Clear line on cell phone policies
By Kelly McCarthy-Sutherland
What should companies do to get ready for the July 1, 2008
effective date of the California Wireless Telephone Automobile
Safety Act of 2006?
Clear line on cell phone policies
By Kelly McCarthy-Sutherland
What should companies do to get ready for the July 1, 2008 effective date of the California Wireless Telephone Automobile Safety Act of 2006?
Cell phones have made it possible to be on the road and on the clock at the same time. But this increased productivity comes at some cost. Recent studies have shown that using cell phones while driving is dangerous. Given the dangers and the potential liability employers can have, companies should adopt strong policies curtailing employee cell phone use while driving.
The dangers of using a cell phone while driving
In January 2007, Nationwide Mutual Insurance Company released a study that found that 73% of the 1,200 drivers surveyed said they drive while talking on the telephone. Some studies estimate that ten percent of all drivers on the road are using their cell phones at any given time.
An Oregon State University study found that having to switch between tasks slowed down the reaction time for each task. They concluded that talking on cell phones while driving slows down drivers’ reaction times. As their study explains, their reflexes are slower because it takes time to switch mentally between the tasks of talking on the phone and responding to the conditions on the road. Interestingly enough they concluded that listening to the radio while driving does not slow down response time because the driver does not need to respond to the radio. Even more interesting, they concluded that talking to other passengers in the car did not interfere with reaction times, possibly because the passengers in the car become quiet when they recognize dangerous driving conditions.
University of Utah researchers had participants in their study do simulated drives under different conditions. The participants “drove” under four different conditions: while undistracted, while using a handheld cell phone, while using a hands-free cell phone and while intoxicated to the 0.08 percent blood-alcohol level. The study found that it made no difference whether the participants were using a hands-free cell phone or a handheld cell phone. The study concluded that the participants using any cell phone drove as badly as the participants who were drunk.
Potential liabilities for employers
Employers are generally liable for damages caused by their employees in the course and scope of their employment. It is in the employer’s best interest to have a strong policy encouraging their employees to drive safely while performing work for the employer. When an employee is conducting business through their cell phone on their drive home, any accidents they have while doing so could expose the employer to liability as an additional defendant in any lawsuit brought by the employee’s victim. Plaintiffs’ attorneys like to add additional potential deep pockets to their lawsuits, and juries are much more sympathetic to hurt individuals than they are to companies that require their employees to endanger themselves and others by conducting business while driving.
Employers are also generally liable for injuries suffered by their employees as a result of their employment. These injuries are covered by workers’ compensation. If an employee is injured in a traffic accident while conducting business on their cell phone, they might make a workers’ compensation claim for those injuries.
These personal injury actions and workers’ compensation claims could occur whether the employee is driving a company car or their own car. The most important factor here is whether the employee was conducting business over the cell phone for the employer at the time of the accident.
For employees who are not exempt from overtime, employers need to be concerned about overtime hours. Non-exempt employees should not be performing work beyond their scheduled 8 hours per day. Employers should not allow them to conduct business over the telephone on their way home or they will need to compensate that time at overtime rates. If an employee feels pressured not to claim this time and therefore does not claim this time, the employee may go to the Labor Commissioner at some point and make a very large claim against the employer for unpaid overtime and waiting time penalties.
The California wireless telephone automobile safety act of 2006
On July 1, 2008, the California Wireless Telephone Automobile Safety Act of 2006 goes into effect. It prohibits the use of handheld cell phones while driving. Even though the studies found the hands-free cell phones to be no safer, drivers will still be allowed to use them. Violators of this new law will have to pay $20 for the first offense and $50 for each subsequent offense.
Employer policies
In order to ensure that their employees are complying with this new law and are driving safely, employers should adopt strong policies prohibiting their employees from using handheld cell phones while driving. Employers should also include in those policies language which strictly curtails the use of hands-free cell phones while their employees are driving. If possible, employers should consider prohibiting their employees from using cell phones of any kind while driving. If that is not possible, employers should consider adopting policies that allow employees to use hands-free cell phones only when it is safe to do so and to pull over and stop as soon as possible. Employers then need to include adherence to this policy in their evaluations of their employees, and employers will need to discipline employees who fail to adhere to this policy. Employers should seek guidance from legal counsel as to how to tailor an appropriate policy for their business.
This column is the work product of Lombardo & Gilles, LLP, which has offices in Hollister and Salinas. Mail your questions to Jeff Gilles, It’s the Law, c/o The Pinnacle, 380 San Benito St., Hollister, CA 95023 or contact Jeff at 888-757-2444 or je**@lo****.com.
