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Wisconsin Act 220 Banning Texting While Driving: Ramifications for Employers
 
Wisconsin Act 220
Wisconsin’s law banning texting while driving went into effect on December 1, 2010. When AB 496, referred to as the anti-texting law, was passed on May 5, 2010, Wisconsin became the 25th state to outlaw texting while behind the wheel. The new law makes writing and transmitting of messages illegal; however, as of now, it’s still okay to read an incoming text or surf the internet. The law also only applies when the vehicle is moving. The law does not apply to operators of authorized emergency vehicles. In Wisconsin, the texting ban is a primary offense. That means police can stop someone for texting instead of first having to pull them over for another offense, such as speeding. Speaking on a cell phone while behind the wheel remains legal.
 
Safety Concerns lead to federal requirements
Driver distractions are a leading cause of motor vehicle accidents and texting is one of the most common of driver distractions. The statistics are chilling. Based on data from the U.S. Department of Transportation, nearly 6,000 people died in crashes linked to distractions and many thousands more were injured. According to the National Highway Traffic Safety Administration, the risk of a crash or near-crash event for a driver who is text messaging is more than 23 times higher than that of an undistracted driver. For every 6 seconds of drive time, a driver sending or receiving a text message spends 4.6 of those seconds with their eyes off the road. This makes texting the most distracting of all cell phone related tasks. Simply reaching for a phone or other device makes a truck driver 6.7 times more likely to experience a truck accident. A car driver dialing a cell phone is 2.8 times more likely to get into a crash than a non-distracted driver.
 
The federal government has taken note and steps to combat this growing problem. On January 26, 2010 the federal Department of Transportation’s Federal Motor Carrier Safety Administration implemented regulations prohibiting commercial vehicle drivers (truckers and bus drivers) from texting while driving. Prior to this, in October 2009, President Barack Obama signed an executive order banning federal employees from text messaging while driving government-owned vehicles, using government-supplied electronic equipment, or driving privately owned vehicles while on government business.
 
OSHA’s Initiative
The Occupational Safety and Health Administration (OSHA) has launched a new initiative to address the problem of distracted driving. According to OSHA, its first focus will be on texting while driving. Under the Occupational Safety and Health (OSH) Act of 1970, employers have a general duty to provide a workplace free of serious recognized hazards. In light of this, on October 4, 2010, Dr. David Michaels, Assistant Secretary of Labor and head of OSHA, issued an open letter to employers about work-related distracted driving. The letter states that employers have a “responsibility and legal obligation” to have a “clear, unequivocal and enforced policy against the hazard of texting while driving.” Employers will be considered to have violated the OSH Act, “if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job.”
 
OSHA’s multi-pronged initiative includes the following:
  • An education campaign to employers, launched during Drive Safely Work Week (October 4-8, 2010), called on employers to prevent occupationally related distracted driving—with a special focus on prohibiting texting while driving;
  • A website which carries a video message and an open letter to employers from Assistant Secretary Michaels. The website also provides sample employer policies and OSHA is teaming up with employers and labor associations to communicate its message;
  • Alliances with the National Safety Council and other key organizations to reach out to employers, especially small employers, to combat distracted driving and prohibit texting while driving;
  • A special emphasis on reaching young workers; and
  • When OSHA receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, OSHA will investigate and, where necessary, issue citations and penalties to end this practice.
Fines
First-time violators of Wisconsin’s new law will face fines of $20 to $400 and will have four points assessed on their driving records. Second-time violators face fines of $200 to $800. Under the January 26, 2010 guidance issued by the federal Department of Transportation that prohibits texting while driving trucks, buses or any other commercial vehicle, truck and bus drivers who text while driving commercial vehicles may be subject to civil or criminal penalties of up to $2,750. For those instances that don't fall under the texting part of the law, police departments anticipate giving tickets for inattentive driving. Further, there will be little chance to dispute the charge and, even if you want to dispute it, the driver’s phone records will likely provide evidence contrary to the driver’s claim.
 
Distracted Driving Policy
Employers should prohibit any work policy or practice that requires or encourages workers to text while driving and they should eliminate financial or other incentives that encourage workers to text while driving. Employers who require their employees to text while driving—or who organize work so that doing so is a practical necessity even if not a formal requirement, will be considered in violation of the OSH Act.
 
Establishing a distracted-driving policy will not only help keep your employees and the general public safer by preventing accidents, but it also can limit your company’s liability exposure. A distracted-driving policy should clearly say that it is against company rules to text, e-mail, or use a hand-held phone or communication device while operating a company vehicle, driving a personal vehicle for business use, or using a company-issued communication device. The consequences for violating the policy should be clearly specified. The policy should apply to all employees, regardless of their position within the company (e.g., executives are not exempt), and be enforced consistently. Employees should sign an acknowledgment form indicating that they have received and read and will comply with the policy.
 
If you would like additional information about this topic, or assistance with creating a Distracted Driving Policy, please contact me at 414-423-1330 or via e-mail at tpk@kclegal.com.
 
Thomas P. Krukowski
 
Posted 12/13/2010
 
 
If you have any questions or comments, please contact me at 414-423-1330 or via e-mail at: tpk@kclegal.com
 
 
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
http://www.krukowski.com/
 
Legislative Partner

Krukowski &
Costello
 
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   
Em: mharvey@mileskimball.com

 
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