The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION AND ORDER
This case involves allegations that defendant Encotech Construction
Services, Inc., failed to pay hourly employees any wages for alleged work
time (preparation, travel, and cleanup) before and after the period of
the workday that Encotech considered to be compensable time. Also named
as a defendant is Howard Frank ("Frank"), the corporate officer who
manages Encotech's day-to-day operations and the husband of Encotech's
sole shareholder. The failure to pay wages is claimed to be a violation
of the employees' contract, federal wage law, and Illinois statutory law.
The Second Amended Complaint contains four counts. Count I is a claim
under the Illinois Minimum Wage Law ("IMWL") asserting that the failure
to pay any wages for particular work time violated minimum wage
requirements of 820ILCS 105/4 and overtime requirements of 820 ILCS
105/4a. Count n is a claim for unpaid wages under the Illinois Wage
Payment and Collection Act ("IWPCA"), 820 ILCS 115/1, et seq. Counts LI
and IV are Fair Labor Standards Act ("FLSA") claims for failure to pay
minimum wage and overtime in violation of 29 U.S.C. § 206-07. Count IV
alleges that the FLSA violations were willful.
As to the Counts III and IV FLSA claims, there is an "opt-in" class
consisting of seven named plaintiffs. See 29 U.S.C. § 216(b); King v.
General Electric Co., 960 F.2d 617
, 621 (7th Cir. 1992); Floras v. Lifeway
Foods. Inc., 289 F. Supp.2d 1042, 1043-45 (N.D. III. 2003). As to the
Count I and n state law claims, a Fed.R.Civ.P. 23(b)(3) class has been
certified that has approximately 45 members. See O'Brien v. Encotech
Construction Services. Inc., 203 F.R.D. 346, 350-53 (N.D. Ill. 2001)
("O'Brien I"). The class is defined as:
All hourly paid persons who received a check from
Encotech Construction Services, Inc. for hours
worked in any work week during the time period
February 1, 1997 through the present.
Id. at 352.*fn1
Presently pending are the parties' cross motions for partial summary
judgment. Plaintiffs contend that, as to all counts, they are entitled to
summary judgment as to liability for the time period from January 28,
1997 through January 31, 2000. Defendants contend they are entitled to
summary judgment (a) dismissing all claims for minimum wage; (b)
dismissing any claim for work after Encotech changed its compensation
policy in May 2000; (c) dismissing state law claims as preempted; (d)
dismissing the Count IV willful FLSA violation claim (which would limit
the statute of limitations to a two-year period); and, alternatively, (e)
dismissing the prayer for punitive damages as to the IMWL claim. The
parties do not attempt to resolve questions regarding the particular
uncompensated tune worked by particular employees. The
arguments instead focus on which categories of alleged work time
are compensable under the federal and state statutes that plaintiffs
I. Summary Judgment Facts
On a motion for summary judgment, the entire record is considered with
all reasonable inferences drawn and all factual disputes resolved in
favor of the nonmovant. Turner v. J.V.D.B. & Associates. Inc.,
330 F.3d 991, 994-95 (7th Cir. 2003); Palmer v. Marion County, 327 F.3d 588,
592 (7th Cir. 2003); Abrams v. Walker. 307 F.3d 650, 653-54 (7th Cir.
2002). The burden of establishing a lack of any genuine issue of material
fact rests on the movant. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.
2001); Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The
nonmovant, however, must make a showing sufficient to establish any
essential element for which the nonmovant will bear the burden of proof
at trial. Celptex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Binz v.
Brandt Construction Co., 301 F.3d 529, 532 (7th Cir. 2002); Traylor v.
Brown. 295 F.3d 783, 790 (7th Cir. 2002). The movant need not provide
affidavits or deposition testimony showing the nonexistence of such
essential elements. Celotex, 477 U.S. at 324. Also, it is not sufficient
to show evidence of purportedly disputed facts if those facts are not
plausible in light of the entire record. See NLFC. Inc. v. Devcom
Mid-America. Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104
(1995); Covalt v. Carey Canada. Inc., 950 F.2d 481, 485 (7th Cir. 1991);
Collins v. Associated Pathologists. Ltd., 844 F.2d 473, 476-77 (7th
Cir.), cert. denied. 488 U.S. 852 (1988).
Except where noted, the following facts are undisputed and therefore
taken as true for both parties' summary judgment motions. Plaintiffs are
current or former employees of Encotech who are paid on an hourly basis,
uncotech is in the business of cutting concrete. Defendant Frank is the
chief executive officer and secretary-treasurer of Encotech. Frank's
wife, Diane Frank, is the president and sole shareholder of Encotech.
Diane Frank attends annual meetings but is not involved in the day-to-day
operations of Encotech. Defendant Frank is solely responsible for
establishing and implementing Encotech's pay practices.
Prior to May 2000, Encotech's practice was not to pay employees for
time at the beginning of a workday driving from Encotech's yard to a job
site nor for time at the end of the workday driving from a job site back
to Encotech's yard. There was an exception for travel time of more than
one hour; for employees who operated bobcats or a truck that dumps
concrete;*fn2 and for laborers*fn3 who unloaded debris at the end of
the day. As to the more than one hour exception, employees were paid only
for time in excess of one hour, and the time was measured by the expected
travel time, not the actual travel time that may have resulted from
traffic conditions. These compensation rules applied even if the employee
performed some or all of the following tasks at the yard prior to
traveling to a job site: picking up work orders; filling water tanks on a
work truck; hooking up trailers needed for work; safety and operational
checks on the work vehicles; and minor repairs on work vehicles.*fn4
These rules also applied even if the employee performed some or all of
the following tasks at the yard after returning to the yard from a job
site: unhooking trailers; cleaning up equipment; completing paperwork;
and turning paperwork in at the office.*fn5 It is undisputed that some
or all of the named plaintiffs and class members at some time during the
relevant time period performed such tasks and were not compensated for
their preparation, travel, and cleanup time.
In May 2000, after this lawsuit was filed, Encotech changed its policy
to pay for travel time.*fn6 Encotech began paying the previously
uncompensated travel time at $5.15 per hour,
the minimum wage. It subsequently changed its policy to pay $10.00
per hour if the employee worked less than 40 hours that week and $15.00
per hour if the employee worked more than 40 hours that week. It is still
Encotech's practice to pay these rates for travel time rather than the
higher hourly rates provided for in the applicable collective bargaining
Employees had the option of filling water tanks at the yard or at the
job site. However, if a job site did not have water, it was necessary to
fill water tanks at the yard. Employees were sometimes required to pick
up work orders and cutting bits at the yard before going to the travel
site. Necessary supplies had to be loaded in the trucks before leaving
for the job site. Not keeping equipment clean could be a ground for
discipline. Employees were never instructed they could not do preparation
work at the yard prior to leaving for the job site. Helpers generally
traveled to job sites and back to the yard with operators, but were not
required to do so. Operators were expected to unload debris at the yard.
Laborers were paid half an hour to dump the debris. A factual dispute
exists as to whether operators were paid if they assisted in dumping the
debris. On Wednesdays, employees customarily returned to the yard at the
end of the workday to get their paychecks and pick up supplies (e.g.,
masks) that they used in their work.
Factual disputes exist regarding how frequently employees performed
preparation and cleanup work at the yard, as well as how often it was
necessary to do such work at the yard instead of taking the opportunity
to do so while on the job site and being compensated. It is undisputed
that paperwork was supposed to be completed at the job site; it was not
necessary to wait until returning to the yard to complete it. It is
undisputed that employees typically arrived at the yard between 15 and 30
minutes before they had to be at the job site. Plaintiffs do not contest
Frank's estimation that, on average, employees had an hour a day of
uncompensated travel time.
Prior to the filing of this lawsuit in January 2000, most trucks were
parked in the Encotech yard at night. Sometimes employees parked the
trucks at home. Such employees were not paid to drive the trucks between
their homes and job sites. Even if an employee drove a truck from his or
her home to the yard to pick up other employees before going to the job
site, the employee was not compensated for his or her travel time. The
same was true if a driving
employee dropped other employees off at the yard before taking the work
vehicle to be parked at home. Employees who filled work truck water tanks
at home before driving directly to the job site were not compensated for
travel and preparation time.
Beginning September 11, 2001, employees parked the trucks in the yard
and the trucks were unloaded by others.
During the pertinent time period, Encotech rules regarding compensation
for preparation, travel, and cleanup time were not in writing. Records
generally were not kept as to the amount of uncompensated travel time and
records were not kept as to when employees did preparation or cleanup.
During the time period in question, named and class plaintiffs were
members of at least five different unions. Most plaintiffs were
represented by the Construction and General Laborers' District Council of
Chicago (the "Union").*fn7 The "Joint Agreement" with the Union, which
is a multi-employer collective bargaining agreement, was in effect from
June 1, 1998 until May 31, 2001. From June 1998 through May 2000, hourly
wages under the Joint Agreement were between $23.65 and $27.80 per hour,
except that apprentices ...