We all know that most people are addicted to their personal devices or smart phones. Look around in any restaurant and you will sometimes see everyone at a table not talking with each other, but looking at their phones. So when an employer issues smart phones, tablets or other personal devices to its employees, or allows or encourages access to the organization’s email system from the employee’s personal device, it’s not hard to imagine that those employees will be checking and sometimes responding to messages. From that point, it’s a small leap to where employees are making wage claims for the time that they spent accessing and responding to messages while off duty.
This very scenario is currently unfolding in a federal courtroom in Chicago. The plaintiffs are about 50 current and former Chicago Police Officers and the Defendants are the Chicago Police Department and the City of Chicago. At issue is the officers’ claim that in 2010 the Department issued BlackBerrys (remember them?) to the officers to use both on and off duty. The officers claim that they routinely received off-duty emails from the Department for which they are owed pay for reviewing and responding to such.
The officers brought their claim in 2010, at a time when the Department had no policy about off-duty use of the BlackBerrys. Since that time the Department has issued and re-issued policies on the subject and today employees are forbidden from using their devices off-duty unless the work is pre-authorized by a supervisor.
That still leaves the claims for unpaid wages from past years. The Department claims that officers were never required to check their email and messages while off-duty. Moreover, it claims that if an emergency arose that required a call back of officers, the Department would telephone the employee at the number on record with the Department, and would not email or message the officer. Finally, the Department claims that if officers did any work on their devices off-duty, it was de minimus and they are not owed pay.
The Supreme Court has identified four factors for determining whether an activity is de minimis for wage payment purposes:
- The amount of time spent on the additional work. While many courts apply the rule of thumb that anything under 10 minutes is de minimus, courts also fund that there is no precise amount of time that may be denied compensation as de minimis.
- The second factor is the practical administrative difficulty of recording the additional time. The Supreme Court has held that “[e]mployers ... must compensate employees for even small amounts of daily time unless that time is so minuscule that it cannot, as an administrative matter, be recorded for payroll purposes.” The more insubstantial the amount of time and the more difficult it is to record that time, the more likely it is that the work is de minimus.
- The third factor is the aggregate amount of compensable time. For instance, claims that might have been minimal on a daily basis but, when aggregated, either for an individual or a group of individuals, amounted to a substantial amount of time, may be compensable.
- The fourth factor is whether the claimants performed the work on a regular basis. Obviously, the more regular the task, the less likely that the work was de minimus.
Given the wide spread practice of habitually checking personal devices, the decision in this case may have significant impact on many employers.
Employers should ensure that they have clear policies about off-duty work by non-exempt workers on both employer provided devices or the employee’s personal device. The policy should also include the direction that if a non-exempt employee works off-duty, he or she must report that time worked in that same pay period. It’s also a wise idea to have employees sign off on their time each pay period in order to avoid later claims that they answered emails or messages, or took phone calls and deserve pay. Strict enforcement, including disciplining violators, may help employers control pay for off-duty work.