Company Liability for Employees’ Cell Phone Use While Driving, Quirky Question # 37
Quirky Question # 37:
Our company employs a number of salespeople who spend a significant part of their time driving between customer appointments. Our sales manager keeps track of their schedules and often calls them when he knows that they are driving between appointments, as this is a convenient time to check in with them. Do you see any problems with this practice?
Roy’s Analysis:
You inquired whether it’s advisable for your company’s sales manager to contact your field sales employees via cell phone when they are driving between customer appointments. It’s not. The practice is risky to your employees and to members of the public, inasmuch as it forces your employees to speak with your office on a cell phone while they are driving. Although the risks to your employees and the public should be sufficient for your company to alter its practices, if you need more convincing, you should understand that this practice exposes your company to potential legal liability and correspondingly significant financial risk.
There is increasing evidence as to how unsafe it is for individuals to drive while talking on cell phones. And there are increasing instances of employers being held liable when their employees get into accidents while talking on cell phones.
Studies show that using a cell phone while driving dramatically increases the risk of a traffic accident. For example, in a study by the Insurance Institute for Highway Safety in Perth, Australia (2005), the conclusion was that drivers who use cell phones are four times more likely to get into injury-causing traffic accidents than drivers who do not use cell phones while driving.
Similarly, a 2006 study by the University of Utah found that the impairments associated with using a cell phone while driving can be as profound as those associated with driving under the influence (.08). Even drivers using “hands-free” devices showed similar levels of “impairment” (Perth Study and University of Utah Study).
Not surprisingly, state legislatures are beginning to take action to address the problems associated with the pervasive use of cell phones by individuals driving vehicles. As of today, six states (California, Connecticut, New Jersey, New York, Utah and Washington) and the District of Columbia, and at least 10 cities (e.g., Chicago, Detroit, Dallas) have enacted bans or restrictions on cell phone use while driving. The Washington and New Jersey statutes also specifically ban text messaging while driving.
Because of the significant risks associated with the combination of driving and cell phone use, a number of companies are proactively seeking to eliminate this all-too-common practice. For example, UPS does not provide drivers with cell phones and forbids them from talking on their own cell phones while driving. Shell Oil Company not only directed its employees not to use cell phones while driving, but, in 2007, its General Counsel asked law firms working as outside counsel to Shell to not drive and talk on their cell phones while doing Shell business. Exxon Mobil (which has had some experience with an impaired driver, albeit of an oil tanker) prohibits employees from using cell phones while driving. Exxon Mobil’s policy dictates that phones contain a call-forward feature – a voicemail message advising callers that the Exxon worker is busy at the wheel.
These and other company policies may seemingly have been stimulated by prudence and responsibility. Or, they may have been influenced by a number of recent cases in which employers were held liable for accidents caused by their employees who were talking on cell phones while driving. Earlier this year, International Paper Company agreed to settle for $5.2 million a personal injury suit brought by a widowed mother of four who had her arm amputated after she was rear-ended by one of its employees who was allegedly talking on her company-provided cell phone while speeding on the interstate (77 in a 70 mph zone). Dyke Industries, a lumber wholesaler, suffered a jury verdict of $21 million after one of its salesmen hit and severely disabled an elderly woman while the salesman was talking on his cell phone when driving to a sales appointment. A lawyer hit and killed a 15-year-old girl when the lawyer was talking on her cell phone while driving home from a meeting one night. The lawyer, who initially thought she hit a deer, served a one-year jail term and paid $2 million. Her law firm settled for an undisclosed amount after initially being sued for $30 million.
As these sad (and costly) situations illustrate, it’s a terrible idea for your supervisor to call employees when he knows they are driving, especially since multiple alternative options are available. Your employees could call into the office to speak with the sales manager after completing one job but before departing for the second. Or, your employees could call into the office upon arrival at the second job but before commencing work. Yet another option would be to instruct your employees that they may not answer the phone while driving. Within a short period of time following receipt of the call, your employee could pull off the road into a parking lot and return the call from there. Whichever option is considered most desirable, your firm needs to enforce it. To the extent that employees violate your company’s policy regarding the use of cell phones while driving, they should be disciplined.
Promulgating an effective policy regarding cell phone use while driving should be relatively easy. Ideas to consider including in your policy are:
a) Banning all cell phone use by your employees while they are driving any company vehicle, driving their own vehicles on company business, or driving to or from customer appointments at the beginning of, during, or at the end of the workday;
b) Prohibiting the use of cell phones while driving for all business-related calls, whether before, during, or after business hours. (Of course, a well-crafted policy also should apply to personal calls made during the work-day while your employees are driving.);
c) Prohibiting the use of hands-free devices as well as hand-held devices;
d) Prohibiting your office personnel from contacting any of your employees via cell phone when they are known to be traveling from appointment to appointment, or from one customer location to another; and
e) Instructing your sales representatives that they are not to answer their cell phones at any time when they are driving. There may other simple rules that would be appropriate for your company to incorporate into its policies, depending on the nature of your firm’s business. Basically, you want to ensure that neither your employees nor members of the public are put at risk because of your company’s practices with regard to either company-issued cell phones or PDAs, or your employees’ personal cell phones or PDAs. Taking these simple precautions not only will benefit your employees and the public alike, these prudent actions also will reduce the risk of potential legal liability and substantial damages for any injuries caused by your employees’ using cell phones while driving.
Drug Testing Drivers, Quirky Question # 8
Quirky Question # 8:
We provide a number of our sales employees with company automobiles. We were wondering whether we could randomly test these individuals for alcohol or drug use. Needless to point out, we would like to ensure that employees driving our company vehicles do not endanger either themselves or members of the public.
Roy’s Analysis:
You pose a good question. Like so much of employment law, your question illustrates the tension between competing societal interests. Here, the tension exists between employees’ rights to privacy and public safety.
States have different drug testing statutes, so the answer to your question is state-dependent. Since I practice out of Minneapolis, I’ll answer your question with reference to the applicable laws in Minnesota. The relevant Minnesota statute is the Minnesota Drug and Alcohol Testing in the Workplace Act. Under the statute, an employer is allowed to conduct random drug tests for employees who occupy “safety sensitive” positions. “Safety sensitive” positions are defined as those jobs in which “impairment caused by drug or alcohol use would threaten the health and safety of any person.” See Minn. Stat. § 181.950, subd. 13. Another way to frame your question, therefore, is to inquire: “Does a job that involves driving a company automobile fall within the definition of a “safety sensitive” position, such that your firm would be justified in engaging in random drug testing?”
There is not a great deal of case law in Minnesota defining precisely which positions are, or are not, “safety sensitive” positions. The courts have found that jail personnel, patrol officers, investigators, and court security deputies all occupied “safety sensitive” positions. Similarly, workers involved in the maintenance of railway lines have been held to occupy “safety sensitive” positions. In contrast, workers involved in loading, unloading and cleaning commercial aircraft have been held not to occupy “safety sensitive” positions, a fact that may cause some unease among airline passengers.
I am not aware of any Minnesota cases addressing the issue of whether driving a company vehicle involves a “safety sensitive” position. Some insights, however, can be obtained from parallel federal law. In the federal context, and the public employer arena, drug testing is considered a “search” within the meaning of the Fourth Amendment. Random drug testing has been deemed permissible only where it serves “special governmental needs . . ..” National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). The nation’s highest court has held that “special needs” exist where an employee works in a “safety sensitive” position. In deciding whether an employee occupies a “safety sensitive” position, courts have been directed to consider whether the employee’s duties are “fraught with such risks to others that even a momentary lapse of attention [could] have disastrous consequences.” Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602, 628 (1989).
Applying these standards, federal courts have found that the following positions are “safety sensitive” such that random drug testing should be permitted: a) air traffic controllers; b) aircraft maintenance personnel; c) railroad safety inspectors; d) highway and motor carrier safety specialists; e) lock and dam operators; f) heavy equipment operators (e.g., forklift, tractor and crane operators). However, federal courts have held that Department of Energy employees whose jobs included driving cars and vans containing documents and Department of Agriculture employees whose jobs included driving shuttle buses, mail vans, and cars, did not occupy “safety sensitive” positions.
Based on this analogous federal case law, it would appear that someone whose job responsibilities involve driving a company vehicle does not occupy a “safety sensitive” position that would subject that person to random drug testing. In my view, that analysis may be misguided. Certainly, someone behind the wheel of a 6000 pound SUV going 70 mph is engaged in an activity where “even a momentary lapse of attention [could] have disastrous consequences.” Moreover, I’d wager that someone driving an SUV traveling at 70 mph is a bit more dangerous to the general public than a forklift operator driving around a warehouse at 3 mph.
According to the U.S. Secretary of Transportation, there were approximately 43,000 automobile deaths on American highways, both in 2005 and 2006. Here in Minnesota, just two days after I posted QQ # 8, the Star Tribune reported on a tragic situation involving a van driver for the Forest Lake Area School District who caused a crash that killed his passenger, a 14-year-old student, and himself. Exacerbating the tragedy, as reported by the Star Tribune, the driver had marijuana in his system, and additional marijuana was found in the van. See, Student’s Driver Had Drugs In, With Him, Star Tribune, November 14, 2007, p. A-1. Both the national statistics and this recent, profoundly sad story here in Minnesota, suggest that it is time for state legislatures to re-examine the balance between employee privacy and public safety. In my view, companies providing employees with company vehicles should be permitted to randomly drug test these individuals. (Keep in mind that it will be the companies that are sued if there is an accident involving a serious injury or fatality.) But, that is not the current state of the law, and therefore, random drug testing would seem ill-advised.
Follow
