The opinion of the court was delivered by: Levin, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
At issue before the court are Plaintiffs', Frank Hardrick
("Hardrick"), Francois D. Seets ("Seets"), Andres M. Smith
("Smith") and William Shannon ("Shannon") (hereinafter known
collectively as "Plaintiffs"), Motion for Summary Judgment and
Defendant's, Airway Freight Systems, Inc. ("Airway"),
Cross-Motion for Summary Judgment. For the reasons set forth
below, Plaintiffs' motion is granted and Defendant's motion is
This is an action pursuant to the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201, et seq. Defendant is an employer
within the meaning of the FLSA § 3(d), 29 U.S.C. § 203(d) and an
enterprise engaged in commerce within the meaning of FLSA §
3(s)(1)(A), 29 U.S.C. § 203(s)(1)(A). At all times material,
Airway's operations have been covered by the minimum wage and
overtime provisions of the FLSA. (Pl.12(M), ¶ 2; Def. 12(M), ¶
Plaintiffs are former employees of Airway, all of whom were
paid on an hourly rate. During the course of their employment,
there were numerous workweeks during which Plaintiffs worked for
Defendant in excess of forty hours. (Pl.12(M), ¶ 12.) Plaintiffs
were compensated at their regular hourly rate of pay for all
hours they worked over forty in such workweeks. (Pl.12(M), ¶ 15;
Def. 12(M), ¶¶ 15, 22, 28, 31.)
Airway, through its president Ken Campbell ("Campbell"),
informed Plaintiff Hardrick, who in turn informed the other
Plaintiffs, that overtime (more than forty hours in one workweek)
was not required in order to complete their duties and that no
"overtime" would be paid. (Pl.12(M), ¶ 13.) In other words, in
Airway's view, Plaintiffs' duties were such that they could have
been completed during a regular forty-hour workweek. Campbell
further informed Plaintiffs that if they wished to work overtime,
they could do so with the understanding that they would only be
paid at a rate equal to their regular hourly rate. (Pl.12(M), ¶
14.) The basis for Defendant's policy of paying Plaintiffs their
regular hourly rate of pay for hours worked over forty is that it
did not require overtime and allowed overtime only if employees
agreed to receive their regular hourly rate for such hours
worked. (Pl.12(M), ¶ 17.)
Airway did not do any investigation as to whether its policy
relating to payment for overtime hours was legal under the
provisions of the FLSA. (Pl.12(M), ¶ 19.) Campbell did not
consult with an attorney to determine if such an agreement
between the employees and himself, whereby the employees would
earn their regular
rate of pay for hours worked in excess of forty, was legal.
(Pl.12(M), ¶ 21.)
Hardrick worked a total of 1535.75 overtime hours during the
course of his employment. Seets worked a total of 25.5 overtime
hours during his employment. Smith worked 23.5 overtime hours
during his employment. Shannon worked a total of 375.75 overtime
hours during the course of his employment.
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). Once the moving party has produced
evidence to show that it is entitled to summary judgment, the
party seeking to avoid such judgment must affirmatively
demonstrate that a genuine issue of material fact remains for
trial. LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th
In deciding a motion for summary judgment, a court must "review
the record in the light most favorable to the nonmoving party and
to draw all reasonable inferences in that party's favor."
Vanasco v. National-Louis Univ., 137 F.3d 962, 964 (7th Cir.
1998). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nevertheless, the
nonmovant may not rest upon mere allegations but "must set forth
specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). See also LINC, 129 F.3d at 920. A genuine
issue of material fact is not shown by the mere existence of
"some alleged factual dispute between the parties," Anderson,
477 U.S. at 247, 106 S.Ct. 2505, or by "some metaphysical doubt
as to the material facts," Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). Rather, a genuine issue of material fact exists only if
"a fair-minded jury could return a verdict for the [nonmoving
party] on the evidence presented." Anderson, 477 U.S. at 252,
106 S.Ct. 2505.
II. THE FAIR LABOR STANDARDS ACT DOES NOT PERMIT THE AGREEMENT
BETWEEN PLAINTIFFS AND DEFENDANT.
Plaintiffs contend that the United States Supreme Court has
consistently held that FLSA rights cannot be waived and that
"[t]he duty to pay overtime in conformity with the FLSA is a
reflection of Congressional policy by which employees are
protected in spite of agreements and/or other actions that would
normally be a defense ...