Employers liability for distracted employees

By Wayne Hogan

One text or call can wreck it all. Does that irrefutable fact just apply to drivers? No; to their employers, too.

Remember the train that derailed in Spain last summer and killed 79 people? The driver was reported to be talking to a co-worker on his work cell phone. It made headlines worldwide and could cost millions. But an accident doesn’t have to be headline-grabbing to harm your business or your brand.

When staying connected hurts the bottom line

Smartphones helped create our constantly-connected society. While staying connected may seem to have short-term productivity benefits, if your employee drives distracted and causes an accident, it could have costly, long-term consequences: OSHA penalties, civil lawsuits, punitive damages and brand damage, to name a few.

Employers are responsible for the negligence of an employee acting in the course and scope of employment. Our complimentary Distracted Driving Awareness Presentation for the Workforce surprises managers and supervisors when they discover that if an employee makes a work-related communication—on their own phone in their own car—the company can be held responsible when the call is work-related or made while on a company errand.

OSHA requirements

OSHA requires employers to maintain a safe working environment. It also recommends a clear and enforceable policy on distracted driving. Violators can be fined $70,000 per incident for requiring employees to text while driving or structuring work so that texting is a practical necessity of the job.

Being proactive can help protect your company; consider adopting a policy prohibiting mobile phone use when employees are driving in the scope of employment. Doing so enhances workday planning, and employees can pull over in a safe place before using a mobile device. It’s important to clearly communicate the policy, get it acknowledged, monitor it and enforce it.

Civil lawsuits

The legal landscape is changing. Drivers have faced criminal charges for texting that caused deadly accidents; prosecutors in multiple states are bringing manslaughter charges when texting while driving kills someone. Recently, punitive damage claims have been pursued in lawsuits involving distracted drivers.

In Missouri, a victim of brain damage and quadriplegia and his wife sued Holmes Transport, Inc. after its tractor-trailer rig plowed into stopped traffic, killing three and injuring 15. The driver did not see the stopped traffic because he reached across the dash for his cell phone, and pled guilty to three counts of involuntary manslaughter. The federal court ordered the company to pay $18 million.

Cognitive distraction: Your brain on the phone

People may think that hands-free technology solves the problem, but, far from it, talking on the cell phone while driving—even hands-free—causes cognitive distraction. That’s because our brains do not multitask well; they “attention switch” between tasks, amounting to a significant decrease in the attention paid by the driver’s brain to the task of driving. The complexities of this are not apparent, but there is brain science on the hazards of hands-free phone use, including how talking on a cell phone is just as dangerous as driving drunk.

Other consequences

Distracted driving accidents cause property damage, productivity loss, higher insurance premiums or even a canceled policy. “An auto accident due to distracted driving can be a double whammy because it can hit both their business auto insurance and worker’s compensation insurance if the employee is hurt in the accident,” said Vicky Zelen, president of Zelen Risk Solutions in Jacksonville.

Insurance companies are not yet giving discounts on auto policies to companies with distracted driving policies, Zelen said, but worker’s compensation policies typically give a 2 percent credit to companies that have weekly safety talks and a written safety plan—which may include a distracted driving policy.

Educating the workforce

For local businesses, non-profits and civic groups a free distracted driving presentation is offered to address these issues and help save lives. We began with presentations in area high schools but realized that many more drivers already on the roads, many on business, need to get the message.

Distracted driving claimed 3,328 lives and injured 421,000 nationwide in 2012. You see the proof of the problem everyday when you’re on the road; someone texting, talking, distracted.

It’s so prevalent that, just as with driving under the influence, accident report forms now call on the investigating officer to report distracted driving when it causes an accident. Policies can save lives, and protect the bottom line.

To request a Distracted Driving Awareness Presentation for the Workforce, call (904) 722-2228 or visit

This information is provided as a convenience to you and for informational purposes only. It does not constitute legal advice. You may wish to contact your own attorney to assist you with considering, drafting and implementing a company policy.


WayneHoganWayne Hogan is president of Terrell Hogan, Northeast Florida’s largest trial law firm representing only injury and accident victims since 1974. He offers a complimentary Distracted Driving Awareness presentation to local businesses, non-profits and civic groups.


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