Texas, like many states in the United States, has legislation on the books prohibiting drivers from receiving or sending electronic communications while on the road. While the law imposes fines of up to $200 for each offense, many drivers continue to navigate their phones on the road. Indeed, it is not uncommon to see drivers scrolling through emails during morning stop-and-go traffic in an attempt to stay ahead of the curve before arriving at the office.
If you are an employer, you may well assume that what your employees do outside of the office are none of your concern. However, you may only be half right. Many employers in Texas may be unaware that simply permitting employees to email or text while driving may open the company up to multi-million dollar lawsuits if an accident should occur due to distracted driving. One employer learned this the hard way after being shelled with a $45.3 million verdict in November 2017 by an unanimous San Antonio jury after it allowed executives in the company to use their cell phones while driving. In a lawsuit filed against JC Fodale Energy Services—a privately-held oilfield services company who is now defunct—the plaintiff was reared-ended by a Fodale employee who was apparently talking on the phone just prior to the accident. In upholding the award, the jury heard arguments that the collision was caused in part by a lack of oversight within the company that not only permitted executive employees to conduct business on their cell phones while driving, but promulgated inconsistent policies regarding cell-phone usage with respect to other employees. The jury also considered arguments that the company management were aware of studies showing that cell-phone use while driving was similar to driving under the influence of a blood alcohol content of 0.08—a legal standard equivalent to intoxication. At the end of the trial, the verdict included over $30 million in punitive damages against the Company who, after having declared bankruptcy in 2016, is no longer in business.
For employers, this case underscores the importance of having a consistent and robust cell-phone policy in place in the workforce. As the lawsuit demonstrates, you may be liable under the law for various acts of your employee during the scope of employment.
To minimize your exposure to liability, you may want to consider incorporating a cell-phone policy into your handbook or better yet, adopting a strong stand-alone policy that employees should acknowledge, in order to discourage all use of cell-phone—even “hands-free” cell-phone—on the road. To ensure the safety of all involved, managers and supervisors should also be cautioned from sending emails or placing calls to employees who the managers are aware may be in transit. Lastly, you should make clear to employees that they are not considered to be “on the job” while commuting and you should address all concerns regarding cell-phone usage fully and swiftly. While employee negligence can never be fully avoided, having a strong and comprehensive cell-phone policy will significantly decrease the likelihood that any negligent driving will be imputed onto you.
For employers considering incorporating this crucial provision, Monty and Ramirez will be happy to provide you with a sample cell-phone policy.
