California’s cell phone law (Vehicle Code section 23123), effective July 1, 2008, makes it unlawful to drive a motor vehicle while using a wireless telephone (cell phone) unless the driver uses a hands-free listening and talking device.  A companion law, also effective July 1, 2008, forbids anyone under the age of 18 to drive while using a cell phone, period.   In light of these new laws, should employers forbid all employees from talking on their cell phones while driving on the job?  Must employers furnish their 18-plus employees with cell phone headsets?

According to the Assembly Committee on Transportation’s report, the main reason for this legislation is to encourage driving with two hands on the steering wheel.   Although studies show drivers remain distracted to a certain degree while talking on cell phones, even with two hands on the wheel, the legislature acknowledges the safety benefits associated with using cell phones, such as reporting road hazards, stranded motorists, and car accidents.  Accordingly, the new law attempts to strike a balance for certain cell phone use while driving (unless under the age of 18 as discussed below).  Section 23123 prohibits drivers from using cell phones unless they are using a hands-free listening and talking device, such as an earpiece, headset, speaker phone or even Bluetooth technology.  Any such hands-free listening device will suffice.

Section 23123 does not apply to persons using a cell phone for emergency purposes, to emergency services professionals, nor to persons using digital two-way radios that operate by depressing a push-to-talk feature while driving a truck (requiring commercial class A or B driver’s license to operate), farm vehicle, or tow truck.   Nor does the law apply to anyone driving a motor vehicle on private property.

A violation of this new cell phone law in California is an infraction punishable by a base fine of twenty dollars ($20.00) for a first offense and fifty dollars ($50.00) for each subsequent offense.

Teens Talk at their own Peril:   Minors are forbidden from driving while using any one of a multitude of electronic items including cell phone, even if equipped with a hands-free cell phone device.  The prohibited list includes cell phone, pager, two-way messaging device, laptop computer with mobile data access, specialized mobile radio device, or broadband personal communication device, unless for emergency purposes, such as an emergency call to a law enforcement agency, health care provider, fire department, or other such emergency services agency.   Violation of this law is an infraction punishable by a base fine of twenty dollars ($20.00) for a first offense and fifty dollars ($50.00) for each subsequent offense.  Unlike the ban on handheld cell phones, however, a law enforcement officer may cite a teen for a suspected violation of this law only in connection with another suspected driving offense – meaning law enforcement officers cannot stop a vehicle for the sole purpose of determining whether the driver is violating this law.

Sensible Employer Actions:  Employers should update their company handbooks and other policy pertaining to employee driving and cell phone use.  Obviously, the safest policy would be to prohibit all cell phone use – hands free or otherwise – unless in an emergency.  Employers probably do not want to find themselves in the unenviable position of having to justify the lack of such a policy if an employee causes a traffic collision while talking on a cell phone about work-related matters or while driving on the job, even if using a hands’ free system.

With this increased focus on the manner of work-related driving, employers should also ensure they have updated copies of employee drivers’ licenses and insurance policies for those employees whose jobs require them to drive on company time.