Employer-Friendly 7th Circuit Case Highlights Risk of Wage Claim for After Hours Email Communications

Posted by Attorney David McClurg in Labor Relations / Comments

The 7^th Circuit Court of Appeals recently issued a decision that will be welcomed by employers, but also acts to remind us of potential trouble that employers face in connection with “after-hours" work performed on mobile devices. The case involved claims by Chicago police officers that they had not been paid for time they spent, after the end of their normal shifts, monitoring and responding to email messages on their department issued smart phones. Although the department had a procedure for requesting overtime compensation, the officers claimed that they did not use the procedure because there was an “unwritten" rule discouraging requests for payment for after-hours email communications.

The 7^th Circuit found that, even though the email communications the officers engaged in was “compensable work," the department was not liable to pay for this work because it had neither actual nor constructive knowledge of the services being performed. The court stated that an employer is deemed to have constructive knowledge of “off-the-clock" work only “if it should have acquired knowledge of that work through reasonable diligence." Given the evidence that: 1) the department had a policy for requesting compensation for such after-hours services; 2) the officers suing the department failed to use this procedure; and 3) the department had no notice that the officers' actual hours worked exceeded the hours reported on their time sheets, the department could not be said to have “constructive knowledge" of the services being performed.

This case highlights the importance of policies requiring that all hours worked be reported, including work performed off-site and after regular hours. However, even with such policies, “constructive knowledge" of “off-the-clock" work might be found in the increasingly common situation where after-hours email and text communications are occurring between non-exempt employees and their supervisors or the owner or officers of the company.

If you have questions about this or other labor & employment issues, please feel free to contact Dave McClurg at (414) 223-6956 or dmcclurg@petriepettit.com.