In December 2015, a federal court in Chicago handed down an important ruling involving overtime compensation in the digital age. While the case involved a Chicago police officer, the facts could apply to virtually any profession, including firefighters.
The case
Jeffrey Allen, a sergeant in the Chicago Police Department, was issued a smartphone when he was assigned to the Bureau of Organized Crime (BOC). Allen claimed that members of the bureau routinely used the devices to communicate via voice, text and email while on and off-duty. He filed a class action lawsuit under the Fair Labor Standards Act (FLSA) claiming that he and his coworkers used the phones for business-related work while off-duty but were never compensated for the time.
Allen alleged that his bosses were aware that BOC officers were using the devices during their off-duty time but that the department had an “unwritten rule” that they were not to put in for overtime for such off-the-clock work. The BOC is a prestigious assignment, and members feared losing their assignment by not abiding by the department’s wishes.
When Allen filed suit back in 2010, the case garnered a great deal of attention by attorneys who follow digital age overtime issues. In the intervening years, it was repeatedly in the headlines as the city fought unsuccessfully to have it tossed out of court. The case was similar to dozens of suits filed by employees of companies ranging from T-Mobile to Lo-Jack who were required (or at least expected) to use smartphones and computers for work-related matters while off-duty without compensation.
A developing body of FLSA law supports the fact that employees who perform off-the-clock work using smartphones, computers and tablets have a right to be compensated when their employer knows or should know they are doing work. The potential liability in these cases is huge considering that off-the-clock work may extend to virtually every work-related text, email, phone call and online research performed while off-duty. For firefighters, an additional concern is the completion of reports online while off-duty.
Despite the city’s best efforts to have the case thrown out, a bench trial began last fall before U.S. District Court Judge Sidney I. Schenkier. The trial took a turn that none of the commentators anticipated.
The trial
Judge Schenkier agreed with the officers that they used the devices for work-related purposes while off-duty, and that the use was more than “de minimus.” De minimus is the term used to describe short periods of off-the-clock work that do not warrant compensation. While not a hard-and-fast rule, many courts have held that occasional off-the-clock work of up to 10 minutes is considered de minimus.
While finding that much of the BOC officers’ work was more than de minimus, the judge ruled that not all of the time that officers claimed was work-time was actually compensable. In particular, he found that some of the activity was not truly related to their jobs, such as monitoring their devices for updates and expected texts/emails and reviewing routine emails (referred to as Mass Crime Prevention and Information Center or CPIC emails) that did not require immediate action. Nevertheless, he found that the officers had engaged in substantial enough off-the-clock work so as to make some of it compensable.
However, Judge Schenkier ruled in favor of the city because the officers failed to follow the prescribed requirements for submitting for overtime compensation. The judge pointed to a line of cases that held that employers are not obligated to compensate employees for overtime when they fail to follow the employers’ policies and procedures for documenting and requesting overtime compensation.
Important to his ruling, the judge recognized that the city had a formal policy on overtime with a prescribed procedure for reporting time worked. He found the policy to be reasonable and ruled that the officers failed to prove the existence of an unwritten policy against paying them for off-the-clock work. In fact, Judge Schenkier pointed to undisputed testimony that the city paid overtime to at least three officers who put in for off-the-clock work, and none of the three were retaliated against.
The takeaway from Allen v. Chicago
While the Allen case is likely to be appealed, there are several important takeaways for fire departments and firefighters.
First, off-the-clock work is a major area of concern. While Allen involved department-issued smartphones, the problem is not limited to department-owned equipment. An employee can just as easily engage in off-the-clock work using their own device. The key factor is whether the employee is performing work.
Second, junior officers who are unaware of the risk created by off-the-clock work may inadvertently trigger overtime requirements by placing demands on subordinates that they promptly respond to their emails and text messages while off duty. All officers need to be educated to the issues associated with off-the-clock work in the digital age.
Lastly, fire departments with paid personnel (whether full or part-time) need to have a very clear policy prohibiting off-the-clock work by hourly employees except when properly authorized. The authorization process needs to be clear, reasonable and customized for each department based upon the specifics of the department’s organization.
As part of developing the policy, departments need to identify off-the-clock work areas of concern and address those areas specifically. For example, many fire departments utilize online training platforms to better facilitate training across the department. As beneficial as these platforms are, they run a risk of creating off-the-clock work if members access them while off-duty. Departments using such systems need to identify and manage the risk through appropriate policy language.
As is evident from the Allen decision, the policy should require any member engaging in off-the-clock work to report it promptly in accordance with the policy. In turn, any reporting of off-the-clock work in accordance with the policy should be paid. In this way the department can manage the overtime associated with off-the-clock work as it becomes aware it is occurring. Appropriate counseling and, if need be, orders should be issued to employees who may be engaging in off-the-clock work without permission.
Some departments may choose to permit employees to engage in de minimus off-the-clock work, such as checking and responding to work-related emails and texts, completing reports, reviewing new policies, etc. The policy should make it clear that such activities are not required, but are merely permitted for the convenience of the employee. Such off-the-clock work should not be allowed on a regular basis, and must be less than 10 minutes in duration. Any off-the-clock work that is regular and/or that goes beyond 10 minutes should be reported and compensated. Some authorities are recommending that all such off-the-clock work, even de minimus, be reported and documented to avoid a later challenge.
Given the risks, many employers are strictly prohibiting off-duty employees from accessing work-related networks. Some authorities are recommending this be done technologically whenever feasible by denying network access to personnel unless they are on duty.
However, where the off-duty use of smartphones and new technology is inevitable as was the case in Allen, it is essential the department have a reasonable policy that requires documenting and reporting of all time spent working on fire department matters.
Curt Varone
CURT VARONE has more than 40 years of experience in the fire service, including 29 years as a career firefighter with Providence, RI, retiring as a deputy assistant chief (shift commander). He is a practicing attorney who is licensed in Maine and Rhode Island and served as the director of the Public Fire Protection Division at the NFPA. Varone is the author of two books, "Legal Considerations for Fire and Emergency Services" and "Fire Officer's Legal Handbook," and remains active as a deputy chief in Exeter, RI.
