If a tree falls in the forest but there is no one around to hear, does it make a sound? If a non-exempt worker answers an e-mail message after hours on her Blackberry but fails to put in for overtime, has she performed compensable work? While I'm not aware of any firm legal authority on the first question, a recent ruling by the U.S. District Court for the Northern District of Illinois offers a detailed and instructive analysis of the second. 

In Allen v. City of Chicago, a group of 51 of current and former officers in the Chicago Police Department's Bureau of Organized Crime ("BOC")  alleged that the City willfully violated the FLSA by requiring them to use their Blackberry devices for work-related communications while they were off duty without compensation. 

In particular, the plaintiffs alleged that the BOC maintained an unlawful policy of requiring officers to work overtime on their Blackberrys without compensation. After a bench trial, Magistrate Judge Sidney Schenkierruled for the City, holding that although many officers did in fact perform work on their Blackberrys for which they were not paid, they were not entitled to additional because the City did not have actual or constructive knowledge that officers were working overtime without compensation. 

Legal Background

Readers well-versed in wage and hour law will know that the Fair Labor Standards Act requires an employer to pay its employees for all hours that they are "suffered or permitted" to work. That means that employers have to pay employees not just for work that they are directed to perform, but also for any work that the employer knows or reasonably should know the employee is performing for the employer. In other words, an employer can't simply adopt a policy prohibiting overtime work and then turn a blind eye to employees who work overtime notwithstanding the policy. 

In Allen, the plaintiff officers argued that they were expected to, and frequently did, take calls and respond to e-mails using their Blackberrys during their off-duty hours. While officers could put in for overtime pay by submitting a "time due slip," several officers testified that they did not submit time due slips for time spent working on their Blackberrys after hours, and therefore were not paid for the time. While these facts could have been problematic for the City, the trial also revealed several factors that undermined theplaintiffs'claims.

At least some officers did submit time due slips for work performed using their Blackberrys and were paid for the time, undercutting any notion of an "unwritten" policy against paying for such time. While some officers testified that they feared repercussions if they put in for pay for their off-duty Blackberry work, the court did not find evidence of any specific threats or that this fear was widespread in the BOC. And although the court found that supervisory personnel likely were aware of officers performing overtime work on their blackberries, the sheer volume of time due slips and the vagueness of the work descriptions on those slips led the court to conclude that the City was not on constructive notice of officers regularly working without pay for their Blackberry-related overtime. 

Insights for Employers

Employers who have non-exempt employees who are required to carry mobile devices and respond to calls and e-mails outside of their regular work hours should consider taking a few minutes to read through the Court's opinion in Allen, both to understand why the City won and what additional steps it might have taken to bolster its position and eliminate the ambiguities that led the plaintiffs to file suit in the first place. 

Here are some of what I see as key lessons employers can take from this case:

• Working after hours on mobile devices is compensable work. If you don't want your non-exempt employees to work after hours, either don't give them smartphones, or make it clear that they are not to be using their phones after work hours. 
• If you do issue smartphones to your non-exempt employees and allow them to respond to calls or emails after hours, make sure you have a reliable means for employees to report their work time. The City prevailed in this case because it had such a mechanism, and it demonstrated that many employees used it and were paid for their Blackberry work time. Without that evidence, the result likely would have been different. 
• Clearly communicate your policies to your employees. The court in Allen observed that had the Chicago Police Department more clearly articulated its policies and procedures regaridng pay for Blackberry-related overtime, it might have avoided or greatly simplified resolution of the lawsuit. As it was, the Deoartment issued several vague and largely-ignored general orders that did little more than muddy the waters. Policies should emphasize clearly that employees are to report all of their work time, and to notify management if anyone asks or directs them to work "off the clock." 
• In Allen, the court looked carefully at City efforts to curb police overtime, as an emphasis on cutting overtime hours could have bolstered plaintiffs' case about an unwritten policy against paying overtime for Blackberry work. While there is no law against minimizing employee overtime to control costs, employers have to be very careful in how they communicate about such initiatives. Employers have to ensure that any program to control overtime seeks to limit employees from workingovertime, not just from being paid for overtime that they work. It is also important to ensure that individual supervisors understand this distinction and are not solely incentivized to cut reported overtime hours without countervailing controls to ensure that employees are actually reporting their time. 

In short, the rule is simple: employers must make a good-faith, reasonable effort to track all work time for non-exempt employees and pay employees accordingly. The law doesn't mandate perfection, nor will it hold employers liable for employees who fail to report their time through no fault of the employer.