Chicago Business Litigation Lawyer Blog

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.

Continue reading "Employees File Proposed Class Action Accusing AT&T of Misclassifying Them -- Our Chicago Overtime Attorneys Bring Class Action Wage Lawsuits in Illinois and Across the Country" »

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 Pay

An 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.