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Jonites v. Exelon Corp.

October 4, 2006

PETER JONITES, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ET AL., PLAINTIFF,
v.
EXELON CORPORATION, A PENNSYLVANIA CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Before this Court is Plaintiffs' motion to facilitate notice to the plaintiff class and to certify plaintiff class. For the reasons set forth below, Plaintiff's motion for class certification is GRANTED for the class specified. Plaintiffs' notice to the plaintiff class should be resubmitted with appropriate changes for court approval.

I. FACTS

Plaintiffs, Jonites et al., are hourly employees of Defendants, Exelon Corporation et al., responsible for maintaining and repairing Defendants' power facilitating structures, transmission lines, and generating facilities throughout northern Illinois. The named Plaintiffs are past and present employees of Defendants who worked as "lineman" and/or repairmen for the benefit of the Defendants. Plaintiffs worked in various locations within Illinois and have different job classifications. Plaintiffs were subjected to Defendant's "Automated Roster and Call-Out System" ("ARCOS") or a "predecessor call out system."

ARCOS consists of a computerized, automated telephone call-out system that allows Defendants to notify employees at any time that they are required to work outside of scheduled work hours. Prior to the implementation fo ARCOS, employees were required to remain on call and respond to a minimum number of call-outs under predecessor call-out systems. ARCOS requires employees, unless otherwise excused, to respond to varying minimum percentages of calls from Defendants, depending on the purported nature of the call.

Plaintiffs claim that all employees under ARCOS or predecessor call-out systems suffer the exact same pay practice violations, including inadequate compensation for time spent on-call and time spent traveling in response to a call out, improper compensation for pay and shift differentials, and improper calculations of the regular rate and overtime for time spent on a call-out.

If an employee does not respond to the required number of ARCOS call-outs he or she will first receive a letter of warning. Plaintiffs allege that thereafter, an employee who does not meet Defendants' call-out expectations will receive one, three and five day suspensions from work privileges, and will finally be discharged.

Plaintiffs claim that "the effect of the ARCOS system and predecessor call-out systems is that all employees subject to receiving a call-out are effectively precluded from engaging in any activity outside of work that would hinder their ability to immediately respond to ARCOS call-outs." Plaintiff's Third Amended Complaint ¶13. Plaintiffs claim employees must stay close to the telephone in case there is an ARCOS call-out. Plaintiffs are allowed to give alternative contact numbers, including personal or company cell-phones, and were offered company pagers at no cost. Nonetheless Plaintiffs claim they cannot engage in family, social, or other personal activities. Plaintiffs allege that employees "perpetually lie in wait to be called upon at any time to respond to a mandatory call out." Id. at ¶ 15.

When Plaintiffs respond to call-outs, they are required to travel directly from where they received the call to their designated work site. Defendants do not compensate employees for travel time in response to such mandatory call-outs. Defendant give Plaintiffs a "two-hour allowance", where Plaintiffs have two hours to report to work if he or she accepts a call-out. Defendants do not include this two-hour call-back allowance in Plaintiff's regular rate prior to calculating overtime for a given pay period.

Plaintiffs are regularly required to work on weekends, including times outside their regular shift. Plaintiffs contend that Defendants have not calculated their overtime pay with the required pay differentials for weekend and Sunday work hours. Plaintiffs further allege that they are often required to perform work for the benefit of the Defendants, such as safeguarding Defendants' equipment during and through their meal periods, for which they are not compensated.

Plaintiff files suit under the Fair Labor Standards Act ("FLSA"), the Illinois Wage Payment Collection Act, and the Illinois Minimum Wage Law, for alleged wage and overtime violations and unlawful retaliation. Plaintiffs' complaint, originally filed in State Court, was removed to the United States District Court, Northern District of Illinois on July 22, 2005. Plaintiffs now move for class certification and for facilitation of notice to the plaintiff class.

II. ANALYSIS

FLSA

The FLSA allows for representative plaintiffs to bring a collective action on behalf of themselves and "other similarly situated employees." 29 U.S.C. §216(b). Determination of FLSA collective action certification is subject to a two-step inquiry. Thiessen v. GE Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001) (see also Forney v. TTX Co., 2006 U.S. Dist. LEXIS 30092 (D. Ill. 2006); Gambo v. Lucent Techs., Inc., 2005 U.S. Dist. LEXIS 37998 (D. Ill. 2005). The Seventh Circuit has not addressed this issue. While this court is not bound by the decision of other circuits, it does give due weight to their reasoning. Fuller v. Skornicka, 79 F.3d 685, 687 (7th Cir. 1996). We find the Tenth Circuit approach reasonable and, like other district courts, use the approach in our analysis. Step one requires that the plaintiffs make a "modest showing that similarly situated employees exist. Thiessen v. GE Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001). Upon meeting this requirement, plaintiffs are authorized to send notice to potential claimants, who may opt-in by filing a written consent. The Tenth Circuit has held that this "requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Id. Step two, which typically occurs after discovery, allows the defendant to move to deny certification of collective action on more substantive grounds. Id. Plaintiffs ...


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