• Two New Laws Affect California Employers' Responsibilities For Employees in Transit
  • October 26, 2008
  • Law Firm: Bingham McCutchen LLP - Boston Office
  • Employers should be aware of two new laws effective in January 2009, which if not heeded could lead to legal exposure. The first law prohibits all drivers from using text messaging devices while driving anywhere in the State of California. The second impacts those employing individuals to work in the City and County of San Francisco, and imposes an obligation upon such employers to provide a transportation benefit.

    New California Law Bans Texting While Driving

    Close on the heels of the California state ban on using cell phones while driving, Governor Schwarzenegger has signed into law SB 28, extending this ban to text-based communications. Under the new law, effective January 1, 2009, a person may not “write, send or read a text-based communication” while driving (the ban does not apply to passengers). However, dialing a cell phone is explicitly excluded from the ban provided the driver uses a hands free device for the ensuing call.

    Violation of the law constitutes an infraction, and carries a fine of $20 fine for the first offense and $50 for repeat offenders.

    Significance for Employers

    In preparation for the new year, employers should revise their policies to state clearly that employees may not check Blackberries or text messages while driving, and must pull over before receiving or sending messages.

    Employers in San Francisco Must Offer Benefits to Commuting Employees

    In related news, the City and County of San Francisco has passed an Ordinance requiring covered employers to provide certain benefits to covered employees to encourage use of public transportation. The Ordinance applies to any employer employing 20 or more employees anywhere (including employees not working in San Francisco), and requires those employers to provide benefits to any employee who 1) performs an average of at least 10 hours of work per week in San Francisco, 2) has at least one calendar month of service with the employer, and 3) qualifies as an employee entitled to payment of a minimum wage from the employer under the California minimum wage law.

    Employers may select one of three options for complying with the Ordinance:

    • Employers may offer a program under section 132(f) of the Internal Revenue Code, under which employees set aside pre-tax wages for commuting costs. Under such a program, employees may elect to exclude up to the maximum level allowed by section 132(f), $115 per month as of January 2009 to cover the cost of transit passes or vanpool charges (but not parking);
    • Employers may supply a transit pass for the public transit system the employee requests, up to the cost of an adult San Francisco MUNI Fast Pass (currently $45 per month), or cover vanpool charges up to the same amount; or
    • Employers may furnish vanpool or bus transportation to employees at no cost to the employee.

    The Ordinance also takes effect in January 2009 and will be enforced by the San Francisco Department of the Environment. Violation is an infraction and carries a fine of $100 for the first offense, $200 for the second offense within one year, and $500 for each additional violation in the same year.

    Significance for Employers

    Now is the time for employers to develop a plan to comply with the Ordinance. In weighing the three compliance options, employers should consider the first option, a section 132(f) plan, which will have the benefit of reducing employees’ taxable income and thereby employers’ payroll tax loads. By contrast, there may be drawbacks to offering the third option, such as the potential for liability if an employee is injured while commuting in the company van.