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Ricky Koehler, Aaron Steenson, and Sally Engelmann v. Kehrer Brothers Construction

August 20, 2012

RICKY KOEHLER, AARON STEENSON, AND SALLY ENGELMANN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
KEHRER BROTHERS CONSTRUCTION, INC., KEHRER BROTHERS WEST ROOFING, INC., KEHRER BROTHERS CONSTRUCTION OF TEXAS, LLC, KEHRER BROTHERS ROOFING OF TEXAS, LLC, KEHRER BROTHERS ROOFING OF DALLAS, LP, KEHRER EXCAVATION & FARMS, INC., AKBT, INC., JOSEPH KEHRER, INDIVIDUALLY AND AS MANAGING OFFICER, MEMBER OR PARTNER OF KEHRER BROTHERS CONSTRUCTION, INC., KEHRER BROTHERS WEST ROOFING, INC., KEHRER BROTHERS CONSTRUCTION OF TEXAS, LLC, KEHRER BROTHERS ROOFING OF TEXAS, LLC, KEHRER BROTHERS ROOFING OF DALLAS, LP, KEHRER EXCAVATION & FARMS, INC., AND AKBT, INC., AND DAWN KEHRER, INDIVIDUALLY AND AS PRESIDENT, MEMBER OF PARTNER OF KEHRER BROTHERS CONSTRUCTION, INC., KEHRER BROTHERS WEST ROOFING, INC., KEHRER BROTHERS CONSTRUCTION OF TEXAS, LLC, KEHRER BROTHERS ROOFING OF TEXAS, LLC, KEHRER BROTHERSROOFING OF DALLAS, LP, KEHRER EXCAVATION & FARMS, INC., AND AKBT, INC., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge:

ORDER

At issue here is whether plaintiffs, Ricky Koehler, Aaron Steenson, and Sally Englemann, individually and on behalf of all others similarly situated, have alleged enough in their complaint for their Illinois Wage Payment and Collection Act (the Wage Act) (820 ILCS 115/1 et seq. (2012)) and Illinois Minimum Wage Law (the Minimum Wage Law) (820 ILCS 105/1 et seq. (2012)) claims to survive defendants' motion to dismiss (Doc. 17). For the reasons stated below, defendants' motion to dismiss (Doc. 17) is denied in part and granted in part.

I. Background

On September 15, 2011, plaintiffs filed a putative class action suit a g a i n s t defendants, alleging three counts: 1) violation of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.); 2) violation of the Wage Act; and 3) violation of the Minimum Wage Law. On January 27, 2012, defendants filed a motion to dismiss count II and III of plaintiffs' complaint for failure to state a claim upon which relief could be granted, or, in the alternative, motions for more definite statement as to all of plaintiffs' claims. Plaintiffs filed a response (Doc. 24).

II. Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). To survive a motion to dismiss, a complaint must establish a plausible right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations of the complaint must be sufficient "to raise a right to relief above the speculative level." Id.

In making this assessment, the district court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. See Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St. John's United Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007), cert. denied, 553 U.S. 1032 (2008). Even though Twombly (and Ashcroft v. Iqbal, 556 U.S. 662 (2009)) retooled federal pleading standards, notice pleading remains all that is required in a complaint: "A plaintiff still must provide only 'enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief.'" Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). It is well settled that in deciding a motion to dismiss, a court may consider documents attached to the motion to dismiss if they are referred to in plaintiff's complaint and are central to his claim. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (quoting Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994)).

III. Analysis

A. Count II: The Wage Act

In defendants' first point, defendants argue that plaintiffs' Wage Act claim should be dismissed because plaintiffs fail to plead the existence of an employment agreement or contract that provides for the compensation sought. Plaintiffs contend that defendants have ignored the numerous and explicit allegations in the complaint that plaintiffs were employed by defendants under an employment agreement.

"[F]or a person to state a claim under the Wage Collection act, he or she must plead that wages or final compensation is due to him or her as an employee from an employer under an employment contract or agreement." Landers-Scelfo v. Corporate Office Sys., Inc., 827 N.E.2d 1051, 1058 (Ill. App. Ct. 2005) (citing 820 ILCS 115/2, 3, 5)). The Wage Act "requires a right to compensation pursuant to an employment contract or agreement." Stark v. PPM Am., Inc., 354 F.3d 666, 672 (7th Cir. 2004) (citing 820 ILCS 115/2)). "An employment agreement need not be a formally negotiated contract." Landers-Scelfo, 827 N.E.2d at 1059. "'[A]n "agreement" is broader than a contract and requires only a manifestation of mutual assent on the part of two or more persons; parties may enter into an "agreement" without the formalities and accompanying legal protections of a contract.'" Id. (quoting Zabinsky v. Gelber Group, Inc., 807 N.E.2d 666 (Ill. App. Ct. 2004)). "[B]ecause an employment agreement can be entirely implicit, alleging that an entity paid a worker according to a demonstratable formula for work done is sufficient to raise an inference that the entity and the worker had an employment agreement that embodied the formula." Landers-Scelfo, 827 N.E.2d at 1058.

In plaintiffs' complaint, plaintiffs alleged that they were employed by defendants as non-exempt roofing laborers who were paid an hourly rate. Further, plaintiffs alleged that defendants managed all aspects of plaintiffs' work, including the amount of hours worked, types of work performed, and location of work performed, and that defendants further dictated, controlled and ratified all compensation policies, including hours worked by plaintiffs and wages paid to plaintiffs. Additionally, plaintiffs asserted that pursuant to their common scheme, defendants caused plaintiffs to work unpaid straight time and overtime, followed by plaintiffs setting forth a number of specific examples of the alleged scheme. Plaintiffs claimed that defendants furthered their scheme by failing to accurately record actual time worked by plaintiffs, and that defendants were aware at all times that plaintiffs performed work for which they were not compensated and knowingly and willfully refused to compensate plaintiffs for all work they performed and were required to perform, including pre and post-shift work. Specifically, with regard to the Wage Act claim, plaintiffs alleged that defendant violated § 4 of the Wage Act "by failing and refusing to pay [p]laintiffs at their previously agreed upon rates of pay, including overtime wages, for all work required and actually performed during the applicable statutory period, including pre and post-shift work previously described and mandatory travel time, and by failing and refusing to reimburse [p]laintiffs for necessary and incidental expenses incurred by [p]laintiffs in the furtherance of their employment by [d]efendants."

At issue here is whether plaintiffs adequately pleaded that they had an employment agreement with defendants. Accepting as true all of plaintiffs well-pleaded factual allegations and drawing all reasonable inferences as true, Rujawitz, 566 F.3d at 688, the Court finds that plaintiffs have established a plausible right to relief and have alleged, at a minimum, enough to at least infer an employment agreement or contract. See Landers-Scelfo, 827 N.E.2d at 1059-60. By alleging that defendants refused to pay plaintiffs according to previously agreed upon rates, including overtime, their was at least ...


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