CA Employers Liable For Employees’ Work-Related Cell Phone Calls Even If Such Calls Cannot Be Isolated on Phone Bills

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In a published decision, the Court of Appeal overturned the trial court’s denial of class certification of 1,500 sales representatives’ claims under California Labor Code section 2802 for their employer’s failure to reimburse them for work-related calls made on their personal cell phones. Cochran v. Schwan’s Home Service, Inc., No. B247160 (2nd Dist. Div. 2 Aug. 12, 2014) (slip op. available here). The Court held without qualification that section 2802 requires reimbursement for “the reasonable expense of the mandatory use of a personal cellphone.” Slip op. at 7. The court rejected difficulties in segregating out work-related calls as a basis for refusing to impose liability, finding that even if an employee is on a family member’s plan or subscribed to a flat-rate plan, employers must still reimburse a “reasonable percentage” of employees’ work-related call expenses. Id. at 2.

The trial court had previously denied class certification, finding that an employee does not suffer an “expense or loss” under the Labor Code if the at-issue cell phone charges were paid by a third party, the employee did not purchase a different phone plan, or the employee continued using a flat-rate or unlimited plan. The Court of Appeal rejected the trial court’s reasoning, holding that regardless of the type of cell phone plan an employee has, if an employee is required to make work-related calls on his personal cell phone, he or she is incurring a business expense for the purposes of section 2802.

The lower court had also denied certification based on lack of commonality and superiority, finding that individual inquiries regarding cell phone plans and methods of payment would be necessary to determine each class member’s right to recover and to determine liability. On appeal, the plaintiff argued that Duran v. U.S. Bank National Assn. required reversal, as Duran held that statistical evidence and representative testimony can be used to prove the defendant’s liability. 59 Cal.4th 1 (2014). The Court of Appeal agreed, holding that the details of the employee’s cell phone plan do not factor into the liability analysis and “reimbursement is always required. Otherwise, the employer would receive a windfall because it would be passing its operating expenses onto the employee. . . . [Our interpretation] also prevents them from digging into the private lives of their employees . . . .” Id. at 7-8 (emphasis added). “To show liability . . ., an employee need only show that he or she was required to use a personal cellphone to make work-related calls, and he or she was not reimbursed.” Id. at 8.

The Court of Appeal remanded the case for the trial court to reconsider the plaintiff’s motion for class certification in light of the appellate court’s interpretation of section 2802 and to apply the statistical sampling principles set forth in Duran.