California's Motorist Texting Law Takes Effect Thursday
California's status as a bellwether state for employment law is in the spotlight again as a new state law takes effect Jan. 1 prohibiting motorists from writing, sending, or receiving text messages or emails while driving. The law is a follow-up to the California law that took effect last July and says cell phones used while driving must be hands free, and it may be copied by other states, said Chris Boman, a partner in the Irvine, Calif., office of employment law firm Fisher & Phillips LLP.
Boman said this new law wasn't sparked by the Sept. 12, 2008, Chatsworth, Calif., crash of a Metrolink commuter train whose driver was texting seconds before the impact, which killed him and 24 others. "I don't think it's driven by that, but I think it may have solidified it. I think it just puts an exclamation point on the merits of the law,' Boman said during a Dec. 22 interview.
Boman said employers in California should write specific bans on texting-while-driving into their cell phone employment policies and should write and implement such policies if they lack them. "The law is not directed at employers," he said. "Is it unfair to employers? No. They need to take a proactive stance and try to comply with this law."
Implementing a no-texting-while-driving policy does not rule out an employer's being held liable after a ticket or accident, but it will help, Boman said. An employee who is ticketed may claim he or she was texting at the employer's direction – either answering the boss's text or replying to a client's text, for example – but having the written policy then allows the employer to claim the employee was intentionally violating its policy, which means the employer is exempt from liability under California Labor Code Section 2802, which says this: "a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful. (b) All awards made by a court or by the Division of Labor Standards Enforcement for reimbursement of necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or loss. (c) For purposes of this section, the term 'necessary expenditures or losses' shall include all reasonable costs, including, but not limited to, attorney's fees incurred by the employee enforcing the rights granted by this section."
Sample No-Texting Policy
Boman provided this sample policy that his law firm offers:
Cellular Phones, PDAs, And Other Handheld Electronic Devices
While at work, employees are expected to exercise the same discretion in using personal cellular phones, PDAs, and other handheld electronic devices as is expected for the use of all Company devices and equipment. In the remainder of this policy, these devices are collectively referred to as “handheld devices”. Excessive use of these handheld devices during the workday can interfere with employee productivity and be distracting to others. A reasonable standard is to limit personal calls, and personal text messaging, instant messaging, emailing and other means of electronic communications during work time to no more than one per day as needed. Employees are, therefore, asked to use these handheld devices for personal use outside of working hours, and to ensure that friends and family members are aware of the Company's policy. Flexibility will be provided in circumstances demanding immediate attention. The Company will not be liable for the loss of handheld devices brought into the workplace.
- Personal Use of Company-Provided Handheld Devices
Where job or business needs demand immediate access to an employee, the Company may issue a business-owned handheld device to an employee for work-related communications. These handheld devices should be used in accordance with this policy and the Company’s Electronic Communications policy. The Company reserves the right to deduct from an employee paycheck any charges incurred for an employee’s personal or unauthorized use of the handheld devices.
- Recording Devices
To maintain the security of our premises and systems, and the privacy of our employees and customers, the Company prohibits unauthorized photography, and audio or video recording of its employees, confidential documents, or customers. This prohibition includes the use of cell phones equipped with cameras and audio and video recording capabilities. Employees may not use a cell phone, camera phone, PDA or any other handheld device in a manner that violates our No Harassment Policy, Equal Employment Opportunity Policy, or other Company policies. Employees may not use a cell phone, camera phone, PDA or any other handheld device in any way that may be seen as insulting, disruptive, obscene, offensive, or harmful to morale. Employees are strictly prohibited from taking any photographs or videos using any handheld device on Company premises. Employees who violate this policy are subject to discipline, up to and including immediate termination of employment.
- Safety Issues for Handheld Devices
Employees are expected to refrain from using their handheld devices while driving in connection with their job duties. Safety must come before all other concerns. Regardless of the circumstances, including slow or stopped traffic, employees are strongly encouraged to pull over to the side of the road and safely stop the vehicle before using any handheld device. Under no circumstances are employees allowed to place themselves or anyone else at risk to fulfill business needs. If an employee needs to make a phone call while driving, the employee must use a hands-free device. However, under no circumstances may an employee use any electronic wireless communications device to write, send, or read any text-based communication, including text messages, instant messages, and/or email messages.
Employees who are charged with traffic violations resulting from the use of their handheld devices while driving will be solely responsible for all liabilities that result from such actions. Employees who violate this policy will be subject to disciplinary action, up to and including termination.
- Special Responsibilities for Managerial Staff
As with any policy, management employees are expected to serve as role models for proper compliance with the provisions above and are encouraged to regularly remind employees of their responsibilities in complying with this policy.