What do cell phones have to do with employers? Why do employers need to be concerned with cell phones. The answer is liability! 17 states including Connecticut have laws banning texting while driving in some form or other, be it sending text messages or receiving text messages. As of 2008, 17 states had banned or restricted the use of cell phones by young drivers. Of course, numerous states including Connecticut and New York ban the use of cell phones without use of a hands-free device. But these are laws that place liability for the law on the driver. So why should employers be concerned?
The answer is that, as with most litigation, the injured party will look for the defendant with the deep pockets. That is the employer. The law is clear that when an employee injures another during the course of that employee’s employment, the injured party can hold the employer vicariously liable for the injury. So if the employee was conducting business while texting or on the cell phone while driving, the employer could be held liable for injuries the employee causes. In addition, the employer can be found to be liable for being negligent in not having a cell phone policy, not providing the employee with training on proper use and safety of cell phones while driving and/or for not providing the employee with hands-free equipment.
There are several cases that illustrate how important it is for an employer to have a cell phone and texting policy, provide training and provide proper equipment to attempt to lesson or reduce the employer’s liability for accidents in which employees are violating laws regarding texting while driving and not using hand held devices while driving. In a case involving International Paper Company, a woman who was injured when she was rear-ended by an International Paper Company employee who was talking on her company issued cell phone conducting business, brought an action against International Paper Company seeking over 5 million in damages. The injured woman was a widowed mother of 4 who had to have her arm amputated as a result of the accident. Even though the company did apparently have a cell phone policy that prohibited the use of cell phones without hands-free devices, the company nevertheless agreed to settle the case for 5.2 million dollars.
In another case that occurred in 2001 against Dyke Industries in which a Dyke Industries employee was on the cell phone for business when she struck and injured the plaintiff, the jury awarded 16 million dollars to the injured plaintiff. A similar case occurred in Hawaii in which the State of Hawaii agreed to pay $2.5 million as its share of liability in an accident involving a state employee who also was talking on her cell phone when she struck and killed a tourist. In addition, in a case involving a lawyer herself that occurred in 2001, Jane Wagner a lawyer with the law firm of Cooley Godward, struck and killed a 15 year old girl in Northern Virginia when she was driving home from work and conducting a business call on her cell phone. The Judge allowed the case to go to the jury for $30 million against the attorney’s employer, Cooley Goddard. The law firm ended up settling for an undisclosed amount.
What can employers do to protect themselves from liability in these types of cases. The best protection is to be proactive. Issue a cell phone and text messaging policy, disseminate that policy to your entire workforce and provide training on that policy and on the safe use of cell phones.
What should your cell phone and texting policy include? It will strongly discourage the use of cell phones while driving and will clearly require that if in an emergency an employee needs to use the cell phone that the employee pull over to the side of the road, stop the car and then use the cell phone. The policy should also prohibit the sending or receiving of any text messages while driving. The policy should also reiterate that at no time should the employee place himself, herself or any other person at risk in order to fulfill a business need. In large bold print, the employer should clearly set forth in the policy that employees are responsible for traffic violations or accidents that occur due to the employee’s use of a cell phone or texting while driving. The policy should also require compliance with all federal, state and local laws regarding cell phone use and text messaging. The policy should also make clear that hands-free equipment will be provided at no cost to the employee. As with all employment policies, the policy should reiterate that violations of the policy will cause discipline, up to and including, discharge.
Employers who act proactively in this area by drafting and disseminating a policy and training all employees on that policy will be best protected if an accident and lawsuit were to occur.