Judge grants Conditional Certification of Collective Action in the Southern District of New York

Brininger v. Fred A. Cook, Jr., Inc., and Brian F. Cook, individually,
Civil Case No.: 18-cv-4579(CS)

On May 23, 2018, Lead Plaintiff Mr. Brininger, on behalf of himself and those similarly situated, filed a collective action lawsuit against Fred A. Cook, Jr., Inc., and Brian F. Cook, individually, (collectively as “Defendants”), alleging debilitating violations of the Fair Labor Standards Act (“FLSA”), the New York Labor Law (“NYLL”), and the New York Comp. Codes, Rules, and Regulations (“NYCCRR”), including the failure of Defendants to compensate Plaintiff for overtime provisions. The factual allegations of the case are as follows:

• Defendant Fred A. Cook, Jr., Inc., is a company that provides sanitary sewer, data collection, septic, railroad, and water plant services;
• In or around July 2016, Plaintiff commenced his employment with Defendants as a vactor operator/foreman and laborer and remains employed to date;
• As a vactor operator/foreman and laborer, Plaintiff primary duties consist of traveling to Defendants’ clients’ locations and operating the vactor vacuum truck, which excavates products and waste from sewers;
• Plaintiff works five days per week, arriving at Defendants’ location anytime between 5:30 a.m. and 7:00 a.m., and returning to Defendants’ location anytime between 3:00 p.m. and 7:00 p.m., depending on the amount of the day’s work and traffic;
• Although Defendants require Plaintiff to travel to and from certain work sites, Defendants failed and continue to fail to pay Plaintiff at any rate of pay for up to three hours of time per workday that Plaintiff spends traveling, for a total of up to fifteen hours per week, all of which are hours that he works in excess of forty in a week;

Straight-time rate is particularly important because when a non-exempt employee works over forty hours per week, the employer is required by law to pay the employee at 1.5x his/her straight-time rate of pay for each hour worked in excess of forty.  The additional pay is called the overtime rate. By failing to compensate Plaintiff Brininger for these hours, Defendants violated rights guaranteed to Plaintiff by the overtime provisions of the FLSA, the NYLL, and the NYCCRR.

Finally, the NYLL requires that employers furnish employees with wage statements containing specific categories of accurate information on each payday.  However, on each occasion when Defendant paid Plaintiff, Defendants failed to provide Plaintiff with any wage statements, let alone statements that accurately listed Plaintiff’s actual hours worked for that workweek or overtime rates of pay for all hours worked.   Furthermore, after Mr. Brininger complained to Defendant Cook about Defendants’ failure to properly pay him overtime wages, Defendants retaliated by suspending Plaintiff without pay from on or about August 18, 2017 until on or about September 13, 2017. Accordingly, on behalf of himself only, Plaintiff brings retaliation claims under the FLSA and the NYLL.

Certification of Collective Action

On January 14, 2019, United States District Judge Cathy Seibel, granted an order for conditional certification of a collective action against Fred A. Cook, Jr., Inc., and Brian F. Cook. Judge Seibel authorized that a collective action notice be sent to current and former employees, who worked at any time from January 11, 2016 to the present as a vactor operator/foreman and/or laborer.   By filing the collective action notice, current and former employees will become part of the case and eligible to receive money damages if they were not paid properly as the Plaintiffs in this case allege.

If you or a person you know worked for the Defendants named in the lawsuit during the time period of  January 11, 2016 – present or has information that may be relevant to this case, contact Borrelli & Associates, P.L.L.C. as soon as possible through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com or any of our phone numbers: (516) 248-5550, (516) ABOGADO, and (212) 679-5000.

READ:COURT AUTHORIZED NOTICE AND OPT-IN