I have followed this case closely for some time, I blogged in September that I thought the City of Chicago had positioned itself in the most favorable position, with the policies and procedures it had implemented, to win this very large class action. It seems I was right. The federal district court judge has ruled that police officers who sought overtime pay for their off-duty use of City-issued BlackBerrys failed to demonstrate that there was an unwritten policy to the effect that they would not be compensated for the work. The case is entitled Allen v. Chicago and was filed in federal court in the Northern District of Illinois.
The Judge agreed that the officers had proven that they did, in fact, perform off-duty work on their BlackBerrys, but concluded that they failed to show that the City “suffered and permitted” the work to be done, knowing about it but then refusing to compensate the officers for that work. This was a protracted proceeding; the case was filed five years ago and the trial ended in late August.
The Court found that there was no evidence indicating that the officers’ supervisors knew that they were working on their BlackBerrys off-duty without submitting time slips to be paid for the work. The plaintiffs also did not show that the superiors pressured line officers not to submit slips for this off-duty work. The Court rejected plaintiffs’ contention that they were “terrified” of submitting requests to be paid as there was a “culture” within the department of not submitting such requests.
The City countered those arguments, by asserting that the officers could not show any official department policies of not paying requests for overtime. In fact, and to the contrary, the City presented evidence of numerous instances of officers requesting and, significantly, receiving overtime pay for off-duty use of their BlackBerrys.
The issue of preliminary and postliminary, off-the-clock work, allegedly which has not been paid, has been bursting upon the legal scene for a number of years. In this vein, there has been a horde of these BlackBerry cases. Most of the time, the employer defends by claiming it is de minimis, which it usually never is. The other defense is that the work was not ordered or directed. It is then that the “suffer and permit” doctrine kicks in and the defendant loses on that ground.
What the City of Chicago did in this case, however, is the best defense of all. By issuing the Memoranda and by having in place a system for officers to report the time, the City essentially preempted the claims of the men by “imposing” upon them a burden to prove that nameless, “unwritten” policies, trumped the documented issuances of the Police Department.