Insight Center: Publications

Portable Electronic Devices and Employer Liability

Authors: James P. Thomas and Harry P. Weitzel

This article was first published in the June 2012 Orange County Lawyer magazine, published by the Orange County Bar Association. It is reprinted here with permission.

Last month the National Safety Transportation Board (NSTB) issued a recommendation to ban the use of all cell phones while driving, including hands-free devices. Their recommendation far exceeds many state laws, including California's, which prohibit texting while driving or allow the use of a hands-free device only. Although the NSTB has no legislative or regulatory authority, its proposal does raise some issues for employers to think about.

The NSTB is not the only organization focusing on the use of portable electronic devices while driving. In 2010, the Occupational Safety and Health Administration (OSHA) launched a campaign to eliminate texting while driving. As part of this initiative, OSHA prohibits all employers from implementing any policy or practice that encourages or requires employees to text while driving. This includes any practice that organizes work so that texting is a practical necessity. So, even if an employer does not expressly suggest an employee engage in texting while driving, an employer may be cited if OSHA finds that certain demands made by it, such as responding immediately to emails or messages, makes texting a necessity. In keeping with this campaign, OSHA is committed to fully investigating any complaints of employers' encouraging these practices and to issuing citations and penalties under the OSHA Act's general duty clause, when necessary.

In light of the NSTB's heightened recommendation and OSHA's continuing initiative, below are some additional reasons why employers should consider instituting a compliant portable electronic device (PED) policy.

Accident Prevention

Text messaging while driving is dangerous and can lead to otherwise avoidable accidents. Various studies have shown that texting while driving increases the risk of an accident.

Employer Liability

The long-standing doctrine of respondeat superior allows plaintiffs to seek recovery from an employer due to the negligent acts of employees who are acting within the scope of their employment duties. This includes the ability to recover for accidents caused by employees who are texting while driving, and those lawsuits are on the rise. A family who lost their 31-year-old daughter and her 82-year-old grandmother reached a confidential settlement amount with Cable One, Inc. in a wrongful death action after the employee admitted to texting while driving right before he rear-ended the women's vehicle. It was reported that the tragic 2008 Metrolink crash was caused by a conductor who was sending and receiving text messages just 22 seconds before his train crashed head-on with another, killing several people. Lawsuits seeking nine figures in damages were filed.

It's Against the Law

As many as 35 states have laws dedicated to limiting cell phone use while driving. (See Cell Phone and Texting Laws, Governor's Highway Safety Ass'n (April 2012), located at http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html.) Ten states, including California, prohibit all drivers from using a handheld device while driving. At least 30 states, including California, have banned the use of any type of cell phone use, including handheld and hands-free devices, for novice drivers. California is one of 35 states with laws prohibiting texting while driving, and 32 of those states permit an officer to issue a citation without any other offense raking place. And this is only the beginning. With the rise in concern about distracted driving, many states have proposed legislation to increase the fines associated with violation of 'these laws, or add points to drivers' records.

Employee 'Safety

An effective PED policy will help an employer protect the safety of its employees. If you have not already established a PED policy, the NSTB's recent recommendation should serve as a wake-up call to do so. Depending on the industry, employers should revisit their existing policies to incorporate some or all of the following points:

  1. Prohibit the use of handheld devices to text, email, or browse the Internet for work purposes while driving.
  2. Include disciplinary actions against employees who are found to have Orange County Lawyer violated the company PED policy.
  3. Examine the distracted driving laws of your state, and states in which you do business, to make sure your policy satisfies legal requirements.
  4. Examine other workplace policies and procedures to make sure there is nothing that requires workers to text while driving in order to fulfill their job responsibilities.
  5. Eliminate financial and other incentive systems that may encourage employees to text while driving.
  6. Require every employee to sign and date an acknowledgment form confirming receipt of and compliance with the employer's distracted driving policy.
  7. If possible, make safe driving a performance factor; recognize and reward safe driving records.

Although complete insulation from liability can never be guaranteed, a PED policy that is well-written and well-enforced will do much to prevent liability in a number of different areas, as well as enhance safety. It is essential, however, to train your employees on your PED policy and the safe use of their PEDs.

James P. Thomas and Harry P. (Hap) Weitzel

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.