United States District Court, S.D. New York
DONALD LITTLE and TERRENCE JOHNSON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
CARLO LIZZA & SONS PAVING, INC., SHIPS POINT INDUSTRIES LTD., A&B CONTRACTORS LLC, and ELIA ALY LIZZA, Defendants.
OPINION & ORDER
A. ENGELMAYER, District Judge
plaintiffs Donald Little and Terrence Johnson, as well as 12
opt-in plaintiffs, allege that defendants-three companies and
one individual in the paving business that employed
plaintiffs as "flagmen" on public works projects in
New York City-did not pay them (1) overtime wages required by
federal and state labor law and (2) prevailing
wages required by a contract of which plaintiffs
were third-party beneficiaries. Plaintiffs now move for
partial summary judgment. They seek a declaration from the
Court that the duties they performed for defendants entitled
them to the prevailing wage rate under New York law. Opposing
this motion, defendants argue that, as to those duties which
plaintiffs undisputedly performed, they were not entitled to
the prevailing wage rate. Rather, defendants argue, the
duties that plaintiffs undisputedly performed would instead
classify them as "traffic control flaggers, "
entitled to the minimum wage rate but not the prevailing wage
rate. For the reasons that follow, the Court denies
plaintiffs' motion for partial summary judgment.
Carlo Lizza & Sons Paving, Inc. ("Carlo Lizza
Paving") is in the heavy road and asphalt milling
business; its recent work has mostly been on New York City
("NYC") roadways. See JSUF ¶¶
1-2. Defendant Elia Aly Lizza is the CEO and sole owner of
both Carlo Lizza Paving and an affiliated entity, defendant
Ships Point Industries Ltd. ("Ships Point"), to
which Carlo Lizza Paving, in or around summer 2015,
transferred its employees and operations. JSUF ¶ 6;
Compl. ¶ 34.
A&B Contractors LLC ("A&B") is in the
construction contracting business. Beginning in around 2013,
A&B provided employees to Carlo Lizza Paving in
connection with Carlo Lizza Paving's work on asphalt
milling contracts in New York City. JSUF ¶¶ 11-12;
Compl. ¶ 35.
2011, plaintiffs Little and Johnson have been employed by
Carlo Lizza Paving, either directly or through A&B. Each
has worked as a flagman (or a "flagger") on road
projects in New York City, including pursuant to the
contracts with the New York City Department of Transportation
("DOT") at issue in this case. JSUF ¶¶
The DOT Contracts
Lizza Paving regularly enters into contracts with DOT
("DOT Contracts" or "the Contracts"), as
a general contractor, to perform asphalt milling projects on
New York City roadways, which entail the grinding of the
first two inches of pavement to correct issues like potholes,
cracks, and bumps on the roadways. JSUF ¶¶ 14,
28-30. Carlo Lizza Pavings's laborers, engineers, and
drivers perform milling and sweeping pursuant to these
contracts. Id. ¶ 31. DOT instructs Carlo Lizza
Paving which streets to mill and the order in which to mill
them. Id. ¶ 32. To perform these contracts,
Carlo Lizza Paving employs workers, hired either directly or
through A&B. Id. ¶ 34. Relevant here, the
Contracts at issue contained the following language:
"New York State Labor Law: This Contract is subject to
New York State Labor Law Section 220, which requires that
construction workers on the site be paid prevailing wages and
supplements. The Contractor is reminded that all wage
provisions of this Contract will be enforced strictly and
failure to comply will be considered when evaluating
Id. ¶ 15.
Plaintiffs' Work on the DOT Projects
2011, Carlo Lizza Paving has employed workers identified as
"crossing guards" or "flaggers"
(hereinafter, "flaggers") to work pursuant to DOT
asphalt milling Contracts. Id. ¶ 46. For each
asphalt milling contract, Carlo Lizza Paving employs between
five and 10 such flaggers. Plaintiffs, including named
plaintiffs Little and Johnson, served in this role.
Id. ¶ 47. Little worked as a flagger for Carlo
Lizza Paving from in or around May 2012 through in or around
May 2014, and for A&B as a subcontractor Carlo Lizza
Paving from in or around March 2015 through in or around
August 7, 2015. Id. ¶¶ 51, 53-55. Johnson
worked as a flagger for Carlo Lizza Paving from in or around
March 2011 through in or around the spring of 2013.
Id. ¶ 52. The 12 opt-in plaintiffs also worked
as flaggers on DOT Contracts at times during the past six
years. Id. ¶ 56. Carlo Lizza and A&B, in
tracking employee time, listed certain employees- apparently
including all plaintiffs-as "flaggers."
Id. ¶ 57.
undisputed that each plaintiffs duties as a flagger entailed
"directing foot traffic and vehicle traffic away from
the asphalt milling job site." JSUF ¶ 48. This work
sometimes also involved "using stop and go
allege-although this is disputed-that their duties also at
times included other tasks. For example, plaintiffs attest
that their duties also included "sweeping and shoveling
dirt from both the milling area and the sidewalks, "
Dkt. 115 at 8 (citing Little Depo. Tr. 13, 65-66),
"placing roadblocks and barrels, " id.
(citing Little Depo. Tr. 56, 60; Johnson Depo. Tr. 7),
"directing pedestrians from inside the construction zone
marked by the barrels, " id. (citing Little
Depo. Tr. 61-62; Johnson Depo. Tr. 31-32), "ensuring
that machines could safely pass through the barricades,
" id. (citing Johnson Depo. Tr. 8, 31, 33),
"placing and removing no parking signs from the
construction area, " id. (citing Johnson Depo.
Tr. 22, 30), and "laying asphalt if the job was running
behind schedule, " id. (citing Johnson Depo.
Carlo Lizza Paving's Payment of Flaggers
until 2013, Carlo Lizza Paving paid the workers-including
plaintiffs-whom it identified as "flaggers" or
"crossing guards" "at what Carlo Lizza Paving
believed was the required prevailing wage rate." JSUF
¶ 49. After 2013, after 2013, Carlo Lizza Paving,
concluding that it was not required to pay such workers the
prevailing wage, paid plaintiffs less than the prevailing
wage rate, although their duties remained the same.
Id. ¶ 50.