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05/04/87 Jeffrey Haynes, v. Tru-Green Corporation

May 4, 1987

JEFFREY HAYNES, PLAINTIFF-APPELLANT

v.

TRU-GREEN CORPORATION, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

507 N.E.2d 945, 154 Ill. App. 3d 967, 107 Ill. Dec. 792 1987.IL.583

Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. GREEN and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Plaintiff sued his former employer, Tru-Green Corporation (Tru-Green), for unpaid overtime, liquidated damages, attorney fees, and costs under the provisions of the Fair Labor Standards Act of 1938 (29 U.S.C. sec. 201 et seq. (1982)). He also sought recovery under sections 4a and 12 of the Minimum Wage Law (Ill. Rev. Stat. 1985, ch. 48, pars. 1004a, 1012). The trial court found for defendant. Plaintiff appeals. First, he argues that the trial court erred in finding that his overtime compensation complied with section 778.114 of the regulations of the Wage and Hour Division of the Department of Labor interpreting the FLSA (regulations). (29 C.F.R. sec. 778.114 (1986).) Second, he argues that the trial court erred in finding that his overtime compensation complied with section 4a of the Minimum Wage Law.

We affirm.

Tru-Green is a Michigan-based, lawn-care specialty firm which has offices in Michigan, Ohio, Wisconsin, Minnesota, and Illinois. Michael Almli testified that he worked for Tru-Green from 1978 until the last day of April in 1984. Tru-Green first employed him as a lawn-care specialist. In 1980, he became manager at the Champaign, Illinois, outlet. He explained the compensation system to his employees and filled out all time sheets. Almli hired plaintiff as a lawn-care specialist in April 1982. The employee compensation plan which Tru-Green started using in 1980 was then in effect.

Almli stated that plaintiff was a salaried employee. He told plaintiff that his salary divided by 52 was his weekly guaranteed salary, whether he worked one hour or 40 hours. He also told plaintiff that overtime was required and during the season, he could expect to work 50 to 70 hours per week. Defendant would receive his weekly guarantee in a regular workweek of 40 hours. He would earn overtime for hours over 40. Almli stated that he also told plaintiff he could probably work less than 40 hours in the winter, with the same salary. Plaintiff never worked under 40 hours per week.

Almli further stated that he explained to plaintiff the method by which the overtime was calculated. At first, he told plaintiff the yearly salary would be divided by 52 to achieve a weekly salary. This salary would then be broken down into an hourly wage. One-half of the hourly wage was the overtime rate, and the more overtime hours worked, the less money would be paid for the overtime. Almli agreed that he told plaintiff the overtime rate was one-half of the regular hourly wage. Additionally, Almli told plaintiff that for the first 40 hours of an overtime week, he would receive his salary divided by 52. Almli did not tell plaintiff that the hourly rate for the first 40 hours would change, depending upon the number of hours he worked in a week. He thought the hourly rate for the first 40 hours always stayed the same.

Almli further stated that when he checked plaintiff's gross wages using this method, he discovered that plaintiff was receiving less than he had calculated. The size of the discrepancy depended upon the number of overtime hours worked. In March 1983, Almli called the Tru-Green corporate offices and talked to the assistant comptroller. The compensation plan was explained to Almli again. The explanation yielded this formula:

Yearly Salary/52/Total hours worked x 1/2 = Overtime compensation rate x number of overtime hours = overtime pay

(29 C.F.R. sec. 778.114 (1986).) A table printed by the Federal government explaining the overtime-compensation method was posted on the office wall during plaintiff's employment. The back of the table was not posted.

Almli further stated that he again told plaintiff how the overtime was calculated in March of 1983. He explained to all employees because they had questioned the amount of overtime pay. He asked plaintiff if he understood. Almli stated that he believed none of the employees grasped the method of calculating overtime. He never told plaintiff that his regular rate for the first 40 hours would be determined by dividing the weekly guarantee by the total hours ...


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