Romero v. RSK Construction, Inc.

Background

This putative class action was brought by Elihu Romero, Samuel Leon, Nelson Elias Diaz, Francisco Tenezaca, Francisco Aguilar, Fernando Olea, Jhon Spencer, Reynaldo Ariza Barrios, Sergio Avila Lopez, Fernando Arellano, and Grebil Moreno against Real Innovative Construction, LLC, ECI Contracting, LLC, Andy Morales, Carlos Morales, and Kieran Keaveney. The workers alleged that they were not paid required wages or overtime and did not receive required wage notices under the Fair Labor Standards Act and the New York Labor Law. The claims centered on a construction site at 164 West 74th Street, where the workers allegedly worked from April 2018 through May or June 2018.

Motion and Recommendation

ECI Contracting, LLC and Kieran Keaveney, referred to as the Moving Defendants, moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the claims against them. They argued that the amended complaint did not allege that they employed the plaintiffs and therefore did not adequately plead that they could be liable for the alleged wage-law violations.

The court had referred the motion to Magistrate Judge Lehrburger for a report and recommendation and pretrial proceedings. Judge Lehrburger recommended denying the motion. The Moving Defendants had 14 days to object, but 21 days had passed without an objection or other response when the district court ruled.

Court’s Analysis

When no timely objection is filed to a magistrate judge’s report and recommendation, the district court reviews the record for clear error. The court found no clear error in Judge Lehrburger’s recommendation.

The issue was whether the plaintiffs had adequately alleged that the Moving Defendants employed them at the construction site. Under the Fair Labor Standards Act and New York Labor Law, an employer determination turns on operational control and the economic reality of the relationship. The court identified four relevant factors: whether the alleged employer could hire and fire workers; supervised and controlled work schedules or employment conditions; determined the rate and method of payment; and maintained employment records. No single factor is decisive.

The court agreed that the amended complaint plausibly alleged that the Moving Defendants were employers. In particular, the complaint alleged that they could hire and fire the plaintiffs and supervised their work schedules and employment conditions.

Ruling

Judge Valerie Caproni adopted the report and recommendation in its entirety and denied the Moving Defendants’ motion to dismiss. The court stated that the Moving Defendants’ failure to object operated as a waiver of appellate review because the report had warned that failing to object within 14 days would preclude appellate review. The Clerk of Court was directed to close the motion at docket entry 52.