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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.

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Attorney answers 6

Posted

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 http://www.dir.ca.gov/dlse/ 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)

twitter.com/MikaSpencer *** 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. ***

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

(continued from Answer above) 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, 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. When you are ready: The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.

Michael Raymond Daymude

Michael Raymond Daymude

Posted

You advice is always excellent, Ms. Spencer. But, with this post I think you outdid yerself (sic).

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Thank you. I cheat, you know. I use macros. No way I would have the time to type out such long responses otherwise!

Michael Raymond Daymude

Michael Raymond Daymude

Posted

I knew as much. Still, I don't remember reading the "waiting" part before which is the advice I thought was particularly helpful. Askers are frequently more concerned with their “right to sue” than they should be, IMO. They fail to understand the practical implications and that it costs $s – usually more $s than any Asker is willing or able to pay – and frequently more than their claim is worth.

Asker

Posted

To the fact of giving a copy of the law my employer has already been done a week ago by another coworker. Adhoc phone policy has not changed.

Posted

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.

Posted

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.

Asker

Posted

I have not been close to use all of my minutes. But if it comes to me going over due to I'm on a family plan that includes my wife and children. The cost will be more than $20. Which makes the policy even more ridiculous.

David Andrew Mallen

David Andrew Mallen

Posted

Got it. Bad employer policy. Tough choice to make. If you are going to stick your neck out and risk your job by complaining, I recommend a polite note requesting the difference once you get a bill that is not covered by the $20.00 extra. (as opposed to an oral complaint that is harder to prove). All the best. Your question generated some interesting discussion.

Asker

Posted

Well a coworker who provided a copy of the statue was fired today. Reason: jeopardizing the integrity of the company.

David Andrew Mallen

David Andrew Mallen

Posted

Not cool. Duck and cover if you need your job. This employer does not mess around. Also, remember this is a public forum, and try to refrain posting anything that could identify yourself, your employer or your co-workers.

Posted

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.

Posted

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?

Asker

Posted

I kind of see it like car milage. If I use my car to take my children to school then drive out of town for a business meeting. They should compensate me for the wear and tear of my vehicle and gas for the use of business. I wont be incurring anything more extra since my car is paid off. I am still using my personal property for the benefit of the business.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Mr. Baker: The employer is requiring the employees to fund a portion of its overhead. The employees must now be careful not to exceed the minutes they intended to buy but also the minutes the employer is forcing them to use. The employer is saving the cost of the phones and the use of the phones and requiring the employees to subsidize the employer's operating costs. An employer must provide employees with the tools they need to do their jobs.

Neil Pedersen

Neil Pedersen

Posted

I agree with Ms. Spencer. In a limited minute plan, minutes equal money. If the employer requires the employee to use valuable minutes, it is taking the employee's money to finance its own operation.

Robert Pecco Baker

Robert Pecco Baker

Posted

But the statute addresses reimbursing the employee for his/her costs not forcing the employer to compensate the employee for every contribution to overhead and the distinction makes a difference in this case. The employer has agreed to compensate for over the limit minutes. The plan pre existed employment. therefore the costs incurred are not directly related to employment.. If you take a very broad reading of the statute, the employee cold win, but everyone seems to be assuming he/she wins and I am not so sure as I read the statute.   Robert P. Baker Law Offices of Robert P. Baker 723 Ocean Front Walk Venice, California 90291 Tel:(310) 450-6092 Fax: (310) 399-7040 www.bakerjustice.com Justitia nemini neganda est > > >

Robert Pecco Baker

Robert Pecco Baker

Posted

But the statute addresses reimbursing the employee for his/her costs not forcing the employer to compensate the employee for every contribution to overhead and the distinction makes a difference in this case. The employer has agreed to compensate for over the limit minutes. The plan pre existed employment. therefore the costs incurred are not directly related to employment. If you take a very broad reading of the statute, the employee cold win, but everyone seems to be assuming he/she wins and I am not so sure as I read the statute.   Robert P. Baker Law Offices of Robert P. Baker 723 Ocean Front Walk Venice, California 90291 Tel:(310) 450-6092 Fax: (310) 399-7040 www.bakerjustice.com Justitia nemini neganda est > > >

Neil Pedersen

Neil Pedersen

Posted

Respectfully, we just disagree.

Robert Pecco Baker

Robert Pecco Baker

Posted

Here is the issue in a nutshell. The one item that every educated,  employed person has is a cell phone. Not even a car is so universally owned as many in NYC and DC as well as other cities pass on auto ownership. An employer can expect an employee to have  and bring to work a cell phone, paying only for extra costs related to the job. By way of analogy, when I started as a young lawyer, I was required to wear clothes to work.I was not compensated for them. In fact, I was required to wear suits and was neither reimbursed nor entitled to a tax deduction. Cell phones have become like clothes. If an employer requires feather boas, those get comped- hence extra minutes are reimbursed.   Robert P. Baker Law Offices of Robert P. Baker 723 Ocean Front Walk Venice, California 90291 Tel:(310) 450-6092 Fax: (310) 399-7040 www.bakerjustice.com Justitia nemini neganda est > > >

Robert Pecco Baker

Robert Pecco Baker

Posted

Here is the issue in a nutshell. The one item that every educated,  employed person has is a cell phone. Not even a car is so universally owned as many in NYC and DC as well as other cities pass on auto ownership. An employer can expect an employee to have  and bring to work a cell phone, paying only for extra costs related to the job. By way of analogy, when I started as a young lawyer, I was required to wear clothes to work.I was not compensated for them. In fact, I was required to wear suits and was neither reimbursed nor entitled to a tax deduction. Cell phones have become like clothes. If an employer requires feather boas, those get comped- hence extra minutes are reimbursed.  Robert P. Baker   Robert P. Baker Law Offices of Robert P. Baker 723 Ocean Front Walk Venice, California 90291 Tel:(310) 450-6092 Fax: (310) 399-7040 www.bakerjustice.com Justitia nemini neganda est > > >

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Mr. Baker: My view differs from yours and is based on my analysis of the Labor Code, Wage Orders, DLSE Enforcement Manual, case law, and DLSE Statement of the Basis.

Robert Pecco Baker

Robert Pecco Baker

Posted

Well discussions like this are what make law interesting. I went back and read the question again to consider the matter further. What the asker is saying is that since his bill does not itemize his calls there was no way to determine the portion of his bill that was allocable to his work, so the employer "now" will only reimburse $20 if he goes over his minutes. So, let me ask you. What are the direct costs due to employment that the employer should reimburse under your theory? There is no way to determine the minutes used for work, apparently. The employee arbitrarily wanted $20. What makes that a cost directly attributable to employment? If the employee bought cell phone insurance and accessories, does he get to put in for part of the cost of those and of the phone too? What about the cost of  the electricity to recharge the phone? That might be the closest comparison, because as in the case of the minutes there is a monthly bill but no way to determine how much relates to the phone or to the portion of it used for work.. The asker could have kept a minutes log and presented that to the employer. Dear Employer: I made 8 calls totaling 50 minutes. This is half of my 100 minute allotment for the month. Please reimburse 1/2 of my monthly bill. But, he did not do that--and it seems to have figured in to the employer's decision not to reimburse him if you read the question closely. Absent that he would only pay if the minute limit were exceeded. There might be some ruling out there that just resolves this in favor of the employee. But I am not seeing the logic of this so clearly that everyone should just assume, in the absence of such, that he will recover. I certainly would not counsel him to become adverse to his employer over this.  I do respect your opinion though. I believe you do mostly or entirely this kind of work, and I am more of a generalist   Robert P.. Baker Law Offices of Robert P. Baker 723 Ocean Front Walk Venice, California 90291 Tel:(310) 450-6092 Fax: (310) 399-7040 www.bakerjustice.com Justitia nemini neganda est > > >

Posted

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.

Asker

Posted

Yes there was one. Employees were told: No phone no job. He had been using his wife's phone and was required to get texting on her plan and is reimbursed for the extra charge. Employees have been sent home because of uncharged phones. Not sure what of what the policy of one gets damaged. I'm sure they will come up with a good one in that instant.

Asker

Posted

Well the coworker who provided the copy of the statue was fired today. Reason: jeopardizing the integrity of the company.

Linh Thiet Nguyen

Linh Thiet Nguyen

Posted

This may be retaliation. Your co-worker should consult an employment attorney immediately for a free consultation.