Message to employers: Ban texting while driving

By FRED HORLBECK, Senior Staff Writer

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Is texting while driving a mere craze or is it sheer crazy?

With hundreds of people dying annually in cell phone-related auto crashes nationwide, federal authorities seem to think it’s not just a craze and now have anti-texting guidelines that apply to businesses nationwide.

For South Carolina employers, that means it’s time to work up written policies against text messaging. The idea is to keep businesses’ potential liability as low as possible, say two Palmetto State employment lawyers.

A potential problem lies in the reality that texting already is such a staple of workplace culture and communication that managers themselves may be unwilling to give it up. But businesses that don’t comply could incur federal penalties or civil liability.

The guidelines went into effect in October, when the U.S. Occupational Safety and Health Administration declared texting to be a workplace hazard and issued a model anti-texting policy for employers’ use, said Reggie Belcher, a shareholder who practices employment and labor law at Turner Padget Graham & Laney in Columbia.

“I’m recommending to people just what we did internally here at our law firm. We banned text messaging if you’re driving a company car or if you’re driving your own car on company business,” he said.

The “initiative,” as OSHA called it, put employers on notice that they had a general duty to address texting as a hazard. The model policy banned employees from using cell phones while driving.

“The problem with that is you’ve got to make sure that, if you have that policy and you’re in management, you don’t do it,” said Mary Lou Hill, a shareholder in the Greenville office of Ogletree, Deakins, Nash, Smoak & Stewart.

“And I’m going to ask a rhetorical question,” she added “Who hasn’t made a call when they’re on the interstate?”

Part of the dilemma is the potential for OSHA citations and fines. But Belcher said OSHA penalties aren’t a “large deterrent,” and Hill said it’s her understanding that the OSHA office of the S.C. Department of Labor, Licensing and Regulation isn’t actively enforcing the initiative.

“The bigger dollar issue out of OSHA is the way that a victim could use the OSHA statements about text messaging and say, ‘Hey, OSHA has created a duty, and you’ve breached that duty’ and use that in a negligence case. And that’s where the big dollars would be,” Belcher said.

Undefined terms

When it unveiled the guidelines, OSHA said it would investigate any “credible complaint” against an employer who “requires texting while driving or who organizes work so that texting is a practical necessity.”

What constitutes a “credible complaint” is uncertain, but both Belcher and Hill said it probably means any complaint from an employee or third party. OSHA hasn’t issued any guidelines to clarify the issue, Belcher said.

Also uncertain is what constitutes a requirement or practical necessity for texting while driving, they said.

“You could make the argument, I think, that it’s a requirement to text message if the employer is sending a text message or an e-mail on a BlackBerry and anticipates that you’re going to respond. And the employer knows that you’re traveling and likely driving at the time that he sends it,” Belcher said.

If an employer knows that workers are texting each other while driving and does nothing to stop it, “that’s just the other side of the same coin in terms of being hit with a lawsuit and being forced to incur the cost to defend it,” Belcher said.

Also, mere awareness that a worker is texting family and friends on the job could open an employer to liability, he said.

“In a lawsuit, the employer will come forward and say, ‘Hey, that’s outside of the employee’s job duties. We’re not liable.’ Whether you win that argument, I don’t know,” he said.

‘On the ball’

So far, the initiative hasn’t ruffled too many feathers in South Carolina. Belcher said only a handful of clients had taken issue with it, and Hill said the same.

“I think that most of our clients are pretty on the ball and they already have policies in place that require employees to work safely and have specific policies on use of cell phones while driving, although maybe not specifically texting,” Hill said.

OSHA cited research indicating that younger drivers are especially prone to texting while driving. Indeed, in 2009, 20 percent of crashes resulting in injuries involved reports of distracted driving, according to the National Highway Traffic Safety Administration.  Drivers under 20 years old had the highest proportion of distracted drivers involved in fatal crashes, according to OSHA.

“OSHA’s point is to stress to all employers that we need to ban text messaging while driving, but you need to be particularly certain to review it with young workers,” Belcher said.

Thirty states and the District of Columbia ban texting while driving, according to the nonprofit Insurance Institute for Highway Safety in Arlington, Va. South Carolina does not have a ban, but the cities of Camden and Clemson have established their own.

“If you’re a lawyer giving advice to an employer, that might be another way to persuade them that they may as well go ahead and adopt this policy because to the extent their employees are driving through Camden and Clemson … they’re going to have to put down the text messaging anyway,” Belcher said.

OSHA model policy on distracted driving

Below is language that the Occupational Safety and Health Administration is promoting as a model for employers to use in developing policies against texting while driving.

Of increasing concern to [Company Name] are the dangers of distracted driving. Recent deadly crashes involving drivers distracted by talking and texting while driving highlight a growing danger on our roads. Numerous studies have demonstrated how the use of hand-held cell phones while driving pose a significant safety risk to motorists, their passengers and others on the road. In fact, according the National Highway Traffic Safety Administration (NHTSA), in 2008, nearly 6,000 people died in crashes involving a distracted driver.

Therefore, [Company Name] will no longer tolerate texting or talking on a hand-held phone while operating a company vehicle or while using a company issued cell phone while operating a personal vehicle. This includes, but is not limited to, answering or making phone calls, engaging in phone conversations, reading or responding to e-mails and text messages.

[Company Name] employees are required to:

• Turn cell phones off or put on silent or vibrate before starting the car.
• Pull over to a safe place if a call must be made or received while on the road.
• Consider modifying voice mail greeting to indicate that you are unavailable to answer calls or return messages while driving.
• Inform clients, associates and business partners of this policy as an explanation of why calls may not be returned immediately.

[Company Name] is concerned about the safety of its employees. It is our goal that if we lead by example, the practice of no texting or talking on hand-held cell phones while behind the wheel will spread throughout the community. Violations of this policy will lead to [Insert Company Consequences]

Below is a Statement of Acknowledgement that says you have read and fully understand [Company Name] policy. Please sign it and return it to your supervisor. If you have any questions regarding this policy please contact your supervisor.

I have received a written copy of the Council’s Motor Vehicle Safety policy. I fully understand the terms of this policy and agree to abide by them.

_________________________________________       __________________

Employee Signature                                                 Date

_________________________________________

Employee Name (printed)