The opinion of the court was delivered by: Gold, S., United States Magistrate Judge:
Plaintiffs, on behalf of themselves and other employees of defendant, bring this action seeking to recover unpaid prevailing wages for their work on various public works projects. The parties have filed cross-motions for summary judgment. Plaintiffs have also moved for class certification pursuant to Federal Rule of Civil Procedure 23(b)(3). Finally, defendant has filed a Daubert motion seeking to exclude the testimony of plaintiffs' expert.
Defendant SimplexGrinnell, formed in 2001, is a "leader in fire and life-safety systems" with offices throughout the United States, including New York. Zammitti Aff. ¶ 2, Docket Entry 111-4. More specifically, defendant manufactures, installs and services fire alarm and sprinkler systems and equipment. Zammitti Certification ¶ 2, Docket Entry 109-26; see also Hext 3/25/10 Aff. ¶ 2, Docket Entry 111-15 at 19-24. Over the years, defendant has entered into thousands of contracts with New York State and City agencies for installation, maintenance, repair and inspection of their safety systems. Zammitti Aff. ¶ 5.
Pursuant to New York law, public works contracts -- i.e., contracts with state or local governmental agencies to perform construction, maintenance and repair of public buildings -- must provide that all laborers will be paid prevailing wages. N.Y. LABOR LAW § 220(3). Plaintiffs are fifteen current and former employees of defendant who performed electrical and sprinkler work, including installation, maintenance, inspection, testing, repairs, and replacement of fire alarms and security systems, on various public works projects throughout the state. Am. Compl. ¶ 18, Docket Entry 56. Plaintiffs contend that defendant failed to pay the named plaintiffs and the members of the putative class all the prevailing wages due to them for their work on public works projects.
STATUTORY BACKGROUND -- NEW YORK LABOR LAW § 220
New York has a strong public policy of protecting its workers, rooted in a 1905 amendment to the state's Constitution.
Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed. No laborer, worker or mechanic . . . engaged in the performance of any public work shall be . . . paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used.
N.Y. CONST. art. I, § 17. Labor Law § 220, a codification of the Constitutional amendment, was enacted "to ensure that employees on public works projects are paid wages equivalent to the prevailing rate of similarly employed workers in the locality where the contract is to be performed." Beltrone Constr. Co. Inc. v. McGowan, 260 A.D.2d 870, 871-72 (3d Dep't 1999); see also Cayuga-Onondaga Counties Bd. of Co-op. Educ. Servs. v. Sweeney,89 N.Y.2d 395, 401 (1996) (discussing briefly the legislative history of § 220 and the prevailing wage constitutional amendment). Today, "[i]t is well-settled that the primary purpose and intent of the prevailing wage law (Labor Law § 220) is to protect workers by ensuring that they have an effective remedy to secure the prevailing wage and supplements." E. Williamson Roofing & Sheet Metal Co. v. Town of Parish, 139 A.D.2d 97, 103 (4th Dep't 1988).
As noted above, under New York law, every public works contract must provide that all laborers employed on the public works project will be paid prevailing wages. N.Y. LABOR LAW § 220(3)(a). The Labor Law provides for administrative enforcement of its wage provisions. Id. § 220(7)-(9). See also Brown v. Tomcat Elec. Sec. Inc., 2007 WL 2461823, at *3 (E.D.N.Y. Aug. 27, 2007) (describing the administrative scheme that an aggrieved employee may follow to pursue payment of alleged unpaid prevailing wages). There is no private right of action directly under the Labor Law "until an administrative determination in the employee's favor has been made and has gone unreviewed or has been affirmed." Marren v. Ludlam, 14 A.D.3d 667, 669 (2d Dep't 2005). The New York Court of Appeals, however, has held that an administrative claim is not the exclusive avenue for relief available to an employee denied prevailing wages, who may bring a common law breach of contract claim as the intended third-party beneficiary of a public works contract. Fata v. S.A. Healy Co., 289 N.Y. 401, 404-07 (1943). See also Quintanilla v. Suffolk Paving Corp., 2011 WL 1323033, at *7 (E.D.N.Y. Feb. 10, 2011).
The various pending motions were, for all practical purposes, brought simultaneously. Because a ruling on any of the pending motions would affect issues raised by the others, the first question that arises is the order in which the motions should be addressed. I begin by ruling on the class certification motion. I next consider defendant's motion for summary judgment. I then turn to defendant's Daubert motion and finally address plaintiffs' motion for summary judgment.
Plaintiffs move for class certification of their prevailing wage claims pursuant to Rule 23(b)(3). Plaintiffs propose to certify a class defined as follows:
[A]ll laborers, workmen and mechanics who furnished labor to SimplexGrinnell on non-federal public works projects in the State of New York at any time from February 6, 2001[, or from July 14, 2001 for sprinkler work] until the final judgment in this matter, and who . . . have not been paid prevailing wages and benefits as required by law.*fn1
Pl. Mem. 18;*fn2 see also Am. Compl. ¶ 7.
Plaintiffs bear the burden of establishing, by a preponderance of the evidence, the four prerequisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) fairness and adequacy of representation. A plaintiff must also qualify under one of the subdivisions of Rule 23(b). See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc.,546 F.3d 196, 202 (2d Cir. 2008); Marisol A. v. Giuliani, 126 F.3d 372, 375-76 (2d Cir. 1997). A district court undertakes a "rigorous analysis" and "assess[es] all of the relevant evidence admitted at the class certification stage [to] determine whether each Rule 23 requirement has been met." In re Initial Pub. Offering Secs. Litig., 471 F.3d 24, 33, 42 (2d Cir. 2006). Although a court deciding a certification motion should not evaluate aspects of the merits unrelated to the requirements of Rule 23, it must determine whether each of the rule's requirements has been satisfied, even when doing so involves resolving a question that also bears on the merits. Id. at 41. "The Second Circuit has emphasized that Rule 23 should be 'given liberal rather than restrictive construction,' . . . and 'it seems beyond peradventure that the Second Circuit's general preference is for granting rather than denying class certification.'" Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 361-62 (E.D.N.Y. 2009) (internal citations omitted).
Plaintiffs must show that "the class is so numerous that joinder of all members is impracticable." FED. R. CIV. P. 23(a)(1). Courts in the Second Circuit presume numerosity when the putative class has at least forty members. Gortat, 257 F.R.D. at 362 (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995)). Plaintiffs estimate that the class would be comprised of at least 400 and possibly more than 600 members based on an employee list produced by defendant. Pl. Mem. 21; Pl. R.56.1 ¶ 11; Pl. Ex. 1, Docket Entry 109-3 at 34-49 (identifying hundreds of employees with damages); Tr. 5-6 (noting that over 700 SimplexGrinnell employees worked on public sites).*fn3 Even defendant appears to concede that numerosity is met. Love 3/7/07 Decl. ¶ 5, Pl. Ex. 16 (declaring that defendant has employed more than 400 individuals to perform electrical work in New York during the relevant time period). Clearly, numerosity is satisfied.
Rule 23(a)(2) requires a showing that "there are questions of law or fact common to the class." FED. R. CIV. P. 23(a)(2). Commonality may be met even though individual circumstances differ, so long as class members' "'injuries derive from a unitary course of conduct.'" Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 338 (S.D.N.Y. 2004) (quoting Marisol, 126 F.3d at 377).
Here, the requirement of commonality is satisfied. Plaintiffs' claim -- that they and the proposed class members were denied prevailing wages by defendant -- raises common questions of law and fact. Employees from defendant's various offices throughout New York have stated that, at least prior to 2007, they and their fellow SimplexGrinnell employees were paid the same wages for their work on public and private projects and did not receive prevailing wages for their work on public job sites. Ford Decl. ¶¶ 13-14, Pl. Ex. 13; Hobbs Decl. ¶ 5, Pl. Ex. 14; Kuhlman Decl. ¶ 8, Pl. Ex. 15; Mitchell Decl. ¶¶ 11-12, Pl. Ex. 17; Stickney Decl. ¶¶ 10-12, Pl. Ex. 18; Ward Decl. ¶¶ 10-11, Pl. Ex. 19; Ziolkowski Decl. ¶¶ 9, 10, 12, Pl. Ex. 21. Plaintiffs have also submitted evidence indicating that defendant's payroll procedures were centralized. Bourgoin Dep. 59-61, Pl Ex. 56; Love Dep. 105-09, Pl. Ex. 64.
Other evidence further demonstrates defendant's practice, at least in some circumstances, of failing to pay prevailing wages. See, e.g., id. at 75-76 (noting that the Newburgh office failed to pay prevailing wages for certain work performed in Westchester County and that defendant then made back payments to its employees); id. at 221-27 (reviewing extracts from defendant's computer records that indicate that various public projects were not "flagged" properly to ensure that employees were paid prevailing wages); Pl. Ex. 36 (reflecting a finding by the New York State Department of Labor that defendant "failed to notify workers of prevailing rates and [prevailing wage] projects"); Pl. Ex. 47 (indicating that defendant failed to pay prevailing wages for labor performed in connection with certain public works projects in Suffolk County from 2003 through 2005); Hext Dep. 72 (testifying that defendant conducted a second audit and made additional back payments for Suffolk County work performed after 2005); Pl. Ex. 49 (2007 letter from defendant conceding that it failed to submit certified payroll records for its work on a particular public works project); Hext Dep. 20 (noting that defendant also had a prevailing wage suit pending against it in California); id. at 109 (testifying that defendant began testing a prevailing wage compliance program only in November, 2006).
Although not proffered by plaintiffs for this proposition, the evidence before the Court also includes a concession by defendant that, from 2004 to 2008, payments of prevailing wages to its New York City employees could be made only by manually overriding defendant's general payroll system. Hext 3/24/10 Aff. ¶ 11 (filed under seal as Docket Entry 110-4) (stating that "[e]xcept in rare circumstances, SimplexGrinnell's New York City office used the manual override process as its exclusive means of paying prevailing wages during the period from at least April, 2004 through late-2008"); see also Pl. R.56.1 ¶ 25 (stating that defendant's payroll process was uniform throughout New York); Def. Response ¶ 25, Docket Entry 115-2 (plaintiffs'
R.56.1 ¶ 25 is undisputed). A system of manual overrides is inherently likely to fail to pay all prevailing wages due because it depends upon the employees' knowledge of their right to seek the wage differential, the submission by employees of additional paperwork seeking prevailing wages, and accurate processing of employee requests by the defendant. There is also a dispute between the parties as to whether defendant's employee time sheets, particularly prior to 2006, even provided a space for an employee to indicate an entitlement to prevailing wages.*fn4 See, e.g., Zammitti Dep. 110-15, Pl. Ex. 72 (discussing a sample 2004 time sheet that failed to include such a space); Pl. R.561. ¶ 26; Def. Response ¶ 26 (citing a 2005 timesheet that permitted an employee to indicate he should be paid prevailing wages).
According to defendant, its various offices used different procedures for paying prevailing wages. Defendant's prevailing wage manager, hired in 2005, testified at her deposition that "some offices did and some offices did not" pay prevailing wages for service and maintenance work performed on public projects. Hext Dep. 47, Pl. Ex. 61. Defendant argues that its lack of uniform procedures defeats plaintiffs' showing with respect to commonality. However, defendant's various New York regional offices apparently did have one policy in common, at least according to plaintiffs' allegations: a failure to adopt a regularly employed and reliable method of distinguishing covered work and ensuring that prevailing wages were paid to employees for covered work they performed. To the contrary, according to plaintiffs' allegations, SimplexGrinnell's various offices paid little or no heed to defendant's obligation to pay prevailing wages for covered work. I therefore conclude that, while plaintiffs' claims may raise individualized questions regarding the number of covered hours that a specific employee worked and the prevailing wage the employee was entitled to be paid, these questions "will not predominate over the questions of law and fact that are relevant to all members of the purported class." Gortat, 257 F.R.D. at 362. See also Marisol, 126 F.3d at 376; Becher v. Long Island Lighting Co., 164 F.R.D. 144, 150 (E.D.N.Y. 1996) ("Rule 23(a)(2) requires only that questions of law or fact be shared by the prospective class. It does not require that all questions of law or fact raised be common.") (internal quotation marks omitted). Rather, these individual questions "relate primarily to the level of damages, if any, owing to each individual," and not to the question of liability. Noble, 224 F.R.D. at 343 (citing Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81, 86 (S.D.N.Y. 2001)).
Indeed, and of significance with respect to commonality as well as each of the other Rule 23 requirements discussed below, claims by workers that their employers have unlawfully denied them wages to which they were legally entitled have repeatedly been held to meet the prerequisites for class certification. See, e.g., Jankowski v. Castaldi, 2006 WL 118973, at *2-3 (E.D.N.Y. Jan. 13, 2006) (finding commonality among the plaintiffs who alleged that they had been denied overtime wages pursuant to defendants' policy); Noble, 224 F.R.D. at 343 (finding the commonality requirement met where "each potential class member was employed by [defendant] . . ., was required to work in excess of forty hours each week, and was not properly compensated for this additional labor"). In this case, as in Eldred v. Comforce Corp., 2010 WL 812698, at *19 (N.D.N.Y. Mar. 2, 2010),
[t]he class definitions at issue . . . include all . . . employees who allegedly . . . were not paid prevailing wage[s] on state-funded contracts, . . . which resulted from the implementation of allegedly unlawful policies by their common employer. The predominant question raised is whether such a policy existed, and not whether any individual suffered its consequences on a particular job.
See also Cuzco v. Orion Builders, 262 F.R.D. 325, 334 n.20 (S.D.N.Y. 2009) (finding that defendant's pay practices were common to the class and thus met the commonality requirement).
The Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. _, 2011 WL 2437013 (2011), issued earlier this week, does not command a different result. In Wal-Mart, the Court considered whether plaintiffs had bridged the "conceptual gap" between an individual's claim of injury and the existence of a class of persons who have suffered the same injury. 2011 WL 2437013, at *8. The Court held that the gap could be bridged with "significant proof that [defendant] operated under a general policy of discrimination." Id. (internal quotation marks omitted). The Court found that such proof was "entirely absent" and emphasized that plaintiffs did not allege "any express corporate policy" of discrimination, id. at *4, and that the challenged pay and promotion decisions were "generally committed to local managers' broad discretion, which [was] exercised in a largely subjective manner." Id. at*3. The relevant facts and circumstances in Wal-Mart have little bearing here. As indicated above, plaintiffs have come forward with significant proof that defendant routinely failed to account for labor performed on public works projects and pay prevailing wages for covered work. Moreover, there is little discretion or subjective judgment in determining an employee's right to be paid prevailing wages; the right arises automatically, by operation of law, provided the nature of the construction project and the type of labor performed fall within the scope of New York Labor Law § 220. In addition, whereas in Wal-Mart defendant had an "announced policy" prohibiting discrimination, id. at *8, defendant here has not come forward with evidence of an expressed uniform policy that ensured the payment of prevailing wages to its employees when due. Finally, although the efforts of the Wal-Mart plaintiffs to prove their case with statistical evidence failed, plaintiffs here have come forward with class-wide proof culled from defendant's electronic data that, as discussed in greater detail below, is sufficiently reliable to be presented at trial.
Similarly, the cases cited by defendant holding that the commonality requirement was not met are distinguishable because in those cases liability was not susceptible to class-wide proof. Def. Opp. 20.*fn5 For example, in Dobson v. Hartford Financial Services Group, Inc., 342 Fed. Appx. 706, 709 (2d Cir. 2009), the defendant insurer's liability hinged on whether its delay in providing disability benefits was "unreasonable." The Court held that this question could not be resolved with class-wide proof because "[t]he duration of a 'reasonable time' to review a claim might vary with such factors as the complexity of the facts, the need for follow-up to verify the proofs, and the difficulty of the determination." Id. at 709. Defendant's reliance on Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002), is similarly misplaced. In Moore, plaintiffs' class claims were based on oral misrepresentations that undoubtedly varied among members of the putative class. The Court specifically held that, while fraud claims based on individualized representations are not properly certified for class treatment, fraud claims that rest on uniform representations are. Here, as discussed above, plaintiffs have put forth evidence of defendant's general payroll practices as part of their proof that they were denied prevailing wages. For all these reasons, I find that plaintiffs meet the commonality requirement of Rule 23.
c.Typicality "Typicality . . . requires that the claims of the class representatives be typical of those of the class, and 'is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.'" Marisol, 126 F.3d at 376 (internal citations omitted). "The commonality and typicality requirements tend to merge into one another, so that similar considerations animate" the analysis of each. Id.
Named plaintiffs allege that they each performed similar work for defendant, were subject to the same payroll procedures of defendant, and, like other members of the class, were not paid prevailing wages to which they were entitled. Pl. R. 56.1 ¶¶ 12, 13, 16-28; Pl. Mem. 22-23. Employees from defendant's offices throughout the state make allegations similar to those of the named plaintiffs. See Ford Decl. ¶¶ 13-14, Pl. Ex. 13; Hobbs Decl. ¶ 5, Pl. Ex. 14; Kuhlman Decl. ¶ 8, Pl. Ex. 15; Mitchell Decl. ¶¶ 11-12, Pl. Ex. 17; Stickney Decl. ¶¶ 10-12, Pl. Ex. 18; Ward Decl. ¶¶ 10-11, Pl. Ex. 19; Ziolkowski Decl. ¶¶ 9, 10, 12, Pl. Ex. 21. Defendant does not assert that any of the named plaintiffs are subject to unique defenses that would destroy typicality. Def. Opp. 16-37; cf. Noble, 224 F.R.D. at 343 (noting that one of the named plaintiffs may be exempt from the overtime wage laws and concluding that his claims are not typical of the class).
Although named plaintiffs and putative class members may differ with respect to job classification, office location, and the amount of testing and inspection work each performed, these differences do not destroy typicality. Defendant notes that all of the named plaintiffs work out of its New York City office, and that as a result there are no representatives from upstate New York or Long Island. Def. R.56.1 ¶ 4, Docket Entry 111-5. These differences -- job classification and locality -- are not sufficiently significant to plaintiffs' claims to undermine typicality, particularly because plaintiffs challenge payroll practices defendant employed throughout the state. Indeed, as will be discussed below in connection with defendant's Daubert motion, defendant's alleged liability to the members of the class may be determined by examining the same electronic databases. I therefore find that the named plaintiffs' claims are sufficiently typical of those of putative class members to satisfy Rule 23(a)(3), with the exception discussed below of any named plaintiff who is not owed any prevailing wages.
Rule 23(a)(4) requires named plaintiffs to demonstrate that they will fairly and adequately protect the interests of the class. Here, with the exception noted below, the interests of the named plaintiffs are aligned with those of the proposed class members, and there is no reason they could not serve as adequate class representatives. See Gortat, 257 F.R.D. at 365. Defendant's argument that each of the named plaintiffs has no personal stake in the claims for monetary damages of putative class members, Def. Opp. 36, would apply in virtually any class action. Defendant has not suggested that the claims of the named plaintiffs are in any way antagonistic to those of the putative class members, or that the representatives lack sufficient moral character. See Noble, 224 F.R.D. at 344. Moreover, according to plaintiffs' expert's analysis, the claims of the named plaintiffs cover a range of potential damage awards.*fn6 It appears, however, that at least one of the named plaintiffs is not owed any prevailing wages. See Docket Entry 149-2 (calculating zero damages for named plaintiff Agban). I conclude that any named plaintiff who was paid all wages he earned does not have a claim typical of those of the absent class members and may not serve as a class representative.*fn7
I now turn to the adequacy of class counsel. At the time that plaintiffs filed their motion, they were represented by law firms Constantine Cannon and Berenbaum Menken. In October, 2010, I granted Constantine Cannon's motion to be relieved. Plaintiffs continue to be represented by Raymond Fay, formerly of Constantine Cannon and now of Mehri & Skalet. Accordingly, plaintiffs seek to have Berenbaum Menken and Mehri & Skalet appointed as co-lead class counsel pursuant to Rule 23(g). Pl. Mem. 27 n.22. It appears that defendant does not challenge the appointment of Berenbaum Menken and Raymond Fay as counsel for the class. Def. Opp. 36-37. Plaintiffs, however, have not presented any information about ...