A Connecticut-based U.S. District Court judge has granted class certification on behalf of two janitors who claim they are employees, not independent contractors, of Jani-King International.
The distinction is important, attorneys for the two plaintiffs said, because employers are not required to provide a slew of services and benefits, such as workers’ compensation, paid vacations, unemployment and health benefits to independent contractors.
The Jan. 9 decision by U.S. District Judge Victor Bolden means the lawsuit filed on behalf of Albanian immigrants and Connecticut residents Simon Mujo and Indrit Muharremi will proceed as a class action.
The plaintiffs’ attorney, Richard Hayber of the Hayber Law Firm, told the Connecticut Law Tribune Monday that Texas-based Jani-King International makes its workers sign contracts and requires payment before working for the company.
Mujo, 39, entered into an agreement with Jani-King and had to pay $15,000 to work for the company. Muharremi, 24, paid $16,250 as a condition of working for the company, according to the lawsuit.
The class certification affects about 70 people, and Hayber said, about $1 million in damages is possible. Mujo worked for the company from 2007 to early 2016, while Muharremi began in 2014 and is still employed with Jani-King.
“Connecticut General Statute 31-73 makes it illegal for an employer to demand money from an employee for conditions of employment,” said Hayber, who noted the company also took payroll deductions from the plaintiffs. “The company tells people that they are buying a franchise. These are janitors, and they are frequently people who have trouble reading and speaking English. These people, immigrants in many cases, are asked to sign a lengthy and technical legal contract and are told they are buying a franchise. We allege that telling these people they are buying a franchise and that they are not employees is illegal.”
Earlier in the litigation process, Bolden dismissed the plaintiffs’ wage claim, but kept their unjust-enrichment claim.
In his ruling, Bolden said the plaintiffs met several criteria for moving forward as a class. They include the “numerosity” rule, which states that a class can move forward if the class is so numerous that “joinder of all members is impracticable.” In addition, under the “commonality” rule, Bolden wrote, “[t]here are common issues of evidence and proof regarding whether the franchise agreement meets the threshold for unjust enrichment under Connecticut state law.”
In court filings, Jani-King said the unjust-enrichment claim lacks merit.
“Dismissal of count two [unjust enrichment] is appropriate because it is based exclusively on the Wage Law, a statute for which no private right of action exists,” the company said in court filings. “Indeed, plaintiffs do not dispute the lack of a private action for their illegal refund of wages claim. Because their unjust enrichment claims is based only on a statute that lacks a private right of action, the claim should be dismissed as an attempt to circumvent the legislature.”
Jani-King is represented by Peter Murphy with Shipman & Goodwin in Hartford, and Larry LaTarte of Faegre Baker Daniels in Minneapolis. Neither attorney responded to a request for comment Monday.
Jani-King marketing director Robert Kindred also did not respond to a request for comment.
Assisting Hayber on the case are Shannon Liss-Riordan and Peter Delano, both with the Boston-based Lichten & Liss-Riordan.