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Always On Call: An Employee’s Right to Overtime Pay for After Hours Company Cell Phone and Computer Use

Over the past few decades, advances in technology have made iphones, blackberries, and droids commonplace, subsequently blurring the lines between home and work. While these high tech gadgets have allowed employees to become more accessible to employers and co-workers, employers have failed to modify wage and hour practices to compensate for the additional work that is done after hours, including checking and replying to emails, texts, voicemails, and phone calls.

A large class action case centering on this exact issue is currently pending in a U.S. District Court in the Illinois Eastern Division. Plaintiff Jeffrey Allen, a sergeant in the narcotics unit of the Chicago Police Department (CPD), and a class of similarly situated CPD officers are pursuing FLSA claims against the CPD for purposefully failing to pay overtime wages for work that was regularly preformed after hours on company issued blackberries (Jeffrey Allen v. The City of Chicago). In defense, the city has argued that there were procedures in place that allowed employees to request overtime wages, although Mr. Allen has expressed that doing so would be frowned upon. If Plaintiff and the collective class are successful in court, employers will have to draw new lines regarding when exactly the workday starts and ends.

Under the FLSA, an employer does not have to explicitly ask or require an employee to perform additional work over 40 hours per week in order for that employee to be eligible for overtime pay. Employers must compensate employees for all work that is preformed for the benefit of the employer, including checking emails and answering work-related phone calls and texts. The FLSA, however, does not require that “de minimus,” or infrequent and minimal, work over 40 hours be compensated.  In many federal jurisdictions, including the Second Circuit which encompasses New York State, work is considered de minimus and noncompensable if it is takes up less than 15 minutes of an employee’s day.

To give an example of how even “small” tasks can add up, consider that if a non-exempt employee spends about 12 minutes checking emails and texts in the morning before a shift and 24 minutes doing the same at night before going to bed every day, that employee is performing 3 hours of unpaid work each week. This, in turn, equals about 12 hours of unpaid work hours every month. Additionally, if the employee works a standard 40 hour work week, these unpaid hours are overtime eligible and the employee should be compensated at time-and-a-half- the normal hourly rate of pay.

If you often perform work-related tasks at home, are a non-exempt employee (or a misclassified exempt emloyee) and are not compensated for your after hours time, contact an attorney. You may be able to bring claims under the FLSA and recover lost overtime pay.



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Christopher Davis is an experienced employment litigator specializing in class actions, overtime wage recovery, discrimination, whistleblower retaliation, and Wall Street bonus disputes. Before entering private practice, Mr. Davis served as an Assistant District Attorney in the Manhattan District Attorney's Office where he prosecuted violent crimes as a member of the Sex Crimes Unit.