Post Authored By: Brian M. Bentrup
In late 2018, the Illinois Legislature amended the Illinois Wage Payment and Collection Act (the “Act”), which became law on January 1, 2019 to little fanfare.
We remain in the middle of a generational pandemic in which all non-essential workers are encouraged to work remotely; the question on many minds is to what extent must an employer reimburse employees to initially configure, and to maintain, telework conditions? Unfortunately, the Act is ambiguous as written and the Illinois Department of Labor has provided little guidance. The Act, codified as 820 ILCS 115/9.5, requires an employer to 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.” This includes “necessary expenditures” by an employee that inure to the primary benefit of an employer.
Anecdotally, pre-pandemic I tried as close as possible to replicate my work office at home. In addition to a laptop I carry everywhere I go, I also have a desk, monitor, USB keyboard and mouse, internet-connected phone, tablet, and printer at home. The transition to work-from-home (“WFH”) was a mental adjustment, but the logistics of the transition and acclimation were quite smooth.
For attorneys and other professionals accustomed to WFH, the question is not as pressing. What happens if employees do not have these items previously or the nature of their work did not necessitate WFH conditions?
An office worker who works a traditional 9:00 a.m. to 5:00 p.m. day may never have been required to WFH and thus lacked the appropriate environment. What are an employer’s financial and legal obligations when such an employee lacks all of these items and are all new expenses for the employer. As Generation Z and millennials fully age in to the work force, many are reliant on tablets and smartphones instead of desktops and laptops. A computer and printer, for example, are arguably necessary expenditures that inure to the employer and while WFH configurations are likely to be industry- and job-specific, many employees will struggle to perform their essential functions without them.
Beyond the WFH items that are essential and inure to the benefit of the employer, what happens when an employee submits a reimbursement claim for expenses incurred in order to work from home, but the employer is dubious as to their necessity and does not want to reimburse the employee? Some expenditures may be helpful, but not necessary; others may be personal and provide minimal benefit to the employer.
The following are not subject to reimbursement:
• Losses due to employee’s own negligence,
• Losses due to normal wear,
• Losses due to theft unless the theft was attributable to the employer’s own negligence,
• The employee (or employer) failed to comply with the employer’s written expense reimbursement policy or acted outside the specifications or guidelines of the reimbursement policy, or
• The employee was not authorized or required by the employer to incur the expenses.
The Act requires an employee requesting reimbursement to submit “appropriate supporting documentation” within 30 calendar days after incurring the expense. An employer may provide additional time to provide documentation if it is part of the employer’s written reimbursement policy. An employee may, however, submit a signed statement in lieu of documentation in the event such documentation is nonexistent, missing, or lost.
Nevertheless, a great area of uncertainty remains. Employers may require employees to use their personal cellphone rather than pay for new hardwired phones, but the language “inure to the primary benefit of an employer” may excuse employer reimbursement. An employee’s use of their cellphone for work may pale in comparison to personal usage.
Despite the language of the Act, an employer may circumvent the reimbursement requirement if it has a written reimbursement policy and the employee fails to follow it.
As a result, the Act encourages Illinois employers to establish and adopt a comprehensive written policy that clearly and unambiguously delineates authorized or required expenses and the compensable amount thereof. Such a policy should address a variety of common categories of expenses, such as conferences, mileage (excluding the commute to and from work), and personal cellphones, computers, tablets, or other home office equipment (if for regular work use). The policy should also contemplate other areas that are unique to an employer’s business that fall outside the common categories. Therefore, it is incumbent upon Illinois employers to implement a written policy if none currently exists or review their existing policies to ensure compliance with 820 ILCS 115/9.5, update accordingly and check in with employees on a regular basis to ascertain any reimbursement obligations. Employees should also carefully review their employers’ written policies to better understand which certain discretionary WFH items are not reimbursable.
About the Author:
Brian Bentrup is a graduate of Loyola University Chicago where he triple-majored in Economics, Political Science, and Psychology. In 2015, he obtained his law degree from The John Marshall Law School. In law school, Brian was selected to be an extern for the Honorable Laura C. Liu in the Mortgage Foreclosure and Mechanics Lien Division as well as the Illinois Tenant Union.
Brian joined Pluymert, MacDonald, Hargrove & Lee, Ltd. in January 2018. His practice includes estate planning, probate and trust administration, and residential and commercial real estate. Brian also focuses on guardianships of minors and disabled adults and has been named to the approved Guardian ad Litem lists for Cook County, DuPage County, Kane County and Lake County. Brian dedicates time to pro bono work with Chicago Volunteer Legal Services representing or advocating on behalf of minors and disabled adults.
Brian is a member of the American Bar, Illinois State Bar, Cook County Bar, DuPage County Bar, and Chicago Bar Associations. He is also a member of the Justinian Society of Lawyers and the Phi Alpha Delta Law Fraternity.
Brian is licensed to practice in Illinois and Missouri. When not practicing law, Brian enjoys spending time with his wife, daughter and son, and exploring new and different culinary experiences.