Officers' Off-Duty Use Of Cellphones Not An FLSA Violation

A federal court ruled the Chicago Police Department did not violate the Fair Labor Standards Act by requiring police officers to respond to work-related calls, emails, and texts on their department-issued cellphones while off duty.

In early 2010 several members of the Chicago Police Department's Organized Crime Bureau filed a lawsuit against the City of Chicago alleging it willfully denied them overtime pay for off-duty work. The department  issued the officers cellphones. The officers alleged the city knew the officers often worked overtime hours responding to work-related communications on these cellphones but refused to pay them for their work.

In Allen v. City of Chicago, the U.S. Northern District Court of Illinois conditionally certified a class of police officers who alleged the city owed them overtime pay and penalties under the FLSA.  The court then held a bench trial, after which Magistrate Judge Sidney Schenkier ruled the officers had failed to prove that the city knowingly violated the FLSA.

The court found the officers did in fact perform compensable work by using their cellphones while off duty. The court ruled responding to communications from their superiors, their subordinates, confidential informants, and other law enforcement agencies involved in police investigations or task forces was compensable work.

However, the court also found the department generally did not know about the officers' off-duty work using their cellphones. The evidence supporting the officers' claims was weak. No officer was ever denied an overtime request related to off-duty use of their cellphone, nor did any officer ever complain to the department about this issue. The few times that an officer submitted a request for overtime pay for off-duty work, the department was not told it was for work on a cellphone and the department always paid.

Because the city did not know about the extent of officers' off-duty work using their cellphones, the court ruled the officers could not recover penalties from the city for violating the FLSA. Instead, the officers could only recover unpaid overtime wages for the hours they worked. An employer is liable under the FLSA when it suffers or permits its employees to work overtime but does not pay them overtime wages. If an employer does not know its employees are working overtime, it is not suffering or permitting the employees to work and has not knowingly violated the FLSA.

New Law Bars Public Employers From Searching Cell Phones, Personal Devices Without Warrant

On October 8, 2015, Governor Brown signed S.B. 178, the California Electronic Communications Privacy Act (CalEPCA).  CalEPCA prevents a government entity from compelling disclosure of electronic data without warrant. The Act covers both personal devices and online services that store personal data. To waive this protection, the authorized user must give consent to the government agency seeking the information.

Public safety agencies often have policies that apply to "personal communication devices" (PCD). It's likely, however, that many of these sections violate CalEPCA.  For example, some Lexipol PCD policies used by many departments permit administrative searches of both department-issued and personally owned devices.  Under these policies, the employer can track the employee's location, inspect message content, and access online information.  Some Departments have attempted to compel employees to turn over text messages or phone logs without a warrant.

Now, absent an emergency or the employee's consent, the agency needs a warrant to get any of this information. Many public safety departments will have to change their current policies to conform to CalEPCA. As a mandatory bargaining subject, the department and union will have to "meet and confer" to adopt a new policy governing PCDs.

Controversial Cell Phone Surveillance System Prompts Lawsuits Against Government Agencies

A controversial cell phone surveillance system, known as the StingRay, has prompted lawsuits against 40 federal and local government agencies. The StingRay allows law enforcement agencies to track criminals by simulating a cell phone tower. It is capable of identifying phone users and capturing communications within its range. Certain groups have raised privacy concerns for bystanders who are not part of a criminal investigation.

Last year, the American Civil Liberties Union (ACLU) requested documents under the California Public Records Act from the Anaheim Police Department and the Sacramento County Sheriff's Department describing their StingRay use. The ACLU says it wants to find out who is using the devices, what policies govern the uses, and what types of crimes it is being used to pursue. When the agencies refused to disclose certain documents, the ACLU brought suit. Similar lawsuits have been filed across the country as certain groups seek more information about the StingRay and its role in government agencies.

California Employers Face Class Action Liability for Failing to Reimburse Work-Related Cell Phone Use

On August 12, 2014, the California Court of Appeal held in Cochran v. Schwan's Home Service, Inc. that California employers face class action liability if they fail to reimburse employees for work-related cell phone use. Employers must reimburse a reasonable percentage of employee cell phone bills, regardless of the cell phone plan or who pays the bill.

In Cochran, customer service managers of Home Service filed a class action lawsuit alleging the company failed to reimburse them for work-related cell phone use. The class included 1,500 employees.  Labor Code section 2802 requires employers to indemnify employees for "all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer..."

The Court stated: "It does not matter whether the phone bill is paid for by a third person or at all. In other words, it is no concern to the employer that the employee may pass on the expense to a family member or friend, or to a carrier that has to then write off a loss." The Court found section 2802 is aimed at preventing employers from passing on operating expenses. Also, the Court held employers should not intrude into the private lives of their employees to find out how they manage their finances. While such details may affect each employee's recovery, it is irrelevant in determining employer liability under section 2802. Employers must reimburse employees for a "reasonable percentage" of their cell phone bills if they use their cell phones for work. Failure to do so may subject employers to class action liability for all affected employees.