Distracted driving” is a buzzword heard quite frequently. Although drivers can be sidetracked by a number of things behind the wheel—engaging with passengers, eating, shaving, applying makeup, operating stereo equipment and even daydreaming—distraction due to cell phone use is one of the most common diversions and can land employers in hot water.

Understanding the Legal Implications
Although no law exists that specifically holds employers liable for an employee’s distracted driving, under the doctrine of “respondeat superior” employers can be found liable for the conduct of employees where the fact finder determines that the conduct occurred during the regular course of the employee’s duties. For example, if employers require employees to check in with the office or customers while on the road or if the employee happens to be on a business-related call when an accident occurs, the employer may be held responsible.
A few notable cases include: a company found liable for a fatal accident that occurred when an employee was making business calls as he drove to a non-business-related event; a company found liable for $21.6 million in damages when testimony showed that the driver of a company-owned vehicle may have been talking with her husband on a cell phone when she crashed; and a municipality held liable for $4 million because the employee/off-duty police officer was texting before a fatal crash in the municipality-owned police cruiser. These cases demonstrate that an employer is safe only when the accident occurs in a personal vehicle while the employee is using a personal phone for personal business and is not acting in the course of employment.

Monitoring Legislation
Worth noting is a proposed state bill that passed the Virginia House of Delegates but died as the General Assembly adjourned in February. Whereas current law prohibits drivers from reading email and text messages and manually entering letters or text on a handheld device as a means of communicating, House Bill 1811 would have prohibited any person from merely holding a handheld personal communications device while driving.
Although this legislation did not pass this year in Virginia, the House of Delegates bill and a similar Senate version were very close to becoming law. Employers should keep a close eye on future developments in this area.

Establishing Company Policies
Although a detailed cell phone policy won’t provide absolute protection from liability, it can help insulate employers from the ramifications of an employee’s distracted driving. The argument that an employee was acting within the scope of employment is weaker—and an employer’s defense is stronger—if an employee who causes harm was using a cell phone in a way that the company policy prohibited.

Cell phone policy guidelines can include a requirement that only hands-free phone use is permitted. Companies can also require that employees pull off the road and safely stop the vehicle before placing or accepting a call. Employers should never make cell phone use while driving a practical necessity for completing work assignments, and they should eliminate incentives that encourage employees to use their cell phones while driving. Finally, any company cell phone policy must be clear, clearly communicated, and consistently enforced.