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Why Employers Should Worry About the E-scooter Craze

HR Column
From time to time, we use our fictitious legal team at Sunderland Manufacturing to illustrate the challenges real in-house departments face. Previously, the Sunderland legal team lobbed a temporary restraining order against an employee’s former employer, dealt with the opioid crisis, and tamed communications for litigation.

S teve was having a marvelous day. The sun was shining, the sky was blue, and his tie was flying behind him as he careened down the sidewalk. The booming alternative-rock hit "Jungle" by X Ambassadors pounded in his ear buds. An early adopter in a city that had recently installed banks of app-based e-scooters, Steve breezed by sluggish pedestrians at the fastest speed he could go — 15 miles per hour. What a rush!

When he reached the busy intersection of Adams and Franklin Streets, he paused for the red light. Looking around, no car was close enough to matter. He could make it. He gunned it across the road. Music blaring in his ears, he didn’t hear the screeching tires and searing clang of metal.

Jordan Powers, general counsel of Sunderland Manufacturing, read the file in disbelief. One of Sunderland’s finest salesmen, Steven Craft, had been killed in a traffic collision on his way to visit a customer. He ran a red light on his e-scooter. To avoid him, an oncoming car veered, crashed into the adjacent car, and rolled over on to Craft.

The drivers of both cars are suing Sunderland because Craft had been on the job at the time of the accident. Furthermore, Craft’s widow is suing Sunderland for wrongful death and failing to equip the scooters with protective gear. The e-scooter company had no permit and no meaningful policies or safeguards. “I can’t believe this, this is too tragic to comprehend,” Jordan muttered.

The e-scooter craze

Electric scooters are proliferating across a growing number of countries. For example, one e-scooter company, Bird, has a significant presence in the United States and has expanded to Paris, Tel Aviv, and Vienna. Lime boasts a presence in numerous cities in countries including Australia, Germany, Mexico, and Switzerland. Anecdotal reports suggest a proliferation in more than 80 municipalities across the United States. Electric scooters are also rolling across college campuses, challenging the university establishments to find the balance between enthusiastic student adoption and safety.

In densely populated cities with too much traffic, high parking fees, and too few parking spots, cars can be an inefficient and expensive method to get around. By contrast, e-scooters are a relatively inexpensive and rapid way to travel, and they reduce carbon emissions. Their environmental-friendliness, neon colors, and low cost make them quite attractive to younger riders — precisely the demographic that enjoys risk and can be the most dangerous on roads and sidewalks.

Riders can “unlock” the often dock-less e-scooters using a cell phone application, ride across a city, and then park the vehicle wherever the rider disembarks.

How employers can protect themselves and employees

Anecdotal reports point to a rise in injuries related to the use of e-scooters. One Salt Lake City, Utah hospital estimated a 161 percent increase in emergency room visits related to e-scooter mishaps. On social media, the Instagram hashtag #ScootersBehavingBadly displays a variety of negative images, some of which may serve as cautionary tales.

Employers can prepare for increased adoption of e-scooters by taking steps to educate and protect themselves and their employees who may use these vehicles. Methods include:

  • Being familiar and complying with current legal and traffic regulations, which vary greatly. For example, the UK’s Highway Act 1835, which applies to horses, donkeys, sheep, mules, swine, and cattle, also prohibits the use of e-scooters on public property.
  • Monitoring the development of legislation in applicable jurisdictions;
  • Updating the employee handbook to address what the company considers to be permissible and impermissible use of e-scooters. If the company already has policies governing the use of company vehicles, motorcycles, and bikes, this might be a logical area to augment with an e-scooter policy;
  • Recommending or mandating safe practices when employees are riding e-scooters. For example, safety absolutes can include wearing helmets, following all applicable traffic laws, and prohibiting using a cell phone, eating, or multitasking while riding; and
  • Providing or requiring safety equipment such as a helmet if there is a high likelihood of widespread employee use.

Potential areas of employer liability

The law is still nascent in many jurisdictions regarding the full scope of employer liability for employee use of e-scooters. It is more likely that employer liability will develop in the context of employee use while on the job, rather than employee use to commute between work and home. Areas of potential liability might include:

  • Fines incurred by employees when using e-scooters on the employer’s business. Fault can encompass failure to wear proper protective gear, failure to obey traffic signals, failure to operate e-scooters in designated areas (e.g., sidewalks, roadways, private land, bike lanes), and failure to safely park the vehicle after use;
  • Personal injuries to the employee or third parties arising from the employee’s conduct on the e-scooter;
  • Property damage from accidents or misuse by the employee;
  • Claims related to company adoption, implicit sanctioning, or failure to warn of potentially defective e-scooters and various hazards; and
  • Tort claims and other civil litigation from pedestrians negatively impacted by employee use or misuse of e-scooters, including any negligent parking of the scooter to obstruct a sidewalk, alley, or other walkway.

E-scooters are as text messaging is to email — an add-on rather than a replacement to bikes, mopeds, Segways, and skateboards. Employers are well advised to evaluate the current and potential usage of these vehicles in their various company locations and respond accordingly.

About the Author

Spiwe L. JeffersonSpiwe L. Jefferson is general counsel of ChristLight Productions Ltd., LLC, Patron Fellow of the American Bar Foundation, and board secretary and legal advisor to The BrandLab. She is a member of the ACC employment and labor, law department management, and litigation networks.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.