Remember that collective action that the Chicago police officers filed complaining that they weren’t paid overtime for checking their BlackBerrys off duty? Well, the cops lost at trial and now the U.S. Court of Appeals for the Seventh Circuit has it. Recall that 54 officers from the Bureau of Organized Crime Unit filed a collective action that the Chicago Police Department had a policy of not paying overtime to some police officers for their off-duty use of their work-issued BlackBerrys. The officers argued that the city issued the BlackBerrys based on the premise that the officers would always be available to answer e-mails and phone calls. During a weeklong bench trial before U.S. Magistrate Judge Sidney I. Schenkier, officers testified that they feared repercussions if they submitted overtime requests for off-duty answering of e-mails and phone calls and that such requests were frowned upon. At trial, the Department offered two approved time slips—indicating that the Department did not discourage the requests and paid them. The officers’ attorney later argued that the evidence of two time slips was conveniently timed – the approvals “all seem to have magically happened just in advance of the trial”. Judge Schenkier, however, held that the police officer’s claims did not rise to the standard set by the Fair Labor Standards Act.
The city and the officers are currently arguing their case before the Seventh Circuit in Allen v. Chicago (case no. 16-1029). The city filed a brief Tuesday night, arguing that the department did not have either a written or an unwritten policy that refused to compensate police officers for either answering phone calls or e-mails on their work-issued BlackBerrys. Additionally, the city argued that the “intentional failure to report overtime in accordance with an employer’s reasonable timekeeping procedures preclude[ed] an FLSA claim for unpaid overtime”. Employers who have nonexempt employees with 24-7 email or telephone access should watch closely to see if the Seventh Circuit agrees.