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Expect more lawsuits like the one police officers have brought against Chicago if the Department of Labor’s proposed overtime rule is finalized in its current form, predicted Phillip Schreiber, an attorney with Holland & Knight in Chicago.
A judge’s verdict is expected soon in the five-year dispute between the city of Chicago and 51 police officers over compensation for time they spent calling in on BlackBerry devices after work hours. The city said supervisors
didn’t always know who was off-duty when the officers called and didn’t know that officers were not claiming overtime for off-the-clock BlackBerry work, according to the
However, the plaintiffs maintained that the city knew that the officers in the Chicago Police Department’s Bureau of Organized Crime were working off-the-clock and didn’t pay them for those hours. Officers didn’t ask for overtime compensation because they were afraid of the repercussions if they did, the newspaper reported.
The lawsuit in Chicago will be repeated across the nation if employers don’t make it clear that nonexempt employees, including newly reclassified nonexempts, are not to call in or answer e-mails after work hours, according to Schreiber.
Nonexempt employees newly eligible for overtime compensation may feel compelled to answer e-mails off-hours, just as they did when they were exempt, which could add up to significant amounts of overtime hours, he noted. Even if employees don’t seek overtime compensation when they have worked the extra hours, liability can add up. That’s because if a supervisor is aware that an employee has engaged in overtime work, the employee does not have to ask for it to earn it, Schreiber explained.
The employee cannot waive the right to overtime compensation, he remarked.
But in some circumstances, employees feel pressured not to seek overtime compensation even if they’ve earned it. Some Chicago police officers, for example,
feared that asking for overtime compensation would jeopardize their assignments.
“The biggest issue—what’s at the heart of this case—is the concept of unofficial expectations overriding what’s on paper,” Schreiber said. “Employees perceived the real rule was X when the official rule was Y.”
He emphasized that employers need to align official rules with any unofficial expectations.
“In Chicago, there was the expectation that officers would answer at all hours of the night,” he asserted.
And presently, many low- to mid-level managers across the country are exempt and accustomed to responding to text or e-mail off-hours. If there is the expectation that they will continue to do that after they are reclassified to nonexempt positions, they will be entitled to overtime compensation. Schreiber called this a “big issue that employers have to deal with.”
Employers need to decide what their expectations are for nonexempt employees’ communication away from the office and how employees will report additional time worked outside the normal workday, he said.
If employers don’t want exempt managers and nonexempt employees to communicate via text or phone after work hours, there needs to be a cultural shift at both the supervisor level and the employee level, Schreiber said. This will represent a “significant shift for people on both sides,” he remarked.
Companies can set up systems to prevent e-mails from going out to work accounts after-hours, Schreiber said, but that wouldn’t stop rogue managers from e-mailing someone’s personal e-mail account or texting.
Supervisors and employees need training on the new way of doing business and what the real expectations are for them. Supervisors might be told to call employees during off-hours only if it’s urgent, and employees might receive instructions not to respond to work texts or e-mails after work hours.
Enforcement of the expectations is important.
“Nonexempt employees should be made to sign a policy about not using smartphones during off-hours, unless there is a specific exception for doing so,” such as answering phone calls for truly urgent business, added Joel Rice, an attorney with Fisher & Phillips in Chicago. “The policy should indicate that there are potential disciplinary consequences, but they should still be paid.”
In addition, “Managers should be told that they face disciplinary consequences if they are communicating by text or e-mail with subordinates during off-hours,” Rice said. “This could include partial forfeiture of performance-based bonus money.”
Schreiber remarked that “You can’t penalize those who follow the rule or reward those who break it.”
As for the Chicago officers’ case against the city, the evidence is in and the parties are awaiting the judge’s verdict. “It could be today. It could be a month from now,” Schreiber said.
John Holden, director of public affairs with the Chicago Department of Law, said, “Because this is active litigation, it would be inappropriate to comment on the specifics of the suit. However, in general, the city believes this suit is without merit and that the Chicago Police Department has an established and utilized process for officers to request and receive overtime compensation.”
A lawyer for the police officers did not return a call for comment.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him
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