What the heck is vicarious liability and why should you care?

Employers need to have a cell phone policy that helps them avoid vicarious liability.
Employers need to have a cell phone policy that helps them avoid vicarious liability.

Many of us are probably aware of the meaning of vicarious, especially as it applies to pleasure. Watching TV or reading a book allows us to vicariously enjoy or experience what the characters are doing, but how does that relate to the term liability? Vicarious comes from the Latin vicarius meaning substituted, thus vicarious liability means substituted liability.  It is a legal term that HR professionals and business owners need to know well.

Respondeat superior

Respondeat superior is another Latin phrase meaning “let the master answer.” Human resources professional should be familiar with the term because it is frequently applied to sexual harassment cases. It is the concept that employers are responsible for the actions of their supervisors and employees in terms of sexual harassment. It is the doctrine that allows companies to be sued even though the actions of the supervisor or employee were not directed or endorsed by the company management. If the actions were “allowed to occur” due to lack of training, lack of policy, lack of proper reference checking, or lack of control of behavior, then the company is responsible.
It applies to more than just sexual harassment. All forms of discrimination are covered as well. Other wrongs committed in the course of the employment of the worker can also be covered. For example in the case of someone driving on the job under the influence of alcohol the employer can be held liable for not having a policy, not having done the background check, or not addressing a previous situation can all make the company responsible under respondeat superior.

Cell phone policy

In a recent article I read, Janine Fletcher and Matthew Luzadder  of the firm Kelley Drye & Warren LLP, made it clear that employers need to have a very clear policy on cell phone use while driving. They said “When a driver is using a cell phone at the time of an accident and the accident happens while the driver is on company business, the phone call is a business one, or the cell phone was provided by the company, companies have been sued along with the driver/employee…” under the concept of vicarious liability. They further said “…some plaintiffs have argued that the employer is directly liable for its own negligent conduct in failing to provide adequate training or instructions on safe cell phone use, or failing to restrict usage.”
It is the employer who will have the “deeper pockets” in these cases and a plaintiff’s attorney is going to be sure to include the employer in the case if at all possible.


Attorneys Fletcher and Lusadder recommend the following course of action, to which I totally agree. They say:

  • Implement a total ban policy that includes handheld and hands-free devices and prohibits all employees from using cell phones while driving.
  • Have employees sign and acknowledge receipt of the total ban policy discussed above.
  • Reinforce throughout the year with training and education and document their training and education efforts.

This is actually excellent advice in other areas of situation of vicarious liability. In sexual harassment cases having a policy, training supervisors, and reinforcing the training may save a company from huge judgments in a lawsuit.
So review those policies and implement the training. It may end up saving the company a great deal of money and hassle.

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