WORKPLACE LAW -
Employees Texting While Driving
Question:
I recently learned that several of my employees are texting when they are driving while on the job. I learned of this when one of my other employees in the office told me that he had just received a text from a co-worker that she was driving back to the office after running a work-related errand for me. What are my responsibilities as an employer?
Answer:
You raise a very serious issue. According to the U.S. Department of Transportation, last year more than 5,400 people died in automobile accidents linked to distractions, and texting is one of the more well-known distractions. Based on National Highway Traffic Safety Administration data, the risk of a crash or near-crash is 23 times higher when the driver is sending text messages. To address this hazard, the federal and state legislatures have formulated laws, and now the Occupational Safety and Health Administration (“OSHA”) is addressing the issue as well.
Effective July 1, 2008, the California Vehicle Code provides that drivers are prohibited from using a handheld wireless telephone while operating a motor vehicle, although drivers over the age of 18 can use a hands-free device. Furthermore, effective that same date, the Vehicle Code provides that drivers under the age of 18 cannot use a wireless telephone or even a hands-free device while operating a motor vehicle. On January 1, 2009, the Wireless Communications Device Law went into effect, which is more specific to the issue of texting. According to that law, also contained within the Vehicle Code, it is an infraction to write, send, or read text-based communication on an electronic wireless communications device, like a cell phone, while driving a motor vehicle. Violation of these Vehicle Code sections by your employees can subject them to fines ranging from $20 to $50.
In 2010, the federal government addressed this issue more narrowly. Effective January 2010, the Federal Motor Carrier Safety Administration implemented regulatory guidance that prohibits commercial vehicle drivers from texting while driving. This law applies to truckers and bus drivers and, therefore, may not apply to your employees.
Now OSHA is addressing the issue from the standpoint of safety in the workplace. The Occupational Safety and Health Act provides that employers have a general duty to provide a workplace free of serious recognized hazards. Similarly, the California Labor Code provides that every employer shall furnish employment and a place of employment that is safe and healthful for employees.
On October 4, 2010, the Assistant Secretary of Labor for OSHA issued an open letter to employers about work-related distracted driving. The letter states that employers have a responsibility and a legal obligation to have a clear, unequivocal and enforced policy against the hazard of texting while driving. The letter further states that employers violate the Occupational Safety and Health Act “if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job.”
Employers already had a duty to provide a safe workplace, but with this OSHA letter, employers are now on notice that they must have a policy in place that prohibits texting. If an employee can show either that the employer required the employee to text while driving or that the employer failed to enforce its policy prohibiting texting while driving, the employer has violated the Occupational Health and Safety Act.
Given the new laws regarding texting while driving, it is essential for employers to have effective policies and practices in place that prohibit employees from texting while driving and impose disciplinary action if an employee engages in such conduct. Employee handbooks should include a policy that prohibits texting. Employers can also issue and post a memorandum to employees regarding texting and they can meet with employees to discuss the texting policy and encourage employees to notify management if they become aware of violations of the texting policy.
- - - - - - - - - - - - - - - - - - - - - - - - - -
Back to Menu- Work Place Law 2010 Articles