In 2011, Nevada joined the growing number of states that prohibit the use of cell phones while driving, unless the driver uses a “hands-free” device, by passing Senate Bill 140. Beginning January 1, 2012, Nevada drivers can be ticketed for violating this law.
SB 140 prohibits drivers from typing, sending, or reading text messages, accessing or reading data on the Internet, or talking on a cellular telephone or other “wireless device” (i.e., a pager, personal data assistant, etc.), unless the device is used with an accessory that allows the driver to communicate without using his or her hands. The law does not provide any guidance as to what type of “hands-free” devices are permissible, but it is likely that anything from Bluetooth and wired earpieces to a phone’s speakerphone function would be acceptable.
Although the law does not address an employer’s obligations with regard to cell phone use, it is important that Nevada employers understand the impact this law likely will have on its workforce and be proactive in ensuring their employees comply with the law while on duty. This is particularly important for employers that issue company vehicles to employees and for employers that require employees to use their own vehicle for work-related activities. This could include employees who are required to make deliveries, who provide on-site services (e.g., plumbers, in-home medical care workers, IT technicians, etc.) or who are engaged in on-site sales.
Increased Employer Liability?
Although SB 140 does not require employers to adopt cell phone use policies or directly address the issue of employer liability for violations of the law by employees, it is possible that an employee’s violation of this law could lead to potential exposure for an employer.
In most instances, an employer can be held liable for the negligent conduct of an employee if such conduct occurred while the employee was performing duties related to his or her job. For example, an employer can be liable for damages caused by an employee’s car accident if the accident occurred while the employee was driving on company business. If the employee was involved in such a car accident while using a cell phone in violation of SB 140, a court very likely would presume that the employee was acting negligently. If a court further found that the employee was driving on business when he or she violated SB 140 and got into an accident or that the employee was not driving on business but was using his or her cell phone for a business-related purpose, the employer could potentially be held liable for any damages caused by the car accident.
What Should Employers Do?
1. Update Policy and Provide Training
One simple and cost-effective measure all employers should take is to update their policies to ensure they are in compliance with the “hands-free” law. Employers can do this in a number of different ways, including: 1) completely prohibiting employees from using a cell phone while driving on business or 2) adopting a policy that unambiguously requires employees to use a hands-free device if they must use a cell phone while driving on company business and when taking any business-related calls while driving. If an employer does adopt a policy allowing cell phone use with a hands-free device, it still may be wise for the employer to completely prohibit employees from using cell phones to write, send, or read emails and/or text messages while driving under all circumstances.
Additionally, employers should explain the new law and the company’s revised policies regarding cell phone use. Employees then should sign an acknowledgement indicating that the employee has been provided a copy of and understands the company’s cell phone use policy. These acknowledgements should be kept in the employees’ personnel files.
Updated cell phone use policies also should make it clear that the employee, and not the employer, will be responsible for any fines and penalties resulting from a ticket.
2. Provide (Or Reimburse For) “Hands-Free” Devices
Although employers can completely prohibit employees from using cell phones while driving on company business, in many cases this may not be preferable or even practical. This is especially true where a company provides cell phones to its employees and/or requires employees to be responsive to phone calls.
Under these circumstances, in addition to revising the company’s cell phone use policy, employers should strongly consider providing hands-free devices to those employees whose job duties include driving, as well as to those employees who are provided with company cell phones, who have their cell phone charges reimbursed by the company, or who are otherwise required to use their own cell phone for company business. Providing these devices will, of course, create an additional expense, but it likely will be money well spent.
Although revising cell phone use policies and providing hands-free devices to employees may not completely insulate an employer from liability, these steps will certainly go a long way towards demonstrating that the employer is doing everything it can to ensure that its employees understand and comply with the law. Furthermore, to the extent the employer can demonstrate that an employee was violating the company’s cell phone policy, this could be construed as evidence that the employee was not acting within the scope of his or her duties, potentially limiting the employer’s liability for any damages caused by or related to an employee’s improper use of a cell phone while driving.
