Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

De Leon v. Grade A Construction Inc.

United States District Court, W.D. Wisconsin

May 11, 2017

GABRIEL DE LEON, RAMON PENA, and JOSE LUIS RAMIREZ, Plaintiffs,
v.
GRADE A CONSTRUCTION INC., Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Plaintiffs Gabriel De Leon, Ramon Pena, and Jose Luis Ramirez allege that their former employer, defendant Grade A Construction Inc., failed to pay overtime, in violation of the Fair Labor Standards Act (FLSA) and Wisconsin law, and failed to pay the prevailing wage, in violation of Wisconsin law. Plaintiffs seek to represent two FLSA collective classes and two Rule 23 classes under Wisconsin wage and hour laws.

         Now plaintiffs move for conditional certification of their FLSA classes. Dkt. 30. Because plaintiffs have made the modest showing required to grant conditional certification and authorize notice to the classes, the court will grant the motion.

         FACTS

         When determining whether plaintiffs have demonstrated that they are entitled to conditional class certification, the court considers the complaint and the affidavits the parties have submitted. Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354, 357 (W.D. Wis. 2014). “Plaintiffs' materials are the proper focus at this preliminary stage, not defendants'. For the purposes of conditional certification, therefore, the court resolves any factual disputes in plaintiffs' favor.” Id. at 358 (citations omitted).

         Grade A directly employs workers (“official” employees) and staffs jobsites with workers from a staffing agency, EC Property Services, Inc. Grade A pays its official employees an hourly wage plus one paid half hour for lunch. The lunchbreak does not count towards the 40-hour-per-week overtime requirement. Thus, a standard work week for an official employee, including the paid lunch, is 42.5 hours. Employees, with Grade A's approval, may “bank” hours worked in excess of 42.5, to be paid out in future weeks when the employee does not work 42.5 hours. Grade A pays the EC Property Services workers on a “piece-rate” basis. A piece-rate compensation scale pays workers according to the number of measurable units or pieces they complete-not the number of hours they work.

         Grade A hired Ramirez as an official employee and, at certain points, banked his overtime hours. Plaintiffs have produced three other employees' timesheets that show that the employees worked more than 42.5 hours in certain weeks, yet Grade A paid the employees for 42.5 hours. This purportedly shows that other employees were banking their overtime hours, too.

         Grade A hired De Leon and Pena through EC Property Services to work on Grade A jobsites. The EC Property Services workers often worked at least 57 hours per week during some projects; however, Grade A paid EC Property Services (who, in turn, paid its employees) at the piece-rate level-even after the employees worked more than 42.5 hours.

         Plaintiffs allege that Grade A implemented company-wide policies and practices that resulted in lost overtime pay for both official and EC Property Services workers, in violation of the FLSA. For his part, Ramirez alleges that Grade A's banked hours policy violates the FLSA. Ramirez seeks to represent all employees that had their hours banked and lost overtime wages.

         De Leon and Pena seek to represent EC Property Services workers that did not receive overtime pay for their work on Grade A jobsites due to the piece-rate policy.

         ANALYSIS

         Plaintiffs move for conditional certification of two FLSA collective classes, pursuant to 29 U.S.C. § 216(b). Dkt. 30.

         A. Conditional certification

         Plaintiffs allege violations of the FLSA's overtime provisions. Such “[a]n action . . . may be maintained . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). FLSA collective actions are different than Rule 23 class actions: potential FLSA plaintiffs receive notice and an opportunity to opt in to the class rather than notice and an opportunity to opt out. Id.; Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010). “The conditional approval process is a mechanism used by district courts to establish whether potential plaintiffs in the FLSA collective action should be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.