Ballast v. Workforce7 Inc.

Background

Victor Ballast, Luis Simone, and Marquis Richardson brought a proposed collective and class action under the Fair Labor Standards Act and New York Labor Law. They alleged that Workforce7 Inc., Consolidated Edison Company of New York, Inc., Vali Industries, Inc., and Ronald Hilton failed to pay construction-site flaggers minimum wages and overtime. The plaintiffs alleged that flaggers were not paid for time spent waiting at the Workforce7 office for assignments, traveling to or between work sites, picking up or returning timesheets and equipment, or working through meal breaks for which deductions were made.

The plaintiffs claimed that Workforce7, Con Ed, and Vali were joint employers and that Hilton, Workforce7’s chief executive officer, controlled relevant payroll and business policies. They sought conditional certification of a Fair Labor Standards Act collective consisting of non-union Workforce7 flaggers who worked between May 15, 2017, and the present. They also requested approval of proposed notice and consent forms, permission to distribute reminder notices, and production of contact information for potential participants.

Conditional certification

At the first stage of Fair Labor Standards Act collective-action review, a court decides whether potential participants may be similarly situated and should receive notice. The required showing is modest, and the court does not resolve factual disputes, decide the ultimate wage claims, or determine credibility. A later review, after additional discovery, may result in removal of the conditional certification if the participating workers are not actually similarly situated.

Workforce7, Con Ed, and Vali opposed certification. They argued that they did not share responsibility for the employment policies, that the plaintiffs’ testimony differed in important respects, that the plaintiffs had not shown a common policy affecting other workers, and that the proposed group was too broad in time and scope.

The court found that the plaintiffs’ declarations and deposition testimony provided enough evidence at this early stage. The plaintiffs described other flaggers, conversations about unpaid meal and waiting time, and common practices involving assignments, timekeeping, travel, and compensation. Differences in how individual workers experienced or responded to those practices did not defeat certification at this stage. The court also concluded that the plaintiffs had sufficiently alleged a common policy involving Workforce7 flaggers assigned to Con Ed and Vali sites. Whether the defendants were actually joint employers remained a fact-specific issue for a later stage.

The court did, however, narrow the proposed collective. It conditionally certified a group of Workforce7 employees who worked as non-union flaggers on Con Ed and/or Vali work sites from May 15, 2017, through the date of the order. The group did not include all Workforce7 flaggers regardless of where they worked.

Notice, contact information, and scheduling

The court found the proposed notice and consent forms generally fair and accurate. It permitted notice by first-class mail and email, posting at the Workforce7 office, and deadline reminder notices. Potential participants could send consent forms to the plaintiffs’ counsel if they wanted that firm to represent them, or to the Clerk of Court if they wanted their own counsel or wanted to proceed without a lawyer. The court directed counsel to remove the Questions footer from the notice form.

The court approved a sixty-day opt-in period as reasonable but directed the parties to meet and confer about the schedule for distributing notice and filing consent forms. It also directed the defendants to provide relevant contact information in their possession and ordered the parties to meet and confer about the production schedule.

Richardson’s dismissal request

Con Ed asked the court to dismiss Richardson from the case because he had not responded to written discovery requests. In the alternative, Con Ed asked for an expedited order requiring him to respond. The plaintiffs argued that dismissal was premature, that Richardson had appeared for a deposition, that Con Ed had not shown prejudice, and that Richardson had become ill before he stopped communicating with counsel.

The court denied Con Ed’s motion to dismiss Richardson’s claims without prejudice. It found no indication of willfulness or bad faith, no showing that Richardson had been warned that noncompliance could result in dismissal, and no showing of prejudice sufficient to justify dismissal at that point. The court warned Richardson that failing to answer discovery or follow court orders could later result in dismissal under Rules 37(b) or 41(b) of the Federal Rules of Civil Procedure.

Disposition

In Ballast v. Workforce7 Inc., Judge Edgardo Ramos granted the plaintiffs’ motion for conditional certification for the limited group described above, authorized notice subject to the stated change, directed production of contact information, and denied Con Ed’s motion to dismiss Richardson’s claims without prejudice. The Clerk of Court was directed to terminate the conditional-certification motion.