Many employers allow employees to use their own personal cell phones for work. Some employers have BYOD (Bring Your Own Device) policies to address important issues such as confidentiality of employer data, privacy, and reimbursement. Other employers let employees use their phones but have not implemented such policies. Whether you have a BYOD policy or not, take note – California law now requires employers to reimburse employees for work-related calls and data usage.
The issue in a recent case, Cochran v. Schwan’s Home Service, Inc., was framed as follows: “Does an employer always have to reimburse an employee for the reasonable expense of the mandatory use of a personal cell phone, or is the reimbursement obligation limited to the situation in which the employee incurred an extra expense that he or she would not have otherwise incurred absent the job?”
The answer was direct: To be in compliance with California Labor Code Section 2802, “the employer must pay some reasonable percentage of the employee’s cell phone bill.”
The court rejected the argument that many employees had unlimited plans and did not incur extra expenses due to work-related calls. The court also rejected the argument that many employees had phones supplied and paid for by third parties like family members. Rather, to show liability, all the employee needs to do is “show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed.”
The court recognized that the issue of damages was more complicated, reversed the trial court’s decision denying class certification, and ordered the trial court to reconsider how such damages might be proved on a class wide basis with statistical sampling.
How should employers protect themselves from claims? Well, the tips we recommended last April still ring true including:
- A handbook policy about expense reimbursement listing non-obvious examples such as data plans and phone calls;
- A clear BYOD policy with reimbursement for a portion of the data plan; and
- An exit practice for departing employees to ensure all work related expenses have been submitted and reimbursed.
While the tips are the same, the stakes are now higher for employers who neglect to implement them.