Court Denies Berry Bros Motion to Dismiss

The wage and hour class action lawsuit filed against Berry Bros Construction for failing to pay its laborers overtime pay will continue to move forward. Filed in November of 2018, this case seeks to recover unpaid overtime for a proposed class of laborers including mechanics, welders and electricians. Recently, the Texan based construction company asked the court to dismiss the case based on grounds that the plaintiff did not plead sufficient facts in order to establish a claim under the Fair Labor Standards Act (FLSA). More specifically, they claimed the plaintiff did not provide a definite claim to alleged overtime owed as well as not having “similarly situated” proposed class members. However, Berry Bros failed to get the case dismissed and their motion was denied.

After reviewing the entire complaint, the court found that the plaintiff did include the necessary claims below for unpaid overtime or minimum wages under FLSA:

  • an employer-employee relationship existed during the pay periods claimed
  • the employee engaged in activities within the coverage of FLSA
  • the employer violated FLSA’s overtime or minimum wage requirements
  • the amount of compensation due

Additionally, with regard to the “similarly situated” proposed class members, the complaint details all the sufficient information describing the alleged illegal pay practice the plaintiff and the other collective members had been subject to as well as their job titles and the job titles of the others the plaintiff alleges are similarly situated.

Fitapelli & Schaffer, LLP is pleased to have this matter advance and hopes to have the case be certified as a class. If you or anyone you know has worked for Berry Bros and has any questions regarding their pay or this lawsuit, please give us a call at (212) 300-0375.

You may also view the court’s decision here.