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August 19, 2014
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September 10, 2014

California BYOD May Get More Expensive

Earlier this month the California Court of Appeals issued an opinion that could weigh heavily on a company’s decision to have BYOD in California.  In Cochran v. Schwan's Home Service, the Court explained that "…when employees must use their personal cell phones for work-related calls, Labor Code section 2802 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills."

Tom Kaneshige aptly pointed out in an article for CIO.com that this “ruling can open doors to reimbursements for all personal devices, apps and data used partially for work.”  This could also potentially include home internet connections, if the connections are used to access corporate resources, according to Matthew Marca, partner at Gutierrez Marca LLP. And while this opinion focused on customer service representatives in retail, the healthcare community is already recognizing potential challenges this may bring, as pointed out by Jonah Comstock for Mobile Health News.

Cochran is a reminder of yet another reason that companies should bring their BYOD policies under review.  With regard to payment of employee charges, companies must ask:  What is a “reasonable” amount to cover?  Does it include data?  What if you have an MDM solution?   Consider that many employees “voluntarily” use their own device but are not “required” to connect to the company’s systems.  BYOD policies needs to take into account not only what is a “reasonable” reimbursement, but also what is deductible as a business expense from a tax perspective, recommends Matthew Marca.

BYOD is a sore subject for legal counsel as it has long plagued eDiscovery with complications due to comingling of personal and company data, privacy disputes, ownership debates, etc.  Some argue that BYOD is at least as or more expensive than company issued devices but the value is in being ‘perk’ for employees to be able to use one device of their choosing.  Could this be the beginning of the end of BYOD in California?  Or, is it merely a bump in the road?

I polled several in-house and outside counsel about this new development, and most agree, it’s just a bump in the road.

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