Smith & Gesteland Quick Tip

Employee Cell Phone Use While Driving - What Is Your Liability?

More and more employees use company cellular phones or other electronic devices while driving, putting the employee and others on the road at risk. A study by The New England Journal of Medicine found a driver's use of a cell phone increases the risk of an accident by four times. If your employee gets in an accident while on the phone, as the employer, do you know what your liability is?

Just as in the case of alcohol served at office functions, you may be held liable for accidents caused by employees who are on the job. Because of cell phone records, it may not be difficult to determine what type of phone call (personal or business) the employee was making when the accident occurred. However, the lines are becoming more and more blurred when it comes to determining whether or not the accident is "within the scope of employment". Whether the call was on a personal or business phone makes little difference; the discovery that the accident occurred because the employee was making a job-related call makes the accident "within the scope of employment".

In most cases, in order for the employer to be held liable for the accident, the employee must have been doing something "work related" at the time of the call. Making a business call or looking for directions to the next appointment are typical causes of accidents considered to be "within the scope of employment".

Although a purely personal call is not "within the scope of employment", any accident while driving the company vehicle or any accident that is caused while using company provided equipment (cell phone, tape recorder, screen) might be sufficient for liability. Although some legal experts deem personal calls "outside the scope of employment", others (including a jury) might dispute that. Injured parties are increasingly suing the employer in cases where an employee's accident is due to inattention caused by the use of a cell phone so consider including personal phone calls when developing your cell phone policy.

A safe cell phone policy begins with employee education. Educate your employees about the potential risks and consequences of using cell phones while driving. If you know or require your employees to use cell phones during the course of the day, you should have policies in place to regulate cell phone use so it does not lead to excessive liability.

A cell phone policy should prohibit the use of cell phones while driving and recommend that an employee pull over when making or receiving calls. Each employee should sign a personnel file copy of the policy saying that they have read and understood the policy guidelines.

Example of A Cell Phone Use Policy
Employees who are issued cell phones for business use and whose job responsibilities include regular or occasional driving are expected to refrain from using their phone while driving. Regardless of the circumstances, employees are strongly encouraged to pull off to the side of the road and safely stop the vehicle before placing or accepting a call.

Employees whose job responsibilities include regular driving and accepting of business calls will be provided hands-free equipment to facilitate the provisions of this policy. (Many studies now show that even this is a serious problem because it is not the physical act of holding the phone but rather the mental distraction of the conversation that is responsible for the increased risk of an accident.)

Employees whose job responsibilities do not specifically include driving as an essential function, but who are issued a cell phone for business use are also expected to abide by the provisions above. Under no circumstances are employees allowed to place themselves at risk to fulfill business needs.

Employees who are charged with traffic violations resulting from the use of their phone while driving will be solely responsible for all liabilities that result from such actions. Violations of this policy will be subject to the highest forms of discipline, including termination.