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Lizak v. Great Masonry

September 22, 2009

BOGDAN LIZAK, PLAINTIFF,
v.
GREAT MASONRY, INC., AND KRZYSZTOF MENDYS, DEFENDANTS.



The opinion of the court was delivered by: David H. Coar United States District Judge

Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

On April 8, 2008, Plaintiff Bogdan Lizak's ("Plaintiff") brought this action against Defendants Great Masonry, Inc. and Krzysztof Mendys, alleging seven counts. On March 30, 2009, this Court dismissed Count VI. Plaintiff voluntarily withdrew Counts II and V. The instant matter proceeded to bench trial on Counts I, III, IV, and VII: failure to pay overtime wages in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1) (Count I); retaliatory discharge in violation of the FLSA, 29 U.S.C. § 215(a)(3) (Count III); failure to pay overtime wages in violation of the Illinois Minimum Wage Law ("IMWL"), § 820 ILCS 105/4a(1) (Count IV); and failure to identify and classify Plaintiff as an employee in violation of the Illinois Employee Classification Act, § 820 ILCS 185/20 (Count VII). Defendants failed to appear at trial, and proceedings concluded after Plaintiff presented his case. Plaintiff presented a post-trial memorandum. Based on the trial, and parties' pre-trial and post-trial submissions, the Court makes the following findings of fact and conclusions of law. To the extent that any findings may be deemed conclusions of law, they shall also be considered conclusions; to the extent that any conclusions may be deemed findings of fact, they shall also be considered findings. See Miller v. Fenton, 474 U.S. 104, 113-14 (1985).

I. Findings of Fact

A. Parties

1. Defendant Great Masonry, Inc. ("Great Masonry" or "the Company") is an Illinois corporation in the mason contracting business.

2. Great Masonry went into business in 2001.

3. The owners of Great Masonry since its inception are Defendant Krzysztof Mendys ("Mendys"), Stefan Szwab, and Eugeniusz Slebarski, who have held an equal ownership interest at all times.

4. Great Masonry's primary business involved bricklaying. Great Masonry utilized bricklayers, laborers, operators, drivers, a warehouseman, and crew chiefs or foremen.

5. Plaintiff Bogdan Lizak ("Lizak") began working for Great Masonry in November 2002.

6. Lizak was originally hired as a laborer.

7. In approximately March 2003, after having observed Lizak's work, Mendys offered to make Lizak a crew chief and Lizak accepted.

8. Mendys promoted Lizak to become a crew chief because he considered Lizak to be particularly intelligent and a particularly capable bricklayer.

9. Lizak continued to work as a crew chief from the time he was appointed to that position until he was terminated on or around January 10, 2008.

B. Great Masonry's Practices

10. Beginning in or around April 2008, the Company began making several changes to its basic business model. Unless otherwise stated, the remaining facts refer to the period beginning at least as early as January 2005 and continuing at least through April 2008.

11. Before Great Masonry started operating, Mendys and one of his co-owners, Mr. Slebarski, spoke to Mr. Slebarski's brother who is an accountant. He explained to them the costs of taking deductions, paying payroll taxes, and paying overtime.

12. When workers were first hired and paid, Mendys explained to the other two owners that Great Masonry could not be launched and survive if it treated its workers as employees rather than independent contractors. The three owners mutually decided that they would not take deductions, or pay payroll taxes or overtime.

13. With a single exception, Great Masonry has reported its payments to all of its employees, including Lizak, on Form 1099.

14. For each year he worked for the Company, Lizak filed tax returns in which he indicated that he was self-employed, and the Form 1099 the Company issued to him for 2005 to 2007 stated his compensation as $75,662.00, $96,358.00, and $86,194.00 for each respective year.

15. All of Great Masonry's workers, aside from the three owners, were paid at an hourly rate. Great Masonry generally did not pay premium rates for the time worked over forty hours in a week, nor did it withhold amounts from the employees' pay or pay an employer portion toward social security, Medicare, or unemployment compensation. The only exception to this was when Mendys came to believe that workers he had employed were sent by a labor union. Because he believed that these individuals and the union intended to undermine the Company, he arranged for those workers to be compensated in the manner required for employees. The Company thus withheld payment for social security, Medicare, and unemployment compensation. Although Mendys did not believe that any labor union members worked over forty hours per week, any who did so would have been paid at a premium rate for overtime.

16. If Great Masonry's workers made a mistake on the job, the Company would bear the cost of correcting or repairing it.

17. The work week for pay purposes was Sunday through Saturday. Employees were paid every other Friday, six days after the last day of the pay period. The employees reported their hours to the crew leaders who examined them before relaying that information to Mendys. This was done on Wednesday of the week during which the workers were to be paid. Mendys would then prepare the checks and arrange for crew leaders to receive them on the job or at some other location on the day the checks were distributed.

18. Great Masonry alone paid the workers' wages.

19. Mendys's expected that as long as the Company had adequate work, all workers would retain employment unless they wished to leave permanently. Mendys assumed the workers would be available to work or the Company full-time unless they had an excuse such as illness. It would not have been acceptable for any of the employees to have announced that they were going to leave and work for somebody else for a few months and then resume employment with the Company.

20. The only pay received by workers was for the hours they worked.

21. When Lizak and the other workers were prevented from working because of weather or another reason, they were not paid.

22. If the workers were forced to halt their work due to rain and waited for the rain to stop in order to resume, they were not paid for their waiting time.

23. Great Masonry never laid off a significant number of employees. Individual employees were laid off if Mendys disapproved of their work, but works typically finished one project and immediately moved on to the net. Mendys assumed the people with whom he was satisfied would remain with the Company and move from one project ...


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