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Employee cell phone use for work could mean overtime

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Employers in today’s modern world face a variety of legal issues relating to the use of smartphones and other mobile devices in the workplace whether the employer provides the mobile device or the employee is using her own device to perform work for the employer.

One common issue that arises in conjunction with mobile device policies is work performed by non-exempt employees on mobile devices outside of normal working hours.

Most folks realize that the work performed after-hours by the non-exempt employee is compensable under the law, but many employers are stumped on how to limit this work and how to appropriately track the work performed so that the employee can be legally compensated. A recent Seventh Circuit Court of Appeals case illuminates some of the difficulty and confusion that employers face when a clearly articulated mobile device policy is not implemented.

In Allen v. City of Chicago, 51 police officers joined in a complaint against their employer, the City of Chicago, alleging that the city failed to pay overtime pay for time spent after normal working hours monitoring and responding to email on their smartphone devices. The officers alleged that, although the officers could put in for overtime pay by reporting the time on a “time due slip,” the city had an unwritten policy that frowned upon submitting the overtime time due slips for smartphone use.

Evidence at trial showed that many officers did not report the after-hours smartphone work and were not paid for the work performed. However, several officers did receive payment for such work after submitting the time due slips, undercutting any argument that the city had a policy against compensating the officers for the work performed. The court concluded that because the city provided a process for reporting the work on time due slips, the city had no constructive or actual knowledge that the officers were not reporting hours worked.

The court found that the city was not liable for the overtime payments because while employers “must pay for all work they know about, even if they 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” the law “stops short of requiring the employer to pay for work it did not know about, and had no reason to know about.”

So what are the takeaways for employers from this new decision?

1. Work performed after hours on mobile devices (smartphones, laptops, etc.) is compensable work under state and federal wage laws.

2. If you want to prevent non-exempt employees from working after hours on mobile devices, consider either not providing mobile devices to non-exempt employees or issue a clear policy that prohibits those employees from using the mobile devices after hours for work-related purposes. Remember, if the employee performs work after-hours, even if unauthorized, you should pay the employee for the time worked, including overtime if eligible.

3. Clearly communicate policies to all employees, especially policies relating to mobile device use for work and for after-hours work. Policies should be clear that employees are to report all time worked and are to notify management if asked to perform work off the clock.

4. Take extra care in implementing and communicating policies to limit overtime hours worked. Employers are permitted to restrict the amount of overtime an employee works, but are not permitted to refrain from paying employees for actual hours worked, even if unauthorized or contrary to policy.

5. Managers and supervisors should understand this difference. Employees who perform unauthorized after-hours or overtime work can be subject to normal disciplinary actions for failing to follow policy, but may not be penalized by withholding of payment for the unauthorized work performed.


Erin McCool is a member in the Wenatchee office of Ogden, Murphy, Wallace, PLLC, practicing in the areas of litigation, employment & labor law, and land use & water. She provides advice and consultation to local businesses, employers, and municipalities regarding state and federal employment laws.