According to Business Insurance, the Chicago Police Department is being sued by a sergeant on the force for overtime that he asserts was earned while using his smart-phone while he was off the clock. The lawsuit is a proposed class action.
Pursuant to the Fair Labor Standards Act (FLSA), nonexempt employees are to be compensated for time spent working over forty hours per week. This work does not necessarily need to be required by the employer. It can be work merely for the benefit of the employer. Thus, the existence of a smart-phone and its subsequent use off of work hours by a nonexempt employee may cause overtime pay issues for the employer.
In this case, the sergeant with the department alleges that he was provided the smart-phone for the purposes of accessing voice mails, work related emails, and department texts. He claims that much of the department work was accomplished with use of his smart-phone. Therefore, he is seeking overtime pay for the time he spent working beyond the forty-hour work week.
Interestingly, the very smart-phone will be the key piece of evidence in any overtime pay case under these circumstances. The electronic records of the smart-phone will provide a court information to determine the amount of work an individual was working off the clock.
It should be noted that the FLSA does have an exception for “de minimis” overtime, meaning actions which would require minimal or insignificant time. However, employers should be aware that this time could create significant liability in a class action scenario.
Employers should implement policies limiting use of smart-phones during the regular work week or limit smart-phone use to exempt employees in order to avoid overtime issues with nonexempt employees.
Where employers are getting the benefit of a nonexempt employee working overtime through the use of smart-phones, they should be required to compensate the employee for his time. Why not?
Do you believe you are entitled to overtime pay? We invite you to contact our office for a free consultation to discuss your legal rights.