United States District Court, D. Massachusetts
JOSE PINEDA, JOSE MONTENEGRO, MARCO LOPEZ, and JOSE HERNANDEZ, on behalf of themselves and all others similarly situated, Plaintiffs,
SKINNER SERVICES, INC., d/b/a SKINNER DEMOLITION, THOMAS SKINNER, DAVID SKINNER, ELBER DINIZ, and SANDRO SANTOS, Defendants.
MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR
CLASS CERTIFICATION, DEFENDANTS' MOTION TO DECERTIFY THE
FLSA COLLECTIVE, AND PLAINTIFFS' MOTION TO REFORM THE
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
case concerns claims by manual laborers against their
employer, Skinner Services, Inc. d/b/a Skinner Demolition
(“Skinner”), and supervisors Thomas Skinner,
David Skinner, Elber Diniz, and Sandro Santos, for violating
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201 et seq. and Massachusetts wage
September 6, 2017, this court conditionally certified a FLSA
collective action. After discovery, plaintiffs moved to
certify two classes as to their state-law claims pursuant to
Federal Rule of Civil Procedure 23. The first putative class,
the “Reporting Class, ” consists of individuals
who allege that they were not compensated for travel time
between Skinner's headquarters and jobsites. The second
putative class, the “Uniform Class, ” consists of
individuals who allege that their paychecks were subject to
mandatory deductions for uniform cleaning services.
Defendants have moved to decertify the FLSA collective
action, and plaintiffs have further moved to reform the FLSA
action as to the reporting and travel claims to exclude a
group of laborers living in or around Boston, who would
typically report directly to Boston-area jobsites. For the
following reasons, plaintiffs' motion for class
certification will be granted, defendants' motion to
decertify the FLSA collective action will be denied, and
plaintiffs' motion to reform the collective action will
following facts are as set forth in the record. Because the
factual record is voluminous, some potentially relevant
matters have been omitted for the sake of brevity.
Services, Inc. is a construction company with its principal
place of business in Avon, Massachusetts. (Am. Compl. ¶
15). It was founded by David Skinner, Thomas Skinner, and
Elber Diniz, all of whom are owners and managers in the
company. (Id. ¶ 17-39). Sandro Santos also
serves as a manager in the company. (Id.
performs demolition work on construction sites, primarily in
Massachusetts, although it also performs work elsewhere in
New England and in New York. (Id. ¶ 16).
plaintiffs Jose Pineda, Jose Montenegro, Marco Lopez, and
Jose Hernandez are manual laborers who have worked for
Skinner. (Id. ¶¶ 48-177). Most of the
employees of Skinner are Cape Verdean and many have limited
English language skills.
Reporting to the Yard
named and opt-in plaintiffs testified that, until February
2016, Skinner had a policy (the “Policy”)
requiring its laborers to report at approximately 5:45 a.m.
to the company's Avon headquarters (the
“Yard”), where they would receive jobsite
assignments. (Pl. Ex. E at 85:14-22; Pl. Ex. F at 51:16-53:4;
Pl. Ex. G at 61:8-63:13; Pl. Ex. H at 102:2-17; Pl. Ex. I at
39:19-40:7; Pl. Ex. J at 24:22-25:4; Pl. Ex. K at 19:24-20:2;
Pl. Ex. L at 55:6-9; Pl. Ex. M at 63:14-64:14). At least 36
opt-in plaintiffs have also attested to that requirement in
their answers to interrogatories. (See generally Pl.
Ex. N). Skinner employees who are not parties to this
litigation further attested in affidavits that such a Policy
existed. (ECF No. 61, Ex. B at 6; ECF No. 79, Ex. 1 at 5).
to plaintiffs, laborers were not informed about the location
of their respective jobsites by Diniz until they arrived at
the Yard, even if the laborers would be assigned to the same
worksite for multiple days in a row. (Pl. Ex. G at
68:16-69:11; Pl. Ex. H at 89:10-21; Pl. Ex. I at 17:20-18:3;
Pl. Ex. J at 19:23-20:6; Pl. Ex. L at 26:5-23; Pl. Ex. M at
18:15-24). Once at the Yard, laborers would also load tools
and equipment onto vehicles before departing. (Pl. Ex. E at
61:1-11; Pl. Ex. F at 39:15-18; Pl. Ex. G at 65:14-20; Pl.
Ex. H at 89:3-6; Pl. Ex. I at 14:18-16:17; Pl. Ex. J at
26:5-28:18; Pl. Ex. K at 31:11-32:11; Pl. Ex. L at
42:10-43:14; Pl. Ex. M at 36:12-24).
to plaintiffs, despite being required to first report to the
Yard and obtain tools there, laborers were not paid for their
time until they arrived at their jobsite for the day. (Pl.
Ex. F at 40:5-7; Pl. Ex. G at 61:16-62:16; Pl. Ex. H at
102:18-103:9; Pl. Ex. I at 19:12-19; Pl. Ex. J at 16:22-24;
Pl. Ex. K at 37:1-3; Pl. Ex. L at 48:16-24). After leaving
the jobsite, laborers would return to the Yard and unload
tools there-however, they were also not compensated for time
spent traveling back to the Yard. (Pl. Ex. E at 61:12-17; Pl.
Ex. G at 107:17-110:15; Pl. Ex. K at 32:4-13; Pl. Ex. Q at
53:1-10). Personnel who drove crew to jobsites would be
compensated for up to one hour's driving time, regardless
of the amount of time actually spent driving. (Pl. Ex. D at
162:23-163:16; Pl. Ex. E at 123:5-23).
laborers would report directly to a jobsite. That would occur
when the jobsite was close to the laborer's home or when
a supervisor ordered it. (Pl. Ex. G at 67:1-11; Pl. Ex. H at
96:2-13; Pl. Ex. L at 67:12-20; Pl. Ex. M at 17:2-19).
However, Skinner laborers living in or around Boston (the
“Boston Crew”) would by default report directly
to Boston-area jobsites. (Pl. Ex. Q at 14:18-20; Pl. Ex. T at
40:5-19). According to plaintiffs, Skinner exempted the
Boston Crew from the Yard-reporting requirement beginning in
2012. (Pl. Ex. U at 22:9-13).
January 2016, Skinner purchased vans to transport its
laborers to worksites. (Pl. Ex. G at 75:15-23). Soon
afterward, plaintiffs contend that Skinner changed the Policy
so that laborers would no longer have to report to the Yard
in the early morning-instead, supervisors would communicate
directly to laborers their daily assignments during the prior
evening. (Pl. Ex. G at 77:11-21; Pl. Ex. H at 106:18-107:12;
Pl. Ex. K at 25:8-19). A company memorandum dated February
26, 2016, confirms that employees could “use their own
their own transportation to and from customer
worksites.” (Pl. Ex. S). The memo also states that
Skinner would provide company transportation for employees
who wished to use it, but that those employees would have to
report to the Yard by 5:45 a.m. (Id.).
deny the existence of the Policy, contending that laborers
would only report to the Yard if summoned by their
supervisors. (Def. Ex. 3 at 139:21-142:12; Def. Ex. 4 at
102:7-14). They contend that supervisors had always notified
employees of their jobsite assignments the prior day and were
free to make their own travel arrangements. (Def. Ex. 5 at
38:22-41:9; Def. Ex. 6 at 141:3-143:16). Moreover, they
contend that laborers were simply given an option to meet at
the Yard to use company transportation to jobsites to save on
travel costs. (Def. Ex. 7 at 137:3-138:24). To the extent
that laborers were required to report to the Yard in the
morning or bring equipment back from the jobsite, defendants
contend that they were compensated for their time.
(Id. at 108:19:113:18; 142:8-19).
on August 2, 2013, Skinner contracted with a company called
Cintas to provide uniform-cleaning services. (Def. Ex. 9
¶ 5). Defendants contend that the program was voluntary
and that participating employees could cancel their
participation at any time. (Id. ¶ 6).
Participants were provided with eleven free polo shirts and
eleven free pairs of pants. (Id. ¶ 9). In
return, Skinner would deduct approximately one hour of pay
per week. (Id. ¶ 10; Pl. Ex. Z).
plaintiffs, however, testified that Skinner coerced them into
signing up for the Cintas uniform program by threatening to
withhold work from, or fire, employees who refused. (Pl. Ex.
E at 152:11-153:7; Pl. Ex. G at 158:2-19; Pl. Ex. H at
77:21-78:2). Another plaintiff testified that Skinner
supervisors strongly indicated that participation in the
Cintas program was mandatory. (Pl. Ex. M at 47:6-14;
52:9-11). Named plaintiff Jose Montenegro testified that
Santos forged his signature, forcing him to take the uniforms
and pay for the services. (Pl. Ex. H at 82:18-83:3).
Moreover, there is evidence that laborers' weekly
paychecks were deducted for the uniform service even if they
expressly refused to enroll in the program. (Compare
Pl. Ex. BB at 43-46 (showing that four individuals refused to
sign) with Pl. Ex. Z and AA (showing that Skinner
still deducted an hour's pay every week for those
weekly Cintas deductions appear to have varied from employee
to employee. For example, Jose Pineda was charged $14 per
week (Pl. Ex. BB at 1), Jose Hernandez was charged $7 per
week (id. at 3), Divino Dulco was charged $13 per
week (id. at 5), and Orlando Cruz was charged $15
per week (id. at 12). There appears to have been no
reason for the variance in weekly charges other than the
individual laborer's hourly pay.
Department of Labor Investigation
2013 and 2015, the Wage and Hour Division of the U.S.
Department of Labor investigated Skinner's wage
practices. (Pl. Reply Ex. F at 9). The primary investigator
submitted a ten-page report on April 17, 2017, concluding
that Skinner had violated Section 7 of the FLSA.
(Id. at 3). The report noted that “[t]he
violations did not appear on the records and thus had to be
reconstructed from employee interviews.”
(Id.). According to the report, Skinner mandated
the employees would show up at the shop in Avon, participate
in “pre-tour” activities such as loading the
truck with tools and other equipment and being assigned work,
and then ride to the job site on the company vehicle, all at
the instruction of the employer. All of this work was unpaid
for the purposes of hours worked as defined under 29 CFR
785.38 (Travel that is all in the day's work). The
employees would only begin getting paid upon arrival at the
job site, by punching in on a smart phone app called
“My Time Station.”
(Id.). The investigator estimated that Skinner owed
back wages of $836, 819.46 to 102 employees. (Id. at
5-6). Because Skinner failed to properly compensate its
laborers, the investigator further concluded that the company
kept inaccurate time records in violation of Section 11 of
the FLSA. (Id. at 6).
the primary investigator submitted her report, her
supervisor, Assistant District Director Carl Loria, prepared
a memorandum for the investigatory file. (Pl. Reply Ex. H).
In his memorandum, Loria summarized the positions of the
parties and expressed doubt as to whether there was a FLSA
violation because certain employees (namely, the Boston Crew)
would directly report to their jobsites. (Id.). He
further noted that the Massachusetts Attorney General's
office had “found no cause to continue an
investigation.” (Id.). However, in light of
the present litigation and a separate complaint before the
Equal Employment Opportunity Commission, Loria ended the
Department of Labor's investigation. (Id.).
complaint in this action was filed on November 2, 2016. An
amended complaint was filed on December 9, 2016.
amended complaint asserts eight claims. Counts One and Two,
respectively, assert claims that defendants failed to pay
plaintiffs wages at one-and-a-half-times their hourly rates
for overtime in violation of 29 U.S.C. § 207, and the
Massachusetts Overtime Law, Mass. Gen. Laws ch. 151,
§§ 1A & 1B. Counts Three and Four,
respectively, assert claims that defendants failed to pay
plaintiffs minimum wages for a significant number of hours
worked in violation of 29 U.S.C. § 206 and the
Massachusetts Minimum Wage Act, Mass. Gen. Laws ch. 151,
§§ 1 & 20. Count Five asserts a claim that
defendants failed to pay plaintiffs wages owed under the
Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148.
Counts Six, Seven, and Eight, respectively, assert claims
that defendants took adverse employment actions against
certain plaintiffs for taking part in this action in
violation of 29 U.S.C. § 215(a)(3), the Massachusetts
Wage Act, Mass. Gen. Laws ch. 149, § 148A, and the
Massachusetts Fair Wages Act, Mass. Gen. Laws ch. 151, §
19(5). The retaliation claims apply only to plaintiffs
Pineda, Lopez, and Hernandez. (Am. Compl. ¶¶
September 6, 2017, the Court conditionally certified a FLSA
collective action. Nine days later, the Court entered a
protective order prohibiting defendants from retaliating
against Skinner employees for participating or assisting in
this litigation, or otherwise engaging in conduct intended to
discourage employees from doing so.
the next year, the parties engaged in multiple discovery
disputes requiring court intervention. On August 24, 2018,
defendants terminated the employment of opt-in plaintiff
Manuel Goncalves. Plaintiffs' counsel subsequently filed
a motion to hold defendants in civil contempt of the
Court's September 15, 2017 protective order. A three-day
evidentiary hearing was held on October 26, November 7, and
November 13, 2018, during which the Court heard the testimony
of multiple witnesses. At the conclusion of the hearing, the
Court found by clear and convincing evidence that
Goncalves's termination was motivated at least in part by
his participation in this litigation. (Nov. 13, 2018 Tr. at
22:10-14). The Court also noted that the testimony of
defendant Thomas Skinner “had a variety of
inconsistencies and some illogical aspects to it.”
(Id. at 23:17-21). Accordingly, on December 10,
2018, the Court awarded front and back pay and reasonable
attorneys' fees related to the bringing of the contempt
motion to Goncalves. Defendants have filed an interlocutory
appeal of that order with the First Circuit.
subsequently moved to certify the Reporting and Uniform
Classes pursuant to Rule 23. Defendants cross-moved to
decertify the collective action, and plaintiffs moved to
reform the FLSA collective to exclude the Boston Crew as to
the reporting and travel claims.
courts have held that class actions may not be brought under
the FLSA. See, e.g., Trezvant v. Fidelity
Emp'r Servs. Corp., 434 F.Supp.2d 40, 57 (D. Mass.
2006). As the Eleventh Circuit explained, Congress intended
that suits to vindicate FLSA rights be brought as collective
actions under 29 U.S.C. § 216(b). See Cameron-Grant
v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1247-48
(11th Cir. 2003). “Unlike . . . Rule 23 class actions,
FLSA collective actions require similarly situated employees
to affirmatively opt-in and be bound by any judgment.”
Pike v. New Generation Donuts, LLC, 2016 WL 707361,
at *3 (D. Mass. Feb. 20, 2016) (quotation marks and citations
courts “have developed two methods for determining
whether potential plaintiffs are ‘similarly
situated' for purposes of class certification under
[Section] 216(b).” Kane v. Gage Merch.
Servs., Inc., 138 F.Supp.2d 212, 214 (D. Mass. 2001).
Some have followed “an approach coextensive with the
requirements of class certification under [Rule 23].”
Id. (citing Mooney v. Aramco Servs. Co., 54
F.3d 1207, 1213-14 (5th Cir. 1995)). Others, including most
district courts in the First Circuit, have followed “a
‘two-step' approach involving notification to
potential class members of the representative action followed
by a final ‘similarly situated' determination after
discovery is complete.” Id. At the second
step, courts have considered various factors, including:
1) the disparate factual and employment settings-e.g. whether
plaintiffs were employed in the same corporate department,
division, and location; 2) the various defenses available to
defendant which appear to be individual to each ...