IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NEPTALI JARAMILLO and IRA

NAVARRO, Individually and on

Behalf of All Others Similarly

Situated,

 Plaintiffs,

v.

GARDA, INC., GARDA CL GREAT

LAKES, INC., and DANIEL WEBB,

 Defendants.

Case No. 12 C 662

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants’ Motion to Dismiss Count II of

Plaintiffs’ Complaint. For the following reasons, the Court grants

the Motion without prejudice. 

I. BACKGROUND

Plaintiffs bring their Complaint under the Illinois Minimum

Wage Law (“IMWL,” 820 ILL. COMP. STAT. 105/1, et seq.), the Illinois

Wage Payment and Collection Act (“IWPCA,” 820 ILL. COMP. STAT. 115/1

et seq.), and the federal Fair Labor Standards Act, (“FLSA,” 29

U.S.C. §§201 et seq.). In it, they challenge the alleged failure

of Defendants Garda, Inc., Garda CL Great Lakes, Inc. and Daniel

Webb (collectively, “Defendants”) to pay their armored transport

employees (the “ATEs”) at the appropriate overtime rate for hours

worked in excess of 40 per week. The claims are brought as a

Case: 1:12-cv-00662 Document #: 25 Filed: 04/20/12 Page 1 of 7 PageID #:175
collective action under the FLSA and as class actions under the

Illinois labor laws.

II. LEGAL STANDARD

On a Motion to Dismiss under Rule 12(b)(6), the Court accepts

as true all well-pleaded facts in Plaintiffs’ Complaint and draws

all inferences in their favor. Cole v. Milwaukee Area Tech. Coll.

Dist., 634 F.3d 901, 903 (7th Cir. 2011). A complaint must contain

a “short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiffs need

not allege “detailed factual allegations,” but must offer more than

conclusions or “a formulaic recitation of the elements of the cause

of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). “Naked assertion[s] devoid of further factual enhancement”

will not suffice – a complaint “must contain sufficient factual

matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50

(2009).

Among other things, the IWPCA requires employers to pay any

wages earned by employees during a semi-monthly or bi-weekly pay

period within 13 days of the end of that period. 820 ILL. COMP.

STAT. 115/4. It also sets out time lines for the payment of final

compensation to employees who separate from the company. 820 ILL.

COMP. STAT. 115/5. 

- 2 -

Case: 1:12-cv-00662 Document #: 25 Filed: 04/20/12 Page 2 of 7 PageID #:176
The IWPCA defines “wages” as “any compensation owed an

employee by an employer pursuant to an employment contract or

agreement between the 2 parties, whether the amount is determined

on a time, task, piece, or any other basis of calculation.” 820

ILL. COMP. STAT. 115/2. Illinois cases have made clear that an

“agreement” is enforceable under the IWPCA even if it does not have

the requisite formalities to become an enforceable contract. See

Skelton v. Am. Intercontinental Univ. Online, 382 F.Supp.2d 1068,

1075 (N.D. Ill. 2005) (citing Catania v. Local 4250/5050, Commc’ns

Workers of Am., 834 N.E.2d 966, 971-72 (Ill. App. Ct. 2005);

Landers-Scelfo v. Corporate Office Sys., Inc., 827 N.E.2d 1051,

1059 (Ill. App. Ct. 2005). Instead, such an agreement requires

only the manifestation of mutual assent. Id. 

III. DISCUSSION

Defendants have moved under FED. R. CIV. P. 12(b)(6) to dismiss

Count II of the Complaint, which alleges violations of the IWPCA.

Defendants seek dismissal on the theory that Plaintiffs have not

alleged an agreement to pay premium overtime wages; accordingly,

Defendants argue, there is no agreement upon which to base an IWPCA

claim for failure to pay such wages.

Plaintiffs allege that “Plaintiffs and Defendants entered into

an agreement to pay Plaintiffs and class members as non-exempt

employees for all the time they worked, including overtime, as

required by the IWPCA.” Compl. at ¶ 52. Defendants devote

- 3 -

Case: 1:12-cv-00662 Document #: 25 Filed: 04/20/12 Page 3 of 7 PageID #:177
considerable energy to arguing that the IWPCA does not itself

mandate the payment of overtime, and that therefore Plaintiffs’

allegation is incoherent. However, that allegation could just as

easily be read as an acknowledgment that the IWPCA requires an

agreement between the parties, as it could a claim that the IWPCA

substantively guarantees overtime pay.

This does not, however, address the question of whether

Plaintiffs have adequately alleged an agreement to pay Plaintiffs

and class members for overtime hours at the premium rate dictated

by the FLSA and IMWL. As Judge Amy J. St. Eve recently observed,

the inference that an employment agreement existed between the

parties is distinct from the inference that the agreement contained

any particular term. Brown v. Lululemon Athletica, Inc., No. 10 C

05672, 2011 WL 741254, at *2-3 (N.D. Ill. Feb. 24, 2011). After

all, the IWPCA merely demands that employers pay whatever wages

were agreed to. However, even to the extent that Plaintiffs have

alleged an express or implied employment and wage agreement, the

Court concludes that they have not adequately pled that such

agreement included the payment of overtime premium wages.

Paragraph 52 of the Complaint could arguably satisfy FED. R.

CIV. P. 8, in that it alleges an agreement to pay employees for all

time they worked, “including overtime,” and overtime can be

understood to refer to premium pay for excess hours worked. See

Merriam–Webster’s Collegiate Dictionary 831 (10th ed. 1993)

- 4 -

Case: 1:12-cv-00662 Document #: 25 Filed: 04/20/12 Page 4 of 7 PageID #:178
(defining “overtime” to include “the wage paid for overtime

[work].”). However, Plaintiffs’ briefing makes it absolutely clear

that this allegation is based entirely on the presumption that any

express or implied employment agreement necessarily included an

implied agreement that all wage payments would comply with the FLSA

and the IMWL. Unless that claim is supportable, then, Count II

fails.

It is not unreasonable to think that Illinois would choose to

read such an implied covenant of lawfulness into all employment

agreements, especially because some courts have found that the

FLSA, IMWL and IWPCA reflect such important public policy as to

create non-waivable rights. See Ladegaard v. Hard Rock Concrete

Cutters, Inc., No. 00 C 5755, 2001 WL 1403007, at *3-4 (N.D. Ill.

Nov. 09, 2001). However, there is no indication that Illinois has

done so, or that the Illinois legislature or courts have considered

the IWPCA an appropriate mechanism for enforcing the overtime wage

laws.

Plaintiffs have identified no cases under Illinois law

recognizing such an implied term, nor has this Court uncovered any. 

Cf. Skelton, 382 F.Supp.2d at 1075 n.2 (“It is difficult to see

what the IWPCA would add to plaintiffs’ claims . . . as the

purported promise cited as the basis for an IWPCA-enforceable

“agreement” simply tracked whatever obligations [the employer] had

under state and federal law to pay overtime.”); Palmer v. Great

- 5 -

Case: 1:12-cv-00662 Document #: 25 Filed: 04/20/12 Page 5 of 7 PageID #:179
Dane Trailers, No. 05 C 1410, 2005 WL 1528255, at *4 (N.D. Ill.

June 28, 2005) (where Plaintiff had suggested no agreement that

itself required the employer to pay overtime, the correct vehicle

for the overtime claim was the FLSA or IMWL). 

Indeed, it appears that the Illinois Department of Labor (the

“Department”), which has enforcement and regulatory authority under

the IWPCA, has taken the position that claims for overtime are not

covered by the statute. The interpretive regulations under the

IWPCA appear not to mention overtime claims at all. See ILL. ADM.

CODE TIT. 56, §300 et seq. (2011). Furthermore, in its IWPCA fact

sheet, the Department does not list employees with overtime claims

as covered thereunder. See ILLINOIS DEPT. OF LABOR, WAGE PAYMENT AND

COLLECTION ACT FACT SHEET, at 1, available at http://www.state.il.us/

AGENCY/IDOL/forms/pdfs/Wage_Theft_FactSheet.pdf. Most persuasively,

on its IWPCA Wage Claim Application form, the Department explicitly

says: 

If you are claiming overtime (over 40 hours

worked within one (1) work week), do not

include your overtime claim on this Wage

Claim Application (doing so will spoil the

application and force us to return it to you).

For overtime claims, you must submit a Minimum

Wage and Overtime Application.

ILLINOIS DEPT. OF LABOR, INSTRUCTIONS FOR FILING A WAGE CLAIM APPLICATION, at

¶5 (Aug. 16, 2007), available at http://www.state.il.us/agency/

idol/forms/pdfs/IL452WC01.PDF. That Overtime Application is found

among the materials for the IMWL, not the IWPCA. In light of this

- 6 -

Case: 1:12-cv-00662 Document #: 25 Filed: 04/20/12 Page 6 of 7 PageID #:180
interpretation by the relevant Illinois agency, Plaintiffs’

citation to cases applying Nebraska law is unavailing. Where the

Illinois agency with interpretive authority over the statute has

concluded that it does not cover overtime claims, and Plaintiffs

have identified no supporting authority for its argument that the

alleged agreement necessarily contained an implied covenant of

compliance with the FLSA and IMWL, this Court will not create such

a duplicative enforcement policy under Illinois law.

Accordingly, the Court will dismiss Count II. However,

because the Complaint offers very few details regarding the terms

of the alleged agreement, the Court cannot conclude that Plaintiffs

will be absolutely unable to remedy the defects identified here

through an amended complaint. Accordingly, the Court dismisses

Count II without prejudice.

IV. CONCLUSION

For the reasons stated herein, the Court grants Defendants’

Motion to Dismiss Count II of Plaintiffs’ Complaint without

prejudice.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE:4/20/2012

- 7 -

Case: 1:12-cv-00662 Document #: 25 Filed: 04/20/12 Page 7 of 7 PageID #:181