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Cell phone required

Posted by Pattie Hunt Sinacole  April 27, 2009 08:03 AM

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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?

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.

This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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19 comments so far...
  1. Sounds like employers are asking their employees to pay their own salaries, out of their own pockets. No way should the writer have to pay for the cell phone, that is required for the job.

    Posted by reindeergirl April 27, 09 02:33 PM
  1. Showing my age here. In the pre-cell-phone (and even pre-beeper) past, an on-call employee would have been called on his/her home phone, of which it was assumed that everyone had one. The employee would have not have had to pay for the calls made TO him/her, as in the old landline system, the person placing the call paid. The employer did not usually pay for the phone subscription service, but if in the course of dealing with a work problem the employee had to place a toll call, the cost of the call could be claimed as an expense and reimbursed.

    Posted by hellocutei1 April 27, 09 02:49 PM
  1. Reindeer, you are saying what "should" be allowed, and I agree that I wish it were different. But the law says otherwise. If we want it to be different, we have to ask for a new law. The current laws do actually allow employers to mandate that employees buy for an pay for a cell phone for work purposes.

    Posted by j-len April 27, 09 07:18 PM
  1. hellocutei- the difference is that you would have to sit at home while you were on call in case work called. now you can do what you want but have to bring your phone with you. personally i'd take that trade off. to the letter writer- i would buy a pay as you go phone and use it for work- you could get by with a very small number of minutes and save money that way, if you don't use it for anything else.

    Posted by meg April 27, 09 09:13 PM
  1. I would suggest getting one of the prepaid plans. Personally, I like the T-Mobil plan. I paid $100 up front to become a Gold Rewards member. This gave me 1000 minutes for a 10 cent a minute rate. The minutes last one year, and roll over if you add more time before the year is up. I use the phone so little, that each year I only have to pay $25 to keep the plan going for another year. My three year total is about $200 ($50 for phone, $100 first year minutes, $50 each for 2nd and 3rd year minutes) or $5.50 a month.

    Posted by volunteerforfun April 28, 09 08:05 AM
  1. I wonder how long until we're required to bring our own computers into the office? Or provide our own desks?

    Posted by Bill April 28, 09 09:40 AM
  1. I'll concur with volunteerforfun -- get a prepaid phone and be done with it. I use Virgin Mobile and my mobile phone bill works out to something like $7/month. Pretty much all of the providers have some sort of prepaid, so you might be able to convert you existing contract to prepaid and just keep the phone. If you get in a situation where you are required to spend a pile of money out of pocket to respond to something, then I'd expect that kind of thing to get reimbursed like any other situation in which you incur a legitimate expense for work. Also, I'm guessing that the phone is essentially a pager, and the most you'd use it is for someone (or something) to page you, to which you respond (with something like "I'll be there in 30 minutes" or "I've got it") and/or log in and fix whatever is broken

    Sure your employer is being a cheapskate, but then again, my employer doesn't pay for my clothing, lunches or car, either. The economy in the toilet, too, so I wouldn't make a stink over a few bucks.

    Posted by K April 28, 09 10:33 AM
  1. If an employer requires you to always be available for a work-related phone call, or requires you to respond to the job site in 30 minutes, for example, how close to the line of paying minimum wage for on-call hours are we getting? I'm sure it depends on the circumstances above, as well the exemption status, but it seems as if employers are getting very close to the line.

    Posted by Gary Unger April 28, 09 01:54 PM
  1. The company should supply a cell phone and it should be handed off to whomever is on call. That's the simple solution. If you want to use your phone, get the option to forward calls to your phone from the assigned "on-call" line. It isn't fair to make an employee pay out of pocket - even if it is tax deductible. The worst part is when your on call and you use your own phone, then the client has your cell number and your stuck as their personal contact FOREVER. That's the true hidden cost of this, because they can call and suck up your minutes over work related stuff someone else should be doing!

    Posted by over_my_minutes_already April 28, 09 02:33 PM
  1. get a 900 number--$10 a minute!

    Posted by David M April 28, 09 04:49 PM
  1. I purchase my phone service for my use and convenience. That's why I have no problem with using Caller Id to screen my calls.

    If your employer wants to use something that you pay for to get you to work outside of your scheduled work shift, then the employer should pay for it. Plain and simple.

    My advice, get the phone, if you must, and either turn it off when you don't want your employer to bother you or use the caller id to screen your calls.

    Posted by vinca123 April 28, 09 05:25 PM
  1. "on a going forward basis."

    Classic consultant speak.

    I'd buy a cell phone, pay as you go or whatever, and compensate yourself in other ways... ie. paper clips, staples, toilet paper, whatever it takes or feel you could use at home and adds up to your monthly cost.

    In all seriousness, a smart manager should know what this does to morale and productivity. Why piss off your employees over the cost of a cheap cell phone plan?

    Posted by Swarley April 28, 09 07:13 PM
  1. I would take the passive-agressive route...

    Get your own pay-as-you-go phone, let them contact you occasionally and make a point to not answer occasionally. Tell them you bought the best phone you could afford and you have it on at all times but sometimes the service are isn't the best. Just leave it at that for a while. If they ever decide to complain about your service, just tell them they will need to buy a better service if they need you to be more accessible. If they say you must be available to work 100% of the time then I think it changes the nature of the situation and you either get a new job or a lawyer.

    My employer cut my salary so I shut off my home Internet service and told my supervisor I could no longer "work from home" because I had no service. My situation was slightly different in that occasionally working from home was not required but more or less implied. As there was never anything in writing requiring me to work from home, they have not been able to push the issue.


    Posted by TwoNs April 29, 09 07:16 AM
  1. The real issue is this person is cheap. If the employer won't pay for the phone, then he can choose to stay home by the phone or pay for an inexpensive cell phone. He is in control of that. Really, these are the types of decsions adults can make without much thought. You don't need to seek help from a newspaper to make this type of decsion.
    Oh, and I agree with Swarley, it's a dumb move for the company to do this and piss off the employees, but that's life.

    Posted by Bob Damon April 29, 09 09:32 AM
  1. Well, if you said you don't want to get a cell phone for financial reasons, I would be inclined to agree with other posters here about getting a not so good plan or requiring the company continue to pay.

    But since you're not getting a cell phone based on your principles alone, that's just being stubborn and immature. Just get the phone and deal with it.

    Either that, or remove being "on call" from your job duties. It's up to you to be accessible and to be the best employee you can be.

    Posted by Mikey "Insane" Monkeypants April 29, 09 09:47 AM
  1. test

    Posted by mars April 29, 09 10:11 AM
  1. "Companies often change policies and practices to better meet the needs of their specific business."
    In other words, you have no rights as an employee and an employer can change the rules in the middle of the game any time they want. Why don't we just go back to "indentured servitude"? It would prevent all of these questions about an employee actually having a life outside of WORK.

    Posted by TrueFaith April 29, 09 11:07 AM
  1. How about pay your own cell bill and be thankful you have a job? Did you ever make or take personal calls on your cell while your employer was paying for it and the bill?
    And to TrueFaith, yes the employer can change the rules, unless you have an employment contract specifying that they pay for cell phone. You are more than likely an "at-will" employee (which allows you to "change the rules" and resign also.). Employers change things like healthcare, 401k, etc. all the time. If a cell phone bill is too much for you to bear, go look for another job.

    Posted by get a life April 29, 09 05:38 PM
  1. I would take the passive-agressive route...

    Get your own pay-as-you-go phone, let them contact you occasionally and make a point to not answer occasionally. Tell them you bought the best phone you could afford and you have it on at all times but sometimes the service are isn't the best. Just leave it at that for a while. If they ever decide to complain about your service, just tell them they will need to buy a better service if they need you to be more accessible. If they say you must be available to work 100% of the time then I think it changes the nature of the situation and you either get a new job or a lawyer.

    My employer cut my salary so I shut off my home Internet service and told my supervisor I could no longer "work from home" because I had no service. My situation was slightly different in that occasionally working from home was not required but more or less implied. As there was never anything in writing requiring me to work from home, they have not been able to push the issue.


    Posted by TwoNs April 29, 09 06:30 PM
 

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