Federal District Court Opinions
CHOIMBOL v. FAIRFIELD RESORTS, INC., (E.D.Va. 2006)
ENKHBAYAR CHOIMBOL, et al, Plaintiff, v. FAIRFIELD RESORTS,
INC., et al., Defendants. Civil Action No. 2:05cv463.
United States District Court, E.D. Virginia, Norfolk
Division. September 11, 2006
MEMORANDUM OPINION & ORDER
RAYMOND JACKSON, District Judge
This matter comes before the Court on Defendant’s
Fairfield Resorts, Inc. (“Fairfield”), Fairfield Kingsgate
Property Owners Association, Inc. (“Kingsgate”), and
Governor’s Green Vacation Owners Association, Inc.
(“Governor’s Green”), Motion for Partial Judgment on the
Pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. Specifically, Defendants move to dismiss
Counts II (Unjust Enrichment), III (Conspiracy and Fraud),
and IV (Racketeer Influenced and Corrupt Organizations Act
(“RICO”) and RICO conspiracy) of Plaintiff’s Amended
Complaint. For the reasons that follow, Defendant’s Motion
to dismiss Counts II, III, and IV is GRANTED.
I. FACTS AND PROCEDURAL HISTORY
For the purposes of the motion, the Court assumes the
following facts are true. Plaintiffs are current or former
employees of Fairfield Resorts Inc., Robert W. “Bob”
Nunnery (“Nunnery”), Petra Chemical & Consulting, Inc.
(“PC&C”), HK Services, Inc. (“HK Services”), Mykhaylo
“Mike” Sandulyak (“Sandulyak”), Kelly Kahler, Dan Carusone,
Steve Sharkey, Bill Cyphers, Kingsgate Property Owners
Association (“Kingsgate”), A to Z Best Services Inc. (“A
Page 2 to Z”), and Governor’s Green Vacation Owners
Association, Inc. (“Governor’s Green”) (collectively
“Defendants”).
Fairfield is a Florida corporation engaged in the
timeshare business with its headquarters and principal
place of business in Orlando, Florida. Fairfield does
substantial business in the Eastern District of Virginia
including particularly at its Kingsgate, Governor’s Green,
and Patriot Place timeshare locations. Fairfield enlisted
the services of Sandulyak and Nunnery to recruit and hire
immigrants to perform laundry, housekeeping, and other
grounds maintenance services at Fairfield’s properties in
Williamsburg, Virginia. Sandulyak, operating under the name
Carolina Janitorial, is a regional provider of immigrant
labor that conducted business with Ambassador Hospitality
(“Ambassador”) and Proline Management (“Proline”), national
providers of immigrant labor that are commonly owned,
staffed and operated.[fn1]
Before March 6, 2002, Ambassador contacted Fairfield about
providing immigrant labor for its resort and hotel services.
In response, Fairfield referred Ambassador to Nunnery who
negotiated an agreement with Ambassador, in the name and on
behalf of Fairfield. This agreement was forwarded to the
Fairfield’s District Property Manager, Rand Gritts, who
signed the agreement on receipt. The agreement provided
that Plaintiffs would remain employees of Carolina
Janitorial, and thus be Carolina Janitorial’s sole
responsibility. Further, the agreement provided that
Fairfield had no right to supervise, direct or control
Plaintiffs. Through foreign visits and the internet,
Sandulyak began recruiting Plaintiffs in Mongolia, Russia,
Ukraine, Page 3 Slovakia, America and elsewhere to provide
housekeeping, grounds keeping, and other similar services
to Fairfield. However, contrary to the agreement, once
Plaintiffs were employed on Fairfield’s premises, Sandulyak
did not supervise, direct or control Plaintiffs’ work.
There was no Carolina Janitorial manager on premises, and
Sandulyak visited Fairfield’s premises only once every 1-3
months. During the relevant times, Nunnery actually
supervised, directed and controlled Plaintiffs day-to-day
work. This framework continued for over a year.
On April 21, 2003, Nunnery, on behalf of Fairfield,
terminated the contract that existed between Fairfield and
Ambassador. At that time, Nunnery, as the sole shareholder
of PC&C, entered into a new contract on behalf of Fairfield
whereby Ambassador continued the previous working
relationship, but decreased the per worker hour
compensation from $9.50 to $9.35. Business between Nunnery,
PC&C, Fairfield, Ambassador, and Sandulyak continued under
this agreement for approximately two years.
During the relevant time periods, Nunnery, acting on behalf
of and for the benefit of Fairfield, PC&C and HK Services,
supervised Plaintiffs as they provided services to
Fairfield. Further, Nunnery, on behalf of the
aforementioned parties, kept track of Plaintiffs weekly
hours through the use of contract labor summaries,
otherwise known as timecards. Nunnery forwarded these
timecards, through either email or telefax, to Ambassador,
Proline, Sandulyak, and Carolina Janitorial. Once received,
the hours would be divided and invoiced by work areas and
sent, by telefax, to PC&C.
Through HK Services, Nunnery, as sole shareholder, was
also able to provide immigrant labor to Fairfield without
Ambassador or Proline serving as the “middleman.” Nunnery
also supervised, directed and controlled the immigrants
recruited through HK Services. Additionally, during this
period of time, the payment hierarchy first worked as
follows: Fairfield Page 4 paid money for Plaintiffs’
services to Nunnery, who then paid Ambassador, which paid
Carolina Janitorial, who then paid Plaintiffs. However,
Nunnery began withholding money, converting it for his own
personal use, and failing to pay Ambassador. Accordingly,
the hierarchy for payment changed as follows: Fairfield
paid monies for Plaintiffs’ services to Ambassador
directly, who then paid Carolina Janitorial, who then paid
Plaintiffs. However, even with the latter payment structure
in place, Plaintiffs allege that they worked over 40 hours
per week, and were not paid overtime. Plaintiffs allege
that Fairfield, Nunnery and PC&C conspired with Ambassador
and Proline to label Plaintiffs as “subcontractors” or
“contractors” instead of “employees” so as to avoid paying
overtime, and any legal liability associated with such
failure to pay overtime. Plaintiffs allege further that,
during this time, they were required to pay deposits to
Sandulyak, Carolina Janitorial, and Nunnery as a condition
of working.
On or about March 30, 2005, Ambassador sent Fairfield a
new agreement that increased the hourly rate to $9.85.
Ambassador proposed that Fairfield implement a new labor
model by staffing with its own employees under the “H2b
Visa Program” instead of using Sandulyak and Carolina
Janitorial. Fairfield agreed to try the H2b Visa Program
and the agreement was redrafted with a provision for
another hourly rate increase to $10.50, plus overtime.
Ultimately, Fairfield failed to sign the new agreement.
From March 28, 2005 to May 8, 2005, Fairfield continued to
use the payment structure that was in place under the old
agreement.
On May 9, 2005, Fairfield terminated approximately
twenty-two immigrant workers, whose wages had previously
been withheld by Nunnery. Further, Nunnery, on behalf of
Fairfield, advised Ambassador that Fairfield would be
terminating their contract. However, Fairfield told
Sandulyak and Carolina Janitorial that the immigrant
workers had instead abandoned their positions. At this
time, Fairfield allowed Nunnery, HK Services, and PC&C to
Page 5 take the place of Ambassador. Throughout this time,
although Fairfield represented that Nunnery, HK Services,
and PC&C were mere contractors, they engaged in actions and
received benefits of an employee.
Shortly thereafter, Fairfield stopped utilizing the
services of Nunnery, HK Services and PC&C. Fairfield
enlisted and contracted A to Z, another provider of
immigrant workers (operating out of New York), to recruit
workers for Fairfield’s various locations, including
Governor’s Green. As Fairfield’s new “middleman,” A to Z
supervised, directed and controlled the daily assignments
of the workers. Again, although Fairfield represented that
A to Z was a mere contractor, A to Z engaged in the actions
and received the benefits of an employee.
Plaintiffs allege that by February, 2006, Fairfield
knowingly delayed paying the hourly wages of immigrant
workers through A to Z for weeks. As a result, A to Z
threatened to cause a work stoppage by the workers. Due to
their strained relationship, Fairfield once again, replaced
its middleman. A to Z was replaced by SCC of Miami (“SCC”).
Presently, SCC funnels immigrant labor to Fairfield,
specifically, Latino and/or Hispanic workers.
Plaintiffs alleges that Fairfield continues to conspire
with both, A to Z and SCC to manipulate and falsify hourly
rates of immigrant workers by misrepresenting the minimum
wage and overtime pay for which they are entitled.
Plaintiffs allege that Fairfield preyed and continues to
prey on the ignorance of the majority of immigrant workers
who could not and still cannot speak, read or write the
English language. On August 8, 2005, Plaintiffs filed their
initial complaint.[fn2] Shortly thereafter, Plaintiffs
filed their first amended complaint on August 17, 2005.
Page 6 On October 18, 2005, the Court granted Plaintiffs
leave to file a second amended complaint. Fairfield filed
its answer to the second amended complaint on November 14,
2005. At the same time, Fairfield filed a Motion for
Partial Dismissal of the Complaint. Plaintiffs filed a
Memorandum in Opposition to the Motion for Partial
Dismissal on November 28, 2005. Fairfield filed a reply on
December 5, 2005. The Court DENIED Fairfield’s Motion for
Partial Dismissal on March 2, 2006. On April 27, 2006,
Plaintiffs filed their corrected third amended complaint.
On May 11, 2006, and May 17, 2006, both Fairfield and HK
Services, Inc., filed answers to the corrected third
amended complaint. On July 14, 2006, Fairfield, Kingsgate
and Governor’s Green filed a motion for judgment on the
pleadings on their behalf and on behalf of all Defendants.
Plaintiffs filed a Memorandum in Opposition to the Motion
for Partial Dismissal on July 28, 2006. This matter is now
ripe for adjudication.
II. LEGAL STANDARD
Pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure, a motion for judgment on the pleadings is
governed by the same standards applied to 12(b)(6) motion
to dismiss for failure to state a claim. Dauster v.
Household Credit Servs., Inc., 396 F.Supp. 2d 663, 664
(E.D. Va. 2005) ; Edwards v. City of Goldsboro, 178 F.3d
231, 243 (4th Cir. 1999). That is, as with a motion to
dismiss, the Court accepts all facts alleged in the
complaint as true and draws all reasonable factual
inferences in the Plaintiff’s favor. Am Chiropractic Ass’n
v. Trigon Healthcare, Inc., 367 F.3d 212, 229 (4th Cir.
2004) (citing Mylan Lab., Inc. v. Matkari, 7 F.3d 1130,
1134 n. 4 (4th Cir. 1993)). Moreover, in evaluating a Rule
12(c) motion for judgment on the pleadings, the Court is
limited to considering facts alleged in the complaint, any
documents either attached to or incorporated in the
complaint, matters of which the Court must take judicial
Page 7 notice, and matters of public record. In order to
find for the movant, the Court “must find beyond a doubt
that the plaintiff could prove no set of facts in support
of his claims which would entitle him to relief.” Bruce v.
Riddle, 631 F.2d 272, 273-74 (4th Cir. 1980).
III. DISCUSSION
Plaintiffs’ first cause of action under Count I seeks
compensation for Defendants’ failure to properly compensate
Plaintiffs for minimum wage and overtime under the Fair
Labor Standards Act of 1938 (“FLSA”). 29 U.S.C. §
207. Count II of Plaintiffs’ complaint alleges that the
Defendants were unjustly enriched as a result of the
Defendants’ permanent withholding of Plaintiffs’ security
deposits which were required as a condition for working,
and withholding of the complete payment of weekly wages
including overtime compensation, due to Plaintiffs. Count
III contends that Defendants conspired to, and in fact,
committed fraud by knowingly and intentionally
misrepresenting to Plaintiffs that they were being
compensated appropriate minimum and overtime wages. Count
IV alleges that Defendants committed predicate acts of mail
fraud, wire fraud and money laundering in violation of the
Racketeering Influenced and Corrupt Organizations Act
(“RICO”). Defendants move to dismiss Counts II, III and IV
based on the assertion that the common law claims of unjust
enrichment, fraud and conspiracy and the statutory claims
under RICO are preempted by the Plaintiffs’ claims under
Count I pursuant to the FLSA. Page 8
A. Common Law Claims
Defendants assert specifically, that the provisions of
FLSA provide exclusive remedies for all of the alleged
violations in this case, including both claims under Counts
II and III. Plaintiffs counter argue that the FLSA does not
explicitly pre-empt state tort law claims, noting for
example, that the terms of the FLSA allows for states and
municipalities to enact wage and hour legislation that is
stricter than what is provided for in the FLSA. See 29
U.S.C. § 218(a); see also Williamson v. Gen.
Dynamics Corp., 208 F.3d 1144, 1151 (9th Cir. 2000)
(holding that there was no preemption because the plaintiffs
were never subject to the FLSA’s anti-retaliation provision
and thus, their common law claim for fraud did “not merely
duplicate possible federal retaliation claims”). Plaintiffs
further argue that the law is “unsettled” with respect to
whether the FLSA precludes common law claims. The Court
will address the common law claims in Counts II and III
simultaneously.
Although it has yet to address common law preemption, the
Fourth Circuit has employed the preemption principle in
holding that the FLSA precluded a plaintiff’s separate
statutory claim under § 1983. See Kendall v. City of
Chesapeake, 174 F.3d 437, 443 (4th Cir. 1989) (holding that
the detailed remedies in the FLSA preempts the enforcement
claims under § 1983 brought by plaintiffs). In
addition, district courts considering FLSA and common law
preemption have instructed that despite the lack of
explicit preemption language in the statute, it is
Congress’ clear intent that the FLSA be “the sole remedy
available to employees for enforcement of whatever rights
he may have under the FLSA.” Lerwill v. Inflight Motion
Pictures, Inc., 343 F. Supp. 1027 (N.D. Ca. 1972)
(concluding that Congress intended that FLSA be the
exclusive remedy for enforcing FLSA rights); see also
Johnston v. Davis Security, Inc., Page 9 217 F. Supp. 2d
1224, 1227 (D. Utah 2002) (rejecting reliance on the
state’s ability to apply stricter wage and hour status
under the FLSA as compelling rationale to allow common law
claims).
In reaching this conclusion, the Lerwill court went on to
explain: “A brief review of the legislative history of the
Act, as amended has not revealed an express statement of
such intention. On its face however, a clearer case of
implied intent to exclude other alternative remedies by the
provision of one would be difficult to conceive. It should
not require resort to Latin maxims of construction to show
that the provision of one detailed remedy, which
necessarily works to define the substantive right to be
enforced, would exclude the possibility of alternative
remedies in the absence of a clear showing that Congress
intended such alternatives.” Lerwill, 343 F. Supp. at 1028.
Under Section 216 of the FLSA, any employer violating the
statute shall be liable to employees affected in the amount
of their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional
equal amount as liquidated damages. 29 U.S.C. § 207,
216; see Tombrello v. USX Corp., 763 F.Supp. 541, 544 (N.D.
Ala. 1991). The FLSA directly addresses and provides relief
for the allegations made by Plaintiffs in this case:
overtime and minimum wage compensation. Plaintiffs “cannot
circumvent the exclusive remedy prescribed by Congress by
asserting equivalent state law claims in addition to the
FLSA claim” in this instant case. Nettles v. Techplan
Corp., 704 F. Supp. 95, 100 (D.S.C. 1998) (holding that
plaintiff’s common law negligence claims were preempted by
the FLSA because the statute provided the ability to
recover overtime wages); see also Morrow v. Green Tree
Servicing, L.L.C., 360 Supp. 2d 1246, 1252 (M.D. Ala.
2005). Page 10
Plaintiffs further argues that the common law claims in
Counts II and III are independent of its FLSA claims.
Defendants counter that such claims simply duplicate the
Plaintiffs’ FLSA claims. In light of Congress’ intent to
provide a comprehensive remedial scheme under the FLSA as
previously noted, district courts examining the issue of
preemption have repeatedly focused on whether the factual
basis for claims essentially duplicate or are equivalent to
the plaintiffs’ respective FLSA claims. See, e.g., Petras
v. Johnson, No. 92 Civ. 92 Civ. 8298, 8464 (S.D.N.Y. 1993);
Moeck v. Gray Supply Corp., 2006 WL 42368, at 1-2 (D.N.J.
Jan. 6, 2006) (dismissing fraud claim for material
misrepresentation regarding entitlement to overtime); Chen
v. Street Beat Sportswear, Inc., 364 F. Supp.2d 269
(E.D.N.Y. 2005) (holding that the common law fraud and
negligent misrepresentation claims were overtime claims
directly covered by the FLSA); Johnson v. Davis Security,
Inc., 217 F. Supp. 2d 1224, 1227028 (D. Utah 2002)
(dismissing common law claims because the factual basis did
not give rise to actions separate from plaintiff’s claims
under the FLSA); Lerwill, 343 F. Supp. at 1027.
For example, in Petras, a case very similar to the instant
case, the plaintiff brought suit against the defendant for
common law fraud in conjunction with FLSA claims for
overtime pay and liquidated damages and attorneys fees, on
the grounds that the defendants knowingly and with intent
to misrepresent and deceive the plaintiff, made false
misrepresentations to him to lead him to believe that he
was not entitled to overtime pay. See at 3. The plaintiff
asserted that the claim was independent of the claims under
the FLSA. Id. The court agreed and dismissed the
plaintiff’s common law fraud and punitive damage claims
because those common law claims were “nothing more than a
claim that the defendants intentionally frustrated the
overtime laws, a statutory violation for which Section
216(b) of the statute provides exclusive relief in the form
of Page 11 unpaid compensation plus liquidated damages.”
Id. at 3. See also Chen v. Street Beat Sportswear, Inc.,
364 F. Supp. 2d 269, 293 (E.D.N.Y. 2005) (reasoning that
negligence claims are dismissed because they are based on
the same set of facts as the FLSA claims); compare
Washington v. Fred’s Stores of Tennessee, Inc., 427 F.
Supp. 2d 725 (S.D. Miss. 2006) (the common law negligence
claim was not duplicative of the FLSA claims because it was
based on conduct independent of claims under the FLSA:
defendant’s failure to supervise and manage
employees).[fn3] Likewise, in the instant case, the
Plaintiff’s common law claims under Counts II and III stem
directly from their minimum wage and overtime claims under
the FLSA. Defendants withholding of deposits and
misrepresentation of minimum wage and overtime pay due to
Plaintiffs merely recasts the central claim in this case:
violation of the FLSA. Because the Court finds that the
FLSA provides an exclusive remedial scheme for such
conduct, the Court cannot allow the Plaintiffs’ claims
under Count II and III to proceed.
B. RICO Claims
Defendants also move the Court to dismiss Count IV of the
Plaintiffs’ complaint. Defendants argue that similar to the
common law claims in Counts II and III, the Plaintiffs’
RICO claim must be dismissed because they seek additional
remedies precluded by the FLSA. Plaintiffs respond that
RICO is not preempted by the FLSA because it is
complimentary to and in furtherance of the FLSA.
Specifically, Plaintiffs assert that while the FLSA was
intended to Page 12 remedy “pedestrian” violations by
employers, RICO is designed to address the grand systematic
schemes present in this instant case.
The parties did not provide, and the Court’s research did
not reveal cases directly on point with respect to the
FLSA’s preclusion of RICO claims specifically. However, the
Fourth Circuit’s consideration of whether RICO claims are
preempted by statutes comparable to the FLSA and a careful
review of the remedial schemes of both RICO and the FLSA
provide the Court with compelling logic to determine, as a
matter of law, that Plaintiffs’ RICO claims are precluded
in this case.
The FLSA provides a sufficiently punitive scheme to address
the Defendants’ misconduct in this case. In Kendall v. City
of Chesapeake, the Fourth Circuit relied on this rationale
to uphold the District Court’s finding that the
plaintiff’s independent claims under § 1983 were
precluded by the “comprehensive enforcement scheme that is
incompatible with the individual enforcement under §
1983.” 174 F.3d 437, 443 (4th Cir. 1989). Similar to the
analysis applied with respect to whether the FLSA preempts
parallel common law claims, the court noted that the FLSA’s
“unusually elaborate” enforcement scheme manifested
Congress’ desire to exclusively define the private remedies
available to redress violations of the statute’s terms.”
Id. at 443. See also Zombro v. Baltimore City Police Dept.,
868 F.2d 1364, 1366 (4th Cir. 1989) (explaining that the
mere assertion that another right has been somehow
infringed does not defeat the coverage, application and
exclusivity of a comprehensive statutory scheme
specifically enacted by Congress to redress the alleged
violation of rights).
Analogously, despite Plaintiffs’ contention in this case
that the FLSA fails to sufficiently punish the grand
systematic schemes addressed by RICO (and that Defendants
are attempting to Page 13 immunize themselves from full
liability), the FLSA provides a “careful blend of
administrative and judicial enforcement powers” which
“includes criminal penalties for willful violators of the
minimum wage and overtime provisions; a private right of
action permitting employees to sue in federal or state
court to recover unpaid minimum wage and overtime
compensation, liquidated damages, attorneys fees, and
costs; and authorization for the Secretary of Labor to
supervise payment of unpaid compensation due under the Act
and to bring actions for compensatory and injunctive relief
for violations of the Act’s minimum wage and overtime
provisions.”[fn4] Kendall, 868 F.2d at 443.
The rationale employed by other courts in dismissing RICO
Claims brought along side other statutes which, like the
FLSA, provide comprehensive remedies, also leads the Court
to find Plaintiffs’ RICO claims precluded. See Danielson v.
Burnside-Ott Aviation, Training Center, 746 F. Supp. 170
(D.D.C. 1990), (citing Norman v. Niagara Mohawk Power
Corp., 873 F.2d 634, 637-638 (2d Cir. 1989) (RICO dismissed
where Energy Reorganization Act provided exclusive remedy
for plaintiff’s claims)); Bodimetric Health Servs., Inc. v.
Aetna Life & Casualty, 903 F.2d 480, 486-87 (holding that
RICO claim is precluded by administrative benefits
determination procedure under the Social Security Act);
Butchers’ Union, Local No. 498 v. SDC Inv., Inc., 631
F.Supp. 1001 (E.D. Cal. 1986). For example, in Danielson,
the court dismissed the plaintiffs’ RICO claim based on
allegations pursuant to the Services Contract Act
(“SCA”).[fn5] Page 14 Relying on reasoning employed in
earlier cases, the Danielson court noted that the
plaintiff’s alleged fraudulent scheme including among other
things, mail fraud and intentionally defrauding employees,
was essentially an underpayment of wages and fringe
benefits claim pursuant to the SCA. Danielson, 746 F. Supp.
at 176. The Court explained: “Plaintiffs’ RICO Claims are
all premised on alleged violations of the SCA. However, the
SCA expressly assigns the responsibility for determining
and enforcing wage levels and other employee benefits to
the DOL. Allowing [p]laintiffs to proceed with their RICO
claims would . . . upset the careful blend of
administrative and judicial powers that Congress has
created under the SCA. . . .” Id. The court further noted
that plaintiffs’ RICO claims “stripped to its core” alleged
violations under the SCA. Id. at 177. The same is true in
this instant case. But for the proscriptions of the FLSA,
the Defendants conduct would not constitute the fraudulent
scheme Plaintiffs allege. See Butchers’ Union, 631 F.Supp.
at 1011 (concluding that but for the proscriptions of the
labor law, defendant’s conduct would not be either mail or
wire fraud). The FLSA provides direct relief for such
violations. Accordingly, the Court finds that the FLSA
preempts the assertion of RICO claims.
IV. CONCLUSION
For the foregoing reasons, Defendants Fairfield, Kingsgate
and Governor Green’s Motion to Dismiss Counts II, III and
IV is GRANTED.
Further, in light of the Court’s dismissal of all but
Plaintiffs’ claims under the FLSA, the request to conduct
limited discovery to facilitate determination of class
certification in this case is unnecessary and is therefore,
now DENIED. Page 15
It is further ordered that the parties schedule a
conference with a Magistrate Judge to seek settlement of
the FLSA claims.
The Court DIRECTS the Clerk to send a copy of this
Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED.
[fn1] Genesis Management Services Corporation (“Genesis
Management”) and Genesis Janitorial Services, Inc.
(“Genesis Janitorial”), are parent and/or sister companies
of Ambassador and Proline. Genesis Management, Genesis
Janitorial, Ambassador, and Proline have all been named
Third-Party Defendants by Defendants Fairfield and PC&C.
Subsequently, Ambassador filed a counterclaim against
Defendants Fairfield and PC&C and a cross claim against
Defendant Nunnery.
[fn2] Plaintiffs make reference to a class action; however,
class certification must be sought by a formal motion for
class certification. Accordingly, until the Court grants
class certification, each Plaintiff is viewed individually,
and not as class members.
[fn3] Plaintiffs also cited Paukstis v. Kenwood Golf &
Country Club, Inc., 241 F. Supp. 2d 551 (D. Md. 2003), in
support of their proposition that the law is “unsettled.” A
few courts have allowed common law claims to proceed
alongside FLSA claims in the context of facts similar to
the instant case, the Court found those cases
distinguishable. For example, like Washington, Paukstis is
distinguishable because the common law claims were distinct
from the FLSA claims. In contrast to this case, plaintiff
in Paukstis did not seek overtime pay itself under the
common law. Id.
[fn4] The FLSA’s punitive remedies also include punitive
possibilities that go beyond fines and wage compensation by
providing for imprisonment. See 29 U.S.C. § 216 (a).
[fn5] The SCA forbids service employees working on
government contacts to be paid wages below the prevailing
wages being paid in the locality by non-government
contractors. Like the FLSA, Section 2 of the Act requires
the inclusion of specific provisions of the minimum wage
and fringe benefit levels for employees. The SCA provides
for such minimum wage and fringe benefit levels in
contracts entered into by the United States in excess of
$2,500, “the principal purpose of which is to furnish
services in the United States through the use of service
employees.” See 41 U.S.C. § 351(a). Moreover, under
the SCA, the wage and benefit level determination are
explicitly directed to the responsibility of the Secretary
of Labor. See 41 U.S.C. § 351(a)(1). Page 1