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Northern District Finds That Retail Sales Consultants Meet the First Requirement for a Class Action in Larsen v. Clearchoice Mobility, Inc.

Previous blog posts have discussed the process for filing a class-action lawsuit under the Fair Labor Standards Act (FLSA). A class-action lawsuit is a lawsuit where several plaintiffs in similar positions have a grievance against the same defendant. For the sake of efficiency, all of the separate claims are combined into a big claim that is headed by a “lead plaintiff.” The award, if any, is later distributed among members of the “class.” If you are interested in hiring an Illinois class action attorney and filing a class-action lawsuit, you should know that class actions for employees fall under Section 216(b) of the FLSA. Courts considering whether to certify a class action will go through a two-step process. First the plaintiffs must make “a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” If the plaintiffs meet that burden, a court will conditionally certify the class. Plaintiffs would then be allowed to notify other potential members of the class. On the second step, both parties may conduct discovery, during which they examine the other party’s documents. If the defendants can then point to evidence that the plaintiffs are too dissimilar, they may ask the court to decertify the class.

In Larsen v. Clearchoice Mobility, Inc., the plaintiffs filed suit against the defendant over “uniform policies, practices, and schemes” that deprived the plaintiffs of regular wages, commission pay, and overtime compensation in violation of the FLSA and Illinois wage laws. The plaintiffs worked as retail sales consultants for defendant, a corporation in the business of providing wireless telephone services, products, and accessories in Illinois. The plaintiffs claimed that defendant never paid the premium hourly rate for overtime hours, automatically deducted time for meal breaks whether or not the break was taken, required consultants to attend — without pay — meetings and conference calls, made improper deductions from the consultants’ commissions’, and withheld earned commissions from retail consultants who left the defendants’ employment. The plaintiffs sought to have their claim certified as a punitive class action under FLSA Section 216(b), alleging that 50 other consultants were affected by the defendants’ policies.

Judge Charles Kocoras of the Northern District of Illinois followed the two-step process in determining whether to certify the class. First, the judge looked at the members of the possible class and found, based on the evidence, that the plaintiffs met the standard for a modest factual showing “sufficient to demonstrate a factual nexus” that bound the plaintiffs together with similarly situated consultants. Any of them could be a victim of a common policy or plan that violated the FLSA. The judge therefore conditionally certified the class, paving the way for the second step, where both parties would conduct discovery.


The attorneys at Chicago Overtime Law Center have decades of experience litigating wage and hour cases, including overtime, vacation pay, meal breaks, and tips. We have offices conveniently located in Oakbrook Terrace and Chicago, Illinois. Contact a North Peoria wage and hour lawyer at the Chicago Overtime Law Center today at 312-869-4095.