FLSA Decertification Denied in Southern District of NY

On August 25, 2014, the Southern District of New York granted Plaintiffs’, plumbers, request for final certification and motion for partial summary judgment while denying Defendants Contract Callers, Inc., Michael Maguire, and William “Tim” Wertz’s motion to decertify the conditionally certified collective action and motion for summary judgment. McGlone v. Contract Callers, Inc., Nos.11 -3004 (S.D.N.Y. Aug. 25, 2014).

Defendants entered into a contract with the New York City Department of Environmental Protection (“DEP”) to install water meters and associated devices that transmit the meter readings back to the DEP. Plaintiffs were the plumbers who worked for Defendants, performing the installations of the automatic meter reading devices during the limited contract with the DEP. Plaintiffs claimed that they were required to punch in and out each day, including a 30-minute meal break, even though they were working “off-the-clock” before and after their standard shifts and were unable to take a bona fide half-hour break to eat.

When granting Plaintiffs final certification and denying Defendants’ motion to decertify, the Court focused on the three factors to determine whether the Plaintiffs were similarly situated: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations. The Court found the first factors weighing in favor of Plaintiffs being similarly situated because Plaintiffs’ deposition testimony stated they were all shorted on their hours by being required to work “off-the-clock,” that they all had a half hour deducted for meal breaks even though they were not allowed to take it, they all had the same job position, were all located in the same facilities, and all had the same supervisors. Again, under the second factor, the Court found that Defendants defenses are not individualized since actual or constructive knowledge of Plaintiffs working “off-the-clock” is unlikely to vary among Plaintiffs and Defendants’ de minimis defense would likely succeed or fail across the entire collective. Finally, the Court held that litigating the 19 Plaintiffs’ claims individually would be burdensome on Plaintiffs, Defendants, and the courts, thus both fairness and procedural considerations weigh in favor of certification.

The Court also granted Plaintiffs’ motion for partial summary judgment finding that Defendants’ kept inaccurate records and the payments made pursuant to Defendants’ incentive program may not be used to offset any pay otherwise owed to Plaintiffs pursuant to State and Federal law. The Court came to these conclusions based on testimony from a General Manager that he saw plumbers arrive before the time that their records display, with discrepancies of up to an hour. Additionally, the Court pointed to the Garcia v. Tyson Foods, Inc. case to show that incentive program payments cannot be used to offset overtime pay obligations according to the Department of Labor.

Finally, the Court denied Defendant Maguire’s motion for summary judgment finding that Plaintiffs marshalled enough evidence to find at atrial that Maguire possessed sufficient control over them to be considered an “employer” in the FLSA broadly defined version.

The Employment Lawyers at Fitapelli & Schaffer frequently represent employees who have been misclassified as exempt under the Fair Labor Standards Act and the New York Labor Law. Please contact us at (212) 300-0375 to schedule a free consultation to further discuss your rights. For more information, please visit our website, www.fslawfirm.com.