HOW THE "HANDS FREE" CELL PHONE

LAW AFFECTS CALIFORNIA EMPLOYERS

Deanna Stone Killeen, Esq.

California’s new “hands free” cell phone law took effect on July 1, 2008.  The law prohibits all California drivers from using a hand-held cell phone or similar hand-held devices while driving a motor vehicle, unless configured to permit “hands free” talking and listening.

The new law, Vehicle Code Section 23123, provides that “a person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.”

If the driver is a minor under age 18, the law is more restrictive and prohibits the use of any “mobile service device” at any time the minor is operating a motor vehicle. A mobile service device is defined to include not just cell phones, but a variety of electronic devices.

How does this affect you as a California employer?

It will probably never even occur to most California employers that this seemingly innocuous law can expose them to liability if violated by an employee.  If you are one of the many California employers that routinely issues cell phones to its employees, or permits employees to use their cell phones to conduct business on your behalf, you could be liable for your employee's violation.  Many small business owners are simply unaware that an employer can be held vicariously liable for resulting injuries and property damage if its employee causes an accident while talking on a cell phone for business purposes in violation of the new law.

Taking these simple precautions can reduce an employer’s potential liability for damages relating to employee violations of the new law: 

(1)        Draft and distribute a clear policy on the new law in employee handbooks, and have your employees sign an acknowledgment of receipt of the new policy or new handbook incorporating such policy.

 (2)       When issuing a cell phone to new employees, provide a copy of the new law, the company’s policy on such law, and again have the employee sign an acknowledgment of receipt of such material. You should also routinely issue “hands free” devices with each cell phone and require the employees use of the device.

 (3)       Have a training class for all employees on the new law, the company’s new policy requiring employee compliance with said law when using the company cell phone or their own personal cell phone if used to conduct company business.

 (4)       Provide or post information on the new law and your new company policy in the office kitchen, break room or other public areas in your office. 

 (5)       Inform employees that they company will not foot the cost for violations of the new law, and that they will be personally liable if they choose to violate the new law.

 (6)       Create a disciplinary policy for any employee who violates the new law, which ultimately can lead to the termination of the violating employee.

 (7)       If you employ minors, you should taken even greater precautions with such employees especially if their job duties include driving for work purposes. It is a great temptation to a teenager to simply text a friend while driving, and this is a violation of the new cell phone law.

The applicable statute is set forth in its entirety below.  You may wonder why the statute provides that it is automatically repealed as of 2011.  That's because we will all have cell phones implanted in our brains by then, so no hands free laws will be necessary.  Actually, the law that replaces it is already on the books and becomes effective the moment the first is repealed.  The new law takes away many of the exceptions, making the hands free law even stricter in three years.  If you need specific legal assistance with such a problem or to help you develop a policy or procedure for your company, contact me.

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Deanna Stone Killeen is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California.  She can be reached at (714) 954-0700, or by email.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.

Vehicle Code Section 23123:

(a) A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in
that manner while driving.
(b) A violation of this section is an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense.
(c) This section does not apply to a person using a wireless telephone for emergency purposes, including, but not limited to, an emergency call to a law enforcement agency, health care provider, fire department, or other emergency services agency or entity.
(d) This section does not apply to an emergency services professional using a wireless telephone while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.
(e) This section does not apply to a person when using a digital two-way radio that utilizes a wireless telephone that operates by depressing a push-to-talk feature and does not require immediate proximity to the ear of the user, and the person is driving one of the following vehicles:
     (1) (A) A motor truck, as defined in Section 410, or a truck tractor, as defined in Section 655, that requires either a commercial class A or class B driver's license to operate.
          (B) The exemption under subparagraph (A) does not apply to a person driving a pickup truck, as defined in Section 471.
     (2) An implement of husbandry that is listed or described in Chapter 1 (commencing with Section 36000) of Division 16.
     (3) A farm vehicle that is exempt from registration and displays an identification plate as specified in Section 5014 and is listed in Section 36101.
     (4) A commercial vehicle, as defined in Section 260, that is registered to a farmer and driven by the farmer or an employee of the farmer, and is used in conducting commercial agricultural operations, including, but not limited to, transporting agricultural products, farm machinery, or farm supplies to, or from, a farm.
     (5) A tow truck, as defined in Section 615.

(f) This section does not apply to a person driving a school bus or transit vehicle that is subject to Section 23125.
(g) This section does not apply to a person while driving a motor vehicle on private property.
(h) This section shall become operative on July 1, 2008, and shall remain in effect only until July 1, 2011, and, as of July 1, 2011, is repealed.