Late last year, the Federal Motor Carrier Safety Administration ("FMCSA") and the Pipeline and Hazardous Materials Safety Administration ("PHMSA") established rules related to cell phone usage by motor carriers on interstate highways and carriers of hazardous materials on interstate highways. These new rules went into effect on January 3, 2012. The new rules, among other things, restrict the use of hand-held mobile phones by drivers of commercial motor vehicles and make employers liable if they encourage or allow hand-held mobile phone use. Employers should be mindful of the FMCSA's and PHMSA's approach making employers responsible for the actions of their drivers in those cases where the employees use a hand-held phone while performing their duties, carrying out company business, or otherwise acting on the employer's behalf when the violation occurs. The fine for these violations can be as high as $11,000 per incident.
It goes without saying that this new rule will be difficult for employers to implement and enforce due to the high number of employees carrying their own personal mobile phones. Employers can protect themselves somewhat by following a few basic precautions. First, while not a fail-safe remedy, employers should implement a written policy prohibiting hand-held mobile phone use. The written policy should clearly spell out prohibited behaviors, list the consequences for engaging in the behavior (and don't forget to enforce the policy), and provide employees with some incentive to comply with the policy. As part of the implementation of the policy, employers should engage in a series of communications with their employees to make sure all employees are aware of the policy and conduct training with respect to the written policy. Second, employers should obtain from each driver a written acknowledgement that the driver has received, agrees to, and understands the policy. Finally, to the extent possible, the employer should employ technology tools and information systems to monitor drivers and ensure compliance with the policy. While these steps are not a guarantee an employer will avoid a fine, they do provide the employer with some protections and hopefully ensures employee compliance with the policy.