August 2007

Text Messaging, Cell Phones And Portable Electronic Devices: Is Your Safe Driving Policy Comprehensive Enough For New Technologies?

The potential liability exposure arising from employees who use cell phones while driving has become too great for employers to ignore. An increasing number of employers have been held liable for automobile accidents caused by employees who were talking on cell phones while driving. Our September 2003 Legal Update first focused on the issue and what employers could do to address it.

Unfortunately for employers, the potential problem has only grown. Drivers are no longer using cell phones to just dial and chat. Instead, they are now using cell phones and other portable electronic devices for other, even more distracting uses – such as text messaging, reading, writing and sending e-mail, surfing the Internet, and even watching videos and television. Given the recent news coverage of accidents and fatalities that involved drivers who were text messaging or checking e-mail, employers who wish to minimize potential liability must now assess whether their current employment practices and policies adequately address these serious new concerns. This Legal Update focuses on dangers posed by employees’ use of “portable electronic devices” (including PDAs, cell phones and so-called “smart” phones, pagers or other portable computer devices) while driving and how employers may minimize the risk of liability by providing proper employee training and adopting or updating their safe driving policies.

While the widespread use of cell phone text messaging is still a relatively recent phenomenon in the United States, various surveys have reported that between 6% and 20% of motorists admit to text messaging while driving. Studies have found, unsurprisingly, that text messaging requires a greater level of concentration than other activities in a car, such as talking on a cell phone. Recent accidents highlight the danger of text messaging while driving and the need for employers to educate employees and minimize potential liability:

• A 17-year-old driver’s cell phone sent and received texts moments before her SUV struck another vehicle, killing her and four passengers in Candaigua, New York.
• A 53-year old driver checking his e-mail on a BlackBerry caused a five-car pile-up on a highway outside Seattle.
• A Tennessee driver was sending a text message when he lost control of his truck and struck and killed a cyclist.

There are two ways that an employer may be found liable for an accident caused by an employee using a wireless electronic device. First, an employer may be found “vicariously” liable for the negligence of an employee who is acting within the scope of employment – that is, when the employee is “on the job” or working for the benefit of the employer. For example, if a truck driver making routine deliveries injures a pedestrian, the driver’s employer may be found vicariously liable for the driver’s negligence, if any. In cases involving a driver who was speaking on a cell phone, courts have gone further, holding employers liable for cell phone-related accidents that occurred even outside of regular working hours or where they involved employee-owned cell phones or vehicles. The results in such cases portend similar lawsuits against employers where employees cause accidents while text messaging or making other uses of portable electronic devices.

An employer may incur a second type of liability for an employee’s car accident if the employer is found negligent in failing to properly train or warn employees about the dangers of using portable electronic devices while driving. Even worse, an existing company policy might appear to encourage employees to use wireless electronic devices while driving, for instance by requiring employees to “check in” while on the road.

Some states are taking aim at drivers who text message with new laws. The laws attempt to broaden driving legislation originally enacted to address only talking on a cell phone. Washington recently became the first state to pass a law banning persons operating motor vehicles from sending, reading or writing a text message by means of an electronic wireless communications device. Other states that have pending legislation to ban drivers from text messaging are New York, New Jersey, California and Oregon.

State laws that ban text messaging or other uses of cell phones and portable electronic devices may increase the likelihood of lawsuits against an employer whose employee is text messaging while driving and is involved in an accident. Generally, when an accident involves a driver text messaging or using a cell phone, the injured person must prove that the use of the portable electronic device caused the accident. Yet, in a state that prohibits any text messaging while driving, an injured person may merely have to show that the employee was using the portable electronic device at the time of the accident to prove the employee’s negligence. The evidence of use may be easily established through cell phone service provider records.

Employers can minimize the risk of accidents and potential liability by following state and local laws regarding the use of portable electronic devices in cars, training employees in safe driving practices, and, perhaps most importantly, adopting and enforcing policies regarding their employees’ use of portable electronic device use and driving. Indeed, a well-crafted and consistently and rigorously-enforced policy may provide an employer with a viable defense even in the event that the employee deviates from the policy.

In crafting a policy that best suits your organization, you will need to make a number of decisions based on company culture, state and local laws, and the nature of your business. Consider adopting a safe driving policy (or updating your current safe driving policy) to incorporate the following actions to reduce your organization’s liability for employee car accidents involving the use of portable electronic devices:

Prohibit the Use of Wireless Devices While Driving. Many organizations, including UPS, Johnson & Johnson and ExxonMobil, have adopted written policies prohibiting use of portable electronic devices while driving. While other organizations merely restrict the use of portable electronic devices – for example, by allowing hands-free use of cell phones – such an approach can still leave an employer open to liability based on recent research concluding that hands-free devices are no safer than hand-held devices. An effective written policy should make clear that no use of a portable electronic device – including reading, talking or sending messages – is permitted, with the sole exception being where a true emergency exists and the employee cannot safely pull off the road to use the device. A policy may also require that employees refrain from other activities which may compromise or interfere with a driver’s concentration, such as eating, drinking or changing CDs.

Train Your Employees. If your employees often conduct work while driving, are they expected to monitor their e-mail or stay in touch with the office, clients or customers while on the road? If so, it is critical to take the time to train them about safe driving practices and the use of portable electronic devices. Many companies include training on programming phones to direct incoming calls to voice-mail while driving, so that the caller receives a voice message that the owner of the phone is driving and will return the call when he or she is in a safe location. Companies that issue devices with the ability to send and receive text messages or e-mail should train their employees on the safe uses of these devices, including how to switch the device off so that they cannot see their e-mail while driving. Employees should be required to know and comply with all state or local laws concerning portable electronic device use while driving. Don’t assume that employees are aware of the dangers associated with text messaging or sending and receiving e-mail while driving or the consequences that could befall them, your organization or innocent bystanders.

Enforce Your Policy. Are your employees aware of your current driving policies? While it is important to adopt a written policy, it is also critical to consistently enforce it. Failure to do so can be as bad, if not worse, than having no policy at all. Some employers include safe driving policies in their employee handbooks, while others have separate policies and require employees to sign an acknowledgment and receipt confirming that they have received and read the policy, they understand it, and they will abide by it. Some employers place stickers in company cars or on company-issued wireless devices to remind employees of the policy. Finally, employees who violate the policy should be held accountable, usually through a combination of education and discipline.

FVLD prepares employee handbooks and employment policies for its clients, including Portable Electronic Use and Driving Policies. FVLD publishes updates on legal issues and summaries of legal topics for its clients and friends. They are merely informational and do not constitute legal advice. We welcome comments or questions. If we can be of assistance, please call or write Jonathan Vegosen 312.701.6860 jvegosen@fvldlaw.com or Glenn Rice 312.701.6895 grice@fvldlaw.com, or your regular FVLD contact.