Status Reports

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 (.pdf 8KB). 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 (.pdf 8KB) 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 (.pdf 8KB). 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 (.pdf 8KB) 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.

How do I join the case?

To bring claims under the FLSA for back wages and an equal amount of liquidated damages, you must affirmatively join the case by filing a Consent To Sue Form (.pdf 8KB). Service Technicians who worked for Defendants in a state certified class will be automatically included in the case only if the Court certifies the class action. Note that the recovery under state law may be less than under the FLSA.

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 I wait to file my Consent to Sue form for my FLSA claim?

You are not part of the case until your Consent To Sue Form (.pdf 8KB) is returned to the plaintiffs’ attorneys and then filed with the Court. If you delay in filing the Consent To Sue Form (.pdf 8KB), part or all of your claim may be barred by the “statute of limitation.” Once a Notice is authorized by the Court, you must generally return the Consent To Sue Form (.pdf 8KB) within the terms of the notice or the Court may not allow you to join this case.

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.