Why Your Employee Handbook Needs to Address Cell Phone Laws

Photo by istockphoto.com
Photo by istockphoto.com

By Anthony B. Golden

Nevada has now joined the ranks of several other states that limit cell phone usage while driving.

The new law, effective October 1, 2011, but not to be enforced until January 1, 2012, generally makes it unlawful to talk or text on a cell phone while driving without the use of a hands-free device. Here are the details:

What the law does

The new law makes it unlawful to type or read text messages, emails, or instant messages while driving a vehicle. It also makes it unlawful to make or receive phone calls while driving unless the individual uses a hands-free device. There appears to be an exception for entering in someone’s phone number to initiate the call, but the law’s language is not entirely clear, and there will likely be some disagreement over how it is enforced.

There are also exceptions to cover emergency situations and for police officers, firefighters, and ambulance drivers. Also, for those who have cars from the future, there is an exception “if the motor vehicle is driven autonomously through the use of artificial-intelligence software.”

Timing

The law is effective October 1, 2011, but no citations will be given for violating the law until January 1, 2012. For a violation between October 1 and January 1, the police are only supposed to give a warning.

Note, however, that – as with any other traffic stop – being pulled over for violating the new cell phone law, even during the non-ticketing phase, could lead to being ticketed for other violations.

Advice for employers

When an employee is driving as part of the job and causes an accident, there is always the potential for employer liability. If the injured party can prove that the employee was negligent, and was acting within the course and scope of employment, the employer will be vicariously liable for the injury.

This has always been the case, new law or not.

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But, if the employee violates a statute when injuring someone, then proof of negligence is virtually automatic. For example, before the new cell phone law, an injured party still had to prove the employee was acting negligently by texting on their cell phone while driving.

The new law makes proving negligence easier because the employee violated the statute (unless one of the exceptions apply). Therefore, after October 1, if an employee is texting while driving and injures someone, liability is very likely.

The best way to protect your company is to make sure that your employee handbook includes a policy specifically prohibiting employees from doing the things covered by the new law. This will not only help cut down on accidents, it can also provide a defense in the event of a lawsuit.

A company might argue that the employee was not acting within the course and scope of employment because the employer’s policy prohibits that activity. That could help avoid vicarious liability.

This was originally published on Fisher & Phillips’ Legal AlertsThis Legal Alert is intended to provide an overview of an important new law. It is not intended to be, nor should it be construed as, legal advice for any particular fact situation.

Anthony Golden is an associate in the Las Vegas office of the law firm Fisher & Phillips. His practice focuses on representing private and public employers in labor and employment matters, including employment-related litigation under Title VII, the ADEA, the ADA, and Section 1983. He also advises employers on preventive measures and has experience in the development and defense of employment contracts and non-compete agreements.

Contact him at agolden@laborlawyers.com.

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