Q: An employee who is often on the road for our company insists he is using his cell phone legally when driving by holding it below his chin and using the speaker function. We're not buying it. Who is correct?

Call Mark Soycher at the HR Hotline: 860.244.1900.
Call Mark Soycher at the HR Hotline: 860.244.1900.

A: You are correct to reject his argument, and it's likely that the police or a judge would do the same. State law says it's OK to use a phone while driving only if it is done "hands-free," except to activate or terminate a call. Using the speaker function and moving it away from physical contact with his ear does not give him a get-out-of-jail-free card. The precise placement of the phone is immaterial; your employee is still holding it in his hand: an illegal and dangerous practice.

Research tells us, however, that the real danger lies more in the brain distraction resulting from speaking on the phone while driving, whether hands-free or not. Most people can drive safely with one hand for at least a brief time (and it's not illegal to do so), but driving with only half your brain is a different story.

Why risk the safety of your employee or others and expose your company to the growing inclination of courts to hold companies liable where an employee is permitted to talk on the phone while driving or even actively or passively encouraged to do so by supervisors?

The solution is easy: Adopt a policy that forbids employees from using any electronic communication devices while driving on company business, including hands-free devices. In addition, prohibit supervisors from conduct that might encourage workers to use their phones while driving. Managers who regularly demand that employees stay in touch while on the road or answer calls immediately: or who themselves use their phones while driving: expose the company and the employee to grave liability.

These issues are a concern regardless of whether an electronic device or the vehicle is company issued or owned, or personally owned and used for work purposes. To stress the point with employees even more strongly, you might consider including in your policy a statement such as, "Employees who are charged with traffic violations resulting from the improper or illegal use of their phone or other electronic device while driving will be solely responsible for all fines and liabilities that result from such actions."

Such a statement may not completely insulate your company from liability, but it may make an employee think twice before grabbing that call while driving: which could end up costing the offender $125, $250, or $400 for a first, second, and subsequent offense respectively, independent of any other moving violations, criminal charges, and/or civil liability.