Infantino v. Sealand Contractors, Corp.

DECISION & ORDER AND REPORT & RECOMMENDATION

MARIAN W. PAYSON, UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

Plaintiff Corey Infantino (“plaintiff” or “Infantino”) commenced this lawsuit on October 1, 2020 as a putative collective action pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), and as a putative class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. (Docket # 1). In his complaint, Infantino alleges that defendants Sealand Contractors Corp. (“Sealand”) and Sealand's president, Daniel Bree (“Bree”), improperly withheld overtime compensation in violation of the FLSA and the New York Labor Law (“NYLL”). Antonio Hepburn (“Hepburn”) filed a consent to become a party plaintiff on October 26, 2020. (See Docket # 4). Following two extensions of the applicable deadline, defendants answered the complaint on December 14, 2020. (Docket ## 7, 9, 11).

On December 22, 2020, defendants advised plaintiffs that they would stipulate to conditional certification of an FLSA collective action consisting of “non-managerial laborers who worked for [d]efendants and were members of the Rochester Laborers Union 435 from October 1, 2017 through October 1, 2020.” (Docket # 20-2 at ¶ 2 (Declaration of Justin R.

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Marino, Esq., counsel for plaintiffs)).^[1] The parties agreed on December 29, 2020 to refine the scope of the collective to “all non-managerial laborers” who worked in New York. (Docket # 20-2 at ¶ 3). Plaintiffs represent, and defendants do not dispute, that on January 29, 2021, defendants rescinded their agreement. (Id. at ¶ 5).

Less than a month later, on February 19, 2021, plaintiffs timely moved for conditional certification of this matter as an FLSA collective action pursuant to 29 U.S.C. § 216(b), for leave to distribute notice, and for equitable tolling of the statute of limitations based upon defendants' disavowal of their agreement as described in the preceding paragraph. (Docket ## 16, 20). Defendants have opposed plaintiffs' motion and have cross-moved to compel arbitration or, alternatively, to dismiss the complaint. (See Docket # 33). Plaintiffs have opposed defendants' cross-motion. (See Docket # 37).

THE COMPLAINT

Sealand, which is located in Rush, New York, is a highway and bridge contractor that performs demolition and construction work in New York, North Carolina, and Florida. (Docket ## 1 at ¶ 29; 11 at ¶ 29). Bree is the President of Sealand. (Docket # 33-2 at ¶ 1). Infantino allegedly worked as a “non-managerial laborer” for Sealand from July 2016 until September 8, 2019, during which time he performed construction and demolition tasks, such as guardrail removal and jackhammering, and earned $29.00 per hour, which equated to a statutory overtime rate of $43.50 for every hour worked over forty in a workweek. (Docket # 1 at ¶¶ 30,

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31, 33). Infantino asserts that he “routinely worked . . . between sixty and ninety-eight hours per workweek, ” and was never, or rarely, permitted “to take an uninterrupted meal break.” (Id. at ¶ 32).

The crux of Infantino's complaint is that defendants engaged in a “pervasive practice” of understating the hours that Infantino and similarly-situated non-managerial laborers worked and of failing to properly compensate him and the other laborers for overtime worked, in violation of federal and state law, as well as the terms and conditions of their employment, and “failed to provide [them] with a wage statement that accurately listed [their] actual hours worked” for a given week. (See Id. at ¶¶ 2-5, 15-17, 23, 33, 35, 36, 38).

DISCUSSION

I. Plaintiffs' Motion for Conditional Certification of an FLSA Collective Action and Leave to Distribute Notice

Plaintiffs seek conditional certification of an FLSA collective class consisting of “current and former non-managerial laborers employed by [Sealand and/or Bree], who performed work for [d]efendants in New York at any time between October 1, 2017 through the date the Court grants conditional certification and did not receive overtime compensation at a rate of time and one-half their regular rate of pay for all hours over forty that they worked in a workweek.” (Docket # 20-1 at 7; see also Id. at 31). Plaintiffs do not seek certification of this matter as a class action under Fed.R.Civ.P. 23 at this time.

A. Infantino's Declaration

Infantino affirms that he worked for defendants on projects in Monroe County, New York, from July 2016 through September 8, 2019, during “some or all” of which he was a

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member of a union. (Docket # 20-4 at ¶ 2).^[2] Defendants paid Infantino $29.00 per hour for his work with defendants, thus statutorily entitling him to $43.50 per hour for overtime, and Infantino states that he “routinely worked for [d]efendants between sixty and ninety-eight total hours per workweek.” (Docket # 20-4 at ¶¶ 5, 6). Infantino also states that defendants “did not maintain contemporaneous time records, such as a time clock or daily entry of [the laborers'] actual time.” (Id. at ¶ 7). Rather, according to Infantino, defendants “had a practice and policy of lumping the time worked by its non-managerial laborers, including [himself], in a generalized manner, ” which caused “the time worked for each employee [to be] understated, [and] which thereby resulted in [Infantino] and [his] coworkers failing to receive the full amount of overtime that was due to [them].” (Id.).

In his declaration, Infantino recounts instances during work on a project on Interstate 90 in which defendants “attempt[ed] to cover up their unlawful time-keeping and pay practices by having all non-managerial laborers sign [non-contemporaneous] time records.” (Id. at ¶ 8). Infantino asserts that during this project defendants:

often br[ought] a stack of time records purporting to represent the time worked for the [previous] several weeks (typically two to four weeks at a time), place[d] them on the hood of a truck, then ha[d] all the non-managerial laborers (including [Infantino]) line up, find [their] time sheets and instruct [them] to sign off on them

(Id.). According to Infantino, these records, which the laborers were not given sufficient time to verify, failed to accurately state their work hours and thus deprived them of “overtime pay for many hours worked over forty on a weekly basis.” (Id.).

Infantino also claims that he “worked with and observed as many as forty other non-managerial laborers working on the same projects that [he] was assigned to work and

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performing similar duties as [he] did” and that they were “subjected to the same unlawful time-keeping and pay practices/policies as [he] was subjected to.” (Id. at ¶ 9). Infantino explains that his knowledge is based upon his personal observations and conversations with six named non-managerial coworkers - Jafari Lamont, Nick Lanna, Tom Chicinno, Mark Williams, Tim Reddy, and Jason Hart - who each spoke with Infantino about being “short[ed] on hours and not being paid for all hours they worked.” (Id.).

In his declaration, Infantino states that he was “aware that [his] coworkers also worked well over forty hours per week because they either told [him] or [he] observed them working on the same job sites that [he] was working on.” (Id. at ¶ 10). According to Infantino, he recalls that Lamont spoke to him several times about being shorted hours and pay. (Id. at ¶ 9(a)). Specifically, he affirms that when they were working on the “Scottsville Road job, ” Lamont came to him and discussed being shorted on hours on a particular job which Infantino understood to be either the 104 Flyover East job or the Wegman's Road Bridge job. (Id.). Infantino also recalls having “several conversations with Lanna about [d]efendants' unlawful time-keeping and pay practices, ” and Lanna specifically complaining about being shorted on hours while working on the 104 Flyover job. (Id. at ¶ 9(b)). According to Infantino, he and Chicinno spoke while working on a project on I-90, and Chicinno “was aware that he was shorted on hours” but accepted the undercounting because defendants provided him with transportation to and from the jobsite and because he was worried about finding other employment. (Id. at ¶ 9(c)). Infantino also had “several conversations with Mr. Williams about his hours worked and compensation paid being understated, ” and Williams “mentioned that this was a constant problem at Sealand.” (Id. at ¶ 9(d)). Redding “advised [Infantino] that he would ‘eat' his hours and was constantly shorted on his pay, ” but did not want to lose his job because

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he needed work and had no driver's license to use to look for work. (Id. at ¶ 9(e)). Finally, Infantino recalls speaking twice to Hart when they worked together on a project on I-90, during which Hart “advised [Infantino] that he too was shorted on his hours and pay.” (Id. at ¶ 9(f)).

B. Hepburn Declaration

Opt-in plaintiff Antonio Hepburn, who was not a union member, worked for defendant as a “non-managerial laborer” for one week from July 28, 2019 through August 3, 2019 on a ramp project connecting Route 104 to the Bay Bridge at the 590 interchange; he earned the same rate as Infantino. (Docket # 20-5 at ¶¶ 2, 4, 7). Hepburn affirms that during his brief employment with defendants performing construction and demolition tasks, he worked “five days” for an accumulated total of “between fifty and fifty-five total hours” and defendants failed to properly compensate him for all the overtime he worked. (Id. at ¶¶ 3, 5-6, 7).^[3] Hepburn also claims that defendants “did not maintain contemporaneous time records” and that he never “sign[ed] off on any timesheets or was permitted to verify [his] hours...