Q. Although my employer does not require us to carry cell phones & made us all sign an agreement to not use our cell phones while driving, the company dispatcher is constantly calling the drivers. Can the employer be held liable for accidents?
A. Safety is a personal issue, and a personnel issue. Your own good judgment needs to protect you and multitasking at the wheel does nothing to contribute to your safety, or the safety of those around you. Mobility continues to increase the need for people doing their jobs to communicate with their employers multiple times during the day, and mobile phones have made that very easy.
Law enforcement, insurance companies, and politicians see safety as the priority, and auto and cell phone accessory manufacturers are doing their best to offer you many options to stay in touch while minimizing risk. Your employer has taken precautions to eliminate the risk of using cell phones and driving by having you sign agreements.
If your employer has asked you not to use cell phones while driving, perhaps that is the expectation, and this was not communicated to the dispatcher. What happens if you choose not to answer calls while you are driving, and instead call the dispatcher during stops? Employers are not always aware of the inner most workings of certain parts of an organization, or aware of the liability they face with actions that violate signed agreements, and even city or state regulations.
I consulted Rachelle Green, a litigator specializing in employment law at Duffy & Sweeney in Providence, RI. Attorney Green advises employers, "This scenario provides a good opportunity for a reminder: it doesn’t matter how good written policies are if they are not consistently enforced. When employers show lassitude in enforcing policies, courts will generally give little weight to such policies when offered in the company’s defense".
"It is likely the company would be liable if this employee was in an accident while on a call with the dispatcher. In this case, because the driver was on company business (and may have been driving a company vehicle) and because it appears as if the employee had little choice to ignore the call, it is hard to imagine the company getting away without any liability. If the company’s management had actual or constructive knowledge that its dispatcher regularly called employees on their cell phones while driving on company business, the company policy prohibiting cell phone use while driving would be far from compelling evidence in its favor".
Attorney Green also points out that several courts across the country have refused to dismiss employers from cases arising from accidents allegedly caused by employees’ work related cell phone use, including when the employee was handling a call on the ride to or from work, and was not actually on the clock.
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