Quentin Kearney, Ken Logan, trolling case, Welcome Inn, Illinois labor law
Judge denies trolling motion in Welcome Inn case
By:   //  Legal

A trolling motion filed in a labor case against the Welcome Inn located in Illinois has been denied. The motion filed by plaintiffs April R. Brashier, Richard M. Orencia, and Chad O. Lebow was denied with leave to refile.

The case has been ongoing since January 2017. Four owners of a Welcome Inn are being sued for allegations of violating that state’s Fair Labor Standards Act (FLSA). The lawsuit is against Quincy Property 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.

On February 12, 2018, the plaintiffs filed a Motion for Tolling of the Statute of Limitations for FLSA Claims of Possible Collective Members for the interim period of March 1, 2017 to January 28.  The parties reached an agreement to toll the statute of limitations beginning January 29, 2018 pending mediation, but the defendants opposed the plaintiffs’ motion for additional tolling. They also requested a hearing and that too was denied.

Understanding Illinois labor laws

Under the FLSA, employees may bring a collective action against an employer to recover unpaid overtime compensation on behalf of themselves and on behalf of other similarly situated employees. Unlike class actions under Federal Rule of Civil Procedure whereby potential plaintiffs are included in the class unless they opt out, potential plaintiffs in FLSA collective actions must affirmatively opt into the suit and the statue of limitations runs until the time of opting in. 

The FLSA requires that an action “be commenced within two years after the cause of action accrued,” unless the violation was willful, in which case a three-year statute of limitations applies.

leagle.com explains, “Under the FLSA, employees may bring a collective action against an employer to recover unpaid overtime compensation on behalf of themselves and on behalf of other similarly situated employees. 29 U.S.C. § 216(b). Unlike class actions under Federal Rule of Civil Procedure 23(b), where potential plaintiffs are included in the class unless they opt out, potential plaintiffs in FLSA collective actions must affirmatively opt in to the suit.” 

It continues, “An FLSA lawsuit commences as to an individual claimant on: (1) the date the complaint was filed if the claimant is specifically named as a party in the complaint and he files his written consent to become a party plaintiff on such date; or (2) the date on which written consent is filed. Therefore, the filing of the lawsuit does not toll the statute of limitations for potential class members until they file their own consents. The statute of limitations in FLSA suits is not jurisdictional and equitable tolling applies.”

Plaintiffs seek monetary damages

Court documents allege that the plaintiffs are seeking unpaid overtime, monetary damages, declaratory and injunctive relief and other equitable and ancillary relief, pursuant to FLSA.

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 allegedly 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.

Their lawyer argued, “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.”

Was Quincy Property a stand-alone business?

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 the same time, plaintiffs’ counsel was approached by 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  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.

Court rulings vary on tolling

As cited on leagle.com courts take several different approaches to equitable tolling. Some courts find that a long delay in ruling on conditional certification or other motions is an extraordinary circumstance that justifies applying equitable tolling.

Other courts recognize that equitable tolling should be granted sparingly and require strict compliance with the equitable tolling standard—diligence and extraordinary circumstances.

“In addition, these courts note that Congress clearly intended that some period of time would pass while the courts considered whether to conditionally certify a class but did not see fit to stop the statute of limitations until a potential plaintiff opted into the case— an action that often does not occur until after a class is conditionally certified and notice is sent,” leagle.com stated. 

“Still other courts find that the issue should not be addressed until after conditional class certification is granted or after the defendant challenges a plaintiff’s or opt-in party’s claim on statute of limitations grounds. These courts reason that a precertification request for equitable tolling implicates too many contingences. That is, the court may decide not to conditionally certify the class, the defendant may decide not to raise a statute of limitations defense, or individuals may not opt in to the class, in which case the court’s equitable tolling decision would likely be an advisory opinion.”

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