Mar 02, 2011

Cell Phones Can Cost a Lot, Part I

By: Paul Ebeltoft

Naeun Yoon, who recently arrived in the United States from Korea, was 15 years old. A child of a successful Korean family and reportedly quite bright, her parents moved to Virginia to enable Naeun to take advantage of an American education.

By all accounts, Jane Wagner was a likeable, hard-charging, up and coming young attorney. Twenty-nine and on partnership track, she often worked late and was responsive to her clients’ needs, regardless of the hour. Jane was a technology lawyer, comfortable with emerging technologies and according to one report, made up to 40 cell phone calls a day.

At about 10:30 in the evening Naeun and her 14 year-old brother were riding in their mother’s minivan, going home. An argument erupted between the two teen-agers and their mother pulled over to the side of the road to restore order. Both children exited the van and walked opposite ways along the highway.

At about 10:30 in the evening Jane was also driving home, making one last cell phone call. During the conversation, she wandered onto the shoulder of the road. She heard a thump. Thinking that she had hit a deer, and there being no requirement to stop for such an event, Jane continued home. It was only the next day, when she and her husband heard of a hit and run accident, that Jane reported the incident to the police. Naeun Yoon was dead. Jane Wagner was arrested.

The Yoon family sued both Wagner and the law firm for whom she was working at the time of the accident for $30 million. The law firm settled before trial for an undisclosed amount. A court awarded the Yoon’s $2 million against Wagner. That was the least of her troubles. The employer, who disputed that Wagner was making a business call at the time of the accident, fired her. Convicted of leaving the scene of an accident, Wagner spent a year in jail, the court granted her a short time before the sentence commenced to give birth to her first child. The State of Virginia disbarred Wagner, and shortly after leaving prison, she filed bankruptcy.

THIS CAN HAPPEN TO YOU

The Jane Wagner/Naeun Yoon tragedy happened 11 years ago, in March of 2000. According to The Wireless Association (CTIA) 38% of the U.S. population had a wireless account in 2000. The number now exceeds 91%. In 2009, wireless customers used over 6.2 billion minutes of voice transmission. According to the May 13, 2010 New York Times, email, text, and other cell phone services have now exceeded voice data transmission. What was a concerning problem in 2000 when Naeun Yoon died, has escalated into a national epidemic – the data-distracted driver. In early February, the North Dakota legislature took a first step toward joining 29 other states that now restrict texting while driving, but texting is only part of the problem. According to the National Safety Council, 25% of all vehicular accidents now involve a wireless device. Even hands-free devices in cars, permitted by all state laws, offer no safety benefit while driving according to the Council.

WHY IS THIS IMPORTANT TO HR

Company policies on technology often fail to address safe use of wireless devices in non-traditional workplace settings, such as the car, in a comprehensive way. They should. Increasingly courts are holding employers liable for accidents caused by employee use of data devices while driving.

The emerging rules of liability appear to be these.

1. If your company supplies the cell phone or other device, the company may be liable for damages regardless of whether the activity at the time of the accident was work-related or personal.

2. If the cell phone or other device is a personally owned one, the company may still be liable for damages if the activity taking place at the time of the accident was work-related.

3. In either case 1 or 2, the lack of a good cell phone use policy is a significant factor in finding the company at fault.

4. In either case 1 or 2, if an employee is involved in an accident while using a cell phone or another wireless device, the mere use of the device while the accident occurred is likely to cause liability even if the employee was driving safely in all other respects.

5. Juries and judges dramatically discount the credibility of witnesses to any type of accident who are using cell phones or data devices at the time of the accident.

WHAT HR CAN DO

Clearly, your company needs a data device policy. Clearly, the policy should prohibit any use of cell phones, PDAs or other data devices, whether supplied by the employer or not, while driving for job-purposes. The policy must prohibit use of employer-supplied devices while driving for business and personal purposes. The prohibition should include the use of GPS devices and other devices that may be hands-free.

Do not stop there:

• Review your policies thoroughly. Re-write any policy that requires immediate response by an employee to a superior’s call, email or text. Re-write any policy that requires the employee to respond immediately to all customer transmissions. Re-write any policy that places time constraints on response times that could trigger when the employee is driving. All of these are inconsistent with a prohibition on use of data devices while engaged in the full-time activity of driving an automobile.

• Consider the number of employer-supplied devices that are available to employees, whether full time, or episodically. Reduce some of your company’s possible exposure by limiting this perk to those employees with a legitimate need to be in close contact with customers or with supervisors while away.

Before implementing your new data device policy, remember some basic policy axioms.

• Make sure that your company management fully supports the change and that employees hear it from them. A wink from a boss regarding implementation or enforcement of the new policy can destroy its effectiveness company-wide.

• If you are unionized, the union steward is a key stakeholder and should be on-board as well.

• Educate your employees about the reasoning behind the policy.

The statistics are compelling.

• Be open to suggestions that may reduce barriers to effective implementation.

• Decide how to monitor non-compliance and the level of consequences your company will be willing to impose if a violation occurs. As with policies that management does not think important, ineffective monitoring or weak sanctions can scuttle the liability protections you are trying to achieve.


Reprinted with permission from an article submitted for publication in the March 2011 Southwest Area Human Resource Association newsletter.