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Johnson v. Wave Comm GR LLC

United States District Court, N.D. New York

March 14, 2014

BRETT JOHNSON, on behalf of himself and all others similarly situated, Plaintiff,
v.
WAVE COMM GR LLC; ROBERT GUILLERAULT, individually; and RICHARD RUZZO, individually, Defendants

Page 454

For Plaintiff: PAUL J. LUKAS, ESQ., TIMOTHY C. SELANDER, ESQ., OF COUNSEL, NICHOLS KASTER PLLP, Minneapolis, MN.

For Plaintiff: J. NELSON THOMAS, ESQ., PATRICK J. SOLOMON, ESQ., JUSTIN M. CORDELLO, ESQ., OF COUNSEL, THOMAS & SOLOMON LLP, Rochester, NY.

For Defendants: SCOTT P. QUESNEL, ESQ., PATRICK J. FITZGERALD, III. ESQ., OF COUNSEL, GIRVIN & FERLAZZO, PC, Albany, NY.

OPINION

Page 455

DAVID N. HURD, United States District Judge.

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Brett Johnson (" plaintiff" ) brings this class action on behalf of himself and all others similarly situated against Wave Comm GR LLC (" Wave Comm" ), and its two owners, Robert Guillerault (" Guillerault" ) and Richard Ruzzo (" Ruzzo" ) (collectively " defendants" ) alleging violations of the Fair Labor Standards Act, as amended, 29 U.S.C. § § 201-219 (" FLSA" ) and New York Labor Law (" NYLL" ), N.Y. Lab. Law § § 190-191. Plaintiff claims Wave Comm failed to properly compensate cable technician installers (" installers" ) for overtime work. Defendants deny any violations of the FLSA or NYLL.

Defendants filed a motion for complete class decertification of both the FLSA and NYLL classes pursuant to 29 U.S.C. § 216(b) and Federal Rule of Civil Procedure (" Rule " ) 23(c)(1)(C), respectively. Plaintiff opposed, and defendants replied. The motion was considered on its submissions without oral argument.

II. FACTUAL BACKGROUND

It is assumed the parties are familiar with the underlying facts as detailed in the prior decisions in this case. ECF No. 163; see also Johnson v. Wave Comm GR LLC, No. 6:10-CV-346, 2011 WL 10945630 (N.D.N.Y. Oct. 4, 2011) (Report-Recommendation) (Baxter, M.J.) adopted by 2011 WL 10945627 (N.D.N.Y. Oct. 25, 2011).

Page 456

In short, this case is a collective and class action lawsuit brought to recover unpaid overtime wages under the FLSA and the NYLL. It involves approximately 200 current and former employees of defendant Wave Comm. Two classes of installers were certified, one under the FLSA pursuant to 29 U.S.C. § 216(b), and another under the NYLL pursuant to Rule 23(b)(3).

The FLSA class is comprised of 57 opt-in plaintiffs and includes Wave Comm employees who worked as installers within the three years preceding the filing of this lawsuit, as FLSA claims are subject to a maximum three year statute of limitations.

The NYLL class is made up of approximately 200 plaintiffs, which includes the 57 opt-in plaintiffs and is comprised of all Wave Comm employees who worked as installers between April 2006 and April 2011, as NYLL claims are subject to a six year statute of limitations.

The classes are broken down into two subclasses:

Subclass I: All persons who worked for Wave Comm as installers . . . at any time between April 2006 and March 2010 . . . who did not receive proper overtime pay when they worked more than forty (40) hours in any given work week. [ under Compensation Plan A (" Plan A" )]
Subclass II: All persons who worked for Wave Comm as installers . . . at any time between March 2010 and April 2011, with compensation determined based on Wave Comm's weighted halftime compensation system . . . who did not receive proper overtime pay when they worked more than forty (40) hours in any given work week. [ under Compensation Plan B (" Plan B" )]

On this date, the parties' cross-motions for summary judgment were granted in part and denied in part. ECF No. 163. Specifically, it was found that some opt-in plaintiffs' claims under the FLSA are time barred, subject to a determination of willfulness by the jury. Additionally, it was held that Wave Comm satisfied the first two prongs of the retail or service establishment exemption under 29 U.S.C. ยง 207(i), that is, Wave Comm qualifies as a retail or service establishment and paid installers on a commission basis under Plan A. However, defendants could not sustain their ...


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