Excerpted from Iowa Employment Law Letter and written by an attorney at the law firm of Whitfield & Eddy, P.L.C.

There's no federal law that prohibits responding to work-related cell phone calls when driving. We all know, however, that a handful of people really struggle with multitasking issues like walking and chewing gum at the same time.

In turn, when you put those people behind the wheel of a car along with their cell phones, road hockey can be the result. Can your employees' work-related cell phone calls in the car ultimately lead to legal liability for your business?

Gabbing as you drive over the yellow line
Face it. Some folks shouldn't be trying to do two things at once. We've all seen the person gabbing on their cell phone while swaying between two different lanes of traffic or the one who runs a red light because he's so engrossed in a conversation.
In fact, studies have shown that talking on a cell phone is actually more dangerous than driving drunk. As a consequence, an increasing number of states, including California, have passed legislation requiring drivers to use "hands-free" telephone devices when driving with cell phones.

Several states including New York, New Jersey, Connecticut, and California, and local governments including the District of Columbia have passed hands-free legislation in an effort to cut down on cell phone-related crashes.

The laws in those states require drivers to put their cell phones down when they're driving unless they are equipped with some type of device to keep the driver's hands on the wheel (i.e., headsets or speaker phones). Violators are subject to fines that can multiply for repeated offenses. In addition to the states that have passed hands-free laws, 38 other states made an effort to pass similar legislation during the past year.

Talking and vicarious liability
So all kidding aside, is it possible for your company to be held liable for an auto accident caused by an employee who is using her cell phone for company-related business? Further, can the potential for liability grow if your business supplied her with the cell phone or if you pay her monthly cell phone bill?

The brief answer? Yup. In several of the states with hands-free legislation, drivers who cause accidents when using non hands-free cell phones can be presumed liable for damages caused by their negligence. In turn, it's not a stretch for that liability to attach to employers that require employees to use their cell phones in their jobs if that use contributes to an auto accident.

The legal theory of vicarious liability (liability transferred to another person or entity) stems from the well-recognized judicial and legislative presumptions that employers should be held to answer for losses resulting from employees' negligent acts during the normal and ordinary course of performing their work.

The law presumes that employers should assume some legal responsibility for those negligent acts because they are in a better position to control employees' work-related behavior.

Generally, rules imposing vicarious legal liability fit best when the employee is performing specific work duties at specific times in specific work-related locations, such that the employer is clearly controlling the employee's behavior. Vicarious liability principles, however, also can apply to work-related behaviors outside the normal workplace, and that's when cell-phone use can become problematic.

In today's business environment, employees work on their computers and use their cell phones virtually anywhere, including on a beach vacation, on the train ride with the kids to Grandma's house, and when they're driving to and from work.

It's the multitasking challenge represented by driving and talking about work-related issues on the cell phone that can combine to create legal liability concerns for employers. In fact, in a state court case in Virginia, the legal theory of vicarious liability was used to try to hold an employer liable for an accident caused when an employee was handling work-related issues on a cell phone at the time of the crash.

In Yoon v. Wagner, an attorney with a local law firm apparently ran over a 15-year-old girl while driving home from work. According to billing records from the attorney's firm, the driver was making work-related cell phone calls when the accident occurred, and she continued working when she arrived at her destination.

Therefore, it was asserted that her commute was part of her extended workday. The employer law firm, perhaps wisely, decided to settle its part of the case before going to trial. The attorney was hit with a $2 million wrongful death verdict, and she lost her law license as a result of the accident.

While the Yoon case didn't result in an actual verdict against the employer, the facts were damning. It's not difficult to understand the potential for legal liability for any company that clearly knows its employees are making cell-phone calls outside of work, including when they're driving.

Indeed, the victim of a negligent act could argue that the employer required, encouraged, or at the very least, condoned the employee's use of a cell phone for work purposes when driving. Since the employer is arguably reaping the benefit of the employee's work-related act, the argument follows that it also should reap the detriment of the work-related negligent act.

Time for written cell-phone rules for your business?
Since any 21st century business must be in the business of legal risk avoidance, perhaps the answer on this one is obvious. It may be time to consider drafting written rules on car cell-phone use.

OK, we understand you don't want to prohibit cell-phone use outside the office because the unquestioned beauty of the cell phone is that it allows people to remain connected 24/7. Still, progressive employers also should see the potential for legal liability if its employees use their cell phones for work purposes but can't successfully steer a car at the same time.

Consider amending your handbook to prohibit using cell phones for work purposes without hands-free devices. Require employees who don't have those devices to pull to the side of the road and stop the car before initiating or completing a cell-phone transmission.

Make efforts to enforce your policies uniformly. Require employees to sign an acknowledgment that they have read your new cell-phone policy and agree to abide by it.

Cell phones are a tremendous technological innovation. They clearly have expedited and enhanced our ability to transact business on a moment's notice. At the same time, if most of us are honest, we will admit that at one time or another we've been that "stupid yahoo" who has temporarily crossed the yellow line, sat at a green light, or performed some other equally obnoxious act that could have led to an accident and legal liability.

Take preventive steps to rein in unbridled employee cell-phone use in vehicles for work-related purposes. Your balance sheet may thank you.

Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from IOWA EMPLOYMENT LAW LETTER.This article is an excerpt from IOWA EMPLOYMENT LAW LETTER.IOWA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual legal problems nor does it provide legal advice. The newsletter provides general information on current developments on Iowa employment issues. Questions about individual legal problems should be addressed to the attorney of your choice