Preview:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : : : v. : : S.C.C.P. PAINTING CONTRACTORS, INC., : et al. : : GIOVANNI ("HENRY") MONTOYA, et al.,

Civil No. CCB-07-455

MEMORANDUM Plaintiffs Giovanni Montoya, et. al. ("plaintiffs") have sued S.C.C.P. Painting Contractors, Inc. ("S.C.C.P.") for alleged violations of the Fair Labor Standards Act, including unpaid wages and overtime pay. The plaintiffs have filed a Motion for Conditional Class Certification, Issuance of Notice and an Order for Certain Discovery. They have also requested that the court order S.C.C.P. to produce the names and last known addresses for all individuals who currently perform or formerly performed painting and/or painting-related work for S.C.C.P. for the previous three years, and that the court approve plaintiffs' notice to those individuals by mail. Should S.C.C.P. be unable to produce a complete name and address list, plaintiffs request that the court approve their alternative notice plan. The issues have been fully briefed, and oral argument was heard on February 7, 2008. For the reasons articulated below, plaintiffs' request to proceed as a collective action will be granted, and the proposed alternative notice plan approved.

BACKGROUND

1

The plaintiffs have sued S.C.C.P. and Giovanni ("John") Sulmonte ("Mr. Sulmonte"), an officer of S.C.C.P., for violations of the Fair Labor Standards Act, breach of an oral employment contract, unjust enrichment, and violations of various Maryland, Virginia and District of Columbia wage and hour laws. Plaintiffs worked for S.C.C.P. as painters during various periods between December 2005 and April 2006, and claim that S.C.C.P. had a "scheme to deny payment of wages" that took four forms: employees1 routinely worked in excess of 40 hours a week, but were not paid overtime; employees were not paid for entire pay periods they had worked; employees were directed to work off the clock; and S.C.C.P. withheld wages, allegedly for tax purposes, which was not actually withheld for the IRS. The plaintiffs have moved to conditionally certify a class of "all individuals who are or have been employed by Defendants as non-exempt, hourly-paid employees for the three years immediately prior to the date of conditional certification." (Mot. Certify Class 13.) Attached to the motion for conditional class certification are a proposed notice plan (Ex. A) and a proposed alternative notice plan (Ex. B). The first notice plan is for notice by mail; it is intended to be mailed to the list of employees that plaintiffs have requested S.C.C.P. to produce. The second notice plan is broader: it involves posting the notice at 35 locations around the Washington metropolitan area, printing notices in three local Latino newspapers, radio advertisements on five local stations, and a posted notice on the Washington Lawyer's Committee for Civil Rights and Urban Affairs website. The total cost of the proposed alternative notice plan is estimated at $8,980.00.

S.C.C.P. asserts that its workers were self-employed independent contractors, rather than employees. This memorandum refers to those workers as "employees," but as discussed infra, the court declines to rule at this point as to their employment status. 2

1

ANALYSIS Conditional Class Certification Plaintiffs have filed this suit for unpaid wages and overtime pay pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C.

Download Giovanni Montoya v. S.C.C.P. Painting Contractors, Inc..pdf

Maryland Law