Chicago Police Win The BlackBerry Battle, Lose The War

A group of 51 Chicago police officers, sergeants and lieutenants sued the City under the Fair Labor Standards Act (FLSA), claiming they were improperly denied compensation for the off-duty time they spent with their department-issued BlackBerry devices. After years of pre-trial skirmishing, a five-day non-jury trial was held in August 2015.

Months later, the federal court judge overseeing the case issued a lengthy opinion. The Court began with a finding that “some, but not all” of the time spent off duty with the devices was compensable work under the FLSA.

The Court observed that “the Department-issued BlackBerrys give the plaintiffs the ability to perform certain necessary work while on and off duty. Some activities plaintiffs performed on their BlackBerrys had to be done immediately, even if they were off duty. These activities include reaching out to confidential informants, gathering information on investigations that were heating up, and contacting and reallocating teams of officers in response to a shooting. Such off-duty activities were at times pursued necessarily and primarily as part of plaintiffs’ jobs, and constituted compensable work under the FLSA.”

However, the Court found that not all of the off-duty activities the officers performed on their BlackBerrys were a necessary part of the job: “For example, the mere act of plaintiffs monitoring their BlackBerrys does not constitute an activity pursued necessarily and primarily for the benefit of the City under the FLSA, so long as the plaintiffs could still spend their off-duty time primarily for their own benefit without persistent interruptions. Although the dividing line between work that is de minimis and that which is substantial may be murky in some instances, the evidence showed that at least some of plaintiffs’ off-duty activities using BlackBerrys qualify as work.”

That was the end of the good news for the officers. The Court then turned to the second question in the case – whether the officers could show that the Department maintained an unwritten policy to deny compensation for off-duty work performed using a BlackBerry. The Court found that the officers had not met their burden of proving such a policy.

The Court noted that some officers “testified that they believed they could not turn in time due slips for off-duty BlackBerry work because there was a pervasive culture or understanding within the Department that this work would not be compensated. However, the evidence at trial failed to bear out the culture these witnesses alleged.

“The evidence established that several plaintiffs submitted time due slips for off-duty work performed on their BlackBerrys, and they were never denied compensation for this work. The evidence also showed that at least two supervisors approved time due slips for off-duty work they knew was performed on BlackBerrys. No plaintiff was ever told that he or she should not submit time due slips for off-duty BlackBerry work. This is strong evidence against a shared understanding or policy that members should perform this work without pay.

“Plaintiffs have not shown that their supervisors invariably knew or should have known when they were working off duty on their BlackBerrys. First, much of plaintiffs’ off-duty BlackBerry work occurred outside the physical presence of their supervisors, and the testimony at trial persuades us that supervisors were often unaware whether a subordinate was on or off duty. Second, much of plaintiffs’ alleged off-duty work on their BlackBerrys was performed with individuals other than their direct supervisors. Plaintiffs’ supervisors would not be aware in these instances when, why or with whom plaintiffs were communicating on their BlackBerrys while off duty.

“Plaintiffs also have failed to prove that the City knew or had reason to know that they were not receiving compensation for any particular overtime a plaintiff may have worked. First, supervisors did not know whether their subordinates turned in time due slips to receive compensation for off-duty BlackBerry work, both because the time due slips generally do not state how overtime work was completed, and because they reviewed so many time due slips (up to 120) each day, sometimes well after the work was performed. Even if the supervisor knew a plaintiff had performed off-duty work on his or her BlackBerry, it would be extremely impractical to verify that a time due slip was turned in for that work.

“While the evidence showed that plaintiffs were rarely specifically instructed to submit overtime slips for off-duty BlackBerry work, there is no legal requirement that an employer advise its employees to request payment each time overtime is worked when the employer maintains a legal overtime payment policy.”

The Court closed with some precatory remarks: “We hope our ruling today provides helpful guidance to the parties. The march of technology has been steadily (indeed, rapidly) moving forward. We expect that this march forward will continue, and that our use of and reliance on devices that allow work to be performed remotely will not abate. We thus expect that members will continue to use their BlackBerrys or like devices while off duty, because of the important work that can be accomplished with them. It is up to the parties to work cooperatively to prevent future litigation concerning compensation for the off-duty use of Department-issued BlackBerrys.”

Allen v. City of Chicago, 2015 WL 8493996 (N.D. Ill. 2015).