Читать книгу Employment Law Update - Jonathan Ingber - Страница 42

Most companies use the APA, defined earlier, to inform employees that they are required to use mobile communications devices in hands-free mode (where the law permits), and inform employees of their obligations under the law. The APA usually includes language that encourages limiting personal calls, prohibits texting, emailing, instant messaging, or tweeting while driving, and informs employees of safety measures to employ while driving and talking on a cell phone. The following map illustrates the status of state laws that ban or restrict cell phone use and texting as of 2015, based on information from the Insurance Institute for Highway Safety.

S.P. McEvoy, M.R. Stevenson, A.T. McCartt, M. Woodward, C. Haworth, P. Palamara, and R. Cercarelli, “Role of mobile phones in motor vehicle crashes resulting in hospital attendance: a case-crossover study.” BMJ (2005): 331, http://dx.doi.org/10.1136/bmj.38537.397512.55. Accessed January 6, 2018.

The National Safety Council (NSC) estimated in 2014 that 10% of U.S. accidents involved distracted driving, of which 13% involved a cell phone in use. The NSC estimates were compiled due to the belief that drivers significantly underreported cell phone use in crashes.

If an employee is involved in an accident and is ticketed or found to be at fault, the employer should expect to receive a subpoena in any later litigation for (a) company-owned cell phone billing records and (b) driving data (speed, braking distance and force applied, steering corrections, and direction) from immediately before the accident that was recorded by the car's computer system. The employer may have a defense if the employee was not driving his or her car for business purposes at the time of the accident, but that defense will be seriously compromised if the employee was talking on a smartphone with a customer, supplier, coworker, or other work-connected party at the time of the accident. Put another way, plaintiffs' lawyers will seek ways to add the employer as a co-defendant where the circumstances allow. This is because businesses carry insurance policies that typically have higher policy limits than do individual policies, and a larger company is perceived as a deep-pocket defendant that can afford to pay a judgment if it exceeds policy limits.