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Michelon v. FM Home Improvement Inc.

September 8, 2010

FERNANDO MICHELON AND DEIVDE RODRIGUES, ON BEHALF OF THEMSELVES AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
FM HOME IMPROVEMENT, INC., AND MILTON FANTIN, DEFENDANTS.



The opinion of the court was delivered by: Hon. William J. Martini

MEMORANDUM OPINION

Plaintiffs, Fernando Michelon ("Michelon") and Deivde Rodrigues ("Rodrigues"), filed a Complaint on behalf of themselves and on behalf of all others similarly situated against Defendants, FM Home Improvement Inc. ("FM") and Milton Fantin ("Fantin," and with FM, collectively the "Defendants"). Plaintiffs are former employees of FM. Milton Fantin is an owner and manager of FM. The gravamen of Plaintiffs' Complaint is that FM failed to compensate them for overtime hours worked as required by law and paid them less than the prevailing government wage. The Complaint alleges eight counts, including:

Count I -- Breach of Contract against FM;

Count II -- Quantum Meruit against all Defendants;

Count III -- Fair Labor Standard Act against all Defendants;

Count IV -- New Jersey Labor Law, N.J.S.A 34:11 et seq., against all Defendants;

Count V -- New York Labor Law, 12 N.Y.C.R.R. §§ 137-143, against all Defendants;

Count VI -- New Jersey Prevailing Wage Law against all Defendants;

Count VII -- New Jersey Labor Law Retaliation against all Defendants (brought by Plaintiff Rodrigues only); and

Count VIII -- Fair Labor Standard Act Retaliation against all Defendants, 29 U.S.C § 201 et seq. ("FLSA") (brought by Plaintiff Rodrigues only).

Presently before the Court is Plaintiffs' Motion to Amend the Complaint and For Collective Action Certification under The Fair Labor Standards Act. The Court, for the reasons stated below, will GRANT Plaintiffs' Motion to Amend the Complaint, will GRANT certification for collective action under the FLSA, will GRANT Defendants' Cross Motion to Dismiss the state law claims, and will GRANT Plaintiffs 3 years of information in regard to Defendants' employees.

I. FACTUAL BACKGROUND ALLEGED IN THE COMPLAINT

Defendant FM Corporation is a New Jersey corporation that derives its revenue from construction work done in New Jersey and New York. (Compl. 2.) Individual defendant, Milton Fantin is an owner of FM Corporation. Plaintiff Michelon worked for Defendants as a foreman and a laborer performing tasks such as roofing, siding, and other forms of manual labor during the course of June 2002 through May 31, 2009. (Compl. 4.) Plaintiff Rodrigues worked for Defendants as a foreman and a laborer also performing tasks such as roofing, siding, and other forms of manual labor, but only during the course of March 2008 through August 31, 2009. (Compl. 4.) Defendant Fantin had control over aspects of Plaintiffs' employment, including work schedule, wage payment, and employment records. (Compl. 4.)

Plaintiffs allege that they regularly worked over forty hours per week, but were not paid the proper overtime under federal, New Jersey state or New York state law. (Compl. 5.) Plaintiffs each had an oral contract to perform work for Defendants in exchange for payment in the form of hourly wages. (Compl. 6.) The alleged oral agreements provided for Plaintiffs to be paid a specific hourly rate and for the agreements to be renewed indefinitely until or unless either party terminated it. (Compl. 6.) They also included an allowance for a certain number of vacation and sick days. (Compl. 8.) Plaintiffs supplied the labor and complied with the terms of their employment, yet Defendants allegedly failed to pay Plaintiffs the wages they were entitled to under their respective employment agreements. (Compl. 6.) Plaintiffs also allege that Defendants failed to pay the prevailing government wage. Additionally, Defendants failed to compensate Plaintiffs for vacation and sick days. (Compl. 8.)

Rodrigues was terminated by Defendants for allegedly drinking alcohol while working. (Compl. 11.) Rodrigues claims that reason was pretextual and that he was actually terminated because he complained to Defendants about his illegal compensation. (Compl. 11.)

Plaintiff Michelon was paid by Defendants entirely in cash from 2002 through November 2008. (Michelon Decl. 1.) After November 2008, he was paid by both check and cash as Rodrigues was: check for forty hours per week, plus a cash supplement for the same forty hours, and then paid in cash for any overtime. (Michelon Decl. 2.) Notwithstanding being paid for some work, Michelon is also alleges he was ...


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