California Human Resource Blog

Cell phones are a valuable tool in conducting business and more employees are using them to perform their jobs. Cell phones can positively support productivity by connecting employees to the office and to clients. On the down side, cell phones bring up a number of issues involving safety, security, and privacy. And, as the whole world now knows, inappropriate use of cell phones can create liability issues for employers. If an employee has a moving vehicle accident and hurts someone while making a work-related or non-work-related cell phone call, the employer as well as the employee may be found liable.

The accident that occurred with the Metrolink is an unfortunate and real example of what can happen when policies may not be clearly understood or followed. The Metrolink train accident that occurred on September 12, 2008 in Los Angeles was the worst train accident in the United States in several years. Twenty-five commuters were killed and several others were injured. The most recent report by federal investigators with the National Transportation Safety Board stated that the conductor was “texting” just seconds before the accident occurred.

On July 1, 2008, California instituted cell phone regulations that required a driver to use a hands-free device while talking on their cell phone while driving. Reviewing the Cell Phone law that went into effect on July 1, 2008, the term “hands free” may not be clearly explained or defined. According to the Department of Motor Vehicles, the “hands free” law does not specifically prohibit drivers 18 and older to text message while driving, but an officer can pull a driver over and issue a citation, if, in the officer’s opinion, the driver is distracted and not operating the vehicle safely. The DMV also states in their Wireless Telephone Laws FAQs that “sending text messages while driving is unsafe at any speed and is strongly discouraged”. So California has gone further to clarify cell phone use and “texting” while driving. It will be unlawful beginning January 1, 2009.

This is probably a good time to revisit your Cell Phone policy. If you do not have a Cell Phone policy it may be time to consider creating a policy. As you review or create a policy consider other issues of concern when drafting a workplace policy. Employers must understand that it is not enough to create and publish a policy. An employer must ensure a company policy is clear, explicit and understandable by all levels of the organization. It is also worthwhile to note that an effective workplace policy includes appropriate dissemination, training, follow-up and enforcement of the policy. Establishing and following through with this process can help ensure that employees understand the policy and their responsibility with regard to the policy and it can possibly help reduce the employer’s liability if an issue should come up.

As a Human Resources professional and or employer you must understand and interpret legal requirements for your employees. It may mean you work with legal counsel to clarify and interpret as clearly as possible the requirements of a law. For example, using the cell policy that is currently in effect, what does “hands free” legally mean? Should it include the Department of Motor Vehicles recommendation that sending and receiving texts messages is not safe and should be discouraged? As stated in a previous paragraph, the new law, effective January 1, 2009, takes the July 1, 2008 law one step further. It specifically prohibits “writing, sending, or reading text-based communication – including text messaging, instant messaging, and e-mail – on a wireless device or cell phone while driving”.

You have established a clear and concise policy; the next step in the process is to communicate the policy so employees understand the policy. Step 1 is to provide the policy electronically or in hard copy form and require the employee to sign a Confirmation of Receipt of the Policy. Communicating the policy may also include reasons or rationale for the policy. Providing reasons may actually help the employee understand the policy more clearly. Step 2 requires you, the employer to provide training about the policy. This includes explaining the policy to the employee and providing the employee the opportunity to ask questions about the policy so he/she understands the policy more clearly and therefore understands his/her responsibility for the policy. For instance, using the new “texting” policy as an example, the employer can emphasize how the new “texting” policy focuses on employee and company safety. The final step in the process is to monitor the policy’s effectiveness. Verify the policy is uniformly applied throughout the company and all employees, supervisors and managers are following the policy. If and when you find that employee, supervisors or managers are not complying with the policy you have an obligation to address the non-compliance. It might include additional training or clarification or some level of disciplinary action.

Remember the new “texting” law goes into effect on January 1, 2009 and now is the time to updae an existing policy or create a new cell phone policy.