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Little v. Carlo Lizza & Sons Paving, Inc.

United States District Court, S.D. New York

June 6, 2017

DONALD LITTLE and TERRENCE JOHNSON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,

          OPINION & ORDER

          PAUL A. ENGELMAYER, District Judge

         Named 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[1] 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.

         I. Background [2]

         A. The Parties

         Defendant 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.

         Defendant 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.

         Since 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 ¶¶ 44-47, 60.

         B. The DOT Contracts

         Carlo 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 performance."

Id. ¶ 15.

         C. Plaintiffs' Work on the DOT Projects

         Since 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.

         It is 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 paddles." Id.

         Plaintiffs 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. Tr. 34).

         D. Carlo Lizza Paving's Payment of Flaggers

         Up 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.

         E. ...

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