Category Archives: Expense Reimbursement

NEW CASE Reminds California Employers Of The Business Expense Reimbursement Requirement

A recent $5.4 million settlement of a California wage and hour class action (Marley Castro, et al. v. ABM Industries, Inc.) reminds employers of the far-reaching scope of California Labor Code section 2802’s business expense reimbursement requirement.

In this case, the plaintiffs alleged that the company had failed to reimburse all employees for the required use of their personal cell phones for business-related purposes.  According to the plaintiffs, the company required all employees to use their personal cell phones to (1) clock in and out from work and (2) to communicate with their supervisors.

While this case was settled, it serves as an important reminder that California employers are required to reimburse their employees for business-related use of their personal cell phones.  Specifically that California law requires that employers reimburse employees for “some reasonable percentage” of their cellphone bills if the employer requires them to use their personal cellphones for a business purpose – regardless of whether the employee incurs charges over and above what his or her plan costs.

Some common business-related uses for which employers may require employees use their personal cell phones include:

  • Clocking in and out for work or meal periods;
  • Checking or updating schedules via a scheduling app or otherwise requiring them to use data;
  • Texting or calling a manager regarding scheduling or for other work-related purposes;
  • Using data plans for GPS purposes;
  • Requiring employees to use cellphones for purposes of responding to emergency calls or for on-call time periods;and
  • Any other required use of a personal cellphone (text, call, or data) for business-related purposes.

It is recommended that all California employers review their current reimbursement policies and determine whether they are currently reimbursing employees for required business-related cell phone usage.  If employees are required to use their cell phones for work, employers have the following options available to them:

  • reimburse employees for actual cell phone fees incurred for business purposes;
  • reimburse for a percentage of cell phone fees that accurately reflects the amount of mandatory business usage (and inform employees that if their business-related use exceeds that flat rate, a process employees should follow for reimbursement); or
  • provide employees with a cellphone or another communication alternative for business use .

REMINDER – Illinois Business Expense Reimbursement Requirement Begins January 1st

Attention Illinois employers, starting January 1, 2019, all Illinois employers will be required to reimburse employees for “all necessary expenses that are incurred by the employee with the employee’s scope of employment and that are directly related to services performed for the employer.”  We previously reported on this new law in “NEW LAW – Illinois To Require Business Expense Reimbursement.”

In preparing for this new law, it is recommended that employers take note of the wide array of “business-related expenses” that an employee can incur, like

  • Mileage for work-related travel
  • Personal cell phone use for work purposes (including checking work emails)
  • Work-related expenses for remote employees (eg internet access, office supplies)
  • Costs associated with work-related travel (mileage, but also hotels, meals, air fare, parking, etc)

It is recommended that all Illinois employers develop a written business expense reimbursement policy that sets forth the steps an employee must follow to have their business expenses reimbursed.  Remember, employees are not entitled to reimbursement if they fail to follow an established, written expense reimbursement policy.

NEW LAW – Illinois To Require Business Expense Reimbursement

Illinois Governor Bruce Rauner recently signed Senate Bill 2999, an amendment to the Illinois Wage Payment and Collection Act into law.  This amendment, which goes into effect on January 1, 2019, will require all Illinois employers to “reimburse an employee for all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.”

For purposes of the new law, the term “”necessary expenditures” means all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.  The law makes it clear that employers are not required to reimburse employees for losses due to an employee’s own negligence, losses due to normal wear, or losses due to theft unless the theft was a result of the employer’s negligence.

In order to obtain reimbursement, an employee will be required to submit any necessary expenditure with appropriate supporting documentation within 30 calendar days after incurring the expense.  In the event that the employee does not have “supporting documentation” relating to the expense (i.e. the documentation is nonexistent, missing, or lost), the employee must submit a signed statement regarding any such receipts in order to be reimbursed. Continue reading NEW LAW – Illinois To Require Business Expense Reimbursement

California Employers — Watch Out For These Common Wage And Hour Problems

California’s wage and hour laws are complicated and is constantly changing.  As a result, employers often find themselves running afoul of one (or more) of these laws and facing potential liability.

To mitigate your risk of a wage claim, we recommend that employers regularly audit their wage and hour practices to ensure compliance with California law.  When conducting this audit, make sure you have a clear understanding of the following common problems relating to compensating non-exempt employees:

Overtime And Double Time For Non-Exempt (Hourly Paid) Employees

  • California employers must pay overtime (1.5 times the employee’s regular rate of pay) to non-exempt employees as follows:
    • For all hours worked over eight hours in a workday or 40 hours a week
    • The first 8 hours worked on the 7th consecutive day of work in a workweek
  • California employers must pay double time (2 times the employee’s regular rate of pay) to non-exempt employees as follows:
    • For hours worked over 12 hours in any workday
    • For hours worked over 8 hours on the 7th consecutive day of work in a workweek

Calculating The Regular Rate Of Pay

  • The regular rate of pay is the employee’s actual rate of pay, which includes the employee’s regular hourly earnings (i.e. hourly rate of pay) plus any additional compensation that must be included in the regular rate of pay – including:
    • Commission payments;
    • Piece rate payments;
    • Non-discretionary bonuses (e.g. productivity bonus, performance bonus, attendance bonus, longevity bonus, cost-of-living bonus);
    • Awards or prizes won for quality, quantity or efficiency;
    • Shift differentials;
    • Premiums paid for hazardous, arduous or dirty work;
    • Non-cash wages in the form of goods, board, or lodging;
    • Pay for non-productive work hours (e.g. rest breaks, waiting time, attending meetings); and
    • Lump sum on-call payments.
  • Payments excluded from regular rate of pay:
    • Premium (or extra) pay for daily or weekly overtime;
    • Premium pay for work on weekends, holidays, regular days of rest or the sixth or seventh day of the workweek (if it is at least 1.5 times the rate for work performed during non-overtime hours on other days);
    • Premium pay for work outside the agreed to hours (if it is at least 1.5 times the rate for work performed during the agreed to hours);
    • Discretionary bonuses;
    • Gifts;
    • Certain payments that are not made as compensation for hours of work (e.g. vacation pay, paid time off, sick time, and reimbursement for business expenses);
    • Payments to a bona fide profit-sharing plan or trust or a bona fide thrift or savings plan;
    • Irrevocable contributions to employee health and welfare plans; and
    • Certain stock options, appreciation rights and purchase programs.

Split Shift Premiums

  • Under the split shift premium rule, an employee must receive one hour’s pay at no less than the minimum wage rate for the time between shifts.  An employer can use any hourly amount the employee earns above minimum wage to offset the split shift requirement.

Reporting Time Pay

  • “Reporting time pay” is partial compensation for employees who report to work expecting to work a specified number of hours and who are deprived of that amount because of inadequate scheduling or lack of proper notice by the employer. The provisions of the law regarding reporting time pay are as follows:
    • Each workday an employee is required to report to work, but is not put to work or is furnished with less than half of his or her usual or scheduled day’s work, he or she must be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at his or her regular rate of pay.
    • If an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.

Rest Periods

  • Employers are required to provide a 10-minute, duty-free rest break during each period of four hours (or major fraction thereof, i.e. 2 hours) worked by an employee.  Employers are not required rest periods when an employee’s total daily work time is less than 3½ hours.  This means that employees are entitled to rest periods as follows:
    • An employee who works more than 3½ hours and up to 6 hours is entitled to 1 rest period
    • An employee who works more than 6 hours and up to 10 hours is entitled to 2 rest periods
    • An employee who works more than 10 hours and up to 14 hours is entitled to 3 rest periods
    • An employee who works more than 14 hours and up to 18 hours is entitled to 4 rest periods

Meal Periods

  • Any employee who works more than five hours in a day must be provided with a 30-minute unpaid, duty free meal period.   The meal period must be provided no later than the end of the employee’s 5th hour of work (in other words, before the start of the employee’s 6th hour of work).
    • If an employee’s entire workday is completed in six hours or less, the meal period may be waived by mutual consent of the employer and the employee. This consent should be in writing and signed by both the employee and the employer. If the employee’s workday is more than 6 hours, then the meal period cannot be waived.
  • Any employee who works more than ten (10) hours in a day must be provided with a second unpaid, duty free meal period, also at least 30 minutes in duration. The second meal period must begin no later than the end of an employee’s 10th hour of work (i.e. before the employee works more than 10 hours).
    • If the total workday is 12 hours or less, the second meal period may be waived by mutual consent of the employer and employee, but only if the first meal period was taken. If an employee works more than 12 hours in a day, the second meal period may not be waived (except employees in the health care industry may voluntarily waive their second meal period after 12 hours).

Timekeeping Requirements

  • Employers must record the beginning and end of each workday and the beginning and end of unpaid meal or other unpaid periods.

Wage Theft Protection Act Notice

  • All non-exempt employees must be provided with a Wage Theft Prevention Notice at time of hire and within 7 days of a change.  A sample notice is available here.

Cellphone Reimbursement (** also applies to exempt employees)

  • Employers must reimburse employees who use personal cellphones for business purposes for both voice and data fees incurred for business purposes.

Paid Sick Leave (** also applies to exempt employees)

  • Employers must provide employees with paid sick leave in accordance with state or, if applicable, local law.

Pay Stub Requirements (** also applies to exempt employees)

  • Employers must provide all employees with an itemized statement of wages that includes the following information:
    • Gross wages earned;
    • Total hours worked by the employee (not required for salaried, exempt employees);
    • For piece-rate employees, the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, and the total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period, and the total hours of other nonproductive time, the rate of compensation, and the gross wages paid for that time during the pay period;
    • All deductions (all deductions made on written orders of the employee may be aggregated and shown as one item);
    • Net wages earned;
    • The inclusive dates of the period for which the employee is paid;
    • The employee’s name and the last four digits of his or her social security number or an employee identification number other than a social security number;
    • The name and address of the legal entity that is the employer; and
    • All applicable hourly rates in effect during the pay period, and the corresponding number of hours worked at each hourly rate by the employee.
  • In addition, all employee paychecks must list the address of a specific location within the state where the check can be cashed without a fee.

Vacation Pay (** also applies to exempt employees)

  • Forfeiture of vacation is prohibited in California
    • “Use it or lose it” policies are not permitted
    • All accrued but unused vacation must be paid upon termination

Final Paychecks (** also applies to exempt employees)

  • All employees must receive their final wages within the following timeframe:
    • Immediately upon involuntary termination
    • Within 72 hours if employee resigns without notice
    • On last day of work if employee resigns with at least 72 hours’ notice
  • All wages “due and owing” must be paid with the final wages, otherwise waiting time penalties are assessed.  This includes accrued, unused vacation and/or meal/rest period premiums
    • Commissions or other performance-based pay must be paid as soon as it can be calculated, regardless of when it otherwise would be paid.
  • No deduction may be taken from final paychecks unless legally mandated, authorized in writing by the employee, or for a loss attributable to the employee’s dishonest or willful act or gross negligence (but only if the employer is absolutely positive that it can be proven that the employee was not simply negligent). No balloon deductions for payoffs of employer loans to employees.

Court Finds Employer Must Pay Employee’s Cell Phone

The Ruling

Employer ordered to pay employee’s personal cell phone bill.  The Second District, California Court of Appeal made a surprising ruling in Cochran v. Schwan’s Home Service, Inc.:

“We hold that when employees must use their personal cell phones for work-related calls, Labor Code section 2802 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills. Because the trial court relied on erroneous legal assumptions about the application of section 2802, we must reverse the order denying certification to a class of 1,500 service managers in an action against Schwan’s Home Service, Inc. (Home Service) seeking, inter alia, reimbursement of work-related cell phone expenses.”

Facts of the Case

A class of customer service managers claimed that Schwan’s refusal to reimburse employees for personal cell phone use violated California Labor Code section 2802, subdivision (a), which states in part:

“[a]n 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[.]”

Schwan’s customer service managers used their personal cell phones while servicing various customer accounts.  Schwan knew that these managers used their personal phones and made no effort to curtail the use of personal cell phones or to reimburse employees for using their personal phone.

The Court found that Labor Code section 2802 always requires an employer to reimburse an employee for reasonable expenses of the mandatory use of a personal cell phone.  The Court reasoned that failure to reimburse results in the employer receiving a windfall by passing on operating costs to the employee.

Employer Take-Away

Prepare concise procedures for cell phone use for work-related purposes.  If you don’t want to supply a company phone for your employees to use, make sure that the expectations of use and reimbursement of personal cell phones is crystal clear.