Salinas et al v. Starjem Restaurant Corp. et al
Filing
106
OPINION AND ORDER: For the reasons stated, the Court finds that Plaintiffs have proven, by a preponderance of the evidence, that Defendants Starjem and Anthony Scotto violated the FLSA and the NYLL as set forth above. In light of this liability deter mination, the case will now proceed to the damages phase. Accordingly, it is ORDERED that: 1. By September 2, 2015, based upon the Court's findings, Plaintiffs shall submit a detailed proposed order with a calculation of the amount owed to each Plaintiff; 2. By September 16, 2015, Defendants shall submit any opposition; and 3. By September 23, 2015, Plaintiffs shall reply. SO ORDERED. (As further set forth within this Order.) (Signed by Judge Analisa Torres on 8/12/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ENRIQUE SALINAS, ALFREDO RODRIGUEZ,
ANGEL CEDENO, CHRISTIAN URGILES,
FRANCISCO LUGO, JOSE AMEZQUITA, LUIS
ROBALLO, MIGUEL CERVANTES, NAHUN
FLORES, PABLO ALVARADO, PABLO
FRANCISCO-LOPEZ, VALENTIN
XOCHIPILTECATL, and VICENTE LEON,
individually and on behalf of others similarly
situated,
Plaintiffs,
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: _ _ _ _ _ __
DATEFILED: ---"'--'-'-"'--'----"-----
13 Civ. 2992 (AT)
OPINION
AND ORDER
-againstSTARJEM RESTAURANT CORP. (d/b/a
FRESCO BY SCOTTO) MARION SCOTTO
'
'
and ANTHONY SCOTTO,
Defendants.
ANALISA TORRES, District Judge:
I.
Overview
In this action, Plaintiffs, current and former employees of the restaurant known as Fresco
by Scotto, allege that Defendants, Starjem Restaurant Corp. (d/b/a Fresco by Scotto), Marion
Scotto, and Anthony Scotto, violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et
seq., and the New York Labor Law ("NYLL"), §§ 190 and 650 et seq. In particular, Plaintiffs
allege that Defendants: (1) improperly took a tip credit against Plaintiffs' wages; (2) failed to pay
Plaintiffs for all hours worked; (3) failed to provide Plaintiffs written notices and wage
statements compliant with NYLL § 195; (4) wrongly required Plaintiffs to cover the costs of
uniforms and crumbers; and (5) failed to pay Plaintiffs the "spread of hours" premium mandated
by the New York Commissioner of Labor's Minimum Wage Order, codified at N.Y. Comp.
Codes R. & Regs. tit. 12, § 146-1.6.
The Court held a bench trial from December 8 to 16, 2014, to determine Defendants'
liability, 1 if any. 2 Post-trial memoranda were fully submitted on January 28, 2015.
At trial, Plaintiffs called Pablo Alvarado, Jose Amezquita, Miguel Caravantes, Angel
Cedeno, Nahun Flores, Pablo Francisco Lopez, Vicente Leon, Francisco Lugo, Luis Roballo,
Alfredo Rodriguez, Emique Salinas, Christian Urgiles, and Valentin Xochipiltecatl (i.e., the 13
Plaintiffs) as witnesses. Defendants called Natasha Gelman, Anthony Scotto, Marion Scotto, and
Attilio Vosilla. Defendants also submitted excerpts from the deposition of Brent Drill. Plaintiffs
adduced counter-designations from the deposition.
The Court finds the lion's share of Plaintiffs' testimony credible. This determination is
based on the substance of Plaintiffs' testimony and their demeanor at trial. Although there were
some inconsistencies in Plaintiffs' testimony, the Court considers them to be honest errors, not
intentional lies. The Court also finds the testimony of Marion Scotto and, for the most part, that
of Gelman credible. By contrast, the Court finds Anthony Scotto' s and Vosilla' s testimony less
than credible. This determination is likewise based on the substance of their testimony and their
demeanor. Anthony Scotto was a flippant, evasive, and combative witness. See, e.g., Tr.
516: 19-517:5 ("Q. Were those answers [given at your deposition] correct and truthful? A. Yes,
sir. Q. So, your mother had been present at some interviews? A. Possibly I was taking things a
little bit more lackadaisical on this conversation with you, sir. Q. Referring to the conversation
at the deposition? A. Yes, sir. I think I was ... just being a little silly with you, sir. Q. Okay.
And you were under oath at that time, correct? A. Still possibly being silly, sir."); Tr. 536:7-9
1
By order dated August 7, 2014, the Court agreed to defer consideration of damages until after making a liability
determination. ECF No. 49 at 1.
2
At the final pre-trial conference held on December 4, 2014, the parties stipulated that Plaintiffs were paid the
"spread of hours" premium after, but not before, February 2011.
2
("Q. Friday we also discussed the Fresco employee policy guide. Do you recall that? A. Sorry,
sir. Everything is a blur these days."); Tr. 579:8-13 ("Q. Other than your affidavit, is Mr. Vosilla
described in any documents as a maitre d' or service manager? A. I don't know. Q. At your
deposition d[id] you ever refer to him as maitre d'? A. Sir, ifl wasn't getting sued would you
really care what his title was?"). Vosilla was uncommonly reticent and appeared reluctant to
provide testimony adverse to Defendants.
"In an action tried on the facts without a jury ... the court must find the facts specially
and state its conclusions oflaw separately." Fed. R. Civ. P. 52(a)(l). Following are the Court's
findings of fact and conclusions of law.
II.
Findings of Fact
A. The Parties
1. Fresco by Scotto
Fresco by Scotto ("Fresco" or the "Restaurant") is an Italian restaurant located in the
Midtown East neighborhood of Manhattan. The Restaurant is owned and operated by Starjem
Restaurant Corp. ("Starjem"). Tr. 511:12-14.
2. Plaintiffs
a. Pablo Alvarado
Alvarado was employed at Fresco from October 8, 1998 until November 13, 2012. Joint
Stipulation of Fact ("Jt. Stip.")
~
10, Nov. 11, 2014, ECF No. 56. He worked as a runner. Id.
b. Jose Amezquita
Amezquita worked at Fresco from January 1, 2012 until August 27, 2013. Id.
~
6. Over
the course of his employment, Amezquita worked in the following positions: (1) busser; (2)
3
barback; (3) coffee preparer; and (4) stocker. Tr. 429:25-430:7; Amezquita Deel. 19, Pl. Ex.
114.
c. Miguel Caravantes
Caravantes worked at Fresco from September 21, 1999 until February 21, 2013. Jt. Stip.
18. Over the course of his employment, Caravantes worked in the following positions: (1)
busser; (2) barback; (3) coffee preparer; (4) stocker; and (5) runner. Tr. 410:9-22, 417:14-15;
Caravantes Deel. 1 9, Pl. Ex. 113.
d. Angel Cedefio
Cede:fio began working at Fresco on March 1, 2011. Jt. Stip. 13. At the time of trial,
Cedefio was still employed there. Id. Over the course of his employment, Cede:fio has worked in
the following positions: (1) busser; (2) barback; (3) coffee helper; and (4) stocker. Tr. 391:13392:14; Cede:fio Deel. 110, Pl. Ex. 112.
e. Nahun Flores
Flores worked at Fresco from May 1, 1998 until May 1, 2013. Jt. Stip. 1 9. Over the
course of his employment, Flores worked in the following positions: (1) busser; (2) barback; (3)
coffee preparer; (4) stocker; and (5) runner. Id.; Tr. 362:5-363:4; Flores Deel. 110, Pl. Ex. 111.
During his last ten years at Fresco, Flores spent approximately 90 percent of his shifts in the
coffee preparer position. Tr. 362:5-17.
f.
Pablo Francisco Lopez
Francisco Lopez worked at Fresco from November 1, 2007 until January 15, 2012. Jt.
Stip. 111. Over the course of his employment, Francisco Lopez worked in the following
positions: (1) busser; (2) barback; (3) coffee preparer; and (4) stocker. Tr. 279:2-6; Francisco
Lopez Deel. 111, Pl. Ex. 108.
4
g. Vicente Leon
Leon began working at Fresco on January 1, 1999. Jt. Stip.
~
13. At the time of trial,
Leon was still employed there. Id. Over the course of his employment, Leon has worked in the
following positions: (1) busser; (2) barback; (3) coffee helper; (4) coffee preparer; (5) stocker;
and (6) runner. Id; Tr. 478:2-14, 482:23-24, 492:23-24; Leon Deel.~~ 9-11, Pl. Ex. 116.
h. Francisco Lugo
Lugo worked at Fresco from November 1, 2011 until February 7, 2014. Jt. Stip.
~
5.
Over the course of his employment, Lugo worked in the following positions: (1) busser; (2)
barback; (3) coffee helper; and (4) stocker. Tr. 460:10-24, 464:8-9; Lugo
i.
Deel.~
10, Pl. Ex. 115.
Luis Roballo
Roballo worked at Fresco from December 1, 2009 until April 4, 2013. Jt. Stip.
~
7. Over
the course of his employment, Roballo worked in the following positions: (1) busser; (2)
barback; (3) coffee preparer; and (4) stocker. Id.; Tr. 333:25-334:10, 353:11-15; Roballo
Deel.~
11, Pl. Ex. 110.
Alfredo Rodriguez
J.
Rodriguez began working at Fresco on March 1, 2011. Jt. Stip.
~
2. At the time of trial,
Rodriguez was still employed there. Id. Over the course of his employment, Rodriguez has
worked in the following positions: (1) busser; (2) barback; and (3) stocker. Tr. 312:7-20;
Rodriguez Deel.
~
10, Pl. Ex. 109.
k. Enrique Salinas
Salinas worked at Fresco from January 1, 2006 until April 26, 2013. Jt. Stip.
~
1. Over
the course of his employment, Salinas worked in the following positions: (1) busser; (2) barback;
(3) coffee preparer; (4) coffee helper; and (5) stocker. Tr. 11:6-8, 48:7-9, 55:15-19, 70:9-20; Jt.
5
Stip. 11; Salinas Deel. 1110-11, Pl. Ex. 104. Salinas spent 75 to 90 percent of his shifts in the
stocker position. Tr. 70:9-20.
1.
Christian Urgiles
Urgiles worked at Fresco from January 1, 2006 until April 23, 2013. Jt. Stip. 14. Over
the course of his employment, Urgiles worked in the following positions: (1) busser; (2) barback;
(3) coffee preparer; and (4) stocker. Tr. 137:21-23, 179:12-15, 189:4-6; Urgiles Deel. 110, Pl.
Ex. 105.
m. Valentin Xochipiltecatl
Xochipiltecatl worked at Fresco from June 17, 2009 until November 3, 2010. Jt. Stip. 1
12. Over the course of his employment, Xochipiltecatl worked in the following positions: (1)
busser; and (2) stocker. Tr. 261:6-8; Xochipiltecatl Deel. 110, Pl. Ex. 107.
3. Individual Defendants
a. Anthony Scotto
Anthony Scotto is the general manager of Fresco. Tr. 511: 8-11. He is also a shareholder
and the secretary-treasurer of Starjem. Tr. 511:12-512:5; A. Scotto Aff. 13, Def. Ex. K. He is
usually at the Restaurant every day that it is open. A. Scotto Aff.
ii 4.
On weekdays, he is there
from 8:30 a.m. until 10:00 p.m. Id. On Saturdays, he is there for a short period at around 7:00
a.m., and again from 2:00 p.m. until 9:00 p.m. Tr. 512:12-18; A. Scotto Aff. 14. During the
summer, he is often not at the Restaurant on Saturdays. Tr. 514:17-25. As general manager,
Anthony Scotto is responsible for managing the business and running the day-to-day operations.
A. Scotto Aff. 1 3. In particular, he is involved in: (1) hiring employees; (2) disciplining
employees; (3) firing employees; (4) scheduling employees for shifts; (5) determining employee
6
compensation; and (6) maintaining employment records. Tr. 236:10-23, 390:17-19, 409:19410:8, 429:14-17; A. Scotto Aff.
iii! 4-5, 10, 13, 17-18; A. Scotto Supp. Deel. iJ 12, Def. Ex. L.
b. Marion Scotto
Marion Scotto is the chief executive officer, president, and majority shareholder of
Starjem. Tr. 511 :24-512:2, 681: 19-682:2, 682: 14-16; M. Scotto Aff.
iJ 4, Def. Ex. 0.
typically at the Restaurant every day that it is open. Tr. 685:8-12; M. Scotto Aff.
iJ 11.
weekdays, she is there from 12:00 p.m. until 8:00 p.m. or 8:30 p.m. M. Scotto Aff.
She is
On
iJ 11.
Marion
Scotto's main duties include: (1) greeting customers when they arrive at the Restaurant; (2)
helping the host seat customers; (3) checking on customers throughout their meal; and (4)
making arrangements for private parties. Tr. 524:5-10, 685:15-19; M. Scotto Aff.
iii! 7-8, 12. In
performing these duties, Marion Scotto may tell a busser to: (1) reset a table to accommodate
additional or fewer customers; (2) arrange tables in a certain manner for a private party; (3) bring
bread or an appetizer to a customer's table; or (4) clean up a spill or similar mess. Tr. 122:20123:5, 683:22-684:4; M. Scotto Aff.
Cedeno Deel.
iii! 15-16; Amezquita Deel. iJ 36; Caravantes Deel. iJ 47;
iJ 41; Flores Deel. ii 48; Francisco Lopez Deel. iJ 45; Leon Deel. iJ 47; Lugo Deel. iJ
43; Roballo Deel.
iJ 49; Rodriguez Deel. iJ 44; Salinas Deel. ii 48; Urgiles Deel. iJ 48;
Xochipiltecatl Deel.
iJ 39.
It is also "not uncommon" for her to provide one of the two owner
signatures on employees' paychecks. M. Scotto Aff.
iJ 10; accord Tr. 523:18-524:4, 685:13-14.
In addition, Marion Scotto is sometimes involved in hiring hosts and hostesses. Tr. 254: 16-18,
515:20-516:20, 684:5-12; Alvarado Deel. iJ 48, Pl. Ex. 106; Amezquita Deel.
Deel.
iJ 40; Caravantes
ii 51; Cedeno Deel. ii 45; Francisco Lopez Deel. iJ 49; Leon Deel. iJ 51; Urgiles Deel. iJ 52;
Xochipiltecatl Deel.
ii 43.
She is not involved in: (1) hiring any other employees; (2)
disciplining employees; (3) firing employees; (4) scheduling employees for shifts; (5) monitoring
7
employee attendance; or (6) determining employee compensation. M. Scotto Aff.
iiii 4-5,
10, 13-
14, 23.
B. Managers
1. Attilio Vosilla
Vosilla has worked as a manager at Fresco since 1999. Tr. 663 :24-665 :6; Pl. Ex. 74 at
7996 ("Fresco Policy Document" dated October 2007 identifying Vosilla as a "restaurant
manager"). His job duties have remained largely the same since the beginning of his
employment. Tr. 665:2-6, 676:22-24, 679:24-680:7. 3 Vosilla is typically at the Restaurant on
Tuesdays, Wednesdays, Thursdays, Fridays, and Saturdays from 3:00 p.m. or 4:00 p.m. until
12:30 a.m. or 1:00 a.m. Vosilla Aff.
ii 27.
captain." Id.
private parties. Id.
ii 6, Def. Ex. N.
On occasion, Vosilla serves as a "party
A party captain is responsible for overseeing the service for one or more
iiii 28-30.
Vosilla's primary duty, though, is to oversee the dinner service at
the Restaurant, which entails supervising and directing runners, bussers, and waiters and
assisting customers as needed. Id.
Amezquita Deel.
Lopez Deel.
iiii 4, 22, 41; A.
Scotto Deel.
iiii 30-31; Alvarado Deel. ii 73;
ii 62; Caravantes Deel.~ 72; Cedefio Deel. ii 65; Flores Deel. ii 75; Francisco
ii 70; Leon Deel. ii 73; Lugo Deel.~ 72; Roballo Deel. ii 73; Rodriguez Deel. ii 72;
Salinas Deel.
~
7 5; U rgiles Deel.
ii 78; Xochipiltecatl Deel. ii 65.
Since at least 2007, V osilla has
prepared the initial draft of the weekly schedule of employees' shifts, which is submitted to
Anthony Scotto for final approval. Tr. 666:10-667:22, 676:20-21. In connection with this duty,
Vosilla takes into account scheduling requests from employees and is able to authorize shift
swaps between employees after the schedule is posted. Tr. 168:10-172:20, 668:18-669:8;
3
The Court rejects Defendants' claim that Vosilla's job duties and managerial authority changed in January 2013.
See Tr. 561:2-12; 678:13-679:4. Vosilla testified that his duties have "[n]ot [changed] too much" since 1999, Tr.
665:2-6, and that the promotion he received in January 2013 was "in title only," Tr. 679:24-680:7.
8
Alvarado Deel., 75; Amezquita Deel., 64; Caravantes Deel., 74; Cedeno Deel., 67; Flores
Deel., 77; Francisco Lopez Deel., 72; Leon Deel., 75; Lugo Deel., 74; Roballo Deel., 75;
Rodriguez Deel., 74; Salinas Deel., 77; Urgiles Deel., 80; Xochipiltecatl Deel., 67. Vosilla
has also interviewed applicants and made suggestions to Anthony Scotto about whether a
particular applicant should be hired. Tr. 672:12-21, 676:11-16; Pl. Ex. 96 (printout ofVosilla's
Linkedln page, which states that Vosilla "[i]nterview[s] and hire[s] new employees" at Fresco);
Alvarado Deel., 79; Amezquita Deel., 70; Caravantes Deel., 77; Flores Deel., 83; Leon Deel.
, 79; Lugo Deel., 78; Roballo Deel., 80; Rodriguez Deel., 80; Urgiles Deel., 85;
Xochipiltecatl Deel., 70. In addition, Vosilla has: (1) signed employment documents on behalf
of the Restaurant, Tr. 664:22-24, 672:22-674:14; Pl. Ex. 37 ("Employee Reference Guide
Receipt and Acknowledgment" dated July 6, 2007, which Vosilla signed as "Company
Representative"); Pl. Ex. 38 (wage notice dated March 9, 2011, which Vosilla signed as
"Company Representative"); Pl. Ex. 39 (I-9 form dated March 12, 2011, which Vosilla signed as
"Employer or Authorized Representative"); (2) disciplined employees orally and in writing, Tr.
324:13-17, 665:7-666:3; Amezquita Deel., 66; Roballo Deel., 77; Rodriguez Deel., 76; Pl.
Exs. 35, 63 (written disciplinary communications issued by Vosilla); (3) suspended employees,
Tr. 376:23-377:20, 379:10-381:14, 444:11-447:11; Amezquita Deel., 65; Flores Deel., 79; and
(4) fired employees, Tr. 105: 18-106: 14, 122: 14-19, 172:21-178: 10, 324: 18-22, 396: 10-25;
Cedeno Deel., 69; Flores Deel., 80; Rodriguez Deel., 77; Salinas Deel., 79; Urgiles Deel.,
82. 4
4
The Court does not credit Vosilla's claim in his trial affidavit that he lacks "the authority to suspend or terminate
employees ... without getting prior approval from Anthony" and "ha[s] not been involved in the decision to hire,
suspend or terminate any bussers or runners," Vosilla Aff. ~~ 44-45, as these statements contradict: (1) Anthony
Scotto's testimony that Vosilla has the authority to hire and fire employees, Tr. 561 :2-4; (2) Vosilla's testimony that
he has interviewed applicants and made suggestions to Anthony Scotto about whether a particular applicant should
be hired, Tr. 672:12-21; (3) Vosilla's assertion on his Linkedln page that he "[i]nterview[s] and hire[s] new
employees" at Fresco, Pl. Ex. 96; and (4) Plaintiffs' examples ofVosilla wielding disciplinary authority, Tr. 105:18-
9
2. Brent Drill
Drill worked at Fresco from April 2002, Drill Dep. 12:25-13:4, Jan. 6, 2014, until July
25, 2014, A. Scotto Aff., 37. He was hired to work as a waiter, but was promoted to the
position of"floor captain" after less than a year. Drill Dep. 14:16-15:4. By October 2007, Drill
had become a manager. Pl. Ex. 74 at 7996 ("Fresco Policy Document" dated October 2007
identifying Drill as a "restaurant manager"). 5 Drill's primary duty as a manager was to oversee
the lunch service at the Restaurant, which entailed supervising and directing runners, bussers,
and waiters and assisting customers as needed. See Drill Dep. 22:25-23:22, 25:9-13; A. Scotto
Deel.,, 36-37; Alvarado Deel.,, 62, 64-65, 70; Amezquita Deel.,, 50-51, 58; Caravantes
Deel.,, 60-61, 68; Cedeno Deel.,, 54-55, 60; Flores Deel.,, 61-63, 71; Francisco Lopez Deel.
,, 59-61, 66, 68; Leon Deel.,, 62-63, 67; Lugo Deel.,, 57-61; Roballo Deel.,, 59-60, 64, 70;
Rodriguez Deel.,, 58-61, 68; Salinas Deel.,, 62-64, 70; Urgiles Deel.,, 63-66, 73;
Xochipiltecatl Deel.,, 53-54, 61. He also oversaw the dinner service on Mondays. See Drill
Dep. 101: 17-20; Alvarado Deel., 71; Amezquita Deel., 60; Caravantes Deel., 71; Cedeno
Deel. , 63; Flores Deel. , 73; Francisco Lopez Deel. , 67; Leon Deel. , 71; Lugo Deel. , 71,
Roballo Deel., 72; Rodriguez Deel., 71; Salinas Deel., 73; Urgiles Deel., 76; Xochipiltecatl
Deel., 64. In addition, as a manager, Drill: (1) accepted resumes from applicants, asked them
about their availability, invited them to return to the Restaurant for training, and called their
106: 14, 122: 14-19, 172:21-178: 10, 324: 18-22, 376:23-377:20, 379: 10-381: 14, 396: 10-25, 444: 11-447: 11;
Amezquita Deel. 165; Cedeno Deel. 169; Flores Deel. 1179-80; Rodriguez Deel. 177; Salinas Deel. 179; Urgiles
Deel. 182.
5
The Court rejects Defendants' claim that Drill did not take on a managerial role until January 1, 2013, see Tr.
591 :7-9; Drill Dep. 15:24-16:11; A. Scotto Aff. 1~ 36-37, in light of: (1) Fresco's "Policy Document" identifying
Drill as a "restaurant manager" since at least October 2007, Pl. Ex. 74 at 7996; (2) Anthony Scotto's testimony that
in January 2013, Drill's job changed "in title and salary," but "what [Drill] did every day did not change at all," Tr.
591: 16-592: 19; and (3) Plaintiffs' assertions that they understood Drill to be a manager prior to January 2013 and
did not observe any change in Drill's authority or responsibilities in or around January 2013, Tr. 100:16-101:2,
370:3-371:25, 495:13-499:22; Amezquita Deel. 161; Cedeno Deel. 164; Flores Deel. 174; Leon Deel. 172; Salinas
Deel. 174; Urgiles Deel. 177.
10
references, Tr. 121:21-122:13, 156:10-159:18, 272:9-274:6, 541:17-23, 644:4-22; Drill Dep.
43:2-45:14; Francisco Lopez Deel. 9ij 4; Salinas Deel. 9ij 4; Xochipiltecatl Deel. 9ij 4; (2) oversaw
new employee training, Tr. 153:22-154:12, 542:17-20; Amezquita Deel. 9ij 54; Caravantes Deel. 9ij
65; Cedeno Deel. 9ij 58; Flores Deel. 9ij 68; Francisco Lopez Deel. 9ij9ij 5, 63; Leon Deel. 9ij 65; Lugo
Deel. 9ij 64; Roballo Deel. 9ij 67; Rodriguez Deel. 9ij 65; Salinas Deel. 9ij 67; Urgiles Deel.,, 4, 70;
Xochipiltecatl Deel.
iJ 58; (3) gave suggestions to Anthony Scotto about the number of bussers
and runners to schedule per shift, Drill Dep. 37 :2-18; (4) disciplined employees orally and in
writing, Tr. 440:4-444: 10, Drill Dep. 23: 18-22, 36: 11-14, 115: 10-22; Amezquita Deel. 9ij 51;
Flores Deel. 9ij 62; Francisco Lopez Deel., 60; Lugo Deel. 9ij 58; Roballo Deel. 9ij 60; Rodriguez
Deel., 59; Salinas Deel. 9ij 63; Urgiles Deel.,, 64-65; Xochipiltecatl Deel. 9ij 54; (5) suspended
employees, Tr. 164:6-168:9, 323:22-324:12, 373:9-379:7; Drill Dep. 104:18-21; Amezquita
Deel. 9ij 52; Flores Deel. 9ij9ij 65-66; Leon Deel. 9ij 63; Roballo Deel. 9ij 61; Rodriguez Deel. 9ij 63;
Salinas Deel., 66; Urgiles Deel. 9ij 68; Xoehipiltecatl Deel. 9ij 56; and (6) fired employees, Tr.
356:6-357:9, 439:16-440:3, 471:10-472:6,494:8-495:5, 502:25-505:18, 592:20-593:15;
Amezquita Deel., 53; Leon Deel. 9ij 63; Roballo Deel. 9ij 62; Pl. Exs. 36, 59 (written termination
notices signed by Drill).
C. Job Duties
1. Bussers
At Fresco, bussers' main duties include: (1) pouring water for customers; (2) bringing
bread to tables; and (3) clearing and resetting tables. Alvarado Deel., 7; Amezquita Deel. 9i\9il 7,
19; Caravantes Deel. 9ij9ij 8, 19; Cedeno Deel. 9i\9i\ 8, 22; Flores Deel. 9ij9ij 8, 22; Francisco Lopez
Deel. 9ij9ij 9, 22; Leon Deel. 117, 21; Lugo Deel. 118, 22; Roballo Deel. 119, 22; Rodriguez Deel.
11 8, 22; Salinas Deel. 11 8, 22; Urgiles Deel. ,, 8, 22; Xochipiltecatl Deel. 9i\1 8, 20; A. Scotto
11
Aff.
ii 6.
At the beginning of a shift, before the Restaurant opens, bussers perform "side work,"
which includes: (1) folding napkins; (2) placing glasses at their proper stations; (3) filling and
bringing ice buckets to their proper stations; (4) cleaning and polishing bread baskets,
candleholders, pans, sugar bowls, coffee trays, and milk trays; (5) cleaning mirrors, coffee pots,
tea pots, and water pitchers; and (6) sweeping the floor. Amezquita Deel. ii 21; Caravantes Deel.
ii 21; Cedeno Deel. ii 24; Flores Deel. ii 25; Francisco Lopez Deel. ii 24; Leon Deel. ii 24; Lugo
Deel. ii 24; Roballo Deel. ii 25; Rodriguez Deel. ii 24; Salinas Deel.
Xochipiltecatl Deel.
ii 22.
ii 24; Urgiles Deel. ii 24;
This beginning-of-shift side work takes approximately 30 minutes to
complete. Tr. 292:9-11, 295:17-296:3, 416:20-25, 460:25-461:16, 462:2-9; Amezquita Deel. ii
21; Caravantes Deel.
ii 21; Cedefio Deel. ii 24; Flores Deel. ii 25; Francisco Lopez Deel. ii 24;
Leon Deel. ii 24; Lugo Deel.
Urgiles Deel.
ii 24; Roballo Deel. ii 25; Rodriguez Deel. ii 24; Salinas Deel. ii 24;
ii 24; Xochipiltecatl Deel. ii 22.
Bussers also perform side work at the end of their
shifts, which includes: (1) cleaning the busser stations, the area of the kitchen where bread is
made, and the Restaurant's walls; (2) dumping ice buckets at the busser stations; (3) bringing
boxes of water to the bar; (4) sweeping the floor; (5) collecting candleholders; (6) moving tables
and chairs; and (7) removing trash from the bar. Amezquita Deel.
ii 22; Caravantes Deel. ii 22;
Cedefio Deel. ii 25; Flores Deel. ii 26; Francisco Lopez Deel. ii 25; Leon Deel. ii 25; Lugo Deel. ii
25; Roballo Deel.
ii 26; Rodriguez Deel. ii 25; Salinas Deel. ii 25; Urgiles Deel. ii 25;
Xochipiltecatl Deel.
ii 23.
This end-of-shift side work takes approximately 20 minutes to
complete. Tr. 295:14-296:8; Amezquita Deel. ii 21; Caravantes Deel. ii 21; Cedefio Deel.
Flores Deel. ii 25; Leon Deel.
ii 24;
ii 24; Lugo Deel. ii 24; Roballo Deel. ii 25; Rodriguez Deel. ii 24;
Salinas Deel. ii 24; Urgiles Deel. ii 24; Xochipiltecatl Deel.
ii 22.
In addition, bussers routinely
perform the following tasks throughout their shifts: (1) cleaning the Restaurant's walls and the
12
photographs and paintings hanging on the walls; (2) stocking goods delivered from vendors; (3)
sweeping rugs and carpets; and (4) bringing dishes, chairs, tables, and room dividers between the
main dining area and the party rooms. Amezquita Deel., 20; Caravantes Deel., 20; Cedefio
Deel., 23; Flores Deel., 24; Francisco Lopez Deel., 23; Leon Deel., 23; Lugo Deel., 23;
Roballo Deel., 23; Rodriguez Deel., 23; Salinas Deel., 23; Urgiles Deel., 23; Xochipiltecatl
Deel., 21. These tasks take approximately 30 minutes to complete. Amezquita Deel., 20;
Caravantes Deel., 20; Cedefio Deel., 23; Flores Deel., 24; Francisco Lopez Deel., 23; Leon
Deel., 23; Lugo Deel., 23; Roballo Deel., 23; Rodriguez Deel., 23; Salinas Deel., 23;
Urgiles Deel. , 23; Xochipiltecatl Deel. , 21.
2. Runners
Runners' primary duty is to bring food from the kitchen to customers in the dining area.
Alvarado Deel., 9; Caravantes Deel., 23; A. Scotto Aff., 7. At the beginning of their shifts,
before the Restaurant opens, runners perform side work, which includes: (1) weighing pasta; (2)
plucking basil leaves; (3) cutting lemons; (4) preparing artichokes for calamari; (5) setting up
plates with artichokes and penne gratin; (6) cleaning dishes, containers, and bread baskets; (7)
separating doilies to put on plates; (8) folding napkins; and (9) cutting linens to use for polishing
dishes, silverware, and glasses. Alvarado Deel., 13; Caravantes Deel., 24. This beginning-ofshift side work takes approximately 15 to 20 minutes to complete. Alvarado Deel. , 13.
Runners also perform side work at the end of the lunch shift, which includes: (1) "turning in"
plates from the dishwasher station; and (2) preparing artichokes for penne gratin. Id. , 15. This
end-of-shift side work takes approximately five to 10 minutes to complete. Id. In addition,
runners routinely perform the following tasks throughout their shifts: (1) cleaning the
Restaurant's walls and doors; (2) cutting rags for polishing silverware; and (3) making cookies.
13
Alvarado Deel.~ 11; Caravantes Deel.~ 24. These tasks take approximately 30 to 60 minutes to
complete. Alvarado Deel.
~
11.
3. Barbacks 6
Barbacks' duties include: (1) clearing and resetting tables in the bar area; (2) bringing ice,
boxes of water, boxes of liquor, silverware, and glasses to the bar; (3) preparing non-alcoholic
drinks (i.e., soda and water); (4) serving house wine; (5) washing glasses; (6) cleaning bottles,
mirrors, windows, and the bar area; and (7) sweeping the sidewalk in front of the Restaurant. Tr.
55:15-56:4, 146:23-152:13, 192:21-196:10, 306:16-308:15, 312:19-315:20, 353:11-354:1;
Amezquita Deel.~ 25; Cedefio
Deel.
~
29; Lugo Deel.
~~
Deel.~
27; Flores
28-29; Roballo
Deel.~
Deel.~
31; Francisco Lopez Deel.~ 28; Leon
30; Rodriguez Deel.
~~
28-29; Urgiles Deel.
~
28; Vosilla Aff. ~ 16. 7
4. Stockers
Stockers' main duties include: (1) cleaning, polishing, and drying glasses, dishes, and
silverware; (2) bringing these items from the kitchen to the stocking stations; (3) cleaning the
stocker stations; (4) laying down small carpets; (5) cutting rags for polishing glasses, dishes, and
silverware; and (6) sweeping the sidewalk in front of the Restaurant. Alvarado
Amezquita Deel.~~ 13-14; Caravantes
15-16; Francisco Lopez Deel.
~~
Deel.~~
14-15; Cedefio
16-17; Leon Deel.
~~
Deel.~~
Deel.~
14-16; Flores
14-15; Lugo Deel.
~~
24;
Deel.~~
15-16; Roballo
6
The barback, stocker, and coffee preparer positions are assignments rotated among the bussers. Tr. 48:7-12, 333:210, 410: 12-20, 460: 13-21; Alvarado Deel. if 6; Amezquita Deel. if 6; Caravantes Deel. if 7; Cedeno Deel. if 7; Flores
Deel. if 7; Francisco Lopez Deel. if 8; Leon Deel.~ 6; Lugo Deel. if 7; Roballo Deel. if 8; Rodriguez Deel. if 7;
Salinas Deel. if 7; Urgiles Deel. if 7; Xochipiltecatl Deel. if 7; Vosilla Aff. iii! 15-16.
7
None of the witnesses testified as to the precise amount of time that barbacks spend performing each of these tasks.
Roballo and Urgiles, however, provided estimates about the total amount of time they spent doing traditional busser
duties when they worked as barbacks. Roballo Deel. if 30 ("I would spend approximately half my time doing
regular busser duties, and half my time doing duties specific to [barbacks]. "); Urgiles Deel. if 28 ("I ... would have
to clear and set tables in the bar area, and that would be approximately one hour of my shift as a [barback]. I spent
more time doing the other jobs as a [barback] than I did clearing and setting tables."); accord Tr. 189: 14-190:2,
195 :4-8, 353:23-354:1.
14
Deel. 1116-17; Rodriguez Deel. 1115-16; Salinas Deel. 1115-16; Urgiles Deel. 1115-16;
Xochipiltecatl Deel. 1114-15; see also Tr. 612:10-14, 670:3-7. At times, stockers are also
required to wash dishes. Amezquita Deel. 115; Cedeno Deel. 117; Flores Deel. 117; Francisco
Lopez Deel. 118; Leon Deel. 116; Lugo Deel. 117; Roballo Deel. 118; Rodriguez Deel. 117;
Salinas Deel. 117; Urgiles Deel. 117; Xochipiltecatl Deel. 116. In addition, stockers are
sporadically ordered by the chef to "run" food to customers (i.e., to carry food from the kitchen
to tables). Tr. 23:9-19, 33:5-34:11, 315:21-23, 335:11-19, 414:2-415:13; Amezquita Deel. 117;
Caravantes Deel. 116; Cedeno Deel. 118; Flores Deel. 119; Francisco Lopez Deel. 119; Leon
Deel. 118; Lugo Deel. 119; Roballo Deel. 119; Rodriguez Deel. 119; Salinas Deel. 1118-19;
Urgiles Deel. 1 19; Xochipiltecatl Deel. 1 17. However, when this occurs during a shift, stockers
spend no more than approximately five to 15 minutes running food. Tr. 116:16-117:5, 335:1519, 415:14-22; Amezquita Deel. 117; Caravantes Deel. 116; Cedeno Deel. 118; Flores Deel. 1
19; Francisco Lopez Deel. 119; Leon Deel. 118; Lugo Deel. 119; Roballo Deel. 119;
Rodriguez Deel. 1 19; Salinas Deel. 1 19. 8
5. Coffee Preparer
The coffee preparer's primary duty is to make coffee and tea. Alvarado Deel. 129;
Amezquita Deel. 123; Caravantes Deel., 26; Cedeno Deel. 126; Flores Deel. 128; Francisco
8
The Court does not credit Anthony Scotto's and Vosilla's claims that stockers run bread and appetizers to
customers for the first hour or so of the lunch and dinner service. See A. Scotto Aff., 25; Vosilla Aff., 15. As an
initial matter, these claims are at odds with Anthony Scotto's prior statements. During his deposition, when
prompted with questions about the amount of time stockers spend running food, Anthony Scotto did not mention
anything about stockers running bread and appetizers for the first hour or so of the service and could not provide an
estimate of the amount of time stockers spend running food. Tr. 613:1-614:13. Moreover, Fresco typically
schedules only one stocker per shift. E.g., Urgiles Deel.,, 11-14; A. Scotto Aff. ,, 21, 24; Vosilla Aff., 15; see
also Pl. Ex. 26 (weekly shift schedules); Pl. Ex. 92 (sample floor map); Def. Ex. A (weekly shift schedules). By
contrast, Fresco typically schedules two or three runners per shift, Tr. 208 :24-209:2; A. Scotto Aff. if 21, and five to
seven bussers per shift, see PI. Exs. 26, 92; Def. Ex. A. The Court finds it unbelievable that with these runners and
bussers on hand, the Restaurant nonetheless requires the assigned stocker to divert his attention from his main
duties-for which he is solely responsible-and spend at least an hour running food. For the same reasons, the
Court rejects as not credible Anthony Scotto's contention that a stocker spends half of his shift running food, serving
coffee, and clearing and resetting tables. See Tr. 612: 18-25, 614: 14-17; A. Scotto Supp. Deel. if 11.
15
Lopez Deel., 26; Leon Deel., 27; Lugo Deel., 26; Roballo Deel., 27; Rodriguez Deel., 26;
Salinas Deel., 26; Urgiles Deel., 26; Xochipiltecatl Deel., 24. Additional responsibilities
include: (1) bringing cups, glasses, ice, milk, and assorted ingredients to the coffee station; (2)
cutting lemons, bread, and butter; and (3) filling sugar containers. Tr. 137:24-138:2, 138:21139: 11; Amezquita Deel., 24; Flores Deel., 28; Francisco Lopez Deel., 26; Leon Deel., 27;
Lugo Deel., 26; Roballo Deel., 27; Rodriguez Deel., 26; Salinas Deel., 26; Urgiles Deel.,
26. The coffee station (i.e., where the coffee preparer makes the drinks) is located in the kitchen.
Pl. Ex. 120 (photograph of coffee station); see also Tr. 14:3-8, 626:4-15. With respect to the
preparation of coffee and tea and the delivery of those beverages to customers, the Court adopts
the majority of Plaintiffs' version of the facts. During the dinner shift, the coffee preparer, as the
only employee assigned to the coffee station, not only makes coffee and tea, but also delivers
these drinks to customers. Tr. 365:15-17; Amezquita Deel., 24; Flores Deel., 29; Francisco
Lopez Deel., 27; Leon Deel., 27; Lugo Deel., 27; Roballo Deel., 28; Rodriguez Deel., 27;
Salinas Deel., 28; Urgiles Deel., 27. During the lunch shift, by contrast, the coffee preparer is
often assisted by a designated coffee helper. Tr. 18:14-19:1, 141:7-12, 305:23-306:15, 363:5365: 17; Amezquita Deel., 24; Cedeno Deel., 26; Flores Deel., 29; Francisco Lopez Deel.,
27; Leon Deel., 27; Lugo Deel., 27; Roballo Deel., 28; Rodriguez Deel., 27; Salinas Deel.,
28; Urgiles Deel., 27. 9 When this occurs, the coffee preparer spends almost all of his time at the
coffee station making coffee and tea, while the coffee helper delivers the drinks to customers.
Tr. 48:22-49:3, 50:15-51:1, 53:18-23, 54:4-55:1, 119:5-120:8, 142:8-146:5, 363:5-14, 365:24-
9
The Court acknowledges that Francisco Lopez responded affirmatively when asked whether it is "true that a coffee
helper is only assigned during especially busy shifts, like during November and December." Tr. 306:13-15.
However, he also testified that the coffee helper is assigned during "most" lunch shifts. Tr. 305:23-306: 12.
Moreover, Francisco Lopez stated in his trial declaration that the coffee preparer is assisted by the coffee helper
"[o]n many lunch shifts." Francisco Lopez Deel.~ 28. The Court credits this broader account, which is
corroborated by the other Plaintiffs' testimony.
16
366: 19; Amezquita Deel.
27; Leon Deel.
if 27;
28; Urgiles Deel.
if 24; Cedeno Deel. if 26; Flores Deel. if 29; Francisco Lopez Deel. if
Lugo Deel.
if 27.
if 27; Roballo Deel. if 28; Rodriguez Deel. if 27; Salinas Deel. if
The coffee preparer spends no more than a few minutes delivering drinks
to customers when he has a helper. Tr. 365:24-366:19. In addition, the coffee preparer is
sporadically ordered by the chef to run food to customers. Tr. 20:5-21:18, 32:22-24, 55:2-14,
188:19-25, 221:21-222:13. However, when this occurs during a shift, the coffee preparer spends ,
less than 10 minutes running food. Tr. 117:6-9.
D. Hours Worked
1. Before June 26, 2011
Prior to June 26, 2011, Fresco used a "shift pay concept" under which Plaintiffs were
compensated for "a set number of hours depending on whether they worked a lunch or dinner
shift." A. Scotto Aff.
if 13; see also infra note
10. Thus, Defendants did not track the exact
hours that Plaintiffs worked. Defendants did, however, keep records of Plaintiffs' shifts. See Pl.
Ex. 26 (weekly shift schedules); Pl. Ex. 77 ("Busboy Calculation Sheets"); Def. Ex. A (weekly
shift schedules). Neither Plaintiffs nor Defendants contest the accuracy of these records.
Accordingly, the Court accepts these records as correct for the purpose of determining the shifts
that Plaintiffs worked prior to June 26, 2011.
In the absence of records detailing their exact hours, Plaintiffs provided estimates of the
length of their shifts. Plaintiffs asserted that prior to June 26, 2011, a busser's: (1) lunch shift
typically lasted five and a half hours, Tr. 57: 10-59:4, 64:8-21, 130:21-131 :4; Caravantes Deel.
30; Cedeno Deel.
Deel.
if
if 30; Flores Deel. if 35; Francisco Lopez Deel. if 32; Leon Deel. if 34; Roballo
if 33; Rodriguez Deel. if 32; Salinas Deel. if 31; Urgiles Deel. if 31; Xochipiltecatl Deel. if
28; (2) weekday dinner shift typically lasted seven and a half hours, Caravantes Deel.
17
if 31;
Flores Deel., 36; Francisco Lopez Deel., 33; Leon Deel., 33; Roballo Deel., 34; Rodriguez
Deel., 33; Salinas Deel., 32; Urgiles Deel., 32; Xochipiltecatl Deel., 29; and (3) Saturday
dinner shift typically lasted eight and a half hours, Roballo Deel., 35; Rodriguez Deel., 34;
Salinas Deel., 33; Urgiles Deel., 34. Alvarado, the only Plaintiff who regularly worked as a
runner prior to June 26, 2011, estimated that his lunch shift typically lasted four and a half or
four and three quarters hours and his dinner shift typically lasted six and a half hours. Tr.
228:15-232:16; Alvarado Deel.,, 31-32.
Defendants contend that Plaintiffs' estimates should not be credited because they exceed
the average length of shifts after June 26, 2011 (i.e., when Fresco implemented a time clock
system, see infra Section II.D.2). Plaintiffs, by contrast, claim that the average length of shifts
decreased markedly after this date. See Tr. 59:2-71:5,130:21-137:20, 232:6-24, 254:6-14,
254:24-255:11, 296:9-297:3, 346:15-348:1, 360:22-361:15, 486:11-487:25. The Court credits
Plaintiffs and finds that the hours that Plaintiffs worked after June 26, 2011 are not coextensive
with the hours that Plaintiffs worked prior to June 26, 2011. Moreover, Plaintiffs' estimates
regarding the lunch shift are consistent with the number of hours for which bussers and runners
were compensated prior to June 26, 2011. See infra Section II.E.3.a. And Plaintiffs' estimates
regarding the dinner shift are consistent with the Restaurant's hours of operation. See, e.g.,
Vosilla Aff., 6 (noting that Fresco's "kitchen closes by 11 PM and the guests are usually gone
by that time"). Defendants have thus failed to "negative the reasonableness" of Plaintiffs'
estimates. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946); see also infra
Section III.C. Accordingly, the Court accepts Plaintiffs' estimates for the purpose of
determining the amount of uncompensated work, if any, that Plaintiffs performed prior to June
26, 2011.
18
2. After June 26, 2011
On June 26, 2011, the Restaurant implemented a punch-in-punch-out time clock
system. 10 Tr. 597:18-24, 610:5-19, 658:2-5; A. Scotto Aff. 1113, 15; Alvarado Deel. 1134, 39,
41; Amezquita Deel. 1128, 31; Caravantes Deel. 1133, 38, 42; Cedefio Deel. 1134-36; Flores
Deel. 1141, 43; Francisco Lopez Deel. 1134, 41; Leon Deel. 1139, 41; Lugo Deel. 1135, 38;
Roballo Deel. 1136, 41; Rodriguez Deel. 1137, 40; Salinas Deel. 1139, 41; Urgiles Deel. 1135,
40, 42. Thus, Plaintiffs' hours have been recorded in the time clock system-which generates
"punch reports," Pl. Exs. 13-24-since that time. Neither Plaintiffs nor Defendants contest the
accuracy of the "in" and "out" times listed on the punch reports. Accordingly, the Court accepts
this information as correct for the purpose of calculating the hours that Plaintiffs worked after
June 26, 2011. 11 Plaintiffs do, however, challenge the accuracy of the figures listed in the "total"
column on the punch reports. Specifically, Plaintiffs contend that the figure listed in the "total"
column is approximately 19 minutes less than the actual amount of time between the recorded
"in" and "out" times. A review of the punch reports verifies Plaintiffs' claim as of the dinner
shift on July 1, 2011. Pl. Ex. 24 at 1776; see also generally PI. Exs. 13-24. Moreover, at trial,
Anthony Scotto admitted this miscalculation and explained that it was the result of a flaw in the
time clock system. See Tr. 611:16-612:6. The Court, therefore, concludes that, beginning with
10
Although it appears that some Plaintiffs began punching in and out as early as June 11, 20I l, see Pl. Exs. 13, I5I 7, 2 I-24, Fresco's records show that the Restaurant continued to use "shift pay" until June 25, 20 I I, see Pl. Ex. 76
at 4604-I5 (ADP "Payroll Worksheet" for week ending June 25, 20I l); Pl. Ex. 77 at 46I 7 ("Busboy Calculation
Sheet" for week ending June 25, 201 I). It was not until June 27, 201 I that the Restaurant began to compensate
Plaintiffs based on the hours recorded in the time clock system. See Pl. Ex. 76 at 4564-76 (ADP "Payroll
Worksheet" for week ending July 2, 20I I); Pl. Ex. 77 at 4578 ("Busboy Calculation Sheet" for week ending July 2,
20 l I). Therefore, the Court finds that June 26, 20 l I marks the dividing line between the "shift pay" and "time
clock" eras at Fresco.
11
Because the documentary evidence indicates that the Restaurant did not begin compensating Plaintiffs based on
the hours recorded in the time clock system until June 27, 20 I l, see supra note I 0, the Court disregards the pre-June
27, 2011 entries.
19
the dinner shift on July 1, 2011, the figures listed in the "total" column on the punch reports
undercount the length of Plaintiffs' shifts by approximately 19 minutes.
In addition, Leon, Roballo, and Urgiles claim that the punch reports do not show all of
the hours that they worked because they were directed by Drill to not punch in for several shifts.
Tr. 161 :25-164:3; Leon Deel., 43; Roballo Deel., 44; Urgiles Deel., 45. Fresco's records
support these claims. For example, the "Busboy Calculation Sheet" for the week ending
December 29, 2012 notes that Urgiles received $181 in tips for a dinner shift on December 24,
2012. Pl. Ex. 77 at 9009. Urgiles' punch report, however, does not indicate that he punched in
or out on that date. Pl. Ex. 24 at 1781. The Court, therefore, credits Leon, Roballo, and Urgiles'
testimony that they worked hours beyond those recorded in the time clock system.
3. Family Meal
Fresco serves a "family meal" for employees during both the lunch and dinner shift. Jt.
Stip., 15. This has been the Restaurant's practice before and after June 26, 2011. The family
meal is scheduled at fixed times-from 10:30 a.m. until 11 :00 a.m. for the lunch shift and from
4:30 p.m. until 5:00 p.m. for the dinner shift. Id. No work is performed during family meals, Tr.
87:12-22, 223:16-224:6, 462:13-17; A. Scotto Deel., 42; Vosilla Deel., 11, and employees are
permitted to leave the Restaurant if they choose, Tr. 87:23-24, 224:7-227:1; A. Scotto Deel., 44;
Vosilla Deel. , 11.
E. Compensation
1. Wages
From May 2007 until July 24, 2009, Plaintiffs then-employed at Fresco were generally 12
12
The Court uses the term "generally" because Plaintiffs' "Employee Earnings Records" indicate that certain
Plaintiffs were paid at higher rates for a number of weeks. See Pl. Exs. 1-12. Neither Plaintiffs nor Defendants
challenge the accuracy of these records. Accordingly, the Court finds that they correctly state Plaintiffs' pay rates.
20
paid wages at the rate of $4.60 per hour. Alvarado Deel.~ 35; Caravantes Deel.~ 34; Flores
Deel.~
37; Francisco Lopez Deel.~ 37; Leon
Xochipiltecatl Deel.
~
Deel.~
35; Salinas Deel.~ 35; Urgiles
Deel.~
36;
31; see also Pl. Exs. 1-12 (Plaintiffs' "Employee Earnings Records").
From July 25, 2009 until January 7, 2011, Plaintiffs then-employed at Fresco were generally paid
wages at the rate of $4.65 per hour. Alvarado
Deel.~
36; Caravantes Deel.~ 35; Flores
38; Francisco Lopez Deel.~ 38; Leon Deel.~ 36; Roballo
Deel.
~
37; Xochipiltecatl Deel.
~
36; Cedefio Deel.~ 32; Flores Deel.
36; Roballo
Deel.~
38; Salinas Deel.~ 36; Urgiles
32; see also Pl. Exs. 1-12. Beginning on January 8, 2011, this
rate increased to $5.00 per hour. Alvarado
Deel.~
Deel.~
Deel.~
~
Deel.~
38; Amezquita Deel.~ 29; Caravantes Deel.~
39; Francisco Lopez Deel.~ 39; Leon Deel.~ 37; Lugo
39; Rodriguez Deel.~ 35; Salinas Deel.~ 37; Urgiles
Deel.~
38; see
also Pl. Exs. 1-12.
2. Tips
Plaintiffs were also compensated in tips. Specifically, Plaintiffs participated in the
Restaurant's "tip pool," whereby tips received from customers during a shift are distributed
amongst the bussers, barbacks, stockers, the coffee preparer, runners, waiters, and the floor
captain pursuant to a point-based system. Alvarado
Caravantes Deel.~~ 53-54; Cedefio
Deel.~~
~~
51-52; Leon Deel.~~ 54-55; Lugo
~~
50-51; Salinas
Deel.~~
Deel.~~
51-52; Amezquita Deel.~~ 42-43;
47-48; Flores Deel.~~ 53-54; Francisco Lopez Deel.
Deel.~~
49-50; Roballo
Deel.~~
50-51; Rodriguez Deel.
54-55; Urgiles Deel.~~ 54-55; Xochipilteeatl Deel.~~ 45-46. The tip
pool participants are assigned the following points: (1) 0.5 points for bussers, barbacks, and
stockers; (2) 0.6 points for the coffee preparer; (3) 0.75 points for runners; (4) 1.0 point for
waiters; and (5) 0.5 or 1.5 points for the floor captain. Tr. 387:11-22; A. Scotto Aff.
~
8; Pl. Ex.
79 ("Tip Out Work Sheets"). Drill participated in the tip pool until December 31, 2012. Jt. Stip.
21
ii 17.
Vosilla never participated. A. Scotto Aff. ,-r 33. However, prior to June 2011, Vosilla did
receive 15 percent of the 20 percent service charge imposed on private parties (i.e., three percent
of the bill), Jt. Stip. ,-r 16, when he served as a party captain. Tr. 670:19-24; Vosilla Aff. ,-r,-r 3233; A. Scotto Deel.
,-r 34. The remaining 85 percent of the service charge (i.e., 17 percent of the
bill) went into the tip pool. Jt. Stip. ,-r 16. Since June 2011, Fresco has imposed a 17 percent
charge for gratuity and a three percent "administration fee" on private parties. Vosilla Aff. ,-r 31;
see also A. Scotto Aff. Ex. 1-J (private party receipt indicating a "SUBTOTAL" of $2,898.00, an
"Admin" fee of $85.89, and a "GRATUITY" of$486.71). The 17 percent charge goes into the
tip pool, whereas the administration fee goes to the party captain. Tr. 670:25-671 :4; Vosilla Aff.
,-r 31; see also M. Scotto Aff. Ex. 3-A (Fresco private party confirmation forms stating, inter alia,
that: (1) "1 7% of the food and beverage cost will be added to your account as a gratuity and will
be fully distributed to the members of the service staff'; (2) "3% of the food and beverage cost
will be added to your account as a[ n] administration fee used to offset costs associated with the
administration of the party"; and (3) "[t]his 3% is not a gratuity and will not be distributed to
members of the service staff'). Vosilla receives the three percent administration fee when he
serves as a party captain. Vosilla Aff. ,-r 33; A. Scotto Aff. ,-r 34.
3. Hours
a.
Before June 26, 2011
From January 2007 until November 8, 2008, the Restaurant paid bussers and runners for
five and a half hours of work for lunch shifts and seven hours of work for dinner shifts. Gelman
Aff. ,-r 33, Def. Ex. M; Pl. Ex. 76 at 1293-1326 (ADP "Payroll Worksheet" for week ending
November 8, 2008); Pl. Ex. 77 at 1307 ("Busboy Calculation Sheet" for week ending November
8, 2008). From November 10, 2008 until January 10, 2009, the Restaurant paid bussers and
22
runners for five hours of work for lunch shifts and six hours of work for dinner shifts. Pl. Ex. 76
at 2282-93, 2498-2511 (ADP "Payroll Worksheet" for weeks ending November 15, 2008 and
January 10, 2009); Pl. Ex. 77 at 2280, 2514 ("Busboy Calculation Sheet" for weeks ending
November 15, 2008 and January 10, 2009). From January 12, 2009 until December 4, 2010, the
Restaurant paid bussers and runners for five hours of work for both lunch and dinner shifts. Tr.
654: 17-20; Gelman Aff.
iii\ 34-35; Pl. Ex. 76 at 2254-65, 5435-46 (ADP "Payroll Worksheet" for
weeks ending January 17, 2009 and December 4, 201 O); Pl. Ex. 77 at 2268, 544 7 ("Busboy
Calculation Sheet" for weeks ending January 17, 2009 and December 4, 2010). From December
6, 2010 until June 25, 2011, the Restaurant paid bussers and runners for five hours of work for
lunch shifts and six hours of work for dinner shifts. Gelman Aff.
ii 35; Pl. Ex. 76 at 4604-15,
5408-19 (ADP "Payroll Worksheet" for weeks ending December 11, 2010 and June 25, 2011);
Pl. Ex. 77 at 4617, 5420 ("Busboy Calculation Sheet" for weeks ending December 11, 2010 and
June 25, 2011).
However, the Restaurant did not always adhere to this compensation scheme. In
particular, the Restaurant never compensated bussers and runners for more than 40 hours of work
in a given week. For example, during the week ending May 3, 2008, Caravantes worked four
lunch shifts and four dinner shifts, Flores worked two lunch shifts and six dinner shifts,
Francisco Lopez worked three lunch shifts and four dinner shifts, and Salinas worked four lunch
shifts and three dinner shifts. Pl. Ex. 77 at 903 ("Busboy Calculation Sheet" for week ending
May 3, 2008). In accordance with Fresco's compensation scheme, Caravantes, Flores, Francisco
Lopez, and Salinas should have been paid for 50, 53, 44.5, and 43 hours of work, respectively.
Instead, they were each paid for 40 hours of work. Pl. Ex. 76 at 894-902 (ADP "Payroll
Worksheet" for week ending May 3, 2008). Likewise, during the week ending December 13,
23
2008, Salinas worked five lunch shifts and six dinner shifts. Pl. Ex. 77 at 2399 ("Busboy
Calculation Sheet" for week ending December 13, 2008). Thus, he should have been paid for 61
hours of work. Instead, he was paid for 40 hours of work. Pl. Ex. 76 at 2385-97 (ADP "Payroll
Worksheet" for week ending December 13, 2008). During the week ending October 2, 2010,
Flores worked three lunch shifts and six dinner shifts, and Roballo worked four lunch shifts and
five dinner shifts. Pl. Ex. 77 at 3834 ("Busboy Calculation Sheet" for week ending October 2,
2010). Therefore, they should have each been paid for 45 hours of work. Instead, they were
paid for 40 hours of work. Pl. Ex. 76 at 3822-33 (ADP "Payroll Worksheet" for week ending
October 2, 2010). During the week ending February 12, 2011, Caravantes worked five lunch
shifts and five dinner shifts. Pl. Ex. 77 at 5178 ("Busboy Calculation Sheet" for week ending
February 12, 2011). Under Fresco's compensation scheme, he should have been paid for 55
hours of work. Instead, he was paid for 40 hours of work. Pl. Ex. 76 at 5163-76 (ADP "Payroll
Worksheet" for week ending February 12, 2011). At trial, Natasha Gelman, Fresco's
bookkeeper, testified that the Restaurant did not always adhere to its purported compensation
scheme because Anthony Scotto instructed Gelman to pay bussers and runners for 40 hours of
work even when they worked eight or more shifts in a week. Tr. 657:2-11, 659:23-660:18. 13
b. After June 26, 2011
Since June 2 7, 2011, Fresco has paid bussers and runners based on the hours recorded in
the time clock system. Specifically, the Restaurant compensates employees each week for the
total amount of time listed on the weekly payroll report. Tr. 658:2-659:18. Like the punch
13
Gelman also testified that the Restaurant "usually pa[ id] 40 hours" even when a busser or runner worked only four
or five shifts in a week. Tr. 655:18-22, 660:2-8. Fresco's records, however, undermine this testimony. See
generally Pl. Ex. 76 (ADP "Payroll Worksheets"); Pl. Ex. 77 ("Busboy Calculation Sheets"). The records also
discredit Anthony Scotto' s testimony that if an employee was not paid for all shifts worked in a given week, that
employee would be paid extra (i.e., in the amount previously unpaid) the following week. See Tr. 604: 13-15,
608: 17-609: 11.
24
reports, the weekly payroll reports accurately reflect employees' "in" and "out" times, but, as of
the dinner shift on July 1, 2011, undercount the length of employees' shifts by approximately 19
minutes. See generally Pl. Ex. 78 (weekly payroll reports). On occasion, the Restaurant has also
paid bussers and runners for shifts worked without punching in-namely, where the "Busboy
Calculation Sheet" notes that an employee received tips for a shift but neither the punch report
nor weekly payroll report shows any recorded time. Tr. 661 :24-662:9; see also Gelman Aff. ,-r,-r
13, 17-19. For example, Urgiles' punch report and the weekly payroll report for the week ending
December 29, 2012 indicate that Urgiles only worked a 4.37-hour lunch shift on December 28,
2012. Pl. Ex. 24 at 1781; Pl. Ex. 78 at 9043. The "Busboy Calculation Sheet" for that week,
however, notes that Urgiles received $181 in tips for a dinner shift on December 24, 2012. Pl.
Ex. 77 at 9009. And, as reflected on the "Payroll Worksheet," the dinner shift was taken into
account because Fresco paid Urgiles for 12.54 hours of work for the week. Pl. Ex. 76 at 9004
(ADP "Payroll Worksheet" for week ending December 29, 2012).
F. Notice
1. Compensation Discussions
Anthony Scotto claims in his trial affidavit that he "meet[s] with all new hires to explain
how much and how often they will be paid by the [R]estaurant" and that, in doing so, he
"explain[ s] how the tipped minimum wage rate works, i.e., that they will be paid additional
makeup pay if they do not earn enough tips." A. Scotto Aff. ,-r 9. With the exception of
Amezquita, 14 each Plaintiff states in his trial declaration that "[w ]hen [he] was hired[,] no one
discussed with [him] what [his] pay would be, and if [he] would be paid at a rate below the
regular minimum wage rate because [he] would be receiving tips." Alvarado Deel. ,-r 4;
14
Amezquita did not indicate whether he was orally informed about his compensation or the tip credit.
25
Caravantes
~
4; Lugo
Deel.~
Deel.~
5; Cedeno
5; Roballo
Xochipiltecatl Deel.
~
Deel.~
Deel.~
5; Flores
Deel.~
6; Rodriguez
5; Francisco Lopez Deel.~ 6; Leon Deel.
Deel.~
5; Salinas
Deel.~
5; Urgiles
Deel.~
5;
5. Although no live testimony was offered on this issue, based on these
Plaintiffs' credibility on other issues, the Court accepts their account and does not credit
Anthony Scotto's claim regarding compensation discussions with new employees.
2. Government Posters
Adjacent to a stairwell in the kitchen, Fresco displays government posters that include
information in small print about "employee rights, payroll, hourly wages, sick pay, [and] sick
day[s]." Tr. 625:7-25; see also Pl. Ex. 119 (photographs of government posters).
3. Written Notices
Since March 2011, the Restaurant "has provided food runners and bussers written notice
of the hourly and overtime pay rates applicable to tipped food service employees at least once a
year and/or at the time of hire." Jt. Stip.
~
14; see also Pl. Exs. 30, 32, 38, 40, 44, 46, 50, 54, 58,
61, 65, 68 ("For food service workers, the tip credit taken will be $2.25 per hour. Accordingly,
you will be paid a tipped minimum wage of $5.00 per hour, and an overtime rate of $8.63.").
These notices "explain that food service workers who do not receive sufficient tips to make up
the difference between the tipped and full minimum wage and overtime hourly rates will be paid
additional wages to make up the difference." Jt. Stip.
~
14; see also Pl. Exs. 30, 32, 38, 40, 44,
46, 50, 54, 58, 61, 65, 68 ("If you do not receive enough tips over the course of a week to bring
you up to the minimum hourly rates of $7.25 for the first 40 hours and $10.875 per hour for
hours over 40, you will be paid additional wages that week to make up the difference."). Fresco
provided English-only notices until July 2012, when the Restaurant began issuing notices in both
English and Spanish. Jt. Stip.
~
14; see also Pl. Exs. 30, 32, 38, 40, 44, 50, 54, 58, 61, 65, 68.
26
4. Wage Statements
Since at least January 2007, the Restaurant has given bussers and runners a wage
statement with each payment. Alvarado Deel. ,-r 102; Amezquita Deel. ,-r 93; Caravantes Deel. ,-r
96; Cedefio Deel. ii 93; Flores Deel. ,-r 109; Francisco Lopez Deel. ii 97; Lugo Deel. ii 101;
Roballo Deel. ,-r 103; Rodriguez Deel. ,-r 106; Salinas Deel. ,-r 108; Urgiles Deel. ,-r 111;
Xochipiltecatl Deel.
ii 85; see also Pl. Exs. 82-87 (sample wage statements). The statement
includes the following information: (1) the pay period date; (2) the employee's name; (3) the
Restaurant's name and address; (4) the employee's pay rate; (5) the employee's hours worked;
(6) the amount oftips the employee received; (7) deductions; and (8) the employee's gross and
net wages. Pl. Exs. 82-87. It does not include any information about allowances claimed as part
of the minimum wage. Id.; Alvarado Deel.
ii 102; Amezquita Deel. ,-r 93; Caravantes Deel. ii 96;
Cedefio Deel. ,-r 93; Flores Deel. ,-r 109; Francisco Lopez Deel. ii 97; Lugo Deel. ,-r 101; Ro ballo
Deel. ,-r 103; Rodriguez Deel. ,-r 106; Salinas Deel. ,-r 108; Urgiles Deel. ii 111; Xochipiltecatl
Deel. ,-r 85.
G. Uniforms and Crumbers
At Fresco, bussers and runners are required to wear particular clothing while at work.
Specifically, they must wear a button-down shirt and tie in designated colors, black dress pants,
black dress shoes, and a black belt. Tr. 110:24-111 :3; Alvarado Deel. ,-r 91; Amezquita Deel. ii
84; Caravantes Deel. ,-r 87; Cedefio Deel. ,-r 84; Flores Deel. ,-r 98; Francisco Lopez Deel. ii 87;
Leon Deel. ,-r 93; Lugo Deel. ii 93; Roballo Deel. ii 91; Rodriguez Deel. ii 95; Salinas Deel. ii 96;
Urgiles Deel. ,-r 100; Xoehipilteeatl Deel. ii 80. During their employment, Plaintiffs purchased
the requisite shirts and ties directly from the Restaurant by paying Gelman in cash. Tr. 111 :7114: 13, 243:6-11, 425:8-426:20; Alvarado Deel. ,-r 93; Amezquita Deel. ii 85; Caravantes Deel. ,-r
27
88; Cedeno Deel. 1 86; Flores Deel. 1 100; Francisco Lopez Deel. 189; Leon Deel. 195; Lugo
Deel. 195; Roballo Deel. 193; Rodriguez Deel. 197; Salinas Deel. 198; Urgiles Deel. 1102;
Xoehipilteeatl Deel. 181. 15 Plaintiffs had to purchase two new shirts and one new tie
approximately every six months. Tr. 243:20-245:7, 246:18-247:12; Alvarado Deel. 195;
Caravantes Deel. 189; Flores Deel. 1102; Francisco Lopez Deel. 191; Leon Deel. 197; Lugo
Deel. 196; Roballo Deel. 195; Rodriguez Deel. 199; Salinas Deel. 1100; Urgiles Deel. 1104;
Xochipiltecatl Deel. 1 83 . 16 In addition, Plaintiffs had to purchase crumbers, Amezquita Deel. 1
86; Flores Deel. 1101; Francisco Lopez Deel. 190; Leon Deel. 196; Rodriguez Deel. 198;
Salinas Deel. 199; Urgiles Deel. 1 103; Xoehipiltecatl Deel. 1 82, and plastic collar stays for the
shirts, Alvarado Deel. 1 94; Flores Deel. , 101; Francisco Lopez Deel. , 90; Leon Deel. 1 96;
Roballo Deel. 144; Rodriguez Deel., 98; Xochipiltecatl Deel. 1 82. They were not reimbursed
for these purchases.
III.
Conclusions of Law
A. Marion Scotto' s Liability
An individual may be held liable under the FLSA if she is an "employer," which the
statute defines as "any person acting directly or indirectly in the interest of an employer in
relation to an employee." 29 U.S.C. § 203(d). The Second Circuit has adopted an "economic
15
The Court rejects as not credible Anthony Scotto's contention that "[a]t no point in time ha[s] [he] required
employees to pay for [shirts and ties]." A. Scotto Aff. ~ 51. As an initial matter, Scotto's denial conflicts with his
muddled testimony at trial that "[i]t was [his] intention" for employees to purchase shirts and ties from the
Restaurant, but he now "realize[ s] it hasn't happened" because he cannot "find th[ e] supposed money and receipts
that [he] was handing out to people." Tr. 616:9-617:20. Moreover, Fresco's "Policy Document" dated October
2007 explicitly states that "Bus Staff must purchase a tie and a shirt" from the Restaurant. Pl. Ex. 74 at 7998. The
Court likewise does not credit Gelman 's assertion in her trial affidavit that neither she nor the Restaurant collected
any money from Plaintiffs for shirts and ties. See Gelman Aff. ~ 55.
16
The Court notes that Cedeno testified that he purchased only one shirt and one tie, Tr. 397:2-398:7, Flores
asserted that his uniform did not change "[i]n the last two or three years of [his] work," Flores Deel. ~ 102, and
Alvarado stated that he sometimes received shirts for free, Tr. 244: 17-25, 246:5-17. Defendants suggest that these
accounts undermine the other Plaintiffs' claims. See Def. Post-Trial Mem. 48, ECF No. 93. The Court disagrees, as
it is not implausible that Plaintiffs had distinct experiences with respect to the Restaurant's uniform purchase policy.
28
reality" test to determine whether an individual meets this definition. Irizarry v. Catsimatidis,
722 F.3d 99, 104 (2d Cir. 2013), cert. denied, 134 S. Ct. 1516 (2014). Under this test, courts
consider "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
104-05 (internal quotation marks and citation omitted). "No one of the four factors standing
alone is dispositive," however, and the "totality of the circumstances" must be considered.
Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999). "[T]he overarching concern
is whether the alleged employer possessed the power to control the workers in question, with an
eye to the 'economic reality' presented by the facts of each case." Id. (citation omitted). Thus,
"[ e]vidence that an individual is an owner or officer of a company, or otherwise makes corporate
decisions that have nothing to do with an employee's function, is insufficient to demonstrate
'employer' status." Irizarry, 772 F.3d at 109. "Instead, to be an 'employer,' an individual
defendant must possess control over a company's actual 'operations' in a manner that relates to a
plaintiff's employment." Id. 17
Here, there is no evidence that Marion Scotto: (1) has the power to hire and fire
employees (although she may offer her opinion on prospective hosts and hostesses); (2)
supervises and controls employees' work schedules or employment conditions; (3) determines
the rate and method of employee compensation; or (4) maintains employment records. See supra
Section II.A.3.b. Nevertheless, Plaintiffs argue that Marion Scotto is their employer because she:
17
Although the New York Court of Appeals has not yet answered the question of whether the test for "employer"
status under the NYLL is the same as under the FLSA, Irizarry, 722 F.3d at 117, "[d]istrict courts in this Circuit
have interpreted the definition of 'employer' under the [NYLL] coextensively with the definition used by the
FLSA," Sethi v. Narod, 974 F. Supp. 2d 162, 188 (E.D.N.Y. 2013) (internal quotation marks and citations omitted).
The Court, therefore, analyzes whether Marion Scotto qualifies as an "employer" under the FLSA and the NYLL
together, using the FLSA standard, because "any difference [between the two definitions] would be immaterial to
the facts of this case." Kalloo v. Unlimited Mech. Co. ofNY, Inc., 977 F. Supp. 2d 187, 201 (E.D.N.Y. 2013).
29
(1) sometimes gives bussers directions; (2) is typically present at the Restaurant every day that it
is open; (3) is the chief executive officer, president, and majority shareholder of Starjem; (4)
signs employees' paychecks; (5) is considered to be a "boss" by Plaintiffs; (6) was described on
Fresco's website as "[k]nown affectionately as 'The Boss"'; (7) stated that she "run[s] front-ofthe-house duties" at Fresco, Tr. 682: 17-20; and (8) provided input with respect to Fresco's
"Policy Document." Pl. Post-Trial Mem. 43-44, ECF No. 92. The Court is not persuaded. First,
an individual does not become an employer merely by directing employees to carry out tasks
related to customer service. Second, Marion Scotto's daily presence at the Restaurant reveals
nothing about her level of authority. Third, it is well-settled that"[ o]wnership, or a stake in a
company, is insufficient to establish that an individual is an 'employer' without some
involvement in the company's employment of the employees." Irizarry, 772 F.3d at 111.
Marion Scotto had no such involvement. Fourth, although "the authority to sign paychecks" is
"key" to determining whether an individual is an employer, "[t]his-like all factors-is not
dispositive." Id. at 115 (internal quotation marks and citation omitted). Moreover, Marion
Scotto only signs paychecks because "[e]ach check has to be signed by two of the [Restaurant's]
owners." M. Scotto Aff.
iii! 9-10.
She is otherwise not involved in employee compensation.
Thus, the fact that she signs paychecks is not probative in this case. Fifth, Plaintiffs' belief that
Marion Scotto is a "boss" does not make her an employer. See, e.g., Copantitla v. Fiskardo
Estiatorio, Inc., 788 F. Supp. 2d 253, 314 (S.D.N.Y. 2011) (explaining that "[plaintiffs]
perception that [defendant] is an 'owner' does not make him an employer"); Chao v. Vidtape,
Inc., 196 F. Supp. 2d 281, 291(E.D.N.Y.2002), aff'd as modified, 66 F. App'x 261 (2d Cir.
2003) (summary order) (finding testimony that "most [employees] thought [defendant] was a
'boss' when asked" to be "insufficient to support a definition of employer under the economic
30
realities test"). Sixth, the use of the sobriquet "The Boss" on Fresco's website-which
apparently is a reference to Marion Scotto's "on-air personality," Tr. 527:4-20, 682: 17-683:3does not make her an employer. Seventh, Marion Scotto explained that "run[ning] front-of-thehouse duties" primarily involves "help[ing] with the reservations, greet[ing] the people as they
come in the door," and checking in with customers when they leave the Restaurant. Tr. 683:721. These responsibilities do not show control over Plaintiffs' employment. Finally, her input
concerning the "Policy Document" was limited to information about artwork in the Restaurant,
Tr. 536:10-538:10, 685:3-7, which "ha[s] nothing to do with an employee's function" and is,
consequently, "insufficient to demonstrate 'employer' status," Irizarry, 772 F.3d at 109. In sum,
based on the totality of the circumstances, the Court finds that Marion Scotto is not Plaintiffs'
employer under the FLSA or the NYLL. Accordingly, she may not be held liable with respect to
Plaintiffs' claims.
B. Tip Credit
The FLSA and the NYLL require an employer to pay its employees at least minimum
wage. 29 U.S.C. § 206(a); N.Y. Lab. Law§ 652(1). 18 However, both statutes also "permit an
employer to pay a tipped [employee] a cash wage that is lower than the statutory minimum wage,
provided that[, inter alia,] the cash wage and the employee's tips, taken together, are at least
equivalent to the minimum wage." Inclan v. New York Hosp. Grp., Inc., 12 Civ. 4498, 2015 WL
1399599, at *3 (S.D.N.Y. Mar. 26, 2015) (citing 29 U.S.C. §§ 203(m), 206(a)(l); N.Y. Comp.
18
Since July 24, 2009, the federal minimum wage rate has been $7.25 per hour. 29 U.S.C. § 206(a)(l). From
January 1, 2007 until July 23, 2009, the New York minimum wage rate was $7.15 per hour. N.Y. Comp. Codes R.
& Regs. tit. 12, § 137-1.2 (repealed eff. Jan. 1, 2011). From July 24, 2009 until December 30, 2013, the New York
minimum wage rate was $7.25 per hour. Id.; id. § 146-1.2. From December 31, 2013 until December 30, 2014, the
New York minimum wage rate was $8.00 per hour. Id. § 146-1.2. Since December 31, 2014, the New York
minimum wage rate has been $8.75 per hour. Id.
31
Codes R. & Regs. tit. 12, § 146-l.3(b); id. § 137-1.5 (repealed eff. Jan. 1, 2011)). 19 This
allowance is known as a "tip credit."
1. Notice
An employer may not take a tip credit under the FLSA unless the employer has
"inform[ed] the employee of the [statute's] tip credit provision." Copantitla, 788 F. Supp. 2d at
287 (internal quotation marks and citation omitted); accord 29 U.S.C. § 203(m). This
requirement is "strictly construed, and must be satisfied even if the employee received tips at
least equivalent to the minimum wage." Chung v. New Silver Palace Rest., Inc., 246 F. Supp. 2d
220, 229 (S.D.N.Y. 2002). The employer "bear[s] the burden of showing that [it] satisfied the
FLSA's notice requirement by, for example, providing [the] employee[] with a copy of§ 203(m)
and informing [the employee] that [her] tips will be used as a credit against the minimum wage
as permitted by law." He v. Home on 8th Corp., 09 Civ. 5630, 2014 WL 3974670, at *5
(S.D.N.Y. Aug. 13, 2014) (internal quotation marks and citation omitted). "If the employer
cannot show that it has informed [the] employee[] that tips are being credited against [her]
wages, then no tip credit can be taken and the employer is liable for the full minimum-wage."
Inclan, 2015 WL 1399599, at *4 (internal quotation marks, citation, and alteration omitted).
The regulations implementing the NYLL also impose notice requirements with respect to
the tip credit. Under the current regulations, an employer may not take a tip credit unless the
employer has given the employee written notice stating: (1) the amount of tip credit to be taken
from the basic minimum hourly rate; and (2) that extra pay is required if tips are insufficient to
19
The FLSA defines "tipped employee" as "any employee engaged in an occupation in which he customarily and
regularly receives more than $30 a month in tips." 29 U.S.C. § 203(t). Under the NYLL, "service employees" and
"food service workers" are considered "tipped employees." N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.3; accord
id. § § 13 7-1.4, 137-1.5 (repealed eff. Jan. I, 2011 ). A "food service worker" is "any employee primarily engaged in
the serving of food or beverages to guests, patrons or customers in the hotel or restaurant industries ... and who
regularly receive[s] tips from such guests, patrons or customers." N.Y. Lab. Law§ 651(9); accordN.Y. Comp.
Codes R. & Regs. tit. 12, § 146-3.4(a); id.§ 137-3.4(a) (repealed eff. Jan. I, 2011).
32
bring the employee up to the basic minimum hourly rate. N.Y. Comp. Codes R. & Regs. tit.,§
146-2.2(a); see also id. § 146-1.3 ("An employer may take a credit towards the basic minimum
hourly rate if [the tipped employee] receives enough tips and ifthe employee has been notified of
the tip credit as required in section 146-2.2 of this Part."). The employer must provide the notice
in English and "any other language spoken by the ... employee as his/her primary language."
Id. § 146-2.2(a).
Prior to January 1, 2011, the written notice requirement of§ 146-2.2 was not yet in effect.
Nevertheless, an employer could not take a tip credit unless "certain preconditions [we]re met."
Copantitla, 788 F. Supp. 2d at 290 (internal quotation marks and citation omitted). Specifically,
an employer was required to: (1) "furnish to [the] employee a statement with every payment of
wages listing ... allowances ... claimed as part of the minimum wage," N.Y. Comp. Codes R.
& Regs. tit. 12, § 137-2.2 (repealed eff. Jan. 1, 2011); and (2) "maintain and preserve for not less
than six years weekly payroll records ... for [the] employee [showing] ... allowances ...
claimed as part of the minimum wage," id. § 137-2.l(a) (repealed eff. Jan. 1, 2011); see also,
e.g., Copantitla, 788 F. Supp. 2d at 290. 20
Applying these principles, the Court finds that Defendants were not entitled to take a tip
credit against Plaintiffs' wages under the FLSA prior to July 2012. 21 As an initial matter,
Plaintiffs were not orally informed about their compensation generally or the tip credit
20
Defendants' suggestion that an employer was entitled to take a tip credit prior to January 1, 2011 even if the
employer did not comply with the requirements of§§ 137-2.l(a) and 137-2.2 is unpersuasive. See Def. Post-Trial
Reply 36-37, ECF No. 101. Indeed, the majority of courts in this Circuit have reached the opposite conclusion.
E.g., Inclan, 2015 WL 1399599, at *4; He, 2014 WL 3974670, at *6; Cuzco v. F & J Steaks 37th St. LLC, 13 Civ.
1859, 2014 WL 2210615, at *2-3 (S.D.N.Y. May 28, 2014); Shiu v. New Peking Taste Inc., 11 Civ. 1175, 2014 WL
652355, at* 12 n.15 (E.D.N.Y. Feb. 19, 2014); Cao v. Wu Liang Ye Lexington Rest., Inc., 08 Civ. 3725, 2010 WL
4159391, at *2 (S.D.N.Y. Sept. 30, 201 O); Padilla v. Manlapaz, 643 F. Supp. 2d 302, 309-10 (E.D.N.Y. 2009).
21
In July 2012, Defendants provided Plaintiffs written notices with tip credit information in both English and
Spanish. See supra Section II.F.3. The Court finds that these notices comply with NYLL § 146-2.2. Therefore,
once Plaintiffs received the notices, Defendants were entitled to take a tip credit against Plaintiffs' wages under both
the NYLL and the FLSA.
33
specifically when they began working at Fresco. See supra Section II.F.1. Moreover, the written
notices that Defendants provided beginning in March 2011, see supra Section II.F.3, did not
adequately apprise Plaintiffs of the tip credit provision because the notices were in English only
and Defendants have offered no evidence that Plaintiffs-all of whom testified at trial in Spanish
with the assistance of an interpreter-were sufficiently literate in English to be informed by the
notices. See, e.g., Chan v. Sung Yue Tung Corp., 03 Civ. 6048, 2007 WL 313483, at *19
(S.D.N.Y. Feb. 1, 2007) (finding written tip credit notice to be insufficient under the FLSA
"because it is in English, a language that few of the plaintiffs can read"). Finally, the Court
rejects Defendants' contention that the government posters displayed at Fresco, see supra
Section II.F.2, satisfied the FLSA's notice requirement. Although "[a] generic government
poster could inform employees that minimum wage obligations exist, [it] could not possibly
inform employees that their employers intend to take the tip credit with respect to their salary."
Copantitla, 788 F. Supp. 2d at 289.
Defendants were likewise not entitled to take a tip credit under the NYLL prior to July
2012. First, the written notices provided beginning in March 2011 did not comply with§ 1462.2 because they were in English only and Plaintiffs' primary language is Spanish. N.Y. Comp.
Codes R. & Regs. tit. 12, § 146-2.2(a). Second, prior to January 1, 2011, Defendants failed to
"furnish to [Plaintiffs then-employed at Fresco] a statement with every payment of wages listing
... allowances ... claimed as part of the minimum wage." Id. § 137-2.2 (repealed eff. Jan. 1,
2011). Indeed, the wage statements issued by Defendants, see supra Section II.F.4, "show only
that [P]laintiffs earned tip-related income; they do not record that any of the tip income was
claimed as part of the minimum wage," Copantitla, 788 F. Supp. 2d at 290.
34
2. Tip Sharing
The FLSA provides that "an employer may not avail itself of the tip credit if it requires
tipped employees to share their tips with employees who do not 'customarily and regularly
receive tips."' Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 240 (2d Cir. 2011)
(quoting 29 U.S.C. § 203(m)). 22 "Thus, an employer loses its entitlement to the tip credit where
it requires tipped employees to share tips with (1) employees who do not provide direct customer
service or (2) managers." Id. "When deciding whether an employee customarily and regularly
receives tips, courts must determine whether the employee's job is historically a tipped
occupation and whether he has more than 'de minimis' interaction with customers as a part of his
employment." Chhab v. Darden Rests., Inc., 11 Civ. 8345, 2013 WL 5308004, at *6 (S.D.N.Y.
Sept. 20, 2013). When deciding whether a manager is tip ineligible, courts must "examine the
economic reality of the employment relationship to determine whether [the manager is a]
statutory employer[]." Barenboim v. Starbucks Corp., 698 F.3d 104, 110 (2d Cir. 2012); see also
supra Section III.A (describing the "economic reality" test).
The NYLL also "bars employers from requiring tipped employees to share tips with
employees who do not perform direct customer service-i.e., employees who are not 'busboys or
similar employees' and employees who are managers or 'agents' of the employer." Shahriar,
659 F.3d at 240 (quoting NYLL § 196-d) (brackets omitted); see also Barenboim v. Starbucks
Corp., 21N.Y.3d460, 471-72 (2013) (defining the term "similar employee," as used in§ 196-d,
to mean "employees who ... are ordinarily engaged in personal customer service"). 23 The
22
Section 203(m) states, in relevant part, that the tip credit "shall not apply with respect to any tipped employee
unless ... all tips received by such employee have been retained by the employee, except that this subsection shall
not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips." 29
U.S.C. § 203(m).
23
Section 196-d states, in relevant part, that "[n]o employer or his agent ... or any other person shall demand or
accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of
35
NYLL standard for evaluating a non-manager's tip eligibility is similar to the FLSA standard.
See Shahriar, 659 F.3d at 246; N.Y. Comp. Codes R. & Regs. tit. 12, § 146-2.14(e) ("[T]o
receive shared tips, or to receive distributions from a tip pool, ... [an] employee[] must perform,
or assist in performing, personal service to patrons at a level that is a principal and regular part of
[her] duties and is not merely occasional or incidental."). With respect to managers, however,
"[m]eaningful authority, not final authority, [is] the standard" under the NYLL. Barenboim, 21
N.Y.3d at 473. In other words, employees with "meaningful or significant authority or control
over subordinates" are ineligible to share in tips. Id. Indicators of meaningful authority include:
(1) "the ability to discipline subordinates"; (2) the ability to "assist in performance evaluations";
(3) the ability to "participate in the process of hiring or terminating employees"; and (4) "having
input in the creation of employee work schedules." Id.
a. Non-Service Employees
In light of the foregoing, the Court concludes that stockers and, on some shifts, the coffee
preparer are improperly included in Fresco's tip pool. 24 Stockers' only interactions with
customers occur when they are ordered to run food, which happens sporadically and takes no
more than five to 15 minutes per shift. See supra Section II.C.4. The coffee preparer similarly
spends less than 15 minutes running food and drinks to customers when he is assisted by a coffee
helper. For the rest of the shift, the coffee preparer remains in the kitchen making coffee and tea.
See supra Section II.C.5. These limited customer interactions are insufficient to justify the
inclusion of stockers and the coffee preparer (when assisted by the coffee helper) in the tip pool
any charge purported to be a gratuity for an employee," but that "[n]othing in this subdivision shall be construed as
affecting ... the sharing of tips by a waiter with a busboy or similar employee." N.Y. Lab. Law§ 196-d.
24
Plaintiffs concede that bussers, runners, and barbacks permissibly participate in the tip pool. Pl. Post-Trial Reply
1, 2 n.l, ECF No. 100.
36
and, by extension, the application of the tip credit to their wages under both the FLSA and the
NYLL. Defendants are, therefore, liable for unlawfully: (1) requiring Plaintiffs to share tips with
non-service employees when they worked as bussers, runners, barbacks, or the unassisted coffee
preparer (i.e., in tip-eligible positions); and (2) taking the tip credit against Plaintiffs' wages
when they worked as stockers or the coffee preparer assisted by the coffee helper.
b. Managers
The Court also concludes that, prior to January 1, 2013, Defendants violated the NYLL
by requiring Plaintiffs to share tips with tip-ineligible managers when they worked in tip-eligible
positions. In particular, the Court finds that Drill and Vosilla each had meaningful authority over
subordinates. Indeed, as of at least October 2007, Drill: (1) had "the ability to discipline
subordinates," Barenboim, 21 N.Y.3d at 473, and did discipline subordinates both formally and
informally; (2) had the ability to "participate in the process of hiring or terminating employees,"
id., and did participate in these processes; (3) oversaw new employees' training; and (4) gave
suggestions to Anthony Scotto about employee scheduling. See supra Section II.B.2.
Accordingly, Drill's inclusion in the tip pool prior to January 1, 2013, It. Stip.
iJ 17, was
improper under the NYLL. 25
During this period, Vosilla likewise: (1) had "the ability to discipline subordinates,"
Barenboim, 21 N.Y.3d at 473, and did discipline subordinates both formally and informally; (2)
had the ability to "participate in the process of hiring or terminating employees," id., and did
participate in these processes; (3) "ha[ d] input in the creation of employee work schedules," id.;
25
Having considered the totality of the circumstances-including that Drill did not "supervise[] and control[]
employee work schedules or conditions of employment," "determine[] the rate and method of payment," or
"maintain[] employment records," Irizarry, 722 F.3d at 105 (internal quotation marks and citation omitted)-the
Court concludes that Drill was not a tip-ineligible manager under the FLSA. Moreover, although Drill played a role
in employee hiring and firing, the evidence suggests that his authority was circumscribed in these areas.
37
and (4) signed employment documents on behalf of the Restaurant. See supra Section II.B .1.
However, Vosilla did not participate in Fresco's tip pool. That said, prior to June 2011, he did
receive a portion of the 20 percent service charge imposed on private parties when he served as a
party captain. Since June 2011, he has received the three percent administration fee imposed on
private parties when he serves as a party captain. See supra Section II.E.2. Therefore, to decide
the extent of Defendants' liability with respect to Vosilla's tip ineligibility, the Court must
determine whether Fresco's service charge and administration fee should be deemed a gratuity. 26
A mandatory service charge may constitute a "charge purported to be a gratuity" within
the meaning of NYLL § 196-d "when it is shown that employers represented or allowed their
customers to believe that the charge[] [was] in fact [a] gratuit[y] for their employees." Samiento
v. World Yacht Inc., 883 N.E.2d 990, 996 (N.Y. 2008). Whether "a mandatory charge or fee is
purported to be a gratuity [is to] be weighed against the expectation of the reasonable customer."
Id. at 994. Prior to January 1, 2011, factors bearing on "whether a reasonable customer would
believe a particular service charge is a gratuity" included:
(1) the font size and prominence of the notice; (2) the label used to denote the charge
and whether such a label would confuse patrons (noting that the label
'administrative fee' is clearer than 'service charge'); (3) whether the purpose [of]
the charge and manner in which the charge is calculated are described on the bill;
(4) whether the notice discloses the portion of the charge that is being distributed
to the service staff and informs ... patrons to leave an additional payment as a tip;
and (5) whether there exists a separate line for gratuity.
Maldonado v. BTB Events & Celebrations, Inc., 990 F. Supp. 2d 382, 390 (S.D.N.Y. 2013)
(citing N.Y. State Dep't of Labor, Op. Letter (Mar. 11, 2010), available at
26
The Court does not reach the question of whether Vosilla is a tip-ineligible manager under the FLSA because
"compulsory charge[s] for service"-like Fresco's service charge and administration fee for private parties-are not
considered tips under the FLSA, 29 C.F.R. § 53 l .55(a); accord Barenboim, 698 F.3d at 112, and, accordingly,
"cannot be counted as ... tip[s] received in applying the [FLSA's tip credit] provisions," § 53 l.55(a). Thus,
Plaintiffs did not share tips with Vosilla within the meaning of the FLSA.
38
https://labor.ny.gov/legal/counsel-opinion-letters.shtm). There is no record evidence from which
the Court can evaluate whether Fresco "represented or allowed [its] customers to believe" that
the 20 percent service charge imposed on private parties "was in fact [a] gratuit[y]." Samiento,
883 N.E.2d at 996. Thus, the Court is unable to determine whether Vosilla received a "charge
purported to be a gratuity" prior to January 1, 2011 and, consequently, whether Plaintiffs were
required to share tips with him during this period.
Since January 1, 2011, there has been rebuttable presumption under New York law that
"any charge in addition to charges for food, beverage, lodging, and other specified materials or
services, including but not limited to any charge for 'service' or 'food service,' is a charge
purported to be a gratuity." N.Y. Comp. Codes R. & Regs. tit. 12, § 146-2.18(b). For such a
charge to not be considered a gratuity, it must be "clearly identified as such" and customers must
be "notified that the charge is not a gratuity or tip." Id. § 146-2.19(a); see also id. § 146-2.19(c)
(explaining that "[a]dequate notification" requires "a statement in the contract or agreement with
the customer, and on any menu and bill listing prices, that the administrative charge is for
administration ... , is not purported to be a gratuity, and will not be distributed as gratuities to
the employees who provided service to the guests" and that such statement must "use ordinary
language readily understood ... in a font size ... no smaller than a 12-point font"). Moreover,
"[t]he employer has the burden of demonstrating, by clear and convincing evidence, that the
notification was sufficient to ensure that a reasonable customer would understand that such
charge was not purported to be a gratuity." Id. § 146-2.19(b). Plaintiffs concede, and the Court
agrees, that Defendants have satisfied their burden with respect to the notification provided to
customers beginning in June 2011 concerning the three percent administration fee. See supra
Section II.E.2. Therefore, the Court concludes that Vosilla has not received a "charge purported
39
to be a gratuity" since June 2011. By contrast, for the period between January 1 and June 2011,
Defendants have adduced no evidence that they provided notification-let alone adequate
notification-to customers regarding the nature of the 20 percent service charge. Thus,
Defendants have not rebutted the presumption that the service charge was a "charge purported to
be a gratuity." Accordingly, the Court finds that Defendants violated the NYLL by requiring
Plaintiffs to share tips with Vosilla between January 1 and June 2011 on shifts where Vosilla
served as a party captain and Plaintiffs worked in tip-eligible positions.
3. Time Spent Performing Non-Tipped Work
Under the FLSA, "tipped employees who spend a substantial amount of time, or more
than twenty percent of their [working time], engaged in related but non-tip-producing work must
be paid the full minimum wage for the time spent performing the non-tipped work." Chhab,
2013 WL 5308004, at *3. New York law goes even further. Indeed, if a tipped employee
performs non-tipped work "(a) for two hours or more, or (b) for more than 20 percent of his or
her shift, whichever is less, the wages of the employee shall be subject to no tip credit for that
day." N.Y. Comp. Codes R. & Regs. tit. 12, § 146-2.9 (emphasis added); accord id. § 1463 .4(b).
Since at least May 2007, Defendants have taken a tip credit against Plaintiffs' wages for
almost all hours worked. See supra Section II.E.1. However, bussers at Fresco perform nontipped work for approximately 80 minutes per shift, see supra Section II. C.1, and runners
perform non-tipped work for approximately 70 minutes per lunch shift and 62.5 minutes per
dinner shift, see supra Section II.C.2. 27 Moreover, prior to June 26, 2011, bussers typically
27
The Court rejects Defendants' argument that the side work performed by bussers and runners "should not count
towards any 80-20 claim" because it is "directly related to the core performance of their service responsibilities,"
Def. Post-Trial Mem. 43-46, and "directly affect[s] their ability to serve customers," Def. Post-Trial Reply 4. This
proposed standard for determining whether work is non-tipped finds no basis in the FLSA or the NYLL. Moreover,
40
worked for five hours during a lunch shift, seven hours during a weekday dinner shift, and eight
hours during a Saturday dinner shift. Runners typically worked for four or four and three
quarters hours during a lunch shift and six hours during a dinner shift. See supra Sections II.D.1,
II.D.3. 28 Thus, bussers and runners spent more than 20 percent of the lunch shift, but less than
20 percent of the dinner shift doing non-tipped work. Accordingly, Plaintiffs may recover
unpaid wages under the FLSA and the NYLL based upon Defendants' improper application of
the tip credit when Plaintiffs worked as bussers and runners during lunch shifts prior to June 26,
2011. For the period after June 26, 2011, the punch reports generated by the time clock system
document the hours that Plaintiffs worked, see Pl. Exs. 13-24, and the Restaurant's weekly shift
schedules indicate the positions to which Plaintiffs were assigned for particular shifts, see Pl. Ex.
26; Def. Ex. A. To the extent that these records show that a Plaintiff worked (1) a shift shorter
than six hours and 40 minutes as a busser, (2) a lunch shift shorter than five hours and 50
minutes as a runner, or (3) a dinner shift shorter than five hours and five minutes as a runner, 29
the regulations implementing the FLSA characterize tasks such as "cleaning and setting tables, toasting bread,
making coffee and occasionally washing dishes or glasses" as non-tipped work. 29 C.F.R. § 53 l.56(e). The U.S.
Department of Labor's Field Operations Handbook, see infra note 39, likewise describes "maintenance and
preparatory or closing activities" as non-tipped work. U.S. Dep't of Labor, Field Operations Handbook§ 30dOO(e),
available at http://www.dol.gov/whd/foh/index.htm. In addition, courts have considered tasks similar to the side
work performed by bussers and runners at Fresco to be non-tipped work. See, e.g., Mendez v. Int'! Food House Inc.,
13 Civ. 2651, 2014 WL 4276418, at *3-4 (S.D.N.Y. Aug. 28, 2014); Chhab, 2013 WL 5308004, at *3-5, *10-11.
28
The Court's findings with respect to the amount of time worked per shift do not include the 30-minute period
allotted for the family meal, during which no work is performed. See Thomas v. Apple-Metro, Inc., 14 Civ. 4120,
2015 WL 505384, at *4 n.1 (S.D.N.Y. Feb. 5, 2015) ("Employers may not take advantage of the tip credit [under the
FLSA] with respect to hours worked by employees performing non-tipped tasks to the extent that such employees
spend more than 20 percent of their working time performing non-tipped work." (emphasis added)); N.Y. Comp.
Codes R. & Regs. tit. 12, § 146-2.9 (subtracting "1/2 hour meal period" from total amount of time worked by
employee during a shift for purposes of determining whether employee spent more than 20 percent of shift doing
non-tipped work).
29
Once again, the 30-minute family meal is excluded from these totals. See supra note 28.
41
he is entitled to recover unpaid wages under the FLSA and the NYLL as, at these shift lengths,
bussers and runners spent more than 20 percent of their time performing non-tipped work. 30
C. Compensation for All Hours Worked
The FLSA and the NYLL both "guarantee[] compensation for all work ... engaged in by
[covered] employees." Kuebel v. Black & Decker Inc., 643 F.3d 352, 359 (2d Cir. 2011)
(internal quotation marks, citation, and brackets omitted). In particular, an employee must be
paid at least minimum wage. 29 U.S.C. § 206(a); N.Y. Lab. Law§ 652(1). "[F]or any hours
worked in excess of forty per week," the employee must "be compensated at a rate of no less
than one and one-halftimes the regular rate of pay." Nakahata v. New York-Presbyterian
Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013); accord29 U.S.C. § 207(a)(l); N.Y.
Comp. Codes R. & Regs. tit. 12, § 146-1.4; id. § 137-1.3 (repealed eff. Jan. 1, 2011). "[A]ll of
the time worked during a continuous workday is compensable, save for bona fide meal
[periods]." Hart v. Rick's Cabaret Int'!, Inc., 60 F. Supp. 3d 447, 475 n.15 (S.D.N.Y. 2014). To
qualify as a bona fide meal period, "[t]he 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." 29 C.F.R. § 785.19(a). "The employee is not relieved if he is required to
perform any duties, whether active or inactive, while eating." Id.
To establish liability on a claim for underpayment of wages, "a plaintiff must prove that
he performed work for which he was not properly compensated, and that the employer had actual
30
Plaintiffs contend that barbacks are also entitled to recover for this violation because barbacks "spen[ d]
approximately half their time ... doing typical busser work, and half doing work specific to the [barback] position."
Pl. Post-Trial Reply 17. This argument fails, as barbacks with responsibilities comparable to those ofbarbacks at
Fresco are considered tip-eligible employees under both New York and federal law. N.Y. Comp. Codes R. & Regs.
tit. 12, § 146-2.14(e); U.S. Dep't of Labor, Wage & Hour Div., Op. Letter (January 15, 2009), available at
http://www.dol.gov/whd/opinion/FLSA/2009/2009 _ Ol _ l 5_12_FLSA.pdf. Thus, "work specific to the [barback]
position" is not synonymous with "non-tipped work." Because Plaintiffs have not indicated the amount of time that
barbacks spend performing particular non-tipped tasks, the Court is unable to assess whether Plaintiffs spent more
than 20 percent of their time doing non-tipped work when they worked as barbacks.
42
or constructive knowledge of that work." Kuebel, 643 F.3d at 361. Where an employer fails to
maintain adequate or accurate records of its employees' hours, the employee need only
"produce[] sufficient evidence to show the amount and extent of [the uncompensated] work as a
matter of just and reasonable inference." Anderson, 328 U.S. at 687. This burden is "not high."
Kuebel, 643 F.3d at 362. Indeed, the employee may satisfy his burden "through estimates based
on his own recollection." Id. "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." Anderson, 328 U.S.
at 687-88. If the employer fails to do so, "the court may then award damages to the employee,
even though the result be only approximate." Id. at 688. 31
1. Before June 26, 2011
Defendants did not keep records of Plaintiffs' exact hours prior to June 26, 2011.
Accordingly, the Anderson burden-shifting framework governs the analysis of Plaintiffs' claim.
Drawing upon this framework, the Court credits Plaintiffs' estimates and finds that Defendants
have failed to produce "evidence of the precise amount of work performed" or "evidence to
negative the reasonableness" of the estimates. See supra Section II.D.1. Thus, the Court
concludes that Defendants did not compensate Plaintiffs for all hours worked during this
period. 32 Specifically, from January 2007 until November 8, 2008, Defendants underpaid
Plaintiffs who worked as bussers by one hour for every Saturday dinner shift. 33 From November
31
This burden-shifting framework applies under both the FLSA and the NYLL. E.g., Ho v. Sim Enters., Inc., 11
Civ. 2855, 2014 WL 1998237, at *14 (S.D.N.Y. May 14, 2014); Kalloo, 977 F. Supp. 2d at 200.
32
Defendants argue only that Plaintiffs' estimates should not be credited. They do not disclaim "actual or
constructive knowledge ofth[e] work" performed by Plaintiffs prior to June 26, 2011. Kuebel, 643 F.3d at 361.
33
Plaintiffs are not entitled to compensation for the 30-minute period allotted for the family meal, as Fresco
employees are "completely relieved from duty" during this time. 29 C.F.R. § 785.19(a); see also supra at Section
II.D.3. It is, therefore, a bona fide meal period. Accordingly, to determine the extent to which Plaintiffs were
43
10, 2008 until January 10, 2009, Defendants underpaid Plaintiffs who worked as bussers by one
hour for every weekday dinner shift and two hours for every Saturday dinner shift. From
January 12, 2009 until December 4, 2010, Defendants underpaid Plaintiffs who worked as
bussers by two hours for every weekday dinner shift and three hours for every Saturday dinner
shift. Moreover, Defendants underpaid Plaintiffs who worked as runners by one hour for every
dinner shift. From December 6, 2010 until June 25, 2011, Defendants underpaid Plaintiffs who
worked as bussers by one hour for every weekday dinner shift and two hours for every Saturday
dinner shift. In addition, Defendants unlawfully refused to pay Plaintiffs for time worked in
excess of 40 hours per week. See supra Section II.E.3 .a. Plaintiffs are entitled to compensation
for this time at the overtime rate.
2. After June 26, 2011
Plaintiffs were compensated for all hours worked from June 27, 2011 until the lunch shift
on July 1, 2011, as Defendants paid Plaintiffs based on the full amount of time recorded in the
time clock system. As of the dinner shift on July 1, 2011, however, Defendants began
undercounting the length of Plaintiffs' shifts by approximately 19 minutes and compensating
Plaintiffs accordingly. See supra Sections II.D.2, II.E.3.b. That said, with respect to shifts
where Plaintiffs punched in before the family meal (i.e., before 10:30 a.m. for the lunch shift and
before 4:30 p.m. for the dinner shift), this 19-minute deduction does not give rise to a claim for
underpayment of wages. The 30-minute family meal is a bona fide meal period for which
employees are not entitled to compensation. See supra note 33. Defendants nevertheless did not
subtract any time from Plaintiffs' hours to account for the family meal. Therefore, even with the
underpaid for a given shift, the Court subtracts the number of hours for which Plaintiffs were compensated, see
supra Section II.E.3.a, from the estimated length of that shift, see supra Section II.D.l, and then subtracts an
additional 30 minutes to account for the family meal.
44
19-minute deduction, Plaintiffs who punched in before the family meal were compensated for
time (i.e., approximately 11 minutes) beyond Defendants' legal obligation. Cf Desilva v. N
Shore-Long Island Jewish Health Sys., Inc., 27 F. Supp. 3d 313, 321 (E.D.N.Y. 2014) ("[C]ourts
in this circuit have recognized[] [that] automatic meal deduction policies are not per se illegal.");
Zivali v. AT & T Mobility, LLC, 784 F. Supp. 2d 456, 461 (S.D.N.Y. 2011) (finding that an
employer's timekeeping system is lawful under the FLSA "as long as it allows for the complete
and accurate recording of all time worked"); N.Y. State Dep't of Labor, Op. Letter 1 (Nov. 25,
2009), available at https://labor.ny.gov/legal/counsel-opinion-letters.shtm (explaining that
"recordkeeping software that automatically deducts the lunch break from the amount oftime
worked" does not violate the NYLL "[s]o long as the practice[] ... result[s] in the payment of
wages for all hours worked"). By contrast, Plaintiffs who punched in more than 11 minutes after
the family meal began (i.e., after 10:41 a.m. for the lunch shift and after 4:41 p.m. for the dinner
shift) were not compensated for all hours worked. Indeed, they were subjected to a 19-minute
deduction even though their shifts included less than 19 minutes of non-compensable time. For
example, on October 8, 2011, Salinas worked from 5 :02 p.m. until 11: 17 p.m. Pl. Ex. 78 at 5753
(weekly payroll report for week ending October 8, 2011 ). Thus, he should have been paid for
6.25 hours of work. Instead, due to the 19-minute deduction, he was paid for 5.93 hours of work.
Id. Defendants do not disclaim "actual or constructive knowledge of [this uncompensated]
work." Kuebel, 643 F.3d at 361. Accordingly, Plaintiffs who punched in more than 11 minutes
after the family meal began are entitled to compensation for up to 19 minutes of work.
Leon, Roballo, and Urgiles contend that they are also entitled to compensation for shifts
where they were directed to work without punching in. They assert that they received tips, but
did not receive any wages for these shifts. See supra Section II.D.2. These claims fail. First,
45
U rgiles was, in fact, paid for the one shift that he worked without punching in (i.e., the dinner
shift on December 24, 2012). Compare Pl. Ex. 24 at 1781 (Urgiles' punch report), and Pl. Ex.
77 at 9009 ("Busboy Calculation Sheet" for week ending December 29, 2012), with Pl. Ex. 76 at
9004 (ADP "Payroll Worksheet" for week ending December 29, 2012), and Pl. Ex. 78 at 9043
(weekly payroll report for week ending December 29, 2012). Second, Leon's statement that he
"worked approximately three or four shifts in December 2013 when [he] did not punch in and
... only received tips," Leon Deel., 43, and Roballo's statement that he "was told
approximately twice ... in December ... that [he] could come in to work and ... get tips, but
[he] could not punch in and punch out and would not be paid by the house," Roballo Deel. , 44,
are insufficient "to show the amount and extent of [their uncompensated] work as a matter of just
and reasonable inference," Anderson, 328 U.S. at 687. Moreover, the fact that Urgiles was paid
wages for the one shift that he worked without punching in, and Gelman's credible testimony
that she ensures that all bussers and runners who earn tips during a particular shift are also paid
wages for that shift, Tr. 661 :24-662:9, suggest that Leon and Roballo were compensated for the
few shifts that they worked without punching in.
D. WrittenNotice-NYLL § 195(1)
Since April 9, 2011, the NYLL has required that, at the time of hiring, 34 employers
provide their employees a written notice with the following information: (1) the rate or rates of
pay and basis thereof; 35 (2) allowances, if any, claimed as part of the minimum wage, including
tip, meal, or lodging allowances; (3) the regular pay day designated by the employer; (4) the
34 Prior to December 29, 2014, employers were also required to provide the notice "on or before February first of
each subsequent year of the employee's employment with the employer." N.Y. Lab. Law§ 195(l)(a) (eff. April 9,
2011 to Dec. 28, 2014).
35
For all non-exempt employees, "the notice must state the regular hourly rate and overtime rate of pay." N.Y. Lab.
Law§ 195(l)(a).
46
employer's name; (5) any "doing business as" names used by the employer; (6) the physical
address of the employer's main office or principal place of business, and a mailing address if
different; (7) the employer's telephone number; and (8) such other information as the
commissioner deems material and necessary. N.Y. Lab. Law§ 195(1)(a). Employers must
provide this notice "in English and in the language identified by each employee as the primary
language of such employee." Id. Here, Plaintiffs did not receive notices compliant with
§ 195(1) until July 2012, when the Restaurant began issuing notices in both English and Spanish.
See supra Section II.F.3. 36 Prior to this date, the notices were deficient because they were in
English only and Plaintiffs' primary language is Spanish.
E. Wage Statement-NYLL § 195(3)
Since April 9, 2011, the NYLL has also required that employers "furnish each employee
with a statement with every payment of wages, listing the following" information: (1) the dates
of work covered by that payment of wages; (2) the employee's name; (3) the employer's name,
address, and telephone number; (4) the rate or rates of pay and basis thereof; 37 (5) gross wages;
(6) deductions; (7) allowances, if any, claimed as part of the minimum wage; and (8) net wages.
N.Y. Lab. Law§ 195(3). The wage statements that Fresco provided Plaintiffs failed to indicate
that the tip credit (i.e., an allowance claimed as part of the minimum wage) was being taken. See
36
The Court rejects Plaintiffs' argument that the dual-language notices were defective because "they falsely stated
that Plaintiffs would be paid at the regular rate of $5.00 per hour" when, "[i]n fact, Plaintiffs were paid at a lower
rate because Fresco ... automatically ... deducted approximately nineteen minutes from Plaintiffs' shifts." Pl.
Post-Trial Mem. 41. When the Restaurant issued these notices, Defendants intended to pay Plaintiffs at the regular
rate of$5.00 per hour and were unaware of the 19-minute deduction. See, e.g., Tr. 658:6-19, 659:14-18. Under
these circumstances, the Court declines to find that the notices "falsely stated" Plaintiffs' rate of pay. The Court also
rejects Plaintiffs' claim that Defendants violated§ 195(1) even after providing dual-language notices because
Plaintiffs were not given copies of the notices to keep. Pl. Post-Trial Mem. 41. Neither the statute nor its
implementing regulations contains such a requirement. See N.Y. Lab. Law§§ 195(1), 198(1-b); N.Y. Comp. Codes
R. & Regs. tit. 12, § 146-2.2.
37
For all non-exempt employees, "the statement shall include the regular hourly rate or rates of pay; the overtime
rate or rates of pay; the number ofregular hours worked[;] and the number of overtime hours worked." N.Y. Lab.
Law § 195(3).
47
supra Section II.F.4. Indeed, the statements "show only that [P]laintiffs earned tip-related
income; they do not record that any of the tip income was claimed as part of the minimum
wage." Copantitla, 788 F. Supp. 2d at 290. Accordingly, Plaintiffs did not receive wage
statements compliant with § 195(3).
F. Uniforms
Under New York law, an employer cannot require its employees to pay for the cost of
purchasing a required uniform. N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.8 ("When an
employee purchases a required uniform, he or she shall be reimbursed by the employer for the
total cost of the uniform no later than the next payday."); accord id. § 137-1.8 (repealed eff. Jan.
1, 2011). 38 A required uniform is "clothing required to be worn while working at the request of
an employer ... except clothing that may be worn as part of an employee's ordinary wardrobe,"
id. § 146-3.lO(a); accord id. § 137-3.13 (repealed eff. Jan. 1, 2011), meaning "ordinary basic
street clothing selected by the employee where the employer permits variations in details of
dress,'' id. § 146-3. lO(b).
Federal law, by contrast, mandates that an employer cover uniform costs only when "the
employees' expenditures for these purposes would reduce their wages to below minimum wage."
Ayres v. 127 Rest. Corp., 12 F. Supp. 2d 305, 310 (S.D.N.Y. 1998). The term "uniform" is also
not expressly defined. However, the U.S. Department of Labor's Field Operations Handbook
(the "FOH") 39 suggests that, "[a]lthough there are no hard-and-fast rules in determining whether
38
Prior to January 1, 2011, New York law prohibited employers from imposing uniform costs on employees only "if
those costs would reduce [the employee's] pay below the full statutory minimum wage." Garcia v. La Revise
Assocs. LLC, 08 Civ. 9356, 2011WL135009, at *6 (S.D.N.Y. Jan. 13, 2011) (citing N.Y. Comp. Codes R. & Regs.
tit. 12, § 137-1.8 (repealed eff. Jan. 1, 2011)). Since January 1, 2011, employers have been required to pay for
uniform costs "regardless ofa given employee's rate of pay." N.Y. Comp. Codes R. & Regs. tit. 12, § 146-l.8(c).
39
The FOH "is an operations manual that provides Wage and Hour Division (WHD) investigators and staff with
interpretations of statutory provisions, procedures for conducting investigations, and general administrative
guidance. . . . The FOH reflects policies established through changes in legislation, regulations, significant court
48
certain types of dress are considered uniforms," where an employer "permits variations in details
of dress," "a general type of ordinary basic street clothing [that is required] to be worn while
working ... would not be considered ... [a] uniform[]." FOH § 30cl2(f)(l). "On the other
hand, ... a specific type and style of clothing [that is required] to be worn at work, e.g. where a
restaurant or hotel requires a tuxedo or a skirt and blouse or jacket of a specific or distinctive
style, color, or quality, ... would be considered [a] uniform[]." Id. § 30c12(f)(l)(b).
Based on these precepts, the Court concludes that the ties and shirts40 worn by bussers
and runners at Fresco constitute a required uniform under New York law and a uniform under
federal law, as the Restaurant does not permit variation in these articles of clothing. Indeed,
bussers and runners must wear ties and shirts of a particular color and style, both of which are
sold to workers by the Restaurant. See supra Section ILG; see also, e.g., Copantitla, 788 F.
Supp. 2d at 293 (noting that "[s]everal courts have found that requiring a specific color of
clothing might reasonably be considered to make work clothing a uniform under New York law"
and finding summary judgment to be inappropriate "where a reasonable factfinder could find that
captains wore suits, ordered from a single retailer, that were of a color that they disliked, and
busboys were required to wear aprons and vests of a particular color and style chosen by
defendants"). Accordingly, Defendants are liable to Plaintiffs for the amounts expended on these
items. 41
The black dress pants, black dress shoes, and black belt, however, are not supplied by the
Restaurant and there is no evidence that Fresco prohibits variation in these items, which all fall
decisions, and the decisions and opinions of the WHD Administrator." U.S. Dep't of Labor, Field Operations
Handbook, available at http://www.dol.gov/whd/foh/index.htm.
40
The Court considers the collar stays to be a component of the shirts.
41
Because Plaintiffs were never paid wages at a rate above minimum wage, Defendants are liable not only under
current New York law, but also under federal law and New York law prior to January 1, 2011.
49
within the scope of "ordinary basic street clothing." Thus, they do not constitute a required
uniform under New York law or a uniform under federal law. See, e.g., Lu v. Jing Fong Rest.,
Inc., 503 F. Supp. 2d 706, 712 (S.D.N.Y. 2007) (concluding that "black dress pants, black socks,
and black leather shoes ... do not qualify as a 'uniform"' (internal quotation marks and citation
omitted)); U.S. Dep't of Labor, Wage & Hour Div., Op. Letter 1-2 (May 15, 2008), available at
http://www.dol.gov/whd/opinion/FLSA/2008/2008_05_15 _ 04_FLSA.pdf (explaining that "darkcolored," closed-toed shoes with a non-slip sole, which may be of any "quality, brand, style,
model, or type" and purchased from the employee's vendor of choice, are not a "uniform" under
federal law). Defendants, therefore, bear no responsibility for the costs of these purchases.
G. Crumbers
An employer violates the FLSA if it requires an employee to purchase "tools of the trade
which will be used in or are specifically required for the performance of the employer's
particular work" and "the cost of such tools ... cuts into the minimum or overtime wages
required to be paid to [the employee]." 29 C.F.R. § 531.35. The same holds true under New
York law. E.g., Lin v. Benihana Nat'! Corp., 755 F. Supp. 2d 504, 511-12 (S.D.N.Y. 2010); see
also N.Y. Comp. Codes R. & Regs. tit. 12, § 146-2.7(c) ("If an employee must spend money to
carry out duties assigned by his or her employer, those expenses must not bring the employee's
wage below the required minimum wage."); id. § 137-2.5(b) (repealed eff. Jan. 1, 2011) ("The
minimum wage shall not be reduced by expenses incurred by an employee in carrying out duties
assigned by his employer."). The crumbers purchased by bussers and runners, see supra Section
ILG, are "tools of the trade." Thus, Defendants are liable to Plaintiffs for the costs incurred in
acquiring these items.
50
H. FLSA Statute of Limitations
The statute of limitations for "a cause of action arising out a willful violation" of the
FLSA is three years. 29 U.S.C. § 255(a). For non-willful violations, the statute oflimitations is
two years. Id. 42 To prove a willful violation, an employee must establish "that the employer
either knew or showed reckless disregard for the matter of whether its conduct was prohibited by
the statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). Reckless disregard
"involves actual knowledge of a legal requirement, and deliberate disregard of the risk that one is
in violation." Hart v. Rick's Cabaret Int'!, Inc., 967 F. Supp. 2d 901, 937-38 (S.D.N.Y. 2013)
(internal quotation marks and citation omitted); see also, e.g., Pinovi v. FDD Enters., Inc., 13
Civ. 2800, 2015 WL 4126872, at *4 ("Recklessness is defined as, at the least, an extreme
departure from the standards of ordinary care, to the extent that the danger was either known to
the defendant or so obvious that the defendant must have been aware of it." (internal quotation
marks and citation omitted)). "If an employer acts unreasonably, but not recklessly, in
determining its legal obligation, its action should not be considered willful." Parada v. Banco
Industrial de Venezuela, CA., 753 F.3d 62, 71 (2d Cir. 2014) (internal quotation marks, citation,
and brackets omitted); see also Young v. Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir.
2009) (explaining that a showing of "[m]ere negligence is insufficient" to establish willfulness).
Applying the foregoing principles, the Court concludes that Plaintiffs have established
that Defendants committed a willful violation by failing to compensate Plaintiffs for all hours
worked prior to June 26, 2011. There is no question that Defendants knew that employees must
be paid for all hours worked. This legal obligation is axiomatic. Nevertheless, prior to June 26,
2011, Defendants capped Plaintiffs' compensation per shift and per week at levels below the
42
By contrast, the statute of limitations under the NYLL is six years in all cases. N.Y. Lab. Law§§ 198(3), 663(3).
51
number of hours Plaintiffs actually worked. See supra Sections II.D.1, II.E.3.a, III.C.l. Such
conduct epitomizes a willful violation. Accordingly, Defendants' liability for this FLSA
violation extends back to three years prior to the filing of the complaint. With respect to the
other FLSA violations, the Court finds that Defendants acted, at most, umeasonably, which is
insufficient to trigger the three-year limitations period. 43 Therefore, Defendants' liability for
these violations extends back only two years.
IV.
Conclusion
For the reasons stated, the Court finds that Plaintiffs have proven, by a preponderance of
the evidence, that Defendants Starjem and Anthony Scotto 44 violated the FLSA and the NYLL as
set forth above. In light of this liability determination, the case will now proceed to the damages
phase. Accordingly, it is ORDERED that:
1. By September 2, 2015, based upon the Court's findings, Plaintiffs shall submit a
detailed proposed order with a calculation of the amount owed to each Plaintiff;
2. By September 16, 2015, Defendants shall submit any opposition; and
3. By September 23, 2015, Plaintiffs shall reply.
SO ORDERED.
Dated: August 12, 2015
New York, New York
ANALISA TORRES
United States District Judge
43
The Court rejects Plaintiffs' argument that Defendants acted with reckless disregard because "[m]any of the
claims that are the subject of this action were the basis for a previous lawsuit against Fresco [filed in August 2010,]
... in which Defendants[] moved for and were denied summary judgment on several of these same claims." Pl.
Post-Trial Mem. 48. Neither the filing of a lawsuit nor the denial of a defendant's motion for summary judgment
indicates, as Plaintiffs suggest, that "there [is] a high likelihood" that the defendant "violated the law." Id.
Moreover, it is not "necessarily reckless [for an employer] to adhere to ... a practice in the face of legal risk." Hart,
967 F. Supp. 2d at 938.
44 Defendants do not dispute that Starjem and Anthony Scotto may each be held liable as Plaintiffs' employer under
the FLSA and the NYLL.
52
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