The Dugger Law Firm, PLLC and Shulman Kessler LLP File Overtime and Recordkeeping Class and Collective Action On Behalf of Premier Home Health Care Services, Inc.’s New York In-House Staff

Money Drop;.jpeg

On November 20, 2017, Plaintiffs Margarita Gonzalez, Yudelky Contreras, Carmen Alvarez, and Pura Germosen filed a class and collective action complaint in New York federal court against Premier Home Health Care Services, Inc. (a/k/a Premier Home Health Care, Inc.).  The complaint alleges overtime violations of the Fair Labor Standards Act and New York Labor Law, as well as recordkeeping violations regarding required wage rate notices and wage statements under the NYLL.

Plaintiffs seek payment of unpaid overtime wages and associated liquidated damages, statutory damages for the wage rate notice and wage statement violations, and injunctive and declaratory relief.   

Plaintiffs also seek: (1) conditional certification of a FLSA collective consisting of in-house Premier staff employed at any time since November 20, 2014; and (2) Rule 23 class certification of a class of in-house Premier staff employed at any time since November 20, 2011.

The case is Gonzalez v. Premier Home Health Care Services, Inc., No. 17 Civ. 9063, in the United States District Court for the Southern District of New York. 

For more information contact Cyrus E. Dugger at cd@theduggerlawfirm.com or (646) 560-3208.

Court Grants Conditional Certification in Fit Model FLSA Collective Action Against MSA Models, Owner Susan Levine, and COO William Ivers

On September 26, 2014, The Dugger Law Firm, PLLC, on behalf of Plaintiff Eva Agerbrink, and similarly situated fit models, filed a class and collective action complaint in New York federal court against modeling agency MSA Models and MSA Models owner Susan Levine.

“Fit models” serve as human mannequins for the apparel industry during the clothing design process.

On February 2, 2016, the Honorable James C. Francis granted Plaintiff’s motion for conditional certification and court-authorized notice for a collective of all “exclusive” (i.e. exclusively signed) MSA fit models who signed with MSA Models between September 15, 2012 and the present.  Specifically, the Court authorized: (1) a sixty-day opt-in period; (2) the transmission of notice to potential members of the collective via U.S. mail and email; (3) a reminder notice to be sent twenty-one days prior to the close of the opt-in period; and (4) the filing of consent forms by Plaintiff’s counsel. 

The Court further ordered MSA Models to produce a computer readable list for all “exclusive” MSA fit models signed with MSA since September 15, 2012, containing their: (1) full names, (2) last known addresses, (3) phone numbers, (4) e-mail addresses, and (5) dates of employment and of their exclusive fit modeling contract term, including renewal periods, to permit Plaintiff’s counsel to disseminate notice of the lawsuit to potential members of the collective.

A copy of the decision is available here.

Previously, on January 7, 2016, Judge Francis granted Plaintiff’s motion to add all types of MSA models (i.e. fashion, lifestyle, showroom) to the putative class, with respect to a new class claim of unjust enrichment arising from MSA’s alleged retention of its models’ earnings based on a contractual liquidated damages provision in MSA’s modeling contracts.  In the same decision, the Court granted Plaintiff’s request to add MSA Model’s Chief Operating Officer, William Ivers, as an individual Defendant.

The case is Agerbrink v. Model Service LLC d/b/a MSA Models, No. 14 Civ. 7841, in the United States District Court for the Southern District of New York.

 

165959324[1].jpg

The Face Modeling Competition Winner Devyn Abdullah Files Complaint Seeking Payment of Withheld Portion of Ulta Beauty Contract Award Against Direct Model Management, Inc. and Owner Mykola Webster

On April 21, 2015, The Dugger Law Firm, PLLC filed a federal complaint on behalf of Devyn Abdullah, the first winner of The Face television modeling competition, against her former modeling agency, Direct Model Management, Inc., as well as Direct owner and president Mykola Webster, and Direct head of finance Atiff Joseph, for violations of federal and state wage and hour laws, as well as breach of contract.  

The complaint alleges that Defendants misclassified Ms. Abdullah as an independent contractor in violation of the Fair Labor Standards Act and the New York Labor Law.

Among other violations, Ms. Abdullah alleges that Defendants withheld, and otherwise failed to pay her, at least $13,000 of her wages from The Face competition award of a $50,000 contract with Ulta Beauty

The complaint also alleges that Defendants failed to pay Ms. Abdullah for work with several additional modeling industry clients.

Ms. Abdullah seeks payment of minimum wages, payment of unpaid earned wages, liquidated damages with respect to minimum wages that were eventually paid but were not paid promptly, reimbursements for illegal deductions, additional associated liquidated damages, as well as damages for breach of contract and New York Labor Law recordkeeping violations.

The case is Abdullah v. Direct Model Management, Inc., et al., No. 15 Civ. 03100, in the United States District Court for the Southern District of New York.

For more information contact Cyrus E. Dugger at cd@theduggerlawfirm.com or (646) 560-3208.

Joe’s Crab Shack Managers Overcome Class Hurdles to Move Forward with Class Certification of Misclassification Case

A helpful overview from JDSupra that notes how the court addressed common class certification disputes issues is available here (excerpt below):

Although some of the plaintiffs could not accurately account for the exact amount of time spent performing non-exempt tasks, the court noted that “courts in overtime exemption cases must proceed through an analysis of the employer’s realistic expectations and classification of tasks rather than asking the employee to identify in retrospect whether, at a particular time, he or she was engaged in an exempt or nonexempt tasks.”  It stated that “[b]y refocusing its analysis on the policies and practices of the employer and the effect those policies and practices have on the putative class, as well as narrowing the class if appropriate, the trial court may in fact find class analysis a more efficient and effective means of resolving plaintiffs’ overtime claims.” (link)

The Dugger Law Firm, PLLC Files Independent Contractor Misclassification Class Action Against MSA Models and Susan Levine

On September 26, 2014, Eva Agerbrink filed a class and collective action complaint in New York federal court against modeling agency MSA Models and MSA Models owner Susan Levine.  The complaint alleges that MSA and Levine have misclassified their “fit models” as independent contractors in violation of the Fair Labor Standards Act and the New York Labor Law.  Ms. Agerbrink seeks payment of minimum wages, payment of unpaid earned wages, liquidated damages with respect to minimum wages that were eventually paid but were not paid promptly, reimbursements for illegal deductions, as well as additional associated liquidated damages. 

In addition, Ms. Agerbrink alleges that MSA and Levine are operating as an unlicensed employment agency in violation of New York General Business Law § 172, and therefore, cannot enforce their modeling employment agreement with respect to all, or a portion of, the “commissions” that MSA and Levine deduct from their fit models’ wages.  The complaint further alleges that MSA Models’ deductions for “commissions” are illegal wage deductions in violation of New York Labor Law § 193.

Ms. Agerbrink seeks certification of a class of all MSA fit models from September 2008 through the resolution of the lawsuit.  The case is Agerbrink v. Model Service LLC d/b/a MSA Models, No. 14 Civ. 7841, in the United States District Court for the Southern District of New York. 

Sixth Circuit: Collective Action Waiver Unenforceable Without Arbitration Agreement

As covered by Workforce:

"The 6th Circuit held that the waivers were invalid. It concluded that any agreement that deprives one of his or her rights under the FLSA is invalid. Because the waiver deprived the employees of their right to participate in the collective action, it was invalid.

The employer argued that the at-issue agreement does not deprive anyone of any rights, since each employee is free to pursue an individual claim against the company for FLSA violations. The court, however, was not persuaded. Instead, the court concluded that because each employee’s potential claim for unpaid overtime was relatively small, the only real opportunity to pursue the alleged FLSA violation was via a collective action.
'Requiring an employee to litigate on an individual basis grants the employer [a] competitive advantage…. And in cases where each individual claim is small, having to litigate on an individual basis would likely discourage the employee from bringing a claim for overtime wages.'
As the Killion court points out, this decision now creates a split of authority between the 6th other Circuits. The Killion court also pointed out, however, that every other circuit that has decided this issue in the employer’s favor has done so because the agreements also contained arbitration clauses; the agreement in this case lacked that mechanism. It will be interesting to follow if this employer pursues this matter to the Supreme Court, and if that Court is interested in this important issue, or if other circuits follow Killion’s lead in the non-arbitration context." (link)

I think this paragraph puts it perfectly:

"Because no arbitration agreement is present in the case before us, we find no countervailing federal policy that outweighs the policy articulated in the FLSA.  The rationale of Boaz is therefore controlling.  Boaz is based on the general principle of striking down restrictions on the employees’ FLSA rights that would have the effect of granting their employer an unfair advantage over its competitors.  Requiring an employee to litigate on an individual basis grants the employer the same type of competitive advantage as did shortening the period to bring a claim in Boaz.  And in cases where each individual claim is small, having to litigate on an individual basis would likely discourage the employee from bringing a claim for overtime wages.  Boaz therefore controls the result here where arbitration is not a part of the waiver provision" (link)

In summary, a thoughtful and helpful decision from the Sixth Circuit.

Of course, most employment agreements attempting to waive collective action rights will also include mandatory arbitration -- particularly after this decision.  Nonetheless, at least some, like the one in this case, clearly do not. 

At least plaintiff's counsel have one more stone to throw at the arbitration Goliath.

The decision is available here.



Jets Cheerleader Brings Minimum Wage Claim

It appears the Jets do not pay their cheerleaders in compliance with minimum wage laws:

"A former New York Jets cheerleader, alleging pay she received amounted to less than minimum wage and that her out-of-pocket expenses included $45 weekly for hair straightening required by the team, has filed a class action lawsuit against the team.

. . .

She says she was paid $150 per game – but not for others hours of required work – as a member of the New York Jets Flight Crew during the 2012 season. The suit is similar to others filed by cheerleaders against the Oakland Raiders, Cincinnati Bengals and Buffalo Bills." (link)

The Jets cheerleader alleges she was paid only $3.77 an hour for her work. 

The complaint is available here.