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Smith v. Family Video Movie Club, Inc.

United States District Court, N.D. Illinois, Eastern Division

February 13, 2017

DARVETTE SMITH, NATALIE HODOROVYCH, ERIN BOX, and BLAKE BREZINSKY, individually, and on behalf of all others similarly situated, Plaintiffs,
v.
FAMILY VIDEO MOVIE CLUB, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          John Z. Lee United States District Judge

         Defendant Family Video Movie Club, Inc. is a video rental chain that operates stores in nineteen states, including 115 stores in Illinois. Plaintiffs are former Family Video employees who claim that Family Video underpaid them in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and the Illinois Minimum Wage Law (IMWL), 820 Ill. Comp. Stat. 150/1 et seq. In support of these claims, Plaintiffs allege that Family Video underpaid them by excluding commissions in calculating their overtime wages. They further allege that Family Video failed to compensate them for off-the-clock time spent making bank deposits on Family Video's behalf.

         After Plaintiffs filed this lawsuit, Family Video added a new code to its timekeeping system. The code allows employees to add fixed amounts of time to their time cards in order to account for time spent making bank deposits after clocking out. These fixed amounts of time are listed in a report that the parties refer to as the “Time Study.” Family Video has filed a motion in limine seeking to exclude the Time Study under Federal Rules of Evidence 401, 403, and 407. For the reasons set forth below, the motion is granted in part and denied in part.

         Background

         Plaintiffs filed this lawsuit on March 24, 2011, on behalf of themselves and all others similarly situated. They bring claims under the FLSA and the IMWL. In March 2015, the Court issued an order allowing Plaintiffs to proceed with their FLSA claims as a collective action. The collective action is divided into two subclasses, the “Commission Class” and the “Bank Deposit Class, ” which the Court respectively defined as follows:

All opt-in Plaintiffs who worked more than 40 hours in a workweek without receiving applicable overtime premiums that included commission pay from March 14, 2008, through March 14, 2011.
All opt-in Plaintiffs who worked more than 40 hours in a workweek that took Family Video's bank deposits off the clock from March 14, 2008, through March 14, 2011.

Smith v. Family Video Movie Club, Inc., No. 11 C 1773, 2015 WL 1542649, at *9 (N.D. Ill. Mar. 31, 2015).

         In November 2015, the Court granted Plaintiffs' motion for class certification of their IMWL claims using substantially the same subclass definitions that the Court approved with respect to the FLSA claims. See Smith v. Family Video Movie Club, Inc., 311 F.R.D. 469, 473, 483 (N.D. Ill. 2015). In certifying these subclasses, the Court noted that Plaintiffs had proposed to rely solely upon Family Video's own records to ascertain which employees were eligible for class membership by virtue of having worked more than 40 hours in a workweek. Id. at 474, 478-79.

         After the Court certified these subclasses, however, a dispute arose as to precisely how Plaintiffs were to calculate whether employees had worked more than 40 hours in a workweek in order to fall within the class. According to Plaintiffs, both the on-the-clock time recorded in Family Video's records as well as the unrecorded off-the-clock time that employees spent making bank deposits were to be taken into account in calculating how many hours employees had worked. See Pls.' Mot. Clarification at 1, ECF No. 436. By contrast, Family Video maintained that unrecorded off-the-clock time should be left out of this calculation. See Family Video's Opp. at 2, ECF No. 439.

         In light of this dispute, the Court amended the definitions of the two subclasses certified in its November 2015 order. The amended definitions read as follows:

All current and former employees of Family Video retail stores in Illinois who were paid on an hourly basis and who, according to Family Video's records, worked more than 40 hours in a workweek without receiving applicable overtime premiums that included commission pay from March 14, 2008, through March 14, 2011.
All current and former employees of Family Video retail stores in Illinois who were paid on an hourly basis, worked more than 40 hours in a workweek (according to Family Video's records), and took Family Video's bank deposits while ...

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