Employers can be liable for road accidents caused by worker cell phone use. A strict safety policy can help.
While text messaging, photos, and Internet access have boosted the popularity of cell phones in the workplace, they've also increased the potential headaches for employers. These include everything from productivity and privacy issues, to the risks of legal liability for accidents caused by employees using cell phones for work-related calls behind the wheel.
In 2001, the city of Honolulu agreed to pay $1.5 million to a man who suffered permanent brain damage after being struck by a city employee who was talking on a cell phone at the time of the accident. Similarly, a jury ordered an employer to pay more than $20 million when its salesman killed a motorist while using his cell phone between sales appointments. The large investment firm Salomon Smith Barney paid a $500,000 settlement to the family of a motorcyclist killed by one of its employees making a work-related call after hours on his own personal cell phone. And when a lawyer struck and killed a teenage girl while driving home from a work meeting -- allegedly on a cell phone call with a client -- the victim's family filed a $30 million suit against the employer, claiming the law firm was negligent in encouraging employees to use cell phones without providing a safety policy.
As such, it's becoming increasingly important for today's employers to implement effective cell phone use policies, both to limit liability and improve safety. It doesn't matter if the call is being made during regular office hours or not; what matters is that the call is work related. Employers may be found liable for any damages caused by an employee acting within the scope of his or her employment. What's more, employers could also be found negligent if they fail to provide an adequate cell phone use policy, proper training, or safe equipment to its employees. With the recent increase in state statutes banning or restricting cell phone use while driving, the potential liability for employers has increased.
While cell phone policies may not completely shield employers from liability, employers should implement a policy or update existing policies in order to minimize the risks of a costly lawsuit. Employers should consider the benefits and risks of employee cell phone use, as well as any state cell phone driving statutes. To effectively reduce the risk of liability, such a policy should prohibit any work-related cell phone calls while driving. If the company feels that is unenforceable, the policy should, at the very least, require the use of a hands-free device. The policy should also state that if an employee is in an accident, any costs, fees and fines will be solely the responsibility of the driver.
Cell phones have also created an increased distraction in the workplace. Personal calls -- whether made on a cell phone or not -- are especially distracting, while text messaging takes away from an employee's productive time. Accordingly, employers may require that personal cell phones be turned off or silenced during working hours, unless employees use them for business purposes. Such a policy should also provide that personal cell phone calls or text messaging is prohibited during work hours and are only allowed during breaks or lunches.
Employers should also be aware of potential wage and hour issues involved with employee cell phone use. While the devices often make it easier for employees to perform work anytime and anywhere, it may also be more difficult for employers and employees alike to keep track of actual hours worked, as required by the Fair Labor Standards Act. Employers could easily be surprised by an overtime claim for time spent on a cell phone call away from the office. Employers should have a policy regarding how to account for this time. If the employee is not to be using the cell phone after hours (to reduce the risk of the claims for overtime) the policy should clearly state as much. If an "on-call" employee is issued a cell phone, the policy should indicate what is acceptable use of the phone.
Cell phone use may have even more implications in the workplace. Although many companies already have confidentiality and privacy policies in place, some employers may need to implement them as the number of cell phones equipped with cameras increases. For example, it may be important for certain employers to prohibit employees from photographing important business assets, such as documents or equipment. Additionally, there may also be privacy concerns if an employee photographs another in the workplace without his or her knowledge or permission.
The concerns for employers regarding cell phone use are numerous, especially in light of their growing popularity and usefulness and the current legal trends. Appropriate policies can help address these concerns.
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