Pub. 9 2019 Issue 3

11 Dealership policies should also address reimbursement of employee expenses for employee personal cell phone use, provided customers and other dealership employees call employees via personal cell phones for work-related purposes. ability under the law to establish policies that contain limits, an employer is not permitted to establish a policy that provides for no employee expense reimbursement or one that provides for nominal reimbursement. If the employer’s policy “authorizes” or “requires” a particular expense, the employer may not deny reimbursement, even if the amount or type of the expense would violate or exceed the employer’s policy. With these modifications to the law this year, dealerships are reminded of the significance of having their company expense reimbursement policies in place. These can be added to the dealership’s existing employee manual or handbook; however, existing expense reimbursement policies and practices should be updated to ensure compliance with the amended law. By way of example, such policies should address required employee reimbursement of work-related mileage, not including the employee’s regular commute to work. Dealership policies should also address reimbursement of employee expenses for employee personal cell phone use, provided customers and other dealership employees call employees via personal cell phones for work-related purposes. Alternatively, employers would need to ensure their written policies explicitly advise against use of personal phones or computers for work-related business. State and federal courts in other jurisdictions wherein similar laws have been enacted have ruled that employees are to be reimbursed for use of their vehicles and work-related calls with their cell phones, notwithstanding whether the employee has an unlimited data plan and incurs no additional costs as a result of such calls, requiring the employer to reimburse a percentage of the employee’s phone bill. Given the recency of the Illinois amendatory law, whether Illinois courts will hold the same view as courts in other states with similar laws, has yet to be determined. In the event the judicial interpretations follow the same path in Illinois, employees may not have to establish actual out-of-pocket costs in order for employers to be subject to reimbursement. While most dealerships are organized as legal entities, corporations or otherwise, the amended Illinois law extends personal liability for noncompliance, beyond traditional corporate protections, to any officer or agent of the dealership employer who knowingly permits a violation of the law and fails to reimburse the employee’s expenses. Dealerships should consult with their legal advisers to ensure their compliance with the law and evaluate existing expense reimbursement policies. Areas to be reviewed might include: specific reimbursable expenses, whether a portion of the expense is reimbursable, time frame for employee to submit documentation, kind of documentation required, and if such documentation is not available, whether the employee can submit a signed, written statement instead, dealership contact who can answer questions about employee reimbursable expenses, and the policy concerning employee use of personal equipment for work-related purposes.  Julie A. Cardosi is Principal of the private firm, Law O ice of Julie A. Cardosi, P.C., of Springfield, Illinois. She has practiced law for over 30 years, and represents the business interests of franchised motor vehicle dealers throughout Illinois. Formerly in-house sta legal counsel for the Illinois Automobile Dealers Association, she concentrates her private practice in the areas of dealershipmergers and acquisitions and other transfers of ownership, franchise law, commercial real estate transfers, state and federal regulatory compliancematters, and other areas impacting day-to-day dealership business operations. She has also served as former Illinois Assistant Attorney General and Deputy Chief of the Consumer Fraud Bureau of the Attorney General’s O ice. The material discussed in this article is for general information only and is not intended as legal advice and should not be acted upon as such. Dealers should consult their own private legal counsel for application to their specific circumstances. For more information, Julie can be reached at jcardosi@autocounsel.com , or at 217-787-9782, ext. 1.