Jin et al v. Shanghai Original, Inc. et al

Filing 190

FINDINGS OF FACT AND CONCLUSIONS OF LAW: As set forth in this opinion, I find that defendants East Brother, Lam, and Fong are liable for violations of the FLSA and the NYLL. Plaintiff is entitled to the following relief: (1) $11,184.23 in unpaid overtime compensation; (2) $11,184.23 in liquidated damages; (3) $8,945 in statutory notice violations; and (4) pre- and post-judgment interest. Plaintiff is also entitled to reasonable attorneys' fees and costs, and any forthcoming motion for such fees and costs is respectfully referred to Magistrate Judge Orenstein. Ordered by Judge Allyne R. Ross on 7/19/2019. (Gifford, Alison)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
16-cv-5633 (ARR) (JO)

Jianmin Jin and Chunyou Xie,
Plaintiffs,

Opinion & Order

— against —
Shanghai Original, Inc. et al.,

Not for electronic or print
publication

Defendants.
ROSS, United States District Judge:

This is an action by Jianmin Jin (“plaintiff” or “Jin”) against Joe’s Shanghai restaurant in
Flushing, Queens, for unpaid wages pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq. (“FLSA”), and the New York Labor Law (“NYLL”). 1 Plaintiff was employed as a kitchen
worker at the Flushing restaurant from September 10, 2014, until May 2, 2015. On July 15, 2019,
I held a bench trial to determine the restaurant’s liability, if any. After careful consideration of
the evidence introduced at trial and the relevant law, I find that the restaurant is liable for FLSA
and NYLL violations and that Jin is therefore entitled to relief.
DISCUSSION
I.

Findings of fact
A. Joe’s Shanghai restaurant

Joe’s Shanghai restaurant has locations in Midtown Manhattan, Chinatown, and Flushing,
Queens. See Joint Pretrial Order 26 ¶ 2 (“JPTO”), ECF No. 142. The Flushing location opened in

Chunyou Xie, the other named plaintiff in this action, was precluded from testifying at trial (see Min. Entry, ECF
No. 76), and no records exist pertaining to his employment. During the July 11, 2019 pretrial phone conference,
plaintiff’s counsel acknowledged that he would be unable to make out a claim on behalf of Xie at trial. Xie’s claims
are therefore dismissed without prejudice. Further, although this case was originally filed as a class action, the class
was decertified before trial. See July 10, 2019 Order, ECF No. 181. Accordingly, this opinion is limited to Jin’s
claims.

1

1

1994. See Trial Tr. 85:11–21, ECF No. 188-1. It was originally owned and operated by Shanghai
Original, Inc. (“Original”). See id. at 86:20–22. When formed, Original had five shareholders,
including Kiu Sang Si, Tun Yee Lam, and Yiu Fai Fong. See id. at 85:22–86:2. As of 2012, Si,
Lam, and Fong were the only remaining shareholders. See id. at 86:3–14. That same year, Si sold
his shares to Lam (see id. at 86:15–25, 116:25–117:10), and in 2013, Lam and Fong formed East
Brother Corp. (“East Brother”) to take over the ownership and operations of the Flushing
location (see id. at 117:11–23). 2 Since he sold his shares, Si—who was once the head chef at the
Flushing location—has not been involved in running that location. See id. at 87:1–3, 98:6–8,
118:3–10. During Jin’s employment, Si would occasionally visit the Flushing restaurant to have
dinner with his family (see id. at 93:17–94:1), and at times he would go into the kitchen to “say
hello” to the head chef, Gui Bing Shi (see id. at 101:9–102:5). 3 Si is a part-owner of the
Chinatown and Midtown locations. See id. at 88:19–25, 89:16–22. 4 In 2014 and 2015, Si would
use East Brother’s truck three days per week to deliver food to the Chinatown and Midtown
restaurants. See id. at 94:23–96:13. 5 Si paid Lam and Fong $600 per month in cash to use the
truck. See id. at 95:17–96:1, 149:11–19. Si would also occasionally deliver raw fish to the
Flushing location as a favor to Lam and Fong, when “they couldn’t get [the fish they wanted] in
Flushing.” Id. at 99:14–20. He was reimbursed for any fish that he purchased. See id. at 99:21–

2

Since 2017, Lam has been the sole shareholder of East Brother. See JPTO 26 ¶ 1.

While Jin testified that Si would make food when he visited Shi in the kitchen (see Trial Tr. 18:1–5, 18:11–19:1), I
found Si’s testimony that he did not have the authority to use the kitchen more credible (see id. at 94:2–6, 102:10–
13). I note, however, that even if Si did use the kitchen, my conclusion that Si was not plaintiff’s employer would
remain the same. See infra Section II.A.
3

The Midtown location is owned by Shanghai City Corp. (“City”), and the Chinatown location is owned by
Shanghai Duplicate Corp. (“Duplicate”). See JPTO 23 ¶ 2.

4

This arrangement was convenient for Si, as he purchased his supplies from the store Dai Chuang Wah located in
Flushing. See Trial Tr. 94:23–95:16.

5

2

24. The owners of the Flushing location are not involved in managing the Chinatown and
Midtown locations, and vice versa. See id. at 89:4–15, 90:2–13; see also Jin v. Shanghai
Original, Inc., No. 16-cv-5633 (ARR)(JO), 2018 WL 1597389, at *1 (E.D.N.Y. Apr. 2, 2018)
(“Although they share a single name and website, the three locations of Joe’s Shanghai are now
independently owned and managed. The website was created when Kiu Sang Si owned a part of
all three restaurants, and has not been changed since for reasons of economy. Si created the menu
for Joe’s Shanghai; although each location has its own chef, the menus for all three locations are
‘more or less the same.’” (citations omitted)). 6
During Jin’s employment, Fong managed the dining room, Shi managed the kitchen, and
Lam “was considered the general manager.” Trial Tr. 117:18–118:25. Lam and Fong were
responsible for setting the employment policies. See id. at 118:11–14. All employees were
required to clock in at the beginning of the day and clock out at the end of the day. See id. at
13:10–13. According to Fong, it was the restaurant’s practice to pay employees minimum wage
for 40 hours of work per week and overtime for all hours worked in excess of 40 hours. See id. at
119:1–120:5 (testifying that he and Lam met with an accountant annually to determine the
appropriate minimum wage and overtime rates); see also id. at 122:13–123:11, 124:7–125:23.
While Fong testified that the restaurant complied with all wage and notice requirements under

Xin He, a kitchen worker, testified that he transferred from the Chinatown restaurant to the Flushing restaurant in
2015, and from the Flushing restaurant to the Midtown restaurant in 2016. See Trial Tr. 51:15–52:7. Despite
plaintiff’s belabored attempt at trial to show that He’s movements were directed by Si, He’s testimony simply does
not support that proposition. See id. at 55:15–56:2, 70:24–71:5, 72:5–9 (testifying that Cai, the head chef at the
Chinatown restaurant, recommended He for an open position in Flushing because He lived in Flushing); id. at
56:24–57:13 (testifying that Si “arranged” for him to go to Midtown). Jin and He both referred to Si as the “big
boss” (see, e.g., id. at 4:10, 53:17–18); however, while working at the Flushing restaurant in 2014–2016, they never
received instructions from Si (see id. at 6:3–7), observed him pay employees (see id. at 69:7–9), or witnessed him do
any task other than drop off food (see id. at 4:17–21, 5:24–6:2, 58:22–59:2, 60:22–61:24). Jin even testified that he
never spoke with Si. See id. at 6:8–9. Further, Hai Hua Zhai, who was called to testify about Si’s role at the Flushing
restaurant, stated that he had never seen Si in any restaurant other than Midtown. See id. at 82:21–83:14, 83:19–
84:3.
6

3

federal and state law during Jin’s employment, all relevant records were lost in November 2016.
See id. at 130:22–131:13, 131:23–132:3, 137:15–138:15, 153:15–19, 155:21–156:6, 157:9–
158:1.
B. Jianmin Jin

Jin was hired by Shi in 2014 to work in the kitchen of the Flushing restaurant. See id. at
5:8–9, 8:24–9:2. 7 His daily duties primarily consisted of washing and cutting vegetables. See id.
at 15:13–24. At the time he was hired, Jin did not receive or sign a written notice explaining his
wages and hours. See id. at 9:10–12, 25:16–19. Rather, on his second or third day of work, Jin
received a piece of paper with his weekly wage written on it (see id. at 9:13–21), and a written
schedule showing him working six days and 57.5 hours per week (see id. at 25:20–26:20; see
also Pl.’s Ex. 25, at 7–40 (“Weekly Schedule”)). 8 From September 10, 2014, to December 31,
2014, Jin received a flat wage of $460 per week. See Trial Tr. 12:6–8, 38:6–11, 47:15–20. On
January 1, 2015, he received a raise to $470 per week. See id. at 11:1–3, 12:6–8, 47:22–25. 9 Jin
did not receive or sign any written notice regarding his raise. See id. at 11:3–7. Throughout his
employment, Jin was paid exclusively in cash. See id. at 11:13–15. Despite Fong’s testimony to

While plaintiff testified that he worked from September 2, 2014, until May 10, 2015, I credit the dates in
defendants’ weekly work schedule, which state that plaintiff worked from September 10, 2014, until May 2, 2015.
See Pl.’s Ex. 25, at 7–40.

7

While Fong testified that Jin received a formal notice of pay rate with his “[n]ame; address; contact number; how
much for the rate, hourly rate; also how many hours of work; when the job begins; and his signature” (Trial Tr.
127:21–128:5), I credit Jin’s testimony on this point.

8

Fong disputes that Jin was paid these flat weekly wages. See Trial Tr. 138:16–139:13, 141:5–144:16. Fong does
not recall Jin’s specific salary but testified that pursuant to the restaurant’s policy, Jin would have been paid
minimum wage for the first 40 hours, overtime for excess hours, and an additional hourly wage for any days he
worked more than a 10-hour shift. See id. Fong also maintains that Jin’s wage was calculated weekly based on his
timecard. See id. at 137:4–14. I find Jin’s testimony that he was paid a flat weekly wage of $460 and $470 more
credible, not only because I found Jin to be a credible witness, but also because Fong’s credibility was undermined
by his testimony that he “[does not] remember” whether Jin received the same amount of money each week and that
Jin’s timecard never deviated by more than a couple of minutes from his scheduled hours. Id. at 134:10–135:13; see
also id. at 137:4–14.
9

4

the contrary (see id. at 129:9–130:21), I credit Jin’s testimony that when he received his weekly
wage, he did not see or sign a wage statement. See id. at 11:21–23, 39:4–12, 40:6–12.
Jin was scheduled to work 57.5 hours per week (see Weekly Schedule), but he
occasionally arrived early and stayed late. See Trial Tr. 13:3–6 (testifying that he arrived 30
minutes to one hour early on Thursdays to “take [the] place of the dishwasher worker to do some
dishwasher work[]”); id. at 23:5–16 (testifying that “[s]ometimes, according to the work
schedule, it [was] time for [him] to stop working” but the head chef did “not allow [them] to
leave until all the customers le[ft] the restaurant”); id. at 24:25–25:10 (testifying that he worked
an extra hour—until midnight—on Saturdays). Jin took two 10–15-minute meal breaks during
the day, and he was not required to punch out during his meal breaks. See id. at 15:2–12. 10
Because Jin worked approximately 45 minutes more than his scheduled hours on Thursdays and
one hour more than his scheduled hours on Saturdays, I conclude that he was in fact working an
average of 59.25 hours per week.
II.

Conclusions of law
A. Defendants 11

“An individual or entity may be held liable under the FLSA [only] if it is deemed an
‘employer’ under the statute.” Apolinar v. R.J. 49 Rest., LLC, No. 15-cv-8655 (KBF), 2016 WL
2903278, at *3 (S.D.N.Y. May 18, 2016) (citing 29 U.S.C. § 203(d)). Here, plaintiff claims that

I do not find that these breaks were long enough to qualify as a non-compensable “bona fide meal period.” 29
C.F.R. § 785.19(a) (“Bona fide meal periods are not worktime. . . . The employee must be completely relieved from
duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal
period.”); see also id. § 785.18 (“Rest periods of short duration, running from 5 minutes to about 20 minutes . . . .
are customarily paid for as working time.”); Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481, 499 (S.D.N.Y.
2017) (noting that the NYLL and FLSA standards for determining whether meal breaks are non-compensable are the
same), aff’d, 752 F. App’x 33 (2d Cir. 2018).
10

The parties concede that the corporate defendants are enterprises covered by the FLSA. See Defs.’ June 17, 2019
Letter, ECF No. 162; see also Pl.’s June 17, 2019 Letter, ECF No. 163.
11

5

Original, East Brother, City, Duplicate, Si, Lam, and Fong each constituted Jin’s employer. See
Pl.’s Trial Br. ¶¶ 52–61, ECF No. 188. The Second Circuit uses an “economic reality” test to
determine whether an individual meets the definition of “employer.” Irizarry v. Catsimatidis,
722 F.3d 99, 104–05 (2d Cir. 2013). The economic reality test examines four factors: “whether
the alleged employer (1) had the power to hire and fire the employees, (2) supervised and
controlled employee work schedules or conditions of employment, (3) determined the rate and
method of payment, and (4) maintained employment records.” Id. at 105 (quoting Barfield v.
N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008)). Courts in this Circuit
generally interpret “[t]he statutory standard for employer status under NYLL [to be] nearly
identical to that of the FLSA.” Olvera v. Bareburger Grp. LLC, 73 F. Supp. 3d 201, 206
(S.D.N.Y. 2014); see also Marcelino v. 374 Food, Inc., No. 16 Civ. 6287 (KPF), 2018 WL
1517205, at *12 (S.D.N.Y. Mar. 27, 2018).
The record in this case reveals that Original, City, Duplicate, and Si were not Jin’s
employers. 12 Jin worked only at the Flushing location, which was under separate ownership and
management from the Midtown and Chinatown locations during Jin’s employment. See supra
Section I.A. 13 The fact that the restaurants may have occasionally recommended employees to
one another (see supra note 6) does not establish that each had control over the others’
employment practices. Further, while Jin occasionally saw Si at the Flushing restaurant, he
testified that Shi—not Si—hired him, and that Si never instructed or spoke to him. See id.
Witnesses He and Zhai also failed to establish that Si exercised control over Jin or the Flushing
Defendants do not dispute that East Brother, Lam, and Fong were Jin’s employers (see Defs.’ Trial Br. 2, 5, ECF
No. 189), and the evidence at trial established this fact. As discussed above, during Jin’s employment, East Brother
owned the Flushing restaurant, Lam and Fong were East Brother’s sole shareholders, and both men were responsible
for managing the restaurant’s employees and setting restaurant policy. See supra Section I.A.
12

It appears that Original ceased to exist in 2013, prior to plaintiff’s employment; however, to the extent that the
company continued operating, it played no role in the management of the Flushing restaurant. See supra Section I.A.
13

6

restaurant. See id. At most, the trial testimony demonstrated that after Si withdrew his shares
from Flushing, he maintained a relationship with the owners and managers of that location. See
supra Section I.A. Simply put, Jin has failed to show that Original, City, Duplicate, or Si meet
any of the four factors of the economic-reality test. Accordingly, these defendants are
dismissed. 14
B. FLSA and NYLL claims

The FLSA provides that “no employer shall employ any of his employees . . . for a
workweek longer than forty hours unless such employee receives compensation . . . 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). To establish liability for unpaid overtime pursuant to the
FLSA, “a plaintiff must prove that he performed work for which he was not properly
compensated, and that the employer had actual or constructive knowledge of that work.” Kuebel
v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011) (citing Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 686–87 (1946)). 15 Plaintiffs bear the burden of so proving by a
preponderance of the evidence. Hernandez v. NJK Contractors, Inc., No. 09-CV-4812 (RER),
2015 WL 1966355, at *1 (E.D.N.Y. May 1, 2015).

Prior to trial, plaintiffs stated that they “intend[ed] to show that all Corporate Defendants constitute[d] a single
integrated enterprise.” Pl.’s June 17, 2019 Letter. To determine “whether a group of distinct but closely affiliated
entities should be treated as a single employer for FLSA purposes,” courts in this Circuit apply the “single integrated
enterprise” test. Nieto v. Vill. Red Rest. Corp., No. 17 Civ. 2037 (JCF), 2017 WL 4539327, at *4 (S.D.N.Y. Oct. 10,
2017) (quoting Juarez v. 449 Rest., Inc., 29 F. Supp. 3d 363, 367 (S.D.N.Y. 2014)); see also Gyalpo v. Holbrook
Dev. Corp., 577 B.R. 629, 639–40 (E.D.N.Y. 2017); Apolinar, 2016 WL 2903278, at *4. Under the test, “courts
consider (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4)
common ownership or financial control.” Nieto, 2017 WL 4539327, at *4 (quoting Juarez, 29 F. Supp. 3d at 367).
Plaintiff appears to have abandoned this argument. See Pl.’s Trial Br. ¶¶ 52–61. To the extent that plaintiff is
pursuing this argument, however, it fails for the same reasons as plaintiff’s employer argument.
14

15
The NYLL also mandates overtime pay and contains the same exemptions as the FLSA. The Second Circuit thus
engages in a single analysis under the FLSA to resolve both FLSA and NYLL claims, and I will do the same here.
See Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 556 n.1 (2d Cir. 2012); Zheng v. Liberty Apparel Co., 355
F.3d 61, 78 (2d Cir. 2003); Awan v. Durrani, No. 14-cv-4562 (SIL), 2015 WL 4000139, at *9–10 (E.D.N.Y. July 1,
2015); Martinez v. Hilton Hotels Corp., 930 F. Supp. 2d 508, 519 (S.D.N.Y. 2013).

7

The FLSA also requires every employer to “make, keep, and preserve such records of the
persons employed by him and of the wages, hours, and other conditions and practices of
employment maintained by him.” 29 U.S.C. § 211(c); see also 29 C.F.R. § 516.2(a)(7), (9)–(10)
(requiring employers to maintain and preserve payroll records that specify the “[h]ours worked
each workday and total hours worked each workweek,” as well as “[t]otal premium pay for
overtime hours” and “[t]otal additions to or deductions from wages paid each pay period”). To
prove their claims about failure to pay overtime, plaintiffs must “produce[ ] sufficient evidence
to show the amount and extent of [the uncompensated] work as a matter of just and reasonable
inference.” Kuebel, 643 F.3d at 361 (quoting Anderson, 328 U.S. at 687).
This evidence may be established in various ways. For example, “[w]hen the employer
has kept proper and accurate records[,] the employee may easily discharge his burden by
securing the production of those records.” Anderson, 328 U.S. at 687. On the other hand,
“‘where the employer’s records are inaccurate or inadequate and the employee cannot offer
convincing substitutes,’ the [Supreme] Court [has] concluded that ‘[t]he solution . . . is not to
penalize the employee by denying him any recovery on the ground that he is unable to prove the
precise extent of uncompensated work,’ as such a result would be contrary to the ‘remedial
nature’ of the FLSA.” Kuebel, 643 F.3d at 362 (quoting Anderson, 328 U.S. at 687). The Second
Circuit has established that “it is possible for a plaintiff to meet this burden through estimates
based on his own recollection.” Id. In this case, defendants’ records are undoubtedly inadequate,
as the alleged wage notices, wage statements, and timecards have all been lost (see Trial Tr.
130:22–131:13, 131:23–132:3, 137:15–138:11), and I find that Jin has met his burden of
demonstrating his actual hours worked and pay received through his own credible recollection.
i. Overtime violations

Under both the FLSA and the NYLL, “once an employee works 40 hours in a week, he
8

must be paid ‘one and one-half times [his] regular rate’ for all excess hours.” Martinez v. Dannys
Athens Diner Inc., No. 16-cv-7468 (RJS), 2017 WL 6335908, at *2 (S.D.N.Y. Dec. 5, 2017)
(alteration in original) (quoting Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 88 (2d Cir.
2013)), appeal docketed, No. 18-80 (2d Cir. Jan. 10, 2018). Thus, the first step in calculating
overtime is to determine the employee’s “regular rate” of pay. The NYLL states that, in the
hospitality industry, “[i]f an employer fails to pay an employee an hourly rate of pay, the
employee’s regular hourly rate of pay shall be calculated by dividing the employee’s total
weekly earnings . . . by the lesser of 40 hours or the actual number of hours worked by that
employee during the work week.” 12 N.Y.C.R.R. § 146-3.5(b); see also Martinez, 2017 WL
6335908, at *4; Romero v. Rung Charoen Sub, Inc., No. 16 Civ. 1239 (VMS), 2017 WL
4480758, at *10 (E.D.N.Y. Sept. 30, 2017). 16 Accordingly, plaintiff’s regular rate of pay in 2014
was his flat rate of $460 divided by 40 ($11.50 per hour), which leads to an overtime rate of
$17.25 per hour. And plaintiff’s regular rate of pay in 2015 was his flat rate of $470 divided by
40 ($11.75 per hour), which leads to an overtime rate of $17.63 per hour. Thus, for the 16 weeks
he worked in 2014, plaintiff was owed $332.06 per week in overtime ($17.25 x 19.25), and for
the 17.3 weeks he worked in 2015, plaintiff was owed $339.38 per week in overtime ($17.63 x
19.25). Plaintiff is therefore owed overtime compensation in the amount of $11,184.23 ($332.06
x 16 + $339.38 x 17.3).

Under the FLSA, “[t]here is a . . . presumption that a weekly salary covers 40 hours,” but “the employer can rebut
the presumption by showing an employer-employee agreement that the salary covers a different number of hours.”
Moon v. Kwon, 248 F. Supp. 2d 201, 207 (S.D.N.Y. 2002) (quoting Giles v. City of New York, 41 F. Supp. 2d 308,
317 (S.D.N.Y. 1999)). Here, I “need not determine whether the presumption . . . was rebutted . . . because Plaintiff
is entitled to recover under whichever statute provides greater relief.” Romero, 2017 WL 4480758, at *11 (citations
omitted); see also Llolla v. Karen Gardens Apartment Corp., No. 12-CV-1356 (MKB)(JO), 2014 WL 1310311, at
*11 (E.D.N.Y. Mar. 10, 2014) (noting that a plaintiff “is not entitled to recover cumulative damages for unpaid
wages under both federal and state law” but may recover under the statute that provides more damages), adopted in
relevant part by 2014 WL 1311773 (E.D.N.Y. Mar. 28, 2014). In this case, Jin is seeking recovery under the NYLL
because it affords him greater relief. See Pl.’s Trial Br. ¶ 93. Accordingly, I will calculate his damages under the
NYLL. See Jiao v. Chen, No. 03 Civ. 0165(DF), 2007 WL 4944767, at *17 (S.D.N.Y. Mar. 30, 2007).
16

9

ii. Spread of hours

New York law provides that “[a]n employee shall receive one hour’s pay at the basic
minimum hourly wage rate, in addition to the minimum wage required . . . for any day in which:
. . . the spread of hours exceeds 10 hours.” 12 N.Y.C.R.R. § 142-2.4. Spread of hours is defined
as “the interval between the beginning and end of an employee’s workday,” which “includes
working time plus time off for meals plus intervals off duty.” Id. § 142-2.18. In other words,
“[t]he NYLL spread-of-hours claim, for which there is no counterpart under the FLSA, provides
that ‘an employee is entitled to recover compensation for an extra hour of work at the minimum
wage each day that the employee works in excess of ten hours.’” Fermin v. Las Delicias
Peruanas Rest., Inc., 93 F. Supp. 3d 19, 45 (E.D.N.Y. 2015) (quoting Shiu v. New Peking Taste
Inc., No. 11-CV-1175 (NGG)(RLM), 2014 WL 652355, at *10 (E.D.N.Y. Feb. 19, 2014)). Any
compensation awarded under this provision is to be “in addition to any claim for minimum-wage
payments or overtime.” Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 260 (S.D.N.Y.
2008). “A limitation upon a plaintiff’s eligibility to recover for spread-of-hours is that the
plaintiff not earn more than the minimum wage.” Fermin, 93 F. Supp. 3d at 45. Because Jin’s
regular rate of pay was above the minimum wage, he is not entitled to spread-of-hours pay.
iii. Notice claims

The NYLL also imposes certain notice requirements on employers. One such requirement
is that each employer “provide his or her employees . . . , at the time of hiring, a notice
containing” certain information, including the employee’s “rate or rates of pay and basis
thereof,” the regular pay day, and the employer’s name, address, and telephone number. N.Y.
Lab. Law § 195(1)(a). The employee must sign and date the notice, which is required to be in the
employee’s primary language. See id. On and after February 27, 2015, the NYLL entitles a
plaintiff to $50 for each workday that a wage-notice violation occurs, not to exceed $5,000. See
10

id. § 198(1-b); see also Chen v. New Fresco Tortillas Taco LLC, No. 15 Civ. 2158 (RA)(AJP),
2015 WL 5710320, at *8 (S.D.N.Y. Sept. 25, 2015), adopted by 2017 WL 818469 (S.D.N.Y.
Mar. 1, 2017). Prior to February 27, 2015, employers were liable for $50 in damages for each
week that the violation occurred, not to exceed $2,500. See N.Y. Lab. Law § 198(1-b) (effective
April 9, 2011). As detailed earlier, Jin did not sign and date a notice with the information
required by § 195(1)(a) when he was hired; he simply received a piece of paper on his second
day of work with “$460” written on it. See supra Section I.B. He also did not receive a wage
notice at the time of his raise. See id. Jin worked 24.3 weeks before February 27, 2015, and 9.1
weeks after February 27, 2015. Accordingly, he is entitled to $3,945 for wage-notice violations
($50 x 24.3 + $50 x (9.1 x 6)).
The NYLL also requires employers to provide their employees with paystubs on each pay
day that list “the dates of work covered by that payment of wages; name of employee; name of
employer; address and phone number of employer; rate or rates of pay and basis thereof, whether
paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions;
allowances, if any, claimed as part of the minimum wage; and net wages.” N.Y. Lab. Law
§ 195(3). Since February 27, 2015, the NYLL has also provided employees with $250 per day,
up to a total of $5,000, for violations of the paystub requirement. See id. § 198(1-d). Since Jin
worked without a paystub for more than 20 days after February 27, 2015, he is entitled to the
statutory maximum award of $5,000.
C. Additional damages
i. Liquidated damages

Under the FLSA, a plaintiff is presumptively entitled to “liquidated damages equal in
amount to actual damages,” unless “the employer shows that, despite its failure to pay
appropriate wages, it acted in subjective ‘good faith’ with objectively ‘reasonable grounds’ for
11

believing that its acts or omissions did not violate the FLSA.” Barfield, 537 F.3d at 150 (quoting
29 U.S.C. § 260). “‘Good faith’ in this context requires more than ignorance of the prevailing
law or uncertainty about its development. It requires that an employer first take active steps to
ascertain the dictates of the FLSA and then move to comply with them.” Reich v. S. New Eng.
Telecomms. Corp., 121 F.3d 58, 71 (2d Cir. 1997). As a result, the employer’s “burden is a
difficult one, with double damages being the norm and single damages the exception.” Herman
v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999). Similarly to the FLSA, the NYLL
allows plaintiffs to recover “liquidated damages equal to one hundred percent of the total . . .
underpayments 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(1). Although
this text “is not identical to that of the FLSA . . . , courts have not substantively distinguished the
federal standard from the current state standard of good faith.” Inclan v. N.Y. Hosp. Grp., Inc., 95
F. Supp. 3d 490, 505 (S.D.N.Y. 2015). Here, defendants have failed to demonstrate that their
failure to pay plaintiff in accordance with the law was in good faith. In fact, based on the trial
testimony, I conclude that defendants were aware of the wage requirements but simply failed to
comply with them. See supra Section I.A. Accordingly, plaintiff is entitled to $11,184.23 in
liquidated damages.
ii. Interest

The NYLL, unlike the FLSA, permits the award of both liquidated damages and
prejudgment interest. Khurana v. JMP USA, Inc., No. 14-CV-4448 (SIL), 2017 WL 1251102, at
*17 (E.D.N.Y. Apr. 5, 2017); Fermin, 93 F. Supp. 3d at 48. Under New York law, a prevailing
employee is entitled to prejudgment interest at a rate of 9% per year for a NYLL claim. See N.Y.
C.P.L.R. §§ 5001, 5004. While courts have discretion in determining a reasonable date from
which to award prejudgment interest, “[a] single reasonable intermediate date is the median date
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between the earliest and latest each Plaintiffs’ NYLL claim accrued.” Hernandez, 2015 WL
1966355, at *51; see also Khurana, 2017 WL 1251102, at *17; Coulibaly v. Millennium Super
Car Wash, Inc., No. 12-CV-4760 (CBA)(CLP), 2013 WL 6021668, at *15 (E.D.N.Y. Nov. 13,
2013). Prejudgment interest will thus be calculated from the median date between plaintiff’s start
and end date of employment with defendants, which is January 5, 2015. Plaintiff is also awarded
post-judgment interest at the statutory rate prescribed by 28 U.S.C. § 1961. See Coulibaly, 2013
WL 6021668, at *16.
CONCLUSION
As set forth in this opinion, I find that defendants East Brother, Lam, and Fong are liable
for violations of the FLSA and the NYLL. Plaintiff is entitled to the following relief: (1)
$11,184.23 in unpaid overtime compensation; (2) $11,184.23 in liquidated damages; (3) $8,945
in statutory notice violations; and (4) pre- and post-judgment interest. Plaintiff is also entitled to
a 15% increase in the damages owed to him “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.” N.Y. Lab. Law §§ 198(4), 663(4); see
also Martinez, 2017 WL 6335908, at *6. Under the FLSA and the NYLL, a prevailing plaintiff is
entitled to reasonable attorneys’ fees and costs. See 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1).
Accordingly, plaintiff is entitled to recover such fees and costs. Plaintiff’s forthcoming motion is
respectfully referred to Magistrate Judge Orenstein.
SO ORDERED.

Dated:

_________/s/___________________
Allyne R. Ross
United States District Judge

July 19, 2019
Brooklyn, New York

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