Amador v. Guardian Installed Services, Inc.

Filing 49

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 9/8/2008:Mailed notice(mpj, )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION PRISCILIANO AMADOR, GUSTAVO S. QUILES, and GLAFIRO SANCHEZ, ) ) ) ) Plaintiffs, ) ) v. ) ) GUARDIAN INSTALLED SERVICES, INC., ) ) Defendant. )

No. 07 C 1218

MEMORANDUM OPINION AND ORDER Defendant Guardian Installed Services, Inc. ("Guardian") has moved for summary judgment on plaintiffs' amended complaint,

which alleges failure to pay overtime wages at the rate of one and one-half times the regular rate of pay in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a), and the Illinois Minimum Wage Law ("IMWL"), 820 ILL. COMP. STAT. 105/4a. The amended complaint also alleges an unspecified claim under the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILL. COMP. STAT. 115/11(c), which simply enumerates the powers of the

Department of Labor to investigate and prosecute violations of the IWPCA.1 Guardian response has to also moved to of strike facts For portions as well of as

plaintiffs' plaintiffs'
1

its

statement of

"counter-statement"

facts.

the

following

Nevertheless, the parties treat the amended complaint as stating a claim under the IWPCA.

reasons, the motion to strike is denied, and the motion for summary judgment is granted in part. I. The facts in this case are mostly undisputed. Where

disputed, the facts are taken from the properly pled portions of the parties' Local Rule 56.1 statements. While I deny Guardian's

motion to strike, I do not consider any objected to aspect of plaintiffs' response to Guardian's statement of facts or

plaintiffs' additional facts that do not comport with the local rules. Plaintiffs Glafiro Sanchez ("Sanchez"), Prisciliano Amador ("Amador"), and Gustavo Quiles ("Quiles") worked for Guardian as insulation installers from May 23, 2005 to February 9, 2007, from August 1, 2005 to February 9, 2007, and from August 23, 2006 to February 8, 2007, respectively, at which time Guardian closed its Harvard, Illinois location. Paul Jentz ("Jentz") was the branch

manager at the Harvard location. Jentz met with plaintiffs before hiring them. Jentz told Sanchez

Sanchez that he would initially be paid $14.00 per hour.

received a raise to $15.00 per hour about two or three months later. Jentz told Amador that he would initially be paid $15.00 Jentz also told Amador

per hour and would receive overtime.

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that, as Guardian's business increased, his pay might change. According to Quiles, Jentz told Quiles that he would initially be paid $15.00 per hour and would receive overtime, but Quiles was never paid $15.00 per hour as he was hired after Guardian

implemented the "piecework" program.

Jentz also told Quiles

that, as Guardian's business increased, his pay might change. Sanchez and Amador had been paid by the hour and by the foot by prior employers, and Quiles had been paid by the foot by prior employers. Around December 2005 or January 2006, Joe Gruchacz, Vice President of Guardian, advised Jentz that he wanted to implement the "piecework" program for the insulation installers. Shortly

thereafter, Jentz held a meeting with all of the installers, and advised them that the piecework program would likely be

implemented within six months.

In late April or early May 2006,

Jentz informed the installers that the piecework program would be implemented and effective in June 2006. Jentz also provided each

of the installers, including plaintiffs, with an example document that explained the piecework program and the method of

compensation.2
2

Plaintiffs state that they were never given their

Neither Sanchez nor Quiles recall whether the document attached to Guardian's motion as Exhibit J was the document Jentz provided at the second meeting. But Sanchez testified that the 3

wage

rates

in

writing,

but

fail

to

provide

any

supporting

citation to the record. Jentz testified that "there was a packet that was given to each of them . . . we talked about the piece work program that they were going to have to move to that." He testified that the

"packet" was a document that he described as "an example of the Piece Work Program." Jentz testified that he recalls reading

this document to the insulation installers in English, and he did not "recall any questions at that time." He "asked if they

understood, and [he] never had any questions to the contrary." Jentz further testified that he explained to the installers that this document was the same as the actual program and the only difference was that the per square footage of the labor rates for product would likely be different. said the dollar amounts per square Amador testified that Jentz foot would be different.

Sanchez testified that Jentz showed them "a sheet of paper from Colorado, an example, but he told [them] that he was going to pay [them] more than that." Without any citation to the record,

plaintiffs claim that there were general discussions that the way

document Jentz provided "said something about Colorado," and Exhibit J reflects material and labor rates for Colorado Springs, Colorado. 4

they were paid would change, but deny that the example program was read aloud. According to plaintiffs, Jentz asked the installers to sign a paper acknowledging the change in pay. Plaintiffs did not sign

the paper because they did not agree with the pay rate change. Sanchez assumed that by not signing the paper Jentz provided he would continue to be paid an hourly rate. not agree with the change from hourly Although Amador did pay to the piecework

program, he understood that the way he was paid was going to change. Quiles did not ask Jentz whether he would still be paid

an hourly rate if he did not agree with the piecework program, but he expected to continue to be paid an hourly rate because he did not sign the paper Jentz provided. The insulation installers, including plaintiffs, began being paid under the piecework program on June 25, 2006. program footage. is a commission-based system using The piecework production

team

The team footage plan calculation is determined on a Pay rates

per square foot basis, based on the product installed.

are set per square foot of material installed, and they vary on the job bid and the actual product being installed. An average

rate is used to determine how installers are paid for non-work events (e.g., holidays, vacation, jury duty, attendance at safety

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meetings, drive time, and shop time).

This average rate is

calculated by dividing an installer's total earnings for the previous three months by his total number of hours worked during that time period. If an installer works more than forty hours

during a given pay week, overtime pay is calculated by adding the total commission earned to any other earnings for the week (e.g. drive time, attendance at a safety meeting). divided by the total number of hours This total is then that week to

worked

calculate the installer's regular rate of pay.

To determine the

hourly overtime premium, the regular rate of pay is multiplied by .5. The hourly overtime premium is then multiplied by the number

of overtime hours worked to provide the total overtime premium. Plaintiffs claim that, under the foregoing description of the piecework program, if certain variables were modified (such as more drive time and less square foot of insulation), then the rate of pay would be reduced at times to below the federal and state minimum wages. This information is not supported by any

citation to the record, nor do plaintiffs contend that any such situation actually occurred. After the piecework program was implemented, Sanchez spoke to Jentz about the manner in which his wages were calculated and his belief that he was not being fully compensated for overtime.

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According to Sanchez, the number of overtime hours worked was accurately reflected on his paystub, but the pay rate was not accurate because it was not $22.50. about his belief that he was not Amador also spoke to Jentz being properly compensated

because his pay was low, and he was working more hours and making less money. Amador thought Guardian should still pay him

overtime at the rate of $22.50 per hour.

Jentz explained how his

compensation was calculated, but Amador felt Jentz was not clear. Approximately after receiving his third paycheck under the

piecework program, Quiles also spoke to Jentz about his belief that he was not being properly compensated for overtime.

According to Quiles, the number of overtime hours worked was accurately reflected on his paystub, but the pay rate was not accurate because it was not $22.50. Plaintiffs accurately recorded, in their own handwriting, the hours they worked on timesheets, which they signed for

accuracy. record. paid for

They did not work any hours that they failed to Sanchez and Amador are not claiming that they were not overtime worked prior to the implementation of the

piecework program. were not paid for

And plaintiffs are not claiming that they overtime worked or that they are owed

compensation for any hours other than those reflected in their

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timesheets.

Rather, plaintiffs claim they were not paid overtime

at the rate of time and a half at $15.00 per hour, which is what they were paid prior to the implementation of the piecework

program.

Sanchez and Amador claim they worked 308.5 overtime

hours for which they were not paid, and Quiles claims he worked 229.5 overtime hours for which he was not paid. Sanchez and

Quiles calculated the amounts allegedly owed to them by adding the overtime hours from their paystubs. Amador calculated the

amount allegedly owed to him by adding the overtime hours from June 2006 to the end of his employment.

II. Summary judgment is appropriate where the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue for trial exists "if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party." 248 (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, The those movant portions initially of `the bears the burden of

"identifying

pleadings,

depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the

8

absence of a genuine issue of material fact." Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp. v.

Once the movant has met this

burden, the non-movant "may not rest upon the mere allegations or denials of the adverse party's pleading," but rather "must set forth specific facts showing that there is a genuine issue for trial." the See FED. R. CIV. P. 56(e). most favorable to I must construe all facts in non-movant and draw all

light

the

justifiable inferences in favor of that party. U.S. at 255.

See Anderson, 477

Guardian's statement of the burdens of proof in FLSA cases, while accurate, is inapplicable here. For the burden-shifting

framework set forth in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) to apply, the defendant's time records must be either inaccurate or inadequate. Turner v. The Saloon, Ltd., 491 Here, neither party has

F.Supp.2d 767, 770 (N.D. Ill. 2007). made such a claim.

The number of overtime hours is not at issue,

but rather the rate at which compensation was paid for those hours. III. Plaintiffs claim that Guardian should have paid them

overtime at the rate of $22.50 per hour, as opposed to the amount paid under the piecework program. Guardian argues that it is

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entitled to summary judgment on plaintiffs' FLSA, IMWL, and IWPCA claims because (1) Guardian compensated plaintiffs at piecework rates, which is permitted by the FLSA, IMWL, and IWPCA; (2) Guardian provided plaintiffs notice of the piecework program; and (3) none of the statutes require Guardian to have obtained

plaintiffs' written authorization and agreement to be paid under the piecework program. Plaintiffs oppose summary judgment on the

grounds that (1) the piecework program will inevitably cause pay to fall below the statutorily mandated minimum wage if the

insulation installation work is "dwarfed by other compensable activities;" and (2) Guardian did not provide plaintiffs with rate of pay and place of payment information in writing as

required under Illinois law. I first address plaintiffs' FLSA claim. The FLSA requires

that employees be compensated for overtime "at a rate not less than one and one-half times the regular rate . . . . " § 207(a). 29 U.S.C.

The "regular rate" includes "all remuneration for

employment paid to, or on behalf of, the employee," and excludes certain sums. 29 U.S.C. § 207(e). See 29

The FLSA provides for employment "at piece rates." U.S.C. § 207(g).

An employer does not violate § 207(a) if,

"pursuant to an agreement or understanding arrived at between the

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employer and the employee before performance of the work," (1) overtime pay "is computed at piece rates not less than one and one-half times the bona fide piece rates applicable to the same work when performed during nonovertime hours;" and (2) the

employee's average hourly earnings for the workweek are not less than the statutorily computed and required paid on minimum other and forms extra of overtime is pay The

properly

additional Id.

required to be included in computing the regular rate.

Code of Federal Regulations ("Code") explains that, "[w]hen an employee is employed on a piece-rate basis," the regular rate is computed by adding all earnings for the workweek from piece rates and other sources plus sums for waiting time or other hours worked, then dividing by the number of hours worked in the week. 29 C.F.R. § 778.111(a). In addition to total weekly earnings at

the regular rate, a pieceworker is entitled overtime "equivalent to one-half this regular rate of pay multiplied by the number of hours worked in excess of 40 in the week." Id. The Code further

states that, "Only additional half-time pay is required in such cases where the employee has already received straight-time

compensation at piece rates or by supplementary payments for all hours worked." Id. Guardian's piecework program tracks the

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Code's method of calculating overtime pay and its accompanying example. Plaintiffs have provided no factual support for their

argument that the piecework program will inevitably result in pay below the minimum wage. Without any citation to the record,

plaintiffs assert that it is "clear that after June 25, 2006, Defendant paid overtime rates that fluctuated and that were at times less than the statutory minimum." Plaintiffs contend that

"[i]t would be very simple to show how divergent the same job would pay if it were simply located further away," but they have not adduced any facts showing that this occurred. Contrary to

plaintiffs' bare assertions, they have not demonstrated that they were Thus, ground. Plaintiffs also argue that they were not provided with their "rate of pay or time and place of payment" information in writing as required by that Illinois the the law. to Plaintiffs provide cite no authority in "an paid less than the statutorily withstand required overtime on wage. this

plaintiffs

cannot

summary

judgment

indicating writing

failure FLSA.

such

information requires

violates

Indeed,

the

FLSA

agreement or understanding arrived at between the employer and employee before performance of the work." See 29 U.S.C. § 207(g).

12

The FLSA does not specify that there must be a writing of any kind, and plaintiffs cite no authority on this point. Here, the parties agree that Guardian notified plaintiffs in advance on two occasions that it was going to implement the piecework program. The parties also agree that, before the

piecework program was implemented, plaintiffs were provided with an example explaining it and the method of compensation, which was read aloud to the installers. After the piecework program

took effect, plaintiffs spoke to Jentz about their belief that they were not being properly paid. hours and accepted pay under Plaintiffs worked overtime the piecework compensation

structure, and continued to do so for approximately seven months from the time when the piecework program took effect until the Harvard location closed. Based on the foregoing facts, I find

that Guardian's piecework program was implemented based on an agreement or understanding reached before the work was performed. Although plaintiffs may have been dissatisfied with piecework compensation, they were informed prior to performing the work that they would be compensated in this fashion. Because I find in favor of Guardian on the FLSA claim, pursuant to 28 U.S.C. § 1367(c)(3), I decline to exercise

supplemental jurisdiction over the remaining state law claims.

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IV. For the foregoing reasons, Guardian's motion for summary judgment is granted in part. Accordingly, judgment is entered in

favor of Guardian on plaintiffs' FLSA claim, and the remaining state law claims are dismissed. ENTER ORDER:

__________________________________ Elaine E. Bucklo United States District Judge Dated: September 8, 2008

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