Employers Should Make Their Cell Phone Policies Clear to Avoid Liability

Personal cell phone use has expanded at a tremendous rate over the past decade. This expansion has occurred as a result of a number of factors, not the least of which is the use of cell phones for work-related tasks. While providing a cell phone to an employee may make financial sense for many companies due to increased productivity and the ability to keep the employee linked to work at all times, there are substantial risks that go along with such a decision that should be taken into account by every employer. One of the biggest risks is the employees’ use of their work cell phone while driving. It is estimated by the National Highway Traffic Safety Administration (NHTSA) that at any given moment, 10% of drivers are using a cell phone in some capacity, be it talking, texting or emailing. While the NHTSA could not provide statistics on the percentage of cell phone users who were on work-related tasks, it is likely, if not certain, that at least some of these individuals are either on a work call or using their work cell phone for personal purposes. Should any of these individuals cause an accident while using their phone for work purposes, or even using their work phone for personal reasons, the employer may be held liable for the harm caused under the theory of respondeat superior, the legal doctrine that states that an employer may be responsible for the actions of employees performed within the course of their employment. In order for an employer to be liable for the negligence of an employee, the negligence must occur while the employee is engaging in an activity that is within the course and scope of his or her employment at the time of the tortuous act. The general idea of the rule is that if the employee is negligent while acting in a manner that advances the employer’s interests, the employer is liable for the harm. This is because the harm occurred while the interests of the employer, and not necessarily the individual, were being advanced and as such, the employer must be subject to some liability. With the use of cell phones, individuals can be connected to the office at any time, even in the car. Normally one’s commute would not be included in this definition; however, where the employee is engaged in a work-related conversation on their work cell phone while commuting to or from work, they may well be considered to be acting in the course and scope of their employment, thus opening the door to vicarious liability for harm that the employee causes. Some courts have labeled this the “dual purpose” exception to the coming and going (commuting) exception allowing vicarious liability to be had against the employer because the commute now has two purposes, getting to and from work and conducting work-related tasks. In O’Toole v. Carr, a New Jersey Superior Court held that “[w]here, at the time of the negligent conduct, the employee is serving an interest of the employer as well as his or her private interest, a ‘dual purpose’ is established and the employer is vicariously liable.” In California, the rules are even more liberal as the courts in “California [have] concluded that ‘if the employee's trip to or from work ‘involves an incidental benefit to the employer, not common to commute trips made by ordinary members of the work force,’ the ‘going and coming’ rule will not apply.’” Thus, under the “dual purpose” exception, the commute safe haven for employers withers away and an employer can be held liable for the torts of their employee while the employee is commuting if that employee is conducting work on their cell phone in the car. In addition to losing the coming and going exception to vicarious liability, as cell phone use in cars has expanded, so too has legislation governing safe practices for cell phone use in the car. Laws requiring the use of hands free equipment place a duty on the driver to engage in safe practices behind the wheel. Where an employer provides a cell phone for work purposes, and knows or should expect that the phone will be used while driving, the employer opens itself up to liability not only for negligent operation of the vehicle but also for liability for failure to provide adequate equipment for the employee to safely use the phone at all times. While this issue has not come to bear in Connecticut, it is an issue to be wary of especially in cases involving low income or low asset individuals, as their employer likely has deeper pockets for a plaintiff to recover from. Therefore, as more and more individuals are engaging in the unsafe practice of using a cellular phone while operating a motor vehicle, liability for damage caused during this use may well expand to include the individual’s employer. Given the widespread use of cell phones in the car for work and personal matters, employers should be aware of the liability they face should their employee get into a car accident while using their work phone. In order to avoid, or dampen liability, employers need to make clear policies regarding the use of cell phones generally and also when in the car. Employers may also find it wise to either prohibit employees from using their cell phones for work, or their work cell phone period, while driving or provide employees with hands free technology that meets the current legal framework regarding cell phone use in automobiles. Should an employer fail to make such policies, they leave themselves open to significant liability should an employee get into a car accident while they are using their phone for work purposes. For more information or questions regarding this topic, please contact Attorney Michael Barrese at 860.767.9044, Ext. 213, or MABarrese@TrendowskiLaw.com.