Distracted Driving

Date: September 14th, 2012 by Laura C. Hess No Comments

Distracted driving is a concern for employers whose workers spend time driving on the job, either in a personal vehicle or a company-provided vehicle. Employers can generally be held liable for an employee’s negligence while acting within the scope of his or her employment duties or for the employer’s benefit. For example, if the employer instructed the employee to stop by the store to pick up some office supplies on his way to work, and the employee caused an accident while driving to the store, the employer could be held liable.

Many accidents are caused each year by drivers who are distracted by their cell phones. Employers are increasingly being sued and found liable when an employee causes a crash while making work-related phone calls, emails, or texts.

In California, it is illegal to use a cell phone while driving, unless the driver uses a hands-free device while speaking on the phone. It is also illegal in California to text while driving.

California’s Legislature passed the “Freedom to Communicate” act (AB 1536) earlier this year. The bill allows hands-free texting if the driver uses a specifically designed, voice operated device to dictate, send or listen to text-based communications. The legislation will take effect on January 1, 2013. The question is whether smart phones with a voice-activation feature such as Siri would be legal to use. Generally speaking, it will not be legal to hold a phone and speak into it to send or listen to a text message. Rather, a motorist must use a hands-free device, such as a headset or an earpiece, or an in-dash system like OnStar, to send or listen to text messages.

If some of your employees drive for work-related purposes as part of their job, your employee handbook should contain policies covering employee behavior while driving. The written policy should prohibit using cell phones for any purpose while driving, unless the employee is using a hands-free device. You may even want to prohibit use of hands-free devices. Although using hands-free devices is not against the law, it can still lead to distracted driving and employer liability.

Laura C. Hess is a Partner with Kring & Chung, LLP’s Irvine, CA office. She can be contacted at (949) 261-7700 or lhess@kringandchung.com.

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