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A new law prohibiting texting is in effect in California as of the new year. Texting on cell phones or PDA devices while driving will now result in steep fines and penalties. However, the new law may also have implications for employers. Employees that carry cell phones, walkie-talkies, or PDAs for work may be tempted to use them on the road. Many may not know that sending a message, even at a stop sign, can put the employer on the hook as well as the employee. The doctrine of vicarious liability may allow an employer to be held liable for the negligent actions of an employee – such as causing an accident while texting. An employer is even more likely to be held liable if the negligent act, in this case, texting, was done to serve the employer’s purpose. If a driver sends a text or replies to a message from a client, the employer may be stuck with some of the consequences.

In order to protect themselves, one of the things employers may consider doing is adopting new policies that address the new law. Employers could write specific “texting-while-driving” bans into their policies which address the use of cell phones and PDAs. Many employers already have policies that address the “hands-free” requirement for use of cell phones. Those employers that do not have policies would do well to create and implement them. Although implementing such policies may not prevent liability in case of an employee’s negligence, it can help with raising a defense if something should occur.

California Labor Code Section 2802, says: "a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful. (b) All awards made by a court or by the Division of Labor Standards Enforcement for reimbursement of necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or loss. (c) For purposes of this section, the term ‘necessary expenditures or losses’ shall include all reasonable costs, including, but not limited to, attorney’s fees incurred by the employee enforcing the rights granted by this section." (emphasis added).

A policy that not only alerts employees to the new law, but clearly shows the employer intends for the employees to comply with it, may help mitigate liability in the case of an accident or even if an employee-driver is fined on the job.

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