We are now seeing “bring your own device policies” in the class action context, and at least one court has glossed over differences among cell phone plans and usage to leave open the possibility of certifying a class in that context.

In Cochran v. Schwan’s Home Service, Inc., Case No. B247160 (Cal. App. 2d Dist., Aug. 18, 2014), the plaintiff alleged that the defendant employer failed to reimburse a proposed class of 1500 customer service managers for their personal cell phone charges incurred while doing work.  They asserted their claims under Section 2802 of the California Labor Code, which seeks to prevent employers from passing operating expenses on to their employees.

The trial court denied the plaintiff’s class certification motion.  It identified issues concerning whether the cell phone charges were incurred by the named plaintiff or his girlfriend, and whether the employer could ask whether each class member purchased a different cell phone plan due to his/her work related cell phone usage.  The trial court also noted that establishing that an employee incurred an expense was an issue of liability, not damages, since there would be no liability under the statute if no expense was incurred.  The plaintiff had proposed using a survey to prove classwide liability, but the court rejected it because there was no pattern or practice regarding the expenditures or losses of class members.

The appellate court reversed and ordered reconsideration of the certification issue.  It held that an employee incurs an expense under Section 2802 if required to make work-related calls on a personal cell phone, regardless of who pays the cell phone bill.  In addition, the appellate court held that whether the employee changed plans to accommodate for the work-related cell phone usage was irrelevant.  It reasoned that the statute was intended to prevent employers from passing on operating expenses to their employees.  Were it to find otherwise, the court suggested, employers might dig into the private lives of their employees to unearth how they handle their finances, and employers could receive a windfall depending on the answers revealed by that inquiry.

The court of appeals also held that details of the employee’s cell phone plan do not present issues of liability—only damages.  It noted that these damages issues are more complicated, and because of the differences in cell phone plans and work-related scenarios, the calculation of reimbursements must be left to the parties in any given case.  The Court also mandated that the considerations of Duran v. U.S. Bank National Association, 59 Cal. 4th 1 (2014), regarding the use of sampling, be taken into account at the trial court level.  We blogged the Duran case on May 30, 2014.

Notably, the court did not order that the case be certified, but only that the trial court reconsider the issue.  Further, the court’s reference to the Duran case may not be a good omen for the plaintiffs, despite the remainder of the opinion, as the rigorous statistical analysis required by Duran might very well be impossible to achieve.

The Bottom Line:  California employers should think twice before having employees use their own cell phones and electronic devices for work-related communications and shouldn’t rely solely on differences among data plans and payments to avoid certification.