Is Liability for Employee Cell Phone Use the Next Target for Litigation?

There has been much press about the hazards of driving while using a cell phone, and at least one state has enacted a law prohibiting cell phone use while driving. Published studies show that cell phone use is equivalent to driving under the influence, even with a "no hands" device. Given that many employees have cell phones and use them while "on the clock," often while driving employer-owned vehicles, the risks of accident, and of potential liability for the employer, are apparent. Who gets sued? If the accident results in serious bodily injury or death, it’s the employer’s deep pocket that is reached.

Indeed, at least one major law firm has been sued in exactly this scenario. Yoon v. Wagner, pending in a trial court in Virginia, stems from a tragic accident in which a lawyer, allegedly making business calls on a cell phone while driving, swerved off the road and struck and killed a teenager. The father of the teenager brought a wrongful death case not only against the lawyer and her husband, but also against her law firm. The case alleges that the lawyer was acting within the scope of her employment by making business-related phone calls for which the law firm presumably billed its clients, and thus the law firm should be liable for her conduct.

The Yoon case is still pending, and the court has not decided whether the employer can be held liable for the employee’s conduct. However, the case points out the significant risks to employers created by employees using cell phones while driving.

Although there is no guaranteed defense to liability in any situation (other than, perhaps, a blown statute of limitations), an employer with a strong policy prohibiting employees from using their cell phones while driving is in a far better position than the employer who has no such policy. Just as with strong policies against sexual and other forms of harassment, the wise employer can sometimes avoid liability.

A well-written cell phone policy should firmly prohibit employees from using their cell phones while driving as long as the car is moving. The policy should require that cell phones must be turned off when the employee is driving, and that the employee may respond to messages only after pulling off the road. It should also state that any violation subjects the employee to disciplinary action. Although a written reprimand might be appropriate for the first offense, the employer should enforce the policy with more serious discipline to help employees understand that improper cell phone use will not be tolerated. As with policies against harassment, each employee should sign a copy of the cell phone policy, and that signed copy should go into the personnel file.

A good cell phone policy is no guarantee, but it might be what saves the life of an employee - or of some innocent pedestrian or person in another car.