Salvation Army
CHICAGO — A federal judge is advancing a class action accusing the Salvation Army of violating wage laws by not compensating rehabilitation program participants for their work in the charity’s thrift stores.
Five men who used to be enrolled in Salvation Army adult rehab centers claim they had to work 40 hours each week as part of their treatment but said they earned no pay for their time. They asked U.S. District Judge Manish Shah to certify their lawsuit as a class action pursuing the Salvation Army under Illinois state minimum wage laws and under the federal Fair Labor Standards Act.
He granted the request in an opinion filed March 26.
According to court records, the lawsuit involved the Salvation Army’s Central Territory of Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Nebraska and Wisconsin. The rehab programs typically run 180 days but could last 12 months. Participants have access to “housing, food, clothing, counseling and 12-step programs at little or no monetary cost,” Shah wrote. “Inability to pay for shelter or services was not a reason to turn someone away from an ARC.”
The Salvation Army refers to people in the program as participants or enrollees and requires “work therapy” of five eight-hour days each week. Missing or leaving work shifts was grounds for dismissal from rehab, a guideline contained in the uniform sets of behavioral rules provided during intake processing, along with rules requiring participants to stay sober, eschew violence, follow the dress code and grooming policy, and keeping curfew.
Shah said he had already conditionally certified a FLSA collective action and approve a notice plan, prompting the plaintiffs to seek class certification and final collective action certification. An Illinois class would include rehab enrollees dating back to March 9, 2019, with a Michigan class having the same span. The Wisconsin class period begins March 9, 2020. No one can join the class if they enrolled under a court order or to meet probation, parole or community supervision requirements.
In arguing against certification, the Salvation Army challenged the obligation to determine the subjective nature of each person’s reason for enrolling in rehab. But Shah said that problem is solved by using the phrase “who were not ordered by a court or required as a condition of probation, parole, or community supervision to enroll in the program” and further noted enrollee intent “is in any event irrelevant to the merits of the underlying claims.”
Shah further rejected the contention that the class definition can’t cover people who didn’t have standing to sue on their own. While that might be relevant for individual damages, he said, it’s not a required showing for certification. And even if there were concerns the proposed classes included many people who might not have endured legal harm related to the allegations, “the solution would be to refine the class definition, not deny certification for lack of ascertainability.”
There likewise isn’t a concern about a sufficient number of members with the putative Illinois class at 3,000, Michigan at 3,500 and another 450 in Wisconsin. Shah also said the Illinois Minimum Wage Law is similar to the Michigan Workforce Opportunity and Wage Act insofar as applying the same “economic reality of the working relationship” analysis as the FLSA while Wisconsin law defines an employer based on controlling the conduct and manner of an individual’s work. As such, “class-wide adjudication is likely to generate common answers to the question of participants’ employment status,” Shah wrote, especially since “The Salvation Army relies on its national policies when arguing that participants were not employees, which suggests that it believes the legal question of employment status is one that can be resolved for all class members at once.”
The plaintiffs provided individual testimony, Shah added, but that is viewed as contributing to the evidentiary record of standard conduct and not an establishment of personalized legal theories or inquiries.
“Answering the question of employment status — given that it is undisputed no participants were paid — would be sufficient to answer whether there were minimum wage violations for all class members,” he said. “The individual testimony provided can serve as proof of the Salvation Army’s expectations and practices for its work therapy program.”
Shah said he wasn’t yet ruling on whether there is an employment relationship, only that whatever answer he reaches would likely apply to all class members. He said the plaintiffs agreed the class couldn’t include anyone who didn’t complete the initial rehab origination period, as that ends before enrollees begin work therapy and said that while employee definitions might vary between states, the minimum wage claim elements are the same, and neither the workers nor the Salvation Army contest whether enrollees are paid.
“Because the central and common question of employment status predominates over any individual issues, not much else is needed to satisfy the superiority requirement,” Shah said. “But there is more. Enrollees in the Salvation Army’s ARCs are a vulnerable population, more likely to lack awareness of any possible claim, and less likely to have access to legal services. The benefits of individual adjudication are minimal, while the benefits of resolving this dispute as a class are great. A class action is superior to other available methods.”
Finally, Shah said although FLSA collective actions are different from class actions, the Salvation Army still failed to defeat that motion, explaining its arguments against both are similar and “some differences among employees in a collective are permissible so long as they do not result in detailed, fact-bound inquiries and common questions still predominate.”
One of the named plaintiffs attended rehab in Missouri and cannot participate in the state law classes but is allowed to remain a plaintiff for the federal claims, which cover 10 states and enrollees from Sept. 20, 2019, through Sept. 11, 2023, the judge said.
Plaintiffs are represented in the action by attorney Christine E. Webber and others with the firms of Cohen Milstein Sellers & Toll, of New York and Washington, D.C.; Rosen Bien Galvan & Grunfeld, of San Francisco; and Rukin Hyland & Riggin, of Oakland, California.
