labor and employment law

- February 2005 -

Cell Phone Use: The Latest Basis for Multi-Million Dollar Settlements and Verdicts Against Employers

Cases are being reported around the country involving potential liability for employers stemming from the use of cell phones by their employees.  The focus of the attention is on automobile accidents that occur while an employee is using a cell phone. 

The case of Roberts v. Salomon Smith Barney illustrates how limited the employer’s connection to the cell phone use has to be to raise the potential for employer liability.  A Salomon Smith Barney stockbroker was talking on his personal cell phone (making cold calls) on a Saturday evening on his way to dinner (a non-business dinner).  He ran a red light and struck and killed a 24-year-old father of two on a motorcycle.  In the suit, Salomon Smith Barney was accused of negligence for having an implicit policy that encouraged its employees to conduct business from their cars, even during non-business hours.  Before the jury returned a verdict, Salomon Smith Barney settled for $500,000.  Reported settlements and verdicts in similar cases have been substantially higher:  $2.5 million; $16.1 million; $21 million; $30 million.

The case against cell phone use while driving:

Lawsuits alone do not paint the entire picture.  Consider the following:  vehicle crashes account for 42 percent of workplace deaths, the highest single cause of on-the-job fatalities.  A study in the New England Journal of Medicine determined that talking on a cell phone while driving quadruples the chance of an automobile accident—whether or not a hands-free device is used.  Indeed, these statistics have led to the introduction of distracted driver legislation in all but a few states in recent years.  For good or bad, these legislative efforts have resulted in few  actual statutory restrictions (most limiting only particular drivers such as school bus drivers and/or limiting only particular  practices).  An attempt by the Pennsylvania legislature to ban cell phone use while driving failed in 2002, but the issue is still subject to heated debate in society.

The case for cell phone use while driving:

The combination of recent cases and legislative trends targeting cell phone use while driving seem to be sending a strong message to employers that they should not let employee cell phone use go unchecked.  But cell phones have become an integral part of doing business and maintaining contact with traveling employees.  And the research is actually somewhat mixed. 

For example, a recent study by the University of North Carolina Highway Safety Research Center found that drivers were most often distracted by something outside their vehicles (29.4 percent of distracted drivers), followed by adjusting a radio or CD player (11.4 percent of distracted drivers). Other specific distractions included talking with other occupants (10.9 percent), adjusting vehicle or climate controls (2.8 percent), eating or drinking (1.7 percent), cell-phone use (1.5 percent) and smoking (0.9 percent). 

Even the study in the New England Journal of Medicine warned “against interpreting our data as showing that cellular telephones are harmful and that their use should be restricted.  Even if a causal relation with motor vehicle collisions were to be established, drivers are vulnerable to other distractions that could offset the potential reductions in risk due to restricting the use of cellular telephones.”  Indeed, when radios were introduced in automobiles, there was public outcry and legislative efforts to ban car radios.  But car radios, cassette tapes and CD players are an integral part of driving in spite of their much higher distraction rating.

So, what should employers do?

Create and enforce a policy addressing cell phone use while driving.

• Require State/Local Law Compliance. At a minimum, require employees to follow all state and local laws regarding cell phone use.  Be sure to research such laws in areas you anticipate your employees will be traveling and provide that information to your employees.

• Prohibit or Limit Cell Phone Use While Driving.  Make your policy as restrictive as possible while still meeting your business circumstances.  Even though Pennsylvania does not prohibit cell phone use while driving, businesses should strongly consider adoption of a policy.

  • IF an absolute prohibition is feasible, do it.  Require cell phones to be turned off while driving.  Require employees to pull into a parking lot or other safe place before making or receiving calls in their cars.  (This is the best approach for an employer looking to minimize legal exposure.  It seeks to make cell phone use while driving something outside the course   and scope of employment, but it is only effective if enforced.)

  • If an absolute prohibition is not feasible, set whatever specific guide lines you can.  For example, require any employee using a cell phone while driving to use a hands-free device.

  • At a minimum, discourage cell phone use while driving, and require employees to evaluate their driving conditions and only use cell phones when and where it is safe.  (Under this approach, an employer will be liable if the employee’s conduct using the cell phone is within the course and scope of employment, just as in any other activity an employee engages in on behalf of an employer.)

   

• Include Prohibitions and Limits on Other Driving Distractions.  Remember that cell phone use ranked well below several other driving distractions.  Have your policy address driving distractions in general.

Require Compliance with Your Policy. 

Get employees to execute acknowledgments of your policy and their agreement to abide by it.  If you reimburse for cell phone expenses, along with each reimbursement request require certification that the cell phone was not used in violation of company policy.

Educate your Employees. 

Make sure that employees know the law, your policy, and the practical issues associated with cell phone use while driving, as well as other driving distractions.  The CTIA—The Wireless Association, the international association for the wireless telecommunications industry, has brochures and other publications available outlining practical driving safety tips for cell phone use (www.wow-com.com or 1-888-901-SAFE).  Consider using these materials and the tips they contain to educate your employees.

If you provide cell phone equipment

• Train your employees thoroughly on its use so that they are not distracted bytrying to figure it out.

• Place stickers on the cell phones containing key policy prohibitions, such as “Not to be used while driving” or “To be used in car only with hands-free device”.

Additional Considerations:

The focus on employee cell phone use has been on liability to employers for automobile accidents.  However, several other areas are ripe for litigation and should be incorporated into a comprehensive cell phone policy:

• Privacy Concerns.  Cell phones are now equipped with several technologically advanced options, including    photography, video and recording.  Prohibit employees from bringing cell phones into areas where another employee’s privacy could be invaded, particularly restrooms.

• Confidentiality Concerns.  The current cell phone technology could allow your trade secrets and confidential information to be overheard, videoed or recorded.  Prohibit employees from bringing cell phones into areas where confidential information is maintained.

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“Regarded As” Disabled: The Other Type Of ADA Claim

By Scott R. Leah, Esq.

Most employers are familiar with the Americans with Disabilities Act and its prohibition against discriminating against anyone with a disability.  What many do not realize, however, is that there is another type of claim under the ADA - that the employee was “regarded as” being disabled.  Under that type of claim, an employee need not be disabled to have an ADA claim, if he or she can establish that the employer regarding him or her as having a disability and then discriminated on the basis of that disability.

A recent example is a case in Ohio where a nursing home housekeeper suffered from thrombophlebitis and varicose veins.  After missing some time from work, she was released to full duty by her physician.  The employer, however, told her that she could not return to work because he would require a “sit-down” job.  The employee successfully sued under the ADA, alleging that while she was not disabled under the ADA, the employer regarded her as being disabled and then discriminated against her by refusing to allow her to return to work.

Employers and their human resources staff must ensure that no employee is “regarded as” being disabled where they are not.  If the employee is disabled as defined by the ADA, the employer should then engage in the required interactive process to determine whether there are any reasonable accommodations that can be made.

Scott Leah is an attorney in the firm’s Labor & Employment Practice Group. For more information on this topic, please contact Scott at 412.594.5551 or via e-mail at sleah@tuckerlaw.com.

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Sex Stereotyping Of Homosexual Employee May Be Actionable

By Scott R. Leah, Esq.

In 1989 the United States Supreme Court ruled, for the first time, that sex stereotyping is impermissible under Title VII because it is, by its very nature, done on the basis of one’s sex.  Sex stereotyping is treating an employee differently than others due to a stereotype based on that person’s sex (for example, only assigning female employees to make coffee).

This ruling has been typically applied to cases where male employees were treated differently than female employees, and vice versa.  However, a Court of Appeals recently ruled that a homosexual male can state a claim for a violation of Title VII where he faced a hostile work environment due to harassment from other men which was allegedly due to his not conforming to the stereotypical view of masculinity. 

To protect themselves, employers therefore need to be vigilant to ensure that all employees conform to the company’s anti-discrimination and anti-harassment policies.  This includes not only treating male and female employees in a like manner, but treating homosexual and heterosexual employees in a like manner.  If necessary, the company’s policy and/or employee handbook should be updated to include the above.

Scott Leah is an attorney in the firm’s Labor & Employment Practice Group. For more information on this topic, please contact Scott at 412.594.5551 or via e-mail at sleah@tuckerlaw.com. 

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