In past blogs, I've written about how the internet has led to employers' ever-expanding expectations for how much their employees should work for free. Examples include off-shift, work-related social media activity and emails. After employees punch out for the day (literally or figuratively), their employers still expect them to advance the employers' business interests by posting on social media or responding to emails, texts, or even telephone calls without being paid for that work. That's particularly prevalent for salaried workers (don't get me started on the failure to pay overtime to salaried workers; I've covered that enough in past posts).
Now, I'm not against work. I'm self-employed. I believe in work. I just don't believe that people should be expected to work for free. I don't believe that certain activities shouldn't be considered compensable work simply because they can be done remotely using a smartphone. Work is work. If you're benefiting your employer through after-hours social media posts or communications, you ought to be paid for that time regardless of how easy it is to do those things through modern technology.
Many people, employers and employees, respond to that with something along the lines of "what's the big deal, it's just a little time on the internet or phone." You know what? If it's not a big deal, then the employer can wait to address it until the employee's normal working hours begin. But if something can't wait and must be addressed at 8:30 at night, then it should be considered a "big deal" and the employee ought to be paid for the time spent banging out an email to or talking on the phone with a supervisor at 8:30 at night. That such might occur while the employee's simultaneously watching the latest episode of "The Voice" shouldn't change the fact that in most instances communicating with a supervisor is "work."
Anyways. In perusing recent federal court decisions in overtime cases, I came across a real headscratcher. It's Allen v. City of Chicago, a federal overtime case out of Illinois. In Allen, the Chicago Police Department sued the city (obviously before the CPD ran into much more pressing issues) for failing to pay overtime for the officers' work-related, off-duty use of their department-issued BlackBerry smartphones. Even though the officers proved that they performed compensable off-shift work on their BlackBerries and weren't properly compensated for that overtime work, they still lost. It's at that point that I began furiously scratching my head, trying to figure out how employees could prove that they worked overtime, could prove that they weren't paid for that overtime, yet not be entitled to overtime.
Reading farther into the decision, I got my answer. The federal judge who ruled on the case is a world-class contortionist. He, get this, decided that because nobody, not the officers, not the city, kept good records about the off-shift BlackBerry work and nobody really knew what was going on with that, then the employer didn't "know" about the officer's overtime work. An employer's not liable for failing to pay overtime unless it "knows" that the employee's performing the work. So, because of a poor recordkeeping system and a confusing situation that was mostly the employer's fault, city could claim lack of knowledge about the officers' overtime work and escape overtime liability. In short, the principle of this case is, when in doubt about overtime work (even when the employer is partially responsible for that doubt), punish employees by refusing to award them overtime pay.
This decision, if affirmed on appeal and followed by other courts, could set a difficult bar for employees to meet in these types of cases. Even if employees can prove that such off-shift communications constitute compensable working time, they may have trouble proving that the employer "knew" about such working time, thus letting employers off the overtime hook. The burden will be on employees to follow through on the employer's reporting requirements for time worked to ensure that after-hours work is properly compensated. Failure to do so could result in the employee's overtime claim being denied because the employer didn't know about the employee's off-shift work.