Are off-duty emails com­pens­able?

A re­cent court de­ci­sion could make over­time poli­cies a bit thornier

Employee Benefit News - - CONTENTS - BY ANNE B. SEKEL Anne B. Sekel is a part­ner and lit­i­ga­tion lawyer with Fo­ley & Lard­ner LLP. This ar­ti­cle orig­i­nally ap­peared on the firm’s web­site.

Just be­cause an em­ployee didn’t re­quest af­ter-hours pay doesn’t ex­cuse an em­ployer’s obli­ga­tion to pay — but a re­cent court de­ci­sion could make over­time poli­cies a bit thornier.

Af­ter liv­ing with the re­al­ity of af­ter-hours work emails, texts and cell phone calls for so many years, no one should be sur­prised that the Fair La­bor Stan­dards Act re­quires em­ploy­ers to pay non-ex­empt em­ploy­ees for all over­time hours worked — in­clud­ing any over­time spent email­ing, tex­ting or on calls from mo­bile elec­tronic de­vices.

And, it goes with­out say­ing that em­ploy­ers are li­able for the fail­ure to make th­ese re­quired over­time pay­ments whether the em­ploy­ers have ac­tual or con­struc­tive knowl­edge of the em­ploy­ees’ over­time.

Just be­cause the em­ployee did not re­quest over­time pay does not ex­cuse the obli­ga­tion to pay. Rather, where an em­ployer ac­cepts the ben­e­fit of an af­ter-hours email, the em­ployer is deemed to have con­struc­tive knowl­edge of the over­time and is, there­fore, re­quired to pay for it whether or not the time is sub­mit­ted for pay­ment by the em­ployee.

A some­what newer and thornier is­sue was re­cently ad­dressed by the Sev­enth Circuit in the case Jef­frey Allen et al. v. City of Chicago. Mem­bers of the Chicago Po­lice Depart­ment sued the City of Chicago for fail­ure to prop­erly pay over­time un­der the FLSA for over­time work com­pleted by em­ploy­ees on city-is­sued Black­Ber­rys. (This was an ap­peal; orig­i­nally the trial court ruled against the of­fi­cers).

Specif­i­cally, the Allen plain­tiffs con­tended that, de­spite hav­ing an ad­e­quate over­time re­port­ing pol­icy, the Chicago Po­lice Depart­ment main­tained another “un­writ­ten” pol­icy, the prac­ti­cal ef­fect of which was to dis­cour­age of­fi­cers from seek­ing over­time pay­ment for work per­formed on a Black­Berry. As a re­sult of the in­for­mal pol­icy, the plain­tiffs claimed they never even asked for over­time pay for the work they per­formed.

Thus, the is­sue raised by the Allen plain­tiffs was whether con­struc­tive knowl­edge of the of­fi­cers’ over­time should be im­puted to the Chicago Po­lice Depart­ment and whether they should have to pay for it.

Af­ter con­sid­er­ing all the ev­i­dence, in­clud­ing the depart­ment’s ac­tual writ­ten over­time poli­cies and the em­ployer’s abil­ity to check of­fi­cers’ time en­tries against work sub­mit­ted, the Sev­enth Circuit af­firmed the trial court’s de­ci­sion. The court held that the Chicago Po­lice Depart­ment did not have ei­ther ac­tual or con­struc­tive knowl­edge of the un­re­ported over­time worked by the plain­tiffs. In its de­ci­sion, the Sev­enth Circuit fo­cused on the fact that the Po­lice Depart­ment’s writ­ten over­time pol­icy did not in any way stop of­fi­cers from sub­mit­ting for over­time worked by means of Black­Berry. Nor was the sup­posed un­spo­ken pol­icy of dis­cour­ag­ing the sub­mis­sion of over­time for af­ter-hours emails and texts so preva­lent that it chilled the of­fi­cers’ abil­ity to put-in for over­time pur­suant to the writ­ten pol­icy of the Depart­ment.

The Sev­enth Circuit noted that the writ­ten over­time pol­icy did not re­quire of­fi­cers to spec­ify the means by which they worked their over­time and the Po­lice Depart­ment had no ef­fec­tive way of check­ing the of­fi­cers’ time sheets against their ac­tual work. There­fore, the Po­lice Depart­ment would have no way to know of — or there­fore dis­cour­age — the sub­mis­sion of over­time worked by means of a mo­bile elec­tronic de­vice.

The les­son to be learned from the Allen case ap­pears to be that an em­ployer’s writ­ten over­time pol­icy should be suf­fi­ciently clear and un­equiv­o­cal such that it can over­come any al­le­ga­tions or ar­gu­ments that an un­writ­ten pol­icy to the con­trary ex­ists. In par­tic­u­lar, the pol­icy should ad­dress work via re­mote ac­cess, be it lap­top or other mo­bile de­vices, and specif­i­cally re­quire em­ploy­ees to im­me­di­ately re­port it to the em­ployer.

Fur­ther sup­port (which will also pro­vide an added boost to any de­fense based on the pol­icy) would be to en­sure pur­pose­ful en­force­ment of the pol­icy (likely ev­i­dence by writ­ten warn­ings to those who vi­o­late it). How­ever, em­ploy­ers are not re­quired to com­pen­sate em­ploy­ees for very small amounts of over­time worked – gen­er­ally less than 10 min­utes. Nev­er­the­less, a long his­tory of emails and texts dur­ing “off work” hours could be a prob­lem.

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