Illinois - Seventh Circuit Limits Wage-and-Hour Collective Actions
 
May 14, 2008
 
Kelly D. DeWitt- Chicago

The Seventh Circuit recently held that employees of Commonwealth Edison were not entitled to compensation under the Fair Labor Standards Act (FLSA) for time during which they might be subject to be called in to work. The Court also thwarted the employees’ efforts to proceed collectively on their claim that they were not paid for work performed during their lunch breaks.

In Jonites v. Exelon Corp., No. 07-3053 (7th Cir. April 3, 2008), the plaintiffs represented a class of more than 1,000 linemen and other hourly workers at ComEd. They alleged that ComEd violated their rights under the FLSA through its implementation of a “call out” program for performance of emergency repair work, by forcing them to work during lunch breaks without pay, and by denying them overtime to the extent that the unpaid lunch breaks during which they worked caused their work weeks to exceed 40 hours.

ComEd’s “call out” program notifies employees via phone or pager when manpower is needed for emergency repair work. Employees can provide up to three numbers at which they can be reached and have 20 minutes to respond to calls they receive to perform work. Employees who accept call-out assignments must arrive at their normal duty station within two hours of their acceptance. Employees are not required to accept any particular call-out, but are progressively disciplined if their response or acceptance rates fall below certain percentages.

The plaintiffs claimed that because the frequent call-outs curtailed their freedom of action and were disruptive to their home life, they were entitled to be paid for the time they spent waiting for them. Rejecting this argument, the Court held that, because they only had to stay within a two-hour drive of their regular duty station and be reachable by phone or beeper, the linemen were not working while on call. As such, they were not entitled to be paid for their call-out waiting time.

The plaintiffs also claimed that ComEd violated the FLSA by not paying employees for their lunch breaks. According to the plaintiffs, the fact that the day-shift workers (comprising 70-90 percent of the class) were not allowed to sleep during their half-hour lunch breaks and were required to keep an eye out for trespassing and theft or damage of tools meant that they were actually working and should be compensated for this time, including the resulting overtime. The Court was doubtful, pointing out that “[b]eing forbidden to sleep during a short lunch break cannot be too great a hardship, as it is hard to sleep and eat at the same time.”

Ultimately, though, the Court found that the plaintiffs’ lunch break claims were appropriately dismissed because the class was “hopelessly heterogeneous,” including employees who did not work the day shift and therefore had no conceivable mealtime claim. The Court considered it “preposterous” for the plaintiffs to seek a ruling that “because some ComEd employees may sometimes do some work at lunch, all ComEd employees are entitled to pay during their lunch break.” The Court’s decision should place some limits on collective action FLSA claims, which have become the claim of choice for the plaintiffs’ employment bar.

For more information, email Kelly D. DeWitt at kelly.dewitt@hklaw.com or call toll free, 1.888.688.8500.