Cell Phone Records – Another Fine Mess

Kegler Brown Labor + Employee Relations Newsletter

  • Case 1 – An employee of a law firm was driving home from work when she had an automobile accident, killing a teenage boy. The law firm was sued for $30 million.
  • Case 2 – A stockbroker was driving on a Saturday evening to a social engagement. He struck and killed a man, a father of two, who was riding a motorcycle. The brokerage house paid $500,000 to settle claims against it.
  • Case 3 – An employee of a manufacturing company was in an automobile accident, injuring another person. A jury awarded the injured person nearly $21 million.

What do these cases have in common, other than the fact that they all involved automobile accidents? In each of these cases, the person that was driving the car, and who was at fault, was talking on a cell phone at the time of the accident. And, in each of these cases, the driver's employer was sued because the employee was talking on the cell phone for business purposes at the time of the accident. The stockbroker and the law firm employee were in their own cars, on their own time, but they were calling clients, for business reasons, when they had their accidents. The employee of the manufacturing company was talking on the cell phone, while driving the company's truck, when he had his accident.

Nearly one hundred and fifty million (150,000,000) people in the United States own cell phones today. Collectively, over 800 billion wireless minutes are used. Add to this the exponential growth of PDAs, blackberries, and other electronic communication devices and the incidents of driver distraction or inattention are staggering. Not surprisingly, studies report that talking on a cell phone makes it four times more likely than normal that an accident will occur, a rate which approximates that of drunk driving.

OSHA statistics show that vehicle accidents constitute the highest single cause of at-work fatalities.

The phenomenon of new lawsuits surrounding cell phone-related accidents arises where employers provide cell phones to their employees, or require employees to use cell phones while driving, or who even permit employees to use cell phones while driving. The principal theory of liability is that the driver's act of talking on the cell phone at the time of the accident was for the benefit of the employer, or that it was reasonably foreseeable by the employer. Under these circumstances, as the argument goes, the employer should be liable to the injured party because (a) the employee was acting in the course and scope of their employment, and/or (b) the employer was negligent by permitting or encouraging employees to use the cell phone.

Is there anything an employer can do to protect itself? They say that anyone that can come up with the filing fee can start a lawsuit. But there are some things that employers can do to protect against these types of claims:

  • Prepare and communicate a policy that prohibits employees from talking on cell phones (and using other electronic equipment) – whether personal or company-supplied – while driving. Require that employees pull off the road while making or receiving any calls.
  • Require employees to sign written acknowledgements that they will not use cell phones or other electronic equipment in violation of company policy.
  • If you reimburse employees for business use of cell phones, do not reimburse for calls known to be made in violation of the policy or without a certification of compliance by the employee.

The benefits from new technology, like cell phones, are abundant. However, the technology transfers the location of the "office" to remote locations and allows employees to be "on the job" while far removed from the workplace. Take steps to protect yourself from these new dangers and potential liabilities.