Driving While Distracted

» Posted on Jan 4, 2012 in Mitigating Liability, Safety | 1 comment

The National Highway Safety Administration (NHTSA) estimates 25% of automobile crashes are caused by cellphone usage distracting the driver. The New England Journal of Medicine published a study in 1997 that concluded the risk of using a cellphone while driving was similar to driving while intoxicated.

Cellphone use while driving has been a criminal offense in Great Britain since 2003. Usage in Japan may result in imprisonment. Only a few states in our country have prohibited any hand-held cellphone usage while driving. However, the majority of the states, including Indiana have banned texting while driving.

The U.S. Secretary of Transportation, Ray LaHood stated, “Distracted driving has gone from a dangerous practice to a deadly epidemic.” Some studies show distracted driving fatalities exceed drunk driving fatalities. Laws focused on usage of mobile devices, including navigation devices are bound to increase in the near future. Lawmakers cannot ignore the facts.

Neither can employers ignore the facts. On- the-job crashes cost employers $25,000 per crash, $150,000 per injury and $3.6 million per fatality, according to the NHTSA. Vicarious liability holds the employer liable for an employee’s actions when the employee is acting within the scope of employment.

Should an employee be using the phone for business purposes during an accident, the employer would be liable. There are several cases that point to this outcome. In fact, even if the employee is outside of the scope of employment, an employer may still be liable under a negligence theory of liability if the employer provided the cellphone or expected the employee to use the cellphone while driving.

Clearly employers need to manage the risks of cellphones and other mobile devices, just as they would manage other corporate liabilities. The first step is issuing a policy banning or restricting mobile phone use while driving. A recent survey noted 62% of U.S. companies have adopted such a policy. However, that same survey by ZoomSafer noted only 50% of those companies with a policy have any means to enforce the policy. The majority of the enforcement is after an employee is caught; few are pre-emptive.

The U.S. Department of Transportation provides useful advice and education regarding distracted driving . The website, www.distraction.gov includes a sample policy and pledge sheets. There is a section devoted to employers, as well as one for teen drivers.

Having a well-distributed policy is only the first step in mitigating liability. Jack Hanley, of the Network of Employer for Traffic Safety (NETS) recommends a zero tolerance policy for employees who violate the cellphone policy. Corporate culture needs to match the paper policy. Driving without distraction needs to be incorporated into safety training. The focus should be to prevent loss.

ZoomSafer, among other companies offers a technical solution. Software applications exist that detect and prevent texting and/or calling when the vehicle is in motion.

Today’s employees and employers need to recognize that multi-tasking is truly toggling among tasks and results in errors. The National Safety Council reported no decrease in productivity among 99% of the companies who banned cellphone use while driving. This is a paradigm shift which may have unrecognized health benefits.

Nearly half a million people are injured and thousands are killed each year in this country in distracted driving crashes. It is a real risk. One that employers and all drivers must take seriously.

Legislative Update

Notice of NLRB Rights

The National Labor Relations Board (NLRB) issued a second postponement of the new regulation requiring all employers to post Employee Rights about the National Labor Relations Act. The second postponement is a result of the Judge requesting time to consider the court challenge. The new date for the posting is April 30, 2012.

In-Home Companion Rights

On December 27, 2010, the Wage and Hour Division of the Department of Labor submitted two revisions to the companionship and live-in worker regulations: To more clearly define the tasks that may be performed by an exempt companion, and

To limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in- home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the family or household.

Domestic workers’ rights were expanded in 1975, excluding these workers from minimum wage and overtime. Since that time, the home healthcare industry has expanded dramatically. These laws originally designed for babysitters and companions no longer fit the role of home health care providers.

There is a 60-day period before the changes are enacted. Anyone can submit a comment about the Proposed Rulemaking to Amend the Companionship and Live-In Worker Regulations to www.regulations.gov by February 27, 2012.

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  • Kim

    So, have a email conversation with my boss while driving for work is a no-no?! :) Seriously, though, this is a very real risk and many of us are very guilty. A good reminder, Nora. Thank you.