New “No-Texting-While-Driving” Law Impacts Employers: Will Cell Phone Use Be Next?
By: INGRID N. CULP
September 2008
As you have no doubt heard, it is now illegal in Minnesota for an individual to text message, e‑mail or access the Internet on a wireless device while driving. Specifically, Minnesota Statute § 169.475 makes it illegal to operate a motor vehicle while using a wireless communication device to compose, read, or send an electronic message, when the vehicle is in motion or a part of traffic.
According to the Minnesota Department of Public Safety, distraction while driving was a factor in at least 15 percent of all fatal crashes during 2005–2007, resulting in 240 deaths and 1,163 serious, life-altering injuries during this period. According to the National Highway Traffic Safety Administration, distraction is a factor in approximately 25 percent of all crashes.
The penalty imposed for violation of Minnesota’s “no-texting-while-driving” law is $300. Depending on the facts, however, an individual’s and his or her employer’s legal exposure can be much greater than this.
Does your company allow employees to text or e-mail while driving for business? Even if not expressly allowed, is this a common practice among employees? If yes, this practice must cease to come into compliance with Minnesota’s no-texting law. Minnesota employers should adopt and consistently enforce a written policy prohibiting violation of Minnesota’s no-texting law. Such a policy will put employees on notice that the company takes the new law seriously and requires compliance—and will give the employer greater latitude to discipline or terminate an employee who violates the policy. Additionally, such a policy could bolster an employer’s argument that an employee should be found ineligible for unemployment compensation benefits if terminated for violating the policy.
Perhaps most significantly, a policy that mirrors the prohibitions contained in the no-texting law could protect the employer from liability should an employee, while driving for company business, injure or kill someone as a result of conduct prohibited by the law. Generally speaking, Minnesota law requires employers to defend and indemnify an employee for civil damages, penalties, or fines asserted against the employee, provided the employee was acting in the scope of employment and was not guilty of intentional misconduct, willful neglect of their duties, or bad faith. A written and consistently enforced no-texting-while-driving policy would give the employer a stronger argument that any accident, injury, or death caused by an employee while texting was in violation of company policy and, therefore, occurred outside the scope of employment and amounted to misconduct, neglect, and/or bad faith. Additionally, apart from the employee’s personal liability, having and enforcing a policy may stave off an argument that the employer should also be held liable for the victim’s damages.
While Minnesota’s no-texting-while-driving law does not prohibit talking on a cell phone while driving, employers should also consider whether they could be held liable for an accident caused by an employee talking on a cell phone for business purposes, while driving for work, and/or while driving a company vehicle. In Virginia, a law firm was sued for $25 million after one of its attorneys killed a teenage girl while allegedly talking to a client on her cell phone while driving. The victim’s father sued the law firm because the attorney was conducting firm business on her cell phone at the time of the accident. A jury ordered the attorney to pay the family $2 million and the law firm settled for a confidential amount. In another case, a Florida jury ordered a company to pay nearly $21 million to a 78-year-old woman who was injured when one of its salesmen struck her vehicle while he was on his cell phone traveling between appointments. In Pennsylvania, Smith Barney paid $500,000 to settle a lawsuit brought by the family of a motorcyclist killed by one of its brokers who was talking on his cell phone for business purposes when the accident occurred. Some employers have even been sued for accidents caused by their employees on the employee’s personal time simply because the accident involved company-issued equipment such as a cell phone, a pager, or a PDA.
In response to these cases, some companies have adopted cell phone use policies prohibiting their employees from using a cell phone while driving for business purposes and while driving to and from work. Other companies allow cell phone use but give instructions on safe cell phone use such as requiring hands-free technology or that an employee pull out of traffic and stop the car before using the phone.
In light of Minnesota’s new no-texting law and the risk of liability associated with employee use of cell phones, pagers, and PDAs for business purposes while driving, employers should consider adopting written policies to address these issues. Employees should be required to acknowledge receipt of any policy in writing, and the employer should take steps to monitor compliance with and consistent enforcement of the policy. Employers may also wish to consider requiring employees to sign an agreement under which the employee indemnifies the employer if the policy is violated.
For assistance with employee policies including those discussed in this article, please contact Fredrikson & Byron’s Employment & Labor Law Group.
Takeaway
Minnesota employers should adopt a written policy consistent with Minnesota’s no-texting-while-driving law.