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Arrez v. Kelly Services

October 29, 2007

ESTELLA ARREZ AND ERICA ALONSO, ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED, KNOWN AND UNKNOWN, PLAINTIFFS,
v.
KELLY SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Plaintiffs Estella Arrez and Erica Alonso (hereinafter, the "Plaintiffs"), bring this action under the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq. (the "IWPCA") and the Illinois Day and Temporary Labor Services Act, 820 ILCS 175/1 et seq. (the "IDTLSA"), on behalf of themselves and other persons who are or have been employed by Kelly Services, Inc. (hereinafter, the "Defendant" or "KSI") as temporary employees in Illinois and who (1) left Defendant's employ at any time during the five years prior to the filing of this action and who were not paid all earned vacation pay as part of their final compensation and/or (2) have been employed by Defendant at any time during the five years prior to the filing of this action and who have not been paid all earned holiday pay. Plaintiffs also allege that KSI failed to provide proper Wage Payment and Notice required by the IDTLSA, 820 ILCS 175/30. Defendant KSI has moved to dismiss the Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

Plaintiffs originally brought this action in state court, and Defendant removed to this Court pursuant to 28 U.S.C. §§ 1332 and 1441. Under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), this Court has jurisdiction over this action because the "matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs," 28 U.S.C. § 1332(d)(2), and at least one member of the proposed class is a citizen of a State different from Defendant KSI.

For the following reasons, Defendant's motion is denied.

I. BACKGROUND

The Court derives the following facts from the pleadings, including all attached documents. The Court resolves all reasonable inferences and factual conflicts in Plaintiffs' favor. Though the complaint contains class allegations, no class has yet been certified. Thus, the Court limits its discussion to the allegations of the named Plaintiffs.

At least since June 2003, when Plaintiff Alonso became employed with KSI, KSI has maintained a "Vacation Benefit Plan" for its temporary employees. This vacation pay policy provides, in relevant part:

To qualify for a vacation benefit payment, you must meet all of the following criteria:

* Work, and be paid for, 1,500 hours within the vacation benefit year. These hours must appear on paychecks dated from January through December.

* Be an active Kelly employee at the end of the vacation benefit year (i.e., receive a paycheck dated in December). . . .

A vacation benefit payment will be issued automatically in January of the following year. It will be equivalent to 40 hours at your average pay rate for the year. Do not record vacation hours on your time card or other timekeeping systems. . . .

The Vacation Benefit Plan may be cancelled or modified at any time at the discretion of Kelly Services.

Def.'s Mem. in Support of its Mot. to Dismiss ("Def.'s Mem."), Ex. A. At least since December 2005, when Plaintiff Arrez became employed with KSI, KSI has maintained a "Holiday Benefit Plan" for its temporary employees. This holiday pay policy provides, in relevant part:

You may be eligible for as many as six paid holidays per year: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.

To qualify for a holiday benefit payment, you must meet all of the following requirements:

* Work, and be paid for, 960 hours during the 26 weeks immediately prior to the holiday. . . .

* Work, and be paid for, 30 hours during the week immediately prior to the holiday week. For New Year's Day, however, work, and be paid for, 30 hours during the week immediately prior to Christmas Day.

* Be available to work during the holiday week.

A holiday benefit payment will be issued automatically the week following the holiday. It will be equivalent to eight hours to your current pay rate. Do not record holiday hours on your time card or other timekeeping systems.

The Holiday Benefit Plan may be cancelled or modified at any time at the discretion of Kelly Services.

Def.'s Mem., Ex. B. Defendant KSI maintained these vacation and holiday pay policies, or substantially similar policies, for at least five years prior to the filing of this action.

Plaintiff Arrez was employed by KSI from approximately December 2005 to October 2006. She was employed as a temporary worker, assigned to work as a laborer at a third-party client company, paid on an hourly basis, and treated as an employee for purposes of KSI's vacation and holiday policies. Arrez worked more than 1,500 hours for KSI in 2006, but, in accordance with KSI's Vacation Benefit Plan, she did not receive a vacation payment for her hours worked during calendar ...


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