Montellano-Espana v. Cooking Light Inc. et al
Filing
50
DECISION AND ORDER: The Court therefore finds in favor of Plaintiff and awards him damages, see ORDER for further detail. So Ordered by Judge Sterling Johnson, Jr on 8/1/2016. (fwd'd for jgm) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------)(
PANFILO MONTELLANO-ESPANA,
14 CV 01433 (SJ) (RLM)
Plaintiff,
DECISION
AND ORDER
v.
COOKING LIGHT INC. and GUS
KARASAKALIDES,jointly and severally,
Defendants.
------------------------------------------------------)(
APPEARANCES
LAW OFFICE OF JUSTIN A. ZELLER, P.C.
277 Broadway, Suite 408
New York, New York 10007-2036
By:
John M. Gurrieri
Brandon D. Sherr
Justin A. Zeller
Attorneys for Plaintiff
MITCHELL & IN CAL TALUPO
98-20 Metropolitan Avenue
Forest Hills, New York 11375
By:
Arthur H. Forman
John A. Mitchell
Attorneys for Defendants
JOHNSON, Senior District Judge:
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INTRODUCTION
Panfilo Montellano-Espana ("Plaintiff') filed this lawsuit on March 5, 2014,
claiming that Gus Karasakalides ("Defendant") and Cooking Light Inc. ("Corporate
Defendant") violated the Fair Labor Standards Act, 29 U.S.C. §201, et seq.
("FLSA"), and the New York Labor Law, N.Y. Lab. Law §650 et seq. ("NYLL").
Plaintiff alleges that the Defendants failed to pay minimum wage, overtime
compensation, and spread of hours compensation. He also alleges that they failed to
provide weekly wage statements, uniform maintenance and purchase costs, and a
notice form. Plaintiff seeks to recover unpaid wages, uniform maintenance and
purchase costs, applicable liquidated damages, applicable penalties, and
prejudgment interest.
At a trial before the Court held on April 7, 2015, the Court received
evidence concerning Plaintiff's claims and both parties testified as witnesses. No
other witness testified.
Based on the observations made during witness testimony, the Court found
Plaintiff to be largely credible in his answers to inquiries from the attorneys as well
as from the Court. However, there were some issues where Defendant's testimony
was more credible. On the basis of evidence and the stipulations of fact to which
the parties agreed, the Court makes the findings of fact and reaches the conclusions
of law set forth below.
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FINDINGS OF FACT
1.
At all times relevant to this action Defendant owned and operated Cooking
Light Inc. (doing business as "the Garden Grill"), a restaurant located at 318
Graham Avenue in Brooklyn (Transcript, "Tr." 11-12, 80.) At all relevant times,
Defendant exercised substantial control over employment-related aspects of the
business operation, including hiring and firing, establishing wages and hours, and
overseeing employees' day to day work. (Tr. 10, 13-14, 80, 84.) Defendant hired
Plaintiff who then worked at the Garden Grill during the period from December 2,
2007 to November 13, 2012. (Tr. 39-40.) The employment period relevant to this
action spans from March 5, 2008 to November 13, 2012.
2.
As Plaintiff is bringing an action under the FLSA and the NYLL, he "has
the burden of proving that he performed work for which he was not properly
compensated." Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 41
(E.D.N.Y. 2015) (quoting Pineda v. Masonry Const., Inc., 831 F. Supp. 2d 666, 674
(S.D.N.Y. 2011)). In case employers fail to provide adequate documentary
evidence, "it is well-settled that [Plaintiff] may satisfy this burden solely through
[his] own recollections." Pineda, 831 F. Supp. 2d at 677 (S.D.N.Y. 2011) (citing
Doo Nam Yang v. ACBL Coro., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005)).
3
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3.
The weekly wage records on Defendant's timesheets, which were admitted
as evidence, correctly reflect the amount Plaintiff was paid in a given week. (Exh.
A.) As Plaintiff was paid $50 in cash per workday, the recorded weekly wage
divided by 50 equals the number of days Plaintiff worked in a given week.
4.
The hours recorded on the timesheets are not reliable, however. Defendant
himself admitted that they do not reflect actual hours. (Tr. 88, 139, 154.) Although
Defendant testified that the recorded hours reflect more than Plaintiffs actual hours
because he was "generous," the Court does not credit that testimony. (Tr. 88.)
5.
For the purpose of calculating Plaintiff's workhours, the Court divides
Plaintiffs employment into two periods: first, from March 5, 2008 to May 8, 2011;
second, from May 9, 2011 to November 13, 2012.
6.
During the first period, Plaintiff worked I 0 hours on average when the
restaurant's closing time was 9 p.m. (Mondays through Thursdays and Sundays).
He worked 11 hours on average when the closing time was I 0 p.m. (Fridays and
Saturdays). These hours include time Plaintiff worked after the restaurant's closing
time.
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7.
During the first period (March 5, 2008 - May 8, 2011), Plaintiff worked 53
hours per week for 151 weeks. As for the other 15 weeks in this period, Plaintiff
worked the following hours:
1.
31 hours for one week (from March 5 to 9, 2008);
ii.
26 hours for one week (the week of June 2, 2008);
iii.
20 hours for three weeks (the week of June 9, 2008 1; October 18,
2010; May 2, 2011);
1v.
63 hours for eight weeks (the weeks of August 25, September 8,
November 24, December I, and December 29, 2008; November 23
and December 28, 2009; November 22, 201 O);
v.
74 hours for one week (the week of September I, 2008);
v1.
30 hours for one week (the week of October 11, 2010). (Exh. A.)
1
Regarding this week, Plaintiff testified that he worked five full days, while Defendant
testified that Plaintiff worked only 2 days. However, as Plaintiff did not dispute he was
paid $I 00 that week, the Court credits him with working for two days on the week of June
9, 2008. Accordingly, Plaintiff worked 20 hours on that week. (Exh. A; PlaintiffFOF and
COL at 32.)
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8.
During the next period of Plaintiffs employment (May 9, 2011 - November
13, 2012), Plaintiff worked 55 hours per week for 79 weeks until November 11,
2012. He then worked 20 hours for one week (November 12 - 13, 2012), which
was the last week of his employment.
9.
Upon hiring on December 2, 2007, Defendant did not provide Plaintiff with
a copy of a notice with employment related information including pay rates, basis
of pay rates, and any allowances, as required by N.Y. Lab. Law§ 195(1). Defendant
later provided one in January 2012. (Exh. C; Tr. 155, 160.) He also presented
Plaintiff with another notice after Plaintiff stopped working. (Exh. D.) Both notices
lack certain information about the employer, including its doing business as,
physical/mailing addresses, and telephone number. (Exh. C, D.)
I 0.
As for the dispute regarding uniform purchase, Plaintiff testified that he had
to buy required uniforms, which consist of at-shirt and pants (both are machinewashable ), and that the costs of eight uniform purchases were deducted from his
pay. (see, e.g., Exh. B; Tr. 31.) However, the wage records on the timesheets do not
contain any deductions in uniforms. Accordingly, Plaintiffs testimony regarding
this issue is not credited. On the other hand, Plaintiff was responsible for
maintenance of the uniforms. (Tr. 32.)
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CONCLUSIONS OF LAW
11.
Subject Matter Jurisdiction
The Court has subject matter jurisdiction over Plaintiffs claims arising
under the FLSA pursuant to 29 U.S.C. § 216(b), 28 U.S.C. § 1331, and § 1337. The
Court has supplemental jurisdiction over the claims arising under the NYLL as
defined in 28 U.S.C. §1367(a) because they are so related to the claims under the
FLSA that they form the same case or controversy.
12.
HEmployer"
Defendant concedes that both Corporate Defendant and he were
"employers" of Plaintiff during the relevant employment period within the meaning
of both the FLSA and the NYLL. Defendant's Proposed Findings of Fact and
Conclusions of Law at 7 ("DefFOF and COL".) The two defendants are thus
subject to both FLSA and NYLL liabilities. 29 U.S.C. §203(d); N.Y. Lab. Law.
§651(6).
13.
Applicable Law for Actual Damages
Plaintiff seeks to recover unpaid wages as actual damages. "[W]here a
plaintiff is entitled to damages under both federal and state wage law, a plaintiff
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may recover under the statute which provides the greatest amount of damages."
Wicaksono v. XYZ 48 Com., No. 10 CIV. 3635 (LAK) (JCF), 2011 WL 2022644,
at *3 (S.D.N.Y. May 2, 2011), report and recommendation adopted, No. 10 CIV.
3635 (LAK), 2011 WL 2038973 (S.D.N.Y. May 24, 2011) (quoting Jiao v. Shi Ya
Chen, No. 03 CIV. 0165 (DF), 2007 WL 4944767, at *17 (S.D.N.Y. Mar. 30,
2007)). As the six-year statute of limitations for the NYLL claims is longer than the
statute of limitations for the FLSA claims, which is two or three years depending
on whether the violations were willful, Plaintiff can recover greater damages under
the NYLL. 29 U.S.C. § 255(a); N.Y. Lab. Law §663(3). Accordingly, he is entitled
to recover actual damages for unpaid wages under the NYLL for the period from
March 5, 2008 to November 13, 2012, as this lawsuit was filed on March 5, 2014.
14.
Defendant Not Entitled to Tip Credit
Plaintiff alleges that Defendant failed to pay him proper minimum wages,
as required by the FLSA and the NYLL. 29 U.S.C. §206; N.Y. Lab. Law §652(a).
As an initial matter, the Court decides that Defendant was not entitled to take a tip
credit. "An employer may take a credit towards the basic minimum hourly rate if a
service employee or food service worker receives enough tips and if the employee
has been notified of the tip credit .... " N.Y. Comp. Codes R. & Regs. tit. 12, §1461.3. Defendant gave Plaintiff neither a written notice nor a verbal explanation that a
tip credit would be taken, thereby failing to satisfy the notice requirement. N.Y.
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Comp. Codes R. & Regs. tit. 12, § 146-2.2; Copantitla v. Fiskardo Estiatorio, Inc.,
788 F. Supp. 2d 253, 288 (S.D.N.Y. 2011) (deciding that telling an employee the
pay would be part hourly wages, part tips did not satisfy the notice requirement).
When Defendant did later provide a written notice, it was more than 4 years after
Plaintiff started working (9 months before his employment ended), and even then it
is unclear whether Plaintiff was properly informed of what a tip credit was. As such,
in calculating damages for unpaid wages, the Court does not take into account tips
Plaintiff received.
15.
Dispute on 35% Tip Deduction
Plaintiff also alleges that Defendant withheld 35% of Plaintiff's tip from on-
line orders and seeks to recover the withheld tip. Defendant failed to produce
documentary evidence to show that he did not deduct 35% from Plaintiff's on-line
order tips. However, Plaintiff's testimony on this issue is also not credible. First,
Plaintiff did not raise this claim in his complaint but raised it during his own direct
examination, and he failed to specify when the restaurant started to receive on-line
orders. Also, although Plaintiff's testimony leads to a conclusion that he earned
much more in tips after the restaurant started to receive on-line orders than before,
there was no testimony that Plaintiff's number of daily deliveries increased. For
these reasons, the Court finds that Plaintiff has failed to meet his burden of proof
on the on-line tip deductions.
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16.
Unpaid Minimum Wages
To determine the amount of unpaid minimum wages, the Court must
determine Plaintiffs "regular hourly rates" (the wages Plaintiff was actually paid)
and the relevant minimum wage rates over the course of his employment; Plaintiff
will be awarded the difference. 29 U.S.C. §206, 216; N.Y. Lab. Law §198, 652(a).
As for the relevant minimum wage rates, Plaintiff is entitled to recover the
higher of the applicable federal or state minimum wage. 29 U.S.C. §218(a); N.Y.
Lab. Law §652(1). Accordingly, during the period from March 5, 2008 to July 23,
2009, Plaintiff was entitled to the New York state minimum wage, which was
$7.15 per hour. N.Y. Lab. Law §652(1). During the period from July 24, 2009 to
November 13, 2012, the federal and the New York state minimum wages were both
$7.25 per hour, and Plaintiff was thus entitled to $7.25 per hour. Id.; 29 U.S.C.
§206(a).
Plaintiffs regular hourly rates "[are] determined by dividing [Plaintiffs]
total remuneration for employment (except statutory exceptions) in any workweek
by the total number of hours actually worked .... " 29 C.F.R. §778.109. Based on
the Court's findings of fact, Plaintiff is entitled to recover $33,408.91 in unpaid
minimum wages. The breakdown is as follows. For the period when the relevant
minimum wage was $7.15 per hour (from March 5, 2008 to the week of July 20,
2009), Plaintiff is entitled to recover unpaid minimum wages of$9,338.47: Plaintiff
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worked 3,423 hours at a regular rate of $4.72 per hour; 74 hours at $4.73; 315
hours at $4.76; 20 hours at $5.00; and 26 hours at $5.77. 2
For the period when the relevant minimum wage was $7.25 per hour (July
27, 2009 to November 13, 2012), Plaintiff is entitled to unpaid wages of
$24,070.44, as follows. Plaintiff worked 4,345 hours at a regular rate of $4.55 per
hour; 4,611 hours at $4.72; 189 hours at $4.76; and 90 hours at $5.00.
Unnaid Minimum Wa!!e (when the relevant minimum wa!!e was $7.15)
Regular Rate # of workhours
Unpaid Amount
$4.72
3,423
($7.15-$4.72) x 3,423 = $8,328.22
$4.73
74
($7.15-$4.73) x 74 = $179.10
$4.76
315
($7.15-$4.76) x 315 = $752.25
$5.00
20
($7.15-$5.00) x 20 = $43.00
$5.77
26
($7.15-$5.77) x 26 = $35.90
Total
$9,338.47
Unnaid Minimum Wa!!e (when the relevant minimum wa!!e was $7.25)
Re"ulate Rate
$4.55
# of workhours
Unpaid Amount
4,345
($7.25-$4.55) x 4,345 = $11,731.50
$4.72
4,611
($7.25-$4.72) x 4,611 = $11,665.83
$4.76
189
($7.25-$4.76) x 189 = $470.61
$5.00
90
Total
($7.25-$5.00) x 90 = $202.50
$24,070.44
2
For the purpose of this opinion, the Court applied the minimum wage of $7.15 to the
entire week of July 20, 2009, although the applicable minimum wage changed to $7 .25 in
the middle of the week because, as the work hours were calculated as weekly averages, this
would simplify various damages calculations, while the resultant difference is minimal.
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I
17.
Overtime Wages
Plaintiff also seeks to recover unpaid overtime compensation. Under the
NYLL, Defendant was required to "pay [Plaintiff] for overtime at a wage rate of I
Y, times [Plaintiffs] regular rate for hours worked in excess of 40 hours in one
workweek." N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.4. The regular rate for
the purpose of calculating overtime wages is the relevant minimum wage rather
than Plaintiffs actual regular rates calculated above because they were below the
minimum wage rates.
In total, Plaintiff is entitled to recover $11,878.83 in unpaid overtime
compensation, and the breakdown is as follows. From the week of March JO, 2008
to the week of July 20, 2009 when the relevant minimum wage was $7.15 per hour,
Plaintiff worked 981 overtime hours, and is thus entitled to additional unpaid
overtime compensation of$3,507.08 ($7.15
+
2 x 981 hours). The Court
disregarded the period from March 5 to March 9, 2008 for the purpose of overtime
compensation calculations because the employment period relevant to this action
begins in the middle of that week due to the statute of limitations, and during the
period of that week relevant to this action Plaintiff did not work over 40 hours. For
the rest of Plaintiffs employment period, from the week of July 27, 2009 to the
week of November 12, 2012, when the relevant minimum wage was $7.25 per hour,
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Plaintiff worked 2,385 overtime hours and is thus entitled to unpaid overtime
compensation of$8,645.63 ($7.25
+
2 x 2,385 hours).
Unpaid Overtime Compensation
3/10/08-7/26/09
7/27/09-11/13/12
Minimum
# of Overtime
Wage
Period
Hours
$7.15
981
2,385
$7.25
Total
18.
Unpaid Overtime
$7.15
$7.25
+
2 x 981 =
$3,507.08
+ 2 x 2341.5 =
$8,487.94
$12,152.70
Spread of Hours
Plaintiff is also entitled to unpaid "spread of hours" compensation under the
NYLL, as the law requires that an employee "receive one hour's pay at the basic
minimum hourly wage rate" if the interval between the beginning and end of an
employee's workday exceeds 10 hours. N.Y. Comp. Codes R. & Regs. tit. 12§1422.4; Fermin, 93 F. Supp. 3d at 45 (E.D.N.Y. 2015). In sum, Plaintiff is entitled to
unpaid spread of hours compensation of$8,815.85 for the relevant employment
period based on the following calculations.
During the period from the week of March I 0, 2008 to the week of July 20,
2009, when the relevant minimum wage was $7.15 per hour, Plaintiff was entitled
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to 364 spread of hours. During the period from the week of July 27, 2009 to the
week of November 12, 2012, when the relevant minimum wage was $7.25 per hour,
Plaintiff was entitled to 857 spread of hours.
Unpaid Spread of Hours Compensation
7127109-
# of Spread of
Unpaid Spread of
Hours
$7.15
364
Hours
$7.15x264=
857
$2,602.60
$7.25 x 857 =
Total
3110/08- 7126109
Minimum
Wage
Period
$6,213.25
$8,815
$7.25
11/13/12
19.
Liquidated Damages
Plaintiff seeks to recover liquidated damages under both the FLSA and the
NYLL. "District courts in this circuit have disagreed as to whether a plaintiff may
secure cumulative awards of liquidated damage[s] under both [the FLSA and
NYLL]." Gunawan v. Sake Sushi Rest .. 897 F. Supp. 2d 76, 91 (E.D.N.Y. 2012).
Some courts have allowed cumulative awards of liquidated damages under both
statutes because it has been viewed that the FLSA liquidated damages are
compensatory, whereas the NYLL liquidated damages are punitive. Ke v. Saigon
Grill. Inc., 595 F. Supp. 2d 240, 261-62 (S.D.N.Y. 2008); see also Reilly v.
Natwest Markets Gm. Inc., 181F.3d253, 265 (2d Cir. 1999).
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On the other hand, other courts have found such a distinction unpersuasive,
since the NYLL has been amended to provide for 100% of unpaid wages as
liquidated damages, without requiring a showing of willfulness, which courts have
interpreted as basis for the NYLL liquidated damages' punitive nature. N. Y. Lab.
Law 198(1-a) (amended 2009); Id. (amended 2011); Gortat v. Capala Bros., 949 F.
Supp. 2d 374, 381 (E.D.N.Y. 2013) (finding the distinction unpersuasive because it
"exalt[s] form over substance."); Asfaw v. BBQ Chicken Don Alex No. 1 Com.,
No. 14-CV-5665 (CBA) (RML), 2016 WL 1276417, at *2 (E.D.N.Y. Mar. 30,
2016) (deciding that the NYLL liquidated damages now appear to be compensatory
as the willful requirement has been removed); Hernandez v. Jrpac Inc., No. 14 CIV.
4176 (PAE), 2016 WL 3248493, at *35 (S.D.N.Y. June 9, 2016) (holding a
cumulative award after the amendments would amount to an "impermissible double
recovery"); Lopez v. Yossi's Heimishe Bakery Inc., No. 13-CV-5050 (FB) (CLP),
2015 WL 1469619, at *11 (E.D.N.Y. Mar. 30, 2015).
The Court follows the more recent trend by not allowing a cumulative
award of liquidated damages under both the FLSA and NYLL. As the NYLL
liquidated damages cover a longer period and include spread of hours
compensation, it provides for a greater award than the FLSA liquidated damages.
Thus, the Court awards Plaintiff the NYLL liquidated damages only.
For the period until November 23, 2009, which is before the NYLL was
amended, Plaintiff is entitled to recover 25% of unpaid wages upon showing of
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willfulness of Defendant's violations. For the period from November 24, 2009 to
April 8, 20 l I, when the first amended NYLL was effective, Plaintiff is entitled to
recover 25% of unpaid wages unless Defendant shows his violations were good
faith mistakes. From April 9, 2011 and onwards, Plaintiff is entitled to recover 100%
of unpaid wages awarded as actual damages under the current state of the law. N.Y.
Lab. Law 198(1-a).
A violation is considered willful if the employer "either knew or showed
reckless disregard for the matter of whether its conduct was prohibited." Kuebel v.
Black & Decker Inc., 643 F.3d 352, 366 (2d Cir. 2011). In the case at hand,
Defendant filled out two notice forms as if Plaintiff was properly paid in
accordance with the relevant laws, when in fact he was being underpaid. Defendant
also testified that he read wage and hours posters and consulted an accountant on a
regular basis regarding minimum wages. (Tr. 152.) In light of these facts, the Court
determines that Defendant knew he was violating the laws, and therefore his
violations were willful.
Therefore, from March 5, 2008 to April 8, 2011, Plaintiff is entitled to
recover liquidated damages of $8,681.13 (25% x ($21, 194.45 in unpaid minimum
wage+ $7,715.70 in unpaid overtime compensation+ $5,814.35 in unpaid spread
of hours compensation)). Additionally, for the period from April 9, 2011 to
November 13, 2012, Plaintiff is entitled to recover 100% of actual damages
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awarded for this period, and is therefore entitled to liquidated damages of
$19,682.50 ($12,244 in unpaid minimum wage+ $4,437 in unpaid overtime
compensation+ $3,001.50 in unpaid spread of hours compensation). In sum,
Plaintiff is entitled to recover $28,363.63 in liquidated damages.
Liquidated Damages
Unpaid
Unpaid
Unpaid
Minimum
Period
Overtime
Spread of
Liquidated Damages
25%x
315108-
$21,194.45
$7,715.70
$5,814.35
4/8111
($21, 194.45+$7, 715. 70+$5,814.35)
$8,681.13
$12,244 + $4,437 + $3,001.50
=
419111-
$12,244
$4,437
$3,001.50
11/13112
=
Total
20.
$19,682.50
$28,363.63
Uniform Maintenance
Plaintiff seeks to recover uniform maintenance pay. "Where an employer
does not maintain required uniforms for [an) employee, the employer shall pay, in
addition to the employee's agreed rate of pay, uniform maintenance pay .... " N.Y.
Comp. Codes R. & Regs. tit. 12, §146-1.7. However, that is not the case with wash
and wear uniforms, which employees must maintain for themselves. Id.
Accordingly, Plaintiff is not entitled to recover uniform maintenance pay.
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21.
Wage Statements
Plaintiff also alleges, without dispute, that Defendant never provided
Plaintiff with a weekly wage statement, as required by N.Y. Lab. Law§ 195(3).
Pursuant to N. Y. Lab. Law § 195(1-d), Plaintiff is entitled to recover $100 for each
work week that the violation occurred or continued to occur on or after April 9,
2011, up to a maximum of$2,500. The period from April 9, 2011 to November 13,
2012, the end of Plaintiffs employment, well exceeds 25 work weeks, and
therefore Plaintiff is entitled to recover the maximum statutory award of $2,500.
22.
Notice
Defendant also violated N.Y. Lab. Law§ 195(1) which required Defendant
to provide Plaintiff with an annual notice form before February 1''of each year.
The notice form should have contained an array of employment related information
including pay rates, basis of pay rates, any allowances, and employer's business
information. N.Y. Lab. Law §195(1). Although the law was later amended to
eliminate the annual requirement in 2015, Defendant violated Section 195( 1) as
effective from April 9, 2011 to February 26, 2015, as he did not provide Plaintiff
with a notice form before February 1, 2012. Pursuant to N.Y. Lab. Law §198(1-b),
Plaintiff is entitled to recover $50 for each work week that the violation occurred or
continued to occur, up to a maximum of $2,500. The violation continued for 41
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weeks from February 2 to November 13, 2012. Therefore, Plaintiff is entitled to
recover $2,050.
23.
Prejudgment interest
Plaintiff also seeks prejudgment interest on unpaid wages owed to him
under both the FLSA and the NYLL. Under both laws, prejudgment interest is
compensatory in nature. Hernandez at *35 (S.D.N.Y. June 9, 2016) (citing
Brooklvn Sav. Bank v. O'Neil, 324 U.S. 697, 714-15 (1945) (FLSA) and Reilly,
181 F.3d at 265 (NYLL)). As the FLSA liquidated damages is also compensatory,
"[i]t is well settled that in an action for violations of the [FLSA] prejudgment
interest may not be awarded in addition to liquidated damages" because it would
double compensate plaintiff. Brock v. Superior Care. Inc., 840 F.2d 1054, 1064 (2d
Cir. 1988). On the other hand, it has also been settled in this Circuit that liquidated
damages and prejudgment interest may both be awarded under the NYLL, as the
NYLL liquidated damages have been held to be punitive. Reilly. 181 F.3d at 265.
As the Court held above that the NYLL liquidated damages are now
compensatory rather than punitive, it might seem that awarding prejudgment
interest under the NYLL would double compensate Plaintiff. However, "a separate
basis applies for the award of prejudgment interest alongside a liquidated damages
award ... [because] the NYLL expressly provides for a plaintiff to receive both
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types of awards." Hernandez at *35 (S.D.N.Y. June 9, 2016) (quoting the NYLL,
"the court shall allow [an] employee to recover ... prejudgment interest as required
under the civil practice law and rules, and [ ... ] an additional amount as liquidated
damages .... " N.Y. Lab. Law § 198(1-a)(emphasis added)).
In calculating prejudgment interest, the Court applies a statutory interest
rate of nine percent per annum pursuant to N.Y. C.P.L.R. §5004. Since damages
were incurred at various times, interest can be computed on all of the damages from
a single reasonable intermediate date pursuant to N.Y. C.P.L.R. §500l(b), and
courts have "wide discretion in determining a reasonable date from which to award
pre-judgment interest." Conway v. lcahn & Co., 16 F.3d 504, 512 (2d Cir. 1994). A
reasonable intermediate date can be a midway point between when Plaintiff was
entitled to recover under the NYLL and when he filed this lawsuit. Perez v. Queens
Boro Yang Cleaner, Inc., No. 14-CV-7310 (SJ) (JO), 2016 WL 1359218, at *7
(E.D.N.Y. Mar. 17, 2016), report and recommendation adopted sub nom. Perez v.
Yang Cleaners, No. 14 CV 7310 (SJ) (JO), 2016 WL 1337310 (E.D.N.Y. Apr. 5,
2016).
In the case at hand, since Plaintiff can recover unpaid wages from March 5,
2008, a reasonable intermediate date would be the median date, March 5, 2011, and
the Court uses this date to calculate Plaintiffs prejudgment interest. The total
amount Defendant owes Plaintiff in unpaid wages (minimum wage, overtime, and
20
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spread of hours) is $54,377.46. With nine percent per annum interest from March 5,
2011 to this date (August I, 2016), Plaintiffs award ofprejudgment interest is
$26,494.49 ($54,377.46 x (9% + 365) x 1976 days).
24.
Automatic Increase of Judgment
Plaintiffs damages are all awarded under the NYLL. Therefore, pursuant to
N.Y. Lab. Law §663(4), the Court decides that "if any amounts remain unpaid upon
the expiration of ninety days following issuance of judgment, or ninety days after
expiration of the time to appeal and no appeal is then pending, whichever is later,
the total amount of judgment shall automatically increase by fifteen percent." Also,
Plaintiff "shall have the right to collect attorneys' fees and costs incurred in
enforcing any courtjudgment." N.Y. Lab. Law §663(4).
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CONCLUSIONS
WHEREFORE, the Court therefore finds in favor of Plaintiff and awards
him with damages as follows:
Summary of Damages Calculations
Minimum Wages
$33,408.91
Overtime Compensation
$12,151. 70
Spread of Hours Compensation
$8,815.85
Liquidated Damages
$28,363.63
Notice violations
$2,050
Statement violations
$2,500
Prejudgment interest
$26,494.49
Total
$ 113,784.58
SO ORDERED.
s/Sterling Johnson, Jr.
Dated: August I, 2016
Brooklyn, New York
St~i°Kng ~.Jr., U.S.D.J.
.
22
P-049
I
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