In a rare decision squarely addressing the  compensability of after-hours use of mobile devices by non-exempt employees, the U.S. District Court for the Northern District of Illinois recently ruled, in Allen v. City of Chicago, that that the Chicago Police Department (CPD) did not violate the Fair Labor Standards Act (FLSA) by failing to pay a group of police officers for time spent performing off-duty work on their CPD-issued BlackBerry devices. The court’s opinion, which followed a five-day bench trial, may serve as a roadmap for employers seeking to avoid class-wide liability arising out of their non-exempt employees’ after-hours use of mobile devices.

The plaintiffs in Allen filed suit in 2010, alleging that that the city willfully violated the FLSA by requiring them to use their BlackBerry devices to access work- related emails, phone calls, and messages while  they were off duty, and not compensating them for the time spent receiving and following up on these communications. The plaintiffs alleged that the Chicago Police Department maintained an unwritten policy that discouraged the plaintiffs from submitting for overtime pay for work done on their BlackBerry devices while off-duty.

Over the course of more than five years of litigation, the court conditionally certified a collective action class of officers, later denied the City’s motion to decertify the class, and denied the City’s motion for summary judgment. Ultimately, in August 2015, the court held a bench trial on the threshold issue of whether CPD maintained an unwritten policy to deny plaintiffs compensation for off-duty work they performed on their CPD-issued BlackBerry devices.

The court segregated the issues in this manner because it was undisputed that the CPD maintained a method by which officers could turn in “time due slips” to report off-duty, overtime work for payroll purposes; thus, the court found, only if there was an unwritten policy that systematically dissuaded the plaintiffs from utilizing time due slips for off-duty BlackBerry work would the court need to turn to specific evidence regarding  damages.

In its findings of fact and conclusions of law, the court found that at least some of the plaintiffs’ off-duty BlackBerry activities constituted compensable work. In doing so, the court noted a dichotomy between non-compensable, de mimimis activities—such as monitoring the BlackBerries and receiving emails  that did not require them to respond while off-duty or required only very short response emails—and those activities that involved the performance of substantial off-duty work using the BlackBerry and therefore were  compensable.

The court found, however, that some of the plaintiffs had submitted time due slips for after-hours BlackBerry work and were compensated for that time. The court also found, critically, that the plaintiffs failed to prove both that their supervisors “invariably” knew or should have known when the plaintiffs were working off-duty on their BlackBerries, and that the City knew or should have known that they were not receiving compensation for any particular overtime they may have worked. The court noted that a “showing of knowledge under the FLSA must go beyond speculation that an employee’s performance of unpaid overtime work was ‘theoretically possible.’” The court found that the supervisors were often not aware when plaintiffs were working off-duty, that their off-duty BlackBerry work occurred outside the physical presence of the supervisors and took place with individuals other than their direct supervisors, and that the supervisors did not necessarily know if and when particular officers failed to submit time due slips for off-duty BlackBerry work. In light of these findings, the court concluded that the plaintiffs failed to show “a uniform culture or well-grounded understanding that off-duty BlackBerry work would not be compensated,” and entered judgment for the city.

The court’s opinion in Allen serves both as a reminder of the risks associated with allowing non-exempt employees to use mobile devices and as a roadmap for some potential ways to mitigate those risks.

Employers should consider utilizing Allen to develop policies and practices that both clearly delineate the difference between compensable and non- compensable use of remote devices and provide a readily available method for non-exempt employees to record and to be compensated for the compensable time spent engaging in these activities.