The U.S. District Court for the District of Massachusetts has granted class certification of claims for unpaid straight time and overtime wages brought by construction/drywall employees.

United States District Court of Massachusetts

SUMMARY: (court decision – opens in PDF)

“In this class action, project workers Jose C. Ruiz (‘J.R.’), Cruz Eduardo Ruiz (‘C.R.’) and Lukasz Zajkowski (‘Zajkowski’) (collectively, and together with other workers, the ‘Project Workers’) sue NEI General Contracting, Inc. (‘NEI’), Delta Drywall and Framing LLC (‘Delta’), Josef Rettman (‘Rettman’), and David Villanueva (‘Villanueva’) (collectively, the ‘Contractors’) alleging underpaid overtime, unpaid wages, and retaliatory termination. … The Project Workers now move to certify three overlapping classes based on their three claims against the Contractors.

“The Contractors oppose all three subclasses. They argue first that the issue of who was the employer of the Project Workers is too fact intensive to be dealt with in a class action. The Contractors then argue that all three subclasses fail to meet the commonality requirement because there were changes in who managed the Project Workers and which Project Workers were present when these claims arose. Finally, the Contractors argue that Zajkowski is not an adequate representative of the class both because, as foreman, his interests were contradictory, and because he actually got paid his overtime.
“The Court certifies the Overtime Wages Class and the Unpaid Wages Class but denies certification of the Retaliation Class. The Court holds that the employment issue does not preclude class certification and that, with the classes confined to a narrower time-period, the issue of who employed the Project Workers is susceptible to class-wide proof. Moreover, the Court finds that Zajkowski is an adequate representative based on the effort he has put into the case and his similar facts and injuries to the other members.

“The Court narrows both the Overtime Wages and Unpaid Wages Classes in order to avoid fail-safe classes and commonality issues. The Retaliation Class, refined or not, fails to meet the requirements of Federal Rules of Civil Procedure (‘Rules’) 23(a) and 23(b). …

“The Court, therefore, denies certification of the Retaliation Class. The Court holds that the Retaliation Class, when defined appropriately, lacks numerosity, and when given the current indefinite definition lacks the other class requirements. Even so, it is apparent that at least some of the Project Workers have grounds to bring a claim of retaliation. … The Project Workers do not, however, qualify to bring this action as a class. …

“Accordingly, the Court certifies the subclass for overtime with the following refinements to the class definition: ‘all employees who worked in excess of 40 hours in one or more weeks (‘Overtime Hours’) on the Mary D. Stone Project … under foreman Lukasz Zajkowski between June 21, 2021, through August 20, 2021 (Phase II).’ …

“Accordingly, the Court certifies the subclass for Unpaid Wages with the following refinements to the class definition: ‘all employees who worked on the Mary D. Stone Project … under foreman Lukasz Zajkowski between June 21, 2021, through August 20, 2021 (Phase II).’ …

“Therefore, in consideration of the refined class definitions, the Court grants the Motion to Certify Class, ECF No. 64, as to the following two subclasses: the Overtime Wages Class and the Unpaid Wages Class, since they satisfy the requirements of Rule 23(a) and 23(b). The Court denies the Motion to Certify Class, ECF No. 64, as to the Retaliation Class subclass because it lacks either numerosity or commonality, depending on how the class is defined, and so the claims under that subclass are better suited for individual adjudication and joinder.”