Wednesday, June 30, 2004

Get off phone and drive, workers told

Companies wary of lawsuits

By James McNair
Enquirer stStaff wWriter

The rush-hour commute has become a time for contemplation, a slug of coffee, a bite of an egg-chili-cheese burrito with every lurch of traffic and a quick scribble on the dashboard notepad.

While you're at it, might as well jump-start the workday with a barrage of work-related cell-phone calls.

Do that, and you could be breaking company policy.

As cities and states enact bans on the use of hand-held cell phones while driving, more companies with thousands of employees - including some in Greater Cincinnati - are inserting such bans in employee handbooks. Employers see the new rules as sensible extensions of workplace safety.

"We felt cell-phone use while driving was a fairly dangerous behavior," said Mike Henderek, manager of safety programs for ExxonMobil, which has 285 employees in Ohio.

June 1, ExxonMobil joined the list of companies banning employees from using cell phones while driving on company time.

The rule applies to 88,000 employees. ExxonMobil adopted the policy after assigning its own scientists to dissect the issue.

"The results verified that, while hands-free seems intuitively the right thing to do in terms of safety, it doesn't deliver significant benefit over hand-held," Henderek said. "It's the mind that becomes engaged in conversation and becomes distracted."

But a different concern is prompting employers to clamp down on vehicular cell-phone use.

In recent years, lawsuits have blamed employers for accidents and mayhem caused by their phone-clutching road warriors.

The upshot? Stricter cell-phone policies.

"They're popping up because of the same reason most policies pop up - the anticipation of litigation rather than the litigation itself," said Deborah Adams, a corporate employment lawyer for Frost Brown Todd in Cincinnati.

Some cases have resulted in large payouts:

• In Miami, a jury awarded a woman $20.9 million in 2001 after she was injured in an auto accident caused by a salesman making a cell call between appointments. The insurer for the salesman's employer picked up the settled final tab: $16 million on behalf of the company and $100,000 for its salesman.

• In Pennsylvania, Smith Barney agreed to pay $500,000 in 1999 to settle a fatal auto accident claim involving one of its salesmen. He dropped his cell phone while driving and, as he groped for it, ran a red light and killed a 24-year-old man on a motorcycle. The stockbroker had tried to make a sales call or two before arriving at a restaurant for dinner. Smith Barney settled.

• In Northern Virginia, a $30 million lawsuit was filed against a cell phone-wielding lawyer who fatally ran over a 15-year-old girl in March 2000. The girl's father is also going after the lawyer's former employer, the firm of Cooley Godward. To establish that liability, the father's lawyer will have to convince a jury that the lawyer, Jane Wagner, was discussing company business on the phone when the accident occurred. The trial is set for Oct. 4.

Robert Braun, a human-resources and labor-relations consultant in Seattle, said he has helped write cell-phone-use policies for more than 20 clients. Policies that specifically govern employee use of cell phones, he said, can serve as a vaccination against lawsuits.

"The lawsuit is brought against the driver of the car - and the driver's employer," said Braun, principal of Braun Consulting Group. "The theory is that the driver is acting in the interest of the employer, therefore the employer is the beneficiary of that conversation and is liable for that conduct."

Different approaches

Most companies allow - and encourage - carrying on business conversations through hands-free devices such as headsets and visor-mounted microphones.

No organization tracks corporate policies on vehicle cell-phone use. Here's how several companies deal with it:

• General Motors recommends that employees use hands-free devices or the OnStar system. In rigorous driving conditions, GM suggests staying off the phone entirely.

• Procter & Gamble also recommends that cell calls in the car take place over hands-free devices.

• Cincinnati Insurance Co. in Fairfield has advised its employees since 1996 to talk while parked safely if they don't have hands-free devices. Two other local insurers, Ohio Casualty and Midland, also favor hands-free calls.

• Cincinnati Bell, the biggest local provider of wireless telephone service, doesn't frown on employees juggling cell phones in the name of duty while they're driving. It does, however, encourage them to use hands-free devices.

Insisting on hands-free

At the least, corporations generally advise employees to obey state and local laws on cell-phone use. The state of New York forbids drivers from talking on hand-held phones, while the Cleveland suburb of Brooklyn became the first municipality to ban the behavior, in 1999.

New Jersey and Washington, D.C., will require hands-free calling in cars beginning Thursday.

Progressive Insurance of Mayfield Heights, Ohio, would rather its carbound employees talk shop in a parking lot, not on the road, although it doesn't insist that its policyholders follow suit.

"We don't encourage or pay for hands-free devices because we believe that they actually encourage the behavior that we're trying to get away from," said Progressive spokesman Todd Morgano.

While most companies still allow employees to make business calls from the car, many advise their workers to hang up or let incoming calls go into voice mail if conditions require them to focus on driving.

"Even if you're closing a sale," said Laura Merritt, a spokeswoman for Verizon Wireless in Columbus. "People will understand."


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