True confession time. I have a Pavlovian response to the
new message chime on my iPhone. I can't help myself. When my phone beeps, I
reach for it. I have no choice.
I'm an exempt employee, which means that I am paid a
weekly salary, with no eligibility for overtime, regardless of how many hours I
work per week. What, however, if I was non-exempt? Could I be owed overtime for
my Pavlovian email checking?
Three and a half years ago, I asked, "Lawsuits over off-the-clock smart phone use ask, "What is
work?" Last month, one federal court provided us the beginning of an
In Allen v. City of Chicago [an enhanced version of this opinion is available to lexis.com subscribers] , a police sergeant filed a
collective action on behalf of himself and all similarly situated employees for
the city's failure to pay overtime for time spent outside of work reading and
responding to emails on their city-issued Blackberries. According to the
All of the depositions taken to date reveal a workforce...
that is expected to be available twenty-four [hours] per day via Blackberry.
All of the deponents receive and respond to an onerous amount of email and
telephone calls on a daily basis. All deponents felt obligated to respond to
these email communications and telephone calls while off duty. Regrettably, a
culture has developed where police officers feel compelled to work for free
in order to possibly gain a promotion and/or maintain their coveted assignment
in a specialized unit.
The district court conditionally certified the collective
[W]hile the amount of overtime officers spent on their
department-issued BlackBerries may have varied, the policy that allegedly
violated the FLSA did not vary: the policy of not granting overtime
compensation for off-duty work on BlackBerries.... At the first stage, despite
the potential variations in or de minimis use of the department-issued
BlackBerries, the Court can "envision a scenario" where the Plaintiffs and
potential class members are similarly situated.
A few points to make-
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