McGlone v. Contract Callers, Inc.
49 F. Supp. 3d 364
S.D.N.Y.2014Background
- Plaintiffs are plumbers who worked for Contract Callers, Inc. (CCI) installing automatic meter-reading devices for the NYC DEP and allege unpaid "off-the-clock" work and unlawful meal-break deductions under the FLSA and NYLL.
- CCI time logs showed standardized shift times (initially 7:30–4:00, later 8:00–4:30) and recorded half-hour meal breaks; plaintiffs say they worked before/after those times and could not take bona fide meal breaks.
- Nineteen employees opted in to the conditionally certified FLSA collective; defendants moved to decertify and oppose parts of plaintiffs’ summary judgment motion; plaintiffs seek final certification and partial summary judgment on record accuracy and incentive-pay offset.
- Evidence (general manager testimony and payroll logs) showed many plumbers arrived before recorded start times and an incentive program permitted early departures while logging full shift time, suggesting inaccurate time records.
- Court applied the two-step FLSA collective certification framework, found common policies/practices affecting all opt-ins, denied decertification and granted final certification.
- Court found CCI’s time records legally inaccurate, applied Anderson v. Mt. Clemens burden-shifting for damages, held incentive pay could not offset overtime, and denied individual defendant Maguire’s summary judgment on employer status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Final collective certification under 29 U.S.C. § 216(b) | Plaintiffs were subject to common policy requiring fixed recorded hours and meal deductions leading to uncompensated work | Opt-ins had varying practices and hours requiring individualized inquiries | Collective action finally certified; decertification denied |
| Accuracy of employer time records (Anderson burden-shift) | Time logs are inaccurate (round numbers, manager admits early arrivals, incentive pay distorts logs) so burden should shift to employer | Records are accurate; disputes over exact times | Court held records inaccurate as a matter of law and applied Mt. Clemens/Anderson burden-shifting framework |
| Whether incentive "sunshine"/early-leave pay offsets overtime owed | Incentive payments were bonuses and cannot offset overtime | Incentive payments can be credited against overtime under general principles | Court held incentive payments cannot be used to offset overtime (not among §207(h)(2) exceptions) |
| Individual liability of Maguire under FLSA (employer status) | Maguire hired/supervised the general manager, received complaints and negotiated contracts that affected workforce needs | Maguire did not hire/firing plumbers, did not set rates, and lacked direct daily control | Court denied Maguire’s summary judgment; factual dispute whether he exercised sufficient control to be an employer under the economic-reality test |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir.) (two-step FLSA collective-certification framework)
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (U.S.) (collective actions promote efficient resolution and lower individual costs)
- Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (U.S.) (burden-shifting when employer records are inaccurate)
- Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132 (2d Cir.) (factors for individual employer liability under FLSA)
- Irizarry v. Catsimatidis, 722 F.3d 99 (2d Cir.) (economic-reality test for FLSA employer status)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S.) (summary judgment standard)
- Garcia v. Tyson Foods, Inc., 890 F.Supp.2d 1273 (D. Kan.) (discussion whether "sunshine"/incentive pay may offset overtime)