Illinois Appellate Court Reverses Certification in Off-the-Clock Case

by BakerHostetler

With many of the most common sources of overtime claims being exhausted (e.g., assistant manager cases), plaintiffs are bringing off-the-clock cases in increasing numbers. While employers should certainly pay nonexempt employees for the hours they work, these claims are being asserted based on ever-more vague allegations. The benefit to the plaintiffs (or their attorneys) is clear: There are many more nonexempt employees than there are exempt ones, and such allegations can be used to sidestep records reflecting that the employees were paid for all hours worked.

Despite the rhetoric, these claims suffer from many practical and policy problems. From a policy perspective, most employers do have time-keeping systems and rely upon those systems to calculate the appropriate pay. Policies requiring employees to report off-the-clock time (or even requests for such time) are becoming more common. Having those systems undermined by anecdotal evidence of deviations makes it all but impossible for employers to avoid litigation. It does little to ensure compliance.

And then there is the problem of whether and how employees may be required to work overtime – or whether the claimed off-the-clock time is compensable at all. Commute time, time walking to a workstation within a plant or in many cases time spent in an employee locker room may not be compensable. And off-the-clock time may result from an employee working without the employer’s knowledge, a request by a supervisor that is contrary to company policy, or misunderstandings between the employer and supervisor. A company policy discouraging overtime, for example, is generally intended to mean that employees work efficiently and complete their assigned tasks within a 40-hour workweek. Yet some employees, often those struggling in their positions, may put in unrecorded time simply to meet performance standards –without telling their employer. Yes, some of these may create claims, but almost by definition they defy class action treatment.

So, it’s a relief to see opinions such as the one recently issued by an Illinois appellate court in Murphy v. Group O, Inc., Case No. 12-L-138 (Ill. Ct. App., Sept. 20, 2017). In that case, the employer was a contractor who had approximately 700 employees working in a large manufacturing facility. Their work encompassed 27 different positions and they performed services throughout the plant. The employer used the common Kronos electronic time-keeping system, which in this instance was programmed to “round” time and to deduct 30 minutes per day for meal periods. Predictably, the employees characterized the rounding as indiscriminate and argued that on occasion they would be required by circumstances to work through their lunch break. Employees were expected only to work within a scheduled time frame, but were paid (and possibly disciplined) if they punched in outside of that period.

The plaintiffs testified that they worked approximately 10 minutes before their scheduled shifts and could not leave for the day until they had completed their assigned work. In depositions, the plaintiffs gave different explanations regarding how this might result in unpaid time. One employee pointed to the unique demands of her position. Another juggled time to meet child care obligations. Some employees were steps away from a plant entrance, while others might need to walk over 10 minutes away. The employee deponents gave different accounts of how they conducted their breaks, whether in a break room, socializing with other workers or smoking outside. Thus, the case looked like many other off-the-clock cases that are routinely brought. Relying primarily on the rounding procedure, the trial court certified the case under the Illinois equivalent to Federal Rule 23, and the defendant appealed.

The court of appeals found that the trial court abused its discretion in certifying the class. In essence, the court found that the issue in the case was not the use of rounding, or auto-deduct policies, but whether the employees were actually forced to work through the time that was auto-deducted. It found that the evidence on that score failed to reflect any common policy or scheme. Indeed, the court noted that the different plaintiffs gave different accounts of when, how or why they were not paid at various times. As the court concluded, “[i]n short, plaintiffs have failed to set forth any uniform mandate requiring all putative class members to work without compensation.” Thus, the claims would have required the trial court to examine each employee’s own situation, a task inconsistent with a class.

The Murphy case highlights the problems with even a single-site wage-and-hour case alleging off-the-clock work. Absent an illegal uniform policy, full examination frequently does devolve into a series of individual inquiries. In this instance, the employer was able to avail itself of interlocutory appellate review, but many other employers are not as fortunate.

The bottom line is this: Some courts will recognize that off-the-clock cases are poor candidates for class action treatment due to the number of individual circumstances involved.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.