Employer policy for cellphone ban

By Yosie Saint-Cyr, LL.B., Managing Editor, HRinfodesk.com---Canadian Payroll and Employment Law News, Updated October 2009 (posted June 2009)

Many Canadian provinces have passed or are in the process of passing laws banning the use of hand-held devices while driving, as have several American states. Employers who are used to having employees check in or conduct other business while on the road may have to make a few changes once new laws banning cellphones and other hand-held personal devices while driving come into effect in Ontario (October 26, 2009 with enforcement in February 2010) and Manitoba around February 2010. Bans are already in force in Nova Scotia, Quebec and Newfoundland and Labrador.

British Columbia has tabled legislation to ban the use of hand-held devices while driving. Saskatchewan, Prince Edward Island and Alberta are still studying the possibility of legislation to ban the use of hand-held devices while driving.

For the above reason, HRinfodesk wanted to know: due to changes in law banning the use of hand-held devices while driving, do organizations intend to develop a policy on cellphone use for this coming fall? Out of 177 poll respondents, 40.68% (72) said yes, they intend to develop a policy on cellphone use, while 26.55% (47) are waiting for more information before proceeding. About 19% (33) of respondents decided that no, they will not, or do not think it is necessary to develop such a policy. About 14.12% (25) respondents did not think the legislation applied to them.

Why is it important for employers to take this issue seriously?

Cellphone litigation is one of the new types of litigation springing up all around the world. Whenever a cellphone is involved in a vehicle or other type of accident, you can bet a lawsuit is not far away. The issue stems from the fact that when you allow employees to use cellphones to conduct business while driving, there is a serious potential risk for employers. If there is any evidence that, at the time of an accident, the driver was using a cellphone to conduct business or is otherwise considered to have been at work, or if the call was simply work-related, the driver's employer could be held liable for damages resulting from the accident.

In addition to laws banning the use of cellphones while driving, employers also have a duty under most occupational health and safety legislation to take proper steps and establish policies that insure worker safety. That includes safe use of cellphones. And there are other factors to consider as well: employers could also be sued for illegal transactions made on a company-provided cellphone, or for activities such as harassment or threats made on a cellphone or other electronic communication devices that the employer provides or allows to be used during business hours.

As a result, employers face a risk of claims by third parties and employees.

From our poll respondents' comments, many are asking how it is that employers are being held vicariously liable for damages that result from an incident in which the employee has broken the law. Although there is no reported Canadian case on point in this specific context, the principle of vicarious liability applies. This means that employers have been found liable for damages caused by the negligent conduct of their employees.

Employer liability in cases involving a third party is based on a legal principal called vicarious liability. It provides that an employer is responsible for the harm caused by its employee if that employee was acting within the course and scope of his or her employment at the time that the accident occurred.

Often the claims allege that an employer is negligent for its own conduct in encouraging or permitting employees to use cellphones for business without adequate training or consideration of safety issues.

In addition, employees who use cellphones on the job have begun to file workers' compensation claims based on the theory that radio frequency radiation from cellphones may lead to various forms of brain cancer or other illnesses. This is happening even though the science appears inconclusive and contradictory.

For these various reasons, several employers are creating policies that universally cover any situations involving use of cellphones related to company business or on company time.

Thus far, all of the cases on record where employers have been sued under this principle have taken place in the United States. For example, a case in Virginia involving a lawyer has made employers take a second look at employee cellphone use.

This case involved a lawyer who was talking (presumably to a client) on her cellphone while driving late at night, when she swerved and struck a 15-year-old girl walking on the side of the road. The girl was killed and her parents sued the lawyer and her employer, Cooley Godward, for US$30 million. The parents claimed that the law firm was partly to blame because it presses employees to work long hours and encourages them to use cellphones without appropriate safety guidelines. A Virginia court awarded US$2 million to the family. The law firm settled for an undisclosed amount. The lawyer served one year in jail, was fired from her firm, lost her law licence and later filed for bankruptcy.

The other factor in the ever-expanding list of US court cases relates to the growing body of research that shows how dangerous talking on a cellphone while driving can be. Significant data is emerging that the use of cellphones increases the risk of motor vehicle accidents. Studies suggest that talking on a cellphone while driving is equivalent to being impaired (having a .08 percent blood alcohol level). Moreover, several studies indicate that phone conversations impair driving performance by withdrawing attention from the visual scene, yielding a form of inattention blindness.

These studies suggest that driving while distracted is a big issue and can be as dangerous as other problems such as impaired driving.

Consequently, employers should be diligent about imposing and enforcing a ban in these circumstances. The key is to impose rules which are appropriate to the work context. Most importantly, the employer needs to assess its work environment to determine if it has a problem resulting from the presence of modern communications devices. If so, the time to impose a solution is now, not later.

It is important to note that hands-free devices are allowed under the law and have come to be seen as the most feasible way to address the dangers of driver distraction because of cellphone use. The most common type of hands-free device is the headset, but there are also hands-free devices that operate like a speakerphone, which may or may not include a corded microphone to enhance outgoing audio quality. Such devices can be convenient in a car or other location where you frequently need to communicate hands-free.

Employers can protect themselves by putting in place a policy that spells out what is acceptable use of cellphone and other communication devices for employees. The policy must also include guidelines and procedures on the use of hands-free devices while driving during work hours or in the course of employment.

Policy needs and considerations

Employers who want to ban and/or monitor how employees use cellphones while driving for work should establish a policy regarding the use of cellphones while on company business. The policy should outline safe cellphone practices and providing employees with hands-free devices. These policies should apply not only to cellphones, but to any electronic devices, including pagers, PDAs, even laptop computers.

Employers who want to establish a cellphone use policy, and to take appropriate measures to ensure the health and safety of their employees and the public as well as their own business interests, should consider the following:

• Ask employees to pull over to the side of the road when making a phone call, or to let voice mail pick up a call when sitting in traffic, or when using any other hand-held device, such as pagers, digital assistants, laptops or any other electronic communicative devices
   
• Have employees use hands-free accessories rather than a hand-held cellphone while driving in slow or heavy traffic
   
• Ask employees never to take notes while talking and driving
   
• If an in-depth conversation requires the employee's full attention, employees should return the call when they are not driving
   
• Do not allow employees to use electronic devices for non-business purposes or in an illegal, illicit or offensive manner
   
• Disciplinary action for cellphone policy violations should be explicitly stated in the policy and enforced
   
• A well planned communication strategy leading up to the implementation of the cellphone policy

While employers need to assess what are the possible risks and what is most appropriate for their workplace, the policy could state one or more of the following:

• Where legislation applies, the policy should include a statement outlining any illegal talking and driving activities and refer to the law.
   
• Include a statement of the type of electronic device or activity, if any, that is permitted. The type of activity banned in a policy will depend on the nature of your organization and your company's risk tolerance.
   
• Cellphone use (whether hands-free or hand-held) is prohibited by employees while driving during business hours and while in the course and scope of their duties.
   
• The use of cellphones while driving is strictly prohibited. It's understood that many drivers do carry cellphones, and that there are occasions when instant cellphone communication is a necessary and valuable tool. In such instances, our policy dictates that drivers must safely stop and secure the vehicle before using the cellphone.
   
• Company employees are not permitted to use a cellphone, either hand-held or hands-free, while operating a motor vehicle on company business and/or on company time.
   
• Use of cellphones is not authorized when operating a motor vehicle. To dial, or otherwise initiate a call, or to respond to a call, the driver will leave the road and safely park the vehicle.
   
• Employees are required to pull over if they are using a hand-free or hand-held cellphone while in the car in the course and scope of their duties. To dial or otherwise initiate a call, or to respond to a call, the driver will leave the road and safely park the vehicle.
   
• Using a hand-held cellphone while operating a vehicle is prohibited. Employees should plan calls to allow placement of calls either prior to travelling or while on rest breaks.
   
• Cellphone use is prohibited while driving during business hours while in the course and scope of their duties unless using a hands-free device such as a headset or speakerphone.
   
• Include a non-reprisal provision, which makes clear that an employee will not be disciplined for failing to answer his or her cellphone or participate in a conference call when he or she is driving.
   
• If an employee must make an emergency call (911), the vehicle should be parked in a safe location before making the call.
   
• Employees who choose to violate the policy will face disciplinary measures (an escalating disciplinary approach up to termination), or face legal responsibility if in the course and scope of their duties they are involved in a car accident and there is evidence that they were distracted because they were using their cellphone while driving, and the employer is sued.

Employers need to demonstrate that they are serious about the company's policy, by consistently and fairly enforcing it among all employees. For example, managers and supervisors should not be calling an employee who is driving; if management does not follow the rules, the company cannot then say it has a policy in place restricting cellphone use.

In addition, employers should offer training as to how dangerous such cellphone uses can be and how drivers can adopt a cautious approach to cellphone use in a vehicle.

Even though there is no guaranteed defence to liability in any situation, an employer with a strongly communicated and enforced cellphone policy will be in a far better position legally than the employer who has no policy.

HRinfodesk has a sample cellular and wireless devices policy in the Library section under National, under Sample Policies and Forms, under Privacy and Security and then under Personal Mobile Devices; or click article number 30275.

For more information on the health risks associated with exposure to radiofrequency electromagnetic fields—like those that cellphones produce—visit this Health Canada site.

By Yosie Saint-Cyr, LL.B., Managing Editor at HRinfodesk.com

Published on HRinfodesk---Canadian Payroll and Employment Law News and Developments

HRinfodesk is an information and news service published by First Reference, which includes employment law news and commentaries for every jurisdiction in Canada, a Library of Articles, FAQs, a Calendar of Events, Important Dates and an HR Internet Directory for expanded research. Our search tools will help you to quickly find results by jurisdiction, topic, date, keyword and article number. For the latest employment law news and a 10-day trial, click here.

These articles are made available to give you general information and understanding of the law, not to provide legal advice about specific situations or problems. These articles also offer general comments on legal developments of concern to businesses. There is no lawyer-client relationship between you and the author or publisher. Every effort has been made to ensure the accuracy and timeliness of this information. These publications should NOT be relied upon as legal advice or opinions. The reader should always obtain legal advice from a qualified lawyer or other qualified professional, which will be responsive to the case or circumstance of the individual.

Please note that the content provided in this article or any content contained in or made available through any third party website linked to from this article and/or HRinfodesk, is provided “as is” without representations or warranties of any kind. All representations and warranties in respect of Content or Third Party Content, express or implied, including, without limitation any representations to warranties or conditions regarding accuracy, timeliness, completeness, non-infringement, merchantability or fitness for any particular purpose are hereby disclaimed.

©1999–2009 First Reference Inc.