Traffic accidents are the leading cause of workplace deaths. Motorists who text or use cell phones when they drive are at 4 times greater risk of traffic accidents, according to the New England Journal of Medicine. So if a company wanted to protect its employees against fatal traffic accidents, it would ban them from texting and driving—at least on company business.
If only! In the real world, companies are still resisting such bans. In fact, it’s not unusual for management to want workers to text and drive to promote “multi-tasking.” “The increased risk of traffic accidents is a price some companies are willing to pay to boost productivity,” according to an Ohio safety director who understandably asked not to be named. Adding insult to injury, resistance to driving and texting bans may come not just from management but workers and their unions.
So if you’re having a hard time selling your company on a ban, consider taking a different tack. In addition to stressing the risk of traffic accidents, explain how texting and driving by employees can expose your company to increased risks of liability. Here’s how to build the case.
Are employers really required to keep workers from texting and driving?
The answer is YES, but you need to understand how the laws work before playing the legal card.
OSHA has no standard specifically addressing the hazard of texting/cell phone use by drivers. But there’s more to OSHA than standards. It could be argued that this danger is a “known hazard” that employers are required to address under the general duty clause, Sec. 5(a)(1) of the Occupational Safety and Health Act.
OSHA itself has made that argument—albeit indirectly and without specifically mentioning the general duty clauses. Two recent examples:
What OSHA has expressly stated, most recently in an October 20, 2011 blog from Secretary Michaels, is that requiring or creating incentives for employees to text while driving, “by policy or practice,” e.g., by structuring work so that workers have to text while driving to do their job, is an OSHA violation.
The problem, of course, is that these laws impose liability on the driver, not the driver’s employer; stated differently, they don’t require employers to crack down on driving and texting by workers.
But such an obligation might exist by implication. Here’s where understanding the law really comes in handy. Remember that not all legal obligations stem from statutes and regulations. People and companies also have duties under what’s called common law—that is, law made up by judges on the basis of cases.
Negligence is one of those judge-made laws. A company is liable for negligence when it fails to take reasonable steps to protect persons against foreseeable risks and somebody gets hurt as a result. Failing to take reasonable steps is a broad concept that can cover just about anything—from leaving a banana peel on a train platform to letting employees do their jobs in a way that endangers the public.
In addition to a potential OSHA violation, letting employees text on drive is arguably an act of negligence.
Consider this: One of your workers is driving a company vehicle delivering materials to a construction site and getting drop-off instructions from his supervisor on the cell phone. He’s so distracted that he drives through a STOP sign and runs over a pedestrian crossing the street.
The victim could, of course, sue the employee for her injuries. But the employee might not have a lot of money. So the victim and her lawyer would probably look for a deep pocket to sue—like your company. Unfortunately for the company, the victim would have a strong chance of winning such a lawsuit. There are 2 arguments the victim could use:
The Company Was Negligent: First, the victim could argue that the accident was caused by the company’s negligence. A reasonable person would have recognized that letting employees talk on cell phones when they drive on company business creates a risk of traffic accidents and injuries. Thus, the victim could claim that the company’s failure to implement a ban on cell phone use was negligent.
The Employee Was Negligent and the Company Was Responsible: The victim could also try to hold the company responsible for the employee’s negligence by using a theory called vicarious liability. Under this theory, a company can be liable for injuries caused by their agents or representatives if they were negligent in performing their job duties (or, as lawyers describe it, “acting within the scope of their employment”). Vicarious liability would probably apply in the example above because:
This example isn’t just speculation. There have been a number of actual negligence lawsuits against companies for accidents caused by employees on cell phones. Click here for some examples.
OSHA regards requiring or urging workers to text and drive to do their jobs as a violation of the general duty clause. Allowing them to text and drive is a closer call. But based on OSHA’s public statements, it could lead to liability.
Moreover, allowing workers to text and drive also exposes your company to the risks of being sued for money damages in a negligence lawsuit. So it’s important to establish a policy banning the practice.