vehicles "whether owned by the company or the worker" (Policy, I (b)).

3. Not Covering Business & Personal Conversations

The Loophole: Some policies ban workers from carrying on "personal conversations" when driving. By implication, it's okay to hold a business conversation.

How to Plug It: Ban the use of wireless devices to conduct any conversation, business or personal (Policy, I (b)).

4. Lack of Instructions on How to Handle Incoming Calls

The Loophole: Typical policies ban workers from making calls when driving but don't tell them how to handle incoming calls.

How to Plug It: In addition to warning workers not to make calls, tell them what to do when a call comes in. Our model policy lets workers answer or return the call as long as they pull off the roadway in a safe spot and remain parked until the conversation ends (Policy, I (d)).

5. Covering Only the Drivers

The Loophole: It takes two people to create the danger: the person driving the vehicle and the person on the other end of the line to whom they're talking. Most policies address only the former.

How to Plug It: Make sure your policy bans others in your organization from calling workers when they're driving. Also tell them what to do when receiving calls from workers behind the wheel (Policy, II (a)-(c)).

Conclusion

Creating a cell phone policy is useless if you're not prepared to enforce it. Indeed, from a liability perspective, an unenforced policy represents the worst of both worlds. It shows that you recognized the risk but failed to take reasonable steps to prevent it. So back up your cell phone policy with real sanctions up to and including termination.

CELL PHONES & DRIVING

The Controversy over Hands-Free Devices

By Glenn Demby

Some companies ban only the use of handheld devices and let workers engage in conversations when they drive if they use headsets and hands-free devices. The issue of whether to ban all cell phones or just handheld devices is a controversial one:

The Legal Perspective

A case can be made that banning the use of handheld devices is enough to ensure compliance with legal standards. As we noted in Part 2 of this series, a handful of states including CT, NH, NJ, NY and Washington, DC, explicitly ban the use of cell phones when driving; some cities and towns (especially in AZ, CA, MA, NM, OH and PA) do the same. But all of those state laws and most of the local ones apply only to handheld devices. They don't prohibit talking on a cell phone as long as the driver uses a hands-free device.

The Safety Perspective

A number of studies demonstrate that the use of hands-free devices does not eliminate or significantly moderate the dangers of cell phones and driving. That's because holding a cell phone conversation can be distracting, even if you're not using your hands to operate the phone.

The Model Policy

Consequently, the Model Policy in Tools provides for a complete ban on all cell phones and doesn't allow for the use of hands-free devices.

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