Bartoszewski v. Village of Fox Lake
| Decision Date | 01 March 1995 |
| Docket Number | No. 2-94-0251,2-94-0251 |
| Citation | 207 Ill.Dec. 360,647 N.E.2d 591,269 Ill.App.3d 978 |
| Parties | , 207 Ill.Dec. 360, 129 Lab.Cas. P 33,212, 2 Wage & Hour Cas.2d (BNA) 1230 Raymond W. BARTOSZEWSKI, Michael F. Behan, Bill J. Bostic, Charles J. Gliniewicz, Richard W. Good, Robert L. Luerssen, Dennis J. Mason, Jeffrey A. Norris, Thomas M. Olson, Wilma R. Storck, Corrine Thompson, Kenneth M. Welsch, Richard Becmer, Charles Burke, James S. Busch, Sr., Edward Gerretsen, Kevin Huminston, Joseph Neary, Donald Champley, Steven J. Hubbard, Barbara Mertes, Robert Misiek and Christine J. Welsch, Plaintiffs-Appellees, v. The VILLAGE OF FOX LAKE and Fox Lake Police Department, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Charles A. Cohn, Cohn & Cohn, Chicago, for Raymond W. Bartoszewski, Richard Becmer, Michael F. Behan, Bill J. Bostic, Charles Burke, James S. Busch, Donald Champley, Edward Gerretsen, Charles J. Gliniewicz, Richard W. Good, Steven J. Hubbard, Kevin Huminston, Robert L. Luerssen, Dennis J. Mason, Barbara Mertes, Robert Misiek, Joseph Neary, Jeffrey A. Norris, Thomas M. Olson, Wilma R. Storck, Corrine Thompson, Christine J. Welsch, Kenneth M. Welsch.
Howard R. Teegen, Soffietti, Johnson, Teegen & Phillips, Ltd., Fox Lake, for Fox Lake Police Dept., Village of Fox Lake.
The plaintiffs, 23 police officers and civilian employees of the Fox Lake police department, brought this four-count declaratory judgment action against the defendant, the Village of Fox Lake (Village), seeking an order declaring that they are entitled to compensation for attendance at roll call. The trial court dismissed count II of the plaintiffs' complaint, which alleged a violation of two of the Village's municipal ordinances. The court also dismissed a portion of count III of the complaint which alleged that the defendant wilfully violated the Federal Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq. (1988)). The plaintiffs appeal those rulings.
The record shows that 14 of the plaintiffs are police officers who are covered by a collective bargaining agreement with the Village. The remaining nine plaintiffs are either nonunion police support personnel or nonunion sworn supervisory police officers both of whom are not covered by the collective bargaining agreement.
The plaintiffs' second amended complaint alleged that for over 10 years the defendant had required the plaintiffs to report for roll call 10 minutes prior to their daily shifts. They alleged that they are entitled to compensation at the overtime rate (time and a half) for all time spent at roll call. Paragraph 14.15 of the Fox Lake Police Department General Order Manual provided
Civilian dispatchers and records personnel were also required by department regulation to attend roll call.
The plaintiffs further alleged in count II of their second amended complaint that they are entitled to compensation based on two Village ordinances, sections 1-8A-10 and 1-8A-11 of the Village Code (Fox Lake, Ill., Village Code §§ 1-8A-10, 1-8A-11 (1990)). Section 1-8A-10 of the Village Code provides in relevant part:
"WORK DAYS AND WORK WEEK:
A. Except as otherwise provided herein for Police Department personnel * * * the municipal work week shall be:
* * * * * *
Police Department employees ..... 40 hours per week
B. There shall be provided at least (8) hours of rest in each twenty four (24) hour period. Department supervisors shall establish a normal work day specifically designating the starting time, the quitting time and the lunch period, which time shall be strictly adhered to by the Municipal employees." (Fox Lake, Ill., Village Code § 1-8A-10 (1990).)
Section 1-8A-11 provides in relevant part as follows:
"OVERTIME:
A. Authorization, Compensation: Overtime work is work in addition to the established schedule of hours of work per week and shall be kept to a minimum. Overtime work may be authorized by the department head when necessary and such authorized overtime shall be reported to the Trustee chairman of the department. The employees may be compensated for authorized overtime to an amount equivalent to their regular pay or by being granted compensatory time off at the discretion of the department head, not to exceed one normal work week at any one time.
* * * * * *
C. Hours of Work and Overtime: The work week for all police officers * * * shall be a forty (40) hour work week. * * * Overtime work may be authorized by the department heads when necessary and such authorized overtime shall be reported to the Trustee chairman of the department. Police officers may be compensated for authorized overtime at a rate of pay equivalent to their regular pay or being granted compensatory time off, at the discretion of the Chief of Police." Fox Lake, Ill., Village Code § 1-8A-10 (1990).
The trial court dismissed count II with prejudice, finding that: the ordinances cited by the plaintiffs did not support their claim for payment for roll call; the plaintiffs who were members of the union were obligated to file a grievance on this issue under their union contract and therefore the claim was barred; and the Village had a right to consider work segments of 10 minutes per day de minimis.
Count III of the plaintiffs' complaint alleged that the Village violated the Federal Fair Labor Standards Act, which requires compensation for all time worked over 40 hours per week and that the plaintiffs are entitled to compensation at either 1 1/2 times the regular rate of pay or at the regular rate of pay, depending on whether the particular officer falls under the provisions of section 207(a) or section 207(k) of the Act (29 U.S.C. § 207(a), (k) (1988)). In the alternative, the plaintiffs alleged that the Village violated the Act knowingly and willingly and that the underpayment of wages to the plaintiffs was a wilful violation of the Fair Labor Standards Act. The statute of limitations for violations of the Act is two years; however, the limitation period for wilful violations of the Act is three years. (29 U.S.C. § 255(a) (1988).) The trial court dismissed the portion of count III alleging a wilful violation of the Act. In that regard, the court found that the plaintiffs failed properly to plead elements of wilful and wanton conduct.
On appeal, the plaintiffs first argue that the trial court erred in finding that the Village Code did not support their claim for compensation for roll call. They contend that the ordinances clearly provide for compensation for overtime and that overtime served at roll call may not be singled out as an exception. In support of their claim, the plaintiffs rely on Aiardo v. Village of Libertyville (1989), 184 Ill.App.3d 653, 132 Ill.Dec. 939, 540 N.E.2d 861.
In response, the Village notes that the ordinance defines overtime work as "work in addition to the established schedule of hours of work per week." It contends that since the 10-minute roll call segments were part of the plaintiffs' "established schedule" the segments did not fall within the definition of overtime in the ordinance and therefore it was not required to compensate the plaintiffs for the time. The Village claims that Aiardo is distinguishable because the language of the ordinance involved in that case was different from the ordinance involved here.
In Aiardo, Libertyville police officers sought a declaration that they were entitled to compensation for 15 minutes they spent each working day at roll call. There, the ordinance defined the work week as 40 hours per week. It further provided that police officers should be compensated at 1 1/2 half times their regular hourly rate for all police work in excess of the established hours per work period.
We find the Village's attempt to distinguish Aiardo unpersuasive. The ordinance in the case at bar clearly provides for a work week of 40 hours, not 40 hours and 50 minutes. It also clearly provides for compensation of authorized overtime at the regular pay rate or by being granted compensatory time off. Under the Village's interpretation of the ordinances in question, it could extend the working day by two hours instead of 10 minutes and claim that since it was part of the plaintiffs' "established schedule" it does not owe compensation. Such an interpretation is illogical. Moreover, we note that the language in Aiardo providing compensation for work "in excess of the established hours per work period" (Aiardo, 184 Ill.App.3d at 656, 132 Ill.Dec. 939, 540 N.E.2d 861) was very similar to the language in the instant case defining overtime as "work in addition to the established schedule of hours of work per week."
The Village argues that the plaintiffs acquiesced in the Village's policy of not paying for roll call by failing to object for 10 years before filing this lawsuit. We note, however, that the failure to object for a lengthy period, without more, does not mean that a plaintiff acquiesced in working overtime without compensation. (See Ebright v. City of Whitehall (1982), 8 Ohio App.3d 29, 33, 455 N.E.2d 1307, 1311 ().) A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill.2d 278, 286, 102 Ill.Dec. 306, 499 N.E.2d 1319.) Here, nothing from the face of the plaintiffs' complaint indicates any acquiescence was intentional. Accordi...
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