Employee BYOD: Compliance with California Reimbursement Laws
BYOD is an acronym for “bring your own device.” It is increasingly common for employers and businesses to allow or require that their employees use their own devices for business purposes. The most common device is, of course, employee-owned cellphones. But BYOD covers other devices too, like tablets, laptops, and other internet equipment.
There are many good reasons for encouraging or requiring BYOD. Your San Diego business saves the cost of buying the equipment and buying new equipment when the technology evolves. Employees already know how to use the equipment, which saves training costs. Furthermore, employees generally self-train when there are updates and there is no need to mandate the self-training since the employees generally learn the updates for their own personal reasons. As a consequence, the business obtains an ever-upgrading skill-set from the BYOD employees at no cost or at minimal cost. These advantages dovetail nicely with employee preferences since anecdotal studies have shown that employees — particularly millennials — prefer using their own devices.
There are, however, some legal issues with respect to BYOD, including risks associated with privacy, data security, compliance with California labor laws, and more. If your business allows or requires BYOD, many of these legal risks can be managed with a good, well-crafted company policy with respect to BYOD. An experienced San Diego corporate attorney can help draft such a policy.
This article deals with a more specific issue: reimbursement costs for BYOD.
California Labor Code §2802 mandates that employers must reimburse their employee for business expenses. Subdivision (a) of the section provides that
“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 direction of the employer.”
Note that the statutory language does not reference circumstances where use of an employee-owned device is permissible (as opposed to required). This distinction can cause confusion, though. You, as the employer, might consider BYOD to be permissive, but your employees might feel for various reasons that the BYOD is required. This is one reason that a well-crafted company policy on BYOD is necessary. The company can minimize litigation risks by clearly defining and distinguishing required and permissive use of BYOD.
In any event, as interpreted by California courts, certainly where required, the §2802 reimbursement requirement includes the costs of cellular service and data plans, either the cost directly related to the business use or the reasonable percentage of the cost if the cost is flat-fee. See Cochran v. Schwan’s Home Service, Inc., 228 Cal. App. 4th 1137 (Cal. App. 2nd Dist. 2014) (holding that section 2802 requires the employer to reimburse the cost of cell phone plans when employees must use their personal cell phones for work-related calls; if the cost is flat-fee with unlimited minutes, the reimbursement owed is a reasonable percentage of the cost). By contrast, in the unpublished case of Asad v. Chevron Stations, Inc., Case Nos. B259333 c/w B263470 (Cal. App. 2nd Dist. 2016), the court upheld dismissal of a §2802 cellphone reimbursement claim where the plaintiff failed to provide any evidence that the employer required employees to have and use their cellphones for business purposes.
As noted above, there are good business reasons to allow and encourage BYOD among employees. But San Diego businesses should establish policies and be prepared to reimburse reasonable costs.
Contact San Diego Corporate Law Today
If you would like more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard’s law practice is focused on business, transactional, and corporate matters, and he proudly provides legal services to business owners in San Diego and the surrounding communities. Mr. Leonard has been named a “Rising Star” four years running by SuperLawyers.com and “Best of the Bar” by the San Diego Business Journal.