Carpenters Advance Class Action for Lost Wages

 

By Roger S. Achille August 21, 2018
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​Under Maryland state laws, carpenters could move forward with a class action alleging failure to pay them at the carpenter rate for every hour worked and failure to pay certain fringe benefits for overtime work as required by an existing project labor agreement.

The defendant was a subcontractor on the construction of the MGM resort in Maryland and was subject to a project manual that established hourly rates and fringe-benefit payments for various worker classifications. The defendant initially placed all new employees in a provisional status, during which they were paid at the hourly rate for the type of work they performed. If an individual performed two hours of work as a laborer and six hours as a carpenter, that individual would be paid for two hours of work as a laborer and for six hours as a carpenter. Once the employee was approved for a permanent job title, the employee was paid at or above the corresponding rate for all work. If an individual had a permanent title of carpenter and performed two hours of work as a laborer and six as a carpenter, that employee would be paid for eight hours as a carpenter.

Although the defendant paid its employees overtime, the defendant did not pay fringe benefits for these hours. The defendant also distributed daily log sheets to supervisors with instructions to record the type of work performed by each employee and the duration of that work. Each day, employees were asked to sign the log and verify the accuracy of hours worked outside their normal classification. The plaintiffs alleged that the defendant regularly logged hours worked by carpenters as time worked as laborers and forced employees to sign documents stating that they had worked hours as laborers when in fact they had worked as carpenters. The plaintiffs further alleged that they were told by supervisors that they would not be paid if they did not sign the records and that they sometimes were forced to sign incomplete records.

[SHRM members-only toolkit: Determining Overtime Eligibility in the United States]

The plaintiffs identified approximately 1,600 employees who allegedly were not paid overtime fringe benefits and at least 388 employees who were classified as carpenters on the project. The plaintiffs sought certification of two classes: the overtime fringe-benefit class, of which the defendants did not contest the certification, and the carpenter class, consisting of all current and former employees who were employed by the defendant at the resort and performed carpentry work.

The court found the requirements of "ascertainability, numerosity, and adequacy" were satisfied with respect to the carpenter class, because the class consisted of every employee classified as a carpenter who could be identified from payroll records without significant administrative burden.

The defendant argued that the plaintiffs could not be considered typical of any class because they were paid at carpenter rates for almost all the hours they worked.

The court remarked, however, that the test for typicality is whether the facts relied on by the plaintiffs to prove their claims would also prove the claims of the absent class members, not whether they have suffered the same or greater damages than the average class member.

The defendant also contended that the plaintiffs did not show that it engaged in a pattern or practice of failing to pay carpenters the prevailing carpenter wage rate for every hour worked. Yet the court expressed that the claim that the provisional status policy was invalid was a common contention establishing commonality for the carpenter class. The court further commented that whether that policy extended beyond the provisional period presented a common question central to the class claims and was subject to common resolution. Whether such a policy was valid would predominate over individual fact issues, because its answer would necessarily resolve whether carpenters would be entitled to damages for every hour paid as laborers. Finding that the commonality requirement and the more stringent predominance requirement were satisfied, the court granted the certification of the carpenter class.

Amaya v. DGS Construction LLC, D. Md., No. TDC-16-3350 (July 10, 2018).

Professional Pointer: While collective bargaining agreements cannot waive or reduce Fair Labor Standards Act (FLSA) protections, nothing in the FLSA relieves employers from their contractual obligations under such bargaining agreements, including a higher wage, shorter workweek or higher overtime premium.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

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