WORKPLACE LAW -
Driving Under the Influence of a Cell Phone
Question:
Our employees often drive to meet with clients during the work day. We do not currently have an official policy about using phones while driving, although we do supply company phones and headsets for employees who drive during work hours. Should we adopt a policy for cell phone use by our employees, since there is a new cell phone law that takes effect next month?
Answer:
Yes, it is a good idea to adopt a policy explaining your company’s rules about using cell phones while driving. Starting July 1, 2008, it will be illegal in California to drive while using a cell phone, unless the phone is specifically designed and configured for hands-free operation, and is used in that manner. Also as of July 1, teens under age 18 can't drive while using a cell phone—even using a hands-free device. Drivers under 18 also can't drive while using any other mobile service device, such as a pager, laptop with mobile data access, or a handheld device like an iPod Touch, iPhone, or Blackberry. However, emergency phone calls are permitted, and drivers of buses and certain commercial and farm vehicles with “push to talk” radios are allowed to use those devices while driving.
Because violations of the new law will result in a modest $20 fine for the first offense, and $50 for subsequent offenses, it may be tempting for employers and the public in general to not take the law seriously. However, because of potential liability and safety issues, employers should not take this new law lightly.
Employers should consider taking safety a step further than the law strictly requires by prohibiting employees from using their cell phones for business or personal reasons while driving, whether they're using a hands-free device or not. Research and case law demonstrate that engaging in phone conversations while driving can distract drivers, leading to tragic accidents. And, if the call that caused the distraction occurred while the employee was working, an injured third party could sue the employer and the employee.
One study conducted by researchers at the University of Utah found that hands-free cell phones are just as distracting as handheld cell phones because it is the conversation itself, not just manipulation of a handheld phone, that distracts drivers from paying attention to road conditions. These researchers also found that people are as impaired when they drive and talk on a cell phone as they are when they drive while intoxicated. The Insurance Institute for Highway Safety recently found that accidents are four times more likely to occur for drivers using cell phones. Employers cannot ignore these studies or the new law because under the legal theory of vicarious liability, an employer may be responsible for harm caused by employees acting in the course and scope of their employment. Therefore, if an employee is using a cell phone illegally or irresponsibly during work time, and is involved in an accident, the employer may be liable.
A number of recent lawsuits have shown that employers may be liable for damages if an accident is related to employee cell phone use. For instance, Smith Barney settled a claim for $500,000 when one of its stockbrokers killed a motorcyclist while making “cold calls” on his way to a non-business-related dinner. Also, in Georgia, International Paper recently settled a case for $5.2 million after one of its employees was seen using her company-supplied cell phone shortly before she rear-ended another vehicle. Because Georgia has a cell phone law prohibiting distracting cell phone use, the opposing party argued that International Paper was vicariously liable for the driver’s intentional and negligent conduct, and that punitive damages should be imposed due to the employee’s violation of the law when she was speeding and using her cell phone while working. California’s new cell phone law could impose additional liability on employers in the same way if an employee is violating the cell phone law and is involved in an accident.
Employers’ personnel policies should, at a bare minimum, require employees to abide by the new law while conducting company business or using company-provided phones. Employers may decide to adopt a policy requiring employees to pull off the road to make or accept a call. Another option is to follow the example of Exxon Mobil and entirely prohibit cell phone use while driving on company time. Whichever policy is adopted, employers should explain the policy to employees and require employees to sign an acknowledgment stating that they understand and agree to comply with the policy. The cell phone policy should also make it clear that violation of the policy will subject employees to discipline.
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