Employer Not Necessarily Required to Compensate for Off-Duty Work on Mobile Devices

Addressing an employment issue of interest in an increasingly electronic world, the U.S. Court of Appeals for the Seventh Circuit found that a police department was not required to compensate police officers for performing work on their mobile Blackberry devices while off-duty.

Background: Under the Fair Labor Standards Act, employers must pay for all work that it knew or should have known was being performed. An employer is deemed to have knowledge of the work if it should have known about it through the exercise of reasonable diligence. An employer does not, however, have to compensate employees for work that it reasonably did not know about.

In Allen v. City of Chicago, a group of former police officers sued the police department, claiming that they were not compensated for work that they performed on their Blackberry devices while off-duty. They claimed that their supervisors knew that they sometimes performed this off-duty work, and also claimed that the employer could have known about the uncompensated work by comparing time slips to cell-phone records. The trial court dismissed their claims, and the officers appealed to the Seventh Circuit.

The Court’s Ruling:  The Seventh Circuit affirmed the decision of the trial court. It found that the employer had exercised diligence with regard to its knowledge of time worked by establishing a clear process by which officers could report any off-duty work performed and be paid for such work. Although supervisors may have known that the officers were performing off-duty work on their Blackberries, there was no evidence that they knew that the officers had not been paid for such work, given that the officers could have used the process to request pay.

In addition, the Seventh Circuit rejected the officers’ argument that the employer “could” have known that the time was unpaid by comparing time slips to cell phone records. It noted that the correct standard was what the employer “should” have known and, in this case, the suggested comparison of records was not reasonable.

The Seventh Circuit also noted that a procedure to report additional time worked would not protect the employer if the employer actually prevented or discouraged such reporting – and this is a case-specific determination. In this case, however, there was no evidence that the employer had engaged in such practices.

Lessons Learned:  It is important for employers to establish and educate employees on a process by which any time worked beyond the expected – including during breaks, lunchtime, or before or after work hours – can be reported and paid. It is also important that employers do not engage in any practices to discourage such reporting. Of particular note, the trial court exhibited some frustration that the employer had not implemented a clear policy on compensation of mobile device work. Employers whose employees rely on mobile devices might be well advised to address this particular subject specifically in any overtime policy.