Seventh Circuit: Police Officers Not Entitled to Overtime for Off-Duty Mobile Work

Lev Craig

On August 3, 2017, the U.S. Circuit Court of Appeals for the Seventh Circuit ruled against the plaintiffs in Allen v. City of Chicago, a Fair Labor Standards Act (FLSA) collective action brought by Chicago area police officers. The court found that the officers were not entitled to overtime pay for off-duty work they had performed on their mobile devices because the city had not known that plaintiffs were not being compensated for their work and because plaintiffs had not been prevented from requesting overtime pay.

The FLSA requires employers to compensate employees for all hours worked, and to compensate most employees at the overtime premium rate for all hours worked in excess of 40 in a work week. This requirement is strict: So long as an employer is aware that an employee has performed work, the employer must fully compensate the employee for all hours worked, “even if [the employer] did not ask for the work, even if they did not want the work done, and even if they had a rule against doing the work.” If an employer does not want employees to work overtime hours, it is the employer’s obligation to “exercise its control and see that the work is not performed,” not the employee’s obligation to avoid working overtime hours. However, the FLSA’s mandate does not go so far as to cover work that the employer “did not know about, and had no reason to know about”; employees also have a duty to accurately report their time to their employer, and employees who fail to do so or who actively prevent their employer from learning of their hours worked are not covered by this protection.

Jeffrey Allen was employed as a police officer in in the Chicago Police Department’s Bureau of Organized Crime, where he worked on investigations into criminal matters such as drugs and human trafficking. Allen and other Bureau of Organized Crime officers had scheduled shifts, but were required to work outside their scheduled shifts as needed; this “off-duty” work was sometimes performed on mobile devices. When Chicago Police Department officers worked overtime hours, the department required them to submit “time due” slips, reporting the hours worked and briefly describing the work performed, which were then processed by payroll. However, between 2011 and 2014, Allen and other officers did not report off-duty work performed on their mobile phones as off-duty hours according to the department’s overtime policy.

Allen and approximately 50 other members of the Bureau of Organized Crime brought suit in the U.S. District Court for the Northern District of Illinois, alleging that the Chicago Police Department had failed to pay them at the overtime premium rate for hours worked in excess of 40 during off-duty hours on their mobile devices. After a bench trial, the district court held in favor of the Chicago Police Department, finding that the department had not known about plaintiffs’ off-duty overtime work and had not prevented them from requesting payment for it. Plaintiffs appealed to the Seventh Circuit, which upheld the lower court’s decision.

The Seventh Circuit found that, while the Bureau officers had indeed worked unscheduled off-duty overtime hours, they had been able to report that time to their employer—the “time due” slips—and had chosen not to do so. Therefore, the department had fulfilled its obligations under the FLSA: “[I]f an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process.” As the employees had failed to follow established procedures for reporting off-duty work, and had shown no evidence that they were prevented or dissuaded from doing so or that the employer should reasonably have known about the off-duty work, the court held that they were not entitled to overtime pay.

If your employer has failed to compensate you for overtime work or otherwise violated your rights under wage-and-hour laws, contact The Harman Firm, LLP.