April 6, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 10 C 3183 -
Sidney I. Schenkier, Magistrate Judge.
Easterbrook, Manion, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
appeal arises from a Fair Labor Standards Act collective
action. Plaintiffs are current and former members of the
Chicago Police Department's Bureau of Organized Crime who
claim that the Bureau did not compensate them for work they
did off-duty on their mobile electronic devices
(BlackBerrys). The case was tried to the court, Magistrate
Judge Schenkier, presiding by consent under 28 U.S.C. §
636(c). The judge issued detailed findings of fact and
conclusions of law in favor of the Bureau, finding that it
did not prevent plaintiffs from requesting payment for such
non-scheduled overtime work and did not know that plaintiffs
were not being paid for it. Plaintiffs appeal, but we find no
persuasive reason to upset the judgment of the district
court. We affirm the judgment for the Bureau.
The Fair Labor Standards Act
begin by explaining the standards that apply under the Fair
Labor Standards Act when an employer asserts that it did not
know of the overtime work for which employees claim they were
not paid. The Act, codified as 29 U.S.C. § 201 et
seq., requires employers to pay covered employees at
one-and-a-half times their usual pay rate if they are
employed for longer than a certain hourly threshold. That
threshold is usually forty hours per week. § 207(a)(1).
For law enforcement employees like these plaintiffs, the
threshold is one hundred and seventy-one hours per
twenty-eight day period. § 207(a)(1) & (k); 29
C.F.R. § 553.230(b).
statute defines "employ" broadly, as "to
suffer or permit to work." § 203(g). That broad
definition is central to the purpose of the Act. It helps
prevent evasion by employers who might seek to issue formal
written policies limiting overtime that are widely violated,
or who might deliberately close their eyes to overtime work
their employees are doing. See Kellar v. Summit Seating
Inc., 664 F.3d 169, 177 (7th Cir. 2011) (employer cannot
"sit back and accept" work without compensating it,
even if employer has rules against overtime work), quoting 29
C.F.R. § 785.13. Employers must, as a result, pay for
all work they know about, even if they did not ask for the
work, even if they did not want the work done, and even if
they had a rule against doing the work. Id., citing
Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d
Cir. 2008). If the employer does not want to pay overtime,
its management must "exercise its control and see that
the work is not performed." 29 C.F.R. § 785.13.
strict rule has a limit, however. It "stops short of
requiring the employer to pay for work it did not know about,
and had no reason to know about." Kellar, 664
F.3d at 177. The employer's knowledge can be either
actual or constructive. Id. An employer has
constructive knowledge of an employee's work if it should
have acquired knowledge of that work through reasonable
diligence. Hertz v. Woodbury County, 566 F.3d 775,
781 (8th Cir. 2009).
an employer can exercise diligence is by establishing a
reasonable process for an employee to report uncompensated
work time. That principle has been at least implicit in our
cases. In Gaines v. K-Five Construction Corp., 742
F.3d 256, 271 (7th Cir. 2014), for example, we affirmed
summary judgment for an employer that did not know the
plaintiff was working overtime. We reasoned, in part, that
although the employer gave its employees a form on which to
record their time, the plaintiff did not use the form as
intended: he noted the overtime in a margin note on the wrong
part of the form and omitted it when completing the
appropriate section. That misuse prevented an inference that
the employer knew about the overtime. Id.
Sixth and Ninth Circuits have been more explicit, affirming
summary judgment for employers who set up processes for
reporting overtime that the plaintiffs did not use. White
v. Baptist Memorial Health Care Corp., 699 F.3d 869, 876
(6th Cir. 2012) (affirming summary judgment for employer:
"When the employee fails to follow reasonable time
reporting procedures she prevents the employer from knowing
its obligation to compensate the employee ... .");
Forrester v. Roth's I.G.A. Foodliner, Inc., 646
F.2d 413, 414 (9th Cir. 1981) (affirming summary judgment for
employer: "where an employer has no knowledge that an
employee is engaging in overtime work and that employee ...
deliberately prevents the employer from acquiring knowledge
..., the employer's failure to pay ... is not a violation
of [§] 207"). We agree with their reasoning.
employer's formal policy or process for reporting
overtime will not protect the employer if the employer
prevents or discourages accurate reporting in practice.
White, 699 F.3d at 876 (distinguishing cases
"where the employer prevented the employees from
reporting overtime"). Such employer misbehavior might be
overt. In Allen v. Board of Public Education, 495
F.3d 1306, 1316 (11th Cir. 2007), for example,
plaintiff-employees were told that they should not record
their overtime hours and that their employer would not pay
overtime. Accurate time sheets were rejected, torn up, or
edited. Or the employer might be more subtle. In Brennan
v. General Motors Acceptance Corp., 482 F.2d 825, 827
(5th Cir. 1973), the employees' jobs demanded "long
and irregular hours, " but their supervisors
"insisted that all work be completed within certain
defined time limits." The employer's practices
effectively "squelched truthful responses" in
overtime reports. Id. at 827-28.
Factual and Procedural Background
that legal background, we turn to the facts of this case,
which comes to us following a trial to the court. We
therefore review the district court's factual findings
deferentially, and our account of the facts tracks its
factual findings. See Fed.R.Civ.P. 52(a)(6) ("Findings
of fact... must not be set aside unless clearly erroneous ...
."). We focus especially on the court's findings
about the Bureau's knowledge of plaintiffs' overtime
reporting, the issue central to the district court's
decision and this appeal.
case was brought by Jeffrey Allen and fifty-one other opt-in
plaintiffs. Plaintiffs are current or former members of the
Chicago Police Department's Bureau of Organized Crime.
(Although the City of Chicago is the defendant here, the
focus is on practices specific to the Bureau, though we must
consider some actions of the larger Chicago Police
Department.) The Bureau is a prestigious assignment for
Chicago police officers. Its members conduct sophisticated
investigations into, for example, gangs, narcotics
trafficking, and human trafficking. Although members have
scheduled shifts, the nature of their work sometimes requires
them to work outside their shifts during what would otherwise
be off-duty time. The police department issued plaintiffs
mobile electronic devices (BlackBerrys), which they sometimes
used in their off-duty work. This suit is over whether they
were appropriately compensated for off-duty work on their
police department has a process that officers use to obtain
overtime compensation: they submit "time due slips"
to their supervisors. The slips are small; there is some
space for explaining what work was done, and officers usually
put a short, vague phrase in the space. The slip does not ask
how the work was done, and officers do not typically include
that information. Supervisors approve the time, and the slips
are sent to payroll and processed. Plaintiffs regularly used
that system; the fifty-two plaintiffs collectively reported
and received pay for three to four thousand overtime hours
per year from 2011 to 2014. But during the period relevant to
this suit, many plaintiffs did not submit slips for off-duty
work done on mobile electronic devices.
central question in the trial court was whether plaintiffs
were prevented or discouraged from submitting slips by an
unwritten policy of the Bureau's. The district court certified
an FLSA collective action before discovery then after
discovery refused to decertify the collective action, denied
summary judgment, and held a bench trial. ...