Judge rejects Chicago cop suit seeking OT for off-duty email

AP News
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Posted: Dec 11, 2015 6:58 PM

CHICAGO (AP) — A federal judge ruled against a group of Chicago police officers who argued that unwritten department policies kept them from being paid millions of dollars in overtime for responding to work-related calls and emails on their smartphones while off duty.

U.S. Magistrate Judge Sidney Schenkier issued a 38-page opinion late Thursday in a case where a central question was whether there was an unwritten rule requiring officers to stay engaged on their phones and respond to inquiries from superiors 24 hours a day.

Schenkier wrote that the city has established practices for filing overtime and didn't do anything to prevent officers from using it. While the officers showed they performed off-duty work on their smartphones, they "fell far short of showing a uniform culture or well-grounded understanding" that they wouldn't be compensated, the judge wrote. Schenkier noted that officers who submitted time-due slips for work done off-duty were paid and weren't reprimanded.

Sgt. Jeffrey Allen brought the class-action lawsuit five years ago. He and about 50 other members of an organized crime unit claimed the city owed them millions of dollars in back pay and that they should be paid for off-duty work on department-requisitioned BlackBerry phones. The case was being watched for its potential to help answer what it means for employees to be off the clock in the age of smartphone technology.

Attorneys argued officers were often browbeaten into not filing for overtime for phone work, and that the Fair Labor Standards Act put the responsibility on bosses, not subordinates, for making sure overtime work was fairly compensated.

The judge also wrote that simply "monitoring" Blackberries doesn't equal a substantial job duty compensable under labor law, though Schenkier added that the department could have offered a clearer policy saying that the time-due slips filed would be accepted. The department had two general orders on the issue, though they were considered guidelines and didn't influence officers' behaviors, Schenkier said.

"We consider it unfortunate that this ambiguity, or confusion, was allowed to linger," Schenkier wrote. "But, the existence of ambiguity or confusion does not constitute a policy forbidding submission of time due slips for off-duty BlackBerry work."

An attorney for the officers, Paul Geiger, told the Chicago Tribune he planned to appeal.

"The message this decision sends to employers looking for guidance on off-duty smartphone or computer use is a terrible one," he said. "Employers can now implement a rule forbidding off-duty smartphone use, not enforce that rule, and manage to get away with not paying employees. That is wrong."

City officials didn't immediately comment on the ruling.