Diaz v. N.Y. Paving Inc.

• Decision Date: 03 December 2018
• Docket Number: 18 Civ. 4910 (ALC) (GWG)
• Citation: 340 F.Supp.3d 372
• Parties: Edgardo DIAZ, et al., Plaintiffs, v. NEW YORK PAVING INC., Defendant.
• Court: U.S. District Court — Southern District of New York

340 F.Supp.3d 372

Edgardo DIAZ, et al., Plaintiffs,

v.NEW YORK PAVING INC., Defendant.

18 Civ. 4910 (ALC) (GWG)

United States District Court, S.D. New York.

Signed December 3, 2018

James Burkett McInturff, III, Steven Lance Wittels, Law Offices of Steven L. Wittels, P.C., Armonk, NY Tiasha Palikovic, Mayer Brown LLP, New York, NY, for Plaintiffs

Christopher Paul Hampton, Jonathan D. Farrell, Larry Rafael Martinez, Nicholas Paul Melito, Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, NY, for Defendant

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

PlaintiffEdgardo Diaz, who performed road and sidewalk repairs in the New York City metropolitan area, filed this action against his employer New York Paving Inc.("NY Paving") under the Fair Labor Standards Act,29 U.S.C. § 201 et. seq.("FLSA"), and the New York State Labor Law, § 190 et. seq., § 650 et. seq.Frank Wolfe, Terry Holder, and Jose Alvarez, who are also pavers working for NY Paving, have since joined the suit.Plaintiffs now move to have this case conditionally approved as a collective action under 29 U.S.C.§ 216(b), with notice being sent to "all New York Paving pavers employed since June 3, 2015."¹For the following reasons, plaintiffs' motion is granted.

I.BACKGROUND

A.Allegations in the Complaint

The complaint alleges that Diaz was not paid overtime wages as required by the FLSA because of a specific policy put into place by NY Paving.See Class and Collective Action Complaint, filed June 3, 2018(Docket # 1)("Compl."), ¶¶ 19-38.Diaz alleges that NY Paving

requires its pavers ... to arrive at Defendant's central yard in Long Island City early each morning to receive instructions regarding the day's assignments, be counted by management, select the tools and materials necessary to perform each job that day, prepare the tools and materials for work, prepare the Company's trucks for the day's work, and load the tools and materials onto company trucks.

Id.¶ 20.He alleges that this work took "more than 30 to 45 minutes and [was] uncompensated."Id.Typical work that the pavers would perform upon arrival in the morning included "examining jackhammer bits,""determin[ing] how many hoses, jackhammers, and buckets of asphalt the day's paving [would] require," and "load[ing the equipment] onto the truck."Id.¶ 22.A supervisor would sometimes oversee the process and instruct the pavers to add or remove some of the equipment and materials before departing the yard.Id.Travel time to the first job site, which could be 15 to 90 minutes "depending on traffic," was not compensated.Id.¶ 24.At the end of last job of the day, the pavers "are required to reload the company truck, ride with or drive the tools and materials back to [the] yard in Long Island City, and then unload the truck and store the tools and materials at the yard."Id.¶ 28.This typically took "more than 30 to 45 minutes" and sometimes required the pavers to stop to refuel the company trucks.Id.¶¶ 28-31.The complaint alleges that pavers employed by NY Paving were not compensated for this work because of a "uniform company policy of not classifying these hours as time worked."Id.¶ 33.It also alleges that NY Paving failed to provide pavers with accurate wage statements as required by the New York State Labor Law.Id.¶ 39.

B.Facts from Plaintiffs' Declarations

Diaz, Wolfe, Holder, and Alvarez have each provided a sworn declaration to support plaintiffs' motion.All four individuals worked as pavers on jobs throughout the New York Metropolitan area for NY Paving, whose main yard is located in Long Island City, Queens.Diaz worked from January 2017 to March 2017 and for "a few days in 2016."Declaration of Edgardo Diaz(annexed as Exhibit 1 to Wittels Decl., Docket # 34-1)("Diaz Decl."), ¶ 2.Wolfe worked in March 2017 and again from June 2017 to the present.Declaration of Frank Wolfe(annexed as Exhibit 2 to Wittels Decl., Docket # 34-2)("Wolfe Decl."), ¶ 2.Alvarez worked from April 2017 to the present.AlvarezDecl. ¶ 2.Holder worked as a paver from 1989 to 1996, and again from January 2016 to the present.He became a union shop steward in November 2017 and a crew foreman in May 2018.Declaration of Terry Holder(annexed as Exhibit 3 to Wittels Decl., Docket # 34-3)("Holder Decl."), ¶¶ 2-3, 5-6.

According to the pavers, at the start of their employment with NY Paving, they were informed by their supervisors that they and all other pavers were required to arrive at the central yard each morning between 5:00 a.m. and 5:30 a.m. in order to unload, reload, and prepare the vans for the first job of the day around 7:00 a.m. DiazDecl. ¶¶ 4-5, WolfeDecl. ¶¶ 4-5, HolderDecl. ¶¶ 7-8, AlvarezDecl. ¶ 5-6.Holder, the foreman, stated that when he"rejoined New York Paving around January 2016, [he] was informed by Patty LaBate, the Union 175 shop steward at that time," of the same time requirement.HolderDecl. ¶ 7.He explained that he would relay these instructions to other foremen and pavers.Id.¶ 8.Notwithstanding these instructions, the pavers' "pay clocks started when the first paving job of the day was scheduled to begin, usually at 7:00 a.m."DiazDecl. ¶ 13;seeWolfeDecl. ¶ 13, HolderDecl. ¶ 15, AlvarezDecl. ¶ 14("we were paid only from the time the first paving job began, usually 7:00 am").This policy was verified by LaBate, Holder's union shop steward at the time.HolderDecl. ¶ 7("I asked if we would get paid for [the time spent working before the first job], and he said no.").

The pavers morning duties consisted first of unloading items from the work vehicles from the previous day and storing them in the yard.These items included "empty asphalt concrete pails,""riser rings and squares (for raising manhole covers),""empty line tape boxes,""empty canisters of diesel and propane,"DiazDecl. ¶ 7, HolderDecl. ¶ 9;"safety cones, signs, and barriers,"WolfeDecl. ¶ 7, HolderDecl. ¶ 9;"unnecessary and/or worn-out jackhammers, jackhammer bits, air compressors (for powering the jackhammers), hoses, brooms, shovels, rakes, and other tools,"HolderDecl. ¶ 9, AlvarezDecl. ¶ 8; and "extension lines and plastic joints," and garbage from the previous job, AlvarezDecl. ¶ 8.The pavers would then reload the trucks with materials for the day's jobs, which would include "new pails filled with asphalt concrete," new "riser rings and squares," boxes of "yellow and white line tape (for repairing road dividers, crosswalks, bike lanes, etc.),"DiazDecl. ¶ 7, HolderDecl. ¶ 9;"safety cones, signs, and barriers," and various tools, WolfeDecl. ¶ 7, AlvarezDecl. ¶ 8.This work typically took from 30 to 45 minutes.DiazDecl. ¶ 8, WolfeDecl. ¶ 8, HolderDecl. ¶ 10, AlvarezDecl. ¶ 9.

NY Paving managers or supervisors were aware of and often personally oversaw the above mentioned work, DiazDecl. ¶ 9, WolfeDecl. ¶ 9, AlvarezDecl. ¶ 10, and Alvarez stated that it is "well-known among pavers that workers who [did] not show up at the yard by 5:30 am or 5:45 am have been contacted and told to stay home for the day without pay,"AlvarezDecl. ¶ 6.Wolfe and Alvarez each recall a supervisor named "Robert Zaremski" or "Robert" who would oversee the pavers as they performed the morning work.WolfeDecl. ¶ 9, AlvarezDecl. ¶ 10.After the trucks were loaded, the paving crews would get into the vehicles and drive to the first job site of the day.The drive back to the yard from the last job would take anywhere from 30 minutes to an hour depending on the location of the last job site.The pavers would also stop on the way back to the yard to refuel the work vehicles for the next day.DiazDecl. ¶¶ 10-12, WolfeDecl. ¶¶ 10-12, HolderDecl. ¶¶ 13-14, AlvarezDecl. ¶¶ 12-13.

The plaintiffs each claim that NY Paving failed to pay them for time "spent unloading and loading tools and equipment onto the vehicles each morning" or for the time spent driving to and from the work-sites and refueling the vehicles at the end of the day.They also allege that NY Paving failed to keep time records of the morning work.DiazDecl. ¶¶ 13-14, WolfeDecl. ¶¶ 13-14, HolderDecl. ¶¶ 15-16.

C.The Defendant's Declarations

NY Paving has submitted declarations from Peter Miceli and Robert Zaremski.See Declaration of Peter Miceli(annexed as Exhibit 1 to Hampton Decl., Docket # 37-1)("Miceli Decl."); Declaration of Robert Zaremski(annexed as Exhibit 2 to Hampton Decl., Docket # 37-2)("Zaremski Decl.").Miceli has been employed with NY Paving since 1991 and serves as Director of Operations.MiceliDecl. ¶ 1.Miceli claims that the statements made by the plaintiffs concerning unpaid overtime wages are incorrect because "NY Paving does NOT require any pavers to report to the yard prior [to] their first paving shift or after their last paving shift."Id.¶¶ 23-24.To the contrary, Miceli states, "NY Paving offers [its] pavers a voluntary chauffeur service," which transports them to and from the various work-sites, id.¶ 25, a service that is customary "throughout the paving industry because paving contractors ... generally provide paving services for more than one single ‘worksite’ per day, thus necessitating" the daily travel, id.¶ 27;see¶¶ 30, 33.The reason pavers would arrive to work as early as the plaintiffs state, Miceli explains, is to ensure they show up in time to catch the chauffeur service to the first job site.Id.¶¶ 28-29.To the extent that any pavers do arrive early, Miceli states that the pavers "generally" do no work at the yard but rather use this time to go to the "local deli to stand in line for a hot breakfast meal and a cup of coffee."Id.¶¶ 37, 39.Finally, Miceli states that plaintiffs' description of the morning work performed is exaggerated and would in reality take "less than five minutes."Id.¶ 44;see¶¶ 40-46.Miceli also notes that the company's paving employees are hired "under the terms of two separate and distinct collective bargaining agreements,"id...