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Law360 (February 12, 2021, 3:00 PM EST ) A building company shorted an employee of overtime wages and fired him for "missing too much work" after contracting COVID-19, according to a complaint filed in Texas federal court.
Alfredo Alvarez filed a putative collective action on Wednesday against Colt Builders Corp., a commercial framing company, alleging it misclassified him and other construction site superintendents in order to deny them overtime pay. Despite being entitled to emergency paid sick leave under the Families First Coronavirus Response Act, Alvarez also claims he was fired for taking medical leave following a COVID-19 diagnosis.
The complaint describes Colt Builders Corp.'s actions as "unreasonable" and conducted in "bad faith." In a statement to Law360, an attorney for Alvarez said his client "hopes to use this lawsuit as a way of collaborating with his employer to repair the situation."
Alvarez worked at Colt Builders Corp. from November 2019 to December 2020. As a site superintendent, Alvarez oversaw the implementation of construction plans at work sites in Texas and Oklahoma and often worked between 60 and 70 hours a week, according to the complaint.
Alvarez was closely supervised by his superiors and did not have control over his schedule or the authority to make decisions independent of management, hallmarks of an employer-employee relationship that creates an obligation on the employer to pay overtime, according to the complaint.
Nonetheless, the complaint says, Colt Builders Corp. shirked this obligation under the Fair Labor Standards Act by misclassifying Alvarez as a salaried, overtime-exempt employee and stiffing him and his peers of pay for any work performed beyond 40 hours.
In addition to these allegations, Colt Builders Corp. is also accused of violating federal laws established to protect workers from unfair and unsafe labor practices during the pandemic.
Alvarez took two weeks of leave after testing positive for COVID-19 in November 2020. Though he returned to work on November 25, he was hospitalized soon after. On Dec. 7, Colt Builders Corp. fired Alvarez for "missing too much work as a result of his COVID-19 diagnosis," according to the complaint.
Alvarez claims his termination violates federal laws prohibiting employers from retaliating against employees who avail themselves of the COVID-19 medical leave to which they are entitled.
The suit seeks back pay for overtime wages and attorney's fees as well as certification of the suit as a collective action. Alvarez estimates the potential class would include at least 30 other site superintendents who were similarly misclassified as salaried, overtime-exempt employees. Alvarez also wishes to get his job back.
Colt Builders Corp. did not immediately respond to requests for comment.
Alfredo Alvarez is represented by Merideth Q. McEntire and Josh Sanford of Sanford Law Firm PLLC.
Attorneys for Colt Builders Corp. were not available.
The case is Alvarez v. Colt Builders Corp., case number 1:21-cv-00143, in the United States District Court Western District of Texas.
--Editing by Vincent Sherry.
Update: This story has been updated with a comment from an attorney for Alvarez.
For a reprint of this article, please contact reprints@law360.com.
