Court: District Court, S.D. Illinois; February 21, 2019; Federal District Court
Plaintiffs filed a collective action against EPIC Security Corp. and Vice President Selwyn Falk under the Fair Labor Standards Act (FLSA) and New York Labor Law, alleging non-compensation for travel time to worksites as drivers. Defendants deny the claims, asserting proper compensation and that plaintiffs could report directly to worksites, using company cars for convenience. The court, having received consent from both parties for all proceedings, conducted a bench trial from December 10 to January 7, 2019, after an extensive procedural history. The case began with David Williams filing the action in July 2015, followed by the inclusion of additional plaintiffs and defendants in amended complaints. Defendants' summary judgment motion, which claimed travel time was not compensable, was denied due to material factual disputes. A pretrial order was issued in November 2018 requiring a questionnaire to gather relevant information from plaintiffs, as both sides debated the necessity of calling all opt-in plaintiffs as witnesses. A pretrial conference was held on November 19, 2018.
Defendants' motion in limine was granted, allowing them to call each named and opt-in Plaintiff as witnesses at trial, with a 15-hour time limit for each side. The Court provided a revised questionnaire combining elements from both parties’ proposals, requiring Plaintiffs to submit sworn questionnaires from remaining Plaintiffs by December 7, 2018. The Court also allowed for direct examination by affidavit to conserve trial time, due by December 5, 2018.
On November 21, 2018, Plaintiffs requested a pre-motion conference to discuss filing a Second Amended Complaint (SAC) to add claims under the New York Labor Law (NYLL) for eight opt-in Plaintiffs, which was denied on November 22, directing them to file a formal motion instead. Plaintiffs filed the motion on November 30, 2018, seeking to add nine opt-in Plaintiffs as named parties to assert NYLL claims and withdrew two causes of action related to the NYLL.
Defendants opposed this motion on December 6, 2018, citing potential prejudice due to not having deposed the new Plaintiffs. The Court deferred the decision on the amendment pending trial, noting that the NYLL claims were largely coextensive with the Fair Labor Standards Act (FLSA) claims, and directed the parties to present proof at trial as if the NYLL claims were asserted and as if they were not. Following a bench trial from December 10-14, 2018, both parties submitted post-trial memoranda and damages calculations. The Opinion addresses the motion to amend, findings of fact and conclusions of law, and the determination of damages for each Plaintiff.
Plaintiffs' motion to amend their complaint is granted under Federal Rule of Civil Procedure 15(a), which allows for amendments when justice requires. The court retains discretion to grant or deny such motions, considering factors from Foman v. Davis, including undue delay, bad faith, futility of amendment, or undue prejudice to the opposing party. However, mere delay is insufficient for denial unless accompanied by bad faith or prejudice. The party opposing the amendment must demonstrate these factors. In this case, the court found that Defendants did not adequately show prejudice resulting from the amendment, as they were able to obtain direct testimonies and cross-examine the moving opt-in Plaintiffs at trial. The consent forms signed by the opt-in Plaintiffs indicated their right to pursue claims beyond Fair Labor Standards Act (FLSA) claims, signaling to Defendants the potential for additional claims. Consequently, the court grants the Plaintiffs leave to file a Second Amended Complaint (SAC) that includes claims under the New York Labor Law (NYLL) for specific Plaintiffs.
Additionally, findings of fact reveal that Defendant EPIC, a privately-owned security company based in Manhattan, employs 300 to 400 security guards and generated annual revenues exceeding $500,000 from 2009 to 2017, with a gross income between $10 to $15 million in 2017. Dr. Mark Lerner serves as EPIC's CEO.
As CEO, he actively sought to stay informed about laws and regulations in the security guard industry, including employment laws, by maintaining a complete set of New York State McKinney's laws and forms, receiving legal updates from West Publishing, and subscribing to various resources from New York state agencies. He has also subscribed to Mondaq for updates on labor law and wage-and-hour matters for over twenty years. Additionally, he attended numerous security industry conferences addressing personnel and payroll issues.
EPIC has a fleet of approximately 35 vehicles insured by the company, with security guards who drive them listed on the insurance policy. Among the hundreds of EPIC security guards, only a minority utilize EPIC vehicles for commuting to work sites. At trial, contracts for 60 clients were presented, with 34 specifying the presence of an EPIC vehicle during the guard’s shift. These vehicles, termed "radio motor patrol" (RMP) vehicles, are requested by clients for patrol, deterrence, or as shelters.
For RMP assignments, security guards must report to EPIC's headquarters to pick up the vehicle, complete associated paperwork, and return it after their shift. Only guards with valid driver's licenses who are willing to drive are assigned to RMP sites. Examples of RMP locations include Ray Catena car dealerships and Garden State Plaza Mall. Conversely, non-RMP sites do not require an EPIC vehicle, allowing guards to commute directly without reporting to headquarters, although EPIC offered vehicles as an option for convenience.
EPIC claims that providing vehicles to guards for travel to both RMP and non-RMP sites is a convenience and part of multiple commuting options. However, having guards drive RMPs benefits EPIC by streamlining vehicle transportation and requiring guards to fill the vehicles with gasoline.
In April 2016, EPIC initiated a policy to compensate certain security guards for travel time between its headquarters and designated worksites, specifically RMP sites. Cullen, responsible for calculating this compensation, utilized Google Maps to determine driving times. Security guards were required to complete Vehicle Use Reports (VURs) detailing their driving times, which were destroyed after ninety days, a practice that continued until mid-2016, post-lawsuit initiation.
Defendant Selwyn Falk, a Vice President at EPIC, managed the administrative office, overseeing payroll, scheduling, and personnel managers. Although he did not directly hire or fire security guards, he could hypothetically override personnel decisions. Falk signed EPIC's interrogatory responses and approximately half of the company's security service contracts, but he was generally uninvolved in decisions regarding security guards’ use of EPIC vehicles.
Plaintiffs, when using EPIC vehicles, first reported to headquarters to pick up the vehicle, a process that involved paperwork and inspections taking 15 to 20 minutes. They were also expected to refill the vehicles with gasoline before returning them. Many Plaintiffs preferred using EPIC vehicles to avoid personal costs associated with their own vehicles, with one plaintiff citing daily expenses of $40-$50 for gas and tolls when using personal transport. Additionally, the use of EPIC vehicles provided benefits like insurance coverage in case of accidents while traveling to worksites.
Employees using their own vehicles for work-related travel would typically bear their own insurance responsibilities. For those without personal vehicles, EPIC provided vehicles to facilitate travel to work sites, especially after Hurricane Sandy disrupted mass transit. Some plaintiffs noted difficulties reaching sites like Daytop Village in Far Rockaway, NY. Plaintiff Vicent recognized that the EPIC vehicles were a courtesy, allowing him to use his own vehicle if he chose. The Court determined that travel time to non-RMP sites was akin to regular commuting and that EPIC vehicles were offered as a benefit for those employees. However, for RMP sites, the Court accepted the plaintiffs' accounts of travel time as part of their duties since employees spent time picking up, returning, fueling, and inspecting these vehicles, which were essential for their work at RMP sites. Thus, the vehicles were considered tools necessary for the job at RMP locations.
In conclusion, under the Portal-to-Portal Act, normal commuting time is generally not compensable. This principle was supported by precedent cases, indicating that employees are not entitled to compensation for standard travel from home to work, even if using an employer's vehicle. The Court reiterated that such travel is viewed as a normal aspect of employment, regardless of the commute's duration, as exemplified in the Kavanagh case, where extensive travel time was deemed "normal" and not compensable under the FLSA.
Travel time for employees commuting to and from work in an employer's vehicle is not compensable under the Fair Labor Standards Act (FLSA), as established in Manners v. State of New York, and is not influenced by employer restrictions on personal vehicle use during the commute. Compensation may arise if pre-commute work supports the employee's primary activities or if the employee is required to report to a designated location (waystation) for work-related tasks, such as picking up tools, before heading to the worksite. In such cases, travel time from the waystation to the worksite is considered part of the workday, as specified in 29 C.F.R. 785.38. A relevant case, Pichardo v. Hoyt Transp. Corp., found that a school bus driver’s travel time between the employer's parking site and his home was compensable, as transporting the bus primarily benefited the employer. The New York Labor Law (NYLL) aligns with the FLSA regarding commute compensation, with the New York State Department of Labor typically deferring to FLSA regulations for guidance.
Compensable driving time for Plaintiffs who worked at RMP sites and drove RMP vehicles is established, as these vehicles are deemed essential tools for the job. Security guards must report to EPIC's headquarters to perform necessary duties before heading to the worksite, making the time spent commuting between the waystation and the RMP worksite compensable. Conversely, driving time to non-RMP sites is not compensable, as it is considered normal commuting time, and EPIC vehicles are not classified as tools for these sites. Although some Plaintiffs preferred using EPIC vehicles for personal benefits, they had alternative commuting options available.
Additionally, under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), employees bear the burden of proving inadequate compensation for unpaid wages. Employers are required to maintain wage and hour records, but if they fail to do so, plaintiffs can meet their burden through reasonable inference. Employees must be paid at least minimum wage for the first 40 hours worked weekly, and claims for unpaid wages under the FLSA arise only if the average hourly wage falls below the federal minimum. Both the FLSA and NYLL mandate overtime pay at a rate of no less than one and one-half times the regular wage for hours exceeding 40 per week, and paying above the minimum wage does not exempt employers from overtime obligations.
Plaintiffs seek compensation for travel hours to and from worksites at minimum wage under the Fair Labor Standards Act (FLSA) and for unpaid straight time under the New York Labor Law (NYLL). The Court rules that Plaintiffs can only recover the minimum wage rate under the NYLL for hours worked under 40 per week, as the NYLL lacks provisions for unpaid straight time, referencing Contrera v. Langer and McGlone v. Contract Callers Inc. To establish a claim under the FLSA, Plaintiffs must demonstrate that their average hourly wage, factoring in travel time, was below the federal minimum wage of $7.25, while for the NYLL, they must show their average pay was below the applicable state minimum wage (ranging from $7.25 to $9.70 in NYC during the relevant period). The Court will award overtime for any hours exceeding 40 in a week, including travel time.
Regarding liquidated damages, the Court finds no grounds to award them under either the FLSA or NYLL, as Defendants acted in good faith. Evidence presented indicates that EPIC's CEO, Dr. Lerner, took significant steps to ensure compliance with labor laws, which supports the conclusion that Defendants had reasonable grounds to believe their actions regarding travel time were lawful.
EPIC had a reasonable belief that it did not need to compensate for travel time between its headquarters and worksites, as the issue of compensation for driving time is complex. The company’s policy change in April 2016 to pay security guards for driving time to RMP sites indicates good faith compliance with the law, leading the Court to determine that Plaintiffs are not entitled to liquidated damages.
Regarding statutes of limitation, the Fair Labor Standards Act (FLSA) imposes a three-year limit for willful violations and a two-year limit for non-willful violations. To prove a willful violation, an employee must show that the employer either knew of or recklessly disregarded its legal obligations. A mere unreasonable action does not constitute willfulness. The New York Labor Law (NYLL) has a six-year statute of limitations. For Plaintiffs with NYLL claims, the Court applies the six-year limit, while for FLSA claims, a two-year limit is applied, as Defendants’ conduct was found not to be willful.
Successful Plaintiffs are entitled to prejudgment interest. Under federal law for FLSA claims, the interest rate is based on the average annual U.S. treasury bill rate, compounded annually. For NYLL claims, the interest rate is 9%, calculated from the date wages were incurred or based on a reasonable intermediate date. The Court confirms that Plaintiffs entitled to recover are also entitled to prejudgment interest.
Damages awarded to plaintiffs for lost wages typically should include pre-judgment interest, as per Gierlinger v. Gleason, with a 9% interest rate applied for New York Labor Law (NYLL) claims, while the federal interest rate applies for Fair Labor Standards Act (FLSA) claims. The FLSA broadly defines "employer" to include any person acting in relation to an employee, allowing for multiple employers per individual. Employers are jointly and severally liable for back wages and liquidated damages. The existence of an employer-employee relationship under the FLSA is evaluated based on the economic reality of the situation rather than strict definitions, considering the totality of circumstances. Key factors include the power to hire and fire, control over work schedules, payment methods, and maintenance of employment records. These factors are not determinative on their own; the overall context is crucial. The NYLL has a similar definition of "employer" to the FLSA, encompassing various entities that employ individuals in different capacities.
The New York Court of Appeals and the Second Circuit have not established whether the definitions of 'employer' under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) are identical. However, district courts in the circuit have uniformly interpreted the definitions similarly. Consequently, the Court applies the economic reality analysis to both statutes.
The Plaintiffs have failed to prove that Falk qualifies as an employer under the FLSA and NYLL. Despite Falk being a corporate representative and having signed numerous contracts for EPIC, this does not confer liability. The Plaintiffs only substantiated one of the four relevant factors, which is Falk's hypothetical power to hire or fire, as he was in a position of authority over the personnel manager. They did not demonstrate that he supervised work schedules, determined payment methods, or maintained employment records. Notably, it was EPIC's CEO, Lerner, who altered payment policies in 2016, not Falk. The Court concluded that Falk's role within EPIC was limited and did not include control over the security guards, aligning with precedents where corporate officers held liable had direct contact and responsibility for the employees' work.
The latter part of the document addresses the damages analysis for individual and opt-in Plaintiffs, referencing a Damages Spreadsheet and considering the credibility of the Plaintiffs' testimony about driving times in calculating damages. The Court took into account both Plaintiffs' claims and Defendants' objections when determining the awards.
Driving times between EPIC's headquarters and job sites can be lengthy due to Manhattan traffic, despite short distances. The defendants destroyed VURs that documented the plaintiffs' driving times after the case began, which supports the court's approach.
Adrian Brown was employed by EPIC as a security guard from February 2015 to December 2016, working at multiple sites, including Avalon Bay Princeton, Ray Catena, Leesel Bus Depot, and Ardsley Country Club. While the plaintiffs claim four sites were RMP (Required Motor Pool) sites, Avalon Bay Princeton does not have a contract in evidence. A call-in sheet indicates Brown was required to drive an RMP to Avalon Bay on February 5, 2015, but the plaintiffs failed to prove this requirement for other days. The court awarded Brown $7,850 for unpaid minimum wages and overtime for travel to RMP sites, plus $2,210 in prejudgment interest.
Jimmy Butler worked at EPIC from November 2016 to December 2017, asserting he drove to Restaurant Depot, Avalon Bay, and Livingston Builder. The damages claim only includes Avalon Bay and Livingston Builder, but Avalon Bay is not listed as an RMP site, denying him recovery for travel there. The court found Butler's claim regarding the Livingston Builder site unconvincing, as no contract was provided and his testimony about using the EPIC vehicle for patrolling was not credible. Consequently, the court did not award any recovery to Butler.
Shakiema Cadora worked for EPIC from June 2014 until December 2015, but further details about her claims are not provided in the excerpt.
Cadora worked at Floyd Bennett Field for approximately 79 weeks as a security guard for RAAD Construction under EPIC. The contract between EPIC and RAAD does not mandate a vehicle with a Radio Motor Patrol (RMP). Plaintiffs' claim that an RMP was required is based on EPIC's Cullen's trial testimony, which referenced an October 1, 2015 call-in sheet related to different guards, not Cadora. A separate call-in sheet for Cadora on the same date specifies her role without mentioning an RMP. The Court finds Cadora's credibility lacking, particularly as she testified she drove daily to the site but acknowledged that some colleagues took the bus. Additionally, her earlier declaration suggests she did not drive every day. Consequently, the Court concludes that Plaintiffs failed to demonstrate Cadora's need to use an RMP and denies her any recovery.
Sharon Carr worked for EPIC from October to December 2013 at Garden State Plaza and Seagirt Beach. Garden State Plaza is confirmed as an RMP site, while the Dutra site lacks a contract but is acknowledged as an RMP site by Defendants. Carr is awarded $1,040.00 for unpaid minimum wages and overtime for travel to RMP sites, plus $495.00 in prejudgment interest.
Roger David was employed by EPIC from January 2014 to September 2016 and worked at several sites, including Selby Transportation, Kennedy Catholic High School, and Big Apple Circus, all of which are RMP sites. Although the contract for Rosenthal Jewish is not classified as an RMP site, an EPIC call-in sheet from April 30, 2015 indicates David was required to drive an RMP on that date. However, the Court finds insufficient evidence to show he needed to drive an RMP to this site on other occasions. There is no contract for the Phyliss Dodge site, and additional evidence presented does not substantiate the Plaintiffs' claims regarding David's requirement to use an RMP consistently.
David was required to drive an RMP to the Phyliss Dodge site on March 27, 2016, as evidenced by the Call In Sheet (Defs. Ex. JJJ, at 22974), but the Plaintiffs did not prove that he was required to do so on other occasions. David's trial testimony indicated that he did not have to patrol the Phylliss Dodge area in the Epic vehicle. He seeks damages under the FLSA, and the Court awards him $1,285.00 for unpaid overtime related to travel to RMP sites, plus $90.00 in prejudgment interest.
Junior Etienne worked for EPIC for three weeks in February 2013 at a beach site in Far Rockaway, which is not an RMP site. He seeks $56.25 in damages, but the Court denies recovery since he did not travel to an RMP site.
James Foster worked at EPIC from June 2013 to August 2014 as a field manager and security guard. He requests damages for unpaid overtime related to the Ray Catena dealership, an RMP site, and the Court awards him $1,190.00, plus $544.00 in prejudgment interest.
Michael Howie was employed in September 2014 at a restaurant construction site, which is an RMP site. He seeks $47.25 in damages, and the Court awards him $48.00 for unpaid overtime and $5.00 in prejudgment interest.
Michael Hurst worked at EPIC from October 2014 to mid-December 2016 at various sites, including some RMP sites. The Court confirms that Northstar, Ardsley Country Club, Spartan Race, and Yankee Clipper are RMP sites, while Jewish Child Care Association and Red White and Blue are not. The validity of Avalon Bay sites as RMP sites is disputed, based on call-in sheets presented by the Plaintiffs.
Avalon Bay Watchung's call-in sheet from June 13, 2015, indicates that Hurst was required to drive a RMP to the site on that date, but Plaintiffs failed to prove he was required to do so on other days. Similarly, a call-in sheet for Avalon Bay Bloomfield on November 21, 2015, shows Hurst was required to drive a RMP to that site, but again, Plaintiffs did not demonstrate this requirement for other days. Hurst is awarded $5,400 for unpaid minimum wages and overtime for travel to RMP sites, along with $350 in prejudgment interest.
Taquesha Lawyer, employed at EPIC for about eighteen weeks, is awarded $2,636 for unpaid minimum wages and overtime related to travel to the Ardsley Country Club RMP site, plus $242 in prejudgment interest.
Princess Logan-Williams, who worked at EPIC from October 2013 to April 2014 across several RMP sites, is awarded $2,980 for unpaid minimum wages and overtime for her travel to these sites, with $1,367 in prejudgment interest.
Deneice Martin, employed briefly at EPIC, is awarded $31 for unpaid minimum wages for travel to RMP sites, alongside $14 in prejudgment interest.
Michael Mitchell, who worked solely at Forest Hills Gardens, seeks $405 in damages. Although Forest Hills Gardens was an RMP site, there was an EPIC vehicle on site, and Mitchell's accounts of his travel to the site conflicted during testimony, complicating his claim for damages.
Mitchell is deemed not credible due to contradictions in his testimony compared to his affidavit. The Court concluded that because EPIC had a vehicle on-site, security guards, including Mitchell, were not owed compensation for travel time to the Forest Hill Gardens site. Michael Moulton, who worked for EPIC from April 2015 to March 2016, was assigned to several sites, but only two required a vehicle. He is awarded $241.00 for unpaid overtime related to travel to RMP sites, plus $20.00 in prejudgment interest. Jonathan Reece, employed from 2009 to October 2013, worked at both RMP and non-RMP sites. The Court found no evidence that he was required to drive an RMP vehicle to the Jacksonville Chapel site, leading to a denial of damages for that travel. Reece is awarded $1,890.00 for unpaid minimum wages and overtime related to the Brickens Construction RMP site, along with $1,450.00 in prejudgment interest. Warren Richardson, who worked at Deepdale Gardens, testified that although an EPIC vehicle was on-site, he was not required to drive one there. Consequently, he is denied any recovery. Israel Rivera is seeking damages for travel time to RMP sites, the specifics of which are not fully detailed in the excerpt.
Rivera worked at various sites, including Hylan Datacom, Northstar, and Avalon Bay Hackensack, with additional claims regarding JCCA, Red Lobster, Avalon Bay Edgewater, Avalon Bay Princeton, RAAD, and P. Judge. Sons. The court determined that JCCA and RAAD are not RMP sites. The plaintiffs failed to prove that Red Lobster is an RMP site, despite referencing a call-in sheet that does not mention it. Evidence for Avalon Bay Edgewater and Avalon Bay Princeton also did not establish them as RMP sites, as the relevant documents did not indicate a daily requirement for an RMP. No contract evidence was presented for P. Judge. Sons, and similarly, the call-in sheet did not confirm a daily RMP requirement. Consequently, the court found that the plaintiffs did not meet their burden of proof for these sites.
The court awarded Rivera $3,600 for unpaid minimum wages and overtime related to travel to RMP sites, plus $900 in prejudgment interest. Winston Synaker was awarded $180 for unpaid overtime and $20 in prejudgment interest based on his work at an RMP site, which the defendants acknowledged. Saul Veliz was granted $2,550 for unpaid overtime and $1,300 in prejudgment interest for travel to Judge Organization and Crystal Point, both confirmed as RMP sites. Jose Vicent, who worked at EPIC from 2006 to 2016 and also traveled to various sites, sought damages under the FLSA, but specific details of his award were not provided in the excerpt.
Vicent is seeking damages for travel time to multiple worksites, including Northstar, US Pipeline, Avalon Bay Watchung, Avalon Bay Vauxhall Road, RAAD, JCCA, and Ardsley Country Club. Contracts indicate that Northstar, US Pipeline, and Ardsley Country Club were recognized as RMP sites, while the JCCA site was not classified as such. Vicent admitted during cross-examination that he did not need the company vehicle at JCCA, as he could park and perform duties in a guard booth, and he would have used his personal vehicle if available. The EPIC contract with RAAD does not require an RMP designation, and the court ruled it was not an RMP site. For Avalon Bay Watchung, Vicent took the EPIC vehicle due to distance, not due to a requirement from EPIC. Although Vicent claimed Avalon Bay Vauxhall Road was an RMP site based on a call-in sheet from November 1, 2015, the court found insufficient evidence to prove that it was required as an RMP site daily. Ultimately, Vicent is awarded $5,290 for unpaid minimum wages and overtime for travel to RMP sites, plus $350 in prejudgment interest.
Walker, who worked at EPIC from June to August 2015, is awarded $1,505 for unpaid minimum wages and overtime for travel to four sites acknowledged as RMP sites by the defendants. David Williams, who worked briefly at EPIC, sought damages for work at Daytop Village, which was confirmed as a non-RMP site. Williams was not entitled to recovery as his assignment did not require vehicle use according to the instructions provided by EPIC, and he chose to drive to the site due to transportation issues in the area post-Hurricane Sandy. Samuel Wright worked for EPIC from March 2010 until December 2016 but no claims or damages regarding his assignments were detailed in this excerpt.
Plaintiffs identified several sites as RMP sites, including Judge Organization, Jacksonville Chapel, Avalon Bay Watchung, Avalon Bay Princeton, Ardsley Country Club, and Whiting-Turner. The Defendants acknowledged Judge Organization, Ardsley Country Club, and Whiting-Turner as RMP sites, but the Court found that Plaintiffs failed to prove Jacksonville Chapel, Avalon Bay Watchung, and Avalon Bay Princeton were RMP sites. The Court awarded $29,000 to Samuel Wright for unpaid minimum wages and overtime related to travel to RMP sites, along with $10,583 in prejudgment interest. The Court granted the Plaintiffs' motion for leave to file a Second Amended Complaint and awarded damages and prejudgment interest to various Plaintiffs, totaling specified amounts for each individual, while declining to award liquidated damages under the FLSA or NYLL. It ruled that Defendant Falk is not an employer under these laws and thus bears no liability. Additionally, the Court allowed Plaintiffs fourteen days to apply for attorneys' fees and costs. The claims of several opt-in Plaintiffs were dismissed, and a total of 23 individuals' claims were ultimately decided in this Opinion and Order.
Plaintiffs did not seek class certification under Federal Rule of Civil Procedure 23, leading to the Joint Pretrial Order from October 19, 2018, which confirmed that New York Labor Law (NYLL) claims were asserted solely for the named Plaintiffs: Williams, Brown, and Walker. The opt-in Plaintiffs mentioned in a subsequent motion do not completely overlap with those in earlier motions, with the proposed Second Amended Complaint (SAC) adding Junior Etienne and Deniece Martin as named Plaintiffs, while omitting Vicent. Relevant to this situation are Federal Rules 20 and 21, which allow for the joining of parties and adding of plaintiffs in an action based on shared legal questions or facts. Case law supports that opt-in Plaintiffs can recover under NYLL even without class certification, referencing Hernandez v. NJK Contractors, Inc. and Hicks v. T.L. Cannon Corp., which highlighted the permissibility of adding state law claims based on the language of consent forms. Additionally, it is established that opt-in Plaintiffs should have the same rights as named Plaintiffs to have related claims adjudicated in the same forum, as affirmed in Ansoumana v. Gristede's Operating Corp. Testimony indicated that while EPIC supervisors occasionally drove vehicles to sites instead of security guards, this was rare. A policy change regarding employee transportation to worksites was implemented due to the litigation, as EPIC previously mandated that employees arrange their own transport. Compensated travel time was recorded as "TT/Misc." on payroll records.
Cullen testified that driving time for security guards was not documented outside of VURs. Falk was involved in authorizing Plaintiff David Williams to use an EPIC vehicle for commuting to his worksite, a decision influenced by Hurricane Sandy's damage, which hindered public transportation access. Williams noted that he never paid for gas out of pocket, as EPIC had an account with a local gas station for charging fuel. The court confirmed subject matter jurisdiction under 28 U.S.C. § 1331 and the Fair Labor Standards Act (FLSA), with no dispute regarding jurisdictional criteria. The court also asserted supplemental jurisdiction over state law claims under 28 U.S.C. § 1367(a). The Portal-to-Portal Act, amending the FLSA in 1947, clarifies non-compensable activities, establishing that travel time for employees driving an employer's vehicle to work is generally not compensable, except in specific cases like Deepdale and Forest Hill Gardens, where an EPIC vehicle was permanently stationed. EPIC's argument that Plaintiffs were not transporting equipment was countered, as the RMP qualifies as equipment. Plaintiffs challenged the applicability of Contrera, claiming a substantive provision of the New York Labor Law (NYLL) allows recovery for unpaid wages, specifically citing Section 193, which prohibits wage deductions but does not cover unpaid wages. The court referenced O'Grady v. BlueCrest Capital Management to emphasize that Section 193 pertains to deductions rather than unpaid wages. On December 5, 2018, certain Plaintiffs submitted affidavits following direct examinations, with additional submissions made on December 6, along with Questionnaire Declarations from many Plaintiffs, which were identified by surname for citation.
The "Damages Spreadsheet," submitted by Plaintiffs on February 15, 2019, details each Plaintiff's work sites, hours worked (including travel time), and wage information. Defendants responded with objections and corrections on February 20, 2019. Employers are required to maintain accurate records of wages and hours, and if such records are lacking, employees may establish their claims through reasonable estimates based on memory. The spreadsheet includes multiple work sites, denoted by city names, such as Avalon Bay Princeton. Specific instances of credited travel time are noted, including for Brown and David. Testimony from various individuals, including Cadora and Etienne, provides context to payroll records and site responsibilities, with some discrepancies in statements regarding vehicle use and duties. Hurst's testimony indicates he worked at multiple Avalon Bay sites and sometimes used public transport. The Ancor worksite is identified as Joe's Crab Shack in the spreadsheet.
On January 10, 2015, a call-in sheet for JCCA indicated that Israel Rivera drove a radio motor patrol (RMP) to that site, but it does not imply that Hurst was required to do so. The Court has acknowledged travel time for Hurst on specific dates to various Avalon Bay sites. Defendants claimed that Lawyer was terminated for theft, but this accusation does not justify withholding compensation owed under the Fair Labor Standards Act (FLSA). The Damages Spreadsheet identifies Russo Development as a site but notes that Forest Hill Gardens was not considered an RMP site, as an RMP was merely stored there. Rivera’s travel time to JCCA on January 10, 2015, and other Avalon Bay locations on specified dates has been credited by the Court. Vicent's testimony regarding his extensive experience at multiple sites was deemed credible, although he did not seek compensation for travel between headquarters and certain non-RMP sites. Williams testified about transporting another EPIC guard, but his account was found inconsistent and not credible, especially when compared to his Vehicle Use Reports. Wright, unable to testify due to health issues, had his Offer of Proof accepted by Defendants. The absence of a Plaintiff's name in the referenced chart indicates no compensation is awarded to that individual.
