Chicago Prevails on Off-Duty Overtime Class Action

By Allen Smith Dec 21, 2015

If an employer establishes a reasonable process for employees to report off-the-clock work, the employer isn’t liable for not paying employees who fail to follow that process, a Dec. 10 federal district court decision in favor of the Chicago Police Department shows.

The 51 class plaintiffs sought pay in court for their off-duty work performed on a BlackBerry, alleging that the police department had an unwritten practice discouraging such compensation. But the court ruled there was no such practice.

The officers claimed they were at the department’s beck and call around the clock. Some kept their BlackBerrys next to them while sleeping in case they received a call requiring an immediate response. Few of the plaintiffs reported the time they worked off hours on their BlackBerrys for fear they might be given poor job assignments. Those who did report off-the-clock work followed Chicago’s process requiring officers to submit overtime reports to supervisors, and these officers were paid for the time worked.

The city of Chicago didn’t have to pay the officers who didn’t submit overtime reports, the court ruled.

Policy Lacked Clarity

While the police department’s process helped Chicago prevail in this litigation, its policy could have been clearer, the court determined.

The city of Chicago issued two orders discouraging the use of BlackBerrys for off-duty work, but the orders were widely ignored.

“To the extent that these general orders were intended to convince members of BOC [Bureau of Organized Crime] that they did not need to respond to BlackBerry e-mails or phone calls while off duty, the testimony established that the orders were an abject failure,” the U.S. District Court for the Northern District of Illinois stated. “The testifying plaintiffs uniformly said that despite what the orders said, they felt obligated to be responsive to BlackBerry communications they received while off duty. We find that testimony credible.” (The BOC is widely considered to be the highest level sector within the police department, and an important stepping stone to further advancement.)

How might the policy have been clearer?

“If employees are expected to engage in work activities outside of scheduled work hours, at least in certain circumstances, the policy should remind employees that they are expected to record all of the time they spent on those activities,” said Phillip Schreiber, an attorney with Holland & Knight in Chicago. “If applicable, any special procedures for recording this time should be set forth in the policy as well.”

Then managers must be trained to follow the policy, he said. “Beyond a formal policy, employers should remind supervisors that the employer’s formal policy in this regard is the actual policy, and that supervisors should never expressly or implicitly suggest to a nonexempt employee that he or she should not record working time that occurred outside of the employee’s regularly scheduled hours,” he stated. Workers may be disciplined for working unapproved overtime, if that is prohibited, but they must always must be compensated for the work.

A clearer policy could have prevented litigation, the court suggested. While the court ruled for Chicago, it “made clear that the dispute and resulting trial could have been avoided if the city had simply adopted a clear policy regarding the timekeeping consequences of using the BlackBerry after hours, and what employees should do if they used the BlackBerry to perform work after hours,” Joel Rice, an attorney with Fisher & Phillips in Chicago, said.

The police department could have issued “a simple written statement that it distributed to every member of the BOC: ‘If you perform off-duty work on the BlackBerry that is necessary to your job, submit a time due slip for it and it will be approved,’ ” the court stated.

Despite the city’s missteps, a critical piece of evidence was in the city’s favor: It had established a record of reimbursing employees who turned in overtime slips for off-the-clock work on their BlackBerrys, the court observed.

“The city is not charged with knowing all the time that employees are working off the clock where it would not be reasonable for them to have known it, particularly where the employees had a ready means of informing the city of the time worked through the time slips system,” Rice remarked.

Overtime Discouraged

There was a smattering of evidence that there was a culture within the department against too much overtime.

One lieutenant often sent e-mails to subordinates to manage their overtime more efficiently, restricting overtime for work that was preplanned and could have been done on a scheduled workday. In one of these e-mails the lieutenant cryptically wrote, “Pigs get fat. Hogs get slaughtered.”

And a commander once ridiculed a lieutenant for turning in an overtime slip for as little as one hour of overtime worked.

However, the court said neither of these examples established that supervisors pressured their subordinates not to seek reimbursement for off-duty work.

This case is Allen v. City of Chicago, No. 10 C 3183 (N.D. Ill. 2015).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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