Richards v. Empire Scaffolding Systems, Inc.

Background

Wayne Richards sued Empire Scaffolding Systems, Inc., Demari Installations Corp., Demari Services, Inc., and Antonios Mamounas, individually, alleging violations of the Fair Labor Standards Act (FLSA) and the New York Labor Law. Richards alleged that he and other non-managerial laborers, mechanics, and workers in similar positions routinely worked more than 40 hours per week but were paid only their regular hourly rates, without overtime premiums. Carlos Dominguez later consented to join the action as an opt-in plaintiff.

Richards moved for conditional certification of an FLSA collective action, expedited production of potential members’ contact information, and permission to send notices and reminder notices inviting eligible workers to join the case.

Conditional Certification

At the notice stage, an FLSA plaintiff must make a modest factual showing that the plaintiff and potential opt-in plaintiffs may be similarly situated and were affected by a common policy or plan that violated the law. The court does not decide at this stage whether an actual legal violation occurred.

The court found that Richards and Dominguez satisfied this standard. They described observing other workers performing similar duties, working in crews, discussing their pay and lack of overtime compensation, and complaining about working more than 40 hours without receiving overtime pay. The court concluded that these facts supported an inference of a common overtime policy.

The court therefore granted conditional certification. It limited the proposed group to non-managerial laborers and mechanics because the plaintiffs had not provided information showing that workers in other positions were similarly situated.

Notice and Contact Information

The court found that notice by mail, email, and text message was appropriate and granted the request for a 30-day reminder notice by email and text message. The notice period covered workers employed by any defendant at any point on or after August 5, 2018. The court declined to decide at that time whether any time should be added to the limitations period on an individualized basis.

The court required the plaintiffs to revise the proposed notice to remove the phrase “others similarly situated” and to add Demari Services, Inc. as a defendant. It rejected the defendants’ request to include defense counsel’s contact information in the notice and otherwise rejected their objections to the proposed notice.

The court also granted the request for prompt disclosure of potential collective members’ information. By July 14, 2022, the defendants were required to disclose the names, mailing addresses, email addresses, and phone numbers of all non-managerial laborers and mechanics employed by any defendant on or after August 5, 2018.

Disposition

The court concluded that the plaintiffs’ motion for conditional class certification was GRANTED in part and DENIED in part. The Clerk of Court was directed to close the motion at docket entry 18. The order addressed only conditional certification and related notice procedures, not the ultimate merits of the overtime claims.