Wednesday, February 24, 2010

Employers, text this message to your employees: ST&D (stop texting and drive)

Doing other things while driving an automobile is nothing new. From putting on make-up, to using an electric shaver to get rid of that five o’clock shadow, we have all witnessed the dangerous acts that others do while trying to drive at the same time. Yet, these days, a more common picture is of someone driving with one hand on the steering wheel and the other hand holding a mobile device, not to talk, but to text. This has become a real danger, not only for the driver-texter, but for others on the roads, sidewalks, etc.

This growing problem was realized by President Obama, who issued an Executive Order on October 1, 2009, which directed federal employees not to engage in text-messaging while driving government-owned vehicles, when using electronic equipment supplied by the government or while driving privately owned vehicles when they are on official government business. The order also encourages federal contractors and others doing business with the government to adopt and enforce their own policies banning texting while driving on the job. Federal employees were required to comply with the ban starting December 30, 2009.

More recently, and in an effort to curb this practice on a state wide level, the National Highway Traffic Safety Administration, along with some safety and industry organization, prepared a sample state law, which is to be used as an aid by state legislators in putting together laws to ban texting while operating an automobile. "Our top priority is safety and we are determined to help the states eradicate the dangerous practice of texting while driving," said David Strickland, Administrator for the National Highway Traffic Safety Administration.

While these laws will serve to ban texting by all drivers, employers and employees need to take immediate notice of these changes. Today’s employees are “wired into” their jobs at all times, and are often expected to answer text messages, and even e-mails, at a moment’s notice. The fact is, employers are not spending millions of dollars a year on corporate Blackberry and iPhone accounts so their employees can download the newest “app” that lets them use their phones like “light sabers,” right? Of course not, employers get these phones so employees are accessible anytime and anywhere. And the employee, especially in this economy, can ill-afford to wait to get into the office to respond to that urgent text, right?

Therein lies the problem, and it is one that employers and employees both face. And it’s not just those employees wearing suits either. These devices are used by drivers of delivery trucks, school personnel, laborers, etc. They are utilized by every type of business, and in every type of work setting, and so the changing landscape of laws regarding texting while driving needs to be taken seriously, especially by employers. The fact is, many lawyers can probably see a whole new area of legal troubles stemming from driving and texting, or driving and e-mailing.

It isn’t just the state fines that employers need to pay close attention to; employers need to be mindful of the old Latin legal term, respondeat superior, which essentially can make an employer liable for the actions of an employee when those actions take place within the scope of employment. If litigation has already started from accidents by employees while driving and texting, it is not a stretch to think they are not right around the corner. The simple truth is, an employee who, in responding to an urgent text from his or her employer in the middle of rush hour, then slams into another vehicle, may subject his or her employer to a lot more than a state fine.

Which is why employers need to revisit their policies with regard to the use of these devices by employees, and explain not only the proper use of the devices, but also the corporate policy forbidding its use while operating a motorized vehicle. Otherwise, a failure to do so may subject employers and employees to costs that far outweigh any improper overages incurred on an employee’s mobile device bill.

---Currently, nineteen states (Alaska, Arkansas, California, Colorado, Connecticut, Illinois, Louisiana, Maryland, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Oregon, Rhode Island, Tennessee, Utah, Virginia and Washington) and the District of Columbia have texting laws covering all drivers. A ban on the use of hand-held devices while driving has been enacted in California, Connecticut, District of Columbia, New Jersey, New York, Oregon, Washington and the Virgin Islands. In 2009, more than 200 distracted driving bills were considered by state legislatures and legislative activity is expected to remain strong in 2010.


Watch Secretary LaHood answer questions about the Distracted Driving Summit, Sept. 30 and October 1, 2009.

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