The opinion of the court was delivered by: Judge David H. Coar
MEMORANDUM OPINION AND ORDER
Plaintiffs Jesus Hernandez, Adolfo Duran, Angel Garcia, Flaviano Maldonado, Apolnar Roman, and Andres Alvarez ("Plaintiffs") bring this cause of action against Defendants Gatto Industrial Platers, Inc. ("GIP"), and George Gatto (collectively, "Defendants"), alleging violations the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/1 et seq. Plaintiffs now move for class certification on only their IMWL claim pursuant to Fed. R. Civ. P. 23. For the reasons stated below, Plaintiffs' motion for class certification is GRANTED.
According to Plaintiffs, Defendant GIP is an Illinois corporation and is an enterprise engaged in commerce or in the production of goods for commerce within the meaning of FLSA, 29 U.S.C. § 203(r)(1). Compl. at ¶ 7. Defendant Gatto is involved in the day to day business operation of GIP, has authority to hire and fire employees, authority to direct and supervise the work of employees, the authority to sign on the corporation's checking accounts, and the authority to make decisions regarding employee compensation and capital expenditures. Id. at ¶ 9. Defendants are "employer[s]" as that term is defined in IMWL, 820 ILCS 105/3(c), and FLSA, 29 US.C. § 203(d). Compl. at ¶ 6. Plaintiffs are employed by Defendants as "employee[s]" and are not exempt from the overtime wage provisions of IMWL. Id. at ¶ 5.
Plaintiffs allege that Defendants used a compensation scheme for its employees that violated both IMWL and FLSA. IMWL*fn1 and FLSA requires an employer to pay its nonexempt employees one and one-half times their "regular rate" for all time worked over forty hours in a workweek. 820 ILCS 115/4a; 29 U.S.C. § 207(a)(1). An employee's regular rate of pay is determined by dividing the weekly compensation by hours worked. 29 CFR § 778.109. Defendants' compensation scheme designated certain portions of an employee's wages as a "bonus" or "maintenance," and did not include this "bonus" or "maintenance" in calculation of the hourly rate of pay, thus artificially depressing the hourly rate of pay for purposes of determining overtime wages. Compl. at ¶ 3.
Plaintiffs now seek to certify as a class all hourly employees who have been employed by Defendants since May 7, 2005, through and including the present, who have worked more than forty (40) hours in individual work weeks, and who received "bonus" or "maintenance" pay as a component of their earned wages in at least one work week during the applicable time period.
Pls.' Mot. for Class Cert. 6. Plaintiffs' motion attempts to certify as a class only the IMWL cause of action. Defendants oppose class certification.
Rule 23 of the Federal Rules of Civil Procedure sets forth the relevant standards for maintaining class action suits in federal court. Under Rule 23(a), a proposed class must satisfy four conditions before a court will grant certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a). In addition, the Plaintiff must satisfy Rule 23(b), which offers only three potential bases for a valid class action. See Fed.R.Civ.P. 23(b). Plaintiffs seek certification under Rule 23(b)(3), which authorizes class actions where the "questions of law or fact common to the members of the class predominate over any questions affecting individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy." The burden of proof on a motion for class certification rests with Plaintiffs. See Gen. Tel. Co. v. Falcon, 457 U.S. 147, 162, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
Defendants' briefs do not dispute Plaintiffs' facts, which are supported by the affidavits attached to Plaintiffs' briefs, and raise no challenge as to Fed. R. Civ. P. 23(a)(2)-(4) and 23(b)(3). Instead, Defendants focus on two arguments: (1) that the numerosity prong of Rule 23(a) is not satisfied, and (2) that state law class actions cannot be certified under Rule 23 because of the collective action procedures in FLSA.
Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." Plaintiffs allege that Defendants employ "more than 100" employees who were subjected to the compensation scheme, and expect the class to include more than 100 people. Pls.' Mot. for Class Cert. 7, Exh. 10 (list purportedly showing more than 100 employees subject to compensation scheme). Defendants have admitted that they have employed more than fifty individuals over the prior three years. Answer 7. Although there is no "magic number" of class members for numerosity purposes, case law indicates that when a class numbers at least 40, joinder will be considered impracticable. Swanson v. Am. Consumer Indus., 415 F.2d 1326, 1333 (7th Cir. 1969); Ringswald v. County of DuPage, 196 F.R.D. 509, 512 (N.D. Ill. 2000). Thus, Defendants' arguments about the practicability of joinder based on the geographic proximity of the potential class members are inapposite. The class is sufficiently numerous and joinder would be impracticable.
Defendants also argue that joinder is practicable because the "Illinois General Assembly wanted the IMWL to be guided by the FLSA[,] and Congress intended for these matters to be collective actions-not class actions." Defs.'s Resp. to Pls.'s Mot. 5. This argument is not strictly one regarding the practicability of joinder, but rather, an argument about preemption. Defendants' reasoning, apparently, is premised on the fact that FLSA does not permit conventional Rule 23 class actions. In a standard Rule 23 class action, individuals are considered class members until they request exclusion from the litigation. Fed. R. Civ. P. 23(c)(2)(B)(v). Instead, FLSA requires individuals to file express opt-ins with the court to become a party in a collective action relating to unpaid overtime compensation. 29 U.S.C. § 216(b). IMWL lacks such opt-in provisions, and class certification of claims under IMWL are governed by 735 ILCS 5/2-801, which follows the conventional class action treatment of Rule 23. Cruz v. Unilock Chicago, 383 Ill.App.3d 752, 761, 892 N.E.2d 78, 89, 322 Ill.Dec. 831, 842 (Ill. App. 2 Dist. 2008) (noting that Section 2-801 of the Illinois Code of Civil Procedure governs IMWL class certification and is based on Fed. R. Civ. P. 23); see also 735 ILCS 5/2-801 ("Any class member seeking to be excluded from a class action may request such exclusion.") (following the opt-out language of Fed. R. Civ. P. 23(c)(2)(B)(v)).
Defendants' argument that FLSA's opt-in requirement preempts certification of IMWL claim relies on Rodriguez v. The Texan, No. 01 C 1478, 2001 WL 1829490 (N.D. Ill. Mar. 7, 2001), a similar case in which Judge Shadur expressed "serious reservations"*fn2 that the plaintiff's IMWL claims could be subjected to conventional class action treatment because FLSA's opt-in policy and "the underlying congressional intent would be thwarted if a plaintiff were permitted to back door the shoehorning in ...