Judges Refuse Certification of Off-the-clock Wage and Hour Cases

by BakerHostetler
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Employees at O’Hare Encounter Delays of a Different Kind

The Northern District of Illinois has now either decertified or refused to certify two “off the clock” cases involving hourly workers at O’Hare Airport. Neither case involves O’Hare employees per se, but both involve large contractors and highlight the pitfalls for plaintiffs in large off-the-clock cases.

In the first case, Solsol v. Scrub, Inc., Case No. 13 CV 7652 (N.D. Ill., May 23, 2017), the plaintiffs worked for a contractor that performed janitorial services at O’Hare. Some of the work was for the airport itself, some was for airlines inside the facility (such as gates), and some involved cleaning the airplanes themselves. The employees contended that they were forced to work through unpaid breaks or required to do work before their start times, or that supervisors underreported their time on input sheets used for calculating payroll. The court, following the familiar two-step rubric, initially certified the class, and approximately 800 employees opted in. After the opt-in period, however, the employer conducted further discovery and moved to decertify the conditionally certified class.

This is the problem with off-the-clock cases. While it was easy enough to allege off-the-clock time to cobble together a “class” under the lower standard for conditional certification, by their very nature these claims are almost always individual in nature. Rarely do off-the-clock claims involve a company policy; far more often, they involve claims that individual supervisors required off-the-clock work or somehow caused it to happen by insisting on production standards, or even allegedly just looked the other way when it happened.

In Solsol, the court found that the size and diversity of the class were also a fatal flaw. Given the very nature of work at O’Hare, one of the largest and most sprawling airports in the world, class members performed different functions, worked under different supervisors, and had a range of experiences. Indeed, O’Hare is so vast a complex that the court could not conclude that it truly constituted a single “location” but rather consisted of many smaller work locations spread over millions of square feet. Discovery revealed that employees cleaning the general areas of the airport had different experiences than, say, those cleaning jet cabins for the various airlines. The time demands alone varied based on the specific function performed. Opt-in testimony also demonstrated that the various employees used their time differently. After reviewing these factors, the court decertified the case.

The second case, Foday v. Air Check, Inc., Case No. 15 C 10105 (N.D. Ill. June 21, 2017), involved a different janitorial services contractor at O’Hare, as well as a different procedural posture. This particular contractor performed, among other things, “lav” services, clearing bridgeways to planes, changing garbage cans and even pulling weeds. The plaintiffs brought claims under both Illinois state law and federal law and sought certification of the class under Rule 23. This case challenged claimed timekeeping practices similar to those challenged by the plaintiffs in Solsol. While they focused on rounding off time and an alleged refusal to pay for time worked outside of scheduled shifts, even then, they alleged an array of claimed practices affecting different employees to assert a violation. The court found no trouble listing the range of issues presented by the proposed class, which covered a host of functions, different work settings, site-by-site evaluations of policies, different supervision and complex problems, in computing damages on a class-wide basis. Finding a lack of Rule 23(a) commonality, and no predominance under Rule 23(b)(3), the court denied the plaintiffs’ motion for class certification.

The plaintiffs in both cases probably anticipated a big payoff because of the large number of class members, a single (albeit enormous) site of employment, and early procedural victories, particularly in the Solsol case. Both cases highlight the problems with off-the-clock cases, particularly when the plaintiffs are relying on informal policies or the mandates of individual supervisors. Fortunately for both employers, the court was willing to look at these differences and find certification inappropriate.

The bottom line: Off-the-clock claims are often unsuitable for class or collective treatment, but the employer may have to litigate the case for years before the court will consider the differences among the class members and their allegations.

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.

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