Is Your Cell Phone Policy Up To Date?
Effective July 2008, California drivers will be required to use hands free headsets on cell phones. Cell phone use is so ubiquitous that many do not consider the employment related implications of cell phone use. A recent lawsuit highlights the importance of drafting and enforcing appropriate cell phone policies related to work.
Christopher Magdaleno, worked for American Greeting Cards Corporation (AGC) supervising the installation of greeting card displays in various retail outlets throughout Los Angeles. When not physically in a customer retail establishment, it was common for Magdaleno to spend a significant portion of his time talking on his cell phone on work related activities.
In 2004, Magdaleno struck a pedestrian (Holly Miller) while driving his personal pick-up truck. Magdaleno testified that he was driving on his personal time to meet a lawyer regarding a probate matter and was distracted looking for the address of the lawyer’s office at the time of the accident.
Miller’s lawsuit included AGC, claiming that the company was liable for her injuries based on the fact that Magdaleno’s job required the use of his cell phone. An examination of the cell phone records indicated that Magdaleno had made a phone call at 9:26am, however the accident occurred at 9:35am. Miller argued, “AGC is liable because their enterprise creates inevitable risks as part of doing business. One of those risks, inherent in, or created by the enterprise is that Mr. Magdaleno would have an automobile accident while driving his vehicle and conducting work either directly or indirectly on the cell phone”.
The trial court agreed that employers may well be liable for harm caused while employees are on cell phones conducting company business, however in this case they found no evidence that Magdaleno was using his cell phone at the time of the accident.
The court wrote: “We envision the link between an employer’s liability and most work-related cell phone calls while driving as falling along a continuum. Sometimes the link between the job and the accident will be clear, as when an employee is on the phone for work at the moment of the accident. Oftentimes, the link will fall into a gray zone as when an employee devotes some portion of his time and attention to work calls during the car trip and cannot be fairly called entirely personal.”
While the court found that AGC was not liable based on the 9 minute time separation between Magdaleno’s last cell phone call (which was work related) and the accident, the language of the decision reveals the court’s view of employer liability in these cases. In order to protect itself from liability, an employer should consider a policy that limits or prohibits cell phone conversation while operating a motor vehicle. The policy should also take into account the language and spirit of a new California law requiring hands-free headsets. Obviously, hands-free headsets are not the complete solution. Drivers talking on a cell phone are distracted simply by being on the call, let alone dialing numbers or as was the circumstance in this case, searching for an address or a phone number.