by Dean A. LeDoux, Esq., Gray Plant Mooty, Minneapolis
More and more employees use cellphones and smartphones to get their work done, something many employers encourage in the name of greater efficiency and better employee responsiveness.
But there’s a downside—significant safety and financial risks created by employees who use mobile devices while driving.
Employer liability issue
For more than a decade, many employers have had employment policies addressing appropriate employee cellphone use. However, the explosive rise of smartphones and greater use of text messaging has vastly increased the number of automobile accidents attributed to drivers’ use of mobile technology.
Numerous media reports have trumpeted the increase of “distracted driving” car crashes caused by cellphone use. A recent article in the Washington Post noted multimillion-dollar jury awards against employers in accidents involving death or serious injury, when the negligent driver was transacting company business while talking, texting or emailing at the time of the accident.
The issue demands a thoughtful approach by employers in order to strike the right balance between employee efficiency and personal and public safety.
What the law says
Although the risk of serious injury or death should be a significant deterrent on its own, employers should be mindful of the financial risks related to distracted driving. Various studies have noted that drivers using cellphones risk injury at four times the normal accident rate.
Several states, including Minnesota, have passed statutes making it illegal to text while driving. Violating Minnesota’s law is a misdemeanor, but in certain egregious situations of driver inattention resulting in the death of another, there could be felony charges.
Some states also completely prohibit use of handheld cellphones while driving, and others have more general prohibitions against distracted driving. In addition, last December the National Transportation Safety Board recommended a complete ban on handheld cellphone use while driving.
In most states, as a general matter, employers will almost always be responsible to injured third-parties if an employee causes an accident while conducting company business. That includes traveling on company business, or working off the clock by emailing, texting or talking on the phone while driving.
Under those circumstances, employers are liable under the legal rule of “respondent superior,” which holds them responsible for employees acting as their agents.
Danger of sky-high awards
That legal exposure can increase even more—in the form of inflated jury awards following a trial—if an employee was distracted by a cellphone, and the employer made no effort to control such behavior (or perhaps even encouraged it).
Plaintiffs’ attorneys litigating personal-injury and wrongful-death lawsuits almost always point to the fact that research, legislation and government action all recognize the risks of using cellphones while driving.
Employer indifference to this risk tends to anger jurors because they perceive that the company is profiting from its employees’ unsafe activities. That exposure is heightened even more in situations where the employer is actually aware of employees’ tendencies to text or email and drive, but takes no steps to curb the behavior.
What employers should do
To protect against this very real economic threat, employers should have a written policy prohibiting or at least significantly limiting work-related phone use while driving. Drafting and enacting such a policy, of course, is just the first step.
Employers also need to acknowledge the significant pressures on employees—particularly in today’s stressful economic environment—to strive for ever more efficiency and responsiveness when performing their jobs. Employees may perceive attempts to restrict cellphone use as direct attacks on their ability to accomplish those goals—goals that may be directly tied to keeping their jobs.
Policy alone isn’t enough
Thus, employers need to be realistic and recognize that creating yet another workplace policy alone doesn’t represent an effective solution—especially if employees don’t believe the policy has teeth. Make sure employees understand that failing to follow the policy is unsafe and will lead to serious employment consequences.
As with all key employment policies, it is equally important that employers take steps to encourage compliance by employees. That requires clearly communicating the importance of the policy, monitoring actual employee compliance and following up on violations with real and serious consequences.
Taking steps to prohibit employees from texting or emailing about company business while driving can also control an employer’s liability by decreasing the number of distracted driving accidents employees have. The employer will also, of course, be advancing the safety of its employees.
Failure to effectively deal with this issue in today’s legal climate invites liability. Creating and implementing effective policies may greatly decrease a company’s exposure.
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Dean LeDoux’s employment and labor practice involves litigation and advising for unionized and nonunionized employers. Contact him at (612) 632-3233 or dean.ledoux@gpmlaw.com.
