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Can a employer refuse to compensate you for using your personal phone used for business?

Parlier, CA |

The employer took away our business phones and told us we had to use our personal phones and that he would reimburse for any calls made for business. Since my bill does not give itemized dollar amount per call I am using minutes on my plan for work. When I ask how they will figure the amount owed to me the employer said they will now only reimburse me $20 IF I go over my minutes.

Attorney Answers 6

  1. California Labor Code section 2802 requires an employer to indemnify an employee for expenses incurred on the job. I’ve pasted the statute below:

    2802. (a) An employer shall indemnify his or her 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, even though unlawful,
    unless the employee, at the time of obeying the directions, believed
    them to be unlawful.

    (b) All awards made by a court or by the Division of Labor
    Standards Enforcement for reimbursement of necessary expenditures
    under this section shall carry interest at the same rate as judgments
    in civil actions. Interest shall accrue from the date on which the
    employee incurred the necessary expenditure or loss.
    (c) For purposes of this section, the term “necessary expenditures
    or losses” shall include all reasonable costs, including, but not
    limited to, attorney’s fees incurred by the employee enforcing the
    rights granted by this section.

    You can provide your employer with a copy of this Labor Code section, or pursue a claim through the Division of Labor Standards and Enforcement at no charge.

    BUT . . . even if your employer violated the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job in this terrible economy and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.

    There is an alternative, though it involves waiting. California law requires an employer to pay an employee all accrued wages, vacation, PTO, reimbursements and ascertainable commissions AT THE TIME the employer ends the employment relationship. If the employee quits without advance notice, the employer has 72 hours to make this payment.

    If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.

    So when your employment with this employer ends you can PROBABLY pursue a wage claim or lawsuit if you are not paid everything as required. Your best bet is always to consult one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as Avvo.

    Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents. Keep all this at home, not at work, to make sure it remains private.

    (continued in Comment below) *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

  2. California Labor Code section 2802 requires employers to reimburse employees for all work-related expenses. Your employer's policy of only reimbursing cell phone bills if you go over your monthly limits would violate this provision. There are various ways of reimbursing employees for business related cell phone expenses but one method is to pay you a minimum monthly stipend that covers X number of minutes and then providing you with an additional amount if you exceed that. You could file a claim with the Labor Commissioner over this. You should also speak with an employment lawyer because an employer who has a unlawful reimbursement policy also may be violating other wage and hour provisions.

  3. The legal analysis from my good colleagues is accurate and complete, in my book.

    At the risk of overstating the obvious, you have no Labor Code 2802 claim if the extra $20 is sufficient to cover the excess phone charges. It is your burden to prove that you were not reimbursed properly, and no court or lawyer is going to want to go through that exercise if it can be avoided.

    Have you considered looking into an "unlimited minutes" plan plan with the extra $20.00? Y

    If you come up with something creative, maybe you will win "brownie points" with the boss.

    David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

  4. My colleagues provide excellent information. However, you should be aware that claims for unreimbursed business expenses generally must be brought within three years of the date the expense is incurred. (Code Civ. Proc., § 338(a).) Something to keep in mind when strategizing how to enforce your rights.

    This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.

  5. Everyone seems sure you have a claim. I am not. the statute say you get reimbursed for expenses incurred as a direct result of your job. You already had this cell phone plan and your employer said he will compensate you if your business minutes put you over the limit. what am I missing?

  6. What is your employer's policy for employees without cell phones? I imagine some employees didn't have personal cell phones when the employer provided them. Were they required to purchase phones? What about phones that get damaged while being used for work? How many employees were affected by the policy?

    Law Offices of Linh T. Nguyen 916.509.7200 Disclaimer: This reply is not intended to be and does not constitute legal advice or the establishment of an attorney-client relationship. I always recommend consulting with an attorney, especially since many attorneys offer free, no-obligation consultations.

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