The New DUI

Driving Under the Influence of Digital Communications Devices

Talking and texting on the go is a must for the multi-tasker, but using wireless communications while driving is proving to be inherently distracting and dangerous. That includes all forms of wireless interaction - hands-free, it turns out, is not risk-free. Now, companies whose drivers indulge when behind the wheel are facing growing liability exposures.

If you want to find the motivating force behind changes in organizational behavior, it's usually a good idea to follow the money. That will often lead you to the plaintiff's bar, and there is little doubt that big dollar awards in cases involving employees distracted by their phones have made an impression on employers. Eight-figure awards - several over $20 million - will do that.

Jurors and courts these days are about as tolerant of digitally distracted drivers as they are of drunk drivers.

Companies like wireless communication for the same reason people do - it's fast and, now that service networks have grown, it's virtually everywhere. That's why companies spend billions on wireless devices for their employees - over $59 billion in 2009, according to estimates.

Companies that put drivers on the road for long stretches have a particular interest in instant communication. They also face the most serious liability challenges, because the safety issues are broadly recognized. The 2009 AAA Foundation for Traffic Safety Index reported that 95% of the drivers surveyed said that texting while driving was unacceptable. Yet 18% admitted that they did it anyway. As awareness grows, tolerance declines. In November 2011 the Federal Motor Carrier Safety Administration published a final rule that bans use of wireless handheld devices by commercial drivers and sets out sizable penalties and fines.

The most bracing development in the court cases defining this growing exposure may not be the eight-figure awards, which are eye-opening enough, but the fact that the presence of a company policy on the use of wireless devices by drivers may not provide much protection from liability. Policies must be clear and they must be enforced. Companies are responsible not only for establishing rules but taking measures to be sure the rules are followed.

The following best practices related to the use of wireless devices by company drivers starts with a review of your company policy and moves on from there.

Wireless Communications Best Practices

1. Re-evaluate current policies - Many were written before the advent of the smart phone and simply address talking on a phone while driving. An up-to-date policy will cover all communication options - texting, instant messaging, etc. - that new phones offer.

2. Make the policy simple, short and easy to understand. You should consider an outright ban on using a wireless device while operating a motor vehicle, and should probably avoid a policy that includes conditions under which a wireless device can be used while a motor vehicle is in operation. Effective policies often state flat out that a vehicle must be out of gear at the side of the road before a driver is allowed to even touch a wireless device.

3. Create a stand-alone policy so the message does not get lost in a broader policy communication.

4. Hold your drivers responsible. Document policy violations and follow through with disciplinary actions according to your company policy.

5. Investigate technologies that will help to limit or track use of wireless devices while operating vehicles. Available technologies include applications for smart phones that automatically "bounce" calls and messages while the vehicle is in motion. In-cab electronic devices can sense wireless devices in operation, track use and warn staff that they may be in violation of company policy.

6. Retrain your staff on the policy on a regular basis. Document the training.

The last several decades have seen the courts, the plaintiffs' bar and the risk management community come to grips with the issues of organizational responsibility and liability with regard to driving while under the influence of alcohol. Now, a similar process is rapidly moving forward with regard to driving under the influence of wireless communications devices.

By Dave Barry

Willis Strategic Outcomes Practice