Roto-Rooter (Morangelli)

On February 25, 2010, two former Service Technicians filed a nationwide federal lawsuit against Chemed Corporation and Roto-Rooter Services Company in the U.S. District Court for the Eastern District of New York to recover unpaid wages for themselves and other Service Technicians. The lawsuit alleges that Roto Rooter did not pay the Plaintiffs’ wages free and clear, and unlawfully reduced their wages through paycheck deductions and requiring them to bear Defendants’ business expenses. The Plaintiffs also allege that they regularly worked unrecorded time of which the Defendants were aware and encouraged through their policies and practices. The Plaintiffs seek to recover unpaid minimum and overtime wages and the illegal deductions and business expenses they were required to bear. Any Service Technician who worked for the Defendants in any state can join the case.

Status Reports

Court Grants Final Approval of Parties’ Settlement Agreement – Posted 1/9/14

On January 6, 2014, the Court held a final fairness hearing after which the Court granted final approval of the parties’ Settlement Agreement. The Court found that the Settlement Agreement, under which Roto-Rooter will pay more than $14.2 million to resolve the claims of more than 4,200 class members, was fair, reasonable and adequate. The Court adopted the Settlement Agreement provision requiring settlement checks to be mailed within 43 days of the Court’s Order so long as the Order is not appealed. As no objections were raised to the settlement, we do not anticipate any appeals. Plaintiffs will have 120 days from the date the checks are sent out to cash their checks. Unless you have updated your address with the Claims Administrator or us, your settlement check will be sent to the same address as your notice. To update your address, contact the Claims Administrator, Simpluris, at 877-645-1928.

Court Grants Preliminary Approval – Posted 9/25/13

The Court has granted preliminary approval of the class settlement. Click here to read the Preliminary Approval Order of Class Settlement.. Class members will receive a notice of the settlement in the mail in mid-October.

If your address has changed and you have not updated your contact information with us, please email your new contact information to mayres@getmansweeney.com

Plaintiffs File Motion for Preliminary Approval – Posted 9/17/13

On September 13, Plaintiffs filed the Motion for Preliminary Approval of Class Settlement with the U.S. District Court for the Eastern District of New York. We now await the Court’s approval. If the Court preliminarily approves the settlement, we will be able to send a notice to each class member, which includes the terms of the settlement, the amount of their minimum individual recovery, and allows for the opportunity to opt out of or object to the settlement.

IF YOU WANT TO RECEIVE MONEY UNDER THE SETTLEMENT, YOU DO NOT NEED TO DO ANYTHING. If the Court approves the settlement, a check will be mailed to every class member who does not opt out of the settlement.

After the 30-day notice period has passed, Plaintiffs will ask the Court for final approval of the settlement. If the Court approves the settlement and there are no appeals, checks will be mailed to class members. The settlement process can take some time, and we do not expect checks to be mailed until the second quarter of 2014.

If your address has changed and you have not updated your contact information with us, please email your new contact information to mayres@getmansweeney.com.

We will continue to post updates to the website as the information is available.

The Parties Have Reached a Settlement

After more than three years of litigation, the parties have tentatively settled the claims in this case. Getman & Sweeney believes the settlement is fair and reasonable, considering the various risks that would exist if the claims went to trial.. Under the terms of the settlement, Roto-Rooter will pay approximately $14.2 million to resolve the claims of approximately 4,000 class members. The payment includes back pay for overtime, minimum wages, liquidated damages and all costs of the litigation including attorneys’ fees and service payments to class representatives.

The case now moves from a litigation process to a settlement process, which, though quicker than litigation, still takes time. The Court has ordered the parties to put the terms of the settlement in a formal written agreement and ordered the Plaintiffs to present the agreement to the Court for preliminary approval by August 23, 2013. If the Court preliminarily approves the settlement, notice will be mailed to all class members explaining the terms of the settlement, providing class members with notice of their minimum individual recovery, and giving them the opportunity to comment on the settlement. After the period for commenting has past, Plaintiffs will ask the Court for final approval. If the Court finally approves the settlement and the settlement becomes final, checks will be mailed out shortly thereafter. We expect the entire process to take at least nine months, that is, checks would not likely be mailed until at least April 2014.

Because there are several steps in the settlement process, there is much we do not know at this time:
We do not know anyone’s individual recovery at this time. After the Court issues preliminary approval of the settlement, we will make the final damage calculation and notice stating individual recoveries will be mailed to all class members.

We do not know when notice will be mailed. Those details depend on factors outside of the parties’ control. For example, notice cannot be sent until the Court preliminarily approves the settlement. While Plaintiffs expect to file a motion for preliminary approval on August 23, we do not know how long the Court will take to rule on it.

We do not know if or when settlement checks will be mailed. Checks will be mailed only if the Court finally approves the settlement. We cannot know at this time if and when that will happen.
It is vitally important that you notify us if your contact information has changed in the past three years. Please e-mail any changes to us through this website http://getmansweeney.com/contact.
We need current contact information so that you receive notice and your settlement payment.

WE WILL POST UPDATES ON THIS WEBSITE AS THE INFORMATION IS AVAILABLE

Court Denies Roto-Rooter’s Motion for Reconsideration

On March 25, Judge Cogan denied Roto-Rooter’s request that he reconsider his decision allowing Plaintiffs’ claims to go forward on a class basis. In particular, Roto-Rooter asked the Court to reconsider its request to dismiss turn-in claims in California and time-shaving claims in California, Connecticut, Indiana, Missouri, and Washington. Roto-Rooter also asked the Court to reconsider its request to decertify the FSLA collective action and state class action time-shaving claims. Judge Cogan denied reconsideration on all three issues. Click here to read the Judge’s ruling.

Court Decides Summary Judgment and Decertification Motions

On February 4, 2013, Judge Cogan ruled that Plaintiffs can proceed on their business expense and uncompensated time claims on a class basis but dismissed the Plaintiffs’ claims that call-backs were illegal. He also made a series of rulings specific to some groups of plaintiffs. For example, he ruled that the Indiana class can proceed under a different law than originally pled and that some California claims survive despite a prior class settlement. Click here to see the full decision.. Judge Cogan gave the Plaintiffs 90 days to amend their complaint consistent with his Order. After that, the case will go to trial on the issue of whether Roto-Rooter’s reimbursement of business expenses was reasonable and whether Roto-Rooter’s records show uncompensated work time.

 Posted on December 11, 2012

Plaintiffs continue to wait for the Court’s decision regarding Defendants’ motion to decertify the class and our motion for summary judgment (See April 3, 2012 update).  How the case goes forward depends on how the Court’s decides these motions, so the litigation remains at a standstill until that time.  We will update the website as soon as the Court makes its decisions.  If you would like an email update sent directly to your inbox regarding the Court’s decisions, please email mayres@getmansweeney.com and include “Morangelli Court Decision” in the subject line.

Posted on July 30, 2012 at 10:50am

Plaintiffs continue to wait for the Court’s ruling on our motion for summary judgment and Roto-Rooter’s motion to decertify the class (see April 3, 2012 update). Once the Court has ruled on the motions, the parties will be able to proceed with the litigation. How the case proceeds depends on how the Court rules on each of the issues before it. We will post an update as soon as the Court renders its decision.

Summary Judgement and Decertification Motions Are Fully Submitted-Posted April 3, 2012

Plaintiffs have completed their motion and briefs asking the Court to find as a matter of law that certain of Roto-Rooter’s pay practices violated the law.  In particular, Plaintiffs asked the Court to find that (1) Roto-Rooter’s practice of shifting expenses to Technicians was illegal in weeks that it caused Technicians’ pay to fall below the minimum wage; (2) Roto-Rooter’s call-backs were illegal deductions under the laws of certain states; (3) Roto-Rooter violated its recordkeeping obligations; and (4) Roto-Rooter is liable for liquidated damages.  The briefing includes Plaintiffs’ brief in support of their motion (Click here); Roto-Rooter’s opposition (Click here) and Plaintiffs’ reply (Click here).

At the same time, Roto-Rooter asked the Court to decertify, or break up, the class and force Plaintiffs to litigate on an individual basis with respect to its liability on Plaintiffs’ claims.  Plaintiffs responded to Roto-Rooter’s motion asking the Court to keep the classes together so that Roto-Rooter’s liability can be decided once and for all in a single proceeding.  The Parties submitted briefing, including Roto-Rooter’s brief in support of its motion (Click here); Plaintiffs’ opposition (Click here); and Roto-Rooter’s reply (Click here).

The Court will consider the Parties’ arguments and render a decision.  We expect the Court to issue decisions on all the issues at the same time, but we cannot know when any decision will be issued.  Given prior experience with the Court, Plaintiffs expect a decision in the summer or fall.  However, there is no way to know when the decision will come.  After the Court decides these legal issues, the parties will try any unresolved issues about Roto-Rooter’s liability to a jury.

Updated Schedule For Summary Judgment Briefing

Upon Roto-Rooter’s request, the Court changed the schedule for the parties to submit summary judgment motions and Roto-Rooter to submit a decertification motion.  The initial motions are now to be filed by February 10, 2012, responses by March 9, 2012, and any replies by March 23, 2012.

Court Reschedules Summary Judgment Briefing

Upon Roto-Rooter’s request, the Court changed the schedule for the parties to submit summary judgment motions.  The initial motions are to be filed by January 20, 2012, responses by February 17, and any replies by March 2, 2012.  In summary judgment rulings, the Court determines whether the uncontested facts represent a violation of the law.  In their summary judgment motion, the Plaintiffs will ask the Court to rule that Roto-Rooter’s pay policies violated federal and state law.  In the same motion, we will ask the Court to find that Roto-Rooter must pay liquidated damages in addition to any back wages owed.  Liquidated damages are up to 100% of the back wages owed for those plaintiffs who joined the case by filing a consent to sue.  Liquidated damages for the class members are a matter of state law and each state has a different standard.

Once the Court rules on the legality of Roto-Rooter’s pay policies, the case will proceed to a trial where a jury will decide whether Roto-Rooter failed to record all the hours that technicians worked. Once a jury decides those issues, the Court will determine how to calculate Plaintiffs’ individual damages.

The Court also granted Roto-Rooter permission to move to decertify the classes with respect to certain issues.  The Court ordered Roto-Rooter to submit its decertification motion on the same schedule as the summary judgment motions.

Discovery Ends and Briefing Begins, Tuesday, December 6, 2011

At the Plaintiffs’ request, Judge Cogan ordered the parties to complete their exchange of discovery by November 24, 2011.  He also ordered the parties to submit summary judgment motions by December 22, 2011.  In summary judgment rulings, the Court determines whether the uncontested facts represent a violation of the law.  In their summary judgment motion, the Plaintiffs will ask the Court to rule that Roto-Rooter’s pay policies violated federal and state law.  In the same motion, we will ask the Court to find that Roto-Rooter must pay liquidated damages in addition to any back wages owed.  Liquidated damages are up to 100% of the back wages owed for those plaintiffs who joined the case by filing a consent to sue.  Liquidated damages for the class members are a matter of state law and each state has a different standard.

Once the Court rules on the legality of Roto-Rooter’s pay policies, the case will proceed to a trial where a jury will decide whether Roto-Rooter failed to record all the hours that technicians worked. Once a jury decides those issues, the Court will determine how to calculate Plaintiffs’ individual damages.

Posted on Friday, June 24 2011 at 10:13am

In a significant victory for Plaintiffs, the Court issued a Decision and Order certifying all 14 state class actions on June 17, 2011. Click here to see the Court’s Order (.pdf 1MB). The result is that all commissioned Technicians who worked for Roto-Rooter in those 14 states within the statute of limitations can recover in this action. The Order dramatically expands the scope of the case. The decision was particularly remarkable for Court’s keen understanding of the ways in which Plaintiffs allege Roto-Rooter broke the law. We expect a short period to take additional discovery of Roto-Rooter, after which the parties will ask the Court to rule on certain issues of law. Once the Court rules, the case will be scheduled for trial.

Posted on Friday, June 24 2011 at 10:05am

The Court ordered notice of this case sent to Roto Rooter Technicians on June 17, 2010. Click here to see the Order (.pdf 367KB). Since then more than 430 current and former Technicians have joined the case, and another 79 have sought to bring their claims in arbitration.

In November, 2010, Plaintiffs filed a Motion asking the Court to allow the case to go forward as a Rule 23 class action. A class action would allow many more people to participate in the case. Click here to see Plaintiffs’ Motion (.pdf 511KB). After conducting extensive discovery, including 39 depositions, Roto-Rooter opposed Plaintiffs’ motion. Plaintiffs replied to the opposition. Click here to see Plaintiffs’ Reply (.pdf 136KB). Now we await the Court’s decision.

Technicians can still bring their claims, even though the opt-in period for this case is no longer open. We understand that employees can be hesitant to bring claims against their employer. While we understand such reluctance, retaliation against an employee for bringing their back-wage claims is illegal. Judge Cogan made it clear that he will zealously protect against any such retaliation. In a letter dated January 1, 2011, he advised that “[Plaintiffs] should also be reassured that this Court would treat any retaliatory response to their participation in this lawsuit with the utmost seriousness, including considering referring the matter to the United States Attorney for criminal prosecution of FLSA violations or even obstruction of justice.” Consistent with the Judge’s language, we respond quickly to any retaliation.

We encourage Technicians to contact us if they want to bring claims and have not joined yet. Depending on the form of dispute resolution agreement signed at hiring, your claims may be heard in arbitration rather than federal court. Getman & Sweeney, PLLC and Pelton & Associates are representing Technicians in both forums. If you would like to bring back wage claims, click here for the Consent to Sue form. Please note that it is a two-page form. Please fill out and sign BOTH consent forms, one for the lawsuit and one for the arbitration. Once we’ve received the consents, we will determine whether you will be in the lawsuit or in the arbitration.

Posted on Wednesday, May 4 2011 at 4:40pm

Answers to Common Questions:

What claims are covered in this lawsuit?

The lawsuit at present covers claims for overtime pay under the federal Fair Labor Standards Act (“FLSA”) and under several state labor Laws. The specific violations claimed are that the Defendants failed to pay minimum and overtime wages properly to its Service Technicians and made deductions to pay that violated the laws of certain states.

What damages are sought?

Damages sought under the FLSA include back minimum wage and overtime pay, an equal amount of liquidated damages, interest, and fees and costs for each violation. Damages for the state law claims include back minimum wage and overtime pay, recovery of illegal deductions, interest, and fees and costs.

How far back can claims be made?

Under the FLSA, you are entitled to make claims for the period extending back three years from the date your Consent to Sue form is filed in Court. The Defendants will be entitled to argue that its violations were not willful and that it claims should only be limited to a two-year period preceding the filing of your Consent to Sue form. This two or three year period is called the “statute of limitation.”

Under state labor laws, the statute of limitation runs from two to six years depending on the state, and the class claims run from the filing of the complaint.

What is the difference between the FLSA and State Labor Law claims?

Both claims are based on the same facts—the way Defendants paid Service Techinicians. But damages and the statute of limitations are different under the FLSA and state labor laws.

The FLSA provides for liquidated damages in an amount equal to the back pay owed and allows claims going back three years from when someone affirmatively joins the case by filing a Consent to Sue. You must send us a signed Consent to Sue form to bring FLSA claims in this action.

State Labor Laws typically provide for back wages, interest and recovery of illegal deductions. The state law claims have different statutes of limitations (for example, New York is six years, New Jersey is two years). As the Complaint was filed on February 25, 2010, state law claims in New York will go back to February 26, 2004, and in New Jersey to February 26, 2008.

Do I have to pay to join the case?

No. The attorneys are handling this case on a contingent basis and will only be paid when we win through a settlement or final judgment. Under both the FLSA and State Labor Laws, when plaintiffs win an overtime case, the defendant must pay the plaintiffs’ costs and attorneys’ fees.

Can the Defendants fire me or take action against me for joining the lawsuit?

The law prohibits retaliation for joining an overtime lawsuit. If any employee suffered retaliation, the Defendants would be liable for at least double the injury caused to the employee, and possibly additional damages. The Judge in this case has already made clear that he will not tolerate any retaliation. Notify us immediately if you think any retaliation occurs. Retaliation is rare in overtime cases, because an employer can suffer such serious penalties.

What locations are covered by this lawsuit?

The FLSA claims in this lawsuit cover every worksite nationwide in the U.S.A. If you worked for Defendants anywhere in the country, you can bring FLSA claims in this case. State Labor Law claims covers only work in that state.

 

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