*1 228 applies to bar Mr. Jensen, exception loan 271 business Trust Co. v. Title & Chicago (“The (1938) question Ill 419, usury. 422 claim of .App. Sevaux’s question in usurious is loan
whether
equity
determining
question
Conclusion
transaction
of the
to the substance
will look
reasons,
judgment of
foregoing
For the
form-”).
Appel
disregard the
affirmed.
court is
the district
pragmatic
applied this
Illinois
late Court
Ill.App.3d
Frey,
v.
109
in Ehlers
approach
AFFIRMED.
(1982)
516,
situation before exception to the loan the business court that Mr. applies Act to bar Se- Interest Illinois usury. facts and circum-
vaux’s claim surrounding transaction demon- stances substance, evidenced, in note strate (1) was corporation: Mr. Sevaux loan to Raymond. and sole owner
the President (2) of the note “warrants Paragraph 8 loan result of a commercial
this Note is a (3) A, transaction,” para. R. Ex. transferred to
proceeds the note were account rather than to
Raymond’s corporate (4) pro- personal account. Mr. Sevaux’s by Raymond for used business ceeds were (5) Raymond made the one and
purposes. Applying note. payment interest and Rock pragmatic approach of Ehlers facts, the Savings
River & Loan to these correctly
district court concluded * participate en banc. did not The Honorable Joel M. Flaum rehearing petition consideration *2 IL, Spiro, Chicago, &
Weinstein for Daniel Martinez, Leahy, Moore, James Michael D. McCann, Kent, Kaput, John Robert William Osborn, Clark, Poulson, Aan Terrence John Whitmore, Brennan, Roy Carolyn Michael C. Burauer, Scallon, Kozlowski, James Diane Nunez, Schultz, Stanley Michael Alfred Sanders, Koziol, Cleary, Anne M. David Dan- iel Walczak No.95-2015. Welsh,
Kelly Corporation R. Office of the Counsel, IL, Smith, Chicago, Mary L. Law- Rosenthal, (argued), rence Mardell Nereim Solomon, Naber, Benna R. Kathryn Jennifer Nelson, Sher, Zeledon Susan Office of S. Counsel, Corporation Division, Appeals City Chicago in No. 95-2015. Malone, IL, Chicago, Perry
Susan P. M. Weinstein, Baskin, (argued), Berke Burton I. Berke, Server, Spiro, Chicago, Weinstein & IL, Abbate, for Julie Carmel G. Anderson, Arroyo, Bozeman Luis Lonnie E. Aston, BaransM, Bauer, Richard James B. Bednarek, Berti, Richard Michael Jeremiah Berth, Barry, Borski, William A Mark Brady, Beilecki, Beverly James M. Demerise Birch, George Brown, Brusich, M. John Den- Brucato, Burkhart, nis Joseph Catherine Burkhart, Burke, Camacho, Nadine Frances Carlson, Carrosca, Glenn Patricia Brian in No. Cheevers 95-2016. Welsh,
Kelly Corporation R. Office of the Counsel, IL, Rosenthal, Chicago, Lawrence Solomon, (argued), Mardell Nereim Benna R. Naber, Nelson, Kathryn Zeledon Jennifer Sher, Corporation Susan Office of the S. Counsel, Appeals Division, City of Chica- go in No. 95-2016. IL, Malone, Perry Chicago,
Susan P. M. Weinstein, (argued), Berke Burton I. John R. Baskin, Server, Berke, Malkinson Weinstein IL, Aecosta, Spiro, Chicago, Jesse Juan Abram, Acox, Acosta, R. Paul Erwin Christo- Adams, Adamski, pher Aan Aleñe Adam- son, Aaniz, Aguinaga, Kathleen Arthur Aderson, Aexander, Steward Melvin John Allanson, Aonzo, R. Lawrence Dennis Ato- belle, Avarez, Averio, Luis Luis Rosendo Avizu, Aczer, Adersen, Mark Derek Dan Aderson, Aderson, Aderson, John Robert Malone, IL, Aderson-Davis, Perry Cynthia Agel, Susan P. M. Garth John Baskin, Server, Berke, (argued), Berke Atos in No. 95-2017. Welsh, periods compen- Corporation rendered those
Kelly Office R. Rosenthal, IL, work time The dis- sable under the FLSA Counsel, Chicago, Lawrence ease, Solomon, initially court dismissed the (argued), trict Mardell Nereim R. Benna Naber, Nelson, and remanded for further devel- Kathryn we reversed Zeledon Jennifer *3 regarding frequency facts Sher, opment of the Corporation Office Susan S. Division, interruptions during the meal and duration of Counsel, for of Chica- Appeals remand, the district court periods. On ingo No. 95-2017. City’s summary judg- granted the motion for Malone, IL, Perry Chicago, M. P. Susan ment, periods finding that the officers’ meal Baskin, Server, Berke, (argued), Berke time compensable work IL, Spiro, Chicago, for Mark Weinstein affirm, on FLSA. This time around we but Love-Adams, Adams, Akana, Helen Carol grounds different than the district court.1 Adams, III, Anderson, Jerome L. Joseph Albairan, Allan, Al- John S. Wilbert Alberto 7(a) of the FLSA Section Alvear, Alonzo, len, Ann M. Dino Fernando employers employees to to overtime Ambrose, Anderson, Amato, Joe J. Katherine work more than 40 hours in a work who Antol, Andruzzi, Robert D. P. Ross Michael 207(a). However, § week. 29 U.S.C. Anthos, Argenbright, Travis Thomas W. B. J. public agencies engaged in law FLSA allows Ashton, Armstead, Bakutis, Mary R. A. Anita activities to overtime enforcement calculate Banksdale, Barberio, Robert L. Robert L. a 28 personnel for law enforcement based on Barker, Bastón, Barry D. Ronald Patrick W. day period rather than the standard 95-2018. in No. Beach 207(k). § day period. Un seven 29 U.S.C. (ar- Rosenthal, Mardell, Nereim Lawrence 7(k), departments must der section Sher, Corpora- Office of the gued), S. Susan overtime when “tours Division, IL, Counsel, Appeals tion duty aggregate of which exceed” Chicago in No. 95-2018. of day period. hours in a 28 29 U.S.C. 207(k)(l); 553.201(a), § §§ 29 C.F.R. BAUER, CUDAHY, EVANS, and Before Chicago Department 553.230. The Police Judges. Circuit 7(k)’s operates exemption. under section Its eight-and-one-half shifts officers work of BAUER, Judge. Circuit hours, unpaid which one half-hour include period. Chicago police officers sued the of meal The crux of this lawsuit is Chicago, alleging period violations of the overtime whether the half-hour meal Act, provisions the Fair Labor Standards is work time which should count of towards (“FLSA”). beyond §§ 201-219 The offi- 171 hour limit which must re- U.S.C. pay.2 Leahy cers various restrictions on their ceive overtime claimed William represents appeals: required factory his 1. This case four consolidated worker who is to be at (No. 95-2015), Leahy City Chicago working eating. Alexander is while machine (No. 95-2016), City Chicago v. City 785.19(a). 553.223(b), Accosta § § 29 C.F.R. 29 C.F.R. 95-2017), (No. Chicago and Arkana v. applies agencies elect to use 95-2018). (No. Chicago 7(k) permits § exception, the exclusion of meal periods from the calculation of worked on "work," Although FLSA does not define two duty tours of hours or less regulations out set the circumstances in which provided employee completely re- periods meal be excluded the calcula- from duty during period, lieved from the meal First, tion § hours worked. 29 C.F.R. § tests the other 785.19 this title are 785.19(a) provides: hand, met. On the other enforce- law (a) periods. fide meal Bona fide Bona meal personnel required are call remain on not worktime. Bona fide meal quarters, engaged in barracks or similar or are coffee do not include breaks (e.g., in extended surveillance activities “stake- periods. These are rest snacks. em- outs”), they complete- are not considered to be ployee completely duty be from must relieved ly any peri- duty, relieved from such meal eating regular purposes meals.... compensable. ods be employee required is not relieved if he is 553.223(b). duties, § perform 29 C.F.R. any whether active or inac- mind, tive, regulations eating. other example, With these we and while an office For em- ployee adopted "predominant required to eat desk or circuit courts have who at his Chicago summary judgment court’s nineteen other current former determination de novo. this action in state police officers initiated 1989, claiming court in November plaintiffs argue that the district court meal made
restrictions on their improperly granted judgment summary periods compensable those work time under because merits was not com plete offi- on the issue of frequency Those restrictions include: and dura FLSA. interruptions during tion of officers’ meal permission a dis- cers must receive from this, periods. concedes and there patcher period; must to take a officers fore does defend the district court’s rea from permission supervisor receive Instead, soning. City justifies grant assigned during leave their districts summary judgment ground on a the dis periods; must remain in uniform *4 rejected trict court the collective bar —that comply governing and various with rules gaining agreement City between the and the uniform; two conduct while in no more than police by officers provid satisfies the FLSA during peri- congregate officers a meal ing that officers will receive overtime if prior permission; od without officers in two- eight work a full hours and also work person units take their at the must meals during period. parties their meal Both ac time; same must to end be available knowledge complete was as to request; upon their re- meals officers must agree this issue. We that the collective bar spond emergencies requests and for assis- gaining agreement protects plaintiffs’ by public; tance and officers must be rights compensation to overtime under the by dispatcher. available radio to the FLSA, and affirm grant summary of judgment Sandahl, on that v. Flynn basis. City judg for summary moved 283, (7th Cir.1995). 58 F.3d 289 First, grounds. City con on two Bargaining Agreement Collective Act, tended that the Portal-to-Portal 29 (“FOP”) The Fraternal Order of Police 259, § U.S.C. barred suit because the bargaining representa- acted as the collective police department had based practice its Chicago tive of police most officers since excluding periods meal from half-hour During time, the FOP and the compensable good work time on a reli faith City entered have into several collective bar- Department ance on a Pul Labor Letter gaining agreements providing for fixed sala- Second, ing. City asserted that the col officers, ries for as well as overtime at bargaining agreement lective between for rate of time-and-one-half all hours police officers declared that eight day worked in excess of hours in a or periods are compensable meal 40 in a A week. memorandum of time, work and therefore served com as a understanding attached to all of the collective plete defense to the lawsuit. The district agreements bargaining certain sets out bene- rejected grounds upon court both which the fits, including period a during half-hour meal motion, granted based and its instead duty. bargaining each tour The collective summary merits, judgment finding on the agreements grievance procedure establish a restrictions the officers and the disputes for about or interpretation appli- interruptions during periods their meal did agreement, provide cation and periods compensable make the meal time party before a arbitration neutral those We disputes during grievance under the FLSA. review the district not resolved Alexander, determining peri employer. benefit” test for whether meal 994 F.2d 337. The compensable compensation ods constitute work time meal FLSA during See, 337; e.g., Avery police comfortably FLSA. 994 F.2d at which officer cannot 1337, (11th Talladega, spend adequately v. 24 F.3d 1345 and the mealtime because the 1994); County primarily Cir. v. Henson Pulaski officer's time attention is devoted Sheriff 531, (8th Lamon, Cir.1993); Dept., responsibilities. 6 F.3d 534 Lamon v. official Shawnee, 1145, (10th police during F.2d 972 1155-57 1155-56. If offi Cir.1992), denied, 972, primarily occupied rt. 507 U.S. S.Ct. 113 cer’s time attention are ce 1414, (1993). employee private pursuit, presumably procure 785 122 L.Ed.2d An food, completely duty consumption considered to be relieved from ment and then the officer is during period employee’s completely duty a meal when the relieved from is not entitled spent predominantly compensation is not for the of the Id. at benefit under the FLSA. 232 FLSA, compen- provides for overtime undisputed that the FOP which It is
procedures. only when an officer works more than asserting that the sation grievance filed a never has day period. in a 28 171 hours period consti- uncompensated half-hour bargaining collective tutes breach district court found that the col agreement. specifi bargaining agreement lective did not cally whether meal address FLSA, employers em Under time, compensable therefore the provisions of may make “reasonable ployees agreement by support itself sum could computation of work guide] the contract [to mary City. In our judgment favor computation accurate precisely hours where opinion, was on a previous based less Coal, impossible” See Tennessee is difficult or here, sug developed we record than we Local No. Railway Co. v. Muscoda Iron & gested in a footnote that the collective bar 705, 590, 603, 698, 123, 64 S.Ct. 88 321 U.S. gaining agreement factor was one (1944). v. See also Skidmore L.Ed. 949 Swift peri determining consider in whether meal 134, 136-37, 161, 163, Co., 65 S.Ct. 323 U.S. compensable Alexander ods work time. (1944); Remington Bowers L.Ed. 124 89 333, F.2d n. 11 (7th 114, Cir.1946), Rand, Inc., F.2d Cir.1993). (7th However, upon further re denied, 330 U.S. S.Ct. cert. view, bargain *5 we conclude that the collective (1947). employ This means that L.Ed. 1288 ing agreement outright pre can and does cer resolve whether and ers agreement plaintiffs’ clude claim. The the through a activity is “work” collective tain clearly that officer entitled to states an is long agree agreement, as as the bargaining overtime rates for hours worked in excess of with the FLSA. See Beaston comports ment eight per day. If an hours officer works Children, Veterans’ v. Scotland Sch. for day eight more than in a a result of hours as (M.D.Pa.1988), aff'd, F.Supp. working during period, a meal the will Cir.1989). (3d Here, if the collec F.2d 587 pay rates overtime for the excess work time. agreement’s guarantee of bargaining tive Alexander, requires no more. FLSA compensation for time worked in overtime (Bauer, C.J., dissenting). at 345 F.2d eight-and-one-half hours in an eight excess Indeed, inquiry by the individual facilitated duty protects Chicago police hour tour of grievance process the is the efficient most rights compensa to overtime officers’ FLSA way an to determine whether officer’s meal tion, agreement is a the defense to then period compensable be should work time. liability plaintiffs’ the and the FLSA police department The situation here —a perfect cannot succeed. This makes suit 12,000 some officers in different districts it where is difficult to sense in situations with shift different schedules and different precisely working what constitutes define exigencies arising day might that each affect time. officers’ not meal conducive a —is Here, bargaining agreement collective the just one-shot solution. The officers want in provides “[a]ll that excess the a such solution: because some officers on (8 hours) workday in a normal hours worked days part some miss all or of their meal (40 hours) shall normal workweek be periods, plaintiffs the meal want compensated” at the rate of time-and-one- compensable to be work time. That would eight half. If officer works more than an sanction, a we brook result cannot hours, pay. is entitled to overtime the officer paid doing nothing officers be more parties’ agreement therefore assumes during eating periods. than their meal In- generally working not dur- that an officer is stead, conclude that the collective bar- we ing period, provides appropri- a but meal gaining provision guaranteeing overtime actually ate an officer compensation when eight who work more than during day does work the meal. In as the compensates they in a officers if work City argues, bargaining agree- during periods, the collective fully their therefore actually generous protects rights.3 ment than more FLSA plaintiffs sergeants, Sergeants 3. Some of the who are ment because of rank. receive their by agree- compensation bargaining covered the collective one-half hour overtime addi- present opinion Id. 339 n. 11. The is thus CONCLUSION Alexander, in total contradiction but com- reasons, foregoing affirm For the we ports closely analysis of Judge with the City’s granting order mo- district court’s Bauer’s in that dissent earlier ease. In his dissent, summary judgment. Judge Alexander tion for Bauer asserted: Here, bound the collective Affirmed. bargaining agreement requires that
the Officers receive overtime rates when they during their periods. CUDAHY, Judge, dissenting: Circuit allege Officers do not has breached Bauer, bargaining agree- the collective Judge majority, for the new has and, allegation, absent such an I job reviving restating done skillful City fully assume that complies its with part substantial his dissent in earlier Consequently City pays terms. case, appeal of this Alexander they Officers if work during their meal (7th Cir.1993). In if does them do (or fractionally we rather differ during not work periods. their meal panel) approve judgment ent refused FLSA no more. pleadings undeveloped on an adoption Id. at analysis by 345. The of this record one that In like the is now before us. present majority obviously disregards case, phase I for the wrote old the law of the ease. majority Judge Bauer dissented. The cosmetically order to deal least with case and issue to be resolved unseemly affairs, majority this state of changed any respect, panel but opinion previous states our opinion “was *6 changed. this is As a And decisive. result developed on a based less record than we to changed the law seems without so have here” and concludes “upon that further recognition much as a the nod new review, we that conclude the collective bar- doctrine, majority to the law of the case gaining agreement can outright and does flagrantly which has been violated here. preclude plaintiffs’ Maj. Op. the claim.” enough compel This in more itself is than Assuming 232. majority recognizes (new) rejection majority opinion. “predominant upon of the the benefit” test in relied Alexander, the conclusion that the collective majority says here that the collective bargaining agreement outright pre- alone can bargaining agreement complete can be a de- plaintiffs’ imply the claim that clude must the fense to a Labor Act Fair Standards claim required inquiry factual has conducted been agreement supplies dispositive when the and all of the other than facts the collective majority opinion bargaining agreement definition of “work.”1 The have been shown to be inconsequential. suggestion This defies real- specifically rejected ap- in Alexander this fact, ity. undeveloped fragmen- proach: —in tary before relevant now us is all —record Although fact finder consider [a respects undeveloped no different than the bargaining agreement] collective as one panel.2 record that confronted the Alexander among many determining factors wheth- changed; only The record has com- completely er the were relieved position panel changed. All has sides duty, certainly outright it pre- does not agree that in this is not com- case plete. clude the officers’ claim. It is for this that reason course, Here, eight regular pay eight- agreement supplies tion to hours of each for no definition of “work.” duty tour and-one-half-hour that work. duty The tour of includes one half-hour meal The court that a collective in Alexander held period. Sergeants eight-and- therefore an bargaining agreement could be considered as paid duty get eight- one-half hour tour of predomi- among many "one under the factors” and-one-half hours. The FLSA no more nant benefit test. 340 n. than this. added). (emphasis Nothing occurred to has change this As the answer to the conclusion. 1437, 1445, 728, 740-41, summary 101 S.Ct. U.S. Judge Marovich’s concedes that Thus, (1981). if collec- L.Ed.2d 641 even the merits cannot be affirmed judgment on explicitly de- bargaining agreement had If tive he discov- on which relied. for the reasons as non-eom- hardly fined the officers’ over, con- this court can ery an action could be sustained pensable, FLSA agree- bargaining collective that clude actually were if the meal dispositive facts. Alexander provides ment employer. of the predominant benefit predominant benefit test clearly that held complete de- after the Here, course, applied bargaining could be the collective relevant evidence.3 velopment of the In agreement no such definition. contains court, for sum- the district moved un- majority’s “further review” mary judgment grounds that the col- on the agreement bargaining changed collective that bargaining agreement lective declared Alexander) (contrary to suggest it to leads compen- the officers’ meal important is such an agreement a com- work and therefore served as sable insig- pale into that makes others factor it Judge the lawsuit. Maro- plete defense to sug- majority this supports nificance. The rejected position, finding that vich this Coal, Iron by citing Tennessee gestion agreement to in- bargaining “fails collective No. Railway v. Muscoda Local Co. any agreement pe- regarding clude 698, 705-06, 590, 603, 88 L.Ed. 64 S.Ct. U.S. finding is Op. Dist. at 11. This riods.” Ct. (1944), “employ- proposition correct, obviously majority has not make ‘reasonable ers and suggested anything agreement guide] computa- provisions [to contract Rather, majority put it in doubt. precisely accurate tion of work hours that, agree- ” its case the fact “The rests on impossible.’ difficult or computation is clearly that an is entitled states officer Maj. Op. at 232. for hours in excess to overtime rates worked out, majority neglects point howev- day.” Maj. eight per Op. at 232. er, admonition that: Coal’s Tennessee hardly This virtual truism addresses Act was not The Fair Labor Standards question now before us—whether cus- codify perpetuate those designed to meals involve the collective “work.” employ- which allow an toms contracts say bargaining agreement nothing employee’s an all of while er claim us, panel issue as the Alexander before compensating only part him for of it. subsequent- Judge held and as Marovich has *7 intended, instead, Congress to achieve a ly found. policy guaranteeing uniform national of majority opinion would leave the de- employment compensation for all work or pe- termination of the officers’ meal whether employees by engaged by covered the in case-by-case to riods constitute “work” falling or contract short Any Act. custom fact, majority In grievance arbitration. policy, agreement that like an to of basic opinion nothing to rest on more sub- seems wage require- pay less than minimum than that such stantial the belief arbitration ments, deprive to em- cannot be utilized may way question a to be better resolve the statutory ployees rights. their of than in How- litigation federal court. short, 602-03, at at S.Ct. 705. In Id. 64 ever, there that is no abstention doctrine statutory may rights which FLSA establishes tells us to in favor of an arbitrator. abstain away. Supreme not be contracted As any primary Nor is there like doctrine of stated, eongressionally grant- “... has Court jurisdiction. Supreme In Court has precedence rights take over con- remedy ed FLSA pursue that a a held worker collectively bargained flicting provisions in losing griev- after FLSA even Barrentine, compensation agreement.” Barrentine v. at ance arbitration. 450 U.S. (“No Inc., 740, Freight System, 101 1444 re- 450 S.Ct. at exhaustion Arkansas-Best is, course, out, rehearing points summary judg- petition parties possible that have It of marginally complete by more record created finishing appropriate on the merits be here ment pertaining to the Portal Act discovery. completion after the of all bargaining agree- the collective defense and to obviously But record is still defense. disputes insufficient to eliminate the of fact under predominate benefit test.
235
priate
procedural
findings
barriers
of the trial
quirement
other
are
court. This
or
scrutiny
other forum for enforcement
involves
and construction of
up,
set
and no
agreements
statutory rights
particular parties,
is referred to
created
between
statute.”).
practical
by
appraisal of
their
construction of
conduct,
working agreement by
consid-
that are before us
been
issues
service,
eration of the nature of the
and its
litigated by
in a
successfully
courts
number
time,
waiting
relation to
jurisdictions
grievance
arbitration
surrounding circumstances.
might have
an alternative means of
been
See,
resolving
e.g.,
issues.
Lamon v.
Co.,
134,
Skidmore v.
323
136-
U.S.
Swift
Cir.1992),
(10th
Shawnee,
lay legal down formula to resolve cases many
so varied in their facts are the as employment in which
situations involves
waiting Whether in time. a concrete case
such within or the Act time falls without question by appro- fact to be resolved