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Cell phone required

Q. As part of my job in the tech industry, my employer requires me to periodically be on call all the time. The company has always provided a cellphone for work purposes, and has paid for the monthly plan as well.

With the economic downturn, a new policy has been instituted - the company will no longer pay for the cellphone itself, and may no longer pay for the monthly service charge.

I'm one of the few luddites out there who will not purchase a phone for personal use. Can my employer require me to purchase a phone (when my current one dies) and also require me to pay for the monthly service charge as part of my job duties?

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A: I contacted Attorney Jeff Dretler, a partner in Prince, Lobel, Glovsky and Tye's Employment Law Group to confirm my understanding of what is permissable. Dretler explains, "There is no federal or Massachusetts law that requires an employer to provide a cell phone to an employee or to reimburse an employee for the cost of a calling plan, even if the employer requires that the employee have access to a cell phone and use it to make work-related calls.

California is one of the few, if not the only, states in the country that has a law requiring employers to reimburse employees for business-related expenses. Under federal law (OSHA), employers in certain industries must furnish personal protective equipment to certain employees (e.g., protective eyewear), but those regulations do not apply to your job situation as you described it.

Further, Dretler added "the fact that your employer previously had a policy of providing a cell phone and paying for the calling plan does not obligate the employer to continue that policy on a going forward basis."

Companies often change policies and practices to better meet the needs of their specific business. The changes, of course, should be changes that are within the confines of both state and federal employment laws. In short, however, if your employer requires that you have a cell phone (or some other device like a beeper) in order to fulfill the duties of your position, you will have to obtain a cell phone (or beeper) if you want to retain your position. You should consult your tax professional, but you may be able to deduct the some of your unreimbursed costs as a business expense on your annual tax return.

Dretler also offered some additional insight that may apply to your specific situation: "You mentioned that your employer sometimes requires you to be on-call 24x7. If the time you spent “on-call” is severely restricted, such that you cannot really use the on-call time as your own (e.g., you must spend a lot of time on the phone or must stay within a certain distance from your place of work), and you are a non-exempt employee (i.e., eligible for overtime pay), there is a chance that your on-call time could be compensable. If, however, you are free to do whatever you like during your on-call time and rarely received a call, then only the time you are actually responding to a business call is compensable. You have not provided enough detail about your on-call duties to make a determination as to whether your on-call time would or would not be compensable."

In our current economic state, many employers are evaluating their policies, practices, and even employee benefits with an eye toward reducing or containing costs. Many of our clients are reviewing internal policies like never before to better survive this financial storm.


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