Ansoumana, et al. v. Gristede's Operating Corp. et al.: Court Certifies Low-Wage Delivery Workers' Class Action

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

ANSOUMANA, ET AL. V. GRISTEDE'S OPERATING CORP. ET AL.: COURT CERTIFIES LOW-WAGE DELIVERY WORKERS' CLASS ACTION
Immigrants' Rights Update, Vol. 15, No. 4, June 29, 2001

In a lawsuit brought by immigrant delivery workers who worked long hours for subminimum wages, a federal district court in New York has granted the plaintiffs' motion that their state law-based claims be certified as a class action. The plaintiffs are low-skilled immigrants who worked 60 to 84 hours (six or seven days) per week delivering supermarket and drugstore merchandise to retail customers and were paid only one to two dollars per hour without overtime compensation. The group of approximately 1,000 workers, which includes many who are undocumented, filed a complaint on Jan. 13, 2000, pursuant to the Fair Labor Standards Act of 1938 (FLSA) and the New York Minimum Wage Act alleging that the defendants failed to pay them the required minimum wage or overtime when the defendants misclassified the workers as independent contractors.

Because the FLSA requires that each plaintiff in a lawsuit brought under it provide the court with a signed consent form agreeing to be part of a collective action, the plaintiffs brought their motion for class certification only for their claims under state law. The court found that the plaintiffs had met their burden of satisfying the four criteria set forth in Rule 23 of the Federal Rules of Civil Procedure for class certification: numerosity of plaintiffs, commonality of issues, typicality of parties, and adequacy of representation.

In finding the proposed class was "numerous" enough, the court noted that the class's members, all of whom are low-wage workers, would not be likely to file individual suits against their employers because they lack the financial resources or access to lawyers necessary to do so and because they are afraid of retaliation, "especially in relation to the immigrant status of many" of them. Second, the court held that the central common issues to be decided fro each worker in the proposed class were whether the worker was an employee or an independent contractor and whether the worker's rights under the wage and hour laws had been violated. Moreover, the court stated that any differences between class members regarding the number of hours they worked, the precise work they did, and the amount of pay they received has more to do with the amount of damages each worker might be entitled to rather than whether the defendants are liable.

The court also found that the plaintiffs proposed as the class representatives have claims and defenses that are typical of the rest of the members of the class in that they experienced the same working conditions. Finally, in concluding that the representative plaintiffs could "fairly and adequately protect the interests of the class," the court rejected the defendants' argument that the immigration status of the various named plaintiffs would affect their credibility and ability to represent the class.

The court also ruled in favor of the plaintiffs in holding that it would retain jurisdiction over the state claims alleged. The National Employment Law Project and Outten & Golden LLP represented the plaintiffs.

Ansoumana, et al. v. Gristede's Operating Corp. et al., No. 00 Civ. 253 (AKH), 2001 U.S. Dist. LEXIS 6717 (S.D. NY May 24, 2001).