Reporter Ashley Halsey III notes that it’s no longer a question of if a company will be sued after an employee’s cell phone use leads to a crash, but when.

Writes Halsey, “Distracted-driving lawsuits now are part of the legal landscape, and the lawyers who bring them are increasingly going after the deep pockets of corporations that let their employees talk or text while behind the wheel.”

By now, you’ve probably heard about the massive $21 million verdict Coca-Cola USA is facing as a result of an employee’s cell phone use while driving. We’ve extensively covered similar lawsuits involving employee distracted driving in white papers and on this blog. But Halsey thinks these blockbuster, front-page stories are the exception, not the rule. Many companies facing litigation are choosing to quietly settle out of court – likely to the tune of hundreds of thousands of dollars – after realizing they are “facing lawyers armed with the smoking gun of cell phone records.” And those records can be equally damning whether or not the phone in question belongs to the employer: “Whether it’s a company car, a company-issued phone or just an employee making a business call in a private car on a private phone, the corporation is within the reach of a distracted-driving lawyer.”

So what should employers do to reduce their risk and liability? Halsey believes distracted driving lawsuits not only “encourage corporate bans on calling and texting,” but also encourage employers to actually make an effort to enforce those policies. Halsey is right on the money – and all of these distracted driving lawsuits show that employers must take proactive steps to promote safe and legal use of mobile devices while employees are driving on-the-job.

Innovative technology to manage compliance with cell phone use policies already exists – take advantage of a free demo to see for yourself how it works.

• Efforts to enforce written cell phone use policies are increasing: 86% of companies with a cell phone use policy in place take steps to enforce those policies, a 62% increase from 2011, when only 53% reported making an effort to enforce compliance.
• Confidence in current enforcement methods is plummeting:  Although more companies are taking steps to enforce their written cell phone use policies – only 26% are “very confident” that current enforcement methods are sufficient to modify driver behavior.
• Interest in cell phone compliance technology continues to grow:  26% of respondents report their companies plan to evaluate phone-based software, cell phone use analytics or in-vehicle cameras within the next twelve months to help manage compliance with documented policies.

Click through this ebook for a summary of the results – then download a free copy of the complete analysis!

For me personally, the highlights included (1) the awesome key note delivered by Derek Leathers CEO of Werner Enterprises, (2) the presentation from John White, President of US Express in which he talked about his company’s efforts to deliver smart-phone-based business applications to help make life easier for employee drivers, and (3) the passionate presentation from Robert Nathan, the smart and talented Gen-Y CEO from Load Delivered.

With regard to ZoomSafer, the conference was a great opportunity to study up-close, and in-person, the industry’s innovative leaders and to reflect on our own evolution as an innovator in the space.  So, after spending three days in Princeton, I wanted to take a few minutes and share a summary of my “ALK-induced” thoughts:

• I am man-enough to admit that golfing in the rain totally sucks — but I am not nearly man-enough to wear pink golf shoes.
• The proliferation of mobile smart phones and tablet computers among drivers who hold commercial drivers licenses (CDLs) is a conundrum which requires carriers to find innovative ways to balance productivity and revenue growth with safety, risk management and compliance.
• While carriers regularly utilize FCRA compliant services to analyze personal data (MVRs, Drug Tests, Background checks) as a proxy for understanding and managing driver risk — they remain hesitant to utilize similar services to understand and manage driver risk associated with the use of “personal phones” while driving company vehicles.
• Truly innovative in some ways — and truly backward in other ways, there is a huge opportunity to deliver new innovation at the intersection of connected vehicles and connected mobile devices — especially if you can leverage a carrier’s invested capital in existing systems.
• Coke was not the first, and Coke will not be the last — and the day will eventually come when carriers will be compelled to analyze “employee use of personal cell phones while on the job” much the same way they already analyze “employee use of personal vehicles while off the job.”
• Princeton is a lovely little university town with a horrible parking problem and an efficient way to pay parking fines.

Thanks again to Barry Glick and the entire ALK team for hosting.

Two years ago, to help articulate our vision, we produced a video dramatizing what could happen to employers if they failed to take the proper steps to promote safe and legal use of mobile phones while employees are driving on-the-job.  The video, in my opinion, bears an eerie resemblance to events that unfolded in a Texas court last week, events which led to a $21 million jury verdict in a distracted driving lawsuit against Coca-Cola.

Read this summary of the circumstances behind the Coca-Cola distracted driving crash lawsuit — then watch the video below.

I would love to get your thoughts and feedback about the similarities and differences between ZoomSafer’s two-year-old “What if?” video – and the real-world happenings at Coca-Cola – share your thoughts in the comments.

Here are three important lessons this historic case teaches fleet managers:

1. When it happens to you, the plaintiffs will sue:  Thomas J Henry, the lead plaintiff’s attorney said in a press release, “From the time I took the Coca-Cola driver’s testimony and obtained the company’s inadequate cell phone driving policy, I knew we had a corporate giant with a huge safety problem on our hands.”  Furthermore, he said, “I hope the verdict sends a message to corporate America that you can’t have employees on a cell phone and endanger the motoring public.”The lesson is simple: plaintiffs are watching and waiting to sue employers whenever employees crash due to a cell phone related distractions.
2. A written cell phone use policy is not enough:  Coca-Cola’s lawyers argued that its company cell phone use policy, which required the use of a hands-free device when operating a motor vehicle, was consistent with, and in fact, exceeded the requirements of Texas law.  The plaintiff, however, argued that Coca-Cola’s cell phone policy for its delivery drivers was “vague and ambiguous” and it certainly wasn’t enforced in any way.  Regardless of whether Coca-Cola’s policy was well-documented or not, empirical evidence shows that many employee drivers flout written policies.  The bottom line is that written policies alone are not sufficient to change employee driving behavior, and therefore are not sufficient to protect employers from risk and liability.
3. Policy enforcement is critical:  Let’s assume, for the sake of argument, that every single one of Coke’s drivers fully understood that the company required hands-free use of mobile devices while driving.  The critical question remains: “What, if anything, did Coke do to measure and manage compliance with its cell phone use policy policy?”  If the answer is “nothing”, the case law clearly shows that employers should expect to be held accountable for damages that occur when employees drive distracted.

This isn’t the first multi-million dollar lawsuit resulting from employee mobile phone use while driving – or even the first with a verdict over $20 million. But this case emphasizes just how serious the risk is – and that all employers can be vicariously implicated if they fail to manage and monitor how employees are using mobile devices while driving. Employers who want to minimize liability as much as possible must institute risk management programs to actively or passively enforce cell phone use policies.

On April 5, Idaho Governor C.L. “Butch” Otter signed the state’s ban on texting while driving into law. Idaho, which was the 37th state to enact a state texting ban, will begin enforcing its new law on July 1. The new law will receive primary enforcement – meaning police officers can pull over and cite drivers for texting violations alone – and imposes an $85 fine on violators. It also makes an exception for drivers using voice-activated or hands-free devices to compose text messages while driving.

And yesterday, Alabama became the 38th state to ban texting while driving when Governor Robert Bentley signed into law a bill prohibiting motorists from texting, emailing or instant messaging while behind the wheel. Specifically, Alabama’s texting law reads: “A person may not operate a motor vehicle on a public road, street, or highway in Alabama while using a wireless telecommunication device to write, send, or read a text-based communication.”

Alabama’s law, which goes into effect on August 1, also makes texting, emailing and instant messaging while driving a primary offense. A first offense will cost Alabama drivers a $25 fine – with the rate increasing to up to $75 a pop for subsequent offenses. It does allow for several exceptions, however, as drivers are allowed to:

• Dial phone numbers
• Make emergency calls
• Use their mobile phones for GPS navigation services as long as driving directions are “pre-programmed”

So what impact will these laws have? All of Alabama’s exceptions could make enforcement very difficult as a driver could simply claim he or she was making a phone call or checking directions rather than writing or reading a text or email. According to The Associated Press, the bill’s sponsor, Rep. Jim McClendon, reportedly explained that law enforcement”officers would be able to use [cell phone] records to prove that a text was sent while a driver was on the road” -  though such records usually require a subpoena and time to receive and review…

Likewise, police in Idaho are somewhat skeptical of the ban’s enforceability and think that catching violators will be purely “situational.” Pocatello Police Department Lt. Paul Manning says, “You’re going to have to catch them in the act,” or investigate drivers’ cell phone records to “reconstruct” a crash, reports the Idaho Reporter.  Such a stance implies that Idaho’s law won’t stop the crash from happening in the first place, but only establish whether a texting driver was the cause.

On the other hand, some Alabama law enforcement officials recognize that texting bans are no silver bullet – but think it could have a positive impact on drivers’ behavior. NBC affiliate WTVA reports Hamilton Police Chief Ralph Conner had this to say:

“Anything that will help bring the traffic death rate down, traffic accidents, insurance rates down, it’s very good. This includes young kids, old kids, people like me, police officers that have data terminals in their cars. We have to watch what we’re doing while we’re driving and it covers us too.”

Meanwhile, the Swedish government just received advice to forget about implementing an anti-texting law because research shows laws do not stop drivers from using their mobile phones.

…As you can see, it doesn’t go well. You can bet these folks are now part of the 95% of drivers who think texting while driving is dangerous. The question is, though, are they still part of the 35% who text and drive despite knowing how much it raises crash risk?

The temptation to use mobile phones while driving is often overwhelming. While the vast majority of U.S. drivers say they think other drivers’ texting creates traffic danger, a third of those same people also say they text while driving themselves. So why do people do it if they know it’s dangerous? Maybe it’s human nature. Wherever there are cell phones and cars – there are drivers distracted by their mobile devices.

A new Ford survey found that 48% of European drivers check their texts while behind the wheel. The survey of 5,500 drivers from Germany, Spain, France, Great Britain, Italy and Russia also found that 95% of drivers think that “texting affect[s] a person’s ability to drive and [is] therefore dangerous.”  That’s right on par with AAA’s survey of American drivers, which found that 95% of U.S. drivers think that other people’s texting while driving is dangerous. It’s interesting to note, however, that more European drivers than American drivers admit to having texted while behind the wheel.

These statistics help make clear why it’s pointless to expect that telling people to put down the phone will magically solve the distracted driving problem. Want more proof? In a report released earlier this month, the Swedish National Road and Transport Institute (VTI), an independent government agency, said that laws banning texting or hand-held mobile phone use while driving aren’t effective. Explained VTI’s Katja Kircher to Sveriges Radio, “We’ve seen that it doesn’t help to have such a law while driving. This is partly because we’ve seen that people wouldn’t adhere to the law, and partly because we’ve seen no effect on crash risks.” The Swedish parliament is currently trying to implement a national ban on hand-held device use while driving, according to Gawker.

And the VTI is not the only agency to come to such a conclusion. In 2010, the U.S.-based Insurance Institute for Highway Safety (IIHS) released a study showing that anti-texting laws not only fail to reduce texting while driving, but may also increase the number of texting while driving crashes as drivers attempt to evade police.

So what does the VTI recommend instead? A multi-facted, complex solution that emphasizes safe driving technology and education over legislation. “It is our opinion that a combination of different countermeasures – which educate and inform the driver, while at the same time support him or her in a safe usage of communication devices – is preferable to a law against communication device usage while driving,” says the VTI report.

Though stringent enforcement of laws restricting cell phone use while driving can have an impact on people’s behavior, cell phone use bans are difficult and expensive to enforce. Whether here in the U.S. or in Sweden – or anywhere else in the world, really – changing driver behavior is no small feat.

FleetSafer Vision, which we launched in January 2011, combines cell phone use data with vehicle use data to enable corporate fleets to measure and manage employee cell phone use while driving.

After reading the article, a good friend called me on the phone and asked if I was concerned about the news.

Like any entrepreneur working to develop innovative products in a new market, my answer is two-fold.  On one hand, of course I am concerned about potential competition from such a huge player.  On the other hand, I would be far more concerned if we were the only ones innovating in this arena.

The simple truth is that lots of entrepreneurs and start-ups have good ideas – but ideas only have value when there is a market to monetize.  In that sense, the presence of AT&T’s cell phone analytics prototype is comforting to me for four reasons:

1. It validates the potential market opportunity
2. It validates ZoomSafer’s hard work and investments over the past three years
3. It increases confidence as we continue trailblazing our way to a new market
4. It increases the relevance and value of our existing software, IP and experience

To see for yourself how ZoomSafer’s cell phone analytics service measures and manages employee cell phones use while driving, sign-up for a free, online demo of FleetSafer Vision.

Risk managers are growing increasingly aware of the issues employee cell phone use while driving can create. And many of the folks who stopped by our booth (like the two shown chatting with VP of Sales Paul Blamer here) were well-versed in the ways employee driving behavior can create problems for an employer. And many attendees were intrigued to learn that technology to monitor and manage that behavior already exists – in the form of our FleetSafer enterprise distracted driving solutions.

Additionally, RIMS included a session on distracted driving on its schedule, “Distracted Driving: Avoid Becoming a Statistic.” This session also included a great presentation from Liberty Mutual on how allowing employees to text, email and browse while driving leaves corporations exposed to vicarious liability and accusations of negligent entrustment. And the best way to reduce those risks? Implement a cell phone use policy – then enforce that cell phone use policy. (I’m pleased to report ZoomSafer earned a shout-out as one such policy enforcement solution.)

At the end of the day, the risks cell phone use while driving creates are not going to magically disappear overnight – and companies are increasingly paying attention and taking proactive steps to manage those risks.

All in all, we greatly enjoyed our time at RIMS. Philadelphia was kind to us: the weather was gorgeous, and the Pennsylvania Convention Center is right next door to the Reading Terminal Market. The markett, which occupies a former train station, is packed with little shops and food stalls – check out this picture for a glimpse.

It’s still National Distracted Driving Awareness Month – so if your company is tackling the problem of employee distracted driving, we want to hear from you! Share your thoughts on employee use of mobile phones while driving in ZoomSafer’s two-minute distracted driving survey, then enter to win a FREE Apple iPad3!