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SECOND DIVISION
March 9, 2004

JUSTICE BURKE delivered the opinion of the court:

Plaintiff, the People of the State of Illinois ex rel. the IllinoisDepartment of Labor (Department) appeals from an order of the circuit courtentering summary judgment in favor of defendant General Electric Company,concluding that two former General Electric employees were not entitled toadditional pay for vacation time. On appeal, the Department contends thatGeneral Electric was not entitled to summary judgment because it failed todemonstrate that its practice of precluding employees from taking vacation daysduring the first year of employment was not a subterfuge to avoid making paymentto its employees for vacation days earned. For the reasons set forth below, wereverse and remand.

Ronald Hogue worked for General Electric from August 12, 1961, until August1, 1998, when he retired. At this time, Hogue was entitled to 30 days' vacation,he had taken 12 days, and General Electric paid him for 18 days, the unusedportion of his allotted vacation time. Hogue believed, however, that he wasentitled to 7/12ths additional time for the period he worked in 1998. PriscillaScott worked for General Electric from March 1, 1973, until November 30, 1999,when she retired. At this time, Scott was entitled to 25 days' vacation, but shehad taken all 25 days prior to her retirement. Scott believed, however, that shewas entitled to 11/12ths additional time for the period she worked in 1999. BothHogue and Scott worked at General Electric's Morrison, Illinois plant.

On July 30, 1999, the Department issued a wage payment demand to GeneralElectric, with respect to Hogue, seeking payment for vacation time during theseven months he worked in 1998, in the amount of $2,187.50. Because GeneralElectric did not pay this amount, on July 13, 2000, the Department filed acomplaint against General Electric, alleging that General Electric violatedsection 5 of the Wage Payment and Collection Act (820 ILCS 115/5 (West 2002)) byrefusing to pay Hogue for the additional vacation time. On December 29, theDepartment issued a wage payment demand to General Electric on behalf of Scottin the amount of $3,244 for vacation time for the period she worked in 1999. Because General Electric refused to pay Scott the additional amount, theDepartment amended its complaint on July 6, 2001, to add a claim on her behalf. In both complaints, the Department sought the amount due and owing Hogue andScott, as well as penalties as provided for by statute.

On February 14, 2002, General Electric filed a motion for summary judgment. Attached to the motion was the "Declaration of James Shires," in which Shiresstated that he was the human resource manager for General Electric at theMorrison plant from June 1998 to April 2000. According to him, a vacation policywas in effect from January 1, 1995, to January 1, 1998, and another in effectfrom January 1, 1998, until January 1, 2001. Both of these policies, containedin General Electric's employee handbooks, were attached to General Electric'smotion for summary judgment. Shires declared that, although the language of thetwo policies were different, they meant the same thing and were administered inthe same way. Shires further declared that employees were not entitled to anddid not earn vacation benefits until after one year of service. Once an employeecompleted the one year of service, he or she was awarded all of that year'svacation time in advance on January 1. Shires also declared that if there wasa gap between an employee's first anniversary and January 1, the employee wasawarded one week vacation during that gap period. Shires further acknowledgedthat employees received additional vacation time based on their length ofservice.⁽¹⁾

Also attached to General Electric's motion were the deposition transcriptsof Shires and Harold Wickler, General Electric's human resource specialist, aswell as excerpts from Hogue and Scott's depositions. Hogue testified that it washis understanding, from reading the employee handbooks, that employees worked oneyear to earn vacation for the next year. Hogue admitted that, over the years,a lot of his friends retired and did not get paid for the next year's vacationtime. However, Hogue stated that he did not think about this until he retiredand, after he learned the law in Illinois, he came to believe this policy waswrong.

Priscilla Scott testified that when she was hired in 1973, Bud Claven ofGeneral Electric's human resource department told her that employees worked oneyear for the next year's vacation. Scott further stated that, over the years,she had general conversations with over 100 people who had talked about howemployees worked that year to get vacation time next year. Scott admitted thatshe never read the vacation policy in General Electric's employee handbooks untilshe retired.

James Shires testified that he was the human resource manager for GeneralElectric's Morrison plant from June 1998 to May 2000. At the time of hisdeposition, he was a vice president of human resources. According to Shires, inboth positions he did the same work: administered personnel policies, includingvacation policies. When asked how the terms "earned" and "eligible" differed,Shires stated that he could not say and that he did not use the term "earn."⁽²⁾ With respect to General Electric's vacation policy, Shires stated that as ofJanuary 1 each year, any employee who received income in the last week of theprevious year was eligible to take all of his or her vacation days immediately. However, an employee who was going to pass an anniversary date that year wouldhave to await that date to take the additional time. The following colloquy thenoccurred between the Department's attorney and Shires:

"Q: [Ms. Nguyen:] Is it your understanding forthe first six months that you worked there at GeneralElectric, were you earning vacation?

A: No.

Q: You simply became eligible after six months totake vacation?

A: Yes.

Q: When would you start earning that one-weekvacation that you say that you're eligible for after sixmonths?

A: I don't know that I'd ever say--I would neversay that I was earning some vacation. I would say whenI would be able to take vacation."⁽³⁾

Harold Wickler testified that "eligible" meant that an employee wasactively on the payroll in January of each year. According to Wickler, anemployee needed one year of continuous service to become eligible for vacationtime. Wickler stated that if someone worked continuously through December 31,and retired that day, he or she would be eligible for the next year's vacationallotment. Wickler then testified as follows as to the meaning of earn andeligibility:

"When you earn something, you have done something,and after you have done that, you get a reward. At theend of a week, you get paid. You've earned it,therefore you get paid.

And eligible, you have met certain requirementsbut you have to be within certain parameters to beeligible."

Wickler further testified, in response to the Department's attorney's questions,as follows:

"Q: [Ms. Nguyen:] In the years with GeneralElectric and in your position as a human resourcespecialist, were you ever told that your vacation thatyou're allotted at the beginning of the year is aninducement for future services?

A. No.

Q: That term was never used?

A: Never used.

Q: Were you ever told that on January 1st all thevacation that you were allotted was vacation that wasadvanced to you?

A: No."

Wickler, when later questioned, responded that after one year a person startsearning vacation time.

The two General Electric vacation policies offered (1995 to 1998 and 1998to 2001) were the same or similar in certain respects and, thus, only thedifferences are detailed below. The second vacation policy, contained in theemployee handbook effective January 1, 1998, to January 1, 2001, provided:

"You are eligible for paid vacation if you are afull-time Company employee and have at least one year ofcontinuous service.

To remain eligible for vacation each year:

You must work at least part of the last fullcalendar week of the prior year or have earningsattributable to that week, and

Your continuous services or service credits mustbe maintained through December 31 of the prior year.

In general, vacation pay is based on your normalstraight-time earnings for a regular work week. ***

If you are an eligible full-time Company employee,the amount of vacation you may take depends on thelength of your continuous service. You become eligiblefor additional vacation weeks on your anniversary date,no matter when it falls during the year."

In a latter paragraph, the policy stated that employees were "expected toschedule and take [their] full vacation each year," and that if an employeeleaves the company, he or she (or his or her estate) "will be paid for any unusedvacation days."

Conversely, the first policy, effective January 1, 1995, to January 1,1998, stated, with respect to eligibility:

"If you are a new employee, you are eligible toearn vacation benefits once you have completed at leastone year of continuous service with the Company. Youreceive additional weeks of vacation as the length ofyour continuous service increases." (Emphasis added.)

With respect to the length of vacation, the first policy provided:

"After you have completed one year of continuousservice, you are entitled to one week of vacation. Youare entitled to additional weeks of vacation when youpass certain service anniversaries, as shown below. Youdo not begin earning vacation benefits until you havecompleted one year of continuous service." (Emphasisadded.)

Lastly, with respect to remaining eligible for vacation benefits, the firstpolicy stated, "To remain eligible to earn vacation benefits each year," andthereafter continued the same as the second policy. (Emphasis added.) Theservice anniversaries under both policies were 1, 2, 5, 7, 15, 20, and 30 years.

On April 25, 2002, the Department filed its response to General Electric'smotion for summary judgment, as well as a cross-motion for summary judgment,arguing that General Electric's vacation policy was an "earn-in-arrears" policy,i.e., an employee works one year to earn vacation for the next year. TheDepartment further argued that General Electric had failed to demonstrate thatits policy was not a subterfuge to avoid paying vacation time, stating thatnumerous factors supported a conclusion that General Electric's employees earnedvacation one year for the next year.

In addition to the above-referenced depositions and handbooks submitted byGeneral Electric, the Department attached a December 14, 1993, memorandum fromGeneral Electric's corporate headquarters to its response. This memorandum wasentitled "Prorated Vacation Pay for Illinois Employees," and provided that thoseemployees who terminated their service during the year must be paid unusedvacation. The memorandum further provided that in addition to those days, anemployee who terminated his or her employment and would be entitled to additionalvacation on their next anniversary date, would be entitled to a portion of thatadditional time. The memorandum set forth several examples. First, if anemployee was to reach his 15th anniversary on September 16, 1994, and wasterminated on June 18, 1994, the employee would be entitled to 9/12ths of theadditional five days he or she would have earned September 16, and any remainingvacation days from 1994. Second, if the same employee terminated service withGeneral Electric on December 17, 1993, he or she would be entitled to 3/12ths ofthe additional five days and any remaining days from 1993. With respect toemployees who had worked for General Electric for less than one year, thememorandum provided that these employees must now be paid for the earned portionof their vacation. For example, if an employee was terminated after eightmonths, he or she would be entitled to 8/12ths of the 5 days he or she would havebeen eligible to take upon his or her one-year anniversary date.

On June 20, General Electric filed its reply and on September 19 theparties entered a joint stipulation that summary judgment was the mostappropriate procedure to dispose of this case. On October 3, the trial courtentered summary judgment in favor of General Electric. This appeal followed.

Summary judgment is proper when "the pleadings, depositions, and admissionson file, together with the affidavits, if any, show that there is no genuineissue as to any material fact and that the moving party is entitled to a judgmentas a matter of law." 735 ILCS 5/2-1005(c) (West 2000); Robidoux, 201 Ill. 2d at335. The right to relief must so clearly favor the movant that no fair-mindedperson could dispute the movant's right to judgment in its favor. The SouthernIllinoisan, a Division of Lee Enterprises, Inc. v. Department of Public Health,319 Ill. App. 3d 979, 986, 747 N.E.2d 401 (2001). In other words, the movant'sentitlement to judgment must be clear and free from doubt. Purtill v. Hess, 111Ill. 2d 229, 240, 489 N.E.2d 867 (1986); Turner Investors v. Pirkl, 338 Ill. App.3d 676, 680, 789 N.E.2d 323 (2003). The evidence must be strictly construedagainst the movant and liberally, or in the light most favorable, to thenonmoving party. Turner Investors, 338 Ill. App. 3d at 680. Where parties havefiled cross-motions for summary judgment and have agreed that no genuine issueof material fact exists, a reviewing court decides the issues presented asquestions of law. Harwood v. McDonough, 344 Ill. App. 3d 242, 245, 799 N.E.2d859 (2003). With respect to a trial court's entry of summary judgment, ourreview is de novo. General Casualty Co. of Illinois v. Carroll Tiling Service,Inc., 342 Ill. App. 3d 883, 889, 796 N.E.2d 702 (2003). "Our function on anappeal from the grant of summary judgment is limited to determining whether thetrial court correctly found that no genuine issue of material fact existed and,if that was the case, whether the trial court correctly entered judgment as amatter of law." General Casualty Co. of Illinois, 342 Ill. App. 3d at 889.

Section 5 of the Wage Payment and Collection Act (Act) provides:

"Every employer shall pay the final compensationof separated employees in full, at the time ofseparation ***.

Unless otherwise provided in a collectivebargaining agreement, whenever a contract of employmentor employment policy provides for paid vacations, and anemployee resigns or is terminated without having takenall vacation time earned in accordance with suchcontract of employment or employment policy, themonetary equivalent of all earned vacation shall be paidto him or her as part of his or her final compensationat his or her final rate of pay and no employmentcontract or employment policy shall provide forforfeiture of earned vacation time upon separation." 820 ILCS 115/5 (West 2002).

Also relevant in the instant case is the Department's regulation, entitled"Earned Vacations," which states as follows:

"a) Whenever an employment contract or anemployment policy provides for paid vacation earned bylength of service, vacation time is earned pro rata asthe employee renders service to the employer.

b) Oral promises, handbooks, memoranda, anduniform patterns of practice may create a duty to paythe monetary equivalent of earned vacation.

f) The Department recognizes provisions whereby:

1) no vacation is earned during alimited period at the commencement ofemployment. The employer must demonstratethat the provision is not a subterfuge toavoid payment of vacation actually earnedby length of service and, in fact, novacation is implicitly earned or accruedduring that period." 56 Ill. Admin. Code