Judge denies city's request to decertify class in Chicago cop's lawsuit seeking overtime pay for off-duty Blackberry use

A group of 53 detectives and others working on the Chicago Police Department’s elite Bureau of Organized Crime have won clearance to proceed as a class with their action against the department for failing to pay them for time spent answering phone calls and emails on their work cell phones.

U.S. District Court Judge Sidney I. Schenkier last week rejected a motion from the City of Chicago to decertify the class in the action, saying he believed while the city had arguments to make in defense against the officers’ complaints, those arguments would best be heard at a trial addressing all 53 officers’ complaints at once.

The Oct. 22 decision stems from a case Chicago Police Sgt. Jeffrey Allen brought in 2010.

Allen, then a 20-year veteran of the force and a member of a unit with the department's Bureau of Organized Crime, said he had been required to constantly reply to phone calls and emails on the Blackberry the department had issued him in 2006, even when off duty.

While he was required to constantly be on call for “supervisors or subordinates,” Allen said he had never been paid overtime or other wages for the time spent on the device attending to official business, in violation of federal employment law.

As he was not the only officer in the CPD’s organized crime units who had been issued a Blackberry, Allen in February 2013 won approval from the federal court to make his case a class action.

Ultimately, 52 other officers who claimed to be similarly situated to Allen responded to the mail notice, informing them of their chance to opt in to the class action suit. Class members came from the BOC’s units dealing with narcotics, gang enforcement, gang investigations, and vice and asset forfeiture.

Class members essentially include officers in the bureau, below the rank of lieutenant, who had used a department-issued Blackberry for official business while off duty between 2010 and 2013.

The city then challenged the certification and asked the court to decertify the class, a request Schenkier denied last week.

In challenging the certification, the city pointed to its “express, written policies and practices” – in this case, general written orders from CPD command – forbidding officers from using their department-issued mobile devices to respond to official business emails and other communications while they are not on duty.

The city also pointed to procedures it had in place to allow officers to submit claims for overtime pay for time spent responding to communications on their department-issued Blackberries while off duty.

They noted one of the officers in the suit actually did do just that on at least two occasions.

Allen and the other officers, however, argued the actual practice differs from the written policies, saying they and others believe there are unwritten policies regarding the Blackberry devices blurring the line between being on duty and off that have created a “‘uniform, undocumented policy’ to deny them compensation for off-duty hours they spent doing work on their CPD-issued Blackberry devices.”

In his ruling, Schenkier noted the mere existence of written policies purportedly abiding by federal law doesn’t nullify the possibility an employer could violate those laws in practice.

He acknowledged the officers had “offered little evidence” to support their contentions regarding those allegedly illegal practices, but said, “the time for assessing whether the city maintained an unspoken or unwritten practice that trumped written policy is at trial.”

The judge also shot down other arguments from the city contending the officers should not be allowed to proceed in their class action. Among those, the city argued the officers’ job duties spanning across the BOC's four units were too different to allow them to be considered similar enough for the purposes of the litigation.

“The evidence provided by plaintiffs shows that despite their different supervisors and divisions within BOC, opt-in plaintiffs followed the same unwritten policy requiring them to work overtime on their Blackberrys – to be accessible at all times to respond to telephone calls and certain emails received while off duty – without seeking compensation for the work,” Schenkier wrote.

Court records show the case is scheduled for a status hearing on Nov. 18, when "the Court will discuss with the parties prospects for settlement and a trial date."

Records show the plaintiff is represented by Chicago attorneys Sean Charles, Starr Ronald C. Dahms and Mary Ann Pohl, as well as Northfield attorney Paul D. Geiger.

The city is represented by Valerie Depies Harper and David Justin Seery with the city's Law Department, and Heather R.M. Becker, Joseph Michael Gagliardo, Matthew Patrick Kellam, Jennifer Anne Naber and Lily Marie Strumwasser of Laner Muchin Ltd.