Judge says Chicago Police aren't eligible for pay under FLSA for after hours emails via Blackberry

By Annie Hunt | Jan 14, 2016

CHICAGO — A federal judge has ruled Chicago Police officers are not entitled under federal law to overtime pay for off–duty work done on mobile devices, like Blackberrys, issued by the Chicago Police Department. And this decision could have consequences for all employers, according to a legal observer.

The plaintiffs in the case, led by a CPD sergeant, argued officers should have been paid for the work they did after hours on their BlackBerry devices, using the federal Fair Labor Standards Act to back up his case. They cited emailing, answering calls, and other follow–up duties as the compensable work. The judge in the U.S. District Court for the Northern District of Illinois sided with the city of Chicago, maintaining that the CPD did not violate the FLSA.

“The City prevailed primarily because the facts showed it did not have knowledge of uncompensated off-duty work. Even though the Court found that Plaintiffs performed at least some compensable work, the FLSA does not go so far as requiring employers to pay for work that they don’t know about and have no reason to know about,” said Laura Reasons, an associate attorney who tracks such labor law-related issues for the firm of Seyfarth Shaw in Chicago.

The proliferation of smart phones has certainly made work easier across the board, but their usage blurs the lines between work life and home life. The issue has been slowly bleeding into the legal system in terms of employees seeking compensation for use of their devices outside of work.

In other cases, judges have indicated judgment could rest on the question of just how much work employees and employers knew was being performed after hours and off the clock, and whether they believed it was required by employers. In the case of Kuebel v. Black and Decker, a Western District of New York granted partial summary judgment for the employer who was charged with violating the FLSA by making employees sync their devices and respond to emails outside of work. In another related case, West v. Verizon Communications, Inc., a former employee attempted FLSA collective action for not receiving overtime for answering emails and calls.

In this case, docketed as Allen v. City of Chicago, there simply was not enough evidence on behalf of the plaintiff that their employees knew they were working, which appears to be the crux of the issue, Reasons said.

“If managers or supervisors have reason to know that an employee is engaging in off-duty work- for example, if the manager or supervisor receives an email outside the employee’s normal shift, or if the employee performs work that he or she could not have reasonably performed during the regular shift - he or she should question whether the employee is performing off-duty work and whether the hours are being reported and compensated. In other words, don’t ignore when there is 'reason to know' that off-duty work is occurring without compensation,” said Reasons.

Avoiding legal issues or a violation of the FLSA in any form boils down to good policy and clear communication between the employer and their employees.

“All employers who provide non-exempt employees with mobile devices or allow non-exempt employees to work on their own devices, should have clear policies setting out, at a minimum, when and how employees are permitted to use the devices; that all working time will be compensated; and how to seek compensation for off-duty work on a mobile device," Reasons said. "Employers cannot turn a blind eye if they know employees are working outside their regular work time."

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