I have touched on this issue before, but I notice there is still confusion about the issue of employees using their cell phones for work purposes.  So, let’s break this down and eliminate any misunderstanding.

There is a growing trend of employers using workplace apps to communicate with their employees.   I got sense of this practice when I spoke with many of you last week about delivering the required Know Your Rights Notice.  For years, many employers convinced themselves that the use of communication and scheduling apps was just an option for most employees.   But it’s becoming clear that many of you are either requiring or strongly encouraging employees to access these apps for essential work communications or functions. 

Most employees have their own mobile devices these days, and allowing employees to use their own smartphones for work is appropriate SO LONG AS you reimburse them for the use of those phones.   But the compensation takes two forms – (a) the reimbursement of the expense of using their own devices under Labor Code Section 2802, and (b)  the payment of wages to cover any TIME using that device for work.   If you’re confused, think about how we pay employees who use their own cars to drive for work.  We need to pay those employees a mileage or expense reimbursement for the work-related use of their cars, PLUS, we need to pay them  wages for the time they spend driving for work.  These are two different but related legal issues, and they require two types of pay.

Why break this pay down?  Why can’t we just pay employees one lump sum that covers both the expense reimbursement AND the time worked? 

Here’s why it gets tricky.  The expense reimbursement, that is, the dollars we pay employees to use their own devices for work (cell phones, cars, home Wi-Fi), is just that – it’s an expense reimbursement.   It’s NOT wages.  It is not taxed the same as wages, and it’s logged differently on an employee’s  paystub.    It does not affect the regular rate of pay or hours worked for overtime or break purposes.  In addition, sometimes employees are already being paid for their hours worked – they may be using their phones when they are physically clocked in, or if they are an exempt employee, their salary covers their work time.  The expense reimbursement is paid in addition to those wages.    

Here comes the related issue – employees using their cell phones when they are NOT at work, but for work purposes.   For example, for those of you who send out those work-related notices or employee handbooks and expect employees to read them or at least acknowledge receipt, there is at least a minute or so of work.  If they are doing this while on the clock, great.  But often, they are not.   Then there are the “group chats” through texts or WhatsApp.   Or maybe you send out company-wide messages on your scheduling app, your HRIS system,  Slack, or even email.   Yes, we do address some of this in our handbook policies, and we even added a policy about group chats this year.  But if you or your managers are sending frequent messages out to your workforce, especially to those employees who don’t sit behind a computer all day, most likely, those employees are reading, digesting, and responding to these messages on their personal time.

And now you are getting into that “de minimis time” I also wrote about previously.   We need to pay employees for those extra minutes.  And if you have employees already working eight hours a day or 40 hours a week, you’re now into unpaid overtime.   And if that employee leaves without getting these few minutes of pay, you may owe them 30 full days of extra wages.   And you have a paystub violation, which carries even more penalties.  See how all this works?

As I have previously lectured you all, failure to reimburse for these expenses is a popular claim in wage and hour cases, including PAGA and class action lawsuits.  So, too, is the allegation that employees worked de minimis time off the clock.   Obviously, having a class action waiver helps, as will the PAGA Reform.  But as you all tighten your compliance on issues like overtime and meal break pay, these are the type of loose issues that will gain popularity.   

I really dislike loose ends when it comes to compliance.  Let’s make it a point to address and mend them all in 2026.   If you need help identifying and plugging holes, remember, I still conduct these compliance audits (I’m doing one tomorrow).  We do them over zoom, and it usually takes under two hours.  It can save you from a lawsuit AND is counted as a factor in getting us that coveted 85% reduction on PAGA premiums if you are sued.