Jeffrey Allen, a Chicago police sergeant, brought a lawsuit under the Fair Labor Standards Act (FLSA) contending that the City failed to pay him all overtime he worked. In particular, Allen alleged that he and other employees in the Bureau of Organized Crime were issued BlackBerries, and that the employees were not paid for the time spent off duty performing work with their BlackBerries.
A federal court has now conditionally certified Allen’s lawsuit as a “collective action” – the FLSA’s equivalent of a class action. The Court noted that “all of the depositions taken to date reveal a workforce in the Bureau of Organized Crime that is expected to be available twenty-four hours per day via BlackBerry. All of the employees receive and respond to an onerous amount of email and telephone calls on a daily basis. All employees felt obligated to respond to these email communications and telephone calls while off duty. Regrettably, a culture has developed where police officers feel compelled to work for free in order to possibly gain a promotion and/or maintain their coveted assignment in a specialized unit.”
The Court found that there was enough evidence that employees in the Bureau were “similarly situated” to justify treating the case collectively. The City relied on a written policy for how police officers should seek overtime compensation: Officers submit a time due slip advising their immediate supervisor when they worked overtime beyond their normal duty hours; the supervisor must approve the slip; then the supervisor forwards it to a department official for timekeeping and payroll purposes. Since Allen and his cohorts at the Bureau did not submit time due slips for off-duty BlackBerry use, the City argued that this evidence alone should put an end to the collective action claim.
The Court disagreed, holding that the City’s argument “begs the question of whether there exists an unwritten practice or policy for BlackBerry use that runs contrary to the City’s general policy with respect to overtime. Regardless of what an employer’s official policy says, some evidence that a separate policy is enforced by more than a rogue manager or two supports a conclusion that similarly situated employees were subject to a common practice violating the FLSA.”
The Court ended its decision by expressing some misgivings about Allen’s claim: “Despite Allen’s ability to survive stage one of the FLSA collective action question, we reiterate our questions about the ability to treat on a class basis the broad range of situations in which police personnel may respond to messages that are sent to them on PDAs, the extent to which those responses might constitute work, and the extent to which any work might not be compensable because it is de minimis. We also harbor doubts as to how Allen will determine the extent of some of the alleged off-duty BlackBerry work, such as the amount of time an officer spent monitoring emails on a BlackBerry versus reading or responding to emails while off duty (when people regularly receive hundreds of emails at all hours, and where the officers were allowed limited personal use of their BlackBerries. That said, we leave these concerns for another day.”
Allen v. City of Chicago, 2013 WL 146389 (N.D. Ill. 2013).