March 2, 2012

By Stephen A. Melcher

A new regulation banning mobile phone use by non-governmental drivers of commercial motor vehicles went into effect on January 3 of this year. The regulation penalizes violators, of course—however, it also penalizes the employers of the violators. So, understanding this regulation is important not only for protecting the motoring public but also your bottom line. This Briefing Paper answers questions about the regulation’s application and enforcement, and provides guidance on how you as an employer of CMV drivers can best guard against such penalties.

The Basics of the New Ban

What Is Banned?

The regulation generally bans the use of a hand-held mobile phone by the driver1 of a commercial motor vehicle.2 A CMV driver cannot (1) hold a mobile phone to make a call, (2) press multiple buttons to dial or answer a mobile phone, or (3) even reach for a mobile phone if the driver can not remain in a seated driving position properly restrained by the seat belt.

What Isn’t Banned?

The regulation does not ban a CMV driver from any of the following:

  • hand-held mobile phone use if the vehicle is safely pulled off of the roadway and is safely parked;
  • hand-held mobile phone use to communicate with law enforcement officials or other emergency services;
  • totally hands-free mobile phone use if accomplished without the driver leaving the properly restrained, seated driving position3—examples of totally hands-free use include one-touch dialing or answering with a mobile phone that has a speaker phone function or wireless earphone; or
  • use of a CB radio, two-way radio or walkie-talkie.4

Enforcement of the New Ban

Merely imposing penalties against CMV drivers who violate the ban was deemed insufficient for ensuring compliance with the ban. So, in addition to penalizing the CMV driver, the regulation also imposes penalties on the transgressor’s employer.

Penalties Against Drivers

A CMV driver who violates the ban faces stiff sanctions. In addition to a civil penalty of $2,750 per violation, a driver may become disqualified from driving a CMV and from otherwise using his/her commercial driver’s license for up to 120 days.5

Penalties Against Employers

The employer of a CMV driver who violates the ban will be fined an eye-popping $11,000 for each infraction. That’s enough to get the attention of most employers. But, there’s more. Presumably, each improper use of a driver’s mobile phone constitutes a separate infraction, subjecting the employer (and driver) to multiple penalties on a single, brief road trip. So, once an officer has properly stopped a driver for an alleged violation, the phone records (if not also the phone’s call history) would reveal additional potential violations that could lead to $11,000 penalties for each of those violations.

Background of the New Ban

What’s The Big Idea?

The rationale behind the ban is that distracted driving causes most highway accidents and their associated fatalities and injuries, and that hand-held mobile phone use is one of the most distracting of all behind-the-wheel behaviors. Prohibiting CMV drivers from using hand-held mobile phones is expected to make substantial improvement to public safety and to also reduce the financial and environmental burdens society bears because of such accidents.

Whose Idea Was This, Anyway?

This regulation is brought to you by the good folks at the U.S. Department of Transportation, more specifically the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA).6 The FMCSA and PHMSA were also responsible for promulgating the ban against texting by CMV drivers which became effective in October 2010.7

What Is Coming Next?

Initially, the federal ban’s application is principally limited to interstate CMV driving (although it also applies to intrastatetransportation of hazardous materials requiring placarding).However, the federal ban requires all States, by January 3, 2015, to enact state and local laws banning hand-held use of mobile phones by anyone operating a motor vehicle under a commercial driver’s license.8 So, we can expect each State (and possibly some of their local government units) to enact bans against hand-held mobile phone use that are similar to the federal ban. And, as a result, by January 3, 2015, the federal ban’s application will be extended to reach essentially all intrastate CMV driving, as well.

How Can Employers Protect Themselves?

No “Safe Harbor” for Employers

 Unfortunately, an employer cannot avoid being penalized by demonstrating that it has done everything it can to ensure its CMV drivers comply with this ban or the texting ban. There is no exception from the penalty for “good faith steps,” such as creating a company policy against hand-held mobile phone use or texting—even if the policy is well-publicized to the drivers and backed up by the employer’s own additional disciplinary measures. And, because the employer’s violation is defined as a civil (as distinguished from criminal) offense, there is no “scienter” requirement—the employer need not “know or have reason to know” that its driver might violate either of these bans.9 This is “strict liability,” buddy. If your driver violates one of these bans, you can be tagged $11,000 per violation.

Employer’s Action Plan

So, what is an employer to do if “doing everything possible” won’t save you? An employer can avoid exposure to these penalties only to the extent its employees actually comply with the mobile phone ban and the texting ban. So, the answer is: Do everything possible to ensure full compliance! Employers should:  

  • adopt a company policy that (1) clearly describes what conduct is prohibited by the hand-held mobile phone ban and texting ban, (2) makes engaging in the prohibited conduct also a violation of the company policy, (3) makes violation of the company policy subject to strict disciplinary action, and perhaps (4) offers positive incentives for full compliance;
  • educate your CMV drivers about the policy by all possible means: (1) well-placed posters, (2) notices enclosed with paychecks and/or other mailings, (3) in-house training, (4) etc.; because compliance is the only protection against penalties, employee education is key—make sure that all CMV drivers are very familiar with the penalties imposed by the bans and other disciplinary action under the company policy, as well as the penalties the company will face if they violate either of the bans; and
  • enforce the policy diligently—whenever you learn that an employee has violated the company policy, take disciplinary action against the employee (regardless of whether the infraction was detected by authorities); lax enforcement will only lead to lax compliance.

As noted above, taking these and similar actions will not completely insulate you from being penalized for your employee’s violation of these bans.However, doing so will minimize the risk that your employees transgress the bans and, consequently, minimize your exposure to penalties.

1 The ban does not apply, however, to drivers employed by Federal, State or local governments such as active duty military personnel, municipal snowplow operators and firefighters.

2 A “commercial motor vehicle” (CMV) is defined as a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, and that (1) has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater; (2) is designed or used to transport more than 8 passengers (including the driver) for compensation; (3) is designed or used to transport more than 15 passengers (including the driver) without compensation; or (4) is used in transporting hazardous material in a quantity requiring the vehicle to display placards.49 USC §311132(1).

3 If the driver has to reach for a mobile phone on the passenger’s seat, under the driver’s seat or in the sleeper berth, he/she is considered to have left the proper seated driving position or otherwise not engaging in totally hands-free mobile phone use—therefore, such reaching for the mobile phone is banned.

4 The regulation defines “mobile phone” to include all kinds of radio telephone services (cellular, satellite and broadband radio), but it excludes two-way and CB radio services.

5 The regulation requires all States, by January 3, 2015, to enact state and local laws banning hand-held use of mobile phones by anyone operating a motor vehicle under a commercial driver’s license (CDL).The enactment of such state and local laws will permit implementation of the federal ban’s provisions that call for disqualifying a person from using his or her CDL for a period of 60 to 120 days because of having repeatedly violated a state or local ban against hand-held mobile phone use.

6 The regulation can be found at 76 Fed. Reg. 75485 et seq. (Dec. 2, 2011) and is principally codified at 49 C.F.R. 392.82 and 49 C.F.R. 177.804(c).

7 The texting ban is similarly aimed at CMV drivers and was rolled out first because texting was viewed as even more risky than hand-held mobile phone use.It can be found at 75 Fed. Reg. 59118 et seq. (Sept. 27, 2010) and is principally codified at 49 C.F.R. 392.80 and 49 C.F.R. 177.804(b). The texting ban prohibits a CMV driver from manually entering alphanumeric text into, or reading text from, an electronic device (such as a personal digital assistant, pager, smart phone, computer, or any other device used to input, write, send, receive or read text).For purposes of the ban, “texting” includes, without limitation, using short message service, instant messaging, e‑mailing, entering a command or request to access the internet or a World Wide Web page, and any other form of electronic text entry or retrieval for the purpose of a present or future communication.The texting ban does not prohibit inputting, selecting or reading information on a GPS or navigation system, nor does it prohibit the use of a fleet management system or dispatching device for purposes other than texting.Like the hand-held mobile phone ban, employers can be penalized $11,000 per violation of the texting ban.So, what is said about avoiding penalties for violations of the hand-held mobile phone ban is equally applicable to avoiding penalties for violations of the texting ban

8 Enactment of these state and local laws will permit implementation of the federal ban’s provisions that call for disqualifying a person from using his or her CDL for a period of 60 to 120 days because of having repeatedly violated a state or local ban against hand-held mobile phone use.

9 This differentiates the mobile phone use ban from other safety-related regulations that impose penalties on employees for the infractions of their employers.For example, an employer can successfully defend against an OSHA citation by showing that the employee violated a well-established and enforced company policy when committing the prohibited act, and that the employer didn’t know or have reason to suspect the employee would do so.This “employee misconduct” defense is of no help if your employee violates the mobile phone use ban.

This discussion is generalized in nature and should not be considered a substitute for professional advice.© 2012 FWH&T