Labor and Employment Articles 

Prudent Employers Guard against Potential Liability Arising From Employee Cell-Phone Use While Driving

by Sandra Perry
It should come as no surprise to employers that many employees use their cell phones for business purposes while on the road. Research shows that drivers who use their cell phones while driving have a substantially greater risk of being involved in automobile-related accidents. While the cell phone user is searching for the cell phone, dialing numbers, driving one-handed, or focusing on the conversation at hand, he is unlikely to be paying adequate attention to the road ahead and is a potential hazard to himself and others. Employers have cause to be concerned about employees’ cell phone use while driving on company business both because of the inherent danger to these employees and also because of the possible legal ramifications to the company from this practice. Increasingly, employers who have permitted their employees to utilize cell phones for business purposes have found themselves facing substantial liability for the motor vehicle accidents and personal injury caused by those individuals when they made cell phone calls while driving.

For example, in 1999, Smith Barney was subject to a wrongful death suit in Pennsylvania after an employee bent down to pick up his dropped cell phone, ran a red light, and struck and killed a motorcyclist. Smith Barney had not supplied the cell phone and there was no evidence that the employee was using it at the time of the accident. The accident also occurred on a Saturday night when the employee was off duty and was on his way to a non-work related dinner. Nevertheless, the motorcyclist’s family sued the company on the theory that the employee was using the phone for business reasons. After the employee’s co-workers testified that it was not unusual for them to make sales calls on personal time and with their own cell phones, Smith Barney agreed to settle the case for $500,000. Similarly, a Florida lawsuit against an employer, which involved an elderly woman who was severely injured after an employee slammed into her vehicle, ultimately settled for $16.1 million. In that case, the employee had been making sales calls while driving and had failed to notice or slow down when the woman’s driver made a left turn in front of his vehicle. Law firms are also not immune from liability for the cell-phone related accidents of their employees. In 2000, an attorney traveling home late at night was making a business-related call on her cell phone when she bumped into something in the road. Believing that she had hit a deer, she continued on her way. The next morning she learned that she had run over a teenage pedestrian. The teenager’s family subsequently brought a wrongful death suit against the attorney and her law firm seeking $30 million in compensatory and punitive damages.

These cases highlight the benefit to employers of implementing cell phone training and written cell phone policies for employees who are provided cell phones by their employers or are otherwise likely to make calls while driving on company-related business. More cautious employers may decide to adopt a policy that strictly prohibits the use of cell phones for business purposes while the employee is operating a motor vehicle. Other employers may prefer to balance business interests with potential legal liability by simply requiring employee training and the use of a hands-free phone while engaged in limited business activities on the road. Whatever is the preferred approach, employers would be well-advised to consult with legal counsel to craft a suitable policy. While implementing a cell-phone policy does not provide a guaranteed defense against negligence liability, an employer with a strong policy prohibiting employees from using a cell-phone while driving is certainly in a stronger position than one who has no such policy. As with stringent policies against sexual harassment and other inappropriate behavior, a cell phone policy evidences the employer’s condemnation of the prohibited behavior and strongly suggests that the employer should not be held liable for what amounts to the unauthorized conduct of its employee.