Amusement Park Company Challenges Wage and Hour Class Action

A carnival company is challenging a wage and hour class action lawsuit filed by workers claiming that the amusement park company did not pay proper wages or compensate them for H-2B visas.

Traveling amusement park company, E.J. Amusements, argued before a Massachusetts federal judge that he should deny the plaintiffs’ motion for class certification on merits that the plaintiffs’ individualized liability and damages claims are too varied and therefore preclude certification.

“Any effort to litigate those claims on behalf of the diverse agglomeration of employees that Plaintiff aspires to represent will be drowned in these hotly contested individual issues,” the company stated in their response to the wage and hour class action lawsuit.

“That outcome is antithetical to the purposes underlying the class action device and prohibited by the governing case law,” E.J. Amusements added.

Wage and Hour Class Action Lawsuit Allegations

The proposed wage and hour class action lawsuit, filed back in 2013, alleged that about 200 E.J. Amusement workers were paid a flat rate based on 40 hours without taking into account that they often worked seven days per week and up to 14 hours per day. The workers assembled, operated and broke down various amusement park rides at fairs and carnivals.

According to the original wage and hour class action lawsuit, the carnival company workers “worked extremely long hours but have not received overtime for hours worked in excess of forty per week.”

In addition, they “routinely” have not received minimum wage, the wage and hour class action lawsuit says, and many have had to pay their own expenses in order to obtain the work – expenses that “should have been borne by the employer.”

Many of the company’s workers travel to the United States on work visas in order to work for E.J. Amusements, which is based in New Hampshire, the wage and hour class action lawsuit says.

There are four named plaintiffs in the wage and hour class action lawsuit and one of them is Jorge Pilar Garcia who was employed as a maintenance worker and was responsible for assembling, dismantling and operating E.J. Amusements’ carnival rides throughout the New England area.

These maintenance workers were paid a flat rate per week, typically less between $320-$700 per week, regardless of how many hours they worked. As a result, their pay fell “far below minimum wage,” the wage and hour class action lawsuit contends.

Many of them traveled to the United States on visas and bore the cost of the visa and travel expenses that E.J. Amusements should have shouldered, the wage and hour class action lawsuit says.

The plaintiffs allege E.J. Amusements violated Massachusetts’ laws and also New Hampshire wage laws because the company is headquartered there.

However, according to E.J. Amusements, the company prepaid its employees for working extra hours, and also provided further payments at the end of the season when the pre-payments were exhausted.

The company claims that through its pre-payment plan, employees are advanced money early in the season by paying them as if they had worked 40 hours each week, even when they worked fewer hours, in order to provide workers a consistent stream of income and to build a credit to apply against future weeks when hours were longer.

“As such, any employee who claimed to be owed overtime would need to show not only that he worked more than 40 hours in a week, but also that the pre-payments he received were insufficient to compensate him for those overtime hours,” E.J. Amusements said.

E.J. Amusements also argued that allegations that the company failed to compensate expenses for H-2B visas that guest workers reported.  The company argued that the wage and hour class action lawsuit applies to a subset of putative class members working under visas and does not represent the class that consists primarily of American workers.

“Thus, Plaintiff’s expense claim is not common to the putative class for which he seeks certification,” it said.

The E.J. Amusements Wage and Hour Class Action Lawsuit is Jorge Pilar Garcia et al. v. E.J. Amusements of NH Inc. et al., Case No. 1:13-cv-12536, in the U.S. District Court for the District of Massachusetts.

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