Notice required if employer is subject to federal WARN Act. The California Court of Appeal agreed there were violations and held (which means, its now the law): 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. To address these challenges, employers should develop and disseminate a comprehensive BYOD policy. Colorado Governor Jared Polis issued Executive Order D 2020 013 (EO D 2020 013) on March 22, 2020, requiring all non-critical businesses in Colorado to reduce their in-person workforce by fifty (50) percent or more, effective March 24, 2020. Instead of resigning yourself to being "damned if you do and damned if you don't", let's examine different ways to approach the cell phone reimbursement debate. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. Thus, to be in compliance with section 2802, the employer must pay some reasonable percentage of the employee's cell phone bill. Governor Polis issued an executive order on Friday, March 20, 2020 to expedite unemployment payments. Some say the safest approach is to pay the entire cost of an employees phone. While asking people to bring their own devices can lower costs and improve efficiency, effectiveness and morale, it also raises a host of security and legal compliance concerns. The latter is considered more akin to a perk program and would include items like hardware, home internet bills (especially great for those who are remote), software, and anything else that helps them to enhance their work abilities and experience. 8-4-102. CO Reg. Part Time average hours for a 2-week period. Employee Responsibilities The company should determine whether all data (personal and work) will be deleted or just work information. Providers of Basic Necessities to Economically Disadvantaged Population, 10. Also, the details of the employee's cell phone plan do not factor into the liability analysis. Identify the personal information that can be saved by the employer through routine backups and maintenance. There are actually laws surrounding what employees are entitled to when it comes to compensation for personal cell phone use. CO Statute 8-4-109. However, in today's world people are not only using their cell phones for work but they're often spending personal money on work-related expenses such as noise-canceling headphones, ergonomic mouses, monitors, wifi/internet bills (especially for those who are remote), software, and more equipment. While this is an unpopular solution for many employers, for some, it's more about peace of mind. We do not necessarily advocate those approaches. Companies must also consider costs when it comes to purchasing phones company-wide. Employers should be aware that the surge in claims has been so significant that the Department of Labor and Employment is staggering the days individuals should file claims by the first letter of the applicants last name. Even though the enforcement language in EO D 2020 013 and PHO 20-24 are not particularly strong, a violation does carry the possibility of a fine or prison time (the circumstances of which are uncertain). who were not reimbursed for expenses pertaining to the work-related use of their personal cell phones, alleging labor code violations and unfair business practices, and seeking declaratory relief and statutory penalties. As theAbacus blog points out, "BYOD is a more scalable, affordable, employee-oriented policy than COPE." However, if you decide however to extend the program to be more than just a cell-phone reimbursement program and include all types of work-related perks, a perk management software like Compt is best. This is so even if the employee incurs no additional expense due to the work-related calls, such as if the calls are within the employee's plan for . The Reimbursement Amount Is A Reasonable Percentage Of The Employees Phone Bill, Employers Must Reimburse Employees For Work Related Cell Phone Use. Here we'll break down the newest laws in cell phone reimbursement and how to guarantee both you and your employees are getting a fair deal. An employer must, at least monthly or at the time of each payment of wages or compensation, furnish to each employee an itemized pay statement in writing showing the following: An employer must keep for at least two year at the place of employment or at the employers principal place of business in Colorado, a true and accurate record for each employee which contains the following information: State Laws Federal Laws Topics Articles Resources, Employees who are fired, discharged, terminated, or laid off, Employees who are suspended or resigns due to a labor dispute (strike), Uniforms, Tools, and Other Equipment Necessary for Employment, Pre-hire Medical, Physical, or Drug Tests, CO Department of Labor and Employment Uniforms. Virtual business phone systems often make internal and external communications of the company much easier. SUGGESTED READ: How to create an IRS-compliant expense reimbursement policy. Please note, if you allow an employee to go on leave (whether paid or unpaid) or furlough an employee (as opposed to a layoff), then your employees are entitled to this EPSL. Phillip M. Schreiber is an attorney at Holland & Knight in Chicago. 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. There's no one-size-fits-all approach to cell phone reimbursement for employees, and some businesses may decide to opt for a virtual business phone system with a virtual phone number instead. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. You've provided a cell phone specifically for that purpose. Yes. Yet, the question still remains, how much of that is for personal use, and how much is work-related? So, what to do? Enforcement. Is your team using their phone for work-related email, Slack, social apps and texts on their phone? The court of appeal explained that if an . The Reimbursement Amount Is A Reasonable Percentage Of The Employees Phone Bill. Minor drivers. While this may seem unfair to some, it's the California law. For businesses in Colorado outside of Denver, we recommend ensuring quick compliance with the mandate to reduce in-person work by 50 percent. It is irrelevant whether the employee changed plans to accommodate work-related cell phone usage. The employer may retain the disputed amount until the matter is resolved. The employer has a duty to review the request. On the flip side, employees may be liable for compromising secure company information. However, there are some key features to consider when crafting your policy: While BYOD policies raise some thorny issues, they can work well when employers balance security, compliance and privacy concerns. Under these policies, many employers are paying anywhere from $30 to $50 per month toward employee cell phone bills. EO D 2020 013 / PHO 20-24 apply to all Colorado employers, including but not limited to those operating out of a fixed location within the State of Colorado. CO Statute 8-4-103. } ACCESSIBILITY STATEMENT | A perk stipend makes it possible for companies to offer more lifestyle benefits, with less money and ensure that they are personalized to meet the needs of their people. If at time of discharge the employers accounting unit, responsible for the drawing of payroll checks, is not regularly scheduled to be operational, then the wages due the separated employee must be made available no later than six (6) hours after the start of the accounting units next regular workday. While these laws vary from state to state, California is leading the way in this growing trend. Provide timely notice regarding COBRA benefits. Contact Us. Goodwill toward your employees will go a long way in rebuilding. CO Statute 8-4-107. United States. Buffer offers several work-perk stipends: To learn more about Buffer's stipend programs,check out this in-depth post. Revise current policies and protocols that may be affected by BYOD practices. Input some basic data into our Perks Vendor Cost Calculator to identify how much you're spending on all of your vendors, and how much you can save by consolidating with Compt (while easily ensuring IRS tax compliance). Details on the FFCRA can be found here. Further, many employees may be hesitant to come into work due to fear of COVID-19, and requiring in-person work can create complications during this time. Here are just a few: But these BYOD policies cover much more than only cell phone bills. BY BUSINESS GOAL BY INDUSTRY BY ROLE. The residence may include hotels, motels, shared rental units, and similar facilities. Rule 7. It's also difficult to calculate a true figure in terms of cell phone use for employees with unlimited data plans. With over 50% of the world's population owning and using a mobile device, cell phone use has become second nature to most. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. The employee submitted the expense for reimbursement with proper supporting documentation * (i.e., a receipt) within 30 calendar days of when it was incurred. Although a first incidence is unlikely to result in a fine or penalty, a second offense is likely to result in harsher punishment. Essential businesses, listed below, are not required to cease operations. Clearly state the employers right to access, monitor and delete information from employee-owned devices. 633 17th Street, Suite 201 Denver, CO 80202-3660 Phone: 303-318-8000 Customer Service Feedback Up to one year imprisonment, 2. In the Cochran case mentioned above, the court of appeals held that employers must reimburse a reasonable percentage of their employees cell phone bills. Please confirm that you want to proceed with deleting bookmark. Some are going as far as banning cell phones in the workplace, to avoid the risk and complications associated with creating policies and stipends. Reduce hours for non-exempt employees and pay only the hours worked. Distribute the policy to employees, and remember to inform new employees when they are hired. The U.S. Internal Revenue Service issued guidance on Sept. 14, 2011, to clarify the tax treatment of employer-provided cell phones.The guidance, IRS Notice 2011-72, relates to a provision in the . During this milestone case, the California Court of Appeals filed a class-action lawsuit on behalf of 1,500 customer service managers. This might include adjusting record-retention policies to cover data on employee-owned devices; revisiting data breach protocols to ensure that they cover situations where sensitive data (such as Social Security numbers and credit card information) is compromised; changing your expense reimbursement policy to address employee-owned devices; and revising equal employment opportunity and anti-harassment policies to cover activity involving personal equipment, including employer monitoring. Damages, of course, raise issues that are more complicated. (Id. Should Employers Pay for Work From Home Costs? There are more examples of companies doing this successfully. Is a company obliged to pay for the costs incurred in connection with the use of a personal device for work? It follows that if employers allow their employees to opt to use their personal cell phone, instead of a company-issued cell phone, that they should be reimbursed a reasonable percentage of their phone bill for work-related calls or other data usage for using texts or the internet for work purposes. With so many different laws and unclear expectations, how can companies create a compliant, reasonable cell phone reimbursement policy? By simply paying for your staff's cell phone bills, you're sidestepping any sticky legal issues or long, drawn-out debates over percentages. Essential businesses must also maintain 6-feet or more of physical distance between individuals, including when customers are standing in line. PLEASE NOTE: The U.S. Department of Labor released new guidance on March 26. CONTACT, Javascript must be enabled for the correct page display, Colorado Executive Order D 2020 017 Provides Statewide Stay-at-Home Directive (March 27, 2020). }); if($('.container-footer').length > 1){ Be careful though because it's important to realize that with the COPE approach, you're going to manage the cell phone devices, plans, bills and everything else that comes with owning a cell phone (or hundreds of them) which can take a lot of work. And If So, What's Required? Providing a work cell phone can avoid problems with reimbursement for personal cell phones. Put data protection practices in place, including requiring strong passwords and automatic locking after periods of inactivity, establishing protocols for reporting lost or stolen devices, mandating certain antivirus and protective software, and requiring or strongly encouraging regular backups. If so, specify when the monitoring will be used by the employer and for what purpose. Where an employee incurs expenses on his employer's behalf or where he is required to expend sums by reason of action taken for the convenience of his employer, section 7(e)(2) is applicable to reimbursement for such expenses. The critical businesses identified in PHO 20-24 are: 8. No text or graphic contained in this entry is to be or should be used or relied upon as legal advice. If so, develop specific guidelines for when they may work off the clock (for example, when they may send or respond to work-related e-mails and text messages). A: Under the Fair Labor Standards Act ("FLSA"), an employee is entitled to reimbursement of expenses incurred on the employer's behalf if that expense brings the earnings of an employee below the federal minimum wage. 2023 Gordon Rees Scully Mansukhani, LLP. Please purchase a SHRM membership before saving bookmarks. These laws protect both employees and employers. He further directed the Colorado Department of Public Health and Environment (CDPHE) to define exemptions to EO D 2020 013, to develop a method to certify employer compliance and to set penalties (Public Health Order 20-24). var currentUrl = window.location.href.toLowerCase(); Residential establishments and facilities, Professional services when necessary to assist in compliance with legally mandated activities, Faith based establishments and houses of worship, Childcare facilities allowing employees exempted in the order to work as permitted, providing childcare in certain conditions, Licensed marijuana stores, provided physical distancing protocols are implemented to limit number of persons on the premises at the same time, Licensed liquor stores, provided physical distancing protocols are implemented to limit number of persons on the premises at the same time, The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19. the deduction is mandated by or in accordance with local, state, or federal law including, but not limited to, deductions for taxes, garnishments, or any other court-ordered deduction; the deduction is for loans, advances, goods or services, and equipment or property provided to an employee pursuant to a written agreement, so long as it is enforceable and not in violation of law; the deduction is necessary to cover the replacement cost of a shortage due to theft by an employee if a report has been filed with the proper law enforcement agency in connection with such theft pending a final adjudication by a court of competent jurisdiction; however, if the accused employee is found not guilty in a court action or if criminal charges related to such theft are not filed against the accused employee within 90 days after the filing of the report with the proper law enforcement agency, or the charges are dismissed, the accused employee is entitled to recover any amount wrongfully withheld plus interest. 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