Schwan’s Class Won’t Stumble Over Cell Plans

LOS ANGELES (CN) - Food-delivery giant Schwan's must reimburse staff for using their own cellphones for work, a California appeals court ruled Tuesday.

Colin Cochran filed a class action against Schwan's Home Service Inc. - the largest direct-to-home food delivery service in the United States - on behalf of other customer-service managers who were not being reimbursed for work-related use of their own cellphones.

The case went to the Second Appellate District after the Los Angeles County Superior Court found that a lack of commonality foreclosed class certification.

Judge Teresa Sanchez-Gordon had said that a class action was not the best way to resolve the issue, noting that examination was required to resolve the question of whether Cochran or his live-in girlfriend paid his cellphone bill. She predicted that similar individual issues would exist across the 1,500-member class.

In reversing Tuesday, a three-judge panel for the Second Appellate District found that state labor law requires that employers always reimburse their workers for reasonable expenses related to mandatory personal cellphone use, regardless of the situation.

"If an employee is required to make work-related calls on a personal cell phone, then he or she is incurring an expense for purposes of labor law," Judge Judith Ashmann-Gerst wrote for the court. "It does not matter whether the phone bill is paid for by a third person, or at all. In other words, it is no concern to the employer that the employee may pass on the expense to a family member or friend, or to a carrier that has to then write off a loss. It is irrelevant whether the employee changed plans to accommodate worked-related cell phone usage. Also, the details of the employee's cell phone plan do not factor into the liability analysis. Not only does our interpretation prevent employers from passing on operating expenses, it also prevents them from digging into the private lives of their employees to unearth how they handle their finances vis-a-vis family, friends and creditors. To show liability under the labor code, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed. Damages, of course, raise issues that are more complicated."

The trial court must reconsider certifying the class in light of this interpretation of the labor code, as well as whether statistical sampling will answer the commonality question, Ashmann-Gerst concluded.

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