Required to use personal items or have personal equipment damaged on duty?
You may now be able to be reimbursed….even if your CBA is silent
By Joe Rose, Attorney - Tuesday, January 21, 2020
A new 2019 law in Illinois may allow our members to be reimbursed for expenses or losses that occur through the performance of employment duties. Prior to this law, only contractual reimbursement agreements between employees and employers could be enforced.
The law (820 ILCS 115/9.5) mandates “[a]n employer shall reimburse an employee for all necessary expenditures or losses incurred by the employee within the employee's scope of employment and directly related to services performed for the employer.” The law further states, “’necessary expenditures’ means all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.” To be liable under the law, the employer must have “authorized or required the employee to incur the necessary expenditure” for the employee to be entitled to reimbursement. The law, however, will not allow reimbursement if it is found that the employee acted negligently, if the loss was due to normal wear and tear, or if theft of property occurs due to the negligent fault of the employee.
If you think you have a necessary expenditure that the employer should reimburse, you will need to keep supporting documentation and submit a claim to the employer within 30 days, unless an employer’s policy allows a longer deadline. If you are unable to find supporting documentation or it is missing or lost, the law simply requires that you submit a signed statement regarding any receipts.
How much reimbursement on a particular expense or loss does the law mandate? What type of items and expenses does the law cover? Answers to these questions are not clear under the new law. What is clear is that employers are allowed, but not mandated, to enact policies with specifications or guidelines for necessary expenditures and reimbursable amounts, as long as those policies do not provide for zero or de minimis (meaning- ridiculously low) reimbursement. If your employer does not have a pre-defined reimbursement policy that lists unilaterally set reimbursement amounts, the lack of a policy may work in your benefit to get a higher reimbursable rate on a particular expense or loss.
Like any new law, it will require Illinois Department of Labor and Illinois court guidance to shed light on what type of expenditures and losses must be reimbursed and what may be an acceptable calculation of reimbursement for a particular expense or loss. Other state court decisions with similar statutory language have found, for instance, employers must reimburse employees for a portion of cell phone or internet service plans when use of such services are required by their employer. Due to a large number of our members required to answer and be available for work calls both on and off duty, take evidentiary photos, respond to and answer text messages and check and respond to emails through the use of personal devices, a strong argument may be able to be made that this new law will require some amount of employer reimbursement for personal communication devices/data plans.
Members should keep this new law in mind if they are also required to personally purchase any duty equipment that is required by the employer. Additionally, members should examine any employer reimbursement policy. Under the new law, failure to abide by an employer’s written expense reimbursement policy may result in denial of a claim.
If your CBA has provisions on reimbursement of expenses or losses you can contact your FOP-LC representative if you have any questions. If contractual options are limited or unavailable, the law allows you to seek civil enforcement and monetary recovery. If you believe you may have a civil claim, you should contact the Illinois Department of Labor and/or a civil attorney to seek remedy.