Scott Holland Jul. 19, 2016, 4:32pm

A physical therapist who alleged she and potentially more than 100 others like her were not paid the overtime wages due them will be allowed to proceed with her federal class action wage lawsuit against her former employer. 

Federal Magistrate Judge Mary M. Rowland issued an opinion and order July 12 granting plaintiff Nancy Girolamo conditional class certification in her complaint against Community Physical Therapy & Associates and its president, Robert Tripicchio. 

Girolamo, who worked for CPT’s Alden of Waterford facility in Aurora from 2008 through 2015, alleged the firm failed to sufficiently pay employees for overtime hours and that she faced retaliation for complaining about the situation. 

In May, U.S. District Judge Andrea R. Wood had granted a motion to dismiss three counts of Girolamo’s second amended complaint; Rowland’s opinion addressed a third amended complaint filed by Girolamo. 

The underlying problem, per Girolamo’s complaint, is CPT’s productivity requirements, which she alleged effectively required therapy assistants to work off the clock by establishing set time percentages such workers are required to be engaged with patients. These standards, Girolamo wrote, are related to changes in Medicare billing procedures, dating to October 2011. CPT’s response was to require employees to spend 90 percent of their time on billable tasks. 

Since Girolamo and more than 100 other similar employees also had other required tasks that could not be completed within the allotted 40 hours, the result was doing such work on nights and weekends. In her opinion, Rowland wrote that a CPT “senior vice president of corporate operations, testified that she receives complaints of off-the-clock work from management staff three to four times per year, including from locations where Girolamo did not work.” 

CPT argued Rowland should not certify the class of additional plaintiffs because Girolamo had an opportunity to conduct discovery. However, Rowland noted there still is not “a list of potential plaintiffs, and the parties have not had an opportunity to engage in discovery with the potential class members.” 

There remains a lack of clarity about the distinction between job duties of therapists and therapy assistants, but Rowland said she would not apply a stricter review standard at this point. Testimony from two CPT supervisors showed each knew “both therapy assistants and therapists were working off-the-clock,” the judge said. One of the supervisors is also classified as a therapist, and testified at a deposition that she works when not clocked in. 

The defendants also argued the class should be narrowed to exclude part-time employees as well as anyone who did not work at the Alden of Waterford facility. Rowland said the Fair Labor Standards Act applies to any employee who works more than 40 hours a week regardless of employer classification. She also noted Girolamo’s testimony showed evidence of company-wide practice sufficient to extend class membership to employees of other CPT facilities. 

In addition to granting conditional class certification for therapists and assistants who were paid an hourly wage going back three years, Rowland ordered CPT to provide an electronic list of all such workers including names, mailing and email address, telephone numbers and employment dates. She ordered the information to be provided by July 26. 

In her second amended complaint, Girolamo included a count regarding CPT’s regular payment schedule as violating the Illinois Wage Payment and Collection Act. In arguing for dismissal of that count, CPT noted all workers, including those whose CPT employment ends, are paid eventually. Wood said the firm’s “interpretation of the IWPCA contradicts the plain language of the statute. If the Illinois legislature desired to allow a cause of action only for wage payments never made or only for wages paid more than a month late, it could have so written the statute.” 

But whereas Wood refused to dismiss Girolamo’s complaint regarding the IWPCA, she did grant a motion to dismiss a similar claim under the FLSA, which “does not specify a particular time in which an employee must be compensated.” 

In Rowland’s opinion on the third complaint, she ordered the phrase “and to timely pay” be stricken from the sentence: “The lawsuit is about whether (CPT) failed to pay overtime and to timely pay its therapists and therapy assistants.”

CPT is defended in the case by attorneys with the firm of Nixon Peabody LLP, of Chicago. 

Girolamo is represented by The Fish Law Firm, of Naperville. 

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