Employees Connected 24-7 May Raise Overtime Concerns for EmployersEmployees Connected 24-7 May Raise Overtime Concerns for Employers

Must employers pay employees "always" on-call when they "smartphone" back and forth on business matters during off-hours?

Know anyone who can't get through dinner without checking a smartphone, seemingly every minute, at the table? Can't shut off your own smartphone, contrary to requests, at a concert, theater or funeral?

This 21st-century addiction/compulsion should be on the radar of every employer in the U.S. A class action suit is making its way through the courts, questioning whether employees should get pay for extra-curricular hours spent reading and responding to work-related emails and texts. Can an employer be liable for time spent by an employee so addicted to his/her handheld wireless device that, contrary to policy, s/he keeps checking for every message--personal or business--and, if business, not considering whether to wait and handle it "on" regular work-time? Must an employer pay for such unauthorized time even though it is work-related? In an answer that reeks of legal expense and possible liability: "It depends."

This past February the United States District Court for the Northern District of Illinois decided only the class action issues in Allen v. The City of Chicago, (Case No. 10 C 3183). In this 2011 case, Sgt. Allen and all other similarly situated Chicago Police Department ("CPD") employees filed for lost pay and other damages under the Fair Labor Standards Act ("FLSA"), the nation's primary federal wage/hour law. They demand regular and overtime pay, plus attorneys' fees, costs and expenses, for "off-hours" on-call and other time spent by them on City-owned and provided wireless devices (specifically, BlackBerries) for business purposes.

A member of the Chicago Police Department's elite Bureau of Organized Crime, Allen claimed that he and other officers read and responded regularly to work-connected emails during "off" hours, time that should be "counted" and paid as "hours worked."

Because we all know and see others--and we may be among those--constantly "on" smartphones, it is easy to imagine the CPD officers remaining "on" their wireless devices beyond regular work hours. According to the complaint, Allen and "similarly situated plaintiffs were subject to a 'longstanding and unwritten policy that members of the Bureau of Organized Crime would monitor and perform work on employer-issued BlackBerry devices while off duty, but would not submit overtime slips or otherwise be paid for their labor.'"

Though the CPD had no written policy or procedures governing off-duty BlackBerry use, the CPD officers have asserted that they had "to be available twenty-four [hours] per day via BlackBerry," and therefore "felt obligated to respond to these email communications and telephone calls while off duty" because "a culture had developed where [police officers in this elite group felt] compelled to work for free in order to possibly gain promotion and/or maintain their coveted assignment in a specialized unit."

According to the City of Chicago, however, the existence of any such unwritten expectation, culture and practice makes no difference. In the City's view, an earlier case, White v. Baptist Mem. Health Care Corp., 699 F.3d 869, 873 (6th Cir. 2012) makes clear that "the employer is not liable for non-payment if...the employee fails to follow the established process," when a reasonable process exists for employees to report uncompensated overtime work.

Whether the Allen or the City arguments will prevail is yet to be determined. The focus in Allen so far has been whether the case should be certified as an FLSA class action. The Court said yes to this certification, but that decision has no bearing on whether other officers have a right to pay under the FLSA. Potentially, however, this class action, involving huge dollars, should trigger warning sirens for every employer in the nation.

When and if the case focuses on its merits, fact questions will be, first, whether the CPD policy on overtime was legal; and second, regardless of legality, whether there was an unwritten practice contrary to the law and the written policy.

According to noted Reed Smith employment lawyer Gene Connors, "A policy legal on its face provides no 'automatic' insulation from liability if an employer neglects to make sure its employees follow it. Pure and simple, an employer, almost always, is responsible for what it knows or should know its employees are doing and must suffer and pay for the consequences of what is actually happening."

He adds, however, "The devil will be in the details, to be sure, on whether the employer should be charged with knowledge. If, for instance, the Allen case goes to trial and gets to the jury, the City of Chicago will argue that it should be charged with no 'off hours' knowledge because the CPD officers failed to claim overtime pay by following established reporting procedures. On the other hand, Sgt. Allen's team can then be expected to blizzard the jury with emails, vmails, and texts to and from the officers and their supervisors during off-time, and ask, 'Look how much the City knew, through its supervisors!'"

Sgt. Allen and fellow officers were "on call" to report and work if and when the CPD called. Under the FLSA, the degree of freedom an employee has while on call or during call time is one of several key factors used to determine an employer's obligation to pay for that time. The more "intrusive" the employer's "on-call" policy is on the employee's "free" time, the more likely it is that the employer must pay for the on-call time as hours worked. The rate of pay is at overtime rates if the time worked is more than 40 hours during any given workweek. As an example, the volume and frequency of calls, along with requirements associated with the response time, will be critical in making this determination.

On-call time is generally considered assigned time, but the allegations in Allen at least claim that all "off" hours were "on-call" because "we are on-call 24/7...." That is what raises the most expansive and therefore expensive issue: must employers pay employees "always" on-call when they "smartphone" back and forth on business matters during off-hours?

Answering "yes" or "perhaps" invites a second question: "What can employers do to avoid any such obligation?" It can be as simple as this:

No work beyond an employee's scheduled work hours is permitted without specific, written management authorization. This prohibition extends to every type of business-connected activity, such as reviewing and responding to phone calls, voice mails, emails and texts during "off" time.

Will such a policy and compliance with that policy provide an employer with blanket insulation? That remains open for debate. "But, "according to Gene Connors, " it would be a smart start."

Stay connected on the handheld of your choosing for more on this issue, but only during work hours, please....