Chapter Corner

The Dollars and Cents of Employees Texting While Driving

Posted in: Features, May/June 2013

DistractdDriver.gifIn 2010, the U.S. Department of Transportation recommended a total ban on texting by commercial motor vehicle drivers while driving, and the Department of Labor launched an educational campaign aimed at encouraging employers to prohibit texting while driving. That same year, more than 3,000 people were killed in distraction-related vehicular crashes and an estimated 416,000 drivers and passengers were injured in crashes that involved a distracted driver. More recently, the Occupational Safety and Health Administration (OSHA) stated, “Employers who require their employees to text while driving – or who organize work so that doing so is a practical necessity even if not a formal requirement – violate the Occupational Safety and Health Act.

Today, nearly every state in the nation has some type of law to ban writing, sending, or reading a text message while driving. The restrictions generally include the use of any cellular telephone, laptop, or tablet computer, and other similar devices.  An exception to such bans often is made for texting for emergency purposes, texting while stationary (and outside a roadway), and using the hands free device feature or function of the vehicle. Punishment for violating such laws varies widely from state to state, but it could include a fine and, for a repeat offender, suspension of the driver’s license.

Employer Liability

Even though no law holds employers liable for accidents committed by workers who are texting while driving, under the doctrine of “respondeat superior,” employers can be held liable for an employee’s wrongful conduct if that conduct arose out of the regular course of the employee’s duties. Thus, companies with employees who drive as part of their job may be found liable should an employee using a cell phone cause an accident while driving.

Notable Cases

A growing number of lawsuits have resulted in significant awards against employers when their employees are involved in automobile crashes while using a cell phone. Following are some examples:

$24.7M:  A truck driver was not looking when his truck hit 10 vehicles stopped in backed-up traffic because he was checking his cell phone for text messages. The crash resulted in three fatalities, numerous serious injuries, and multiple lawsuits against the driver and his employer.

$21.6M:  A jury found the employer liable where the employee driving a company car rear-ended another vehicle while she was talking with her husband on a cell phone, causing that vehicle to cross into oncoming traffic. The ensuing accident resulted in a fatality.

$21M:  A jury found the employer liable when its employee, driving a company car, was talking on her cell phone using a hands-free headset and struck another vehicle broadside, seriously injuring the other driver.

$4.1M: The employee of an electrical contractor was lost and using the GPS on his cell phone while driving a company car. He ran a red light and seriously injured a 70-year-old woman.

$750,000:   An employee was involved in a crash while on his way to work. The court held the employer was liable although the employee was off-the-clock because there was evidence the employee was involved in a cell phone conversation regarding company business at the time of the crash. The employer decided to settle the case while the jury was deliberating.

What can Employers do?

Employers should consider maintaining a written policy that prohibits texting while driving when employees are working. Given that many states ban cell phone use while driving, employers also should consider banning all use of handheld electronic wireless communication devices, with a possible exception of hands-free technology. In addition to helping employees avoid violating the law while making the roads safer, such policies can reduce the risk of liability for an employer. Moreover, proper cell phone use policies extend a safe work environment to employees who must operate a motor vehicle as part of their employment.

Employers also should educate employees about the risks of distracted driving, especially of texting while driving. Research shows texting while driving significantly increases the risk of accidents. The Ohio Highway Patrol has published a report on distracted driving, which includes behaviors such as taking hands off the steering wheel, taking eyes off the road, and taking your mind off driving. According to the report, sending (or receiving) text messages takes a driver’s eyes off the road for 4.6 seconds, which, at 55 miles per hour, is roughly the amount of time needed to travel the length of a football field. Employers should also ensure all employees know relevant state and federal laws.

Lastly, employers need to be conscious of inadvertently causing employees to use cell phones and similar devices while driving.  Employers often unknowingly encourage distracted driving by expecting employees to return phone calls during drive times. In order to reduce company liability, employers should be cautious of scheduling mandatory meetings during drive times and requiring employees to check email messages on their way to and from work. For employees that must use a cell phone while driving, employers should consider implementing a policy requiring the use of hands-free devices and providing such devices.

Bottom Line

What can employers do to avoid potential liability for an accident caused by an employee? One highly effective tool is having a cell phone use policy in the employee handbook that is tailored to the company’s particular workforce. However, this is not a DIY project. Policy drafting should not be undertaken without competent legal counsel to help navigate the murky waters of state and federal law.

Joseph Dreesen is a Partner in the Omaha, Nebraska, office of Jackson Lewis LLP. Dreesen works with employers throughout the country on numerous employment and labor law issues. He has successfully negotiated numerous collective bargaining agreements and also has an extensive OSHA and wage and hour practice.

Adam Vergne is an Associate in the Omaha office of Jackson Lewis LLP. Vergne concentrates his practice on the representation of management in litigation and related matters.