McLean et al v. Garage Manage Corp. et al
Filing
125
OPINION & ORDER #100708 re: 100 MOTION for Summary Judgment filed by Chapman Consulting Payroll, LLC, Garage Management Association LLC, Chapman Consulting LLC, Garage Manage Corp., Richard M. Chapman and 99 MOTION for Summary Judgment filed by Elias Sabja, Rafael Gautreaux, Jorge E. Romero, Patrick J. Phillips, Hugo D. Grajeda, Raphael Jerez, Claude Godet, Henry McLean, Cerdan G. Washington, Chatelal Lutchamn, Jose Romero, Huascar Santana, Frantz Paillant, Miguel R. Granodeoro, Edwin River a, Fari Gutierrez. Plaintiffs' motion for summary judgment denying the Garage Managers status as exempt employees is granted and the defendants' motion seeking their exemption is denied. The defendants' summary judgment motion in suppo rt of a good faith defense under Section 10 of the Portal-to-Portal Act is denied. Plaintiffs' three motions on the calculation of overtime are granted. Both parties' summary judgment motions concerning whether the Garage Managers were paid for the time taken to make the daily drop offs of cash receipts are denied. Plaintiffs' motion for summary judgment on Richard Chapman being an employer under the relevant statutes is granted. And, finally, defendants' motion for dismissal of six plaintiffs on the ground that they were not employed during the notice period is denied without prejudice to renewal after GMC provides plaintiffs' counsel with documentary confirmation of the dates of employment for these six employees. (Signed by Judge Naomi Reice Buchwald on 8/26/2011) (ab) Modified on 8/30/2011 (ajc).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------- X
HENRY MCLEAN and EDWIN RIVERA,
:
Plaintiffs,
:
:
-v:
:
GARAGE MANAGEMENT CORP., a New York
:
corporation; GARAGE MANAGEMENT ASSOCIATES :
LLC, a Delaware limited liability company; :
CHAPMAN CONSULTING PAYROLL LLC, a New York :
limited liability company; CHAPMAN
:
CONSULTING LLC, a New York limited
:
liability company; and RICHARD M. CHAPMAN, :
Individually,
:
Defendants.
:
------------------------------------------- X
10 Civ. 3950 (DLC)
OPINION & ORDER
APPEARANCES:
For Plaintiffs:
Stephen H. Kahn
Kahn Opton, LLP
228 East 45th Street
New York, NY 10017
For Defendants:
A. Michael Weber
Elias J. Kahn
Littler Mendelson, A Professional Corp.
900 Third Avenue
New York, NY 10022
DENISE COTE, District Judge:
The plaintiffs and defendants have made cross motions for
summary judgment in this action brought under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.
The plaintiffs
are Garage Managers employed by Garage Management Corp. (“GMC”)
or related corporate entities.
The plaintiffs seek principally
1
to establish the correct method for calculating their overtime
pay and the payment of overtime wages for the period before midApril 2010.1
For the following reasons, the plaintiffs’ motion
is granted in part and the defendants’ motion is denied.
BACKGROUND
The following facts are undisputed unless otherwise
indicated.
GMC operates approximately 68 parking garages in New
York City and two garages in Hoboken, New Jersey.
Each parking
garage is run by a Garage Manager, who is responsible for
managing all aspects of the garage’s operations, including its
profitability.
They supervise Parking Attendants, who park and
retrieve cars and collect money.
Garage Managers are themselves
supervised by an Area Supervisor, who is responsible for
approximately thirty garages.
Garage Managers are regularly scheduled to work five days a
week for more than 40 hours per week.
Most Garage Managers are
regularly scheduled to work about 50 hours per week.
Garage
Managers use a time clock, which records their hours for each
day they work.
1
In mid-April 2010, the defendants revised their compensation
system for Garage Managers. The plaintiffs agree that the
current payment system complies with the FLSA requirements for
payment of overtime wages.
2
Garage Managers are required to make daily drop offs of the
cash receipts and related paperwork to a central depot.
The
drop-off must be witnessed by an employee at a central depot.
For at least some Garage Managers the trip to the depot requires
travel lasting from 15 to 30 minutes after the Garage Manager
has “punched-off” the time clock.
In such cases, the time to
drop off the cash receipts is not recorded by the time clock.
Prior to mid-April 2010, the payroll records and paystubs
for Garage Managers reflected an hourly rate for straight time
wages for all hours shown on the records created by the time
clocks.2
The hourly compensation equaled the number of hours
worked times the hourly wage rate, minus appropriate deductions.
As the GMC Policies and Procedures Manual explained:
Each employee is required to punch in and out on the
manual time clock at the beginning and end of their
shift. . . .
At the end of each pay period, the manager must add
the total hours worked for each employee and record
this total on each time card. The manager will then
verify the hours worked on the time card vs. the
scheduled hours on the weekly schedule.
In addition to the compensation for every hour worked, each
Garage Manager was also paid a monthly lump sum Extra
Compensation bonus called an “EC bonus.”
2
The EC bonus was a
GMC switched from a weekly pay period to a bi-weekly pay period
in July 2006.
3
pre-determined amount for an employee that did not vary from
month to month.
The amount of an individual’s EC bonus was
determined from a number of factors including garage assignment,
merit increases, garage transfers, promotions and seniority.
The amount of the EC bonus did not vary because of the hours
worked, but GMC contends that it was more than sufficient to
cover payment of any overtime wages due during the pay period.
This action was filed on May 12, 2010.
On August 11, the
Court authorized notice of a collective FLSA action.
Approximately 47 of the currently employed 60 Garage Managers
filed consents to join the action.
On March 29, 2011, the
defendants’ motion to dismiss and to compel arbitration was
denied.
Mclean v. Garage Manage. Corp., 10 Civ. 3950 (DLC),
2011 WL 1143003 (S.D.N.Y. Mar. 29, 2011).
Fact discovery closed on March 23, 2011.
In addition to
the motions addressed in this Opinion, the plaintiffs have moved
to “certify” a class action on plaintiffs’ New York Labor Law
claims, and the defendants have moved to deny FLSA collective
action “certification.”3
3
“Certification” of an FLSA action refers only to the court’s
power to facilitate notice to potential plaintiffs. Myers v.
Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010).
4
DISCUSSION
Summary judgment may not be granted unless all of the
submissions taken together “show that there is no genuine issue
as to any material fact and that the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
The
moving party bears the burden of demonstrating the absence of a
material factual question, and in making this determination, the
court must view all facts “in the light most favorable” to the
nonmoving party.
Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d
Cir. 2008).
When the moving party has asserted facts showing that the
non-movant's claims cannot be sustained, the opposing party must
“set out specific facts showing a genuine issue for trial,” and
cannot “rely merely on allegations or denials” contained in the
pleadings.
Fed. R. Civ. P. 56(e); see also Wright v. Goord, 554
F.3d 225, 266 (2d Cir. 2009).
“A party may not rely on mere
speculation or conjecture as to the true nature of the facts to
overcome a motion for summary judgment,” as “[m]ere conclusory
allegations or denials cannot by themselves create a genuine
issue of material fact where none would otherwise exist.”
Hicks
v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
Only disputes over material facts -- “facts that might affect
5
the outcome of the suit under the governing law” -- will
properly preclude the entry of summary judgment.
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986) (stating that the nonmoving party “must do
more than simply show that there is some metaphysical doubt as
to the material facts”).
The plaintiffs have moved for partial summary judgment on
six issues: (1) Garage Managers are not exempt from the overtime
laws since they are “salary basis” employees; (2) GMC did not
pay overtime wages to Garage Managers prior to mid-April 2010;
(3) the EC bonuses are not overtime wages; (4) to calculate
overtime pay, the hourly rate must be increased by apportioning
the EC bonus to the hourly rate; (5) Garage Managers must be
paid for the time taken to make the daily drop offs of cash
receipts; and, (6) that Richard Chapman is an employer.
The defendants have moved for summary judgment on five
issues:
(1) Section 10 of the Portal-to-Portal Act, 29 U.S.C.
§ 259(a), provides a good faith defense to the defendants which
operates as a complete bar to FLSA liability; (2) Garage
Managers are bona fide executives and therefore exempt from the
FLSA requirements regarding overtime pay; (3) the EC bonus
constituted proper payment of all overtime pay if GMC was
6
required to pay overtime; (4) Garage Managers made the daily
drop offs of cash receipts before they “punched-out” on the time
clocks and therefore were compensated for this work; and (5) six
plaintiffs were not employed after May 12, 2007, and therefore
their claims must be dismissed.
Since many of the eleven issues
raised by the parties overlap, they will be addressed in the
seven sections that follow.
I. Good Faith Exemption
GMC contends that it cannot be held liable for any FLSA
violation because it relied on a “practice” of the United States
Department of Labor (“DOL”) that classified Garage Managers as
exempt employees.
GMC has not shown that it is entitled to
summary judgment on this defense.
Beginning in 1988, the DOL conducted multiple
investigations of GMC’s overtime pay practices for its Garage
Attendants.
These investigations found violations of the
overtime pay regulations and in response to a 1993 DOL
investigation GMC agreed to pay back wages to ninety-five Garage
Attendants.
During the course of the 1988 investigation, DOL
investigator Louis B. Vanegas told GMC’s Director of Personnel
7
that Garage Managers were exempt executives.4
At the time of
that statement, Vanegas was 22 years old and an apprentice
investigator responding to a wage complaint by a GMC Parking
Attendant.
The status of GMC’s Garage Managers was not the
central focus of his investigation.
In his internal report of
the 1988 investigation, Vanegas wrote
Blanket overtime exemption given to managers of all
parking garages on the basis that they were paid a
guaranteed salary regardless of hours worked and
their primary duty was management of the garage in
which they worked. Review of mgr’s payroll rec’ds
indicated that they were paid for at least 40 hrs
even when they worked less than 40 hrs, the mgrs
supervised at least 2 FT [full time] employees.
Vanegas is no longer with the DOL and provided a
declaration in support of the defendants’ motion for summary
judgment in which he states, inter alia, that
I found that [GMC] Garage Managers were exempt
executive employees under the FLSA because their
primary duty was management of the garage, they
supervised at least two full time employees, and they
were paid on a salary basis at a sufficient rate. My
conclusions were consistent with the USDOL’s Wage &
Hour Division’s practice concerning the application
of the executive exemption to Garage Managers. I
told GMC representative about my findings concerning
the exempt status of GMC’s Garage Managers.
In his deposition in this action, Vanegas was shown payroll
records and paystubs for Garage Managers and admitted that his
4
Vanegas remained with the DOL for many years and became the
District Director of the New York City Office of the U.S. DOL
Wage and Hour Division. He was deposed in this action.
8
1988 view regarding the exemption may have been wrong and that
he would have to review more records to make a more reliable
assessment.
Section 10 of the Portal-to-Portal Act (“Section 10”)
provides an employer with an affirmative defense based on its
good faith belief that his failure to pay overtime wages
conformed to DOL administrative practice or enforcement policy.
Section 10 provides in pertinent part
[N]o employer shall be subject to any liability or
punishment for or on account of the failure of the
employer to pay minimum wages or overtime
compensation under the [FLSA] if he pleads and proves
that the act or omission complained of was in good
faith in conformity with and in reliance on any
written administrative regulation, order, ruling,
approval, or interpretation, of the [Administrator of
the Wage and Hour Division of the DOL], or any
administrative practice or enforcement policy of [the
Administrator] with respect to the class of employers
to which he belonged. Such a defense, if
established, shall be a bar to the action or
proceeding, notwithstanding that after such act or
omission, such administrative regulation, order,
ruling approval, interpretation, practice, or
enforcement policy is modified or rescinded or is
determined by judicial authority to be invalid or of
no legal effect.
29 U.S.C. § 259(a) (emphasis supplied).
GMC contends that Vanegas’s oral statement to GMC in 1988
to the effect that Garage Managers were exempt provides it with
the good faith defense enacted in Section 10 and completely bars
the FLSA claims in this action.
GMC is wrong.
9
An oral
statement by a DOL field investigator does not, as a matter of
law, constitute an administrative practice or enforcement policy
for purposes of Section 10.
See 29 C.F.R. § 790.13(a) (“In
order to provide a defense . . . a regulation, order, ruling,
approval, or interpretation of the Administrator may be relied
on only if it is in writing.” (emphasis supplied));
Anness v.
United Steelworkers of Am., 707 F.2d 917, 921 (6th Cir. 1983).
Moreover, even if Vanegas’s statement could have triggered the
Section 10 defense, there would remain a question of fact
whether GMC relied in good faith on that statement in its
payroll practices for Garage Managers.
29 C.F.R. § 790.15
(“‘Good faith’ requires the employer have honesty of intention
and no knowledge of circumstances which ought to put him upon
inquiry.”).
II. Bona Fide Executive Exemption; Salary Basis Employees
GMC contends that Garage Managers are properly classified
as bona fide executives.
The plaintiffs assert that Garage
Managers do not qualify for this exemption because the “salary
basis test,” one of the two components of the exemption, cannot
be met here.
The FLSA exempts employees employed in a bona fide
executive capacity from the overtime compensation regulations.
10
29 U.S.C. § 213(a)(1).
An employer bears the burden of proving
that an exemption applies.
Reiseck v. Universal Comm. Of Miami,
Inc., 591 F.3d 101, 104 (2d Cir. 2010).
The New York Labor Law
follows the same standards in this regard as the FLSA.
N.Y.
Comp. Codes R. & Regs. Tit. 12, § 142-3.2 (2011) (“An employer
shall pay an employee for overtime at a wage rate of one and
one-half times the employee’s regular rate in the manner and
methods provided in and subject to the exemptions of . . . the
[FLSA].”).
An employer claiming this exemption must meet both a duties
and a salary basis test.
Reiseck, 591 F.3d at 105.
The salary
basis test provides that
(a) General rule. An employee will be considered to
be paid on a “salary basis” within the meaning of
these regulations if the employee regularly receives
each pay period on a weekly, or less frequent basis,
a predetermined amount constituting all or part of
the employee’s compensation, which amount is not
subject to reduction because of variations in the
quality or quantity of the work performed. Subject
to the exceptions provided in paragraph (b) of this
section, an exempt employee must receive the full
salary for any week in which the employee performs
any work without regard to the number of days or
hours worked.
29 C.F.R. § 541.602 (emphasis supplied).5
5
The current salary basis test is not materially different from
the salary basis test that applied before. 69 F.R. § 22122-01
(Apr. 23, 2004).
11
An employee is not paid on a salary basis if the employer
maintains the discretion to reduce employee wages based upon the
numbers of hours the employee works, and either makes it a
practice to do so or effectively communicates that it will do
so.
Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d
Cir. 2008).
Thus, an employee who can be docked for missing a
fraction of a workday “must be considered an hourly, rather than
a salaried employee.”
Martin v. Malcolm Pirnie, Inc., 949 F.2d
611, 615 (2d Cir. 1991).
The plaintiffs have shown that GMC is not entitled to rely
on the executive exemption in defending against the plaintiffs’
claims in this action.
each month.
Garage Managers did not receive a salary
Instead, their pay was adjusted to reflect the
hours that they had worked during a pay period and regularly
fluctuated because of that calculation.
The defendants contend that the payroll records for the
Garage Managers reflected an hourly rate of pay because the
Collective Bargaining Agreement (“CBA”) required that an hourly
rate of pay be reflected in the payroll records.
Whatever the
CBA required, it remains true that the payroll records reflect
variations in wages based on the number of hours worked during a
pay period.
The defendants do not suggest that these records
are inaccurate.
12
Because of the fluctuations in pay due to the number of
hours a Garage Manager worked, the defendants’ reliance on
McGuire v. City of Portland, 159 F.3d 460, 464 (9th Cir. 1998),
is misplaced.
In McGuire, the salary was not subject to
reduction due to absences from work.
Id.
Next, the defendants point out that GMC consistently used
the term “salary” to describe its compensation of Garage
Managers and several employees have asserted that they became
“salaried” employees once they became Garage Managers.
The use
of this terminology does not raise a question of fact as to how
GMC actually calculated the compensation it paid its Garage
Managers.
The payroll records show that an hourly rate of pay
was applied to the number of hours worked during a pay period to
arrive at a component of the compensation.
III. EC Bonus and Payment of Overtime Compensation
The defendants assert that they are entitled to summary
judgment because, even if it should be determined that GMC was
required to pay Garage Managers overtime compensation, that GMC
did in fact make such payment.
They assert that the EC Bonus
always compensated Garage Managers for at least that amount of
pay to which the Garage Managers were entitled for overtime
work.
Plaintiffs assert that the EC Bonus payments do not
13
constitute overtime pay as a matter of law.
The plaintiffs are
correct.
DOL regulations require the payment of overtime wages to
correspond directly to the number of overtime hours.
They
provide
A premium in the form of a lump sum which is paid for
work performed during overtime hours without regard
to the number of hours worked does not qualify as an
overtime premium even though the amount of money may
be equal to or greater than the sum owed on a per
hour basis. . . . The reason for this is clear. If
the rule were otherwise, an employer desiring to pay
an employee a fixed salary regardless of the number
of hours worked in excess of the applicable maximum
hours standard could merely label as overtime pay a
fixed portion of such salary sufficient to take care
of compensation for the maximum number of hours that
could be worked. The Congressional purpose to
effectuate a maximum hours standard by placing a
penalty upon the performance of excessive overtime
work would thus be defeated. For this reason, where
extra compensation is paid in the form of a lump sum
for work performed in overtime hours, it must be
included in the regular rate and may not be credited
against statutory overtime compensation due.
29 C.F.R. § 778.310; accord Dooley v. Liberty Mut. Ins. Co., 369
F. Supp. 2d 81, 84-85 (D. Mass. 2005).
The EC Bonus payments are lump sum payments that are
regularly made in the same amounts to an individual Garage
Manager.
Since they do not fluctuate based on the number of
overtime hours an employee has worked, they cannot qualify as
overtime payments.
14
The defendants contend that the Garage Managers have waived
the right to assert that the EC Bonus was not a payment for
overtime work since their union was aware of the monthly EC
Bonus payments and agreed that they were an appropriate way to
pay overtime.6
An employee’s rights under the FLSA to overtime
pay may not be waived.
FLSA rights cannot be abridged by contract or
otherwise waived because this would ‘nullify the
purposes’ of the statute and thwart the legislative
policies it was designed to effectuate. Moreover, . .
. congressionally granted FLSA rights take precedence
over conflicting provisions in a collectively
bargained compensation arrangement.
Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728,
740-41 (1981) (citation omitted).
IV. Calculation of Overtime Compensation
The plaintiffs have moved for summary judgment on the
methodology for calculating the payment of overtime
6
In support of this claim, defendants rely on the declaration of
Gordan Hamm, Chief Executive Officer of GMC, who testified that
[t]he Garage Mangers’ union, Local 272, was aware of
the monthly EC payments and agreed that the monthly EC
payments would cover overtime compensation for all
hours worked over 40 hours in a week. In fact, four
former Garage Managers, Joe Mattesi, Matthew
Bruccoleri, Eddie Rivera and Jose Rojas, who worked
for GMC and received EC payments subsequently became
employed at Local 272 as union officials.
15
compensation.
They contend that the EC Bonus payments to Garage
Managers must be included as part of the total remuneration in
calculating the regular rate of pay.
this.
The defendants dispute
The defendants rely on 29 U.S.C. § 207(e)(5) (“Section
207(e)(5)”) to contend that the EC Bonus should not be included
in calculating the regular rate of pay.
Overtime pay is calculated by applying a multiplier of one
and one half to an employee’s “regular rate” of pay.
§ 778.107; 29 U.S.C. § 207(a)(1).
29 C.F.R.
Generally, the regular rate
of pay “is determined by dividing his total remuneration for
employment (except statutory exclusions) in any workweek by the
total number of hours actually worked by him in that workweek
for which such compensation was paid.”
29 C.F.R. § 778.109; 29
U.S.C. § 207(e).
When an employee receives a bonus, that bonus is included
as part of the total remuneration.
29 C.F.R. § 778.110(b).
When a bonus is paid on a monthly basis, then it is apportioned
to the relevant pay periods.
29 C.F.R. § 778.209(a).
The DOL has applied these regulations to GMC in connection
with its investigation of GMC’s practices in paying its Parking
Attendants.
GMC used a bonus system for paying Parking
Attendants that is similar to the EC Bonuses at issue here.
16
In
1991, DOL wrote to GMC and advised it that “the firm failed to
include bonus payment in computing the regular rate.”
As was true for Parking Attendants, the EC Bonus payments
constitute part of the regular pay for the GMC Garage Managers.
Thus, the EC Bonus payments must be apportioned over the pay
periods and included in the calculation of the regular pay.
After the regular pay is determined, then the overtime payments
due to Garage Managers can be properly calculated.
The defendants maintain that under Section 207(e)(5), EC
Bonus payments need not be included in calculating the regular
rate of pay.
Section 207(e)(5) provides that “the regular rate
at which an employee is employed shall be deemed to include all
remuneration” except for
extra compensation provided by a premium rate paid
for certain hours worked by the employee in any day
or workweek because such hours are hours worked in
excess of eight in a day or in excess of the maximum
workweek applicable to such employee under subsection
(a) of this section or in excess of the employee’s
normal working hours or regular working hours, as the
case may be.
29 U.S.C. § 207(e)(5).
DOL regulations describe the premium payments encompassed
by Section 207(e)(5) and properly excluded from the calculation
of the regular rate of pay.
See 29 C.F.R. § 778.207(a); 29
C.F.R. §§ 778.201 through 778.206.
Tellingly, GMC does not
identify which exclusion it believes applies to the EC Bonuses.
17
It has therefore failed to show that Section 207(e)(5) permits
the exclusion of the EC Bonuses from the calculation of regular
pay.
As already explained, EC Bonus payments are a type of
remuneration that the DOL regulations classify as a component of
the regular rate of pay.
V. Compensation for Daily Drop-Offs
The plaintiffs seek summary judgment on the factual finding
that General Managers routinely deliver the daily receipts to
central depots after they “punch-out” for the day and that they
are not paid for this task.
They assert that they have
presented testimony from nine employees of this practice and
contend that that is sufficient to shift the burden to GMC to
prove the precise amount of uncompensated work that was
performed or to show that no such uncompensated work was
performed by an individual employee.
An employee bringing an FLSA action has the burden of
proving that he performed work for which he was not compensated.
Grochowski v. Phoenix Const., 318 F.3d 80, 87 (2d Cir. 2003).
But when an employer does not have accurate records of the hours
that an employee has worked, the employee need only show “that
he has in fact performed work for which he was improperly
compensated.”
Id. at 87-88.
With a showing of the amount and
18
extent of uncompensated work that is sufficient to support a
“just and reasonable inference” of a workplace practice, it is
unnecessary for all employees to testify in order to be
compensated.
Id. (citation omitted).
The testifying plaintiffs
must, however, produce sufficient evidence “to make a reasonable
inference as to the number of hours worked by the non-testifying
employees.”
Id.
See also Reich v. S. New Eng. Telecomm. Corp.,
121 F.3d 58, 67 (2d Cir. 1997).
Where an inference may be properly drawn, the
burden then shifts to the employer to come forward
with evidence of the precise amount of work performed
or with evidence to negative the reasonableness of the
inference to be drawn from the employee’s evidence.
If the employer fails to produce such evidence, the
court may then award damages to the employee, even
though the result be only approximate.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88
(1946).
GMC disputes the plaintiffs’ characterization of the
evidence.
It contends that there has not been a sufficient
showing of a pattern to support the proposed inference and that
in any event the amount of any uncompensated labor would have
been de minimis.
There are questions of fact that remain as to whether
Garage Managers were permitted to drop off the cash and receipts
before “punching out” and whether the depots were so close to
19
the garages that any uncompensated time was in fact de minimis.
The plaintiffs’ motion for summary judgment on this factual
issue is denied.
VI. Richard Chapman’s Status as Employer
Plaintiffs have moved for summary judgment on Richard
Chapman being an employer for purposes of the relevant statutes.
This prong of the motion is uncontested and is granted.
VII. Six Plaintiffs
The defendants move for dismissal of the claims filed by
six of the plaintiffs7 on the ground that they were not employed
during the period defined by the notice of the collective
action, that is, after May 12, 2007.
The plaintiffs agree that
they must be dismissed from this action if they were not
employed after May 12, 2007, but seek confirmation of that fact.
GMC shall provide plaintiffs’ counsel with documentary
confirmation of the dates of employment for these six employees.
Assuming that those records confirm GMC’s representation, the
7
The six plaintiffs are Antonio Cartegena, Van Gibbs, Amed
Aguirre, Gabriel Arcila, Jaime Reyes and Johnny Abreu.
20
parties shall submit the appropriate stipulation to the Court
for dismissal of these claims.
CONCLUSION
Plaintiffs’ motion for summary judgment denying the Garage
Managers status as exempt employees is granted and the
defendants’ motion seeking their exemption is denied.
The
defendants’ summary judgment motion in support of a good faith
defense under Section 10 of the Portal-to-Portal Act is denied.
Plaintiffs’ three motions on the calculation of overtime are
granted: (1) GMC did not pay overtime wages to Garage Managers
prior to mid-April 2010; (2) the EC bonuses are not overtime
wages; and, (3)to calculate overtime pay, the hourly rate must
be increased by apportioning the EC bonus to the hourly rate.
Accordingly, defendants’ motion for a finding that the EC
bonuses were overtime payments is denied.
Both parties’ summary
judgment motions concerning whether the Garage Managers were
paid for the time taken to make the daily drop offs of cash
receipts are denied.
Plaintiffs’ motion for summary judgment on
Richard Chapman being an employer under the relevant statutes is
granted.
And, finally, defendants’ motion for dismissal of six
plaintiffs on the ground that they were not employed during the
notice period is denied without prejudice to renewal after GMC
21
provides plaintiffs
l
counsel with documentary confirmation of
the dates of employment for these six employees.
SO ORDERED:
Dated:
New York New York
August 26, 2011
l
United
22
District Judge
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