Copyright: paylessimages / 123RF Stock Photo
Copyright: paylessimages / 123RF Stock Photo

This has been a protracted lawsuit; I have used this case (for some years now) as an example when I give seminars on working time and these so-called “email cases.” There has been a geometric explosion of cases over the last decade or so under the Fair Labor Standards Act based on a theory that off-duty, off premises use of emails and PDAs is compensable work.

The City of Chicago has been fighting a huge class action on this issue and the case recently went to trial. The plaintiff’s attorney said, in his opening, that the Chicago Police Department Bureau of Organized Crime (“Bureau”) maintained an unwritten policy of mandating that rank-and-file officers had to be constantly vigilant for important emails and other communications that could be transmitted over their department-issued smartphones. The plaintiffs allege that although the plaintiffs supposedly received about one-hundred emails every day and spent hours on the phone when their shifts were done, they were never reimbursed for this “work time.” The case is entitled Allen v. City of Chicago and was filed in federal court in the Northern District of Illinois.

The Bureau defended by asserting that two written memoranda issued in 2010 and 2013 specifically advised the police officers that they were not required to carry their Blackberries off duty unless they were specifically directed to do so by a supervisor. The City also contended that it did not have a policy of requiring officers to check Blackberries off duty without pay and that officers who did so and submitted overtime request forms for that time were, in fact, paid for the time. The lawyer stated that “those slips always have been approved.” The defense attorney also noted that not one of these unionized employees had ever filed a grievance over such alleged non-payment.

The attorney also suggested that some officers might have been confused by a departmental mandate that the officers maintain an emergency number on file in case they are needed in a hurry. On that note, some officers listed their Blackberry numbers as these emergency numbers, but if there was an emergency, the officer would be telephoned and not receive an email.

The Takeaway

This case, which has dragged on for five years, is an important one because it may shed light on the parameters of when such time is/is not compensable. This is crucial because more and more (e.g. thousands and thousands) of non-exempt workers are given company Blackberries or PDAs and may be ordered, explicitly, or, more troubling, implicitly, to check emails off-duty and respond to them.

It is the element of employer compulsion that breaks the case for the employer and (virtually) ensures success for the plaintiffs. The employer here got out in front of this (I believe) with the two memoranda and also (if true) the fact that employees were paid if they used their Blackberries and put in for the time. By being proactive and informing the affected employees, up front, what the policy and procedures were, this employer has put itself in the best position to successfully withstand the suit.