Workers Land Collective Cert. In Recruitment Agency OT Suit

A large group of employees claiming that the recruiting agencies they worked for instituted pay practices depriving them of overtime pay, have secured collective certification in their lawsuit filed in New York federal court.

U.S. District Judge Vernon S. Broderick granted the employees conditional certification Tuesday in their suit against nonprofit recruiting agencies Fedcap Rehabilitation Services Inc. and Wildcat Service Corporation. The employees alleged in the suit that the nonprofits rounded down the time they worked to the nearest hour, causing overtime violations.

Judge Broderick said the evidence provided so far — such as timesheets and testimony from other workers — demonstrates other employees were possibly harmed by the alleged transgressions, justifying a collective action.

"Because I find plaintiff has met his modest burden of demonstrating that non-managerial staff at Fedcap and Wildcat are similarly situated with respect to their overtime claim, plaintiff's motion for conditional collective certification is granted," Judge Broderick said.

The decision stems from a lawsuit Harold King filed in February 2020 against Fedcap and Wildcat, which previously placed King into laborer jobs for third-party companies. The nonprofits specifically find jobs for those who were involved in the criminal justice system or who receive public assistance, according to Judge Broderick's order.

King claimed in the underlying complaint that Fedcap and Wildcat required employees to work past their scheduled shifts, but employees were not paid for this time because the nonprofits would round time worked down to the nearest hour. He also said Fedcap and Wildcat would deduct an hour-long meal break from workers' pay, even when no meal breaks were taken.

And because employees typically worked 40-hour weeks, these policies deprived employees of overtime owed to them in violation of the Fair Labor Standards Act, he said.

In his request for conditional certification filed in October, King provided the court with names of employees he said he regularly spoke with about the wage violations. He provided time sheets showing that hours worked were only recorded in whole numbers, a "suspicious uniformity," King said, which demonstrates that time worked was rounded down to the nearest hour.

Fedcap and Wildcat pushed back that King cannot prove he is similarly situated to the other employees and that each collective member's claims will require "significant individualized proof," according to a November motion the nonprofits filed in opposition to the request for certification.

Judge Broderick disagreed with the nonprofits in his certification order. He said the evidence provided shows that the alleged violations took place at four different work locations, which proves that the policies had a uniform effect.

The judge did raise concerns about King's claim in his motion for conditional certification that he and other employees were not properly compensated when traveling to different sites for work.

First, Judge Broderick said this claim was not included in King's most recent amended complaint. Second, King has never said that he himself worked at multiple work sites or had to travel to them. While another employee's declaration submitted to the court detailed the experience of traveling to work sites without pay, this was not King's experience, therefore he cannot show the class was similarly situated on this claim, Judge Broderick said.

This issue does not detract from the legitimacy of the overtime claims, Judge Broderick said, so the collective is still able to gain collective certification. He said the collective should include all current and former nonexempt employees of Fedcap and Wildcat who were contracted to work for other companies at any time since Feb. 28, 2014.

The nonprofits had previously attempted to force a settlement of King's lawsuit before he was awarded conditional certification. The agencies filed a motion to enforce a $10,000 settlement that would resolve the case, a deal King said he did not agree to, prompting his attorneys to file sanctions against the nonprofits.

Judge Broderick ultimately dismissed both the settlement motion and the sanctions in September.

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