Chicago Business Litigation Lawyer Blog

DiTommaso-Lubin 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.

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

“Commonality” and “Numerosity” are two of a handful of factors that most courts consider in deciding whether to allow a toxic dumping lawsuit to proceed as a class action. In Doyle v. Fluor Corp., a Missouri appellate court explains these requirements and how they should be applied in a particular matter.

Plaintiffs brought the action alleging that Defendants, owners and operators of a smelting (the process by which metal is extracted from ore) business in Herculaneum, Missouri, released lead, heavy metals and other toxic substances into the air, which in turn caused damage to real property in the surrounding area. Plaintiffs sought damages under theories of negligence, private nuisance, strict liability, and trespass. The trial court granted Plaintiffs’ motion to certify the matter as a class action with the class representatives suing on behalf of nearly 400 people who “own and occupy” residential real property in the area near Defendants’ operation.

On appeal, the Court of Appeals for Missouri’s Eastern District upheld the decision to certify the class. A class may be certified under Missouri law where: 1) the class is so numerous that joinder of all members is impracticable; 2) common questions of law or fact exist among the class; 3) the claims or defenses of the representative parties are typical of that of the class; and 4) the representative parties are able to fairly and adequately protect the class' interest. In addition, a court considering certification must also determine that the common factual or legal questions "predominate over any questions affecting only individual members" and that a class action is more suitable than other methods to fairly and efficiently adjudicate the issue.

In affirming the trial court’s decision, the court noted that the “commonality” requirement does not mean that all issues in a particular action be common to all class members, but instead that the common issues predominate over the others. “A single common issue may be the overriding one in a matter, despite the existence of numerous remaining individual questions,” the court ruled. In this case, several of the action’s central issues were shared among the class, including whether Defendants were responsible for emitting toxic metals in to the air; whether such an act constitutes negligence; and whether the pollution caused property in Herculaneum to be contaminated.

Continue reading "The Commonality and Numerosity Requirements in Missouri Class Action Certification - Doyle v. Fluor Corp." »

We recently had a win in the Illinois Appellate Court in S37 v. Advanced Refrigeration. The Appellate Court affirmed the trial court's decision to certifiy a class action regarding the claims in that. Advanced sells appliances to various businesses and added a charge on its invoices called government processing requirment. This fee was not required to be paid by the government and was not a government mandated fee. Advanced created the fee to recover costs it allegedly incurrs in complying with government requirements. The Class-Action Complaint alleged that the fee was deceptive in that it allegedly made a profit generating fee appear as if it were a government required fee. Advanced denied these allegations and opposed class-certification. The trial court denied Advanced's motion to dismiss and then certified the case as a class-action.

The Appellate Court granted leave for an appeal of the class-certification decision. Advanced argued that it disclosed the true nature of the fee to all customers and that such alleged disclosure gave rise to individual issues blocking class certification. The Class argued that this defense did not create invididual issues barring class-certification as the defense of full disclosure was common the entire class given Advanced's claim that it told all customers that the fee wasn't a government mandated fee or tax as the fee's name allegedly suggested it was.

The Appellate Court rejected Advanced's arguments and found that the trial court properly exercised its discretion in certifying the class-action.

The Appellate Court held:

We agree with the plaintiff that this case fits the pattern of cases routinely certified as class actions by Illinois courts. See Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 643 N.E.2d 734 (1994) (resolved as a class action, the court held the commodity option contracts broker’s disclosure statement was misleading, in violation of the Illinois Consumer Fraud Act, because the “foreign service fee” to be charged investors was a commission from which it would receive compensation); Harrison Sheet Steel Co. v. Lyons, 15 Ill. 2d 532, 155 N.E.2d 595 (1959)(class action was proper where the defendant refused to refund illegal occupation taxes collected from its customers); P.J.’s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d 992, 1003, 803 N.E.2d 1020 (2004) (“The primary factual issue in this case is a uniform billing practice that allegedly violated the Consumer Fraud Act in the same manner as to all class members. The propriety of such a uniform practice is amendable to being resolved in a class action.”).

The Appelalte Court also noted that the brief of the National Association of Consumer Advocates (which filed a friend of the court submission) stated that class-actions provided a way for small claims like this to proceed to court and to obtain justice when small alleged wrongs in the aggregate allegedly harm many consumers:

“ ‘The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.’ ” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997), quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997).

You can view the full opinion of the Appellate Court by clicking here.

Continue reading "Class Certification Order Affirmed By Appellate Court" »

At DiTommaso-Lubin, 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.

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

A Michigan court recently pumped the breaks on a class action toxic pollution suit against Dow Chemical, finding that while property owners may be able to prove that the chemical giant contaminated local rivers and surrounding property with toxins, the plaintiffs did not meet the standards for bringing the suit as a class action.

The Michigan Messenger’s Eartha Jane Melzer reports that “[o]perations at Dow’s Midland plant have spread dioxin — a highly toxic and cancer-causing byproduct of the chemical manufacturing process — and other chemicals, through the Tittabawassee and Saginaw Rivers and into Lake Huron. Flooding of the rivers downstream from Dow has deposited dioxin-laden sediments on properties in the floodplain.”

Dow Chemcial v. Henry concerns a suit by roughly 150 Tittabawassee property owners filed against Dow on behalf of the more than 2,000 people with property in the floodplain in 2003 and claiming that their property had lost value due to contamination. Two years later, Saginaw County Judge Leopold Borello certified the class of property owners, a ruling that Dow appealed to the Michigan Supreme Court.

In order to be certified as a class, Michigan law requires that a group of plaintiffs meet the following criteria:

(a) the class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the members of the class that predominate over questions affecting only
individual members;
(c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(d) the representative parties will fairly and adequately assert and protect the interests of the class; and
(e) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice.

MCR 3.501(A)(1). On appeal, the state supreme court remanded the case to Judge Borello, requiring that he analyze the action under criteria (c) and (d) above.

Upon further consideration, Borello reversed his earlier approval of class status for the group. In so doing, he relied on the recent U.S. Supreme Court decision in Wal-Mart Stores v. Dukes, a 5-4 ruling in which the court reversed a lower court’s decision to certify a class of women employees alleging bias in pay and promotions, noting that the company’s decentralized structure meant that the case involved millions of employment decisions and that the women failed to show “some glue holding the alleged reasons for all those decisions together.”

Continue reading "Michigan Toxic Pollution Class Action Stalls in Circuit Court - Dow Chemical v. Henry" »

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.

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

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, DiTommaso-Lubin 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.

Continue reading "Court Certifies Class-Action for Unpaid Employee Login Time" »

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.

Continue reading "Northern District of Illinois Federal Court Grants Conditional Class Certification for Lawsuit for Unpaid Overtime " »

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. DiTommaso-Lubin 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.

Continue reading "Northern District of Illinois Federal Court Grants Motion to Strike Putative Overtime Class-Action" »

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Super Lawyers named Chicago and Oak Brook business trial attorneys Peter Lubin and Vincent DiTommaso Super Lawyers in the Categories of Class Action, Business Litigation and Consumer Rights Litigation. DiTommaso-Lubin's Oak Brook and Chicago business trial lawyers have over a quarter of century of experience in litigating complex class action, consumer rights and business and commercial litigation disputes. We handle emergency business law suits involving injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud.

Vincent L. DiTommaso

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Peter S. Lubin

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DiTommaso-Lubin's Wheaton, Naperville, and Hinsdale litigation attorneys have more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and sucessfully as possible, helping business clients protect their investements and get back to business as usual. From offices in Oak Brook, near Aurora and Elgin, we serve clients throughout Illinois and the Midwest.

If you’re facing a business or class-action lawsuit, or the possibility of one, and you’d like to discuss how the experienced Illinois business dispute attorneys at DiTommaso-Lubin can help, we would like to hear from you. To set up a consultation with one of our Chicago class action attorneys and Chicago business trial lawyers, please call us toll-free at 1-877-990-4990 or contact us through the Internet.

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Continue reading "Construction Workers File Class Action to Obtain Unpaid Overtime" »

Every day there are hard working people who are denied the overtime wages that they have rightfully earned. At DiTommaso-Lubin, we have much experience representing those with unpaid overtime claims in class-action litigation. As such, we track the changes in the wage laws and are always looking out for new court decisions in the field.

Alvarez v. City of Chicago is a recent class-action case brought by paramedics in the city of Chicago for the systematic miscalculation of their overtime wages. In so doing, Plaintiffs alleged that Defendant willfully violated the Fair Labor Standards Act (FLSA) when it failed to properly compensate the Plaintiffs. The parties each filed motions for summary judgment, and the trial court ruled in favor of Defendant. In making the ruling, the trial court found that the Plaintiffs were not similarly situated and they could not be “readily divided into homogenous subgroups.” The lower court then dismissed the claims and directed the parties to arbitrate the dispute.

On appeal, the Appellate Court disagreed with the trial court's decision, and held that the case could proceed by using sub-claims if the Plaintiffs were similarly situated and common questions predominated. The Court also held that the case should not have been dismissed; instead the Plaintiffs should be allowed to proceed individually if class certification is inappropriate. The Court then remanded the case with instructions for the district court to consider which form of judicial resolution would be most efficient.

Continue reading "Appellate Court Overturns Dismissal of Chicago Paramedics Unpaid Overtime Class-Action" »

Large corporations are often built upon the labor of many hard-working hourly employees. Unfortunately, such companies do not always pay their employees the wages that they have earned, and when such mistakes are made, those employees must do what they can to get what they are owed. When enough employees have been denied their earned wages, a class-action lawsuit may be the most efficient means to get everyone their unpaid wages, and our Naperville overtime class-action attorneys recently discovered another such lawsuit in the Northern District of Illinois federal court.

In Hundt v. DirectSat USA, Plaintiffs were employed by Defendant as warehouse managers who regularly worked more than forty hours per week, but were not paid any overtime because Defendant classified them as exempt employees. Plaintiffs believed that they were misclassified because their job duties did not meet the overtime exemption requirements under the Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Act (IMWA), and filed a class action lawsuit for the unpaid overtime. After sending out opt-in notices to the potential class members, Plaintiffs discovered that the class should not be limited to just those employees with the title of warehouse manager. Plaintiffs therefore amended the complaint to broaden the class to include warehouse supervisors and other workers in similar positions, and filed a motion to send notice to these additional putative class members.

Defendants opposed the motion, stating that there were significant differences between warehouse managers and supervisors and claimed that Plaintiffs failed to sufficiently allege the existence of a common decision, policy, or plan to deprive them of overtime wages. The Court disagreed with Defendants, holding that all of the putative plaintiffs were similarly situated despite their varied job titles. In making its decision, the Court cited several internal communication emails that indicated the titles were interchangeable, and that was enough to meet the minimal burden required. Thus, the Court granted the motion to send notice to the additional class members.

Continue reading "Northern District of Illinois Federal Court Grants Motion to Send Notice to Expanded Class in Unpaid Overtime Class-Action Litigation" »

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Our lawyers are passionate about protecting the rights of workers and are constantly researching new wage and hour decisions rendered by the federal courts here in Illinois. Our Buffalo Grove overtime class-action attorneys recently discovered a case that impacts potential clients seeking to certify wage and hour class actions under the Federal Labor Standards Act (FLSA).

The Plaintiff in Russell v. Illinois Bell Telephone Co. worked at Defendant's call center in Arlington Heights, Illinois for five years and was paid hourly wages, commissions, and bonuses. Plaintiff and the other purported class members all had scheduled shifts and lunch breaks, but allegedly were required to perform work tasks both before their shifts and during their lunch breaks. Plaintiffs were not paid for the work they performed pre-shift and during lunch breaks, and filed suit for their unpaid wages. The trial court then conditionally certified the class, and additional discovery commenced.

Through discovery, Plaintiffs learned that Defendant has a written policy that hourly employees must obtain permission from a supervisor before working overtime and any employee who works overtime must be compensated accordingly. Defendant's Code of Business Conduct also explicitly states that “managers are prohibited from requiring nonexempt employees to work off the clock.” However, after deposing 24 individual Plaintiffs, the record showed that the majority of Plaintiffs had to spend time logging into their computer systems prior to the start of their shift because their supervisors had instructed them to be “open and available” at the start of their shift. To be “open and available,” Plaintiffs had to boot up their computers and get several applications up and running. This system start-up process took between three and twenty minutes to complete depending upon the individual computer.

In addition to the pre-shift issues, the record showed that Plaintiffs would often have to work a few minutes past the end of their shifts to finish handling calls already in progress. Because Defendant has a policy that any overtime worked in an amount less than eight minutes is not compensable and many of the post-shift calls are resolved in less than eight minutes after the end of their shift, Plaintiffs were not compensated for the overtime worked while finishing calls at the end of the day.

After more discovery and the deposition of thirty-nine individual Plaintiffs, Defendants moved to decertify the class based upon individual issues embedded in the case and the absence of a company-wide policy that violates the FLSA. The Court found that the class members shared enough of a factual and legal nexus that pursuing a class-action was proper through the use of subclasses where necessary. The Court went on to decertify the individual claims that did not fall into the enumerated subclasses of pre-shift overtime, post-shift overtime, and work performed while on lunch breaks. Finally, the Court stated that due to the large amount of discovery still to be performed, that they reserved the right to revisit the decertification issue should it become apparent that the case was unmanageable as a class-action.

Continue reading "Class Members Don't Need Identical Claims to Maintain a Class-Action Under the FLSA" »

Law 360 reports that a Pennsylvania state appeals court has upheld a $187 million dollar class action judgment for unfair wage and hour practices. Wal-Mart allegedly forced its Pennsylvania employees to work off the clock and skip breaks for meals or rest. "The record reflects testimony and documentary evidence suggesting that because of pressure from the home office to reduce labor costs and the availability of significant bonuses for managers based on store profitability, Wal-Mart's scheduling program created chronic understaffing, leading to widespread rest-break violations," the court held in its 211 page opinion.The article states:

The original $78 million verdict was handed down Oct. 13, 2006, following a six-week trial. The jury found Wal-Mart liable for not paying employees for time spent working off the clock. That award was almost doubled in 2007 when the court added $62.2 million in liquidated damages for the class of more than 187,000 Pennsylvania workers. ... Lawyers in the case claimed that Wal-Mart made workers skip more than 33 million breaks and two million meal periods from 1998 to 2001. In its appeal, Wal-Mart claimed, among other things, that the case should not have been certified as a class action and that it had not breached a contract with its employees because the company's policies and its employee handbook did not establish a contract.

You can read the full article by clicking here.

Continue reading "Law 360 reports: "Pa. Appeals Court Upholds $187M Wal-Mart Judgment"" »

CNN reports that a federal court has allowed a law suit to proceed against Chiquita for allegedly contributing to human rights abuses in Colombia by paying bribes to the right wing paramilitary groups that actually committed the atrocities. Chiquita which once operated 200 banana plantations in Columbia claimed that it was a victim of extortion and was forced to pay the bribes which it also paid to left wing rebels. Chiquita already plead guilty to federal criminal charges involving the same bribes and paid a $25 million fine.

The article states:

A federal judge in Florida said Friday that lawsuits against Chiquita Brands International, filed by family members of thousands of Colombians who were tortured or killed by paramilitaries, will be allowed to go forward.

Chiquita, which has admitted to making payments to paramilitaries, had asked for the suits to be dismissed, arguing it was a victim of extortion and has no responsibility for any crimes armed groups committed.

But U.S. District Judge Kenneth A. Marra denied the company's request, allowing plaintiffs to move forward with claims for damages against the company for torture, war crimes and crimes against humanity. He granted Chiquita's motion to dismiss claims for damages related to terrorism.

"While the court allowed some claims to move forward, it is important to understand that at this stage of the proceedings, the court is required by law to treat plaintiffs' outrageous and false allegations as if they were true. Plaintiffs now have the burden of proving these allegations," Chiquita spokesman Ed Loyd said in a statement.

You can read the full article by clicking here.

Continue reading "CNN reports: "Florida Judge Allows Suits Against Chiquita to Move Forward"" »

DiTommaso-Lubin prosecutes consumer protection class-action lawsuits on a regular basis, and in order to best serve our present and future clients, we are always mindful of new Illinois cases in the field. Howard v. Chicago Transit Authority is a consumer rights decision from the Appellate Court of Illinois that our attorneys found in the course of their research.

Howard v. Chicago Transit Authority is a case between those who ride public transportation in Chicago and the Chicago Transit Authority (CTA). Initially, the named Plaintiff started the litigation because of Defendant CTA's policy of allowing the transit cards needed to ride on Defendant's transit system to expire one year after the cards are issued. The named Plaintiff had purchased such a card, and when that card expired, he lost the remaining balance on his card. After discovering that he had lost the money on the card, Plaintiff filed a putative class-action lawsuit, alleging violations of the Consumer Fraud and Deceptive Business Practices Act and the Uniform Deceptive Trade Practices Act. Defendant then filed a motion to dismiss, which was granted by the trial court. Plaintiffs then appealed the lower court's dismissal.

The Appellate Court reviewed the trial court's dismissal de novo and examined the reasoning used by the lower court's decision. The case was dismissed by the trial court because Defendant successfully argued that Plaintiff's claims could not stand due to the terms and conditions of the card. These terms and conditions clearly stated that the transit card had an expiration date and could not be redeemed for cash, replaced, or refunded. Additionally, upon purchase of the transit card, the Court held that Plaintiff had entered into a valid contract of carriage and therefore Defendant had committed no wrongful conduct. Plaintiff claimed that the terms and conditions of the card referred only to the use of the card itself and not the use of money placed on the card. The Court disagreed and upheld the trial court's ruling that use of the card was part and parcel of using the money on the card. The Court went on to state that “the terms on a fare pass are incorporated into the carrier's contract for carriage and are enforceable as written.” Thus, because the contract for carriage contained the expiration clause and Plaintiffs accepted those terms, the contract was valid and the suit was properly dismissed.

Continue reading "Court Rules that Expiration of Public Transit Passes is Legal" »