Judge Enjoins Retaliation Against Plaintiffs Seeking Overtime
Submitted on Fri, 01/04/2008 - 5:06pm
By Beth Bar - 01-02-2008, New York Law Journal
A Manhattan federal judge has ordered a New York City seafood purveyor not to retaliate against workers who are suing the company for allegedly violating state and federal labor laws.
Southern District Judge Louis L. Stanton has issued a preliminary injunction against Wild Edibles, a wholesale and retail chain that has been featured on "The Martha Stewart Show" and on the Food Network. The judge prohibited the company from taking any "adverse employment action against, or terminating the employment of" any worker who decides to be part of the suit.
"Wild has not refuted the evidence showing that they have intimidated Wild employees who are not parties in this action and deterred them from asserting their rights...and have caused named plaintiffs to consider dropping their claims in this case," Judge Stanton wrote in Barturen v. Wild Edibles, 07 Civ. 8127.
The decision appears on page 36 of the print edition of today's Law Journal.
The case began last summer when the Industrial Workers of the World (IWW) attempted to organize Wild Edibles workers at the company's Long Island City warehouse.
"From June until September 2007...IWW union representatives regularly stood outside of the warehouse facility, approached Wild employees, and spoke with them about their working conditions," Judge Stanton said. "Several of those employees [said to the union representatives] that Wild was not paying them overtime wages."
On Aug. 11, the union hosted a meeting to discuss the wage concerns. One of the workers who attended, Raymundo Molina, was fired six days later.
Raymundo Molina and other Wild Edibles employees and union representatives staged a demonstration on Aug. 20. Plaintiffs Jason Borges, Julio Cesar Mareno Gonzalez, Marco Antonio Corona, Raul Lara Molina, Lino Alberto Martinez, and Jose Antonio Fernandez Tavara were among the group that marched in front of the warehouse.
The plaintiffs allege that Mr. Borges was fired the same day as the rally, Raul Molina around Aug. 30, Mr. Gonzalez at the end of the month and Mr. Corona in early September.
"Wild does not dispute that the employment of those plaintiffs ended on or about those dates," the judge said. "But...Wild denies ordering any retaliatory discharges."
In an affidavit submitted to the court, Richard Martin, the company's owner and a defendant in the suit, said, "We have taken no actions in retaliation. Everything we have done has been for bona fide business reasons consistent with our regular practices and procedures."
The company said Raymundo Molina was fired because he had been late 20 out of 30 days in one month. It said that Mr. Borges voluntarily quit, while Messrs. Raul Molina, Gonzalez and Corona resigned by failing to appear for work without notifying the company in advance.
In their lawsuit, which was filed on Sept. 17, the current and former workers said Wild Edibles failed to pay them overtime and "spread-of-hours" wages in violation of the federal Fair Labor Standards Act, ?190 of the New York Labor Law, New York's "spread-of-hours" regulation and New York contract law. They also asserted three claims of retaliatory discharge under state and federal law.
Judge Stanton entered a temporary restraining order against the company in September. In granting the plaintiffs' request to convert the order into a preliminary injunction, the judge noted that the plaintiffs had to demonstrate a threat of "irreparable injury and either the probability of success on the merits or sufficiently serious questions going to the merits of the claims to make them a fair ground of litigation" in order to prevail on a motion for preliminary injunction. Time Warner Cable of New York City v. Bloomberg, 596 F.2d 70, 72 (2d Cir. 1979). Moreover, he said that the balance of hardships must tip "decidedly" in favor of the moving party. The judge said the Wild Edibles workers had met these criteria.
The judge said that if he did not enter the preliminary injunction, the plaintiffs would be left "exposed to the perceived risk of losing their livelihoods at the hands of an employer that has concededly fired other employees, under ambiguous circumstances, and with full knowledge of the statutes forbidding retaliation."
Carmelo Grimaldi and Richard M. Howard of Mineola-based Meltzer, Lippe, Goldstein & Breitstone represent Wild Edibles. Mr. Howard declined to comment, as the litigation is still pending.
David B. Rankin, a Manhattan solo practitioner who represents the plaintiffs, called his clients "fearless."
"They know [that] they are risking their livelihoods" by taking part in this lawsuit, he said.
Beth Bar can be reached at [email protected].