Before we get started, the employment law attorneys at BGS would like to thank our clients (old and new) for the massive response and positive feedback on the MN Wage Theft Law blog. We have not been able to verify rumors that the legislature decided that employers didn’t have enough to do going into the last legislative session and did their best to remedy that concern. Come to think of it, we would like to thank the legislature for making sure we never run short of business.The next big thing for drivers and Minnesota employers that came about in the last legislative session was the hands free law. The hands free law comes into effect next month (August 1) and will affect drivers and many employers across Minnesota. Fortunately, this law presents a more straightforward issue for employers than the often murky wage theft law requirements.
The hands free laws (Minn. Stat. §§ 169.011, subd. 94 and 169.475) aim to ensure roads are safe from technologically distracted drivers. Starting August 1, 2019, law enforcement will be pulling folks over for speaking on the phone, listening to music, podcasts, or the most recent bestseller, as well as watching videos or looking at pictures, games or software applications if these drivers have their phones in their hands. Texting while driving has been illegal for some time now and that’s still illegal under this law. While this law does not specifically address eating cheeseburgers while you drive with your knees or apparently teaching your dog how to drive by letting it sit in the driver seat with you, it hopefully will operate to improve safety on the roads.
While there are a few exceptions (discussed below), this law will affect any and all of your employees who drive and, at any time, have to talk to co-workers, supervisors, or clients while driving. Under this new law, drivers cannot send, compose, initiate, retrieve, or read emails, text messages, instant messages, web pages, voice-mail messages, transmitted images, transmitted video content (including video calling), access games, audio or video content, software applications, or other data transmitted using a commonly recognized electronic communications protocol. This does not include automatic messages sent from a phone when drivers receive a message while driving that states that they are driving and will get back to the person later. Drivers also cannot call, talk, or listen to a cellular phone call under this law (unless the exception below applies).
Drivers can call, talk on the phone, listen on the phone, listen to audio-based content (like that best-seller or podcast), initiate, compose, send, or listen to electronic messages, or view or operate a global positioning system or navigation system so long as the driver does not have the device in their hands and the device is in hands-free or voice-activated mode. Video calling while driving is not legal.
The two exceptions to these rules are: first, if the device is being used to obtain emergency assistance to report an accident, medical emergency, or serious traffic hazard or to prevent a crime being committed so long as the driver has a reasonable belief that a person’s life or safety is in immediate danger; and second, if the driver is in an authorized emergency vehicle while performing their official duties.
If drivers violate this law, they must pay a $50 fine (plus court fees). Subsequent violations are subject to a fine of $275 plus court fees. This law does not prohibit the use of devices or features that are permanently physically integrated into the vehicle, a global positioning system or navigation system only capable of navigation uses, or two-way radios, citizens band radios, or amateur radio equipment used in accordance with Federal Communications Commission rules and regulations. If you are old enough to remember what Breaker Breaker means and you have a whip antenna on your vehicle, you are still fine operating your CB.
Voice-activated or hands-free mode means an attachment, accessory, wirelessly paired or tethered capability, application, wireless connection, or built-in feature in a motor vehicle allowing wireless communication between the phone and vehicle that allows drivers to use verbal or single touch commands to: activate or deactivate the device and activate or deactivate a function or software application. Typing or scrolling is never voice-activated or hands-free.
What does this mean for employers? Our recommendation is that employers should: a) review and if needed, amend their policies to make sure they reflect the requirements of this new hands free law; and b) train employees who drive on behalf of the employer. It is not a huge jump to assume that employer negligence will be at issue in the event that an employee is on company business and involved in an auto accident while violating this hands free law.
Employers need to make sure employees know about the new law and understand what you expect of them. Fortunately, there are many options for employers to encourage employees to go hands-free. The most obvious is not to use your phone at all while driving. Employers can ban cell phone use during worktime and this should resolve the problem for many employers. However, for those employers whose employees travel for their job, banning cell phone use may conflict with the employee’s efficiency. So, how can these employees still do their job without placing themselves, and everyone around them, in danger? The answer is hands-free devices.
These devices have been on the market for a while, but now, employers should look at hands-free options as a necessary business expense. These devices range from wearing a single earphone with a microphone (note: don’t encourage using both earphones because that is illegal while driving) to vehicles with the ability to talk to the driver’s phone making touching the phone unnecessary. A popular option is an auxiliary cable and phone holder that attaches to drivers’ dashes, vents, or windows. The type of hands-free device used is less important than the necessity that employers making sure those working for them hear about the law and know how to not violate it while at work. The last thing you want is an employee coming to you because they got in an accident while talking on the phone for their job while driving. Whether you chose to ban cell phones on the job or mandate hands-free devices, the most important thing is to make sure employees know about the new law and know you expect them to follow it while at work.
So maybe it’s time to call a brown-bag lunch or office meeting to go over the new law and employee expectations. Maybe you want to update your cell phone policy. Remind employees that company vehicles cannot be used for Uber or Lyft purposes (yes enterprising employees have already thought of this). It might also be a good idea to post some literature in the breakroom or disperse a fact sheet via company-wide email or company intranet. The Department of Public Safety has hands free fact sheets on their website in English, Spanish, Hmong, and Somali which may be useful to educate your employees on the new law. You can also add this QR code image in your training tools that will allow employees to access the handsfreemn.org website on their smartphone (just tell them not to read it while driving).
(to download the full-sized file, right click on the thumbnail image and choose “Save image as” from the menu).
Because the law is not in effect yet, no one can say with certainty what the implications will be for employers. This article provides a summary of the updated law and how it might affect employers. Before taking action or putting a policy in place on cellphone use, you should seek legal advice. The steps you take to keep yourself and your employees safe will depend on the demands of your individual business. Luckily, the employment lawyers at BGS are here to help you draft a policy reflecting the new law and help determine what your company needs to do to keep your employees safe and ensure you aren’t accidently encouraging people to break the law!