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Dwayne Jason, Individually and On Behalf of All Other Persons Similarly Situated, et al. v. Falcon Data Com

July 18, 2011


The opinion of the court was delivered by: John Gleeson, United States District Judge:


Plaintiff Dwayne Jason ("plaintiff" or "Jason") has brought this putative class and collective action against defendants Falcon Data Com., Inc. ("Falcon") and CSC Holdings, LLC*fn1 ("Cablevision") (collectively "defendants"), alleging that they failed to pay overtime to him and similarly situated co-workers in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207, and New York law. Jason has moved for an order granting conditional certification of an "opt-in" class under 29 U.S.C. § 216(b) consisting of "all persons who are or were formerly employed by Defendants as cable technicians in the United States at any time since September 17, 2006 to the entry of judgment in this case." For the reasons set forth below, the motion is granted.


Falcon performs installation services for Cablevision in Brooklyn and Nassau County. Dep. of Matthew Spiewak ("Spiewak Dep.") 33-34. Jason was employed by Falcon as a technician from 2005 until August 2009. Dep. of Dwayne Jason ("Jason Dep.") 18. Falcon's technicians perform installations and other tasks at customers' homes and at the premises of commercial customers. Dep. of Sam Magliaro ("Magliaro Dep.") 23. The technicians work out of two locations, one in Brooklyn and the other in Farmingdale in Nassau County. Spiewak Dep. 25.

Falcon presently employs about 100 technicians. Id. In 2008, Falcon had approximately 50 technicians. Id. The vast majority of Falcon's technicians do installation work at residential locations; less than five technicians perform work at commercial premises. Id. at 122-23.

A. Technicians' Duties and Daily Routine Falcon admits that the residential technicians all "do the same thing" and all have the same duties and responsibilities. Spiewak Dep. 32-33. Similarly, the commercial technicians all do the "same thing" as each other. Id. at 32-33.

Technicians were required to report to Falcon's warehouse at 7:30 every morning to pick up work orders and equipment (and possibly also a vehicle). Jason Dep. 94, 105; Spiewak Dep. 125. Jason would normally spend approximately five or ten minutes at Falcon in the morning, but sometimes he was there longer. Jason Dep. 101-02.

After leaving Falcon in the morning, technicians would drive from one appointment to another and would eventually return to Falcon at the end of the day. Id. at 95. There was no set time when Jason's workday would end. Id. at 105. The number of jobs would vary each day and the length of Jason's workday would also vary, with some days being much longer than others. Id. at 104. Sometimes Jason would work half a day; at other times he would work a 12-hour day. Id. at 104-05. All the technicians ended their day at different times, but Jason is not aware of the number of hours worked by the other technicians. Id. at 154-55, 222-23.

Technicians were required to return to Falcon at the end of the day to return their work orders, equipment and vehicles. Jason Dep. 95; Spiewak Dep. 143-44. The time Jason spent at Falcon at the end of the day varied daily. Jason Dep. 103. During this time, a Falcon manager would check Jason's work orders. Id. at 102. The amount of time Jason spent at Falcon at the end of the day would depend on whether other technicians were there, which would result in him having to wait. Id. at 103.

According to Falcon's counsel, Falcon did not use a time clock during at least some portion of the time period at issue.*fn2 Tr. of Mar. 11, 2011 Oral Argument ("Tr.") at 7. However, Falcon's counsel asserts that Falcon does have documentation indicating when employees picked up their equipment in the morning and when employees dropped off their equipment at the end of the day. Id.

During the day, technicians decide on the route to take when driving from job to job. Jason Dep. 105-06. Jobs would be different distances apart and it would take anywhere from five to twenty minutes to get to the next job. Id.

Technicians have two-hour or three-hour appointment windows with multiple jobs in each window. Spiewak Dep. 53; Jason Dep. 106; Magliaro Dep. 37. Technicians have discretion to determine the order in which to complete the jobs within each appointment window. Spiewak Dep. 53; Jason Dep. 106-07. After completing an appointment, a technician fills out a work order and writes down the time that he arrived at the appointment and the time he left. Jason Dep. 109, 210; Spiewak Dep. 66.

If a specific job ended early or was cancelled, Jason would call other customers and try to move their appointments up. Jason Dep. 196, 198. Also, when jobs were cancelled, Jason could call a dispatcher to get a new job. Id. at 182. At times, Falcon would call him with a new job. Id.

Jason would sometimes have up to an hour or two of downtime between jobs, but he was unable to identify how often this occurred. Id. at 114, 146-47, 180, 236. When it did occur, Jason could have done whatever he wanted, but he would "keep busy" by helping out other technicians with whom he was friendly. Id. at 114-15, 147, 180-182. Jason would not share in the compensation for his friends' jobs, but they would sometimes help him out in the same way. Id. at 114-15. Jason did not know if this was something that other technicians did. Id. at 115.

If Jason finished all of his appointments early, he would sometimes have the option to extend his workday by asking Falcon for additional work. Id. at 99. At other times, Falcon would simply ...

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