Hunton Employment & Labor Perspectives

A pending federal case highlights some of the wage-and-hour pitfalls emerging from the use of e-mail and smartphones.  Chicago Police Department Sergeant Jeffrey Allen originally filed his suit, alleging overtime compensation violations under the Fair Labor Standards Act (FLSA) in 2010.  On January 14, 2013, U.S. Magistrate Judge Sidney Schenkier of the Northern District of Illinois, Eastern Division, granted Allen’s conditional certification for a collective action under the FLSA.  In his suit, Allen claims that the City of Chicago violated the FLSA when it failed to compensate him, an hourly non-exempt employee, and a putative class of Chicago police officers for time spent reading and responding to emails via city-issued BlackBerries outside of normal working hours.

In his complaint, Allen’s proposed group of plaintiffs for the collective action included “All Police Department members . . . who worked ‘off the clock’ using Police Department issued PDA’s or other electronic communication devices without receiving compensation for each hour worked . . . .”  Allen alleged that he and roughly 200 other officers in the Chicago Police Department’s Bureau of Organized Crime were required to use their police department issued devices to perform work outside of normal business hours and were then pressured into not reporting the overtime worked.  The city responded by stating that it had in place procedures for reporting overtime and that the plaintiff failed to take advantage of them.  Allen, however, claims that the bureau had an “unwritten” rule which held that officers who wanted a promotion were expected not to report overtime for hours spent responding to emails and calls while they were off-duty.  Having obtained conditional certification, Allen now must notify other potential plaintiffs of the suit, who then have until April 8 to opt in.  Following the April 8 deadline, the court will hold a status hearing and proceed with the case. 

To determine that Allen had made a modest factual showing that he and other officers were subjected to an unwritten policy of not being paid for the off-duty use of their Blackberries, the court focused on the depositions of eight Chicago Police Department officers.  These depositions, the court said, indicated that “Sergeants and Lieutenants in the [Bureau of Organized Crime] believed that they were expected to check and possibly respond to emails and calls made to their department-issued BlackBerries while they were off-duty without being compensated for these activities.”

Employers  must remain conscious of the demands and expectations they place on hourly employees with regard to electronic communications after hours.  The advent of smartphones and laptops has greatly improved efficiency in the workplace, but this case may serve as an example of the risks associated with unclear expectations on remote and after-hours communication.