Alvarez Chicas v. Kelco Construction, Inc.

Background

Following the Court’s February 19, 2023 Opinion and Order, the parties submitted a joint letter concerning the specific jobsite locations where required notices in the collective action should be posted.

The plaintiffs asked the Court to order the defendants to provide a list of all worksites where class members were presently working, identify whether notices were posted under specified provisions of the New York Labor Law, post notices at locations where notices had already been posted under those provisions, record locations where class members performed work during the opt-in period and whether notices were posted there, and provide an affidavit confirming compliance.

The defendants argued that their construction and landscaping business was conducted outdoors, so notices could not be posted at every worksite because many sites had no walls. They offered to post notices at the central depot at 25 Newton Place, Hauppauge, New York, and at approximately five worksites with trailers or other common areas suitable for posting. The defendants did not identify the precise number or locations of those worksites.

Court’s Analysis

The Court explained that the Fair Labor Standards Act does not require courts to facilitate notice, but district courts have discretion in appropriate cases to facilitate notice to potential plaintiffs about the case and their opportunity to join as plaintiffs. The Court also noted that courts routinely approve posting notice on employee bulletin boards and in other common areas, including when potential members will also receive notice by mail.

After reviewing the parties’ joint letter, the Court exercised its discretion to require posting at the central depot and at all Kelco Construction worksites with trailers or other common areas that would permit posting.

Order

The Court ordered defendants’ counsel, no later than March 20, 2023, to identify in a letter to plaintiffs’ counsel each Kelco Construction worksite with a trailer or other common area suitable for posting and to provide the corresponding addresses.

The Court further ordered the defendants, no later than March 24, 2023, to post the required notices at the central depot at 25 Newton Place, Hauppauge, New York, and at each worksite identified under the first paragraph of the order.

Disposition

The order resolved the parties’ dispute about notice-posting locations. It did not decide the underlying claims or state whether any party would ultimately prevail.