Last week the District Court for the Northern District of Illinois ruled in favor of the City of Chicago in the long time pending claim of about 50 Chicago Police officers and sergeants that the City violated the FLSA by not paying them for time spent responding to messages received on their Department issued BlackBerrys. The fact that this involves BlackBerrys give some indication of how long this lawsuit has been pending.
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.”
In case readers are bothered by the fact that the 2010 general order stated that employees would not be paid for performing off duty BlackBerry work unless on a call back or authorized by a supervisor, the court resolved the issue based on the totality of the facts. While Plaintiffs cited the general order as evidence of a standing unwritten policy against submitting time due slips for this kind of off duty work, the court found that facts showed that the general orders had no effect on Plaintiffs' practices with regard to working off duty on their BlackBerrys and submitting, or not submitting, time due slips for this work.
Employers should take note that this result would likely not be the same in a smaller department where the employer can more easily monitor the work and time records of subordinates. The court in this case was partially persuaded by the fact that supervisors routinely reviewed over 100 “time due” slips a day so it was unlikely they would be able to keep track of overtime hours worked. That expectation is obviously different in smaller workplaces.
Secondly, employers are reminded of the importance of good policies. As the court noted here, if the employer establishes a reasonable process for reporting uncompensated work, it will not be liable for non-payment if the employee fails to report their time. We always recommend that employers require workers to acknowledge that their time report reflects all of the time worked for the period of the report. If the employee works off duty without reporting it and the employer has no knowledge of the work, there is likely no FLSA violation.
But employers need to be cautious in relying on this defense. A time reporting process is valuable, but if the employer knows an employee is working off duty and failing to report their time ( for instance, they’re emailing work to a supervisor or working on the premises after hours when supervisory personnel is present) the employer will likely be found to have “suffered or permitted” the work and liable for the pay.
