July 25, 2018
Authored by: Marilyn Fish and Alison Loy
As of July 1, 2018, Georgia is now one of 16 states that have banned the use of a hand-held cell phone while driving. Under the new Hands-Free Georgia Act (House Bill 673), drivers in Georgia may not:
- Physically hold or support a wireless communication device or stand-alone electronic device with any part of the body;
- Write, send, or read any text based communications on such devices;
- Watch a video or movie on such devices; or
- Record or broadcast a video on such devices.
The Hands-Free Georgia Act does allow drivers to use a single button on a wireless device to make a voice phone call. Under the new law, drivers may also use a wireless device for voice-to-text communications and for navigation purposes. Drivers may use a wireless device in a lawfully parked vehicle, but not while the vehicle is at a stop light or in stopped traffic.
Violations of the Hand-Free Georgia Act carry a fine of up to $50 for a first conviction, $100 for a second conviction, and $150 for a third conviction. First-time offenders can avoid a fine by appearing in court with a device or receipt for a device that allows for hand-free calls.
Similar hands-free laws have also been enacted in California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, and West Virginia, as well as the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.
With the growing use of electronic devices, distracted driving has become a serious safety concern. According to the National Highway Traffic Safety Administration, in 2016, distracted driving caused 3,450 deaths. In 2015, distracted driving resulted in 391,000 injuries. Under the doctrine of respondeat superior, employers can be held liable for accidents caused by employees, if the employee was acting within the scope of his or her employment when the accident occurred. Employers can be subject to increased liability if an employee causes an accident while using a cell phone, particularly in a state that has adopted a hands-free law. A number of lawsuits involving distracted driving by employees have resulted in significant jury awards against employers. To mitigate liability risk, employers should have a clear, well-communicated policy addressing the use of cell phones while driving.
Even absent any state law, a number of large employers have taken a conservative approach and adopted policies banning the use of all cell phones and other electronic devices while driving. Indeed, the National Safety Council recommends this type of total ban policy as a best practice, as studies have shown that hands-free cell phone use can still result in distracted driving. These types of policies typically instruct employees to safely pull over their vehicle if they need to make or receive a phone call (or send or read an email or text message) for company business. Other employers require the use of hands-free technology while driving on company business.
What Should Employers Do?
- All employers should periodically review their policies on cell phone use while driving to ensure compliance with hands-free laws in states where they have operations. If employers do not currently have a cell phone use policy, they should consider putting a policy in place. A cell phone use policy should:
- Apply to cell phone use in company-provided vehicles, as well as all work-related calls while driving personal vehicles.
- Apply to the use of all types of electronic devices while driving, including tablets, cell phones, personal digital assistants (PDAs), Blackberries, laptops, and iPods.
- Apply to making or receiving calls, sending text messages, and sending email while driving.
- Apply to all work-related activities and after hours work-sponsored events.
- Georgia employers in particular should review their policies in light of the new law, and ensure all employees are aware of the new requirements under the Hands-Free Georgia Act as soon as possible.
- Prepare and implement an effective communication plan to employees which emphasizes the safety concerns underlying your policy on cell phone use while driving. This will help build employee awareness and support for the policy.
- Employers should emphasize to employees that violations of cell phone use policies are considered serious safety infractions, and that such violations will result in disciplinary action.
- Employers should ensure that HR, Risk Management, and team leaders understand the policy and lead by example.
- Consider the best mechanisms to monitor compliance with the policy.
- If your company provides cell phones to employees or covers the cost of employees’ cell phone plans, you may want to consider periodically auditing cell phone records to determine whether employees are violating the cell phone policy while on traveling on company business. There are also various mobile applications that can be installed to monitor employee cell phone use.
- Employers may also want to consider requiring employees to set up an automatic response on their cell phones if they receive text message while driving.
- Employers should consistently enforce the cell phone policy in the event they become aware of violations. This will send a message to employees that the employer takes violations seriously.
- Employers may want to consider equipping company vehicles with Bluetooth technology to allow for hands-free cell phone use.
- Companies should encourage third party vendors to have a cell phone use policy for the vendor’s own employees working their account.
- Employers who have fleet vehicles should review their insurance policy to determine whether cell phone use while driving may impact coverage and their fleet vehicle policy for compliance with applicable state law.
Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their obligations. If you or your organization would like more information on your company’s liability and the use of a hand-held cell phone while driving, please contact an attorney in the Employment and Labor practice group.
The article was originally published in Law360.