First Wednesday — A
Monthly Discussion of Employment Law Issues and Other Hot Topics for Management
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By Jeffrey A. Snyder - Issue No. 62: June 4,
2008 Jeff is a Shareholder of
Thoits, Love, Hershberger & McLean, specializing in
employment law and related litigation.
He can be reached at
(650) 327-4200 or |
Look
Boss, No Hands!
The
new cell phone laws are here. Beginning
July 1, 2008,
Another
exception applies to drivers operating a commercial motor truck or truck
tractor (excluding pickups), certain agricultural vehicles, a tow truck or other
commercial vehicle, when using a two-way radio operated by a “push-to-talk”
feature. The push-to-talk feature must
be attached to a hands-free earpiece or other hands-free device. Also, drivers of authorized emergency vehicles
are exempt during the course of employment, as are people driving on
There
is no further grace period. These laws
were passed in 2006 as part of the California Wireless Telephone Automobile
Safety Act. Drivers can be stopped and
cited beginning July 1, 2008 (Vehicle Code §§23123 and 23124).
For
drivers under the age of 18, they may not use a cell phone, pager,
laptop, Blackberry or any other type of wireless device to speak or text while
driving, even if equipped with hands-free devices. Again, the only exception is in emergencies, to
call police, fire or medical authorities.
Why
Should Employers Care?
Employers
should take notice of the new laws based on the large number of drivers who use
a cell phone while driving, combined with increasing safety and risk issues. A 2007 study by Nationwide Insurance found
that 73% of 1,200 drivers said they talk on the cell while driving. Other studies show that cell phone talkers
are at least as dangerous as intoxicated drivers.
Undoubtedly,
many of these drivers are talking while on the job, or using a company car, or
company-owned cell phone, any of which can subject the employer to the payment
of fines and civil liabilities. If the
job requires that the employee drive and talk, or if there is an expectation of
keeping in touch at all times, the employee might seek company reimbursement of
his fines. Thus, at a minimum, companies
should revise their handbook policies to require compliance with these new
laws, including mandatory use of hands-free devices, and possibly provide those
devices. Employees should then be
educated about the new laws and any new company policies.
Employer’s
Civil Liability
Many
employers are taking this very seriously because of safety concerns and large
settlements in injury cases where it is argued that the employer is liable
because its driver was acting within the scope and course of employment. The issue is typically framed as: “whether
the risk of a company employee driving and talking on the cell phone conducting
company business (or using a company phone) and getting into an accident was a
risk that may be fairly regarded as typical of or broadly incidental to the
company’s business.” A thorough
discussion of this so-called “respondeat superior” liability is found in the
recent California appellate court case of Miller
v. American Greetings Corp., 74 Cal.Rptr.3d at 776 (2008), in which
Ms. Miller suffered severe injuries after being hit by an American
Greetings employee with his pickup truck.
The Court found for American Greetings as it could not be proven that he
was actually on the phone when he hit Ms. Miller. The link between the phone use and the
accident fell into a “gray zone,” as described by the Court:
“Appellants have no evidence Magdaleno [the driver] was on the phone
when he hit Miller. They instead have
evidence he called his crew chief eight or nine minutes before the accident and
spoke for less than a minute. We envision the link between respondeat
superior and most work-related cell phone calls while driving as falling along
a continuum. Sometimes the link between
the job and the accident will be clear, as when an employee is on the phone for
work at the moment of the accident.
Oftentimes, the link will fall into a gray zone, as when an employee
devotes some portion of his time and attention to work calls during the car
trip so that the journey cannot be fairly called entirely personal. But sometimes, as here, the link is de minimis
– one call of less than one minute 8 or 9 minutes before an accident while
traveling on a personal errand of several miles’ duration heading neither to
nor from a work site. When that happens,
we find no respondeat superior as a matter of law.”
This
holding should prove to be very influential precedent in future cases. While the Court held in favor the employer,
it recognized that the law involving “mobile” offices inside an employee’s car
is “unsettled.”
Of
the notable cases to date regarding this subject matter, one involving
International Paper Company settled for $5.2 million due to the employee’s use
of a company-supplied cell phone while driving.
The exact timing and purpose of the call were not proven. The driver rear-ended a vehicle driven by the
victim, pushing her into a ditch, where it overturned and caused a widowed
mother of four to have her arm amputated almost up to the shoulder. Another case, involving an attorney at a
large law firm in
In
summary, this issue has become important due to the passage of the new laws and
increasing tort liability for distracted cell phone users and “deep-pocketed”
related parties, including their employers.
Employers can best minimize the risks in connection with cell phone use
while driving by adopting and enforcing policies prohibiting all use of cell
phones and PDAs while driving on company business or company time, or using
company-issued phones. If the employee’s
job requires that he use the cell phone for business, then he must use a
hands-free device (possibly supplied by the company) or better yet, should pull
off the road before using the phone.
(© 2008 Thoits, Love, Hershberger & McLean)
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