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Is your employees' smart phone use exposing you to Off the Clock claims?
By Marcus Wilbers on March 25, 2013 at 3:24 PM

Man with smartphone in business buildingThe Northern District of Illinois recently certified* a class action in a case alleging that employers should pay overtime wages for time employees spend checking their e-mail after hours. The police officer who sued the city of Chicago claims the Police Department had an “unwritten policy” requiring officers to check their BlackBerry after normal working hours without compensation. Checking their BlackBerry, the officer claimed, constituted substantive police work and the department would have been significantly less successful in accomplishing its goals without regular required BlackBerry use.

The court has not ruled on the crux of the claim. But in certifying the class, Magistrate Judge Sidney Schenkier found some merit to the allegations. “Here, plaintiff has made a modest factual showing that Sergeants and Lieutenants in the BOC believed that they were expected to check and possibly respond to emails and calls made to their department-issued BlackBerry while they were off-duty without being compensated for these activities.”

Initially ridiculed, the lawsuit is now viewed as a potential game-changer for many employers. Under the Fair Labor Standards Act (“FLSA”), employers must pay time and a half for all hours an employee works in excess of 40 in a workweek. An employee may not waive his or her entitlement to overtime wages. Not all employers are covered by FLSA, and not all employees are entitled to overtime wages. In addition, some states have overtime laws which overlap FLSA.

Those employers who are covered by FLSA should carefully review their smart phone or remote access policies (and practices) to determine if they require employees to perform uncompensated work. Employers should also be sure they are complying with FLSA’s record keeping requirements. Short of these two steps, however, there is little employers can do besides wait for additional guidance from the courts or the Department of Labor. One thing is for sure: more litigation on this subject is around the corner.

*Allen v. City of Chicago, Case No. 10 C 3138, Northern District of Illinois

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