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By Michael Trimarchi
“If the policy of this police department says I'm supposed to be available to respond to e-mails and phone calls while I'm off duty, I should receive overtime pay,” said Tom, a patrolman. “You can't deny me pay for doing my job.”
“The department has a process for obtaining overtime pay,” said Arlene, a department supervisor. “However, under the policy, the time spent for those post-shift communications wasn't compensable.”
FACTS: A municipal police department required its off-duty officers to be available via smartphones, such as BlackBerrys, for work-related e-mails and calls.
Some of the e-mails and phone calls required officers to act, such as contacting informants, gathering information for investigations and contacting and reallocating teams in response to emergencies.
The officers filed a lawsuit under the Fair Labor Standards Act seeking overtime pay for the time they spent for job-related calls and e-mails after their normal shifts. The officers claimed they were not compensated for these post-shift activities because the department had an unwritten policy of denying compensation for off-duty work performed by officers.
ISSUE: Does the police department owe off-duty officers overtime pay for responding to e-mails and phone calls?
DECISION: A municipal police department's policy requiring officers to be available via smartphones for work-related e-mails and phone calls while off-duty does not expose the employer to liability for unpaid overtime, a federal district court ruled.
The court considered what sorts of off-duty activities would constitute compensable work under the FLSA, which requires pay for substantial duties pursued necessarily and primarily as part of an employee's job, the court said. Activities that fall below what the court called a “murky” standard, such as de minimis activities, do not require compensation, the court said.
The issue of “what constitutes de minimis work under the FLSA is not well-defined in the Seventh Circuit,” said the court, referring to its jurisdiction.
The court cited a series of cases from the U.S. Court of Appeals for the Sixth Circuit that said “monitoring a radio, and being available to respond if called” is a de minimis activity that does not require overtime pay when done off the clock.
The “mere act of plaintiffs ‘monitoring' their BlackBerrys does not constitute an activity pursued necessarily and primarily for the benefit of the city under the FLSA, so long as the plaintiffs could still spend their off-duty time ‘primarily for [their] own benefit without persistent interruptions,'” the court said.
Generally, the officers' required activities “had to be done immediately, even if they were off-duty,” the court said. “Such off-duty activities were at times pursued necessarily and primarily as part of plaintiffs' jobs … and constituted compensable work under the FLSA,” the court said.
Nonetheless, the department had a policy for overtime payment and some officers had filed for and were paid for overtime work done on their Blackberrys. The officers' claim that the employer had an unwritten policy of noncompensation for off-duty activities therefore was without merit, the court said (Allen v. City of Chicago, 2015 BL 405874, N.D. Ill., No. 1:10-cv-03183, 12/10/15).
The officers plan to appeal.
POINTERS: Employers that require workers to use portable devices like smartphones for work are “susceptible to the ruling, and workplace policies should reflect this,” said Kenneth M. Willner, an employment policy lawyer at the firm Paul Hastings LLP in Washington. With the ubiquity of personal devices and how commonplace similar off-duty policies have become, the decision and impending appeal potentially have broad implications, he said.
“The decision clarifies what employers should do, and the judge spoke to several things that are of central importance in these types of cases,” Willner told Bloomberg BNA.
“One is that employers generally aren't liable if they establish procedures for overtime payment; on the other hand, that won't necessarily get employers off the hook if employees can show an unwritten policy” to deny overtime pay, Willner said.
Another is that employees must show more than “some general discouragement of overtime being incurred, but rather that a discouragement of payment for incurred overtime” is happening.
Two sorts of policies are needed to avoid these situations, and they must be consistent, Willner said. “First is a wage and hour policy which must say that if you do work that isn't recorded in the usual way, there is a mechanism by which you can report and be paid, and that mechanism must be reasonable,” he said.
“Second is a personal-device policy that clearly states when workers shouldn't use devices” and that workers should report “whenever they use devices for work purposes that aren't minimal,” Willner said.
For more information, see PAG's “FLSA Enterprise and Employee Coverage Rules” chapter.
This analysis illustrates how courts resolve pay-related disputes. The names and dialogue are fictitious.
To contact the reporter on this story: Michael Trimarchi in Washington at firstname.lastname@example.org.
To contact the editor responsible for this story: Howard Perlman at email@example.com.
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