March 14, 2011

Iowa's recent ban on text messaging while driving is a clear message that Iowa will not tolerate distracted driving.  The new law states, "A person shall not use a hand-held electronic communication device to write, send, or read a text message while driving a motor vehicle unless the motor vehicle is at a complete stop off the traveled portion of the roadway."  Iowa Code § 321.276 (2011).  A "text message" is defined to include e-mail correspondence.  Many other states have even stricter regulations concerning cell phone use while driving.  The federal government has also responded.  President Obama issued an executive order prohibiting federal employees from texting while driving, and the U.S. Department of Transportation created a website,, entirely devoted to ending distracted driving.

To protect themselves from liability for work-related employee cell phone use, employers must take action.  The Occupational Safety and Health Administration (OSHA) has declared texting while driving to be a workplace hazard and is prepared to penalize businesses that either implicitly or explicitly encourage employees to engage in the practice.  In an open letter to employers, OSHA warned:

It is [the employer’s] responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving.  Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job.

Letter from David Michaels, Assistant Secretary for Occupational Safety and Health, to Employers (Oct. 4, 2010), available at

Even though the current restrictions relate to texting and e-mailing, employers must be aware that if an employee is involved in an accident while making a work-related call, the employer may be liable.  Employer liability for accidents involving calls made in the course of employment has been found based on a number of theories, including respondeat superior, vicarious liability, and negligence.  Employers can and should protect themselves from such liability.  Employers can limit their liability, and protect their employees, by taking the following steps:

  1. Educate your employees on the laws and dangers of distracted driving;

  2. Create a policy that unequivocally forbids engaging in phone calls, texting, e-mailing, and sending electronic messages while driving and outlines procedures to follow if work-related communication is necessary while on the road;

  3. Require employees to sign the policy; and

  4. Enforce the policy. 

A sample policy can be found here.  Employers can further protect themselves by placing warnings on company vehicles and cell phones. 

In light of the Iowa Legislature’s ban on texting while driving and the federal push to end distracted driving, employers that promote cell phone use while driving should be wary of punitive damages.  The Supreme Court of Iowa, in holding a corporation liable for punitive damages due to complicity in a truck driver’s reckless driving habits, stated that “it is reasonable to punish an employer for the reckless employment or retention of an employee, the ratification or approval of outrageous acts, or for outrageous acts performed by an employee acting in a managerial capacity.”  Briner v. Hyslop, 337 N.W.2d 858, 867 (Iowa 1983).  Therefore, explicitly or implicitly encouraging employees to use a cell phone while driving may subject the employer to punitive damages.

In addition, employers should continue to be aware of the Fair Labor Standards Acts (FLSA) overtime guidelines, and the potential claims involving work cell phones.  Non-exempt employees may be able to recover overtime compensation, liquidated damages, and attorneys’ fees if required to respond to work communications while off the clock. 

If you have any questions about these, or any other employment-related issues, please contact a member of Ahlers & Cooney’s Labor and Employment Practice Group



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Overberg, Nathan


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