Technology has made it possible for us to work anywhere, anytime. But when it comes to employees’ use of technology while driving, this convenience comes with a price for employers: Technologically-distracted employee drivers who cause an accident expose their employer to potential liabilities.
California law prohibits people from driving while using
- A wireless cell phone unless it’s hands-free (Veh C §23123), or
- An electronic wireless communications device to write, send, or read a text-based communication (Veh C §23123.5).
As we are all too aware, just because it’s not allowed doesn’t mean that many drivers aren’t doing it. In fact, Law.com reports that the Insurance Institute for Highway Safety and the National Safety Council have found that an estimated 200,000 crashes a year are caused by drivers who are texting, and people who talk on cell phones while driving are four times more likely to get into crashes that cause serious injury.
Not only are these frightening statistics on a personal level, but it is becoming more and more scary on a business level. Although the negligent employee driver is clearly at fault when they cause an accident due to mobile phone use, his or her employer may also be liable under respondeat superior or agency theories. See Miller v American Greetings Corp. (2008) 161 CA4th 1055, 74 CR3d 776. There is also the possibility of direct employer liability if the employer knew, or should have known, that employees were using their cell phones while driving for work-related purposes, and didn’t take action to stop them.
In light of the growing number of cases against employers for injuries caused by their employees’ talking or texting while driving, employers should consider the following to minimize their potential liability:
- Ensure that all employees who may drive a company or personal vehicle for work purposes know the law and are instructed to comply.
- Create, disseminate, and enforce an employer policy that includes, at a minimum, these legal restrictions.
- Consider creating a policy that goes further than the law, i.e., prohibiting even hands-free cell phone use.
As Law.com puts it: “Adopt stricter cell phone policies or be prepared to pay.”
For help with determining potential employer liability and drafting employer policies to avoid such liability, go to CEB’s comprehensive guide Advising California Employers and Employees.
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