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Amador v. Guardian Installed Services

September 8, 2008

PRISCILIANO AMADOR, GUSTAVO S. QUILES, AND GLAFIRO SANCHEZ, PLAINTIFFS,
v.
GUARDIAN INSTALLED SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Defendant Guardian Installed Services, Inc. ("Guardian") has moved for summary judgment on plaintiffs' amended complaint, which alleges failure to pay overtime wages at the rate of one and one-half times the regular rate of pay in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a), and the Illinois Minimum Wage Law ("IMWL"), 820 ILL. COMP. STAT. 105/4a.

The amended complaint also alleges an unspecified claim under the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILL. COMP. STAT. 115/11(c), which simply enumerates the powers of the Department of Labor to investigate and prosecute violations of the IWPCA.*fn1 Guardian has also moved to strike portions of plaintiffs' response to its statement of facts as well as plaintiffs' "counter-statement" of facts. For the following reasons, the motion to strike is denied, and the motion for summary judgment is granted in part.

I.

The facts in this case are mostly undisputed. Where disputed, the facts are taken from the properly pled portions of the parties' Local Rule 56.1 statements. While I deny Guardian's motion to strike, I do not consider any objected to aspect of plaintiffs' response to Guardian's statement of facts or plaintiffs' additional facts that do not comport with the local rules.

Plaintiffs Glafiro Sanchez ("Sanchez"), Prisciliano Amador ("Amador"), and Gustavo Quiles ("Quiles") worked for Guardian as insulation installers from May 23, 2005 to February 9, 2007, from August 1, 2005 to February 9, 2007, and from August 23, 2006 to February 8, 2007, respectively, at which time Guardian closed its Harvard, Illinois location. Paul Jentz ("Jentz") was the branch manager at the Harvard location.

Jentz met with plaintiffs before hiring them. Jentz told Sanchez that he would initially be paid $14.00 per hour. Sanchez received a raise to $15.00 per hour about two or three months later. Jentz told Amador that he would initially be paid $15.00 per hour and would receive overtime. Jentz also told Amador that, as Guardian's business increased, his pay might change. According to Quiles, Jentz told Quiles that he would initially be paid $15.00 per hour and would receive overtime, but Quiles was never paid $15.00 per hour as he was hired after Guardian implemented the "piecework" program. Jentz also told Quiles that, as Guardian's business increased, his pay might change. Sanchez and Amador had been paid by the hour and by the foot by prior employers, and Quiles had been paid by the foot by prior employers.

Around December 2005 or January 2006, Joe Gruchacz, Vice President of Guardian, advised Jentz that he wanted to implement the "piecework" program for the insulation installers. Shortly thereafter, Jentz held a meeting with all of the installers, and advised them that the piecework program would likely be implemented within six months. In late April or early May 2006, Jentz informed the installers that the piecework program would be implemented and effective in June 2006. Jentz also provided each of the installers, including plaintiffs, with an example document that explained the piecework program and the method of compensation.*fn2 Plaintiffs state that they were never given their wage rates in writing, but fail to provide any supporting citation to the record.

Jentz testified that "there was a packet that was given to each of them . . . we talked about the piece work program that they were going to have to move to that." He testified that the "packet" was a document that he described as "an example of the Piece Work Program." Jentz testified that he recalls reading this document to the insulation installers in English, and he did not "recall any questions at that time." He "asked if they understood, and [he] never had any questions to the contrary." Jentz further testified that he explained to the installers that this document was the same as the actual program and the only difference was that the per square footage of the labor rates for product would likely be different. Amador testified that Jentz said the dollar amounts per square foot would be different. Sanchez testified that Jentz showed them "a sheet of paper from Colorado, an example, but he told [them] that he was going to pay [them] more than that." Without any citation to the record, plaintiffs claim that there were general discussions that the way they were paid would change, but deny that the example program was read aloud.

According to plaintiffs, Jentz asked the installers to sign a paper acknowledging the change in pay. Plaintiffs did not sign the paper because they did not agree with the pay rate change. Sanchez assumed that by not signing the paper Jentz provided he would continue to be paid an hourly rate. Although Amador did not agree with the change from hourly pay to the piecework program, he understood that the way he was paid was going to change. Quiles did not ask Jentz whether he would still be paid an hourly rate if he did not agree with the piecework program, but he expected to continue to be paid an hourly rate because he did not sign the paper Jentz provided.

The insulation installers, including plaintiffs, began being paid under the piecework program on June 25, 2006. The piecework program is a commission-based system using team production footage. The team footage plan calculation is determined on a per square foot basis, based on the product installed. Pay rates are set per square foot of material installed, and they vary on the job bid and the actual product being installed. An average rate is used to determine how installers are paid for non-work events (e.g., holidays, vacation, jury duty, attendance at safety meetings, drive time, and shop time). This average rate is calculated by dividing an installer's total earnings for the previous three months by his total number of hours worked during that time period. If an installer works more than forty hours during a given pay week, overtime pay is calculated by adding the total commission earned to any other earnings for the week (e.g. drive time, attendance at a safety meeting). This total is then divided by the total number of hours worked that week to calculate the installer's regular rate of pay. To determine the hourly overtime premium, the regular rate of pay is multiplied by .5. The hourly overtime premium is then multiplied by the number of overtime hours worked to provide the total overtime premium. Plaintiffs claim that, under the foregoing description of the piecework program, if certain variables were modified (such as more drive time and less square foot of insulation), then the rate of pay would be reduced at times to below the federal and state minimum wages. This information is not supported by any citation to the record, nor do plaintiffs contend that any such situation actually occurred.

After the piecework program was implemented, Sanchez spoke to Jentz about the manner in which his wages were calculated and his belief that he was not being fully compensated for overtime.

According to Sanchez, the number of overtime hours worked was accurately reflected on his paystub, but the pay rate was not accurate because it was not $22.50. Amador also spoke to Jentz about his belief that he was not being properly compensated because his pay was low, and he was working more hours and making less money. Amador thought Guardian should still pay him overtime at the rate of $22.50 per hour. Jentz explained how his compensation was calculated, but Amador felt Jentz was not clear. Approximately after receiving his third paycheck under the piecework program, Quiles also spoke to Jentz about his belief that he was not being properly compensated for overtime. According to Quiles, the number of overtime hours worked was accurately reflected on his paystub, but the pay rate was not accurate because it was not $22.50.

Plaintiffs accurately recorded, in their own handwriting, the hours they worked on timesheets, which they signed for accuracy. They did not work any hours that they failed to record. Sanchez and Amador are not claiming that they were not paid for overtime worked prior to the implementation of the piecework program. And plaintiffs are not claiming that they were not paid for overtime worked or that they are owed compensation for any hours other than those reflected in their timesheets. Rather, plaintiffs claim they were not paid overtime at the rate of time and a half at $15.00 per hour, which is what they were paid prior to the implementation of the piecework program. Sanchez and Amador claim they worked 308.5 overtime hours for which they were not paid, and Quiles claims he worked 229.5 overtime hours for which he was not paid. Sanchez and Quiles ...


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