Employers must reimburse employees for all necessary business expenditures or losses incurred in the course of their employment. This requirement applies to employee personal cell phone use when employees must use their personal cell phones for business purposes, even when employees have unlimited minutes and do not incur any extra charge by using their personal cell phones.

In Cochran v. Schwan’s Home Serv., Inc., 228 Cal. App. 4th 1137 (2014), a group of customer service managers brought a putative class action against their employer for failing to reimburse them for work-related use of personal cell phones. The trial court did not certify the class action; in part because it determined that too many questions existed concerning individual cell phone plans (unlimited or limited minutes) and payment of the cell phone bills (by the employee or by someone else). The court of appeal simplified the issue for the trial court by determining that employer-required use of personal cell phones is always required. It makes no difference whether employees incur an additional expense that they would not have incurred if they did not have to use their cell phones for work. Employers must still pay a reasonable percentage of their employees’ personal cell phone bills.

Nowadays, employers would be hard pressed to identify one employee who does not have a personal cell phone. As discussed in an earlier issue this year (Volume 17, Issue 4), employers may be liable for constructive discharge based on failing to reimburse employees for necessary work expenditures. Employers, therefore, should take their reimbursement obligation seriously and ensure that employees are not required, and are aware that they are not required, to use their personal cell phones for business purposes. Alternatively, where employees are required to use their personal cell phones for business purposes, employers should ensure that they receive reimbursement for the expense.

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DID YOU KNOW…

The United States Supreme Court recently determined that time spent by hourly warehouse employees waiting for and participating in antitheft security screenings before they could leave work each day was not compensable under the federal Fair Labor Standards Act. See, Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, 2014 WL 6885951 (Dec. 9, 2014).
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In July of 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its first comprehensive guidance on pregnancy discrimination and pregnancy-related disabilities since 1983 concerning the federal Pregnancy Discrimination Act (“PDA”). The PDA prohibits discrimination on the basis of past, current and intended pregnancy. With respect to intended or future pregnancy, employers may be liable for any adverse actions taken on the basis of (1) perceived or actual reproductive risks, (2) intention to become pregnant, (3) fertility treatments, and/or (4) the use of contraceptives. Additionally, the PDA prohibits discrimination against employees based on medical conditions related to pregnancy or childbirth, including lactation, breastfeeding and abortion. The EEOC’s guidance brings federal law more in line with California law.

One of the most discussed provisions in the EEOC guidance involves the EEOC’s position that employers must provide reasonable accommodations to pregnant employees or those with pregnancy-related conditions. While pregnancy does not automatically constitute a disability under the ADA, the guidance requires employers to treat pregnant employees who are temporarily unable to perform the functions of their job the same as it treats other employees with similar inabilities to perform their jobs, including those with disabilities. Thus, pregnant women with work restrictions must be offered light duty if the employer offers light duty, even if light duty is typically only offered to employees recovering from job-related injuries.

Another key highlight from the EEOC guidance concerns parental bonding leave. Parental bonding leave is generally offered so that new parents can bond with or care for a new child. The guidance requires that men and women must be offered bonding leave on equal terms. Thus, if female employees are offered five weeks of parental leave, male employees must also be offered five weeks of parental leave.

Employers should review their pregnancy, discrimination, leave and disability accommodation-related policies and practices to ensure compliance with the PDA and ADA’s requirements and EEOC guidance. Employers should also monitor their compensation practices and performance appraisal systems for patterns of potential discrimination based on pregnancy, childbirth or related medical condition.
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DID YOU KNOW…
As of January 1, 2015, California-mandated sexual harassment training must now include training and education on the prevention of bullying. (AB 2053) The training must be provided every two years for supervisory employees, or within six months of an employee assuming a supervisory position, for employers with 50 or more employees.
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