Employer Provided Mobile Devices/Employer Liability
Advances in technology, remote computer access through employer supplied lap top computers, smart phones, PDA, etc. have significantly expanded the work place beyond its traditional boundaries. It is now possible and, in many cases, practical for employees to work from home, on the road, etc. 24 hours a day/seven days a week. This seamless connectivity may, depending on the facts, expand an employer’s exposure to liability. Vicarious Liability?
Vicarious liability is the imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. For example, the liability of an employer for the acts of its employee. Do your employees use smart phones while driving? What if one is using a employer provided smart phone to discuss a bid proposal as he/she is driving to lunch in their own car and they rear-end a van full of kids? Your company’s vicarious liability for the employee’s negligence will hinge on several factors:
- Whether the employee is compensated for use of his personal vehicle in performing his job duties;
- Whether the employee is given a company credit card to purchase fuel;
- Whether the company provides the cell phone;
- Whether the employee regularly conducts business on behalf of the company via cell phone while driving or eating lunch;
- Whether the company has policies or procedures forbidding employees from talking on cell phones while driving and whether any such policies and procedures are enforced; and
- Whether talking on the cell phone directly contributed to the accident.
What policies and procedures does your company have limiting and/or restricting company provided cell phone use? Are these policies enforced? Do the benefits your company receives from 24/7 employee connectivity outweigh the potential risk of vicarious liability?
Workers’ Compensation/Employees Injured At Home?
Are your employees in the course and scope of their employment if they are injured at home? The general rule is that an accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during working hours, either on the employer's premises or at other places where employment activities take the employee. Coverage has been extended in some cases to include accidents during times for rest or lunch periods or before and after work on the employer's premises, or to include accidents at places where employment duties are performed off the employer's premises, the principal criteria for determining course of employment are time, place and employment activity.
The determination of whether an accident arises out of employment focuses on the character or source of the risk which gives rise to the injury and on the relationship of the risk to the nature of the employment. An accident arises out of employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment. The hardest risks to evaluate are those that have neither a particular employment character nor a particular personal character.
What if your employee, who frequently works from home, slips and falls in their kitchen while sending a work related e-mail, fax or text message on employer provided equipment? Is your company responsible for workers’ compensation benefits? The answer may surprise you.
Mr. Mason is a partner in the Baton Rouge office of Breazeale, Sachse & Wilson, L.L.P.