Ecker v. Big Wheels, Inc.

• Decision Date: 12 September 1985
• Docket Number: No. 4-85-0203,4-85-0203
• Citation: 483 N.E.2d 639,91 Ill.Dec. 293,136 Ill.App.3d 651
• Parties: , 91 Ill.Dec. 293, 27 Wage & Hour Cas. (BNA) 596 James ECKER, Plaintiff-Appellant, v. BIG WHEELS, INC., an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 639

483 N.E.2d 639

136 Ill.App.3d 651, 91 Ill.Dec. 293,

27 Wage & Hour Cas. (BNA) 596

James ECKER, Plaintiff-Appellant, v. BIG WHEELS, INC., an Illinois Corporation, Defendant-Appellee.

No. 4-85-0203.

Appellate Court of Illinois Fourth District.

Sept. 12, 1985.

Manion, Janov, Edgar, Devens & Fahey, Ltd., Danville, for plaintiff-appellant; Rick E. Janov, Danville, of counsel.

Traci Nally-Harris, Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., Champaign, for defendant-appellee.

GREEN, Presiding Justice:

On July 2, 1984, plaintiff, James Ecker, filed a four-count complaint in the circuit court of Ford County against defendant, Big Wheels, Inc. Count I sought overtime wages which plaintiff claimed to have accrued over the years beginning in August 1974 and to be due and owing pursuant to statute. Count II sought punitive damages for defendant's failure to pay the wages. Counts III and IV alleged the tort of retaliatory discharge and are not in issue in this appeal. On March 7, 1985, the trial court allowed a defense motion as to counts I and II and dismissed those counts in bar of action. On March 22, 1985, the trial court made a finding pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)) making the March 7 order appealable as of right. Plaintiff has appealed the order dismissing counts I and II. We affirm.

Counts I and II were brought under and turn upon the provisions of section 12 of the Minimum Wage Law which at the time of filing of the complaint stated:

"(a) If any employee is paid by his employer less than the wage to which he is entitled under the provisions of this Act, the employee may recover in a civil action the amount of any such underpayments together with costs and such reasonable attorney's fees as may be allowed by the Court, and any agreement between him and his employer to work for less than such wage is no defense to such action. Every such action shall be brought within 3 years from the date of the underpayment. Such employer shall be additionally liable to the employee for punitive damages in the amount of 2% of the amount of any suchunderpayments for each month during which such underpayments remain unpaid, or in an amount equal to such underpayments, whichever is smaller.

(b) At the request of any employee paid less than the wage to which he is entitled under the provisions of this Act, the Director may take an assignment of such wage claim in trust for the assigning employee and may bring any legal action necessary to collect such claim, and the employer shall be required to pay the costs.

(c) The Director is authorized to supervise the payment of the unpaid minimum wages and the unpaid overtime compensation owing to any employee or employees under Sections 4 and 4a of this Act and may bring any legal action necessary to recover the amount of the unpaid minimum wages and unpaid overtime compensation and an equal additional amount as punitive damages, and the employer shall be required to pay the costs. Any sums thus recovered by the Director on behalf of an employee pursuant to this subsection shall be paid to the employee or employees affected." (Ill.Rev.Stat.1983, ch. 48, par. 1012.)

Section 12 had contained substantially the same provisions at all times pertinent hereto except that subsection (c) was added by P.A. 83-203, section 1, effective January 1, 1984.

As pertaining to counts I and II, defendant's motion to dismiss asserted (1) the three-year limitation period set forth in section 12(a), (2) that the Illinois Department of Labor (Department) had conducted an investigation, and defendant had made a payment to plaintiff of $3,363.68 pursuant to the investigation, (3) the counts were not sufficiently definite and certain, and (4) plaintiff had failed to exhaust his administrative remedies and should have had the Department "pursue this civil action." The motion was accompanied by the affidavit of Richard B. Jewell, defendant's secretary-treasurer. It set forth that (1) the affiant had assisted the Department in an investigation, (2) as a result thereof the sum of $3,363.68 overtime pay was found to be due, (3) a payment in the sum of $1,923.68 was "made to plaintiff," and (4) the latter sum was the amount owing directly to plaintiff after subtracting the required withholding for social security and state and Federal income taxes from the amount of $3,363.68.

In its order of dismissal of March 7, 1985, the trial court noted that in count III, paragraph IV of the complaint, the plaintiff admitted he had requested the Director of the Department to collect the claim. The court construed this as constituting an admission that an assignment had been made. The...