Driving, Texting...& Working? Not Our Employees

Author:Mr Peter Lightbody
Profession:Richards Buell Sutton LLP
 
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How do your employees stay in touch when out on the road? Do they phone, text and email you? Are they behind the wheel when they call? Let's hope not.

British Columbia's amendments to the Motor Vehicle Act came into force in February, 2010. The new law makes unlawful the use of cell phones while driving, but is broader than that. Entitled "Use of Electronic Devices while Driving", the new provisions make it illegal even to "hold" or to "watch" an "electronic device" while driving. For absolute clarity, even televisions made the naughty list. (Of course the new law includes exceptions based on "hands-free" use, use in a "safely parked" vehicle, and use by emergency personnel. ICBC's website is a helpful reference for how the law works in practice).

Employers ought to reflect on the new legislation, and on employee cell phone use while driving generally. We highlight below some of the issues raised for the workplace.

Discipline

Inevitably, some employees will disregard this law, and employers may have little tolerance. But will cell phone use while driving constitute "just cause" for termination? Typically, mere breach of a regulatory law like this one will not provide grounds for termination, even if it leads to an accident. This is why a prudent employer will want to have in place a clearly worded written policy, perhaps including "zero tolerance" language that prohibits such activity. An existing Employee Policy Manual should be amended, or a memo circulated to employees. Either way, the employees should be required to "sign off" on the policy and the written evidence of their acceptance should be maintained on file. These steps will significantly strengthen the position of the employer if an employee alleges that a termination for cell phone use while driving is wrongful. Typically an employer is liable for the negligent actions of an employee acting in the course and scope of his or her employment. If an employee drives during work, the employer is liable for damages arising from accidents caused by the employee. This will be the case whether or not the use of a cell phone while driving contributes to the accident. The point worth emphasizing is that, as has been statistically proven, drivers are far more likely to cause accidents while using a cell phone. Therefore an employer who does not clamp down on the behavior is far more likely to be met with legal proceedings arising from car accident related injuries, with all of the headaches...

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