Plaintiffs seek texting communication in Welcome Inn case

By: Contributor  //  Legal, Uncategorized

The plaintiffs in the case against Welcome Inn have asked the court to allow texting as a means of communication.

John C. Ireland, who represents 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, in a lawsuit filed 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.

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.

According to court documents filed March 16, the defendants oppose sending of a shortened notice via text and oppose class members joining via text. It further alleges that defendants oppose allowing plaintiffs’ counsel the same opportunity that defendants have/had to communicate to the collective; face to face meetings. 

The lawsuit has been ongoing for over a year. It further alleges that the defendant “has an actual practice of making improper deductions from an employee’s salaries and defendant does not (and did not) reimburse the employee(s) for improper deductions, thus the defendant loses the exemption status as to that particular employee and subject themselves to liability under the FLSA, including implications with State and Federal overtime requirements.”

It continues, “Further defendant here has an actual practice of improper deductions from employees salary thus the exemption is lost during the time period of the deductions for employees in the same job classification working for the same managers responsible for the improper deductions. The loss of exemption by other salaried employees is supported by the US Department of Labor Fact Sheet 17G which reads in part: ‘Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. Subject to exceptions listed below, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. Exempt employees do not need to be paid for any workweek in which they perform no work. If the employer makes deductions from an employee’s predetermined salary, i.e., because of the operating requirements of the business, that employee is not paid on a “salary basis.” If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.’”

In their filing to allow text communication, the plaintiffs’ attorney notes that it is the most effective, and in some cases, the only means of communication with many collective members. It states that the request is also supported by lack of proper records for the collective.

“In fall of 2017, plaintiffs’ counsel sent out 66 Corrective notices pursuant to Court Order of 9/29/17. The Corrective notices were sent to addresses provided by defendants, and 13 of those notices were returned. This is a 28 percent return.” 

Ireland argued that the passage of time, September to March, has made the likelihood of less effective mailings even greater. A number of plaintiffs likely have moved from the defendants hotels, therefore, will not receive the notice via US mail. 

Court papers also note that the postal service will not forward mail for residents addressed at an organization, business, place of employment or other affiliation, hence, the motel employees who have moved out cannot have their mail forwarded to a new address.

Court documents cite the case of Irvine v. Destination Wild Dunes Mgmt. whereby the court approved the sending of notices via texting. The decision states, “This has become a much more mobile society with one’s email address and cell phone number serving as the most consistent and reliable method of communication.” It further states that political candidates routinely seek out supporters cell phone numbers and email addresses because traditional methods quickly become obsolete. 

Ireland also argued that the plaintiffs should be allowed to hold face-to-face meetings with defendants employees. “This request is made as defendants are allowed this type of communication every day and have used that to their advantage. Plaintiffs and counsel should have the same opportunity to answer questions and provide information in the same forum and settings.” 

Defendants overuse of complex and confusing language

Court documents allege that the defendants draft contains numerous complex, confusing and legalize-type language. “The shear density of the defendants introduction sentence should result in denial of their draft. The sentence is ten lines long, and is, in essence, a long run-on sentence…” 

Ireland noted that the defendants jog between bold and italic fonts, making reading further complicated. 

Texting, he wrote, would alleviate the complexity of the messages and ensure plaintiffs were receiving messages. 

Lexis Nexis shows no update to this latest pleading. 

The case is being heard by U.S. Magistrate Judge Tom Schanzle-Haskins.

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