Will Employee Cell Phone Habits Land Companies in Hot Water?

By Catherine Skrzypinski Jul 28, 2011
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America’s labor force has long been accustomed to multitasking throughout the workday. Now this practice is seeping into daily commutes, and it could be dangerous.

“Distracted driving,” or the use of cell phones and other electronic devices while driving, has been on the rise since 2009 as employees become more reliant on and addicted to their smart phones. Attorneys say the number of lawsuits against employers resulting from automobile accidents is increasing, while those injured in distracted driving wrecks are filing more workers’ compensation claims.

“Distracted driving is now a topic of many conversations [among human resource professionals] and definitely reflects a change in corporate attitudes,” said Mark Manta, an employment attorney at MantaCole in Doylestown, Pa.

Manta said he has noticed a distracted driving policy in every employee manual he has reviewed since 2010.

“This is a radical change from just a few years ago, when such policies were limited to those in the transportation industries or where transportation was integral to the service provided,” he added.

More than 500 corporate managers shared their thoughts about distracted driving risks in a survey released in May 2011.

According to the survey, conducted by ZoomSafer, a software firm based in Reston, Va., nearly one out of three companies in North America were aware of automobile accidents occurring while an employee was talking, texting or web-browsing on a BlackBerry, iPhone or Android.

Other findings:

  • 62 percent of companies have implemented a written cell phone use policy. Transportation companies were most likely to employ this policy.
  • However, only 53 percent of companies with a defined cell phone policy made an attempt to enforce compliance.
  • 7.6 percent of companies have faced plaintiff litigation from damages when employees were simultaneously commuting and chatting.

“Judging from the survey results, it’s clear corporate managers are waking up to the fact they are liable for crashes that occur as a result of employees using cell phones while driving on company business,” said Todd Clement, a Dallas trial attorney, in a statement.

“The fact so many companies are telling employees to put the phone down while driving is encouraging from a policy perspective,” added Matt Howard, ZoomSafer’s CEO. “However, from a practical perspective, it’s simply not enough to change behavior.”

No Talking or Texting

Cell phone use and texting laws are implemented on a state-by-state basis. Some states are ahead of the curve and have aggressive laws, explained Leonard Emma, an attorney with Randall Crane in the San Francisco area, while other states are slower at adopting laws or have none.

According to the Insurance Institute for Highway Safety, California, Connecticut, Delaware, Maryland, Nevada, New Jersey, New York, Oregon, Utah, Washington state and the District of Columbia prohibit drivers from using hand-held cell phones. Meanwhile, 34 states, including D.C., ban motorists from text messaging.

The next step is to crack down on cell phone usage from coast to coast. The U.S. Department of Transportation (DOT), along with the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA),are urging the federal government to pass a nationwide law to outlaw cell phone use in cars. Until that happens, the DOT and OSHA are pressing for harsher legislation to encourage drivers to keep their hands on the wheel and off their phones.

“While speeders are often caught on radar, and people running red lights may be caught on camera, texting bans will likely be more difficult to enforce,” said Timothy Wiedman, PHR, an assistant professor of management and HR at Doane College in Crete, Neb.

“As police become better able to spot these violations, perhaps with the help of technology, the laws will be more effective,” Manta added.

Howard said ZoomSafer is developing safe driving software for mobile phones as well as cloud-based monitoring software for companies to track employee phone usage.

“Through this technology, companies can look at the text history—not its content—to see if the text was sent during work hours, and at a time when the employee was scheduled to be on the road,” Nancy Cooper, chair of Garvey Schuber Barer’s labor and employment group in Portland, Ore., wrote to SHRM Online via e-mail.

William Nolan, a partner of the labor and employment law department at Barnes & Thornburg in Columbus, Ohio, advised companies to invest in hands-free technology. “It may be money well spent,” he added.

Safe, Legal and Responsible Behavior

Employment attorneys say companies must enforce employee compliance with cell phone use policies to protect themselves fully from liability.

“If an employee is violating the law while in the scope of his or her employment, then the company is liable for any damages caused,” said Thomas Simeone, an attorney with Simeone & Miller in Washington, D.C. “This is a tough call. If the employee was texting for work purposes, it may still be in the scope of employment, even if prohibited by the employer.”

Nolan explained that the big issue for employers is not the occasional citation but rather when an accident:

  • Occurs while the employee is on the job.
  • Includes evidence the employee might have been either texting or talking on the phone.
  • Involves significant injury and/or property damage.

“In these cases, certainly the most injured parties are going to come after the employers’ deeper pockets,” Nolan said.​

HR has to assess under what circumstances and how many employee-driven vehicles typically are on the road before drafting a distracted driving policy, Manta added. “Once the scope of the issue is determined, then HR can draft a targeted policy that is realistic and specific,” he said.

Employment attorneys advise corporations to:

  • Establish a written policy about safe driving regulations.
  • Have employees sign a document acknowledging it.
  • Enforce the policy in a fair and consistent manner.
  • Communicate the policy during hiring, orientation and training.
  • Reinforce the policy with regular reminders in staff meetings or newsletter announcements.
  • Create a safe driving award program designed around incentives.

“The goal is toencourage employee drivers to use their phones in a safe, legal and responsible manner,” Howard concluded.

Catherine Skrzypinski is a freelance journalist in Alexandria, Va.

Related Articles:

Distracted Driving Policies Are Becoming More Restrictive, SHRM Online Legal Issues, February 2011

DOT Proposed Rule Would Ban Hand-Held Cell Phone Use, SHRM Online Legal Issues, December 2010

Department of Labor, OSHA Partner to Fight Distracted Driving, HR News, September 2010

Distracted Driving by Employees May Result in Employer Liability, SHRM Online Legal Issues, August 2009

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