NLRB ruling helps but middle ground needed to mitigate cell phone usage liabilities while maintaining fleet operational efficiency
Cell phones are ubiquitous, ingrained into our personal and professional lives, and clearly have the ability to provide significant improvement in driving behavior and overall fleet operational efficiency. However, the misuse of cell phones by commercial fleet drivers, whether the phone is owned by the driver (BYOD) or the fleet, is a huge liability for the fleet/insurer. This exposure is getting worse on a daily basis with more aggressive plaintiff actions and nuclear judgments proliferating.
The magnitude of the problem is now so compelling that the National Labor Relations Board has recently provided guidance in this area: NLRB which states that it is legal to ban the use of cellphones if it is done for safety or security reasons…the current board earlier this year found that an employer’s policy prohibiting cell phone use by their truck drivers while driving was lawful due to the substantial safety concerns for commercial drivers.
While fleet management can ban the use of cell phones in commercial vehicles, they cannot typically force the drivers to allow their personal (BYOD) phones to be used for company purposes. Fleet management needs driver permission; drivers typically need to “opt-in”. While fleet assets may typically involve installed telematics, GPS, video, and ELD systems, the driver’s cell phone is unique in that it is often owned by the driver. The bottom line is that the fleet (and the insurer) can face huge financial damages via the misuse of cell phones by commercial drivers no matter who owns the phone.
Cell phone misuse is implicated in 27% of all fleet accidents. Cell phone distraction management technology can make a significant and immediate impact on driver behavior, comes at a relatively low cost, is relatively simple to deploy, and is largely “self-correcting” in that the technology interacts directly with the driver, real-time, to appropriately mitigate the risk of cell phone misuse.
On one side of this issue is the fact that plaintiff attorneys will absolutely find out the involvement that cell phone misuse has in any accident. The fleet and insurer will be punished by the legal process if cell phone misuse is proven from available phone carrier records. As a sidelight, many fleets are now instituting processes to self-identify (through the phone carrier) if the driver’s cell phone was in use at the time of the accident to get out in front of the issue. On the other side of the argument is that the “enabling device” (the cell phone) is typically not owned by the fleet, it is, rather the personal possession of the driver. And the driver has less incentive to have his/her phone used by the company. The driver’s “opt in” incentive is generally very low.
Among strategies to mitigate driver cell phone misuse, commercial insurers may provide exclusionary coverage, not covering accidents caused by phone misuse. Insurers may incentivize the use of technology that mitigates cell phone distraction risk. Fleets may implement cell phone distraction avoidance technology as a condition of employment. Often personal phones are already used for commercial purposes and the fleet will in some fashion, compensate the driver for typical use so cell phone distraction technology may be an extension of current fleet functionality.
Whatever the case, it is imperative that fleets protect themselves from cell phone misuse liability. If the fleet provides the phones, it is the same as installed devices in vehicles. If the driver brings his own device to the work environment, the fleet must provide an environment for the driver to “opt-in” to mandate a safe operating environment when it comes to cell phone usage.
For more readings on the impact distracted driving has on fleet safety read below: