Presentation Transcript

1. Rockford Class Action

   Your Counsel Lawton & Cates: Ginger Murray, James Olson, Levi Bjork, Lori Kannenberg, Leanne Smith Miner, Barnhill & Galant: Sarah Siskind and Nancy Moldonado Jenni Olson Dolan
2. What is this Case About? DONNING AND DOFFING Nature of Claim: payment for time spent donning and doffing personal protective equipment and walking to and from your work station
3. What is the Legal Basis for Claim? This is a class action for unpaid wages and overtime wages for donning and doffing: Federal Law: Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., (“FLSA”) State Laws: the Illinois Minimum Wage Law, 820 ILCS 105/4, et seq., and the Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq.
4. Federal Fair Labor Standards Act Federal law which generally provides for fair wages for a days work; defines a work day and work week, and requires overtime pay Federal case law develops definitions of work for the employer’s benefit
5. Why do you have a claim? You were spending time at your workplace for your employer’s benefit for which you were not compensated.
6. What is your claim worth Calculate time worked: Time spent D&D protective equipment Time spent walking to and from work station Multiple time worked by the wage Figure out rate of pay: Is it overtime Or straight wages
7. IL Minimum Wage Law It is against public policy for an employer to pay to his employees an amount less than that fixed by this Act. Any contract, agreement or understanding for or in relation to such unreasonable and oppressive wage for any employment covered by this Act is void.
8. IL Min Wage Rates 7/1/08-6/30/09: wages of not less than $7.75 per hour, 7/1/09-6/30/10: wages not less than $8.00 per hour, 7/1/10: wages not less than $8.25 per hour. Everyone working at Kraft is making more than minimum wage: this means that the straight time wage claim under IL law is weak
9. Ill Overtime (820 ILCS 105/4a) (from Ch. 48, par. 1004a) no employer shall employ any of his employees for a workweek of more than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than 1 1/2 times the regular rate at which he is employed.
10. Liquidated Damages for Min. Wage Violation IL allows for damages of 2% of the amount of any such underpayments
11. RECENT CASES Madison, WI: we won the WI case against Kraft. The WI law required the employer to pay for donning and doffing. We settled once the appellate courts determined that Fed. law did not override WI law. Kraft agreed to pay OT and straight pay for 2 years prior to filing, to current and going forward. (They are still required to change at the work place.)
12. IL CASES Curry: The employees lost in this IL case. Whitmore: The employees lost this IL case, but Judge Chang left open a door for your claim. “The IL Min. Wage Law does not explicitly mention donning and doffing anywhere. Nor are there, as far as this court is aware, any Illinois cases that hold that doffing and donning must be compensated-although there are also no cases holding that doffing and donning time is not compensable time.” Due to the Collective Bargaining Agreement (CBA), federal law, not IL law was deemed controlling and the plaintiffs lost. However, since you do not have a CBA, IL not federal law applies and therefore we still have a claim.
13. Case ComparisonsWho Qualified as a class member? WI: Employees who wore personal protective equipment during the qualifying time period and opted-in the case. Your Case: Kraft agrees that everyone who was employed during the qualifying period and wore the qualifying equipment will be included (whether you are a named plaintiff, signed a consent form, or not).
14. Case ComparisonsWages WI: Many hours were spent videotaping employees changing clothes and walking to/from work station, experts created complex calculations, and each employee’s wages/rate of pay were calculated. Your case: Kraft is agreeing to use the average pay and average time for all covered employees. Your class reps. have verified the qualifying clothes and distances walked/stairs.
15. Case ComparisonsTimeframe WI: the case was filed in 5/3/2007, and is still in pay status after appeals to Fed. Court and U.S. Supreme Court. Your case: filed in July, 2011. If we reach a settlement, we expect that the award will be paid before 7/1/2012.

16. Case ComparisonsClass Representatives

    *Madison: the four class representatives assisted with trial prep., obtaining assistance with representative clothing/distances for each department, and settlement. Each were paid $1000 for their efforts. *Your case: 15 representatives assisted
17. Case ComparisonsFee Agreements Madison: reasonable hourly fees per Kraft and up to 33% of the total class settlement. As part of settlement we agreed to reduce that to 25% of class award. Your Case: our fee agreement is the same hourly fees (to be paid by Kraft) and 33% of total award.
18. Settlement Discussion Qualifying Time: 2, 3 or 5 years 820 ILCS 105/12 (a) Every such action shall be brought within 3 years from the date of the underpayment.      (b) If an employee has not collected damages under subsection (a) for the same violation, the Director is authorized to supervise the payment of the unpaid minimum wages and the unpaid overtime compensation owing to any employee or employees under Sections 4 and 4a of this Act and may bring any legal action necessary to recover the amount of the unpaid minimum wages and unpaid overtime compensation and an equal additional amount as damages, and the employer shall be required to pay the costs incurred in collecting such claim. Such employer shall be additionally liable to the Department of Labor for up to 20% of the total employer's underpayment where the employer's conduct is proven by a preponderance of the evidence to be willful, repeated, or with reckless disregard of this Act or any rule adopted under this Act. The action shall be brought within 5 years from the date of the failure to pay the wages or compensation.
19. Time Frame Filed on 7/5/11: go back to 7/1/08 (3 years) Policy Change 3/1/11: Kraft allows you to take clothing home. Case law suggests this is sufficient for Kraft avoid further liability. Timeframe: 7/1/08-3/1/2011
20. Qualifying Departments Flavor Lab Mixing (Basement) SP Processing Rolling and Scorring- 2nd Floor SP processing Gum Making- 3rdFlr SP packaging- 2ndFlr SP Box Wrap- 2ndFlr Trident Processing Trident Packaging Trident Box Wrap Bubblicious Processing/Packaging Bubblicious Box Wrap Pellet Packaging Pellet Processing Pellet Coating Extruded Base/Sweetener Processing Material Flow Powerhouse/Electricians/Facilities Mech Gateway
21. Class Members 7/1/08-12/31/08: 747 total hourly employees 1/1/09-12/31/09: 735 total hourly employees 1/1/10-12/31/10: 673 total hourly employees 1/1/2011-3/111: 608 total hourly employees
22. Qualifying Wages OVERTIME: agreed to include. Calculations: AWS means every other week you are credited for working OT. 52 weeks per year 48 work weeks after 4 weeks of paid time off-additional 2 weeks have holiday in the work week (46 weeks total paid weeks per year) Total: 23 weeks OT for AWS
23. Straight Pay As discussed, because you all make more than minimum wage, Kraft can argue that you are not entitled to this award. For settlement consideration, we ran the calculations the same as in the WI case.
24. Liquidated Damages IL Law does allow for liquidated damages in the amount of 2%
25. Proposal Pay OT for donning and doffing time in the weeks in which 40 hours or more were worked Pay straight time for D&D in all other work weeks (not paid time off) Wage: use average of employees per year Time: use average of employees $1000 per named class representative Reasonable Hourly Attorney Fees and Costs
26. Attorney Fees Kraft to pay reasonable attorney fees: attorneys to present itemized fees/costs and court to approve Amount awarded for fees/costs will be added to your award: per fee agreement 33%; if settle now we will accept 25%
27. Process Reach Agreement Court: Dec. 20, 2011 Status: “agreement in principal” Class Certification/Notice to Members Approval of Settlement/Fees Distribution of Award by 7/1/12
28. QUESTIONS
29. IL Wage Payment &Collection Act, 820 ILCS 115/1 Wages: For all employees, other than separated employees, "wages" shall be defined as any compensation owed an employee by an employer pursuant to an employment contract or agreement between the 2 parties, whether the amount is determined on a time, task, piece, or any other basis of calculation. Sec. 3. Every employer shall be required, at least semi‑monthly, to pay every employee all wages earned during the semi‑monthly pay period. Wages of executive, administrative and professional employees, as defined in the Federal Fair Labor Standards Act of 1939, may be paid once a month.
30. Liquidated Damages (820 ILCS 115/14) (from Ch. 48, par. 39m‑14)     Sec. 14. (a) Any employee not timely paid wages, final compensation, or wage supplements by his or her employer as required by this Act shall be entitled to recover through a claim filed with the Department of Labor or in a civil action, but not both, the amount of any such underpayments and damages of 2% of the amount of any such underpayments for each month following the date of payment during which such underpayments remain unpaid. In a civil action, such employee shall also recover costs and all reasonable attorney's fees.