On January 28, 2013, Paul Chime filed a putative class and collective action Complaint against Peak Security Plus, Inc. in the U.S. District Court Eastern District of New York, which is assigned case number 1:13-cv-470 (WFK) (VP).
Who are the class and collective action members?
The lawsuit is brought on behalf of all individuals whom Peak Security employs or has employed as security guards at any time since January 28, 2007.
What are the claims in the lawsuit?
The lawsuit alleges five causes of action on behalf of the class and collective action members.
Failure to pay overtime under the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). These claims are based on the allegations that Peak Security did not pay the putative class and collective action members one and one-half their regular hourly rate for every hour they worked above 40 in a week, as the FLSA and NYLL require. Peak Security, instead, paid them the below their regular hourly rate for every hour worked above 40 in a week and paid them a maximum of 80 hours every two weeks, violating the FLSA and NYLL. These two claims seek to recover the unpaid compensation and liquidated damages for these violations.
Failure to pay for all hours worked under the FLSA and NYLL. These two claims are based on the allegations that Peak Security did not pay the security guards for every hour worked: for the 15 minutes they were required to arrive before their shift started to assure a smooth transition. Peak Security, instead, paid them according just to their scheduled hours – not their actual hours worked. These claims seek to recover this unpaid compensation and liquidated damages for these violations.
Recordkeeping violations under the NYLL. This claim alleges that Peak Security would give the security guards an envelope with cash to compensate them (partially) for their work and when doing so did not give them a written statement setting forth their rate of pay, whether they were paid by the hour, shift, day or week, or the hours the compensation covered. This violates the NYLL. This claim therefore seeks to recover for each class member a civil penalty of $100.00 for each workweek that this violation occurred, with a maximum of $2,500.00 per class member.
- January 28, 2013, Plaintiff filed the Complaint.
- April 12, 2013, Plaintiff filed the First Amended Complaint.
- May 31, 2013, the parties fully briefed Defendant’s motion to dismiss the First Amended Complaint. This motion is pending before the Court.
- September 9, 2013, the parties fully briefed Plaintiff’s motion to conditionally certify the FLSA collective action and for class certification of the NYLL claims. This motion is pending before the Court.
- June 10, 2014, the Court granted plaintiff leave to file the Second Amended Complaint, joining Emmanuel Osula as a named Defendant.
- June 13, 2014, Plaintiff filed the Second Amended Complaint that names Emmanuel Osula as an individual Defendant.
- September 9, 2015, the Court denied Defendants’ motion to dismiss and granted Plaintiff’s motion to conditionally certify the FLSA collective action and for class certification of the Labor Law claims. In doing so, the Court appointed Douglas Lipsky as Class Counsel.
- November 9, 2015, the Court-approved Notice of Class and Collective Action was mailed to the class and collective action members, advising them about the case and the rights to opt-in to the collective action and opt-out of the class action, setting January 8, 2016 as the deadline to do so.
- On August 19, 2016, the jury reached a verdict finding for the Plaintiffs’ on all claims, including that the Defendants willfully violated the New York Labor Law and Fair Labor Standards Act.
- On February 14, 2017, the Court issued an order partially decertifying the class with respect to class-wide damages for unpaid wages. This order does not affect the Jury verdict on Defendants’ liability to the class members, but it does mean that damages for unpaid wages cannot be determined or recovered on a class-wide basis. On February 14, 2017, the Court issued an order partially decertifying the class with respect to class-wide damages for unpaid wages. This order does not affect the Jury verdict on Defendants’ liability to the class members, but it does mean that damages for unpaid wages cannot be determined or recovered on a class-wide basis.
- In May 2017, the parties reached an agreement to settle this matter
- On June 12, 2017, the proposed settlement agreement was submitted to the Court for preliminarily approval. If and when the court grants preliminary approval, the terms of the agreement will be mailed to call class members.
What happens next?
We are presently waiting for the court to grant or deny preliminary approval of the agreement.
*This update is current as of October 16, 2017. Douglas Lipsky is Class Counsel. You should contact him with any questions.