James L. Curtis, Erin Dougherty Foley, and Craig B. Simonsen

Effective January 1, 2014, the Illinois Vehicle Code, at 625 ILCS 5/12-610.2, was amended to prohibit driving while using an electronic communication device, including hand-held wireless telephones, hand-held personal digital assistants, or portable or mobile computers.

The amendment provides for exceptions including the use of hands-free devices, two-way radios, and electronic devices capable of performing multiple functions as long as these devices are not used for a prohibited purpose.

The law establishes a graduated fine scale for repeat offenses. A first offense for driving while using an electronic communication device is not considered a moving violation.

Under the current Code provisions, cellphone/wireless use while driving, including a hands-free device, is prohibited for drivers under age 19, except in the case of an emergency to contact a law enforcement agency, health-care provider or emergency services agency. Cellphone/wireless use by drivers 19 and over is prohibited unless using a hands-free device.

The newly enacted law does not address employer liability specifically, but another portion of the Illinois Vehicle Code does.

Under the Hands Free Act, if one of your employees is not complying with the new Illinois law and is operating his/her vehicle while on company time, then the employer could be held liable for the employee’s non-compliance. Section 16 of the Illinois Vehicle Code states that individuals who engage in the commission of a crime (and under the Hands Free Act operating a mobile phone without a hands-free option is considered a misdemeanor), or individuals who “aid or abet” in the commission of that crime can be held liable.

More specifically, the Vehicle Code states:

Sec. 16-202. Offenses by persons owning or controlling vehicles. It is unlawful for the owner, or any other person, employing or otherwise directing the driver of any vehicle to require or knowingly to permit the operation of such vehicle upon a highway in any manner contrary to law. (625 ILCS 5/16-202).

In other words, if one of your employees is driving his own car and using his/her phone in violation of the Act, but is doing so while working for your company (i.e., on the clock, driving between job sites or project locations) and gets into an accident during this time, the Company *may* also be responsible for any injuries or damages under a legal theory called respondeat superior. If the employee is found to have been acting “in the scope of his employment” at the time of the accident, the employer *may* be liable for that employee’s conduct, because the employee was “at work.”

What does this mean to employers with employees that are driving the roads of Illinois? A great deal! The statute (625 ILCS 5/16-202) allows for the imposition of criminal penalties if the employer directs or otherwise knowingly permits an employee to act in violation of the law.

The enactment of this amendment provides Illinois employers with the opportunity to publish (or create) a policy that tells employees that they are NOT to talk on their mobile phones while on company business and in the car UNLESS they can do so in compliance with this new law. (Please note that Illinois already has a statute in place that bans texting while driving.) While having such a policy does not bar employer liability, having a strongly worded policy could help mitigate the risk of any liability. It is also a great opportunity to train employees and their managers about the dangers of “distracted driving” and the reasons why employees should only use their phones if they can do so using the “hands free” options outlined in the statute (speaker phone, blue tooth, etc.) on devices that have the ability to be activated by pressing the *one* button (i.e., answering and ending a call).

If you have any questions about this new amendment or policies related to banning distracted driving, please contact any of the authors, a member of Seyfarth’s Workplace Policies and Handbooks Team, or your Seyfarth attorney.