Ramos et al v. Guaba Deli Grocery Corp. et al
Filing
43
OPINION AND ORDER re: 30 MOTION for Summary Judgment . filed by Rayniel Vargas, Anthony Cruz, Edwin Omar Ramos. For the foregoing reasons, Plaintiff's motion for summary judgment is granted. The Clerk is respectfully directed to enter judgment against Defendants Guaba Deli Grocery Corp. d/b/a Guaba Deli, Luis Rivera, and Daisy Guaba (but not Jose Castillo) in the following amounts: $96,965.50 for Ramos, $56,200 for Vargas, and $60,900 for Cruz, plus prej udgment and post-judgment interest as set forth herein. The Clerk is further directed to close Docket No. 30 and mark it as "granted." SO ORDERED. (Signed by Magistrate Judge James L. Cott on 11/29/2021) (jca) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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EDWIN OMAR RAMOS, RAYNIEL VARGAS,
:
and ANTHONY CRUZ,
:
:
Plaintiffs,
:
:
-against:
:
GUABA DELI GROCERY CORP. d/b/a
:
GUABA DELI, JOSE CASTILLO,
:
LUIS RIVERA, and DAISY GUABA,
:
:
Defendants.
:
------------------------------------------------------------------------X
11/29/2021
OPINION & ORDER
20-CV-4904 (PAE) (JLC)
JAMES L. COTT, United States Magistrate Judge.
Edwin Omar Ramos, Rayniel Vargas, and Anthony Cruz (collectively,
“Plaintiffs”) brought this action against Guaba Deli Grocery Corp., Jose Castillo,
Luis Rivera, and Daisy Guaba (collectively, “Defendants”), alleging that Defendants
violated the Fair Labor Standards Act (“FLSA”) and New York Labor Law
(“NYLL”). Plaintiffs have moved for summary judgment as to their minimum wage,
overtime wage, spread-of-hours, and wage notice and wage statement claims under
the FLSA and NYLL, and seek liquidated damages, prejudgment interest, and
attorneys’ fees and costs. For the reasons set forth below, Plaintiffs’ motion is
granted in its entirety. 1
The parties have consented to my jurisdiction for the purposes of deciding
Plaintiffs’ summary judgment motion, pursuant to 28 U.S.C. § 636(c). Dkt. No. 34.
1
1
I.
BACKGROUND
A. Facts
Unless otherwise noted, the following facts are undisputed. Guaba Deli
Grocery Corp (“Guaba Deli”) is a New York corporation that operates a deli at 774
East 149th Street, Store 4, in the Bronx. Plaintiffs’ Statement of Undisputed Facts
Pursuant to Local Civ. Rule 56.1 (“SUF”), Dkt. No. 32, ¶¶ 1–2. Guaba Deli had
annual revenues in excess of $500,000 in both 2018 and 2019. Id. ¶ 3. Guaba Deli
is engaged in interstate commerce. Id. ¶¶ 3–4.
Since June 2017, Defendant Jose Castillo (“Castillo”) has been the president
and a co-owner of Guaba Deli and possesses the power to hire and fire employees,
set employee wages and schedules, and maintain employee records. Id. ¶¶ 6–7.
Castillo signed the lease for Guaba Deli’s storefront and controls the store’s liquor
license. Id. ¶ 7. Defendant Daisy Guaba (“Guaba”) has been a co-owner of Guaba
Deli since June 2017, supervises employees one day per week, and possesses the
power to hire and fire employees, set employee wages and schedules, and maintain
employee records. Id. ¶¶ 14–16. Defendant Luis Rivera (“Rivera”), Guaba’s
husband, is the manager of Guaba Deli and oversees its day-to-day operations. Id.
¶¶ 9–13, 17–18. He possesses the power to hire and fire employees, set employee
wages and schedules, pay employees, and maintain employee records (and exercised
that power during Plaintiffs’ period of employment). Id.
Plaintiff Edwin Omar Ramos (“Ramos”) was formerly employed by Guaba
Deli from October 2018 through December 5, 2019. Complaint (“Compl.”), Dkt. No.
2
1, ¶¶ 3, 27; SUF ¶¶ 20–21. Ramos worked six days each week from 5:00 p.m. to
4:00 a.m. (for a total of 11 hours per day and 66 hours per week) and earned $650
each week throughout his employment. SUF ¶¶ 23–24, 39. 2 Plaintiff Rayniel
Vargas (“Vargas”) was formerly employed by Guaba Deli from January 2018
through January 2019. Compl. ¶ 4; SUF ¶¶ 25–29. Vargas worked six days each
week from 7:00 a.m. to 5:00 p.m. (for a total of 10 hours per day and 60 hours per
week) and earned $550 each week throughout his employment. Id. ¶¶ 28–29, 44.
Plaintiff Anthony Cruz (“Cruz”) was formerly employed by Guaba Deli from October
2018 through February 2020, with three months off in 2019. Compl. ¶ 5; SUF
¶¶ 30–31. 3 Cruz worked six days each week from 7:00 a.m. to 5:00 p.m. (for a total
of 10 hours per day and 60 hours per week) and earned $550 per week throughout
his employment. SUF ¶¶ 33–34, 48. 4 Plaintiffs performed the roles of cashier, food
preparer, cleaner, and stocker. Id. ¶¶ 22, 27, 32.
In his declaration, Ramos states that he earned $600 per week during his
employment at Guaba Deli. Declaration of Edwin Ramos dated March 22, 2021
(“Ramos Decl."), Dkt. No. 31-1, ¶ 16. However, Defendants contend (and Plaintiffs
seem to accept in their Rule 56.1 Statement and damages calculations) that Ramos
earned $650 per week. Affidavit of Luis Rivera dated April 29, 2021 (“Rivera Aff.”),
Dkt. No. 38, ¶ 3; SUF ¶ 39; Supplemental Declaration of David Stein dated May 5,
2021 (“Stein Supp. Decl.”) Ex. A, Dkt. No. 42-1, at 2. Therefore, for the purposes of
this motion, the Court will presume that Ramos earned $650 per week.
2
Defendants contend that Cruz was on leave for three months. Rivera Aff. ¶ 14.
Although Plaintiffs previously contended that Cruz was on leave for only one
month, SUF ¶ 31, for the purposes of this motion, Plaintiffs have accepted that Cruz
was on leave for three months. Reply Memorandum of Law in Support of Plaintiffs’
Motion for Summary Judgment (“Pl. Reply”), Dkt. No. 41, at 6–7.
3
Plaintiffs claim that Cruz worked 63 hours per week, but for the purposes of this
motion have accepted Defendants’ contention that Cruz worked 60 hours per week.
SUF ¶ 34 n.7. Moreover, in his declaration, Cruz states that he earned $500 per
week from October 2018 to September 2019, and $550 per week from September
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3
Defendants did not provide a time clock, sign-in sheet, or any other methods
for Plaintiffs to track their hours worked and did not separately maintain any
records of Plaintiffs’ hours worked. Id. ¶¶ 35, 37. Plaintiffs were paid on a salary
basis rather than hourly, were paid in cash, and did not receive paystubs or wage
statements. Id. ¶¶ 35–38, 42–43, 51–52. Defendants did not pay an overtime
premium to Plaintiffs, although they were aware of their obligation to do so. Id.
¶¶ 40, 45, 49, 56–57. Defendants did not consult with an accountant or bookkeeper
to determine how to pay employees and were unaware of the minimum wage rate
when setting Plaintiffs’ wages. Id. ¶¶ 58–59. Defendants also did not pay a “spread
of hours” premium to Ramos and were unaware of their obligation to do so. Id. ¶¶
41, 60. Plaintiffs did not receive a notice describing the parameters of their pay and
were never asked to sign such a notice. Id. ¶¶ 53–55.
B. Procedural History
Plaintiffs commenced this action on June 26, 2020 and alleged the following:
(1) violations of NYLL by failure to pay minimum wage; (2) willful violations of the
FLSA by failure to pay overtime; (3) willful violations of NYLL by failure to pay
overtime; (4) willful violations of NYLL by failure to pay “spread of hours” for
Ramos; and (5) willful violations of NYLL by failing to comply with the Wage Theft
2019 to February 2020 during his employment at Guaba Deli. Declaration of
Anthony Cruz dated March 17, 2021 (“Cruz Decl."), Dkt. No. 31-3, ¶ 16. However,
Defendants contend (and Plaintiffs seem to accept in their Rule 56.1 Statement and
damages calculations) that Cruz earned $550 per week throughout his employment.
Rivera Aff. ¶ 10; SUF ¶ 48; Stein Supp. Decl. Ex. A at 4. Therefore, for the purposes
of this motion, the Court will presume that Cruz earned $550 per week.
4
Prevention Act (“WTPA”) in providing wage notices or wage statements. Compl. ¶¶
1–2. 5 On August 13, 2020, Defendants filed an answer to the Complaint. Answer,
Dkt. No. 16.
On March 23, 2021, after the close of discovery, Plaintiffs moved for summary
judgment on all their claims. Motion for Summary Judgment, Dkt. No. 30;
Plaintiffs’ Memorandum of Law in Support of Motion for Summary Judgment (“Pl.
Mem.”), Dkt. No. 33. On April 25 and April 29, 2021, Defendants submitted their
opposition papers, which were comprised of an affirmation of counsel and an
affidavit of Defendant Rivera. Affirmation of Benjamin Sharav, Esq. in Opposition
dated April 25, 2021 (“Sharav Affirm.”), Dkt. No. 35; Rivera Aff. Both the Sharav
Affirmation and the Rivera Affidavit dispute Plaintiffs’ total hours worked, the
length of Cruz’s leave in 2019, and the calculation of damages.
On May 6, 2021, the Plaintiffs submitted their reply papers, including a
supplemental declaration of counsel attaching exhibits with corrected damages
calculations. Reply Memorandum of Law in Support of Plaintiffs’ Motion for
Summary Judgment (“Pl. Reply”), Dkt. No. 41; Stein Supp. Decl., Dkt No. 42.
C. Defendants’ Submissions
As an initial matter, Plaintiffs argue that their motion for summary
judgment should be granted because of Defendants’ procedurally deficient
Although the Complaint initially included collective action allegations on behalf of
a group of similarly situated individuals, Plaintiffs have not moved to certify a
collective action, and therefore the Court only considers the individual Plaintiffs’
claims. See Compl. ¶¶ 21–25.
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5
opposition papers. Pl. Reply at 1. Specifically, Plaintiffs note that Defendants have
failed to submit a Local Civil Rule 56.1 statement and a memorandum of law, and
that the Sharav Affirmation and Rivera Affidavit are not based on personal
knowledge and consist of mostly conclusory statements. Pl. Reply at 1.
Local Civil Rule 56.1 requires any motion for summary judgment to be
accompanied by a statement of material facts itemized into numbered paragraphs
followed by a citation to the evidence in support of those facts that would be
admissible. Local Civ. R. 56.1(a) & (d). The rule provides that “[e]ach numbered
paragraph in the statement of material facts set forth in the statement required to
be served by the moving party will be deemed to be admitted for purposes of the
motion unless specifically controverted by a correspondingly numbered paragraph
in the statement required to be served by the opposing party.” Local Civ. R. 56.1(c).
Therefore, a party’s failure to comply with Local Rule 56.1 “is grounds for deeming
admitted the facts contained in [the opposing party’s] Rule 56.1 statement.”
Prunella v. Carlshire Tenants, Inc., 94 F. Supp. 2d 512, 513 n.1 (S.D.N.Y. 2000); see
also Collins v. Travers Fine Jewels Inc., No. 16-CV-3780 (SN), 2018 WL 1470590, at
*1–2 (S.D.N.Y. Mar. 23, 2018) (admitting facts in plaintiff’s Rule 56.1 statement
because defendants only filed sworn affidavit from counsel with no memorandum of
law or Rule 56.1 statement).
Moreover, “[a] party who declines to respond to a Rule 56.1 statement in the
proper form eschews its right to have the Court search the record to determine
whether the allegedly undisputed fact is in fact disputed.” Keawsri v. Ramen-Ya
6
Inc., No. 17-CV-2406 (LJL), 2021 WL 3540671, at *3 (S.D.N.Y. Aug. 10, 2021) (citing
Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)). However, “[a]
district court has broad discretion to determine whether to overlook a party’s failure
to comply with local court rules” and may instead “opt to conduct an assiduous
review of the record even where one of the parties has failed to file such a [Rule
56.1] statement.” Holtz, 258 F.3d at 73 (quoting Monahan v. New York City Dep't of
Corrections, 214 F.3d 275, 292 (2d Cir. 2000)) (internal quotation marks omitted
and further citation omitted). “[T]he court can also disregard legal conclusions or
unsubstantiated opinions in a Local Rule 56.1 statement.” Weider Health & Fitness
v. AusTex Oil Ltd., No. 17-CV-2089 (RMB) (OTW), 2018 WL 8579820, at *2
(S.D.N.Y. Dec. 19, 2018).
Here, Defendants have failed to submit a statement that complies with Local
Civil Rule 56.1. They have only submitted an affidavit from Rivera and an
affirmation from their counsel contending that Plaintiffs’ motion papers overstate
their hours worked and damages owed. Rivera Aff. ¶ 2; Sharav Aff. ¶ 2. Neither
submission cites any evidence in the record to support these assertions. In addition,
Rule 56(c)(4) of the Federal Rules of Civil Procedure requires that an affidavit or
declaration used to support or oppose a motion for summary judgment “be made on
personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.” Collins,
2018 WL 1470590, at *1 (citing Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198
(2d Cir. 1999)). Moreover, “attorneys’ affidavits not based upon personal knowledge
7
have been held not to comply with Rule 56(e) at least since Automatic Radio
Manufacturing Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831 (1950), a position
[the Court of Appeals] has frequently reiterated.” Id. (quoting Kamen v. Am. Tel. &
Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) and citing Beyah v. Coughlin, 789 F.2d
986, 989 (2d Cir. 1986)).
Both Sharav’s affirmation and Rivera’s affidavit fail to comply with Rule
56(c)(4) or Local Civil Rule 56.1’s requirements. First, Sharav’s affirmation is
replete with conclusory allegations and argumentative statements, such as “the
evidence shows that the defendants intended to pay minimum wage and under paid
for the total hours worked.” Sharav Aff. ¶ 6. Moreover, the affirmation sets forth
information about Plaintiffs’ dates of employment and hours worked, see, e.g.,
Sharav Aff. ¶¶ 6, 11, 16 – information that the Court has no basis to assume is
based on Sharav’s personal knowledge. For these reasons, the Court will not give
any weight to Sharav’s affirmation. See, e.g., Wyler v. United States, 725 F.2d 156,
160 (2d Cir. 1983) (“An affidavit of the opposing party's attorney which does not
contain specific facts or is not based on first-hand knowledge is not entitled to any
weight.”); see also Little v. City of New York, 487 F. Supp. 2d 426, 433 n.2 (S.D.N.Y.
2007) (“The law is clear that an attorney's affirmation that is not based on personal
knowledge of the relevant facts is to be accorded no weight on a motion for summary
judgment.”). 6
In addition, Sharav’s affirmation is virtually identical to Rivera’s affidavit, and it
is unclear why Defendants made two essentially identical submissions.
6
8
Similarly, the relevant portions of Rivera’s affidavit are not based on
personal knowledge and are conclusory. For example, although Rivera asserts that
Plaintiffs failed to account for half-hour lunch breaks in calculating their hours
worked, Rivera Aff. ¶¶ 8, 15, 20, he does not cite to any evidence in the record
supporting that assertion, nor does he provide any basis for his personal knowledge
regarding the lunch breaks (such as stating that he was present during Plaintiffs’
lunch breaks, that Defendants kept records regarding the hours Plaintiffs worked,
or that Defendants discussed lunch breaks with Plaintiffs when setting their
schedules). In addition, Rivera’s statements regarding Plaintiffs’ dates of
employment contradict Plaintiffs’ testimony and Defendants’ own responses to
Plaintiffs’ Requests for Admission. SUF ¶¶ 21, 26, 31; Stein Decl. Ex. F, Dkt. No.
31-6, at ECF 11–12. 7
Given these deficiencies, “the Court is not required to search the record for
genuine issues of material fact that [Defendants] failed to bring to the Court’s
attention . . . .” Baity v. Kralik, 51 F. Supp. 3d 414, 421–22 (S.D.N.Y. 2014) (citing
Holtz, 258 F.3d at 73). However, the Court is “mindful that ‘[t]he local rule does not
absolve the party seeking summary judgment of the burden of showing that it is
As Plaintiffs acknowledge, Pl. Reply at 4–5, some of Defendants’ proffered dates
appear to be typographical errors, given that Defendants’ proposed damages
calculations contradict other assertions in Rivera’s affidavit and rely on
employment dates that are generally consistent with Plaintiffs’ testimony. Id.
Moreover, as discussed below, to the extent anything in Rivera’s affidavit
contradicts an assertion in Plaintiffs’ Rule 56.1 Statement, the Court will review the
evidence cited in the 56.1 statement and determine whether it supports the
proposition for which it is cited.
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9
entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself
a vehicle for making factual assertions that are otherwise unsupported in the
record.’” Id. at 421 (internal citations omitted). Therefore, the Court will review
Plaintiffs’ Rule 56.1 statement to determine as to each paragraph whether it states
a matter of fact or expresses a conclusion or opinion. “Where the 56.1 statement
purports to state a matter of fact, the Court will review the evidence cited to
determine whether it supports the proposition for which it is cited.” Keawsri, 2021
WL 3540671, at *3. Where the evidence does so, “the Court will treat the matter of
fact as not in genuine dispute and will not independently search the record to create
a factual question for Defendants that they have failed to identify through the filing
of a proper Rule 56.1 statement.” Id. In so doing, the Court will “only rel[y] upon
uncontroverted paragraphs of [Plaintiffs’] Rule 56.1 Statement where the record
evidence duly supports [Plaintiffs’] contentions.” Id. (quoting Baity, 51 F. Supp. 3d
at 421). 8
Notably, Defendants have also failed to comply with Local Rule 7.1, which
requires that a memorandum of law setting forth the legal arguments and
authorities relied upon accompany any motion or opposition thereto. If a party fails
to comply with this rule, the court has discretion to grant the motion by default.
See Local Civ. Rule 7.1; Briarpatch Ltd., L.P. v. Pate, 81 F. Supp. 2d 509, 511 n.2
(S.D.N.Y. 2000). “An affirmation alone will not satisfy the requirements of Rule 7.1.
Some courts have recognized that while granting a motion to dismiss a claim for
failure to comply with Rule 7.1 is permissible, a less severe outcome may be
warranted in the interests of justice or efficiency.” Microsoft Corp. v. K&E
Computer Inc., No. 00-CV-7550 (RLC), 2001 WL 332962, at *1 (S.D.N.Y. Apr. 4,
2001) (citing Briarpatch, 81 F. Supp. 2d at 511 n.2). Therefore, in the interests of
justice, the Court will not grant Plaintiffs’ motion by default despite Defendants’
failure to submit a memorandum of law.
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II. DISCUSSION
A. Summary Judgment Standard
Rule 56 “allows a party to seek a judgment before trial on the grounds that
all facts relevant to a claim(s) or defense(s) are undisputed and that those facts
entitle the party to the judgment sought.” Jackson v. Fed. Express, 766 F.3d 189,
194 (2d Cir. 2014). A motion for summary judgment will be granted “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). “A dispute about a
genuine issue exists for summary judgment purposes where the evidence is such
that a reasonable jury could decide in the non-movant's favor.” Bolling v. City of
New York, No. 18-CV-5406 (PGG) (RWL), 2021 WL 961758, at *4 (S.D.N.Y. Mar. 15,
2021) (quoting Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)) (internal
citations omitted). “A moving party can demonstrate the absence of a genuine issue
of material fact ‘in either of two ways: (1) by submitting evidence that negates an
essential element of the non-moving party’s claim, or (2) by demonstrating that the
non-moving party’s evidence is insufficient to establish an essential element of the
non-moving party’s claim.’” Id. at *5 (quoting Nick’s Garage, Inc. v. Progressive Cas.
Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017)).
“When considering a motion for summary judgment, 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.’” Konteye v. New York City
11
Dep’t of Educ., No. 17-CV-2876 (GBD) (RWL), 2019 WL 3229068, at *2 (S.D.N.Y.
July 18, 2019) (quoting Phillips v. DeAngelis, 331 F. App'x 894, 894–95 (2d Cir.
2009)). “[I]n opposing a motion for summary judgment, the non-moving party may
not rely on unsupported assertions, conjecture or surmise.” Guerra v. Trece Corp.,
No. 18-CV-625 (ER), 2020 WL 7028955, at *2 (S.D.N.Y. Nov. 30, 2020) (citing
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)).
Rather, “[t]o defeat a motion for summary judgment, the nonmoving party must
provide hard evidence, from which a reasonable inference in [its] favor may be
drawn.” Konteye, 2019 WL 3229068, at *2 (internal quotations and citations
omitted); see Cuffee v. City of New York, No. 15-CV-8916 (PGG) (DF), 2018 WL
1136923, at *4 (S.D.N.Y. Mar. 1, 2018) (“[a non-moving party] must do more than
simply show that there is some metaphysical doubt as to the material facts . . . .
[He] must come forth with evidence sufficient to allow a reasonable jury to find in
[his] favor.”) (internal quotations and citations omitted).
Plaintiffs seek summary judgment on both their FLSA and NYLL claims. Pl.
Mem. at 1. Defendants do not dispute their failure to pay the proper overtime and
minimum wage rates and to provide proper wage notices and statements, but they
dispute the number of hours Plaintiffs worked, Plaintiffs’ dates of employment, and
the amount of damages owed. Rivera Aff. ¶¶ 2, 8–9 , 15–16, 20–21. The Court first
considers whether Defendants were Plaintiffs’ employers for the purposes of the
FLSA and NYLL before turning to the question of Defendants’ liability and
Plaintiffs’ damages.
12
B. Coverage Under the FLSA and NYLL
To state a claim for wages under the FLSA, a plaintiff must first show that
“[he] is a ‘covered employee,’ who was ‘employed in an enterprise engaged in
interstate commerce or in the production of goods for interstate commerce.’” Allison
v. Clos-ette Too, L.L.C., No. 14-CV-1618 (LAK) (JCF), 2015 WL 9591500, at *7
(S.D.N.Y. Apr. 20, 2015), adopted by 2015 WL 5333930 (Sept. 14, 2015) (quoting
Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 120 (E.D.N.Y. 2011))
(internal alterations omitted); see also Tony & Susan Alamo Found. v. Sec’y of
Labor, 471 U.S. 290, 295 (1985). Therefore, “[e]ngagement in interstate commerce,
either by an employee or by the employer as a whole, is a prerequisite for liability
for the FLSA’s overtime requirement.” Keawsri, 2021 WL 3540671, at *4 (quoting
Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 353 (E.D.N.Y. 2015)) “The two
categories are commonly referred to as ‘individual’ and ‘enterprise’ coverage,
respectively.” Id. (quoting Jacobs v. New York Foundling Hosp., 577 F.3d 93, 96 (2d
Cir. 2009)). An enterprise is “engaged in commerce” when it “(i) has employees
engaged in commerce or in the production of goods for commerce, or . . . has
employees handling, selling, or otherwise working on goods or materials that have
been moved in or produced for commerce by any person; and (ii) is an enterprise
whose annual gross volume of sales made or business done is not less than
$500,000.” Id. (quoting 29 U.S.C. § 203(s)(1)(A)). “The word ‘commerce’ in this
provision refers to ‘interstate commerce.’” Id. (internal citations omitted).
13
1. Guaba Deli Is An “Enterprise Engaged In Commerce”
Defendants do not dispute that Guaba Deli is engaged in interstate commerce
and that it had annual revenues in excess of $500,000 in 2018 and 2019. SUF ¶¶ 3–
4. Therefore, Guaba Deli is an “enterprise engaged in commerce” and may be liable
for violations of the FLSA. Id. ¶3; Ethelberth, 91 F. Supp. 3d at 353. Because
Guaba Deli was an “enterprise engaged in commerce” during Plaintiffs’
employment, Plaintiffs are covered employees under the FLSA. See, e.g. Allison,
2015 WL 9591500, at *7.
2. Plaintiffs Are Covered Employees Under NYLL
Similarly, “[t]o recover under the NYLL, Plaintiff[s] must prove that [they
were] . . . ‘employee[s]’ and that Defendants were ‘employers’ as defined by the
statute.” Li v. Leung, No. 15-CV-5262 (CBA) (VMS), 2016 WL 5369489, at *8
(E.D.N.Y. June 10, 2016), adopted as modified by 2016 WL 5349770 (Sept. 23, 2016)
(internal citation and quotation marks omitted). However, “[u]nlike the FLSA, the
NYLL does not require that a defendant achieve a certain minimum in annual sales
or business in order to be subject to the law.” Id.; see also Coulibaly v. Millennium
Super Car Wash, Inc., No. 12-CV-4760 (CBA) (CLP), 2013 WL 6021668, at *7
(E.D.N.Y. Nov. 13, 2013). Accordingly, Plaintiffs are also covered employees under
NYLL.
3. Defendants’ Individual Liability Under the FLSA and
NYLL
Under both the FLSA and NYLL, personal liability may be imposed on
employers for wage and hour violations. Ansoumana v. Gristede’s Operating Corp.,
14
255 F. Supp. 2d 184, 192 (S.D.N.Y. 2003). Under the FLSA, “employer” is defined
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 Supreme Court has emphasized the
‘expansiveness’ of the FLSA’s definition of employer.” Herman v. RSR Sec. Servs.
Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (quoting Falk v. Brennan, 414 U.S. 190, 195
(1973)); see also Ansoumana, 255 F. Supp. 2d at 192 (quoting Reich v. Circle C Invs.,
Inc., 998 F.2d 324, 329 (5th Cir. 1993) (“[T]he FLSA’s definition of employer is
sufficiently broad to encompass an individual who, though lacking a possessory
interest in the ‘employer’ corporation, effectively dominates its administration or
otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its
employees.”)). The Second Circuit treats the term “employer” for FLSA purposes as
a “flexible concept to be determined on a case-by-case basis by review of the totality
of the circumstances.” Barfield v. New York City Health & Hosps. Corp., 537 F.3d
132, 141–42 (2d Cir. 2008). The statutory standard for determining if someone is an
employer is “nearly identical” under both NYLL and the FLSA. See Olvera v.
Bareburger Grp., LLC, 73 F. Supp. 3d 201, 206 (S.D.N.Y. 2014); NYLL § 190(3)
(“‘Employer’ includes any person, corporation, limited liability company, or
association employing an individual in any occupation, industry, trade, business or
service.”). As a result, courts in this District routinely conduct the same analysis to
make the employer determination under each statute. See, e.g., Hong v. Quest In’tl
Limousine, Inc., No. 19-CV-4336 (SN), 2021 WL 2188149, at *3 (S.D.N.Y. May 28,
15
2021) (citing Martin v. Sprint United Mgmt. Co., 273 F. Supp. 3d 404, 422 (S.D.N.Y.
2017)).
To be held liable as an employer under the FLSA, “an individual defendant
must possess control over a company’s actual ‘operations’ in a manner that relates
to a plaintiff’s employment.” Irizarry v. Catsimatidis, 722 F.3d 99, 109 (2d Cir.
2013). The Second Circuit has articulated an “economic reality” test to determine
whether any particular individual is an employer for the purposes of the FLSA. See
Herman, 172 F.3d at 139. The four-factor test considers “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. (quoting
Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984)). This “inquiry is a
totality-of-the-circumstances approach, so no one factor is dispositive[.]” Tackie v.
Keff Enter., Inc., No. 14-CV-2074 (JPO), 2014 WL 4626229, at *2 (S.D.N.Y. Sept. 16,
2014).
Plaintiffs argue that Defendants Rivera, Guaba, and Castillo were all their
“employers” at Guaba Deli. Pl. Mem. at 5–6. Castillo and Guaba owned the
business and possessed the authority to hire and fire employees and set wages and
schedules. SUF ¶¶ 6, 8, 14–16. Guaba was a supervisor of Ramos usually one day
per week. Declaration of Edwin Ramos dated March 22, 2021 (“Ramos Decl."), Dkt.
No. 31-1, ¶ 10. Castillo was the president of Guaba Deli, with the authority to
make business decisions and manage the store’s liquor license and lease. SUF ¶¶
16
7–8. Rivera managed Guaba Deli’s day-to-day operations, hired and supervised
Plaintiffs, and paid Plaintiffs in the method of his choosing. Id. ¶¶ 9–13, 17–18.
Although Defendants did not keep any employment records concerning Plaintiffs,
they all had the power to do so. Id. ¶ 37.
Plaintiffs have sufficiently demonstrated that Rivera and Guaba were their
employers, but have failed to do so with respect to Castillo. Rivera hired Plaintiffs,
supervised and dictated their schedules, determined the rate and method of their
payment, and had the power to keep employment records. SUF ¶¶ 9–13, 17, 18.
Similarly, Guaba had the power to hire and fire employees, supervise employees,
and maintain employment records, and supervised Ramos one day per week. SUF
¶¶ 14–16, 19; Ramos Decl. ¶ 10. Castillo, however, while having the power to hire
and fire employees, set employee schedules, and maintain employee records, did not
exercise any of those powers during Plaintiffs’ period of employment. SUF ¶¶ 6–8.
Plaintiffs do not contend that Castillo ever supervised them. Additionally, Castillo’s
operational control over the lease and liquor license are not close in degree to
Plaintiffs’ employment. See, e.g. Irizarry, 722 F.3d at 110 (“the relationship
between the individual’s operational function and the plaintiffs’ employment must
be closer in degree than simple but-for causation”). Moreover, “[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.” Id. at 109. The evidence presented suggests that
17
Castillo did not have significant operational control over Plaintiffs’ employment,
and therefore was not their “employer” under the FLSA or NYLL.
In sum, Rivera and Guaba (but not Castillo) were Plaintiffs’ employers, and
accordingly, along with Guaba Deli, they are jointly and severally liable under the
FLSA and NYLL for any damages awarded to Plaintiffs. See Agureyev v. H.K.
Second Ave. Rest., Inc., No. 17-CV-7336 (SLC), 2021 WL 847977, at *5 (S.D.N.Y.
Mar. 5, 2021) (imposing joint and several liability on corporate and individual
defendants).
4. FLSA and NYLL Statute of Limitations
The FLSA generally provides for a two-year statute of limitations on actions
to enforce its provisions, but allows a three-year limitations period for “‘a cause of
action arising out of a willful violation.’” Herman, 172 F.3d at 141 (quoting 29
U.S.C. § 255(a)). An FLSA violation is willful if “the employer knew or showed
reckless disregard for the matter of whether its conduct is prohibited.” McLaughlin
v. Richland Shoe Co., 486 U.S. 128, 133 (1988). “The statute of limitations starts to
accrue when the employee begins to work for the employer.” Rodriguez v. Queens
Deli Corp., No. 09-CV-1089 (KAM) (SMG), 2011 WL 4962397, at *2 (E.D.N.Y. Oct.
18, 2011).
Plaintiffs have demonstrated that Defendants were aware of their obligation
to pay the proper minimum wage and overtime rates, but failed to do so. SUF
¶¶ 40, 41, 45, 49, 56, 57, 59. Moreover, Defendants did not consult with an
accountant or bookkeeper to determine whether they were properly paying
18
Plaintiffs. Id. ¶ 58. “This deliberate conduct in disregard of an employer’s
obligations under the FLSA and the NYLL, as well as the absence of any evidence of
attempts to comply with those obligations, demonstrate that Defendants[’] conduct
was willful.” Agureyev, 2021 WL 847977, at *6 (internal citations omitted); see also
Mondragon v. Keff, 15-CV-2529 (JPO) (BCM), 2019 WL 2551536, at *10 (S.D.N.Y.
May 31, 2019) (allegations of failure to pay sufficient wages were adequate to
establish willfulness for statute of limitations purposes). Therefore, a three-year
statute of limitations applies to Plaintiffs’ FLSA claims. Mondragon, 2019 WL
2551536, at *10.
Plaintiffs filed this action on June 26, 2020. The first date of employment for
any of the Plaintiffs was January 1, 2018, Compl. ¶ 28, and therefore all of
Plaintiffs’ FLSA claims were brought within the applicable statute of limitations.
The limitations period for violations of the relevant provisions of NYLL is six
years. See NYLL § 663(3). All of Plaintiffs’ claims accrued within the six years
preceding the filing of the Complaint, and therefore all of their NYLL claims are
timely as well.
C. Liability for Plaintiffs’ Federal and State Wage Law Claims
Having determined that Defendants are subject to the FLSA and NYLL, the
Court now turns to Defendants’ liability and damages for Plaintiffs’ overtime,
minimum wage, spread-of-hours, and WTPA claims.
19
1. Overtime Claims
a. Liability
Plaintiffs contend that Defendants failed to pay them overtime, as required
by the FLSA and NYLL. Pl. Mem. at 9–11. Subject to certain exceptions, both the
FLSA and NYLL require that employees who work more than 40 hours per week be
compensated for overtime work at a rate of one and one-half times their regular
rate of pay. 29 U.S.C. § 207(a)(1); NYLL §§ 650 et seq.; 12 NYCRR §§ 142–2.2, 146–
1.4; see also Kim v. 511 E. 5th St., LLC, 133 F. Supp. 3d 654, 659 (S.D.N.Y. 2015);
Williams v. Bier Int'l, LLC, No. 14-CV-3894 (LTS) (JCF), 2015 WL 4461668, at *1–2
(S.D.N.Y. July 21, 2015). “For Plaintiffs to prevail on summary judgment, they
must establish both that the parties are covered by the FLSA and NYLL, and that
the [d]efendants failed to properly pay them overtime wages.” Garcia-Devargas v.
Maino, No. 15-CV-2285 (GBD) (JLC), 2017 WL 129123, at *3 (S.D.N.Y. Jan. 13,
2017), adopted by 2017 WL 11567211 (Mar. 29, 2017).
The FLSA also requires employers to “make, keep, and preserve” accurate
records of their employees' wages and hours. 29 U.S.C. § 211(c). “[A]t summary
judgment, if an employer’s records are inaccurate or inadequate, an employee need
only present sufficient evidence to show the amount and extent of the
uncompensated work as a matter of just and reasonable inference.” Kuebel v. Black
& Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011) (internal alterations and quotation
marks omitted). The burden on the employee is “not high,” and may be met
“through estimates based on his own recollection.” Id. Notably, “[t]he law does not
20
require Plaintiffs to recall exact dates, exact hours, or exact amounts of wages
received.” Amaya v. Superior Tile & Granite Corp., No. 10-CV-4525 (PGG), 2012
WL 130425, at *8 (S.D.N.Y. Jan. 17, 2012).
“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.’” Kim, 133 F. Supp. 3d
at 659 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687–88 (1946)).
On summary judgment, “[i]f [the defendant] failed to compensate [the plaintiffs]
properly for even one hour of overtime, liability is established. Anything else
relates only to damages.” Estrella v. P.R. Painting Corp., 356 Fed. App’x 495, 497
(2d Cir. 2009); see also Severino v. 436 West LLC., No. 13-CV-3096 (VSB), 2015 WL
12559893, at *7 (S.D.N.Y. Mar. 19, 2015) (“[O]n the question of liability, Plaintiff
still has the burden to show that there is no genuine dispute of material fact as to
whether he actually worked some amount of overtime.”).
Here, Defendants do not dispute their failure to keep adequate records of
employment, hours worked, and compensation paid to Plaintiffs, SUF ¶¶ 35–37,
and admit that Plaintiffs worked more than 40 hours per week and were not paid
time-and-a-half for the weeks they worked more than 40 hours. See SUF ¶¶ 56–57.
Although Defendants dispute the number of hours Plaintiffs worked, Rivera Aff.
¶ 2, that dispute relates to the damages to which Plaintiffs are entitled, and does
not undermine Defendants’ liability for unpaid overtime. See Estrella, 356 F. App’x
at 497.
21
Moreover, to the extent that Defendants claim that Plaintiffs’ fixed weekly
salary absolved them of any obligation to pay overtime, Rivera Aff. ¶¶ 8, 13, 20,
such an argument is unavailing. While “[a]n employer may be exempt from the
overtime requirement if there is a salary agreement between employer and
employee that sufficiently assures that the employee will receive at least the
minimum wage per week,” a fixed weekly salary “will ‘not be deemed to include an
overtime component in the absence of an express agreement.’” Wong v. Hunda
Glass Corp., No. 09-CV-4402 (RLE), 2010 WL 2541698, at *2 (S.D.N.Y. June 23,
2010) (quoting Giles v. City of New York, 41 F. Supp. 2d 308, 317 (S.D.N.Y. 1999)).
An agreement for a fixed weekly salary for more than 40 hours of work per week
only complies with the FLSA or NYLL “if there is an explicit understanding
between the employer and employee as to regular and overtime rates.” Amaya,
2012 WL 130425, at *9 (citing Giles, 41 F.Supp.2d at 316–317).
Defendants contend that they informed Plaintiffs that they “could not pay
above the minimum wage.” Rivera Aff. ¶¶ 8, 15, 20. To that end, Rivera testified at
his deposition that he and Plaintiffs each had a “verbal agreement . . . as far as
what the numbers would be working those hours.” Deposition of Luis Rivera
conducted on January 21, 2021 (“Rivera Dep.”), Dkt. No. 31-8, at 40:16–19.
However, Rivera also testified that he did not look up the minimum wage before
reaching an agreement on salary and admits that he was unaware of the minimum
wage requirements. SUF ¶ 59; Rivera Dep. 40:6–19. In addition, Defendants have
provided no further evidence demonstrating that Plaintiffs’ weekly salary was
22
intended to account for the minimum and overtime wage rates required by the
FLSA or NYLL. Therefore, in the absence of an explicit agreement on regular and
overtime rates, Defendants were required to pay the statutory minimum wage and
overtime rages despite Plaintiffs’ fixed weekly salary.
For these reasons, Defendants are liable for unpaid overtime wages, and the
Court will now calculate Plaintiffs’ damages. Moreover, due to Defendants’ failure
to keep adequate employment records or to submit anything from which the Court
could calculate damages, the Court will rely solely on Plaintiffs’ testimony
regarding their dates of employment, hours worked, and compensation when
determining their damages. See, e.g., Kuebel, 643 F.3d at 362 (plaintiff’s own
recollection of amount and extent of uncompensated work sufficient in absence of
employer records).
a. Calculation of Damages for Unpaid Overtime
An employee’s “‘regular rate’ during a particular week is the basis for
calculating overtime pay due to the employee for that week.” Amaya, 2012 WL
130425, at *7. Under the FLSA, the regular hourly rate of pay is determined by
“dividing the employee’s total workweek compensation by the number of hours
worked during the workweek.” Id.; see also Chen v. Patel, No. 16-CV-1130 (AT)
(SDA), 2019 WL 2763836, at *9 (S.D.N.Y. July 2, 2019) (quoting 29 C.F.R. §
778.109). However, New York regulations calculate the regular hourly rate of
hospitality industry employees by dividing total weekly earnings “by the lesser of 40
hours or the actual number of hours worked by that employee during the work
23
week.” 12 NYCRR § 146-3.5. 9 “‘[I]f an employee’s regular rate is below the required
minimum wage, the employee’s overtime rate is calculated using the required
minimum wage as the regular rate.’” Perez v. Rossy’s Bakery & Coffee Shop, Inc.,
No. 19-CV-8683 (SLC), 2021 WL 1199414, at *7 (S.D.N.Y. Mar. 30, 2021) (quoting
Chen, 2019 WL 2763836, at *9). Under both the FLSA and NYLL, the overtime
rate is one and one-half times the regular rate and is owed for each hour in excess of
40 hours worked during the workweek. Chen, 2019 WL 2763836, at *9. The
measure of damages is the amount a plaintiff should have been paid pursuant to
the FLSA and NYLL minus the amount a plaintiff was actually paid. See, e.g.,
Amaya, 2012 WL 130425, at *7.
The method of calculation under NYLL yields a higher hourly rate – and
therefore a higher overtime premium and higher damages – than the FLSA in this
case, and therefore the Court will rely on NYLL in determining the damages to
Under NYLL, restaurants are considered to be part of the hospitality industry and
the term “restaurant” is defined in part to include “any eating or drinking place that
prepares and offers food or beverage for human consumption . . . on any of its
premises . . .” 12 NYCRR § 146-3.1(b). Given that Plaintiffs’ responsibilities
included food preparation, SUF ¶¶ 22, 27, 32, the Court concludes that Guaba Deli
qualifies as a “restaurant” under the meaning of NYLL and that Plaintiffs were
therefore hospitality industry employees. See, e.g., Pareja v. 184 Food Corp., No.
18-CV-5887 (JPO) (SDA), 2021 WL 3109621, at *8 n.7 (S.D.N.Y. July 22, 2021)
(supermarket fell within definition of “restaurant”), adopted by 2021 WL 2021
3501229 (Aug. 9, 2021); Perez v. 50 Food Corp., No. 17-CV-7837 (AT) (BCM), 2019
WL 7403983, at *7 n.6 (S.D.N.Y. Dec. 4, 2019) (employees at deli whose
responsibilities included food preparation were “hospitality industry” employees),
adopted by 2020 WL 30344 (Jan. 2, 2020).
9
24
award for Defendants’ overtime violations. See, e.g., Quiroz v. Luigi's Dolceria, Inc.,
No. 14-CV-871 (VVP), 2016 WL 2869780, at *3 (E.D.N.Y. May 17, 2016). 10
From October 1, 2018 to December 5, 2019, Ramos worked 66 hours per week
and earned $650 per week. SUF ¶¶ 24, 39. Using Ramos’s regular and overtime
rates, the Court calculates the following overtime owed for his period of
employment:
Table 1: Ramos Overtime (“OT”) Compensation
Weeks
Worked
Oct. 1,
2018Dec. 30,
2018
Dec. 31,
2018 –
Dec. 5,
2019
Weekly
Hours
Weekly
Salary
Regular
Rate
Amount
Owed
$16.25
Hourly
OT
Premium
$24.375
13
66
$650
48
66
$650
$16.25
$24.375
$30,420.00
$8,238.75
Based on these calculations, Ramos was owed a total of $38,658.75 ($8,238.75 +
$30,420.00).
From January 1, 2018 to January 31, 2019, Vargas worked 60 hours per week
and earned $550 per week. SUF ¶¶ 26, 29, 44. Using Vargas’s regular and overtime
rates, the Court calculates the following overtime owed for his period of
employment:
Courts do not grant separate awards under both the FLSA and NYLL because
doing so would allow a plaintiff to recover twice for the same loss. See, e.g., Quiroz,
2016 WL 2869780, at *3; Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 262 n.44
(S.D.N.Y. 2008).
10
25
Table 2: Vargas Overtime (“OT”) Compensation
Weeks
Worked
Jan. 1,
2018 –
Dec. 30,
2018
Dec. 31,
2018 –
Jan. 31,
2019
Weekly
Hours
Weekly
Salary
Regular
Rate
Amount
Owed
$13.75
Hourly
OT
Premium
$20.625
52
60
$550
4
60
$550
$13.75
$20.625
$1,650.00
$21,450.00
Based on these calculations, Vargas was owed a total of $23,100.00 ($21,450.00 +
$1,650.00).
From October 1, 2018 to February 28, 2020, Cruz worked 60 hours per week
and earned $550 per week. SUF ¶¶ 34, 48. Using Cruz’s regular and overtime
rates, the Court calculates the following overtime owed for his period of
employment:
Table 3: Cruz Overtime (“OT”) Compensation
Weeks
Worked
Oct. 1,
13
2018Dec. 30,
2018
Dec. 31, 39
2018 –
Sept. 30,
2019 11
Weekly
Hours
Weekly
Salary
Regular
Rate
Amount
Owed
$13.75
Hourly
OT
Premium
$20.625
60
$550
60
$550
$13.75
$20.625
$16,087.50
$5,362.50
In their reply papers, Plaintiffs accepted Defendants’ contention that Cruz took
three months of leave (from October 1, 2019 to December 30, 2019) for the purposes
of this motion. Pl. Reply at 6–7.
11
26
Dec. 31,
2019 –
Feb. 28,
2020
8
60
$550
$13.75
$22.50 12
$3,600.00
Based on these calculations, Cruz was owed a total of $25,050.00 ($5,362.50 +
$16,087.50 + $3,600.00).
2. Cruz’s Minimum Wage Claim
In addition to his overtime claims, Plaintiff Cruz argues that he was paid less
than minimum wage while employed at Guaba Deli. Pl. Mem. at 8. New York City
employers were required to pay their employees at a minimum wage of $12 hourly
in 2018; $13.50 hourly in 2019; and $15 hourly in 2020. See 12 NYCRR § 1461.2(a)(1)(i)(a). Under NYLL, as discussed above, a salaried employee’s minimum
wage is calculated by dividing the employee’s total weekly earnings “by the lesser of
40 hours or the actual number hours they worked.” Id. at § 146-3.5. As calculated
above, Cruz was paid a regular rate of $13.75 during his employment at Guaba
Deli. Therefore, Cruz was paid more than the minimum wage in 2018 and 2019,
but was paid less than the applicable minimum wage of $15.00 in 2020.
Using Cruz’s hours and minimum wage requirements, the Court calculates
the following actual minimum wages owed for his eight weeks of work in 2020:
As Cruz’s regular rate in 2020 was below New York's statutory minimum, his
overtime rate will be calculated according to the regular rate to which he was
legally entitled: $15.00 an hour. See, e.g., Khan v. AC Auto., Inc., No. 20-CV-4949
(RA), 2021 WL 2036706, at *3 (S.D.N.Y. May 21, 2021).
12
27
Table 4: Minimum Wage Compensation Cruz Should Have Earned
Weekly
Salary
Dec. 31,
2019 –
Feb. 28,
2020
$550
Hours
Per
Week
60
Regular
Rate of
Pay
$13.75
Minimum Diff.
Wage
Weekly
Amount
Owed
$1.25 $50
Total
$15.00
$400
3. Wage Theft Protection Act Claims
New York’s WTPA requires employers to provide a written wage notice “at
the time of hiring.” NYLL § 195(1)(a). The notice must contain information
regarding the employee’s “rate of pay,” including a statement about the employee’s
“regular hourly rate and overtime rate of pay.” Id. The penalty for failing to
provide such a notice is $50 per day, with a maximum penalty of $5,000. NYLL §
198(1-b).
Additionally, the WTPA requires employers to provide employees wage
statements “with every payment of wages” that contain the dates of work covered by
the statement, the rate of pay, and gross and net wages paid. NYLL § 195(4). The
penalty for failing to provide these wage statements is $250 per day, with a
maximum penalty of $5,000. NYLL § 198(1-d).
As discussed above, Plaintiffs were Defendants’ employees for the purposes of
the FLSA and NYLL. Defendants were therefore obligated to provide the required
notices under the WPTA. See, e.g., Vasquez v. NS Luxury Limousine Service, Ltd.,
No. 18-CV-10219 (AJN), 2021 WL 1226567, at *15 (S.D.N.Y. Mar. 31, 2021). It is
undisputed that Defendants never provided Plaintiffs with a wage notice at the
28
start of their employment or a wage statement with each payment of wages. SUF
¶¶ 43, 47, 52–55. Therefore, Plaintiffs are entitled to summary judgment on this
claim and, given the length of their employment, the Court awards them $5,000
each on both WPTA claims, for a total of $10,000 per plaintiff.
4. Ramos’ Spread-of-Hours Claim
The “spread of hours” provision in the New York regulations requires an
additional hour’s pay at the “basic minimum hourly wage rate” for any day where
the employee’s spread of hours exceeds ten hours. 12 NYCRR § 142–2.4. The
spread of hours is defined as “the interval between the beginning and end of an
employee’s work day,” including “working time plus time off for meals plus intervals
off duty.” Id. § 142-2.18. Effective January 1, 2011, employers are required to pay a
spread of hours premium for “all employees in restaurants and all-year hotels,
regardless of a given employee’s regular rate of pay.” 12 NYCRR § 146–1.6(d).
Out of the three plaintiffs, only Ramos worked shifts greater than ten hours,
and he was therefore entitled to a “spread of hours” premium. See ¶¶ SUF 41, 60;
Rivera Dep. 33:12–15. Defendants do not dispute that they failed to pay Ramos the
spread-of-hours premium, and admit that they were unaware of such a
requirement. SUF ¶ 60. Using the relevant minimum wage rate, the Court
calculates the following spread of hours premium owed for Ramos’s period of
employment:
29
Table 5: Spread-of-Hours (“SOH”) Ramos Should Have Earned
Weeks
Worked
Oct. 1, 2018 –
Dec. 30, 2018
Dec. 31, 2018
– Dec. 5, 2019
Minimum
Wage
13
Over 10
Hour
Days
6
Amount
Owed
$12.00
Weekly
SOH
Owed
$72.00
48
6
$13.50
$81.00
$3,888.00
$936.00
Based on these calculations, Ramos was owed a spread-of-hours premium of
$4,824.00 ($936.00 + $3,888.00).
5. Liquidated Damages
Plaintiffs also seek liquidated damages on their FLSA overtime claims and
their NYLL minimum wage, overtime, and spread of hours claims. Compl. ¶ 80; Pl.
Mem. at 12–14. Typically, when an employer violates the overtime requirements,
the FLSA “presumptively awards [liquidated damages in] ‘an additional equal
amount,’” to damages awarded. Gayle v. Harry’s Nurses Registry, Inc., 594 F. App’x
714, 718 (2d Cir. 2014) (quoting 29 U.S.C. § 216(b)). A district court has the
“discretion to deny liquidated damages where the employer shows that, despite its
failure to pay appropriate wages, it acted in subjective ‘good faith’ with objectively
‘reasonable grounds’ for believing that its acts or omissions did not violate the
FLSA.” Barfield, 537 F.3d at 150. To demonstrate “good faith,” an employer is
required to “show that it took ‘active steps to ascertain the dictates of the FLSA and
then act to comply with them.’” Id. (quoting Herman, 172 F.3d at 142). The burden
on the employer is “a difficult one,” such that “double damages are the norm and
30
single damages the exception.” Id. (internal alterations and quotation marks
omitted).
NYLL also authorizes liquidated damages, and relies upon the same
standard as the FLSA. Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481, 503
(S.D.N.Y. 2017) (“Courts have not substantively distinguished the FLSA’s standard
from the current NYLL standard of good faith” regarding liquidated damages) aff’d,
752 F. App’x 33 (2d Cir. 2018); see also Rana v. Islam, 887 F.3d 118, 122–23 (2d Cir.
2018) (“in 2009, the liquidated damages provision [in NYLL] was amended to bring
it more closely in line with the FLSA” and as such there are no longer “meaningful
differences” between the FLSA and NYLL liquidated damages provisions).
Here, Defendants have not demonstrated that they acted in good faith to
attempt to comply with the wage requirements. Indeed, Defendants concede that
they did not seek guidance from an accountant or bookkeeper and were aware of the
overtime requirements but did not comply. SUF ¶¶ 56–60; see, e.g., Vasquez, 2021
WL 1226567, at *14 (awarding liquidated damages when defendants admitted they
“never consulted with anyone to determine the proper way to classify and pay
employees”).
Although Plaintiffs can establish overtime claims under both NYLL and the
FLSA, Plaintiffs “cannot recover twice for the same minimum wage/overtime
violations under both federal and state law.” Vasquez, 2021 WL 1226567, at *14
(quoting Jiao v. Shi Ya Chen, No. 03-CV-165 (DF), 2007 WL 4944767, at *17
(S.D.N.Y. Mar. 30, 2007); see also Rana, 887 F.3d at 123 (“We therefore interpret
31
the NYLL and FLSA as not allowing duplicative liquidated damages for the same
course of conduct”). Instead, a plaintiff should recover “under the statute that
provides the greatest relief.” Almanzar v. 1342 St. Nicholas Ave. Rest. Corp., No. 14CV-7850 (VEC) (DF), 2016 WL 8650464, at *9 (S.D.N.Y. Nov. 7, 2016) (internal
citation omitted).
Here, the Court will award liquidated damages under NYLL, because (as
explained below), the law allows a plaintiff to recover both liquidated damages and
prejudgment interest. See, e.g., Vasquez, 2021 WL 1226567, at *14 (awarding
liquidated damages under NYLL in part because NYLL allowed recovery of both
liquidated damages and prejudgment interest); Martinez v. Alimentos Saludables
Corp., No. 16-CV-1997 (DLI) (CLP), 2017 WL 5033650, at *23 (E.D.N.Y. Sept. 22,
2017) (awarding damages under NYLL in part because “unlike the FLSA, the NYLL
allows for the recovery of both liquidated damages and pre-judgment interest.”).
Therefore, Plaintiffs should receive liquidated damages in the amounts equal to
their principal unpaid wages (including minimum and overtime wages and spread
of hours compensation), as follows: $43,482.75 for Ramos, $23,100 for Vargas, and
$25,450 for Cruz. 13
While NYLL authorizes liquidated damages that “amount to 100% of the total
unpaid wages,” Chen, 2019 WL 2763836, at *13, “[l]iquidated damages are not
available for violations of the NYLL wage notice and statement provisions.” Dai v.
ABNS NY Inc., 490 F. Supp. 3d 645, 661 (E.D.N.Y. 2020) (quoting Li v. Chang Lung
Grp. Inc., No. 16-CV-6722 (PK), 2020 WL 1694356, at *14 (E.D.N.Y. Apr. 7, 2020)).
13
32
6. Prejudgment Interest
Plaintiffs also seek prejudgment interest. Compl. ¶ 80; Pl. Mem. at 14.
Unlike the FLSA, NYLL provides for an award of prejudgment interest even when a
plaintiff is also awarded liquidated damages. See NYLL § 198(1-a) (“In any action
instituted in the courts upon a wage claim by an employee or the commissioner in
which the employee prevails, the court shall allow such employee to recover . . .
prejudgment interest as required under the civil practice law and rules, and . . . an
additional amount as liquidated damages. . . .”); § 663(1) (same); Reilly v. Natwest
Markets Group Inc., 181 F.3d 253, 265 (2d Cir. 1999); Pineda v. Frisolino, Inc., No.
15-CV-3774 (GBD), 2017 WL 3835882, at *13 (S.D.N.Y. Aug. 29, 2017) (“[C]ourts
typically award pre-judgment interest on damages for NYLL violations.”).
Prejudgment interest applies “only to the actual, compensatory damages, and not to
liquidated damages or to damages recovered due to violations of wage statement or
wage notice provisions.” Soto v. Los Corbaticas Deli Grocery II Corp., No. 18-CV3602 (JGK) (JLC), 2018 WL 4844018, at *6 (S.D.N.Y. Oct. 5, 2018), adopted by 2018
WL 6173713 (Nov. 23, 2018).
New York law provides that interest shall be at the rate of nine percent per
year. N.Y.C.P.L.R. § 5004. Prejudgment interest is calculated based on a plaintiff's
“NYLL unpaid minimum, overtime and spread of hours wage claims (that do not
overlap with FLSA recovery).” Baltierra v. Advantage Pest Control Co., No. 14-CV5917 (AJP), 2015 WL 5474093, at *12 (S.D.N.Y. Sept. 18, 2015). Courts in this
District have generally calculated prejudgment interest from “a singular, midpoint
33
date and by multiplying the principal by the interest rate by the time period — from
a singular, midpoint date — up until and including the date judgment is entered.”
Soto, 2018 WL 4844018, at *7 (S.D.N.Y. Oct. 5, 2018), adopted by 2018 WL 6173713
(Nov. 23, 2018).
b. Ramos’s Prejudgment Interest
May 4, 2019 is the approximate midpoint between Ramos’s first (October 1,
2018) and last (December 5, 2019) date of employment. As previously calculated,
the principal amount he is owed in unpaid overtime wages and spread of hours
compensation is $43,482.75. Thus, Ramos should receive nine percent interest on a
balance of $43,482.75 from May 4, 2019 until the date that judgment is entered.
c. Vargas’s Prejudgment Interest
July 17, 2018 is the approximate midpoint between Vargas’s first (January 1,
2018) and last (January 31, 2019) date of employment. As previously calculated,
the principal amount he is owed in unpaid overtime wages is $23,100. Thus, Vargas
should receive nine percent interest on a balance of $23,100 from July 17, 2018
until the date that judgment is entered.
d. Cruz’s Prejudgment Interest
June 15, 2019 is the approximate midpoint between Cruz’s first (October 1,
2018) and last (February 28, 2020) date of employment. As previously calculated,
the principal amount he is owed in unpaid minimum and overtime wages is
$25,450. Thus, Cruz should receive nine percent interest on a balance of $25,450
from June 15, 2019 until the date that judgment is entered.
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7. Post-Judgment Interest
“Unlike prejudgment interest, plaintiffs are entitled to post-judgment
interest on all money awards as a matter of right.” Soto, 2018 WL 4844018, at *7
(quoting Tacuri v. Nithin Constr. Co., No. 14-CV-2908 (CBA) (RER), 2015 WL
790060, at *12 (E.D.N.Y. Feb. 24, 2015)). According to 28 U.S.C. § 1961(a),
“[i]nterest shall be allowed on any money judgment in a civil case recovered in a
district court.” Post judgment interest is calculated using the federal rate set forth
in 28 U.S.C. § 1961. See, e.g., Tacuri, 2015 WL 790060, at *12.
Plaintiffs are therefore entitled to post-judgment interest on all sums
awarded, including attorneys’ fees and costs, commencing when the Clerk of Court
enters judgment until the date of payment.
8. Reasonable Attorneys’ Fees and Costs
Finally, Plaintiffs seek an award of reasonable attorneys’ fees and costs.
Compl. ¶ 80; Pl. Mem. at 16. Both the FLSA and NYLL permit a successful plaintiff
to recover reasonable attorneys’ fees. 29 U.S.C. § 216(b); NYLL §§ 198, 663; accord,
e.g., Young v. Cooper Cameron Corp., 586 F.3d 201, 208 (2d Cir. 2009) (“The FLSA
provides that a court ‘shall, in addition to any judgment awarded to the plaintiff or
plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of
the action.’”). Moreover, the WPTA also permits “costs and reasonable attorney’s
fees” in connection with Defendants’ violations. NYLL §§ 198(1-b), (1-d). Plaintiffs
can therefore recover reasonable attorneys’ fees and costs. They are hereby directed
to file a motion for fees and costs and submit documentation by December 29,
35
2021. Defendants may file opposition papers by January 21, 2022, and any reply
papers will be due by February 4, 2022.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is granted.
The Clerk is respectfully directed to enter judgment against Defendants Guaba Deli
Grocery Corp. d/b/a Guaba Deli, Luis Rivera, and Daisy Guaba (but not Jose
Castillo) in the following amounts: $96,965.50 for Ramos, $56,200 for Vargas, and
$60,900 for Cruz, plus prejudgment and post-judgment interest as set forth herein.
The Clerk is further directed to close Docket No. 30 and mark it as “granted.”
SO ORDERED.
Dated: November 29, 2021
New York, New York
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