The threshold question in this case is this: 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 is that reimbursement is always required. Otherwise, the employer would receive a windfall because it would be passing its operating expenses onto the employee. Thus, to be in compliance with section 2802, the employer must pay some reasonable percentage of the employee’s cell phone bill. Because of the differences in cell phone plans and worked-related scenarios, the calculation of reimbursement must be left to the trial court and parties in each particular case.
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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. Damages, of course, raise issues that are more complicated.
You can look for case law or other authority explaining how this rule is derived, but you won't find any. This Court created the rule that additional incremental expense is not required.
It's old news that employers must reimburse employees for business use of a personal automobile. Although the employee owns the car, there are incremental costs associated with operating the vehicle on a business trip: the tires, the oil, fuel, wear and tear. It's not really the same thing when an employee already owns a cell phone with an unlimited data plan. The phone exists. The phone bill is the same regardless of whether the employee uses it for business or personal calls.
Now, don't get me wrong. I see where the employer has an obligation to reimburse under different circumstances. For example, if the use of a cell phone is integral to the job, sure. For example in this case, it is possible that the job itself required being outside an office and available by phone. If an employee increases his or her plan minutes because of work-related calls, naturally the employer should have to pay. If an employee has to buy a phone or phone plan because of work, absolutely. But if an employee already has an unlimited plan, how is he or she out money - requiring reimbursement - if he or she simply uses her phone that she already had?
The court of appeal has an answer: it's irrelevant. Reimbursement is due. The court was careful to say that use of the personal phone must be "mandatory." So, occasional voluntary use may not create a reimbursement obligation. Using your cell phone to call your voice mail when outside the office? Could be?
This case also could have a significant affect on the BYOD (bring your own device) plans that are popular nowadays. Employers and employees should establish in advance whether the employer requires employees to use a personal device as part of the job, and then decide how much the employer will pay for its use. The court gave no guidance on this point other than "a reasonable percentage" of the cost of the monthly plan.
Of additional interest, does this case create new expense reimbursement obligations when the employee uses personal items for work, but does not incur an additional expense? what about if an employer requires an employee to wear a suit or tie to work? Must the employer pay a reasonable percentage of the cost? Briefcase? We shall see.
This case is Cochran v. Schwan's Home Service and the opinion is here.
