Permitting employees to clock in and out on personal cell phones

Q         We have a new payroll system that will allow employees to clock in from their phones. Are there any concerns about having nonexempt employees clock in and out from personal mobile phones?

A   The first concern that may jump to mind is whether you can require the employee to use her personal cell phone from a financial or compensation standpoint. There’s no Wisconsin state law or federal requirement to reimburse for the phone or otherwise provide another phone for clocking in an out. (Some states such as California and Illinois do require employers to reimburse an employee at least a “reasonable percentage of the employee’s cell phone bill” if the cell phone is used for work.)

The U.S. Department of Labor (DOL), however, recently issued an opinion letter related to reimbursing minimum (or near-minimum) wage nonexempt employees’ use of personal vehicles for business-related expenses that may present a theory for recovery because it relates to personal cell phones. In FLSA2020-12, dated August 31, the DOL issued an opinion about reimbursing expenditures when a nonexempt employee uses her personal vehicle for company use (in this case, a personal vehicle for delivery drivers).

Specifically, the DOL opinion letter noted that costs of “‘other facilities’ that are primarily for the benefit or convenience of the employer”—such as uniforms or required personal vehicle use—cannot be counted as wages. If the costs of such items cut into the wage and cause it to dip below the minimum amount required by law, the employer then may be subject to a wage claim.