in Employment Suit Against ABRA Grows; ABRA Files Memorandum Regarding
Two more former ABRA Auto Body and Glass employees have joined
the class in a suit filed against the company. The suit alleges
that the company required customer service managers (CSMs) and customer
service representatives (CSRs) to work overtime without pay and
that it did so by misclassifying them as "managerial," which exempted
them from overtime pay. (CLICK
HERE for related story.)
The newest plaintiffs in the suit are Martha J. Willis of Monroe,
Ga., who worked at ABRA from August 2003 through September 2007,
and Paul James of Newnan, Ga.
In addition, ABRA recently filed a memorandum in support of the
motion to dismiss the Employee Retirement Income Security Act (ERISA)
claims made in the complaint, which was amended in November to include
ERISA. In this portion of the complaint, the plaintiffs allege that
because ABRA has been "the plan sponsor of a 401(k) plan within
the meaning of ERISA … [it has] exercised actual responsibility,
authority and/or control with regard to the crediting of compensation
under the 401(k) plan." In short, the employees are alleging that
had they received proper compensation for the overtime worked, their
401(k) programs also would have reflected these wages.
In the recently filed memorandum, counsel for ABRA writes, "Plaintiffs'
creative pleading fails because Plaintiffs' ERISA claims are, quite
simply, FLSA claims in disguise. This Court should 'call a spade
a spade' and dismiss Plaintiffs' ERISA allegations for failure to
state a claim."
The memorandum cites a related case, Premick v. Dick's Sporting
Goods Inc., in which, the memo says, "the Western District of Pennsylvania
dismissed ERISA claims nearly identical to the ones in this case."
Currently, a pre-trial conference is scheduled for a week from
tomorrow on April 3. The conference will be held before the Honorable
Paul A. Magnuson in St. Paul, Minn.
The original suit was filed by Halunen and Associates, representing
Thomas Hale and Justin Schreckenstein, on July 17, 2007, in the
U.S. District Court in Minnesota.
ABRA is represented by Joseph M. Sokolowski and Lindsay J. Zamzow
of Fredrikson & Byron P.A. in Minneapolis.
HERE for the full text of ABRA's memorandum in support of the
motion to dismiss the ERISA claims.
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