Plaintiffs motion for tolling of the statute of limitations in Welcome Inn case
It continues, “It is likely that a group of misclassified employees whose employment ended during the nine months running from March 1, 2014 to January 28, 2015 (based on the FLSA’s 3 year Statute of Limitations) will be entirely removed from the Collective and receive no FLSA Notice, unless this Court Grants Tolling of their claims… More importantly, the termination of these potential Collective Members FLSA rights is due to no fault of those employees, as many are simply unaware of the pending litigation and/or potential claims they may have.”
As previously reported, four owners of a Welcome Inn located in Illinois are being sued for allegations of violating that state’s Fair Labor Standards Act (FLSA).
Plaintiffs April R. Brasher and Richard M. Orencia, individually and on behalf of all persons similarly situated as collective representative under and/or as members of the Collective as permitted under the Fair Labor Standards Act, filed a lawsuit against Quincy Properties LLC, doing business as “Welcome Inn” and Welcome Inn Hotel Management, Inc. and Brett Burge, Kenneth Logan, Quentin Kearney and Joe Wimberly as individuals under FLSA and Illinois Wage Laws.
Court documents allege that the plaintiffs are seeking unpaid overtime, monetary damages, declaratory and injunctive relief and other equitable and ancillary relief, pursuant to the Fair Labor Standards Act.
The plaintiffs allege individually and on behalf of themselves and other similarly situated current, former and future misclassified “salaried” employees of the defendant that they, under both federal and state wage laws, were/are misclassified due to the misclassified employees lacking “Exempt” duties and/or the “Exempt” duties (if any) are overwhelmed by the non-exempt duties and/or loss of exemption due to deductions from salaries of the employees.
Brasher also brought a claim of wage retaliation, as her termination was the direct result of her complaining about the illegal wage deduction and/or overtime wages defendants threatened to impose on her, which is illegal to terminate an employee on those complaints under FLSA, IMWL and IWPCA.
The most recent filing states, “Beyond being unaware, most of these employees have been misinformed about their rights by defendants communications. This group of employees were misinformed by their employers that they were “salaried” thus this group was/is operating under the misconception of full wage payment, created by defendants’ wrongful information. Defendants’ misinformation is made stronger, as most of the employees are low wage, unsophisticated workers, living under the defendants’ roof, thus these employees are much more susceptible to defendants’ false claims of being “salaried.” Tolling will also allow the court to Rule on the Pending Motions to Dismiss, and the potential Collective Members claims will not continue to run/expire, while the Court rules on these Motions.
“Defendants’ spider’s web of corporations (creating a web of representations and a multitude of Motions), refusal to agree to sending of the FLSA Notice and refusal to toll the ‘interim period’ requires the Plaintiffs to file the present motion. The Defendants’ Motions, actions and inactions are ‘extraordinary circumstances,’ as understood by courts in FLSA cases, as these factors undoubtedly delay notification of putative opt-in plaintiffs of their opportunity to join in this action and cause them to lose rights because the statute of limitations have been running since the Motion for Collective was filed on March 1, 2017.”7
PROCEDURAL HISTORY TO DATE
The Plaintiffs filed their FLSA Class and Collective Action Complaint on January 29, 2017. Plaintiffs initially named the following defendants: Quincy Properties LLC, Welcome Inn Hotel Management, Inc. and four individual defendants. Naming of these defendants was based on the information held by the initial plaintiffs, April Brashier and Richard Orencia. Both these plaintiffs worked exclusively in Illinois and at the Illinois location. The plaintiffs’ knowledge of other locations and defendants was imperfect.
However, plaintiffs Brashier and Orencia also initially plead that the defendants operated a number of hotels/motels in Missouri as a joint operation under the FLSA. Defendants’ counsel claimed that the Illinois Corporation, Quincy Property, was a “stand alone” business have nothing whatsoever to do with the other defendants and/or the Missouri businesses. Plaintiffs’ counsel disputed this second claim, pointing to the detailed pleadings which clearly supported a joint employment relationship and asked defendants’ counsel for evidence to support the claim that defendant Quincy Property is/was a “stand-alone” business.
About this same time, plaintiffs’ counsel was approached yet again by yet another “salaried” employee of defendants: Chad Lebow. Mr. Lebow also asked to join the case and provided an FLSA Consent to do so. Plaintiffs’ counsel received from Mr. Lebow his pay records and found that he received paychecks from a “spider’s-web” of businesses. Mr. Lebow also stated (and pled) that he performed work for each and every one of businesses in the “spider’s-web” and that each of the businesses were interlaced. Mr. Lebow’s information was further evidence which directly refuted defendants’ claim that Quincy Property was a “stand- alone” business.
The court subsequently granted the plaintiffs’ Motion and the Clerk filed the Second Amended Complaint on the Docket. Plaintiffs repeated/re-pled the plead claims for Joint employment by the web of interlaced businesses.
PROCEDURAL HISTORY FOR PLAINTIFFS’ REQUESTS FOR FLSA COLLECTIVE NOTICE
On 3/1/17, Plaintiffs filed a Motion for FLSA Collective Notice and asked for the notice to be sent to all the defendants employees. Given the detailed pleadings naming the other entities and the first Notice Motion prayer that “all defendants” be provided notice, plaintiffs’ counsel believed that all the defendants were included in the first motion. On 7/24/17, defendants’ Quincy Properties and four individual defendants filed Responses to the Motion for FLSA Collective. On 7/24/17, Defendant American Motels, LLC, also filed a Response to the Motion for FLSA Notice. No other Defendants filed a Response.
LEGAL PRINICPALS BEHIND THIS TOLLING REQUEST
In other FLSA collective actions, many district courts have Tolled the running of the limitations period for a number of reasons, including where delay is predicated on a Defendants Motions to Dismiss. Here, clearly the delay is clearly placed in the hands of the defendants. Defendants have filed a stack of Motions.
Most defendants’ motions are questionable, for example, Motions for More Specific Statement are normally reserved for complaints by Pro Se Plaintiffs, who generally file jumbled, confusing and/or unsupported complaints. Here Plaintiffs filed detailed, fact-filled and ably supported complaints, attaching and incorporating defendants own business documents as substantial exhibits. Despite these strong well-drafted pleadings defendants claim, without any real argument as to how defendants are ‘confused’ by the Complaint. Motions for More Specific Statements are considered narrowly and with disfavor.
Wherefore for these reasons and those found in the separately filed Memorandum, Plaintiff respectfully requests that this Court:
a) Toll the FLSA claims of the Defendants’ “salaried” employees from the filing date of the first Collective Motion (March 1, 2017) until the signing of the Tolling Agreement between the parties effective January 29, 2018. Thus an Order tolling the statute of Limitations for all salaried employees of all Defendants from March 1, 2017 to January 28, 2018.
b) Certify the requested FLSA Collective and allow an opt-in period of ninety (90) days;
c) Order All Defendants to produce the full names, aliases, addresses, phone numbers, email addresses and last date(s) of performance of all potential putative class members who worked for Defendants, and
d) the last known work and home physical and email addresses and phone numbers of all salaried employees who worked for Defendant from January 28, 2014 to the present, no later than two weeks after the date of the entry of the Order;
- e) Approve a notice based on a form to be submitted by the parties; and
- f) Approve transmittal of the Notice to members of the class via posting at Defendant