Employers have long understood that what their employees do on company time is directly linked to the company’s own potential liabilities. When employees using mobile electronic devices cause harm, their carelessness isn’t only a problem for them—on company time, it can become a major problem for employers, as courts across the country have made clear in the past few years. Many employers are now reevaluating their cell phone usage policies for precisely this reason.
When a driver is using a cell phone at the time of an accident and the accident happens while the driver is on company business, the phone call is a business one, or the cell phone was provided by the company, companies have been sued along with the driver/employee, under a theory of “vicarious liability” or respondeat superior for the actions of its employee. Under these doctrines, an employer may be responsible for the harm caused by its employee if that employee was acting within the course and scope of his or her employment at the time the accident occurred.
Notably, it may be easy for plaintiff’s attorneys to garner evidence to support this theory because cell phone records can be subpoenaed and used to prove the employee was on the phone at the time of the accident. In addition to arguing that an employer is liable for the harm caused by one of its employees, some plaintiffs have argued that the employer is directly liable for its own negligent conduct in failing to provide adequate training or instructions on safe cell phone use, or failing to restrict usage.
In addition to potential litigation, employers should be aware of potential criminal misdemeanor charges. In 2014, Illinois implemented its Hands Free Act, which bans the use of all hand-held devices while driving in Illinois. According to the law, if one of your employees is using a cell phone and operating his/her vehicle while on company time, then the employer could be held liable for the employee’s non-compliance. The statute (625 ILCS 5/16-202) allows for the imposition of criminal penalties if the employer directs or otherwise knowingly permits an employee to act in violation of the law. Although, we are currently unaware of any employer being prosecuted under this new law, it remains a concern to employers given the ubiquity of employee cell phone use.
The best action for employers is to implement a total ban policy that includes handheld and hands-free devices and prohibits all employees from using cell phones while driving.
Employers should have employees sign and acknowledge receipt of the total ban policy discussed above.
This policy should be reinforced throughout the year with training and education. Employers should document their training and education efforts.
A policy is not a shield to all liability, but it provides an important defense.