Legal news and trends for Canadian in-house counsel and c-suite executives
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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 environ- ment, 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 popu- lation research laboratory at the University of Alberta. Accord- ing 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 fl ying 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 pro- gressive 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 fi t 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 in- cludes 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 communica- tions for safety reasons. If the policy is violated, it's considered serious, says Mandzi- uk, and there is a discipline policy in place, with penalties rang- ing 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 organiza- tion 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 com- pletely focused on the safe operation of the vehicle. The company is one of several organizations that have part- nered with the Canadian Wireless Telecommunications Asso- ciation 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 voice- mail 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 in- 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." Tom Petras, director of environment, health and safety, Finning (Canada) C ANADIAN Lawyer INHOUSE APRIL 2008 19 "I would say the vocal majority was in favour of it,