THE QUESTION
I am required to use my personal cellphone to text staff and check emails while I’m going from place to place during work hours. Should the company be compensating me for the use of my personal devices and phone plan? Or is this something I should have negotiated when I first started the job?
THE FIRST ANSWER
Nicole Simes, founder and lawyer, Simes Law, Toronto and Barrie
The best time to negotiate for specific terms of employment, such as the use of personal devices or the reimbursement of phone expenses, is at the initial job offer stage when you are first presented with an employment contract. Having your employment contract reviewed by a legal professional will put you in the best position to be able to negotiate the terms of your employment and ensure your rights are protected.
It is possible that your current employment contract does already contain a general expense reimbursement clause, meaning you could ask for the reimbursement of your phone expenses through that clause. It is also possible that your employer has policies in place which allow you to claim reimbursement for work-related expenses. Even if they are not specific to phone use, it is worth exploring this.
There is nothing set by employment standards legislation or the common law requiring that employers reimburse an employee for the use of a personal device for work purposes. However, it is usually considered best practice for employers to at least provide a stipend to cover this cost.
It may also be possible for you to claim a portion of your phone costs against your income taxes. You should discuss this with your accountant.
If you do not want to use your personal device or phone plan, you can always tell your employer that you do not agree to this requirement. The employer may offer a solution, or they may decide to terminate the employment relationship as a result, so it is important to keep possible risks in mind when assessing how to approach the situation.
THE SECOND ANSWER
Kathleen O’Brien, associate lawyer, Carbert Waite LLP, Calgary
Employers commonly rely on a ‘Bring Your Own Device’ (BYOD) model, requiring employees to use their personal electronic devices for both personal and work-related purposes, rather than the employer providing a separate device. Your employer may or may not have a BYOD-specific policy, which should address key factors including compensation for the use of a personal device, privacy management and acceptable use of the device.
Your first step would be to ask your employer whether they have a BYOD policy in place. If they do, ask to see a copy of the policy to see if it includes compensation for the use of your personal device.
If your employer does not have a BYOD policy, or their policy does not address compensation, they may still be required to compensate you for work-related expenses. Your next step would be to talk to your employer about compensation for these expenses, including the use of your cellphone. You should be aware that if your employer reimburses you for the use of your personal cellphone, the amount provided to you will be considered a taxable benefit.
If there is no policy in place and your employer refuses to compensate you for the use of your device, you should review your employment contract to determine if it requires you to use your personal device for work-related purposes. If you didn’t agree to such a requirement as a term of your employment contract, you may consider refusing to use your personal device without compensation.
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Andrea Yu