Hernandez v. NJK Contractors, Inc.

Decision Date01 May 2015
Docket NumberNo. 09-CV-4812 (RER),09-CV-4812 (RER)
PartiesEDGAR HERNANDEZ AND FREDIS ALFARO, individually and on behalf of all others similarly situated, Plaintiffs, v. NJK CONTRACTORS, INC., NICK HATZIS, AND KOSTAS GEORGIADIS, Defendants.
CourtU.S. District Court — Eastern District of New York


Ramon E. Reyes, Jr., U.S.M.J.:

Plaintiffs Edgar Hernandez ("Hernandez") and Fredis Alfaro ("Alfaro"), along with opt-in Plaintiffs José M. Agustin1 ("Agustin"), Nelson Melgar ("N. Melgar"), Gustavo Top ("Top"), Miguel A. Melgar ("M. Melgar"), Francisco Rafeal Cetino ("Cetino"), and Wilfredo Lazo ("Lazo") (collectively, "Plaintiffs") bring this collective action against NJK Contractors, Inc. ("NJK"), Nick Hatzis ("Hatzis"), and Kostas Georgiadis ("Georgiadis") (collectively, "Defendants") for violations of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 207, 216(b), New York Labor Law ("NYLL"), §§ 191, 198, 663, New York Codes, Rules and Regulations ("NYCCR") title 12, § 142-2.2, and New Jersey Statutes §§ 34:11-56a4, 34:11-56a25, 34:11-56.40 ("NJWHL"). Specifically, Plaintiffs allege that Defendants failed to pay them wages, as well as prevailing wages, supplemental benefits, and overtime compensation, on publicly financed and privately funded projects.

A bench trial was held on February 25, 26, 27, and 28, 2014. Plaintiffs and individualDefendants testified, as well as non-party witnesses Hugo Enamorado ("Enamorado") and Mikeljan Agolli ("Agolli").2


Plaintiffs must prove by a preponderance of the evidence that Defendants did not adequately compensate them as employees as required by the respective state and federal laws. See Solis v. SCA Rest. Corp., 938 F. Supp. 2d 380, 391-92 (E.D.N.Y. 2013). Under the FLSA, NYLL, and NJWHL, an employer must maintain accurate records of an employee's hours worked and wages paid. 29 U.S.C. § 211(c); N.Y. COMP. CODES R. & REGS. tit. 12, § 142-2.6; N.J.S.A. § 34:11-56a20. When an employer has "inaccurate or inadequate" records, the plaintiff "has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded by statute on other grounds, 29 U.S.C. § 252.

The employee's burden "is not high," so "it is possible for a plaintiff to meet this burden through estimates based on his own recollection." Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011). There must be, however, "at least some credible evidence that plaintiff performed overtime work." Daniels v. 1710 Realty LLC, 497 Fed. App'x 137, 139 (2d Cir. 2012). Once an employee satisfies his burden, the employer may rebut with "evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence." Anderson, 328 U.S. at 687-88.

The NYLL mirrors the FLSA with regard to the burden of proof where an employer has failed to keep proper employment records. N.Y. LAB. LAW § 196-a (where an employer fails "to keep adequate records . . . the employer in violation shall bear the burden of proving that the complaining employee was paid wages, benefits and wage supplements"); see also Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 332 (S.D.N.Y. 2005).

The NJWHL overtime compensation and record-keeping requirements are modeled after, and nearly identical to, their analogous FLSA regulations. Judicial interpretations construing the FLSA are applicable. See Crisostomo v. Exclusive Detailing, Inc., No. 08-CV-1771 (MAS), 2010 WL 2640183, at *5 (D.N.J. 2010); see also Marx v. Friendly Ice Cream Corp., 695 A.2d 1301, 1314 (N.J. Super. App. Div. 2005) (construing similar "executive employee" provisions); see, e.g., N.J.S.A. § 34:11-56a20 ("Every employer of employees subject to this act shall keep a true and accurate record of the hours worked and the wages paid by him to each").

On February 12, 2013, the Honorable Allyne R. Ross issued an opinion and order on the parties' cross-motions for summary judgment. (Dkt. No. 77.) Judge Ross held that "[b]ecause of the undisputed inadequacy of [D]efendants' records, [P]laintiffs here will enjoy the benefit of the Mt. Clemens Pottery burden shift at trial." (Dkt. No. 77 at 15.) Consequently, Plaintiffs must prove that they have in fact performed work for which they were improperly compensated, and they must produce sufficient evidence for the Court to draw a "just and reasonable inference" as to the amount and extent of that work. Anderson, 328 U.S. at 687. It is then up to Defendants to rebut Plaintiffs' evidence with the precise amount of work performed and/or evidence to negate the reasonableness of the inference to be drawn from Plaintiffs' evidence. Id. at 687-88.

The Court's Findings of Fact and Conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1) are set forth below and also in later sections of this Opinion. These findings are drawn from witness testimony at trial, my careful observation of the witnesses' demeanor and candor, the parties' trial exhibits, and stipulated facts. At trial Plaintiffs testified from their own recollection as to the hours they worked, the job sites that they worked at, the type of work they performed, as well as other information. They also submitted to the Court evidence, in the form of manual logs, payroll reports, certified payroll reports, Hernandez' calendar, affidavits, pay stubs, paychecks, and bank statements. Giving this evidence, as well as Plaintiffs' testimony, its deserved weight, Plaintiffs produced sufficient evidence for the Court to draw a just and reasonable inference as to the amount and extent of the work performed.

The burden then shifted to Defendants to rebut Plaintiffs' evidence. Defendants challenged Plaintiffs' assertions on cross-examination, attempted to impeach them with their previous interrogatories, as well as produced evidence, including, but not limited to NJK bank statements, in order to negate the reasonableness of the inference to be drawn from Plaintiffs' case. The result of same is the findings of fact and conclusions of law as follows.

I. Parties
A. Defendants

NJK is construction company that provides labor on roofing installation projects. (Dkt. No. 103, Joint Pretrial Order Stipulations of Fact and Law ("JPTO") ¶ 1.) NJK contracts with state and local governments in New York and New Jersey to provide construction services, primarily roofing installation. (Id. ¶ 2.) NJK performs roofing work on both private and public projects. (Pls.' Exh. 51.) Hatzis, NJK's president, and Georgiadis, NJK's vice-president, each own fifty percent of NJK's outstanding stock. (JPTO ¶¶ 3,4; T. 358:14; 479: 15.)

B. Plaintiffs

Plaintiffs performed work for various public and privately funded projects in New York and New Jersey. (See generally JPTO.)

Hernandez worked for NJK from 1993 (Tr. 17:4) through December 30, 2008 (Tr. 71:7-13; Pls.' Exh. 25 at 98).3

Cetino worked for NJK from October 1993 (Tr. 166:25) through approximately September 2005 (Tr. 167:4).4

Alfaro began working for NJK at the end of 2001. (Tr. 118:20.) He testified that he worked to the end of 2004 (Tr. 126:2-4), however the last job site that Alfaro testified to working at during his first stint of employment at NJK was the Monmouth County Courthouse in June or July 2004. (Tr. 129:23-25; 130:1-3; 131:6-8.) He testified that he worked at this job site for two months. (Tr. 130:9.) Accordingly, I find July 2004 to be Alfaro's end date of this first period of employment. (See also Pls.' Exh. 15 at 51 (last check stub issued to Alfaro in 2004 dated June 27, 2004.)) Alfaro's second period of employment with NJK began in September 2008 and ended in December 2008. (Tr. 131:10-12; 135:21-24; 136:18-20.)

Top began working for NJK in February or March 1999 (Tr. 213:24; 214:8-10) and worked for NJK for almost six years (Tr. 214:1). Top testified that Bronx Two Buildings Parkchester North ("Bronx Two") was the last job site that he worked at for NJK. (Tr. 231:18-19.) He further testified that he worked there until Summer 2004. (Tr. 231:6-8.) On cross examination, however, he testified that he worked at this job site for less than one month in March 2004. (Tr. 245:7, 9-11.) This latter March 2004 time frame comports with Top's payroll documents submitted into evidence by Plaintiffs. (Pls.' Exh. 58 at 13, 15-17.) Based on the weight of the evidence, I find that Top was employed by NJK through the end of March 2004.

M. Melgar began working for NJK at the end of July 2007 (Tr. 268:23) and continued working for NJK through mid-December 2008 (Tr. 283:16, 18; 284:4).

N. Melgar testified that he began to work for NJK in 2006, but failed to specify a month. (Tr. 340:16.) The earliest check written to N. Melgar in evidence was dated October 20, 2006. (Pls.' Exh. 61 at 2.) Based on this evidence I find that N. Melgar was first employed by NJK on or around October 14, 2006, the start of that week's pay period.5 N. Melgar testified that his last job for NJK was at the HSBC Bank/Shopping Center ("HSBC Shopping Center"). (Tr. 348:18-20.) He finished his work there around December 5, 2008, which also serves as his last date of employment. (Pls.' Exh. 56 at 65; Pls.' Exh. 61 at 48.)

Agustin worked for NJK from 1998 to approximately 2005. (Tr. 305:3, 5.) The last job that Agustin worked at for NJK was the Monmouth County Court, which began in June 2004. (Tr. 314:14; Pls.'s Exh. 53 at 179.) Agustin testified that he worked at this project for three months (Tr. 312:11), therefore, his employment ceased around August 31, 2004.

Lazo worked for NJK from mid-August 2008 (Tr. 252:4; 253:21) through December 30, 2008 (Tr. 261:2-3; 262:12-15; 264:23-25).

II. Work in General
A. Average Work Day
1. Meeting at the Shop


To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT