Eyes and Ears on the Road Employees’ Hands Should Be on the Wheel

By Robert Nelson

Oct. 22, 2006

Studies have shown that driving while talking on a cell phone is more dangerous than driving drunk. Largely in recognition of this fact, a few states (most recently California) have passed legislation requiring motorists to use “hands-free” devices while driving with cell phones. The laws generally prohibit drivers from using cell phones while on the road, unless the phones are equipped with some type of device(s) to free up the drivers’ hands (e.g., headsets, speaker phones, etc.). Violators are usually fined, with fine amounts multiplying for repeat offenses.

It remains to be seen how well hands-free laws actually help curb cell phone-related accidents. Regardless, several states have already passed these laws: New York, New Jersey, Connecticut and the District of Columbia, in addition to California. Numerous others are actively trying. In fact, 38 states considered hands-free legislation in the past year alone. That trend should tell employers that they, too, may have a responsibility to be vigilant over employee cell phone use.

In states in which hands-free legislation has been passed, or even suggested, drivers who cause accidents while using non-hands-free cell phones will likely be presumed liable for any injuries or damage that results. And if those drivers work for companies that require or expect their employees to use cell phones as part of their jobs, then the employers may also be held responsible for the accidents as well.

This is the principle of “vicarious liability.” Under it, the employer generally is held liable for any loss or damage caused in the normal course and scope of the employee’s work. The thinking is that if accidents are bound to happen if employees are just doing their jobs, then it is fairer for employers to be responsible for them because they are better able than employees to predict, prevent, and pay for work-related accidents.

Vicarious liability works best when job scope can be neatly contained, such as when employees work set times in set locations doing set job duties. Under those circumstances, employers can monitor, control and correct employee behavior. That limits their own risk of vicarious liability. Problems arise when job scope expands beyond employer control. Few things cause job scope to expand faster and more completely than modern technology, including e-mail, personal digital assistants and especially cell phones.

Cell phones can expand the temporal, geographic and substantive scope of employees’ jobs. With cell phones, employees can work anytime in almost any situation, whether they are on vacation, in the waiting room of a doctor’s office or driving their cars. If employers encourage or allow employees to take their work in the car with them, then the employers can theoretically be held vicariously liable whenever the work causes or contributes to accidents.

Extending vicarious liability to what happens on the road is a risky and expensive step, as any employer with delivery drivers can attest. Employers are presumed to be vicariously liable for accidents caused by driver employees. Vehicle accidents are one of the most common causes of vicarious liability for employers.

At least one case has already tried to utilize cell phone use by an employee while driving as a means of holding the employer vicariously liable for an accident the employee caused.

In Yoon v. Wagner, a Virginia state court case, an attorney with a prominent law firm hit and killed a 15-year-old girl while the attorney was driving home from work. Billing records from the attorney’s firm showed that she was making work-related calls at the time the accident occurred. She also continued working at the time she reached her destination, thereby indicating that her commute was a link in her extended workday. A jury rendered a $2 million wrongful death verdict against the attorney, who also lost her law license as a result of the accident. The law firm reportedly settled its part of the case for undisclosed terms prior to trial.

Yoon v. Wagner presented an unusually strong case in favor of vicarious liability: Billing records suggested the employee was working at the time of the accident.

The records, in fact, indicated that the employee had been making cell phone calls, thus suggesting that the employer knew that employees were using their cell phones to do work, and the employee’s cell phone use almost certainly helped cause the accident (the attorney reportedly left the scene of the accident because she thought she had only hit a deer). In theory, however, vicarious liability can occur whenever an accident results from employees’ cell phone use that the employer required, encouraged or even tacitly allowed.

So what should employers do to limit their exposure to vicarious liability from employee cell phone use?

It’s easy: Clearly limit job scope so that it prohibits cell phone use that is unreasonably dangerous. That can be done through written rules—in employee contracts, handbooks or personnel policies—that either prohibit cell phone use while driving altogether or allow cell phone use only if it complies with state and/or local rules. This would include any applicable rules requiring hands-free devices.

Even in states where hands-free legislation has not been passed, employers would be wise to include compliant provisions in their respective cell phone policies. If employees cause accidents because of cell phone use that does not comply with established guidelines, employers can theoretically defend themselves by arguing that the employees exceeded their respective job scope. As with all workplace policies, cell phone rules will only hold up if employers actively enforce them. If an employer has a policy on record but regularly ignores or contravenes it, then the policy will likely not be able to protect the employer from vicarious liability.

Schedule, engage, and pay your staff in one system with