By Leeds Brown Law | September 28, 2018

Alleged Unpaid Overtime

Wage Class Certified Against Two Bros. Scrap Metal for Alleged Unpaid Overtime Violations

A Nassau County Judge authorized a class of laborers to proceed collectively against Two Brothers Scrap Metal, Inc., and Rocco Colucci, according to a Sept. 24, 2018 decision. In that decision, Hon. Jeffery S. Brown J.S.C., certified the case to proceed as a class action for alleged New York State Labor Law violations, including unpaid overtime and improper notice, on behalf of machine operators, laborers, factory workers, field workers, drivers, foremen, cutters, and other non-managerial positions who performed work from June 10, 2010 to the present.

According to Judge Brown, there are three common questions of law and fact in the case: (1) whether laborers were paid proper overtime compensation for all hours worked in excess of 40 hours in a given week, (2) whether Two Bros. Scrap Metal violated the notice provisions of Labor Law, and (3) whether Two Bros. Scrap Metal maintained complete and accurate records.

“All of these questions are capable of resolution on a class wide basis, and these common questions predominate over individual ones in this action. Defendants employed common pay notice and timekeeping practices for the named plaintiffs and putative class members,” according to Judge Brown’s decision. “The legality of defendants’ pay and record keeping practices, such as omitting hours from employees’ pay stubs and paying a flat rate per day, is a question common to the entire class.”

In the decision, the Court did not address the merits of the workers’ claims or Two Bros. Scrap Metal’s defenses. “The merits inquiry on a motion for class action certification is limited to whether on the surface there appears to be a cause of action.” The case will proceed through litigation as to the ultimate merits, as alleged in the complaint filed in June 2016, and workers will be represented by Leeds Brown Law, P.C., who is designated as class counsel according to the decision.

Judge Brown, in his decision, rejected Two Bros. Scrap Metal’s arguments that immigration status was relevant and discoverable in this, or any, wage and hour class action. “Contrary to defendants’ interpretation, New York courts are not ‘fractured’ on this issue, and have almost universally rejected the argument that immigration status is relevant to employees’ ability to recover unpaid wages or to serve as class representatives.”

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