Ruling on Checking Work E-Mail May Affect OT Policies

Dec. 15 — A Chicago Police Department policy requiring officers to be available via smart-phones for work-related e-mails and phone calls while off-duty doesn't expose the city to liability for unpaid overtime, the U.S. District Court for the Northern District of Illinois held Dec. 10.

The department has a mechanism for officers to claim payment for overtime, and the 51 officers who joined the class action couldn't show that an unwritten policy to deny payment for off-duty work performed on their work-issued Blackberries existed, Judge Sidney Schenkier said. The court dismissed the officers' Fair Labor Standards Act claim.

The officers' attorney, Paul D. Geiger of Northfield, Ill., told Bloomberg BNA Dec. 15 that the class intends to appeal. The city's representatives couldn't be reached for comment.

Any employer that requires workers to use portable devices like smart-phones for work “is susceptible to the ruling, and workplace policies should reflect this,” Kenneth M. Willner of Paul Hastings LLP in Washington told Bloomberg BNA Dec. 15.

Given the ubiquity of personal devices and how commonplace similar off-duty policies have become, the decision and impending appeal potentially carry very broad implications.

How Should Employers React?

“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 compensation.

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.

Draft Consistent Policies

There are two sorts of policies 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.”

Such a policy should “specifically encourage” employees to report all overtime, Willner said.

“Second is a personal device policy that clearly states when workers shouldn't use devices” and that workers should report time “whenever they use devices for work purposes that aren't minimal.”

To contact the reporter on this story: Hassan Kanu in Washington at hkanu@bna.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bna.com