Employers can be held legally accountable if their employee is negligent while working. This is called vicarious liability. Now that many employers provide cell phones to their employees, an employer may face vicarious liability outside of the office. It is important for an employer to know their options for attempting to limit liability.

When can an Employer Face Liability?

Before the growth in technology, it was easier to determine when an employee is performing a task in the course of their employment. This would generally be confined to when an employee is in an office or at a meeting. Today, since technological devices are regularly provided to employees, a task can be performed on behalf of an employer basically anywhere.

For example, if an employee is at out of the office and uses their cell phone to make a business call, they will usually be viewed as working. However, sometimes an employee does not even need to be making a business related call. 

If the phone itself is provided by an employer, that employer may be held liable if an employee acts in a negligent manner while using the cell phone. An example of this is if an employee gets in a car accident because they were using their cell phone (or driving a company car). An employer can be sued and held liable for the accident and injuries that may have occurred to others.

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How can Employer Liability be Limited?

While it may be difficult to argue against vicarious liability, an employer can put policies into place that could be used to argue that the employer should not be held responsible for an employee’s actions. This could include the following rules:

  • Prohibition of all cell phone use while driving;
  • Requirement that employees to be “hands free” (speakerphone, Bluetooth) if using cell phones while driving;
  • Providing employees with the state’s cell phone laws;
  • Prohibition of personal calls on an employee-issued cell phone; and
  • Requirement that employees sign a statement of indemnification if a cell-phone based accident occurs.

If these policies are put into place, an employer should distribute them to all employees and require a signature showing that they were received. An employer could use any cell phone related policies to argue against vicarious liability. It could also be helpful to also show a history of enforcing these policies.

When Should I seek Legal Help?

If you are an employer who does not have any cell phone/technology use policies in place, you may want to contact an employment attorney to help you draft some. In addition, if you were hit by someone using a cell phone, you should contact a personal injury attorney. If the driver was using a company cell phone, an attorney can advise you about whether the employee was acting in the course of their employment at the time of the accident, and if you should add their employer as a party to the lawsuit.