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
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
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
How should employers protect themselves from claims?
Well, the tips we recommended last April still ring true
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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