Moses v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.

Background

The plaintiffs are former employees of Griffin Industries and Griffin Security Services who worked as flaggers at worksites operated by Consolidated Edison Company of New York, Inc. (ConEd). Griffin supplied flaggers to ConEd. The proposed class included people employed by the defendants from February 9, 2012, through the present who worked as flaggers at any ConEd worksite in New York.

The plaintiffs sought to litigate New York Labor Law claims on a class-wide basis. They raised two principal issues: whether flaggers were entitled to pay for work performed before their official sign-in times, and whether ConEd could be liable for that unpaid work under a joint-employer theory. The alleged unpaid activities included reporting to Griffin’s office to receive assignments, traveling to worksites, waiting for ConEd teams, checking in with Griffin and ConEd personnel, and obtaining or attempting to obtain signatures on timesheets.

Class-certification standard

The court applied Federal Rule of Civil Procedure 23. That rule requires a proposed class to satisfy numerosity, commonality, typicality, and adequacy of representation. For a class seeking damages under Rule 23(b)(3), common questions must predominate over individualized questions, and a class action must be superior to other available methods of resolving the dispute. The court also considered whether the class was ascertainable, meaning sufficiently definite that the court could feasibly determine who belongs in it.

Court’s analysis

The court found numerosity because more than 100 people had opted into the case. It found commonality and typicality because the proposed class members’ claims involved the shared questions of whether their pre-sign-in activities were compensable and whether ConEd exercised enough control over their work to be considered a joint employer. The court relied on evidence that ConEd personnel directed conduct at the worksites, reprimanded flaggers, and were involved in reviewing or signing timesheets.

The court also found that the named plaintiffs and proposed class counsel adequately represented the class. The defendants did not challenge adequacy, and the court found that Plaintiff Diaz had been involved in the litigation from its beginning and that proposed class counsel appeared competent and experienced.

The court rejected the argument that determining entitlement to prevailing wages would require too many individualized inquiries. It explained that whether a worksite qualified as a public work could be examined through contracts or permits for the site. It further found that flaggers’ duties could generally be categorized into two types: directing traffic or safeguarding the public and work crew at the construction site. The court concluded that these liability questions were more substantial than individualized damages questions. It also found that a class action was superior because separate cases would create duplicative and overlapping discovery about common issues.

Finally, the court found the proposed class sufficiently definite and therefore ascertainable.

Disposition

The court GRANTED the plaintiffs’ motion for class certification. It ordered the parties to file a joint status report on or before April 18, 2023. The opinion and order was signed by Andrew L. Carter, Jr., United States District Judge.