Many parents are vigilant in monitoring their children’s “screen time” to limit the child’s exposure to handheld devices, such as iPads.  They will often implement rules, such as “No phones at the dinner table,” or “No screens after 8:00 p.m.”  Are employers as vigilant in monitoring their employees’ time on the same devices when those devices can be used for work?

Jeffrey Allen is a sergeant in the Chicago Police Department.  He and 50 co-plaintiffs filed a lawsuit claiming that they were owed overtime for work performed on their Department-issued BlackBerry devices outside of their normal working hours.  We have been tracking this case since its filing in 2010. On December 10, 2015, after a five-day bench trial, Magistrate Judge Sidney I. Schenikier ruled in favor of the City of Chicago.

The officers argued that they were not properly compensated, because the Department maintained an “unwritten policy” that denied officers compensation for work on their Blackberrys performed outside of normal work hours.  While the judge did find that the officers were performing “work” on their BlackBerrys, the judge ruled the officers failed to establish that they were not “properly compensated” for their off-duty work.  Specifically, the judge looked at whether the officers’ supervisors knew or should have known that the officers were working off-duty and not being compensated for it.  The officers failed to establish either.

The judge relied on the following evidence: (1) officers’ work was performed outside the physical presence of supervisors; (2) supervisors were often unaware whether a subordinate was on or off duty (which is usual for a large police department); (3) work performed on BlackBerrys was performed with individuals other than direct supervisors; (4) ) it was the officers’ responsibility to turn in slips for off-duty work, and supervisors would not know if officers turned in slips for overtime; (5) officers did not complain to supervisors or union representatives about not being paid; (6) the Department’s written policy was that officers were not required to monitor their BlackBerry devices while off duty; and (7) no one discouraged any officer from submitting for overtime for work performed on a BlackBerry while off duty.

The Court stated in its decision, “The march of technology has been steadily (indeed, rapidly) moving forward. We expect that this march forward will continue, and that our use of and reliance on devices that allow work to be performed remotely will not abate.”  Our office’s experience confirms that new ways to communicate are changing when, where, and how employees work, and employees are becoming less tethered to the traditional work station or desk.  For example, employers are offering remote access or telecommuting options to allow employees to work from home or virtually anywhere in the world with internet access.  Employees are able to communicate with each other via their own personal devices (e.g., text messages, instant messaging apps) at all hours of the day.  This has blurred the line for when an employee is on or off-duty.  If left unmonitored and unchecked, these scenarios can give rise to what are commonly called “off-the-clock” lawsuits.

While new technology provides a different spin on the off-the-clock lawsuit, it still comes down to the same legal issues: whether the employer knew or should have known the employee was working; and/or whether the time spent working is de minimis (i.e., minimal amounts of time that are difficult to record).  Our offices has successfully represented numerous public agencies these cases, including cases involving off-the-clock email and cases where plaintiffs claim the employer has an “unwritten” practice or policy.

Practical Tips To Protect Your Agency

1. Establish and enforce policies regarding off-the-clock work.  The judge in the Allen case openly criticized the City of Chicago for not clarifying its policies regarding off-the-clock work.  Your agency must have clear policies that establish that off-the-clock work will not be tolerated and that violations of the policy will lead to discipline.  It is important to emphasize, however, that it is not enough to simply have a policy.  Rather, agencies must actively enforce their policies (e.g., counsel or discipline offending employees), and they should do so in writing.  It may seem counterintuitive to discipline an employee who may be willing to work a little extra for your agency, but it is important that employees in violation of these policies be held accountable.
2. Limit which employees are permitted to use mobile devices.  If your agency issues mobile devices to its non-exempt employees, identify the employees for whom the device is absolutely necessary.  Your agency should also consider prohibiting any work being performed on a personal mobile device, such as employees text messaging one another for work purposes.  In either case, if it is necessary for the employee to use a mobile device for work, the agency must insist that the employee promptly and accurately report the non-de minimis time worked, especially when it is likely to be performed outside of normal working hours.
3. Train supervisors to recognize FLSA violations.  Department heads, managers and higher ranking employees may not be as familiar with the day-to-day schedules of all their subordinates and are not able to identify when there may be an off-the-clock issue.  This was the case in Allen and has been the case in our experience, particularly in larger agencies.  Thus, much of the litigation is about what first line supervisors knew or should have known.  We have seen these types of lawsuits arise when first or second line supervisors are not enforcing policies (or, in some cases, intentionally violating policies) because they do not appreciate the consequences of an off-the-clock lawsuit.  Your agency should train (and periodically re-train) its supervisors to identify and to correct any FLSA violations. Your agency should also hold supervisors who fail to follow or enforce the policy accountable.