A growing number of organizations are taking a hard line against distracted driving, putting policies in place that prohibit employees from texting while driving and, in some cases, banning cell-phone use in company vehicles altogether. This is for good reason. Distracted driving is bad for employee safety — and for business.
The statistics are sobering. Distracted driving crashes killed more than 3,000 people and injured 416,000 in 2010, according to the Occupational Safety & Health Administration (OSHA). Reaction time is as delayed for a driver talking on a cell phone as for a driver who is legally drunk.
According to the U.S. Department of Transportation (DOT), sending or receiving a text message diverts a driver’s eyes away from the road for an average of 4.6 seconds, the equivalent of driving the entire length of a football field — while blindfolded — at 55 mph. A study by Australia’s Monash University found that drivers who use hand-held devices are four times more likely to be involved in crashes serious enough to injure themselves.
In many states, the use of mobile devices while driving is not only considered unsafe, it’s also against the law. Currently, 39 states, the District of Columbia, and the territory of Guam ban text messaging for all drivers. In addition, 10 states, the District of Columbia, and the U.S. Virgin Islands also prohibit all hand-held cell-phone use while driving.
(For the latest state-by-state distracted driving laws, visit: www.distraction.gov/content/get-the-facts/state-laws.html.)
While crafting a policy is an essential first step for fleets to reduce distracted driving crashes, the key to minimizing legal exposure lies in the ongoing enforcement of that policy. Here are seven strategies for organizations to effectively enforce their distracted driving policies:
1-Clearly Define ‘distracted driving’ and Consequences for Violations
Evan White, a partner at New York City employment law firm White Harris PLLC, recommends that companies develop a detailed standalone policy — “not one buried in an employment manual” — that clearly defines distracted driving.
“When you’re talking about distracted driving, you’re not just talking about texting. This includes any distraction that diverts employees’ attention away from the road — including newer distractions, such as handheld tablets and elaborate in-dash computer systems,” White said.
Chris Hayes, risk control director of transportation services for Travelers Insurance, headquartered in Hartford, Conn., said that a clear policy drives effective enforcement.
“A policy may say ‘no cell-phone use,’ but it doesn’t make a distinction on whether hand-held cell-phone use is permitted versus hands-free devices. So, you need to clearly state what is allowed — and what is not. Whatever the policy, the clearer you make it, the more it helps the supervisor or manager be able to follow up,” he said.
Ed Iannuzzi, manager of driver services for fleet management company ARI, said the policy should outline the consequences for non-compliance. “Be clear on what the expectations are of the driver, and what actions would be taken if a violation occurs.”
To ensure employees get the message, White said organizations should call a staff meeting to distribute and discuss the policy. “At this meeting, emphasize the importance of the policy as well as the severity of risks associated with violations. Open a dialogue with employees to address their concerns and questions. At the conclusion of the meeting, have employees sign-off and acknowledge that they’ve read and understood the policy.”
2-Secure Senior Management Buy-in
Fleet managers need senior management to support and adhere to the distracted driving policy, otherwise organization-wide compliance is unlikely.
“Drivers will not follow the rules if their management does not believe in and practice the rules themselves,” said Hayes with Travelers Insurance.
Hayes said Travelers’ customers will often ask drivers if they’ve taken a call while on the job. Many will admit that they have, even though there is a company policy forbidding it.
“We’ll then ask, ‘Why did you do something distracting when you know it goes against policy?’ The answer is almost always something like, ‘My manager or supervisor called me and expected me to take the call.’ It’s almost more important that the message around distraction goes to the managers and supervisors to make sure they understand it,” Hayes said.
How can supervisors support policy enforcement? “The first thing they should ask when calling drivers: ‘Are you in a safe place to take a call? This can wait until you can park someplace safe.’ This communicates that the employee’s safety always takes precedence. It also sets the tone throughout the company’s culture that driving while texting or on a cell phone is inappropriate,” Hayes said.
3-Be Consistent with Policy Enforcement
“The biggest mistake when you’re trying to enforce a distracted driving policy is to make exceptions,” ARI’s Iannuzzi said. “If you’re going to roll out a policy, you cannot make exceptions.”
Policy enforcement must be consistent, across the board, with no exceptions. “Once an exception has been made, the policy is watered down. It could increase the fleet’s exposure to accidents, because if management ignores the distracted driver, it will compromise the safety of the driver. It will also increase litigation exposure,” Iannuzzi said.
According to White, making exceptions might also be construed as discrimination, which has legal implications.
“As far as employment laws are concerned, effective policy enforcement means enforcing the policy in a manner that does not give rise to any inference of employee discrimination,” said White of White Harris PLLC.
“Employers should be wary not to selectively discipline certain protected employees under this policy while choosing not to enforce it against others — such as only enforcing the policy against employees over the age of 40.”
4-Reinforce the Policy on an Ongoing Basis
“Keep drivers educated through regular training, workshops, and newsletters,” Iannuzzi advised. “Restate the policy and send it out to drivers on an annual basis, requiring drivers to review and sign it. This keeps the importance of the policy in the forefront.”
Another tool to help with reinforcement: “We’re seeing more fleets requiring drivers to take a quiz showing they understand the policy,” Iannuzzi said.
If employees operate company vehicles and use company-issued phones, White said one option to deter distracted driving incidents is to require employees to execute a privacy waiver that allows for GPS tracking, enabling fleet managers to cross reference GPS reports with company phone records. “It’s not enough to be reactive, waiting for an incident to happen,” White said. “Be proactive about it, whether that’s double checking on drivers while they’re out on the road or by gathering and reviewing information through tracking use of company issued cell phones and/or company vehicles through GPS data.” White advised checking with company legal counsel about rules governing employee privacy before implementing monitoring.
6-Create a ‘Safe’ Environment for Employees to Report Policy Violations
Employees need to feel comfortable reporting distracted driving instances that they are aware of. “If employees are aware of an issue that could cause a public safety concern, they should be encouraged to come forward to management and report employees who are being reckless. It’s the best thing for the company — and the public at large,” White said.
7-Perform Periodic Policy Reviews
The emergence of new technologies will require changes to fleet policy. “The technology we see today, that we tend to write our policies about, may be completely different in two to three years,” Hayes said. “So, it’s important to risk managers and fleet managers to have a tight hold today on what is acceptable and what is not — and be flexible enough so that, as technology continues to change, the policy can be adjusted accordingly.”
The Bottom Line
While you can’t completely eliminate the risk of litigation for distracted driving incidents, these strategies can at least help reduce exposure, according to Iannuzzi. “You’re demonstrating that you’re doing everything you possibly can do as a company to make sure drivers know and understand the guidelines and that you’re being proactive to enforce them,” he said.
Attorney White agreed. “Any time you’re brought before a court, it’s really important that you’re diligent about enforcing your policies. So, aside from having a policy in place, being able to demonstrate a history of enforcement will help solidify your credibility as a business that takes [curbing distracted driving] seriously,” he said.