By Rhonda Smith
Adopting a detailed cell phone policy can help protect employers from
liability should an employee cause an accident by using an electronic
communications device while driving, legal and safety experts told BNA June
But such policies do not provide organizations with absolute legal
protection, they said, especially if employees are not properly trained and held
accountable for violations.
“Employers who have policies do not automatically avoid liability,” said
Susan W. Kline, a partner with Faegre Baker Daniels in Indianapolis. “But they
are much better positioned to make a case that an employee who causes harm by
using a cell phone or other electronic communication device in a way that was
prohibited by company policy was not acting on the employer's behalf--as long as
the policy is clearly communicated and consistently enforced.”
Dean A. LeDoux, a shareholder at Gray Plant Mooty, a law firm in Minneapolis,
shared a similar view.
“Employers need to always be realistic and realize their employees are human
beings and that creating another workplace policy doesn't solve a problem if
they don't acknowledge that employees, in order to do their job, are going to
have a tendency to ignore company policies,” he said.
“So you need to have that policy as a first step,” LeDoux said, “and
effectively communicate to your workforce that the policy is real, it will be
enforced, and that failure to follow the policy will lead to serious
consequences for their job.”
A majority of states have implemented laws
that restrict the use of cell phones, and other wireless communications devices
In addition, Department of Transportation Secretary Ray LaHood June 7
released a “Blueprint for Ending Distracted Driving” that offers a sweeping
strategy to tackle what DOT described as “the growing and dangerous practice of
using handheld cell phones behind the wheel.”
The blueprint highlights concrete steps stakeholders nationwide can take to
address the problem posed by distracted drivers.
“Distracted driving is an epidemic. While we've made progress in the past
three years by raising awareness about this risky behavior, the simple fact is
people are continuing to be killed and injured--and we can put an end to it,”
LaHood said in a written statement. “Personal responsibility for putting down
that cell phone is a good first step--but we need everyone to do their part,
whether it's helping pass strong laws, educating our youngest and most
vulnerable drivers, or starting their own campaign to end distracted
In 2010, at least 3,092 people were killed in distraction-related crashes,
DOT said, and an estimated 416,000 drivers and passengers were injured in
crashes that involved a distracted driver.
The Department of Labor's Occupational Safety and Health Administration
unveiled in October 2010 an education campaign that encouraged employers to
prevent work-related distracted driving, with a specific focus on prohibiting
texting while driving, which has been described as the most dangerous
According to the Insurance Institute for Highway Safety website, text messaging
while driving is illegal in 39 states and the District of Columbia.
“It is imperative that employers eliminate financial or other incentives that
encourage workers to text while driving,” OSHA has said as part of its Distracted Driver
Initiative. “Employers who require their employees to text while driving--or
who organize work so that doing so is a practical necessity even if not a formal
requirement--violate the OSH Act.”
The National Transportation Safety Board has recommended that states ban all
cell phone use by drivers (30 HRR 47, 1/16/12).
Grace Horoupian, a partner at Fisher & Phillips in Irvine, Calif., said
there is no law that explicitly holds employers liable for moving violations
committed by workers who become distracted while driving because they are using
cell phones or other handheld devices. But under the doctrine of “respondeat
superior,” she said, employers have been held liable for the wrongful conduct of
their employees if a court or jury finds that the conduct arose out of the
regular course of the worker's employment duties.
“Thus, if employers are requiring employees to check in with their office,
vendors, customers, etc., at all times and they happen to be on a call with
someone related to work while driving, the employer will be held responsible for
the act of its employees because the employee would have caused the accident
while working,” Horoupian said.
A recent National Safety Council report, Employer
Liability and the Case for Comprehensive Cell Phone Policies, notes that
“the key phrase 'acting within the scope of his or her employment' can and has
been defined broadly in cases of crashes involving cell phones.”
In one case cited in the NSC report, a jury found a driver and the
corporation that owned the vehicle were liable for $21.6 million “because
testimony revealed that the driver may have been talking with her husband on a
cell phone at the time of the fatal crash.”
In another case, the employer (a Maryland municipality) of an off-duty police
officer who was texting before a fatal crash that killed a college student was
held liable for $4 million because the officer was driving a police cruiser, NSC
In a third case, “[a]n employee was involved in a fatal crash while making
'cold calls' as he drove to a non-business-related event on a Saturday night,”
the report stated. “The firm did not own the phone or the vehicle, but the
plaintiff claimed that the company was liable because it encouraged employees to
use their 'car phones' and lacked a policy governing safe cell phone use.”
The employee's firm settled the lawsuit for $500,000, NSC said.
“Really, the only time an employer can not be held liable is if the employee
has a crash and it's not on company business and does not involve a company
phone,” David Teater, NSC's senior director of transportation initiatives, told
In its report, released in April, NSC said, “The best action for employers is
to implement a total ban policy that includes handheld and hands-free devices
and prohibits all employees from using cell phones while driving.”
Such a policy should be reinforced throughout the year with education, NSC
Kline noted that apps are now available that can disable electronic
communications devices when they are detected in a moving vehicle.
In terms of drafting a policy about electronic devices, she said that
employers should make sure all relevant concerns are addressed.
“A thorough policy will address what is allowed while driving a vehicle
provided or funded by the employer; what is allowed while using a
company-provided or funded cell phone or other device at any time; and what is
allowed while conducting company business of any kind, even in a personal
vehicle using a personally owned cell phone or other device,” Kline said.
Typically, she said, text messaging as well as cell phone usage without
hands-free technology is prohibited in such policies.
“The biggest question is will the employer allow cell phone usage with
hands-free technology,” she said. “On that piece, some employers simply say it
is allowed if permitted by law. Some employers say that's not allowed
“Some take a middle ground and say you can make and receive calls using
hands-free technology if the conditions allow it,” Kline added, explaining that
“conditions” could pertain to the weather, traffic, or the nature of the
An employer's policy might stipulate that if the conditions allow it, an
employee can engage in a hands-free call--but keep it brief, Kline said. If it
is not safe to continue with the call, she added, the policy might state that
the employee must either hang up or pull over and park the vehicle, if that can
be done safely.
Kline said “the middle ground” approach is advisable both from a legal and
risk-management standpoint. “It's probably even safer to say, 'No cell phone use
in the car at all.' But, as a practical matter, if you go that far, the policy
is only good as its enforcement.”
In that instance, Kline said, employers must be prepared to really deal with
policy violations. “So think through your willingness to enforce whatever you
put in place,” she said.
The National Safety Council report can be accessed at http://www.nsc.org/safety_road/Distracted_Driving/Documents/CorpLiability_wp.pdf.
OSHA's Distracted Driving Initiative can be found at http://www.osha.gov/distracted-driving/initiative.html.