Never off the Clock: The Legal Implications of Employees' after Hours Work

By Marcum, Tanya; Cameron, Elizabeth A. et al. | Labor Law Journal, Summer 2018 | Go to article overview

Never off the Clock: The Legal Implications of Employees' after Hours Work


Marcum, Tanya, Cameron, Elizabeth A., Versweyveld, Luke, Labor Law Journal


I.Introduction

A 2015 study conducted in Britain provides "concrete evidence that happier employees are more productive in the workplace."7 Positive workplace morale fosters greater productivity. There are both physical and psychological factors that impact employee morale.8 Employee morale involves the physical aspects of the work environment such as comfort, lighting, restrooms, and other interior features.9 One of the primary psychological factors that play a role in employee morale is whether or not employees trust and respect management of the company.10 Employees who are well informed about matters of interest occurring at work also report higher job satisfaction.11 According to one study, the most important factors when evaluating a job position by a prospective candidate is work-life balance and a flexible schedule.12 Combining these factors with the values of Millennials and Gen Z workers, signals the need for employers to evaluate the expectation of employees to perform after hours work in a digital world.

II.The 24-7 Borderless Workplace: The "Electronic Leash"

For many employees, the workday does not end when they leave the office. In this age of technology, employees are constantly connected to their work through their cell phones, personal computers, tablets and various other technological devices. Employees in a myriad of professions receive electronic communications from clients, colleagues, and superiors at all hours of the day as well as weekends, holidays, and vacations. "Employees physically leave the office, but they do not leave their work. They remain attached by a kind of electronic leash, like a dog" said former French education minister, Benoit Hamon.13 The work does not stop when employees leave the office, should the pay continue after hours? Does being unleashed provide greater creativity and less stress? Are employees who have downtime and are unleashed more satisfied, more productive, and more healthy? Is this "leash" imposed by the employer or by the employees' addiction to stay connected, or both? These questions are currently faced by employers in every industry around the world as it has become a contemporary workplace concern.

A.The Push back

One of the most significant cases involving off the clock communication is Allen v. City of Chicago}14 Jeffrey Allen, a member of the Chicago Police Department's Bureau of Organized Crime, brought suit against his employer on behalf of himself and 51 other current and former members of the Bureau.15 The case was first heard by the Northern District of Illinois, Eastern Division District court, and was subsequently appealed to the Seventh Circuit Court of Appeals.

Allen filed suit claiming that the Bureau failed to compensate its officers for work done on their BlackBerry devices outside of working hours.16 The process in which members of the police department obtain overtime compensation is through the submittal of "time due slips" to their supervisors.17 These slips typically did not identify the mode in which work was accomplished.18 Additionally, the section that lists the work completed was often vague. The plaintiffs claimed that the Bureau knew that work was being done on BlackBerry devices outside of working hours, promoted an environment that discouraged overtime work, and was aware that compensable work performed on mobile devices went uncompensated.19 The Bureau claimed that, in many instances, they were unaware that compensable work was not being recorded via the submission of slips.20 The Bureau was also able to reference several instances where supervisors knowingly signed off on work done on mobile devices.21 A point of discussion was the "General Order" issued by the Chicago Police Department in October of 2010 (and re-issued with similar wording in 2013) which stated that work performed outside of working hours on their mobile devices would not be compensated except under limited circumstances.22 The district court concluded that these rules were seldom followed and "had no effect on plaintiffs of their supervisors. …

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