I have blogged on this long, protracted saga many times and I am glad to see that with each posting, the judicial result does not change. The Seventh Circuit has now affirmed a lower court’s ruling that determined that Chicago police officers did not have a viable claim for overtime under the Fair Labor Standards Act for their after-hours work performed on city-issued BlackBerrys. The Court concluded that there was a lack of any systemic or uniform policy that stopped the officers from putting in for the overtime. The case is entitled Allen v. Chicago and issued from the Court of Appeals for the Seventh Circuit.
The panel affirmed U.S. Magistrate Judge Sidney I. Schenkier’s December 2015 decision, which followed a six-day bench trial. The Seventh Circuit agreed with the lower court that the police department did not act to affirmatively prevent officers from requesting payment for nonscheduled overtime work. The Court also concluded that the City had no knowledge that officers were not being paid for the work.
The police department issued BlackBerrys to the officers, which they sometimes used for such off-duty work. They were required to submit “time due slips” to their supervisors and they had to write a short explanation of the work they performed, after which the supervisor approved the time and the officers were then paid. The Magistrate eventually concluded that the officers did not demonstrate that the department had an “unwritten policy” that discouraged them from submitting slips.
The officers argued that their supervisors knew they were working off-the-clock because, according to them, the City gave them BlackBerrys so they could be contacted at any time. The City countered by pointing to evidence that supervisors believed the officers were preparing the overtime slips so they could be paid. The Seventh Circuit rejected the contention that the department had actual or constructive knowledge that overtime was being underreported and/or that there was pressure on the officers not to report that time.
Interestingly, the Seventh Circuit compared this case to the Sixth Circuit holding in White v. Baptist Memorial Health Care Center. In that 2012 decision, the Sixth Circuit held that an employee’s failure to accurately record/log work hours doomed her FLSA suit for overtime. The Seventh Circuit observed “plaintiffs in this case, like the nurse in White, worked time they were not scheduled to work, sometimes with their supervisors’ knowledge. They had a way to report that time, but they did not use it, through no fault of the employer,” the Seventh Circuit said. “Reasonable diligence did not, in the district court’s view, require the employer to investigate further. Since … we see no clear error in that view of the facts, we see no legal error in reaching the same conclusion as the White court.”
In order for employees to be paid for alleged off-the-clock work, they must show that their employer knew or should have known about the work. They must also show that there was a system wide policy or practice that prevented them from being paid. There was no evidence of either of these scenarios in this case and, more importantly, there was evidence that the City paid for this working time!
The correct result…