United States: So What About Those "BlackBerry Claims" We've Been Worried About?

BlackBerry devices may be a thing of the past; but smartphones–and their ability to allow employees to be constantly connected–certainly aren't going away any time soon.

On Thursday, a judge in the Northern District of Illinois held in  Allen v. City of Chicago that the Chicago Police Department (CPD) did not violate the FLSA by failing to pay law enforcement employees for time spent off-duty performing work on their CPD-issued BlackBerry devices. The ruling provides several lessons to employers on how to protect themselves against so-called "BlackBerry claims" by non-exempt employees carrying smartphones that many have been predicting may soon flood the courts.

Plaintiff, a sergeant in CPD's Bureau of Organized Crime (BOC) filed suit alleging that he and other CPD officers should have been paid for time they spent off-duty reading and responding to emails on their BlackBerrys, and performing related follow-up work.

The Court conditionally certified an opt-in collective action of sworn BOC officers below the rank of Lieutenant who had a BlackBerry device and who would have incurred overtime had their off-duty work on a BlackBerry device been recorded, and then also denied the City's decertification and summary judgment motions. Thus, the case proceeded to an approximately 4-day bench trial last August on the claims of 51 plaintiffs in the collective action. On December 10, the Court issued an opinion ruling in favor of the City and against the plaintiffs.

The Court said that, to succeed on their FLSA claims, plaintiffs must prove by a preponderance of the evidence, that (1) they performed overtime work for which they were not properly compensated, and (2) the City had actual or constructive knowledge that plaintiffs worked overtime without compensation. While plaintiffs succeeded on the first point, the City prevailed because plaintiffs failed to prove it had knowledge of their off-the-clock work.

Plaintiffs argued that the City maintained an unwritten policy to deny plaintiffs payment for their off-duty work on their Blackberry devices. This policy was enforced, they reasoned, through pressure not to incur overtime, a requirement that they receive prior approval to work overtime, and a Department-wide "understanding" that off-duty BlackBerry work would not be compensated.

The Court found that the plaintiffs performed off-duty work. They monitored their BlackBerrys, responded to time-sensitive messages to supervisors and co-workers and made and received phone calls. Although some of these activities were de mimimis and thus non-compensable the Court held that some of the BlackBerry activities were compensable work activities.

But the Court then looked at whether the City knew or should have known that the plaintiffs were working off-the-clock. Because the officers' schedules varied day-to-day, and because they were often in the field, their supervisors typically did not know when an officer was responding to an email or call off-duty, as opposed to during working time. Moreover, much of the off-duty BlackBerry activity was between the officers and their coworkers or others, giving the City even less opportunity to learn of the off-duty work.

Witnesses also testified–and the Court found–that some officers did fill out "time due slips," pursuant to CPD's procedures, seeking overtime pay for the BlackBerry work. Whenever this happened, the time was compensated and no one was disciplined for seeking this compensation.  Because of the volume of "time due slips" supervisors reviewed each day, and the lack of detail on the "time due slips," it was difficult to determine whether overtime was paid for off-duty BlackBerry work versus other work. It also would have been difficult for the City to determine if a "time due slip" was submitted for known off-duty work, since the slips were sometimes reviewed days later and contained very little detail. Some of the plaintiffs contended that they did not submit "time due slips" for off-duty BlackBerry work because the City maintained an illegal, unspoken policy not to pay for such work. But the Court rejected this argument.

It is a principal tenet of the FLSA that the law "stops short of requiring the employer to pay for work it did not know about, and had no reason to know about" so the officers' claims failed.

This case has several important take-aways for employers, even outside the public-safety context:

  • Off-duty work on mobile devices can be found to be compensable. Employers who provide mobile devices to non-exempt employees (or allow them to perform work on their own devices), must ensure strong policies are in place prohibiting off-the-clock work, and must have mechanisms in place to encourage reporting of after-hours work.
  • Minimal activity such as simply monitoring emails likely will not amount to compensable work. It is more akin to being "on call" since employees can passively monitor a mobile decide while still using their time for their own benefit. Any time likely won't be found compensable unless something more is required–such as responding to emails, making phone calls, or doing any follow-up research.
  • Proving employer knowledge of off-duty work is a very difficult burden for plaintiffs to meet, especially if the mobile communications are not with a supervisor. This is particularly so on a class or collective basis. Nonetheless, employers cannot turn a blind eye if they have reason to believe employees are working off-the-clock, and should address issues through policy, coaching, and–if necessary–discipline.
  • The Court, here, recognized that each side failed to take basic steps to eliminate ambiguity about CPD's approach to compensating off-duty BlackBerry work. The plaintiffs, it reasoned, should have obtained clarity by submitting "time due slips" to see if CPD would pay overtime and test their assertion that it would not. CPD, on the other hand, could have had a written policy clarifying that all off-duty BlackBerry work should be reported, and would be compensated–like all other work.
  • Finally, the Court recognized that our reliance on devices that allow work to be performed remotely isn't going away any time soon. Therefore, it behooves employers to review their policies and practices and ensure they work cooperatively with employees to prevent litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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