Why it matters

Chicago police officers seeking compensation for work performed using their mobile devices while the officers were off duty could not recover when their employer did not know the overtime work was not being reported or paid, the U.S. Court of Appeals, Seventh Circuit has ruled. A group of officers in the Bureau of Organized Crime filed a collective action under the Fair Labor Standards Act (FLSA) against the City of Chicago, alleging they were not compensated for work they performed on their mobile electronic devices while off duty. Following a bench trial, a district court judge found in favor of the city. The officers appealed, but the federal appellate panel affirmed the decision, holding that while the employer knew about at least some of the off-duty work, it did not know that such work was not being reported or paid. Further, nothing prevented or discouraged the employees from submitting paperwork in order to be paid for their time pursuant to the established department process, the court said. The opinion provides a valuable reminder for employers that a formal policy or process for reporting overtime can provide some protection from suit, particularly if the employer doesn’t prevent or discourage accurate reporting.

Detailed discussion

Fifty-two current and former members of the Chicago Police Department’s Bureau of Organized Crime (Bureau) filed a Fair Labor Standards Act (FLSA) action seeking compensation for work they performed on their mobile electronic devices while off duty. Although members of the Bureau had assigned shifts, the nature of their work sometimes required them to work outside their shifts during what would otherwise be off-duty time.

The police department issued the officers mobile electronic devices, which were the focus of the lawsuit. For overtime compensation, the department had a process whereby the officers could complete “time due slips” (that do not ask how the work was done), submit them to supervisors and then receive payment for their time.

During the relevant period, although the officers used the police department process to obtain overtime—reporting and receiving pay for 3,000-4,000 overtime hours per year—many plaintiffs did not submit slips for off-duty work done on their mobile electronic devices.

A federal court judge held a bench trial and sided with the City of Chicago, finding that the employer did not prevent the plaintiffs from requesting payment for the nonscheduled overtime work and did not know that the officers were not reporting or being paid for such work.

The officers appealed, arguing that the district court misapplied the knowledge standard for employers, but the U.S. Court of Appeals, Seventh Circuit affirmed the bench verdict.

Employers must “pay for all work they know about, even if they did not ask for the work, even if they did not want the work done, and even if they had a rule against doing the work,” the federal appellate panel explained, but the FLSA “stops short of requiring the employer to pay for work it did not know about, and had no reason to know about.”

Although the plaintiffs told the court the Bureau could have discovered the officers’ uncompensated mobile device work by comparing the time slips to call and email records generated by the mobile electronic devices, resulting in constructive knowledge of the unpaid work, the panel said the reasonable diligence standard asks what an employer should have known, not what it could have known—not to mention that the officers’ suggestion was “extremely impractical,” the court added.

The district court did find that the Bureau knew about at least some off-duty mobile device work, but it also found that the employer did not know that such work was not being reported and paid, the panel said. The officers knew the procedures for claiming overtime pay and used them with regularity during the relevant period.

Did Bureau supervisors discourage officers from seeking overtime for their off-duty mobile device usage, or did a culture exist not to ask for this compensation? The panel acknowledged conflicting evidence on this point, with one plaintiff testifying that he was told by a supervisor that others “might frown” on such slips and referencing a “General Order” from the department which announced that employees would not be compensated for mobile device work except under certain circumstances.

But other evidence supported the Bureau, with witnesses unable to provide evidence of discipline or reprimands for filing slips or pinpoint the reason for employee reluctance to do so. “Some officers did submit slips for [mobile device] work, and the Bureau paid them,” the court said. “As for the General Order, the district court found that no plaintiff stopped submitting slips and no supervisor refused to approve slips because of it. Plaintiffs point to no contrary evidence on appeal. As unfortunate as the Bureau’s phrasing was in the General Order, we are not ‘left with the definite and firm conviction that a mistake has been committed.’”

To read the opinion in Allen v. City of Chicago, click here.