News Article

Wage & Hour Immigrant Delivery Workers in New York Can Proceed With Class Minimum Wage Suit

Daily Labor Reporter

Published: June 01, 2001

Unskilled immigrant workers in New York City who are allegedly paid $1 to $2 an hour for delivering grocery and drug store orders can proceed with class action claims under the Fair Labor Standards Act and New York State law, a federal judge ruled May 24 (Ansoumana v. Gristede's Operating Corp., S.D.N.Y., No. 00 Civ. 253, 5/24/01).

"[A] class action is superior to other available methods for the fair and efficient adjudication of the controversy," wrote Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York, in certifying an estimated class of up to 1,000 delivery workers.

A suit filed on behalf of the workers by the National Employment Law Project [with Adam T. Klein and Scott Moss from Outten & Golden LLP] in January 2000 charged the grocery chains, Gristedes, Food Emporium, A&P, and the drug store chain Duane Reade, with using "walking sweatshops" for deliveries (10 DLR A-10, 1/14/00). The labor agents who placed the workers were also charged with violating the laws.

The suit was filed on behalf of nine West African immigrant workers but sought class status for an estimated class of 1,000 similarly situated workers. Approximately 350 workers had filed consents to join the class at the time the motion for class certification was argued, according to the court.

Labor agents assigned the workers to the grocery and drug stores to deliver products from those stores to retail customers of the stores. The workers alleged they worked 60 to 84 hours a week, six or seven days weekly, and were paid $1 to $2 an hour.

The suit alleged that because the delivery employees worked on the premises of the stores, were instructed by store supervisors, and performed work that is integrated into their business, that the stores are employers under the Fair Labor Standards Act and state law. The workers sought to recover unpaid compensation under FLSA and the New York Minimum Wage Act.

The supermarket and drugstore chains argued that the workers were independent contractors, not employees. The labor agents who gathered and assigned them also considered the workers to be independent contractors.

In his May 24 order, Judge Hellerstein said the number of workers was sufficiently large for class certification. He also determined that they would be unlikely to file individual suits against the stores or the agents."Their lack of adequate financial resources or access to lawyers, their fear of reprisals (especially in relation to the immigrant status of many), the transient nature of their work, and other similar factors suggest that individual suits as an alternative to a class action are not practical," Hellerstein wrote.