How Far Will Cell Phone Bans Go?

State bans on using cell phones to talk and text while driving are becoming ubiquitous, but the low cost of a ticket and spotty enforcement mean that many drivers are simply ignoring them. If you’re a fleet using commercial vehicles, however, life got a whole lot stricter on Jan 1. That’s when a new federal law went into effect that makes it illegal to use handheld cell phones while driving commercial vehicles.

The government means business on this — drivers caught violating the law will face federal civil penalties of up to $2,750 for each offense, disqualification from driving a commercial vehicle and possible suspension of their commercial driver’s license for serious offenses.

It’s even stiffer on the company — for the third offense the fleet will face the possibility of an $11,000 fine. What’s more, these offenses will count against a company’s CSA (Compliance, Safety, Accountability) BASIC Score, which is a key criteria in getting hired to haul.

Fleets are paying attention. “They are now forced to think about this as a practical component of their fleet operation because the violations pertaining to the ban will filter through to their BASIC score,” says Matt Howard, CEO and co-founder of Zoomsafer, a company that provides software to prevent distracted driving. “Most companies take CSA scores and regulations pretty seriously.” Howard has seen a spike in inbound traffic on his company’s website of 300% in the rule’s first month and 650 companies requesting info in the first week of January alone.

Are your fleet and drivers affected by the new rule? If your company has a USDOT number, which means you haul passengers or cargo between states, you must follow the law. That means the law applies to some 4 million U.S. drivers in total, a lot more than what we consider the trucking industry.

Enforcement may be trickier, or is it? Howard’s research reveals a coordinated training and policing effort between federal DOT reps and state and local law enforcement. If you get pulled over for speeding on a highway, those same cops would probably be able to ticket you for a cell phone law violation.

This isn’t the end to cell phone-related legislation, as more states move toward a handheld ban for all drivers. But are we headed ultimately to an all-out ban on cell phone use in cars, including hands free? In Dec. 2011, the National Transportation Safety Board issued a recommendation to ban hands-free phones while driving. Imagine a world in which pharmaceutical sale reps can’t drive and talk using their Bluetooth earpieces or SYNC systems!

Illinois lawmakers, for instance, have introduced legislation to restrict cell phone use to hands-free only while driving. However, at least one lawmaker is considering introducing an all-out ban at the local level, in hopes that it becomes a positive influence for a statewide initiative down the road. Howard, for one, doesn’t think this type of law will happen. “It’s political theater that has zero chance of passing in any state,” he says.

Regardless of law, you need to be proactive regarding your company’s cell phone policy. You do have a policy, right? If you don’t, you’re behind the times. Howard’s statistics show that 72% of companies he’s surveyed have a policy in place and 61% of those that don’t have a policy intend to put one in place. In 2008 — not long ago — a National Safety Council statistic revealed that only 19% of companies had a cell-phone policy.

Why is a policy so important? You may have seen conflicting studies on whether cell phone bans reduce crashes and whether use of hands-free cell phones is safer than handheld, or equally as risky. But while those hard-to-get-at statistics will continually be open to debate, employer liability for employees’ behavior is well-established, as is the path to identifying a crash that was caused by distracted driving.

Nearly all new vehicles have event data recorders that reveal the vehicle’s speed, acceleration, braking or swerving at the time of the accident. Combine that data with cell phone records and plaintiffs have plenty of ammunition to determine fault for a crash.

Is this record gathering all too intrusive? “There is no expectation of privacy on cell phone transmissions through the open air,” says Phil Moser, vice president of Advanced Driver Training Services (ADTS). “Cell phone records are easy to get and subpoena.”[PAGEBREAK]

Add to that the cottage industry of lawyers specializing in distracted driving accidents, and your liability exposure just widened further. “And they’re (the lawyers) all looking for the low-hanging fruit,” says Howard, referring in part to companies with no policy to protect them. “If it’s hard, they’ll go find another case that’s more straightforward.”

From a liability perspective, establishing a cell phone policy is only half the battle; it is just as important to enforce it. Take the case of Ford v. McGrogan & International Paper: In 2008, an employee of International Paper was driving while on a cell phone and rear-ended another car, causing the victim’s arm to be amputated. While the company had a written and communicated cell phone policy, plaintiffs were able to show that the policy had not been enforced. The defendants settled for $5.2 million dollars.

Not only should the policy be communicated (and documented) regularly, you should establish and communicate that cell phone records will be analyzed when an accident happens. The message will be clear: “If we find out you were on the phone at the time of the crash, there will be consequences,” Moser says. Ultimately, enforcement should include termination for multiple offenses.

To be even more proactive, some companies are establishing systems to regularly analyze cell phone records of employees while on company time. Granted, this is tricky if your employees own their own cell phones, as employee consent is needed to access their phone records. For new hires, Howard suggests making the analysis of phone records a condition of employment. (Zoomsafer has a product that automates this using telematics data. For privacy sake, it records the cell phone text or call as an “event” without listing a number.)

Safety policy and privacy often butt heads, though in the course of employment, the movement is toward acceptance of practices and technology that makes us safer. The hue and cry against GPS tracking of company vehicles has abated as implementation becomes more widespread. Howard remembers the pushback when the FMCSA implemented the rule requiring trucking companies to do DMV checks some six years ago. “No one questions that policy now,” he says.

Ultimately, you can’t rely on a law to get your drivers to stop using their cell phones while driving. That must be generated within your company. And the fact remains that driver distractions are the leading cause of most vehicle crashes and near-crashes. According to a study released by the National Highway Traffic Safety Administration (NHTSA) and the Virginia Tech Transportation Institute (VTTI), 80% of crashes and 65% of near-crashes involve some form of driver distraction.

Are you ready to implement a ban of even hands-free cell use? Is it warranted? The FMCSA rule declined to go that far, saying sufficient data does not exist to justify a total ban. Other studies do show the risks of cognitive impairment of talking while driving. “Hands-free or handset, it’s still a distraction,” says Moser, who in a former career investigated some 3,500 crashes, most involving some form of distraction.

From a liability standpoint, if you do allow hands-free operation of cell phones you may be opening up a gray area. There are a lot of systems out there: is one totally voice activated, while another requires the punching of buttons to activate a call? If your driver crashed while talking using a Bluetooth earpiece, could a lawyer still exploit that?

One study does show the correlation between fleet safety and cell phone policy. The 2010 Strength in Numbers Fleet Benchmarking Study, sponsored by the Network of Employers for Traffic Safety (NETS), showed the top safety performers are companies with policies totally banning cell phone use, both handheld and hands-free, and establishing strong consequences — including termination — for employees who violate such policies.

Expect pushback from some employees if you implement a policy banning all cell phone use while driving. But you have to ask yourself whether those calls while driving were really that productive anyway. “You’re doing two things poorly at once,” Moser says. “Your driving will suffer, and if you’re trying to conduct business, it will suffer as well.”

As we move toward acceptance of technology to make driving safer, so too the public should be getting the picture about talking while driving. “People readily accept that you’ll be able to call back later after you’ve stopped driving,” Moser says.

For a feature article with tips on how to create an effective cell phone policy, click here.

Originally posted on Business Fleet