Overtime Pay For Off-Duty Cell Phone Calls And Text Messages?


By: Jeffrey C. Freedman
Los Angeles/San Francisco Daily Journal, June 24, 2011
Jeffrey C. Freedman published "Overtime Pay For Off-Duty Cell Phone Calls And Text Messages?" in the June 24, 2011 issue of the Daily Journal.  The article discusses the Allen v. City of Chicago federal court case and whether employees should they be paid for time while off-duty when they use smartphones for work-related phone calls, text messages and emails.
 
A blog post first appeared on the firm's California Public Agency Labor and Employment Blog on May 24, 2011. The post is below.

The cell phone, in particular the so-called "smartphones" (e.g. iPhones, Blackberrys, Android phones) are amazing.  These devices allow us to be in contact no matter where we are on a 24/7 basis.  Some employers issue these devices to their employees both as a benefit to the employee but primarily as a benefit to the employer for the same reason: it allows contact at all hours of the day and night when necessary.

But when employees use these devices for work-related phone calls, text messages and emails while off-duty, should they be paid for this time?  This issue may be resolved in a case currently pending in the federal court in Illinois entitled Allen v. City of Chicago.

We normally do not report on a case pending in a trial court and certainly not about the ruling on a motion, which did not result in a judgment.  But this case seems of such particular significance that it merits a report.  Indeed, a number of other blogs have already commented on this case.

Here's the situation: The Chicago Police Department issued Blackberrys to a number of its officers including a Sergeant named Jeffrey Allen.  Sergeant Allen claims that he and other officers are required to use their Blackberrys to perform off-duty work including responding to telephone calls, emails, voicemails, and text messages.  Allen filed a purported class action lawsuit against the City alleging that he and other officers are entitled to overtime pay under the U.S. Fair Labor Standards Act for these phone based off-duty activities.  The City moved to dismiss the action but the trial court denied the motion and the matter will now proceed forward towards trial.

How this case will be resolved remains to be seen.  However, the novelty of this claim and the wide publicity the decision has received, may well result in a new cottage industry of FLSA litigation.

In order to minimize the likelihood of being the subject of such a case, the following steps are recommended:

  1. If possible, limit issuance of such devices to employees who are truly FLSA exempt and thus not entitled to overtime pay.
  2. If such phones must be issued to non-exempt hourly employees because of business necessity or operational demands, require employees to keep detailed time records of each phone related activity together with date, time of day, content description and actual duration of the call, email, text message, etc.  Be sure that the billings received from the service provider, such as AT&T, Verizon, etc., are maintained and reviewed and checked against the employee's time reports for confirmation.  Keep in mind that FLSA requires the employer, not the employee, to keep accurate time records.  However, the employer can delegate that assignment to the employee as an additional part of their job.  Indeed, employees could be terminated for failure to keep accurate time records although they still must be paid because the employer receives the benefit of their services.
  3. If such phones must be issued to non-exempt hourly employees, limit their issuance to those who really do have a bona fide job related necessity to have them.  That is, only give phones to those hourly employees when their jobs truly require them to be available on an instantaneous basis even while off-duty.
  4. Some employees may need to have these phones while working but not while off-duty.  In these cases, issue a written policy prohibiting these employees from using their devices off-duty or institute a requirement that they reimburse the employer for personal use of the devices.  Another possibility is to require the employee to leave the phone at their job site, whereby they pick it up at the beginning of their work shift and leave it at the end.

The best advice is to develop a comprehensive written policy on the use of these devices so that employees are on clear notice of their entitlements and of their employer's expectations of them.

LCW provides sample forms of Sample Electronic Communications Resources Policy and Authorization for Release of Information by Electronic Communications Service Provider in our Privacy Issues in the Workplace workbook for public agencies.  Additionally, LCW discusses the FLSA and strategies for complying with it in its Public Sector FLSA Compliance Guide workbook.

Keep visiting the blog, as we shall update you on the progress of this case as it moves through the court system.

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