NPR reports:
Can't put your BlackBerry down? Your boss may come to dread that if you're working while you're off the clock. A police sergeant in Chicago is suing the city. He says he's due plenty of overtime back pay because he logged in on his BlackBerry to continue working even though his shift was over.
Continue reading "NRP Reports: Using Your BlackBerry Off-Hours Could Be Overtime" »
Lawyer Sues Firm for Failing to Pay Overtime
By JOHN ELIGON
Published: July 7, 2010
A claim that the firm did not pay time-and-a-half to a temporary employee who worked more than 40 hours a week.
The New York Times Reports:
A lawyer is suing his former New York-based employer, alleging that the law firm violated federal labor laws by not paying time-and-a-half for overtime.In a complaint filed Wednesday in federal court in Manhattan, the lawyer, Moshe Koplowitz, said that the firm he did temporary work for, Labaton Sucharow, did not pay him at a higher rate when he worked more than 40 hours in a week.
Mr. Koplowitz worked only a few months at the firm because he was hired as a temporary employee, and he sometimes worked more than 50 hours a week, said D. Maimon Kirschenbaum, the lawyer who drafted the complaint.
Mr. Kirschenbaum said that federal law required employees paid by the hour to receive one-and-a-half times their regular pay for every hour over 40 hours worked in a week.
In our work as Illinois wage and hour class action attorneys, we frequently see workers who have been misclassified as exempt from overtime. Whether this was an honest mistake or an intentional attempt to save money, it effectively “steals” wages from the misclassified employees. DiTommaso-Lubin stands up for the rights of workers in Chicago, Illinois and throughout the country who are victims of overtime wage theft, including misclassified employees as well as those pressured to work off the clock; lie on timesheets; or simply not paid an overtime rate. Our Waukegan, Aurora, Joliet and Chicago unpaid overtime class action lawyers handle both individual and class action employment cases. Based in Chicago and Oak Brook, Ill., our Chicago class action attorneys represent clients throughout Illinois, the Midwest and the United States.
A California wage and hour ruling caught the attention of our Illinois employment rights attorneys because it caused substantial dissent and inspired a replacement decision more than six months after its original opinion was published. Rutti v. Lojack Corporation Inc., No. 07-56599 (9th. Cir. March 2, 2010) concerned whether commute time and time spent at home on work-related tasks should be compensated at work. In its most recent decision, a three-judge panel of the Ninth U.S. Circuit Court of Appeals agreed that commute time is not federally compensable, but split on whether the time is compensable under state law. Similarly, all three agreed that Mike Rutti’s minimal time spent checking assignments for the day from home was not compensable, but disagreed on whether longer evening periods spent transmitting data counted as work time.
Rutti was one of about 450 technicians nationwide for Lojack, Inc. to install alarms in customers’ cars. He spent most of the day on the road traveling between job sites in a company-owned vehicle, but began and ended the day at home, performing administrative tasks for Lojack. Lojack paid him an hourly wage starting when he arrived at the first work site and ending when he left the last one. He file a proposed class action lawsuit seeking compensation under federal and state wage and hour laws for his preliminary and postliminary activities, as well as commute time to and from work sites. The trial court granted Lojack summary judgment dismissing all of the federal claims but upheld a state-law claim seeking compensation for commuting, before dismissing the remaining state-law claims for lack of subject matter jurisdiction. Rutti appealed to the Ninth Circuit.
On appeal, the Ninth separated the case into three issues: whether the commute time was compensable; whether his off-the-clock activities were substantial enough to be compensable; and when Rutti’s work day started under the “continuous work day” doctrine adopted by the Department of Labor. On the commute time issue, the appeals court agreed with the trial court, but only as to Rutti’s Fair Labor Standards Act claims. A 1996 federal law called the Employee Commuter Flexibility Act says employees need not be compensated for travel time, preliminary activities or postliminary activities that take place outside of a normal work day. That’s true even when the vehicle used is the employer’s vehicle and is subject to restrictions on its use, as long as it’s subject to an agreement between the parties.
Rutti had more luck on the issue of off-the-clock activities performed at home before and after work. These are also subject to the ECFA, the Ninth wrote, but only if they are not “principal activities.” In addition, caselaw says they must not be minimal activities. The activity at the beginning of the day included receiving job orders, mapping them and planning his route for the day. This is related to his commute, the court found, and commuting is not compensable. They are also relatively minimal, taking no more than a few minutes. Thus, the Ninth upheld the trial court on the preliminary activities. However, it reversed the trial court as to Rutti’s postliminary activities, which it said were more time-consuming. This included connecting with Lojack’s servers to upload data about his work for the day. This was part of Rutti’s regular work and necessary to Lojack’s business, the court wrote, making it part of the company’s “principal business activities.” The court also found that it was not minimal, citing evidence that it could take more than 10 to 15 minutes because of frequent failures, and that it was a regular part of the work. Thus, it may very well have been compensable time under federal law and should not have been dismissed at the summary judgment stage.
Finally, the court ruled that Rutti may have a case under the “continuous work day” doctrine set forth in Dooley v. Liberty Mutual Ins. Co., 307 F. Supp. 2d 234 (D. Mass. 2004), which held that automobile damage appraisers who worked from home were entitled to compensation for commutes because activities they performed at home were “principal activities” that formed part of a continuous work day. Because the court had already determined that Rutti’s preliminary activities were not compensable, it wrote, the morning commute is not part of a continuous workday. The evening commute might be, the Ninth said, except that 29 C.F.R. § 785.16 says employers may not be compelled to compensate workers for periods when they are relieved from duty so long that they can use the time for their own purposes. This was the case with the postliminary upload time, the court said, because Lojack gave technicians 12 hours in which to upload.
Using all of that reasoning, the majority upheld most of the trial court’s rulings, but vacated rulings as to state-law claims for compensation and postliminary claims for the data upload. A separate concurring opinion by Judge Silverman and joined by Judge Hall agreed as to the California state-law claims for commuting. California requires employers to compensate their workers for all time “during which an employee is subject to the control of an employer, the judges wrote, citing Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578 (2000). Because Rutti was subject to multiple rules governing his behavior with the company truck, he was clearly under Lojack’s control, they wrote. Another concurrence authored by Judge Hall alone said the panel should have upheld the trial court on the postliminary data upload as well, because they were minimal. Finally, Judge Callahan dissented from the majority’s opinion on the state-law claims, arguing that Morillion did not apply because Rutti was not required to commute by company bus, as in that case.
A recent California state appeals court decision caught the eyes of our Chicago employment class action attorneys because it addressed fine distinctions in class certification. In Jaimez v. Daiohs USA, 2010 Cal. App. LEXIS 156 (Feb. 8, 2010), California’s Second District Court of Appeal ruled that a trial court improperly denied class certification when it relied on individual testimony to establish the existence of a uniform employer policy. It agreed, however, that plaintiff Alex Jaimez was an inappropriate class representative.
From 2001 to 2007, Jaimez was a route sales representative for DAIOHS First Choice Services, which provides refreshments and vending-machine products to offices. From 2003 to 2007, all of them were reclassified from overtime-exempt to non-exempt, receiving an hourly wage plus overtime when applicable. In 2007, Jaimez filed this action in Los Angeles Superior Court, seeking to certify four classes of employees who were allegedly denied overtime; meal breaks; rest breaks; or pay stubs.
The plaintiffs argued that First Choice had improperly classified RSRs as exempt before the change, illegally denying overtime, meal breaks and rest breaks. After the change, the company continued not paying overtime, the plaintiffs claimed, but pressured RSRs to finish their routes in eight hours even when the routes were long. The plaintiffs also claimed that they were not informed that they were entitled to another meal break if they worked more than 10 hours. Before 2006, they said, meal breaks were automatically removed from time records regardless of whether they were taken; after 2006, employees were pressured to sign a statement that they took the break, even when they didn’t. These were the result of consistent, uniform corporate policies, the motion said, making class certification appropriate. The proposed class sought back wages and penalties under state law.
First Choice opposed the class certification motion by submitting testimony from 25 current RSRs who said they had no such problem. All of them said they were able to take rest and meal breaks when they wished, are encouraged to do so and have time to do so. Relying on these declarations, the trial court denied class certification, saying Jaimez was not typical enough an the proposed class did not have common questions of law and fact. It also said Jaimez was not a good representative, because pretrial testimony showed that he’d lied about a previous criminal conviction for petty theft when he was hired. Plaintiffs then asked for leave to file a First Amended Complaint with new class representative, but was denied. They appealed both orders.
On appeal, the Second District said the trial court misapplied state class certification standards by considering conflicting issues of fact rather than evaluating whether the plaintiffs’ theory of recovery was appropriate for class treatment. In this case, the plaintiff’s “theory of recovery” includes questions of fact and law that predominate over all RSRs in the class, including questions about First Choice’s policies, record-keeping and misclassification of employees. When the trial court used the RSR declarations submitted by First Choice to deny this, the appeals court said, it incorrectly reached the merits of the claim rather than the question of predominance. In fact, the appeals court said the declarations actually support to some extent the allegations made by the plaintiffs about policies and practices. That RSRs may have different damages does not mean they don’t have common questions of law and fact to try.
The appeals court further found that Jaimez was a sufficiently typical representative of the class, noting that he had submitted nine declarations from others that were substantially similar. However, it also found that he was not an adequate representative because of his dishonesty about his criminal conviction. Thus, the appeals court upheld the trial court’s class certification ruling on that issue, but reversed on all other issues. It also reversed the denial of leave to file a First Amended Complaint, noting that the trial court itself invited Jaimez to file such a complaint and that First Choice did not oppose it. The case was remanded to trial court with instructions to certify subclasses after a new class representative is appointed.
Our Naperville wage and hour rights attorneys noted a recent ruling out of Massachusetts that could be important for police officers and firefighters around the United States. In Calvao et al. v. Town of Framingham, No. 09-1648 (1st.Cir. March 17, 2010), the First U.S. Circuit Court of Appeals ruled that employers don’t have to notify their public safety workers when they take advantage of a special provision in the Fair Labor Standards Act that exempts them from the ordinary 40-hour work week. Instead, these employers are permitted to establish “work periods” of seven to 28 days, after which the employees must be paid overtime. The plaintiffs, a class of about 100 Framingham, Mass. police officers, believed that the Town of Framingham was not eligible for this exemption because it never “established” the work period by notifying them of its existence.
The FLSA was amended in 1966 and 1974 to apply to state and municipal workers. This triggered concerns about costs from local governments, which ended partially with Congress enacting the section of law at issue in this case, which allows a longer period before overtime is triggered, to account for the unpredictable nature of public safety work. The Town of Framingham circulated a memo in 1986 declaring that the work period for police and fire personnel was 24 days. This worked out to about 43 hours in a seven-day period before overtime was triggered. Fourteen years later, in 2000, the police officers’ union negotiated a change in schedule from four days on and two off to five days on and three off. Both fit into the 24-day schedule. In 2005, the officers brought the instant action, suing for a declaratory judgment that they had been denied overtime because the work period had never been “established” as required by federal law. The trial court granted partial summary judgment to the defendants on this issue, and the officers appealed.
They had no better luck at the First Circuit, which found no evidence for their argument in the text of the statute, its legislative history or Department of Labor guidelines. The text of the law at issue does not require notice, the court wrote, or even suggest how an employer might establish its work period. The statute doesn’t explicitly prohibit giving notice, but Congress did explicitly give responsibility for enforcing FLSA regulations to the Secretary of Labor. Regulations enacted by people in that role “make it clear the Secretary rejected a notice requirement,” the court wrote. In fact, the Secretary in office at the time reviewed and rejected a proposed notice requirement, noting that the Act does not require one. In addition, legislative history shows that Congress expressly rejected a proposal to require employee agreement before the work period could be established.
Finally, the court rejected the officers’ argument that a Department of Labor letter ruling mandates a notice requirement. The issue was never brought up in district court and would be waved in any case, it wrote, but is also inappropriate for three reasons. One is that the letter never mentioned a notice requirement, instead saying that “"[a]n employer must designate or otherwise objectively establish the work period . . . and pay the affected employees in accordance with its provisions.” The letter was also responding to a specific court case raising issues not relevant in the instant action. And opinion letters don’t have the force of rulings, the court said, especially since the Secretary of Labor has already reached the opposite conclusion from the one the officers sought here. Thus, the summary judgment ruling by the district court was affirmed.
As Illinois wage and hour rights attorneys, we were interested in a decision establishing the scope of state courts’ right to enforce judgments obtained in other states under the Constitution’s “full faith and credit” clause. Nazario et al. v. O.J. Thrall Inc., et al., 1996 WL 285541 (Conn.Super. 1996) allowed Puerto Rican farmworkers to enforce their default judgment against a Connecticut farm operator. The Connecticut Superior court found that because the farm operator used Puerto Rican logistic, recruitment and screening services, it had enough “minimum contact” with the territory for the Puerto Rico court to establish personal jurisdiction.
Defendant O.J. Thrall, Inc. grows tobacco in Connecticut. It recruited 51 Puerto Rican workers for its growing season through an interstate clearance system created by the federal Wagner-Peyser Act. That law also regulates working conditions and pay for domestic farmworkers, including the Puerto Rican farmworkers. The workers were in Connecticut between June 12, 1991 and July 19, 1991, when they were discharged. Upon their return, they sued Thrall in Puerto Rico Superior Court for breach of contract and the federal clearance order. That court determined that it had personal jurisdiction in the case because Thrall had done business in Puerto Rico through the Wagner-Peyser job clearance system. Thrall was properly served, but the case ended in a default judgment. The workers were awarded $2,084 each in unpaid wages and $190 each in air travel expenses, plus attorney fees.
The workers then sought to enforce their judgment in Connecticut, where Thrall had its operations. Thrall fought that action, arguing that it didn’t have sufficient minimum contacts with Puerto Rico to establish personal jurisdiction. The Connecticut Superior Court started by noting that this was an issue of first impression in the state, as the only previous Wagner-Peyser Act case had to do with subject matter jurisdiction. The Constitution requires state courts to give one another’s decisions “full faith and credit,” it noted, but also limits their personal jurisdiction over nonresidents through the due process clause of the Fourteenth Amendment.
It first took up Thrall’s argument that the clearance orders it extended under Wagner-Peyser were not offers of employment, as required to establish “minimum contacts” with Puerto Rico. The Connecticut court rejected that argument. Of the 12 cases it found in the United States and Puerto Rico that discussed whether a clearance order is an offer of employment or a contract, only two declined to make such a finding. One declined to make any finding on the subject, while another found that another contract was the controlling contract. Furthermore, the court wrote, the clearance order specifically said it “describes the actual terms and conditions of the employment being offered by me and contains all the material terms and conditions of the job,” followed by the signature of Thrall’s Vice President. For those reasons, the court found that the clearance order was a unilateral contract containing an offer of employment.
The court next addressed Thrall’s argument that the local Department of Labor office in Yauco, Puerto Rico, which recruited the workers, was not Thrall’s agent and had no authority from the company. Under Connecticut caselaw, the court said, it must review whether the Wagner-Peyser Act creates an agency relationship between firms and the federal Department of Labor. This Depression-era law allowed the federal government to establish employment offices giving preference to U.S. and Puerto Rico workers over foreign workers. When hiring the workers, the court wrote, Thrall delegated its hiring authority to the Yauco office, specifically referring workers to that office rather than merely using it as a referral source. This established an agency relationship between the Yauco DOL and Thrall, the court wrote. However, the office was not under Thrall’s control, the court said, citing caselaw from around the U.S. Thus, the agency relationship was implied, not stautory. However, this was still sufficient to establish jurisdiction.
Finally, the court addressed Thrall’s argument that it had transacted no business in Puerto Rico, aside from the clearance order it was required by law to file in order to use the foreign worker program. In support, it cited a dissent from a New York case with similar facts, Rios v. Altamont Farms, Inc., 100 A.D.2d 405, 475 N.Y.S.2d 520 (N.Y.A.D.1984), which allowed Puerto Rico courts personal jurisdiction over a New York apple grower. In that case, the court wrote, the facts satisfied both parts of the two-part test laid down by the Supreme Court in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The defendants used Puerto Rico services with certain awareness that their job offers would be extended in the territory, satisfying the “minimum contact” requirement. Jurisdiction was fair because a hearing in Puerto Rico imposed less burden on the defendant than a mainland hearing would impose on plaintiffs, whom the government has an interest in protecting. All of these considerations applied to the instant case as well, the court said. Thus, the judgment may be enforced against Thrall in Connecticut.
The Chicago Tribune Reports that Illinois is set to institute long needed additional legistlation to protect employees from wage theft. You can view the article here. The article discusses that wage theft has become a widespread problem that needs to be remedied. It states:
Ismael and Efren Sanchez, both bricklayers, said their boss did not pay them for three months. When the father and son asked for their salaries, the employer claimed to have the same problem. I don't have the money. Not believing it, the Sanchezes complained to the Illinois Department of Labor, saying they were owed nearly $13,000. Even though the state ruled in their favor, they have waited months for relief, and their home in south suburban Markham went into foreclosure in March. Labor activists call such cases "wage theft." Concerned that it threatens the most vulnerable of workers, they are trying to revamp the state's oversight by adding teeth to its enforcement of labor laws, including felony violations for employers who are repeat offenders. ... The new legislation would put enforceability into the Labor Department's rulings. The bill also would make an employer's second offense a felony and make it easier for workers to file civil lawsuits for owed wages.If you believe you might be part of a class of employees forced to work off the clock or have othewise been denied overtime pay, DiTommaso-Lubin may be able to help your pursue your own overtime class action. For a free consultation on your rights as an employee, contact us today. Our consumer rights private law firm handles individual and class action wage claim and other employee and consumer rights cases that government agencies and public interest law firms such as the Department of Labor may decide not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to employee and consumer fraud and rip-offs, and in the right case filing employee or consumer protection lawsuits and class-actions you too can help ensure that other emploment and consumers' rights are protected from unscrupulous, illegal or dishonest practices. Our Naperville, Arlington Heights, Lombard, Highland Park, Hinsdale and Chicago fair labor and unpaid overtime lawyers and attorneys provide assistance in wage claims, fair debt collection, consumer fraud and consumer and employment rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago area employee rights or consumer protection lawyers who can assist in wage claim, lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other employment, unfair wage, consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.
A little-noticed U.S. Supreme Court decision from this year will have an important effect on the work of our Illinois wage and hour class action lawyers. In Hertz Corp. v. Friend et al., No. 08-1107, __ S. Ct. __ (Feb. 23, 2010), the court ruled that the “principal place of business” test for a corporation’s citizenship refers to the place where the corporation’s high-level officers direct, control and coordinate its activities. This clarifies the law and resolves a number of discrepancies among lower courts around the country. It also overturns a Ninth U.S. Circuit Court of Appeals decision denying that federal courts have diversity jurisdiction in a proposed class-action wage-and-hour case brought by employees of Hertz Corporation.
Melinda Friend and John Nhieu sued Hertz Corp. for alleged violations of California state wage laws, and sought to certify a class of California plaintiffs with similar grievances. Hertz sought to remove the case to federal court under the Class Action Fairness Act, which allows cases to be moved when they have diverse citizenship and a dispute of more than $5 million. The plaintiffs argued that Hertz was a California citizen under Ninth Circuit precedent, which held that corporations’ “principal place of business” is where their business activity is “significantly larger” or “substantially predominates.” For Hertz, they argued, that was California because the company had the most offices and business there.
Hertz, which is incorporated in Delaware, argued that its “principal place of business” was New Jersey, where its corporate headquarters is found. It conceded that it had more offices in California than in any other state, but pointed out that California is just one of 44 states where it operates and accounts for far less than 50% of its revenue, rentals, employees or locations. Nonetheless, the district court followed Ninth Circuit precedent and sent the case back to state court. Hertz appealed, but the Ninth Circuit affirmed the ruling. The Supreme Court granted certiorari.
Writing for the majority, Justice Breyer started by dismissing a jurisdictional argument raised by the plaintiffs, who claimed that the Supreme Court’s jurisdiction was improper because the law allowing Hertz to appeal a remand order mentions only courts of appeal. However, other federal statutes give the court authority, the opinion said, and “We normally do not read statutory silence as implicitly modifying or limiting Supreme Court jurisdiction that another statute specifically grants.”
Turning to the meat of the case, the justices noted that the “principal place of business” language arose in response to an overload of diversity cases in federal court, as well as concerns about abuses of diversity jurisdiction. To resolve that, Congress allowed corporations to claim citizenship where they are incorporated, “and of the State where it has its principal place of business.” But this has been difficult to apply, the opinion said, resulting in splits across the circuits. To resolve it, the justices reviewed the appeals courts’ interpretations and chose a popular “nerve center” test that assigns citizenship according to where the corporation’s business is directed and controlled, as applied in cases like Wisconsin Knife Works v. National Metal Crafters, 781 F. 2d 1280, 1282 (CA7 1986).
The justices wrote that the “nerve center” will typically but not always be a headquarters, where officers and directors do business and where the public recognizes the company to be based. This helps avoid some of the flaws of approaches like the Ninth Circuit’s, they wrote, which sometimes confuse the company’s presence in a state with the state itself. For example, a rule that measures the amount of business activity in the state could grant California citizenship to many corporations, simply because California is the largest state by population. It is also a simple rule, which benefits the courts as well as corporations. This may occasionally produce odd situations, the opinion noted, as when directors and officers are housed in a different state from that where the bulk of actual business takes place. But this is a price of simplicity. Given that rule, the justices wrote, Hertz is entitled to diversity jurisdiction because it is uncontested that its “nerve center” is in New Jersey, not California. It vacated the Ninth Circuit’s ruling and returned the case to trial court.
Continue reading "Supreme Court Clarifies Diversity Jurisdiction Standard in Wage and Hour Case" »
In a wage-and-hour class action, the Illinois Second District Court of Appeal reversed all parts of a Kane County trial court’s ruling denying class certification. Our Chicago unpaid overtime lawyers were interested to read the ruling in Cruz et al v. Unilock Chicago, Inc., 383 Ill.App.3d 752, 892 N.E.2d 78, 322 Ill.Dec. 831 (2008), because it helped establish that trial courts may go beyond the complaint to determine class certification -- but reminded them that they should not determine class certification on the merits of the case.
Wilfredo Cruz and the four other lead plaintiffs worked at Unilock Chicago’s Aurora manufacturing plant, which makes cement paving “stones.” They were hourly employees with a half-hour lunch break. In their complaint, the plaintiffs said they were required to be at their stations 10-15 minutes before work started, in uniform, to discuss anything the previous shift needed them to know. This required employees to show up 15-30 minutes early to change and get to their stations. Similarly, they say they were required to wait for the next shift to arrive before leaving, brief that shift, clean up and change. They say they punched in for these times, but Unilock had an automatic system that deducted up to 30 minutes before a shift and 15 minutes afterward, in order to meet the company’s labor budget. Furthermore, they claim that Unilock automatically deducted the 30-minute lunch break from their time records, then regularly required them to cut short or work through lunch. If necessary, these deletions would be backed up by a manual edit by the plant’s manager, who removed time before or shifts that went past the 30- or 15-minute defaults.
Unilock disputes much of this. It concedes that time records were manually edited, but said this was necessary because workers forgot to punch in or out, and that edits were confirmed with shift supervisors. This actually added time, it argued. Nonetheless, the plaintiffs sued, claiming that all of these practices resulted in underpayment of both regular time and overtime. Citing violations of the Illinois Wage Payment and Collection Act and the Minimum Wage Law, they moved to certify a class of more than 300 current and former hourly employees who had worked at Unilock’s Aurora plant since June of 1999. The trial court denied this motion for class certification, saying that plaintiffs had failed to meet any of the four standards for class certification. Plaintiffs appealed, arguing that the trial court improperly made findings of fact and rulings that assessed the merit of the claims themselves, rather than of the class certification request.
The Second District agreed. It started its analysis by refereeing the parties’ disagreement about whether courts may consider facts and allegations beyond the complaint in order to determine class certification. After a review of caselaw, the court decided that they can, relying in part on Szabo v. Bridgeport Machines, Inc., 249 F.3d 672 (7th Cir.2001). However, it was careful to say that courts should look into whether the plaintiff’s claim would satisfy the requirements for class certification, not the merits of the claim itself.
The Third next agreed with plaintiffs that the trial court had impermissibly decided several class certification issues on the merits of the case. For example, the trial court relied on depositions and pleadings when it determined that nobody had lost pay because employees who arrived early were permitted to leave early, “accept[ing] as conclusive the defendant’s evidence.” This and other examples are factual determinations that should not be determined at the class certification stage, the appeals court said. Many applied to the numerosity requirement of class certification. Not only were the trial court’s reasons for ruling on numerosity improper, the appeals court said, but evidence submitted by plaintiffs shows that 80 to 90 employees did not receive overtime, and defendants offered nothing in support of their assertion that this evidence was manipulated. For that and other reasons, the appeals court found sufficient evidence that the proposed class met the numerosity requirement.
It then addressed the requirement that class members have common questions to decide, which predominate over other issues in their cases. Again, it found that the trial court was incorrect in determining that these issues didn’t exist. The trial court wrote that there was no commonality or predominance because there was no evidence supporting the plaintiffs’ contentions about widespread unfair policies or time record manipulation. The plaintiffs argued that these conclusions ignored evidence or improperly reached the merits of the claim, and the appeals court agreed. The existence of disputed policies like requirements to work through lunch or editing time records is a common question, the appeals court said, regardless of how strong the evidence for it is at the pretrial stage. It would also be a predominant issue if the trial court determines that there was such a policy -- which is a question for the merits of the claim, the court noted.
Finally, the appeals court rejected the trial court’s determination that the class representatives are inadequate because plaintiff Cruz had been a low-level supervisor. The trial court incorrectly relied on caselaw that isn’t sufficiently similar, the appeals court wrote, to determine that a supervisor cannot represent a class including the supervised. When the supervisor’s interests are the same as those of the supervisees and he or she did not participate in the alleged wrongdoing, it is inappropriate to deny his or her adequacy. Jefferson v. Windy City Maintenance, Inc., No. 96-C-7686, 1998 WL 474115 (N.D.Ill. August 4, 1998). Furthermore, if evidence implicating Cruz arises in discovery, the appeals court said, he can be discharged without discharging all the representatives. Thus, it reversed the trial court on all counts and remanded the case to Kane County circuit court with instructions to certify the class.
Continue reading "Appeals Court Reverses Denial of Class Certification in Unpaid Wages Claim " »
A recent decision by the U.S. Court of Appeals for the District of Columbia caught the attention of our Illinois overtime rights attorneys. In Robinson-Smith v. Government Employees Insurance Co., No. 08-7146 (D.C. Cir. Jan. 5, 2010), more than 200 auto damage adjusters sued auto insurance company GEICO for unpaid overtime. The adjusters claimed that they were incorrectly classified as administrative employees, making them exempt from overtime laws. A federal district court agreed and granted summary judgment to the workers. However, the D.C. Circuit reversed that decision, saying the claims adjusters meet the definition of administrative employees because they exercise “some discretion” on the job.
The case turns on whether the adjusters exercise “discretion and independent judgment with respect to matters of significance,” as required by the Department of Labor definition of an administrative employee. The adjusters claimed they did not have sufficient discretion or independence, in part because they estimate only the price of auto damage and not liability. The trial court agreed, finding that supervisors have to sign off on some of the adjusters’ decisions, and their decisions were largely constrained by GEICO training and standards. But the appeals court opinion, authored by Judge Karen L. Henderson, said it was undisputed that the adjusters exercised at least some discretion. Because the DOL test does not include a requirement for how often that discretion is exercised or whether it’s a primary duty, the judge wrote, some discretion is enough to make the adjusters ineligible for overtime.
The case follows a similar decision from the Ninth Circuit in In re Farmers Ins. Exch., Claims Representatives’ Overtime Pay Litig., 466 F.3d 853 (9th Cir. 2006). That case had very similar facts, and was also overturned at the appeals level by a court that found the definition of “administrative employee” sufficient for claims adjusters. Like that decision, the D.C. Circuit’s decision in Robinson-Smith overturns only a grant of summary judgment for the claims adjusters. This means both sides will still have a chance to prove their claims at trial.
Continue reading "Insurance Adjusters Are Managers Within Meaning of FLSA, Appeals Court Rules" »
As Chicago employee rights attorneys, we were interested to see what may have been the first unpaid overtime filing of 2010 in the U.S. District Court for the Northern District of Illinois. Harris v. Cheddar’s Casual Café, No. 20-cv-0045 (N.D. Ill.) was filed Jan. 5 by three former servers and bartenders who seek to certify a class of current and former employees denied overtime and tips by the Cheddar’s Casual Café chain of restaurants. Plaintiffs Donny Harris, Keith McKinstery and Shaniqua Bell allege that managers at a Cheddar’s in Boilingbrook, Ill shaved time off their timecards and required them to work off the clock in order to avoid paying overtime. They also allege that their tips were diverted to a tip pool that illegally included non-tipped workers.
The complaint in the case says plaintiffs, and other similarly situated workers, were required to clock in and out for their shifts using the chain’s computerized system. They allege that the restaurant, and manager Solomon Tristan, illegally manipulated the timesheets created by that system to remove hours. They also allege that they were encouraged to work before clocking in and after clocking out, further denying them overtime. Furthermore, the plaintiffs say, they were compelled to participate in a tip pool that included the restaurant’s “quality assurance” workers, who they say are not tipped employees. Under federal law, employers may not pay tipped employees less than minimum wage unless they are allowed to keep all their tips, or contribute only to a legal tip pool. Thus, the complaint said, Cheddar’s policies violate the Fair Labor Standards Act.
At Nationwide Consumer Rights, our Wheaton, Ill. overtime attorneys see cases like this frequently. Hourly employees such as waiters and bartenders are regular targets for employers who prefer not to pay all of the wages they owe, and even sometimes to skim their earned tips to pay other employees. This behavior relies on employees to stay quiet, either because they don’t know they have rights or because they’re afraid of punishment for speaking up. However, federal and state law is very clear employees must be compensated for all of their time at work, and paid time and a half for any time over 40 hours in a week. Failure to follow these basic requirements exposes companies to lawsuits seeking all of the back pay owed, attorney fees and any other costs incurred. In cases of egregious law-breaking, courts may also require employers to pay punitive damages -- money intended to penalize willful law-breaking.
Continue reading "Lawsuit Alleges Illinois Restaurant Shaved Hours From Servers’ Timecards" »
The below short video documentary shows that wage theft is a real and growing problem.
In our work as Illinois and nationwide wage and hour attorneys, we frequently see workers who have been misclassified as exempt from overtime. Whether this was an honest mistake or an intentional attempt to save money, it effectively “steals” wages from the misclassified employees. DiTommaso-Lubin stands up for the rights of workers in Chicago, Illinois and throughout the country who are victims of overtime wage theft, including misclassified employees as well as those pressured to work off the clock; lie on timesheets; or simply not paid an overtime rate. Our Oak Brook, Waukegan, Elgin, Warrenville, Highland Park, Lisle, Wheaton, Northbrook, Aurora, Elgin, Evanston, Joliet and Chicago unpaid overtime lawyers handle both individual and class action employment cases. Based in Chicago and Oak Brook, Ill., our Chicago overtime attorneys represent clients throughout Illinois, the Midwest and the United States.
Our Oak Brook, Ill. employee rights attorneys were very interested to see a recent labor lawsuit against telecom giant AT&T. Bloomberg News reported Dec. 17 that two separate units of the company were hit with simultaneous lawsuits Dec. 16 over unpaid overtime. The plaintiffs seek to represent more than 5,000 current and former workers who they say were misclassified as low-level managers, so AT&T would not have to pay them overtime. Each of the two lawsuits seeks $500 million in unpaid overtime, as well as compensation for rest and meal breaks that were allegedly not granted.
According to the article, the employees were classified as “Level One” managers, even though their job duties didn’t meet the federal definition of management positions. They say they worked as many as 60 hours a week, or 10 to 14 hours a day, and were expected to be available on weekends, all without overtime pay. In fact, the Atlanta plaintiffs claim that they were eligible for overtime when they worked for BellSouth, before its acquisition by AT&T. Joe Luque, a lead plaintiff in the San Francisco litigation, said in a press release that he was chewed out when he tried to exercise managerial duties by firing a poor-performing employee. The suits come shortly after a Connecticut federal court certified a class of AT&T workers with similar complaints, in a suit filed by the same law firm.
As Chicago overtime rights lawyers, we’re pleased to see workers standing up for themselves against such a large employer. The right to overtime pay is provided by a federal law called the Fair Labor Standards Act, which requires time and a half for any work above 40 hours a week. This can be very expensive -- so some companies, instead of hiring extra personnel to handle the work, look for ways to break the law. Mis-classifying employees as “managers” with no real management duties is one way to end-run around workers’ rights. Other employers may pressure their employees to work off the clock; work through legally required rest and meal breaks; or shift the extra hours to another week. Unfortunately, far too many workers don’t understand their rights, or are afraid of losing their jobs if they stand up for themselves.
Our Illinois overtime rights lawyers were interested to see a recent ruling on unpaid overtime from the Seventh U.S. Circuit Court of Appeals. In Musch v. Domtar Industries, No. 08-4305 (7th Cir. Nov. 25, 2009), Alan Musch and his colleagues were maintenance workers at two Wisconsin paper mills owned by Domtar Industries. In their lawsuit, they say their job routinely exposes them to dangerous chemicals, requiring them to put on special protective gear before shifts and to shower and change after. They are not paid for the time it takes to do those things, however. They sued for unpaid overtime pay for the showering and changing time, as well as for time spent shaving, a requirement under Domtar company policy.
After the case was filed, Domtar moved for summary judgment dismissing the case. It argued that company policy says workers should shower and change immediately after exposure to a hazardous chemical, even if that means the employee goes into overtime. Because it has that policy, the company argued, overtime compensation was inappropriate. The district court agreed and granted summary judgment for Domtar. After the court declined to reconsider, the plaintiffs appealed both rulings. They argued that the district court missed or ignored evidence showing that chemicals actually were on workers’ skin; that is, they do not shower because they merely think they might have the chemicals. Thus, changing and showering time is appropriate for overtime pay under the Fair Labor Standards Act.
In its analysis, the Seventh Circuit started by noting that the FLSA and Wisconsin law both require employers to pay for all of the work employees do. However, federal law makes a distinction between work and preliminary or postliminary activities. Changing and washing is ordinarily considered preliminary or postliminary, the court wrote, but may sometimes be considered part of the job if it’s “integral” and “indispensable” to the job. The plaintiffs argued evidence showed that they didn’t always realize there were chemicals on their skin until the end of shifts, meaning showering after shifts would be following the company’s stated policy.
The Seventh Circuit disagreed. The plaintiffs’ evidence showed that showers were sometimes necessary, it wrote, but not that the Domtar policy of showering after any exposure was insufficient. Furthermore, the court said, employees admitted to bringing work clothes home to wash them, suggesting that they don’t believe the chemical exposure is that serious. Finally, employees are free to seek overtime under the existing company policy when they are required to shower and change, the Seventh said. Because these are all “normal conditions” under the meaning of the FLSA, the post-shift changing and showering is postliminary activity, not an essential job requirement, the court wrote. Thus, it upheld the trial court’s orders.
Continue reading "Employees Not Entitled to Compensation for Showering Time After Shift" »
In our work as Illinois and nationwide wage and hour attorneys, we frequently see workers who have been misclassified as exempt from overtime. Whether this was an honest mistake or an intentional attempt to save money, it effectively “steals” wages from the misclassified employees. DiTommaso-Lubin stands up for the rights of workers in Chicago, Illinois and throughout the country who are victims of overtime wage theft, including misclassified employees as well as those pressured to work off the clock; lie on timesheets; or simply not paid an overtime rate. Our Oak Brook, Waukegan, Elgin, Warrenville, Lisle, Wheaton, Northbrook, Aurora, Elgin, Evanston, Joliet and Chicago unpaid overtime lawyers handle both individual and class action employment cases. Based in Chicago and Oak Brook, Ill., our Chicago overtime lawyers represent clients throughout Illinois, the Midwest and the United States.
In our work as Illinois and nationwide wage and hour attorneys, we frequently see workers who have been misclassified as exempt from overtime. Whether this was an honest mistake or an intentional attempt to save money, it effectively “steals” wages from the misclassified employees. DiTommaso-Lubin stands up for the rights of workers in Chicago, Illinois and throughout the country who are victims of overtime wage theft, including misclassified employees as well as those pressured to work off the clock; lie on timesheets; or simply not paid an overtime rate. Our Oak Brook, Waukegan, Wheaton, Northbrook, Aurora, Elgin, Evanston, Joliet and Chicago unpaid overtime lawyers handle both individual and class action employment cases. Based in Chicago and Oak Brook, Ill., we represent clients throughout Illinois, the Midwest and the United States.
Our Chicago overtime rights lawyers were interested in a recent wage and hour decision out of the Second Circuit. In Whalen v. J. P. Morgan Chase Co., No. 08-4092 (2nd. Cir. Nov. 20, 2009), a group of loan underwriters sued J.P. Morgan Chase, their employer, for unpaid overtime in a proposed class action. The plaintiffs contended that they were misclassified as administrative employees, because their duties did not meet the federal Department of Labor’s definition of administrative duties. The district court in New York disagreed and granted summary judgment for Chase. But the Second Circuit reversed that judgment, saying loan underwriters cannot be exempt administrative employees because their work furthered Chase’s core business of making loans, rather than helping to run or direct the company.
For four years, plaintiff Andrew Whalen worked for Chase as an underwriter. His job was to evaluate whether to grant loans to individuals, using detailed guidelines provided by Chase. Some underwriters were sometimes permitted to deviate from these standards. Whalen contended that he frequently worked more than 40 hours a week, but Chase classified him as an administrative employee exempt from the overtime provisions of the Fair Labor Standards Act. Whalen eventually sued for a declaratory judgment that Chase violated the FLSA by failing to pay overtime, but Chase prevailed on cross-motions for summary judgment. Whalen appealed.
The Second started by looking at the definition of administrative employees. The federal Department of Labor says administrative work is “directly related to management policies or general business operations” and “customarily and regularly exercises discretion and independent judgment.” Using a variety of documents from the Department on the financial services industry, the court drew a distinction between exempt employees with advisory duties and non-exempt employees who carry out the employer’s day-to-day operations.
Whalen’s job was to sell loans according to Chase’s detailed standards, the court wrote, not to advise customers on which loans to get. This puts the job firmly on the “production” side of Chase’s business, the court wrote, as distinct from management duties or “general business operations” such as human resources. Furthermore, the Second wrote, Chase itself referred to underwriters’ duties as “production” work. In doing so, the court drew a distinction between “production” and “administrative” work supported by its own past decision in Reich v. State of New York, 3 F.3d 581 (2d Cir. 1993) as well as by precedents in the Ninth, Third and First Circuits. Whalen’s job did not met the management/general business operations test set forth by the Department of Labor, the court wrote, which is enough to conclude that he was not a bona fide administrative employee. Thus, the Second Circuit reversed the trial court’s summary judgment decision.
Continue reading "Loan Underwriters Are ‘Production’ Employees Eligible for Overtime, Court Rules" »
The Illinois Department of Labor has a great website which provides alot of useful information on fair labor laws including the requirement that employers pay time and half for overtime work for non-exempt employees.
You can find the website here. With regard to federal and Illinois overtime laws, the website provides answers to various questions and links to other areas of the site for answers:
When is overtime pay legally due?You are entitled to pay at time and one half your regular rate of pay if you worked over 40 hours in a workweek. You will need to ask your employer for their definition of a workweek. For more information, click here. 820 ILCS 105/4a (1) and 56 Ill. Adm. Code 210.400.
Does my employer have to pay me time and one half or double time for working a legal holiday or a Sunday?
No. If working the legal holiday or Sunday puts you over 40 hours in a workweek, then your employer must pay you at time and one half of your regular rate of pay for those hours over 40. However, if your employer’s policy allows for payment of time and one half or double time, then the employer must honor the agreement. For more information, click here. 820 ILCS 105/4a (1).
Who is exempt from being paid overtime?
The following employees are exempt from overtime pay:
Salesmen and mechanics involved in selling or servicing cars, trucks or farm implements at dealerships,
agricultural labor,
government employees,
executive, administrative or professional employees as defined by the Fair Labor Standards Act,
certain employees involved in radio/television in a city with a population under 100,000,
commissioned employees defined by Section 7(i) of the Fair Labor Standards Act,
employees who exchange hours pursuant to a workplace exchange agreement,
employees of certain educational or residential child care institutions.
For further information, click here. 820 ILCS 105/4a (2).How do I know if I qualify as an executive, administrative or professional employee?
The law provides that two tests must be fully met to determine if you are an executive, administrative or professional employee. First, as a general rule, you must be a salaried employee. For definition of salary, see question below. Second, the primary duties you perform must also be exempt. To determine if your primary duties meet the criteria outlined for the executive, administrative or professional employee, click here.
If I am paid on salary do I still qualify for overtime pay?
Possibly. You are paid a salary if you regularly receive each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of your compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. However, an employee being paid on a salary basis is not automatically exempt from receiving overtime pay. The primary duties you perform must also be exempt to disqualify you from overtime pay. For more information, click here.
Can I be required to work overtime?
Yes, unless such work would violate the One Day Rest in Seven Act. For more information on this Act, click here. 820 ILCS 140/2.
Is "comp time" legal?
No. Compensatory time off in place of payment for overtime is not legal in the private sector.
If you believe you might be part of a class of employees forced to work off the clock or have othewise been denied overtime pay, DiTommaso-Lubin may be able to help your pursue your own overtime class action. For a free consultation on your rights as an employee, contact us today.
Our consumer rights private law firm handles individual and class action wage claim and other employee and consumer rights cases that government agencies and public interest law firms such as the Department of Labor may decide not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to employee and consumer fraud and rip-offs, and in the right case filing employee or consumer protection lawsuits and class-actions you too can help ensure that other emploment and consumers' rights are protected from unscrupulous, illegal or dishonest practices.
Our Naperville, Evanston, Aurora, Waukegan, Arlington Heights, Elgin, Elmhurst, Joliet, Elgin, Woodridge, Naperville, Highland Park, Northbrook, Wilmette, Wheaton, Oak Brook, Lombard, Hinsdale and Chicago fair labor and unpaid overtime lawyers and attorneys provide assistance in wage claims, fair debt collection, consumer fraud and consumer and employment rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago area employee rights or consumer protection lawyers who can assist in wage claim, lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other employment, unfair wage, consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.
The United States Department of Labor has an excellent website which provides detailed information on fair labor laws including the requirement that employers pay time and half for overtime work for non-exempt employees.
The website is located here. With regard to federal overtime laws, the website states:
Overtime PayAn employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work. Employees covered by the Fair Labor Standards Act (FLSA) must receive overtime pay for hours worked in excess of 40 in a workweek of at least one and one-half times their regular rates of pay. The FLSA does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, unless overtime hours are worked on such days.
The website contains links to question and answer pages on overtime laws:
FairPay Web Site The Department of Labor has revised and clarified the overtime provisions of the Fair Labor Standards Act. The FairPay site contains helpful fact sheets explaining these changes and also includes the revised regulations and an online training program to make this transition easy for employers and employees.FairPay Fact Sheets By Occupation
Consult these fact sheets for specific information about changes to overtime pay in your occupation.FairPay Fact Sheets By Exemption
Consult these fact sheets for specific information about changes to overtime pay for certain exempt employees.Fact Sheet on the Overtime Pay Requirements of the Fair Labor Standards Act (FLSA) (PDF)
Provides general information concerning the application of the overtime pay provisions of the FLSA."When Is Overtime Due?"
Information about overtime."Is Extra Pay Required For Weekend Or Night Work?"
Additional information about overtime pay."When Is Double Time Due?"
Additional information about overtime pay.Handy Reference Guide to the Fair Labor Standards Act
Answers many questions about the FLSA and gives information about certain occupations that are exempt from the Act.Coverage Under the Fair Labor Standards Act (FLSA) Fact Sheet
General information about who is covered by the FLSA.
If you believe you might be part of a class of employees forced to work off the clock or have othewise been denied overtime pay, DiTommaso-Lubin may be able to help your pursue your own overtime class action. For a free consultation on your rights as an employee, contact us today.
Our consumer rights private law firm handles individual and class action wage claim and other employee and consumer rights cases that government agencies and public interest law firms such as the Department of Labor may decide not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to employee and consumer fraud and rip-offs, and in the right case filing employee or consumer protection lawsuits and class-actions you too can help ensure that other emploment and consumers' rights are protected from unscrupulous, illegal or dishonest practices.
Our Naperville, Evanston, Aurora, Waukegan, Arlington Heights, Downers Grove, Elmhurst, Joliet, Elgin, Highland Park, Northbrook, Wilmette, Wheaton, Oak Brook, and Chicago fair labor and unpaid overtime lawyers and attorneys provide assistance in wage claims, fair debt collection, consumer fraud and consumer and employment rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago area employee rights or consumer protection lawyers who can assist in wage claim, lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other employment, unfair wage, consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.
Our Chicago class action attorneys recently noted that the U.S. District Court for the Northern District of Illinois has conditionally certified a wage and hour class action alleging that Illinois Bell Telephone failed to pay overtime to its hourly employees. In Russell v. Illinois Bell Telephone Co., 08 C 1871 (filed April 1, 2008), Constemecka Russell alleges that Illinois Bell regularly required her and other hourly employees to work off the clock, and sought to conditionally certify these employees as a class and notify them of the action. Several of her colleagues have joined and submitted affidavits supporting her allegations. The case is pending, but the judge granted those motions Sept. 15 over most of Illinois Bell's objections.
U.S. District Judge Matthew Kennelly's opinion granting certification and notice repeats many of Russell's allegations about the unpaid overtime. Russell worked in sales for the company at a call center, and she alleges that she was paid only for time she spent logged into the call center's computer system. However, there were certain work tasks that she had to perform without being logged in, during lunch and rest breaks, including tasks like filling orders as well as time spent logging onto the computers and opening software programs. She estimated that she spent between 15 minutes and an hour per day doing this unpaid work, which sometimes would have entitled her to overtime.
In response to Russell's request for class certification and notice, Illinois Bell argued that class certification is inappropriate because it doesn't use the phone system to keep time, and thus there is no common policy or practice linking the proposed plaintiffs. The court was unimpressed by this argument. It pointed to multiple assertions by Russell that company practice was to require unpaid work before and after time on the phone, as well as affidavits by joining plaintiffs stating that managers explicitly instructed them to work off the clock. It also dismissed arguments that written policies were evidence that Illinois Bell complied with the law.
Illinois Bell also took issue with the notice Russell proposes to send potential plaintiffs, arguing that including the names of the judges involved might mislead recipients into thinking the judge endorses this lawsuit. The court dismissed this argument, pointing out that the letter is not on court letterhead, contains no judicial signatures and in fact contains an explicit disclaimer that the court has not taken a position in the case. Illinois Bell also objected to Russell's request for telephone numbers and partial Social Security numbers of potential plaintiffs, arguing that both privacy and the Illinois Rules of Professional Conduct bar their release. The judge agreed with respect to the Social Security numbers, but granted the telephone numbers, saying the interest in locating class members outweighs privacy concerns about home telephone numbers.
In the Sept. 15 ruling, the district judge granted only conditional certification; the court may choose to revoke certification if it believes the assembled class of plaintiffs isn't similar enough. That decision is pending, and as experienced Chicago class action lawyers, we know it is not likely to happen quickly. If you believe you might be part of a class of employees also forced to work off the clock, DiTommaso-Lubin may be able to help your pursue your own overtime class action. For a free consultation on your rights as an employee, contact us today.
