NC Tree Service Co. Strikes $3M Deal In Workers’ OT Suit

Law360 (March 1, 2019, 3:56 PM EST) — A North Carolina tree care company has agreed to pay $3 million to settle claims that it shorted its workers on overtime pay, in violation of federal and state labor laws.

The workers on Thursday asked U.S. District Judge James C. Dever III to greenlight the agreement, telling the judge it is a fair resolution in their case against Hutchison Tree Service. Continuing the litigation could be complicated, expensive and risky, the workers said in their motion for preliminary approval.

“Indeed, nearly every issue in this case has been contested by the parties and has been the subject of briefing and counterbriefing,” the workers said. “It is reasonable to expect that the case will only become more contentious and complex as it enters fuller discovery and trial preparation stages.”

The workers’ counsel calculated that they are entitled to roughly $4.5 million in overtime pay for their claims, according to the motion. However, that calculation method was disputed, and should Hutchinson prevail on the issue, the estimated damages could be reduced to an amount much less than the $3 million settlement, the workers said.

Further, it could be difficult for them to maintain their class certification throughout a trial, the workers said. And no matter who ultimately prevailed in the trial, there would likely be appeals and additional litigation in the case, the workers said. Under the agreement, the class’ counsel will be allowed to request up to one-third of the settlement amount in attorneys’ fees and up to $15,000 in costs. Counsel will also request a $15,000 service award for Adrian Berber, the lead plaintiff in the case.

Berber, who worked as a driver and foreman for the company, originally sued Hutchison in April 2015, alleging that the company violated the Fair Labor Standards Act and the North Carolina Wage and Hour Act. Berber said he and others were treated as hourly workers even though Hutchinson claimed to pay them a salaried rate.

When the workers left early or arrived late to a job site, that time was deducted from their wages, Berber said. But the workers weren’t paid overtime for hours they worked beyond a 40-hour week, Berber said.

Counsel for Hutchison Tree Service declined to comment Friday. Counsel for the workers didn’t immediately respond to request for comment.

The workers are represented by Gilda A. Hernandez of The Law Offices of Gilda A. Hernandez PLLC, and J. Derek Braziel of Lee & Braziel LLP.

Hutchison Tree Service is represented by Robert E. Boston and Andrew S. Naylor of Waller Lansden Dortch & Davis LLP.

The case is Berber v. Hutchison Tree Service et al., case number 5:15-cv-00143, in the U.S. District Court for the Eastern District of North Carolina.

–Editing by Stephen Berg.