It’s easy to imagine: A manager takes a business call while driving to work, a driver browses social media while delivering packages, or a salesperson who’s stuck in traffic sends a text to a client. So what happens when distracted drivers cause accidents while they’re working? Employers could be on the hook for damages.
About 100 people die in car accidents every day, and distracted driving is a leading cause of fatal crashes, according to the National Safety Council. Additionally, 40 percent of all workplace fatalities in 2016—the last year for which data are available—involved transportation incidents, according to U.S. Bureau of Labor Statistics data. Roadway accidents accounted for more than any other type of transportation incident that led to a worker’s death.
Employers can generally be held responsible for damages when a distracted driver is acting in the course and scope of employment. Since technology is expanding and the remote workforce is growing, workers are conducting more business away from the worksite and on the road, which increases the chances for employer liability, said Anne Cherry Barnett, an attorney with Polsinelli in San Francisco.
A court will look at many factors when determining the scope of an employer’s liability, Barnett said.
If an employee is driving a work vehicle, even when off duty, the employer could be held responsible. Furthermore, an employer may be liable when an off-duty worker is driving his or her own vehicle and causes an accident while making a work-related call or sending a text. Cellphone records can be subpoenaed to show who the driver was talking to or texting at the time of the accident.
Practically speaking, when someone has been injured by a distracted driver, the injured party will want to know who owns the vehicle, why the person was driving and what else that person was doing while driving, said Jennifer Sandberg, an attorney with Fisher Phillips in Atlanta. If the driver was working or driving a company vehicle, the injured party may pull the employer into the lawsuit because it likely has the “deepest pockets,” she explained.
Sandberg suggested that employers limit the amount of time that employees spend behind the wheel for the business. Make sure the trip is necessary and that the vehicle is safe and well-maintained, she said.
Employers should ensure that workers are familiar with and following laws that regulate the use of devices while driving, Sandberg noted.
Although there is not a clear federal position, the issue has been addressed at the state level, Barnett explained.
Most states have laws that ban texting and 16 states prohibit the use of hand-held devices while driving, according to the National Conference of State Legislatures. The use of hands-free devices—such as earpieces, speakerphones and dashboard systems—are generally allowed under state laws.
No state bars all cellphone use while driving, but at least 38 states have outlawed cellphone use by teen and new drivers, and 21 states don’t allow school-bus drivers to use phones when they’re on the road
The problem is that people don’t always follow the law, Barnett said. “Every day, we see people texting or enwrapped in a client call while driving.”
Furthermore, according to the National Safety Council, talking on a hands-free device is still dangerous because the driver’s mind is distracted. Talking to a passenger in the car is different because the passenger will see and respond to changes in traffic patterns and any hazards.
“It’s all about risk management,” Barnett said. Depending on the nature of the business, enforcing a strict policy that bans all cellphone use may be unrealistic, she said. At a minimum, employers should incorporate any state laws into their policies and consider the company’s culture and the types of jobs that require driving. What level of risk is the employer willing to take?
Having too strict a policy isn’t helpful, Sandberg said. It’s problematic if everyone is breaking a strict policy and the employer knows it. If employees know they can ignore one policy, perhaps they’ll think it’s all right to disregard other rules, such as those that are part of an anti-harassment program, she noted.
[SHRM members-only resource: Sample cell phone use policy]
For jobs that require driving, employers should make sure workers take a defensive driving class and have a good driving record, she said. “Check records at least once a year during employment, and have a policy requiring employees to self-report any accidents that happen.”
Employers will want to know if drivers have a DUI on their record—even if the incident occurred off duty. “Imagine if you don’t have that information and something bad happens on the job,” Sandberg said. “The other side will argue that you should have known.”
Make sure the policy is rolled out effectively to the relevant employees and that workers understand how important it is to the company, Barnett said. “If employees are not following the policy, there needs to be consequence,” she added.
“Some of it is just based on luck, but if you have good policies and effective training and enforcement, you will have made significant strides to reduce liability,” she said.