PHILADELPHIA — A now decade-long Philadelphia-based union local's claims that a Lititz contractor underpaid workers for electrical jobs during a federally funded Southeastern Pennsylvania Transportation Authority (SEPTA) project now awaits the outcome of a special master's findings.
Bruce P. Merenstein, appointed "special master" in the case, is expected to issue his findings of fact and conclusions by November 15, according to an 18-page memorandum issued Oct. 15 by U.S. District Court Judge Mark A. Kearney.
Merenstein must decide whether Brotherhood of Electrical Workers Local 98's Fair Labor Standards Act complaint against The Farfield Company has triggered provisions under the Supreme Court's 1946 decision in Anderson v. Mt. Clemens Pottery Company. In the Mt. Clemens' decision, the nation's highest court found that work controlled by an employer and performed solely for an employer's benefit is part of working time under Fair Labor Standards Act.
SEPTA's Wayne Junction Station
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Local 98 and Farfield "present a classic question of credibility," Kearney wrote in his memorandum. "Special Master Merenstein must assess the evidence and determine whether a party met its burden. If he finds Local 98 meets its burden based on the phase code timesheets and related evidence, and Farfield fails to meet its burden based on its evidence the phase codes do not show misclassification, then the special master may apply Mt. Clemens principles to evaluate an award of damages to Local 98 'even though the result be only approximate'."
Local 98 sued in September 2009, claiming Farfield violations dated back about seven years prior and that the contractor showed reckless disregard in not complying with the Davis-Bacon Act in the SEPTA project to improve more than seven miles between Wayne Junction and Glenside.
Local 98 alleges Farfield directed groundmen to do skilled work usually performed by qualified electricians but paid the groundmen the lower, unskilled worker rate on a federally funded project and that Farfield subsequently submitted false to government.
"The union claims the contractor paid forty-two men at the lower groundmen or laborer rate for electrical work they performed which should have been paid at the higher journeyman electrician rate," the background portion of Kearney's memorandum said. "The union relies upon the contractor's 'phase code' time sheets produced in discovery and the recollection of fourteen working men."
Local 98 seeks damages based on the misclassification of services provided by the 42 workers.
"The question is how does the union prove these damages for the forty-two allegedly misclassified workers absent all forty-two men testifying as to their workdays over ten years ago?" the memorandum said. "The union asks we impose a higher burden on the employer where it fails to keep employment records as required by the Fair Labor Standards Act and Davis-Bacon Act when employees have no way to establish the time spent doing uncompensated work."
Farfield argues the union's burden shifting, as applied in the Fair Labor Standards Act, can't be applied in the union's False Claims Act case.
Local 98 has argued that Farfield time sheets, where they accurately describe work done by the groundmen and other laborers on the SEPTA project, proves misclassification.
Where no accurate records exist, "the burden shifts to Farfield under Mt. Clemens to show the 'precise amount of work performed or with evidence to negative [sic] the reasonableness of the inference to be drawn from the employee's evidence," Kearney's memorandum said.
Kearney's memorandum was the second he issued in the case in three months.
In August, Kearney denied Farfield's motion for summary judgment, ruling in a memorandum that whether contractor didn't workers the prevailing journeyman rate electrical work remained in question.
In September, U.S. District Court Judge Chief Judge Lawrence Francis Stengel stayed the matter pending referral to the United States Department of Labor to resolve questions about worker classifications and wage determinations.
"We agree whether this burden shifting applies is a narrow issue depending on the special master's fact findings," Kearney's most recent memorandum said. "But like most in limine holdings, we need to provide the evidentiary roadmap for counsel and for the special master's conclusions of law in this case."