Lawsuit Claims Louis Berger Subcontractor Owes Unpaid Overtime for Hurricane Relief Work in Puerto Rico

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A proposed class and collective action claims a subcontractor for Louis Berger misclassified as independent contractors those who worked on power generation and repair efforts in the wake of Hurricanes Irma and Maria.

The 21-page lawsuit alleges defendant Kennett Consulting, LLC, a subcontractor who provided generator delivery, repairs, and service and maintenance for hurricane relief efforts in Puerto Rico and the Virgin Islands, hired skilled and manual laborers who were classified as independent contractors and paid either a day rate without overtime pay or an hourly wage that failed to include overtime pay at the correct rate. According to the suit, the workers should have been classified as bona fide employees entitled to certain statutory protections, including overtime pay, under Puerto Rico and federal law.

The lawsuit’s filing comes after a U.S. Department of Labor investigation resulted in Louis Berger, a prime contractor who was awarded multiple contracts for power generation and repair in Puerto Rico, and nine subcontractors, including the defendant, paying upward of $5.5 million in back wages and benefits to nearly 1,000 employees involved in the hurricane relief work.

According to the case, which echoes the DOL’s allegations, the defendant has violated the federal Fair Labor Standards Act (FLSA) in failing to properly classify workers as employees and pay proper overtime wages.

The plaintiff, a resident of Puerto Rico, says he worked for Louis Berger through Kennett Consulting as a diesel mechanic from January to September 2018 and normally put in 12 hours of work per day, seven days per week. Despite working more than 40 hours per week, the plaintiff received no time-and-a-half overtime wages and was paid instead a day rate of $225 regardless of how many hours he worked, the lawsuit alleges.

According to the suit, the plaintiff was later switched to hourly pay with overtime and received “fringe” payments. The lawsuit claims, however, that the plaintiff’s fringe pay was not included as part of his regular rate for the purpose of calculating time-and-a-half overtime wages. As a result, the plaintiff received less overtime pay than he was entitled to by law, the case alleges.

Per the suit, the plaintiff and other workers provided labor, transportation and mechanical services in connection with restoring power to Puerto Rico. The defendant and Louis Berger, according to the suit, controlled “all aspects of [the workers’] job activities,” which included installing, maintaining, servicing and fueling generators. The lawsuit claims the defendant retained the authority to hire and fire employees and “directly determined” workers’ opportunities for profit and loss by prohibiting them from working for competitors while they worked for Kennett and Louis Berger. Moreover, “no real investment” was required of the plaintiff and similarly situated workers to perform their jobs, which were primarily manual or technical in nature and required “little to no official training,” the suit says.

The lawsuit argues that the defendant’s failure to pay overtime wages violates the Fair Labor Standards Act because the workers primarily performed non-exempt job duties. Further, Kennett’s pay practices with regard to hourly workers likewise violated the FLSA given the fact that the individuals were not paid at the proper overtime rate for every hour worked over 40 each week, the suit claims. Per the case, all forms of compensation, including fringe payments, should have been taken into account when calculating employees’ overtime rates.

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