Employer Liability for Employee Cell Phone Use Behind The Wheel

By Naomi D. Johnson - Bullard Law

October 4, 2018

The individual risks and potential liability associated with behind-the-wheel cell phone use are well known. What may be lesser known is the extent to which an employer can be held liable for a cell phone-related accident involving one of its employees, whether or not the employee is on duty or operating a company vehicle. Resulting employer liability can be staggering, and in the last decade we have seen jury awards in excess of $20 million dollars against employers for their employees’ driving conduct.
 
If a lawsuit is filed after such an accident, a plaintiff may sue both the driver and the driver’s employer.  Where the employer is sued, it generally means that the plaintiff is attempting to hold the employer responsible under an indirect theory of liability. Under this theory, an employer can be found liable if its employee was acting within the course and scope of his or her employment at the time of the accident. The phrase “acting within the course of employment” has been defined broadly in cases of motor vehicle accidents involving cell phone use. The distinction between actions taken as an employee and actions taken in an employee’s personal or private life can become blurred, especially when an accident is not clearly either business or personal. For example:

- Driving during work hours and outside of normal work hours;
- Driving to or from work appointments or driving for personal reasons;
- Driving employer-provided and employee-owned vehicles;
- Using handheld and hands-free devices; and
- Engaging in business and personal conversations.

In a successful lawsuit, employer liability can be immense. For example, in 2012, a jury awarded $21 million to a woman who was struck by a soft drink company driver who was talking on her cell phone at the time of the accident. In 2015, a jury awarded $43.5 million to a woman whose vehicle was rear-ended by an oil field service employee who was using a hands-free cellphone immediately before the accident.
 
Although the National Transportation Safety Board has called for a nationwide cell phone ban, no state has yet to take such action. So how do employers protect themselves, their employees and others on the road when their employees are driving as part of the job? We recommend that employers implement and enforce comprehensive cell phone policies. The needs of every employer are different, and we encourage employers to consider the following types of policies and to regularly train their employees on those policies:

- A complete cell phone ban;
- A requirement that employees get off the road before placing or accepting a cell phone call;
- A requirement that employees modify their voicemail to alert callers that they may not be able to answer their phone because they are driving;
- Encouraging employees to refrain from discussing complicated or emotional matters while driving; and
- Disciplinary consequences for violation of the policy, including termination.

In addition, employers should evaluate their business operations to ensure that management and/or customer expectations do not prevent employees from complying with employer policies.  The existence or lack of policies and/or training may dramatically impact a court’s conclusions about liability—including punitive damages—if the employer ever faces a lawsuit arising out of its employee’s driving.  While a cell phone policy cannot protect entirely against employer liability, employers are well-served if they can point to policies and training if they are defending claims in court.