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Colon v. Major Perry Street Corp.

United States District Court, Second Circuit

July 2, 2013

RUDY COLON, individually and on behalf of others similarly situated, Plaintiffs,
v.
MAJOR PERRY STREET CORP., et al., Defendants.

OPINION AND ORDER

J. PAUL OETKEN, District Judge.

Plaintiff Rudy Colon, individually and on behalf of all others similarly situated, alleges that Defendants Major Perry Street Corp., Major 10th Street Realty Corp., M&E E 42 Barrow LLC, M&E Christopher LLC, Croman Real Estate, Inc., and Croman Family Associates, LLC ("Corporate Defendants"), as well as Yesenia Camilo and Steven Croman, violated the Fair Labor Standards Act ("FLSA") and New York state law by failing to adequately compensate employees for hours worked in excess of forty hours per week. Plaintiff now moves for an order (1) approving the text of a proposed Notice of Pendency and Consent to Become a Party Plaintiff; (2) permitting Plaintiff to circulate the Notice and Consent; (3) requiring Defendants to provide Plaintiff with information about all superintendents, maintenance workers, and handymen from six years preceding the filing of the complaint until today; (4) permitting all similarly situated individuals 60 days to opt into this case; (5) tolling the statute of limitations for all similarly situated individuals from January 7, 2013 until today; and (6) granting any other just relief. For the reasons that follow, Plaintiff's motion is granted in part and denied in part.

I. Background[1]

Defendant Croman owns all of the Corporate Defendants, which in turn collectively own and manage approximately 100 residential buildings in New York State. Defendant Camilo is an employee of the Corporate Defendants and a former overseer of Plaintiff's work. The Court will refer to all of the defendants together as "Defendants."

Plaintiff Colon lives in the Bronx and has been employed by Defendants to work at various buildings in Manhattan's West Village over the past six years. Specifically, he worked at 110 Bedford Street, 120 Christopher Street, 118 Christopher Street, 273 W. 10th Street, 95 Perry Street, and 62 Barrow Street ("the Buildings"). From the summer of 2008 through October 2010, Colon worked for Defendants as a handyman, earning a flat rate of $600 per week. During this period, he worked an average of two to six overtime hours per week. Colon was "sometimes" paid for those overtime hours, but always at his regular rate of $15.00 per hour.

In October 2010, Colon was promoted to superintendent, a position he held until February 29, 2012, when he was summarily terminated. At the time Colon was named a superintendent, Defendants agreed to pay him $26, 000 per year - based on $500 per week - and to provide him with lodging at 110 Bedford Street. As a superintendent, Colon's duties included removing garbage and recycling, cleaning the common areas and exteriors of the Buildings, repairing fixtures in apartments and in the common areas, killing rats and mice, fumigating, fixing leaks in the roofs, gardening, and other tasks.

When Colon was hired as a superintendent, Camilo advised him that the weekly schedule would be Monday through Friday, 9:00 am through 5:00 pm. Colon, however, often "worked significantly more than [40] hours a week." He states that he actually worked between 78.5 and 93 hours per week: Monday from 7:00 am through between 12:00 am and 1:00 am; Tuesday from 7:00 am through between 8:00 pm and 10:00 pm; Wednesday from 7:00 am through between 7:00 pm and 11:00 pm; Thursday from 7:00 am through between 5:00pm and 7:00 pm; Friday from 7:00 am through between 8:00 pm and 10:00 pm; Saturday from 9:00 am through between 6:00pm and 7:00 pm; Sunday from 9:00 am through between 3:30 pm and 4:00 pm; and additional hours due to the fact that Camilo required Colon to work during "off-hours." When Colon told Camilo that "[his] workload was overbearing and required [him] to work all hours of the day and night... [Camilo] retorted that it was [his] work and that [he] had to get it done." Colon adds that he "regularly complained to Defendant Camilo that I was not paid weekly and that I was not paid for all the hours I worked, " but Camilo responded that he "could look for work elsewhere if [he] was not satisfied with [his] pay." Colon was unable to take any vacations, or any days off, during his tenure as a superintendent. Nor did he receive any additional pay for overtime hours. To the contrary, Colon states that he was paid only $2, 000 per month, instead of $500 per week, and therefore received $2, 000 less than the total amount of $26, 000 per year he had been promised by Defendants.

To support his request for certification of this action as a collective action, Colon states in the Complaint that "there are over 100 current and former superintendents, maintenance workers, and workers performing similar tasks and duties that are similarly situated to the Named Plaintiff and who have been denied minimum wage and overtime compensation while working for defendants."[2] The Complaint adds that Colon is representative of this group and that Defendants' common practices consist of "willfully failing and refusing to pay them the statutorily required minimum wage for all hours worked... [and] for hours worked in excess of forty (40) per workweek... [and] willfully failing to keep records required by the FLSA."

Colon's motion is also supported by declarations from two other individuals: Gabriel Ortiz and Alen Balic. They echo Colon's allegation that most of Defendants' handymen and superintendents are immigrants with limited English-language skills.

Ortiz states that he began working for Defendants as a superintendent of six buildings in Manhattan in 2004, each of which possessed between 10 to 16 apartments. His duties included replacing light bulbs, preventing and dealing with rat and mouse infestations, painting hallways, maintaining the common grounds, removing garbage and recycling, and apartment maintenance. Although he was told when hired that he would be expected to work from 9:00 am to 5:00 pm Monday through Friday, he "actually worked more than [50] hours each week performing [his] general[] maintenance responsibilities and no less than an additional [10] hours each week responding to calls from tenants." For that work, he was paid $400 per week and given lodging in one of the buildings he helped maintain. He never received additional pay for work outside his "official schedule" and, even after complaining to a supervisor about the excessive workload, was never paid for the extra overtime hours. Ortiz adds that he is "aware of other employees who worked for Croman, but [who] were not paid properly for all of the hours they worked."

Balic was hired as a superintendent by Defendants in September 2005 and was initially responsible for 10 buildings. In early 2008, several of these buildings were assigned to another superintendent. Her duties included taking out the garbage, cleaning up common areas, watering plants, shoveling snow, fumigating, killings rats and mice, fixing leaky roofs, and responding to tenant complaints. When hired, Balic was advised that she would be expected to work from 9:00 am to 5:00 pm Monday through Friday; in reality, she worked "much more than 40 hours a week." Indeed, she "regularly worked at least 70 hours a week, " though her "weekly hours varied depending on the tasks [she] needed to perform and the number of repairs [she] needed to make." She was paid $600 per week, plus lodging, but "nothing extra for the extensive overtime hours [she] worked." She adds that she "rarely received all of $600 because Defendant Croman regularly deducted from [her] wages for various reasons." Starting in 2010, Croman "started paying [her] $2, 400 at the end of each month, instead of $600 per week." She complained to her supervisor and to Croman "regularly about the deductions Defendant Croman took from [her] salary, the amount of hours [she] had to work, and the fact that [she] was not paid for all of the hours [she] worked, " but "nothing ever changed."

II. Discussion

A. Standard for Conditional Certification of a Class Action Under the FLSA

The FLSA was enacted to eliminate "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers...." 29 U.S.C. ยง 202(a). "The purpose of the FLSA... was to guarantee [ ] compensation for all work or employment engaged in by employees covered by the Act.'" Reich v. N.Y. City Transit Auth., 45 F.3d 646, 648-49 (2d Cir. 1995) ...


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