Any Business Use of a Personal Cell Phone Requires Employee Reimbursement.

It is a fact of life that many employees make work-related call on their personal cell phones.  Employers may be aware of this practice but not have a specific policy regarding the use of personal cell phones for work-related calls.  If you do not have a policy permitting or prohibiting this practice, it may be time for you to create one.

Earlier this week, the California Court of Appeal overruled a trial court’s order denying class action to a group of customer service managers seeking reimbursement of expenses relating to work-related calls made on their personal cell phones.  The court ruled that employers are required to provide reimbursement to employees for such calls even if employees have unlimited minutes plan and incur no additional expenses for the work-related calls.  The court explained that to hold otherwise would result in the employer receiving a windfall by passing its operating expenses onto the employees.  The court held that in order to be in compliance with the requirements of Labor Code section 2802, an employer must pay some reasonable percentage of the employees’ cell phone bills.

The court did not offer any guidance as to what constituted a “reasonable percentage.”  Instead, it said that such calculations should be left to the trial court and parties in each particular case.  If employers want to avoid potential class action litigation, they should either pay a portion of the employees’ phone bills or enact a policy prohibiting personal cell phones for business use.

Although the opinion does not specifically address data plans and the use of personal cell phones to send and receive work-related emails or text messages, it is not a stretch to imagine that the court would conclude that such use would also trigger a right to reimbursement.

The court’s opinion can be found at: http://www.courts.ca.gov/opinions/documents/B247160.PDF