Generally, an employee who is “going to” or “coming from" his or her place of employment is not considered to be acting within the scope of employment.  Most jurisdictions apply this general rule that an employee who is driving his or her personal vehicle to and from their workplace is not within the scope of employment for the purpose of imposing vicarious liability on the employer.  The reason stems from the logic that it is essentially the employee's own job of getting to and from work.

However, New Jersey recognizes three exceptions to the general going and coming rule. In this regard, employers may be found vicariously liable for the actions of their employees under the doctrine of respondeat superior when: (1) the employee is engaged in a special errand or mission on the employer's behalf; (2) the employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work-related tasks; and (3) the employee is "on-call."  Carter v. Reynolds, 175 N.J. 402, 413-14 (2003).

The second exception to the going and coming rule, regarding “requiring” an employee to drive their personal vehicle, is of particular note in this modern era with a plethora of means of transportation. “Required” is not defined in this area either statutorily or through case law.  The case law has been ambiguous has to whether an employee is “required” to operate his personal vehicle in the scope of his employment, at that time and place.  In addition to equivocal actions by both the employer and employee as to whether an employee is “required” to operate his own personal vehicle are additional considerations in this modern.  For example, Uber, Lyft, and other ride-sharing services allow for individuals to be working one moment and not the next.  In that context, an employee may be utilizing his vehicle as a ride-share service contemporaneously when performing his employment as a non-ride share operator.

Whether an employee is “required” to operate his own personal vehicle for work has implications from both spectrums.  In today’s age, “require” seems to be a rather strong choice of word, given the multitude of scenarios that could unravel. Until there is any change, employers and employees should both be well aware of the many situations that could occur.  Should employers put in writing whether the employee is “required” to use his or her personal vehicle or not to travel to and from work?   Should employers give their employees cars so this does not become an issue? Is this practical?

Sure carpooling, buses, and trains have been around for decades.  However, more and more, employees utilize rideshare services such as Uber and Lyft to get to and from work.  The prevalence of these services and the clear trend towards using them calls in to question our Supreme Court’s use on the word “require” and its implications in today’s age. 

The law is complex in this area and you should be guided accordingly and made aware of the possible ramifications by your actions or lack thereof.  If you have questions or concerns about the going and coming rule and applicable exceptions that affect you, your employees, or your business contact, Joseph M. Marabondo at jmarabondo@hoaglandlongo.com or call 732-545-4717 today.