Driven to distraction

BlackBerrys and cellphones are becoming essential to the work of many employees across the country, and several Canadian companies and their in-house counsel have been actively creating and updating the policies affecting their employees’ use of wireless devices — especially while on the road.   

While some provinces have addressed the issue — with Newfoundland having instituted a law banning the use of cellphones while driving in 2003, and Quebec recently passing legislation that will make it an offence to drive while speaking on a hand-held cellphone — Canadian companies across different industries are also responding to both the increased use of wireless communication at work and the  thought-provoking statistics surrounding this increase.

“To the extent that [provinces] are recognizing it, I think employers need to be out in the forefront of this to put these policies in place and to get their employees some guidance as to what the expectations are from a corporate standpoint,” says Russel Zinn, senior partner in Ogilvy Renault LLP’s employment and labour law practice in Ottawa.

Results of a study published last year by a group of researchers at the University of Utah found that people who drive and talk on the phone are as impaired as those who drive with a blood-alcohol level of 0.08 per cent. The study also noted that hands-free sets are as distracting as hand-held cellphones, as it is the conversation that distracts the driver.

Edmonton-based Finning (Canada) — which sells, rents, and provides customer-support services for Caterpillar equipment and engines in British Columbia, Alberta, and the Territories — reviewed similar studies before deciding to institute a policy banning all of its employees from using wireless devices while operating a vehicle on company business. The policy has now been in place for just over a year.

“The driving force behind it is safety. We have as a core value of our company the commitment to create and maintain a safe work environment for everybody that we deal with — employees, contractors, customers and so on,” says Steve Mandziuk, general counsel for Finning (Canada).

While there reportedly haven’t been any Canadian cases regarding an employer’s liability for employees who end up in a car accident while talking on a cellphone for work, there have been several such lawsuits in the United States, at least one of which was settled by the employer before it went to the jury.

There was no cataclysmic event that led to the creation of Finning’s policy last year, says Tom Petras, director of environment, health and safety at the company, but studies reviewed by the company prior to its implementation “indicate that when a person talks on a cellphone while driving, the chances of them . . . being involved in a fatal collision increases by four to six times the norm,” says Mandziuk.

The company is also one of over 15 member organizations of the Alberta-based Coalition for Cellphone-Free Driving, which recently released the results of a provincial survey by the population research laboratory at the University of Alberta. According to the survey, 73 per cent of participants rated cellphone use while driving as very or somewhat dangerous.

“Because this is such a problem, we felt it was something that we could do something about and be a bit of a leader in our industry,” says Mandziuk.

The 4,500-employee company is also rapidly growing, he says, and hoping to reach a target of 5,000 in the next two years. The workforce is also young — many are under 30 and comfortable with text messaging and other wireless features.

“The policy — the relevance of it is particularly timely . . . and [in] our economy, generally, everybody is flying at the speed of light here in Alberta,” he adds.

Petras spearheaded the policy, while in-house counsel was involved with the language around the policy and with the progressive discipline side.

“If we are looking to react to someone breaching a policy, they’ll come to me, and I wanted to make sure that the policy was clear and fit with the legal guidelines we need to follow in employment law,” says Mandziuk.

Finning’s wireless policy says if an employee is conducting business for the company, use of wireless communication and devices is prohibited while operating a motor vehicle. This includes cellphones, hands-free devices, BlackBerrys, car phones, text-messaging devices, pagers, two-way radios, and Bluetooth-enabled equipment.

The policy applies to employees as well as to any personnel on their property, including contractors, says Mandziuk, and is also visible to the general public, as the company places decals on its unmarked and marked cars with a picture of a cellphone crossed out.

The policy does encourage the company’s employees to go wireless-free while driving all the time, but it can’t require them to follow it on the weekends.

Employees who get a call are required to pull over to the side of the road and place their vehicle in park. The exception in their business, says Mandziuk, are for trucks on logging roads where there might be a requirement to use brief communications for safety reasons.

If the policy is violated, it’s considered serious, says Mandziuk, and there is a discipline policy in place, with penalties ranging from written suspension to termination.

Examples of companies with existing wireless policies for employees can be found across a number of different sectors in Canada. For example, a spokesperson for telecommunications company Telus Communications Inc. notes that the organization has had policies and training in place for many years now on managing distractions while driving — distractions like cellphone and BlackBerry use, eating, talking, and listening to music while driving.

The guidelines are designed to keep a driver’s attention completely focused on the safe operation of the vehicle.
The company is one of several organizations that have partnered with the Canadian Wireless Telecommunications Association on a safe driving campaign called “Focus on Driving.”

The initiative’s brochure on driver distraction notes that Canada’s wireless industry “has long maintained a strict but simple policy in regard to driving and using a wireless device,” and stresses that drivers should never use wireless data services such as text messaging while driving, that they should let voicemail pick up calls when it’s unsafe to answer the phone — or at least use a hands-free device if it’s absolutely necessary to make or receive a call.

Following a deployment of BlackBerrys to a wider group of employees, with another on the way soon, Xerox Canada Ltd. also recently decided to refresh its wireless policy.

Sacha Fraser, senior counsel with Xerox Canada, was involved in shaping the policy for service employees back in 2001 and, more recently, with the wireless-use policy for sales staff.

As the policy is driven by operations, working along with information management and human resources, in-house counsel’s role is to consult on developing the policy, she says.

Fraser says the company’s long-standing policy on wireless use by service employees while driving was developed several years ago based on a few main factors. One was to take advantage of the opportunity to communicate a policy and guidelines to employees, as the company at the time was deploying new cellphone hardware to the field; another was the fact that the dangers caused by driving while talking on the cellphone were frequently in the news and the company wanted to make sure that Xerox’s position “was very clear to our drivers.”

The company has three broad categories of employees, each of which is subject to different policies regarding wireless use while driving. Those who drive company-leased vehicles and use company-issued PDAs (these are mostly service technicians who do maintenance on the company’s photocopiers at different locations) are subject to the strictest policy: a total ban on wireless device use while the vehicle is in motion or stopped at a red light. They have to be either parked or pulled over to use their wireless devices.

When the phones were issued years ago, Fraser says the company deliberately did not issue headsets to these employees, as they thought this would send the wrong message. However, service technicians will soon be getting BlackBerrys with headsets intended for use at customer calls, so employees can make calls to second-level support while working on a copier, for example.

As a result, the company is going to be amending the wireless policy to reflect that the new headset is only for that scenario and not meant for use while driving, she says.

The company’s sales force, who drive their own vehicles but received new company-issued BlackBerrys in January, are subject to more of a balanced, “use while driving is at your own risk” policy, she says, and could use hands-free sets.

Included in the sales policy, however, is the reinforcement that employees must respect local legislative requirements. This policy was recently refreshed to address the BlackBerry context, as the old policy was for cellphones, notes Fraser. The update was?also meant to explain the balanced approach and to reinforce that?device use while in transit is at an employee’s own risk.

At Finning (Canada), those who have been most affected by the policy are the sales force, says Mandziuk, who in a two-hour drive could have previously made 15 calls and are now left with downtime.

“I would say the vocal majority was in favour of it, and then there was a bit of a quieter minority that was really struggling with how they were going to continue to do their jobs with this in place,” says Petras. IH

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