7th Circuit Rules on Compensation for Off-Duty Use Of Smartphones

In a long awaited decision the 7th Circuit Court of Appeals has ruled in favor of the City of Chicago in a case where police officers sought compensation for the time they spent off-duty reading and replying to emails and text messages on their smartphones.

The case was filed in 2010 by Chicago Police Sergeant Jeffery Allen, claiming he and his fellow officers in the Bureau of Organized Crime were required to routinely use their smartphones to communicate via voice, text and email while off-duty, but were not compensated for their time.

The trial court ruled that Allen and the other officers did perform off-the-clock work for which they were entitled to be paid, but that they failed to follow the department’s procedure to report the time as compensable. On appeal, Allen argued that his superiors (1) knew that he/others were working the extra time, (2) could have determined they were working the extra time by checking their email and messaging systems, and (3) pressured officers to forego putting in for such overtime.

The 7th Circuit rejected Allen’s arguments, ruling that:

  1. Even though Allen’s superiors may have been aware that he and others were performing off-the-clock work, there was no clear error in the trial court’s finding that the supervisors were unaware that Allen/others had failed to submit the hours for compensation as required by department regulations. The supervisors are held to a standard of reasonable diligence, and the record supported the trial court’s finding.
  2. There is no requirement that an employer search exhaustively through its digital records for evidence that employees are performing off-the-clock work for which they have not sought compensation. An employer is only responsible for exercising “reasonable diligence”, and given the fact that the city had a reasonable policy of requiring the officers to submit for overtime when it was performed, the city had no obligation to search through the electronic records.
  3. The trial court found insufficient evidence that officers were pressured to forgo submitting  overtime requests for their off-the-clock work to warrant reversing the trial court’s finding.

One of the most notable points in the decision was the 7th Circuit’s ruling on supervisor awareness of off-the-clock work. In the past the focus of inquiry has been on whether  supervisors were aware of the fact that off-the-clock work was being performed. The 7th Circuit agreed with the city that the focus of inquiry should be different when an employer has a reasonable procedure for employees to report off-the-clock work. Not only must supervisors be aware that off-the-clock work is being performed, but supervisors must also be aware that employees are not submitting for compensation for the extra time. That seeming subtle difference represents a major departure from earlier cases on this subject.

The decision is well written and easy to understand. Here are some of the highlights in the court’s own words for those who are interested in the details, but don’t want to read the entire decision:

  • We begin by explaining the standards that apply under the Fair Labor Standards Act when an employer asserts that it did not know of the overtime work for which employees claim they were not paid.
  • The Act… requires employers to pay covered employees at one-and-a half times their usual pay rate if they are employed for longer than a certain hourly threshold.
  • The statute defines “employ” broadly, as “to suffer or permit to work.”
  • That broad definition is central to the purpose of the Act.
  • It helps prevent evasion by employers who might seek to issue formal written policies limiting overtime that are widely violated, or who might deliberately close their eyes to overtime work their employees are doing.
  • Employers must, as a result, pay for all work they know about, even if they did not ask for the work, even if they did not want the work done, and even if they had a rule against doing the work.
  • If the employer does not want to pay overtime, its management must “exercise its control and see that the work is not performed.”
  • That strict rule has a limit, however.
  • It “stops short of requiring the employer to pay for work it did not know about, and had no reason to know about.”
  • One way an employer can exercise diligence is by establishing a reasonable process for an employee to report uncompensated work time. That principle has been at least implicit in our cases.
  • The Sixth and Ninth Circuits have been more explicit, affirming summary judgment for employers who set up processes for reporting overtime that the plaintiffs did not use.
  • But an employer’s formal policy or process for reporting overtime will not protect the employer if the employer prevents or discourages accurate reporting in practice.
  • With that legal background, we turn to the facts of this case.
  • We focus especially on the court’s findings about the Bureau’s knowledge of plaintiffs’ overtime reporting, the issue central to the district court’s decision and this appeal.
  • This case was brought by Jeffrey Allen and fifty-one other opt-in plaintiffs. Plaintiffs are current or former members of the Chicago Police Department’s Bureau of Organized Crime.
  • The Bureau is a prestigious assignment for Chicago police officers.
  • Its members conduct sophisticated investigations into, for example, gangs, narcotics trafficking, and human trafficking. Although members have scheduled shifts, the nature of their work sometimes requires them to work outside their shifts during what would otherwise be off-duty time.
  • The police department issued plaintiffs mobile electronic devices (BlackBerrys), which they sometimes used in their off-duty work.
  • This suit is over whether they were appropriately compensated for off-duty work on their BlackBerrys.
  • The police department has a process that officers use to obtain overtime compensation: they submit “time due slips” to their supervisors. The slips are small; there is some space for explaining what work was done, and officers usually put a short, vague phrase in the space.
  • The slip does not ask how the work was done, and officers do not typically include that information.
  • Supervisors approve the time, and the slips are sent to payroll and processed.
  • Plaintiffs regularly used that system; the fifty-two plaintiffs collectively reported and received pay for three to four thousand overtime hours per year from 2011 to 2014.
  • But during the period relevant to this suit, many plaintiffs did not submit slips for off-duty work done on mobile electronic devices.
  • The central question in the trial court was whether plaintiffs were prevented or discouraged from submitting slips by an unwritten policy of the Bureau’s
  • The court agreed with plaintiffs that some of their off-duty BlackBerry activity was work that was compensable under the FLSA.
  • It acknowledged evidence that Bureau supervisors knew plaintiffs sometimes worked off-duty on their BlackBerrys.
  • But the court also found that the supervisors did not know or have reason to know that plaintiffs were not submitting slips and therefore were not being paid for that work.
  • Although supervisors in theory could have checked what they knew of plaintiffs’ off-duty work against the time slips they approved, the court found that requiring them to do so would be impractical: supervisors approved a large number of slips per day, and slips were sometimes submitted and reviewed well after the work was performed.
  • Also, the court found, plaintiffs never told their supervisors that they were not being paid for such work.
  • The court then turned to the central question: whether plaintiffs had shown the existence of an unwritten policy not to compensate them for off-duty work performed on their BlackBerrys.
  • All told, the court concluded, the evidence did not bear out the common culture plaintiffs alleged.
  • [W]e find no persuasive reason to upset the judgment of the district court.

Lessons learned:

For fire chiefs – you need to have a reasonable policy that requires personnel to report any off-the-clock work.

For firefighters – if your department has a reasonable policy for reporting off-the-clock work and you fail to follow it, you have no recourse… and no one else to blame.

For those interested in the full decision, here it is: Allen v Chicago 7th CIRCUIT RULING

For the English-geeks, is it: All told… or All tolled…

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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