2011 IL App (1st) 110318
November 21, 2011
EARL KERBES, Individually and on Behalf
of All Others Similarly Situated,
RACEWAY ASSOCIATES, LLC, d/b/a
Chicagoland Speedway, a Subsidiary of
International Speedway Corporation,
a Florida Corporation,
Appeal from the
Circuit Court of
No. 10 CH 09662
Mary Anne Mason,
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Justice Hall and Justice Karnezis concurred in the judgment and the opinion.
Plaintiff, Earl Kerbes, individually, and on behalf of all others similarly situated, filed the
instant class action lawsuit against defendant, Raceway Associates, LLC, d/b/a Chicagoland
Speedway, a subsidiary of International Speedway Corporation, a Florida corporation (collectively,
ISC). The suit arises out of ISC’s decision to change the paid workweek of its part-time hourly
employees from a schedule that ran from Tuesday through Monday to one running from Saturday
through Friday. Plaintiff, alleging that the class of part-time workers he represented typically
worked well over 40 total hours during racing events held from Thursday to Sunday, sought to
recover overtime pay allegedly denied them due to the change in the workweek schedule. The
circuit court dismissed plaintiff’s claim for a failure to state a cause of action and plaintiff has now
appealed. For the following reasons, we affirm.
Plaintiff filed his initial complaint against ISC on March 10, 2010. In that complaint,
plaintiff generally alleged that he had been a part-time security guard since 2002 at Chicagoland
Speedway in Joliet, IL. Chicago Speedway hosted a number of motorsport events at its racetrack,
with the races themselves typically held on a Sunday following a weekend of related activities that
would begin the preceding Thursday. During such race weekends, as many as 800 part-time
employees would be employed at the racetrack. Such employees were paid hourly and would
frequently work between 60 and 80 total hours over the four-day weekend.
When plaintiff began working at Chicagoland Speedway in 2002, the scheduled workweek
for hourly employees such as himself was Tuesday through Monday. Thus, when plaintiff and the
other part-time employees worked more than 40 hours during a racing event weekend, they would
earn substantial overtime pay. In June of 2007, however, International Speedway Corporation
acquired the Chicagoland Speedway and changed the workweek of its hourly employees to Saturday
through Friday. This change effectively split any racing event weekend into two different
workweeks. Furthermore, because racing events are rarely scheduled on consecutive weekends,
plaintiff and the other part-time hourly employees no longer earned overtime pay for their work on
racing event weekends.
Plaintiff's class action complaint sought to recover for unpaid overtime on behalf of himself
and a class of similarly situated hourly employees of ISC. Specifically, plaintiff asserted that he and
other similar ISC employees "regularly worked more than eight hours per day and forty hours per
week during their employment," but that the change in the scheduled workweek eliminated any
possibility of overtime pay for their work. This change allegedly violated provisions of the Illinois
Minimum Wage Law (Minimum Wage Law) (820 ILCS 105/1 et seq. (West 2010)), the Illinois
Wage Payment and Collection Act (Wage Payment Act) (820 ILCS 115/1 et seq. (West 2010)), and
the Eight Hour Work Day Act (Eight-Hour Act) (820 ILCS 145/1 et seq. (West 2010)).
ISC filed a motion to dismiss plaintiff's complaint pursuant to section 2-615 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)), asserting that the complaint failed to state
a claim under any of these three statutes or, indeed, any other relevant state or federal regulation.
ISC contended that nothing in the Eight-Hour Act required it to pay overtime for hours worked in
excess of eight hours per day, and nothing in the other two statutes cited by plaintiff precluded its
decision to change the workweek in such a way that its part-time employees would no longer
accumulate significant overtime hours on race weekends.
Plaintiff voluntarily dismissed the claim brought pursuant to the Eight-Hour Act, and the trial
court subsequently dismissed the complaint without prejudice following a hearing on August 24,
2010.1 In its written order, the trial court indicated that plaintiff was given leave to file an amended
complaint "to assert a claim for overtime earned but unpaid as of the change in the definition of the
work week [i.e., for overtime earned in the transitional week]. Plaintiff's original claim may be
repled for purposes of preserving it for appeal."
Plaintiff subsequently filed an amended complaint which included both his original claim
as well as a new claim that ISC also owed him and other similar employees for overtime earned
While plaintiff has attached a transcript of this hearing to his brief on appeal, the
transcript was not actually included in the record and it is well recognized that the record "cannot
be supplemented by attaching documents to the appendix of a brief." Whittmanhart, Inc. v. CA,
Inc., 402 Ill. App. 3d 848, 852 (2010). As such, we will not further address the contents of that
during the week when ISC made the transition to the new workweek schedule. The complaint also
included additional factual allegations in support of both claims. Notably, in the amended complaint
plaintiff now alleged that the workweek change occurred in June of 2008. A scheduling order
entered by the trial court on October 26, 2010, indicates that ISC filed a motion to dismiss the
amended complaint, but neither that motion nor any response thereto appears in the record on
appeal. Instead, the record includes only an order entered on December 21, 2010, a scheduled status
date, dismissing the amended complaint with prejudice. Plaintiff timely appealed.
On appeal, plaintiff abandons any claim regarding unpaid overtime earned during the
transitional week. Thus, he only challenges the trial court's dismissal of his claim that ISC's change
to its employees' workweek was improper and denied him and other similar employees overtime and
thus violated provisions of the Minimum Wage Law and the Wage Payment Act. We find that this
claim was properly dismissed.
A. Standard of Review
A motion to dismiss pursuant to section 2-615 of the Code attacks the legal sufficiency of
the complaint. R&B Kapital Development, LLC v. North Shore Community Bank & Trust Co., 358
Ill. App. 3d 912, 920 (2005). "The proper inquiry is whether the well-pleaded facts of the complaint,
taken as true and construed in a light most favorable to the plaintiff, are sufficient to state a cause
of action upon which relief may be granted." Loman v. Freeman, 229 Ill. 2d 104, 109 (2008). A
trial court's decision to grant a motion to dismiss pursuant to section 2-615 is reviewed de novo.
Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill. App. 3d 812, 815 (2003).
B. Preliminary Issues
We first address two preliminary issues. First, while both the plaintiff's original complaint
and his amended complaint contain the original claim regarding ISC's change to its workweek
schedule – and it is the dismissal of that claim that plaintiff challenges on appeal – the amended
complaint contains additional factual allegations in support of both that claim and plaintiff's
additional claim regarding the payment of overtime in the transitional week. Indeed, the amended
complaint asserts that the workweek schedule change actually occurred in June of 2008 instead of
June of 2007. However, the trial court's order dismissing the original complaint only granted
plaintiff leave to add an additional claim regarding the transitional week and to replead the original
claim "for purposes of preserving it for appeal." The trial court did not grant plaintiff leave to
amend the factual foundation supporting the initial claim. Typically, "[i]n order to file an amended
complaint, the plaintiff must seek and obtain the court's permission." Moyer v. Southern Illinois
Hospital Service Corp., 327 Ill. App. 3d 889, 895 (2002).
Moreover, ISC indicates in its brief on appeal that plaintiff did not respond to its motion to
dismiss the amended complaint in the trial court. ISC contends plaintiff instead filed a motion to
voluntarily dismiss the amended complaint with prejudice and it was this motion that was granted
on December 21, 2010. There is nothing in the record to support or refute this rendition of events,
other than the order entered by the trial court on October 26, 2010, indicating that ISC filed a motion
to dismiss the amended complaint and scheduling briefing on that motion, and the December 21,
2010, order which dismissed plaintiff's amended complaint without reference to ISC's motion and
without providing any specific basis for the dismissal.
However, we do note that: (1) plaintiff did not file a reply brief in this court challenging
ISC's assertions; and (2) in his opening brief on appeal plaintiff appears to reference the factual
allegations contained in the original complaint when he refers to June of 2007 as being the time
frame in which ISC changed its employees' workweek. On this record, it thus appears that the
operative allegations at issue in this appeal are those contained in plaintiff's original complaint. See
Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984) (an appellant has the burden to present a
sufficiently complete record of the proceedings at trial, and any doubts that may arise from the
incompleteness of the record will be resolved against the appellant). As such, and although the
differences between the allegations contained in the two complaints do not materially affect our
analysis, we will consider plaintiff's appeal to challenge the dismissal of his claim as presented in
the original complaint below.
Second, we note that both parties on appeal variously refer to provisions of the Minimum
Wage Law and the Wage Payment Act in ways that are inconsistent or incorrect. Specifically, while
plaintiff indicates that his claim is based upon an overtime provision contained in section 4a of the
Minimum Wage Law (820 ILCS 105/4a (West 2010)), he also repeatedly cites to provisions of the
Wage Payment Act and case law interpreting that act. For example, he cites to a provision in the
Wage Payment Act for the definition of "wages" despite the fact that the Minimum Wage Law has
its own definition for that term. See 820 ILCS 105/3(b) (West 2010) (Minimum Wage Law
definition); 820 ILCS 115/2 (West 2010) (Wage Payment Act definition). In turn, ISC incorrectly
refers to section 4a of the Minimum Wage Law as a provision actually contained within the Wage
Here, plaintiff's complaint generally alleges violations of, and seeks recovery pursuant to,
both the Minimum Wage Law and the Wage Payment Act. Both of these acts provide employees
with wage protections and also provide that an employee has a private right of action to collect
wages due from an employer. See 820 ILCS 105/12(a) (West 2010); 820 ILCS 115/11 (West 2010).
Only section 4a of the Minimum Wage Law specifically concerns overtime payments, however, and
it is clear that plaintiff's claim for overtime is fundamentally premised upon this section of the
Minimum Wage Law. Thus, we limit our discussion to the relevant provisions of the Minimum
C. Statutory Framework, Regulations, and Case Law
The Minimum Wage Law contains a "Legislative Policy" provision which provides, in part,
that: "it is the policy of this Act to establish a minimum wage standard for workers at a level
consistent with their health, efficiency and general well-being; to safeguard such minimum wage
against the unfair competition of wage and hour standards which do not provide such adequate
standards of living; and to sustain purchasing power and increase employment opportunities." 820
ILCS 105/2 (West 2010). As such, the Minimum Wage Law further provides that it is "against
public policy for an employer to pay to his employees an amount less than that fixed by this Act."
Of particular relevance here, section 4a of the Minimum Wage Law concerns overtime
payments and mandates that "no employer shall employ any of his employees for a workweek of
more than 40 hours unless such employee receives compensation for his employment in excess of
the hours above specified at a rate not less than 1 1/2 times the regular rate at which he is
employed." 820 ILCS 105/4a(1) (West 2010).2 Section 12 of the Minimum Wage Law provides
The Minimum Wage Law specifically exempts certain classes of employees from this
overtime requirement. See 820 ILCS 105/4a(2) (West 2010). There is no indication that any of
these exemptions apply in this case, and neither plaintiff nor ISC claims that these exemptions
apply in this case.
employees with a right to bring a civil action to pursue any underpayment of wages due under the
law (820 ILCS 105/12(a) (West 2010)), while section 10 grants the Director of the Illinois
Department of Labor the power "to make and revise administrative regulations, including definitions
of terms, as he deems appropriate to carry out the purposes of this Act, to prevent the circumvention
or evasion thereof, and to safeguard the minimum wage established by the Act" (820 ILCS 105/10(a)
Pursuant to the authority granted by section 10(a), a number of administrative regulations
implementing the Minimum Wage Law have been adopted. These include a regulation providing:
"a) An employee's workweek is a fixed and regularly recurring period of 168 hours
– seven consecutive 24-hour periods. It need not coincide with the calendar week, but it may
begin on any calendar day and at any hour of the day.
b) Once the beginning time of a workweek is established, it remains fixed regardless
of the schedule of hours worked by the employee. The beginning of the workweek may be
changed if the change is intended to be permanent and is not designed to evade the overtime
requirements of this Act.
c) In the event an employer fails to establish a fixed and regular work week, the
Director shall consider a calendar week as the applicable work week. 'Calendar week' means
that seven consecutive day period beginning at 12:01 a.m. Sunday morning and ending on
the following Saturday night at midnight." 56 Ill. Adm. Code 210.400 (2010).
Even a cursory review of this regulation is enough to establish a number of points about the
workweek established by ISC. Specifically, the workweek under which plaintiff and other similar
ISC employees were paid did not have to coincide with the calender week, so long as it consisted
of "seven consecutive 24-hour periods." Furthermore, the workweek for purposes of payment need
not coincide with the schedule of hours actually worked by any employee. We note that such
administrative rules have "the force and effect of law" and are therefore entitled to weight and
deference so long as they are not inconsistent with the statute pursuant to which they are adopted.
Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 367-68 (2009). Finding nothing about this regulation
to be inconsistent with section 4a of the Minimum Wage Law, and despite the fact that plaintiff's
complaint alleges that part-time hourly employees such as himself actually worked most if not all
of their hours for ISC from Thursday to Sunday, we must therefore find that there is nothing
inherently improper about either the original Tuesday through Monday workweek or the new
workweek running from Saturday through Friday.
Nevertheless, plaintiff maintains that he has stated a claim by alleging the actual change to
the beginning of the scheduled workweek was improper because it was made to "avoid paying
overtime." Plaintiff contends that this modification therefore violated the portion of the regulation
requiring that any change be permanent and not be "designed to evade the overtime requirements
of this Act." 56 Ill. Adm. Code 210.400(b) (2010). We disagree with this contention.
We first note that there are no additional Illinois Administrative Code regulations that
provide further explanation of what type of workweek changes would be "designed to evade the
overtime requirements of this Act," nor are we aware of any Illinois case law interpreting this
language. However, the Illinois Administrative Code (56 Ill. Adm. Code 210.120 (2010)) does
provide that – in interpreting the Minimum Wage Law – the Director of the Department of Labor
may refer to regulations and interpretations of the federal Fair Labor Standards Act of 1938 (FLSA)
(29 U.S.C. § 201 et seq. (2008)). Furthermore, other courts have recognized that in light of their
substantial similarities, provisions of the FLSA and interpretations of that legislation can be
considered in applying the Minimum Wage Law. Turner v. The Saloon, Ltd., 491 F. Supp. 2d 767,
770 (N.D. Ill. 2007) (citing Haynes v. Tru-Green Corp., 154 Ill. App. 3d 967, 977 (1987)). In light
of the paucity of authority directly considering section 4a of the Minimum Wage Law and its
implementing regulations, we will similarly consider the FLSA, its implementing regulations, and
relevant interpretive case law.
Just as in section 4a of the Minimum Wage Law, section 207(a)(1) of the FLSA provides that
covered employees that work more than 40 hours in a workweek must be compensated for those
excess hours "at a rate not less than one and one-half times the regular rate at which he is
employed." 29 U.S.C. § 207(a)(1) (2008).3 In turn, provisions of the Code of Federal Regulations
(CFR) implementing this provision mirror the language contained in the Illinois Administrative
Code by similarly allowing employers to establish workweeks that may begin or end on any day of
the week, at any time of the day, and without regard to the employee's actual work schedule.
Compare 56 Ill. Adm. Code 210.400 (2010), with 29 C.F.R. § 778.105 (2011). Nevertheless, the
CFR also provides that the beginning of an employee's workweek may be changed "if the change
is intended to be permanent and is not designed to evade the overtime requirements of the Act." 29
C.F.R. § 778.105 (2011). However, while the Illinois Administrative Code does not itself provide
further clarification of the type of practices that would improperly "evade the overtime
requirements" of the Minimum Wage Law, the CFR does provide two specific examples of improper
devices under the FLSA.
Again, there are exemptions to the federal overtime requirement as well, but they are
not relevant to this case.
First, federal regulations provide that "the overtime provisions of the act cannot be avoided
by setting an artificially low hourly rate upon which overtime pay is to be based and making up the
additional compensation due to employees by other means. *** Payment for overtime on the basis
of an artificial 'regular' rate will not result in compliance with the overtime provisions of the Act."
29 C.F.R. § 778.500(a) (2011). Second, the CFR prohibits a "split-day" plan whereby "the normal
or regular workday is artificially divided into two portions one of which is arbitrarily labeled the
'straight time' portion of the day and the other the 'overtime' portion. Under such a plan, an
employee who would ordinarily command an hourly rate of pay well in excess of the minimum for
his work is assigned a low hourly rate (often the minimum) for the first hour (or the first 2 or 4
hours) of each day." 29 C.F.R. § 778.501(a) (2011). Neither of these two examples is particularly
relevant to plaintiff's instant claim against ISC, and neither lends any support to his assertion of a
FLSA or Minimum Wage Law violation on the basis that ISC made a permanent change in the
starting date of its employees' workweek only to avoid paying its employees overtime.
Turning to the case law interpreting the overtime requirements of the FLSA, we find that
plaintiff's assertions have been generally rejected by the courts. For example, in International Ass'n
of Firefighters, Local 349 v. City of Rome, Georgia, 682 F. Supp. 522 (N.D. Ga. 1988), the court
addressed a change in the work schedule of a group of municipal firefighters. The firefighters
challenged this change, asserting that it was nothing but "a subterfuge, an artificial device designed
to avoid illegally the overtime provisions of the FLSA." Id. at 527. The court noted that the
municipality admitted that the only reason for the change was to take advantage of certain provisions
of the FLSA applicable to such firefighters "so as to avoid overtime payments." Id. at 528. The
court found, however, that "[t]his motive, in itself, is not improper." Id. Another federal court
addressed a similar challenge to a work schedule change brought by municipal police officers in
Lamon v. City of Shawnee, Kansas, 972 F.2d 1145 (10th Cir. 1992). Citing to the City of Rome
decision, the federal court found that even if the municipality's "sole purpose were to avoid the
prospect of paying overtime rates ***, Plaintiffs do not demonstrate in what way that aim would be
improper." Id. at 1153.
Aside from the issue of an employer's motive, courts have also historically found no FLSA
violation where the an employee's actual schedule of work is split over two separate employerdefined workweeks. Thus, in Harned v. Atlas Powder Co., 192 S.W.2d 378, 379 (Ky. 1946), the
court addressed a situation where employees were on a rotating schedule of seven consecutive days
of work, but those days never fell completely within the employer's established "workweek." The
court rejected a claim that the establishment of a workweek that did not comport with the schedule
of days an employee actually worked violated the FLSA. Specifically, the court found that "[b]efore
appellant is entitled to overtime he must labor 40 hours during the workweek established by the
Company. The staggering of the three shifts by the Company so that appellant never started work
on any shift on Wednesday, the first day of the workweek, does not deny him overtime, although
it may prevent him from receiving the maximum overtime to which he would be entitled if we
accept his contention that a workweek is any and every consecutive seven days that he labors." Id.
Similarly, in Barclay v. Magnolia Petroleum Co., 203 S.W.2d 626, 627-28 (Tex. Civ. App.
1947), the court addressed a claim that the "spirit" of the FLSA and other employment statutes was
violated where an employer split the 80 hours an employee worked over seven consecutive days into
two separate workweeks and thus avoided paying any overtime. The court disagreed, finding that
the "right of the employer to establish a 'work week' seems to be well settled. If the purpose and
intent of [the FLSA and other statutes] was to prohibit the employer from working the employee
seven consecutive days without paying the premium pay, it would have been a simple matter to have
included such an express provision in the wording of the statutes. Such a provision is not included
therein." Id. at 628.
We find that this authority supports the conclusion that ISC's modification of its workweek
did not violate the overtime requirements of the FLSA. The change was permanent, having been
made once and there being no allegation it was ever modified again. Furthermore, as the above
authority instructs – and contrary to plaintiff's assertions here – the FLSA does not require a
workweek schedule that maximizes an employee's accumulation of overtime pay. Thus, a schedule
whereby an employee's actual work schedule is split between two workweeks does not violate the
federal legislation. If such a schedule does not itself violate the FLSA, we fail to see how a change
to such a schedule could be viewed as having been "designed to evade the overtime requirements
of this Act."
Indeed, it is evident from the language of the FLSA, and its implementing regulations, that
the federal legislation bars an employer from modifying its workweek schedule in order to deny
employees overtime wages that they are actually owed pursuant to the legislation's requirements,
not changes that in some way limit an employee's ability to earn such overtime payments in the
future. Here, while the new schedule may limit the amount of future overtime payments to ISC
employees, there is no allegation that plaintiff or any of the other purported class members would
not be paid overtime should they actually ever labor more than 40 hours in a given workweek under
the new schedule. Again, this is not a violation of the FLSA. Moreover, in light of our general
practice of interpreting our state's labor law in conformity with the FLSA, we also find that there
was no violation of the overtime requirements contained in section 4a(1) of the Minimum Wage
C. Dissenting Authority
Despite this clear authority, our research has revealed a number of decisions that appear to
support the notion that an employer violates the FLSA when it alters its workweek in such a way
to reduce overtime payments without a separate and legitimate business purpose, and that the desire
to avoid overtime payments is not on its own a sufficiently legitimate aim. See Abshire v. Redland
Energy Services, LLC, No. 10-2170, 2011 WL 4633093, at *2 (W.D. Ark. Oct. 6, 2011) (collecting
cases). The majority of these decisions are unreported federal district court orders, however, and
such orders are not binding or precedential before Illinois courts. County of Du Page v. Lake Street
Spa, Inc., 395 Ill. App. 3d 110, 122 (2009). Indeed, even reported federal circuit and district
decisions are only persuasive authority in Illinois state courts. Bowman v. American River
Transportation Co., 217 Ill. 2d 75, 91 (2005). In light of the contrary authority cited above, which
notably includes the reported decisions of a federal district court in City of Rome and a federal
circuit court in Lamon, we therefore decline to follow the reasoning espoused in these unreported
federal decisions with respect to their interpretation of the FLSA. More to the point, we simply
disagree with the notion that an employer's decision to make a permanent change from a workweek
schedule that fully complies with the FLSA – but allows employees to earn significant overtime –
to another schedule that also fully complies with the FLSA – but nevertheless results in the
employees earning less overtime – constitutes a change "designed to evade the overtime
requirements" of the FLSA.
We are also unpersuaded by the decision of a California state court in Seymore v. Metson
Marine, Inc., 128 Cal. Rptr. 2d 13 (Cal. Ct. App. 2011). In that case, the court was asked to interpret
provisions of California state labor laws. Id. at 15. Just as in Illinois, California courts refer to the
FLSA for guidance in interpreting its own state labor laws. Id. at 17-26. After consideration of a
number of cases interpreting the FLSA, the court in Seymore found that an employer's practice of
defining a workweek that differed from the actual work schedule its employees actually worked was
nothing more than an attempt to evade the requirements of the California labor law. Id. at 20. The
court relied in part on the fact that "[n]othing in the record suggests that the designation of the
workweek was designed to serve a legitimate business purpose or any purpose other than the
avoidance of the obligation to pay overtime wages." Id.
We reject the Seymore decision for a number of reasons. First, we note that the reasoning
of the court in Seymore was guided in large part by its consideration and acceptance of the reasoning
contained in many of the very same unreported federal district court interpretations of the FLSA
referred to and rejected above. Id. at 20-21. Second, the California regulations at issue in Seymore
were substantively different from the FLSA. While both the California regulation and the FLSA
regulations define a workweek as "seven consecutive 24-hour periods," the Minimum Wage Law
and FLSA regulations further provide that a workweek "need not coincide with the calendar week
but may begin on any day and at any hour of the day" and may be fixed "regardless of the schedule
of hours worked" by an employee. Compare Cal. Labor Code § 500(b) (West 2010), with 56 Ill.
Adm. Code 210.400 (2010), and 29 C.F.R. § 778.105 (2011). As the Seymore court specifically
noted, its state labor laws "may provide greater protection than the FLSA." Seymore, 128 Cal. Rptr.
2d at 17. In contrast, the Minimum Wage Law and its implementing regulations are generally
interpreted in dovetail with the FLSA. Turner, 491 F. Supp. 2d at 770; Haynes v. Tru-Green Corp.,
154 Ill. App. 3d at 977.
D. Policy Argument
Finally, we also reject plaintiff's contention that allowing ISC to modify its workweek would
violate the policy and purposes underlying the FLSA, and by extension, the Minimum Wage Law.
First, we are not certain that the espoused purposes underlying the FLSA are particularly relevant
to our interpretation of the Minimum Wage Law in light of the fact that our legislature has
specifically provided its own statement of the policy underlying the state statute. 820 ILCS 105/2
(West 2010). Nevertheless, because we have consistently interpreted the state and federal laws
together we will entertain this argument. The purposes underlying the overtime requirements of the
FLSA have been described as follows:
"The first purpose was to prevent workers willing (maybe out of desperation, though this is
no longer very likely) to work abnormally long hours from taking jobs away from workers
who prefer to work shorter hours. In particular, unions' efforts to negotiate for overtime
provisions in collective bargaining agreements would be undermined if competing,
non-union firms were free to hire workers willing to work long hours without overtime. The
second purpose was to spread work and thereby reduce unemployment, by requiring an
employer to pay a penalty for using fewer workers to do the same amount of work as would
be necessary if each worker worked a shorter week. The third purpose was to protect the
overtime workers from themselves: long hours of work might impair their health or lead to
more accidents (which might endanger other workers as well). This purpose may seem
inconsistent with allowing overtime work if the employer pays time and a half, but maybe
the required premium for overtime pay is intended to assure that workers will at least be
compensated for the increased danger of working when tired." Mechmet v. Four Seasons
Hotels, Ltd., 825 F.2d 1173, 1176 (7th Cir. 1987).
We find no violation of these purposes alleged in plaintiff's complaint. As discussed above,
the FLSA overtime rules apply only where an employee works over 40 hours in any single
workweek. There is no assertion that plaintiff or any other purported class member will ever work
over 40 hours in the newly established workweek here, nor are there any allegations that any
employee will not receive proper compensation if they did work overtime under the new schedule.
Thus, the new workweek complies with the FLSA, the evils that the federal legislation attempts to
guard against are never implicated, and we therefore find that plaintiff's complaint was properly
For the foregoing reasons, the judgment of the circuit court is affirmed.