Judge grants Conditional Certification of Collective Action in the Southern District of New York
Aquino v. Joseph’s Auto Center, Inc., and Richard Carlos Bucalo, individually, Case No.: 18-cv-2009
As previously reported on this website, in Aquino v. Joseph’s Auto Center, Inc., and Carl Bucalo, individually Case No.: 18-cv-2009, on March 14, 2018, Plaintiff Aquino, on behalf of himself, individually, and on behalf of all others similarly-situated, filed a collective action lawsuit against Joseph’s Auto Center, Inc. and Carl Bucalo, individually, alleging deliberating violations of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”), including the failure of Defendants to compensate Plaintiffs for overtime wages. The claims of the case are referenced in our March 2018 blog post and are reviewed as follows:
- Mr. Aquino worked for Defendants, a Bronx auto body shop and its owner/Chief Executive Officer (“CEO”), as a paint mixer/car detailer from in or about September 2015 through on or about September 21, 2017;
- Throughout the entirety of his employment, Mr. Aquino was required to work: five days per week, generally from 8:00 am to 5:30 pm, with a thirty-minute break each day;
- Mr. Aquino worked a total of approximately forty-five hours per week throughout his employment with Defendants;
- Defendants failed to properly compensate him at the statutorily-required overtime rate of pay for any hour that he worked per week over forty hours.
- Defendants deliberately chose to pay Mr. Aquino a flat weekly salary (between $600 and $650) which was intended to cover only the first forty hours worked per week;
- Defendant Bucalo failed to pay Plaintiff his full weekly salary for four consecutive weeks prior to September 15, 2017 and retaliated by terminating him.
Defendants required Plaintiff to routinely work, and Plaintiff did in fact work, in excess of forty hours each week, but Defendants failed to compensate him at the statutorily required overtime rate for any hours that hey worked in a week in excess of forty. Instead, Defendants paid Plaintiff a flat weekly wage that operated to cover only the first forty hours that they worked per week, and thus, Defendants willfully failed to compensate Plaintiffs at any rate of pay, let alone at the statutorily-required overtime rate of one and one-half times their respective regular rates of pay, for all hours that they worked in excess of forty each week, in violation of the FLSA and the NYLL.
Certification of Collective Action
In this case, pursuant to the request of the Plaintiff, the Judge reviewed claims that the Plaintiff brought forward alleging that there are additional workers in the same “class” (performing the same or similar duties) whose rights have been violated. After reviewing the facts of this case, on April 19, 2019, the Honorable Judge Barbara Moses granted “conditional certification” allowing the case to proceed as a collective action enabling any current and former employees who were not paid properly to join the lawsuit and seek redress for Defendants’ failure to compensate them in accordance with the law.
If you or a person you know worked for the Defendants named in the lawsuit during the time period of January 1, 2016 – present or has information that may be relevant to this case, contact Borrelli & Associates, P.L.L.C. as soon as possible (516) 248-5550, (516) ABOGADO, and (212) 679-5000.
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