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Cuzco v. Orion Builders

September 30, 2009


The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.


Plaintiff Saul Marcelo Cuzco ("Plaintiff") brings this putative class action against Defendant Jan Kvas, individually and d/b/a Orion Carpentry, and Defendant Orion Builders, Inc. (collectively, "Defendants"), alleging violations of the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Laws (the "NYLL"), § 190 et seq.

Specifically, Plaintiff alleges that Defendants failed to pay him, and other workers similarly situated, (1) overtime wages; (2) a minimum wage for certain workweeks; and (3) wages in a timely fashion, in violation of the FLSA and NYLL. Plaintiff also alleges that Defendants failed to pay so-called "spread of hours" wages (an extra hour of pay for workdays exceeding ten hours) as required by NYLL.

Previously,*fn1 the Court granted Plaintiff's motion to pre-certify this action as a collective action under the FLSA, and for leave to amend the complaint to include, inter alia, class claims for the NYLL violations pursuant to Fed. R. Civ. P. 23(b)(3).*fn2 Two additional workers, Claudio Figueroa and Bolivar Guiracocha, consented to join the FLSA collective action ("Opt-in Plaintiffs"; collectively, "Plaintiffs"). Presently before the Court are Plaintiffs' and Defendants' cross-motions for summary judgment on Plaintiffs' FLSA and NYLL claims; and Plaintiffs' motion for certification of their NYLL class claims.*fn3

For the reasons stated below, as to Plaintiffs' FLSA claims, the Court GRANTS in part and DENIES in part Plaintiffs' motion for summary judgment, and DENIES Defendants' motion. The Court concludes that Plaintiffs are entitled to unpaid minimum and overtime wages under the FLSA, but that Plaintiffs have failed to demonstrate that they are entitled to compensation for any alleged late payment of wages.

As to Plaintiffs' NYLL claims, the Court GRANTS Plaintiffs' motion for class certification pursuant to Rule 23. Plaintiffs and Defendants again cross-move for summary judgment. As discussed below, the Court will consider the merits of Plaintiffs' NYLL class claims only after adequate notice has been sent to potential members of the NYLL class. The Court, therefore, DENIES without prejudice Plaintiffs' and Defendants' cross-motions for summary judgment on Plaintiffs' NYLL claims.


I. Facts

Unless otherwise noted, the following facts are undisputed, and are derived from the parties Local Rule 56.1 Statements, affidavits, and other submissions.

A. The Parties

Defendant Jan Kvas, d/b/a Orion Carpentry, operated a construction business in Dutchess County, New York. Kvas's business was incorporated as Orion Builders, Inc. in March 2004. (Pls. Rule 56.1 Stat. ¶¶ 1-2.)

Plaintiff Cuzco was employed by Defendants as a construction and carpentry laborer between December 30, 2002 and October 9, 2004, and between at least April 30, 2005 and June 30, 2005.*fn4 (Pls. Rule 56.1 Stat. ¶ 9.) Defendants employed between 66 and 79 other construction and carpentry workers from September 2002 through the end of 2005 ("the relevant period").

B. Payment of Wages

Defendants' workers were paid based on a single hourly rate, regardless of the number of hours they worked each week. For example, Plaintiff Cuzco was paid $8.50 per hour between December 30, 2002 and April 27, 2003, which was later increased to a high of $12.00 per hour. (Pls. Rule 56.1 Stat. ¶¶ 13-17.) While employed by Defendants, Cuzco alleges he worked a total of at least 366 overtime hours, and on at least 209 days his spread of hours exceeded 10 hours.

C. Tools of the Trade

Defendants' workers were required to obtain certain tools as a condition of employment, including a circular saw, a hammer, and a sawsill, at a cost of approximately $250. (Pls. Rule 56.1 Stat. ¶¶ 21-22.) Defendants' workers were not separately reimbursed by Defendants for the cost of these tools.

D. Timing of Payment

Generally, Plaintiffs were paid bi-monthly. (Pls. Rule 56.1 Stat. ¶ 27.) Plaintiffs allege, however, that Defendants structured the pay schedule so that Plaintiffs were not paid until they worked for Defendants at least 30 days.

E. Plaintiffs' Allegations

Plaintiffs allege that Defendants' pay practices violated federal and state labor laws. Specifically, Plaintiffs allege that Defendants:

(1) failed to pay overtime compensation (that is, wages equal to not less than one and a half times their regularly hourly rate) for hours worked in excess of 40 hours during the week;

(2) improperly accounted for the cost of tools they were required to purchase (causing their pay during their first workweek to drop below the federal and state minimum wage);*fn5

(3) failed to pay wages in timely fashion (i.e., within seven calendar days of the week they worked pursuant to NYLL); and

(4) failed to pay them spread of hours wages (an extra hour of pay at the state minimum wage for workdays exceeding 10 hours).*fn6

II. Procedural History

On April 7, 2006, Plaintiff Cuzco filed his initial complaint against Defendants alleging violations of the FLSA and NYLL. Cuzco brought his FLSA claims on behalf of himself and other similarly situated workers.

On July 25, 2006 Cuzco filed a Motion to Proceed as Representative Action under the FLSA, for Court-Authorized Notice, and for the Disclosure of the Names and Addresses of Potential Opt-in Plaintiffs ("representative action motion"). On November 20, 2006 Cuzco submitted a letter brief seeking leave to file an amended compliant that, among other things, added Rule 23 class claims for violations of NYLL. On March 8, 2007 the Court granted Cuzco's representative action motion and leave to amend. Thus, on March 16, 2007, Cuzco filed his First Amended Complaint ("Am. Compl."), which included Rule 23 class claims.

On October 25, 2007, Plaintiffs and Defendants filed cross-motions for summary judgment on Plaintiffs' FLSA and NYLL claims, and Plaintiffs filed a motion for class-certification pursuant to Rule 23.


I. Summary Judgment Standard

Summary judgment is appropriate only if the pleadings, affidavits, and disclosures that form the record establish that there is no "genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment should be denied "if the evidence is such that a reasonable jury could return a verdict" in favor of the non-moving party. NetJets Aviation, Inc. v. LHC Commc'ns, LLC, 537 F.3d 168, 178-79 (2d Cir. 2008). The Court must construe the evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the non-moving party's favor. In re "Agent Orange" Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008).

In deciding a motion for summary judgment, the role of the Court is not to ask whether "the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Because the Court's role is limited in this respect, the Court may not make factual findings, determine credibility of witnesses, or weigh evidence. See Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005); Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996). Evidence based ...

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