Rachel Lerner
Thu, 06/22/2023
On July 15, 2022, Miguel Carabajo filed a lawsuit against APCO Insulation under the Fair Labor Standards Act (FLSA), alleging that they failed to pay him and other employees overtime, unlawfully deducted time for meal breaks they did not take, and required them to come in early before clocking in. On June 9, 2023, the Eastern District of New York granted conditional certification for a class of mechanical insulators, or insulation prep and installation employees, finding that they were similarly situated.
Under the FLSA, employees can bring their case as a collective action on behalf of themselves and others similarly situated. Unlike a class action, a collective action is a “opt-in” which means that an employee must give their written consent to become a party to the case. Courts use a two-step process to determine whether to certify a case as a collective action. The first step is called “conditional certification” and involves a court determining if employees were similarly situated and subject to a common plan or policy that violated the law. The burden at the conditional certification stage is minimal. Once a case is conditionally certified, the court sends out a notice to potential opt-in plaintiffs who may be similarly situated, so that they have a chance to join the lawsuit.
In granting conditional certification, the court found that the Carabajo met his burden because the employer’s policy was a per se violation of the FLSA. APCO had a written policy of not paying for all hours worked when workers failed to clock in and out correctly. According to the court, this policy alone was sufficient to warrant conditional certification because it was on its face unlawful and applied to all employees. The implication of this decision is that the existence of a written policy may be sufficient on its own to collectively certify a class under the FLSA, regardless of factual concerns based on declarations and allegations.
McGillivary Steele Elkin has represented tens of thousands of workers in cases involving unpaid overtime. If you are concerned that your employer has unlawfully withheld overtime pay from you and other workers, contact us at info@mselaborlaw.com.
