Chicago police aren’t known for their reluctance to file for overtime pay.
But during a bench trial last week in Chicago federal court, a parade of sergeants and lieutenants with the Bureau of Organized Crime testified to working off-duty on department-issued BlackBerrys without thinking to file overtime — and now, through a class-action lawsuit that has dragged on for five years, they want to get paid.
The trial, which enters closing arguments Monday, is examining whether the bureau’s policies indicate that employees shouldn’t be paid for off-duty work on their BlackBerrys and whether that violates federal labor law, which requires nonexempt workers be paid time-and-a-half for working beyond 40 hours a week.
The testimony also offers a glimpse inside a workplace dilemma common to employees across diverse industries and public and private sectors, where unwritten rules and unspoken expectations drive people to stay glued to their work no matter what policies are on the books.
“Our culture was to answer our phone, on or off duty,” testified Sgt. Lawrence Stec, who worked in the narcotics division for several years. As for why he didn’t file for overtime for off-duty BlackBerry time: “We just didn’t do it. It wasn’t our culture.”
Office culture has generated headlines and water cooler conversations recently as the racing pace of work and inescapability of technology blurs work/life boundaries, prompting some high-profile companies to trot out generous perks in the name of balance while others are accused of squeezing every bit of sweat out of their employees.
When Netflix announced unlimited paid parental leave for a year for new moms and dads, and other tech giants followed suit — Microsoft bumped up its paid maternity leave to 20 weeks, and Adobe Systems to 26 weeks — skeptics smelled a PR stunt and said it was unlikely anyone would dare to take advantage of it.
The New York Times expose on Amazon’s “bruising,” high-achieving culture, rich with anecdotes of white-collar workers crying at their desks and encouraged to tattle on their peers, sparked an outcry even as many people acknowledged that Amazon is hardly alone in its breakneck demands of its employees.
Peer pressure is “vastly more powerful” than policy in shaping employee behavior, said Mike Prokopeak, editor of Chicago-based Human Capital Media. He added that companies have to be careful to align their words with their actions. A poorly implemented perk can lead to higher disengagement and erosion of trust if people find they can’t really take advantage of it, he said.
“Anything you want to do culturally comes down to what you see,” said Warren Smith, central region talent leader for Ernst & Young, which prides itself on embracing flexible work arrangements. “When our people start to see our leaders take advantage and support it, it has been a catalyst where they find it socially acceptable.”
People tend to look to others to determine what the expectations are, especially people who are in positions of power or high prestige, so when a supervisor sends email at all hours, employees emulate that behavior, said Larissa Barber, assistant professor in the psychology department at Northern Illinois University in DeKalb. Or, she said, people get the message when their boss praises the “star” employee who is always available or shames employees who do not respond fast enough.
Though there have always been people pulling all-nighters at the office, the modern “borderless” workplace keeps people psychologically connected to work wherever they are — and that can be bad for business and health. The option to check in frequently evolves into a feeling that they are expected to and then a strong urge to immediately respond, a phenomenon researchers call “workplace telepressure.”
When telepressure interferes with critical recovery time employees need in order to return refreshed, they feel burned out and have trouble focusing on work tasks, Barber said.
“A lack of recovery starts a vicious cycle of employees getting less done at work the next day because they are tired, which then makes them work longer hours to catch up,” Barber said. “It’s a very inefficient way of working, with a lot of collateral damage to employees’ family lives.”
The nonstop churn also may have long-term health consequences. A study last week in The Lancet found that people who work more than 55 hours a week are 33 percent more likely to have a stroke and 13 percent more likely to have coronary disease than those who work standard hours, though the reasons for the correlation are not clear.
Sometimes an office’s cultural pressure to perform is more perception than reality.
When Natasha Lindor worked in sales at a Fortune 500 consumer packaged goods company, a policy that permitted employees to work one day a week from home often went unused because people feared that senior leaders would disapprove.
“It created this feeling that people who were in charge of your career, the influencers, that they’re in the office and they value face time, so if you were serious about your career, you need to get your butt in the office and forfeit your work-from-home day,” said Lindor, a daughter of Haitian immigrants who instilled in her a strong work ethic.
Giving up that work-from-home day enough times instilled resentment toward the company and to the high achievers it seemed were setting the pace, she said.
Lindor, now a Chicago-based life balance and career coach and founder of The And Factor, said upon reflection that it was “totally perception” that and people need to find examples of people who are not killing themselves and still succeeding, or clarify with their manager what is expected for them to get promoted.
“There are examples of people who were able to do amazingly and they took advantage of the maternity leave, the relocation support, working from home,” Lindor said. “Those are the boundaries they set for themselves.”
For the Chicago cops suing the city, the matter of getting paid overtime for BlackBerry use is a matter of both culture and policy. The case, before Magistrate Judge Sidney Schenkier, was originally brought in May 2010 by Sgt. Jeffrey Allen and grew to include about 50 members of the department.
At the time, it seems the department had no written policy on off-duty BlackBerry use. That changed in October 2010 when the department published a general order that stated that employees were not obligated to carry, access or respond to their devices while off-duty, and that they wouldn’t be compensated for using it off-duty unless the employee is officially on a callback assignment — meaning they are called back to work — or directed by their superior to immediately perform a substantial task with overtime authorization. An updated policy in 2013 forbade employees from using their devices while off-duty unless a supervisor directed them to perform work immediately and authorized overtime pay for it.
All Police Department members with the rank of lieutenant and below are hourly employees who are not exempt from overtime pay.
Cmdr. Thomas Waldera, a 28-year veteran and head of the narcotics division, joined the lawsuit when he was still a lieutenant but has since withdrawn.
Still, the plaintiffs’ attorneys called him to testify. Waldera estimated that as a lieutenant he spent three to five hours a day working off-duty on his BlackBerry. About 100 messages would come in during off hours, not all of which required a response. But he said he did have to read them to know if he should respond.
“There was an expectation,” he said. He would have missed vital information if he had ignored the messages. But when asked if he feared getting “dumped” from the unit if he didn’t immediately respond, he insisted he did not.
Waldera said it was his “personal choice” not to claim BlackBerry usage as overtime and that he believed his superiors would have approved it if he had, and he noted that he typically filed for 15 to 20 hours of overtime monthly as it was.
“I think they trusted my judgment,” he said.
Others, however, testified that they feared repercussions had they put in for overtime.
Sgt. Darrell Spencer, a 21-year veteran who works in the gang investigations unit, said he answers his BlackBerry at all hours because “I like my assignment. … I don’t want to jeopardize being removed from the bureau.”
Asked why he didn’t file for overtime, he testified: “I didn’t want to be the first, not knowing what would be outcome.”
When he didn’t respond while on a cruise without a cellphone signal, Spencer said he wasn’t formally disciplined but “it was mentioned. I was asked about it.”
Jim Washburn, a sergeant supervising the Bureau of Organized Crime’s tech lab when he retired in 2012, testified that he never turned off his BlackBerry. Like his fellow bureau members, he received a constant flow of emails from the Crime Prevention and Information Center with shooting alerts. But in addition, because he led the tech unit, he would get messages as frequently as every 15 minutes when they were tracking the location of a cellphone.
His wife ultimately put her foot down, and he set the phone on vibrate at bedtime so she couldn’t hear it but he could. He wouldn’t wait until his next shift to respond.
“It just wasn’t done,” he said. “When a supervisor contacted you, you returned his call or email.”
Would he have disciplined a subordinate who didn’t respond while off-duty?
“No,” Washburn testified, “but I would mention it like it was mentioned to me.”
The city’s attorneys, from the law firm Laner Muchin, noted that some calls and emails being used as examples took just a few minutes and that some could have waited until their next shift, and that supervisors wouldn’t always know that the person they were calling was off-duty.
In response to questions from the city’s attorneys, the witnesses said they were never discouraged from putting an overtime slip in for BlackBerry work, were never told they wouldn’t be paid if they did and were never disciplined for not answering their BlackBerrys off-duty. They said they never complained to their supervisors or union about working on their BlackBerrys or asked them about whether they could claim overtime for it. They didn’t do so after the lawsuit was filed either.
James O’Grady, commander of the narcotics division from 2008 to 2013 and now chief of police in Harwood Heights, said constant BlackBerry vigilance was not expected.
“You had to sleep, you had to have a life,” he said. “If you received an email at 2 in the morning no one would ever chastise you for not answering.”
He said he often didn’t know if his subordinates were off-duty, and if he did know, he tried not to send a lot of emails. If it was an emergency, he would call them at home.
If nonexempt employees performed substantial work off-duty on their BlackBerrys — anything more than 10 minutes, he estimated — O’Grady said he would expect them to file for overtime and that “it certainly would have been approved if they did.” However, he said, he never directed anyone to do so specifically. But he felt that if a supervisor called, permission was inferred.
Nicholas Roti, who resigned as chief of the bureau in March and is now chief of staff at the Illinois State Police, said that any officer who worked at least 15 minutes of overtime on their BlackBerrys “should file for overtime.”
Asked by plaintiffs’ attorney Paul Geiger if he felt putting in long hours was how to get ahead, Roti said it isn’t the only factor.
“I think it’s just hard work and if that’s part of hard work, maybe,” he said. Personally, he said, he sets his phone to ring only with emergency calls overnight, sparing him from the constant email pings.
Sergeants, he said, are “adults” who can determine whether the off-duty work they do on BlackBerry merits an overtime slip.
“I believe guys know how to put in overtime, and they’re not shy about it,” Roti said. Chicago police racked up nearly $100 million in overtime last year, the most of any department. “If they’re working a little over and they feel it’s not substantial, I feel they don’t have to if they don’t want to.”
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