Alvarado Balderramo et al v. Go New York Tours Inc. et al

Filing 239

OPINION AND ORDER re: 186 MOTION for Summary Judgment . filed by Asen Kostadinov, Go New York Tours Inc. For the foregoing reasons, Defendants' motion for summary judgment is DENIED. The Clerk of Court is respectfully directed to terminate the motion, Doc. 186. The next case management conference will be held on October 6, 2021. (As further set forth in this Order.) (Signed by Judge Edgardo Ramos on 5/10/2021) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VICTOR H. ALVARADO BALDERRAMO,
individually and on behalf of all other persons
similarly situated, et al.,
Plaintiffs,
– against –

OPINION AND ORDER
15 Civ. 2326 (ER)

GO NEW YORK TOURS INC., and ASEN
KOSTADINOV, jointly and severally,
Defendants.
Ramos, D.J.:
Victor H. Alvarado Balderramo (“Alvarado”) brings this FLSA collective action and
class action lawsuit against Go New York Tours Inc. and its president and owner, Asen
Kostadinov (collectively “Defendants”). Plaintiffs have alleged violations of the minimum wage
and overtime provisions of the Fair Labor Standards Act (“FLSA”) and related violations of New
York Labor Law (“NYLL”). 1 Before the Court is Defendants’ motion for summary judgment, or
alternatively, to stay the action pending resolution of a New York State Department of Labor
(“NYSDOL”) investigation pursuant to the primary jurisdiction doctrine. For the reasons
discussed below, Defendants’ motion is DENIED.
I.

BACKGROUND
A.

Factual and Procedural History

Plaintiffs first brought this action on March 27, 2015. Alvarado is a former tour bus
driver for Go New York, which provides guided bus tours of New York City. Alvarado has

1

See 29 U.S.C. §§ 201 et seq.; NYLL §§ 190 et seq.

alleged that Defendants failed to provide appropriate minimum wage and overtime
compensation, failed to provide “spread of hours” pay as required under 12 N.Y. Comp. Codes
R. & Regs. (“NYCRR”) § 142-2.4, did not provide uniform maintenance pay under 12 NYCRR
§142-2.5(c), did not make timely payment of wages as required by NYLL § 191(d), and did not
provide wage statements or wage notices as required by NYLL §§ 195(1)–(3). Alvarado alleges
that he worked between 70 and 87 hours per week, often for more than ten hours per day. Doc.
16 at ¶¶ 18–20.
After filing an amended complaint, which added Luis Falquez as a plaintiff, Plaintiffs
moved to conditionally certify this matter as a FLSA collective action on January 22, 2016. Doc.
18. Following Defendants’ consent to this conditional certification, the Court granted Plaintiffs’
motion on April 29, 2016. Doc. 33. The Court issued an order and notice conditionally
certifying this case as a collective action on May 9, 2016. Doc. 35. The order covered “all
employees of the defendants who worked as tour bus drivers and who were employed at any time
since March 27, 2012.” Id. at ¶ 2. Twenty-two individuals consented to become party plaintiffs
in the following months.
Plaintiffs then filed a motion seeking to certify a class under Fed. R. Civ. P. 23(b)(3), as
well as to conditionally certify a collective action for tour guides (in addition to the bus drivers
who were covered by the Court’s May 9, 2016 order). Doc. 66. On June 28, 2017, the Court
granted Plaintiffs’ motion for class certification but denied Plaintiffs’ motion to conditionally
certify a class encompassing tour guides. Doc. 104. Following a subsequent request by the
parties, the Court issued an order on January 29, 2020 clarifying the scope of the classes. See
Doc. 165. The Court noted that the “Rule 23 class is composed of bus drivers employed from
March 27, 2009 on—the end of the class period will be subject to an opt-out deadline.” Id. at 6.

2

Following the Court’s June 2017 class certification decision, there was no activity in this
case for about twenty-two months. However, after the Court sua sponte dismissed this case for
failure to prosecute in April 2019, Plaintiffs wrote that they had been pursuing settlement
negotiations and requested that the case be re-opened. Doc. 108. The Court granted the request
to re-open the case. Doc. 109. Defendants thereafter moved to dismiss on the basis of Plaintiffs’
failure to prosecute. Doc. 137. The Court denied this motion on November 1, 2019. Doc. 159.
The parties have since been engaged in discovery.
B.

The NYSDOL Investigations

Defendants now move for summary judgment, arguing that this action must be dismissed
or stayed due to overlapping investigations by the NYSDOL. As described in more detail in §
I.B.ii–iv., the record reflects that the NYSDOL has conducted three investigations into
Defendants’ labor practices, though two have been consolidated.
i.

Background Regarding NYSDOL Investigations

Under New York Labor Law, the NYSDOL may investigate suspected labor law
violations such as those alleged by Plaintiffs. See generally NYLL § 21. The NYSDOL has the
power to investigate or bring a civil suit on behalf of an employee. See, e.g., NYLL § 663(2)
(authorizing the NYSDOL to bring legal action to collect unpaid wages). However, this power is
not exclusive. As relevant here, under the NYLL an aggrieved employee with wage and hour
claims may either file a complaint directly with the NYDSOL, or file a private lawsuit. See §
663(1), (3) (providing for a private cause of action and noting that “[i]nvestigation by the
commissioner shall not be a prerequisite to nor a bar against a person bringing a civil action
under this article”); see also NYLL § 196-a(a) (permitting employees to file complaints directly
with the NYSDOL).

3

At the end of the NYSDOL’s investigation, it may issue an “Order to Comply,” or
otherwise notify the parties that the investigation has concluded. See NYLL § 663(3). If an
Order to Comply is issued, it is appealable to the Industrial Board of Appeals (“IBA”). NYLL §
101, see also 12 NYCRR § 66.1; Doc. 190-2, Defs’ Ex. N (website excerpts explaining the IBA
appeal process). An IBA appeal approximates a judicial proceeding and the NYSDOL would
appear as a party. 12 NYCRR § 66.1(c). Following the IBA’s determination, a party may appeal
to state court pursuant to CPLR Article 78. Id. § 102(2).
ii.

Investigation 1185

At an unidentified date, the NYSDOL began investigation number LS012012011185
(“Investigation 1185”), which examined Defendants’ treatment of several employees during the
time period of March 19, 2012 to April 6, 2014. Doc. 191-1, Defs’ Ex. L, at D010570. 2 This
investigation resulted in a settlement on or about March 24, 2017, in which Defendants paid
$18,066.89 to nine employees, three of whom—Michael Ray, Rory Friday, and Erick
Espinosa—were bus drivers. See id. at D010597–98; D010629–30, 36–38. 3 A fourth driver,
Juan Peralta, was identified as part of the investigation, but does not appear to have been
included in the ultimate settlement. Id. at D010596, D010629–30. The four bus drivers included
in the NYSDOL investigation are also included in the instant collective action. Compare Doc.
213 at ¶ 24 with Doc. 191-1 at D010629–30.
The NYSDOL settlement was based on the agency’s finding that Defendants “failed to
provide the correct wages for overtime hours worked and failed to pay workers their complete

2

The Court will cite to the Bates numbers utilized by the parties.

The settlement agreement in the record is unexecuted by the NYSDOL. However, neither party contests the
existence of a settlement agreement.

3

4

regular wages.” Id. at D010570. The settlement also imposed penalties for Defendants’ alleged
failure to provide meal breaks, and failure to provide wage statements. A letter from the
NYSDOL to Defendants’ former counsel also indicates that the NYSDOL found violations of
NYLL § 191a, failure to timely pay wages, though the settlement does not appear to have
imposed penalties based on this violation. Id. at D010659. The settlement agreement provides
that the NYSDOL “will not issue future assessments against [Defendants] for unpaid wages
and/or wage benefits due to any of the employees . . . for the period covered therein, but reserves
the right to investigate any claims of wages and/or wage benefits due to: other employees during
any time period; or the employees . . . for time period other than those set forth therein.” Id. at
D010637. The agreement also provided that no party could seek further redress at the IBA or in
court regarding “such matter . . . except as may be necessary to enforce the terms of this
Stipulation.” Id. at D010638. However, Plaintiffs have taken the position that because Ray,
Friday and Espinosa did not execute any waiver of rights in connection with the NYSDOL
investigation—and because the parties to the settlement were the NYSDOL and Defendants (as
opposed to the drivers themselves)—nothing prevents these drivers from pursuing this action.
Doc. 215, Pls. Opp. at 5.
iii.

Investigations 7786 and 1502

On undisclosed dates in 2014 and 2015, the NYSDOL instituted two additional
investigations of Defendants, investigation numbers LS202014007786 (“Investigation 7786”)
and LS20215001502 (“Investigation 1502”). Doc. 187, Defs’ 56.1 at ¶¶ 22–23. The
investigations covered violations of minimum wage and overtime laws, unlawful deductions, the
denial of meal breaks and failure to furnish pay statements, and were eventually consolidated.
Doc. 192-1, Defs’ Ex. K, at P281. Following several site visits and inspection of Defendants’

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records, the NYSDOL issued a Notice of Labor Law Violation on June 17, 2016. Id. at P289.
As part of this Notice, the NYSDOL sought to impose $6,062,890.74 in unpaid wages and other
damages for violations incurred during a March 2012 to March 2015 audit period. Id. at P288.
The parties have not described in detail the activity in this investigation between summer 2016
and summer 2019. However, the record suggests that the NYSDOL was in touch with
Defendants’ former counsel regarding the NYSDOL’s computations, both in the time period
leading up to the Notice of Labor Law Violation and following that date. These discussions
included the exchange of “recapitulation sheets,” which reflect the NYSDOL’s preliminary
calculations regarding money owed, as well as references to a compliance conference, which is
akin to a settlement conference. See Id. at P280–81. 4
On August 21, 2019, the NYSDOL issued a letter notifying Defendants of a change in the
NYSDOL’s calculations of the amount due. Doc. 190-1, Defs’ Ex. M, at D000132. 5 As
amended, the NYSDOL sought $2,903,875.45 in restitution through Investigation 7786 and
$2,963,384.53 for Investigation 1502, for a total penalty of $5,867,259.98. Id. at D000132–33.
This amount was delineated in amended recapitulation sheets, which provide calculations for
damages incurred during the March 2012–March 2015 audit period. Defendants state that they
are waiting for the NYSDOL to issue an Order to Comply. Doc. 188 at 9. The record reveals no
further activity in this investigation since the NYSDOL’s August 21, 2019 letter.

4

It is unclear from the record whether a compliance conference was ultimately held.

The August 21, 2019 letter suggests that there was an intervening change in the damages owed “based on private
lawsuits and payments [Defendants] remitted,” which was set forth in a letter dated October 9, 2018. Doc. 190-1 at
D000132. The parties have not addressed the October 9, 2018 letter and it does not appear to be included in the
record before the Court.

5

6

iv.

Overlap and Similarities Between the Investigations and this Case

There is some overlap between the subject matter of the NYSDOL investigations and the
claims in this case. Regarding Investigation 1185, three of the class members were involved in a
NYSDOL settlement for claims arising at various times between June 4, 2012 and April 3, 2014.
Doc. 191-1 at 10634–36. These included minimum wage and overtime claims, as well as
penalties for violations of NYLL § 661 and failure to furnish a wage statement pursuant to 12
NYCRR § 142-2.7. Investigation 1185 does not appear to have addressed any of the Plaintiffs’
spread of hours claims or claims for uniform maintenance pay, nor does the settlement cover
other individuals or time periods. Because Investigation 1185 resulted in a settlement, the
NYSDOL never issued an Order to Comply regarding this investigation; thus, there was also no
IBA or Article 78 proceeding.
The degree of overlap between this case and investigations 7786 and 1502 is less clear,
and is vigorously disputed by the parties. Defendants argue that Plaintiffs’ claims largely
overlap with these NYSDOL investigations, which related to (1) alleged violations of New York
minimum wage and overtime law, (2) violations of NYLL § 162, requiring prescribed meal
periods; (3) violations of NYLL § 193.1, prohibiting unlawful deductions; (3) violations of
NYLL § 661, requiring records to be kept and made available for inspection; and (4) failure to
furnish each employee a statement with every payment of wages, in violation of 12 NYCRR §
142-2.7. Doc. 192-1 at P290. While Plaintiffs do not dispute that they have also brought
minimum wage and overtime claims, they emphasize that they are pursuing several claims not
encompassed by the NYSDOL investigation, including: (1) potential “spread of hours” claims,
for which Plaintiffs would be owed an additional hour’s pay at minimum wage for each day in
which their hours worked exceeded 10 hours, in violation of 12 NYCRR § 142-2.4; (2) claims

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for failure to provide uniform maintenance pay in violation of 12 NYCRR § 142-2.5(c); (3)
failure to timely pay wages in violation of NYLL § 191 6; and (4) wage statement and wage
notice violations pursuant to NYLL § 195(1) and §195(3). 7 Doc. 215 at 11. Plaintiffs also note
that their minimum wage allegations include hours for which they were allegedly not paid at all,
in contrast to the NYSDOL investigation, which they allege was limited to underpayment of
applicable overtime rates. Doc. 215 at 12. Plaintiffs further note that the NYSDOL has not
sought prejudgment interest. Id. at 11.
The parties also dispute the status of the numerous individuals who were employed by
Defendants at some point during the audit period, but were not included in the NYSDOL’s
recapitulation sheets. Plaintiffs argue that such individuals were not subject to investigation by
the NYSDOL, while Defendants have argued that the NYSDOL’s investigation considered such
claims, but simply made a determination not to bring charges. See Doc. 215 at 6–11; Doc. 217 at
5–6. This question impacts a significant portion of the class, as Plaintiffs have submitted an
affirmation stating that, out of the 243 individuals included in the NYSDOL’s recapitulation
sheets, only approximately 46 are class members. Doc. 213 at ¶ 32. According to Plaintiffs, this
leaves approximately 90 class members hired before May 13, 2016 who were excluded from the
NYSDOL investigation. Id. at ¶ 34. There is little direct record evidence regarding whether all
of these individuals had their claims investigated, although a July 13, 2016 email from
Defendants’ former counsel to an NYSDOL investigator states that the NYSDOL had

The NYSDOL made a finding that Defendants had violated §191 in Investigation 1185, but there is no such
finding in the other investigations. Compare Doc. 191-1 at D010636 with Doc. 190-1 at D000135.

6

In all three investigations, however, the NYSDOL has alleged violations of 12 NYCRR § 142-2.7, the
implementing regulation for § 195(3), NYLL’s wage statement provision.

7

8

“requested, and has received, time and payroll records for all individuals employed by Go NY
Tours, for all job classifications, for the relevant time period.” Doc. 192-1 at P283.
In addition to these disagreements, the parties further dispute the relevant timeframe of
alleged violations covered by the NYSDOL investigations. The NYSDOL’s recapitulation
sheets, which include damages calculations for 243 employees, cover an audit period from
March 4, 2012 to March 1, 2015. Doc. 192-1 at P288; see also Doc. 190-1 at D000139.
Plaintiffs thus argue that any violations occurring after March 1, 2015, the end of the audit
period, are not covered by the NYSDOL investigation, and thus at least 253 drivers who were
hired after the end of the audit period have completely non-overlapping claims. Doc. 215 at 14. 8
In support, they cite to a June 17, 2016 correspondence in which the NYSDOL informed
defendants that it had “concluded its investigation on Go New York Tours” and that it was
Defendants’ “responsibility to conduct an up to date self-audit and come into compliance
immediately.” Doc. 192-1 at P285, 287. Defendants have responded that the NYSDOL
continued to investigate them after the audit period. In their December 30, 2020 letter,
Defendants argue that the NYSDOL decided not to bring additional charges against Defendants
after reviewing its changed employment practices and conducting a “review of samples of
Defendants’ records to satisfy itself that Defendants [sic] new procedures were satisfactory.”
Doc. 226 at 2. These samples, and the NYSDOL’s response thereto, are not before the Court.
Finally, there is evidence throughout the record that that the NYSDOL may have
excluded some individuals from the investigation due to their involvement in this or other
lawsuits. For example, on May 12, 2015, former counsel for Defendants requested that several

In a letter filed December 30, 2020 in response to Plaintiffs’ sur-reply brief, Defendants argued that at least three
of these individuals were not actually bus drivers. Doc. 226 at 2–3.

8

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employees, including class representative Alvarado, be excluded from the investigations “as their
claims have been resolved, or are being handled in separate DOL audits or in private litigations.”
Doc. 191-1 at D010590. On February 19, 2016, Defendants’ prior counsel again informed the
NYSDOL that Plaintiffs in this case had filed a class certification motion, writing that “[y]ou had
previously mentioned to [Defendants’ counsel] that you may choose to intervene with plaintiffs’
counsel should they seek class or collective certification in a private action, to avoid your
investigation from potentially becoming moot.” Doc. 192-1 at P336–37. The NYSDOL has not
attempted to intervene in this action. However, in its August 21, 2019 letter, an NYSDOL
investigator noted that changes to the amount due had been made “based [in part] on private
lawsuits.” Doc. 190-1 at D000132.
II.

LEGAL STANDARD
To prevail on summary judgment, the movant must show that the admissible evidence

and pleadings leave “no genuine dispute as to any material fact.” Fed. R. Civ. P. (“FRCP”)
56(a). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d
454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d
Cir. 2009)). “A ‘material’ fact is one that might ‘affect the outcome of the suit under the
governing law.’” Id.
The party moving for summary judgment is first responsible for demonstrating the
absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Where “the burden of proof at trial would fall on the nonmoving party, it ordinarily is
sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential
element of the nonmovant’s claim.” Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d

10

Cir. 2009) (citing Celotex, 477 U.S. at 322–23). If the moving party meets its burden, “the
nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue
of fact for trial in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d
140, 145 (2d Cir. 2008) (citing Celotex, 477 U.S. at 322–23).
In deciding a motion for summary judgment, the Court must “construe the facts in the
light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)
(quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). “When . . . both
sides move for summary judgment, the district court is ‘required to assess each motion on its
own merits and to view the evidence in the light most favorable to the party opposing the motion,
drawing all reasonable inferences in favor of that party.’” Asberry v. Hartford Life & Acc. Ins.
Co., No. 14 Civ. 69 (JMF), 2015 WL 857883, at *3 (S.D.N.Y. Feb. 27, 2015) (quoting Wachovia
Bank, Nat’l Ass’n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir.
2011)). Thus, “neither side is barred from asserting that there are issues of fact, sufficient to
prevent the entry of judgment, as a matter of law, against it.” Heublein, Inc. v. United States,
996 F.2d 1455, 1461 (2d Cir. 1993).
III.

DISCUSSION
A.

The Primary Jurisdiction Doctrine

The doctrine of primary jurisdiction is an abstention doctrine that applies when a court
has jurisdiction over a claim, but “enforcement of the claim requires, or is materially aided by,
the resolution of threshold issues . . . placed within the special competence of the administrative
body.” Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58–59 (2d Cir. 1994).
The doctrine “serves two interests: consistency and uniformity in the regulation of an area which

11

Congress has entrusted to a federal agency; and the resolution of technical questions of facts
through the agency’s specialized expertise.” Id. at 59.
There is no “fixed formula” for the application of the doctrine, which should be applied
on a case by case basis. Ellis v. Tribune Tel. Co., 443 F.3d 71, 82 (2d Cir. 2006) (citations
omitted). However, courts in the Second Circuit have focused their inquiry on the balancing of
four factors, “(1) whether the question at issue is within the conventional experience of judges or
whether it involves technical or policy considerations within the agency’s particular field of
expertise; (2) whether the question at issue is particularly within the agency’s discretion; (3)
whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior
application to the agency has been made.” Nat’l Commc’ns Ass’n, Inc. v. Am. Tel. & Tel. Co., 46
F.3d 220, 222 (2d Cir. 1995). The court must also balance “the advantages of applying the
doctrine against the potential costs resulting from complications and delay in the administrative
proceedings.” Id. at 223.
B.

Application of the Four-Factor Test

Defendants’ position is that all of Plaintiffs’ class claims should be dismissed or stayed
pending the resolution of the NYSDOL investigation, as their theory is that the NYSDOL’s
investigations were sufficiently wide-ranging and comprehensive as to cover all the claims at
issue in this case. For the reasons discussed, the Court will deny relief based on this theory.
While the parties do not discuss the possibility of dismissing or staying the claims in part, the
Court will also decline to do so at this stage, as discussed in § III.B.iii.
i.

Conventional Experience of Judges and the Agency’s Expertise

The primary jurisdiction doctrine will apply when a matter is not within the
“conventional experiences of judges,” but rather falls within the discretion of an “administrative

12

agency with more specialized experience, expertise, and insight.” Nat’l Commc’ns Ass’n, Inc.,
46 F.3d at 223. Defendants argue that this case involves “technical and policy considerations,”
while Plaintiffs respond that this is an ordinary FLSA action, similar to the numerous wage and
hour cases that this Court regularly handles. Doc. 188 at 13; Doc. 215 at 16–17.
This factor weighs heavily in favor of Plaintiffs. Despite Defendants’ invocation of the
need for agency expertise, they have not identified any specific technical or policy considerations
that make this case uniquely suited to agency resolution. Rather, the resolution of this action will
hinge on the application of well-established statutory law to Defendants’ labor practices, as is the
case in the numerous FLSA and NYLL cases regularly adjudicated by the Court. Indeed, the
NYSDOL’s summary of its investigation as described in its June 17, 2016 letter describes
routine investigatory methods, such as interviews with employees and the employer, examination
of time records, and the calculation of damages based on this information. See Doc. 192-1 at
P285–86. Thus, while Defendants have identified areas of overlap between the NYSDOL
investigations and the claims in this action, they have not made a showing that the substantive
questions in this case require the exercise of specialized policy judgment. Cf. Ellis, 443 F.3d at
*83–84 (applying the primary jurisdiction doctrine to permit the FCC to make a licensing
determination, which required a delicate balancing of the public interest and other “difficult and
unique” policy questions); Goya Foods, Inc. v. Tropicana Prods., Inc., 846 F.2d 848, 851 (2d
Cir. 1988) (declining to stay a trademark infringement action, noting that “[a]pplication of the
doctrine has been refused when the issue at stake is legal in nature and lies within the traditional
realm of judicial competence.”).

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ii.

The Scope of the Agency’s Discretion

Defendants have also argued that Plaintiffs’ claims are “particularly within the
NYSDOL’s discretion.” Doc. 217 at 8–9. However, this factor is typically met when a
regulatory scheme places certain issues into the specialized discretion of an agency in the first
instance, often to utilize its expertise and assist judicial decision-making. See Ellis, 443 F.3d at
82 (discussing the occasional need for specialized expertise); see also U.S. v. W. Pac. R.R. Co.,
352 U.S. 59, 64 (1956) (primary jurisdiction is appropriate when “enforcement of the claim
requires the resolution of issues which, under a regulatory scheme, have been placed within the
special competence of an administrative body”). Here, while the NYSDOL is authorized to
investigate violations of NYLL, the overall regulatory scheme weighs against applying the
primary jurisdiction doctrine.
First, NYLL explicitly contemplates the possibility of simultaneous action by Plaintiffs in
private lawsuits and through action by the NYSDOL. See NYLL § 663 (providing for both a
private cause of action and an action by the [NYSDOL], noting that “[i]nvestigation by the
[NYSDOL] shall not be a prerequisite to nor a bar against a person bringing a civil action under
this article”); see also NYLL § 198(3) (same). This fact alone does not necessarily preclude the
application of the primary jurisdiction doctrine in the wage and hour context. However, the
Court will weigh the fact that NYLL treats NYSDOL investigations and private lawsuits as coequal mechanisms for enforcement of the labor laws. In this way, NYLL differs from other
statutory schemes cited by Plaintiffs, in which an agency has been designated with exclusive
discretion over certain regulatory issues, leaving the courts with only limited judicial review. Cf.
Ellis, 443 F.3d at 86 (weighing the fact that the FCC has “exclusive authority” over granting
licenses, over which the Courts have only limited, deferential review) (citations omitted).

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Second, Plaintiffs here have brought FLSA minimum wage and overtime claims as well
as claims under NYLL. The NYSDOL does not have jurisdiction over Plaintiffs’ FLSA claims,
which provide the basis for this Court’s original jurisdiction. It is true that a party cannot recover
the same lost wages under both the FLSA and NYLL, see Gameroo v. Koodo Sushi Corp., 272 F.
Supp. 3d 481, 498 (S.D.N.Y. Sept. 28, 2017), and thus, in the event that Plaintiffs who are
covered by the NYSDOL investigation were to ultimately recover in a case brought by the
NYSDOL, these Plaintiffs would be unable to recover damages for overlapping FLSA minimum
wage and overtime violations. But Plaintiffs indicate that they are also pursuing FLSA and
minimum wage violations for at least 90 individuals whose claims are not included in the
NYSDOL recapitulation sheets. Doc. 215 at 9. 9 For these individuals, dismissal or a stay would
prejudice their ability to pursue the very claims that provide a basis for this Court’s jurisdiction.
Finally, Defendants cite two cases for the proposition that Courts often apply the primary
jurisdiction doctrine to cases “involving labor claims under investigation by the Department of
Labor.” Doc. 217 at 9. However, neither case cited involves wage and hour claims under NYLL
or FLSA; indeed, the Court is not aware of any case in this District or Circuit in which the
primary jurisdiction doctrine has been applied to NYLL or FLSA wage and hour claims. 10 The
first case, U.S. ex rel. Krol v. Arch Ins. Co., did not actually apply the primary jurisdiction
doctrine, as neither party raised it. See 46 F. Supp. 3d 347, 354 n.4 (S.D.N.Y. 2014). While the
court analogized to the doctrine in holding that the Section 3 of the Davis-Bacon Act (the “Act”)

According to Plaintiffs’ sur-reply brief, the number of individuals with claims outside of these investigations could
be as great as 343. Doc. 225 at 5.

9

10
Other district courts to have considered primary jurisdiction in the FLSA wage and hour context have declined to
do so, however, weighing the fact that district courts regularly decide FLSA cases. See, e.g., Archon v. Taylor &
Tyler Inc., No. 18 Civ. 6854, 2018 WL 5084875, at *6 (E.D. La. Oct. 18, 2018) (noting that FLSA cases are
common in the district); In re Chickie’s & Pete’s Wage & Hour Litig., No. 12 Civ. 6820, 2013 WL 2434611 (E.D.
Pa. June 5, 2013), at *4 (same).

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required an administrative determination by the United States Department of Labor before a
worker could bring suit for failure to pay prevailing wages under the Act, the court’s decision
was based the requirements of the Act itself. Id. at 353–54 (analyzing the text, structure and
implementing regulations of the Act to conclude that it requires an administrative determination
before a private action could be brought). Under any reasonable interpretation, the NYLL does
exactly the opposite. See NYLL § 663(3) (noting that a private action may be brought regardless
of whether an investigation has occurred).
Defendants also rely on Palmer v. Amazon.com, Inc., No. 20 Civ. 2468 (BMC), 2020 WL
6388599 (E.D.N.Y. Nov. 2, 2020). In Palmer, the court applied the primary jurisdiction doctrine
to dismiss plaintiffs’ claims alleging public nuisance and breach of the duty to protect the health
and safety of employees under NYLL § 200, in response to allegedly unsafe conditions in a
warehouse during the COVID-19 pandemic. Id. at *7. The court found that the federal
Occupational Safety and Health Administration (“OSHA”) had primary jurisdiction over the
plaintiffs’ claims. 11 However, the court explicitly reasoned that the relief sought by plaintiffs
went beyond a simple “application of law to disputed facts,” and instead implicated OSHA’s
unique expertise and discretion. Id. at *6. The court noted that it would have been tasked with
subjective and delicate assessments regarding the adequacy of Amazon’s policies in light of an
evolving scientific understanding of COVID-19, and that it lacked the “training, expertise and
resources” to do so. Id. The court also noted that entrusting such policy determinations to
OSHA, rather than the courts, would avoid the imposition of “vastly different, costly regulatory

The Palmer plaintiffs also brought a claim for failure to timely pay earned wages under NYLL § 191. However,
the Defendants do not appear to have raised a primary jurisdiction argument regarding their § 191 claim, and the
court did not dismiss the § 191 claim on this basis. Id. at *12–13.

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16

schemes.” Id. No such policy considerations exist here, as plaintiffs’ claims involve the
application of statutory law that courts in this district encounter frequently.
iii.

The Risk of Inconsistent Rulings

Defendants argue that continuing to permit Plaintiffs to prosecute this case will create an
impermissible risk of contradictory rulings. While they are correct that the unusual posture of
both this case and the NYSDOL investigation does create some such risk, the risk is ultimately
speculative and applies only to a subset of the claims at issue, for only a subset of the class.
Moreover, for the reasons discussed herein, the prejudice to class members’ ability to pursue
claims or time periods not clearly covered by the NYSDOL audit is too great for the Court to
allow, especially given the length of time that this case has been pending. 12 Thus, despite the
existence of such risk, on the whole the advantages of retaining jurisdiction over the class claims
in this case outweigh the disadvantages. See Nat’l Commc’ns Ass’n, Inc., 46 F.3d at 223 (courts
must weigh the relative advantages of applying the doctrine against the costs, including
administrative delay).
The Court notes that the parties’ arguments regarding this factor largely focus on the
extent to which the NYSDOL investigation “overlaps” with the class claims in this case. While
Plaintiffs argue that most of the class claims in this case were not covered by the NYSDOL
investigation, Defendants insist that “exact[] overlap” with the investigations is not necessary for
the primary jurisdiction doctrine to apply. Doc. 217 at 4. 13 Defendants are correct about this
principle. However, as other courts considering primary jurisdiction arguments in the wage and
The Court acknowledges that Plaintiffs have played a role in this delay through their past failure to prosecute this
case. However, since the Court’s denial of Defendants’ motion to dismiss in November 2019, see Doc. 159,
Plaintiffs have been on notice that further unreasonable delay may result in dismissal, and have furthered the case
accordingly. Thus, regardless of the cause of prior delay, the Court does not find further delay desirable.

12

Defendants nonetheless take the position that this case is duplicative of the NYSDOL investigation. See Doc. 188
at 13–14.

13

17

hour context have observed, the extent of overlap is nevertheless relevant to assessing the risk of
inconsistent rulings, because there can be no such risk regarding claims (or individuals) that were
not considered by the agency. See In re Chickie’s & Pete’s Wage & Hour Litig., 2013 WL
2434611, at *4 (finding no risk of inconsistent rulings regarding claims not covered by a
Department of Labor investigation). Moreover, because the primary jurisdiction doctrine is
prudential, analyzing the overlap between Plaintiffs’ claims and the NYSDOL investigation is
nevertheless germane to the Court’s assessment of the relative advantages and disadvantages of
applying the doctrine, and the prejudice to the parties if it were applied. Thus, while Defendants
are certainly not obligated to establish “exact overlap,” the Court will still analyze the extent to
which the NYSDOL investigations may have overlapped with Plaintiffs’ class claims. The Court
finds that there is considerable ambiguity regarding the extent of this overlap, which must be
construed in favor of Plaintiffs.
First, Defendants have not met their burden to show that several class claims falling
within the audit period in this case were investigated by the NYSDOL. Only 46 of the
approximately 391 class members in this case are included in the NYSDOL’s August 2019
recapitulation sheets, and thus would have any chance of recovering for claims within the audit
period. Doc. 213 at ¶ 32. 14 Plaintiffs argue that this means approximately 90 class members
who worked at Go New York before May 13, 2016 are not included in the calculations, including
class representative Alvarado. 15 Id. at ¶ 34. Drawing all reasonable inferences in Plaintiffs’

The Court acknowledges that the 391 class member count is disputed by Defendants and subject to change as the
parties continue to engage in discovery. See Doc. 226. However, even under the more conservative estimate set
forth in Plaintiffs’ opposition brief, the NYSDOL investigation would only cover approximately one-third of the
class. See Doc. 215 at 11.

14

At the time of Plaintiffs’ opposition brief, they had not received discovery regarding class members hired after
this date. See Doc. 213 at ¶ 25. Plaintiffs do not state how many of the 90 individuals identified in their Opposition
papers were hired before the NYSDOL audit period ended on March 1, 2015, as opposed to after this date but before
May 13, 2016.

15

18

favor, Defendants have not established that these plaintiffs’ claims were or will be investigated
by the NYSDOL, raising the risk of significant prejudice to Plaintiffs. Plaintiffs also allege that
the class has outstanding claims for hours they were shorted while picking up buses, and are
owed money for uniform maintenance and spread-of-hours pay—even those class members
whose minimum wage and overtime claims are reflected in the NYSDOL’s recapitulation sheets.
Doc. 213 at ¶¶ 38–40; see also Docs. 68–87 (declarations of workers alleging, inter alia, hours
for which they were not paid at all and Defendants’ failure to provide uniform maintenance
pay). 16
Defendants do not dispute that numerous claims in this case fall outside the scope of the
NYSDOL’s preliminary findings during the audit period, but urge the Court to treat all these
issues as either investigated or under investigation, because of the NYSDOL’s wide
investigatory power, and because Investigations 7785 and 1502 were “far-ranging” and
“extremely broad and lengthy.” Doc. 217 at 5–6. Thus, Defendants suggest that the NYSDOL
“has, and continues to have, jurisdiction over [all issues raised by the class] and the technical
expertise to bring such claims if warranted but has declined to do so [for claims outside of the
Notice to Comply and recapitulation sheets].” Doc. 217 at 5. However, Defendants have not
pointed to any specific part of the record that sufficiently defines the scope of the NYSDOL
investigation so as to assure the Court that relevant claims in this case adequately were
considered. 17 While Defendants attack Plaintiffs for failing to provide sufficient proof that such

Some of the drivers who submitted declarations making such allegations in support of Plaintiffs’ class
certification motion are included in the NYSDOL’s recapitulation sheets, while others are not. Compare Doc. 79
(declaration of Kyle Robinson, who is included in the recapitulation sheet), with Doc. 71 (declaration of Lionel
Briggs, who is not included in the recapitulation sheet).
16

In its independent review of the record, the Court notes that it appears the NYSDOL may have “requested, and []
received, time and payroll records for all individuals employed by Go NY Tours, for all job classifications, for the
relevant time period,” according to an email sent to the NYSDOL on July 13, 2016 by Defendants’ former counsel.
17

19

class representatives were not investigated, it is Defendants’ burden as the moving parties to
establish the applicability of the primary jurisdiction doctrine. Moreover, Plaintiffs have raised
questions of fact through their identification of numerous class members who were excluded
from the recapitulation sheets but who bring relevant claims. See, e.g., Doc. 213 at ¶ 34, 38–40,
and declarations cited to therein.
Similarly, it is unclear to what extent the NYSDOL investigation has encompassed
claims arising after the March 2015 audit end date. In their sur-reply brief, Plaintiffs argue that
approximately 254 individuals hired after May 13, 2016 would not have any of their claims
covered by the NYSDOL investigation. Doc. 225 at 4–5. Regarding this issue, Defendants
originally cited only to the August 19, 2019 letter from the NYSDOL regarding its Notice to
Comply. See Doc. 190-1. This document references revisions made by the NYSDOL to the
recapitulation sheets based on two data entry errors, as well as revisions made on or around
October 9, 2018 based on “private lawsuits and payments [Go New York] remitted.” Id. at
D000132. However, while this letter evinces that the NYSDOL has continued to adjust its
preliminary calculations of money owed to Plaintiffs for claims within the audit period, it does
not establish the investigation of claims outside of that period; indeed, the recapitulation sheets
attached to this letter are limited to the audit period. See generally Doc. 190-1. Defendants also
argued for the first time in their December 30, 2020 letter requesting a sur-sur reply that the
NYSDOL, on an unidentified date, “requested and reviewed a sample payroll records . . . and
concluded that Go New York was in full compliance with its wage and hour obligations for

See Doc. 192-1 at P283 (emphasis in original). However, it is far from clear that the possession of these payroll
records equates to a meaningful investigation into most of the claims in this case, particularly given that Plaintiffs
allege that they were “shorted” hours spent “off the clock” picking up buses from a depot, at least until Fall 2014.
Doc. 215 at 11–12.

20

periods subsequent to the “audit period”).” Doc. 226 at 2. However, Defendants have not
submitted corroborating evidence, and waited until after Plaintiffs filed a sur-reply to raise this
argument, despite the fact that this issue was raised in Plaintiffs’ opposition brief. See Doc. 215
at 9–10; see also Doc. 213 at ¶¶ 35–37. 18 The Court therefore denied their request to file a sursur-reply. Doc. 227. For their part, Plaintiffs have submitted time records showing that some
class members may have been paid more than seven days after the end of their work week in
violation of NYLL § 191. 19 See, e.g., Doc. 224-2, Pls. Ex. 8, at D012819. Drawing all
reasonable inferences in Plaintiffs’ favor, the Court cannot find on this record that the NYSDOL
investigation sufficiently covered claims arising after the audit period.
Thus, the multiple disputes about the extent of overlap between this case and the
NYSDOL investigation counsel against dismissing this case, even if doing so might avoid some
risk of inconsistent rulings. This is because dismissal would leave the majority of the class with
no opportunity to pursue claims outside of those clearly captured by the NYSDOL’s
investigation, without any definitive statement from the NYSDOL regarding why those claims
may or may not be without merit. This result would not meet the primary jurisdiction doctrine’s
goal of “materially aid[ing]” the resolution of threshold issues. See Golden Hill Paugussett
Tribe of Indians v. Weicker, 39 F.3d 51, 58 (2d Cir. 1994).

While the Court granted leave for Plaintiffs to file a sur-reply in this case, Plaintiffs were permitted to do so on the
basis that potentially relevant discovery was provided to them after their November 16, 2020 opposition brief
deadline. See Doc. 221. Defendants, however, have not argued that they were not in possession of the referenced
NYSDOL documents, and even state that they produced these documents to Plaintiffs on November 30, 2020. See
Doc. 226 at 2 n.2. This predates Defendants’ December 7 reply brief, which failed to cite this evidence. See Doc.
217.

18

Plaintiffs have also submitted evidence purporting to show spread of hours violations post-dating the audit period,
using a paystub from plaintiff Darryl Williams as an exemplar. See Doc. 224-3, Pls. Ex. 9. While the attached
paystub could be consistent with a spread of hours violation, it is inconclusive because it does not indicate how
many hours Williams worked per day for the week in question.
19

21

Moreover, even if Defendants were to establish that the NYSDOL had investigated all of
Plaintiffs’ claims falling outside of the recapitulation sheets and decided not to bring additional
charges, the Court would risk no inconsistent rulings by adjudicating these omitted claims. This
is because the NYSDOL’s preliminary findings are made in an investigatory capacity, and do not
constitute a “full and fair opportunity to litigate the prior determination” for the purposes of
collateral estoppel or res judicata. See Metevier v. CARR Props., Inc., No. 15 Civ. 3039 (ER),
2016 WL 5793742, at *5 (S.D.N.Y. Sept. 30, 2016) (citing Jeffreys v. Griffin, 1 N.Y.3d 34, 41
(2003)). In Metevier, the court found that an individual’s claims against a company were not
barred when he had initiated an NYSDOL investigation by filing a complaint, attended a
compliance conference with the NYSDOL, and later received a “Final Report” from the
NYSDOL informing him it had concluded he was not entitled to recover wages. Id. *2. The
court reasoned that the parties had not had a formal hearing in front of the IBA, and that the
procedures used in the compliance conference were not substantially similar to those used in a
court of law. Id. at 6. While the record here shows that the parties have likely engaged in more
voluminous discovery in this investigation than occurred in Metevier, the parties do not dispute
that no Order to Comply has been issued, and thus no adversarial administrative or judicial
proceedings against Defendants have begun. 20 Thus, there is no risk of legally contradictory
rulings regarding claims outside the recapitulation sheets, because at this stage any decision by
the NYSDOL regarding whether to bring charges is akin to the exercise of prosecutorial
discretion, and has no preclusive effect on the Court. Id.; see also Xue Hui Zhang v. Ichiban
Grp., LLC, No. 17 Civ. 148 (MAD) (TWD), 2017 WL 5991748, at *7 (N.D.N.Y. Dec. 1, 2017)

In Metevier, the court weighed the fact that the parties did not appear to have had the opportunity to “engage in
discovery, present testimony under oath, examine and cross-examine witnesses, or issue subpoenas.” Id. at *6.
Here, some of that has occurred. However, this observation was not dispositive of the court’s decision in Metevier,
which was grounded in the fact that no adjudicatory or quasi-judicial proceeding had occurred.

20

22

(finding that an NYSDOL investigation and compliance conference had no preclusive effect on
Plaintiffs’ NYLL claims).
The Court acknowledges the possibility of inconsistent rulings for a subset of claims in
this case in the event the NYSDOL (1) issues an Order to Comply and (2) Defendants challenge
that Order at the IBA or in state court. However, in such an event, Plaintiffs would be prohibited
from recovering twice for overlapping claims if they prevailed in both actions. See Gameroo,
272 F. Supp. 3d at 498 (plaintiffs may not recover the same unpaid wages under both the FLSA
and NYLL). Similarly, if Defendants prevailed, they could raise preclusion or estoppel
arguments in this Court. Cf. Metevier, 2016 WL 5793742, at *7. Finally, in the event this case
is decided first, the parties have not disputed that the NYSDOL has the discretion to remove
individuals from its recapitulation sheets based on overlapping litigation. See, e.g., Doc. 190-1 at
D000132 (referencing recapitulation sheet changes based in part on “private lawsuits”). The
Court finds this remote risk preferable to the substantial risk of prejudice to Plaintiffs that would
result if this case was further delayed.
Furthermore, it would be difficult for the Court to partially dismiss or stay this case in a
way that would not prejudice Plaintiffs’ ability to bring their additional class-wide claims. Even
for the claims for which preliminary damages are laid out in the NYSDOL’s recapitulation
sheets, there remain questions of fact regarding whether any of these violations persisted beyond
the audit period, and whether Plaintiffs have additional minimum wage and overtime claims
based on being “shorted” hours. See, e.g., Doc. 224 at ¶ 17 (referencing potential § 191
violations); Doc. 79 at ¶¶ 7–8, 12 (Plaintiff declaration alleging that he was shorted hours in
addition to being owed unpaid overtime). Indeed, even under a partial stay or dismissal, the
Court would still be tasked with determining whether substantively similar class-wide violations

23

existed on behalf of the remaining class members, somewhat undermining the doctrine’s benefit
to the Court. 21 See Goya Foods, Inc., 846 F.3d at 854 (primary jurisdiction was disfavored when
the outcome of an administrative proceeding would have little effect on the federal action’s legal
standard or scope of fact-finding). Finally, the available record shows that the NYSDOL has
apparently taken no action in this investigation since August 2019, raising the concerning
possibility of prolonged delay at the agency level even if only a subset of the claims were
dismissed or stayed. See Archon, 2018 WL 5084875, at *3 (finding that a five-month delay in a
Department of Labor investigation weighed against staying the case).
Thus, while there is some risk of inconsistent rulings regarding a subset of claims in this
case, the Court finds that the benefits of retaining jurisdiction outweigh the potential costs.
iv.

Prior Application to the Agency

The existence of a prior application to the agency typically weighs in favor of applying
the primary jurisdiction doctrine. See Ellis, 443 F.3d at 89. Plaintiffs concede that an
application was made to the NYSDOL, though they note that it was not made by the named
Plaintiffs, and that the initial complainants in Investigation 1502 are not class members in this
case. Doc. 215 at 20 (citing Doc. 192-1 at P324, Doc. 213 at ¶ 24). 22 Similarly, as discussed in
Section III.B.iii, supra, Defendants have not shown that the prior applications to the NYSDOL
cover several claims in this case.
Because overlapping applications to the NYSDOL have been made, this factor favors
primary jurisdiction. However, the Court gives it reduced weight, because Defendants have not

For this reason, the Court will retain jurisdiction over the claims of plaintiffs Ray, Friday, and Espinosa, who have
apparently recovered pursuant to the settlement in Investigation 1185. In the event these individuals show they are
entitled to additional recovery through this case, the Court will apply any relevant offsets or other remedies as are
necessary to avoid prejudice to Defendants.
21

22

The parties have not identified who the initial complainants in Case 7786 were.

24

shown that the existing application to the NYSDOL will sufficiently aid the resolution of claims
in this case.
v.

The Totality of the Circumstances

The totality of the four factor test weighs against application of the primary jurisdiction
doctrine. Although there is some risk of inconsistent rulings based on an existing investigation,
the Court finds that the benefits of retaining complete jurisdiction over this case outweigh the
costs, and would better comport with the FLSA and NYLL’s statutory design. The Court
acknowledges that this decision imposes some burden on Defendants, who will continue to face
litigation and an agency investigation. Under the best of circumstances, this would be avoided.
However, on the available record, the Court cannot be assured that staying or dismissing the case
will adequately aid the resolution of claims in this case, which have already been pending for
more than six years, nor would a partial stay or dismissal sufficiently narrow their scope.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is DENIED. The

Clerk of Court is respectfully directed to terminate the motion, Doc. 186. The next case
management conference will be held on October 6, 2021.
It is SO ORDERED.
Dated:

May 10, 2021
New York, New York
EDGARDO RAMOS, U.S.D.J.

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