Editor’s Note – Mark Lies, II, is a partner in the Chicago, IL, law firm of Seyfarth, Shaw, Fairweather and Geraldson, who specializes in labor and employment law as well as occupational safety and health. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As most employers are aware, the scope of employer liability continues to expand to encompass virtually all activities that an employee performs on behalf of the employer when injury results to a third party who is harmed by such employee. Typically, the employer will be responsible for such injury if the employee who caused the injury was acting within the scope of his or her employment at the time of the accident.
This liability is now being felt in the area of employee use of cellular telephones, whether supplied by the employer or employee, while an employee is using the telephone while operating a licensed motor vehicle moving on a public or private highway or street or while on private property. In addition to employer liability, the employee is also exposed to civil and criminal liability.
There is no question that when an employee is using a hand-held cellular telephone that the employee cannot be as attentive to the operation of the vehicle as he or she would otherwise be. Some commentators have also suggested that use of the “hands-free” cellular telephone is similarly distracting.
Unfortunately, two rather dramatic accidents apparently involving the use of cellular telephones is driving a movement to strictly limit the use of the devices when vehicles are being operated.
Tragic Accidents
In 1997, a stockbroker for Salomon, Smith Barney was operating an automobile. He apparently was using a cellular telephone on brokerage business. When he dropped the telephone and reached down to retrieve it, he apparently drove his vehicle through a red light and struck and killed a motorcyclist. The employer was sued and settled the claim for $500,000 without admitting liability.
In another recent case, an attorney returning from a business meeting was talking on her cellular telephone and apparently became distracted. She hit what she thought was a deer and continued driving. She later learned that she had committed a hit-and-run after killing a 15-year-old girl. The attorney turned herself in the day after the accident. She pled guilty to felony hit-and-run and is now serving a one-year sentence in a work release program.
In addition, the law firm and the attorney have been sued for wrongful death by the child’s parents who claim that the attorney was acting on law firm business while she was on the telephone returning from a firm related meeting.
Employer Policy Required
Because of these tragedies, many jurisdictions are now considering regulations to control or limit the usage of cellular telephones in vehicles. According to recent data, as many as 43 states are considering regulations, with one already taking action. On November 1, a New York law went into effect restricting the use of hand-held cellular phones while operating a motor vehicle.
While it is beyond the scope of this article to analyze individual jurisdictions, an employer should develop a policy, communicate it to employees, and document that the employees received it by appropriate signatures.
Finally, the policy must be enforced to be effective. If the employer takes these actions, it will reduce the potential for accidents to occur. If an accident does occur, the employer may be able to successfully argue that the employee intentionally disobeyed the policy and that the employer is not responsible for the employee’s negligence. Finally, even if liability is found against the employer, the policy may prevent the imposition of punitive or exemplary damages.
Sample Policy
Accompanying this article is a sample policy for guidance purposes that has attempted to set out the elements that should be considered. Each employer must, however, develop its own policy consistent with the laws or regulations that may exist in its jurisdiction.
It is recommended that the employer obtain the signature of each employee who is subject to this policy prior to allowing the employee to utilize a cellular telephone on company business.
I welcome comments on the sample policy, including receiving examples of policies that have been developed.
Mr. Lies can be contacted by mail at 55 East Monroe Street, Suite 4200, Chicago, IL 60603, or by e-mail at mlies@seyfarth.com.
Labor and the Law - December 2001 Render
Sample Cellular Telephone Usage Policy
It is the policy of the company to provide a safe and healthful work environment for its employees and, to the extent reasonably possible, to prevent injury to third parties while employees are performing their work activities. From time to time, employees may be authorized and required to operate a licensed motor vehicle in order to perform their work activities. This policy is intended to control the manner and means under which any employee may utilize a cellular telephone for a telephonic conversation, whether such telephone is issued by the company or personally owned by the employee, during the time period when the employee is authorized and required to operate a licensed motor vehicle in order to perform work activities.
1. If the company has issued a cellular telephone to an employee, the employee is only authorized to use the cellular telephone for a telephonic conversation for company business during normal working hours.
2. When an employee is authorized and required to operate a licensed motor vehicle for company business during normal working hours, no employee is authorized to use the cellular telephone for a telephonic conversation, whether such telephone is issued by the company or personally owned, while the employee is in the process of operating the motor vehicle while it is moving or temporarily stopped or otherwise in an active vehicular traffic lane on a public or privately owned road, highway, or alley or on privately owned property.
3. If it is necessary to use a company issued or privately owned cellular telephone for a telephonic conversation at any time for company business and during the employee’s normal working hours, the employee must drive the vehicle off of the public or privately owned road, highway, or alley to a location where the vehicle does not create a hazard to the employee or to a third party and bring the vehicle to a complete stop prior to using the cellular telephone. The cellular telephone may not be used for a telephonic conversation after resuming movement of the vehicle.
4. If it is necessary to use the cellular telephone for a telephonic conversation while the vehicle is on privately owned property, the employee must drive the vehicle to a location where the vehicle does not create a hazard to the employee or to a third party and bring the vehicle to a complete stop prior to using the cellular. The cellular telephone may not be used for a telephonic conversation after resuming movement of the vehicle.
5. The company reserves the right to monitor employee compliance with this policy through appropriate means, including, but not limited to, vehicular surveillance, monitoring of telephonic conversations, and auditing of records reflecting use of cellular telephones during the employee’s normal working hours. By accepting a company owned cellular telephone or utilizing a personally owned cellular telephone on company business, the employee consents to the company’s right to conduct monitoring to determine employee compliance.
6. This policy is intended to comply with existing federal, state, or local law and regulations that may control the usage of a cellular telephone during the operation of vehicle on company business during the employee’s normal working hours. The company reserves the right to amend or modify this policy at any time to comply with any such federal, state, or local law or regulation which controls the usage of cellular telephones while on company business and during normal working hours. This policy shall be deemed to be amended or modified to comply with such federal, state, or local law or regulation that controls the usage of cellular telephones while on company business and during normal working hours.
7. Any employee who fails to comply with this policy will be subject to disciplinary action up to and including termination for any violation.
Note: This sample policy is a guidance document only. The author or Render magazine assumes no liability or legal duty, express or implied, for its usage and does not represent that such sample policy is in compliance with any applicable law or regulation which now exists or may exist in the future.
Labor and the Law - December 2001 Render