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CA - Required to Carry Cell Phone and Faith Related Question California

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  • DAW
    replied
    Originally posted by Elayes View Post
    Thank you for your comments. Is there some sort of reimbursement schedule for the cell phone usage in case they do not wish to provide her with a phone? I would to know how much can reasonably be asked for and where I can find the information to give to them that proves that they have to reimburse her. The monthly bill is somewhere around $60 and obviously it is not used solely for business purposes. I am not looking for grounds to bring a lawsuit against the company, I just need to know my wife's rights. The company is fairly small, maybe 30 employees, and they have no HR department or anyone that is very informed on labor laws.
    I cited the actual law earlier. The claim would have to be worded in terms of additional expense incurred because the employer required it. To my knowledge CA-EDD has no "schedule", just the law.

    Leave a comment:


  • cbg
    replied
    she legally must be paid for any time worked if she is Exempt.

    An exempt employee gets a flat salary regardless of how many or how few hours he or she works.

    can she legally be terminated for refusing to perform duties that they require of her but that they will not pay her for?

    Yes, she can. The law gives her recourse if she is not paid properly. The law does not give her the right to refuse a legal order of her employer.

    Leave a comment:


  • CA Accountant
    replied
    phone and non-exempt

    I believe she should be able to add to her timecard for any time she has to answer the phone and any time spent on the phone call. I think they could still fire her for not accepting the duty of being on-call. They could fire her for many reasons but she legally must be paid for any time worked if she is non-Exempt*.

    As for cell phones, I believe she would need to submit her cell phone bill with business calls highlighted and the reason for each call notated. She would then be able to find the percentage of minutes used and ask that the percentage of her bill be paid.
    The Federal government has a lot to catch up on with cell phones. The old laws were written for the old pay-per minute phone and back when it was a luxury, not a common necessity. I keep hearing they are going to update them.

    *corrected from earlier post, I always get the terminology switched between exempt and non-exempt. Thanks for the heads up cbg!
    Last edited by CA Accountant; 03-19-2009, 08:35 AM.

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  • Elayes
    replied
    Thank you for your comments. Is there some sort of reimbursement schedule for the cell phone usage in case they do not wish to provide her with a phone? I would to know how much can reasonably be asked for and where I can find the information to give to them that proves that they have to reimburse her. The monthly bill is somewhere around $60 and obviously it is not used solely for business purposes. I am not looking for grounds to bring a lawsuit against the company, I just need to know my wife's rights. The company is fairly small, maybe 30 employees, and they have no HR department or anyone that is very informed on labor laws.

    As for my second question, perhaps I didn't make it clear enough. As a non-exempt employee, can she legally be terminated for refusing to perform duties that they require of her but that they will not pay her for?

    Leave a comment:


  • CA Accountant
    replied
    Fairness vs. legality

    I definitely agree that if they want to reach her by phone, they should provide the phone.

    I do think that there should be some understanding from the employer that they knew her circumstances when they promoted. There are no legal grounds here and the economy has changed circumstances for many people. It may be worthwhile to ask if she can be demoted since she cannot meet their requirements of an assistant manager but they may not be in a position to do that and she may lose her job if she can't fulfill her current duties. I would keep discussions as friendly as possible while she tries out different ideas.

    Leave a comment:


  • ElleMD
    replied
    Her employer also doesn't have to work around her other job just because it is religious in nature. If they need her to be available more than she is right now, then they can require that.

    The caveat is that if there is an actual requirement of her religion which requires her to attend services or not work at certain times, then she needs to ask for an accommodation. It may or may not be reasonable for a small employer to grant it, but she needs to ask. How many employees are there?

    Leave a comment:


  • DAW
    replied
    While I am not disagreeing with the other answers, I will also suggest that the employer saying give me your cell phone number or I will fire you would be legal.

    Leave a comment:


  • Pattymd
    replied
    Originally posted by cyjeff View Post
    As for the cell phone, I wouldn't have given them a personal cell phone number for the reasons you outline.
    Good point. If they want to be able to reach you by cell phone, they should provide it and pay for it. The California Labor Code does require that employers reimburse employees for business-related expenses.

    Leave a comment:


  • cyjeff
    replied
    One employer does not need to care about how his/her schedule interfere's with an employee's second job.

    As for the cell phone, I wouldn't have given them a personal cell phone number for the reasons you outline.

    Leave a comment:


  • DAW
    replied
    I am not a termination expert or an expert on faith and employment law, so I will leave those questions to someone else.

    On the rest of the question.
    - If we are talking about a Non-Exempt employee, then the employer must be paid for hours worked. This includes time at home, on the phone or on the internet. This is federal law (FLSA). If we instead are talking about Exempt Salaried, then that class of employee has no legal expectation of additional pay for additional work.
    http://www.dol.gov/esa/whd/regs/compliance/whdfs22.pdf
    - Regarding expenses only, CA is more or less the only state with hard labor law on expense reimbursement (see below). This is a very real law that CA-DLSE really will enforce. However it is also not a wishing well. I worked for a prior employer at which we had an employer who claimed that the law required us to pay for his high speed Internet service (at the time quite expensive), when all we were requiring was that he remotely check his email. I was able to do that quite easily with normal phone dial up services. We said no, he filed a wage claim, and CA-DLSE also said no. However if you try claiming actual additional costs clearly caused by your employer, CA-DLSE will probably agree with you.

    California Labor Code section # 2802.
    (a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.
    (b) All awards made by a court or by the Division of Labor Standards Enforcement for reimbursement of necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or loss.
    (c) For purposes of this section, the term "necessary expenditures or losses" shall include all reasonable costs, including, but not limited to, attorney's fees incurred by the employee enforcing the rights granted by this section.

    Leave a comment:


  • CA - Required to Carry Cell Phone and Faith Related Question California

    Hello,
    A little background information - my wife is an assistant manager at a small retail store. She is paid hourly and works for the store part time. She is also a minister of our faith and regularly spends about 15-20 hours per week in her ministry. The company she works for is aware of this and promoted her to her current position with the understanding that there would be times that she would not be available to work.

    My wife was recently told that she must agree to be on-call 7 days a week. She must respond to cell phone calls and emails ASAP and should be the "first person to cover for an employee who misses their shift."

    My first question is: Is the employer required to provide a cell phone to her or otherwise compensate her for her for the use of her personal cell phone and internet usage?

    The employer also stated that my wife is not balanced in the time she devotes to the company and that she needs to re-evaluate the time she spends with her family and faith. They also said that she needs to spend more time attending non-paid, work related activities such as local chamber of commerce meetings otherwise they may have to "reconsider her position with the company."

    My second question is: Can she be legally terminated or can her pay be reduced because she does not agree to devote more time to the company, especially time they refuse to compensate her for?
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