Cell Phones in the Office

This tension has become even more apparent, as victims of automobile accidents caused by the distraction of cell phone use are increasingly bringing lawsuits against not just the drivers who caused the accidents, but also their employers.

The case law is mounting. An associate at a Virginia law firm hit and killed a 15-year-old girl while talking on her cell phone with a client. The girl's family sued the attorney's law firm for $30 million, claiming that the firm encouraged its attorneys to use cell phones, even while driving, in order to conduct business. They further claimed the firm failed to implement an adequate policy regarding safety issues related to cell phone use while driving. The employer settled for an undisclosed amount, and after an October 2004 jury trial, the lawyer was ordered to pay $2 million.

In Pennsylvania, a Smith Barney stockbroker, searching for the cell phone he had just dropped, ran a red light, striking and killing a 24-year-old motorcyclist. The victim's family sued the brokerage firm, even though it had not provided its employees with cell phones. The employee had maintained that he was on the phone making “cold calls” at the time of the accident. Other employees testified that brokers were often expected to make these calls on personal time in order to contact difficult-to-reach clients.

In addition to asserting a vicarious liability claim, the plaintiff alleged that the firm was negligent when it encouraged employees to use cell phones without first training them on the potential hazards and risks. Although Smith Barney denied responsibility, it settled the dispute by paying approximately $500,000 to the victim's children, thereby avoiding the potentially higher damage award a jury might order.

In a Florida case, a jury awarded a 78-year-old woman more than $20 million after she was involved in an auto accident with a salesman who was making a call as he traveled between appointments. Cell phone records showed a 74-second call by the defendant near the time of the accident. The employer, Little Rock-based Dykes Industries, settled the case 5 days after the verdict. The employer's insurer ultimately paid $16 million on the company's behalf, and $100,000 for its salesman.

In yet another case, the State of Hawaii agreed to pay $2.5 million as its share of liability for an accident involving a public school teacher who allegedly was talking on her cell phone when she hit a tourist, causing him permanent brain damage. The state was found 20% liable for the plaintiff's injuries.

Theories of Employer Liability

The theories of liability that have been advanced against employers in these cases include vicarious liability and negligence. Under the well-established theory of vicarious liability, premised on the assumption that the driver is acting in the employer's interest, the plaintiff must show that the employee was acting within the scope of his or her employment. Under negligence principles, the employer could be liable for permitting employees to use cell phones without first providing proper training or adopting appropriate cell phone use policies. Employers are particularly vulnerable if they provide the cell phone and/or encourage its use.

Not only are lawsuits concerning cell phone use on the rise, but so too are state and local laws and regulations. Some states and cities prohibit cell phone use while driving, unless it is with a hands-free device. Several states already have passed cell phone laws, and nearly every state has considered adopting some form of restriction on cell phone use while driving. These laws could ultimately lessen the plaintiff's burden of proof in these cases.

While plaintiffs generally must prove that the phone call caused the accident in order to establish liability, they may circumvent this requirement by showing a violation of a statute or regulation restricting cell phone use. Thereby negligence per se is established, making it even more difficult for employers to avoid liability. While the law is still developing and is unclear in this area, the risk for employers nevertheless exists and, therefore, the question arises, should employers enact policies on cell phone use?

Cell Phone Policies

In light of the legal implications for employers, you must counsel your clients to at least consider the implementation of appropriate cell phone policies. The precise contours of any given policy will be determined by how important the use of cell phones is to the employer's business. Some employers have implemented policies that prohibit cell phone use for business purposes altogether. However, for other employers this is simply not feasible.

Policy options are plentiful. Some have banned employees from using cell phones while driving on company time. Other employers have limited cell phone use to certain situations, such as when the car is parked, and discourage employees from talking on the phone in dangerous conditions, such as during inclement weather. It is also common for employers to allow only hands-free cell phone use. In contrast, one employer has refused to endorse the use of hands-free devices on the basis that it believes it actually condones the behavior it is trying to eliminate.

Whatever policy the company elects to take, as its counsel, you must insist it should clearly articulate the employer's position and be put into writing. If the policy allows use of a cell phone, it should provide safety precautions for the employee to follow. In fact, it should clearly state that safety is a priority, that the driver's attention should be focused entirely on the road, and that the employee bears the responsibility for acting safely.

The employer also should consider explaining in the policy that it is the conversation, not the physical act of holding the phone, that most contributes to accidents. Indeed, this fact may weigh against allowing for the use of hands-free devices. It should also clearly require compliance with company policy, as well as compliance with any state or local laws, regarding cell phone use.

Whatever policy, if any, the employer ultimately elects to implement, the employer must be sure to also provide training and enforcement mechanisms. Employers frequently rush to implement policies that they do not intend to or perhaps cannot enforce, which is worse than having no policy at all. At the very least, there should be a document trail showing the intention to and tenacity for enforcing the policy.

One of the simplest ways is to require employees to read and sign the policy that is implemented. Similarly, if the employer provides training on the policy and cell phone safety (which it should), then the employer should be sure to document the employee's attendance at that training. If the employer provides cell phones (or other wireless equipment) to its employees, it should attach stickers to the phones warning of the risks of use while driving. And, if the employer offers reimbursement for cell phone calls, the reimbursement should include a certification by the employee that the phone was not used in violation of company policy.

Even if the employer does intend to enforce a cell phone policy, it may be extremely difficult, if not impossible, to do so. Few companies actually have the ability to monitor the behavior of its employees who are on the road. This adds to the complexity of the decision of whether to implement a cell phone policy at all.

Even though the decision of what to do and how to enforce your decisions may be difficult, having undertaken the deliberative process might prove to be key should you ever find yourself with a client facing such a suit. The implementation of a cell phone policy may go a long way toward helping you convince the jury that your client, the employer, tried to prevent any unsafe activity. Efforts to train workers on that policy and enforce it to the best of the employer's ability will compound the sympathy gained from the jury.

Cellular phone ownership and use is pervasive. More than 70 million Americans reportedly own a cell phone and a high percentage are used for business purposes. Also on the rise are instances of phone use while driving, increasingly blurring the boundary between work and personal time, as people can stay connected professionally during commutes, vacations or other personal pursuits.

With increased production from employees and an enhancement in client services a result of this trend, it is the employer who most benefits. While employers recognize these increased benefits, they have only recently begun to also realize the risks associated with cell phone use by their employees. Of particular concern is the increased risk of automobile accidents caused by cell phone usage, many of which lead to serious injury or death. Indeed, according to Harvard University's Center for Risk Analysis, cell phone use while driving accounts for an estimated 1.5 million accidents and 2600 deaths annually. The risk of automobile accidents creates a tension between employee productivity and accessibility on one hand, and safety risks and liability that employers are being required to evaluate on the other.

Cell Phone Use and Auto Accident Litigation

This tension has become even more apparent, as victims of automobile accidents caused by the distraction of cell phone use are increasingly bringing lawsuits against not just the drivers who caused the accidents, but also their employers.

The case law is mounting. An associate at a Virginia law firm hit and killed a 15-year-old girl while talking on her cell phone with a client. The girl's family sued the attorney's law firm for $30 million, claiming that the firm encouraged its attorneys to use cell phones, even while driving, in order to conduct business. They further claimed the firm failed to implement an adequate policy regarding safety issues related to cell phone use while driving. The employer settled for an undisclosed amount, and after an October 2004 jury trial, the lawyer was ordered to pay $2 million.

In Pennsylvania, a Smith Barney stockbroker, searching for the cell phone he had just dropped, ran a red light, striking and killing a 24-year-old motorcyclist. The victim's family sued the brokerage firm, even though it had not provided its employees with cell phones. The employee had maintained that he was on the phone making “cold calls” at the time of the accident. Other employees testified that brokers were often expected to make these calls on personal time in order to contact difficult-to-reach clients.

In addition to asserting a vicarious liability claim, the plaintiff alleged that the firm was negligent when it encouraged employees to use cell phones without first training them on the potential hazards and risks. Although Smith Barney denied responsibility, it settled the dispute by paying approximately $500,000 to the victim's children, thereby avoiding the potentially higher damage award a jury might order.

In a Florida case, a jury awarded a 78-year-old woman more than $20 million after she was involved in an auto accident with a salesman who was making a call as he traveled between appointments. Cell phone records showed a 74-second call by the defendant near the time of the accident. The employer, Little Rock-based Dykes Industries, settled the case 5 days after the verdict. The employer's insurer ultimately paid $16 million on the company's behalf, and $100,000 for its salesman.

In yet another case, the State of Hawaii agreed to pay $2.5 million as its share of liability for an accident involving a public school teacher who allegedly was talking on her cell phone when she hit a tourist, causing him permanent brain damage. The state was found 20% liable for the plaintiff's injuries.

Theories of Employer Liability

The theories of liability that have been advanced against employers in these cases include vicarious liability and negligence. Under the well-established theory of vicarious liability, premised on the assumption that the driver is acting in the employer's interest, the plaintiff must show that the employee was acting within the scope of his or her employment. Under negligence principles, the employer could be liable for permitting employees to use cell phones without first providing proper training or adopting appropriate cell phone use policies. Employers are particularly vulnerable if they provide the cell phone and/or encourage its use.

Not only are lawsuits concerning cell phone use on the rise, but so too are state and local laws and regulations. Some states and cities prohibit cell phone use while driving, unless it is with a hands-free device. Several states already have passed cell phone laws, and nearly every state has considered adopting some form of restriction on cell phone use while driving. These laws could ultimately lessen the plaintiff's burden of proof in these cases.

While plaintiffs generally must prove that the phone call caused the accident in order to establish liability, they may circumvent this requirement by showing a violation of a statute or regulation restricting cell phone use. Thereby negligence per se is established, making it even more difficult for employers to avoid liability. While the law is still developing and is unclear in this area, the risk for employers nevertheless exists and, therefore, the question arises, should employers enact policies on cell phone use?

Cell Phone Policies

In light of the legal implications for employers, you must counsel your clients to at least consider the implementation of appropriate cell phone policies. The precise contours of any given policy will be determined by how important the use of cell phones is to the employer's business. Some employers have implemented policies that prohibit cell phone use for business purposes altogether. However, for other employers this is simply not feasible.

Policy options are plentiful. Some have banned employees from using cell phones while driving on company time. Other employers have limited cell phone use to certain situations, such as when the car is parked, and discourage employees from talking on the phone in dangerous conditions, such as during inclement weather. It is also common for employers to allow only hands-free cell phone use. In contrast, one employer has refused to endorse the use of hands-free devices on the basis that it believes it actually condones the behavior it is trying to eliminate.

Whatever policy the company elects to take, as its counsel, you must insist it should clearly articulate the employer's position and be put into writing. If the policy allows use of a cell phone, it should provide safety precautions for the employee to follow. In fact, it should clearly state that safety is a priority, that the driver's attention should be focused entirely on the road, and that the employee bears the responsibility for acting safely.

The employer also should consider explaining in the policy that it is the conversation, not the physical act of holding the phone, that most contributes to accidents. Indeed, this fact may weigh against allowing for the use of hands-free devices. It should also clearly require compliance with company policy, as well as compliance with any state or local laws, regarding cell phone use.

Whatever policy, if any, the employer ultimately elects to implement, the employer must be sure to also provide training and enforcement mechanisms. Employers frequently rush to implement policies that they do not intend to or perhaps cannot enforce, which is worse than having no policy at all. At the very least, there should be a document trail showing the intention to and tenacity for enforcing the policy.

One of the simplest ways is to require employees to read and sign the policy that is implemented. Similarly, if the employer provides training on the policy and cell phone safety (which it should), then the employer should be sure to document the employee's attendance at that training. If the employer provides cell phones (or other wireless equipment) to its employees, it should attach stickers to the phones warning of the risks of use while driving. And, if the employer offers reimbursement for cell phone calls, the reimbursement should include a certification by the employee that the phone was not used in violation of company policy.

Even if the employer does intend to enforce a cell phone policy, it may be extremely difficult, if not impossible, to do so. Few companies actually have the ability to monitor the behavior of its employees who are on the road. This adds to the complexity of the decision of whether to implement a cell phone policy at all.

Even though the decision of what to do and how to enforce your decisions may be difficult, having undertaken the deliberative process might prove to be key should you ever find yourself with a client facing such a suit. The implementation of a cell phone policy may go a long way toward helping you convince the jury that your client, the employer, tried to prevent any unsafe activity. Efforts to train workers on that policy and enforce it to the best of the employer's ability will compound the sympathy gained from the jury.