Texting on the job: David McDowell, Rose Law Group partner and litigation department director, explains what employers can do to limit vicarious liability

By David McDowell, Rose Law Group partner and director of Litigation Department

Currently in Arizona only a handful of municipalizes ban texting or reading/sending electronic messages while driving but in January 2021 it becomes illegal to operate a cellular telephone while driving without a hands-free device.

The ban includes writing, sending, or reading any text-based communication or holding or supporting with any part of your body a telephone or electronic device while driving. 

But even before the new law takes effect, liability exists for employers who fail to expressly prohibit the use of cellular telephones or other electronic devices by their employees while driving if an accident results.  Vicarious liability already exists in Arizona and imposes liability on the employer for acts of the employees done within the course and scope of their employment.

If your employees drive as part of their jobs, you should revise your employment policies to expressly prohibits their use of cellular telephones or electronic devices while driving.  The existence of a policy alone may not allow the employer to escape liability, but it strengthens the employer’s argument that it should not be liable for the employee’s acts. Employees should also be educated about the risks of use of electronic devices while driving.

Texting in the workplace (not just while driving) raises a host of issues for the employer including sexual harassment, off-duty conduct, and unrecorded overtime, so careful employers have a comprehensive policy addressing texting. If you need help with a texting policy, please contact us.

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