United States District Court, C.D. Illinois, Springfield Division
APRIL R. BRASHIER, CHAD O. LEBOW, and RICHARD M. ORENCIA, individually and on behalf of all persons similarly situated as collective representative under and/or as members of the Collective as permitted under the Fair Labor Standards Act, Plaintiffs,
QUINCY PROPERTY, LLC, doing business as Welcome Inn; VANDIVER MOTEL, doing business as Welcome Inn Columbia; WELCOME INN COLUMBIA; JEFFERSON PROPERTY, doing business as Extended Stay by Welcome Inn; COUNTY LINE PROPERTIES I LLC, doing business as Welcome Inn; AMERICAN MOTELS LLC, doing business as Welcome Inn; B & W INVESTMENT PROPERTIES LLC, doing business as Holiday Apartments; SPRINGFIELD WELCOME INN; and BRETT BURGE; KENNETH LOGAN; QUENTIN KEARNEY; and JOE WIMBERLY, as individuals under FLSA and Illinois Wage Laws, Defendants.
MYERSCOUGH, U.S. DISTRICT JUDGE
cause is before the Court on the parties' Joint Motion
for Conditional Certification of Collective Action and Court
Guidance on Class Notice (d/e 132). For the reasons that
follow, the Court grants the Motion, conditionally certifies
the class, and directs notice in the form and manner set
April R. Brashier, Richard M. Orencia, and Chad O. Lebow
bring this action under the Fair Labor Standards Act of 1938
(FLSA), 29 U.S.C. § 201 et seq., the Illinois
Minimum Wage Law, 820 ILCS 105/1 et seq., and the
Illinois Wage Payment and Collection Act, 820 ILCS 115/1
et seq. In Count 1, Plaintiffs seek to bring a claim
under the FLSA for unpaid overtime and minimum wages on
behalf of themselves and a class of similarly situated
employees of Defendants.
the FLSA, employees may bring a collective action against an
employer to recover unpaid overtime or minimum wages. 29
U.S.C. § 216(b). Unlike class actions under Federal Rule
of Civil Procedure 23(b), where potential plaintiffs are
included in the class unless they opt out, potential
plaintiffs in FLSA collective actions must affirmatively opt
in to the suit. Alvarez v. City of Chi., 605 F.3d
445, 448 (7th Cir. 2010).
parties have filed a Joint Motion for Conditional
Certification of Collective Action and Court Guidance on
Class Notice. The parties have agreed that a conditional
collective notice should be issued but have unresolved issues
that require the assistance of the Court. The parties
specifically note that their stipulation to the notice does
not affect Defendants' Motions to Dismiss or Alternative
Motions to Transfer Venue or their right to file a motion to
decertify this matter as a collective action at a later date.
The parties also provide that the stipulation to the notice
does not affect Plaintiffs' motion for
tolling or any remedies sought under
Plaintiffs' complaint. The parties agree that, if the
case is not settled after notice to the class and present and
former employees opt-in, Defendants retain the right to
pursue all of their pending motions to dismiss
Plaintiffs' lawsuit and Plaintiffs retain the rights to
pursue all possible remedies and recourses. Neither party
waives the right to file a motion for summary judgment at the
appropriate time nor waives the right to take the case to
trial and/or hearing.
THE FAIR LABOR STANDARDS ACT
the FLSA, employees must receive a minimum wage for each hour
that they work and an overtime wage for each hour worked in
excess of forty hours per week. 29 U.S.C. § 206(a); 29
U.S.C. § 207(a)(1). The FLSA contains several exemptions
from these requirements, including the exemptions for
“any employee employed in a bona fide executive,
administrative, or professional capacity.” 29 U.S.C.
§ 213(a)(1). Congress has delegated the authority to
define the scope of the exemptions to the Secretary of Labor.
29 U.S.C. § 213(a)(1); Kennedy v. Commonwealth
Edison Co., 410 F.3d 365, 369 (7th Cir. 2005).
Secretary of Labor's regulations define the executive,
administrative, and professional exemptions. Job title alone
is insufficient to establish an employee's exempt status.
29 C.F.R. § 541.2. Instead, whether an employee is
exempt depends on whether the employee's salary and
duties meet the regulations. Id.
the employee must be compensated on a salary basis of not
less than $455 per week exclusive of board, lodging, or other
facilities. See 29 C.F.R. § 541.100 (general
rule for executive employees only referring to “salary
basis”); § 541.200 (general rule for
administrative employees and refers to “salary or fee
basis”) § 541.300 (general rule for professional
employees and refers to “salary or fee
basis”). An employee is considered paid on a salary
basis if the employee regularly receives a predetermined
amount of compensation on a weekly or less frequent basis and
that amount “is not subject to reduction because of
variations in the quality or quantity of the work
performed.” 29 C.F.R. § 541.602(a). Certain
exceptions to the prohibitions against deductions exist;
e.g., an employer can make deductions from pay when
an exempt employee is absent from work for one or more full
days. See 29 C.F.R. § 541.602(b). An employer
who makes improper deductions from salary loses the exemption
“if the facts demonstrate that the employer did not
intend to pay employees on a salary basis.” 29 C.F.R.
§ 541.603(a). However, an employer who takes improper
deductions loses the exemption only for employees in the same
job classification working for the same managers responsible
for the actual improper deductions. 29 C.F.R. §
to qualify for the executive, administrative, or professional
exemption, the employee must perform the duties set forth in
the regulations. For the executive exemption, the
employee's primary duty must be management of the
enterprise. 29 C.F.R. § 541.100(a)(2). In addition, the
employee must customarily and regularly direct the work of
two or more other employees and have “the authority to
hire or fire other employees or whose suggestions and
recommendations as to the hiring, firing, advancement,
promotion or any other change of status of other employees
are given particular weight.” 29 C.F.R. §
administrative exemption, the “primary duty is the
performance of office or non-manual work directly related to
the management or general business operations of the employer
or the employer's customers.” 29 C.F.R. §
541.200(a)(1). In addition, the primary duty for
administrative employees includes “the exercise of
discretion and independent judgment with respect to matters
of significance.” 29 C.F.R. § 541.200(a)(3).
an employee is a “professional employee' if her
primary duty is the performance of work that requires
“knowledge of an advanced type in a field of science or
learning customarily acquired by a prolonged course of
specialized intellectual instruction” or
“invention, imagination, originality or talent in a
recognized field of artistic or creative endeavor.” 29
C.F.R. § 541.300(2).
Third Amended Complaint, Plaintiffs Brashier, Orencia, and
Lebow seek to bring a claim under the FLSA for owed overtime
and minimum wages on behalf of themselves and a class of
similarly situated employees of Defendants (Count 1).
Plaintiffs allege that Defendants have a policy of
classifying most of its employees as “salaried”
despite those employees having few or no actual salaried work
duties. Plaintiffs allege that they and similarly situated
employees/former employees were not properly classified as
salaried employees because they do not perform
“salaried work duties” and/or Defendants lose the
exemption due to deductions/compelled payments from salaries
and the failure to pay the minimum salary required for
salaried employees. See Third Am. Compl. ¶ 2
seek to bring claims for relief for violations of the FLSA as
a collective action on behalf of all misclassified salaried
employees. Plaintiffs allege:
Defendants failed to pay overtime wages and other benefits to
Plaintiffs and [the] Collective by improperly taking salary
deductions and/or failing to maintain salaried work as the
“primary duty” for Plaintiffs and [the]
Collective and/or paid less than the required minimum salary
and/or did not pay for training time.
Am. Compl. ¶ 280. Plaintiffs further allege that
Defendants deliberately paid Plaintiffs and the Collective as
exempt employees when they knew or should have known of the
improper salary deductions, the failure to maintain salaried
work as the primary duty, and/or paying Plaintiffs and the
Collective less than the required minimum salary.
Id. ¶ 281.
named Plaintiffs are employees of some or all of the
Defendants. See Third Am. Compl. ¶ 278.
Plaintiff Brashier was employed as a housekeeper beginning in
October 2016 but was classified as exempt and paid a salary.
Id. ¶¶ 139, 142, 143, 145. Plaintiff
Brashier alleges that she was misclassified as exempt and is
owed overtime and minimum wages. Id. ¶¶
155-166. She also alleges that she was not paid the minimum
wage during her “training period.” Id.
Orencia was employed to perform multiple job duties-including
housekeeping, maintenance, quasi-security, and front desk
clerk-but was classified as exempt and paid a salary. Third
Am. Compl. ¶¶ 191, 197-199; see also id.
¶¶ 218-223 and ¶¶ 224-229 (distinguishing
between Orencia's “first job” and
“second job”). Plaintiff Orencia alleges that he
was misclassified as exempt and is owed overtime and minimum
wages. Id. ¶¶ 201-214. Plaintiff Orencia
also alleges he was not paid the minimum salary required for
an exempt classification. Id. ¶ 232 (referring
to Orencia's “second job”).
Plaintiff Lebow alleges that he was misclassified as exempt
and that he was paid less than the minimum wage required for
exempt employees. Third Am. Compl. ¶¶ 237-238.
Plaintiff Lebow also alleges that his duties did not fall
within an exemption. Id. ¶ 246. Lebow placed
advertisements on Craigslist for Defendants, performed retail
sales functions for American Motels, “assisted in
sales/stock of Jefferson Properties, ” responded to
customer issues, and assisted in police calls to the
property. Id. ...