Krupinski v. Laborers Eastern Region Organizing Fund

Filing 24

OPINION AND ORDER re: 17 CROSS MOTION for Partial Summary Judgment, filed by Daniel Krupinski, 12 MOTION to Dismiss Complaint, filed by Laborers Eastern Region Organizing Fund. IT IS HEREBY ORDERED THAT Defendant's motion for summary judgment is GRANTED, and Plaintiff's cross-motion is DENIED. The Clerk of Court is respectfully directed to terminate the motions pending at docket numbers 12 and 17, enter judgment in favor of Defendant, and close this case. (Signed by Judge Richard J. Sullivan on 7/31/2017) (ras)

I). In that case, the Court found that Krupinski met the FLSA’s three-part test for exempt
administrative employees: he was compensated on a salary basis, his “primary duty [was] the
performance of office or non-manual work directly related to the management or general business
operations of [his] employer,” and his primary duties also “include[d] the exercise of discretion
and independent judgment with respect to matters of significance.”

29 C.F.R. § 541.200;

Krupinski I, 2016 WL 5800473, at *4–9. On the supposition that the parties were not diverse, the
Court declined to exercise supplemental jurisdiction over Krupinski’s state law claims after
dismissing his federal claim. Id. at *9–10. Krupinski thereafter brought his NYLL and WTPA
claims in New York state court. (See Doc. No. 1.) On December 23, 2016, LEROF removed the
state court action to this Court, asserting for the first time federal jurisdiction based on diversity of
citizenship, since LEROF is a citizen of New Jersey and Krupinski is a citizen of Pennsylvania.
(Id.) Because Krupinski I and the present case concern the same parties and rely on the same
factual record, the Court will assume the parties’ familiarity with most of the facts and procedural
history of both cases and limit its discussion to those facts most relevant to these motions.
A. Facts
LEROF is a non-profit labor management organization that serves as a regional organizing
fund for the Laborers International Union of North America (“LIUNA”). 1 (Def. 56.1 ¶¶ 1, 4.)
LEROF’s “core mission is to organize non-union workers to increase membership for the local

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The following facts are taken from Defendant’s Local Civil Rule 56.1 Statement (Doc. No. 14 (“Def. 56.1”)),
Plaintiff’s Counterstatement (Doc. No. 18 (“Pl. 56.1”)), the declarations submitted in support of and in opposition to
Defendant’s motion for summary judgment and Plaintiff’s motion for partial summary judgment, and the exhibits
attached thereto (Doc. Nos. 15–16, 19–20). Unless otherwise noted, where one party’s 56.1 Statement or
Counterstatement is cited, the other party does not dispute the fact asserted, has offered no admissible evidence to
refute that fact, or merely objects to inferences drawn from that fact. In deciding the parties’ cross-motions, the Court
also considered Defendant’s memorandum of law in support of its motion for summary judgment (Doc. No. 13 (“Def.
Mem.”)), Plaintiff’s memorandum of law in support of his cross-motion for partial summary judgment and in
opposition to Defendant’s motion (Doc. No. 21 (“Pl. Mem.”)), and Defendant’s reply in further support of its motion
and in opposition to Plaintiff’s cross-motion (Doc. No. 23 (“Reply”)).

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unions [in its geographical territory] and thus increase market share for LIUNA as a whole.” (Id.
¶ 5; see also id. ¶ 6.) To carry out its mission, LEROF “educat[es] workers about the benefits of
union membership and campaign[s] to have workers elect to join LIUNA.” (Id. ¶ 8.)
LEROF employs a staff of about fifty Organizers to run its organizing campaigns. (Id. ¶
10; see also id. ¶ 9 (“The power of LEROF rests in the skills and talents of members who actively
participate in organizing campaigns.”).) Organizers’ duties “generally include, but are not limited
to: house calling non-union workers; house calling union workers; [performing] committee work;
assisting in setting up campaigns; conduct[ing] meetings with workers; mobiliz[ing] and
empower[ing] workers; participat[ing] in corporate campaign activities; public speaking;
information gathering; rallying; picketing; and leafleting.” (Id. ¶ 12.)
Krupinski, a graduate of Berkeley College with a bachelor’s degree in international
business, was employed by LEROF as an Organizer from approximately June 2010 to April 2014,
when he was terminated. (Doc. No. 16, Ex. A (“Pl. Depo.”) 48:1–3, 11; Def. 56.1 ¶¶ 28–29, 75.)
Krupinski’s duties generally corresponded with those listed in LEROF’s job description for
Organizers. (Def. 56.1 ¶ 44; Pl. Depo. 23:21–24:23.) His primary objective was to “[m]otivate,”
“[e]ducate,” and “[t]rain” construction workers and convince non-union workers to join LIUNA.
(Def. 56.1 ¶ 45 (quoting Pl. Depo. 24:11–16); see also Pl. Depo. 29:7–8 (trying to improve the
market share was Krupinski’s “job almost . . . every day”).) Krupinski’s day-to-day duties
consisted mainly of “fieldwork” that included demonstrating at non-union worksites (Def. 56.1 ¶¶
56–59), educating both union and non-union workers about the benefits of union membership (id.
¶¶ 45, 55, 57), speaking with the public about LIUNA’s goals (id. ¶ 59), conducting house calls to
recruit non-union workers (id. ¶ 49), and assessing targets for house calls (id. ¶¶ 50, 66).
As required by LEROF, Krupinski attended a number of training sessions both before and

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during his employment as an Organizer. For his initial training, he participated in LEROF’s
“Voice 1” and “Voice 2” classes, in which “[O]rganizers are taught labor history, economics,
politics[,] and ‘house calling,’ with an emphasis on simulations and role playing.” (Id. ¶ 69.)
Krupinski later attended LEROF’s “Two Day Training,” an “intensive training in labor history,
economics, politics, immigration, basic labor law and picketing, house-calling, and organizing
techniques.” (Id. ¶ 70; see also Pl. Depo. 44:16–45:12, 47:19–22 (indicating that Krupinski
attended this training “a dozen” times and eventually served as an assistant teacher).) In addition,
LEROF sent Krupinski and other Organizers to outside conferences to learn more about union
market share and techniques for job-site demonstrations. (Def. 56.1 ¶ 71; Pl. Depo. 45:13–47:15.)
LEROF also offered further training through LEROF University and Cornell University’s
Industrial Labor Relations School, but Krupinski was terminated before he was able to take
advantage of those opportunities. (Def. 56.1 ¶¶ 73–74; Pl. Depo. 47:23–25.) Krupinski suggested,
however, that he had less need for further training than some other Organizers, since he already
held a bachelor’s degree in international business. (Pl. Depo. 48:1–5.)
B. Procedural History
As noted above, Krupinski initiated this action in New York State Supreme Court, New
York County, on November 17, 2016, asserting claims under New York state law. (See Doc. No.
1.) On December 23, 2016, LEROF removed the case to federal court pursuant to 28 U.S.C. §§
1441 and 1446. (Id.) After a pre-motion conference on January 19, 2017, LEROF filed its motion
for summary judgment on January 27, 2017, asserting that Krupinski was an exempt administrative
employee under the NYLL and was not entitled to statutory damages under the WTPA. (Doc.
Nos. 11–16.) Thereafter, Krupinski filed his opposition and cross-motion for partial summary
judgment on February 27, 2017 (Doc. Nos. 17–21), and LEROF filed its reply and opposition to
the cross-motion on March 6, 2017 (Doc. No. 23).
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II. LEGAL STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is “no genuine
dispute as to any material fact” where (1) the parties agree on all facts (that is, there are no disputed
facts); (2) the parties disagree on some or all facts, but a reasonable fact-finder could never accept
the nonmoving party’s version of the facts (that is, there are no genuinely disputed facts), see
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); or (3) the parties
disagree on some or all facts, but even on the nonmoving party’s version of the facts, the moving
party would win as a matter of law (that is, none of the factual disputes are material), see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a fact is genuinely disputed, the court “is not to weigh the evidence
but is instead required to view the evidence in the light most favorable to the party opposing
summary judgment, to draw all reasonable inferences in favor of that party, and to eschew
credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to show
a genuine dispute, the nonmoving party must provide “hard evidence,” D’Amico v. City of New
York, 132 F.3d 145, 149 (2d Cir. 1998), “from which a reasonable inference in [its] favor may be
drawn,” Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation
marks omitted). “Conclusory allegations, conjecture, and speculation,” Kerzer v. Kingly Mfg., 156
F.3d 396, 400 (2d Cir. 1998), as well as the existence of a mere “scintilla of evidence in support
of the [nonmoving party’s] position,” Anderson, 477 U.S. at 252, are insufficient to create a
genuinely disputed fact. A moving party is “entitled to judgment as a matter of law” on an issue
if (1) it bears the burden of proof on the issue and the undisputed facts meet that burden; or (2) the
nonmoving party bears the burden of proof on the issue and the moving party “‘show[s]’ – that is,
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point[s] out . . . – that there is an absence of evidence [in the record] to support the nonmoving
party’s [position].” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
When cross-motions for summary judgment are filed, “the standard is the same as that for
individual motions for summary judgment.” Nat. Res. Def. Council v. Evans, 254 F. Supp. 2d 434,
438 (S.D.N.Y. 2003) (citing Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001)).
“The court must consider each motion independently of the other and, when evaluating each, the
court must consider the facts in the light most favorable to the non-moving party.” Id. (citing
Morales, 249 F.3d at 121).
III. DISCUSSION
A. NYLL Claim
Krupinski first asserts a claim for unpaid overtime wages under the NYLL. Like the FLSA,
the NYLL generally requires that employees be paid overtime for any work done in excess of forty
hours per week, but it carves out an exemption from the overtime requirement for “bona fide . . .
administrative” employees. See 29 U.S.C. §§ 207(a)(1), 213(a)(1); 12 NYCRR §§ 142–2.2, 142–
2.14(c)(4)(ii); N.Y. Lab. Law § 651. The FLSA and the NYLL define “administrative employee”
almost identically: both require that such an employee (1) be paid on a salary basis, (2) perform,
as his “primary duty,” office or non-manual work directly related to his employer’s management
or general operations, and (3) exercise “discretion and independent judgment.” 29 C.F.R. §
541.200; 12 NYCRR § 142–2.14(c)(4)(ii). The NYLL, however, includes a fourth element that
the FLSA lacks: an administrative employee must also (4) “regularly and directly assist[] an
employer . . . or . . . perform[], under only general supervision, work along specialized or technical
lines requiring special training, experience, or knowledge.” 12 NYCRR § 142–2.14(c)(4)(ii)(c).
Krupinski concedes that he was paid on a salary basis, but contends that his work as an
Organizer did not satisfy the other three requirements. However, Krupinski is collaterally estopped
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from disputing the “primary duty” and “discretion and independent judgment” elements of his
NYLL claim. Under federal principles of issue preclusion, which govern here, see Marvel
Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (applying federal law “in determining
the preclusive effect of a federal judgment”), a party is prevented from “relitigating in a subsequent
action an issue of fact or law that was fully and fairly litigated in a prior proceeding,” id. at 288.
Specifically, “[c]ollateral estoppel applies when: ‘(1) the identical issue was raised in a previous
proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the
party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was
necessary to support a valid and final judgment on the merits.’”

Id. at 288–89 (quoting

Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998)). 2
With respect to the first element for collateral estoppel, there is simply no question that the
“primary duty” and “discretion and independent judgment” issues raised here are identical to those
raised in Krupinski I. As just observed, the relevant federal and state provisions are virtually
identical. The differences in wording are negligible – the NYLL specifies “office or nonmanual
field work,” “management policies or general operations,” and “customar[y] and regular[]
exercise[] [of] discretion and independent judgment,” whereas the FLSA lists “non-manual work,”
“management or general business operations,” and “discretion and independent judgment with
respect to matters of significance” – and courts have consistently held that the provisions are
substantively indistinguishable. See, e.g., Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554,
556 n.1 (2d Cir. 2012) (treating FLSA and NYLL administrative exemptions interchangeably);
Reiseck v. Universal Commc’ns of Miami, Inc., 591 F.3d 101, 104–05 (2d Cir. 2010) (same); Sethi

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Although LEROF discusses res judicata rather than collateral estoppel (Reply at 2–5), and Krupinski does not
address either form of preclusion, district courts are “free to raise [the issue of collateral estoppel] sua sponte, even
without permitting an adversely affected party an opportunity to argue the issue.” Smeraldo v. City of Jamestown,
512 F. App’x 32, 34 (2d Cir. 2013) (citing Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003)).

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v. Narod, 974 F. Supp. 2d 162, 183–84 (E.D.N.Y. 2013) (finding administrative employee
exemptions “substantially similar” under NYLL and FLSA); Torres v. Gristede’s Operating
Corp., 628 F. Supp. 2d 447, 455 n.4 (S.D.N.Y. 2008) (“Courts regularly look to the FLSA when
considering the scope of overtime exemptions under the NYLL.”); cf. Marcus v. AXA Advisors,
LLC, 307 F.R.D. 83, 94–95 (E.D.N.Y. 2015) (declining to distinguish between FLSA’s
“customarily and regularly” and NYLL’s “customarily and predominantly” when interpreting the
statutes’ respective outside salesperson exemptions).
There is likewise no question that those two issues were actually litigated and decided, and
that Krupinski had a full and fair opportunity to litigate both of them. In Krupinski I, the parties
contested each element of the FLSA’s test for a bona fide administrative employee on crossmotions for summary judgment. After a lengthy analysis, the Court found, on the undisputed facts,
that Krupinski’s job as an Organizer met both the “primary duty” and “discretion and independent
judgment” criteria. Krupinski I, 2016 WL 5800473, at *5–9. In particular, the Court found (i) that
Krupinski’s “success as an Organizer ‘depended not on [his] manual dexterity or physical talents,’
but on his interpersonal skills and knack for identifying and developing target workers,” id. at *5
(quoting Savage v. UNITE HERE, No. 05-cv-10812 (LTS), 2008 WL 1790402, at *6 (S.D.N.Y.
Apr. 17, 2008)); (ii) that “Krupinski’s work – participating in and helping to run LEROF’s
organizing campaigns – primarily contributed to the running or servicing of LEROF’s core
mission, which is to organize non-union workers to increase membership for the local unions and
thus increase market share for LIUNA as a whole,” id. at *7 (citations omitted); and (iii) that “[i]n
gauging workers’ interest, deciding which workers to target for further persuasion, assessing how
best to approach individual workers and members of the public, departing from his script when
appropriate, and making recommendations to supervisors about where to conduct house calls and

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whether to report legal violations at jobsites, . . . Krupinski exercised independent judgment in a
variety of ways, and that he did so while carrying out major assignments in conducting the
operations of LEROF,” id. at *9. The Court thus concluded that Krupinski’s work as an Organizer
for LEROF indisputably satisfied the second and third elements of the test for a bona fide
administrative employee. Id. at *8, 9.
Finally, the Court’s resolution of the “primary duty” and “discretion and independent
judgment” issues in Krupinski I was necessary to support the judgment in favor of LEROF, since
the administrative employee test is conjunctive – LEROF had to establish both elements in order
to prevail on summary judgment. In sum, Krupinski has already litigated the “primary duty” and
“discretion and independent judgment” issues once before, and lost. He cannot now attempt to
relitigate them via the expedient of asserting claims under state rather than federal law. Krupinski
is therefore collaterally estopped from arguing that he did not meet the “primary duty” and
“discretion and independent judgment” requirements of the NYLL’s bona fide administrative
employee exemption.
The only unresolved issue presented here, then, is whether Krupinski met the NYLL’s
additional fourth requirement by “performing, under only general supervision, work along
specialized or technical lines requiring special training, experience, or knowledge” when he
worked as an Organizer for LEROF. 12 NYCRR § 142–2.14(c)(4)(ii)(c). Notably, a number of
district courts in this circuit have ignored this fourth element, suggesting that it contributes nothing
substantive to the rest of the test. See, e.g., Kahn v. Superior Chicken & Ribs, Inc., 331 F. Supp.
2d 115, 117 n.1 (E.D.N.Y. 2004) (noting that FLSA’s and NYLL’s definitions of “administrative
employee” are “nearly identical” and “assum[ing]” that they should be interpreted to establish
identical requirements); Karropoulos v. Soup du Jour, Ltd., 128 F. Supp. 3d 518, 527 (E.D.N.Y.

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2015) (“[T]he Court’s analysis of the exemptions with regard to the Plaintiff’s FLSA claims will
also apply to the Plaintiff’s NYLL claims.”); Gorey v. Manheim Servs. Corp., 788 F. Supp. 2d
200, 205 (S.D.N.Y. 2011) (“New York law governing overtime pay is defined and applied in the
same manner as the FLSA.”); Scarpinato v. E. Hampton Point Mgmt. Corp., No. 12-cv-3681 (JFB)
(GRB), 2013 WL 5202656, at *3 (E.D.N.Y. Sept. 13, 2013) (adopting report and recommendation
finding that “[b]ecause N.Y.L.L. applies the same exemptions as the FLSA to overtime pay . . .
[plaintiff’s] N.Y.L.L. claim could not prevail”). Indeed, the Second Circuit seems to have
endorsed this approach, albeit tacitly. See Ramos, 687 F.3d at 556 n.1 (“Like the FLSA, the NYLL
‘mandates overtime pay and applies the same exemptions as the FLSA.’” (quoting Reiseck, 591
F.3d at 105)). Nonetheless, because it is a distinct element of the NYLL’s administrative employee
exemption, and because the parties have specifically briefed the issue, the Court will consider the
“special training, experience, or knowledge” requirement in connection with Krupinski’s work for
LEROF.
LEROF argues that Krupinski’s work as an Organizer easily satisfies this requirement
because he and other Organizers “attended specialized training sponsored by LEROF in basic labor
law, union history, politics, economics, and organizing techniques” and had the opportunity to
attend further training sessions offered through LEROF University, Cornell University’s Industrial
Labor Relations School, and other organizations. (Def. Mem. at 20.) In addition, LEROF contends
that it relied on Krupinski and other Organizers to put their specialized knowledge of labor
relations, organizing techniques, and labor law to use while running demonstrations. (Reply at 5.)
Krupinski responds (i) by pointing out that he did not actually avail himself of all the opportunities
for further training and (ii) by continuing to insist on the “repetitive” nature of his work and the
“superficial” character of the training that he did attend. (Pl. Mem. at 13.)

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The Court once again finds that the undisputed facts favor LEROF’s position. Indeed,
however basic Krupinski’s initial training may have been, it was still “special training” intended
to impart “special knowledge” about the particular needs and nature of LEROF, LIUNA, and the
general business of labor organizing. Furthermore, the fact that Krupinski was fired before he was
able to take advantage of LEROF’s more advanced training options – the record indicates that he
wanted to attend “labor college” (Pl. Depo. 47:23–25) – does not mean that the training he did
receive was not “special” or that the work he performed was not “specialized.” Instead, the
availability of more advanced training demonstrates that Organizers like Krupinski were engaged
in a kind of specialized work in which they were expected to continue to build on their initial basic
training. And the record leaves no doubt that Krupinski relied on his basic training in labor law,
union history, and organizing techniques while, for example, “trying to organize” “non-union
guys” by “telling them” about the “[b]enefits” of being a member of LIUNA (id. 28:2–21), seeking
to “eliminate as many as possible non-union comparisons on the market” (id. 24:11–18), and
identifying and reporting on potential health code and other legal violations at non-union job sites
(id. 39:14–24). In sum, the Court finds that Krupinski “performed, under only general supervision,
work along specialized . . . lines requiring special training, experience, [and] knowledge” when he
worked as an Organizer. Consequently, LEROF has established the fourth and final element of
the NYLL’s administrative exemption test.
Therefore, since the Court finds that Krupinski was an exempt administrative employee as
a matter of law, LEROF is entitled to summary judgment on Krupinski’s claim for overtime wages
under the NYLL.

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B. WTPA Claim
Krupinski also asserts a claim under the pay-notice provision of the WTPA. Effective
April 9, 2011 and extending through December 29, 2014, the WTPA required every employer to
“provide his or her employees, . . . [1] at the time of hiring, and [2] on or before February first of
each subsequent year of the employee’s employment . . . , a notice containing [information about]
rates of pay . . . .” 2010 Sess. Law News of N.Y. Ch. 564. The undisputed facts show that LEROF
never provided Krupinski with such a notice. (Def. 56.1 ¶ 28; Pl. 56.1 ¶ 105.) Krupinski therefore
seeks statutory damages under Section 198 of the WTPA, which provides certain remedies for an
employer’s failure to comply with the pay-notice provision. See N.Y. Lab. Law § 198(1)(b).
However, because LEROF hired Krupinski before the date that the WTPA became
effective (Def. 56.1 ¶ 28 (specifying hiring date of June 2, 2010)), he was not entitled to receive a
pay notice “at the time of hiring.” See, e.g., Franco v. Jubilee First Ave. Corp., No. 14-cv-07729
(SN), 2016 WL 4487788, at *13 (S.D.N.Y. Aug. 25, 2016) (“Employees who began working
before the WTPA took effect on April 9, 2011 . . . are not entitled to bring a claim for an employer’s
failure to provide notice[.]”); Canelas v. A’Mangiare Inc., 13-cv-3630 (VB), 2015 WL 2330476,
at *5 (S.D.N.Y. May 14, 2015) (same). As a result, Krupinski cannot seek statutory damages
under Section 198 for LEROF’s failure to provide him with a pay notice when he was first hired.
And although Krupinski was entitled to receive an annual pay notice from LEROF “on or
before February first of each subsequent year” of his employment, Section 198 provides only the
Commissioner of Labor, not employees themselves, with a cause of action to enforce that
particular sub-provision. Compare N.Y. Lab. Law § 198(1)(b), ¶ 1 (creating private cause of
action for “employee” to recover damages for employer’s failure to provide notice “within ten
business days of his or her first day of employment”), with id. ¶ 2 (creating cause of action for
Commissioner to bring “[o]n behalf of any employee not provided a notice as required by [the
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WTPA]”). Consequently, notwithstanding the fact that LEROF admittedly violated the annual
notice sub-provision of the WTPA, Section 198 does not permit Krupinski himself to seek statutory
damages for LEROF’s violation.
Without offering much in the way of statutory analysis, Krupinski resists this reading of
Section 198 and points to a handful of cases in which employees recovered statutory damages for
an employer’s failure to comply with the annual notice provision. (See Pl. Mem. at 14.) The
Court’s reading of Section 198, however, tracks that of other courts in this circuit that have
expressly considered whether the WTPA confers a private right of action for violations of that
provision. See, e.g., Yuquilema v. Manhattan’s Hero Corp., No. 13-cv-461 (WHP) (JLC), 2014
WL 4207106, at *11 (S.D.N.Y. Aug. 20, 2014), report and recommendation adopted, No. 13-cv461, 2014 WL 5039428 (S.D.N.Y. Sept. 30, 2014) (“Oddly, the NYLL extends this private cause
of action to employees whose employer fails to provide the initial notice at their hire, but not for
subsequent failures to furnish the annual notice in following years.”); Guan Ming Lin v. Benihana
N.Y. Corp., No. 10-cv-1335 (RA) (JCF), 2012 WL 7620734, at *7–8 (S.D.N.Y. Oct. 23, 2012),
report and recommendation adopted, No. 10-cv-1335 (RA), 2013 WL 829098 (S.D.N.Y. Feb. 27,
2013) (“The plain language of the statute . . . confers a private right of action upon those who do
not receive their notice at the time of hiring, but not upon those who do not receive it on or before
February first of any subsequent year.”); Hinckley v. Seagate Hosp. Grp., LLC, No. 16-cv-6118
(CJS), 2016 WL 6524314, at *9 (W.D.N.Y. Nov. 3, 2016) (“[T]he NYLL does not provide a
private right of action where an employer fails to provide annual notices; rather, it only provides
such a private right of action where the employer fails to provide the notice at the time of hire.”).
By contrast, in the few cases that have allowed employees to recover statutory damages, the
deciding courts appear to have simply not considered whether Section 198 provided the employees

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with a private right of action. See Zhi Yong Zheng v. Nanatori Japanese Rest. Corp., No. 15-cv1222 (RJD) (RML), 2017 WL 758489, at *5 (E.D.N.Y. Jan. 9, 2017); Inclan v. N.Y. Hosp. Grp.,
Inc., 95 F. Supp. 3d 490, 502 (S.D.N.Y. 2015). Put simply, Krupinski offers no convincing reason,
and the Court finds none, to depart from the most natural reading of Section 198, which creates a
limited private right of action for employees to enforce the initial pay notice requirement of the
WTPA but authorizes only the Commissioner to enforce the annual pay notice requirement.
Perhaps recognizing that the plain language of Section 198 is against him, Krupinski urges
the Court, in the alternative, to find an implied private right of action for statutory damages for
employees hired before April 9, 2011 who did not receive annual pay notices. (Pl. Mem. at 15.)
The Court declines to do so. Under New York law, courts consider three factors when determining
whether a statute implies a private right of action: “(1) whether the plaintiff is one of the class for
whose particular benefit the statute was enacted; (2) whether recognition of a private right of action
would promote the legislative purpose; and (3) whether creation of such a right would be consistent
with the legislative scheme.” Sheehy v. Big Flats Cmty. Day, Inc., 73 N.Y.2d 629, 633 (1989).
The third factor is the “most critical,” Mark G. v. Sabol, 93 N.Y.2d 710, 720 (1999), and is
determinative here. Courts applying New York law have repeatedly emphasized the legislature’s
“plenary authority” over both statutory ends and means – that is, “over [the] choice of goals and
the methods to effectuate them.” People ex rel. Spitzer v. Grasso, 836 N.Y.S.2d 40, 48 (2007),
aff’d, 11 N.Y.3d 64 (2008). Particularly where the legislature has specified its choice of means by
designing a complex enforcement scheme, courts should hesitate to tinker with the statutory
mechanism. See Sheehy, 73 N.Y.2d at 636 (“Where the Legislature has not been completely silent
but has instead made express provision for civil remedy, albeit a narrower remedy than the plaintiff
might wish, the courts should ordinarily not attempt to fashion a different remedy, with broader

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