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U.S. DOT sues Puerto Rico security co.’s for misclassifying guards

The U.S. Department of Labor has filed a Fair Labor Standards Act complaint in the U.S. District Court for the District of Puerto Rico seeking back wages and liquidated damages from two Puerto Rico security companies and their principals after an investigation by the department’s Wage and Hour Division.

The department is also assessing civil money penalties, the agency announced.

Investigators found EM Policia and Vigilancia unlawfully classified more than 300 security guards as independent contractors instead of employees, even though the employers exercised substantial control over key aspects of the guards’ work, including setting workers’ schedules and duty locations and prohibiting them from making personal phone calls while on duty.

“Employers should know that the U.S. Department of Labor takes misclassifying employees as independent contractors very seriously,” said Regional Solicitor of Labor Jeffrey S. Rogoff in New York. “We will not tolerate any attempt to avoid complying with the law and will aggressively litigate to ensure that workers receive the wages that they’re owed.”

The lawsuit names EM Policia Privada Inc., its successor Vigilancia Virtual, and Policia Privada LLC, along with defendants Israel Martínez-Gutiérrez, Carmen Hernández-Rosa and Daniel Vargas.

The Labor Department stated that EM Policia and Vigilancia also paid guards hourly, frequently no higher than the Puerto Rico minimum wage. In many instances, the employers paid their workers the same rate for all hours worked, including hours worked more than 40 in a week, violating the overtime provision of the Fair Labor Standards Act (FLSA).

“EM Policia and Vigilancia wrongly believed that they could ignore the law that protects workers’ rights to be paid their full and legally earned wages when they unlawfully classified most of their security guards as independent contractors instead of as employees,” said Wage and Hour Division District Director José Vázquez-Fernández in Puerto Rico.

The complaint alleges the employers also engaged in multiple schemes to cover up their overtime violations, including failing to provide investigators with payroll and time records for specific employees and time periods. When the Wage and Hour Division began investigating, EM Policia shut down and transferred its business to Vigilancia, seemingly to avoid FLSA liability, according to the document.

The division’s Caribbean District Office conducted the investigation. Senior trial attorney Jacob Heyman-Kantor of the New York Regional Office of the Solicitor is litigating the case for the department.

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This story was written by our staff based on a press release.

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