If you have employees who work from remote locations and utilize wireless telecommunication devices (cell phones, smart phones, etc.) within the scope of their employment, then you may want to give serious consideration to creating yet another policy. Senate Bill 360 (SB 360) was passed last year and prohibits writing, sending or reading “any text based communication,” such as text messages, e-mail and Internet data while operating a motor vehicle. Many other states have passed similar laws. While the individuals who violate this bill may be found guilty of a misdemeanor and subject to fines and points against their drivers licenses, their employers could also face civil liability for the injuries caused by an employee’s negligence.
There are at least two areas of liability that an employer could face in these situations. First, an employee may file a workers’ compensation claim and pursue income and medical benefits for any injuries he or she sustains. Workers’ compensation is not a fault-based system and, therefore, stupidity or negligence alone typically make insufficient legal arguments to defend against the claim. Second, an employer could find itself defending a civil action brought by an injured third party on the basis that the employer is legally liable for the negligent acts of its employees. Similarly, simply arguing stupidity is unlikely to give your defense any traction.
So, how can a policy help? An effective and well-drafted policy should eliminate or otherwise reduce the occurrence of texting while driving in the first place, which should reduce the number of accidents. It could also create a legal defense to liability following any accidents that do occur. An effective policy should clearly state the employer’s purpose and intent to promote a safer workplace. Employees should know and understand that they are not expected, encouraged or permitted to use the wireless telecommunication device(s) while operating a motor vehicle except as provided in the policy. By prohibiting any such use, the employer places its employees on notice that any activity in violation of the policy falls outside the scope of the employee’s employment, thereby creating distance between the employer and the third-party claimants.
While the language for an employer’s policy will need to be tailored to suit its specific needs, they should all limit or prohibit employees from using wireless telecommunication devices while operating a motor vehicle. For obvious reasons, there will likely be exceptions carved out for telephone use (and perhaps certain others), in which case employers should strongly consider requiring use of a hands-free device. Requiring a hands-free device, for example, would promote safety and should reduce distractions. It may also arm the employer with a “safety-appliance” defense to any resulting workers compensation claims stemming from the employee’s failure to use the device.
Like any policy, effective implementation will be paramount. And like any policy, if it’s worth having, it’s worth enforcing. That means, employers should discipline employees for violating the policy at all times -- not just following an accident. A paper policy without teeth may not protect the employer and may not effectively discourage texting while driving.
Jason Logan is an employment law and workers’ compensation attorney in Macon with the national labor firm of Constangy Brooks & Smith.
