Cortland Standard .net

By CATHERINE WILDE
Local Editor
cwilde@cortlandstandard.net
Eight Suit-Kote Corp. employees who say they are entitled to more pay than they have received from the company are once more suing the Cortlandville-based paving company, alleging it did not properly pay them supplemental benefits for jobs worked.
The lawsuit challenges payments Suit-Kote made on jobs worked from 2007 to 2013, alleging that Suit-Kote underpaid at least $9 million in benefits to workers over this time span.
State Supreme Court Justice Kevin Dowd of Norwich dismissed the original lawsuit in December of last year, saying it lacked specific evidence backing up its claims that Suit-Kote had breached a contract with its workers. Ryan Finn, of Latham-based Hacker Murphy LLP, said Tuesday he has spent the last six months gathering information about particular dates of jobs worked and wages owed, to provide supplemental evidence in a new lawsuit.
Finn re-filed the lawsuit against Suit-Kote on Monday with the state Supreme Court in Onondaga County.
Finn expects to seek class action status on the lawsuit within 60 days.
Finn said he feels justices in Onondaga County may be better prepared to handle a lawsuit of this scale. He said he had six months to appeal the suit after the dismissal. Instead of going that route, wherein he said he only had about a 25 percent chance of winning, he decided to re-file the complaint.
The suit was brought by Andrew VanDee, an equipment operator and flagger for Suit-Kote. Seven other workers are also plaintiffs in the new complaint: Jerry Phalen, James Lynch, Roger Slater, Richard Thomas, Elijah Closson, William Prindle and Shawn Kirk.
The suit faults Suit-Kote for not paying supplemental benefits, which is pay beyond regular wages, either in biweekly cash payments or into a bonafide trust plan, as required by law. Instead, Suit-Kote’s trust “consisted of commingled/pooled funds in which benefits were paid to individuals who worked both public and private work,” according to the lawsuit.
Finn said this resulted in money not going directly to workers on a regular basis as it should have and not being properly accounted for.
Suit-Kote spokesman Brian Renna dismissed this as “pure accusations,” and he said the allegation that Suit-Kote still owes $9 million to workers is “categorically incorrect and false.” Renna said the matter was settled after a Department of Labor investigation, which resulted in Suit-Kote being ordered in 2013 to pay $4.3 million. The investigation found Suit-Kote underpaid employees on 51 road projects from 1998 to 2008. The finding constituted one willful violation against Suit-Kote, a serious classification of wrongdoing by the Department of Labor.
“Quite honestly, this is nothing but a rehash of the case he filed already and was dismissed by Judge Dowd. The only difference I can tell is he’s shopping for a different judge, hoping for a different result,” said Renna.
Renna also faulted the exhibits attached to the lawsuit, saying there is no way to tell if they are official documents or simply spreadsheets prepared by Finn.
The lawsuit faults Suit-Kote for not paying plaintiffs the amount of benefits it claims they earned.
Finn said that during the discovery phase of the lawsuit, when Suit-Kote would have to provide documentation regarding payroll, etc., he will be examining how much Suit-Kote paid to see if it aligns with how much it purported to pay as per the paperwork that he has gotten from municipalities in which the company did work. He did not reach the discovery phase last year because the lawsuit was dismissed, so instead, he had to submit Freedom of Information Law requests to municipalities where Suit-Kote performed work and submitted payroll information.
Finn said Suit-Kote workers will be closely following the lawsuit to see if they could be entitled to payment for jobs worked years ago. Finn said if he does not get class action status, and then if the suit is settled in favor of the plaintiffs, only the original plaintiffs would receive any payments.