A recent lawsuit filed by a group of Chicago Police Sergeants hi-lights the potential for overtime liability that may arise when an employer requires or permits its non-exempt employees to receive and respond to work-related electronic communications outside normal work hours.

On May 24, 2010, a class of Chicago Police Sergeants filed a class action lawsuit against the Chicago Police Department ("CPD") for violations of the Fair Labor Standards Act ("FLSA"). The class of plaintiffs includes all non-exempt FLSA personnel employed by the CPD who worked "off the clock" using CPD-issued personal data assistants ("PDA's") or other electronic communication devices without receiving overtime compensation. The class claims CPD's denial of overtime was willful, and seeks to recover three years of unpaid overtime, liquidated damages and attorneys’ fees.

These officers claim the CPD required them to be on call 24 hours a day, 7 days a week so they could access work-related emails, voice mails and text-message work orders. They also claim the CPD violated the record-keeping requirements of the FLSA by failing to keep appropriate records of time these employees spent receiving and responding to CPD-related electronic communications.

To date, no decision has been rendered on the merits of the plaintiffs' lawsuit. Nonetheless, the case hi-lights the potential liability a school board may face should it require or permit its non-exempt employees to receive and respond to employment-related electronic communications outside normal work hours.

Under the FLSA, school boards must pay all non-exempt employees at a rate of time and one-half for all hours worked in excess of 40 per week. This is generally true even if the employee did not seek permission to work overtime. A 2-year statute of limitations generally applies to the recovery of back pay, except in the case of a willful violation, in which case a 3-year statute applies. In addition, for employers who willfully or repeatedly violate the overtime provisions of the FLSA, a civil penalty of $1,000 for each violation may apply.

The FLSA does not apply to executive, administrative and professional employees. This would generally exempt administrators and supervisors from coverage. The FLSA also does not apply to teachers. Therefore, such employees can be expected to review and respond to school-related electronic communications outside normal work hours without the board incurring overtime liability.

However, certain non-exempt employees such as bus drivers, teacher aides, secretaries, maintenance personnel, buildings and grounds personnel, among others, may be expected to regularly receive and respond to phone calls, voice messages, emails or text messages concerning school district business outside of their normal work hours. Performance of these duties may be considered off-duty work for which these employees may claim compensation. Furthermore, should electronic communications with the district cause these non-exempt employees to work in excess of 40 hours in a week, a school board may be liable for overtime compensation.

Emails and text messages identify the sender and recipient, and document the date and time these messages were sent and received. Cell phones normally log the identity of the callers and the date and time spent conversing. These use logs could potentially be used as evidence by non-exempt employees who claim to be owed overtime compensation under the FLSA. Likewise, as in the aforementioned CPD case, such use logs could support an employee's argument that a school board knew or should have known of the employee's overtime work; and therefore, willfully violated the FLSA.

Given the potential for significant overtime liability, school boards may consider reviewing those employment positions that are or could be considered non-exempt under the FLSA. In doing so, boards should determine whether any of these employees have been issued employer-provided PDA's. Likewise, a board should determine whether these employees are regularly receiving and/or responding to work-related electronic communications outside normal work hours. An audit of these non-exempt positions may avoid overtime claims in the future.

School boards with questions about the FLSA or an employee’s use of a PDA's or other electronic communication devices are encouraged to contact an attorney.