Tang et al v. Wing Keung Enterprises, Inc. et al

Filing 89

MEMORANDUM AND ORDER. Plaintiffs' 88 Motion for Reconsideration is denied. Trial shall commence on 2/6/2017 at 2:00 p.m. in Courtroom 10B South. By consent, a jury will be selected before the magistrate judge that morning, at a time set by the magistrate judge. In limine motions will be heard on 1/30/2017 at 10:30 a.m. in Courtroom 10B South. By 1/23/2017, the parties shall submit to the court pre-trial submissions. The parties shall promptly complete discovery. Any dispu tes related to briefing schedules or discovery are respectfully referred to the magistrate judge. The matter is referred to the magistrate judge for further settlement discussions. Whenever the parties are before the magistrate judge, the individual owner of the business and the plaintiffs shall appear in person. Ordered by Judge Jack B. Weinstein on 9/28/2016. See attached Memorandum & Order for additional details. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
___________________________________x
CHAOHUI TANG, JIANLIN LI, JIAN LIU,
and QINGZE LIU,
on behalf of themselves and all others
similarly situated

Plaintiffs,

MEMORANDUM AND
ORDER
14-CV-390

-againstWING KEUNG ENTERPRISES, INC. &
KEUNG CHAN,
Defendants.
---------------------------------x
Appearances
Plaintiffs

Heng Wang
Heng Wang & Associates, P.C.
7 Mott Street, Suite 600
New York, NY 10013

Defendants
Gail Ellen Spindler
Trop and Spindler, Esqs
19-02 Whitestone Exp
Suite 202
Whitestone, NY 11357

JACK B. WEINSTEIN, Senior United States District Judge:
Table of Contents
Introduction ........................................................................................................................... 2 

I. 

II.  Facts ....................................................................................................................................... 3 
A. 

Defendants....................................................................................................................... 3 

B. 

Plaintiff Drivers .............................................................................................................. 4 

1. 

Plaintiff J. Liu ............................................................................................................. 5 

2. 

Plaintiff Li ................................................................................................................... 6 

C. 

Plaintiff Loaders ............................................................................................................. 7 

1. 

Plaintiff Tang .............................................................................................................. 7 

2. 

Plaintiff Q. Liu ............................................................................................................ 8 

III. 

Procedural History............................................................................................................. 9 

A. 

Defendants’ Motion for Summary Judgment .............................................................. 9 

B. 

Denial of Collective Action Certification; No Falsification of Documents .............. 10 

C. 

Plaintiffs’ Motion for Summary Judgment ............................................................... 12 

D. 

Magistrate Judge Referral: MCA Exemption ........................................................... 12 

IV. 

Law .................................................................................................................................... 14 

A. 

Standard of Review ...................................................................................................... 14 

1. 

Magistrate Judge Order and Report and Recommendation ................................ 14 

2. 

Summary Judgment ................................................................................................. 14 

B. 

Minimum Wage and Overtime ................................................................................... 15 

1. 

Fair Labor Standards Act (“FLSA”) ...................................................................... 15 

2. 

New York Labor Law (“NYLL”) ............................................................................ 16 

3. 

Motor Carrier Act (“MCA”) ................................................................................... 18 

4. 

Statute of Limitations ............................................................................................... 26 

V.  Application of Law to Facts ............................................................................................... 28 
A. 

FLSA and NYLL Overtime Claims: Extent of MCA Exemption............................ 28 

1. 

Magistrate Judge Report and Recommendation ................................................... 31 

2. 

Plaintiffs’ Objections ................................................................................................ 33 

3. 

Defendants’ Objections ............................................................................................ 46 

4. 

Magistrate Judge Conclusions Adopted ................................................................. 48 
1

B. 

FLSA and NYLL Minimum Wage Claims ................................................................ 48 

C. 

Lack of 56.1 Statement................................................................................................. 51 

D. 

Plaintiffs’ Motion for Reconsideration....................................................................... 52 

E. 

Statute of Limitations................................................................................................... 53 

1. 
2. 
VI. 

FLSA Claims ............................................................................................................. 54 
NYLL Claims ............................................................................................................ 55 

Conclusion ........................................................................................................................ 55 

VII.  Appendix ........................................................................................................................... 59 

I.

Introduction
This case concerns wage and overtime claims brought by truck drivers and loaders who

ride with them. Their claims turn, in part, on exemptions from state and federal overtime
requirements applicable to employees who work on vehicles engaged in interstate transportation
of products. The fact that some routes are intrastate complicated fact finding. Assisting the jury
will require breaking down of the case into many discrete time periods. See infra Part VII.
Plaintiffs Chaohui Tang, Jianli Li, Jian Liu, and Qingze Liu (“plaintiffs”) are delivery truck
drivers and loaders formerly employed by defendant Wing Keung Enterprises, Inc. (“Wing
Keung”), a wholesale food business located in Queens, New York.
Alleged are minimum wage and overtime payment violations under both the Fair Labor
Standards Act (“FLSA”) and New York State Labor Law (“NYLL”), and failure to provide
required notices pursuant to the New York Wage Theft Prevention Act (“WTPA”). Defendants
claim exemption under the federal Motor Carriers Act (“MCA”).
Defendants move for summary judgment. They argue that (1) they are exempt from the
FLSA and NYLL overtime requirements under the MCA; and, in any event, (2) they paid plaintiffs
the required minimum wages and other benefits under state and federal law. Mem. in Supp. of
Defs.’ Mot. for Summ. J., Oct. 24, 2014, ECF No. 13-2 (“Defs.’ Summ. J. Mem.”).
2

Plaintiffs cross-move for summary judgment. They claim that (1) they are entitled to
“shortfall and liquidation damages” because defendants falsified or failed to keep “proper and
accurate employment records” in violation of the FLSA and NYLL; (2) defendants were not
exempt under the MCA; and (3) plaintiffs were not paid in accordance with applicable labor laws.
See Mem. in Supp. of Pls.’ Mot. for Summ. J., Oct. 19, 2015, ECF No. 54 (“Pls.’ Summ. J. Mem.”);
see also Affirmation of Bo Chen in Supp. of Pls.’ Mot. for Summ. J., Oct. 22, 2015, ECF No. 56
(“Chen Affirmation”).
The question of whether and to what extent plaintiff employees were covered by the MCA
exemption to the overtime requirements of the FLSA and NYLL was referred to the magistrate
judge. For the reasons stated in this memorandum and orally on the record, the magistrate judge’s
findings are adopted in full. See generally Hr’g Tr., Sept. 7, 2016, ECF No. 87. Objections to the
report and recommendations are dismissed. Defendants’ summary judgment motion is granted in
part and denied in part. Plaintiffs’ summary judgment motion is denied. Plaintiffs’ motion for
reconsideration is denied. The case is set down for trial.
II.

Facts
A.

Defendants

Corporate defendant Wing Keung is engaged in distributing fresh produce, refrigerated
food and restaurant supplies to restaurants located primarily in New York, New Jersey, and
Connecticut. See Affirmation of Gail E. Spindler in Supp. of Defs.’ Mot. for Summ. J., Oct. 24,
2014, ECF No. 13-1 (“Spindler Affirmation”), at ¶ 5; see also Defs.’ Summ. J. Mot. at Ex. C, ECF
No. 13-8. It is a carrier registered with the United States Department of Transportation. See Defs.’
Summ. J. Mot. at Ex. C, ECF No. 13-8. Wing Keung owns approximately eighteen large trucks,

3

see Splinder Affirmation at ¶ 6, and employs twenty-three drivers, see Defs.’ Summ. J. Mot. at Ex.
C, ECF No. 13-8.
Individual defendant Keung Chan is the Chief Executive Officer of Wing Keung. Am.
Compl., Mar. 7, 2014, ECF No. 5 (“Am. Compl.”), at ¶ 2; Answer to Am. Compl., May 22, 2014,
ECF No. 8, at ¶ 2.
B.

Plaintiff Drivers

Plaintiffs Jian Liu (“J. Liu”) and Jian Lin Li (“Li”) were employed by defendants as truck
drivers. Decl. of J. Liu in Opp’n to Defs.’ Mot. for Summ. J., Nov. 17, 2014, ECF No. 16 (“J. Liu
First Decl.”), at ¶¶ 2-3; Decl. of Li in Opp’n to Defs.’ Mot. for Summ. J., Nov. 14, 2014, ECF No.
18 (“Li First Decl.”), at ¶¶ 2-3. They drove trucks delivering to destinations within and outside
the State of New York. Am. Compl. at ¶ 4.
Plaintiffs J. Liu and Li contend that all drivers employed by Wing Keung drove fixed
routes. J. Liu First Decl. at ¶ 7; Li First Decl. at ¶ 7. Defendants first asserted that J. Liu’s and
Li’s routes were not fixed, and that they were likely to be called on to perform interstate travel at
any time regardless of their current assignment. Affirmation in Reply of Gail E. Spindler, Nov.
26, 2014, ECF No. 22 (“Spindler Reply Affirmation”), at ¶¶ 19-22; Decl. of Simon Chan in Reply,
Nov. 26, 2014, ECF No. 22-2 (“S. Chan Reply Decl.”), at ¶¶ 14-18; Decl. of Fen Zhen Chen in
Reply, Nov. 26, 2014, ECF No. 22-3 (“F. Zhen Reply Decl.”), at ¶¶ 15-18. They then conceded
that “[t]he drivers, driver’s helpers and loaders were not randomly assigned to the out of state
routes as it was beneficial for each driver, helper and loader to be familiar with the routes, and
once trained for the route was kept on that route.” Defs.’ Resps. to Ct.’s Questions, Jan. 12, 2016,
ECF No. 74 (emphasis added) (further stating that “once trained for a particular route the same
driver and loader was usually assigned that route”).
4

1.

Plaintiff J. Liu

J. Liu states he was employed by defendant Wing Keung from October 2010 to July 2011
and then from October 2012 to October 2013. J. Liu First Decl. at ¶ 2; Decl. of J. Liu in Supp. of
Pls.’ Mot. for Summ. J., Oct. 16, 2015, ECF No. 54-3 (“J. Liu Second Decl.”), at ¶ 2. He claims
to have worked approximately six days a week for a total of 70 hours or more per week and to
have been paid a flat wage of $2,800 a month, with no overtime. J. Liu First Decl. at ¶¶ 3-4; J.
Liu Second Decl. at ¶ 8.
According to his first declaration, from July 2011 to October 2012, J. Liu worked for a
different company in Las Vegas. J. Liu First Decl. at ¶ 2. Defendants have produced paystub
records for J. Liu covering part of this time period—from August 2011 to December 2011. See
Defs.’ Summ. J. Mot. at Ex. G3, ECF No. 13-23. Defendants have also produced paystubs for the
periods from November 2010 to July 2011 and October 2012 to September 2013. Id. None were
submitted for the period from October 2010 to November 2010 and September 2013 to October
2013. Id.
J. Liu first stated that from October 2012 to October 2013 he exclusively made deliveries
within the State of New York. J. Liu First Decl. at ¶ 8. He then stated that, from October 2010 to
July 2011 and then from October 2012 to April 2013, he delivered groceries and frozen foods from
Wing Keung’s Queens warehouse to restaurants in Connecticut, upstate New York, and New
Jersey. J. Liu Second Decl. at ¶¶ 3-4. He said he made deliveries only within New York State
from April 2013 to October 2013. Id. at ¶ 4.
Plaintiff J. Liu has no records of his hours worked and payments, because, he says, he “did
not receive monthly statements from Wing Keung during [his] employment.” J. Liu First Decl. at
¶ 5. Instead, he explains that he was paid on a monthly basis, when he “had to sign four
[documents] at one time.” J. Liu Second Decl. at ¶ 9.
5

J. Liu disputes the time entries contained in the documents submitted by defendants. He
argues that defendants’ records are “fabricated” and that his signature is “fake.” Id. No objection
has been raised with respect to the paystubs relating to time periods when plaintiff J. Liu claimed
to have been working for a different company in Las Vegas.
2.

Plaintiff Li

Plaintiff Li first contended that he was employed by Wing Keung from September 2009 to
December 2010; from May 2012 to January 2013; and then from August 2013 to November 2013.
Li First Decl. at ¶ 2. He did not mention the last period of employment, from August 2013 to
November 2013, in his second declaration. Decl. of Li in Supp. of Pls.’ Mot. for Summ. J., Oct.
19, 2015, ECF No. 54-2 (“Li Second Decl.”), at ¶ 2. According to Li, he worked approximately
70 hours or more per week during his employment at Wing Keung and was paid a flat monthly
wage ranging from $2,800 to $2,900, regardless of any overtime. Id. at ¶¶ 3-4.
He claims that from December 2010 to May 2012, he worked for another company in New
Orleans. Li First Decl. at ¶ 2. Defendants have produced paystub records for him that include
March 2011. Defs.’ Summ. J. Mot. at Ex. G2, ECF No. 13-22. Paystubs were also submitted for
the period from January 2010 to December 2010, May 2012 to December 2012, and August 2013
to November 2013. Id. None were submitted for the period from September 2009 to December
2009 and for January 2013. Id.
In his second declaration, Li claimed that all of his delivery routes were within the State of
New York. See Li Second Decl. at ¶ 5. He did not mention the period of employment between
August 2013 and November 2013.
Like J. Liu, plaintiff Li says that he has no records of his hours worked and payments,
because he “did not receive monthly statements from Wing Keung during [his] employment.” Li

6

First Decl. at ¶ 5. Instead, he explains that he was paid on a monthly basis and that he needed “to
sign on four or five [documents], one for each week.” Li Second Decl. at ¶ 8.
Like J. Liu, he disputes the time entries contained in defendants’ records, but does not
challenge the accuracy of the paystubs relating to time periods where he claimed to have been
working for a different company in New Orleans, or the fact that defendants did not submit
paystubs for some time periods for which he claims employment.

He also contends that

defendants’ records are “fabricated” and that his signature is “fake.” Id.
C.

Plaintiff Loaders

Plaintiffs Chaohui Tang (“Tang”) and Qingze Liu (“Q. Liu”) were employed as loaders.
Their responsibilities included loading merchandise on the trucks in the Wing Keung warehouse
in Queens, traveling with the drivers, unloading the merchandise at the various customer
destinations, and traveling back on the truck with the drivers to the warehouse.
1.

Plaintiff Tang

In his first declaration, plaintiff Tang stated that he was employed by Wing Keung from
September 2009 to November 2013. Decl. of Tang in Opp’n to Defs.’ Mot. for Summ. J., Oct. 31,
2014, ECF No. 17 (“Tang First Decl.”), at ¶ 2. In his second declaration, submitted in support of
plaintiffs’ motion for summary judgment, Tang said he worked for Wing Keung from September
2011 to September 2013. Decl. of Tang in Supp. of Pls.’ Mot. for Summ. J., Oct. 19, 2015, ECF
No. 54-1 (“Tang Second Decl.”), at ¶ 2. Defendants have submitted paystub and other employment
records from October 2011 to November 2013. Defs.’ Summ. J. Mot. at Ex. G1, ECF No. 13-21.
None were submitted for the period between September 2009 and September 2011.
Plaintiff Tang explained that his duty was to “load the outbound trucks at the warehouse
from Flushing, Queens . . . ride with the truck and help the driver to unload the truck when we
arrived [at] the Chinese restaurants either in New York or another state. . . . The loader is always
7

following [sic] the assigned truck to help the driver to load or unload the goods, and back to the
company with the truck at the end of the day.” Tang Second Decl. at ¶ 2.
According to Tang, from September 2011 to July or August 2012 he worked for the “long
distan[ce] routes to upstate New York, New Jersey and Pennsylvania,” providing assistance with
the loading and unloading of the truck. Tang Second Decl. at ¶ 4. From around September 2012
to September 2013 he allegedly changed to New York routes. Id. at ¶ 5.
Claimed by plaintiff Tang is that he worked about 70 hours or more per week and was paid
a flat wage of $2,000 or $2,400 per month, regardless of any overtime. Tang First Decl. at ¶¶ 34. He explained that he was generally paid up to $2,400 when he worked on the out-of-state routes.
Tang Second Decl. at ¶ 6. This was reduced to $2,300 when he changed to the New York routes.
Id.
Like the other plaintiffs, Tang stated that he was paid once a month, at which time he “had
to sign four or five [documents]” at once. Id. at ¶ 7. These papers did not have time entries, but
only showed “money amounts.” Id. He also claims his signature on defendants’ records was
“falsified.” Id.
2.

Plaintiff Q. Liu

Plaintiff Q. Liu asserts he was employed by Wing Keung from about July 2011 to May
2012. Decl. of Q. Liu in Opp’n to Defs.’ Mot. for Summ. J., Nov. 14, 2014, ECF No. 19 (“Q. Liu
Decl.”), at ¶ 2. Defendants argue that he also worked from June 2012 to August 2012, on interstate
routes to New Jersey. Spindler Reply Affirmation at ¶ 15.
His duties involved loading goods onto the trucks at defendants’ warehouse, under the
supervision of staff, and then unloading them at the customers’ stores. Q. Liu Decl. at ¶ 8.
According to Q. Liu, shipping staff supervised the loading of goods, and the truck driver told him
to unload specific goods at the various delivery stops. Id. at ¶ 8. Allegedly, Q. Liu was not required
8

to use his judgment in deciding how to load goods on to the truck for optimal interstate highway
travel. Decl. of Aihong You in Opp’n to Defs.’ Mot. for Summ. J., Nov. 17, 2014, ECF No. 20
(“You Decl.”), at ¶ 16.
Q. Liu explains that “[d]uring my work, sometime[s], I sat on the trucks which made
deliveries across state lines. However, I did not know those routes at all. Drivers were the persons
who knew routes, stops and stores. I did not in any way participate in the operation of the trucks
or direction of the routes.” Q. Liu Decl. at ¶ 7.
He claims to have worked approximately 70 hours or more per week and to have been paid
a flat rate ranging from $2,200 to $2,300 per month, with no overtime. Id. at ¶¶ 3-4. He states
that he does not have records for his hours worked and payment, because he “did not receive
monthly statements from Wing Keung during [his] employment.” Id. at ¶ 5. He too contends that
the time entries showed on defendants’ records were inaccurate and “doctored.” Id. at ¶ 6.
Unlike the other three plaintiffs, Q. Liu did not submit a second declaration. Counsel says
that he “went back to China, his testimony will be added when it is available.” Pls.’ Summ. J.
Mem. at 9. Q. Liu was not present at the September 7, 2016 hearing on the parties’ summary
judgment motions and objections to the magistrate judge’s report and recommendation.
III.

Procedural History
A.

Defendants’ Motion for Summary Judgment

Defendants moved for summary judgment on October 24, 2014, claiming: (1) exemption
from the overtime provisions of the FLSA and NYLL pursuant to the MCA; and (2) payment of
the required minimum wage and overtime under federal and state law. They provided payroll and
other employment records in support of their claim that they complied with state and federal
minimum wage and overtime payment obligations. As already noted, plaintiffs alleged that the
records submitted by defendants were false.
9

Following a hearing, defendants’ motion was held in abeyance. See Hr’g Tr., Mar. 18,
2015 at 21:11-17. The John and Jane Doe and Company ABC 1-10 defendants were dismissed
from the case, with leave to amend. See Order, Mar. 19, 2015, ECF No. 27, at 2. The magistrate
judge was requested by the court to: (1) determine the potential for a collective action; and (2)
rule on any claim regarding the falsification of employment records. See id.
B.

Denial of Collective Action Certification; No Falsification of Documents

Plaintiffs filed a motion to certify a collective action. The magistrate judge determined
that, before considering certification, she would first have to consider plaintiffs’ allegations
concerning the falsification of employment records:
[T]he Court must first address plaintiffs’ allegations that defendants
have falsified time keeping records in order to rule on plaintiffs’
motion. Plaintiffs’ allegations of defendants’ common policy of
falsifying plaintiffs’ hours are central to their claims and the
existence of such a policy would also shape any potential collective
action.
Scheduling Order, May 8, 2015.
An evidentiary hearing was conducted by the magistrate judge. See Hr’g Tr., June 1, 2015,
ECF No. 48. She noted that “[t]he hearing was slow and difficult. . . . the real source of the
difficulty was that plaintiffs’ counsel was utterly unprepared for the hearing, as were her clients.”
Order, Aug. 7, 2015, ECF No. 52 at 3, n.2. Following the evidentiary hearing, she concluded that
plaintiffs failed to establish that the records presented by defendants were false. See id. at 9-13.
Plaintiffs’ motion to certify a collective action was denied. See id. at 11-13. The magistrate
judge’s order stated:
Despite the low threshold, plaintiffs have not met their modest
factual showing that plaintiffs and potential opt-in plaintiffs are
sufficiently similarly situated. Plaintiffs’ motion for certification of
a collective action centers on the allegation that plaintiffs were
similarly situated as they were subject to the “common policy” of
10

being unable to clock out since defendants consistently made the
machine inaccessible. In order to support this argument, plaintiffs
dispute the validity of time records produced by defendants, which
defendants contend are complete and accurate. Plaintiffs have not
established that defendants’ records were falsified. Plaintiffs’ other
allegations that defendants maintained a common policy or plan that
violated the law are so generalized and vague that on this record, the
Court denies the motion for certification of a collective action. As I
find that plaintiffs have not met the minimal burden to certify a
collective action, I do not address the parties’ other disputes
regarding the definition of the proposed class.
Id. at 13 (footnote omitted).
Although the magistrate judge found that plaintiffs had failed to make the required
threshold collective action certification showing, she found defendants’ pay practices confusing:
This is not to say that defendants’ pay practices make sense to the
Court or are in full compliance with the law. While plaintiffs
presented no specific testimony to support the allegation they were
unable to clock in and out, plaintiffs did consistently testify that they
were paid a single straight wage per month. There was also
testimony that a portion of employees’ wages was provided by
check and a portion was given in cash. Taken as true, the Court has
no explanation for why employees were required to clock in and out
if they were paid a straight monthly wage not tied to the hours they
worked each week. However, even though defendants’ pay
practices may raise questions, plaintiffs’ testimony that they were
on occasion unable to record the time they clocked out does not
establish that defendants fabricated or falsified the records.
Id. at 10-11 (emphasis added) (footnotes omitted).
In a footnote, the magistrate judge indicated that “[t]he denial of plaintiffs’ motion for a
collective action is without prejudice. Ms. You [former counsel] no longer represents plaintiffs.
It is possible that plaintiffs could replead specific facts to satisfy their burden that defendants
maintained a common policy or plan that violated the law.” Id. at 13, n.11.
Plaintiffs did not replead or file objections to the magistrate judge’s order. Her finding
against certification of a collective action is adopted as an order of the court.

11

C.

Plaintiffs’ Motion for Summary Judgment

Plaintiffs filed a cross-motion for summary judgment. In that motion, they again asserted
that: (1) the payroll and time sheet records provided by defendants were false; and (2) plaintiffs
either fully or partially qualified for protections under the FLSA and NYLL as non-exempt
employees within the meaning of the MCA. See generally Pls.’ Summ. J. Mem.
In opposition to plaintiffs’ motion, defendants filed essentially the same memorandum of
law previously submitted in support of their motion for summary judgment. See Defs.’ Mem. in
Opp’n to Pls.’ Mot. for Summ. J., Nov. 12, 2015, ECF No. 58-3 (“Defs.’ Opp’n Mem.”).
Defendants again claimed: (1) exemption from the overtime provisions of federal and state law
pursuant to the MCA; and (2) payment of state and federal minimum wage and overtime.
A hearing on plaintiffs’ and defendants’ motions for summary judgment was conducted on
January 12, 2016. The parties were directed to provide additional evidence in preparation for the
hearing. See Order, Jan. 7. 2016, ECF No. 66; Pls.’ Responses to Ct.’s Questions, Jan. 11, 2016,
ECF No. 73; Defs.’ Resps. to Ct.’s Questions, Jan. 12, 2016, ECF No. 74.
D.

Magistrate Judge Referral: MCA Exemption

On consent of the parties, the question of whether and to what extent the MCA exemption
to the overtime requirements of the FLSA and NYLL applies to the instant case was referred to
the magistrate judge. See Order, Jan. 21, 2016, ECF No. 75. Specifically, the magistrate judge
was asked to issue a report and recommendation addressing the following questions:


First, the legal question concerning the application of the MCA
exemption: does it apply on a day by day or truck by truck basis,
or for particular periods of time. It is stipulated that all trucks
owned by defendant Wing Keung Enterprises (“WK”) satisfied
the weight requirements of the MCA exemption. See Hr’g Tr.,
Jan. 12, 2016; Ct. Ex. 4, Defendants’ Answer to Question 3(g)

12

in Order, Jan. 7, 2016, ECF No. 66 (providing that all trucks
weighed over 10,000 pounds).


Second, the mixed legal and factual questions concerning: (1)
whether defendant WK was a “motor carrier” within the
meaning of the MCA; (2) whether the driving and loading
activities performed by each individual plaintiff qualified as
“safety-affecting activities” within the meaning of the MCA
exemption; and (3) whether the MCA exemption applies to the
time periods during which a plaintiff claims to have worked only
intrastate routes.



Third, the magistrate judge shall determine the specific days or
time periods, if any, during which each individual plaintiff
qualified as an employee falling under the MCA exemption.
The magistrate judge shall determine any specific days or time
periods during which each individual plaintiff did not fall under
the MCA exemption and was therefore entitled to the minimum
wage and overtime protections of the FLSA and NYLL.

See Order, Jan. 21, 2016, ECF No. 75.
The magistrate judge issued a report and recommendation on July 11, 2016. See generally
Report and Recommendation, July 11, 2016, ECF No. 78 (“R&R”). Both parties filed timely
objections. See Defs.’ Objs. to R&R, July 22, 2016, ECF No. 79 (“Defs.’ Objs. to R&R”); Pls.’
Objs. to R&R, July 25, 2016, ECF No. 80 (“Pls.’ Objs. to R&R”).
A hearing on the parties’ objections and their pending summary judgment motions was
conducted on September 7, 2016. See generally Hr’g Tr., Sept. 7, 2016, ECF No. 87. Oral rulings
were rendered on the date of the hearing: the court affirmed the magistrate judge’s report and
recommendation and denied the parties’ summary judgment motions. See id. at 28:25-29:19.

13

IV.

Law
A.

Standard of Review
1.

Magistrate Judge Order and Report and Recommendation

Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, “[w]hen a pretrial matter
not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and decide,
the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue
a written order stating the decision.” Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A).
Parties may file objections within fourteen days of being served with a copy of the order. Fed. R.
Civ. P. 72(a). “A party may not assign as error a defect in the order not timely objected to.” Id.
The district judge must consider any timely objections “and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.” Id.
With respect to dispositive motions, after “promptly conduct[ing] the required
proceedings” and making a record “of all evidentiary proceedings,” the “magistrate judge must
enter a recommended disposition, including, if appropriate, proposed findings of fact.” Fed. R.
Civ. P. 72(b)(1); see also 28 U.S.C. § 636(b)(1)(B)-(C). Specific written objections to the
proposed findings and recommendations must be filed by the parties fourteen days after being
served with a copy of the recommended disposition. Fed. R. Civ. P. 72(b)(2). A district judge
determines “de novo any part of the magistrate judge’s disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3). “The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.
2.

Summary Judgment

Summary judgment may only be granted where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
14

Civ. P. 56(a). “A genuine dispute of material fact exists for summary judgment purposes where
the evidence, viewed in the light most favorable to the nonmoving party, is such that a reasonable
jury could decide in that party’s favor.” Zann Kwan v. Andalex Grp., LLC, 737 F.3d 834, 843 (2d
Cir. 2013) (quotation marks and citation omitted). The substantive law governing the case will
identify those facts that are material, and “[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
No genuinely triable factual issue exists “if, on the basis of all the pleadings, affidavits and
other papers on file, and after drawing all inferences and resolving all ambiguities in favor of the
non-movant, it appears that the evidence supporting the non-movant’s case is so scant that a
rational jury could not find in its favor.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86
(2d Cir. 1996) (citation omitted). If the movant meets this burden, the non-moving party must
provide “specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250
(quotation marks and citation omitted).
B.

Minimum Wage and Overtime

Collectively, plaintiffs state that they were employed on and off by defendants from
September 2009 to November 2013. The relevant federal and state minimum wage and overtime
provisions applicable to this time period are set out below.
1.

Fair Labor Standards Act (“FLSA”)

The FLSA, 29 U.S.C. § 201 et seq., seeks to eliminate “labor conditions detrimental to the
maintenance of the minimum standard of living necessary for health, efficiency, and general wellbeing of workers.” 29 U.S.C. § 202(a). It provides minimum wage and overtime pay requirements
for covered, non-exempt employees.
15

Section 206 sets the applicable minimum wage at a rate of $7.25 an hour. The statute
provides that:
Every employer shall pay to each of his employees who in any
workweek is engaged in commerce or in the production of goods for
commerce, or is employed in an enterprise engaged in commerce or
in the production of goods for commerce, wages at . . . $7.25 an
hour[.]
29 U.S.C. § 206(a).
Section 207 includes the FLSA’s overtime requirements. It provides that non-exempt
covered employees shall be paid at a rate not less than one and one-half times their regular rate of
pay for any hours worked over forty within a workweek:
[N]o employer shall employ any of his employees who in any
workweek is engaged in commerce or in the production of goods for
commerce, or is employed in an enterprise engaged in commerce or
in the production of goods for commerce, for a workweek longer
than forty hours unless such employee receives compensation for
his employment in excess of the hours above specified at a rate not
less than one and one-half times the regular rate at which he is
employed.
29 U.S.C. § 207(a)(1) (emphasis added).
2.

New York Labor Law (“NYLL”)

The New York Labor Law (“NYLL”) includes minimum wage and overtime provisions
similar to those of the FLSA. Under section 652, the minimum wage between January 1, 2007
and December 31, 2013 was $7.15 “or, if greater, such other wage” as is established pursuant to
the FLSA:
Every employer shall pay to each of its employees for each hour
worked a wage of not less than . . . $7.15 . . . or, if greater, such other
wage as may be established by federal law pursuant to 29 U.S.C.
section 206 or its successors or such other wage as may be
established in accordance with the provisions of this article.
N.Y. Lab. Law § 652(1).
16

Section 142-2.1 of the New York Rules and Regulations sets the minimum wage at $7.25
per hour for the period from July 24, 2009 to December 31, 2013:
(a) The basic minimum hourly wage rate shall be . . . $7.25 per hour
on and after July 24, 2009; . . . or, if greater, such other wage as may
be established by Federal law pursuant to 29 U.S.C. section 206 or
its successors.
(b) The minimum wage shall be paid for the time an employee is
permitted to work, or is required to be available for work at a place
prescribed by the employer, and shall include time spent in traveling
to the extent that such traveling is part of the duties of the employee.
12 N.Y.C.R.R. § 142-2.1.
With respect to overtime pay, the NYLL adopts the same standard as the FLSA. See
Nakahata v. New York–Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir.
2013). Section 142-2.2 of the New York Rules and Regulations states, “[a]n employer shall pay
an employee for overtime at a wage rate of one and one-half times the employee’s regular rate in
the manner and methods provided in and subject to the exemptions of sections 7 and 13 of 29
U.S.C. 201 et seq.” 12 N.Y.C.R.R. § 142-2.2.
The NYLL also provides that employees shall receive “spread of hours pay”—an extra
hour of pay at the basic minimum hourly rate for each day in which the interval between the
beginning and end of the workday is longer than ten hours:
An employee shall receive one hour’s pay at the basic minimum
hourly wage rate, in addition to the minimum wage required in this
Part for any day in which:
(a) the spread of hours exceeds 10 hours; or
(b) there is a split shift; or
(c) both situations occur.

17

12 N.Y.C.R.R. § 142-2.4. The spread of hours pay has been determined to only apply “to those
employees making minimum wage and not to those making more than minimum wage.” Shu Qin
Xu v. Wai Mei Ho, 111 F. Supp. 3d 274, 281 (E.D.N.Y. 2015) (citation omitted).
3.

Motor Carrier Act (“MCA”)
a)

MCA Exemption to FLSA and NYLL Overtime Requirements

The FLSA exempts categories of employees from its overtime requirements. Those
exemptions are to be narrowly construed. Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d
Cir. 1991) (citations omitted). The burden of proving that an employee falls within a particular
FLSA exemption lies with the employer. Id.; Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d
217, 222 (2d Cir. 2002) (“[E]xemptions to the FLSA are narrowly construed against the employers
seeking to assert them and their application limited to those establishments plainly and
unmistakably within their terms and spirit. The burden of invoking these exemptions rests upon
the employer.”) (quotation marks and citations omitted); Williams v. Tri-State Biodiesel, L.L.C.,
No. 13-CV-5041, 2015 WL 305362, at *5 (S.D.N.Y. Jan. 23, 2015).
Section 213(b)(1) of the FLSA provides that the overtime pay provisions of section 207 do
not apply with respect to employees falling under the MCA:
The provisions of section 207 of this title shall not apply with respect
to -- (1) any employee with respect to whom the Secretary of
Transportation has power to establish qualifications and maximum
hours of service pursuant to the provisions of section 31502 of Title
49 [The Motor Carrier Act of 1935].
29 U.S.C. § 213(b)(1).
The same MCA exemption applicable under the FLSA also applies under the NYLL:
An employer shall pay an employee for overtime at a wage rate of
one and one-half times the employee’s regular rate in the manner
and methods provided in and subject to the exemptions of sections 7
and 13 of 29 U.S.C. 201 et seq., the Fair Labor Standards Act of
18

1938, as amended; provided, however, that the exemptions set forth
in section 13(a)(2) and (4) shall not apply.
12 N.Y.C.R.R. § 142-2.2 (emphasis added).
An employee who falls within the MCA exemption is exempt from the overtime provisions
of both the FLSA and NYLL. See Williams, 2015 WL 305362, at *16.
b)

Scope of MCA Exemption

“The purpose of the motor carrier exemption is to avoid subjecting employers to
overlapping regulatory regimes.” Fox v. Commonwealth Worldwide Chauffeured Transp. of NY,
LLC, 865 F. Supp. 2d 257, 264 (E.D.N.Y. 2012) (citing Levinson v. Spector Motor Serv., 330 U.S.
649, 661 (1947)); Khan v. IBI Armored Servs., Inc., 474 F. Supp. 2d 448, 451 (E.D.N.Y. 2007)
(explaining that the “[MCA] exemption was adopted so as to avoid any problems that might arise
if two government agencies had overlapping jurisdiction”).
It “provides that the FLSA’s overtime provision shall not apply to any employee with
respect to whom the Secretary of Transportation has power to establish qualifications and
maximum hours of service.” D’Arpa v. Runway Towing Corp., No. 12-CV-1120, 2013 WL
3010810, at *6 (E.D.N.Y. June 18, 2013) (citing 29 U.S.C. § 213(b)(1)) (quotation marks omitted).
“[I]t is the existence of the power to set to set maximum hours, not its actual exercise, that triggers
the motor carrier exemption.” Fox, 865 F. Supp. 2d at 264 (citations omitted) (emphasis in
original); Bilyou, 300 F.3d at 229 (“Courts have consistently held that the § 213(b)(1) exemption
to § 207 applies regardless [of] whether the Secretary of Transportation has exercised his authority
to regulate a particular employee or employer.”) (citing Levinson, 330 U.S. at 661).
Pursuant to the MCA, the Secretary of Transportation has the authority to set the maximum
hours of service of certain employees, including employees of “a motor private carrier, when
needed to promote safety of operation:”
19

The Secretary of Transportation may prescribe requirements for -(1) qualifications and maximum hours of service of employees of,
and safety of operation and equipment of, a motor carrier; and (2)
qualifications and maximum hours of service of employees of, and
standards of equipment of, a motor private carrier, when needed to
promote safety of operation.
49 U.S.C. § 31502(b). Activities of both the employer and the employee are necessarily considered
when determining the applicability of the MCA exemption, as discussed below in parts c) and d).
See Dauphin v. Chestnut Ridge Transp., Inc., 544 F. Supp. 2d 266, 273 (S.D.N.Y. 2008) (“Whether
the motor carrier exemption applies to an employee depends on the nature of both the employer’s
and employees’ activities.”) (citing 29 C.F.R. § 782.2(a)).
c)

Activities of Employer

It must first be determined whether the employer qualifies as either a “motor carrier” or a
“motor private carrier” under the MCA. “Motor carrier” is defined as “a person providing motor
vehicle transportation for compensation.” 49 U.S.C. § 13102(14). A “motor private carrier” refers
to:
[A] person, other than a motor carrier, transporting property by
motor vehicle when -(A) the transportation is as provided in section 13501 of this
title;
(B) the person is the owner, lessee or bailee of the property
being transported; and
(C) the property is being transported for sale, lease, rent, or
bailment or to further a commercial enterprise.
49 U.S.C. § 13102(15).
Section 13501 of title 49 provides that the Secretary of Transportation has jurisdiction if
the transportation of passengers, property, or both, occurs:
(1) between a place in-20

(A) a State and a place in another State;
(B) a State and another place in the same State through
another State; . . . .
49 U.S.C. § 13501.
Even if the employer falls within either definition, the MCA exemption will not apply if
the employer qualifies for the “Small Vehicle Exception” adopted in the SAFETEA–LU Technical
Corrections Act of 2008, meaning that he or she “performs duties on motor vehicles weighing
10,000 pounds or less.” P.L. 110-244, Title III, § 306(c). As already noted, the parties agree that
the trucks in question weigh over 10,000 pounds. See Order, Jan. 21, 2016, ECF No. 75; Defs.’
Resps. to Ct.’s Questions, Jan. 12, 2016, ECF No. 74.
d)

Activities of Employees

If an employer is determined to be a “motor carrier” or “motor private carrier” as defined
in the MCA and does not fall within the Small Vehicle Exception, attention then turns to the
character of the activities of the individual employees.
The Department of Labor (“DOL”) has issued bulletins and opinions summarizing relevant
Supreme Court case law and interpreting this aspect of the MCA exemption. While courts have
relied on them for direction in defining the contours of the exemption, the DOL’s statements and
opinions are not entitled to deference; authority to define the scope of the MCA exemption lies
with the Department of Transportation (“DOT”). See Khan, 474 F. Supp. 2d at 456, n.8 (E.D.N.Y.
2007) (citing Levinson, 330 U.S. at 676-77); see also Qi Zhang v. Bally Produce, Inc., No. 12-CV1045, 2013 WL 1729274, at *1, n.2 (E.D.N.Y. Apr. 22, 2013) (“The DOL’s views regarding the
Motor Carrier Exemption are not entitled to any special deference. Here, I rely on the DOL’s
interpretive bulletin only to outline the general contours of the Motor Carrier Exemption, not to
definitively interpret it.”) (internal citation omitted); Dauphin, 544 F. Supp. 2d at 273, n.2 (stating
21

that the DOL’s “interpretive guidance regarding the motor carrier exemption, although not binding
on this Court, is entitled to respect to the extent that it has the ‘power to persuade’”) (citations
omitted).
According to the DOL, in order for the MCA exemption to apply, an employee must
“engage in activities of a character directly affecting the safety of operation of motor vehicles in
the transportation on the public highways of passengers or property in interstate or foreign
commerce within the meaning of the Motor Carrier Act.” 29 C.F.R. § 782.2(a)(2); see also
Dauphin, 544 F. Supp. 2d at 273 (stating that, for the MCA exemption to apply, “the employee’s
activities must affect vehicular ‘safety of operations in interstate or foreign commerce’”) (quoting
Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 698 (1947)); D’Arpa, 2013 WL 3010810,
at *7 (quoting 29 C.F.R. § 782.2).
“There are four broad categories of workers whose duties are said to directly affect the
safety of vehicle operation: drivers, mechanics, loaders, and helpers of the first three.” Fox, 865
F. Supp. 2d at 266 (citing Levinson, 330 U.S. at 673); see also Williams, 2015 WL 305362, at *5.
While the Secretary of Transportation “is charged with designating which classes of workers
directly affect safety, . . . it is for the courts to determine whether a particular worker falls within
such a classification.” Fox, 865 F. Supp. 2d at 266 (citing Pyramid Motor Freight Corp., 330 U.S.
at 707); see also 29 C.F.R. § 782.2(b)(2) (“The exemption is applicable, under decisions of the
U.S. Supreme Court, to those employees and those only whose work involves engagement in
activities consisting wholly or in part of a class of work which is defined: (i) As that of a driver,
driver’s helper, loader, or mechanic, and (ii) as directly affecting the safety of operation of motor
vehicles on the public highways in transportation in interstate or foreign commerce within the
meaning of the Motor Carrier Act.”).

22

The instant case concerns four plaintiffs employed as either “drivers” or “loaders.” A
“driver” under the MCA “is an individual who drives a motor vehicle in transportation which is,
within the meaning of the Motor Carrier Act, in interstate or foreign commerce.” 9 C.F.R. §
782.3(a).

Drivers’ activities necessarily “affect safety of operations of motor vehicles.”

Dauphin, 544 F. Supp. 2d at 274. They may fall within the MCA exemption if they work on
vehicles engaged in interstate commerce. See id. They are exempt under the MCA where
“interstate travel constitutes a natural, integral, and inseparable part of an employee’s activities.”
D’Arpa, 2013 WL 3010810, at *8 (quotation marks and citations omitted). For drivers, “interstate
transportation is a natural, integral, and inseparable part of a worker’s duties if the worker is likely
to be called on to perform interstate travel, irrespective of how many hours the worker actually
devotes to affecting the safety of vehicles engaged in interstate transportation.” Fox, 865 F. Supp.
2d at 266 (quotation marks and citations omitted).
A “loader” falls within the MCA exemption if he or she has duties that include “the proper
loading of his employer’s motor vehicles so that they may be safely operated on the highways of
the country” and operates in interstate commerce. According to the DOL:
A “loader,” as defined for Motor Carrier Act jurisdiction is an
employee of a carrier subject to section 204 of the Motor Carrier Act
. . . whose duties include, among other things, the proper loading of
his employer’s motor vehicles so that they may be safely operated
on the highways of the country. A “loader” may be called by
another name, such as “dockman,” “stacker,” or “helper,” and his
duties will usually also include unloading and the transfer of freight
between the vehicles and the warehouse, but he engages, as a
“loader,” in work directly affecting “safety of operation” so long as
he has responsibility when such motor vehicles are being loaded, for
exercising judgment and discretion in planning and building a
balanced load or in placing, distributing, or securing the pieces of
freight in such a manner that the safe operation of the vehicles on
the highways in interstate or foreign commerce will not be
jeopardized.
29 C.F.R. § 782.5(a) (citations omitted); see also Khan, 474 F. Supp. 2d at 451-52, 456-59.
23

Loaders who are not involved in the safe operation of vehicles are not exempt under the
MCA. See 29 C.F.R. 782.5(c) (“An employee is not exempt as a loader where his activities in
connection with the loading of motor vehicles are confined to classes of work other than the kind
of loading described above, which directly affects ‘safety of operation.’”) (citations omitted).
“Where only a part of an employee’s activities affect the safety of operations of motor
vehicles in interstate commerce, courts consider ‘the character of the activities rather than the
proportion of either the employee’s time or his activities.’” Dauphin, 544 F. Supp. 2d at 274
(emphasis added) (citing Morris v. McComb, 332 U.S. 422, 431 (1947)). An employer “must
present evidence as to the character of the activities of each plaintiff in order to determine whether
he or she is subject to the exemption.” Id. (citations omitted). An employee is not exempt under
the MCA during any particular workweek where his or her activities of an interstate character
“have no substantial direct effect on safety of operations” or where those “safety-affecting
activities are so trivial, casual, and insignificant as to be de minimis.” Id. (quoting 29 C.F.R. §
782.2(b)(3)).
The interstate requirement does not require crossing state lines. It may be satisfied where
the goods being transported within the borders of one state are involved in a “practical continuity
of movement in the flow of interstate commerce.” Bilyou, 300 F.3d at 223 (quotation marks and
citations omitted). Courts consider “the intended final destination of the transportation when that
ultimate destination was envisaged at the time the transportation commenced.” Id. at 224
(quotation marks and citations omitted) (emphasis added).
e)

Week-by-Week or Four-Month Analysis

Courts have adopted different approaches in determining what time periods should be used
in analyzing exemption claims. Some have engaged in a week-by-week analysis of an employee’s
24

job duties. See, e.g., Williams, 2015 WL 305362, at *9 (collecting cases). This approach is based
on the language of the DOL regulations, which provide that the exemption shall apply during those
workweeks where the employee is engaging in “activities directly affecting the safety of operation
of motor vehicles in interstate commerce on the public highways”:
If in particular workweeks other duties are assigned to [the
employee] which result, in those workweeks, in his performance of
activities directly affecting the safety of operation of motor vehicles
in interstate commerce on the public highways, the exemption will
be applicable to him those workweeks, but not in the workweeks
when he continues to perform the duties of the non-safety-affecting
job.
29 C.F.R. § 782.2(b)(3) (emphasis added).
The regulations also specify that where an employee of a private carrier is not required “to
engage regularly in exempt safety-affecting activities” and his or her “engagement in such
activities occurs sporadically or occasionally as the result of his work assignments at a particular
time, the exemption will apply to him only in those workweeks when he engages in such activities.”
29 C.F.R. § 782.2(b)(4) (emphasis added); see also Williams, 2015 WL 305362, at *9; Masson v.
Ecolab, Inc., No. 04-CV-4488, 2005 WL 2000133, at *7 (S.D.N.Y. Aug. 17, 2005) (“[T]he only
way to determine the overtime compensation owed to an employee is to examine the job duties of
the employee for each week of employment.”).
Some courts have not found it necessary to engage in a week-by-week analysis of an
employee’s activities “where it is clear that the reasonable expectation of interstate travel was
continuous throughout the period of employment.” Williams, 2015 WL 305362, at *10 (emphasis
added) (collecting cases).
In a notice of interpretation issued by the Federal Highway Administration (“FHWA”), the
DOT addressed the applicability of the MCA exemption to employees who are likely to be called
upon to perform interstate travel during their employment. It suggested a four-month analysis:
25

The FHWA view is that in order to establish jurisdiction under 49
U.S.C. 304 the carrier must be shown to have engaged in interstate
commerce within a reasonable period of time prior to the time at
which jurisdiction is in question. The carrier’s involvement in
interstate commerce must be established by some concrete evidence
such as an actual trip in interstate commerce or proof, in the case of
a ‘for hire’ carrier, that interstate business had been solicited. If
jurisdiction is claimed over a driver who has not driven in interstate
commerce, evidence must be presented that the carrier has engaged
in interstate commerce and that the driver could reasonably have
been expected to make one of the carrier’s interstate runs.
Satisfactory evidence would be statements from drivers and carriers,
and any employment agreements.
Evidence of driving in interstate commerce or being subject to being
used in interstate commerce should be accepted as proof that the
driver is subject to 49 U.S.C. 304 for a 4-month period from the date
of the proof. The FHWA believes that the 4-month period is
reasonable because it avoids both the too strict week-by-week
approach and the situation where a driver could be used or be subject
to being used once and remain subject to jurisdiction under 49
U.S.C. 304 for an unlimited time.
Application of the Federal Motor Carrier Safety Regulations, 46 Fed. Reg. 37902-02 (July 23,
1981) (emphasis added). Several courts have adopted this four-month analysis for exemption
purposes. See Williams, 2015 WL 305362, at *11 (collecting cases).
4.

Statute of Limitations

“A cause of action under the FLSA accrues on the regular payday immediately following
the work period for which services were rendered and not properly compensated.” Shu Qin Xu,
111 F. Supp. 3d at 277 (quoting D’Arpa, 2013 WL 3010810, at *5). “Courts have held that for the
purposes of establishing the statute of limitations under the FLSA, a new cause of action accrues
with each payday following an allegedly unlawful pay period.” Addison v. Reitman Blacktop, Inc.,
283 F.R.D. 74, 81 (E.D.N.Y. 2011) (quotation marks and citation omitted).

26

The FLSA provides a two year statute of limitations on actions to enforce its provisions.
If the violation is willful, however, the limitations period is extended to three years. 29 U.S.C. §
255(a); see also Parada v. Banco Indus. de Venezuela, C.A., 753 F.3d 62, 70 (2d Cir. 2014).
The burden of proving willfulness lies with the plaintiff. Eschmann v. White Plains Crane
Serv., Inc., No. 11-CV-5881, 2014 WL 1224247, at *5 (E.D.N.Y. Mar. 24, 2014). A violation is
willful if “the employer either knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133
(1988). “Reckless disregard” is the “failure to make adequate inquiry into whether conduct is in
compliance with the [FLSA].” 5 C.F.R. § 551.104. “Mere negligence is insufficient.” Young v.
Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009) (citing McLaughlin, 486 U.S. at 133).
To demonstrate that an employer acted with reckless disregard, a plaintiff must only show “that
the employer knew or had reason to know that it was or might have been subject to the FLSA.”
Eschmann, 2014 WL 1224247, at *5 (quotation marks and citation omitted).

“Neither an

employer’s good-faith but incorrect assumption regarding its FLSA obligations, nor an employer’s
lack of reasonable basis for believing that it was complying with the FLSA, is by itself sufficient
to demonstrate an employer’s willfulness.” Id. (quotation mark and citation omitted); accord
Padilla v. Sheldon Rabin, M.D., P.C., No. 15-CV-1708, 2016 WL 1369386, at *7 (E.D.N.Y. Apr.
6, 2016).
Willfulness is usually a question for the jury:
[D]istrict courts in this circuit have generally left the question of
willfulness to the trier of fact. When courts have decided the
question of willfulness at the summary judgment stage, either the
FLSA violation was due to a misclassification of the plaintiff as
being exempt, or there existed no genuine dispute that the employer
had been on notice that it was subject to the FLSA.

27

Eschmann, 2014 WL 1224247, at *5 (quotation marks and citations omitted); see also Shu Qin Xu,
111 F. Supp. 3d at 278.
Unlike the FLSA, the statute of limitations for a claim under the NYLL is six years
regardless of willfulness. N.Y. Lab. Law § 663(3); Shu Qin Xu, 111 F. Supp. 3d at 278 (“In
contrast to FLSA claims, NYLL claims have a six-year statute of limitations with no showing of
willfulness required.”); Padilla, 2016 WL 1369386, at *8.
V.

Application of Law to Facts
Defendants’ motion for summary judgment seeks dismissal of plaintiffs’ overtime and

minimum wage claims. They claim that (1) they are exempt from the overtime requirements of
the FLSA and NYLL because plaintiffs fall within the MCA exemption; and, in any event, (2)
plaintiffs were paid in accordance with the minimum wage and overtime requirements of the FLSA
and NYLL. See generally Defs.’ Summ. J. Mem.
Plaintiffs cross-moved for summary judgment. They claim that (1) they are entitled to
“shortfall and liquidation damages” because defendants falsified or failed to keep “proper and
accurate employment records” in violation of the FLSA and NYLL; and (2) they “were fully or
partially qualif[ied] for the FLSA and NYLL protections as non-exempt employees” pursuant to
the MCA. See generally Pls.’ Summ. J. Mem.
For the reasons stated below and orally on the record, the magistrate judge’s
recommendation is adopted in full. As a result, defendants’ summary judgment motion is granted
in part and denied in part. Plaintiffs’ summary judgment motion is denied.
A.

FLSA and NYLL Overtime Claims: Extent of MCA Exemption

According to defendants, Wing Keung is “a motor carrier involved in the transport of goods
between a place in a State and a place in another State.” Splinder Affirmation at ¶ 4. Defendants
28

claim that each individual plaintiff’s route assignments and AR invoices (showing where goods
were delivered on a certain route) indicate “that each individual plaintiff was involved in the
transportation of goods between a place in a State and a place in another State, or from a State and
another place in the same State through another State.” Id. at ¶ 8. In support of this statement,
defendants submitted the following documentation:


Route assignments for each individual plaintiff. See Defs.’ Summ. J. Mot. at Exs. D1D-4, ECF Nos. 13-9 to 13-12. Defendants explain that the route assignments show the
date on which each plaintiff worked and the route assigned (if any) on those dates.
Each route is identified by a number. See Aff. of Simon Chan in Supp. of Defs.’ Mot.
for Summ. J., Oct. 24, 2014, ECF No. 13-3 (“S. Chan Aff.”), at ¶ 8. An excerpt from
Tang’s route assignment records (Defs.’ Summ. J. Mot. at Ex. D1, ECF No. 13-9) is
included below.



AR invoices for each individual plaintiff. See Defs.’ Summ. J. Mot. at Exs. E1-E4,
ECF Nos. 13-13 to 13-16. Defendants explained that the AR invoices show “the date
of delivery, the customer to whom that plaintiff made a delivery, the address of that
customer, and the route (listed under “Zone”) number.” S. Chan Aff. at ¶ 9. As an
example, an excerpt from Tang’s AR invoices (Defs.’ Summ. J. Mot. at Ex. E1, ECF
No. 13-13) is set out below.
29

Defendants contend that, even if plaintiffs claim they were only involved in transporting
goods within the State of New York, the goods they were transporting “included goods sourced
from places outside of New York” and were “ultimately intended by either the seller or [Wing
Keung] to be destined for shipment to or through New York, such that their transport forms a part
of a ‘practical continuity of movement’ across State lines from the point of origin to the point of
destination.” Splinder Affirmation at ¶ 9; see also S. Chan Aff. at ¶ 10.
Plaintiffs opposed defendants’ motion for summary judgment. See Mem. of Law in Opp’n
to Defs.’ Mot. for Summ. J., Nov. 17, 2014, ECF No. 15 (“Pls.’ Opp’n Mem.”). They claimed
that defendants had failed to meet their burden of proof with respect to the applicability of the
MCA exemption. See id. at 5-11.

Specifically, plaintiffs argued that defendants did not submit

documents relating to the nature of plaintiffs’ activities and failed to show that: (1) Tang’s and Q.
Liu’s employment activities were those of loaders which “affected vehicular ‘safety of operations
in interstate or foreign commerce’” id. at 5-7; and (2) Li and J. Liu’s activities as drivers “involved
interstate travel of a character that was more than de minimis or that interstate travel was a ‘natural,
integral and . . . inseparable part’ of the position plaintiffs held.” Id. at 8-10.

30

In their cross-motion for summary judgment, plaintiffs argued that they “fully or partially”
qualified for the protections of the FLSA and NYLL as non-exempt employees under the MCA.
See Pls.’ Summ. J. Mem. at 7-11.
1.

Magistrate Judge Report and Recommendation

On consent of the parties, the question of whether and to what extent the case is governed
by the MCA exemption to the FLSA and NYLL overtime requirements was respectfully referred
to the magistrate judge. See Order, Jan. 21, 2016, ECF No. 75; see also supra Part III.D.
On July 11, 2016, the magistrate judge issued a report and recommendation addressing the
applicability of the MCA exemption. See generally R&R. Following a thorough analysis of the
law and facts, she determined that plaintiffs were covered by the MCA exemption during the
periods of time where they worked on vehicles traveling interstate routes, as demonstrated by their
own sworn declarations, as well as the route assignments and AR invoices submitted by
defendants.
Following the applicable legal framework, the magistrate judge first looked at the activities
of the employer. She determined that Wing Keung is a “motor private carrier” within the meaning
of the MCA, because Wing Keung is the owner of property being sold and transported to further
a commercial enterprise. See id. at 13-14; 49 U.S.C. § 13102(15). As noted earlier, the parties
stipulated that all trucks owned by defendant satisfied the weight requirements of the MCA
exemption. See R&R at 14; Defs.’ Resps. to Ct.’s Questions, Jan. 12, 2016, ECF No. 74; Order,
Jan. 21, 2016, ECF No. 75.
The magistrate judge then turned to the activities of the employees. She concluded that
both plaintiff drivers and plaintiff loaders were engaged in “safety affecting activities.” Whether

31

and to what extent they were covered by the MCA exemption therefore turned on whether plaintiffs
worked on vehicles engaged in interstate travel. See R&R at 14-19.
She found that defendants did not sufficiently establish that the goods they transported
were part of a “practical continuity of interstate movement,” so that plaintiffs would fall under the
MCA exemption regardless of the activities performed. Id. at 20-22 (stating that “[w]hen a
defendant merely asserts that some goods have ended up out of state, absent any specific factual
evidence, the defendant fails to demonstrate ‘a practical continuity of interstate movement’ that
would render plaintiffs exempt regardless of their routes.”).
The magistrate judge also determined that defendants failed to demonstrate that “interstate
travel was a natural and integral part of plaintiffs’ job duties during the periods they did not engage
in interstate travel.” Id. at 23. Drivers and loaders were not randomly assigned routes. Rather,
because it was “beneficial” for them to “be familiar with the routes,” once they trained for a
particular route they were kept on that route. See Defs.’ Resps. to Ct.’s Questions, Jan. 12, 2016,
ECF No. 74. During time periods when they were assigned to intrastate routes, they were not
“likely to be called upon” to travel out-of-state. See R&R at 23 (“As plaintiffs were not randomly
assigned routes but rather kept the same routes for certain time periods, defendants have not
demonstrated that interstate travel was a natural and integral part of plaintiffs’ job duties during
the periods they did not engage in interstate travel.”).
She concluded that plaintiffs were only exempt under the MCA when they worked on
vehicles performing interstate routes. See id. at 23 (“Accordingly, as it is defendants’ burden to
prove the exemption applies, plaintiffs were only exempt under the MCA during the time periods
in which the plaintiffs actually worked on vehicles which travelled out of the state.”).

32

She determined that the available records, in the form of handwritten route assignments
and corresponding invoices including the date of the delivery, the customer details and the
numbered route, supported a finding that, for specified time periods, plaintiffs worked on vehicles
traveling out-of-state. Because during these times plaintiffs were performing “safety-affecting
activities” in vehicles engaged in interstate commerce, they fell within the MCA exemption to the
FLSA and NYLL overtime requirements. See id. at 23-27. The chart below, included in her report
and recommendation, summarizes the magistrate judge’s findings:

Id. at 27.
2.

Plaintiffs’ Objections

Plaintiffs’ objections are not directed to specific portions of the report and
recommendation. See Pls.’ Objs. to R&R. They contend that: (1) whether the MCA exemption
applies is irrelevant because plaintiffs were treated as non-exempt hourly employees; (2) the wage
provisions of the FLSA apply even if the MCA exemption also applies; (3) a factual dispute exists
as to how much plaintiffs were actually paid; and (4) defendants did not meet their burden of
proving the application of the MCA exemption. See generally id.
These objections are addressed, in turn, below.

33

a)

Defendants’ Treatment of Plaintiffs as Hourly Employees

Plaintiffs argue that whether they are exempt from the FLSA and NYLL overtime
requirements under the MCA is irrelevant, because they were treated by defendants as hourly
employees. See id. at at 3-4. Because defendants “informed the Plaintiff employees that they were
to receive overtime,” plaintiffs argue that “a determination of the issue of a status of exemption is
irrelevant.” Id. at 3.
This argument was raised for the first time in their objections to the magistrate judge’s
report and recommendation. It was not addressed in either plaintiffs’ opposition to defendants’
summary judgment motion, or in their own cross-motion for summary judgment.
At the September 7, 2016 summary judgment hearing, plaintiffs failed to substantiate their
position. See, e.g., Hr’g Tr., Sept. 7, 2016, ECF No. 87 at 8:18-9:1. The case law they cite is
inapposite. Plaintiffs refer to Carter v. Tuttnaeur U.S.A. Co., 78 F. Supp. 3d 564 (E.D.N.Y. 2015)
in support of their claim that “[t]he issue of whether an employee is exempt only matters if the
employer misclassifies an employee and consequently pays a fixed salary to a non-exempt
employee.” Pls.’ Objs. to R&R at 3. In Carter, the court determined that the MCA exemption did
not apply because the defendant employer did not qualify as either a “motor carrier” or “motor
private carrier” under the MCA. Carter, 78 F. Supp. 3d at 568-69. Specifically: (1) the property
owned by the employer was generally transported by third parties such as FedEx and UPS; and (2)
the employer conceded that the vans it owned which carried goods and people across the United
States did not weigh more than 10,000 pounds, thereby falling within the Small Vehicle Exception
to the MCA. Id. The court did not consider the employees’ activities or method of payment in
reaching its determination. While the plaintiff in Carter alleged that defendant had misclassified
him as an exempt employee and paid him a fixed salary regardless of any overtime worked, the

34

case does not support the instant plaintiffs’ argument that exemption under the MCA only applies
where an employee is misclassified as non-exempt and paid a fixed salary. See Pls.’ Objs. to R&R
at 3.
Plaintiffs argue that “[i]n a FLSA [action] where the employer relies on an exemption as a
defense, the Court should consider . . . whether the employer paid the employee a fixed salary.”
see id. at 3. This argument is without merit. See Hr’g Tr., Sept. 7, 2016, ECF No. 87 at 8:18-9:1.
Plaintiffs cite to Auer v. Robbins, 519 U.S. 452 (1997) and McDowell v. Cherry Hill Twp.,
No. 04-CV-1350, 2005 WL 3132192 (D.N.J. Nov. 21, 2005) in support of this statement. Neither
supports plaintiffs’ position. Both cases address section 213(a)(1) of the FLSA, which provides
an exemption for “bona fide executive, administrative, or professional” employees from the
statute’s overtime and minimum wage requirements. See 29 U.S.C. § 213(a)(1). Under section
231(a)(1), the Secretary of Labor is provided with “broad authority to ‘defin[e] and delimi[t]’ the
scope of the exemption for executive, administrative, and professional employees.” Auer, 519
U.S. at 456 (citing 29 U.S.C. § 213(a)(1)) (alterations in original). In its regulations defining the
scope of the exemption, the Secretary has provided for a “salary-basis” test to determine whether
an employee falls within the exemption. See 29 C.F.R. § 541.2 (“The exempt or nonexempt status
of any particular employee must be determined on the basis of whether the employee’s salary and
duties meet the requirements of the regulations in this part.”); see also McDowell, 2005 WL
3132192, at *6-7 (addressing the “salary-basis” test in determining whether the plaintiff qualified
for the administrative exemption under the FLSA).
The statutory scheme at issue in Auer and McDowell is not applicable to the present dispute.
Under section 213(b)(1) of the FLSA—the MCA exemption at issue in the instant case—the
authority to set maximum hours of service rests with the Secretary of Transportation. The scope

35

of the exemption is not defined in section 213; it is to be determined by reference to the MCA.
See 29 U.S.C. § 213(b)(1); 49 U.S.C. § 31502. The MCA, in turn, does not include a “salarybasis” test comparable to the one set forth by the Secretary of Labor in relation to section 213(a)(1)
of the FLSA. As explained above, an employee will fall within the MCA exemption if (1) the
employer qualifies as a “motor carrier” or “motor private carrier” as defined under the MCA; (2)
the employee is engaged in “safety-affecting activities”; and (3) is on a vehicle involved in
interstate commerce. See 29 C.F.R. § 782.2(a); see also supra Part IV.B.3; R&R at 5-13.
Finally, plaintiffs claim that an “employer’s promise to pay the employees on an hourly
basis with overtime, where appropriate . . . acts as an implied promise to continue treating the
employees as ‘non-exempt.’” Pls.’ Objs. to R&R at 3-4. Plaintiffs cite to Ahrens v. United States,
225 Fed. App’x 866 (Fed. Cir. 2007) in support of this proposition. In Ahrens, the dispute
concerned the federal government’s performance of its obligations under a memorandum of
understanding it had entered into with the federal employee union. Id. The case is not relevant to
the question at issue here.
Plaintiffs’ objection is rejected.
b)

Probative Value of Time Records

Plaintiffs next argue that the time records produced by defendants, even if assumed to be
complete and accurate, have “limited probative value.” See Pls.’ Objs. to R&R at 4. According
to plaintiffs, the records “at best, show that the Plaintiff employees agreed to the calculations of
the number of hours worked and the amount that would be paid per each hour worked, however
the records do not show that the workers actually received this money” and should not be treated
as receipts of payment. Id. (emphasis in original).

36

This issue is not relevant to the magistrate judge’s report and recommendation. The report
and recommendation only addresses the applicability of the MCA exemption and the extent that
defendants may be relieved from the FLSA’s and NYLL’s overtime obligations. Relevant to this
inquiry are the employer and the employees’ activities—not how much was paid or how many
hours plaintiffs worked. See supra Part IV.B.3.
Whether and to what extent defendants’ records show that plaintiffs were actually paid in
accordance with defendants’ obligations—as delineated by the FLSA, NYLL, and MCA—is a
factual question that was not referred to the magistrate judge and has not been decided.
Plaintiffs’ objection is rejected.
c)

Applicability of FLSA Wage Provisions

Plaintiffs next argue that it was incorrect for the magistrate judge to state that the FLSA
does not apply to time periods covered by the MCA exemption. They point out that the MCA
exemption is limited to the payment of overtime—it does not excuse non-compliance with other
obligations under the FLSA and NYLL, including the statutes’ minimum wage requirements. A
factual dispute exists as to how, and how much, plaintiffs were actually paid, plaintiffs argue,
which is not addressed by determining the applicability of the MCA exemption. According to
plaintiffs, even if the MCA exemption applies to them, they were denied payment in accordance
with the FLSA and NYLL minimum wage obligations. See Pls.’ Objs. to R&R at 4-6.
In her report and recommendation, the magistrate judge addressed the question of whether
the case is governed by the MCA exemption. See R&R at 2 (stating that this court “referred
specific questions to me for a Report and Recommendation . . . to determine whether the case is
governed by the Motor Carrier Act exemption”); Order, Jan. 21, 2016, ECF No. 75 (referring
specific questions concerning the applicability of the MCA exemption to the magistrate judge).

37

She clearly noted at the outset that the MCA exemption, to the extent it applies to plaintiffs in the
instant case, relieves an employer of its overtime obligations under the FLSA and NYLL. See,
e.g., R&R at 5-6 (concluding that “if an employee falls within the MCA exemption, the employee
is exempt from both the FLSA and the NYLL overtime provisions”) (emphasis added).
The magistrate judge properly applied the relevant legal framework to the facts at issue in
the instant case and determined that, for certain specified periods of time, plaintiffs fell within the
MCA exemption. For these time periods, plaintiffs were deemed to be exempt from the overtime
provisions of the FLSA and NYLL, not from the statutes as a whole.

The magistrate’s

recommendation that defendants’ summary judgment motion be denied in part and granted in part
can only relate to that portion of defendants’ motion that addresses plaintiffs’ overtime claims (see
Defs.’ Summ. J. Mem. at Part II.A). No other question was before her.
Plaintiffs’ objection is rejected.
d)

Defendants’ Failure to Establish the Exemption “Plainly and
Unmistakably”

Finally, plaintiffs argue that defendants did not meet their burden of proving that the MCA
exemption applies. According to plaintiffs, defendants “failed to plainly and unmistakably
establish the exemption.” Pls.’ Objs. to R&R at 7 (emphasis in original). Plaintiffs do not point
to any specific deficiency in defendants’ case.

Rather, they generally advance a catch-all

objection, stating that “[t]o the extent there is any doubt about interstate commerce, job duties,
time periods, how and how much the plaintiffs were actually paid that are relevant to the analysis,
the Court should rule in the plaintiffs’ favor in light of the high legal standards for both the
exemption and the summary judgment motion.” Id.
The magistrate judge correctly considered and applied the legal standards relevant to
determination of the MCA exemption and summary judgment. She considered the parties’
38

undisputed factual assertions, their “sworn affidavits setting forth admissible facts based on
personal knowledge” as well as “unsworn, written declarations ‘subscribed . . . as true under
penalty of perjury, and dated.’” R&R at 4.
First, she determined that the employer, defendant Wing Keung, falls within the “motor
private carrier” definition of the MCA. Id. at 13-14. Under the MCA, “motor private carrier” is
defined as “a person, other than a motor carrier, transporting property by motor vehicle” when “the
person is the owner, lessee, or bailee of the property being transported; and the property is being
transported for sale, lease, rent, or bailment or to further a commercial enterprise.” 49 U.S.C. §
13102(15).
In the instant case, it is undisputed that Wing Keung is in the business of selling and
distributing fresh produce, refrigerated food and restaurant supplies to restaurants located
primarily in New York, New Jersey and Connecticut and that Wing Keung is a carrier registered
with the DOT. See Splinder Affirmation at ¶¶ 5-6; Defs.’ Summ. J. Mot. at Ex. C, ECF No. 13-8.
The parties stipulated, as noted earlier, that all trucks owned by defendants weighed over 10,000
pounds, making the Small Vehicle Exception to the MCA inapplicable. See Order, Jan. 21, 2016,
ECF No. 75; Defs.’ Resps. to Ct.’s Questions, Jan. 12, 2016, ECF No. 74 (providing that all trucks
weighed over 10,000 pounds).
The magistrate correctly determined that defendant-employer Wing Keung qualifies as a
“motor private carrier” within the meaning of the MCA, because Wing Keung is the owner of
property being transported to further a commercial enterprise. R&R at 13-14.
Second, the magistrate judge turned to the activities of plaintiff employees, as required by
the relevant regulatory framework. She first determined that all four plaintiffs performed “safetyaffecting activities,” as described in the DOL regulations. See R&R at 14-19.

39

Plaintiffs Li and J. Liu worked as delivery truck drivers. See Amend. Compl. at ¶¶ 6, 8;
see also supra Part II.B. The magistrate correctly determined that, because it is clear that driving
affects safety, the only question with respect to these plaintiffs was whether their activities
involved interstate commerce. See R&R at 14 (“As the Supreme Court and the DOL guidance
explicitly recognize driving as a ‘safety affecting activity,’ courts assume driving affects safety
and solely examine how much driving in interstate commerce is necessary for employees to fall
within the MCA exemption.”) (emphasis in original).
Plaintiffs Tang and Q. Liu worked as loaders. See Tang Second Decl. at ¶ 2 (stating that
his “duty was to load the outbound trucks at the warehouse from Flushing, Queens . . . ride with
the truck and help the driver to unload the truck when we arrived [at] the Chinese restaurants either
in New York or another state”); Q. Liu Decl. at ¶ 8 (“I moved the goods from store shelves to
trucks as shipping staff directed. . . . Once the trucks stopped . . . the driver would direct me to
remove whatever goods . . . the customer ordered from the truck. I then unloaded the goods and
moved goods into the customer’s store.”); 29 C.F.R. § 782.5(a) (providing that a loader under the
MCA “is an employee of a carrier subject to section 204 of the Motor Carrier Act . . . whose duties
include, among other things, the proper loading of his employer’s motor vehicles so that they may
be safely operated on the highways of the country. A ‘loader’ may be called by another name,
such as ‘dockman,’ ‘stacker,’ or ‘helper,’ and his duties will usually also include unloading and
the transfer of freight between the vehicles and the warehouse . . . .”); see also supra Part II.C.
According to the DOL regulations—which provide guidance, but are not legally binding—
a loader’s activities directly affect the safe operation of the vehicle if the loader
has responsibility when such motor vehicles are being loaded, for
exercising judgment and discretion in planning and building a
balanced load or in placing, distributing, or securing the pieces of
freight in such a manner that the safe operation of the vehicles on
40

the highways in interstate or foreign commerce will not be
jeopardized. . . .
The mere handling of freight at a terminal, before or after loading,
or even the placing of certain articles of freight on a motor carrier
truck may form so trivial, casual, or occasional a part of an
employee’s activities, or his activities may relate only to such
articles or to such limited handling of them, that his activities will
not come within the kind of “loading” which directly affects “safety
of operation.”
29 C.F.R. § 782.5 (citations omitted).
In the instant case, it is undisputed that plaintiff loaders were responsible for physically
loading the merchandise on the trucks, riding alongside the drivers, unloading the truck at the
customer’s destination, and then riding back on the trucks to defendants’ warehouse. Specifically,
plaintiff Tang explained that his duty was to
load the outbound trucks at the warehouse from Flushing, Queens .
. . ride with the truck and help the driver to unload the truck when
we arrived [at] the Chinese restaurants either in New York or
another state. . . . The loader is always following the assigned truck
to help the driver to load or unload the goods, and back to the
company with the truck at the end of the day.
Tang Second Decl. at ¶ 2 (emphasis added). Plaintiff Q. Liu stated that he physically loaded and
unloaded the merchandise on and off the trucks, under the supervision of shipping staff and the
truck driver. Q. Liu Decl. at ¶ 8.
Plaintiffs maintain that because Q. Liu and Tang were not required to use their judgment
in deciding how to load goods on to the trucks for optimal interstate highway travel, their job did
not entail “safety-affecting activities.” See, e.g., Pls.’ Opp’n Mem. at 6-7; see also You Decl. at ¶
16 (stating that “Plaintiff Chaohui Tang and Qingze Liu’s job activities did not involve exercise
of judgment and discretion in loading goods in the manner affecting the safe operation of the
vehicle on the interstate highways, they are not exempted loaders as defined under the FLSA”).

41

Defendants alleged that plaintiffs Q. Liu and Tang were jointly responsible for adjusting
the goods after several deliveries in order to affect the safe operation of vehicles on interstate
highways. See Spindler Reply Affirmation at ¶¶ 11-12. While they received instructions as to
what to load on the truck, they were responsible for determining how to load the goods and for
unloading them at the delivery destinations. See Z. Chen Reply Decl. at ¶¶ 4-9, 13-14; S. Chan
Reply Decl. at ¶¶ 3-8, 12-13.
The magistrate judge was correct in determining that plaintiffs’ acknowledged
responsibility in loading and unloading the freight is sufficient to qualify them as “loaders” within
the meaning of the MCA, thereby providing an exemption from the overtime requirements of the
FLSA and NYLL. See R&R at 15-19. As correctly noted in the report and recommendation, the
plain language of the DOL regulation provides that a loader is anyone who has responsibility for
either “exercising judgment and discretion in planning and building a balanced load or in placing,
distributing, or securing the pieces of freight” so to ensure the safe operation of the vehicle. See
id. at 17-18 (citing 29 C.F.R. § 782.5) (emphasis in original).
Recognizing that an employee who actually performs the loading and unloading of the
goods on the truck, even if at someone else’s direction, performs a “safety-affecting activity”
comports with the purpose of the MCA and is consistent with relevant case law:
An employee who actually and regularly loads the truck clearly has
a significant impact on the safe operation of the vehicle. Even
without exercising any discretion, plaintiffs are expected to follow
the directions of a supervisor and correctly load a vehicle, which has
a tremendous impact on the safety of the vehicle while it is in transit.
...
Rather than a small or insignificant portion of their duties, the
plaintiffs who were loaders were solely responsible for loading and
unloading the truck. The loading performed by plaintiffs therefore
constituted a “safety-affecting” activity within the meaning of the
MCA.
42

Id. at 18-19; see also Levinson, 330 U.S. at 668-70 (noting that the Interstate Commerce
Commission determined that the job activities of a “loader” impact the safe operation of a vehicle);
Khan, 474 F. Supp. 2d at 457, n.10 (“Though it is obvious to the point of almost being susceptible
of proof by judicial notice, the loading or rearrangement of cargo on a truck is obviously related
to the safe operation of that vehicle on a highway. . . . the proper loading of [a] . . .vehicle directly
affects the safe operation of such vehicles on the highway and . . . employees who actually ‘load’
them fall within the Motor Carrier Exemption.”). The court concludes that the loaders’ work in
the instant case affected safe operation of the trucks they were on. Shifting merchandise not
properly loaded can constitute a hazard to the truck carrying the goods as well as to following
vehicles should any part of the load fall on the roadway.
Finally, after having determined that the employer falls within the MCA definition of
“motor private carrier” and that plaintiffs’ job duties entailed “safety-affecting activities,” the
magistrate judge turned to whether plaintiffs’ duties were carried out in vehicles engaged in
interstate commerce. See R&R at 19-27. It was first determined that defendants had not carried
their burden of proving that the MCA exemption applied to plaintiffs regardless of the actual route
traveled, on the theory that they were either engaged in part of a “practical continuity of
movement” across state lines or were “likely to be called upon” to perform out-of-state travel. See
id. at 19-23. Because drivers and loaders were not randomly assigned routes, but were instead
kept on the same route for certain periods of time, when they were assigned to intrastate routes,
they were not “likely to be called upon” to travel out-of-state. See Defs.’ Resps. to Ct.’s Questions,
Jan. 12, 2016, ECF No. 74 (explaining that “[t]he drivers, driver’s helpers and loaders were not
randomly assigned to the out of state routes as it was beneficial for each driver, helper and loader
to be familiar with the routes, and once trained for the route was kept on that route”); R&R at 23

43

(“As plaintiffs were not randomly assigned routes but rather kept the same routes for certain time
periods, defendants have not demonstrated that interstate travel was a natural and integral part of
plaintiffs’ job duties during the periods they did not engage in interstate travel.”).
The magistrate concluded that, “as it is defendants’ burden to prove the exemption applies,
plaintiffs were only exempt under the MCA during the time periods in which the plaintiffs actually
worked on vehicles which travelled out of the state.” R&R at 23 (emphasis added). She correctly
adopted a week-by-week approach to determine when plaintiffs fell within the exemption. See id.
at 10, 19, 22-27. The parties do not challenge the magistrate judge’s weekly analysis. See, e.g.,
Hr’g Tr., Sept. 7, 2016, ECF No. 87 at 11:4-23.
In order to determine the time periods during which plaintiffs actually worked interstate
routes, the magistrate judge turned to plaintiffs’ own declarations, as well as the “detailed
handwritten route assignments” and AR invoices submitted by defendants. It was determined that:


With respect to plaintiff Tang:
o Defendants’ records confirmed he made interstate deliveries in June 2012 (to
Pennsylvania), July 2012 (to New Jersey), as well as between January 2013 and
November 2013 (to New Jersey and Connecticut). See R&R at 23-24; Defs.’
Summ. J. Mot. at Exs. D1, ECF No. 13-9 and E1, ECF No. 13-13. Defendants
did not carry their burden for the period from September 2011 through May
2012, and August 2012 through December 2012. See R&R at 24-25.



With respect to plaintiff Li:
o Plaintiff Li stated that during the employment periods from September 25, 2009
to December 2010 and from May 2012 through January 8, 2013 he only made
deliveries within the State of New York. Li Second Decl. at ¶¶ 4-5. The

44

defendants agreed that for the majority of his employment, Li only made
intrastate deliveries. Spindler Affirmation at ¶ 21 (stating that plaintiff Li was
“mostly assigned to routes confined solely in New York”). The magistrate
judge thus found that defendants did not carry their burden of proving that
plaintiff Li was exempt under the MCA for these time periods. See R&R at 25.
o For the period from August 1, 2013 through November 16, 2013, the magistrate
judge determined that defendants’ records confirmed plaintiff was assigned to
routes in Connecticut and New Jersey and he did in fact travel out of state. See
id. at 25, n.18; Defs.’ Summ. J. Mot. at Exs. D2, ECF No. 13-10 and E2, ECF
No. 13-14.


With respect to plaintiff Q. Liu:
o Defendants’ records showed that, from June 2012 to August 2012, plaintiff Q.
Liu consistently took trips to New Jersey. See R&R at 25-26. Plaintiff Q. Liu
did not submit a second declaration describing whether his routes were
interstate or intrastate, and he has not disputed defendants’ account.



With respect to plaintiff J. Liu:
o Plaintiff J. Liu fell within the MCA exemption only for those time periods
during which he admitted to working on interstate routes to Connecticut and
New Jersey—i.e., from October 2010 through July 2011 and from October 2012
to April 2013. See R&R at 26; J. Liu Second Decl. at ¶¶ 2-4. Defendants failed
to establish that plaintiff fell under the MCA exemption for his final period of
employment, from May 2013 to October 2013. See R&R at 26; J. Liu Second
Decl. at ¶ 4.

45

The magistrate judge properly relied on plaintiffs’ declarations and defendants’ route
assignments and AR invoices to establish the time periods during which plaintiffs traveled out of
state and therefore fell within the MCA exemption. While plaintiffs have raised a challenge to the
authenticity of some employment records—found unsubstantiated by the magistrate judge—they
have not challenged the veracity of claims as to defendants’ route assignments and AR invoices.
Plaintiffs’ general objection to the magistrate judge’s determination as to the MCA
applicability is rejected.
3.

Defendants’ Objections
a)

Plaintiff Tang’s MCA Exemption

Defendants object to the period of time during which plaintiff Tang was found to be nonexempt under the MCA, arguing that he himself admitted to driving interstate routes from
September 2011 to September 2012. According to defendant, Tang should only be considered
non-exempt from the FLSA and NYLL requirements under the MCA from September 2012 to
December 2012. See Defs.’ Objs. to R&R at 1.
Plaintiff Tang stated that “[f]rom September 2011 to July or August, 2012, [he] worked for
the long distant routes to upstate New York, New Jersey and Pennsylvania.” Tang Second Decl.
at ¶ 4 (emphasis added). He then stated that he “changed to the New York routes” from “around
September 2012 to September 2013.” Id. at ¶ 5.
For the period between September 2011 to July or August 2012, he did not specify when
he traveled to upstate New York and when he traveled out of state. The magistrate judge turned
to defendants’ records to determine when he traveled outside of New York. She concluded that
the route assignments and AR invoices supported a finding that Tang traveled out of state from
June 2012 through July 2012. R&R at 24.

46

Defendants have not pointed to any evidence, other than plaintiffs’ affidavit, to support a
finding that Tang traveled out of state for any additional time periods. See Defs.’ Objs. to R&R;
see also Defs.’ Summ. J. Mot. at Ex. D1, ECF No. 13-9 (Tang’s route assignments do not show
any routes assigned for the year 2011) and Ex. E1, ECF No. 13-13 (defendants did not submit any
AR invoices for Tang for employment periods prior to June 2012). They have not satisfied their
burden.
Defendants’ objection is rejected.
b)

Statute of Limitations

Defendants maintain that their position that “the statute of limitations has run with respect
to a portion of the time period the [report and recommendation] found Messrs. Li, Tang and Liu
not to be exempt is still before” the court. Defs.’ Objs. to R&R at 1-2.
The issue of the statute of limitations was raised by defendants as an affirmative defense
in their answer. Answer to Am. Compl., May 22, 2014 ECF No. 8, at ¶ 92. It was not raised in
their summary judgment motion and was not referred to the magistrate judge. Properly, it was not
addressed in her report and recommendation.
Defendants’ objection is rejected.
c)

Defendants’ Summary Judgment Motion

Defendants reiterate their position that, regardless of the applicability of the MCA,
plaintiffs were properly paid in accordance with the FLSA and NYLL. Defs.’ Objs. to R&R at 12.
These arguments were not referred to the magistrate judge. They were properly not
addressed in her report and recommendation.
Defendants’ objection is rejected.
47

4.

Magistrate Judge Conclusions Adopted

Having considered and rejected the parties’ objections to the report and recommendation,
the conclusions reached by the magistrate judge are adopted. These are as follows:
The portion of defendants’ summary judgment motion that addresses plaintiffs’ overtime
claims (see Defs.’ Summ. J. Mem. at Part II.A) is denied in part and granted in part: it is granted
with respect to the time periods during which the magistrate judge determined that the MCA
exemption is applicable as to each individual plaintiff, and denied for the remaining periods of
employment.
The portion of plaintiffs’ summary judgment motion addressing plaintiffs’ overtime claims
and applicability of the MCA exemption (see Pls.’ Summ. J. Mem. at Part II) is denied. To the
extent that plaintiffs fell within the MCA exemption, they were not owed overtime payment. To
the extent that they did not fall within the MCA exemption, there is a factual dispute over how
much they were paid and whether any additional overtime is owed. Resolution of plaintiffs’
surviving FLSA and NYLL overtime claims is inappropriate for summary judgment since the
relevant facts are not clear.
B.

FLSA and NYLL Minimum Wage Claims

The MCA does not provide an exemption from the minimum wage provisions of the FLSA
and NYLL. See 29 U.S.C. § 213(b)(1); supra at Part IV.B.3. Plaintiffs claim that defendants
failed to comply with these obligations. See Am. Compl. at Counts III and IV. It is argued that
they were paid a flat monthly rate irrespective of the times they clocked in and out, and that the
employee reports submitted by defendants were doctored. See, e.g., Tang Second Decl. at ¶¶ 6-7;
Li Second Decl. at ¶¶ 7-8; J. Liu Second Decl. at ¶¶ 8-9; see also supra Part II.B-C.

48

Defendants moved for summary judgment, arguing that plaintiffs were paid, at a minimum,
the applicable statutory $7.25 per hour minimum wage as well as overtime. See Defs.’ Summ. J.
Mem. at Part II.B. In support of their motion, they submitted the following documents:


Weekly “Employee Details Reports” for each individual plaintiff. See Defs.’ Summ.
J. Mot. at Exs. F1-F4, ECF Nos. 13-17 to 13-20. The reports indicate the time in which
the employees clocked in and out each day, and calculate the hours worked, including
any overtime. They appear to be signed by the individual plaintiffs. Defendants
explain that the Employee Details Reports with the “+ Added Item” contain items that
were added manually “in the event that an employee forgets to clock in and/or clock
out. Efforts were taken to ensure that the times manually entered in were accurate; they
were based on conversations had with the respective employee and confirmation from
said employee’s supervisors and coworkers.” Spindler Reply Affirmation at ¶ 29; see
also S. Chan Reply Decl. at ¶ 23.



Paystubs for each individual plaintiff. See Defs.’ Summ. J. Mot. at Exs. G1-G4, ECF
Nos. 13-21-13-24. Submitted paystubs purport to provide the amount being paid for
each regular, overtime and “bonus” hour (where applicable) worked by each plaintiff
on a weekly basis. These documents appear to be signed by the individual plaintiffs.

Plaintiffs raised a challenge to the authenticity of the records submitted by defendants.
Specifically, they seemed to allege that the Employee Details Reports were falsified, since they
claimed to have worked different—and longer—hours than those recorded on the documents
provided by defendants.
The issue was referred to the magistrate judge for decision. See Order, Mar. 12, 2015, ECF
No. 26. It was determined that plaintiffs failed to establish that the records were falsified. See

49

Order, Aug. 7, 2015, ECF No. 52, at 13; supra Part III.B. Plaintiffs did not file timely objections
to the magistrate’s order. Instead, they filed a cross-motion for summary judgment, in which they
again claimed that the records were doctored, submitted additional evidence, and sought damages.
See Pls.’ Summ. J. Mot. at 4-7.
Plaintiffs’ claim regarding the falsification of documents is dismissed. They had an
opportunity to challenge the magistrate judge’s determination and failed to do so. They cannot
now raise the same claims again through a summary judgment motion.
A question of fact remains as to how plaintiffs were paid. Defendants explained that
plaintiffs were paid on a monthly basis in accordance with the hours they worked. The paystubs
recorded hours worked and wages due on a weekly basis, even though plaintiffs were then paid
monthly. See Splinder Affirmation at ¶ 14. Plaintiffs agreed that they were made to sign between
four and five documents each month, and that they were paid on a monthly basis. They argue that
the monthly wage was a flat one, independent of the hours actually worked. See supra Part II.BC.
In her order, the magistrate judge pointed out that defendants’ pay practices raised
questions, including why were plaintiffs required to clock in and out if they consistently testified
that they were paid a single straight wage per month. See Order, Aug. 7, 2015, ECF No. 52, at 1011.
The available records present gaps and inconsistencies. For example, defendants failed to
submit paystubs for time periods during which defendants claim they were employed by Wing
Keung. See infra Part VII. Defendants submitted paystubs indicating that plaintiffs were paid
during time periods in which plaintiffs have claimed to be working in different states and for
different companies. Id.

50

Because of factual disputes, resolution of plaintiffs’ FLSA and NYLL minimum wage
claims through summary judgment is inappropriate.
The part of defendants’ summary judgment motion relating to plaintiffs’ minimum wage
claims (see Defs.’ Summ. J. Mem. at Part II.B) is denied.
The part of plaintiffs’ summary judgment motion relating to the alleged falsification of
documents by defendants (see Pls.’ Summ. J. Mem. at 4-7) is denied.
C.

Lack of 56.1 Statement

Plaintiffs argue that defendants’ summary judgment motion should be denied in its entirety
because defendants failed to file a statement of material facts pursuant to local rule 56.1. See Pls.’
Opp’n Mem. at 3-5.
“A district court has broad discretion to determine whether to overlook a party’s failure to
comply with local court rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citing
Wight v. Bankamerica Corp., 219 F.3d 79, 85 (2d Cir. 2000)). As held by the Court of Appeals
for the Second Circuit, “while a court is not required to consider what the parties fail to point out
in their Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous review of
the record even where one of the parties has failed to file such a statement.” Id. (quotation marks
and citation omitted).
The purpose of a 56.1 statement is to “streamline the consideration of summary judgment
motions by freeing district courts from the need to hunt through voluminous records without
guidance from the parties.” Id. at 74 (citations omitted). The rule “does not absolve the party
seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of
law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are
otherwise unsupported in the record.” Id.
51

Defendants’ failure to file a statement pursuant to Rule 56.1 is not fatal to their summary
judgment motion. The motion is decided—and denied, in part—on the merits.
D.

Plaintiffs’ Motion for Reconsideration

Subsequent to the hearing of September 7, 2016, while the court was preparing the instant
memorandum and order embodying decisions made at the hearing, plaintiffs moved for
reconsideration. See Pls.’ Mot. for Reconsideration, Sept. 16, 2016, ECF No. 88. They ask that
the court consider two matters that it allegedly overlooked when orally ruling on the parties’
summary judgment motions—i.e., the allegations that plaintiffs were paid straight monthly wages
rather than hourly wages, and determination of how much they were actually paid. Id.
The court has considered the arguments in plaintiffs’ motion for reconsideration. None of
them provide evidence or argument not already fully considered and explicated in the instant
memorandum or oral findings. Plaintiffs’ motion for reconsideration is denied.
Confirming findings by the court orally on the record, summary judgment in favor of
defendants is granted only with respect to plaintiffs’ overtime claims for periods of employment
during which the magistrate judge found they fell within the MCA exemption. Summary judgment
is denied as to all other claims.
Whether plaintiffs were paid in accordance with minimum wage obligations of the FLSA
and NYLL, and whether they were paid overtime for the periods of employment during which the
magistrate judge determined they were not covered by the MCA exemption, are factual questions
about which there is disagreement. Resolution through summary judgment is inappropriate.

52

E.

Statute of Limitations

Defendants raised the running of the statute of limitations on some claims as an affirmative
defense. See Answer to Am. Compl., May 22, 2014 ECF No. 8, at ¶ 92. This issue was not raised
in their summary judgment motion. It was not briefed by the parties.
Plaintiffs filed their original complaint on January 16, 2014. See Compl., Jan. 16, 2014,
ECF No. 1 (the complaint erroneously indicates it was signed on January 16, 2013. ECF records
show the action was commenced in January 2014). Plaintiffs each claimed they are owed back
wages and overtime for different time periods, ranging from September 2009 to November 2013,
and that they were not provided the annual notices required under New York’s Wage Theft
Prevention Act. See generally id.
An amended complaint was filed on March 7, 2014. See Am. Compl. It included the same
claims and factual allegations, but was styled as a class action complaint. See id.
Rule 15 of the Federal Rules of Civil Procedure provides that “[a]n amendment to a
pleading relates back to the date of the original pleading when the amendment asserts a claim or
defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out-in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).
The Court of Appeals for the Second Circuit has indicated that the district court should
“provide maximum opportunity for each claim to be decided on its merits rather than on procedural
technicalities.” Slayton v. Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006), as amended (Oct.
3, 2006) (quotation marks and citations omitted).
“For a newly added action to relate back, the basic claim must have arisen out of the
conduct set forth in the original pleading.” Id. (quotation marks and citations omitted). The
“central inquiry” under Rule 15 of the Federal Rules of Civil Procedure “is whether adequate
notice of the matters raised in the amended pleading has been given to the opposing party within
53

the statute of limitations by the general fact situation alleged in the original pleading.” Id. Where
the amended complaint does not set forth a new claim “but renders prior allegations more definite
and precise, relation back occurs.” Id.
In the instant case, in their amended complaint plaintiffs re-allege essentially the same
claims and factual allegations that they set forth in their original complaint. Defendants were on
notice “of the matters raised in the amended pleading . . . by the general fact situation alleged in
the original pleading.” See id. The allegations in plaintiffs’ amended complaint are deemed to
relate back to the original complaint for purposes of the statute of limitations.
1.

FLSA Claims

With respect to plaintiffs’ FLSA allegations, claims for unpaid wages and overtime that
accrued prior to January 16, 2011 are dismissed. Those claims arose three or more years prior to
January 16, 2014, the date on which the original complaint was filed. The limitations period under
the FLSA has run regardless of whether the alleged violation was willful. See 29 U.S.C. § 255(a);
see also supra Part IV.B.4.
Whether the statute of limitations has run on plaintiffs’ claims for unpaid wages arising
after January 16, 2011, but prior to January 16, 2012, is a question of fact that will need to be
determined by a jury. These claims were brought within three years but over two years after they
accrued. The running of the limitations period depends upon whether the alleged violations were
willful: if they were, the limitations period is three years and the claims are properly raised. If
there was no willfulness, then the limitations period is two years and the claims are not timely.
Any claim for violations that allegedly occurred on or after January 16, 2012 is within the
limitations period regardless of willfulness, and is not barred on statute of limitations grounds.

54

2.

NYLL Claims

The statute of limitations for the NYLL claims is six years, regardless of willfulness. N.Y.
Lab. Law § 663(3); see also supra Part IV.B.4. All NYLL claims raised by plaintiffs fall within
the six year limitations period.
VI.

Conclusion
Plaintiffs’ summary judgment motion is denied. Plaintiffs’ motion for reconsideration is

denied.
Defendants’ motion for summary judgment is granted in part and denied in part, as follows:


Granted with respect to plaintiffs’ overtime claims for periods of employment
during which the magistrate judge found they were exempt under the MCA;



Denied with respect to plaintiffs’ overtime claims for periods of employment
during which the magistrate judge found they were not exempt under the MCA;



Denied with respect to plaintiffs’ minimum wage claims.

Defendants did not move for summary judgment on plaintiffs’ fifth and final cause of
action—failure to provide annual notices as required under the Wage Theft Prevention Act. See
Am. Compl. at Count V. This claim is therefore not addressed in the instant memorandum and
order. If not stipulated to, it will be tried.
Although not raised by defendants in their summary judgment motion, the statute of
limitations has expired with respect to the FLSA claims arising prior to January 16, 2011. Whether
the statute of limitations has run on plaintiffs’ FLSA claims arising after January 16, 2011 but
before January 16, 2012 is a question of fact turning on whether violations were willful. It will be
determined by a jury.

55

There continues to be disagreement over the exact time periods during which plaintiffs
worked for defendants. See infra Part VII; see also Hr’g Tr., Sept. 7, 2016, ECF No. 87 at 4:145:12, 19:1-21:2. The parties shall attempt to resolve these discrepancies by stipulation. See Hr’g
Tr., Sept 7, 2016, ECF No. 87 at 5:13-22. For the disputed time periods, they shall attempt to
reach an understanding as to (1) whether plaintiffs worked for defendants; and (2) whether
plaintiffs worked on vehicles engaged in interstate travel. In the absence of a stipulation, the court
is prepared to find that plaintiffs worked for defendants during the time periods for which
defendant has provided paystub records. See id. at 23:12-20.
Trial will proceed on all surviving claims. These are as follows: (1) plaintiffs’ overtime
claims under the FLSA and NYLL for the periods of employment during which the magistrate
judge determined they were not exempt under the MCA; (2) plaintiffs’ minimum wage claims
under the FLSA and NYLL; (3) plaintiffs’ claims under the New York Wage Theft Prevention
Act; and (4) any claims for spread of hours payments under the NYLL for those plaintiffs who
were paid the minimum wage. The jury will determine whether any FLSA violations were willful,
in order to establish whether some claims are barred by the applicable statute of limitations.
Trial shall commence on February 6, 2017 at 2:00 p.m. in Courtroom 10B South. By
consent, a jury will be selected before the magistrate judge that morning, at a time set by the
magistrate judge.
In limine motions will be heard on January 30, 2017 at 10:30 a.m. in Courtroom 10B South.
By January 23, 2017, the parties shall submit to the court proposed full jury charges and verdict
sheets, in limine motions, and any supporting briefs. They shall exchange and file with the court:
(1) lists of pre-marked exhibits proposed for use at trial, together with copies of all exhibits, and
any stipulations regarding admissibility and authenticity; (2) lists of proposed witnesses together

56

with brief summaries of their proposed testimony; and (3) stipulations with respect to all
undisputed facts.
The proposed verdict sheets are to be broken down by employment period and include all
issues of fact raised by plaintiffs. See Hr'g Tr., Sept. 7, 2016, ECF No. 87 at 27:10-15.
Set forth as an appendix is a draft FLSA and NYLL claims overview chart produced by the
court to assist the parties on providing stipulations or proposed charges. See infra Part VII.
The parties shall promptly complete discovery. Any disputes related to briefing schedules
or discovery are respectfully referred to the magistrate judge.
The matter is referred to the magistrate judge for further settlement discussions. Whenever
the parties are before the magistrate judge, the individual owner of the business and the plaintiffs
shall appear in person. See Hr'g Tr., Sept. 7, 2016, ECF No. 87 at 28:9-12. The parties may use
court-annexed mediation to attempt to resolve the dispute.

ORDE~
Jack B. Weinstein
Senior United States District Judge

September 28, 2016
Brooklyn, New York

57

VII.

Appendix
Draft FLSA and NYLL Claims Overview Chart

Plaintiff

Employment
Period

Applicable
Minimum
Wage under
FLSA and
NYLL

Applicable
Overtime
Wage under
FLSA and
NYLL

Wages Paid
According to
Defendants’
Records

Wages Paid
According to
Plaintiffs

FLSA
Statute of
Limitations
Expired (2
years; if
violation
willful 3
years)

Tang
(loader)

September 2009
to January 2011

$7.25

This time
period not
addressed in
R&R re MCA
exemption

No paystub records

Flat monthly
wage of $2,300

Yes,
No
regardless of
willfulness
(complaint
filed > 3 years
from alleged
violation)

No paystub records

Flat monthly
wage of $2,300

Question of
No
fact: depends
on whether
violation was
willful
(complaint
filed > 2 years
but within 3
years from
alleged
violation)

Plaintiff only
alleges he worked
this time period in
his first
declaration

January 2011 to
August 2011
Plaintiff only
alleges he worked
this time period in
his first
declaration

Parties to
attempt to
reach
stipulation
$7.25

This time
period not
addressed in
R&R re MCA
exemption
Parties to
attempt to
reach
stipulation

58

NYLL
Statute of
Limitations
Expired (6
years,
regardless
of
willfulness)

Plaintiff

Employment
Period

Applicable
Minimum
Wage under
FLSA and
NYLL

Applicable
Overtime
Wage under
FLSA and
NYLL

Wages Paid
According to
Defendants’
Records

Wages Paid
According to
Plaintiffs

FLSA
Statute of
Limitations
Expired (2
years; if
violation
willful 3
years)

September 2011

$7.25

One and onehalf times the
regular rate

No paystub records

Flat monthly
wage of $2,300

Question of
No
fact: depends
on whether
violation was
willful
(complaint
filed > 2 years
but within 3
years from
alleged
violation)

October 2011 to
January 2012

$7.25

One and onehalf times the
regular rate

$7.25 per hour;
$10.875 for overtime
hours

Flat monthly
wage of $2,300

Question of
No
fact: depends
on whether
violation was
willful
(complaint
filed > 2 years
but within 3
years from
alleged
violation)

59

NYLL
Statute of
Limitations
Expired (6
years,
regardless
of
willfulness)

Plaintiff

Applicable
Minimum
Wage under
FLSA and
NYLL

Applicable
Overtime
Wage under
FLSA and
NYLL

Wages Paid
According to
Defendants’
Records

Wages Paid
According to
Plaintiffs

FLSA
Statute of
Limitations
Expired (2
years; if
violation
willful 3
years)

NYLL
Statute of
Limitations
Expired (6
years,
regardless
of
willfulness)

January 2012 to
May 2012

$7.25

One and onehalf times the
regular rate

$7.25 per hour;
$10.875 for overtime
hours

Flat monthly
wage of $2,300

No

No

June 2012 to July
2012

$7.25

Exempt under
MCA

$7.25 per hour;
$10.875 for overtime
hours

Flat monthly
wage of $2,400

No

No

August 2012 to
December 2012

$7.25

One and onehalf times the
regular rate

$7.25 per hour;
$10.875 for overtime
hours

Flat monthly
wage of $2,300

No

No

January 2013 to
November 2013
Q. Liu
(loader)

Employment
Period

$7.25

Exempt under
MCA

$7.25 per hour;
$10.875 for overtime
hours

Flat monthly
wage of $2,400

No

No

July 2011 to
August 2011

$7.25

One and onehalf times the
regular rate

No paystub records

Flat wage
ranging from
$2,200 to $2,300
per month

Question of
No
fact: depends
on whether
violation was
willful
(complaint
filed > 2 years
but within 3
years from
alleged
violation)

60

Plaintiff

Employment
Period

Applicable
Minimum
Wage under
FLSA and
NYLL

Applicable
Overtime
Wage under
FLSA and
NYLL

Wages Paid
According to
Defendants’
Records

Wages Paid
According to
Plaintiffs

FLSA
Statute of
Limitations
Expired (2
years; if
violation
willful 3
years)

September 2011
to January 2012

$7.25

One and onehalf times the
regular rate

$7.25 per hour;
$10.875 for overtime
hours

Flat wage
ranging from
$2,200 to $2,300
per month

Question of
No
fact: depends
on whether
violation was
willful
(complaint
filed > 2 years
but within 3
years from
alleged
violation)

January 2012 to
May 2012

$7.25

One and onehalf times the
regular rate

$7.25 per hour;
$10.875 for overtime
hours

Flat wage
ranging from
$2,200 to $2,300
per month

No

No

June 2012 to July
2012

$7.25

Exempt under
MCA

$7.25 per hour;
$10.875 for overtime
hours

N/A

No

No

Plaintiff does not
include this time
period in his
declaration

61

NYLL
Statute of
Limitations
Expired (6
years,
regardless
of
willfulness)

Plaintiff

Employment
Period

Applicable
Minimum
Wage under
FLSA and
NYLL

Applicable
Overtime
Wage under
FLSA and
NYLL

Wages Paid
According to
Defendants’
Records

Wages Paid
According to
Plaintiffs

FLSA
Statute of
Limitations
Expired (2
years; if
violation
willful 3
years)

NYLL
Statute of
Limitations
Expired (6
years,
regardless
of
willfulness)

August 2012

$7.25

Exempt under
MCA

No paystub records

N/A

No

No

$7.25
Li (driver) September 2009
to December 2009

One and onehalf times the
regular rate

No paystub records

Flat wage
ranging from
$2,800 to $2,900
per month

Yes,
No
regardless of
willfulness
(complaint
filed > 3 years
from alleged
violation)

Plaintiff does not
include this time
period in his
declaration

January 2010 to
December 2010

$7.25

One and onehalf times the
regular rate

$9.25 per hour;
$13.875 for overtime
hours

Flat wage
ranging from
$2,800 to $2,900
per month

Yes,
No
regardless of
willfulness
(complaint
filed > 3 years
from alleged
violation)

March 2011

$7.25

This time
period not
addressed in

$9.25 per hour;
$13.875 for overtime
hours

N/A

Question of
fact: depends
on whether
violation was

Plaintiff claims he
was working for a
different company

62

No

Plaintiff

Employment
Period

Applicable
Minimum
Wage under
FLSA and
NYLL

in New Orleans
during this time

Applicable
Overtime
Wage under
FLSA and
NYLL

Wages Paid
According to
Defendants’
Records

Wages Paid
According to
Plaintiffs

R&R re MCA
exemption

FLSA
Statute of
Limitations
Expired (2
years; if
violation
willful 3
years)

NYLL
Statute of
Limitations
Expired (6
years,
regardless
of
willfulness)

willful
(complaint
filed > 2 years
but within 3
years from
alleged
violation)

Parties to
attempt to
reach
stipulation
May 2012 to
December 2012

$7.25

One and onehalf times the
regular rate

$8.00 per hour;
$12.00 for overtime
hours

Flat wage
ranging from
$2,800 to $2,900
per month

No

No

January 2013

$7.25

One and onehalf times the
regular rate

No paystub records

Flat wage
ranging from
$2,800 to $2,900
per month

No

No

August 2013 to
November 2013

$7.25

Exempt under
MCA

$8.00 per hour;
$12.00 for overtime
hours

Flat wage
ranging from
$2,800 to $2,900
per month

No

No

63

Plaintiff

Employment
Period

Applicable
Minimum
Wage under
FLSA and
NYLL

Applicable
Overtime
Wage under
FLSA and
NYLL

Wages Paid
According to
Defendants’
Records

Wages Paid
According to
Plaintiffs

FLSA
Statute of
Limitations
Expired (2
years; if
violation
willful 3
years)

J. Liu
(driver)

October 2010 to
November 2010

$7.25

Exempt under
MCA

No paystub records

Flat monthly
wage of $2,800

Yes,
No
regardless of
willfulness
(complaint
filed > 3 years
from alleged
violation)

November 2010
to January 2011

$7.25

Exempt under
MCA

$9.00 per hour;
$13.50 for overtime
hours

Flat monthly
wage of $2,800

Yes,
No
regardless of
willfulness
(complaint
filed > 3 years
from alleged
violation)

January 2011 to
July 2011

$7.25

Exempt under
MCA

$9.00 per hour;
$13.50 for overtime
hours

Flat monthly
wage of $2,800

Question of
No
fact: depends
on whether
violation was
willful
(complaint
filed > 2 years
but within 3
years from

64

NYLL
Statute of
Limitations
Expired (6
years,
regardless
of
willfulness)

Plaintiff

Employment
Period

Applicable
Minimum
Wage under
FLSA and
NYLL

Applicable
Overtime
Wage under
FLSA and
NYLL

Wages Paid
According to
Defendants’
Records

Wages Paid
According to
Plaintiffs

FLSA
Statute of
Limitations
Expired (2
years; if
violation
willful 3
years)

NYLL
Statute of
Limitations
Expired (6
years,
regardless
of
willfulness)

alleged
violation)
August 2011 to
December 2011

$7.25

Plaintiff claims he
was working for a
different company
in Las Vegas
during this time

This time
period not
addressed in
R&R re MCA
exemption

$9.00 per hour;
$13.50 for overtime
hours

N/A

Question of
No
fact: depends
on whether
violation was
willful
(complaint
filed > 2 years
but within 3
years from
alleged
violation)

Parties to
attempt to
reach
stipulation

October 2012 to
April 2013

$7.25

Exempt under
MCA

$8.00 per hour;
$12.00 for overtime
hours

Flat monthly
wage of $2,800

No

No

May 2013 to
September 2013

$7.25

One and onehalf times the
regular rate

$8.00 per hour;
$12.00 for overtime
hours

Flat monthly
wage of $2,800

No

No

65

Plaintiff

Employment
Period

Applicable
Minimum
Wage under
FLSA and
NYLL

Applicable
Overtime
Wage under
FLSA and
NYLL

Wages Paid
According to
Defendants’
Records

Wages Paid
According to
Plaintiffs

FLSA
Statute of
Limitations
Expired (2
years; if
violation
willful 3
years)

NYLL
Statute of
Limitations
Expired (6
years,
regardless
of
willfulness)

September 2013
to October 2013

$7.25

One and onehalf times the
regular rate

No paystub records

Flat monthly
wage of $2,800

No

No

66