Hands Free Policy: Employer Liability

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Employer Responsibility

Although employer responsibility isn't specifically defined in state cell phone legislation, there have been an increasing number of lawsuits relating to employer responsibility regarding mobile cell-phone use for employees. Hands-free laws have done little to protect employers from liability and as the trend of cell-phone legislation increases, employers should be prepared to address their mobile workforce and advise them of the cellular phone laws that are in effect in your state or locality.

Employers that have personnel driving company owned vehicles during the course of business could be held liable if an employee is involved in a accident while using a cell-phone. Implementing a mobile phone policy and creating a general vehicle use policy is the first step to reducing employer liability. Although a mobile phone and a hands-free policy doesn't completely remove the employer from being held responsible for accidents or injuries that could occur while using a company owned vehicle, it does show some forethought and responsibility on behalf of the employer and may mitigate damages.

Lawsuits

There have been plenty of big settlements in lawsuits against companies whose employees injured or killed someone while talking on a cell phone. Why are the companies sued? Because they typically have much deeper pockets that the employee who actually caused the accident. Consider these examples:

  • A stockbroker from Smith Barney was making a cold call to a potential client while driving when he struck and killed a motorcyclist. Although the broker was using his own cell phone and driving to a nonbusiness event, the plaintiff argued that Smith Barney should be found liable because it encouraged employees to use their cell phones for cold calling without training them on safety issues. Smith Barney eventually settled the case for $500,000.
  • A lawyer was making a business call on her cell phone while driving home from work. She hit something, which she thought was a deer, and kept driving; sadly, she actually hit—and killed—a teenager. The attorney served a year in jail for hit-and-run driving and was ordered to pay the victim’s family more than $2 million; her law firm settled its part of the case for an undisclosed amount.
  • An employee of International Paper was using her company cell phone when she rear-ended another driver on the freeway, causing injuries that eventually required the other driver to have her arm amputated. The company paid $5.2 million to settle the case.
  • In the state of Arkansas a jury found a lumber company liable after one of their employees struck another car, gravely injuring the passenger. At the time of the accident the employee driving the vehicle was using the cell phone for a sales call. The particular case ended up being settled for $16 million.

Policy

It really doesn’t matter whether your company issues cell phones to employees or not: If your company’s employees do business by phone, your company needs a cell phone policy. Not only will this help protect the safety of company employees and those they might encounter on the road, but it will also help your company avoid liability for accidents.

Sample Cell Phone Policy

Don’t Use a Cell Phone While Driving

We know that our employees may use their cell phones or personal digital assistants (PDAs) for work-related matters, whether these devices belong to the employee or are issued by the Company. Employees are prohibited from using cell phones or PDAs for work-related matters while driving. We are concerned for your safety and for the safety of other drivers and pedestrians, and using a cell phone or PDA while driving can lead to accidents.

If you must make a work-related call while driving, you must wait until you can pull over safely and stop the car before placing your call. If you receive a work-related call while driving, you must ask the caller to wait while you pull over safely and stop the car. If you are unable to pull over safely, you must tell the caller that you will have to call back when it is safe to do so.

Alternate Hands Free Policy

If your company wants to allow employees to use a hands-free device to talk on the phone while driving, you can add the language below to the end of the policy. If your company issues cell phones to employees for work-related calls, it should also issue them hands-free equipment to allow them to use the phones in accordance with this part of the policy. Keep in mind, however, that some studies have shown that the use of hands-free equipment does not significantly eliminate the risk of accidents from talking on a cell phone.  

Currently, no state prohibits adult, experienced drivers from using hands-free devices while driving, except for certain professions (such as school bus drivers). Before you adopt the policy language below, check on the laws of your state and local government to make sure that hands-free devices are still allowed.

Hands-Free Equipment

Employees may use hands-free equipment to make or answer calls while driving without violating this policy. However, safety must always be your first priority. We expect you to keep these calls brief. If, because of weather, traffic conditions, or any other reason, you are unable to concentrate fully on the road, you must either end the conversation or pull over and safely park your vehicle before resuming your call.

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