Cellphone use dials up trouble for employers

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Drivers in Manitoba are soon to face fines if they’re caught using their cellphone while operating their vehicle.

DRIVERS caught talking on their cellphones after next month's ban comes into effect won't be happy with their tickets but the fines they'll face could be a drop in the bucket compared to the hit their employers might take.

The Manitoba legislation, which goes live July 15, gives rise to a related issue -- are employers liable for the damages caused by their employees who get in accidents while talking on their cellphones?

The answer, according to Scott Hoeppner, a lawyer at Thompson Dorfman Sweatman LLP, depends on where the accident takes place. Within Manitoba's borders, the province's no-fault insurance kicks in, which bars any legal action related to injuries suffered in a motor vehicle accident.

If it's in Ontario, Alberta, the Maritimes or the majority of U.S. states, however, all of which are "fault" jurisdictions, companies should be "very concerned," he said.

"If the employer provided the device to the employee, it's likely they'll be directly liable (for any damages). If the employer hasn't provided the device, but the employee is using it in the course of their duties, like a sales rep would, then there's a good chance the employer will be vicariously liable," he said.

Hoeppner said the difference between direct and vicarious liability is in degrees of separation but they both mean the company is "on the hook."

Employers won't be completely at the mercy of their law-breaking employees, he said.

They can protect themselves by establishing and enforcing an internal policy that stipulates employees will comply with all provincial and state laws with respect to hand-held devices and driving, a protocol to be followed by all employees for retrieving and responding to messages and disciplinary measures for non-compliance.

There is some grey area, however. If an employee is on the road in the U.S. and gets in an accident while talking to their spouse, the employer might claim that such a call has nothing to do with their job. The employee, on the other hand, might say that checking in with their family is part of doing business.

"If you get in an accident on the way to a ball game while talking on your phone, companies will say, 'this was on your own time, we're not vicariously liable.' The really risky ones are where you're directly involved and trying to close a deal with a client on the phone. Then I think the employer is going to be in some trouble," he said.

Bison Transport, one of Canada's leading trucking companies, isn't taking any chances and hasn't for several years. It recently reissued its policy forbidding the use of any handheld device by its drivers, including CB radios, while on the road. Garth Pitzel, Bison's director of safety and driver development, said having a blanket policy is safer because not only are drivers not distracted while driving, they don't have to worry about different rules in different states and provinces.

"We run 110 million miles a year. We want to make sure the drivers are in the best position to operate them as safely as possible at all times," Pitzel said.

Drivers can use wireless devices provided it's done hands-free or by voice activation. A new technological advancement recently adopted by Bison will read messages to drivers while they're behind the wheel. If it's urgent, they can pull over and deal with the situation.

Brian Smiley, media relations coordinator with Manitoba Public Insurance, said it will cover cellphone-related crashes for individuals in the province.

"It would be looked at no differently than speeding and going through a red light. Whether they were on their cellphone or not buckled up, there would still be coverage provided with the crash. Where you'll feel the pinch is you'll probably be ticketed by police," he said.

geoff.kirbyson@freepress.mb.ca

Republished from the Winnipeg Free Press print edition June 23, 2010 A4