Judge hauls away OT pay class action brought by tow truck drivers vs Chicago wrecker company

By Scott Holland | May 3, 2016

A Chicago federal judge has put the brakes on an attempt by a group of tow truck drivers to collect overtime pay they claimed they were owed under federal law from a Chicago tow operator.

Judge John J. Tharp Jr. issued an April 26 opinion on a putative class action complaint three tow-truck drivers filed against Chicago 24 Hour Towing and its owner, Oren Chen. The drivers, Andrew Demma, Felix Ramos and Ruben Gutierrez, argued they should have been afforded protections under the federal Fair Labor Standards Act.

The judge, however, said the plaintiffs sued under the wrong law, finding that, since they were regularly dispatched to jobs across state lines, the federal Motor Carrier Act governed their relationship with their employer, and not the FLSA.

The decision came down in favor of the company’s motion for summary judgment, in which the tow operator had contended its drivers should actually be exempted from the FSLA and, by extension, Illinois’ Minimum Wage Law because they are subject to the Motor Carrier Act regulations.

Tharp explained FLSA overtime exemptions can extend to workers regulated by the U.S. Department of Transportation, “including interstate drivers who work for motor carriers.” The plaintiffs conceded they did work outside Illinois between November 2011 and November 2014. But the drivers also recalled fewer instances of such work than company paperwork documented, according to court documents.

In explaining his decision, Tharp cited the 2011 Seventh Circuit Court of Appeals decision in Johnson v. Hix Wrecker Service, which “explored the applicability of the motor-carrier exemption to tow-truck drivers,” such as the plaintiffs who brought the action against Chicago 24 Hour Towing. While the drivers argued their “forays across state lines were too infrequent or sporadic” in context of tens of thousands of in-state dispatches, Tharp said Johnson affirmed that “even minor involvement in interstate commerce as a regular part of an employee’s duties subjects that employee to the Secretary of Transportation’s jurisdiction.”

Yet whereas the Johnson decision favored the plaintiffs in that case, Chen and his company argued successfully its framework required Tharp to rule in their favor in this instance.

“It is undisputed that Towing sent drivers out-of-state in almost every month during the relevant time period and never went four months without doing so,” Tharp wrote. “The specificity here as to the frequency of Towing’s interstate activities contrasts with the defendant’s ‘vague’ statement in Johnson that it ‘routinely’ provided interstate services.”

Since all the company’s drivers were subject to out-of-state calls, and since the named plaintiffs handled many such assignments, Tharp found no dispute of the regularity of the company’s interstate business.

The drivers attempted to argue the company’s flatbed trucks were more likely to be sent out of state than the wheel-lift truck they more often operated. But the judge found, ultimately, the drivers failed to prove there is a rule that their out-of-state calls were so minimal as to keep them under FLSA provisions. Tharp also said the drivers were incorrect to suggest only their roles were relevant, as exemption depended on both the putative class and the employer’s larger classification.

“The plaintiffs do not dispute that the employer … is a motor carrier subject to DOT regulation,” Tharp wrote. “And they cannot dispute that, as drivers, they engage in activities that affect motor vehicle safety in interstate commerce.”

Tharp granted the company’s motion for summary judgment on both of the plaintiffs’ claims.

The drivers were represented in the action by attorneys with the Consumer Law Group, of Chicago.

Chicago 24 Hour Towing was defended by attorneys Sheldon M. Lustig and John H. Wickert, both of Northbrook.

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Consumer Law Group Lustig & Associates

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