You get a call. Your employee just rear-ended a minivan at a stoplight. The other driver has a neck injury. Lawyers are circling. You start sweating because you know deep down that if your employee was on the clock, the business could be on the hook for thousands. But what if your employee was driving home after a normal shift? That specific fact could save your company from liability entirely. There is a legal rule you need to understand called the going and coming rule. It is the most important exception to employer liability for employee car accidents.
The going and coming rule is simple. An employer is not responsible for an accident an employee causes while commuting to or from work. The commute is the employee’s own problem. The law treats that drive as outside the scope of employment. If your warehouse worker clocks out at five, gets in his personal car, and t-bones a sedan three blocks from the plant, you are not paying that sedan driver a dime. The accident happened during a period when the employee was not performing any job duty. You did not control the route. You did not control the timing. You did not control the driving. The employee was simply a person going home, and that person happened to work for you earlier.
The logic behind this rule is practical. Employers cannot reasonably supervise every mile their employees drive on personal time. If you had to insure every commute, insurance rates would be insane, and small businesses would fold after a single fender bender. The rule draws a clear line. Work time is your problem. Commute time is the employee’s problem.
But here is where it gets dangerous. The going and coming rule has exceptions that can put you back on the hook faster than you expect. You need to know these exceptions before you assume you are safe.
The first major exception is the special errand rule. If your employee is not just driving home but is running a specific errand for the business on the way, the commute becomes work. For example, you ask your employee to drop off a client file at a courthouse on the way home. That is a special errand. If the employee causes an accident while driving to the courthouse, you are liable. The errand made the driving part of the job. The same logic applies if you ask an employee to pick up office supplies, deliver a package to a customer, or stop at the bank for a company deposit. Any deviation from the normal commute for a business purpose makes you responsible.
The second exception is the dual purpose rule. This one is trickier. If an employee combines a personal trip with a business trip, and the business trip is a substantial part of the reason for the drive, you may be liable. For example, a salesperson lives in the suburbs and works in the city. Normally she takes the train. But on Tuesday she drives because she has a client meeting near her office. She hits a pedestrian in the parking garage. The drive was partly for her commute, but the client meeting was a business purpose. A court could find that the business purpose made the entire drive part of employment. You would pay for that pedestrian’s medical bills.
The third exception is the company vehicle exception. If your employee drives a vehicle owned, leased, or maintained by your business, the going and coming rule may not protect you. Many states hold that when an employee uses a company car, the commute itself becomes part of the job because the vehicle is a tool of employment. You control the car. You insured the car. You benefit from the car being on the road. If that company car causes an accident during a commute, you carry the liability. This exception is why many businesses have strict policies requiring employees to take personal vehicles to and from work unless they are on the clock.
The fourth exception is the mobile workplace exception. Some jobs have no fixed office. Construction workers, plumbers, electricians, and home health aides are good examples. Their work location changes every day or every week. The commute to the first job site of the day or the last job site of the day is often considered part of the workday. If a plumber hits a cyclist while driving from the supply house to the client’s house, that is clearly work. But what about driving from home to the first job site? Many courts treat that as a commute, not work. The rule gets fuzzy here, and the safest assumption is that the employer is exposed until the employee actually arrives at the fixed job location.
If you are an employer, you should never assume the going and coming rule protects you. The rule exists, but exceptions swallow it in many real-world scenarios. Every time you ask an employee to do anything during a commute, you are stepping into liability territory. Every time you hand over a company car, you are stepping into liability territory. Every time you hire a worker who drives to changing locations, you are in liability territory.
Your best protection is clear written policies. Tell employees in writing that they are not authorized to run business errands during their commute without prior approval. Require employees to use personal vehicles for commuting unless they are on paid travel time. Insure any company vehicles you own, and make sure your commercial auto policy covers employee commutes in those vehicles. Finally, consult an attorney who understands employment liability in your specific state because the going and coming rule varies from jurisdiction to jurisdiction.
An employee car accident can ruin a small business. The going and coming rule can save you, but only if you understand exactly where the line is drawn. And that line is never as clean as you think.
