Diaz v. New York Paving Inc.
Filing
263
OPINION & ORDER re: 236 MOTION to decertify the conditional collective previously certified pursuant to FLSA . filed by New York Paving Inc. For the foregoing reasons, Defendant's motion to decertify the collective action is DENIED. The Clerk of the Court is respectfully directed to terminate ECF No. 236. (Signed by Judge Andrew L. Carter, Jr on 9/30/2022) (ate)
Case 1:18-cv-04910-ALC-GWG Document 263 Filed 09/30/22 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
9/30/2022
EDGARDO DIAZ, individually and on behalf
of all others similarly situated,
Plaintiff,
-againstNEW YORK PAVING INC.,
18-cv-4910 (ALC)
OPINION & ORDER
Defendant.
ANDREW L. CARTER, United States District Judge:
Plaintiff Edgardo Diaz filed suit against New York Paving Inc. (“NY Paving”) alleging
violations of New York Labor Law and Federal Labor Standards Act (“FLSA”), 29 U.S.C. §
216(b). Plaintiff alleges Defendant failed to pay overtime and straight time to a group of its
employees. Defendants now move to decertify the FLSA collective.
For a full recitation of the facts, see Plaintiffs are a group of pavers, currently and
formerly employed by NY Paving. They allege that NY Paving had a policy of required off-theclock work. Judge Gorenstein previously granted Plaintiffs conditional certification. See
generally Diaz v. New York Paving Inc., 340 F. Supp. 3d 372, 377 (S.D.N.Y. 2018).
To maintain a collective under 29 U.S.C. §216(b), “the named plaintiffs [must] be
“similarly situated to the opt-in plaintiffs.” Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502,
515 (2020). District courts enjoy little discretion in considering whether to certify or decertify
FLSA collective actions. See Scott, 954 F.3d at 520 (“Whereas Federal Rules of Civil Procedure
20 and 42 allow districts courts discretion in granting joinder or consolidation, the FLSA, which
declares a right to proceed collectively on satisfaction of certain conditions, does not.” (quoting
Campbell v. City of Los Angeles, 903 F.3d 1090, 1112 (9th Cir. 2018))).
Case 1:18-cv-04910-ALC-GWG Document 263 Filed 09/30/22 Page 2 of 3
“[P]arty plaintiffs are similarly situated . . . to the extent they share a similar issue of law
or fact material to the disposition of their FLSA claims. Scott, 954 F.3d at 516. [I]f named
plaintiffs and party plaintiffs share legal or factual similarities material to the disposition of their
claims, ‘dissimilarities in other respects should not defeat collective treatment.’” Id. (quoting
Campbell, 903 F.3d at 1114). Id.
Here, Defendant argues that Plaintiffs claims are not viable because they have not
established the existence of a common policy requiring uncompensated work. They also argue
that the record demonstrates that union officials were responsible for any directive to perform
off-the-clock work. The law is clear, however, that a de facto policy or one enforced through
third parties may still satisfy FLSA claims. See, e.g., Chao v. Gotham Registry, Inc., 514 F.3d
280, 288 (2d Cir. 2008) (“An employer who has knowledge that an employee is working, and
who does not desire the work be done, has a duty to make every effort to prevent its
performance.”); see also Tueros v. Urb. Health Plan, Inc., No. 21-cv-4525, 2022 WL 2752070,
at *10 (S.D.N.Y. July 14, 2022); Foster v. City of New York, New York, No. 14-cv-4142, 2017
WL 11591568, at *22 (S.D.N.Y. Sept. 30, 2017) (finding “abundant evidence that City managers
and supervisors were aware that Plaintiffs were engaged in uncompensated overtime work”);
Torres v. Gristede’s Operating Corp., 628 F. Supp. 2d 447, 463 (S.D.N.Y. 2008) (finding
employment practice unlawful where store managers “observed overtime work
contemporaneously”).
Plaintiffs, through their declarations and deposition testimony, highlight the pervasive
nature of the policy at issue. All pavers were consistently expected to arrive early at the Yard to
perform preparatory work, but NY Paving brings no evidence to bear that they took steps to
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Case 1:18-cv-04910-ALC-GWG Document 263 Filed 09/30/22 Page 3 of 3
dissuade pavers of this expectation. The Court finds that Plaintiffs have made the requisite
modest showing that Plaintiff Diaz is similarly situated to the opt-in plaintiffs.
For the foregoing reasons, Defendant’s motion to decertify the collective action is
DENIED. The Clerk of the Court is respectfully directed to terminate ECF No. 236.
SO ORDERED.
Dated:
___________________________________
ANDREW L. CARTER, JR.
United States District Judge
September 30, 2022
New York, New York
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