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
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
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
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.