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Earl Kerbes, Individually and On Behalf of All Others Similarly Situated v. Raceway Associates

November 21, 2011


Appeal from the Circuit Court of Cook County. No. 10 CH 09662 , Honorable Mary Anne Mason, Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Justice Hall and Justice Karnezis concurred in the judgment and the opinion.


¶ 1 Plaintiff, Earl Kerbes, individually, and on behalf of all others similarly situated, filed the instant class action lawsuit against defendant, Raceway Associates, LLC, d/b/a Chicagoland Speedway, a subsidiary of International Speedway Corporation, a Florida corporation (collectively, ISC). The suit arises out of ISC's decision to change the paid workweek of its part-time hourly employees from a schedule that ran from Tuesday through Monday to one running from Saturday through Friday. Plaintiff, alleging that the class of part-time workers he represented typically worked well over 40 total hours during racing events held from Thursday to Sunday, sought to recover overtime pay allegedly denied them due to the change in the workweek schedule. The circuit court dismissed plaintiff's claim for a failure to state a cause of action and plaintiff has now appealed. For the following reasons, we affirm.


¶ 3 Plaintiff filed his initial complaint against ISC on March 10, 2010. In that complaint, plaintiff generally alleged that he had been a part-time security guard since 2002 at Chicagoland Speedway in Joliet, IL. Chicago Speedway hosted a number of motorsport events at its racetrack, with the races themselves typically held on a Sunday following a weekend of related activities that would begin the preceding Thursday. During such race weekends, as many as 800 part-time employees would be employed at the racetrack. Such employees were paid hourly and would frequently work between 60 and 80 total hours over the four-day weekend.

¶ 4 When plaintiff began working at Chicagoland Speedway in 2002, the scheduled workweek for hourly employees such as himself was Tuesday through Monday. Thus, when plaintiff and the other part-time employees worked more than 40 hours during a racing event weekend, they would earn substantial overtime pay. In June of 2007, however, International Speedway Corporation acquired the Chicagoland Speedway and changed the workweek of its hourly employees to Saturday through Friday. This change effectively split any racing event weekend into two different workweeks. Furthermore, because racing events are rarely scheduled on consecutive weekends, plaintiff and the other part-time hourly employees no longer earned overtime pay for their work on racing event weekends.

¶ 5 Plaintiff's class action complaint sought to recover for unpaid overtime on behalf of himself and a class of similarly situated hourly employees of ISC. Specifically, plaintiff asserted that he and other similar ISC employees "regularly worked more than eight hours per day and forty hours per week during their employment," but that the change in the scheduled workweek eliminated any possibility of overtime pay for their work. This change allegedly violated provisions of the Illinois Minimum Wage Law (Minimum Wage Law) (820 ILCS 105/1 et seq. (West 2010)), the Illinois Wage Payment and Collection Act (Wage Payment Act) (820 ILCS 115/1 et seq. (West 2010)), and the Eight Hour Work Day Act (Eight-Hour Act) (820 ILCS 145/1 et seq. (West 2010)).

¶ 6 ISC filed a motion to dismiss plaintiff's complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)), asserting that the complaint failed to state a claim under any of these three statutes or, indeed, any other relevant state or federal regulation. ISC contended that nothing in the Eight-Hour Act required it to pay overtime for hours worked in excess of eight hours per day, and nothing in the other two statutes cited by plaintiff precluded its decision to change the workweek in such a way that its part-time employees would no longer accumulate significant overtime hours on race weekends.

¶ 7 Plaintiff voluntarily dismissed the claim brought pursuant to the Eight-Hour Act, and the trial court subsequently dismissed the complaint without prejudice following a hearing on August 24, 2010.*fn1 In its written order, the trial court indicated that plaintiff was given leave to file an amended complaint "to assert a claim for overtime earned but unpaid as of the change in the definition of the work week [i.e., for overtime earned in the transitional week]. Plaintiff's original claim may be repled for purposes of preserving it for appeal."

¶ 8 Plaintiff subsequently filed an amended complaint which included both his original claim as well as a new claim that ISC also owed him and other similar employees for overtime earned during the week when ISC made the transition to the new workweek schedule. The complaint also included additional factual allegations in support of both claims. Notably, in the amended complaint plaintiff now alleged that the workweek change occurred in June of 2008. A scheduling order entered by the trial court on October 26, 2010, indicates that ISC filed a motion to dismiss the amended complaint, but neither that motion nor any response thereto appears in the record on appeal. Instead, the record includes only an order entered on December 21, 2010, a scheduled status date, dismissing the amended complaint with prejudice. Plaintiff timely appealed.


ΒΆ 10 On appeal, plaintiff abandons any claim regarding unpaid overtime earned during the transitional week. Thus, he only challenges the trial court's dismissal of his claim that ISC's change to its employees' workweek was improper and denied him and other similar employees overtime and thus violated provisions of the ...

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