There certainly has been no shortage of publicity about the potential for wage and hour claims for time spent by hourly employees using smartphones or other electronic devices for work while off duty. Many employers have tried to address the need to pay for such time, and to avoid litigation, by promulgating procedures for such employees to record and be paid for the hours they work on mobile devices. That should be the end of it, but litigation continues when employees, for their own reasons, choose not to follow those procedures or to put in for the additional time. But is the employer responsible for that?
That was the issue presented in Allen v. City of Chicago, Case No. 16-1029 (7th Cir. Aug. 3, 2017). In that case, the city of Chicago apparently provided BlackBerry devices for officers working in its organized crime division. Incidentally, the case was filed in 2010, when such devices were more common – the opinion does not reflect whether the falloff in the popularity of that product resulted in different mobile devices being provided. Officers who used the BlackBerrys when off duty, a frequent occurrence due to the nature of their work, could submit "time due slips" to their supervisors to be paid for that time. In many cases, however, the officers simply did not submit those slips and thus were never paid for the time they had spent on their mobile devices during off hours. As the trial court found, while supervisors could in theory cross-check the work done by the officers with their time slips to find instances where work was done but not compensated, doing so was largely impractical. Following a six-day bench trial, the trial court entered judgment against the class.
The Seventh Circuit affirmed. It noted that the police department had a reasonable system in place for the submission of time and was not responsible if the officers chose not to use it. It distinguished the case from instances in which employees might have been discouraged from submitting time or where no procedure was in place. It rejected the notion that the department's pressure on supervisors to reduce overtime or the concern of officers about the "culture" constituted a violation.
The court found that the city's policies were not airtight, and it was particularly concerned about certain of the department's policies that were not FLSA-compliant, but the case demonstrates that having a reasonable procedure can provide a defense for an employer in off-the-clock cases.
One very frustrating aspect of this case is that there was no question that the officers could simply have submitted the slips and received overtime. And yet it took seven years, no doubt extensive class briefing, an expensive trial and an appeal to resolve the case against a group of employees who likely had the support of both the city and the public. While the remark attributed to then-Mayor Richard M. Daley when the suit was filed that the suit was "silliness" may have been too strong, the time, energy and money expended to resolve an issue that could easily have been avoided reflects difficulties the courts have had in resolving wage and hour class and collective actions.
The bottom line: An employer may have to take a class action case to trial to prove it, but a reasonable, well-written policy to enter time for off-the-clock work may prove to be a defense even in class or collective action litigation.
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