Cell phone use is growing at a staggering rate as over 190 million people used cell phones in the United States during 2005.  This amounts to 2 out of every 3 people using a cell phone.  As cell phone use has risen, the use of cell phones while driving has also risen to the point that now 40% of all cell phone use is by motorists.  It is hardly surprising that the combination of driving and cell phone use has lead to over 330,000 auto accident injuries and 2,600 deaths per year.  Employer liability for cell phone use outside the office creates the risk of liability under Maryland auto accident law in two situations: (1) injuries to the employee or other motorists resulting from auto accidents and (2) overtime pay to employees.

If an employee uses his cell phone while driving, it increases the probability the employee will be involved in an accident.  An employer can be liable for injuries to a third party resulting from the negligence of an employee under the doctrine of vicarious liability if the accident occurs in the “scope and course of employment.”  This is a legal term of art with lots of room for skilled attorneys to debate.  However, if an employer encourages the employee to use his cell phone while driving or knows the employee will use the cell phone while working, a court may find the employee is using his phone within the course and scope of his employment.  If the employer provides a cell phone to the employee with no policy prohibiting use of the cell phone while driving, a court may also find the employer liable. 

Even if the employee is making a personal call, the employer could face liability for injuries resulting from an accident if the employer has provided the cell phone or knows the employee is using the cell phone during work related errands.  Again, the “course and scope of employment test” is somewhat vague and open to interpretation so it important for an employer to make sure the company has clear policies restricting cell phone use while driving.  Some examples of policies that might limit employer liability are listed below:

•    Provide a written policy limiting or prohibiting cell phone use while driving
•    Prohibit cell phone use entirely
•    Place visible warnings on company cell phones and vehicles
•    Require employees to pull over and stop when using a cell phone
•    Mandate employees use hands free headsets
•    Comply with all laws regarding cell phone use while driving
•    Limit cell phone use to short brief calls
•    Prohibit all personal calls
•    Make employees sign a written policy regarding cell phone use with disciplinary consequences

While none of these steps will necessarily prevent liability for injuries caused by an employee’s cell phone related auto accident.  These are steps that may reduce the risk.  Because the “course and scope test” is open to interpretation, an employer is well advised to seek legal advice from a Maryland employment attorney on how to minimize liability for employee cell phone use while driving.  Plaintiff’s attorneys may sue an employer in such a situation because the employer has the “deepest pockets.”  In a recent case in Florida, a jury awarded a 78-year-old woman and her husband $20.98 million for the injuries that left her on a ventilator for life.  Evidence was introduced at trial that the employee had been on his cell phone at the time of the accident.

Employers may similarly face liability for injuries incurred by the employee if he is involved in an accident while using his cell phone.  Again, a key issue will be whether the employee was injured in the course of his employment.  The employer can be liable for injuries to the employee if he is involved in an auto accident under worker’s compensation law.  An employee could conceivably make such a claim even if the call was a personal call depending on the circumstances.

Employer’s can also face potential liability from employees who claim overtime pay from after hours use of an employee’s cell phone.  If an employer provides use of a company cell phones or encourages employees to use their cell phone for business purposes.  An employer should have a written policy that use of a company cell phone or any cell phone is not approval to work outside normal business hours.

A Maryland employment attorney can help develop a written policy designed to limit liability related to employee cell phone use.  If you need a Maryland employment attorney, click here.