DEAR CARRIE: We have company-issued phones that are used during and after work to respond to calls, emails and text messages that my boss sends out at night and on weekends. And I receive hundreds of work-related emails weekly from colleagues at other company locations around the country. I answer them even when I’m not in the office. Recently, the new administration opened up a discussion about taking back the company cellphones and requiring employees to use their personal phones for office work — and to foot the bill for added service charges. Would this be legal? Given my workload, I would have to sign up for an unlimited data plan, which would be quite costly! We don’t have the option of not responding to calls or messages. — Wrong Number?
DEAR WRONG: First a little background. Communication and information devices have boomed in the workplace in recent years with the advent of inexpensive and powerful smartphones, tablets, laptops and computers, said employment attorney Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola. And companies have differing policies on how to ensure that their employees have these tools.
Some companies supply the items to their employees as a cost of doing business, he said. Others, however, as your employer is contemplating, direct their employees to use their personal electronic devices to perform office work and to pay for the added charges.
“In doing so, employees avoid the headache of carrying and using multiple devices, and their employers avoid the cost of paying for such items,” he said.
But some employees, just like you, consider the arrangement unfair, and rightly so — because you would essentially have to pay for doing company work.
Whether it is legal depends on several factors, including where you work and whether you are hourly or exempt from overtime.
In California, employers must reimburse their employees for the mandatory use of personal cellphones, Grimaldi said.
“This is true even when the employee did not pay additional cellphone fees for using [his or her] cellphone for work purposes,” he said.
For example, even if employees already had an unlimited data plan and didn’t have to pay additional fees for using their cellphones for work, they would have to be reimbursed, Grimaldi said.
But that obligation does not exist under federal or New York State law, he said.
“While New York does require employers to pay for employee uniforms,” Grimaldi said, “it has not enacted legislation or promulgated regulations requiring payment for personal cellphones and service plans or ever required employers to reimburse employees when they conducted business using their home landline telephones.”
But employers could still be liable for reimbursing hourly employees. The U.S. Labor Department says that employer-imposed expenses cannot reduce hourly employees’ salary below the minimum wage for the workweek, Grimaldi says.
“Thus, an employer who directs its employees to use their personal cellphones and service plans for work, must ensure that the cost of such items does not drop the employees’ overall pay below the applicable minimum wage,” he said. “And, employees cannot waive their right to make at least minimum wage.”
And companies face other potential problems in this area, Grimaldi said.
If you are an hourly employee and use your personal devices for business purposes outside your regular working hours, your employer must compensate you for the time, he said.
“Such costs can be substantial, depending upon the number of employees who do this and the amount of time spent performing work outside of their regular schedules,” he said.
I would hope that if your boss goes through with the plan to shift phone costs to employees, he would at least ease up on the after-hours and weekend phone calls and messages.