On November 23, 2011, the Federal Motor Carrier Safety Administration and the Pipeline and Hazardous Materials Safety Administration recently issued a joint rule prohibiting interstate commercial truck and bus drivers from using handheld cell phones while operating their vehicles. Violation of this rule can result in federal civil penalties of up to $2,750 for each offense and, in cases where there are multiple violations, possible disqualification from operating a commercial motor vehicle. In addition, states will suspend a commercial driver's license after the driver has committed two or more serious traffic violations. Employers of interstate commercial truck and bus drivers can be penalized up to $11,000 if they allow their drivers to use handheld cell phones while driving.

To view the final rule, go to www.regulations.gov; the docket numbers are FMCSA–2010-0096 and PHMSA-2010-0227.

My Two Cents:          Although this new rule applies only to interstate commercial truck and bus drivers, all employers should have rules against distracted driving. Having such a rule and enforcing same can provide employers, at least to some extent, protection from liability and also provide a valuable defense in the realm of workers’ compensation. In Alabama, indemnity benefits can be denied if a workers’ compensation accident/injury results from an employee’s failure to follow a safety rule.

McWane, Inc. v. McClurg; released 3/26/2010 

The Alabama Court of Civil Appeals outlined what is required to prevail when asserting the defense of willful misconduct. The Court held that a mere violation of a rule does not establish willful misconduct. The employer must prove that the employee committed an intentional act; that violates a safety rule known by the employee; and that the employee knows the natural, probable, and serious result of violating the rule (act involved known or obvious risk so great that harm was highly probable).

In McClurg, the employee was reaching over a guardrail while a machine was not running and jiggled a wire causing the machine to start and injuring the employee. The employer said the employee was supposed to perform a lock out procedure and it was stipulated that if this was done the injury would not have occurred. However, in this case the Court found the employee did not understand the rule prohibited his conduct. Furthermore, the Court stated that the actions of the employee were not "of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow."

The employer argued that Ex parte Bowater controlled in this matter. However, the Court distinguished that case from McClurg. In Bowater the employee knew he was not to reach into a running machine to dislodge wood. Therefore, the Court in McClurg stated that the employee’s action in Bowater involved a "known or obvious risk that was so great to make it highly probable that harm would follow." This was due to the fact that the machine in Bowater was running unlike the machine in McClurg and the employee in McClurg had pressed a stop button as well.

Therefore, if the employee intentionally acts in a manner that violates a known rule it will only be willful misconduct if the employee knows the act is of such risk that it is highly probable harm would follow.