Steer away from liability with a cell phone driving policy

Karen Sheehan, The Daily Record Newswire

Bring Your Own Device, or BYOD, programs allow employees to use personal cell phones for work-related purposes. Through BYOD programs, employers only purchase cell phone plans instead of cell phones.

According to researchers, BYOD programs are beneficial to employers because they increase employee morale, boost productivity and collaboration, and help employers avoid purchasing costly devices. In addition, BYOD programs enable employees to conduct business far beyond the confines of the workplace, including while traveling in a car.

While it may be convenient for employees to talk on the phone while driving, talking drivers increase the number of roadway accidents. This article encourages employers with BYOD programs to adopt cell phone driving policies because employers are subject to liability for the accidents of employees caused while acting in the scope of employment.

Cell phone misuse triggers employer liability

Under a theory called respondeat superior, employers are held vicariously liable for the torts of employees committed while acting in the scope of their employment. Employees act in the scope of their employment when regularly using personal cell phones for business calls. As a general rule, if it appears that an employee caused an accident while making a work-related phone call, the employer-not the employee-will be liable.

A Texas case, Chatman-Wilson v. Cabral, demonstrates how employers are held vicariously liable under respondeat superior and emphasizes the need for all employers to have strict cell phone policies. In Chatman-Wilson, a Coca-Cola truck driver struck a vehicle when the employee failed to yield to oncoming traffic. At the time of the accident, the employee was on her hands-free cell phone on a business call. Coca-Cola had a cell phone policy that complied with state law, which allowed employees to make hands-free calls while driving, but despite its policy, the Texas district court held Coca-Cola liable. This case sets an example for Idaho employers by demonstrating that the mere existence of a cell phone policy that complies with Idaho law may be inadequate to avoid liability.

Adopt a policy that fits your company's needs

The first step to implementing a cell phone policy is ensuring that the policy complies with state law. Many state laws allows drivers to talk, but not text, while driving. To comply with the law, employers should, at a minimum, ban texting while driving.

Second, employers should enact either a total ban or a partial ban on talking while driving. To determine which ban best fits your company's needs, employers should weigh the costs of reduced productivity versus the benefits of protection from motor vehicle accidents attributed to distracted driving. Because total bans are extremely restrictive and diminish productivity, it is generally recommended that employers with BYOD programs enact partial bans that allow employees to talk and drive under certain conditions. Some examples include allowing employees to make business calls beyond city limits, while parked on the side of the road, or when using hands-free technology. Employers can also choose to allow phone calls while banning texting, emailing, Facebook, and other tasks. However, keep in mind that employers with policies that ban texting do not automatically avoid liability. As Chatman-Wilson demonstrates, employers may be held liable under the theory of respondeat superior even if their policy complies with Idaho law.

At a minimum, employers should enact a policy that complies with statelaw and bans texting while driving. If enacting a partial ban, employers should clearly state when employees are permitted to use their personal cell phones for work purposes. Lastly, employers should make sure that employees sign written acknowledgements that they have received, read, understand, and agree to be bound by the policy.

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Karen Sheehan is a trial attorney at Gjording Fouser PLLC. You can learn more about her practice and the firm by visiting gfidaholaw.com.

Published: Wed, Sep 10, 2014

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