Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—E.D.N.Y.: Jury to decide if jobsite supervisor could be held liable for wage-hour violations, (May 20, 2025)

By Marjorie Johnson, J.D.

The Spanish-speaking workers regarded him as the “boss” from whom they directly requested unpaid wages and claimed that he visited jobsites and directed their work through a translator.

Four masonry and bricklayer workers who alleged their employer, its owner, and the jobsite supervisor denied them wages and overtime pay in violation FLSA and New York Labor Laws (NYLL) presented sufficient evidence from which a jury could find the supervisor exercised meaningful control over their work such that he could be held liable for the wage violations. Denying the defendants’ partial motion for summary judgment, a federal district court in New York held that the employees presented ample testimonial and documentary evidence demonstrating that the supervisor did, in fact, exercise significant control over the terms and conditions of their employment (Rosas v. MIRI General Contracting Inc., No. 1:24-cv-04243-JAM (E.D.N.Y. May 14, 2025)).

The employees sued the employer, a masonry and bricklaying company, as well as its owner and the supervisor (collectively, “the employer”), alleging that they were denied wages and overtime compensation in violation of the FLSA and NYLL. The employer moved for partial summary judgment asserting that the supervisor could not be held liable for the alleged wage violations since he was never an owner, officer, or director of the company and lacked any meaningful control over the laborers’ employment.

Translated work directions. In response, the employees argued that the supervisor recommended employees to the company, regularly visited the job sites, and provided materials and supplies for the company. They further claimed he was regarded as the “boss,” and that they directly requested unpaid wages from him. He also allegedly provided them with instructions on how to perform their work, which were translated from English to Spanish by the foreman.

Though the employer argued that the supervisor did not have the authority to hire or fire employees at the company, the employees claimed that they believed he was the owner. They also claimed that he and his son would visit the sites, inspect the work, and give instructions through the Spanish-speaking foreman. One employee also testified that he personally evaluated his performance and determined that he should not receive the full daily wage of $250.

Triable issues. At the outset, the court found that the employer’s motion was due to be denied because of its violation of the Local Rules. However, it also failed on the merits since genuine disputes existed as to whether the supervisor could hire or fire employees, whether he had the authority to set wages and work schedules, whether he had any supervisory responsibilities or control over their daily work, and whether he possessed any ownership interest, officer position, or director role at the company.

In particular, the employees presented sufficient testimonial and documentary evidence demonstrating that he did, in fact, exercise significant control over the terms and conditions of their employment. They asserted that he directly supervised them, assigned their duties, set their pay rates, managed their work on job sites, made decisions regarding work materials, directed the manner and method of payment, and in many cases personally issued wages.

Translated affidavits. The court squarely rejected the employer’s challenge to the employees’ affidavits on the basis that there was no “certified translation” accompanying them or any other indications that they understood their contents prior to signing them. Thus, the employer argued, because the employees had repeatedly required Spanish-language interpreters throughout the litigation, their affidavits failed to adhere to the Rule 56(c)(4) requirement that the affidavits must be made “on personal knowledge.”

First, the employer failed to cite any case law supporting their position. Moreover, the employees relied in substantial part on their own depositions and on the employer’s exhibits to support their contention that the supervisor could be held liable as an employer under the FLSA and NYLL. Further, they all signed sworn certifications that their affidavits were verbally translated from Spanish to English by an individual competent in both Spanish and English. Accordingly, the court was satisfied that their supporting affidavits were made “on their own personal knowledge.”

The case is No. 1:24-cv-04243-JAM.

Judge: Marutollo, J.

Attorneys: James Patrick Peter O’Donnell (Law Offices of James Patrick Peter O’Donnell) for Vicente Rosas. Michael F. Mongelli, II (Michael F. Mongelli II P.C.) for MIRI General Contracting Inc.

Companies: MIRI General Contracting Inc.

Cases: CoverageLiability WageHour Overtime EvidenceDiscovery StateLawClaims NewYorkNews