Cortese v. Skanska USA, Inc.

Background

Anthony Cortese, a crane operator affiliated with International Union of Operating Engineers, Local 825, sued Skanska USA and Skanska Koch. He alleged that he worked on both sides of the George Washington Bridge during 2019 and was paid the New Jersey prevailing wage for all work, including work performed in New York. He claimed that he should have received the higher prevailing wage for New York work and overtime pay calculated at one-and-a-half times that higher rate.

Cortese asserted claims under the Fair Labor Standards Act (FLSA), New York Labor Law (NYLL), and state common law. His theories included that a contract between the defendants and the Port Authority required payment of the prevailing wage for the location where the work was performed, and that NYLL section 220 independently required the New York prevailing wage. Counts Eight and Nine, which alleged retaliation under the NYLL and FLSA, were not challenged by the motion to dismiss.

Motion to Dismiss

The defendants moved under Federal Rule of Civil Procedure 12(b)(6), which concerns whether a complaint adequately states a legal claim, to dismiss Counts One through Seven.

The court dismissed Counts Two through Four, the NYLL claims, because Cortese did not allege that he had exhausted the administrative process required before bringing a private claim under NYLL section 220. The court rejected Cortese’s argument that the requirement should be excused because it was unclear which agency should handle a claim involving a Port Authority project. The court also ruled that it would not have dismissed these claims on the separate argument that private contractors working for the Port Authority are exempt from the NYLL. According to the court, the Port Authority’s exemption does not broadly extend to private corporations that contract with it.

The court denied dismissal of Count One, Cortese’s FLSA overtime claim. Although he had received overtime pay calculated from the New Jersey wage, the court held that he plausibly alleged a contractual right to the higher New York wage for work performed there. The court concluded that a prior appellate decision did not bar the claim because Cortese’s asserted prevailing-wage right arose from a contract rather than directly from the federal prevailing-wage statute.

For Counts Five through Seven—breach of contract, unjust enrichment, and quantum meruit—the court dismissed with prejudice the portions seeking overtime wages because they duplicated the FLSA overtime claim. The court allowed the common-law claims to continue insofar as they sought regular, non-overtime wages.

Conditional Certification

The court granted Cortese’s motion to conditionally certify an FLSA collective. At this early stage, he had to make only a modest factual showing that he and potential participants were affected by a common policy that violated the FLSA. The court found that Cortese’s allegations about New Jersey-based union members who performed work on both sides of the bridge and allegedly received the New Jersey rather than the New York overtime rate met that standard.

The conditional group was not finally certified. The court accepted Cortese’s allegations that at least 60 current and former New Jersey union members may have been affected, despite describing the allegations about their identities and trades as somewhat vague. The court approved a revised notice for potential participants, which Cortese was required to mail by May 29, 2020.

Disposition

The court granted the motion for conditional certification. It granted in part and denied in part the motion to dismiss: Counts Two through Four were dismissed for failure to exhaust administrative remedies; Count One survived; and the overtime portions of Counts Five through Seven were dismissed with prejudice while their regular-wage portions remained. The opinion did not decide the ultimate merits of Cortese’s surviving claims.