Wage and Hour Law

Avis Sued in Unpaid Overtime Claims by Drivers

June 20, 2014 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

The federal Fair Labor Standards Act (FLSA) mandates that all employees working in the United States must be paid at least the federal minimum wage of $7.25 per hour. This is true regardless of how the employee is paid. While some workers are paid per piece or on commission, the wages paid to these employees, calculated against the amount of time they spent working, must average out to at least $7.25 per hour.

The FLSA also requires that all non-exempt employees who work in excess of eight hours a day or forty hours a week must be paid the proper overtime compensation of one and one-half times the employee’s normal hourly rate. This also remains true for workers who are paid on commission or on a piece-rate basis. The employer must calculate the employee’s normal hourly rate based on the wages earned and the time spent working, in order to come up with an overtime rate for the employee.

There are many advantages to a company classifying an employee as an independent contractor. The company gets to avoid paying taxes and benefits such as health insurance. However, the law has very specific requirements for the kinds of workers that can be classified as independent contractors. For example, an independent contractor must have more freedom than an employee, such as the ability to choose when and where they perform their work and the type of clothing that they wear while working. Independent contractors also get to choose how many and which clients they work for. Continue reading ›

Overtime Class Action Lawsuit Filed Against BJC Healthcare System

October 22, 2013 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

A St Louis news station reports:

A class-action lawsuit was filed this week in St. Louis Circuit Court on behalf of former and current nurses and medical personnel employed by BJC Healthcare System …

The lawsuit, Speraneo v. BJC Health System Inc., d/b/a BJC Healthcare, accuses BJC of failing to properly pay employees through its recording policies and failing to pay overtime for employees working more than 40 hours per week. BJC’s timekeeping rounds down to the nearest quarter hour even though exact times employees clocked into work are electronically documented.

BJC is also accused of automatically deducting time for meal breaks even though some employees, such as nurses, work through their break time and are not compensated.

You can view the lawsuit here.

Seventh Circuit Affirms Class Certification in Wage Claim – Ross v. RBS Citizens, NA

August 10, 2013 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Employees of a bank with multiple branch locations throughout Illinois sued to recover unpaid overtime wages under both the federal Fair Labor Standard Act (FLSA) and the Illinois Minimum Wage Law (IMWL). After the district court certified two classes of plaintiffs, the defendant bank appealed the certification to the Seventh Circuit Court of Appeals. Based in part on a U.S. Supreme Court decision clarifying the requirements for class certification, the Seventh Circuit affirmed the district court’s order. Ross, et al v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012).

The plaintiffs alleged in their lawsuit that the bank had several “unofficial” policies that allowed it to deny overtime pay to employees, id. at 903, such as using “comp time” instead of overtime wages or altering employee timesheets. They also alleged that some assistant bank managers (ABMs), while officially exempt from eligibility for overtime pay, spent most of their time on non-exempt work. The plaintiffs therefore sought to certify two classes: non-exempt employees who were entitled to overtime compensation, and ABM employees who performed non-exempt work and were entitled to overtime pay. A class action requires four basic elements: “numerosity, commonality, typicality, and adequacy of representation.” Id.; Fed. R. Civ. P. 23(a). The district court certified both classes under Rule 23(b)(3) of the Federal Rules of Civil Procedure (FRCP), which applies to cases where the issues affecting all class members supersede those affecting individual members, and where a class action is the best way to resolve the conflict.

When a Failure to Deny an Allegation Constitutes and Admission – Kule-Rubin v. Bahari Group

October 4, 2012 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

A defendant’s failure to deny allegations in a responsive pleading to a complaint can serve as an admission of those allegations. In Kule-Rubin, et al v. Bahari Group, Limited, the U.S. District Court for the Southern District of New York granted the plaintiffs’ motion for judgment on the pleadings as to four of the claims asserted in their complaint for wage violations. The plaintiffs argued in their motion that the defendant, in its answer to their original complaint, had not expressly denied certain allegations. The court deemed those allegations admitted by the defendants, and granted judgment on the plaintiffs’ claims that were supported by those admissions. The court also dismissed two counterclaims by the defendant.

The defendant is a manufacturer, distributor, and retailer of clothing. The individual owners of the company were also named as defendants. The eleven plaintiffs were employees who began working for defendant at different times beginning in 1994. According to the plaintiffs’ complaint, the defendant began withholding wages from certain plaintiffs in October 2010, and it withheld wages from all of its employees starting that November. The defendant allegedly withheld commission wages, expense reimbursements, and health insurance premiums from some plaintiffs beginning two years earlier. The defendant told the plaintiffs that if they continued to work for the defendant, it would pay them all back wages and current wages later. All eleven plaintiffs continued working for the defendant until November 30, 2010, when the defendant terminated them.

Federal Court Indicates Equitable Tolling Only Available in FLSA Cases When There is Evidence of Deception by Defendants

December 1, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Lubin Austermuehle handles wage and hour class action litigation on a regular basis, and many of our clients’ claims are based upon violations of the Fair Labor Standards Act (FLSA). Our Schaumburg unpaid overtime attorneys were interested to see a recent class-action brought by restaurant workers alleging violations of the FLSA.

Cao v. Wu Liang Ye Lexington Rest., Inc. is a suit filed by twenty-four employees of two restaurants in New York City. The employees worked as waiters, delivery workers, and a food packer for Defendants and filed suit for unpaid minimum and overtime wages, illegal tip deductions, expense reimbursement for the purchase and maintenance of bicycles and uniforms. Plaintiffs also sought statutory liquidated damages, prejudgment interest, and attorneys’ fees. Plaintiffs filed for default, which was granted by the Court. Plaintiffs subsequently submitted their damages calculations and Defendants opposed Plaintiffs’ application for damages on the basis that Plaintiffs’ calculations were inflated and Defendants’ violations of the FLSA were not willful.

The Court addressed Defendants’ arguments by first discussing the applicable law. The limitations period for FLSA claims is generally two years, but is three years for defendants that willfully break the law. The Court then ruled that the three year statute of limitations was applicable because Defendants defaulted and therefore admitted Plaintiffs’ willfulness allegations. The Court also found the longer statute of limitations applied because Defendants admitted that they did not try to learn about the FLSA’s requirements until just prior to the commencement of the lawsuit. Plaintiffs argued that they should receive unpaid wages for the entirety of their employment under the doctrine of equitable tolling due to the fact that Defendants failed to post a notice explaining the FLSA in plain view of employees. The Court saw no reason to extend Plaintiffs’ claims beyond the statutory three year period because Defendants’ had not engaged in any sort of deception or other exceptional activity, and prior case law held that equitable tolling only applies in unusual circumstances. The Court finished by granting Plaintiffs damages for unpaid minimum wage, overtime wages, unlawful tip deductions, reimbursement for bicycle expenses, liquidated damages, prejudgment interest, and attorneys’ fees.

The Court denied reimbursement for uniform expenses because most of the clothing worn by employees could be “worn as a part of the employees’ ordinary wardrobe.” Plaintiffs did also wear a red vest that could be considered outside an ordinary wardrobe, but there was no evidence in the record that Plaintiffs’ incurred expenses obtaining or cleaning the red vests.

Cao v. Wu Liang Ye Lexington Rest., Inc. provides future wage and hour litigants with several lessons when it comes to preparing damages applications. First and foremost, courts are unlikely to apply equitable tolling to extend the FLSA’s statute of limitations in the absence of intentional deception or fraud by defendants. Additionally, this case serves as a reminder that employees should keep accurate records of work related expenses if they wish to recover damages under the FLSA.

Employers Can Require Exempt Employees to Take Mandatory Leave and Still Meet the IMWL Salary Basis Test

September 29, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

At Lubin Austermuehle, we are accustomed to litigating wage claims brought under the Fair Labor Standards Act, and most of our clients have FLSA claims. However, our firm also is well versed in Illinois wage laws, and our Tinley Park wage and hour attorneys discovered an interesting overtime class-action in the Appellate Court of Illinois.

Robinson v. Tellabs, Inc. is wage dispute over a policy instituted by Defendant Tellabs requiring employees to take mandatory unpaid days off. Defendant is a manufacturer of telecommunications components that saw a significant boom in its business during the 1990’s, but saw its profits dwindle after the turn of the millennium. As a result of the downturn in revenue, Defendant laid off a significant portion of its work force and instituted many other cost cutting measures. One of the measures implemented by the company was to institute mandatory unpaid leave several days each year around existing paid holidays. Even after the mandatory unpaid leave policy was instituted, Defendant’s had to lay off additional employees to keep the company afloat.

The named Plaintiff worked as a lead engineer for Defendant while the unpaid leave policy was in effect, and was laid off eleven months after his hiring having never been paid any overtime. Plaintiff then filed a class-action lawsuit alleging that Defendant’s implementation of their mandatory unpaid leave policy made he and similarly situated employees non-exempt for the purposes of the Illinois Minimum Wage Law (IMWL). Therefore, Plaintiffs were entitled to overtime pay for any week in which they worked more than forty hours. The trial court ruled in favor of Defendant and found that the mandatory days off was essentially a prospective salary reduction that served the company’s bona fide business needs.

Plaintiffs appealed the trial court’s decision and claimed that the trial court incorrectly applied the salary basis test in making its ruling. The Appellate Court did not find Plaintiffs’ arguments persuasive and agreed with the trial courts decision. The Court discussed that the rule relied upon by the trial court and set forth by Department of Labor opinion letters, which states “the salary-basis test permits employers to prospectively reduce employees’ salaries for a legitimate business need unless done so frequently that the purported salary becomes a sham attempt to pay an hourly wage.” The Court went on to hold that the rule “refers only to deductions during the current pay period…not reductions in future salary.”
Because Defendant’s policy caused reductions in future salary and the policy was a result of Defendant’s bona fide economic difficulties, the Court found that Defendant satisfied the salary-basis test. Additionally, the Court found the test to be met because the policy was applied uniformly among all employees and was not instituted on an ad hoc basis.

7th Circuit Court of Appeals Rules Employees Entitled to Compensation for Time Spent Donning Safety Gear Under State Law

August 24, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

The federal government passed the Fair Labor Standards Act (FLSA) to ensure that American workers would be paid appropriately for the work they provide. While some people may think of the FLSA as a statute that is concerned only with getting workers their unpaid overtime, the language of the law is broad enough to ensure that employees are paid for all of their time spent working, regardless of whether that time is overtime or not. Our Downers Grove wage and hour class-action attorneys found a case in the Seventh Circuit Court of Appeals involving employees who were not paid for the time they spent donning safety gear and wanted to share it with our readers.

In Spoerle vs. Kraft Foods Global, Plaintiffs were employed in Defendant’s plant in Madison, Wisconsin preparing meat products as hourly workers and spent several minutes at the outset of each work day putting on steel-toed boots, hard hats, and other safety gear required to perform the job. Plaintiffs filed suit to challenge a trade-off — struck in a collective bargaining agreement between Plaintiffs’ union and Defendant — where Plaintiffs would not be paid for their time spent donning this protective gear in exchange for a higher base pay rate. The FLSA permits such a tradeoff under §203(o), but Plaintiffs argued that Wisconsin law has no equivalent exception, and therefore state law requires payment for time spent donning such gear. Defendant argued that the FLSA and federal labor laws pre-empt the state law, so the CBA agreement should be honored and the time spent dressing in safety gear should remain noncompensable. The district court found in favor of the Plaintiffs, and Defendant appealed.

On appeal, defendant argued that §203(o) was the federal government’s decision to “permit a collectively bargained resolution to supersede the rules otherwise applicable to determining the number of hours worked.” The Court of Appeals did not find this argument persuasive, however, because nothing placed in a CBA exempts an employer from state laws of general application. Therefore, the Court found that the district court did not err in ruling that Plaintiffs were entitled to be paid for their time spent equipping themselves with safety gear.

Court Certifies Class-Action for Unpaid Employee Login Time

August 18, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Courts have been flooded lately with claims by non-exempt employees who have not been compensated for time spent logging into computer systems and performing other start-up procedures. As experienced overtime lawyers, Lubin Austermuehle has been tracking many of these cases, and the Northern District of Illinois made a recent ruling on one such case.

In Kernats v. Comcast Corporation, Plaintiffs worked for Defendant as customer account representatives (CAE’s) who performed non-exempt work and were paid on an hourly basis. Plaintiffs worked in one of Defendant’s eight call centers in Illinois, and while all Plaintiffs did not perform exactly the same job, they did have the same job description and primary duty. Additionally, they all had similar training, were governed by the same employment policies, and were compensated in the same way. Also, all CAE’s were allegedly required to first log into a work computer, load all of the necessary computer applications, and log into Defendant’s phone system before the start of their shift. In addition to the customer service responsibilities, Defendant required CAE’s to learn about new products, services, marketing campaigns, and review company emails.

Plaintiffs filed suit alleging that Defendant failed to compensate Plaintiffs for the time after they first logged in, but prior to their scheduled start time, which violated the Illinois Wage Payment and Collection Act (IWPCA). Plaintiffs also claimed that working this uncompensated time caused them to work more than forty hours a week. This entitled them to overtime compensation pursuant to the Illinois Minimum Wage Law (IMWL). After some limited discovery, Plaintiffs moved to certify two classes, one for each state law claim, under Federal Rule of Civil Procedure 23.

In making their ruling, the Court found that Plaintiffs met the threshold requirements of Rule 23(a) because the class members were subject to standardized conduct by Defendant. This conduct was the implementation of a company-wide practice allowing CAE’s to work after their login, but before the start of their shift without being paid. The class-members’ claims also were based upon the same legal theory, and thus met the minimal requirements of typicality and commonality. The Court then held that the requirements of Rule 23(b)(3) were met because the evidence required to prove liability that was common to the class significantly outweighed the evidence particular to the individual class members. The Court also found that a class-action was the preferable means for adjudicating the issues because the individual recovery for individuals would be relatively small, while the aggregate recovery would be quite large. As such, the Court ruled that the requirements of FRCP 23 were met and certified the class-action.

Northern District of Illinois Federal Court Grants Conditional Class Certification for Lawsuit for Unpaid Overtime

August 10, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

One of the most important issues at the outset of every class-action lawsuit is determining the size of the class itself. In some instances, making such a determination can be accomplished through preliminary investigations by the named plaintiff in the suit. However, the true size and scope of the class can only be confirmed by documentation obtained from the defendant company. Our Berwyn overtime class-action attorneys recently encountered a case involving a dispute over the potential members of the class, and wanted to share it with our readers.

In Smallwood v. Illinois Bell Telephone, Plaintiffs held multiple different positions, but were all classified as Outside Plant Engineers (OSPs) at Defendant’s facilities in Elgin and Des Plains, Illinois. Plaintiffs generally performed design and analysis of Defendants plant facilities and Defendant’s network and were classified as exempt employees until 2009, when Defendant reclassified all OSP engineers as non-exempt employees, which entitled them to overtime. After this reclassification, Plaintiffs filed suit for unpaid overtime wages in violation of the Fair Labor Standards Act (FLSA) because they had regularly worked in excess of forty hours per week during the entirety of their employment and had never been paid overtime previously. Plaintiffs then filed a motion requesting conditional collective action certification under §216(b) of the FLSA for all persons who were employed by Defendant as OSPs during the previous three years. Plaintiffs also requested approval of a 90-day opt-in period and a 7-day time period for Defendant to supply them with a list of putative claimants.

Defendants argued that Plaintiffs were not similarly situated because the Plaintiffs had separate and distinct job duties despite being generally referred to OSPs, and provided job descriptions as evidence of these differences. The Court found that Defendant’s arguments regarding the day-to-day work activities of the individual Plaintiffs were premature at this early stage of the case, and because the case was not “clearly beyond the first tier” of FLSA class certification. Therefore, applying a stricter standard of review was inappropriate. The Court then granted the motion for conditional certification, finding that Plaintiffs – through their individual declarations — had met the statutorily required modest factual showing that Plaintiffs were the subject to the Defendant’s common policy or plan to violate the FLSA by failing to pay OSPs overtime wages. Defendants also requested that the notice period be limited to 30 days, but the Court found that an opt-in period of 60 days was appropriate, and gave Defendants two weeks to supply the putative member list, so that collective action notices could be mailed in a timely manner.

Northern District of Illinois Federal Court Grants Motion to Strike Putative Overtime Class-Action

July 25, 2011 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Class-action lawsuits are common in unpaid overtime cases because the misclassification of employees or miscalculation of overtime usually happens on a large scale because major companies have such sizable work forces. Because such lawsuits can prove to be quite costly, defendant employers will do whatever they can to dispose of those claims in any way possible. Lubin Austermuehle knows the ‘tricks of the trade’ that defendants use, and our Skokie overtime attorneys found a federal case the illustrates one of the tools that wage claim defendants utilize.

Wright v. Family Dollar Inc. is a putative class-action filed by former associates who worked for Defendant Family Dollar and were allegedly not paid regular and overtime wages that they earned in the course of their employment. The named plaintiff, a store manager, alleged that Defendant “withheld compensation from associates by giving its store managers unfeasibly low payroll budgets” that forced those managers to require associates to work without being paid. The case, which alleged violations of the Illinois Wage Payment and Collection Act, and the Illinois Minimum Wage Law, was initially filed in the Cook County Circuit Court, but was removed to the federal court by Defendant.

Defendant then filed a motion to strike class allegations pursuant to FRCP23(c)(1)(A) and (d)(1)(D), claiming that Plaintiffs could not establish typicality and adequacy of representation. The Court granted Defendant’s motion, holding that the named plaintiff, as a manager, participated in the wrongful conduct at issue and her counsel therefore had a conflict of interest with the class members who were associates. The Court also held that the typicality requirement was not met because there were defenses unique to the named plaintiff and other managers in the putative class that did not apply to associate class members.