Moses v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
- Ona Wang
- 1:18-cv-01200
- U.S. District Court · Southern District of New York
- 14
In Moses v. Griffin, Judge Wang conditionally certified a federal wage-law collective of Griffin flaggers at Con Edison worksites, with limits on notice and tolling.
The ruling affects the named plaintiffs and other Griffin flaggers who worked at Con Edison worksites and may receive notice of the FLSA overtime and minimum-wage claims. It also sets requirements for Griffin, Con Edison, and the parties’ counsel concerning the notice process.
What happened
In Moses v. Griffin Industries, LLC, et al., construction flaggers alleged that Griffin Industries, Griffin Security Services, individual defendants, and Consolidated Edison owed unpaid overtime and other wages under federal and New York law. They sought permission to notify other potentially similar workers and allow them to join the federal wage claims. Griffin and Con Edison opposed the request.
The court granted the motion to the extent it covered Griffin flaggers who worked at Con Edison worksites. The court found that the plaintiffs made the limited initial showing required to proceed collectively on unpaid overtime and unpaid minimum-wage claims, while emphasizing that this decision did not resolve whether Griffin and Con Edison were joint employers or whether the claims would ultimately succeed.
Judge Ona T. Wang required a three-year notice period and a 60-day opt-in period. She denied broader equitable tolling except for March 18 through May 29, 2020, allowed notice by mail, email, text message, and social media, and denied website posting and a reminder notice. The parties were ordered to meet and confer about the notice language.
The detailed version
- Moses v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. · No. 1:18-cv-01200
- Ona Wang
- Sept. 30, 2020
Background
The plaintiffs—Raven Moses, Staraisha Morris, Dwayne Dale, Ismaiyl Jonse, Ayanna Beacham, Andre Murray, Victor Ballast, and Luis Simone—alleged that Griffin Industries, LLC, Griffin Security Services, Michael Smith, Winston Smith, Andrew Muñiz, Aaron Muñiz, and Consolidated Edison Company of New York, Inc. were joint employers. The plaintiffs said they worked as construction flaggers for Griffin at Con Edison worksites and were not paid prevailing wages, supplemental benefits, or wages for certain travel, waiting, payment-collection, and paperwork-related time. The claims invoked the Fair Labor Standards Act (FLSA) and New York Labor Laws. Dale and Jonse also alleged retaliation under the FLSA and New York law.
The plaintiffs moved for conditional certification of an FLSA collective. Conditional certification is the first-stage process for allowing notice to potential workers who may want to join an FLSA lawsuit. At this stage, the plaintiffs needed to make a modest factual showing that they and other workers were affected by a common policy that violated the FLSA. The court stated that it would not decide factual disputes, credibility, or the ultimate merits at this stage.
Court’s Analysis
The court found that the plaintiffs met the initial burden. Their complaint and declarations described common working conditions for Griffin flaggers assigned to Con Edison worksites, including alleged supervision by Con Edison personnel and common pay practices. The court acknowledged doubts about whether the plaintiffs could ultimately prove that Griffin and Con Edison were joint employers, but held that those questions should not be resolved during the first certification stage.
The court therefore certified a collective consisting of Griffin flaggers who worked at Con Edison worksites, for the plaintiffs’ FLSA claims seeking unpaid overtime and unpaid minimum wages. The ruling was preliminary and could later be changed or reversed after fuller discovery and review of the evidence.
Notice and Limitations Rulings
The court directed the parties to meet and confer about the proposed notice. The notice had to include defense counsel’s contact information and tell potential opt-in plaintiffs that they could retain their own lawyers. Plaintiffs were ordered to file a revised notice by October 14, 2020. If defendants continued to object, they could file objections and an alternative redlined notice by October 21, 2020.
The court set a three-year notice period rather than the six years requested by plaintiffs. It set a 60-day opt-in period rather than the requested 90 days.
The court denied equitable tolling based on defendants’ alleged failure to provide required notices because plaintiffs had not offered specific supporting evidence. It made an exception for the period from March 18, 2020, through May 29, 2020, which defendants had agreed to toll. The court also rejected tolling for all potential opt-in plaintiffs because those individuals were not yet parties before the court and plaintiffs had not shown a basis for collective tolling. The court left open the possibility of considering tolling arguments for individuals who later opted into the case.
Distribution of Notice and Disposition
The court allowed the notice and consent forms to be sent by mail, email, text message, and social media. It denied the request to post the materials on a website because plaintiffs had not provided details about the proposed website. It also denied the request for a reminder notice because the court had not been given the reminder’s contents or a sufficient justification for approving it.
Judge Ona T. Wang granted the motion for conditional collective certification to the extent it covered Griffin flaggers who worked at Con Edison worksites. The court imposed the three-year notice period, denied equitable tolling except for March 18 through May 29, 2020, authorized the specified distribution methods, required the parties to meet and confer about the notice, and directed the Clerk of Court to close the motion.
Read the full 14-page opinion on CourtListener, the free public archive maintained by the Free Law Project.