On August 25, 2014, the Southern District of New York granted Plaintiffs\u2019, plumbers, request for final certification and motion for partial summary judgment while denying Defendants Contract Callers, Inc., Michael Maguire, and William \u201cTim\u201d Wertz\u2019s motion to decertify the conditionally certified collective action and motion for summary judgment.\u00a0 McGlone v. Contract Callers, Inc.<\/i>, Nos.11 -3004 (S.D.N.Y. Aug. 25, 2014).<\/p>\n
Defendants entered into a contract with the New York City Department of Environmental Protection (\u201cDEP\u201d) 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 \u201coff-the-clock\u201d before and after their standard shifts and were unable to take a bona fide half-hour break to eat.<\/p>\n
When granting Plaintiffs final certification and denying Defendants\u2019 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.\u00a0 The Court found the first factors weighing in favor of Plaintiffs being similarly situated because Plaintiffs\u2019 deposition testimony stated they were all shorted on their hours by being required to work \u201coff-the-clock,\u201d 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 \u201coff-the-clock\u201d is unlikely to vary among Plaintiffs and Defendants\u2019 de minimis<\/i> defense would likely succeed or fail across the entire collective. Finally, the Court held that litigating the 19 Plaintiffs\u2019 claims individually would be burdensome on Plaintiffs, Defendants, and the courts, thus both fairness and procedural considerations weigh in favor of certification.<\/p>\n
The Court also granted Plaintiffs\u2019 motion for partial summary judgment finding that Defendants\u2019 kept inaccurate records and the payments made pursuant to Defendants\u2019 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.<\/i> case to show that incentive program payments cannot be used to offset overtime pay obligations according to the Department of Labor.<\/p>\n
Finally, the Court denied Defendant Maguire\u2019s 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 \u201cemployer\u201d in the FLSA broadly defined version.<\/p>\n