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Employment

FirstService Residential

Borowske et al. v. FirstService Residential, Inc. and FirstService Residential Minnesota, Inc.
Court File No. 0:20-cv-01564 (District of Minnesota)

On July 13, 2020, a caretaker initiated a putative class and collective action against his employers FirstService Residential, Inc. and FirstService Residential Minnesota, Inc. (collectively “FirstService”). According to the Complaint, FirstService provides caretakers with a monthly housing credit (to cover items such as rent, utilities, garage stalls, and other amenities) as part of their compensation but did not include that income when calculating the caretakers’ overtime rate of pay as required by law. This resulted in an artificially low overtime rate of pay when the caretakers worked overtime hours and shorted them overtime wages they were owed. 

The action also alleges that FirstService breached written contracts promising caretakers the extra benefit of being paid at an overtime premium rate for certain hours worked over 30 in a workweek, rather than the typical 40 hours. Rather, than honoring that promise, the caretaker asserts that FirstService only paid overtime after 40 hours in a workweek. 

The lawsuit is filed as a putative collective action under the federal Fair Labor Standards Act and a class action under Minnesota state laws. The action seeks to recover unpaid overtime compensation for caretakers across the country and seeks an award of liquidated (double) damages.

Type of Case

Unpaid Overtime

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Am I eligible?

You are eligible to make a claim in this case if you worked for FirstService as a caretaker at any time within the past three years and were not compensated at the proper overtime rate for overtime hours you worked. 

You may also be eligible if you worked as a caretaker for FirstService in Minnesota at any time within the past six years, were promised in writing overtime compensation for hours worked over 30 in a workweek, but were not paid an overtime premium until after 40 hours per week.

Additional Information

Is This a Class Action? What Does that Mean?

This case is both a potential collective action under federal law and a potential class action under Minnesota state law. This means that, depending on the type of claim you have, there may be a slightly different process for joining and participating in this suit. See below for more details on this process.

Though the process and terminology may differ slightly, the idea behind both a class and collective action is the same: it allows one or more people to sue on behalf of themselves and other people who have similar claims. In order to proceed as a group, though, the Court must certify the class and collective. Because we are in the early stages of the case, this has not happened yet, but we intend to seek the company’s agreement or file the motions at the appropriate times asking the Court to grant these certifications.

Which Locations Are Included?

This case seeks to include all caretakers who work or have worked for FirstService anywhere in the country within the past three years.  It also seeks to include caretakers who worked for FirstService Residential in Minnesota within the past six years and have a contract stating they will be paid overtime for hours over 30 in a workweek. 

How Do I Join This Case?

In order make a claim in this case for your incorrectly calculated overtime under the federal Fair Labor Standards Act, you must complete a consent form and return it to our office. You can complete the form and join this case online by clicking here.

Minnesota state law requires employers to pay overtime after 48 hours in a workweek. If the Court certifies this case as a class action under state law, all caretakers who worked over 48 hours per week within the past three years will be automatically included, unless they choose to opt-out.

If the Court certifies the case as a class action under Minnesota state law to include caretakers who were promised an overtime premium for working more than 30 hours per week all of those caretakers who worked for FirstService within the past six years will be automatically included, unless they choose to opt-out.

What Time Frame Does This Case Cover?

There is a federal time limit, called a statute of limitations, that allows workers to recover unpaid wages within two years of the worker signing up to join the lawsuit by completing and returning the consent form referenced above. If we can prove that the company willfully violated the law, the statute of limitations may be extended to three years.  Minnesota state law is similar.

The statute of limitations for breach of contract claims is six years under Minnesota law.

Do I Have to Pay Anything?

You do not have to pay anything if you make a claim in this case. We are handling the case on a contingency basis. This means we will only be paid if the lawsuit is successful in obtaining relief either through a settlement, award, or a final judgment, and that payment will only come out of that settlement, award, or final judgment.

How Do I Prove the Hours I Worked and How I Was Paid?

Through this lawsuit, we will seek any records FirstService has of your hours worked and overtime paid. Companies have a legal obligation to keep that information.

What About Retaliation?

The law protects you from retaliation for asserting your rights, and if you suffer retaliation, you may be able to assert additional claims. If you currently work for AmericaHomeKey, Inc. and you feel you are the victim of retaliation for participating in this lawsuit, contact us immediately.

What About Retaliation?

It is against the law for an employer to retaliate against a person for joining a lawsuit to reclaim unpaid wages. If you believe you may be the victim of retaliation for joining or participating in this lawsuit, contact the case clerk, Paige Dobberstein, at pdobberstein@nka.com or (612) 256-3226 immediately.

How Long Will This Case Take?

The length of this kind of lawsuit varies from case to case, but they typically last one to three years.

Is There Money Available Now?

No. This is a pending lawsuit. There is no money currently available and there is no guarantee that you will receive money for joining the lawsuit.

How Can I Help?

pdobberstein@nka.com or (612) 256-3226. You can also direct them here to sign up electronically. There is strength in numbers

How Do I Learn More?

To learn more about this case, feel free to contact the case clerk, Paige Dobberstein, at pdobberstein@nka.com or (612) 256-3226.

Case Updates

  • July 16, 2020

    Residential Caretaker Files Proposed Overtime Pay Class Action Against FirstService Residential

    On July 13, 2020, a caretaker initiated a putative class and collective action against his employers FirstService Residential, Inc. and FirstService Residential Minnesota, Inc. (collectively “FirstService”). According to the Complaint, FirstService provides caretakers with a monthly housing credit (to cover items such as rent, utilities, garage stalls, and other amenities) as part of their compensation but did not include that income when calculating the caretakers’ overtime rate of pay as required by law. This resulted in an artificially low overtime rate of pay when the caretakers worked overtime hours and shorted them overtime wages they were owed. 

    The action also alleges that FirstService breached written contracts promising caretakers the extra benefit of being paid at an overtime premium rate for certain hours worked over 30 in a workweek, rather than the typical 40 hours. Rather than honoring that promise, the caretaker asserts that FirstService only paid overtime after 40 hours in a workweek. 

    The lawsuit is filed as a putative collective action under the federal Fair Labor Standards Act and a class action under Minnesota state laws. The action seeks to recover unpaid overtime compensation for caretakers across the country and seeks an award of liquidated (double) damages. 

    Michele Fisher, a partner at Nichols Kaster, PLLP who represents the caretakers, stated, “the law is clear that earnings in the form of a housing credit must be factored in when an employer is calculating an employee’s overtime rate of pay.  Through this case we seek to get caretakers paid what the law mandates they are owed and to hold these companies accountable for the unfulfilled promises they made to induce the workers to accept the job.”

    FirstService Residential is North America’s largest manager of private residential communities, offering a full range of services across multiple geographies to a wide variety of clients, including condominiums, co-operatives, homeowner associations, master-planned communities, active adult and lifestyle communities, and a variety of other residential developments.

    The caretakers are represented by Michele R. Fisher from Nichols Kaster, PLLP, which has offices in Minneapolis, Minnesota and San Francisco, California.  The case is entitled, Borowske v. FirstService Residential, Inc., and FirstService Residential Minnesota, Inc., Case No.: 0:20-cv-01564 (District of Minnesota).

    Additional information about how to make a claim in the case may be found at www.nka.com or by calling Nichols Kaster, PLLP at (612) 256-3200.

    Photo by Alejandro Barba on Unsplash

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