Texting while driving may run afoul of the federal Occupational Safety and Health Administration. On Oct. 4, 2010, OSHA joined forces with the U.S. Dept. of Transportation to issue its Distracted Driving Initiative. One of the elements of this initiative was a warning from OSHA that it considers texting while driving a "recognized hazard" and that a company can be held liable for willful violations under OSHA's general duty clause for safety violations if the company requires or encourages employees to text while driving or makes texting while driving a practical necessity.

The implications for contractor liability for employees texting while driving may go beyond just the jobsite. Generally, employers can be held liable for the negligence of their employees while on the job. However, a ruling by an appeals court in a cell-phone case may push these liability issues even further.

In Hunter v. Modern Continental Construction Co., an MCC shift supervisor was on his way to the jobsite in his truck when he hit another car at an intersection in Atlanta. The woman he hit sued MCC, claiming he was distracted by his company cell phone.

While the supervisor denied this, a welder on the job admitted he had called the supervisor at the time, and the supervisor admitted he glanced at the cell phone's screen and recognized the welder's name. While the trial court dismissed the case against MCC, the appeals court in 2007 reversed the decision and sent the case back for a trial.

The appeals court ruled that, while an employee on his way to or from work is presumed to be on his own time and not working for the employer, an injured party should be given the chance to produce evidence that the employee was doing work for the employer and that work contributed to the accident.

The Hunter vs. Modern ruling hinged on phone records, not the content of the conversation. In the case of texting, the timing of the incident and the nature of the communication is clearer, making it easier to prove the employer is liable.

Further, there have been cases in which lawyers have successfully argued that an employer can be held liable for providing employees with cell phones, tablets or other texting devices and not teaching them how to use them safely, not having rules prohibiting employees from using them on-site and while leaving the site, or having such rules but not enforcing them.

Despite all this, research shows that distracted-driver bans have little or no effect on safety. In two separate studies last year, the Insurance Institute for Highway Safety found that bans on cell phones and texting while driving actually cause accidents to remain flat or rise slightly, perhaps because operators are trying to hide their actions from the authorities.

"I feel that a ban will ultimately happen because of the continued increase of accidents, injury and death," says an official at one nationwide general contractor who asked to remain anonymous.

"We have had no company-related incidents or accidents related to distracted driving, However, we continue to observe drivers all over the road distracted by phones and iPads," the official said.