Overtime Attorney Blog

One person can make a difference. Constemecka Russell sued Illinois Bell Telephone Company for unpaid overtime and asked the Court to certify her lawsuit as a class action. Ms. Russell asked the Court to send notice to all current and former hourly employees of Illinois Bell call centers in Arlington Heights, Chicago, Rock Island, and Oak Brook who worked sales, service, and similar positions. After Ms. Russell filed her lawsuit, a number of additional call center employees signed forms consenting to be Plaintiffs. The Court applied the two step class certification process. The Court noted evidence of a company-wide policy and practice and that the putative notice recipients are similarly situated.

Illinois Bell argued that the Plaintiff’s proposed notice should be modified. Illinois Bell argued that having the district and magistrate judges name on the notice would cause potential class members to believe that these judges had endorsed the claims in the case. The Court noted that the proposed notice was done on Court letterhead, did not include judicial signatures, and should contain disclaimer that Court has taken no position about the merits of Plaintiff’s claims or Defendants’ defenses. Thus the Court saw no reason to remove the judge’s names. Illinois Bell objected to a statement that individuals who opt-in to the action will be represented by the Plaintiff’s attorneys. The Court refused to reject this language because it was correct. The Court did allow Illinois Bell to insert language that individuals who join maybe required to take an active role in the litigation.

The Plaintiff requested an Excel spreadsheet listing the names, last known addresses, telephone numbers, last four digits of their social security number, and other information regarding potential plaintiffs. Illinois Bell sought to withhold telephone numbers and social security numbers. The Court found that, because the Plaintiffs may use reverse directory searches to locate new addresses for Plaintiffs, telephone numbers must be produced. The Court also found that because partial social security numbers would be used to locate updated contact information, that information must also be produced.

The case is Russell v. Illinois Bell Telephone Co., --- F.Supp.2d ----, 2008 WL 4191763 (N.D.Ill. Sept. 15, 2008).

Noting that "people are not in prison for the purpose of enabling them to earn a living," the Seventh Circuit denied the prisoner's claim that his civil rights were violated when he was not paid minimum wage and overtime. The prisoner correctly argued that the FLSA contains no exemption for prisoners. However, the Seventh Circuit opines that "the reason the FLSA contains no express exception for prisoners is probably that the idea was too outlandish to occur to anyone when the legislation was under consideration by Congress."

The case is Sanders v. Hayden, --- F. 3d. ----, 2008 WL 4206842 (7th Cir. Sept. 12, 2008).

The FMLA is based on the FLSA. A district court in the Northern District of Illinois has allowed a police officer to seek to hold his police chief personally liable for violations of the FMLA. The Fifth and Eighth Circuits have held that public agency employees maybe be individual defendants under the FMLA while the Sixth and Eleventh Circuits have held that individual employees of public agencies may not be sued under the FMLA. The Illinois court, situated in the Seventh Circuit chose to follow the rule of the Fifth and Eighth Circuits.

The Court also refused to find that the police chief had qualified immunity as a public official. The police chief argued that he was qualifiedly immune because there is no established law as to whether he or his employer should be held liable for the violations of the FMLA. The Illinois Court concluded that the police chief knew that his acts (if proven) would violate a clearly established right; the only uncertainty was who would have to pay for such a violation. This is was insufficient to support qualified immunity.

The case is Rafick v. City of North Lake, 563 F.Supp.2d 885 (N.D.Ill. June 27, 2008).

The FMLA's joint employer provisions are interpreted similarly to those of the FLSA. Here, an employee brought a suit for violation of her medical leave against a provider of emergency services. The provider obtained payroll and benefits services from two potentially larger employers. The larger employers also had the right to appoint board members to the direct employer.

The Seventh Circuit affirmed that the larger companies were not joint employers because they did not control Plaintiff's job duties. The Seventh Circuit noted no evidence that the board members acted in a representative capacity on behalf of the larger employers, a proposition that stretches common sense -- why else were they appointed?

The case is Moldenhauer v. Tazewell-Pekin Consol. Communications Center, 536 F.3d 640, 13 Wage & Hour Cas.2d (BNA) 1633 (7th Cir. July 31, 2008).

In Sjoblom v. Charter Communications, LLC, the Court certified a class of broadband internet installers who claims unpaid overtime stemming from off-the-clock work.

The installers were given vehicles to driver for work. These vehicles were also used for personal use. As a result, installers would unload vehicles at home after work and reload them the next day before work. This time was uncompensated.

The citation is: Sjoblom v. Charter Communications, LLC, --- F.Supp.2d ----, 2008 WL 3582633, (W.D.Wis. Mar. 4, 2008).

Molina v. First Line Solutions LLC, involved customer engineers who worked on ATMs, point-of-sale, and imaging equipment. The plaintiffs claimed they were owed pay, including overtime, for off-the-clock and on call work.

Defendants raised the motor carrier exemption regarding overtime claims that occurred before a 2005 change to the Motor Carrier Act. This change narrowed the scope of the DOT's jurisdiction over motor carriers. Under the Motor Carrier exemption, workers under the jurisdiction of the DOT are exempt from the FLSA. Part of plaintiffs' job duties was to deliver equipment.

The Court held that the changes to the Motor Carrier Act were effective the day the legislation passed, i.e. August 10, 2005, not the date of the government's new fiscal year, i.e. October 1, 2005.

Plaintiffs argued that promissory estoppel and waiver prevented defendants from raising a FLSA exemption where defendants had told plaintiffs they were non-exempt. The Court concluded that plaintiffs had failed to meet their burden to show either of these defenses (or replies) to the affirmative defense.

Because the Motor Carrier exemption applies when workers are in interstate commerce, the Court considered how frequently plaintiffs had to be in interstate commerce to trigger the exemption. The Court applied DOL and DOT regulations that workers are subject to the Motor Carrier act for four months after each proven incident of transporting a shipment in interstate commerce.

The Court also distinguished state law claims. Illinois wage law requires that for the Motor Carrier exemption to apply, the defendant employer must be a motor carrier. Therefore, state law claims for unpaid overtime are not limited to after August 10, 2005.

The Court then turned to the issue of class certification. The Court had little trouble authorizing a FLSA opt-in action. The Court, however, did not authorize a Rule 23 opt-out action for state law claims. The Court found that state law claims, not FLSA claims, would dominate the action. Those who opt-in under Section 216(b), however, would be allowed to pursue their state claims.

The Court modified the notice in accordance with the order.

The citation is: Molina v. First Line Solutions LLC, --- F.R.D. ----, 2007 WL 4404330 (N.D.Ill. June 28, 2007).

In Kasten v. Saint-Gobain Performance Plastics Corp., factory worker sought unpaid wages and overtime wages under the FLSA and Wisconsin law. This is primarily a donning and duffing case. A number of issues were presented and they are addressed here in turn:

Plaintiffs' motion to strike defendants' expert witness.

Defendants hired an ergonomics expert to testify regarding the amount of donning and duffing time spent by employees. Plaintiffs sought to exclude the witness. The Court denied plaintiffs' Daubert motion with the following reasoning:

[Plaintiffs'] concerns do not address the reliability but the correctness of the report's conclusions, which are concerns best addressed through cross examination. Fernandez used clear standards in creating the time estimates in his report and he verified his conclusions through transparent testing. Plaintiffs do not disagree with the way Fernandez used the standards or the way he implemented his tests; instead, they disagree with the standards themselves and the tests that were created. Essentially, plaintiffs are arguing that Fernandez tailored his evaluation toward defendant's position regarding the time employees spent donning, doffing and walking. This does not make Fernandez's report unreliable; it merely makes it biased, which, as stated before, is something that goes to the weight to be given his report or testimony and not to its admissibility. Plaintiffs have failed to prove that Fernandez's expert report is not sufficiently reliable to qualify for admission. Therefore, their motion to strike will be denied.

(556 F.Supp.2d at 946-47.)

Defendants' motion to strike plaintiffs' lay witness testimony regarding donning and duffing time.

Plaintiffs' sought to provide lay witness testimony that donning and duffing time ranged from 6 to 30 minutes with an average time of 13.15 to 14.6 minutes.

The Court allowed it, stating

This testimony is “rationally based on the perception of the witness[es]” as required by Fed.R.Evid. 701(a). Furthermore, the witnesses' opinions are reasonable and “ ‘grounded in observation [and] other first-hand personal experience,’ ” as opposed to being “ ‘flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.’ ” Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (quoting Visser v. Packer Engineering Assoc., 924 F.2d 655, 659 (7th Cir. 1991)). Although the witnesses' testimony is based on their memories and may be inexact, it is based on personal knowledge. Defendant's request that proposed fact number 56 be stricken from plaintiffs' proposed findings of fact will be denied.

(556 F.Supp.2d at 947-48.)

The Court also found emails that defendants sought to exclude to be properly authenticated.

Cross Motions for Summary Judgment

At issue in the cross-motions were issues of offset and the de minimis defense.

The Court found that no offset because the time Defendants sought to use for offset was legally compensable time. This included five minutes at the end of the day to wash hands as well as short break periods.

The Court took a dim view of the de minimis exemption. The Court notes there is no statutory authority for the exemption and the Seventh Circuit has not laid down rigid rules. The Court states:

To trigger the de minimis exception, an employer must show not merely that the time involved is minimal but that it would be difficult to measure the time in light of the realities of the industrial world.

(556 F.Supp.2d at 954.) This is an excellent restatement of the rule. The Court goes on to state that the 4.117 to 4.755 minutes claims by employer is not de minimis. In fact, if modern technology can record time to the minute, then the de minimis exemption out to be abolished.

Defendants' motion for FLSA claim decertification

Defendants claim there was no general policy, however, the only difference was amount of time spent by employees and gear involved. The Court calls defendants' claim that there was no general policy disingenuous. The Court rules:

Regardless whether plaintiffs work in different areas, on different shifts and don and doff different amounts of required protective gear, they were subject to defendant's general practice of not compensating employees for donning and doffing certain protective gear and walking to work areas, in violation of the FLSA.

To the extent damages are different among subgroups, the Court leaves the door open for the creation of subgroups at a later date.

Plaintiffs' motion for Rule 23 class certification of state law claims.

The Court did not buy into defendants' argument that a Rule 23 certification and Section 216(b) certification are incompatible.

Regarding state statutory claims, the Court found the proposed class to be definite. The Court also finds the proposed class to have numerosity, commonality, typicality, and adequate representation. The Court found common issues predominate and that class resolution under Rule 23 is superior to other methods.

Regarding state common law claims, the Court found that common issues did not predominate.

The case citation is: Kasten v. Saint-Gobain Performance Plastics Corp., 556 F.Supp.2d 941 (W.D.Wis. June 2, 2008). Overall, this is an excellent decision for the plaintiffs and friends of the firm at Nichols, Kaster & Anderson are to be congratulated.

In Jirak v. Abbott Laboratories, Inc., Judge Ruben Castillo certified a class of pharmaceutical representatives. Defendants opposed certification arguing that there is no common scheme or plan. The Court, however, found that Reps had the same essential job duty and were all commonly not paid overtime.

Defendants also sought revisions to the class notice. The Court removed the heading from the notice so that the Court did not appear to be endorsing the action. The notice also had to state that the Court had not taken a position and that the Court should not be contacted. Otherwise, the proposed notice was permitted.

The full citation is: Jirak v. Abbott Laboratories, Inc., --- F.Supp.2d ----, 2008 WL 2812553 (N.D.Ill. July 22, 2008).

The Seventh Circuit overturned summary judgment against a plaintiff who could not remember when she worked overtime. In Brown v. Family Dollar Stores of Indiana, L.P., “Brown was unable to identify with specificity the hours or even days for which she worked overtime that was not properly paid.” However, because Brown testified the employer falsified records and the employer’s time records were inconsistent with known events, the Appellate Court ruled Brown could proceed with her claim.

It is well established that when an employer has not kept records, the burden is on the employer and a court may award approximate damages. The Seventh Circuit ruled that this same principle applies where the employer has time records but they are false. First, the Court relates Brown’s own testimony that managers manipulated time records. According to the Court, this testimony is sufficient to survive summary judgment. The Court further notes that Brown provided evidence that Family Dollar’s time records are contradicted by facts about the workday. For instance, Brown had to both open and close the store – she had the only key. However, Family Dollar’s records showed that she often clocked out before the store's closing.

In ruling, the Seventh Circuit relies on fundamental principles set forth in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). The Court also notes the Eleventh Circuit made a similar ruling in Allen v. Board of Public Educ. for Bibb Cty., 495 F.3d 1306 (11th Cir. 2007).

The full citation is: Brown v. Family Dollar Stores of Indiana, LP, 534 F.3d 593, 156 Lab.Cas. P 35,458, 13 Wage & Hour Cas.2d (BNA) 1545, 2008 WL 2738063 (7th Cir. July 15, 2008).