Conditional certification of a collective action under the Fair Labor Standards Act (“FLSA”) was recently granted in a New Jersey case involving approximately 100 employees who worked in the construction industry holding job titles such as hazardous abatement workers, demolition workers, and teamsters. In Kristic v. J.R. Contracting & Environmental Consulting, et al., 2011 U.S. Dist. LEXIS 28121 (D.N.J. March 16, 2011) United States District Judge Peter Sheridan of the District of New Jersey held that conditional certification was proper where the approximately 100 hourly employees were similarly situated and were not paid overtime compensation for working over forty (40) hours per week. Judge Sheridan granted conditional certification despite the presence of signed arbitration agreements on behalf of some of the construction workers and held that Defendant’s Motion to Dismiss was procedurally improper. Thus, New Jersey overtime lawyers should not automatically assume that the presence of an arbitration agreement necessarily precludes a plaintiff from seeking relief in federal court, notably an order granting conditional certification under the FLSA. In granting conditional certification, the Court noted that four plaintiffs claimed, apparently based on their general recollection and routine, that they worked 8 to 10 hours per day. Plaintiffs also sued two individual officers of defendant for the overtime violations alleging that the officers not only controlled the company but also controlled payment of the employees’ compensation. Lastly, plaintiffs also sought to recover payment for wages and benefits allegedly owed to them as the result of working on publically-funded contracts – apparently a claim for payment of what is sometimes referred to as the “ prevailing wage.”
