Most employees don’t mind using their personal cell phone for business use if they’re reimbursed for data usage or provided a monthly stipend to use toward paying their phone bill. However, with a majority of cell phone companies offering unlimited data plans, some employers are inclined to believe that employees can conduct company business without going over their data limit and therefore may be reluctant to pay employees for the data time. But some states such as California require an employee be reimbursed or paid a stipend for personal cell phones used for business reasons.
While some labor and employment attorneys claim that employers, particularly in at-will states, can require employees to use personal cell phones just as they would require some employees to use a personal vehicle. Other attorneys claim it’s illegal to require employees to use personal cell phones since this is generally done to benefit the company. Check your state laws before issuing your policy.
When deciding if you want employees to bring their own device, ask yourself…
- Do you allow employees with business cell phones to use those phones for personal calls? If not, does it make sense that you require employees to use personal phones for business use?
- Do you require employees to download a business-related app?
- do your employees have a smart phone that will allow them to download an app?
- do your employees have an unlimited data plan that will allow them to access the app without a fee?
- Does your app violate employee privacy concerns? While employers may have a right to monitor a company phone, they should not monitor an employee’s personal phone, even if the phone is used for business reasons.
Whether you provide a business phone or require employees to use their personal phones, the below concerns should be addressed:
- How will you lock a phone if it’s lost or stolen? Locking a business phone may be easier than locking a personal phone.
- How will you backup data?
- How will you retrieve company information from a phone if it’s damaged or the employee quits?
- How will software updates be maintained and uploaded? You don’t want software conflicts or viruses to be uploaded on any phone.
- How will you control security? Wifi access isn’t always secure and company information may be vulnerable to hacking.
- How will you trace the phone usage? Can you ensure information isn’t being shared or downloaded without permission?
Also note…non-exempt employees are eligible for overtime as required by the Fair Labor Standards Act (FLSA). By allowing these employees to use cell phones for business purposes after normal working hours, you will be on the hook for any time that takes the employee over the 40-hours per week threshold. Monetary wage and hour settlements for failure to compensate this time can result in an employee recouping lost wages (with interest), attorneys’ fees, and possibly liquidated damages.
So, when drafting your cell phone policy, be sure to include language addressing the cell phone expectations for your non-exempt employees. This should also provide guidance for any after hour phone calls whether on a cell phone or landline.
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