Client Alert

With Governor Bev Perdue's signature last Friday, North Carolina joined the small but growing number of states seeking to curb distracted driving through laws making it illegal for drivers to use mobile phones to type or read text messages or emails while driving. The law becomes effective on December 1, 2009.

This new legislation makes it unlawful to use a mobile phone to type or read text messages or emails while driving in North Carolina. However, the law contains exceptions for voice operated technology, the use of global positioning systems (GPS), and (as welcome news to shipping and delivery businesses) "wireless communications devices used to transmit or receive data as part of a digital dispatch system." In addition, the law does not apply to law enforcement personnel or fire fighters, or to ambulance drivers, or to drivers who are "lawfully parked or stopped." Violation of the law is a misdemeanor, punishable by a $100 fine.

It is important to note that the law does not prohibit drivers from using the mobile phone to make phone calls, and the law does not mandate the use of "hands-free" technology to make mobile phone calls.

With the passage of this law, North Carolina joins 13 other states which have passed similar bans. We expect this trend to continue as the proliferation of mobile devices puts texting and email capability into the palms of more people's hands, and with increasing number of news reports linking accidents to emailing or texting while driving.

The potential liability for a business whose employee injures him or herself or others in a motor vehicle accident caused by the employee being distracted by email or text messaging cannot be understated. For this reason, businesses would be well-advised to review their current policies on employees' use of company-issued technology while driving, or consider implementing such policies if they do not currently have them.

If employees use cell phones or mobile devices for work purposes, it is generally advisable to have a policy summarizing the company's expectations and rules regarding their appropriate use. As a general proposition, the policy should express that the company expects its employees to use cell phones and mobile devices in a manner that is consistent with company policy, and which complies with all applicable laws.

As to mobile phone calls, we suggest that the best practice is to emphasize "safety first" and require employees not to make any business call while driving. However, if it is important to make a business call while on the road, we suggest requiring the use of a hands-free device or waiting until the employee is able to pull over to a safe location and stop the vehicle before making the call. When it comes to text messaging and emails, given the potential level of distraction, perhaps the best practice is an absolute prohibition from sending or reading emails or text messages while driving. If an employee must send or receive an email or text message while on the road, we suggest requiring the employee to safely stop the vehicle before doing so.

If you have any questions about this new law or appropriate technology policies, please contact John Pueschel, or the Labor and Employment lawyer with whom you usually work.

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