BW Online | July 23, 2001 | Driven to Distraction

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JULY 23, 2001

LAW

Driven to Distraction
The growing threat of lawsuits is forcing companies to lay down policies that restrict employee cell-phone use behind the wheel

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It took a split second of absent-mindedness to make Caren Shaffer realize that an employee who drives while talking on the phone could be a menace to others.

About three years ago, Shaffer, president of Success Group, a Nashville marketing company, was stopped at a red light when she heard her new cell phone ring. She momentarily shifted her attention to the unfamiliar phone keypad -- and inadvertently lifted her foot off the brake. Before she knew it, she felt the jolt of her car tapping the rear of the one ahead.

No one was hurt, but Shaffer was still alarmed. If lapses like that could happen to her, they could also occur -- perhaps with more dire consequences -- to her 20 employees and contractors, who spent much of their time on the road and often used cell phones to do business (see BW Online, 7/23/01, "Confessions of a Freeway Phone Freak").

CELL RULES. That settled matters. Shortly after the incident, Shaffer ordered voice-mail service for all company cell phones. Then she came up with rules for how to use the gadgetry: Refrain from answering calls while driving. Let voice-mail take messages, then retrieve them and make the necessary call-backs once the car is safely in park.

"Do we need the cell phone to make us more efficient in our workday? Positively," she says. "Do I think we need to give them guidelines for using it? Absolutely, yes."

Other companies are slowly coming around to Shaffer's way of thinking, says Kathy Lusby-Treber, executive director of Network of Employers for Traffic Safety, a Washington-based nonprofit that promotes safe driving. The concern, she says, is not only that driving while phoning may be unsafe, but that juries could hold employers liable if tragedies occur.

FATALITIES. That possibility was raised recently in Virginia in a civil lawsuit brought by Young Ki Yoon, father of a 15-year-old girl who was hit by a car and killed more than a year ago. The driver, attorney Jane L. Wagner, pleaded guilty last October to a charge of failing to stop at the scene of an accident and is serving 12 months in jail.

In his suit against Wagner and her former employer, Palo Alto (Calif.)-based law firm Cooley Godward, Yoon says that around the time of the accident Wagner was using her cell phone for business-related conversations. The suit seeks $30 million in damages from Cooley Godward, alleging, among other things, that the firm encouraged cell-phone use for business yet failed to have an adequate policy regarding safe usage while driving a car.

Wagner's lawyer, Rodney Leffler, says his client did not realize at the time of the accident that she had struck a human being, but thought something had hit the car. A spokeswoman for Cooley declined comment on the case, other than to describe the accident as a tragedy.

The Yoon case is unusual, but not unique. After a Smith Barney stockbroker struck and killed a motorcyclist in Allentown (Pa.) in 1995 while using his cell phone, the victim's family sued the Wall Street firm, now Citigroup's Salomon Smith Barney. Some facts of that case were in dispute, but Smith Barney settled in 1999 -- paying the victim's surviving children about $500,000, according to lawyers for both sides.

BANS. It's not only lawsuits, however, that are drawing attention to the possible dangers of cell-phone use in cars. Last month, New York became the first state to prohibit drivers from using hand-held cell phones, except in emergencies. Some 42 states are considering similar measures, according to the National Conference of State Legislatures. Combine that possibility with cell phones' explosion in popularity -- there are 118 million subscribers to wireless services in the U.S., up from 6.4 million a decade ago, according to the Cellular Telecommunications Internet Assn. -- and it's no wonder that employers are beginning to take notice.

DuPont was one of the first. Since 1998, the giant chemicals company has prohibited phone chat by motoring employees, unless they are equipped with company-provided handless, voice-activated devices. The company urges employees to keep even hands-free conversations brief, says Mike Deak, DuPont's director of safety and health.

Southwest Gas Corp., a utility company in Las Vegas, has a similar policy in place. And United Parcel Service is considering guidelines on employee driving and cell phones, according to a spokesman.

"SWERVING." Common sense and the personal experiences of staffers prompted the policy at DuPont, according to Deak. "We had all been behind that [phone user] speeding up and slowing down, or that person who was swerving in and out of lanes," he says.

Earlier this year, the Society for Human Resource Management (SHRM), which represents employers, issued a sample cell-phone policy. Its key point about cars: Workers should avoid phone conversations altogether while driving. If that's impossible, the guidelines suggest brief calls using hands-free devices.

SHRM also advises cell-phone users to refrain from talking about complicated or emotional issues while they're on the road. That's a stance in keeping with concerns that accidents stem not only from the physical awkwardness of fumbling for phone equipment while behind the wheel, but from the psychological distraction of intense conversation.

"If I owned a company, my policy would be that people would not conduct business on cell phones while driving," says Paul Atchley, a University of Kansas psychology professor who studies attentiveness and driving.

WAKE-UP CALLS. Others say it's unrealistic to expect employees to resist phone conversations once the key is in the ignition, given today's fiercely competitive business environment and ever-stretching commutes. "I'd be hard-pressed to say to a sales person: 'If you're on the road for three hours, you can't talk to a customer,'" says Jonathan Segal, a partner in the Philadelphia-based law firm Wolf, Block, Schorr & Solis-Cohen. Instead, he urges employers to "spend a couple extra cents and throw in hands-free equipment."

How many are taking such steps is difficult to say. Mark Margevicius, a research analyst at technology research and consulting company Gartner, estimates that about half of his clients -- midsize and large companies -- are at least thinking about introducing policies regulating cell phones and driving. Margevicius' recommendation to employers about motoring and phoning? "Don't allow it. Point blank," he says.

Just how successful employers can be at enforcing policies is another question. Few supervisors would have the ability, let alone the inclination, to monitor employee behavior by, say, matching phone logs against guesses of when employees are on the road, says Margevicius. Then there's the question of whether employers are sending mixed signals. "Companies may expect employees to be extremely productive, and employees could argue that to do what they need to do, they need to be on the phone while driving," he says.

Susan Meisinger, SHRM's chief operating officer, fears that only more accidents will focus employers on the issue. "When the lawsuits begin, the insurance premiums increase, and workers' compensation liability gets mixed in, that's when you'll see it higher on the radar screen," she says.

BLAME THE 24/7 ECONOMY. But even greater employer awareness of cell-phone safety may not be enough to force motoring workers to concentrate fulltime on the road. Lusby-Treber believes car cell-phone use is just part of a bigger problem emerging in a frenetic, 24/7 economy.

Employees, she says, are so pressed for time that they are taking risky shortcuts behind the wheel, such as eating, looking at maps, or failing to take a few minutes to learn the quirks of an unfamiliar rental car.

"People aren't allowed the time they need to get places," she adds. "That forces them to multitask while they are driving." Good for productivity, perhaps, but not for the nation's highway safety.