Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—S.D.N.Y.: Engineering firm’s inspectors denied certification of claim they were misclassified as exempt, (Aug 28, 2025)

By Ronald Miller, J.D.

To satisfy the predominance requirement in a misclassification case, the plaintiffs must provide evidence “demonstrating that the job duties of putative class members were largely consistent across the class.”

Inspectors for an engineering firm were not entitled to class certification in a putative Rule 23 class action alleging they were willfully misclassified as exempt employees and not properly compensated for work in excess of 40 hours per week, ruled a federal district court in New York. Because they failed to submit evidence to demonstrate that field employees’ responsibilities did not meet the exemption criteria, the court could not conclude that they satisfied the requirements of commonality and typicality for a purported class of misclassified employees. Further, the court concluded that the plaintiffs failed to satisfy the predominance requirement for class certification in a misclassification case, since they did not demonstrate that the job duties of putative class members were largely consistent across the class (Kovalev v. A.G. Consulting Engineering, P.C., No. 22-cv-5954 (MKV) (S.D.N.Y. Aug. 25, 2025)).

Overtime claims. The employer is an engineering firm that provides consulting, construction management and special inspection services for federal, state, and city agencies and for the private sector. In 2022, two employees filed a complaint against the employer seeking to recover alleged unpaid overtime wages. The first named plaintiff inspected electrical work performed by contractors for the New York City Metropolitan Transportation Authority (MTA). The second named plaintiff inspected “various mechanical, electrical and plumbing (MEP) repair and maintenance jobs” for the New York Department of Corrections.

The employees filed collective and class action claims alleging violations of the FLSA and the New York Labor Code. The first named plaintiff also asserted individual claims for retaliation under the FLSA and NYLL. According to the employees, the employer willfully misclassified them as exempt employees and failed to properly compensate them for work in excess of 40 hours per week.

Exempt classification. The first named plaintiff alleged that the employer represented to him that he was hired as a salaried employee, but he was actually paid on an hourly basis. His paystubs reflect that, at least some weeks, he worked more than 40 hours, and he was paid regular wages for the hours he worked.

According to the employee he inquired with the employer’s human resources representative as to why he was not eligible to receive overtime pay and “argued” that he did not fall within any exemption. He further alleged that members of management told him that “unless he signed a letter agreeing that he was an exempt employee and not entitled to overtime pay, he would be immediately fired.” He “signed the letter and remained employed.”

The second named plaintiff also attested that when she was hired it was represented to her that she was an exempt employee. The employee asserted that despite her “superintendent” title, she “had no discretion or authority to suggest repairs or fixes to any deviations from specifications she discovered.” Further, she asserted that she “had no authority or control over the employment of any other employees.”

Class certification. Earlier in the case, the parties reached a settlement in principle. The employees thereafter filed a motion for Rule 23 class certification and approval of the parties proposed settlement. The court denied those motions citing “serious doubts” that the plaintiffs could “meet the requirements” for conditional certification of a FLSA collective action, much less a Rule 23 class action. The court thereafter granted the plaintiffs’ renewed, unopposed motion for conditional certification.

Class certification. Before the court was the plaintiffs’ renewed, unopposed motion for class certification and settlement approval.

“In this hybrid class and collective action, plaintiffs claim that they worked overtime, they were legally entitled under state and federal law to overtime pay, and [AGC] denied them such payment.” “The crux of the dispute is whether” AGC “improperly classified plaintiffs as exempt employees under Labor Department guidelines and parallel state law.”

To succeed on their motion for approval of the parties’ proposed class and collective action settlement, plaintiffs must first demonstrate compliance with each of the requirements of Rule 23 by a preponderance of the evidence. If plaintiffs satisfy the prerequisites for class certification, the court must evaluate whether the proposed “class action settlement is fair, reasonable and adequate” under Rule 23(e). Further, because the parties propose to settle FLSA claims, the court must assess whether the proposed settlement is fair and reasonable.

Rule 23 requirements. Here, the plaintiffs clearly failed to carry their burden to prove compliance with Rule 23, according to the court. They scarcely attempted to offer “evidentiary proof” to support their pending motion. Previously, the court warned the plaintiffs that “generalized and conclusory” declarations would not be sufficient for Rule 23 class certification. When plaintiffs filed their renewed motion for conditional certification of an FLSA collective action, they submitted declarations and pay stubs for the named plaintiffs, as well as an excerpt of an employee handbook. While the court ruled that these submissions were sufficient for the “modest” showing required for conditional certification of a FLSA collection action, these documents were utterly inadequate “to prove” compliance with Rule 23.

Proposed class not sufficiently definite. To make the required findings of numerosity, commonality, typicality, and adequacy, the court must have “a clear sense” of the membership of the purported class. Here, the plaintiffs failed to offer proof that the key term “field employees” establishes a class “with definite boundaries.”

Ascertainability. In employment matters, “a class is ascertainable where its members can be determined using objective documentation, such as Defendants’ employment records.” Here, the only documentation in the record that uses the term “field employees” is the excerpt of the handbook. But the excerpt does not define “field employees,” nor does any other document in the record.

Further, one of the named plaintiffs did not identify herself as a former field employee in her declaration. Instead, she attests that she was “a MEP superintendent.” Further, she did not mention the term field employee, or any variation of that term, in her declaration.

With respect to the other named plaintiff, he did not expressly identify himself as a former field employee in his declaration, but he did attest that he has “spoken” with “other [AGC] field inspectors who performed similar inspection work as [he] did.” However, he did not attest in his declaration that all field inspectors performed similar work, and the plaintiffs have not submitted any other evidence to that effect. Further, the plaintiffs offered no evidence or argument that all field employees were inspectors.

As such, the oblique references to “field employees,” in the handbook, and “field inspectors,” in an employee declaration, were not sufficient to establish, upon “rigorous analysis,” that the plaintiffs have defined an objectively ascertainable settlement class with definite boundaries.

Rule 23 requirements. The proposed class also did not meet the requirements of Rule 23(a). Here, the plaintiffs’ overtime claims turned on whether the employer misclassified them as exempt employees. In the context of a motion for class certification, the exemption inquiry requires “examination of the duties that the employee actually performs” and “evidence tending to show that the plaintiffs’ jobs were similar in ways material to the establishment of the exemption criteria.” Given the wide “array” of services offered by the employer, a purported class of “field employees” could include employees with materially different “duties that the employee[s] actually perform[,]” different skills and types of training, different amounts of discretion and authority, and different hours.

Because the plaintiffs failed to submit declarations from any of the opt-in plaintiffs or other evidence to demonstrate that field employees’ responsibilities were not primarily administrative and did not meet other exemption criteria, the court could not conclude that the plaintiffs satisfied the requirements of commonality and typicality for a purported class of misclassified employees.

Predominance requirement. The court also concluded that the plaintiffs failed to satisfy the predominance requirement for class certification. Rule 23(b)(3) requires that questions common to the class “predominate over any questions affecting only individual class members.” As such, the court must assess whether answers to common questions “can be achieved through generalized proof” and whether those inquiries are “more substantial than the issues subject only to individualized proof.” To satisfy the predominance requirement in a misclassification case, the plaintiffs must provide evidence “demonstrating that the job duties of putative class members were largely consistent across the class.” Here, the plaintiffs had not done so.

The case is No. 22-cv-5954 (MKV).

Judge: Vyskocil, M.

Attorneys: Eric Lechtzin (Edelson Lechtzin) for Ivan Kovalev and Mintiwab Hill. Charles Albert Lazo (Goldberg Segalla) for A.G. Consulting Engineering, PC.

Companies: A.G. Consulting Engineering, P.C.

Cases: WageHour ClassActions Exemptions Overtime NewYorkNews