I remember vividly the first time I walked into a hotel room to find a phone in the bathroom—that’s right, a phone—installed in ridiculous proximity to the toilet. My initial reaction was that there are some places mankind just shouldn’t be connected to technology.1 But it was that same hotel visit when I decided connectivity, even in the bathroom, was not such a bad thing; for when the phone rang when I was in the shower, I would have been unable to answer that ever-important call from a client whom I was in town to meet.2 Now this was clearly before the days of cellular telephones and connectivity ad nauseum.
With the advent of cellular telephones, the necessity for bathroom telephones (just like highway call boxes, pay telephones and, for some of us, home telephones) suffered the same fate as the dinosaur. As a result, you can’t only be interrupted during a movie, while taking a shower, while on vacation or while at an expensive, intimate restaurant—you can also be interrupted while driving a motor vehicle.
Now, this isn’t news to any of us. A leisurely cruise of the 101 corridor during rush hour traffic is a very quick indicator that many of us are wildly distracted while operating that four-wheel instrument of death on a busy highway. We yap our merry heads off, completely oblivious to the lives and safety of others. It’s become such a standard phenomenon that state legislatures across the country have decided to regulate—indeed, prohibit—driving while yapping.3
California joined many of its sister states in this prohibition. Effective July 1, 2008, it will be unlawful to drive while talking on a cellular telephone, unless the talking is being done over a headset or hands-free speaker phone.4
Employers beware
This law regulating the behavior of drivers could ultimately impact the operations and liabilities of employers. Employers around the country have recently been sued for injuries caused while their employees who were driving and using their cellular telephone for the performance of work. Employers could also be liable for accidents caused by employees who were driving in the course and scope of their employment, but who were yapping on the telephone, even about personal pursuits. So if your employee is driving on your behalf while yapping with her boyfriend on the telephone, your organization could potentially be liable, because they were acting in the course and scope of their employment while driving the automobile.
This was true long before the existence of California’s hands-free-talking-while-driving law. That law may now raise the stakes, because it sets a standard of conduct while driving vehicles, the violation of which (if it results in injury) could be seen as what’s known as “negligence per se.” Couple that with a lack of policy or training regarding the inappropriateness of such conduct, and one could argue that you either ratified or willfully ignored otherwise unlawful conduct of an employee.
Putting the brakes on employees
One very simple step for employers to take is to ensure they have appropriate policies regulating employees who drive while performing company duties. These policies should not only include obeying all traffic laws, wearing seatbelts and refraining from distracted driving, but should specifically address this new California law. For some employers, it may make sense to take these prohibitions a step further and simply prohibit employees from talking on the phone (with or without a hands-free device) while driving. This latter recommendation is probably more fitting if your employees drive with large or hazardous loads or drive in severe weather conditions on a regular basis.
But as with almost any employer policy, simply having a policy is not a bullet-proof vest. For that vest to protect you, it needs to be worn. In an employer/employee sense, wearing the vest means training employees about the policy and disciplining those who disobey it. It also requires leading by example. Those policies tend to fall by the wayside when supervisors and foremen violate them by calling employees while they’re driving or using the phone in front of employees while in transit.
As the July 1, 2008, implementation date approaches, you can do your small part to ensure our roads—and your organization—are a little bit safer.5
1 I also remember thinking how awkward it would be if the caller who reached me in my hotel bathroom asked me “Where are you?”
2 Actually, I can’t remember if it were a client or a woman I was dating at the time. But given my past track record with dating, I’m pretty certain I wouldn’t have interrupted a perfectly good shower to answer a call from someone I was dating.
3 Well, actually, not all yapping. If they can ever regulate the yapping of passengers (with or without cell phones), now that will be an accomplishment.
4 There are some exceptions, including for drivers of certain agricultural or commercial vehicles, as well as emergency personnel, or for the purposes of dialing 911. The law does not, however, prohibit sending text messages or dialing while driving. Apparently these aren’t sufficiently distracting activities. Whoever wrote this law apparently has bigger buttons on his or her cell phone than I do.
5 The California Highway Patrol has published a “FAQ” sheet relating to the implementation of this new law. You can find it FAQ sheet at www.chp.ca.gov/pdf/media/cell_phone_faq.pdf.
This column is not intended as legal advice, nor is it intended to form an attorney-client relationship with the author. You should consult your own counsel for the purposes of receiving legal advice regarding any of the issues raised in this column.
