We reported back in 2015 about the unsuccessful attempt by some Chicago Police Officers to collect for overtime they were forced to perform when they were issued BlackBerrys and required to respond to messages off duty.
At issue was the Plaintiffs’ claim that they routinely received email messages while they were off duty on their BlackBerrys to which they were expected to respond. They also claimed that an unwritten policy existed in the Department that officers did not ask for overtime for this kind of work off duty.
In support of their argument, Plaintiffs offered a 2010 general order (issued after the suit was filed, but assumedly documented a previous unwritten policy) which stated that the BlackBerrys were issued for the convenience of the officers and that the general guideline was that members would not be paid for performing off-duty BlackBerry work unless on a call-back assignment or specifically directed and authorized by a supervisor to perform the overtime work. Plaintiffs claimed that they often received messages from fellow officers on pending investigations which required immediate response for which they did not obtain prior approval to do.
Fortunately for the City, the Department also has a long standing policy which required officers to submit “time due” slips in order to be paid overtime. It is from these slips that overtime or compensatory time is calculated.
The court found that the Plaintiffs proved that they worked off duty hours for which they were not compensated but that the City did not violate the FLSA because it was not aware (it did not suffer or permit) the work. First of all, the court found that the off duty work was often not done with prior approval of supervisors, but more importantly, was not initiated or assigned by supervisors. Rather, officers were responding to emails and inquiries from other officers in their unit on cases on which they were working together. Because the work was not assigned or reported to supervisors and because the officers themselves failed to submit “time due” slips, the court found that the City had no way in which to be aware of the officers’ off duty work. The court held that “[u]nder the FLSA, if an employer establishes a reasonable process for an employee to report uncompensated work time, the employer is not liable for non-payment if the employee fails to follow the established process.”
The 7th Circuit noted that while the FLSA has a strict rule that employees must be paid for work that the employer “suffered or permitted, that rule “stops short of requiring the employer to pay for work it did not know about, and had no reason to know about.” The employer’s knowledge can be either actual or constructive and an employer has constructive knowledge of an employee’s work if it should have acquired knowledge of that work through reasonable diligence.
The 7th Circuit noted that one way an employer can exercise diligence is by establishing a reasonable process for an employee to report uncompensated work time. In this case, the Chicago Police Department had the time due slips which the court found allowed officers to report their time. Due to the size of the department, it is not reasonable to expect that supervisors could check every email or text against the regular schedules of officers to determine whether overtime was due.
Smaller employers should be cautioned though, that courts would likely hold them to a more stringent standard. It is important for employers to have policies which require prior approval for overtime work, an easy mechanism to report overtime worked and regular certification (we suggest every pay period) by the employee that they have reported all time worked. Adherence to these guidelines will reduce surprise claims.