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).

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).

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 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).