Recently, the National Transportation Safety Board (NTSB)
proposed a ban on all cell phone calls and texting while driving.
The first ever proposed nationwide ban on driver use of mobile
devices while driving certainly has a significant impact on
employers given employees' increasing reliance on mobile
More and more employees are using cell phones to stay connected
to their work while out of the office. With this technology,
employees are always accessible to their employers and clients.
Employees can now consult clients, close deals, and engage in a
variety of other work-related activities all while driving.
Employees are often encouraged to multi-task at the office but
that same expectation should not exist for employees who are
driving 70 miles per hour on the freeway. Recent studies have
indicated drivers distracted by emails, texts, and phone calls are
just as dangerous on the road as those impaired by drugs or
alcohol. Distracted driving causes close to 8,000 accidents
everyday, according to some reports.
For employers, the concern is what happens when one of your
employees causes an accident because his driving is distracted by a
client phone call or an email response to his boss? Can the
employer be liable for the accident? Yes. Under the doctrine of
"respondeat superior," employers have traditionally been
held liable for the tortious conduct of their employees upon a
finding that the conduct was within the course and scope of
In the context of employee automobile accidents, courts look at
whether the purpose of a given drive was for a business, or merely
a personal purpose. Yet, given the proliferation of cell phones,
the line between personal and business activity is becoming
increasingly blurred. It is a challenge to define the course and
scope of employment for an employee who uses a cell phone 24-7 as
an extension of the office.
The NTSB's proposal is a fresh reminder that employers need
a policy defining when and how employees may use a cell phone for
work while driving. Cell phones have become a business necessity
and a policy addressing their use can help limit liability in the
event an employer is faced with a vicarious liability lawsuit. In
fact, employers could be found negligent if they fail to adopt a
policy for the safe use of cell phones.
At a minimum, your cell phone policy should require compliance
with state and local regulations governing cell phone usage while
driving. If the NTSB proposal were adopted the policy would need to
reflect a complete ban on cell phone use for work while
As with any policy, you need to ensure it is enforced. If you
know that your employees continue to send emails or conduct calls
while driving and an accident were to occur, a plaintiff's
attorney could argue that the company knew that the employee was
utilizing a cell phone for business purposes, giving rise to
In the event of cell-phone-related litigation, a reasonable and
enforced cell phone policy is the only way to potentially insulate
your company from exposure to liability. A reasonable and enforced
policy allows employers to assert that employees making
work-related cell phone calls while driving are acting outside of
the course and scope of their authority, so the company should not
be vicariously liable.
While certainly not a ban to a potential lawsuit, the
employer's cell phone policy is its best defense. If you'd
like help drafting such a policy, contact your regular Fisher &
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