There are two big issues of potential liability when it comes to workers using cell phones outside of the office: the first is accidents while driving; the second is overtime pay.

If a worker gets into an accident while using a cell phone, the chances of the employer getting sued are high. This is especially true if the accident happens during work hours or the cell phone is employer-owned. Even if the worker was making a personal call, the employer can still be liable.

These lawsuits usually are brought by someone injured in the accident. That person often claims that the employer encouraged the worker to use a cell phone while driving, knew the worker would have to use the cell phone while driving, and failed to train the worker in safe cell phone use. But the employer’s liability can also show up in claims from the worker, who might claim that since the cell phone was issued for business use, his or her injuries should be covered by workers’ compensation insurance — even if the call was not for business.

Written Policy a Must

At a minimum, have a written policy that prohibits the use of cell phones while a worker is driving. If using a phone while driving is a necessity, the policy should require a hands-free device with dialing done by voice command or while the vehicle is safely stopped. Also, check state laws to understand the potential risk of allowing workers to use cell phones for company business.

As for overtime pay, in court a worker may use cell phone records to show that he or she was working for the employer outside normal business hours and to support an overtime claim. To address this, your cell phone policy should spell out that the issuance of a company cell phone is not an approval to work beyond the worker’s standard work hours.

—D.S. Berenson is the Washington, D.C., managing partner of Johanson Berenson LLP (, a national law firm specializing in the representation of contractors and the home improvement industry. He may be reached at

This article is for informational purposes only and should not be construed as legal advice.