Gil v. Pizzarotti, LLC
- Vyskocil
- 1:19-cv-03497
- U.S. District Court · Southern District of New York
- 17
In Gil v. Pizzarotti, LLC, Judge Vyskocil denied NYLL class certification but granted FLSA collective certification because the workers met different certification standards.
The ruling affects Gil, Hernandez, the approximately forty opt-in plaintiffs, and other workers asserting FLSA overtime claims against the defendants. It permits the FLSA claims to proceed as a collective action but denies class treatment for the NYLL claims.
What happened
Gil v. Pizzarotti, LLC involves former Atlantic employees who claimed that Atlantic and Pizzarotti-related defendants failed to pay required overtime and provide certain wage information. About forty additional workers joined the Fair Labor Standards Act claims.
The court found that individual differences—including workers’ hours, pay, supervision, and possible employer relationships—would overwhelm common issues in a New York Labor Law class action. The court also found the proposed notice plan inadequate because it relied largely on text messages and targeted Facebook advertisements.
Judge Mary Kay Vyskocil denied certification of the New York Labor Law claims as a Rule 23 class action but granted certification of the Fair Labor Standards Act claims as a collective action. The court also scheduled a pretrial conference.
The detailed version
- Gil v. Pizzarotti, LLC · No. 1:19-cv-03497
- Vyskocil
- Mar. 31, 2022
Background
Andy Gil and Rafael Hernandez, joined by about forty additional workers, brought claims for unpaid overtime under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). The plaintiffs were former employees of Atlantic Contracting of Yonkers, Inc., a subcontractor retained by Pizzarotti, LLC for construction work at the Jardim Project in Manhattan. The plaintiffs sued Atlantic, its co-owner Joel Acevedo, Pizzarotti, LLC, and other defendants.
The plaintiffs alleged that the defendants failed to pay overtime premiums, failed to pay for all hours worked, and failed to provide wage notices and wage statements required by the NYLL. They asked the court to certify their NYLL claims as a class action under Federal Rule of Civil Procedure 23 and their FLSA claims as a collective action under section 216(b) of the FLSA.
Rule 23 Class Certification
The court denied the motion to certify the NYLL claims as a class action. Under Rule 23(b)(3), common legal or factual issues must predominate over individual issues, and a class action must be superior to other ways of resolving the dispute.
The court concluded that individual questions about liability would overwhelm any common issues. The evidence showed differences among workers regarding whether they worked more than 40 hours, whether they were paid for those hours, how much supervision they received, and whether Pizzarotti-related defendants exercised control over their work. The court also found that determining whether those defendants were employers under the NYLL and FLSA would require fact-specific inquiries for each worker.
The court separately denied class certification because the proposed notice plan was inadequate. The plaintiffs proposed sending text messages to known workers and using targeted Facebook advertisements for others. The court found that the plaintiffs had not even compiled the phone-number list they said they could use and had not shown that the plan would provide the best practicable notice to identifiable class members.
FLSA Collective Certification
The court granted the motion to certify the FLSA claims as a collective action. An FLSA collective allows employees with similar claims to join a lawsuit by affirmatively consenting to participate. The court applied a lower standard than the Rule 23 class-certification standard: workers need to share a legal or factual issue material to their FLSA claims, even if they differ in other respects.
The court found that the named plaintiffs and opt-in plaintiffs satisfied that requirement. The workers performed construction work at the same Jardim Project site during approximately the same period, and many stated that they were not paid overtime for work exceeding 40 hours in a week. The record also included evidence that workers’ time was tracked in the same manner. The defendants did not contest this evidence in their opposition.
Disposition
The court granted the plaintiffs’ motion to certify an FLSA collective under section 216(b) and denied their motion to certify the NYLL claims as a Rule 23 class action. The court directed the parties to appear for a pretrial conference on May 17, 2022, and to file a proposed joint pretrial order by May 10, 2022.
Read the full 17-page opinion on CourtListener, the free public archive maintained by the Free Law Project.