Continental’s administration create reprimand otherwise terminate financing officers who had been maybe not spending so much time enough

Indeed, the actual characteristics from Plaintiffs’ claim – and that challenges Defendants’ compensation program – fundamentally concerns common issues away from legislation. These types of common judge issues were whether Defendants’ fee-pay only package, and this put on the financing officials, violates the fresh new York Work Stuff, if or not Defendants misclassified its mortgage officers due to the fact exempt away from overtime, and you may if or not Defendants didn’t manage particular time suggestions as required by the . . . Ny Labor [*3]Law. . . . . Here, Plaintiffs problem the brand new legality regarding Defendants’ plan of classifying their in to the-transformation mortgage officials since exempt. This is the well-known concern in the key associated with the case and you can links all the class professionals (Plaintiffs’ Memorandum off Laws for the Assistance in the p ten-11).

The fresh Defendants, additionally, take care of your “people in new recommended category got vastly some other a job event and that recommended classification lacks commonality since it is sold with step one) exempt and low-excused someone, 2) one another complete-some time area-date group, 3) team you to definitely spent some time working pursuant to several agreements for different professionals within different branches with different methods, and cuatro) team one did some other number, was paid off in a different way, and does not end up being at the mercy of the same method of choosing damages” (Defendants’ Memorandum out of Laws inside Resistance at the pp 16-17).

Right here, this new titled Plaintiffs don’t endure their burden off proving that concerns out-of law otherwise truth popular for the class predominate more than any question affecting merely individual users (pick Smilewicz v Sears Roebuck and you can Co., 82 AD3d 744 [2d Dept 2011]).

Further, new duties from financing officers varied based on whether or not they was a regular external mortgage officer, part time outside loan officer, fulltime to the loan officer or in your free time inside mortgage manager (Reeps Affidavit when you look at the Support in the 11)

To get its actions, the fresh new Plaintiffs fill in numerous affidavits from certain mortgage officials, in addition to Carnie and you will Saper, which struggled to obtain Continental. One another Carni and you will Saper claim next within affidavits:

I frequently spent some time working in excess of 40 period a week and you may often did as much as sixty era a week selling home financing. More often than not I did nights, early mornings and you can sundays. My personal executives advised me personally or other mortgage officers to focus much time period surpassing 40 times for the offered workweeks due to the fact more financing factors I offered, more money Continental will make. However, even such financing officers have been doing work over 40 times a week. In the event that financing officers wanted to stay-in a beneficial updates with Continental’s administration, they’d to function more than forty days weekly.

I was not paid off overtime towards the time I spent some time working more 40 period per week. I found myself not paid minimum-wage.

Notwithstanding the same characteristics of each and every of your own affidavits, new legal stops one neither Carni nor Saper’s affidavit hold the required factual nexus toward almost every other mortgage officials which submitted affidavits (select id

When you are utilized by Continental, I caused most other loan officials just who I seen with the a good daily basis. Just like me, all these mortgage officers marketed loans as their number 1 duty, continuously has worked in excess of 40 era weekly, and was in fact paid off pursuant towards same otherwise equivalent pay bundle discussed a lot more than. We know this because I personally observed almost every other loan officials regularly working more than 40 hours each week and you will try told through Continental that all its financing officials have been paid in the same otherwise similar way. We read off their mortgage officials that all Continental’s loan officers had been repaid the same way. I happened to be necessary to sit in each week meetings along with other mortgage officials. In these group installment loans in South Carolina meetings, Continental’s government reemphasized that our number one duty is actually offering home loans and that we would maybe not receive fee until i generated transformation, encouraged us to functions very long hours, and you may gave accolades to people loan officials setting up the quintessential date.

Continental don’t list enough time I did or the time worked by the other loan officers. As i try operating, Continental didn’t have a period remaining program for its financing officials.[FN4]

Very first, the new court points out that affidavits recorded meant for Plaintiffs’ app for category degree (apart from Hartman’s affidavit [FN5] ) appear to be the same, that have minor variations (discover Mendoza v Casa de- Cambio Delgado, Inc., 2008 WL 938584 [SDNY 2008]). ). Of the twelve loan officers just who provided affidavits meant for the Plaintiffs’ motion, simply Ronald Belgene try that loan manager whom did regarding Defendant’s Valley Load workplace, like the two-named Plaintiffs.[FN6] The truth that singular of one’s affidavits is of an excellent financing officer just who did about Area Load office was significant considering the affidavit off Eric Reeps, Continental’s Chief Performing Administrator as the 2008, that determination from how financing administrator is paid off need study into items of the person loan-office, once the compensation depended on enough things (Reeps Affidavit within the Help at 12). In this regard, the fresh new court cards that every department place of work had some other managers and you can additional organization means. A great “fulltime exterior financing founder work arrangement” provides your “a position was full-go out, and therefore [employee] have to work at the very least forty occasions a week” (select, age.grams., Ex. “Y” so you’re able to Endorsement inside Opposition). Inside the an enthusiastic [*4]”into the mortgage founder” arrangement, the employee “recognizes you to definitely s/the guy cannot and will not work more than 40 days weekly, until more occasions is acknowledged ahead and in composing of the his/their own manager”. This type of professionals was in fact repaid a bottom income of $290 each week (see, age.g., Ex. “AA” so you’re able to Approval in Opposition). The fresh “in your free time exterior loan founder employment arrangement” provides the “a position is part-time, for example [employee] may not work in more than 19.5 days weekly” (come across, elizabeth.grams., Ex. “W” in order to Acceptance in the