Matthew Kenney

Small Business | Workplace Law

Archives for December 2019

Employees, Texting & Driving: What’s Your Policy?

|

Department of Transportation statistics suggest we spend about an hour daily driving our vehicles. Of course, much of this time is spent commuting to/from work. We also know that text messaging within companies has become ubiquitous. So, this begs the question: Might employees and employers be texting each other while driving?

If the answer to the answer is “Yes”, the next question managers should ask is “Does our company have a texting while driving policy?”

If your company does not have such a policy, it should. Texting while driving is illegal in Florida. On January 1st, 2020 a tougher law goes into effect making texting-while-driving a primary offense. Essentially, this means police officers may pull-over drivers expressly for texting.

If your employees are texting each other, while at least one is driving, your company is assuming significant risk. We know this because texting while driving is extremely dangerous. In 2018 alone, nearly 5,000 deaths; more than 1,000,000 accidents; and nearly 400,000 injuries were related to cell phone related distracted driving.

If an employee is driving and texting, and the text is related to his/job, then any accident flowing from the employee’s distracted driving would, likely, be viewed as within the scope of employment. Thus, the employer would be responsible. It’s simple negligence, really. Drivers have a duty to protect others. Texting while driving breaches that duty. If injury is caused due to this breach; and the damages are those anticipated from such a breach (e.g. personal injury, property damage etc.)…your company is negligent.

Therefore, every company should have an anti-texting while driving policy that educates employees to the risks of texting while driving; prohibits the conduct;, and reinforces the illegality of the practice. Such a policy could establish best practices for how and when co-workers should communicate. At the very least, it could encourage employees to use smartphone features that block incoming messages while driving.

Rest assured, if an employee is involved in a texting while driving accident the plaintiff’s attorney will ask about your policy and training. Protect your company. Protect your employees. Protect innocent drivers, passengers and pedestrians. Make sure your company has an anti-texting policy…and enforce it. I’d be happy to draft such a policy for you. It’s not the most challenging legal exercise, but it’s among the most important. If your HR manager chooses to draft the policy, just be sure to have your lawyer inspect it to ensure it’s aligned with Florida law.

Is an English-Speaking Only Workplace Legal?

|

My Business Law students are often surprised to learn that the State of Florida, unlike the United States of America, has an official language: English. See Article II, Section 9 of the Florida Constitution. So, does that mean employers can require employees to only speak English at work? Generally speaking, the answer is “no”.

Florida employers who attempt to unreasonably require an English language-only workplace may experience a similar fate to the Texas resort, which recently paid more than $2.6 Million in damages for requiring 25 Hispanic employees to speak English only.

Students often ask: If English is the official language in Florida, why is requiring an English speaking workplace illegal? The reason: Such a policy violates the Federal Civil Rights Act of 1964 (and the Florida Civil Rights Act of 1992). Preventing employees from speaking their primary language is considered National Origin discrimination because language is a manifestation of one’s birthplace.

Stated differently, racist managers might try to circumvent laws against racial discrimination by prohibiting employment based on language instead. However, government agencies and plaintiff lawyers are wise to this trick. Prohibiting certain languages in the workplace is tantamount to prohibiting certain types of people, and smart people know it.

Employees should know, however, that Federal and Florida anti-discrimination laws generally apply to workplaces with 15 or more employees. Some county ordinances (e.g. Osceola and Orange) reduce the threshold number of employees to as little as 5 or 6. However, it’s still technically legal for very small businesses to require an English speaking workplace. Immoral, perhaps…but not illegal.

This is another reason why employees should consider the size of an employer (based on the number of employees) before seeking employment. Some laws apply to employers of all sizes, while other laws apply only to some employers. Likewise, employers should know what laws will apply as their businesses grow. Again, employment law is often dependent on the size of a company based on the number of workers employed, not the amount of revenue generated.

(c) Copyright 2019. All Rights Reserved.

Social Media

Linkedin