In helping employers with their written employment policies, we are often asked whether it is necessary to have a policy regarding employees’ use of cell phones for work purposes while driving.  The answer, as is often the case, is “it depends.”  If your employees drive as part of their job or commonly use their cell phones for work purposes while driving, then your company should address cell phone use while driving in a written policy.  A well-written policy can not only reduce the likelihood of accidents caused or contributed to by distracted driving, it can also help reduce your company’s liability in the event of an accident caused or contributed by your company’s employee.

Why should employers care?

Under the legal doctrine of respondeat superior, an employer can be vicariously liable for the torts of its employees when the employees commit wrongful acts within the course and scope of their employment.  Stated otherwise, if an employee acts negligently and injures another person while acting within the scope of his or her employment, the employer could potentially be liable for the employee’s actions.

Consider the following example.  A company’s employee is speaking on the phone with a potential client while driving to a work meeting.  While on the phone, the employee strikes another vehicle killing the driver of that vehicle.  The family of the victim sues the driver and the company for millions of dollars in damages, arguing that the employee was negligent in causing the accident and the employer is vicariously liable since the employee was acting within the scope of employment (speaking on the phone with a potential client while driving to a work meeting).  Another example is an employee who drives as part of his or her job—let’s say, making deliveries—and strikes a pedestrian while talking on the phone (or worse yet, while texting or emailing).

Whether or not an employee has acted within the scope of employment depends upon the facts and circumstances of each individual case, but given their potential liability in these situations, employers should enact reasonable policies regarding employees’ use of cell phones while driving.

If you don’t have a policy, create one

There are a range of options to consider in enacting such a policy, from an outright ban on any cell phone usage, to a policy which requires the use of Bluetooth or hands free technology, to a policy which advises employees of the risks of cell phone usage while driving but does not actually prohibit the activity.  At a minimum, a well-written policy should:

  • Require employees to comply with state laws regarding cell phone use while driving (e.g. Minnesota’s prohibition on texting while driving);
  • Require employees to utilize a Bluetooth or hands-free option where available if you expect them to use their cell phones while driving;
  • Prohibit texting, emailing and messaging while driving; and
  • Encourage employees to either plan calls while their vehicle is not in motion or pull off the road for lengthy calls.
If you have a policy, train your employees and enforce it

As with any workplace rule, merely having such a policy is not enough.  Employees should be made aware of what the policy does and does not allow, how they should handle incoming calls while driving, and the potential consequences for violation of the policy.  In addition, where employers learn that their policy has been violated, they should take appropriate disciplinary measures.  Distributing the policy, training employees and enforcing the policy are all steps which can help reduce a company’s exposure in the event of an accident.