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The Electric Scooter Craze: What Can Employers Do to Protect Themselves from Potential Liability?

If you haven’t ridden one yet, it’s likely you’ve had one fly by you on the sidewalk. Electric scooters – or e-scooters – have quickly descended upon most major cities in America. These app-based scooters let a user ride across the city at up to 15 m.p.h. and then discard the scooter wherever the rider happens to disembark. While relatively new, injuries from riding these scooters are already fairly common, and the scooters also have even been involved in some fatal accidents already. With the use of e-scooters on the rise, an employer should be prepared for the potential legal problems they create.

The increasing popularity of these scooters indicates that some employees will, sooner or later, jump on an e-scooter during work hours. Thus, an employer should lose no time in doing the following:

  • Draft new language for the employee handbook relating to e-scooters;

  • Add e-scooters to an existing section of the handbook that regulates employee use of bikes, motorcycles, cars, or other company vehicles; and

  • Consider providing/mandating safety equipment if the business allows employees to ride e-scooters while on the job.

Although an employer should prepare, it’s worth noting that the law isn’t fully developed yet concerning the contours of employer liability relating to employee use of e-scooters. In New York, for example, an employer was held liable for fines that workers incurred when the workers were operating e-bikes on the employer’s behalf. Such liability could result from an employee’s failure to wear proper safety equipment, riding in an unauthorized manner or off-limits area or the city, or failing to obey traffic signals, among other things. In California, these could be costs or expenses attributable to and requiring reimbursement by the employer under Labor Code § 2802.

Beyond fines, an employer could be liable for injury that occurs when an employee is riding an e-scooter. For example, when an employee uses his/her own car during work hours to perform services for the employer, an employer may incur liability. The same could be applied to e-scooters. In general, if an employee uses an e-scooter to come to or from work, the employer generally would not be liable for injuries that occur (the “Going and Coming Rule”). However, if the employee uses the e-scooter during the workday to accomplish tasks for the employer or is on an errand for the employer while commuting to/from work, the employer may be held liable. Thus, the ubiquity of e-scooters may lead to more employees using them to run errands during work hours, which could in turn result in an uptick in employer liability.

E-scooters have already been the target of numerous legal battles, so we expect the law regulating e-scooters to continue to evolve. Employers would be wise to keep an eye on these developments.

Law clerk, Cole Lewis contributed to this post.

© 2018 Proskauer Rose LLP.

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About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm
Partner

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....

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