By MICHAEL TARM 02/06/13 10:39 PM ET EST
CHICAGO — Does scanning emails and answering calls from bosses on your smartphone after hours constitute work that should be compensated? A lawsuit winding its way through federal court in Chicago says that it does.
Chicago police Sgt. Jeffrey Allen claims in the suit that the city owes him and fellow officers overtime pay for work performed on department-requisitioned BlackBerry phones. If the plaintiffs eventually prevail, it could mean millions of dollars in back pay.
The issue impacts workers everywhere, Allen’s lawyer said Wednesday after a hearing in the case.
“Everybody can relate to this because people are being asked all the time these days to work for free and they are being told to work for free using their phones,” attorney Paul Geiger said.
Earlier Wednesday, attorneys for both Allen and the city told a judge they had agreed on the wording of documents that will be sent to other officers asking if they want to join the lawsuit.
According to the suit, police brass pressured subordinates in the department’s organized crime bureau to answer work-related calls and emails on their BlackBerrys, and then also dissuaded the officers from filing for overtime.
“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,” according to a plaintiff filing.
The city responded that written policy, on the contrary, specifically instructs officers to ask for overtime. And it argues that Allen lumps together urgent emails with ones that – while sent when he was off duty – could have been responded to the next day.
In a critical ruling in Allen’s favor last month, U.S. Magistrate Judge Sidney Schenkier said the plaintiff had demonstrated sufficient merit for the lawsuit to continue. It was initially filed in 2010.
While giving the lawsuit a green light for now, Schenkier said complex questions have yet to be addressed, including whether answering calls or scanning emails can be defined as work.
Up to 200 officers are expected to sign on to the suit, after which their attorneys face the daunting task of sifting through thousands of email and phone records to somehow determine which should qualify for OT, Geiger said.
A spokesman for the city law office, Roderick Drew, said in a brief email that he is limited about what he can say about ongoing litigation. But he added that, “The city has stated as its principal legal argument that there were policies and procedures in place allowing Chicago Police Department members to request overtime compensation. That has not changed.”
After the suit was filed three years ago, then-Chicago Mayor Richard M. Daley said asking for overtime pay for cellphone use is “silliness.” He told a news conference at the time, “We’re public servants. If I asked for that, I’d be paid millions of dollars.”
But the law cited by the suit, the Federal Labor Standards Act, does not apply to salaried public officials, Geiger argued Wednesday. He added that the judge’s decision to let the lawsuit proceed underscored its seriousness.
“I doubt they think it is silly now,” he said.