The workday and tools we use have changed dramatically in just the last 15 years or so. I remember when attorneys did not use a word processor or a computer. The fax machine was a strange and frightening modern marvel that had to be turned off at 5 p.m. sharp and remain off on the weekends to prevent the office from receiving a fax after work hours. And, email was just for college students.
It goes without saying things have changed and the tools we use to do our jobs has changed from computers to laptops to tablets. Now, many jobs involve the use of a smart phone and an App. Employers have taken advantage of this progression and want their employees to have smart phones and to use them to do their job. Employers may even have an App that they require their employees to install.
While this is a great cost cutting feature for employers, the question is can an employer require an employee as a condition of employment to have a phone or smart phone and use it for work without paying for it?
Well, in 2014 a California Court of Appeals addressed a similar question in lawsuit entitled Cochran v. Schwan’s Home Serv., Inc. In Cochran, the lead employee plaintiff brought a class action against a food delivery company, on behalf of 1,500 service employees who were not reimbursed for making work-related calls on their personal cell phones. Apparently, the employees were using their personal cell phones to coordinate food deliveries with clients.
The plaintiff claimed that he and other employees were entitled to reimbursement under a California Labor Code that requires an employer to reimburse an employee 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.” The trial court didn’t completely agree with the employees. It ruled that Labor Code section 2802 did not require the company to reimburse employees who had unlimited minutes because, in short, it didn’t cost an employee to use his or her cell service for worked-related calls.
Well, the Court of Appeal overruled the trial court. It reasoned that the purpose of Labor Code section 2802 is “to prevent employers from passing their operating expenses on to their employees.” It, therefore, concluded that reimbursement is “always” required for an employee’s “mandatory use” of personal cell phone to make work-related calls; otherwise, the court stated, “the employer would receive a windfall because it would be passing its operating expenses onto the employee.” To avoid this windfall, the employer must pay “some reasonable percentage” of the employee’s cell phone bill, even when the employee’s use of his or her cell phone for work does not increase the employee’s bill.
While the Cochran case didn’t specifically address smart phones and Apps, it stands for the proposition that employers can’t pass on their operating costs to employees, even when the employee has the equipment, device or service. It acknowledges that some employees do not incur an expense for using his or her cell when making work-related calls. None-the-less, the employer is going to have to pay “some reasonable percentage” of the monthly bill. Employers that require an employee to have a smart phone or any other device and to use it for work will have to reimburse the employee for at least a reasonable percentage of the service, if not the entire monthly bill and possibly the cost of the smart phone or device.
If you have an employment law question, such as wage and hour laws, overtime, discrimination, sexual harassment, or retaliation, you need to talk to an attorney that is knowledgeable about worker’s rights and employment law. We can help you—Initial consultations and evaluations for employment related violations are confidential and free, so there is no cost to you to find out if you have a valid concern and are entitled to compensation.