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MORISKY v. PUBLIC SERVICE ELECTRIC AND GAS CO.

August 15, 2000

STEVEN MORISKY, ET AL. PLAINTIFF,
V.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Pisano, United States District Judge:

OPINION

Before the Court is plaintiffs' motion to certify its federal claim as a collective action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and its state law claim as a class action under Federal Rule of Civil Procedure 23. Opposition was filed, and the Court heard oral argument on June 29, 2000. For the reasons set forth below, plaintiff's motion is denied.

Background

Plaintiffs bring this action against their employer, defendant Public Service Electric and Gas ("PSEG"), on behalf of themselves and a proposed class of employees, alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., ("FSLA" or the "Act"), and the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a et seq. ("NJWHL"). Specifically, plaintiffs assert that defendant has failed to pay them overtime compensation for hours worked in excess of forty per week, misclassifying them as exempt "administrative" employees under the relevant law when in fact they are non-exempt "production" workers and, therefore, entitled to such overtime compensation.*fn1 In the present motion, plaintiffs are seeking to certify their federal claim as a collective action under § 216(b) of the FLSA, and their state law claim as a class action under Federal Rule of Civil Procedure 23.

Defendant PSEG generates electricity for commercial and public use at plants located throughout New Jersey. All of the plaintiffs and the purported class are "MAST" associates of defendant-management, administrative, supervisory and technical employees — and work at defendant's nuclear business unit at Artificial Island in Hancocks Bridge, New Jersey. All also fall within the same salary grades, 9 through 13. Employees in these grade levels are those who hold positions that have been classified as exempt by PSEG. See Certification of Joseph Stella at ¶ 8.

By way of background, the Court notes that defendant's overtime policy has undergone several changes over the past ten years or so. Prior to 1989, all of defendant's employees in salary grades 9 through 13 received overtime compensation of at least one and one-half of their regular rate of pay for all hours worked in excess of forty per week. Stella Dep., 50:14-20, Exh. A to Certification of Theresa Egler ("Egler Cert."). In 1989, however, defendant revised its policy. PSEG continued to pay employees in grades 9 and 10 time and a half for overtime work, but reduced the overtime rate paid to employees in salary grades 11 through 13 to either one and a quarter their regular pay (grade 11) or straight time (grades 12 and 13). Id. at 50:21 to 51:12.

Not surprisingly, these changes to the over time policy prompted complaints to the Department of Labor ("DOL") by affected employees. In response, the DOL conducted an investigation which prompted PSEG to conduct a self-audit of its overtime compensation practices. As a result, certain positions were re-classified as non-exempt, and those employees were compensated by defendant for retroactive overtime. Over the next several years, defendant continued to review the duties of various positions within its organization and continued to make revisions to its overtime policies, some of these changes prompting complaints and further investigation by the DOL.

The events giving rise to the underlying lawsuit occurred in 1997. In April of that year, defendant further reduced overtime pay for certain employees. All overtime compensation for employees in salary grades 12 and 13 was completely eliminated, while employees in grades 9, 10, and 11 were only eligible for overtime pay after working 48 rather than 40 hours in a week. According to plaintiffs, numerous employees filed complaints following the 1997 cuts, and the present lawsuit ensued when these complaints were not satisfactorily resolved.

A. The Named Plaintiffs

The issue presently before the Court is whether the present action may appropriately proceed as a collective action. The key issue to be resolved is whether the named plaintiffs and the proposed class are "similarly situated," such that the named plaintiffs are adequate representatives of the proposed class. See 29 U.S.C. § 216(b) (an action may be pursued in a representative capacity "for other employees similarly situated"). Set forth below is a listing of the individual plaintiffs and a brief description of their job responsibilities:

1. Michael Darraugh: Plaintiff Darraugh is employed as a procedure writer in the operations department. He hold the job title of Technical Analyst. According to plaintiff, operations procedure writers "review[] and prepare[] the procedures that the operations personnel must follow to operate the nuclear reactor, electrical generating equipment, and other components necessary for the generation of electricity." Pl. Mem. at 25. Defendant classifieds Darraugh as exempt pursuant to the administrative exemption to the FSLA's overtime compensation requirements.*fn2
2. Dennis Kimble: Plaintiff Kimble, whose job title is also Technical Analyst, holds the position of procedure writer in defendant's maintenance department. Kimble's responsibilities are similar in many respects to plaintiff Darraugh's position described above, except his work focuses on maintenance procedures rather than operations. As with plaintiff Darraugh, defendant maintains that that Kimble is exempt pursuant to the administrative exemption.
3. Howard Hiles: At the time this lawsuit was filed, Plaintiff Hiles also held the title of Technical Analyst.*fn3 He performed the job of Quality Verification Inspector in defendant's Quality Assurance Department. Hiles' role was essentially to ensure compliance with industry standards, federal regulation and safety codes. His duties were to "perform inspection and in-progress monitoring of selected maintenance and design change activities to assure the plant's quality standards and policies [were] being maintained." Id. at 29. Defendant classified Hiles as exempt pursuant to the administrative exemption.
4. Nicholas Ferrett: Plaintiff Ferrett was employed as a Designer at defendant's nuclear business unit. According to plaintiff, Ferrett worked as a hanger designer and a pipe designer. As a hanger designer, he worked on design changes affecting the supports, or "hangers," for the plant's piping system. As a pipe designer, he would make recommendations as to where to place piping in the plant. Defendant classified Ferret as exempt under the professional and/or administrative exemption.
Defendant notes that in August 1998, it assigned Ferret a new title, "CAD Drafter." In this new position, Ferrett was reclassified as a non-exempt employee because, according to defendant, he was transferred into a ...

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