Mobile technology and employer liability

With the widespread use of mobile technology, many employers may find their employees’ ability to engage in work at virtually any time and any place a boon to efficiency and customer service, but employees who conduct business while driving may actually be placing their employer at risk for liability.

Employers around the country have found themselves involved in lawsuits involving the cell phone-related accidents of their employees. Generally, employers are drawn into these suits on a theory that the employee was conducting employer business at the time of the accident. While most employers are aware that they may be held liable for an accident caused by an employee who was driving a company vehicle or who was traveling on behalf of the employer at the time of the accident, in some circumstances cell phones and other electronic devices may extend employer liability to accidents that take place during time that traditionally has been considered non-work time.

For example, an employer in Georgia was sued when one of its shift supervisors lost control of his car and collided with another car during his commute into work. Cell phone records indicated that the supervisor had made calls to his employer around the time the accident occurred.

The court considered it a “special circumstance whereby the employee may have actually been conducting some manner of company business at the same time that he was on the way to work when the accident occurred.” Consequently, the judge let the issue of whether the employer was liable for the accident go to a jury.

Other employers have been sued for accidents caused by employees while they were using cell phones to make sales calls, talk to clients, or call co-workers, despite evidence the calls were made after hours and in the absence of evidence that the employee was conducting any other type of business on behalf of the employer.

Several of these lawsuits have involved liabilities for serious injuries or fatalities and have resulted in million-dollar judgments against and/or settlements by the employer.

While there are no published cases from New Hampshire regarding employer liability for employee cell phone use, and it is not clear if a New Hampshire court would rule the same way as others, the principle under which an employer may be found liable for the acts of an employee acting within the scope of his employment under New Hampshire law are the same.

Employers also may face allegations that they were negligent to permit (or encourage) employees to use cell phones or negligent by providing the employees with cell phones without adequate training or warnings about dangers associated with using them.

Preventive measures

Although New Hampshire does not currently have a law banning cell phone use while driving, RSA 265:79 prohibits negligent driving and, under certain circumstances, this may include the use of a cell phone while driving.

Employers who send employees out of state must take particular care to stay on top of the laws of the states in which its employees are traveling, since laws differ even among the New England states. Massachusetts, for example, allows local jurisdictions to ban cell phone use, although there is no statewide ban, while Connecticut bans the use of hand-held mobile phones while driving.

Ultimately, these types of laws may make it easier to hold an employer liable for damages caused by employee cell phone use.

Employers can take preventive measures to address the risk posed by this area of potential liability. These include setting clear policies for the appropriate and safe use of cell phones while on company time or while making any calls that may be construed as relating to company business.

In order to appropriately develop these policies, employers will need to consider the company’s individual culture and needs, as well as the types of individuals to which the policies will apply. Some employers choose to prohibit all cell phone use while driving on company time, while other employers promulgate rules restricting cell phone use while driving. Other employers have even banned the possession of cell phones in company vehicles by employees who are drivers for the company.

Employers who provide cell phones to employees should consider conducting training on how to use them safely and issue reminders to employees that the use of cell phones while driving a company vehicle or on company time is dangerous and should be restricted to emergencies only.

The safest practices would be to prohibit all cell phone use while driving on company time or for company business. However, if such a widespread prohibition is not possible, employers should consider requiring the use of hands-free devices and the implementation of other policies to limit the risk of accidents.

Employers that choose to implement rules or prohibitions involving cell phone use should put the rules in writing and document that the employee received them and should document any applicable training. Additionally, all such policies and rules should be strictly enforced and employees should be made aware of the consequences of non-compliance, including the potential for disciplinary action.

Laurel Van Buskirk, who practices labor and employment law at Gallagher Callahan & Gartrell P.C., Concord, is a member of the National Human Resources Association’s New Hampshire affiliate and serves on its programs committee.