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"<p>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\nfederal class action wage lawsuit against her former employer.&nbsp;</p>\n\n<p>Federal Magistrate Judge Mary M. Rowland issued an opinion\nand order July 12 granting plaintiff Nancy Girolamo conditional class certification in\nher complaint against Community Physical Therapy &amp; Associates and its\npresident, Robert Tripicchio.&nbsp;</p>\n\n<p>Girolamo, who worked for CPT\u2019s Alden of Waterford facility in\nAurora from 2008 through 2015, alleged the firm failed to sufficiently pay\nemployees for overtime hours and that she faced retaliation for complaining\nabout the situation.&nbsp;</p>\n\n<p>In May, U.S. District Judge Andrea R. Wood had granted a\nmotion to dismiss three counts of Girolamo\u2019s second amended complaint; Rowland\u2019s\nopinion addressed a third amended complaint filed by Girolamo.&nbsp;</p>\n\n<p>The underlying problem, per Girolamo\u2019s complaint, is CPT\u2019s\nproductivity requirements, which she alleged effectively required therapy\nassistants to work off the clock by establishing set time percentages such\nworkers are required to be engaged with patients. These standards, Girolamo\nwrote, are related to changes in Medicare billing procedures, dating to October\n2011. CPT\u2019s response was to require employees to spend 90 percent of their time\non billable tasks.&nbsp;</p>\n\n<p>Since Girolamo and more than 100 other similar employees also\nhad other required tasks that could not be completed within the allotted 40\nhours, the result was doing such work on nights and weekends. In her opinion,\nRowland wrote that a CPT \u201Csenior vice president of corporate operations,\ntestified that she receives complaints of off-the-clock work from management\nstaff three to four times per year, including from locations where Girolamo did\nnot work.\u201D&nbsp;</p>\n\n<p>CPT argued Rowland should not certify the class of\nadditional plaintiffs because Girolamo had an opportunity to conduct discovery.\nHowever, Rowland noted there still is not \u201Ca list of potential plaintiffs, and\nthe parties have not had an opportunity to engage in discovery with the\npotential class members.\u201D&nbsp;</p>\n\n<p>There remains a lack of clarity about the distinction\nbetween job duties of therapists and therapy assistants, but Rowland said she\nwould not apply a stricter review standard at this point. Testimony from two CPT\nsupervisors showed each knew \u201Cboth therapy assistants and therapists were\nworking off-the-clock,\u201D the judge said. One of the supervisors is also\nclassified as a therapist, and testified at a deposition that she works when\nnot clocked in.&nbsp;</p>\n\n<p>The defendants also argued the class should be narrowed to exclude\npart-time employees as well as anyone who did not work at the Alden of\nWaterford facility. Rowland said the Fair Labor Standards Act applies to any\nemployee who works more than 40 hours a week regardless of employer classification.\nShe also noted Girolamo\u2019s testimony showed evidence of company-wide practice sufficient\nto extend class membership to employees of other CPT facilities.&nbsp;</p>\n\n<p>In addition to granting conditional class certification for\ntherapists and assistants who were paid an hourly wage going back three years,\nRowland ordered CPT to provide an electronic list of all such workers including\nnames, mailing and email address, telephone numbers and employment dates. She ordered\nthe information to be provided by July 26.&nbsp;</p>\n\n<p>In her second amended complaint, Girolamo included a count\nregarding CPT\u2019s regular payment schedule as violating the Illinois Wage Payment\nand Collection Act. In arguing for dismissal of that count, CPT noted all\nworkers, including those whose CPT employment ends, are paid eventually. Wood\nsaid the firm\u2019s \u201Cinterpretation of the IWPCA contradicts the plain language of\nthe statute. If the Illinois legislature desired to allow a cause of action\nonly for wage payments never made or only for wages paid more than a month\nlate, it could have so written the statute.\u201D&nbsp;</p>\n\n<p>But whereas Wood refused to dismiss Girolamo\u2019s complaint\nregarding the IWPCA, she did grant a motion to dismiss a similar claim under\nthe FLSA, which \u201Cdoes not specify a particular time in which an employee must\nbe compensated.\u201D&nbsp;</p>\n\n<p>In Rowland\u2019s opinion on the third complaint, she ordered the\nphrase \u201Cand to timely pay\u201D be stricken from the sentence: \u201CThe lawsuit is about\nwhether (CPT) failed to pay overtime and to timely pay its therapists and\ntherapy assistants.\u201D</p><p>CPT is defended in the case by attorneys with the firm of Nixon Peabody LLP, of Chicago.&nbsp;</p><p>Girolamo is represented by The Fish Law Firm, of Naperville.&nbsp;</p>"^^<http://www.w3.org/2001/XMLSchema#string>
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