Tan et al v. Voyage Express Inc. et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS: No objections filed. I adopt the recommendation without qualification and grant the motion and direct entry of judgement as recommended. SO Ordered by Judge Raymond J. Dearie on 5/25/2017. (Ramesar, Thameera)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

QIU HUA TAN,GUANG WEN CHEN,
and LIANG XU,Individually and On Behalf
of All Others Similarly Situated,

x-^95r'^ y

-z^

REPORT AND

Plaintiffs,

S/ Raymond J/ Dearie

RECOMMENDATI

-against15 CV 6202(RJD)
(RML)
VOYAGE EXPRESS INC., TIME EXPRESS
SERVICE INC., LONGTEN
INTERNATIONAL,INC., YU SONG WANG,
and JOHN DOE and JANE DOE #1-10,

FILED
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.

*

Defendants.

MAY 25 2017

*

•X

BROOKLYN OFFICE
LEVY,United States Magistrate Judge:

Plaintiffs Qiu Hua Tan ("Tan"), Guang Wen Chen ("Chen"), and Liang Xu

("Xu")(collectively,"plaintiffs") commenced this wage and hour action individually and on
behalf of all others similarly situated on October 28,2015 against defendants Voyage Express

Inc.("Voyage Express"), Time Express Service Inc.("Time Express"), Longten International,
Inc.("Longten")(collectively, the "Corporate Defendants"), and Yu Song Wang("Wang")

(collectively,"defendants").' (See Complaint, dated Oct. 28,2015; Amended Complaint, dated
Oct. 30, 2015("Am. Compl.")(adding defendant Longten).) On August 27,2016, plaintiffs

moved for defaultjudgment(see Motion for Default Judgment, dated Aug. 26,2016 ("Pis.'
Mot.")), which the Honorable Raymond J. Dearie, United States District Judge, referred to me on
October 27,2016(see Order, dated Oct. 27, 2016). After an adjournment, the court held an

' The amended complaint also names John Doe and Jane Doe defendants # 1 through 10. (See
Am. Compl.) However, plaintiffs have not moved to dismiss or substitute those defendants.

inquest hearing on February 27,2017, at which plaintiffs testified through a sworn interpreter.
fSee Transcript of Feb. 27, 2017 Evidentiary Hearing, filed Mar. 21,2017("Tr.").)

For the reasons explained below, I respectfully recommend that plaintiffs' motion
for defaultjudgment be granted in part and denied in part. With respect to damages, I

respectfully recommend that Tan be awarded $20,899.68, consisting of$5,449.84 in unpaid
wages,$5,449.84 in liquidated damages, and $10,000 in statutory penalties for defendants' wage
notice and wage statement violations. I also recommend that Tan be awarded prejudgment

interest at the statutory rate of nine percent per annum on his unpaid wages of$5,449.84 from
May 26,2015 through the date ofthe entry ofjudgment. As for Chen, I respectfully recommend
that Chen be awarded $22,690, consisting of$6,345 in unpaid wages,$6,345 in liquidated
damages, and $10,000 in statutory penalties for defendants' wage notice and wage statement
violations. I further recommend that Chen be awarded prejudgment interest at the rate of nine

percent per annum on his unpaid wages of$6,345 from May 25,2015 through the date on which
judgment is entered. As for Xu,I respectfully recommend that Xu be awarded $25,888,
consisting of$7,944 in unpaid wages,$7,944 in liquidated damages, and $10,000 in statutory

penalties for defendants' wage notice and wage statement violations. I further recommend that
Xu be awarded prejudgment interest at the rate of nine percent per annum on his unpaid wages of

$7,944 from May 2, 2015 through the date on which judgment is entered. Finally, I respectfully
recommend that plaintiffs be jointly awarded $8,820 in attorney's fees, $512.25 in costs, and
post-judgment interest pursuant to 28 U.S.C. § 1961.

Background and Facts

Plaintiffs assert claims for unpaid wages pursuant to the Fair Labor Standards Act

("FLSA"),29 U.S.C. §§ 201. et seq.. and New York Labor Law ("NYLL").^ (See Am. Compl.
66-99.) Through this action, plaintiffs seek recovery of, inter alia, unpaid minimum wages,
overtime compensation, spread-of-hours premiums, and statutory penalties for defendants'
alleged failure to provide proper wage notices at the time of hiring and wage statements with
every payment of wages. (See id)

According to the amended complaint, defendants own and operate a business
located at 114-02 15th Avenue in College Point, New York that provides courier services

between the United States and China. (Id

10-11.) Each of the Corporate Defendants is

allegedly located at this address. (Id ^ 14; see also Tr. at 18.) Plaintiffs allege that the

individual defendant, Wang,is the owner, officer, director and/or managing agent of the
Corporate Defendants, and that he participated in the day-to-day operations of the business.
(Am. Compl.114.) Plaintiffs further allege that Wang paid them, and that Wang was "the boss"
who was responsible for supervising them and setting their hours. (See Am. Compl.122; Tr. at
9, 12-13, 17).

As set forth in the amended complaint. Tan was employed by defendants as a

packaging assistant from March 4,2015 to August 15, 2015. (Am. Compl.^ 24.) Chen alleges
that he was employed by defendants as a packaging assistant from February 16, 2015 to August

29, 2015. (Id H 28.) Finally, Xu alleges that he was employed by defendants as an office clerk
from January 5,2015 to August 25, 2015. (Id H 32.) In sum,the amended complaint sets forth

^ Plaintiffs' amended complaint also includes a cause of action brought pursuant to New York
General Business Law § 349. (See Am. Compl.fl 100-103.) At the inquest hearing, plaintiffs'
counsel indicated that plaintiffs do not wish to pursue this claim. (See Tr. at 22.)

detailed allegations as to each plaintiffs purportedly inadequate wages and their respective work
schedules. (See id.

25-27, 29-31, 33-35.)

Despite proper service, defendants have failed to appear in the action and thus
have not answered or otherwise responded to the amended complaint. (See Affidavits of Service
of Maria Mihalios, sworn to Nov. 9, 2015; Affirmation of Jian Hang, Esq. in Support of Request

for Certificate of Default, dated Apr. 22,2016, Dkt. No. 14-1.) Defendants were also served

with plaintiffs' motion papers and notice ofthe inquest hearing but did not respond. (See
Certificate of Service of Jian Hang, Esq., dated Aug. 27, 2016, Dkt. No. 18-16; Certificate of
Service ofPhillip Kim, Esq., dated Jan. 10, 2017.)

On May 16, 2016, the Clerk ofthe Court entered a certificate of default against
defendants. (See Clerk's Entry of Default, dated May 16, 2016.) Plaintiffs submitted the instant
motion on August 27, 2016. (See Pis.' Mot.) Appended to the motion are plaintiffs'
declarations. (See Declaration of Qiu Han Tan, dated Aug. 24, 2016("Tan Deck"), Dkt. No. 18-

4; Declaration of Guang Wen Chen, dated Aug. 24, 2016("Chen Deck"), Dkt. No. 18-5;
Declaration of Liang Xu, dated Aug. 24,2016("Xu Deck"), Dkt. No. 18-6.) Judge Dearie

subsequently referred the motion to me and I held an inquest hearing on February 27,2017. (See
Order, dated Oct. 27,2016; Tr.)
Discussion

A. Legal Standard

A p2irty's default "is deemed to constitute a concession of all well pleaded

allegations of liability

" Grevhound Exhibitgroup v. E.L.U.L. Realtv Corp., 973 F.2d 155,

158(E.D.N.Y. 1992)(citation omitted). Nevertheless,"it remains the plaintiffs burden to
demonstrate that those uncontroverted allegations ... establish the defendant's liability on each

asserted cause of action." Gunawan v. Sake Sushi Rest.. 897 F. Supp. 2d 76,83(E.D.N.Y. 2012)

(collecting cases). A party's default "is not considered an admission of damages." Greyhound.
973 F.2d at 158 (citations omitted). "Ifthe defaulted complaint suffices to establish liability, the
court must conduct an inquiry sufficient to establish damages to a 'reasonable certainty."'
Gunawan. 897 F. Supp. 2d at 83(quoting Credit Lvonnais Sec.(USAl Inc. v. Alcantara. 183

F.3d 151, 155(2d Cir. 1999)). In this inquiry, plaintiffs are entitled to all reasonable inferences
from the evidence they offer. See Jemine v. Dennis. 901 F. Supp. 2d 365, 373(E.D.N.Y. 2012).
B. Liability
1. FLSA

Regulations promulgated under the FLSA expressly recognize that an employee
may be jointly employed by two or more employers. S^ 29 C.F.R. § 791.2. "It is common

ground that courts, in determining whether an employment relationship exists for purposes ofthe
FLSA, must evaluate the 'economic reality' ofthe relationship." Carter v. Dutchess Cmtv. Coll..

735 F.2d 8, 12(2d Cir. 1984); see also Zheng v. Liberty Apparel Co.. 355 F.3d 61, 71-72(2d
Cir. 2003). The economic reality test involves inquiries into whether the putative employer had
either formal or functional control over the employee. S^ Lonez v. Pio Pio NYC.Inc.. No. 13
CV 4490, 2014 WL 1979930, at *2(S.D.N.Y. May 15, 2014).
Factors that are considered to evaluate formal control include "whether the

alleged employer(1)had the power to hire and fire the employees,(2)supervised and controlled

employee work schedules or conditions ofemployment,(3) determined the rate and method of
payment, and(4) maintained employment records." Carter. 735 F.2d at 12. "Factors that

suggest functional control include(1) whether the alleged employer's premises and equipment
were used for the Plaintiffs' work;(2) whether Plaintiffs shifted from one putative joint

employer's premises to that of another;(3)the extent to which the work performed by Plaintiffs
was integral to the overall business operation;(4) whether Plaintiffs' work responsibilities
remained the same regardless of where they worked;(5)the degree to which the alleged

employer or its agents supervised Plaintiffs' work, and(6) whether Plaintiffs worked exclusively
or predominantly for one Defendant." Lopez. 2014 WL 1979930, at *2(internal quotation
marks and citation omittedk see also Zheng. 355 F.3d 61, 71-72(2d Cir. 2003).

In this case, plaintiffs allege, inter alia, that during the relevant time period Wang
w£is the owner, officer, director and/or managing agent of the Corporate Defendants and that

defendants owned and operated a business providing courier services between the United States
and China. (See Am.Compl.

10, 14; see also id H 21 (the "manager/owner was always[]

Wang").) Plaintiffs allege that their work as packaging assistants and an office clerk was
essential to defendants' business. (Id ^ 16.) Plaintiffs further allege that the Corporate

Defendants shared an address(id H 14), and both Time Express and Longten purportedly issued

plaintiffs paychecks(see Tr. at 19-20). Plaintiffs also allege that Wang participated in the dayto-day operations ofthe business(Am. Compl.^ 14), and identified him as "the boss" who was

responsible for supervising them and setting their hours(Tr. at 9,12-13, 17). In sum, I find
plaintiffs' uncontroverted allegations sufficient to hold defendants jointly and severally liable as

joint employers under the statute.^
2. NYLL

The NYLL mirrors the FLSA in most aspects, including its wage and overtime

compensation provisions. Jemine. 901 F. Supp. 2d at 375: see also Fermin v. Las Delicias
Peruanas Rest.. Inc.. 93 F. Supp. 3d 19, 37(E.D.N.Y. 2015)("Courts have interpreted the

^ I further find that plaintiffs have adequately alleged that defendants were an "enterprise
engaged in interstate commerce." See 29 U.S.C. § 203(s)(l); id § 203(r);(Am. Compl.^ 13).

definition ofemployer under the NYLL coextensively with the definition used by the FLSA.")

(internal marks and citation omitted)(collecting cases). Thus, I find that plaintiffs' allegations
sufficiently establish defendants' liability under the NYLL's minimum wage and overtime

compensation provisions.'' See N.Y. Lab. Law § 652; N.Y. CoMP.CODES R.& Regs. tit. 12, §
142-2.2.

Plaintiffs also seek unpaid spread-of-hours premiums under the NYLL. (See Am.
Compl.

90-92.) N.Y. CoMP.Codes R.& Regs. tit. 12,§ 142-2.4 prescribes that "[a]n

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[ ] spread of hours exceeds 10
the
hours." N.Y. COMP.CODES R.& Regs. tit. 12,§ 142-2.4. Although plaintiffs assert that they

worked shifts in excess often hours, the weight of authority in this Circuit holds that "[a]

limitation upon a plaintiffs eligibility to recover for spread-of-hours pay is that the plaintiff not
earn more than the minimum wage." Luna v. Gon Wav Constr.. No. 16 CV 1411, 2017 WL
835321, at *11 (E.D.N.Y. Feb. 14, 2017), report and recommendation adopted. 2017 WL 835174

(E.D.N.Y. Mar. 2, 2017L see also Leon v. Zita Chen. No. 16 CV 480,2017 WL 1184149, at *7
(E.D.N.Y. Mar. 29, 2017)("Courts, however, have given deference to the New York State

Department of Labor's interpretation that spread-of-hours does not apply to an employee whose
workday is in excess of ten hours if his or her total daily compensation exceeds the New York
State minimum wage multiplied by the number of hours he or she worked plus one additional
hour at the minimum wage"); Chen v. JP Standard Constr. Corp.. No. 14 CV 1086,2016 WL
2909966, at *7(E.D.N.Y. Mar. 18, 2016), report and recommendation adopted. 2016 WL

2758272(E.D.N.Y. May 12, 2016)("In accordance with the clear weight of authority in this

^ As explained below, however, only Tan is entitled to recover damages for unpaid minimum
wages during a discrete portion of his employment. (See infra at 9-12.)

Circuit, as well as all precedent in this District ruling on the issue, employees who earn in excess
of the minimum wage are not entitled to spread-of-hours compensation.")^ Jenkins v. Hanac.

Inc.> 493 F. Supp. 2d 556,558(E.D.N.Y. 2007)(concurring with the interpretation that the
spread-of-hours regulation does not ensure additional compensation to employees whose wages
sufficiently exceed the minimum wage floork but see Doo Nam Yang v. ACBL Corp.. 427 F.
Supp. 2d 327, 339(S.D.N.Y. 2005).

As described in greater detail below, the record before me indicates that only Tan
was paid less than the applicable minimum wage plus one additional hour at the minimum wage
rate during a portion of his employment spanning from March 4,2015 through May 26, 2015.

(See Tr. at 14-15.) Accordingly, I find plaintiffs' spread-of-hours claim viable as to Tan during
this portion of his employment. However, because the wages paid to Chen, Xu,and Tan postMay 27, 2015 adequately exceeded the minimum wage floor, I find that plaintiffs cannot recover
on these claims.

Plaintiffs further allege that defendants withheld earned wages. Specifically, Tan

alleges that defendants withheld $1,620 in earned wages(Am. Compl. H 27; Tan Decl. 9), Chen

alleges withheld wages of$4,385 (id. ^ 31; Chen Decl.^ 7), and Xu alleges withheld wages of
$4,710(id.^ 35; Xu Decl.^ 7). NYLL § 191(d) provides that "clerical and other worker[s] shall
be paid the wages eamed in accordance with the agreed terms ofemployment, but not less
frequently than semi-monthly, on regular pay days designated in advance by the employer."
N.Y. Lab.Law § 191(dk see also id. § 191(a)(prescribing that "manual worker[s]" shall be paid

weekly); Gonzales v. Gan Israel Pre-Sch.. No. 12 CV 6304,,2014 WL 1011070, at *12-14
(E.D.N.Y. Mar. 14, 2014)(explaining that NYLL section 191 guarantees the timely payment of
wages by employers, discussing the statutory categories of workers, and finding defendants

8

liable for withholding earned wages). Thus, I find defendants liable for failing to pay earned
wages pursuant to NYLL § 191

Finally, I find that plaintiffs have adequately alleged that

defendants failed to provide proper wage notices at the time of hiring and wage statements with
every payment of wages containing the information prescribed by NYLL sections 195(1) and
195(3). (See Am.Compl.

91-99.)

C. Damages

29 U.S.C. § 206 provides that subject employers shall pay the applicable
minimum wage to covered employees.

29 U.S.C. § 206; see also N.Y. Lab. Law § 652. 29

U.S.C. § 207 provides that subject employers shall pay overtime wages at the rate of one and
one-half times the covered employee's regular rate of pay for the hours worked in excess offorty
during a workweek. See U.S.C. § 207; see also N.Y. Comp.Codes R.& Regs. tit. 12,§ 142-2.2.
The federal minimum wage does not preempt the state minimum wage and a plaintiff may
recover under whatever statute provides the highest measure of damages. Wicaksono v. XYZ 48
Com.. No. 10 CV 3635, 2011 WL 2022644, at *3(S.D.N.Y. May 2, 2011), report and

recommendation adopted. 2011 WL 2038973(S.D.N.Y. May 24, 2011). Throughout plaintiffs'

respective employment periods, the New York State minimum wage was $8.75 per hour,s^
N.Y. Lab.Law § 652, and the federal minimum wage was $7.25 per hour,
^29 U.S.C. §
206(a)(1). Thus, I employ the New York State minimum wage to calculate damages.

^ Unlike Gonzales. plaintiffs here do not seek double recovery for the same unpaid wages. S^
Gonzales. 2014 WL 1011070, at *11 (explaining that plaintiffs may only recover under one
statute for the same hours of unpaid wages). Instead, plaintiffs' claim for withheld eamed wages
alleges that defendants failed to pay the agreed upon compensation. The court's minimum wage,
overtime, and spread-of-hours analysis assumes that plaintiffs were paid all wages at the agreed
upon rates and examines the adequacy ofthose wages.

"Generally, an employee-plaintiff under the FLSA 'has the burden of proving
that he performed work for which he was not properly compensated.'" Santillan v. Henao. 822
F. Supp. 2d 284, 293-94(E.D.N.Y. 2011)(quoting Anderson v. Mt. Clemens Pottery Co.. 328
U.S. 680,687(1946)). However, under federal and state law the employer bears the burden of

producing and maintaining records ofemployee "wages, hours, and other conditions and
practices of employment." 29 U.S.C. § 211(c); s^N.Y.Lab.Law § 196-a(a). Defendants'
default has deprived plaintiffs of access to such records and hindered plaintiffs' ability to prove

damages. Under these circumstances, I credit plaintiffs' recollection and estimates regarding
their employment, which are uncontested.

Gunawan.897 F. Supp. 2d at 88; Semtillan. 822

F. Supp. 2d at 294.
1. Unpaid Wages
a. Tan

Tan testified that he was employed by defendants as a packaging assistant from

March 4, 2015 to August 15,2015. (Tr. at 13; Tan Decl. H 2.) Tan testified that he typically
worked six days per week, Monday through Saturday, but that on about ten occasions during his

employment period he was also required to work Sundays. (Tr. at 14, 21-22.) Tan further
testified that at least four days per week he worked a thirteen-hour shift, from 9:00 a.m. until
about 10:00 p.m., and that on the remaining days he worked a nine-hour shift, from 9:00 a.m. to

6:00 p.m. (Id. at 14; Tan Decl. ^3.) There is no evidence before me that plaintiffs received meal
breaks.

As Tan explained at the hearing, from March 4,2015 through May 26,2015, a

twelve-week period, he was paid $90 per day. (Tr. at 15.) Thus,for each ofthe six weeks where

10

Tan worked six days, excluding Sundays,^ for a total ofseventy hours per week, he was paid the
equivalent of$7.71 an hour($90 x 6 = $540. $540/ 70= $7.71). For the six weeks during this
period when Tan worked seven days each week for a total of seventy-nine hours per week, he
was paid the equivalent of$7.97 per hour($90 x 7= $630. $630/ 79= $7.97).
As illustrated in calculations attached as footnotes to this report and

recommendation, I find defendants liable to Tan for unpaid minimum wages in the amount of

$806.52 for the period March 4,2015 through May 26,2015.^ As to unpaid overtime
compensation, during this period I find that Tan worked thirty hours of overtime for six ofthe
weeks and thirty-nine hours of overtime for the other six weeks. Thus, I find that Tan is entitled

to unpaid overtime compensation in the amount of $1,813.32.^ Finally, as Tan testified that he
worked at least four thirteen-hour shifts a week, and because Tan's wages during this portion of

his employment did not sufficiently exceed the minimum wage floor, he is entitled to $420 in

unpaid spread-of-hours premiums.^
Tan testified that from May 27,2015 through August 15, 2015, he was paid $10

per hour for the first fifty-four hours he worked and $15 an hour for his hours in excess offifty-

^ I assume that Tan worked ten alternating Sundays beginning on 3/15/15 and ending on 7/19/15.
^ Tan is owed $436.80 for the six seventy-hour weeks he worked from March 4 through May 26,

2015 ($8.75- $7.71= $1.04. $1.04 x 70= $72.80. $72.80 x 6= $436.80). He is owed $369.72 for
the six seventy-nine hour weeks he worked during this period ($8.75- $7.97= $.78. $.78 x 79 =
$61.62. $61.62x6= $369.72).

^ Tan is owed $788.40 in unpaid overtime compensation for the six weeks when he worked
thirty hours of overtime per week ($8.75/ 2= $4.38. $4.38 x 30= $131.40. $131.40 x 6=
$788.40). He is owed $1,024.92 for the six weeks when he worked thirty-nine hours of overtime
per week ($4.38 x 39= $170.82. $170.82 x 6= $1,024.92).

^(4 X $8.75= $35. $35 x 12= $420)

11

four. (Tr. at 15-16.) Thus, although neither an unpaid minimum wage nor a spread-of-hours
claim is viable for this period, I find that Tan is entitled to recover unpaid overtime

compensation in the amount of$790.

Finally, because the evidence before me reflects that

defendants withheld an additional $1,620 in earned wages(see Tr. at 16; Tan Decl. H 9), Tan is
also entitled to recover that amount in compensatory damages. See N.Y. Lab.Law § 198(1-a).

In sum,I respectfully recommend that Tan be awarded a total of$5,449.84 in unpaid wages,

consisting of(1)$806.52 in unpaid minimum wages,(2)$2,603.32 in overtime compensation,
(3)$420 in spread-of-hours premiums, and(4)$1,620 in withheld wages,
b. Chen

Chen testified that he was employed by defendants as a packaging assistant from

February 16, 2015 to August 29, 2015, a period oftwenty-eight workweeks. (Tr. at 10; Chen
Decl. 2.) Chen testified that he regularly worked six days per week, Monday through

Saturday.'' (Tr. at 10-11.) Chen further testified that at least four days per week his shift

spanned twelve hours,from 9:00 a.m. to 9:00 p.m., and that on the remaining two days his shift

For the eleven weeks from May 27 to August 12, 2015, Tan was not properly compensated at
the rate of one and one-halftimes his regular rate of pay for fourteen hours of overtime each
week. Accordingly, he is entitled to $770 in unpaid overtime compensation for this period(14 x
$5= $70. $70 X 11= $770). As to the additional four days from August 12 through August 15,1
assume that Tan worked two thirteen-hour shifts and two nine-hour shifts. This amounts to

forty-four total hours and Tan is therefore entitled to an additional $20 in unpaid overtime
compensation.

' Although Chen testified that he was occasionally required to work on Sundays, he could not
•
recall approximately how many Sundays he worked during his employment, and his declaration
states that he "took Sunday off each week." (Tr. at 10-11, 21; Chen Decl. ^ 3.) Further, as Chen
was paid in excess ofthe minimum wage for the first fifty-four hours, is not entitled to spread-ofhours premiums, and was paid overtime for hours in excess offifty-four, whether he worked
Sundays or not does not alter the damages calculation.

12

was nine hours, from 9:00 a.m. to 6:00 p.m. (Tr. at 11; Chen Decl.\ 3.) This amounts to a
sixty-six hour workweek.

Chen was paid $10 an hour for the first fifty-four hours and $15 per hour for the
hours he worked in excess offifty-four. (Tr. at 11-12; Chen Decl. H 5.) Thus, Chen was not

properly compensated for fourteen overtime hours per week, but was paid in excess of the
minimum wage. Chen further testified that defendants withheld $4,385 in earned wages. (See

Tr. at 12; Chen Decl.^ 7.) Accordingly, I respectfully recommend that Chen be awarded $6,345

in unpaid wages, consisting of(1)$1,960 in unpaid overtime compensation,'^ and(2)$4,385 in
withheld wages.
c. M

Xu testified that he was employed by defendants as an office clerk from January
5, 2015 to August 25,2015, a period of thirty-three weeks and two workdays. (Tr. at 4; Xu Decl.

K 2.) Xu testified that he regularly worked six days per week, Monday to Saturday.'^ (Tr. at 4-6,
21; Xu Decl.^ 3.) Finally, Xu testified that at least three times per week he worked a shift

spanning ten and one-half hours,from 9:00 a.m. to 7:30 p.m., and that on the remaining three
days he worked a nine-hour shift, from 9:00 a.m. to 6:00 p.m. (Tr. at 5; Xu Decl. H 3.) This
amounts to 58.5 hours per week.

Xu was paid $14 per hour for the first fifly-four hours worked each week, and $21
per hour for the hours in excess offifty-hour. (Tr. at 6; Xu Decl. 5.) He further testified that

'2 (14 X $5= $70. $70 X 28= $1,960)
Although Xu testified that there were one or two weeks when he was required to work
Sundays, this does not affect the damages calculation because Xu was paid in excess of the
minimum wage for the first fifty-four hours, is not entitled to spread-of-hours premiums,and was
paid overtime compensation for the hours in excess offifty-four.

13

defendants withheld $4,710 in earned wages. (See Tr. at 7; Xu Decl. H 7.) Accordingly, I

respectfully recommend that Xu be awarded $7,944 in unpaid wages,consisting of(1)$3,234 in

unpaid overtime compensation,''^ and(2)$4,710 in withheld wages.
2. Liquidated Damages

Plaintiffs seek a cumulative award of liquidated damages under the FLSA and the

NYLL. (See Pis.' Mem. at 10.) Under the FLSA,an employer who underpays an employee is
liable "in the amount" ofthe unpaid wages "and in an additional amount as liquidated damages."

29 U.S.C. § 216(b). The court may exercise its discretion to reduce or decline to award

liquidated damages if the employer demonstrates that there was a reasonable good faith basis to
believe that the underlying act or omission was not a statutory violation. See 29 U.S.C. § 260.
The NYLL similarly provides for recovery ofliquidated damages equal to one hundred percent
ofthe total ofthe unpaid wages found to be due,"unless the employer proves a good faith basis
to believe that its underpayment of wages was in compliance with the law." N.Y. Lab.Law §
663;id § 198(l-a).

In a recent summary order, the Second Circuit Court of Appeals found that
"whatever reasons existed to award liquidated damages under the relevant provisions of both the
FLSA and the NYLL before 2010, we read the subsequent amendments to the NYLL provision,

which brought it into substantial conformity with the FLSA provision, as having eliminated those
reasons." Chowdhurv v. Hamza Express Food Corp..666 F. App'x 59,61 (2d Cir. 2016)

(summary order); see also Leon. 2017 WL 1184149, at *9(discussing Chowdhurv and declining
to award cumulative liquidated damages under both statutes). The Second Circuit's opinion in

Chowdhurv aligns with the "emerging trend" in the Eastern District, which declines to award

(14 X $7= $98. $98 X 33= $3,234).
14

double liquidated damages for the same violations. See, e.g.. Herrera v. Tri-State Kitchen &
Bath. Inc.. No. 14 CV 1695, 2015 WL 1529653, at *12(E.D.N.Y. Mar. 31, 2015); Man Wei
Shiu V. New Peking Taste Inc.. No. 11 CV 1175, 2014 WL 652355, at *13(E.D.N.Y. Feb. 19,

2014). Accordingly,in light ofthe substantial similarity between the two statutory provisions, I

respectfully recommend awarding liquidated damages solely under the statute that provides for

the higher damages award, here the NYLL. See Leon. 2017 WL 1184149, at *9; Man Wei Shiu.
2014 WL 652355, at *13.

Because defendants are in default, they are unable to prove that they had a good

faith basis to believe that their underpayment of wages was in compliance with the law.
N.Y. Lab.Law § 663; id § 198(1-a). Accordingly, I respectfully recommend that Tan be
awarded $5,449.84 in liquidated damages,that Chen be awarded $6,345 in liquidated damages,
and that Xu be awarded $7,944 in liquidated damages.
3. Wage Notice and Wage Statement Violation Penalties

Plaintiffs also seek statutory penalties for defendants' violations of the NYLL's

wage notice and wage statement provisions. fSee Pis.' Mem. at 11-12.) The uncontroverted
evidence before me establishes that plaintiffs were never provided with wage notices at the time
of hiring containing the information prescribed by NYLL § 195(1). (See Tr. at 7, 12, 17; Tan

Decl. H 10; Chen Decl. H 8; Xu Decl. H 8.) NYLL § 198(l-b) provides that "[i]f any employee is
not provided within ten business days of his or her first day of employment a notice as required
by subdivision one of section one hundred ninety-five of this article, he or she may recover in a
civil action damages of fifty dollars for each work day that the violations occurred or continue to
occur, but not to exceed a total offive thousand dollars." N.Y. Lab. Law § 198(l-b). Because

plaintiffs were employed by defendants for respective periods in excess of one hundred days yet

15

never received the requisite wage notices, I respectfully recommend that they each be awarded
the statutory maximum of$5,000.

Similarly, the uncontroverted evidence before me establishes that defendants

never provided plaintiffs with wage statements with every payment of wages in accordance with
NYLL § 195(3). (S^ Tr. at 7, 12, 17; Tan Decl.111; Chen Decl.19;Xu Decl. H 9.) NYLL §

198(l-d) provides that "[i]f any employee is not provided a statement or statements as required
by subdivision three of section one hundred ninety-five of this article, he or she shall recover in a
civil action damages oftwo hundred fifty dollars for each work day that the violations occurred
or continue to occur, but not to exceed a total offive thousand dollars." N.Y. Lab.Law § 198(1-

d). Because defendants' wage statement violations continued to occur in excess oftwenty days,

I respectfully recommend that plaintiffs each be awarded the statutory maximum of$5,000.'^
4. Preiudgment Interest

Plaintiffs are also entitled to prejudgment interest under the NYLL.

Fermin.

93 F. Supp. 3d at 48(E.D.N.Y. 2015)("In contrast to the FLSA,the NYLL permits the award of
Prior to February 27, 2015, section 198(l-b) provided for statutory penalties offifty dollars
for each workweek that the violations occurred or continue to occur, but not to exceed a total of
two thousand five hundred dollars. See 2010 N.Y. Laws ch. 564 § 7, amending N.Y. Labor Law

§ 198(l-b). Although Chen and Xu began their employment prior to February 27, 2015,they
each worked more than one hundred days after February 27, 2015 without receiving the requisite
notice. Because the penalties for defendants' wage notice violations continued to accrue
throughout plaintiffs' employment,I find it appropriate to apply the heightened statutory
maximum of $5,000. Cf. Changxing Li v. Kai Xiang Dong. No. 15 CV 7554,2017 WL 892611,
at *12(S.D.N.Y. Mar. 7, 2017), report and recommendation adopted. 2017 WL 1194733
(S.D.N.Y. Mar. 31, 2017).

Prior to February 27, 2015, section 198(l-d) provided for damages ofone hundred dollars for
each workweek that the violations occurred or continue to occur, but not to exceed a total of

twenty-five hundred dollars. See 2010 N.Y. Laws ch. 564 § 7, amending N.Y. Labor Law §
198(l-d). Although Chen and Xu began their employment prior to February 27,2015,
defendants' wage statement violations continued to occur throughout plaintiffs' respective
employment periods. Thus,I find it appropriate to apply the heightened statutory maximum of
$5,000.

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both liquidated damages and pre-judgment interest.")'"Prejudgment interest is calculated on the
unpaid wages due under the NYLL,not on the liquidated damages awarded under the state
law.'" Id at 49 /quoting Meiia v. East Manor USA Inc.. No. 10 CV 4313, 2013 WL 3023505, at

*8n.ll (E.D.N.Y. Apr. 19, 20131 report and recommendation adopted. 2013 WL 2152176(May
17,2013))(internal brackets removed).
The statutory rate of interest is nine percent per annum. N.Y. C.P.L.R. § 5004.

Where damages were incurred at various times, interest may be calculated from a single
reasonable intermediate date. N.Y. C.P.L.R. § 5001(b). The midpoint of a plaintiffs

employment is a reasonable intermediate date for purposes of calculating prejudgment interest.
See Jaramillo v. Banana King Rest. Corp.. No. 12 CV 5649, 2014 WL 2993450, at *8(E.D.N.Y.

July 2,2014); Fermin. 93 F. Supp. 3d at 49.

Accordingly, I respectfully recommend that Tan be awarded prejudgment interest

at the rate of nine percent per annum on his unpaid wages of$5,449.84 from May 26, 2015

through the date ofthe entry ofjudgment; that Chen be awarded prejudgment interest at the rate
of nine percent per annum on his unpaid wages of$6,345 from May 25,2015 through the date on

which judgment is entered; and that Xu be awarded prejudgment interest at the rate of nine
percent per annum on his unpaid wages of$7,944 from May 2, 2015 through the date on which
judgment is entered.
5. Post-judgment Interest

Plaintiffs further request an award of post-judgment interest. (See Pis.' Mem. at

5.) 28 U.S.C. § 1961 provides that "interest shall be allowed on any money judgment in a civil
case recovered in a district court." 28 U.S.C. § 1961(a). Under the statute, interest is calculated

"from the date of the entry ofjudgment, at a rate equal to the weekly average 1-year constant

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maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System,
for the calendar week preceding[] the date of the judgment" 28 U.S.C. § 1961(a). Thus, I

respectfully recommend that plaintiffs be awarded statutory post-judgment interest. See Morales
V. B&M Gen. Renovation Inc.. No. 14 CV 7290, 2016 WL 1266624, at *10(E.D.N.Y. Mar. 9,

2016), report and recommendation adopted. 2016 WL 1258482(E.D.N.Y. Mar. 29,2016)
(awarding post-judgment interest pursuant to 28 U.S.C. § 1961); Fermin. 93 F. Supp. 3d at 53
(finding that post-judgment interest is mandatory).
6. Attomev's Fees and Costs

Plaintiffs also seek an award of$8,820 in attorney's fees and $518.25 in costs.

fSee Pis.' Mem. at 14-16.) The FLSA and the NYLL each provide for the recovery of

reasonable attorney's fees and costs. S^ 29 U.S.C. § 216(b); N.Y. Lab.Law § 663(1).
a. Reasonable Hourlv Rate

In calculating a fee award,the court must first establish a reasonable hourly rate,
which is "what a reasonable, paying client would be willing to pay." Arbor Hill Concerned
Citizens Neighborhood Ass'n v. Ctv. of Albanv. 522 F.3d 182, 184(2d Cir. 2008). The

reasonable hourly rates should be based on rates "prevailing in the community for similar

services of lawyers of reasonably comparable skill, experience, and reputation." Cruz v. Local
UnionNo.3 oflBEW.34 F.3d 1148, 1159(2d Cir. 1994^ /citing Blum v. Stenson. 465 U.S. 886,

894(1984)). "Courts have broad discretion to assess the reasonableness ofeach component ofa
fee award." Jaramillo. 2014 WL 2993450, at *8 (citing Siemieniewicz v. CAZ Contracting
Corp.. No. 11 CV 704,2012 WL 5183375, at *15(E.D.N.Y. Sept. 21, 2012), report and
recommendation adopted as modified. 2012 WL 5183000(E.D.N.Y. Oct. 18, 2012)).

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Plaintiffs request an hourly rate of$350 for attorney Jian Hang. (Pis.' Mem. at

17.) Mr. Hang has practiced law for over ten years and is the principal attorney of the law firm
Hang & Associates, PLLC. (See Declaration of Jian Hang, Esq., dated Aug. 26,2016("Hang

Decl."), Dkt. No. 18-2,

31, 33.) According to the declaration submitted in support ofthis fee

application, Mr. Hang's practice focuses primarily on employment law, and a significant

percentage of his practice is specifically devoted to wage and hour litigation. (See id

33-36.)

Based on my review offees awarded in similar cases in this district, I find Mr. Hang's requested
rate reasonable. See Ferrera v. Tire Shop Ctr.. No. 14 CV 4657,2016 WL 7626576, at *5

(E.D.N.Y. Oct. 14, 2016), report and recommendation adopted. 2017 WL 27946(E.D.N.Y. Jan.

3, 2017)("Judges in the Eastern District have awarded fees in the range of$300 to $400 per hour

for experienced attorneys in FLSA cases."); Cortes v. Warb Corp.. No. 14 CV 7562,2016 WL
1266596, at *6(E.D.N.Y. Mar. 15,2016), report and recommendation adopted. 2016 WL

1258484(E.D.N.Y. Mar. 30, 2016)(awarding managing partner $350 per hour in FLSA default

case); Perez v. Queens Boro Yang Cleaner. Inc.. No. 14 CV 7310,2016 WL 1359218, at *8
(E.D.N.Y. Mar. 17, 2016L report and recommendation adopted. 2016 WL 1337310(E.D.N.Y.

Apr. 5,2016)(awarding partner with eighteen years of experience $350 per hour); Jiaren Wei v.
LingtouZhenes Corp.. No. 13 CV 5164, 2015 WL 739943, at *15(E.D.N.Y. Feb. 20, 2015)

(awarding Mr. Hang $350 per hour).
b. Hours

Plaintiffs' fee application is based on 25.2 hours of work performed by Mr. Hang.

(See Billing Records, filed Aug. 27,2016 ("Billing Records"), Dkt. No. 18-13.) A fee applicant
bears the burden of supporting its claim of hours expended by accurate, detailed and

contemporaneous time records. See Santillan. 822 F. Supp. 2d at 299; New York State Ass'n for

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Retarded Children. Inc. v. Carey, 711 F.2d 1136, 1147-48(2d Cir. 1983). Plaintiffs' counsel has

complied with this requirement. (See Billing Records.) The court must assess whether the hours

expended by plaintiffs' counsel were reasonable, and exclude any hours that were excessive,
redundant, or otherwise unnecessary to the litigation. See Jaramillo. 2014 WL 2993450, at *9;
Henslev v. Eckerhart. 461 U.S. 424,434(1983). "Generally, the 'high-end amount of hours

spent on [c]ases in a similar procedural posture (i.e. a motion for defaultjudgment immediately
following the filing of a complaint) is no more than 55 hours total.'" Jiaren Wei,2015 WL

739943, at *16(quoting Maldonado v. La Nueva Ramna. Inc.. No. 10 CV 8195, 2012 WL
1669341, at *14(S.D.N.Y. May 14, 2012))(internal marks omittedk see also Cortes. 2016 WL
1266596, at *6(same). Having reviewed Mr. Hang's billing records, I find the 25.2 hours spent
on this case reasonable, and I therefore respectfully recommend that plaintiffs be awarded $8,820

in attorney's fees. See, e.g.. Jiaren Wei. 2015 WL 739943, at *16(finding 30.6 hours spent by
Mr. Hang on FLSA default reasonable).
c. Costs

Finally, plaintiffs request $512.25 in costs, consisting of$400 in filing fees and
$118.25 in process server fees. (See Hang Decl.f 40; Invoices, filed Aug. 27, 2016, Dkt. No.
18-14.) As plaintiffs' counsel has provided receipts documenting these reasonable costs, I
respectfully recommend that they be awarded. See Cortes. 2016 WL 1266596, at *6.
Conclusion

For the reasons explained below,I respectfully recommend that plaintiffs' motion

for defaultjudgment be granted in part and denied in part. With respect to damages, I

respectfully recommend that Tan be awarded $20,899.68, consisting of$5,449.84 in unpaid
wages,$5,449.84 in liquidated damages,and $10,000 in statutory penalties for defendants' wage

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notice and wage statement violations. I also recommend that Tan be awarded prejudgment

interest at the statutory rate of nine percent per annum on his unpaid wages of$5,449.84 from

May 26,2015 through the date ofthe entry ofjudgment. As for Chen,I respectfully recommend
that Chen be awarded $22,690, consisting of$6,345 in unpaid wages,$6,345 in liquidated

damages,and $10,000 in statutory penalties for defendants' wage notice and wage statement
violations. I further recommend that Chen be awarded prejudgment interest at the rate of nine

percent per annum on his unpaid wages of $6,345 from May 25, 2015 through the date on which
judgment is entered. As for Xu,I respectfully recommend that Xu be awarded $25,888,
consisting of$7,944 in unpaid wages,$7,944 in liquidated damages, and $10,000 in statutory

penalties for defendants' wage notice and wage statement violations. I further recommend that
Xu be awarded prejudgment interest at the rate of nine percent per annum on his unpaid wages of
$7,944 from May 2,2015 through the date on which judgment is entered. Finally, I respectfiilly
recommend that plaintiffs be jointly awarded $8,820 in attorney's fees, $512.25 in costs, and
post-judgment interest pursuant to 28 U.S.C. § 1961.
Plaintiff is directed to serve copies of this Report and Recommendation on

defendants upon receipt. Any objections to this Report and Recommendation must be filed with
the Clerk ofthe Court, with courtesy copies to Judge Dearie and to my chambers, within fourteen

(14)days. Failure to file objections within the specified time waives the right to appeal the
district court's order. See 28 U.S.C. § 636(b)(1); Fed.R. Civ.P. 72, 6(a), 6(e).
Respectfully submitted,

/s/
ROBERT M. LEVY

United States Magistrate Judge
Dated: Brooklyn, New York
April 25, 2017
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