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To Preserve Your Class Numbers, File Those Class-Certification Motions ASAP!

DiTommaso-Lubin is a litigation firm with many local clients in the Chicago-land area. Our Oak Park wage and hour attorneys recently came across an interesting case about a class-action filed in the circuit court of Cook County. Lewis v. Giordano’s Enterprises Inc. pits Plaintiff Mina Lewis, an hourly employee, against her former employer, Giordano’s, who owns and operates multiple restaurants in the Chicago metro area. The lawsuit alleged violations of the Illinois Minimum Wage Law (IMWL) and the Illinois Wage Payment and Collection Act (IWPCA) for Defendants’ automatic deduction of $0.25 per hour in exchange for making food and drink available to working employees.

This particular opinion was rendered by the Appellate Court of Illinois First District, Third Division in response to an interlocutory appeal filed by the Plaintiff. For those readers unfamiliar with legal jargon, an interlocutory appeal is a way for a party to appeal a specific issue in an ongoing case. Normally, a party must wait for a decision by the trial court before bringing an appeal to an appellate court.

In Lewis v. Giordano, the Plaintiff moved for class certification in early 2007 and the hearing on the matter was scheduled for November 14th of that year. Defendants then filed for and received several extensions of time to delay the trial court from ruling on the class certification question. Defendant obtained leave of the court initially because they had retained additional counsel shortly before the hearing date, and won a second motion to delay the ruling because of ongoing settlement discussions.

Plaintiff discovered later that during the time period after moving for class certification, Defendants obtained signed releases from employees that absolved Giordano’s of all liability arising out of the wage violations alleged in Plaintiff’s complaint. Defendants incentivized the employees to sign the release by offering them a one-time payment of ten dollars. Upon discovery of this information, Plaintiff filed a motion to prevent Defendants from obtaining any more releases and informed the trial court that there had been no good faith settlement negotiations during the time period that Defendants’ filed their motions to delay the class certification hearing. Plaintiffs also requested that the court declare all of the releases void as a matter of law. The trial court partially granted Plaintiff’s motion by enjoining Defendants from obtaining any more releases and declaring the releases obtained after the November 14th hearing date to be void. Plaintiff then filed the interlocutory appeal to the Appellate Court to have the releases signed prior to November 14th voided as well.

The Court reviewed the issue de novo to determine whether releases of claims from putative class-members obtained by an employer while a motion for class certification has been filed but not yet ruled upon are void as a matter of Illinois law. Upon review, the releases signed by employees whose wages dropped below the minimum wage rate because of the $0.25 deduction were expressly void under section two of the IMWL. The remaining releases obtained after Plaintiff filed her motion for class certification were declared void as well. The Court reasoned that public policy dictated that once a motion for class certification is filed, a defendant employer may not solicit or accept releases from putative class-members.

Lewis is a boon for potential wage and hour litigants, and serves as an inducement to Plaintiffs and their attorneys to get on the ball after filing a class action wage and hour lawsuit. The lesson here is straightforward; an experienced and prudent Aurora wage and hour attorney can prevent a Defendant from obtaining releases that will erode the number of potential class members by promptly filing a motion to certify the class after filing suit.


DiTommaso-Lubin has a team of attorneys who focus on nationwide class action lawsuits and who have successfully handled many large wage and hour disputes. Our Chicago, Barrington, and Elgin overtime lawyers are intimately familiar with the issues that arise during wage claim litigation, and we know the laws that govern overtime cases well. We pride ourselves on our ability to provide outstanding representation and client service at a reasonable cost. While DiTommaso-Lubin is based in Chicago, we represent clients across the country who have not been paid their earned overtime wages. If you believe that you are owed overtime wages, contact one of our Chicago wage and hour attorneys by phone at 1 (877) 990-4990, or through our online form.