My business partner Deanna Stone wrote an excellent article back in 2008 about how the (then) new hands free cell phone law could expose employers to liability if a worker, on company business, caused an accident while in violation of the law. Now we get news that the National Transportation Safety Board wants a law passed that will ban any cell phone use while driving*, hands free or not. Ms. Stone's advice was good then and is good now. As she said:
Taking these simple precautions can reduce an employer’s potential liability for damages relating to employee violations of the new law:
(1) Draft and distribute a clear policy on the new law in employee handbooks, and have your employees sign an acknowledgment of receipt of the new policy or new handbook incorporating such policy.
(2) When issuing a cell phone to new employees, provide a copy of the new law, the company’s policy on such law, and again have the employee sign an acknowledgment of receipt of such material.
(3) Have a training class for all employees on the new law, the company’s new policy requiring employee compliance with said law when using the company cell phone or their own personal cell phone if used to conduct company business.
(4) Provide or post information on the new law and your new company policy in the office kitchen, break room or other public areas in your office.
(5) Inform employees that they company will not foot the cost for violations of the new law, and that they will be personally liable if they choose to violate the new law.
(6) Create a disciplinary policy for any employee who violates the new law, which ultimately can lead to the termination of the violating employee.
(7) If you employ minors, you should taken even greater precautions with such employees especially if their job duties include driving for work purposes. It is a great temptation to a teenager to simply text a friend while driving, and this is a violation of the new cell phone law.
Yes, it's crazy** that the Feds feel compelled to be so ridiculously paternal, and that we need to jump through these hoops as a result, but we're here to keep you off the path of liability.
* I happened to see a reported case from another state that interpreted a statute that made it illegal to text and drive. While stopped at a stop light, the defendant fired off a quick text message and got a traffic ticket for the dastardly deed. He took it all the way to the Court of Appeal, which agreed with the trial court that sitting at a stop light is still "driving".
** Why do I see this as crazy? Because we only need a law that makes it illegal to perform an act that distracts from driving. If you are reading a newspaper while driving, you deserve a ticket and we don't need a law that singles out newspaper reading. How is talking hands free while driving any more distracting than, say, singing along to "Freebird" (which necessitates a lot of head nodding and air guitar), yet we don't have a no Freebird law (yet).