Torres v. Nation One Landscaping, Inc.,

Filing 138

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 12/5/2016: Torres's motion for summary judgment, 117 , is granted in part and denied in part. The motion is granted as to defendants' liability in Counts I through V. The motion is granted as to the theory of how to calculate damages for Torres and the opt-ins under the FLSA, for Torres under the IMWL, and for Torres and the class under the IWPCA. The motion is denied as to the calculation of class damages under the IMWL. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AURELIANO TORRES, on behalf of himself
and other similarly situated persons,
known and unknown,
No. 12 CV 9723

Plaintiffs,

Judge Manish S. Shah

v.
NATION ONE LANDSCAPING, INC., and
BRIAN EMMICK, individually,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Aureliano Torres brought this action against his employer,
defendant Nation One Landscaping and its CEO, defendant Brian Emmick, for
owed wages under the Fair Labor Standards Act, 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. Torres alleges that Nation One did not pay
him overtime wages, took unauthorized deductions out of his paycheck, and failed to
pay him the state-mandated minimum wage. Four other Nation One employees
opted in to join Torres’s FLSA claim, and Torres represents a class of Nation One
employees in his state-law overtime and unauthorized deductions claims. Torres
moves for summary judgment on all counts. For the following reasons, that motion
is granted in part and denied in part.

I.

Legal Standards
Summary judgment is appropriate where “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A genuine dispute of material fact exists if the evidence would allow
a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of
establishing that there is no genuine dispute as to any material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). In deciding whether a genuine issue of material
fact exists, courts must construe all facts and reasonable inferences in the light
most favorable to the nonmoving party. CTL ex rel. Trebatoski v. Ashland Sch. Dist.,
743 F.3d 524, 528 (7th Cir. 2014).
Both the moving party and the nonmoving party must cite “particular parts
of materials in the record” to support their respective assertions—the absence or
presence of a genuine dispute of material fact. Fed. R. Civ. P. 56(c). To facilitate this
process, Local Rule 56.1 requires the moving party to file a statement of material
facts “to which the moving party contends there is no genuine issue and that
entitle[s] the moving party to a judgment as a matter of law.” L.R. 56.1(a). It also
requires the nonmoving party to file a concise response and permits that party to
submit additional material facts as necessary. L.R. 56.1(b). All statements under
Local Rule 56.1 must contain short numbered paragraphs with specific references to
supporting admissible evidence in the record. L.R. 56.1 (a), (b). In some instances,
the parties’ filings failed to cite specific pages or paragraphs. District courts are not
“obliged” to “scour the record looking for factual disputes,” and do not consider
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conclusory allegations, conjecture, or argument in Local Rule 56.1 statements.
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994); see also Ammons
v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817–18 (7th Cir. 2004). An asserted fact
that is not controverted by reference to specific, admissible evidence is deemed
admitted.
II.

Background
Brian Emmick was the owner and chief executive officer of Nation One, a

landscaping company. [129] ¶ 9; [132] ¶ 13.1 Emmick handled the daily operations
of Nation One and had final authority over Nation One’s policies. [129] ¶ 19. He was
in charge of hiring, supervising, paying, and firing employees. [129] ¶¶ 10–14. As
owner and CEO, Emmick engaged a payroll service to handle Nation One’s payroll.
[129] ¶ 16. Emmick was an authorized signer on the Nation One payroll banking
account. [129] ¶ 15. Nation One later transitioned to using internal bookkeepers for
payroll; those bookkeepers continued to report to Emmick as the highest authority
on payroll for Nation One. [129] ¶ 17. Emmick relied on others and was uninvolved
and unaware of how Nation One’s payroll operated. [120-3] at 70:22–71:12; see also
[120-3] at 72:16–21.
Nation One had a practice of compensating its employees for all hours
worked at the regular rate and of not compensating its employees’ overtime hours
at the required time-and-a-half rate. [129] ¶ 42. For employees who had worked
Bracketed numbers refer to entries on the district court docket. The facts are largely
taken from Nation One’s response to Torres’s Local Rule 56.1 statement, [129], and Torres’s
response to Nation One’s Local Rule 56.1 statement, [132], where both the asserted fact and
the opponent’s response are set forth in one document.
1

3

overtime during a given pay period, defendants would cut those employees two
checks on payday: the first was a payroll check for forty hours at the regular rate,
and the second was a business check for the additional hours, also at the regular
rate. [129] ¶ 43. Additionally, Nation One had a practice of deducting $4.84 from its
employees’ weekly wages for company uniforms and half an hour of pay from its
employees’ daily wages for a lunch break. [129] ¶¶ 58, 65.
Between 2011 to the present, defendants employed Torres, the opt-ins, and
members of the certified class. [129] ¶¶ 1, 4–7, 20. During this time, these
employees routinely worked more than eight and one half hours per day and more
than forty hours per week. [129] ¶¶ 27–41. In 2013, the Illinois Department of
Labor notified defendants of its intent to investigate Nation One’s time and payroll
records for “all current and past employees who worked during the period of May 1,
2011 to July 31, 2013, which records by law you are required to maintain.” [129-3]
at 2. The letter requested that defendants “assemble and have available the records
set forth in ‘Attachment A’ of this letter for the period to be audited and have
available for an interview a company representative who is knowledgeable about
the structure and management of the company.” Id. Less than one month later,
IDOL completed the audit and found that Nation One was not in compliance with
the IMWL, 820 ILCS § 105/1-15, because it failed to pay its employees the required
rate for overtime worked. [120-4] at 2; [129] ¶ 44.
Torres worked for Nation One from approximately March 2011 to November
2011. [129] ¶ 1. He typically worked Monday through Friday from 6:40 a.m. to

4

either 5:15 p.m. or to 6:30 p.m. [129] ¶¶ 27–28. He also usually worked two
Saturdays per month from 6:40 a.m. to either 4:00 p.m. or to 4:20 p.m. [129] ¶¶ 29–
30. He earned $9.50 per hour. [129] ¶ 46. He regularly performed work before he
clocked in and after he clocked out for his shift, for which he was not paid. [120-1] at
4, ¶¶ 26, 28–32. Half an hour was automatically deducted from his daily pay, even
though his lunch break was interrupted and he was called back to work at least
three times per week. [120-1] at 4, ¶¶ 33–36. In total, he was shorted eight hours of
pay per week. [120-1] at 4, ¶ 25. Since Torres was not paid for all of the time he
worked, his wages often fell below the state-mandated minimum wage. [129] ¶ 68.
The opt-in plaintiffs provide similar facts for their tenures with Nation One.
Eliseo Marcelo, Marco Marcelo, and Andrez Gutierrez regularly performed work
before they clocked in and after they clocked out, and they were not paid for this
pre- and post-shift work. [120-1] at 17, ¶¶ 29, 31–36; [120-2] at 4, ¶¶ 26, 28–33;
[120-2] at 16, ¶¶ 29, 31–36. For each of these plaintiffs, as with Torres, Nation One
deducted half an hour of wages from their daily pay, even though their lunch breaks
were regularly interrupted—as a result, they were not paid for one and one-half
hours of work per week. [120-1] at 17–18, ¶¶ 37–41; [120-2] at 4–5, ¶¶ 34–38; [1202] at 16–17, ¶¶ 37–41. All of the opt-in plaintiffs, including Alfonso Garcia, typically
worked over 40 hours per week, and each received various payments in
compensation after the IDOL audit. [120-1] at 16, ¶ 17, at 18, ¶ 45; [120-2] at 5,
¶ 42; [120-2] at 15, ¶ 16, at 17, ¶ 45; [120-2] at 28, ¶¶ 15, 21.

5

Defendants maintained pay and time records for their employees, but not all
of the relevant records were produced during discovery.2 [129] ¶¶ 69–70. In 2011,
defendants say they gave their time and payroll records to the payroll service it had
engaged; that business is now defunct and it never returned the documents to
defendants.3 [120-4] at 27, ¶ 37. Sometime thereafter, defendants managed their
payroll internally. [120-3] at 42:11–18. Defendants’ staff produced to plaintiffs all of
the time and payroll documents the company had in its possession; Emmick was
uninvolved in production for discovery. [120-3] at 44:21–45:5. In December 2014,
ADP took over Nation One’s payroll system. [131-1] at 2. ADP produced its payroll
records for Nation One from the end of 2014 through 2016. Id.
CEO Emmick was also absent from the IDOL audit process. [120-3] at 42:11–
18. Since defendants have not identified which records it turned over to IDOL, it
remains a mystery which records IDOL reviewed and which documents formed the
basis for the audit’s conclusions.
III.

Analysis
A.

Applicability of the FMLA, the IMWL, and the IWPCA

Defendants admit they were the “employer” of Torres, the opt-ins, and the
class during the relevant time period under the FLSA, the IMWL, and the IWPCA.
[129] ¶¶ 21–22; 29 U.S.C. § 203(d); 820 § ILCS 105/3(c); 820 ILCS § 115/2. The only
From 2011 to 2013, Nation One used a manual punch time clock system to track its
employees’ hours. [132] ¶ 3. It then upgraded to an electronic system and later to a
computer system. [132] ¶ 4.
2

Defendants were reckless in failing to safeguard relevant documents during discovery.
[116].
3

6

dispute as to the applicability of these three statutes to this lawsuit pertains to optin plaintiff Gutierrez. Defendants argue that Gutierrez was exempt from the
overtime pay requirements of the FLSA and the IMWL. [129] ¶ 23.
The FLSA exempts employees who are employed in a “bona fide executive,
administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The implementing
regulations further define this phrase to mean any employee: “(1) compensated on a
salary or fee basis at a rate of not less than $455 per week […]; (2) [w]hose 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; and (3) [w]hose primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance.” 29 C.F.R.
§ 541.200(a). The IMWL exemption is the same. 820 ILCS § 105/4a(2)(E); see also
Kennedy v. Commonwealth Edison Co., 410 F.3d 365, 376 (7th Cir. 2005).
Gutierrez’s salary in 2013 and 2015 exceeded the statutory requirement,
thereby satisfying the first element. [129] ¶¶ 55–56. With respect to the second
element, defendants say Gutierrez was a crew supervisor who managed job sites,
directed workers on his crew, made decisions in the field, and was free from direct
supervision in the field. Id. Support for this statement comes from Emmick’s
affidavit. Emmick, however, has virtually no personal knowledge of what went on in
the field and therefore cannot provide an evidentiary foundation for this statement.
By contrast, Gutierrez’s affidavit states that as a crew leader, he completed job
assignments “alongside the crew” in the field and did not work in the Nation One

7

office. [131-1] at 29, ¶¶ 4–5. He was “responsible for showing the crew how to
perform their job assignments,” but in no way did he describe having the ability to
exercise discretion or independent judgment in this role. Defendants have not
offered evidence to support their assertion that Gutierrez performed office or nonmanual work in furtherance of the management of Nation One. As such, the second
and third elements are not met and Gutierrez is not exempt from the overtime
requirements under the FLSA, or under the IMWL by extension.
In this action, the FLSA applies to Torres and the opt-ins, and the IMWL and
the IWPCA apply to Torres and the class (of which the opt-ins are a part).
B.

Improper Payment of Overtime Wages Under the FLSA and the
IMWL

Given the common purpose and similar language of the FLSA and the IMWL,
courts analyze both statutes the same. Lewis v. Giordano’s Enters., 397 Ill.App.3d
581, 592–593 (1st Dist. 2009); see also Condo v. Sysco Corp., 1 F.3d 599, 601 n.3 (7th
Cir. 1993). Both statutes require an employer to pay one and one-half times the
regular rate of compensation for any hours an employee works in excess of forty
hours per workweek. 29 U.S.C. § 207(a); 820 ILCS § 105/4a.
Plaintiffs argue that they were not adequately paid for the hours of overtime
they worked each week because of defendants’ practice of paying for all hours
worked at the regular rate. [129] ¶ 43. Torres’s and the opt-ins’ affidavits state that
during the relevant time period, defendants paid them at their regular hourly rate
for all hours worked in one payroll check for forty hours and another personal check
for hours worked in excess of the first forty. [120-1] at 3, ¶ 19; [120-1] at 16, ¶ 23, at
8

18, ¶¶ 47–48; [120-2] at 3, ¶ 20, at 5, ¶¶ 44–45; [120-2] at 15, ¶ 23, at 17–18, ¶¶ 47–
51; [120-2] at 28, ¶ 18. Defendants admit to paying its employees for overtime at the
regular rate, but they claim they only did so until they received the results of the
IDOL audit. [129] ¶ 43. After the audit, defendants say they changed their policy
and paid employees time and one-half for all overtime worked. [132] ¶ 9. To support
these statements, defendants point to Emmick’s affidavit. Id.; [129-1] ¶¶ 11, 21.
Emmick’s deposition testimony, however, reveals he has no personal knowledge
about Nation One’s payroll or if employees were paid. [120-3] at 42:19–43:24, 72:16–
21, 74:1–77:7. Consequently, Emmick’s affidavit is inadmissible on the question of
what employees were paid, and there is no evidence to support defendants’
statement that their two-check scheme of paying employees at the regular rate
regardless of overtime worked ended after the IDOL audit.
Nevertheless,

in

their

response

brief,

defendants

argue

that

the

“discrepancies” between Torres’s statements of fact about overtime and the results
of the IDOL audit create an issue of fact that precludes summary judgment because
the audit was based on Nation One’s time and payroll records. [128] at 4. But
defendants never identified which documents it provided to IDOL for the audit.
When Emmick was asked if he provided IDOL with documents that would show all
hours paid to each worker, he replied: “I did not handle any of it. I wasn’t there.”
[120-3] at 42:11–18.
The charts summarizing IDOL’s findings only report violations in 2012 and
2013. [120-4] at 3–16. Torres’s name does not appear in the chart of employees who

9

were owed payment by Nation One, which makes sense if IDOL did not have Nation
One’s 2011 records, or the like. IDOL’s letter of non-compliance does not shed any
light on the audit process. It does not describe which documents it reviewed or
which time periods it considered. [120-4] at 2. Importantly, the letter does not state
that its determination was exhaustive or binding. Id. This letter and its chart,
therefore, do not support a finding that IDOL’s audit caught every overtime
violation from 2011 to 2013 and for all Nation One employees. This leaves open the
possibility that Nation One failed to pay other employees their overtime wages, and
those instances were not revealed by the IDOL audit. In sum, there is no
meaningful “discrepancy” here and certainly no issue of fact that precludes
summary judgment. Defendants offer no evidence from which a reasonable jury
could find that Nation One did not violate overtime wage requirements under the
FLSA, as to Torres and the opt-ins, and under the IMWL, as to Torres and the class.
Plaintiffs are entitled to summary judgment.
C.

Violations of the IWPCA

The IWPCA requires employers to pay the final compensation in full at the
time of separation, and no later than the next regularly scheduled payday for that
employee. 820 ILCS § 115/5. It also prohibits employers from making deductions
from its employees’ wages unless the deductions benefit the employee or the
employee gave express written consent at the time of the deduction. 820 ILCS
§ 115/9.

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1.

Unlawful Uniform Deductions from Torres and the Class

Torres argues that defendants had a practice of taking deductions for
uniforms from its employees’ wages without written authorization. Defendants
respond that all employees, including Torres and the opt-ins signed employee
handbooks before they began working for Nation One. [132] ¶ 1. Although this
statement is only supported by Emmick’s affidavit, as CEO, he has sufficient
personal knowledge on this topic. Emmick explained the handbook signing process
in his deposition: “When an employee is hired, they sign an employee handbook
when they are hired at the date and time and they read through the whole packet.”
[120-3] at 57:15–20. Torres notes that defendants have not produced executed
handbooks for all employees and that the one executed handbook that defendants
submitted was signed by Torres in 2012, when he was no longer an employee. But
this does not undermine the admissibility of Emmick’s testimony that employees
signed handbooks.
Nation One’s handbook includes a “Uniforms” section, which says: “Each
employee shall be issued 5 uniforms and have the expense deducted from their
weekly payroll.” [129-2] at 14. Defendants argue that the employees’ signature on
the handbook provided express written consent for the deductions. Defendants
admit that they did not secure written authorization at each pay period when the
deduction was made from Torres and the class. [129] ¶ 59. Torres argues that this
admission is dispositive as to defendants’ liability under the IWPCA. He is correct.
The IWPCA permits employers to make deductions from its employees’ wages when
an employee freely gives express consent “at the time the deduction is made.” 820
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ILCS § 115/9. Since defendants admit their failure to obtain express consent from
each employee each time a deduction was made, the uniform deductions were
unlawful under this part of the statute.
Defendants argue that the uniform deductions are permissible under the
IWPCA because the statute permits deductions to benefit the employee. Plaintiffs
do not dispute—with admissible evidence—that Nation One provided uniforms and
required employees to pay for a laundry and repair service.4 [132] ¶ 11. But there is
no evidence that Nation One subsidized the cost of the rentals or that Nation One
received a discounted rate for the group, which it shared with the employees when
it passed the costs for the service off onto the employees. The record only shows that
Nation One employees were required to wear uniforms and that the employees were
forced to pay the costs for the uniform service. Without any evidence that this
compelled payment by deduction was a benefit, a reasonable jury could not find that
the exception under the IWPCA applies.
2.

Unlawful Lunchtime Deductions from Torres

Torres complains that defendants automatically deducted half an hour of pay
from his daily pay for lunchtime, even though his lunches were frequently
interrupted by being called to return to work. His affidavit, which is based on his
personal knowledge, supports these statements. [120-1] at 4, ¶¶ 33–36. In response,

Under the section “Appearance,” the employee handbook stated: “As an employee of
Nation One Inc., we expect you to present a clean and professional appearance when you
represent us, whether that is in, or outside the office. […] Employees are expected to report
to work neat & clean wearing their uniform as described below under Uniforms.” [129-2] at
2 (emphasis original).
4

12

defendants admit to the automatic lunchtime deduction, but dispute that
employees’ lunches were ever interrupted. [129] ¶ 65. Defendants cite Emmick’s
affidavit as support, which states that the policy5 in Nation One’s handbook allows
each employee to receive one half hour for lunch; that no employee ever complained
to Emmick about being shorted their lunchtime; and that Emmick was unaware the
employees were not being allowed to take the full half an hour for lunch. Id.; [129-1]
¶ 12. Emmick emphasized his lack of knowledge about lunchtime interruptions and
lunchtime deductions in his deposition: “I’m unaware if they don’t take a lunch or
not. I’m not in the field. The foreman handles that.” [120-3] at 54:5–7; [120-3] at
28:9–14. Again, Emmick’s lack of personal knowledge as to the relevant subject—
here, lunchtime interruptions and automatic deductions—renders his affidavit
testimony about that subject inadmissible.
Relatedly, defendants offered a statement of fact: “The normal work day is 8
and 1/2 hours with a 1/2 [hour] lunch break.” [132] ¶ 5. Defendants point to an
identical statement in Emmick’s affidavit as support. [129-1] at 17. Torres responds
by saying employees regularly worked more than 8 and ½ hours per day and cites
his affidavit and the opt-ins’ affidavits, which explain that their lunches were
regularly interrupted and that the half an hour lunchtime deduction was made from
their pay even when they had worked through their lunchtimes. [132] ¶ 5; [120-1] at
The “Workday” subsection says: “The normal workday is eight (8 ½) hours for hourly
workers, with 40 hours paid (see Lunch Period & Break Time) as a normal work week.”
[129-2] at 7 (emphasis original). The “Lunch Period & Break Times” section says: “Lunch
breaks are not scheduled for any certain time during the workday for field employees. […]
Lunch will be no more than 30 minutes. The employee will not be paid for lunch.” [129-2] at
9.
5

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4, ¶¶ 33–36; [120-1] at 17–18, ¶¶ 37–41; [120-2] at 4, ¶¶ 34–38; [120-2] at 16–17,
¶¶ 37–41. These individuals’ descriptions of what happened to them, personally,
refutes any claim Emmick made about the “normal work day” (especially since he
has no personal knowledge of what happens in the field at lunchtime) and likewise
refutes any general Nation One policy about how lunchtime was supposed to be
taken and accordingly deducted.
The undisputed record, therefore, shows that Torres frequently worked
through his lunchtime. Defendants do not argue that this deduction was valid under
the IWPCA because it benefitted Torres or because Torres consented to it (and as
discussed above, signing the handbook was not consent given at each time the
employer took the deduction). Torres is entitled to summary judgment on his
IWPCA claim related to the lunch deduction.
3.

Unpaid Pre- and Post-Shift Work by Torres

Torres says he was required to arrive at the shop fifteen minutes before the
start of his shift in order to load equipment onto the truck (in preparation for his
shift), but he was not allowed to clock in until he left for the first job site. [129] ¶ 62.
Similarly, he was required to stay at work approximately fifteen minutes after he
clocked out from his shift in order to unload the equipment from his truck into the
shop. [129] ¶ 63. He was not compensated for this required pre- and post-shift work.
[129] ¶ 64. As support, Torres points to admissible statements in his affidavit, [120-

14

1] at 4, ¶ 25–27, and to a policy in Nation One’s handbook, [129-2] at 7.6 Id. That
policy, under the “Time Clock and Time Cards” subsection, says: “Where applicable,
Nation One Inc. employees must punch in before beginning their work shift and
punch out at the end of their shift. All such employees are expected to work their
entire shift. Employees must be ‘clocked-in’ to be paid […]. ***** Please note that
we prefer you to report approximately 5-10 minutes early so that you can
prepare your personal equipment and are ready to start promptly on time.
*****” Id.
Defendants deny these statements and attempt to controvert them by
pointing to a paragraph in Emmick’s affidavit, to Nation One’s handbook (without a
specific reference to a particular section), and to IDOL’s charts that summarize the
amounts Nation One failed to pay certain employees (again without a specific
reference to a particular section). [129] ¶¶ 62–64.
Emmick’s affidavit states: “Nation One employs [sic] were not shorted pre
and post shift work. They were paid for all time worked. The Employee Manual,
states that it is preferred, not required, that employees arrive 5 to 10 minutes early
so they can start their shifts promptly.” [129-1] ¶ 12. During his deposition, Emmick
revealed that he has no personal knowledge about specific employees’ shifts,
including how they were supposed to clock in and out. But when asked if workers
“ever perform services before they punch in,” Emmick replied: “No, they do not.”

The Opt-ins made similar statements in their affidavits about required but unpaid preand post-shift work. [120-1] at 17, ¶¶ 29, 31–36; [120-2] at 4, ¶¶ 26, 28–33; [120-2] at 16, ¶¶
29, 31–36.
6

15

[120-3] at 26:18–20. Emmick’s testimony is not admissible; it is conclusory and it
lacks personal knowledge. The employee handbook includes statements indicating
that employees do not have a normal workday, that they are expected to arrive
early, and that pay does not begin until employees clock in. [129-2] at 3, 7. But
these statements do not suggest that Torres did not engage in pre- and post-shift
work—they support the claim that if Torres worked before clocking in and after
clocking out, he was not paid for it. IDOL’s charts do not contribute to the analysis
here because its determination was not exhaustive or binding. Viewing Emmick’s
affidavit and deposition testimony together with the policies in Nation One’s
handbook, there is no admissible evidence to controvert Torres’s statement.
The undisputed record demonstrates that Torres was never paid for required
pre- and post-shift work he performed. The IWPCA requires that employees be paid
no later than the next regularly scheduled payday. That date has long since passed.
As such, defendants violated the IWPCA.
D.

Violation of the Minimum Wage Law Under the IMWL

The IMWL requires employers to pay their employees the minimum wage of
$8.25 per hour. 820 ILCS § 105/4. Torres says he was not compensated for all the
time he worked, due to the lunchtime deductions and the nonpayment for pre- and
post-shift work, and that as a result, his wages often fell below the state-mandated
minimum wage. Specifically, Torres states he was shorted eight hours of pay each
week. [129] ¶ 61. Defendants deny this statement of fact and cite Emmick’s affidavit
for support. Id.; [129-1] ¶ 12. Emmick has no personal knowledge about how many
hours Torres worked or about how much Torres was paid in any given week;
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consequently, the relevant paragraph in his affidavit does not controvert Torres’s
statement of fact. The effect of the eight-hour shortage was as follows: on weeks
where Torres received a weekly wage of $412.78 when he actually worked 51.45
hours, his hourly wage was $8.02 ($412.78 divided by 51.45 hours), which is $0.23
below the state-mandated minimum wage. On such weeks, defendants violated the
IMWL. Torres is entitled to summary judgment on this issue.
E.

Damages Calculations

Defendants failed to properly safeguard relevant documents during discovery.
[116]. As a sanction for their misconduct, defendants cannot dispute any reasonable
estimate by Torres, the opt-ins, and the class of their damages. Id. Moreover, in
Anderson v. Mount Clemens Pottery Company, the Supreme Court held that when
an employee is unable to establish the time he spent working without compensation
because of his employers’ failure to comply with its statutory duty to keep relevant
records, courts should not penalize the employee and instead should “hold that an
employee has carried out his burden if he proves that he has in fact performed work
for which he was improperly compensated and if he produces sufficient evidence to
show the amount and extent of that work as a matter of just and reasonable
inference.” 328 U.S. 680, 687 (1946). If the employee can make that showing, the
burden then shifts to the employer to show that the employee’s evidence is
unreasonable. Id. at 687–688. If the employer cannot undermine the credibility of
the employee’s evidence, the court may award damages to the employee based on
the employee’s approximations. Id. at 688. “The employer cannot be heard to
complain that the damages lack the exactness and precision of measurement that
17

would be possible had he kept records in accordance with the requirements.” Id. In
these circumstances, a court may award damages so long as the employee’s
estimates are reasonable. Id.
1.

Overtime Damages for Torres and the Opt-Ins

Torres and the opt-ins describe in their affidavits how much overtime they
typically worked (broken down by relevant months or seasons, during which times
they were more or less busy) and how many hours they were typically “shorted” per
week based on unpaid pre- and post-shift hours worked and unpaid lunchtime hours
worked. They tabulated this information in their own separate spreadsheets,
calculated the relevant interest rates, and arrived at a sum total of wages owed to
them by Nation One under the FLSA. Their spreadsheets also included an estimate
of deductions and erroneously included the “Total Unlawful Deductions” in the sum
of each opt-ins’ “Total OT Violation.” The collective action that the four individuals
opted into was limited to the FLSA overtime wages claim. [81], [82], [83], [84]. The
FLSA claim in this case does not provide for recovery for unlawful deductions like
the ones alleged here. These portions of plaintiffs’ spreadsheets will be ignored.
With respect to the portions of the spreadsheets focusing on overtime wages
under the FLSA, plaintiffs appeared to calculate damages by multiplying the
individual’s pay rate by the weekly hours paid and adding the statutory interest.
This theory is reasonable, but some clarification is needed before entry of judgment.
For example, Marco Marcelo’s affidavit contains two estimates of the sum of his
owed overtime wages, $20,856.18 and $20,782.78, [120-2] at 5, ¶¶ 46–47, neither of
which is the same as the estimate contained in Marco Marcelo’s spreadsheet,
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$20,782.00, [120-2] at 12. Plaintiffs must resubmit damages calculations consistent
with this order.
Defendants take issue with these calculations for other reasons: they include
wages owed in 2012 and 2013, which were not found in IDOL’s audit of the same
time period and which do not appear in IDOL’s summary charts, and they do not
wholly defer to ADP’s records after 2014. Defendants argue that plaintiffs’
estimates are not credible because there are discrepancies between the estimates
and the IDOL audit. The existence of a discrepancy, however, does not end the
inquiry. It is permissible to rely on an employee’s recollection when there are no
employer records, so long as that recollection is not “flatly refuted” by other
evidence in the record or so “internally inconsistent or implausible on its face” that
“no reasonable person would believe it.” Melton v. Tippecanoe Cty., 838 F.3d 814,
819 (7th Cir. 2016) (citations omitted).
An audit is only as good as the evidence on which it is based. Since neither
defendants nor IDOL have identified which Nation One documents IDOL reviewed
and since IDOL never claimed that its audit was exhaustive or binding, it is
plausible that additional overtime violations occurred before, during, or after the
audit, for which defendants are liable. The IDOL audit, therefore, does not “flatly
refute” the recollections described in the affidavits.
ADP’s records only capture Nation One’s time and payroll records from
December 2014 through 2016. They do not capture the uncompensated time related
to the automatic lunchtime deduction and the pre- and post-shift work, nor do they

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capture any time from before December 2014 when Torres and all of the opt-ins
except Gutierrez worked. Defendants, therefore, have not shown that ADP’s records
refute plaintiffs’ estimates. Summary judgment is granted in part with respect to
plaintiffs’ theory of calculating overtime wages.
2.

IMWL and IWPCA Damages for the Class

On behalf of the class, Torres argues that: (1) each class member is entitled to
the overtime premium of his then-hourly wage rate multiplied by the average
number of hours worked by Torres and/or the opt-ins in that workweek, less any
payment the class member received as a result of the IDOL audit, plus the
statutory interest of two percent per month from the date of underpayment; and (2)
each class member is entitled to $4.84 for each week the class member worked, plus
statutory interest of two percent per month from the date of the underpayment (to
recover for the unlawful deduction for uniform costs).
Although defendants admit that all members of the class were similarly
situated Nation One employees during the relevant time period, [129] ¶ 24, they
oppose Torres’s approach for determining overtime wages because it is based on
calculations that defendants believe are “fabricated” and “too speculative.” [128] at
5, 9. Representative sampling, like Torres’s proposal, can be used to establish
liability on behalf of a class, just as it can on behalf of an individual plaintiff. Tyson
Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1046 (2016). It is especially useful in
filling an “evidentiary gap” created by an employer that failed to keep required
records. Id. at 1047. In order to be admissible, though, the representative evidence
must be statistically adequate and based on plausible assumptions. Id. at 1049. The
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proposed method in this action is based on a very limited sample size, which Torres
has not proved to be statistically adequate. Torres has not carried his burden of
proof on this issue. Even assuming this formulaic calculation should be admitted,
resolving the persuasiveness of the calculations is almost exclusively the province of
the jury. Id. Summary judgment on the issue of class damages for overtime wages,
therefore, is improper.
On the other hand, summary judgment on the issue of class damages for the
deductions is proper. Torres has established that defendants automatically
deducted $4.84 from its employees’ weekly wages during the relevant time period.
He has also properly assessed the statutory interest for these violations: 2% per
month from the date of underpayment. Since Nation One applied this deduction
consistently over time and uniformly as to all of its employees, there is no need for
representative sampling. Torres reasonably calculates his IWPCA damages to be
$393.30. [120-1] at 8. His proposal that each class member should receive $4.84 for
each week worked, plus the relevant statutory interest is a sufficient approximation
for the damages defendants owe. Plaintiffs should submit damages calculations for
the class members consistent with this order.
IV.

Conclusion
Torres’s motion for summary judgment, [117], is granted in part and denied

in part. The motion is granted as to defendants’ liability in Counts I through V. The
motion is granted as to the theory of how to calculate damages for Torres and the
opt-ins under the FLSA, for Torres under the IMWL, and for Torres and the class

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under the IWPCA. The motion is denied as to the calculation of class damages
under the IMWL.

ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: 12/5/2016

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