To text or not to text: Illinois court will decide

By: Contributor  //  Legal, Uncategorized

An Illinois court will decide if text messaging can be used in a labor case filed against the owners of the Quincy Welcome Inn.

The lawsuit has been ongoing for over a year with both sides now arguing whether the plaintiffs can receive certain notifications by text message.

As previously reported, the plaintiffs in the case 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 have asked the court to allow text messaging as it is the only means of communication with many collective members. Those members include April R. Brasher and Richard M. Orencia.

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 documents filed March 16, the defendants oppose sending shortened notices via text messaging 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. 

In their filing to allow text communication, the plaintiffs’ attorney, John C. Ireland, noted 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.” 

Defendants respond

In a March 29 filing, the defendants claim the plaintiffs criticize the 72 percent success rate of the previously mailed corrective notices. Plaintiffs then demand that the court accept a series of assumptions including that:

a) all potential opt-ins have mobile phone numbers that could receive sufficient notice related data in a single text

b)that all potential opt-ins have shared the current mobile phone numbers with defendants for texting purposes

c) that text notice recipients would not need to print out the consent form to sign by hand and deliver to plaintiffs’ counsel.

Attorney’s for defendants also argued that the typical length of a standard text message (SMS) is 160 characters, including letters, numbers, special characters and punctuation marks.

“The limits of texting prevent creating a sufficient notice with 160 or fewer characters. The authenticity of text messages is also a cause for concern. Many but not all devices that send text messages have the capacity to use an auto signature, which any user of certain mobile devices may activate,” the defendants’ response states. It is also noted that there may not be printing capabilities via text messaging unless the message is transferred to email.

“None of what plaintiffs present addresses the severe limits on length imposed by text messaging which impact what appears in a notice, the authenticity challenges related to texting devices, or the inability of text notice recipients to print a notice from their mobile device to sign and deliver to plaintiffs’ counsel,” the response contends. “In conclusion, the Court should approve Defendants’ proposed notice as it is consistent with the case law of this jurisdiction and includes all individuals in the job categories of the named Plaintiffs. It even goes beyond that basic requirement and includes those individuals in job categories similar not only to the Plaintiffs but to those who already have opted into this litigation. In contrast, the Plaintiffs’ proposed notice is vague, overly broad, and even includes individuals who are defendants but also exempt from the overtime requirements of the FLSA. For these reasons, the Plaintiffs’ proposed notice should be rejected.”

Illinois, like most states, has many labor laws. Minimum wage is set at $8.25 and requires employers to permit employees who are to work 7.5 continuous hours or more to take a meal period of at least 20 minutes.  The meal period may be unpaid and it must be given to an employee no later than five hours after beginning work.

Illinois does not have a law regarding breaks other than the 20-minute meal period, so the federal standard applies. The federal rule does not require an employer to provide either a meal (lunch) period or breaks. However, if an employer chooses to do so, breaks, usually of the type lasting less than 20 minutes, must be paid. The meal period is extended to 30 minutes if the employee is under age 16 and has worked five consecutive hours.