Updated September 24, 2018
As of January 1, 2016, California employers must reimburse employees for use of their personal cell phones for mandatory business purposes, as decided by the California Appellate Court in Cochran v. Schwan’s Home Service, Inc. The ruling affects millions of employers who must update their company policies in order to stay compliant with the new law. While this law has been on the books for over two years now, it appears as though many companies have not addressed this law or made it part of their employee reimbursement practices. Is your company reimbursing its employees for their cell phone call and data usage? Read below for policy suggestions.
What does this mean for employers?
California employers must indemnify employees for all “necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.” Unfortunately, the exact measure of reimbursement is somewhat unclear. While the court in Cochran determined that employers must consistently reimburse employees a “reasonable percentage,” it did not define what is reasonable. Furthermore, the employer must reimburse the employee even if the employee does not incur any additional expense on his or her cell phone/data plan as the result of using the device for work-related purposes (i.e. if the client has unlimited talk, text, and data plans).
Examples of Reimbursement Policies
The California law rules out implementing a simple flat rate, or a maximum amount of work-related cell phone expenses. That means employers must consider adopting new reimbursement policies to ensure that they remain compliant with California laws.
For example: An employee is a salesperson in the field and uses a cell phone for business-related purposes. The employer has several options to remain compliant with the reimbursement law:
Pay the employee’s entire cell phone bill;
Pay a “reasonable” portion of the cell phone bill as determined by the employee’s submitted phone bill;
Pay a flat rate that is a reasonable estimate of charges. In the event that charges exceed the flat rate, allow the employee to submit charges for reimbursement.
What if an employee has an unlimited amount of minutes, texting, and data in their cell phone plan?
If an employee has a personal cell phone plan with unlimited minutes, or otherwise did not incur any special or extra expense for work-related purposes, the employer is still liable for the business related phone charges. This is because the court’s reasoning focused on the benefit to the employer instead of the actual expense to the employee. The employer would otherwise be passing its operating expenses onto the employee, and receive a windfall.
The Cochran Court’s Analysis
The court made it very clear that employers shall not receive a windfall:
“If an employee is required to make work-related calls on a personal cell phone, then he or she is incurring an expense for purposes of [California Labor Code] section 2802. It does not matter whether the phone bill is paid for by a third person, or at all. In other words, it is no concern to the employer that the employee may pass on the expense to a family member or friend, or to a carrier that has to then write off a loss. It is irrelevant whether the employee changed plans to accommodate worked-related cell phone usage. Also, the details of the employee’s cell phone plan do not factor into the liability analysis. Not only does our interpretation prevent employers from passing on operating expenses, it also prevents them from digging into the private lives of their employees to unearth how they handle their finances vis-à-vis family, friends and creditors.” To show liability under section 2802, an employee need only 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.
When employees use their own cell phones for business purposes, it creates additional intellectual property, data security, and liability risks for the employers. Accordingly, Employers may want to provide phones and electronic devices to its employees so that it can have greater control over security and use of Company data.
To ensure that your business remains compliant with this new law, consult a licensed California employment attorney.
About The Grady Firm, P.C.
The Grady Firm, P.C. attorneys specialize in helping businesses grow and succeed through employment, business, and immigration law advising for clients in California. They help perform personnel audits, draft/revise Employee Handbooks, train employers on employment law compliance, provide on-demand legal analysis for hiring and firing questions, and provide leadership and sexual harassment training in English and Spanish.
To learn more about ensuring your business is compliant with state and local laws, schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (949) 798-6298; or fill out a Contact Request Form.
*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.
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