Police Officers Not Entitled To Payment For Alleged Off-Duty Blackberry Use

Kollman & Saucier
Kollman & Saucier
08/16/2017

Discussions about the roles and duties of both police officers and electronic devices have consumed much of our collective attention these days.  Thus, it seemed particularly resonant to explore the interaction between the two, as the Seventh Circuit did recently in Allen v. City of Chicago.  No. 16-1029 (7th Cir. Aug. 3, 2017).  Specifically, what overtime obligations does an employer have when it instructs its workforce not to use their company-issued electronic devices when off duty, but employees allegedly do so anyway?

Fair Labor Standards Act (FLSA) Requirements About Off-Duty Hours Worked 

As explained by the court, the FLSA requires that “[e]mployers must, as a [general rule], pay for all work they know about, even if they did not ask for the work, even if they did not want the work done, and even if they had a rule against doing the work.”  To avoid this payment obligation, management typically must “‘exercise its control and see that the work is not performed.’”

To avoid liability, however, employers may raise (and must demonstrate) the affirmative defense that they have “a reasonable process for an employee to report uncompensated work time,” which the plaintiffs failed to use.   If the employer establishes this defense, the employee(s) may still prevail by showing that the employer “prevents or discourages accurate reporting in practice.”

Chicago’s Payroll Practices 

The Chicago Police Department issued its officers mobile electronic devices (in this case, BlackBerrys) for use in their work.  The department also maintains a relatively common process for officers to be compensated for their overtime hours:

[The officers] submit “time due slips” to their supervisors.  The slips are small; there is some space for explaining what work was done, and officers usually put a short, vague phrase in the space.  The slip does not ask how the work was done, and officers do not typically include that information.  Supervisors approve the time, and the slips are sent to payroll and processed.

To guide this process – at least in theory – the department issued a General Order in 2010 that informed that officers were “not required” to use their electronic devices while off-duty and that they would “not be compensated” for off-duty usage except when (1) the officer was on a “call-back” assignment or (2) the officer’s superior directed and authorized overtime for the work.  The General Order was modified in 2013 so that the officers agreed that they “will not use” their devices except in the two situations described, rather than agreeing that they would “not be compensated.”

The Overtime Dispute 

Jeffrey Allen and 51 other officers claimed that, despite these orders and not getting pre-approval to do so, they did work on their Blackberrys during off-duty hours and, thus, were owed overtime.  The department disagreed, contending that the officers’ failure to utilize its clearly established process for submitting overtime hours meant that the city did not know about the hours these officers were allegedly working.  The district court held a bench trial.

The court ruled in favor of the police department.  The court first found that the off-duty Blackberry work would largely be compensable FLSA work, and that supervisors sometimes knew that off-duty hours were being worked.  On the other hand, the court observed, the supervisors did not know (or have reason to know) that the officers who worked those off-duty hours were not actually submitting time slips for those hours.  The court further concluded that there was no unwritten policy that the department actively discouraged reporting of those off-duty hours; to the contrary, a number of officers did submit time slips for those hours and were paid for them.  Though the General Orders were largely ineffective, based on the trial testimony, the court found that supervisors never discouraged submission of time slips.  Therefore, because the department did not know or have reason to know that these additional off-duty hours were being worked, Allen and his fellow officers were not entitled to damages.

On appeal, the United States Court of Appeals for the Seventh Circuit affirmed the trial court’s decision.  While expressing serious misgivings about the wording of the 2010 General Order that officers would “not be compensated” even if they worked the hours, the appellate court deferred to the trial court’s factual findings in light of the court’s opportunity to judge witness credibility and demeanor.  Thus, the department proved its affirmative defense and the officers were unable to show that supervisors actively discouraged accurate time reporting and submission for payment.

Employer Takeaways 

As this case shows, wage and hour disputes are often as tricky as they are common.  There are, however, some best practices that employers are encouraged to utilize to best manage risk:

  1. Make your employment policies as clear and specific as possible. The Allen Court lamented that the department’s General Orders contributed little value to the case, precisely because they did not clearly articulate whether or how Blackberry use during off-duty hours would be paid.
  1. Payroll policies should explain the circumstances under which certain work should or should be performed. The 2010 General Order explaining that off-duty work will “not be compensated” nearly cost the department significantly.  The 2013 update explaining that officers “will not use” devices is much less likely to be frowned upon.
  1. Policies themselves are not an end-all, be-all. Merely reminding employees that you do not want certain work done is not enough to avoid overtime exposure.  If you get wind of employees working unrequested or unapproved overtime hours, you may discipline employees for timekeeping policy violations (although the work itself must be paid).
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