It was only a matter of time. A Chicago police sergeant is suing the City of Chicago claiming it owes him overtime pay for the time he spent using his BlackBerry on police business after his shift ended. His lawsuit also seeks overtime for every other non-exempt Chicago police officer who used a BlackBerry while off-duty.
The City issued Sgt. Jeffrey Allen a BlackBerry when he was assigned to a unit that is responsible for deciding which assets police can seize from criminals during arrests. Sgt. Allen claims he frequently used the BlackBerry to conduct department business after he clocked out, all at the behest of the Police Department, and is entitled to overtime for his off-duty work.
The Fair Labor Standards Act (FLSA) requires overtime pay after 40 hours of work in a workweek for employees who do not fall within one of the Act’s exemptions to overtime pay. (Some exceptions to the 40 hours per week standard, but not overtime generally, apply to police officers, firefighters and employees of hospitals and nursing homes). For these “non-exempt” employees, like Sgt. Allen, the question is when are they “working.”
The FLSA requires that employees be paid for all hours they are “suffered or permitted" to work. Even work that is not requested by the employer but is “suffered or permitted” to be performed may be compensable work time if the employer knew or should have known of the work being performed. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task. The hours are work time and are compensable, even if the employee is subject to discipline for working beyond his shift.
Sgt. Allen’s lawsuit highlights one of several risks associated with issuing mobile work devices, such as cell phones and BlackBerries, to hourly and salaried non-exempt employees. The very nature of these devices may be evidence that the employer anticipated and encouraged an employee to work outside the employee’s regularly scheduled work hours, and these devices certainly facilitate such work. Mobile devices also tend to create a detailed electronic record of their use that may support an employee’s claim that he or she worked overtime, and that the employer was aware of the work being performed.
The risks associated with employer-issued mobile devices go beyond claims for overtime pay. For example, employers have been subjected to personal injury or wrongful death actions based on an employee’s alleged negligent use of an employer-issued cell phone while driving.