A motion for conditional certification was granted by the Eastern District of New York in late March under the Fair Labor Standards Act (FLSA) on behalf of approximately fifty (50) construction workers. See Bohdan Klimchak v. Cardrona, Inc., 2011 U.S. Dist. LEXIS 30652 (E.D.N.Y. Mar. 24, 2011). The plaintiffs alleged that they worked over forty hours per week without receiving overtime compensation and that they also failed to receive prevailing wage for work performed pursuant to governmental contracts. The potential plaintiffs did construction work such as waterproofing, roofing, and sheet metal work. Conditional certification was granted on the basis of four affidavits, two from the named plaintiffs and two from opt-in plaintiffs, stating that they and other workers were not paid overtime compensation and were also not paid the prevailing wage.
Judge Feuerstein noted in the opinion that for purposes of granting conditional certification, it was inconsequential whether all potential opt-in plaintiffs held the exact same job title: “Moreover, parties may be similarly situated for purposes of Section 216(b) despite not occupying the same employment positions provided that they are all subject to the same unlawful policy or practice. [ . . . ] Thus, for example, if defendants had a policy or practice of not paying overtime compensation to any of its laborers, whether full-time or part-time, union member or non-union member, all of those employees would be similarly situated for purposes of this analysis.” Lastly, the Court held that it was proper that notice go out to workers employed by defendants for the previous six years – even though notice was going out pursuant to the FLSA – as the Court had supplemental jurisdiction over New York state claims which provided for a statute of limitation of six years.