Duane Morris Takeaways: In Carabajo v. APCO Insulation Co Inc., Case No. 22-CV-04175 (E.D.N.Y. June 9, 2023), Magistrate Judge Sanket J. Bulsara of the U.S. District Court for the Eastern District of New York granted Plaintiffs’ motion for conditional certification and found an employer’s enforcement of a written policy, unlawful on its face, was evidence enough to secure a conditional certification of a collective action under the Fair Labor Standards Act, despite questions of fact concerning supporting declarations. The ruling is a warning and reminder to employers, especially those in the Second Circuit, that a written policy on its own may support conditional certification where enforcement of the policy would violate the law on its face.
Case Background
On July 15, 2022, Miguel Carabajo (“Carabajo”), a former insulation prep and installer working at APCO Insulation (“APCO”), a building insulation and construction company in New York City, filed a class and collective action claiming APCO and its president (“Defendants”) violated the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”) by failing to pay him and others similarly situated overtime pay for weekly hours worked over 40, unlawfully deducting 30 minutes per day for meal breaks they did not actually take, and requiring them to come into work 15 minutes early before they could clock-in. On December 8, 2022, Carabajo moved for conditional certification of a collective action under the FLSA...
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