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02/02/96 JUDITH DANIELS AND MYRTLE ROWAN v. BOARD

February 2, 1996

JUDITH DANIELS AND MYRTLE ROWAN, INDIV. AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED CAREER SERVICE EMPLOYEES, PLAINTIFFS-APPELLANTS,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLARD J. LASSERS, JUDGE PRESIDING.

The Honorable Justice McNAMARA delivered the opinion of the court: Zwick, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Mcnamara

The Honorable Justice McNAMARA delivered the opinion of the court:

Plaintiffs Judith Daniels and Myrtle Rowan appeal the dismissal of their complaint seeking compensation for vacation days accrued but not taken during their former employment with the defendant Board of Education of the City of Chicago. Plaintiffs brought their complaint pursuant to section 5 of the Illinois Wage Payment and Collection Act. 820 ILCS 115/5 (West 1992). Defendant moved to dismiss for lack of subject matter jurisdiction. Defendant argued that plaintiffs, as members of a collective bargaining agreement, were obligated to exhaust their remedies under that agreement before instituting a court action for accrued vacation pay. The trial court granted defendant's motion to dismiss. We reverse and remand.

Plaintiffs were among a group of career service employees for the Board of Education (the Board) who were terminated from employment on October 8, 1992. In 1993, plaintiffs filed a two-count complaint against the Board. Count I sought to represent the class of similarly situated employees who had also lost their jobs due to a reduction in force in October 1992. Count II sought compensation for accrued vacation days not taken by plaintiffs prior to their termination from employment.

In count II, plaintiffs alleged that they were members of a collective bargaining agreement that provided for paid vacation days during the Christmas and spring recesses. Plaintiffs further alleged that the Wage Payment and Collection Act (the Wage Payment Act) requires the payment of final compensation, including accrued vacation time, to terminated employees. 820 ILCS 115/5 (West 1992). According to plaintiffs, defendant refused to pay plaintiffs the monetary value of their accrued vacation at the time of their termination in violation of the Wage Payment Act.

In count II, plaintiffs relied on the following section of the Wage Payment Act:

"Final compensation -- Vacation Pay -- Time for payment

ยง 5. Every employer shall pay the final compensation of separated employees in full, at the time of separation, if possible, but in no case later than the next regularly scheduled payday for such employee. ***

Unless otherwise provided in a collective bargaining agreement, whenever a contract of employment or employment policy provides for paid vacations, and an employee resigns or is terminated without having taken all vacation time earned in accordance with such contract of employment or employment policy, the monetary equivalent of all earned vacation shall be paid to him or her as part of his or her final compensation at his or her final rate of pay and no employment contract or employment policy shall provide for forfeiture of earned vacation time upon separation." 820 ILCS 115/5 (West 1992).

Plaintiffs also quoted the following language from the article of their collective bargaining agreement entitled "Vacations" and attached the section as an exhibit to their complaint. Article 43-1 of the agreement provided in pertinent part:

"Vacation pay shall be computed on the basis of the following formula:

a. Christmas recess pay for 1990 shall be computed from the number of days an employee was on the payroll from April 30, 1990 through November 23, ...


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