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  4.  | How California’s Hand Free Cell Phone Rule Impacts Employee Cell Phone Use

Keep Your Hands On The Wheel:By Robert S. Nelson, Esq.Nelson Law Group

On September 15, 2006, Governor Arnold Schwarzenegger signed legislation that will make California the fourth state to require motorists to use “hands-free” devices for cell phones while driving. The law generally will prohibit drivers from using cell phones while on the road, unless the phones are equipped with some type of device(s) to free up the drivers’ hands (e.g., headsets, speaker phones, Bluetooth, etc.). Violators will be fined $20 for initial infractions, and $50 for repeat offenses, unless their cell phone use was motivated by emergency. The law is scheduled to go into effect in July 2008.

Despite the relatively minor fines and long wait until the law goes into effect, it should still be a serious and immediate concern for California employers. This is because the new law clearly indicates that California considers driving while handling a cell phone to be dangerous. From now on, drivers who cause accidents while using non-hands free cell phones will likely be presumed to be liable for any injuries or damage that results. And if those drivers work for companies that require or expect their employees to use cell phones as part of their jobs, then the employers may also be held responsible for the accidents as well. At least one case has already tried to use cell phone use by an employee as a means of holding the employer responsible for a fatal hit-and-run accident the employee caused.

This is the principle of “vicarious liability,” under which the employer generally is held liable for any loss or damage caused in the normal course and scope of the employee’s work. The thinking is that if accidents are bound to happen if employees are just doing their jobs, then it is fairer for employers to be responsible for them because they are better able than employees to predict, prevent, and pay for work-related accidents. Vicarious liability works best when job scope is neatly defined, i.e., when employees work set times in set locations performing set job duties. In those circumstances, employers can monitor, control and correct employee behavior, thereby limiting their risk of vicarious liability. Problems arise when job scope expands beyond employer control. Few things cause job scope to expand faster and more completely than modern technology, including e-mail, personal digital assistants, and cell phones.

Cell phones can expand the temporal, geographic and substantive scope of employees’ jobs. With cell phones, employees can work any time in almost any situation, be it while they are on vacation, in the waiting room of a doctor’s office, or driving their cars. If employers encourage or allow employees to take their work in the car with them, then the employees’ job scope theoretically will expand to encompass whatever happens while they are driving, including accidents. That this expansion should occur by way of cell phone use is especially problematic (and ironic) because driving while handling a cell phone is reportedly more dangerous than driving drunk. In other words, employee cell phone use while driving increases both the likelihood that vehicle accidents will occur, and the likelihood that employers will ultimately be held responsible for them.

Having vicarious liability extend into employee vehicles is an idea that would terrify many employers. Roadways present a “perfect storm” of liability conditions where accidents are always possible, and the potential damages from those accidents can always be catastrophic. Because of these dynamics, employers traditionally only included driving in employee job scope after taking careful precautions to protect themselves from potential liability, such as by requiring good driving records from job candidates; having regular safety requirements and training sessions; and, most importantly, securing insurance for employee accidents. At the very least, employers should weigh the myriad risks and benefits before consciously deciding whether they want employee job scope to encompass driving. No employer wants to unintentionally risk vicarious liability for employee auto accidents.

But as at least one employer has already learned, that is exactly what can happen when employees use cell phones while driving. In Yoon v. Wagner, a Virginia state court case, an attorney with a prominent law firm hit and killed a 15-year-old girl while the attorney was driving home from work. The attorney reportedly was driving erratically at the time of the accident because she was making work-related calls on her cell phone. The girl was thrown over an embankment and the attorney, thinking she had only hit a deer, continued driving home. Billing records from the attorney’s firm reportedly showed that she was making work-related calls around the time the accident occurred. She also reportedly continued working when she reached her destination, thereby indicating that her commute was simply a link in her extended work day. A jury rendered a $2 million wrongful death verdict against the attorney, who also lost her law license as a result of the accident. The firm reportedly settled its part of the case for undisclosed terms prior to trial.

Yoon presented an unusually strong case in favor of vicarious liability: billing records likely indicated that the employee was working at the time of the accident; the records may also have been so specific as to say that the attorney was making “cell phone calls,” thus suggesting that the employer knew that employees were using their cell phones to do work; and the employee’s cell phone use almost certainly helped cause the accident. However, in theory vicarious liability can occur whenever an accident results from employee cell phone use which the employer required, encouraged or otherwise ratified.

So what should employers do to limit their exposure to vicarious liability from employee cell phone use? In theory, the answer is simple: proactively limit employee job scope so that it prohibits cell phone use that is likely to subject employers to vicarious liability. In reality, however, employers must make two distinct, difficult decisions when confronting employee cell phone use: (1) what methods should be used to limit job scope, and; (2) what degree of limitation is appropriate? The first decision is easier to make yet more difficult to enforce; the second is a business decision that will hinge on employers’ respective tolerance for, and comfort with, what could be a very significant risk.

With regard to the first question, job scope can theoretically be limited through clear rules that establish proscribed, agreed-to boundaries for employee conduct. If employees then cause accidents because of conduct that deviates from those rules, employers can theoretically defend themselves by arguing that the employees exceeded their respective job scope. The rules should be in writing in employee contracts, handbooks or personnel policies; ideally, employees also should sign written acknowledgments memorializing that they have been put on notice of the rules. As with all workplace policies, cell phone rules will only hold up if employers actively enforce them. If an employer has a policy on record but regularly ignores or contravenes it, then the policy will likely not be able to protect the employer from vicarious liability.

The more difficult question will be to what extent employers want to limit employee cell phone use. Common wisdom says that employers should limit cell phone use at least to the extent permitted by law. In light of California’s new legislation, employers should therefore consider requiring employees to use hands-free devices whenever they make or receive work-related calls while driving. Whether and to what extent that restriction alone will protect against vicarious liability remains to be seen; studies suggest that even hands-free devices do not noticeably reduce the risks of driving while using cell phones. Employers may also be responsible for reimbursing employees for the costs of whatever hands-free devices they require the employees to use. Possible alternatives include requiring employees to park or pull over before using cell phones, or prohibiting cell phone use while driving altogether. As a general rule, however, the more restrictive the policy, the harder it will be for employers to enforce. And if employers adopt policies that are unenforced and/or unenforceable, they likely will not be protected against vicarious liability.

Liability for employee cell phone use is a developing area of the law. Until more is known about whether and to what extent employers can be held liable for cell phone-related accidents, employers should consider their respective need for employee cell phone use, balance that need against their risk of vicarious liability, and then take whatever steps best suit their situations to prevent cell phone use from causing accidents.

For questions about policies and procedures governing employee cell phone use, please contact the Nelson Law Group at 415-689-6590, or [email protected].