Federal District Court Certifies Class in Overtime Class Action Lawsuit



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, Lubin Austermuehle 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.

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