Motion for Writ in Daniel Martinez, Rafael Rodriguez, Terrence Bullard, Sunghai Anderson, Ryan Hamilton, Steven Haynes, Andy Rolle v. Excell Communications, Inc., Abel Barbosa| Trellis.Law

On November 16, 2023 a Complaint,Petition was filed involving a dispute between Andy Rolle, Daniel Martinez, Rafael Rodriguez, Ryan Hamilton, Steven Haynes, Sunghai Anderson, Terrence Bullard, and Abel Barbosa, Excell Communications, Inc., for Torts - Other (New York Labor Law claims) in the District Court of Nassau County.

Preview
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-----------------------------------------------------------------------X
DANIEL MARTINEZ, RAFAEL RODRIGUEZ,
TERRENCE BULLARD, SUNGHAI ANDERSON,
RYAN HAMILTON, STEVEN HAYNES, and
ANDY ROLLE, on behalf of themselves and all SUMMONS
other persons similarly situated,

Plaintiffs,

-against-

EXCELL COMMUNICATIONS, INC. and ABEL
BARBOSA,

Defendants.
-----------------------------------------------------------------------X

TO THE ABOVE-NAMED DEFENDANTS:

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve

a copy of your answer, or if the complaint is not served with this summons to serve a notice of

appearance, on the Plaintiffs’ attorney within 20 days after the service of this summons exclusive

of the day of service, where service is made by delivery upon you personally within the state, or

within 30 days after completion of service where service is made in any other manner. In case of

your failure to appear or answer, judgment will be taken against you by default for the relief

demanded in the complaint.

The basis of venue is CPLR § 501, and Defendant Excell Communications, Inc.’s residence

in Nassau County and Nassau County is where a substantial part of the events or omissions giving

rise to the claim occurred, pursuant to CPLR § 503.

1 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

Dated: Hauppauge, New York
November 16, 2023

ROMERO LAW GROUP PLLC
Attorneys for Plaintiffs
490 Wheeler Road, Suite 250
Hauppauge, New York 11788
Tel.: (631) 257-5588

By: ______________________________
DAVID D. BARNHORN, ESQ.
PETER A. ROMERO, ESQ.

TO: EXCELL COMMUNICATIONS, INC.
111 Express Street
Plainview, New York 11803

ABEL BARBOSA
111 Express Street
Plainview, New York 11803

2 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

Plaintiffs,

-against-

EXCELL COMMUNICATIONS, INC. and ABEL
BARBOSA,

Defendants.
-----------------------------------------------------------------------X

Plaintiffs, Daniel Martinez, Rafael Rodriguez, Terrence Bullard, Sunghai Anderson, Ryan

Hamilton, Steven Haynes and Andy Rolle, on behalf of themselves and all other persons similarly

situated, by and through their counsel, the Romero Law Group PLLC, complaining of the

Defendants, Excell Communications, Inc. and Abel Barbosa (“Defendants”), allege as follows:

INTRODUCTION

1. Plaintiffs bring this lawsuit as a class action pursuant to Civil Practice Law and

Rules (“CPLR”) § 901 et seq. on behalf of themselves and similarly-situated current and former

employees of Defendants who worked as non-exempt, hourly-paid individuals employed in

manual positions including, but not limited to, fiber optic installation technicians, warehouse

workers, telecommunications linemen, fleet technicians, fleet shifters, and other similarly situated

hourly-paid employees, in the State of New York at any time during the period of July 18, 2016

through September 5, 2022 (hereinafter as “Class Action Period”), for violations of the New York

Labor Law and the supporting New York State Department of Labor regulations (“NYLL”).

3 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

2. Plaintiffs bring this action to recover unpaid overtime wages under the NYLL,

unpaid wages stemming from Defendants’ failure to pay Plaintiffs wages for all hours worked at

their agreed upon rates of pay under the NYLL, damages for failure to timely pay wages earned as

required by NYLL §§ 191, 198, damages for failure to provide accurate wage statements for each

pay period under NYLL §§ 195(3), 198, damages for failure to provide a wage notice upon their

hire under NYLL §§ 195(1), 198, and any other cause(s) of action that can be inferred from the

facts set forth herein.

3. Managers and others with executive positions, who are paid fixed salaries, are not

members of the class that Plaintiff seeks to represent in this action.

4. Other than the Named Plaintiffs, the Class shall also exclude any individuals who

have filed causes of action in Court or in any administrative agency, or who have asserted causes

of action against Defendants informally through a demand letter, who asserted any of the same

causes of action as those asserted in this Class Acton Complaint.

PARTIES

5. Plaintiff Daniel Martinez is a resident of the State of New York.

6. Plaintiff Martinez is/was an “employee” within the meaning of NYLL § 190(2)

and a “manual worker” within the meaning of NYLL § 190(4).

7. Plaintiff Rafael Rodriguez is a resident of the State of New York.

8. Plaintiff Rodriguez is/was an “employee” within the meaning of NYLL § 190(2)

and a “manual worker” within the meaning of NYLL § 190(4).

9. Plaintiff Terrence Bullard is a resident of the State of New York.

10. Plaintiff Bullard is/was an “employee” within the meaning of NYLL § 190(2) and

a “manual worker” within the meaning of NYLL § 190(4).

4 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

11. Plaintiff Sunghai Anderson is a resident of the State of New York.

12. Plaintiff Anderson is/was an “employee” within the meaning of NYLL § 190(2)

and a “manual worker” within the meaning of NYLL § 190(4).

13. Plaintiff Ryan Hamilton is a resident of the State of New York.

14. Plaintiff Hamilton is/was an “employee” within the meaning of NYLL § 190(2)

and a “manual worker” within the meaning of NYLL § 190(4).

15. Plaintiff Steven Haynes is a resident of the State of New York.

16. Plaintiff Haynes is/was an “employee” within the meaning of NYLL § 190(2) and

a “manual worker” within the meaning of NYLL § 190(4).

17. Plaintiff Andy Rolle is a resident of the State of New York.

18. Plaintiff Rolle is/was an “employee” within the meaning of NYLL § 190(2) and a

“manual worker” within the meaning of NYLL § 190(4).

19. Defendant Excell Communications, Inc. is a foreign business corporation formed

in the State of Alabama with corporate headquarters and a principal place of business at 111

Express Street, Plainview, New York 11803.

20. At all times relevant, Defendant Excell Communications, Inc. was and still is an

“employer” within the meaning of NYLL § 190(3).

21. At all times relevant, Defendant Abel Barbosa (“Barbosa”) is and was the Chief

Executive Officer and/or an owner for the corporate Defendant, as well as a manager for the

Corporate Defendant, was active in the day to day management of the corporate Defendant,

responsible for the payment of Plaintiffs’ and other employees’ wages, determining what wages

were paid to Plaintiffs and other employees, supervises and controls employee work schedules

and conditions of employment, had the power to hire, fire and discipline employees, had authority

5 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

to make all personnel decisions, was responsible for maintaining personnel records relating to

Plaintiffs’ and other employees’ employment, and is liable to Plaintiffs as an “employer” within

the meaning of the NYLL.

CLASS ACTION ALLEGATIONS

22. Plaintiff brings his First through Fifth Causes of Action on behalf of themselves,

individually, and a class of persons under CPLR § 901 et seq. consisting of all current and former

employees of Defendants who worked as non-exempt, hourly-paid individuals employed in

manual positions including, but not limited to, fiber optic installation technicians, warehouse

workers, telecommunications linemen, fleet technicians, fleet shifters, and other similarly situated

hourly-paid employees, in the State of New York at any time during the period of July 18, 2016

through September 5, 2022 (hereinafter referred to as the “Class” or the “Class Members”).

23. Other than the named Plaintiffs, the Class shall exclude all other individuals who

have filed causes of action in Court or in any administrative agency, or who have asserted causes

of action against Defendants informally through a demand letter, who asserted any of the same

causes of action as those asserted in this Class Action Complaint.

24. Upon information and belief, Defendants employed persons who worked in various

positions including, but not limited to, fiber optic installation technicians, warehouse workers,

telecommunications linemen, fleet technicians, fleet shifters, and other hourly-paid employees.

25. The Class Members are readily ascertainable. The number and identity of the Class

Members are determinable from the records of Defendants. Upon information and belief, there

are more than forty Class Members who have worked for Defendants in covered positions as Class

Members in the State of New York in during the Class Action Period. The hours assigned and

worked, the positions held, and rates of pay for each Class Member may also be determinable from

6 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

Defendants’ records. For purposes of notice and other purposes related to this action, their names

and addresses are readily available from Defendants. Notice can be provided by means permissible

under CPLR § 901 et seq.

26. The proposed Class is numerous such that a joinder of all members is impracticable,

and the disposition of their causes of action as a class will benefit the parties and the Court.

Although the precise number of such persons is unknown because the facts on which the

calculation of that number rests are presently within the sole control of Defendants, upon

information and belief, there are more than forty individuals who are currently, or have been,

employed by Defendants in covered positions as Class Members in the State of New York at any

time the Class Action Period

27. There are questions of law and fact common to the Class which predominate over

any questions affecting only individual class members, including, but not limited to, whether

Defendants failed and/or refused to pay the Plaintiffs and Class Members overtime compensation

at their correct rates of pay for all hours worked in excess of forty hours in a single workweek,

whether Defendants failed and/or refused to pay the Plaintiffs and Class Members at their

applicable agreed upon rates of pay for their hours worked, whether Defendants’ general practice

of failing and/or refusing to pay Plaintiffs and the Class Members overtime pay and/or their

compensation at their agreed upon rates of pay was done willfully and/or with reckless disregard

of the state wage and hour laws, whether Defendants paid Plaintiffs and Class Members on a bi-

weekly or semi-monthly basis in violation of NYLL § 191, whether Defendants failed to furnish

the Plaintiffs and the Class Members with accurate wage statements for each pay period, whether

Defendants failed to furnish the Plaintiffs and the Class Members with compliant wage notices at

7 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

their times of hire, and the nature and extent of the Class-wide injury and the appropriate measure

of damages for the class.

28. Plaintiffs’ causes of action are typical of the causes of action of the Class that they

seek to represent. Defendants failed to pay Plaintiffs and the Class Members required overtime

compensation under the NYLL during workweeks where they worked in excess of 40 hours.

Defendants failed to pay Plaintiffs and the Class Members compensation at their agreed upon rates

of pay for certain hours worked during their workweeks under the NYLL. Defendants failed to

pay Plaintiffs “on a weekly basis and not later than seven calendar days after the end of the week

in which the wages are earned,” as required by NYLL § 191. Defendants failed to furnish Plaintiffs

and the Class Members with accurate wage statements in violation of NYLL § 195(3). Defendants

failed to furnish Plaintiffs and the Class Members with compliant wage notices at their times of

hire in violation of NYLL § 195(1). Additionally, Defendants’ failure to timely pay wages earned

caused Plaintiffs and the Class Members to suffer the same or similar harms and damages.

Plaintiffs’ causes of action are typical of those causes of action that could be alleged by any

member of the Class, and the relief sought is typical of the relief that would be sought by each

member of the Class in separate actions.

29. All the Class Members were subject to the same corporate-wide practices of

Defendants. Defendants’ corporate-wide policies and practices affected all Class Members

similarly, and Defendants benefited from the same type of unfair and/or wrongful acts as to each

Class Member. Additionally, Defendants’ violations of the NYLL, including but not limited to

NYLL § 191 by failing to timely pay wages earned, caused Plaintiffs and other Class Members to

suffer the same or similar harms. Plaintiffs and other Class Members sustained similar losses,

injuries and damages arising from the same unlawful policies, practices, and procedures.

8 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

30. Plaintiffs are able to fairly and adequately protect the interests of the Class and have

no interests antagonistic to the Class. Plaintiffs have retained counsel competent and experienced

in class actions, wage and hour litigation, and employment litigation.

31. A class action is superior to other available methods for the fair and efficient

adjudication of litigation, particularly in the context of wage and hour litigation like the present

action, where individual Plaintiffs may lack the financial resources to vigorously prosecute a

lawsuit in court against a corporate defendant.

32. Class action treatment will permit a large number of similarly situated persons to

prosecute their common causes of action in a single forum simultaneously, efficiently, and without

the unnecessary duplication of efforts and expense that numerous individual actions engender. The

adjudication of individual litigation causes of action would result in a great expenditure of Court

and public resources; however, treating the causes of action as a class action would result in a

significant savings of these costs. The prosecution of separate actions by individual Class

members would create a risk of inconsistent and/or varying adjudications with respect to the

individual Class members, establishing incompatible standards of conduct for the Defendants.

Moreover, the issues in this action can be decided by means of common, class-wide proof.

33. The members of the Class have been damaged and are entitled to recovery as a

result of Defendants’ common and uniform policies, practices, and procedures. Although the

relative damages suffered by individual Class Members are not de minimis, such damages are

small compared to the expense and burden of individual prosecution of this litigation.

34. In addition, class treatment is superior because it will obviate the need for unduly

duplicative litigation that may result in inconsistent judgments about Defendants’ practices.

9 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

35. Furthermore, current employees are often afraid to assert their rights out of fear of

direct or indirect retaliation. Former employees are fearful of bringing causes of action because

doing so can harm their employment, future employment, and future efforts to secure employment.

Class actions provide Class Members who are not named in the Complaint a degree of anonymity,

which allows for the vindication of their rights while eliminating or reducing those risks.

PLAINTIFFS’ FACTUAL ALLEGATIONS

36. Defendants operate a project management firm engaged in the installation of

network infrastructure for the wireless, fiber and utility industries in the State of New York.

37. Defendants have annual gross revenue in excess of $41.8 million.

38. Defendants employ fiber optic installation technicians, warehouse workers,

telecommunications linemen, fleet technicians, fleet shifters, and other hourly-paid employees in

the State of New York who are “manual workers” within the meaning of NYLL § 190(4). Plaintiffs

and other Class Members spend more than twenty-five percent of their hours worked each week

performing manual tasks.

Plaintiff Martinez

39. Plaintiff Martinez was employed by Defendants as a fiber optic installation

technician from in or about March 2022 until in or about Summer 2023.

40. Plaintiff Martinez’s job duties included the installation of fiber optic cabling to

provide residences and businesses with high-speed internet access; installing, repairing, and

maintaining fiber optic cables, wires, and plug-in active equipment to connect telecommunication

systems and equipment; connecting wires and cables to terminals and attaches/detaches various

kinds of hardware to wires, cables, buildings, or poles; and performing tasks such as placing cable,

air pipe, and inner duct in various types of conduit systems and open excavations. Plaintiff

10 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

Martinez’s job duties required him to perform manual tasks including, but not limited to,

prolonged periods of standing, walking, climbing, bending, lifting, and carrying. Plaintiff

Martinez spent more than twenty-five percent of his hours worked each week performing physical

– and therefore manual – tasks.

Plaintiff Rodriguez

41. Plaintiff Rodriguez was employed by Defendants as a fiber optic installation

technician from in or about April 2020 until in or about Summer 2023.

42. Plaintiff Rodriguez’s job duties included the installation of fiber optic cabling to

provide residences and businesses with high-speed internet access; installing, repairing, and

maintaining fiber optic cables, wires, and plug-in active equipment to connect telecommunication

systems and equipment; connecting wires and cables to terminals and attaches/detaches various

kinds of hardware to wires, cables, buildings, or poles; and performing tasks such as placing cable,

air pipe, and inner duct in various types of conduit systems and open excavations. Plaintiff

Rodriguez’s job duties required him to perform manual tasks including, but not limited to,

prolonged periods of standing, walking, climbing, bending, lifting, and carrying. Plaintiff

Rodriguez spent more than twenty-five percent of his hours worked each week performing

physical – and therefore manual – tasks.

Plaintiff Bullard

43. Plaintiff Bullard was employed by Defendants as a fiber optic installation

technician from in or about December 2021 until in or about September 2022.

44. Plaintiff Bullard’s job duties included the installation of fiber optic cabling to

provide residences and businesses with high-speed internet access; installing, repairing, and

maintaining fiber optic cables, wires, and plug-in active equipment to connect telecommunication

11 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

systems and equipment; connecting wires and cables to terminals and attaches/detaches various

kinds of hardware to wires, cables, buildings, or poles; and performing tasks such as placing cable,

air pipe, and inner duct in various types of conduit systems and open excavations. Plaintiff

Bullard’s job duties required him to perform manual tasks including, but not limited to, prolonged

periods of standing, walking, climbing, bending, lifting, and carrying. Plaintiff Bullard spent

more than twenty-five percent of his hours worked each week performing physical – and therefore

manual – tasks.

Plaintiff Anderson

45. Plaintiff Anderson was employed by Defendants as fiber optic installation

technician from in or about March 2022 until in or about Summer 2023.

46. Plaintiff Anderson’s job duties included the installation of fiber optic cabling to

provide residences and businesses with high-speed internet access; installing, repairing, and

maintaining fiber optic cables, wires, and plug-in active equipment to connect telecommunication

systems and equipment; connecting wires and cables to terminals and attaches/detaches various

kinds of hardware to wires, cables, buildings, or poles; and performing tasks such as placing cable,

air pipe, and inner duct in various types of conduit systems and open excavations. Plaintiff

Anderson’s job duties required him to perform manual tasks including, but not limited to,

prolonged periods of standing, walking, climbing, bending, lifting, and carrying. Plaintiff

Anderson spent more than twenty-five percent of his hours worked each week performing

physical – and therefore manual – tasks.

47. Throughout his employment with Defendants, Plaintiff Anderson was

compensated at a rate of $28.00 per hour.

12 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

48. Throughout his employment with Defendants, Plaintiff Anderson regularly

worked more than 40 hours per workweek.

49. Throughout his employment with Defendants, Plaintiff Anderson had a thirty (30)

minute meal break automatically deducted from his hours worked.

50. However, throughout his employment with Defendants, Plaintiff Anderson never

received an uninterrupted meal break because of his daily workload or by order of his supervisors.

51. Throughout the Class Action Period, Defendants paid Class Members in the same

or similar manner causing Class Members to similarly suffer from Defendants’ policy of auto-

deducting meal breaks from employees’ hours worked and failing to pay for these hours worked.

Plaintiff Hamilton

52. Plaintiff Hamilton was employed by Defendants as a fiber optic installation

technician from in or about November 2021 until on or about December 28, 2022.

53. Plaintiff Hamilton’s job duties included the installation of fiber optic cabling to

provide residences and businesses with high-speed internet access; installing, repairing, and

maintaining fiber optic cables, wires, and plug-in active equipment to connect telecommunication

systems and equipment; connecting wires and cables to terminals and attaches/detaches various

kinds of hardware to wires, cables, buildings, or poles; and performing tasks such as placing cable,

air pipe, and inner duct in various types of conduit systems and open excavations. Plaintiff

Hamilton’s job duties required him to perform manual tasks including, but not limited to,

prolonged periods of standing, walking, climbing, bending, lifting, and carrying. Plaintiff

Hamilton spent more than twenty-five percent of his hours worked each week performing

physical – and therefore manual – tasks.

13 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

Plaintiff Haynes

54. Plaintiff Haynes was employed by Defendants as a fleet technician and fleet shifter

from in or about February 2022 until in or about December 2022.

55. Plaintiff Haynes’ job duties included the maintenance and repair of Defendants’

vehicles, dropping off vehicles for repairs, picking up parts or delivering vehicles in the field,

running parts to various locations, and checking vehicles to identify basic maintenance needed.

Plaintiff Haynes’ job duties required him to perform manual tasks including, but not limited to,

prolonged periods of standing, walking, climbing, bending, lifting, and carrying. Plaintiff Haynes

spent more than twenty-five percent of his hours worked each week performing physical – and

therefore manual – tasks.

Plaintiff Rolle

56. Plaintiff Rolle was employed by Defendants as fiber optic technician and insulator

from on or about February 14, 2022 until on or about June 1, 2022.

57. Plaintiff Rolle’s duties included the installation of fiber optic cabling to provide

residences and businesses with high-speed internet; installing and maintaining fiber optic cables,

wires, and equipment at customers’ residences and businesses; repairing cables and equipment at

customers business and residences; and climbing and repairing utility poles on the street. Plaintiff

Rolle’s job duties required him to perform manual tasks including, but not limited to, prolonged

periods of standing, walking, climbing, bending, lifting, and carrying. Plaintiff Rolle spent more

than twenty-five percent of his hours worked each week performing physical – and therefore

manual – tasks.

58. Throughout his employment with Defendants, Plaintiff Rolle was compensated at

a rate of $28.00 per hour.

14 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

59. Throughout his employment with Defendants, Plaintiff Rolle regularly worked

more than 40 hours per workweek.

60. Throughout his employment with Defendants, Plaintiff Rolle had a thirty (30)

minute meal break automatically deducted from his hours worked.

61. However, throughout his employment with Defendants, Plaintiff Rolle did not

receive an uninterrupted meal break during approximately four (4) to five (5) times workdays per

week and was required to return to work as a result of his daily workload or by order of his

supervisors.

62. Throughout the Class Action Period, Defendants paid Class Members in the same

or similar manner causing Class Members to similarly suffer from Defendants’ policy of auto-

deducting meal breaks from employees’ hours worked and failing to pay for these hours worked.

63. Throughout his employment with Defendants, Plaintiff Rolle was required to clock

out at the end of his shift. However, if Plaintiff Rolle was in the middle of a job, Plaintiff Rolle

was required to clock out and continue working and finish the job, and was not compensated for

this work performed off the clock. Additionally, approximately twice per week, Plaintiff Rolle

had to report to the warehouse after his shift had ended to resupply his equipment for the next

day, all while off the clock and without compensation for their time worked.

64. Throughout the Class Action Period, Defendants paid Class Members in the same

or similar manner causing Class Members to similarly suffer from Defendants’ policy of requiring

employees to finish jobs off the clock after their scheduled shift had ended without compensation

for their time worked.

15 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

Plaintiffs and Class Members

65. Throughout the Class Action Period, Defendants employed fiber optic quality

control techs who connect wires and cables to terminals and attach/detach various kinds of

hardware to wires, cables, buildings, or poles; perform aerial tasks such as new cable installs, pole

transfers, strand building, cable hanging, lashing; and place cable, air pipe and inner duct in

various types of conduit systems and open excavations. Fiber optic quality control techs’ job

duties required them to perform manual tasks including, but not limited to, prolonged periods of

standing, walking, climbing, bending, lifting, and carrying. Fiber optic quality control techs

spend more than twenty-five percent of their hours worked each week performing physical – and

therefore manual – tasks.

66. Throughout the Class Action Period, Defendants employed fiber optic installation

technicians who are responsible for the installation of fiber optic cabling to provide residences

and businesses with high-speed internet access; installing, repairing, and maintaining fiber optic

cables, wires, and plug-in active equipment to connect telecommunication systems and

equipment; connecting wires and cables to terminals and attaches/detaches various kinds of

hardware to wires, cables, buildings, or poles; and performing tasks such as placing cable, air

pipe, and inner duct in various types of conduit systems and open excavations. Fiber optic

installation technicians’ job duties required them to perform manual tasks including, but not

limited to, prolonged periods of standing, walking, climbing, bending, lifting, and carrying. Fiber

optic installation technicians spend more than twenty-five percent of their hours worked each

week performing physical – and therefore manual – tasks.

67. Throughout the Class Action Period, Defendants employed warehouse workers

who pick material orders for their field crews and vendors, operate warehouse equipment and are

16 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

responsible for general warehouse and property upkeep. Warehouse workers’ job duties required

them to perform manual tasks including, but not limited to, prolonged periods of standing,

walking, climbing, bending, lifting, and carrying. Warehouse workers spend more than twenty-

five percent of their hours worked each week performing physical – and therefore manual – tasks.

68. Throughout the Class Action Period, Defendants employed fleet shifters who are

responsible for allowing their fleet vehicles to stay on the road by dropping off vehicles for

repairs, picking up parts or delivering vehicles in the field, running parts to various locations, and

checking vehicles to identify basic maintenance needed. Fleet Shifters’ duties required them to

perform manual tasks including, but not limited to, prolonged periods of standing, walking,

climbing, bending, lifting, and carrying. Fleet shifters spend more than twenty-five percent of

their hours worked each week performing physical – and therefore manual – tasks.

69. Throughout the Class Action Period, Defendants failed to pay Plaintiffs and Class

Members “on a weekly basis and not later than seven calendar days after the end of the week in

which the wages are earned” as required by NYLL § 191. Instead, Defendants paid Plaintiffs and

Class Members on a bi-weekly basis pursuant to their payroll policy in violation of NYLL § 191.

70. Throughout the Class Action Period, Plaintiffs and Class Members suffered an

underpayment of wages each pay period because Defendants failed to pay their wages on a weekly

basis and not later than seven calendar days after the end of the week in which the wages were

earned, as required by NYLL § 191.

71. Plaintiffs and Class Members are manual workers who depend upon their wages

for sustenance and suffer harm that is particularly acute when their wages are delayed, and they

are temporarily deprived of their earned wages.

17 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

72. Every time that Defendants failed to pay Plaintiffs and Class Members their wages

earned within seven days of the end of the workweek, Defendants deprived them of the use of

money that belonged to them. As a result, Plaintiffs and Class Members were unable to do those

things that every person does with their money, such as paying bills or buying goods that they

needed or wanted to buy. Moreover, as a result of Defendants retaining money that belonged to

Plaintiffs and Class Members, Plaintiffs and Class Members lost the time value of money.

73. Throughout the Class Action Period, Defendants failed to provide Plaintiffs and

the Class Members with accurate wage statements indicating, inter alia, their accurate regular

and overtime rates of pay, number of regular and overtime hours worked, or their correct gross

pay, net pay, or deductions, during each pay period as required by NYLL § 195(3).

74. Throughout the Class Action Period, Defendants did not provide Plaintiffs and the

Class Members with compliant notices at their time of hire that stated, inter alia, their rates of

pay, the basis thereof, their regular pay day, and other information as required by NYLL § 195(1).

75. Throughout the Class Action Period, Defendants treated and paid Plaintiffs and

the Class Members in the same or similar manner pursuant to Defendants’ corporate-wide payroll

and employment practices.

FIRST CAUSE OF ACTION
(FAILRUE TO PAY OVERTIME WAGES DUE UNDER NYLL)

76. Plaintiffs and Class Members repeat, reiterate, and re-allege each and every

allegation set forth above with the same force and effect as if fully set forth herein.

77. Defendants employed Plaintiffs and Class Members for workweeks longer than

forty (40) hours and willfully failed to compensate the Plaintiffs and Class Members for their time

worked in excess of forty (40) hours per week, at a rate of at least one and one-half times their

regular hourly rate, in violation of NYLL.

18 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

78. By Defendants’ failure to pay Plaintiffs and Class Members overtime wages for

hours worked in excess of 40 hours per week, Defendants willfully violated the NYLL and the

supporting New York State Department of Labor Regulations, including 12 N.Y.C.R.R. § 142.

79. Defendants’ violations of the NYLL, as described in this Complaint, have been

willful and intentional.

80. Due to Defendants’ violations of the NYLL, Plaintiffs and Class Members are

entitled to recover from Defendants unpaid overtime wages, liquidated damages, reasonable

attorneys’ fees and costs of the action, and interest as permitted by law.

SECOND CAUSE OF ACTION
(FAILURE TO PAY WAGES DUE UNDER NYLL)

81. Plaintiffs and Class Members repeat, reiterate, and re-allege each and every

allegation set forth above with the same force and effect as if fully set forth herein.

82. NYLL §§ 190, 191, 198 and 663(1) require that employers pay wages to their

employees in accordance with their agreed terms of employment.

83. Defendants failed to compensate Plaintiffs and Class Members at their regular rate

of pay for certain hours that they worked in accordance with their agreed terms of employment.

84. Defendants’ violations of the NYLL, as described in this Complaint, have been

willful and intentional.

85. Due to Defendants’ violations of the NYLL, Plaintiffs and Class Members are

entitled to recover for all hours worked for Defendants but for which Defendants did not provide

compensation at their regular rates of pay.

86. Due to Defendants’ violations of the NYLL, Plaintiffs and Class Members are also

entitled to liquidated damages, attorneys’ fees, costs, and interest as permitted by law for

Defendants’ failure to pay wages in accordance with their agreed terms of employment.

19 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

THIRD CAUSE OF ACTION
(FREQUENCY OF PAY VIOLATION UNDER NYLL § 191)

87. Plaintiffs and Class Members repeat, reiterate, and re-allege each and every

allegation set forth above with the same force and effect as if fully set forth herein.

88. Plaintiffs and Class Members were “manual workers” within the meaning of NYLL

§ 190(4).

89. Defendants were required to pay the Plaintiffs and Class Members on a weekly

basis, and not later than seven days after the end of the workweek in which the wages were earned,

pursuant to NYLL § 191.

90. Defendants failed to pay Plaintiffs and Class Members on a weekly basis and

instead paid Plaintiffs and Class Members bi-weekly or semi-monthly in violation of NYLL § 191.

91. Due to Defendants’ violations of the NYLL, Plaintiffs and Class Members are

entitled to damages equal to the total of the delayed wages and reasonable attorney’s fees and

costs.

FOURTH CAUSE OF ACTION
(VIOLATIONS OF NEW YORK LABOR LAW § 195(3))

92. Plaintiffs and Class Members repeat, reiterate, and re-allege each and every

allegation set forth above with the same force and effect as if fully set forth herein.

93. Defendants failed to provide Plaintiffs and Class Members with accurate statements

of their wages earned, including, inter alia, their accurate regular and overtime rates of pay,

number of regular and overtime hours worked, or correct gross pay, net pay, or deductions, for

each pay period as required by NYLL § 195(3).

20 of 22
FILED: NASSAU COUNTY CLERK 11/16/2023 11:45 PM INDEX NO. 618753/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/16/2023

94. Due to Defendants’ failure to provide Plaintiffs and Class Members with accurate

wage statements as required by NYLL § 195(3), Plaintiffs and Class Members are entitled to

damages, attorneys’ fees and costs of this action.

FIFTH CAUSE OF ACTION
(VIOLATION OF NYLL § 195(1))

95. Plaintiffs and Class Members repeat, reiterate, and re-allege each and every

allegation set forth above with the same force and effect as if fully set forth herein

96. Defendants failed to provide Plaintiffs and Class Members with a written notice

upon their hire regar

Case Info

Judge

Gary F Knobel Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

November 16, 2023

Case Filing Date

November 16, 2023

County

Parties

Abel Barbosa Defendant
Andy Rolle Plaintiff
BARNHORN, DAVID DONALD Attorney for the Plaintiff
Daniel Martinez Plaintiff
Excell Communications, Inc. Defendant
MOORE, DANIEL JOSEPH Attorney for the Defendant
Rafael Rodriguez Plaintiff
Ryan Hamilton Plaintiff
Steven Haynes Plaintiff
Sunghai Anderson Plaintiff
TARIQ, MOHAMMAD IBRAHIM Attorney for the Defendant
Terrence Bullard Plaintiff
PETER ROMERO Attorneys for Plaintiffs

For full print and download access, please subscribe at https://www.trellis.law/.

Complaint,Petition: Daniel Martinez, Rafael Rodriguez, Terrence Bullard, Sunghai Anderson, Ryan Hamilton, Steven Haynes, Andy Rolle v. Excell Communications, Inc., Abel Barbosa

Preview

Case Info

Parties