Opinion
18-CV-7226 (AT) (BCM)
08-10-2022
MANUEL GUZMAN, et al., Plaintiffs, v. PRIMO INSTALLATION, INC., et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. ANALISA TORRES
BARBARA MOSES, United States Magistrate Judge
In this action, filed pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and N.Y. Labor Law (NYLL) §§ 190 et seq., plaintiffs Manuel Guzman, Richard Almonte, and Yaser Calderon seek damages from defendants Primo TV Installation Inc. (Primo TV) and its owner and operator, Braulio Rodriguez. See Compl. (Dkt. No. 1) ¶¶ 4-5, 8-13. All three plaintiffs allege that they regularly worked more than 40 hours per week for Primo TV, driving company vans to the homes of Primo TV customers and installing televisions and other electronic equipment, but that defendants failed to pay them minimum wages or compensate them for their overtime hours as required by federal and state law; failed to compensate them for spread-of-hours pay on days that they worked more than 10 hours; failed to reimburse them for laundering their work uniforms or refueling the company vans; and improperly took deductions from their pay for lost or broken equipment. Id. ¶¶ 14-19.
Sued as "Primo Installation, Inc."
On December 20, 2018, the Honorable Analisa Torres, United States District Judge, granted plaintiffs' motion for a default judgment (Dkt. No. 31) and referred the matter to me for an inquest into damages. (Dkt. No. 32.) For the reasons that follow, I respectfully recommend that judgment be entered as follows: plaintiff Guzman should be awarded $227,371.32 in damages, comprising (a) $113,685.66 in unpaid overtime wages and (b) $113,685.66 in liquidated damages, plus prejudgment interest in the amount of $28.03 per day from January 11, 2016 to the date of entry of the final judgment. Plaintiff Almonte should be awarded $105,551.82 in damages, comprising (a) $52,775.91 in unpaid overtime wages and (b) $52,775.91 in liquidated damages, plus prejudgment interest in the amount of $13.01 per day from March 28, 2015 to the date of entry of the final judgment. Plaintiff Calderon should be awarded $252,719.02 in damages, comprising (a) $126,359.51 in unpaid overtime wages and (b) $126,359.51 in liquidated damages, plus prejudgment interest in the amount of $31.16 per day from October 10, 2016 to the date of entry of the final judgment. Additionally, plaintiffs should be awarded $21,685 in attorney's fees and costs.
I. BACKGROUND
Except where otherwise indicated, the facts in this section are taken from the Complaint and accepted as true for the purpose of determining defendants' liability. See City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)) ("It is an 'ancient common law axiom' that a defendant who defaults thereby admits all 'well-pleaded' factual allegations contained in the complaint."); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) ("In light of [defendants'] default, a court is required to accept all of [plaintiffs'] factual allegations as true and draw all reasonable inferences in its favor[.]").
Prior to its dissolution in 2019 (discussed below), Primo TV was a New York corporation that was headquartered at 2204 Amsterdam Avenue in upper Manhattan and operated a home electronics delivery and installation service throughout the tri-state area. Compl. ¶¶ 4, 10, 21. Defendant Rodriguez was at all times Primo TV's "principal owner and operator," with "responsibility for paying employees." Id. ¶ 5. During their employment at Primo TV, plaintiffs "went to the business location of Primo" at the start of the work day, at which point they were "assigned to a van" to drive to various customer residences, where they installed television sets and other electronic equipment. Id. ¶¶ 10-11. Guzman, Almonte, and Calderon worked for Primo TV "between the years 2014 and 2018." Id. ¶ 8.
All three plaintiffs allege that they were paid a "daily rate in cash," regardless of the number of hours actually worked. Compl. ¶ 13. Although they "worked more than 8 hours per day and more than 40 hours per week," averaging 60 hours per week, id.. ¶ 14, they never received overtime pay for time they spent working over 40 hours per week, nor spread-of-hours pay for the days they worked over 10 hours. Id. ¶¶ 15-16. They further allege that they were required to fill up the company van with gasoline when returning it to "the business location"; that if tools were lost or damaged, that cost would be "deducted from their pay"; that they were required to wear Primo TV uniforms but "did not receive required additional pay for washing their uniforms"; and that they received "below the minimum wage pay at least since December 31, 2015." Id. ¶¶ 17-19.
Beyond these general allegations, the Complaint is short on specifics. It does not state plaintiffs' daily rates or otherwise specify how much they were actually paid at any point during their employment. It does not allege which of them worked more than 10 hours per day or how often this occurred. Nor does it include any detail concerning the alleged refueling obligation, laundry expenses, or deductions for lost or broken tools.
B. Procedural History
Plaintiffs filed this action on August 10, 2018, alleging six causes of action against defendants: (1) failure to pay overtime compensation, as required by the FLSA, 29 U.S.C. § 207; (2) failure to pay overtime compensation, as required by the NYLL and related regulations, see 12 N.Y. Comp. Codes R. & Regs. (NYCRR) § 142-2.2; (3) failure to pay minimum wage, as required by the NYLL and related regulations, see 12 NYCRR § 142-2.1; (4) failure to pay spread-of-hours compensation, as required by the NYLL and related regulations, see 12 NYCRR § 142-2.4(a); (5) failure to reimburse them for uniform laundering, as required by the NYLL and related regulations, see 12 NYCRR § 142-2.5(c); and (6) taking improper deductions from their pay for other "expenses incurred in the conduct of Defendants' business and for lost and broken equipment used in the conduct of Defendants' business," in violation of the NYLL and related regulations, see 12 NYCRR § 142-2.10. Compl. ¶¶ 20-38.
Plaintiffs served both defendants with process on September 14, 2018. (Dkt. No. 25-2.) Neither defendant ever appeared. On November 8, 2018, the Clerk of Court issued a Certificate of Default as to both defendants (Dkt. No. 19), and on November 14, 2018 (and again on November 28, 2018), plaintiffs moved for the entry of a default judgment. (Dkt. Nos. 20, 25.) On November 30, 2018, Judge Torres issued an Order to Show Cause (OSC) (Dkt. No. 26), directing defendants to appear at a hearing on December 20, 2018 and show cause why a default judgment should not be entered against them. On December 3, 2018, plaintiffs served the OSC on both defendants. (Dkt. Nos. 27-28.) On December 20, 2018, Judge Torres held the show-cause hearing, at which neither defendant appeared. She then granted plaintiffs' motion and referred the case to me for inquest. (Dkt. Nos. 31-32.)
On February 11, 2019, in compliance with my Scheduling Order for Damages Inquest (Sched. Order) (Dkt. No. 33), plaintiffs filed their Proposed Findings of Fact and Conclusions of Law (Prop. Findings) (Dkt. No. 35), along with affidavits executed by plaintiffs Guzman (Guzman Aff.) (Dkt. No. 35-1), Calderon (Calderon Aff.) (Dkt. No. 35-2), and Almonte (Almonte Aff.) (Dkt. No. 35-3), and a "time entry report" detailing the work performed on this case by their counsel Leo Glickman (Glickman Timesheet) (Dkt. No. 35-4). Plaintiffs requested damages in the aggregate amount of $855,324.65, plus attorney's fees and costs in the amount of $21,915.31. Prop. Findings ¶¶ 273, 291. Although the Proposed Findings and supporting papers were served on both defendants by mail, see id. Ex. E (Dkt. No. 35-5), neither defendant filed any response.
On May 14, 2019, defendant Rodriguez filed a Chapter 7 bankruptcy petition in this District. See Voluntary Pet., In re Braulio E. Rodriguez, No. 19-BK-11541 (Bankr. S.D.N.Y.) (hereinafter In re Rodriguez), ECF No. 1 (May 14, 2019). The petition listed this case, described as a "[p]ending employment lawsuit," as an unsecured, unliquidated claim against Rodriguez, from which he sought discharge, and listed each plaintiff (c/o attorney Glickman) as a creditor. Voluntary Pet. at ECF pages 27-28, 52. The following day, notice of the petition was mailed to each listed creditor. See Notice of Ch. 7 Bankr. Case, In re Rodriguez, ECF No. 5 (May 15, 2019). The filing of the petition stayed the proceedings against Rodriguez in this action. See 11 U.S.C. § 362(a)(1).
On June 11, 2019, I scheduled an evidentiary hearing for June 26, 2019. (Dkt. No. 36.) However, on June 24, 2019, plaintiffs informed the Court that they had not yet served the order scheduling that hearing on defendants, and requested an adjournment for that purpose. (Dkt. No. 37.) I granted the request and rescheduled the hearing for July 30, 2019. (Dkt. No. 38.) Plaintiffs served the rescheduling order on June 28, 2019. (Dkt. Nos. 39-40.)
On July 30, 2019, plaintiffs and their counsel appeared for the hearing, as did the bankrupt defendant, Rodriguez, without counsel. Since no attorney was present to represent defendant Primo TV, I considered Primo TV absent, but permitted Rodriguez to participate. See Tr. of July 30, 2019 Evid. Hr'g (Hr'g Tr.) (Dkt. No. 47) at 9. During the hearing, plaintiffs Guzman, Almonte, and Calderon testified (through a Spanish interpreter), as did Rodriguez (in English). At the conclusion of the hearing, the parties agreed to discuss settlement, and requested that the Court delay issuance of its report and recommendation for that purpose. (Dkt. No. 42.)
On September 3, 2019, the bankruptcy court granted Rodriguez a discharge pursuant to 11 U.S.C. § 727 and mailed it to his creditors, including plaintiffs herein. See Discharge of Debtor(s) and Order of Final Decree, In re Rodriguez, ECF No. 12 (Sept. 3, 2019). Plaintiffs did not (and do not) challenge the dischargeability in bankruptcy of their claims in this action. Nor, insofar as the record reveals, were those claims nondischargeable pursuant to 11 U.S.C. § 523 (listing "exceptions to discharge"). Consequently, the discharge extinguished Rodriguez's personal liability on plaintiffs' FLSA and NYLL claims. See 11 U.S.C § 727(b) ("Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter[.]").
On October 16, 2019, plaintiffs advised the Court that the parties could not reach settlement. (Dkt. No. 44.) On December 27, 2019, Primo TV filed a Certificate of Dissolution and was dissolved under New York law. It is now listed as an "inactive" corporation on the website of the Department of State, Division of Corporations. See N.Y. Dep't of State, "Entity Filing History," https://apps.dos.ny.gov/publicInquiry/FilingHistory (last accessed June 8, 2022).
During the hearing, Rodriguez testified that Primo TV was no longer operating and that he had wound it down. Hr'g Tr. at 118:4-13, 20-25, 120:11-20. Neither the wind-down nor the formal dissolution, however, shields Primo TV from liability in this action, which arises from its predissolution conduct. See N.Y. Bus. Corp. Law § 1006(b) ("The dissolution of a corporation shall not affect any remedy available to or against such corporation . . . for any . . . claim existing or any liability incurred before such dissolution[.]"); In re Bernard L. Madoff Inv. Secs. LLC, 2022 WL 493734, at *19 (S.D.N.Y. Feb. 17, 2022) (dissolved corporation is liable even where action was filed one year after dissolution because plaintiffs' claims accrued prior to dissolution); J & J Sports Prods., Inc. v. Morocho, 2019 WL 1339198, at *3 (E.D.N.Y. Feb. 27, 2019) ("Because Salina's was an active corporation at the time of the alleged infringement, it is subject to liability for any established FCA violations.") report and recommendation adopted, 2019 WL 1333245 (E.D.N.Y. Mar. 25, 2019).
In their Proposed Findings, plaintiffs seek damages of $344,909.07 for Guzman, $199,140.23 for Almonte, and $289,360.04 for Calderon (including actual damages, liquidated damages, and interest to that date). Prop. Findings ¶ 272. In addition, they seek $21,915.31 in attorney's fees and costs, representing 47.3 hours worked by attorney Glickman at an hourly rate of $450, and costs in the amount of $630.31. Id. ¶¶ 272, 289-91; Glickman Timesheet.
II. ANALYSIS
As discussed in more detail below, I conducted the inquest based upon the written materials submitted by plaintiffs and the testimony presented at the evidentiary hearing. See, e.g., Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012) ("[A] district court may determine there is sufficient evidence either based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence.").
A. Legal Standards
1. Determining Liability
Following a default, all well-pleaded factual allegations in the complaint as to liability are "deemed admitted." S.E.C. v. Razmilovic, 738 F.3d 14, 19 (2d Cir. 2013), as amended (Nov. 26, 2013); accord Mickalis Pawn Shop, 645 F.3d at 137; Vt. Teddy Bear Co., 373 F.3d at 246. However, a default "only establishes a defendant's liability if those allegations are sufficient to state a cause of action against the defendants." Gesualdi v. Quadrozzi Equip. Leasing Corp., 629 Fed.Appx. 111, 113 (2d Cir. 2015) (summary order). The court must therefore determine "whether the allegations in the complaint establish the defendants' liability as a matter of law." Id. (citing Finkel, 577 F.3d at 84). If the well-pleaded factual allegations establish the defaulting party's liability, the only remaining issue is "whether plaintiff has provided adequate support for [the requested] relief." Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. 2008) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)).
Conversely, if the well-pleaded factual allegations in the complaint fail to state a claim upon which relief can be granted, no damages can be awarded, even if the post-default inquest submissions supply the missing information. See United States ex rel. Nat'l Dev. & Constr. Corp. v. U.S. Envtl. Universal Servs., Inc., 2014 WL 4652712, at *4 (S.D.N.Y. Sept. 2, 2014) (quoting Gutman v. Klein, 2010 WL 4975593, at *10 (E.D.N.Y. Aug. 19, 2010)) ("[i]t is the . . . [c]omplaint, not the inquest submissions, that establishes defendants' liability") (alterations in the original); J & J Sports Prods., Inc. v. Abdelraouf, 2019 WL 457719, at *2 (E.D.N.Y. Feb. 5, 2019) ("It is the moving party's burden to demonstrate that it is entitled to recovery based on the factual allegations pleaded in the complaint.").
2. Determining Damages
Although the court must accept all well-pleaded facts as true when determining liability, it need not - and indeed cannot - rely on the allegations in the complaint to establish plaintiffs' damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Rather, plaintiffs are required to substantiate their damages claim with "admissible, authenticated evidence." McLaughlin v. Barron, 2018 WL 1872535, at *2 (S.D.N.Y. Jan. 24, 2018), report and recommendation adopted, 2018 WL 993627 (S.D.N.Y. Feb. 20, 2018); see also House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010) ("[T]here must be a basis upon which the court may establish damages with reasonable certainty.").
Where, as here, the parties have not produced any written employment records, the court may credit the plaintiffs' "recollections regarding [their] hours and pay in conducting its inquest." Coley v. Vannguard Urban Improvement Ass'n, Inc., 2018 WL 1513628, at *7 (E.D.N.Y. Mar. 27, 2018), as amended (Mar. 29, 2018). However, "the Court must ensure that [p]laintiffs' approximations and estimates are reasonable and appropriate." Id.; see also Jemine v. Dennis, 901 F.Supp.2d 365, 378 (E.D.N.Y. 2012) (finding that plaintiffs' method of estimating hours worked by averaging the hours listed in the available payroll records with the hours recalled and described in plaintiffs' declarations was reasonable where defendants failed to maintain adequate records).
Similarly, where there are conflicts in the inquest evidence or questions as to witness credibility, the Court, sitting as finder of fact, must resolve those conflicts and assess credibility. See Lin v. Quality Woods, Inc., 2021 WL 4129151, at *13 (E.D.N.Y. Aug. 10, 2021) ("In evaluating damages, courts may consider the credibility of evidence offered by the parties[.]"). Even where all of the testimony presented at an inquest comes from the plaintiffs, the court may reject that testimony in whole or in part if it is not credible. See id. (declining to recommend any damages award where the assertions made by plaintiff's counsel as to Lin's work schedule were "confusing and contradictory" and Lin himself "appeared unfamiliar with many of [those] allegations" and "contradicted himself multiple times" when testifying).
See also, e.g., Villanueva v. 179 Third Ave. Rest. Inc., 500 F.Supp.3d 219, 228, 230 (S.D.N.Y. 2020) (finding the inquest testimony of two FLSA plaintiffs "not credible" and recommending that no damages be awarded to them where, among other things, their oral testimony was materially inconsistent with their declarations), report and recommendation adopted, 2021 WL 2139441 (S.D.N.Y. May 26, 2021); Ge Chun Wen v. Hair Party 24 Hours Inc., 2021 WL 3375615, at *1 (S.D.N.Y. May 17, 2021) ("[A] s a result of the inconsistencies in Plaintiff's papers, I recommend that the amount awarded be somewhat less than that sought"), report and recommendation adopted sub nom. Wen v. Hair Party 24 Hours Inc., 2021 WL 2767152 (S.D.N.Y. July 2, 2021); cf. Villalta v. JS Barkats, P.L.L.C., 2021 WL 2458699, at *8 & n.10 (S.D.N.Y. Apr. 16, 2021) (finding plaintiff's oral testimony at damages inquest credible despite inconsistencies in pre-hearing written attestation attributable to counsel), report and recommendation adopted, 2021 WL 2458023 (S.D.N.Y. June 16, 2021).
Regardless of the evidence submitted, "a default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed.R.Civ.P. 54(c); see also Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007) ("By limiting damages to what is specified in the 'demand for judgment,' [Rule 54(c)] ensures that a defendant who is considering default can look at the damages clause, satisfy himself that he is willing to suffer judgment in that amount, and then default without the need to hire a lawyer."); Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, 2018 WL 4760345, at *1 (S.D.N.Y. Sept. 28, 2018) ("a plaintiff cannot recover damages against a defaulted defendant for claims never alleged in its pleading").
B. Jurisdiction and Venue
I am satisfied that this Court has subject matter jurisdiction over plaintiffs' claims. Because plaintiffs sue under a federal statute - the FLSA - subject matter jurisdiction is properly based on 28 U.S.C. § 1331. To the extent they have adequately pleaded state law claims arising out of the same facts and circumstances, the Court may exercise supplemental jurisdiction over those claims pursuant to 28 U.S.C. § 1367.
I am also satisfied as to personal jurisdiction over defendants, which is "a necessary prerequisite to entry of a default judgment." Reilly v. Plot Commerce, 2016 WL 6837895, at *2 (S.D.N.Y. Oct. 31, 2016) (quoting Sheldon v. Plot Commerce, 2016 WL 5107072, at *6 (E.D.N.Y. Aug. 26, 2016), report and recommendation adopted, 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016)). Primo TV is a New York corporation with its principal place of business in New York City. Compl. ¶¶ 4, 10. Accordingly, Primo TV is "amenable to general personal jurisdiction throughout the state under New York law," Reilly, 2016 WL 6837895, at *3, and the exercise of such jurisdiction "comports with the requirements of the Due Process Clause." Id.; see also Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir. 2014) (a corporation is amenable to "all-purpose jurisdiction" where it is incorporated and where it has its principal place of business). Similarly, the Court may exercise personal jurisdiction over defendant Rodriguez, who "was at all times here relevant the principal owner and operator of" Primo TV. Compl. ¶ 5. Both defendants were properly served, see Part I.B., supra, and Rodriguez appeared and testified at the inquest. Venue is appropriate in this District pursuant to 28 U.S.C. §§ 1391(b)(1) and (b)(2).
C. Unpaid Minimum and Overtime Wages
To state an FLSA wage claim, a plaintiff must allege that: (1) he was an employee of the defendant; (2) he was "engaged in commerce" or employed by "an enterprise engaged in commerce," see 29 U.S.C. §§ 206(a), 207(a); and (3) "[he] worked hours for which [he] did not receive minimum and/or overtime wages." Pineda v. Tokana Cafe Bar Restorant Inc., 2017 WL 1194242, at *2 (S.D.N.Y. Mar. 30, 2017) (citing Zhong v. August August Corp., 498 F.Supp.2d 625, 628 (S.D.N.Y. 2007)). NYLL wage claims involve a similar analysis, except that the NYLL "does not require a plaintiff to show that the employer was involved in interstate commerce or had $500,000 in minimum annual sales," as required under 29 U.S.C. § 203(s)(1)(A) to satisfy the "engaged in commerce" requirement. Reyes v. Lincoln Deli Grocery Corp., 2018 WL 2722455, at *3 (S.D.N.Y. June 5, 2018) (citing Santillan v. Henao, 822 F.Supp.2d 284, 292 (E.D.N.Y. 2011)).
1. Employee-Employer Relationship
The FLSA defines "employer" 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 that this is an expansive definition with "striking breadth." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992). Moreover, "[a]n individual may simultaneously have multiple 'employers' for the purposes of the FLSA, in which event, 'all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the [FLSA].'" Martin v. Sprint United Mgmt. Co., 273 F.Supp.3d 404, 421 (S.D.N.Y. 2017) (quoting 29 C.F.R. § 791.2(a)).
Similarly, under the NYLL, the definition of "employer" is very broad, see NYLL § 190(3) ("[e]mployer" means "any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service"), and the crucial inquiry, in determining whether an employer-employee relationship exists, is the "degree of control exercised by the purported employer over the results produced or the means used to achieve the results." Hart v. Rick's Cabaret Int'l, Inc., 967 F.Supp.2d 901, 923 (S.D.N.Y. 2013) (quoting Bynog v. Cipriani Grp., Inc., 1 N.Y.3d 193, 198, 802 N.E.2d 1090 (2003)). Although the New York Court of Appeals "has not yet answered the question of whether the test for 'employer' status is the same under the FLSA and the NYLL," Camara v. Kenner, 2018 WL 1596195, at *7 (S.D.N.Y. Mar. 29, 2018) (citing Irizarry, 722 F.3d at 117), "[t]here is general support for giving [the] FLSA and the New York Labor Law consistent interpretations . . . [a]nd there appears to have never been a case in which a worker was held to be an employee for purposes of the FLSA but not the NYLL (or vice versa)." Hart, 967 F.Supp.2d at 924 (first alteration in the original) (internal citations omitted). See also Camara, 2018 WL 1596195, at *7 ("courts have generally assumed" that the test is the same under federal and New York law).
Here, plaintiffs have adequately alleged that they were employed by both defendants: Primo TV - where they reported at the beginning of each shift to work as installers, and which issued them Primo TV uniforms and assigned them to drive Primo TV vans - and Rodriquez, its "principal owner and operator," who was responsible for paying its employees. See Compl. ¶¶ 23, 5, 8, 10-12, 18; Doo Nam Yang v. ACBL Corp., 427 F.Supp.2d 327, 343 (S.D.N.Y. 2005) ("[T]he overwhelming weight of authority is that a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation[.]") (internal quotation mark omitted) (quoting Moon v. Kwon, 248 F.Supp.2d 201, 237 (S.D.N.Y. 2002)). Consequently, were it not for Rodriguez's bankruptcy petition and discharge, both Primo TV and Rodriguez would be "jointly and severally liable under the FLSA and NYLL for any damages award." Suriel Monte de Oca v. Dela Cruz, 2022 WL 1750232, at *11 (S.D.N.Y. Jan. 10, 2022), report and recommendation adopted, 2022 WL 1751163 (S.D.N.Y. May 31, 2022); accord Doo Nam Yang, 427 F.Supp.2d at 343.
2. Unpaid Minimum Wages
Plaintiffs' minimum wage claim is pleaded under state law only. Compl. ¶¶ 27-29. During the periods relevant to this lawsuit, the NYLL mandated the following hourly minimum wages for New York City businesses with (a) 10 or fewer employees and (b) 11 or more employees:
The statute of limitations is six years for claims under the NYLL, three years for claims under the FLSA if a defendant's acts are willful, and two years under the FLSA if they are not. 29 U.S.C. § 255(a); NYLL § 663(3); Angamarca v. Pita Grill 7 Inc., 2012 WL 3578781, at *4 (S.D.N.Y. Aug. 2, 2012). Here, plaintiffs seek unpaid minimum wages "since December 31, 2015," Compl. ¶ 19, which is less than six years prior to the filing of this action on August 10, 2018.
NYLL §§ 652(1), 652(1)(a)(i)-(ii).
Period
Minimum Hourly Wage 10 or Fewer Employees
Minimum Hourly Wage 11 or More Employees
2016
$9.00
$9.00
2017
$10.50
$11.00
2018
$12.00
$13.00
The Complaint is silent as to how many employees Primo TV had during any of the relevant periods. In their affidavits, plaintiffs attest that the company "always had more than 10 employees working there." Guzman Aff. ¶ 4; Almonte Aff. ¶ 4; Calderon Aff. ¶ 4.
To state a minimum wage claim under the FLSA, a plaintiff must allege enough "facts about her salary and working hours, such that a simple arithmetical calculation can be used to determine the amount owed per pay period." Tackie v. Keff Enters. LLC, 2014 WL 4626229, at *3 (S.D.N.Y. Sept. 16, 2014). The same standard is applied to minimum wage claims under the NYLL. See Lopez-Serrano v. Rockmore, 132 F.Supp.3d 390, 403 (E.D.N.Y. 2015) ("[T]he pleading standard applicable to overtime claims under the NYLL is analytically identical to its federal law counterpart under the FLSA.")
Here, although plaintiffs allege that they "received below the minimum wage pay at least since December 31, 2015," Compl. ¶ 19, and that defendants "willfully failed to pay [them] the minimum wages to which they were entitled," id. ¶ 29, these are purely conclusory statements, unsupported by any specifics as to the length of their daily shifts (except that they worked "more than 8 hours per day," id. ¶ 14) or the amount they were paid per shift. The Court "need not credit" such conclusory statements. Calle v. Pizza Palace Cafe LLC, 2022 WL 609142, at *3 (E.D.N.Y. Jan. 4, 2022). Thus, even under the relatively generous standard of Fed.R.Civ.P. 8(a)(2) (requiring that a complaint contain a "short and plain statement . . . showing that the pleader is entitled to relief"), plaintiffs have failed to state a claim for unpaid minimum wages. See Lopez-Serrano, 132 F.Supp.3d at 402 (sustaining minimum wage claim for a period of two weeks, during which plaintiff allegedly "worked 107 hours, for which she was compensated at a flat rate of $500," but otherwise dismissing the claim because her allegation that "these workweeks were also typical of her entire approximately one-year employment" was "conclusory and insufficient to state a claim"); Serrano v. I. Hardware Distribs., Inc., 2015 WL 4528170, at *4 (S.D.N.Y. July 27, 2015) (dismissing plaintiffs' minimum wage claims as "deficient" where they failed to supply sufficient "factual allegations regarding the number of hours Plaintiffs actually worked per week" to permit the court to perform the necessary "arithmetical calculation" demonstrating that they were paid less than the minimum wage).
In their Proposed Findings, plaintiffs do not claim to have been underpaid for their first 40 hours of work per week. Moreover, as discussed in more detail below, their affidavits and hearing testimony show that their regular hourly wages for all relevant periods after December 31, 2015 were well above the then-prevailing minimum wage, ranging from $17.19 to $20.63 per hour. Consequently, even if plaintiffs had alleged the necessary details concerning their actual hours and wages in their Complaint, they could not have pleaded a plausible minimum wage claim.
3. Unpaid Overtime
Both the FLSA and the NYLL require an employer to pay an overtime rate of one and a half times the employee's "regular rate" of pay. 29 U.S.C. § 207(a)(1); 12 NYCRR § 142-2.2. To state an overtime claim, "a plaintiff must allege only that she worked compensable overtime in a workweek longer than forty hours, and that she was not properly compensated for that overtime." Tackie, 2014 WL 4626229, at *3 (citing Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 199-201 (2d Cir. 2013)).
Here, plaintiffs allege that they "consistently worked . . . more than 40 hours per week," and that" [o]n average, they worked 60 hours per week." Compl. ¶ 14. They further allege that they were "never paid overtime for the amount of time they spent working over 40 hours per week," id. ¶ 15, in that defendants "failed to pay [them] one and one-half times [their] regular rate of pay for hours worked over 40." Id. ¶ 22. Thus, plaintiffs have adequately stated claims for unpaid overtime wages under the FLSA and the NYLL.
D. Unpaid Spread-of-Hours Pay
New York employers are required to pay covered employees one extra hour's compensation, at the basic minimum wage rate, for each day on which they work more than ten hours. 12 NYCRR § 142-2.4(a). Unpaid spread-of-hours wages may be recovered in addition to unpaid overtime wages. See, e.g., Yang v. ACBL Corp., 427 F.Supp.2d 327, 338-41 (S.D.N.Y. 2005); Chan v. Sung Yue Tung Corp., 2007 WL 313483, at *25 (S.D.N.Y. Feb. 1, 2007). However, "[o]nly employees making the minimum wage rate, or less, are eligible for spread-of-hours compensation." Hernandez v. Delta Deli Mkt. Inc., 2019 WL 643735, at *7 (E.D.N.Y. Feb. 12, 2019); accord Pichardo v. Hoyt Transp. Corp., 2018 WL 2074160, at *11 (E.D.N.Y. Jan. 31, 2018) (collecting cases); Malena v. Victoria's Secret Direct, LLC, 886 F.Supp.2d 349, 368 (S.D.N.Y. 2012).
Here, plaintiffs allege that, at least since December 31, 2015, they were "not paid 'spread of hours' pay for the amount of time they worked over 10 hours in a day." Compl. ¶ 16. However, as noted above, they fail to specify their regular rate of pay, and thus have not shown (and could not show) that they were "making the minimum wage rate, or less," Hernandez, 2019 WL 643735, at *7, as required to be eligible for spread-of-hours compensation. Their spread-of-hours claim is conclusory in another aspect as well: plaintiffs allege that they "consistently worked more than 8 hours per day," Compl. ¶ 14, but never clearly state that they worked more than 10 hours on any given day, much less specify which of them did so or how often. Plaintiffs have therefore failed to state a claim for unpaid spread-of-hours pay. See Azeez v. Ramaiah, 2015 WL 1637871, at *6 (S.D.N.Y. Apr. 9, 2015) (dismissing spread-of-hours claim where the complaint failed to identify "a single day on which [plaintiff] worked more than 10 hours").
E. Unpaid Uniform Laundering Reimbursement
Under New York's Minimum Wage Order for Miscellaneous Industries and Occupations (Wage Order), "[n]o allowance for the supply, maintenance or laundering of required uniforms shall be permitted as part of the minimum wage," and employers who "fail[] to launder or maintain required uniforms for any employee" are required to "pay such employee in addition to the minimum wage" to launder their work uniforms. 12 NYCRR § 142-2.5(c). However, under the Wage Order, payment of the uniform laundry allowance is required only in "circumstances where the 'plaintiffs' uniform-related expenditures would reduce their wages below the minimum wage.'" Perez-White v. Advanced Dermatology of New York P.C., 2016 WL 4681221, at *10 (S.D.N.Y. Sept. 7, 2016) (quoting Cordero v. New York Inst. of Tech., 2013 WL 3189189, at *2 (E.D.N.Y. June 20, 2013)); see also Chan v. Triple 8 Palace, Inc., 2006 WL 851749, at *22 n.39 (S.D.N.Y. Mar. 30, 2006) (Lynch, J.) ("The law's plain language provides that employers who fail to maintain and launder employees' uniforms need only pay an additional amount above the 'minimum' wage to cover uniform-related costs.") (emphasis in the original).
Where applicable, the extra laundry payment due to employees of New York City businesses who worked more than 30 hours per week was $9.00 per week in 2013, $9.95 per week in 2014, $10.90 per week in 2015, $11.20 per week in 2016, and (for New York City businesses with 11 or more employees) $13.70 per week in 2017 and $16.20 per week in 2018. 12 NYCRR § 142-3.5(c).
Here, plaintiffs allege that they did "not receive required additional pay for washing their uniforms," Compl. ¶ 18, but never expressly allege that they were required to do so; that is, that Primo TV did not maintain their uniforms at its expense. Moreover, given that plaintiffs' regular wages were comfortably above the then-prevailing minimum, they do not (and could not) allege that their uniform-related laundry expenses "reduce[d] their wages below the minimum wage." Perez-White, 2016 WL 4681221, at *10. Plaintiffs have therefore failed to state a claim for unreimbursed uniform laundering expenses.
F. Deductions for Work Expenses
Under New York law, an employee's wages "shall be subject to no deductions," except for allowances authorized in the Wage Order and other "deductions authorized or required by law, such as for social security and income tax." 12 NYCRR § 142-2.10(a). Further, "[t]he minimum wage shall not be reduced by expenses incurred by an employee in carrying out duties assigned by an employer." Id. § 142-2.10(b).
Here, plaintiffs allege that they were "required to fill up the [Primo TV] van with gasoline when returning the van to the business location," Compl. ¶ 17, but provide no further detail, such as which plaintiffs were required to refuel the van, how often, or at what cost. Nor, for that matter, do they clearly allege that defendants failed to reimburse them for whatever gasoline expenses they incurred. Similarly, plaintiffs allege that "[i]f tools were lost or damaged," the cost was "deducted from their pay," id., and (even more generally) that defendants "willfully deducted Plaintiffs' pay for expenses incurred in the conduct of Defendants' business and for lost and broken equipment used in the conduct of Defendants' business," id. ¶ 38, but provide no further information concerning the nature, frequency, or dollar amount of these alleged expenses. The Court need not and does not credit these wholly conclusory allegations. See Calle, 2022 WL 609142, at *3. Consequently, plaintiffs have failed adequately to state a claim for unlawful deductions under New York law.
G. Statute of Limitations
As noted above, the statute of limitations applicable to plaintiffs' claims is six years under the NYLL, see NYLL § 198(3), and two years under the FLSA, unless the FLSA violation was "willful," in which case the limitations period is three years. See 29 U.S.C. § 255(a); McLaughlin v. Richland Shoe Co., 486 U.S. 128, 129 (1988). A violation is willful if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited[.]" McLaughlin, 486 U.S. at 133.
Here, plaintiffs allege that defendants' failure to pay overtime compensation as required by the FLSA was willful. Compl. ¶ 23. Moreover, "defendants' default in this case and their failure to participate in the proceedings will be taken as additional support for a finding of willfulness within the meaning of [the] FLSA." Galeana v. Lemongrass on Broadway Corp., 120 F.Supp.3d 306, 315 (S.D.N.Y. 2014); see also Santillan v. Henao, 822 F.Supp.2d 284, 297 (E.D.N.Y. 2011) (collecting cases). Consequently, a three-year statute of limitations applies to plaintiffs' FLSA claim, meaning that plaintiffs may recover damages under the FLSA for conduct on and after August 10, 2015. They may recover under the NYLL for conduct on and after August 10, 2012. However, "double recovery is prohibited when Plaintiffs bring both FLSA and NYLL minimum wage and overtime wage claims." Thompson v. Hyun Suk Park, 2020 WL 5822455, at *7 (E.D.N.Y. Sept. 1, 2020). Where "a plaintiff is entitled to damages under both federal and state wage law, the Court has discretion to award damages under the statute providing the greatest amount of relief." Id. (quoting Payamps v. M& MConvenience Deli & Grocery Corp., 2019 WL 1417848, at *3 (S.D.N.Y. Apr. 11, 2016)).
H. Damages for Unpaid Overtime
Because plaintiffs failed to plead any cognizable claim for unpaid minimum wages, unpaid spread-of-hour pay, unpaid uniform laundering allowance, or unlawful expense deduction, those claims - all asserted under New York law - should be dismissed, and no damages should be awarded as to any of them. Abdelraouf, 2019 WL 457719, at *2. Because plaintiffs adequately pleaded claims for unpaid overtime compensation under the FLSA and the NYLL, I now assess the evidence presented as to the quantum of damages owed on those claims. Where (as was frequently the case), the testimony at the July 30, 2019 evidentiary hearing disclosed details about the nature and extent of plaintiffs' work duties, hours worked, or wages paid that were absent from or vaguely treated in their affidavits, I have relied on that oral testimony, insofar as I found it credible. The same is true where (as was sometimes the case), Rodriguez credibly offered - or plaintiffs conceded - facts that weakened or undermined the assertions made in their affidavits.
1. Manuel Guzman
Guzman worked for defendants from March 15, 2014 until "around November 8, 2017." Guzman Aff. ¶ 2. From the start of his employment through July 1, 2014 (Guzman Period 1), he worked seven days per week, averaging 10 to 12 hours per day. Id. Assuming an overall average of 11 hours of work per day, therefore, Guzman worked approximately 77 hours per week during Guzman Period 1, representing 37 overtime hours per week.
At the hearing, Guzman testified that he "sometimes" worked more than 12 hours per day, but did not quantify the frequency with which this occurred. Hr'g Tr. at 51:13-22. He also testified that his job duties began when he met up with other Primo employees at 8 a.m. every day to drive to the first installation job of the day, and that work would run until between 6 p.m. and 11 p.m. (a range of 10 to 15 hours per day). Id. at 60:24-61:17. Additionally, there was a one-month period during which he and other Primo TV employees performed electronics installations for Best Buy, beginning at 3 a.m. every day. Id. However, Guzman did not testify as to when work ended on those days. Rodriguez, for his part, testified that the employees finished the Best Buy jobs by 10:45
Guzman was paid $125 per work day, regardless of his actual hours worked. Guzman Aff. ¶ 8; Hr'g Tr. at 53:1-8, 60:7-23. Since he worked seven days per week, he was paid a total of $875 per week, making his regular rate of pay $21.88 per hour.
At the hearing, Guzman testified at one point that he was paid $125 per week during Guzman Period 1. Hr'g Tr. at 60:7-10. However, his affidavit clearly stated that he made $125 per day until September 2015, when he got a raise to $150 per day. See Guzman Aff. ¶¶ 8, 11, 12, 13. Moreover, the other two plaintiffs testified that they were always paid a daily rate (ranging from $80 to $150 per day). I therefore conclude that Guzman's oral testimony on this point was mistaken, and that he was in fact paid $125 per day during Guzman Period 1.
An employee's "regular rate" of pay is "derived by dividing the total amount of wages received in a work week by forty[.]" Baltierra v. Advantage Pest Control Co., 2015 WL 5474093, at *5 (S.D.N.Y. Sept. 18, 2015). Here, the calculation is: ($125 x 7) / 40 = $21.88.
During the 15.43 weeks of Guzman Period 1, Guzman worked (and was not properly compensated for) 570.91 hours of overtime, for which he should have been paid $32.82 per hour. That would amount to $18,737.27 of unpaid overtime wages for Guzman Period 1. However, Guzman testified that for the first three to four months of his employment he worked for an individual named Neville Amades, who paid him, gave him his schedule, and provided his "direct orders" throughout the workday. Hr'g Tr. at 50:1-3, 51:8-12, 66:24-67:22. Although Guzman testified that during this period he told customers he was "from Primo TV," and thought he "worked for Primo TV," id. at 52:11-15, he admitted that Amades's van did not say "Primo" on the side. Id. at 56:17-22. Moreover, Rodriguez testified credibly, in considerable detail, that a.m. at the latest (sometimes even finishing between 6:00 and 7:00 a.m.). Id. at 112:8-113:3. Given the vagueness of Guzman's hearing testimony, I decline to rely on it to the extent he testified to longer work hours than those set forth in his affidavit. Amades operated an independent business that focused on home automation (smart locks, home theatres, camera systems) and maintained its own telephone number, clientele, earnings, and payroll. Id. at 106:19-110:14. I therefore find that Guzman was underpaid during Guzman Period 1 by Amades, not by defendants herein. I recommend, respectfully, that no damages with respect to Guzman be assessed against defendants for this time period.
The period spans 15 weeks and 3 days. 15 + (3 / 7) = 15.43.
15.43 x 37 = 570.91.
$21.88 x 1.5 = $32.82.
At one point Guzman testified that he worked for Amades for "[f]ive months, four months." Hr'g Tr. at 52:6-7. He then stated that he drove Amades's van for a "[m]aximum" of three months. Id. at 56:10. Rodriguez testified that Guzman worked for Amades for eight to nine months before Rodriguez hired him for Primo TV. Id. at 110:15-22. On this point, however, I found Guzman's testimony more credible. I note, for example, that it is consistent with his assertion (uncontradicted by Rodriguez) that "around July 2014," Guzman requested up to two days off per week and Rodriguez agreed - suggesting that by that date Guzman was reporting to Rodriguez rather than Amades. Hr'g Tr. at 59:8-20. Consequently I conclude that Guzman's work for Amades roughly coincided with the 15.43 weeks of Guzman Period 1.
From July 2, 2014 through January 10, 2015 (Guzman Period 2), Guzman worked "between 5 to 6 days each week" (5.5 days on average), with each work day comprising "the same number of hours on average" as before. Guzman Aff. ¶ 10; see also Hr'g Tr. at 52:16-25 (his usual days off were Sundays and Tuesdays). Therefore, Guzman worked approximately 60.5 hours per week during Guzman Period 2, representing 20.5 overtime hours per week. Guzman was paid $125 per work day, Guzman Aff. ¶ 10; Hr'g Tr. at 60:10-12, for a total of $687.50 per week, making his regular rate of pay $17.19 per hour.
In his affidavit, Guzman attests that he cut back from seven days per week to "5 to 6 days per week" after August 16, 2014. Guzman Aff. ¶¶ 9-10. At the hearing, however, Guzman testified that he began receiving up to two days off per week in July 2014. Hr'g Tr. at 59:8-20. Thus, for purposes of calculating Guzman's damages, I consider that Guzman Period 1 ended on July 1, 2014, and Guzman Period 2 commenced on July 2, 2014.
($125 x 5.5) / 40 = $17.19.
During the 27.43 weeks of Guzman Period 2, Guzman worked (and was not properly compensated for) 562.32 hours of overtime, for which he should have been paid $25.79 per hour. Consequently, Guzman is owed $14,502.23 in overtime wages for Guzman Period 2.
The period spans 27 weeks and 3 days. 27 + (3 / 7) = 27.43.
27.43 x 20.5 = 562.32.
$17.19 x 1.5 = $25.79.
From January 11, 2015 through May 9, 2015 (Guzman Period 3), Guzman worked "5-6 days per week" (5.5 days on average) and "15-16 hours each working day" (15.5 hours on average). Guzman Aff. ¶ 11. Therefore, Guzman worked approximately 85.25 hours per week during Guzman Period 3, representing 45.25 overtime hours per week. He was paid $125 per work day, Guzman Aff. ¶ 11, for a total of $687.50 per week, making his regular rate of pay $17.19 per hour.
($125 x 5.5) / 40 = $17.19.
During the 16.86 weeks of Guzman Period 3, Guzman worked (and was not properly compensated for) 762.92 hours of overtime, for which he should have been paid $25.79 per hour. Consequently, Guzman is owed $19,675.71 for Guzman Period 3.
The period spans 17 weeks and 6 days. 17 + (6 / 7) = 17.86.
16.86 x 45.25 = 762.92.
$17.19 x 1.5 = $25.79.
From May 10, 2015 through September 12, 2015 (Guzman Period 4), Guzman worked "56 days per week" (5.5 days on average) and "10-12 hours per day" (11 hours on average). Guzman Aff. ¶ 12. Therefore, Guzman worked approximately 60.5 hours per week during Guzman Period 4, representing 20.5 overtime hours per week. He was paid $125 per work day, Guzman Aff. ¶ 12, for a total of $687.50 per week, making his regular rate of pay $17.19 per hour.
($125 x 5.5) / 40 = $17.19.
During the 17.86 weeks of Guzman Period 4, Guzman worked (and was not properly compensated for) 366.13 hours of overtime, for which he should have been paid $25.79 per hour. Consequently, Guzman is owed $9,442.49 for Guzman Period 4.
The period spans 16 weeks and 6 days. 16 + (6 / 7) = 16.86.
17.86 x 20.5 = 366.13.
$17.19 x 1.5 = $25.79.
Guzman's last day of employment with defendants was November 8, 2017 (when Rodriguez fired him for complaining about, inter alia, working too many hours). Hr'g Tr. at 62:963:5) From September 13, 2015 through November 8, 2017 (Guzman Period 5), Guzman worked "5-6 days per week" (5.5 days on average) and "10-12 hours per day" (11 hours on average). Guzman Aff. ¶ 13. Therefore, Guzman worked approximately 60.5 hours per week during Guzman Period 5, representing 20.5 overtime hours per week. During this period, Guzman was paid $150 per work day, Guzman Aff. ¶ 13, making his regular rate of pay $20.63 per hour.
($150 x 5.5) / 40 = $20.63.
During the 110.43 weeks of Guzman Period 5, Guzman worked (and was not properly compensated for) 2,263.82 hours of overtime, for which he should have been paid $30.95 per hour. Consequently, Guzman is owed $70,065.23 for Guzman Period 5.
Guzman took two weeks of vacation during Guzman Period 5. See Prop. Findings ¶ 103. Thus, the period spans 110 weeks and 3 days. 110 + (3 / 7) = 110.43.
110.43 x 20.5 = 2,263.82.
$20.63 x 1.5 = $30.95.
In total, Guzman is owed $113,685.66 in overtime pay.
$14,502.23 + $19,675.71 + $9,442.49 + $70,065.23.
2. Richard Almonte
Almonte worked for defendants from "around December 8, 2013" until "around July 15, 2016." Almonte Aff. ¶ 2. From the start of his employment through July 7, 2014 (Almonte Period 1), he worked "5 to 6 days per week" (5.5 days on average) and - according to his affidavit - "10 12 hours per day." Almonte Aff. ¶¶ 7-8. Based on Almonte's hearing testimony, however, I find that he did not work more than 10 hours per work day during this period. Therefore, Almonte worked approximately 55 hours per week during Almonte Period 1, representing 15 overtime hours per week.
At the hearing, Almonte testified that he generally began work at 8:00 a.m. and worked until 6:00 or 7:00 p.m., "[s]ometimes" later. Hr'g Tr. at 16:13-15, 34:3-5. However, he also testified that during Almonte Period 1 he was incarcerated and participating in a work release program. Id. at 36:21-37:4. While in the work release program he had to report back to "the facility," on 110th Street in Manhattan, by 7:00 p.m. Id. at 35:16-36:8. "Most of the time," his co-workers gave him a ride in the van and dropped him off at the facility. Id. at 36:11-18. That means that he had to leave his last installation job of the day (which could be anywhere within a 30-mile radius, see Hr'g Tr. at 113:15-23) in time to get to 110th Street by the cutoff. See id. at 36:5-8 ("The Court: So if you were at a job, let's say, in Midtown or in another borough, you had to leave yourself enough time to get back to the facility by 7:00? [Almonte]: Yes, your Honor."). Given these restraints, I conclude that Almonte could not have worked past 6:00 p.m., on average, during this period, and therefore that he worked no more than 10 hours per day.
Almonte was initially paid $80 per work day. Almonte Aff. ¶ 8. Since he worked 5.5 days per week, he was paid a total of $440 per week, making his regular rate of pay $11 per hour.
($80 x 5.5) / 40 = $11.
During the 30.14 weeks of Almonte Period 1, Almonte worked (and was not properly compensated for) 452.1 hours of overtime, for which he should have been paid $16.50 per hour.Consequently, Almonte is owed $7,459.65 in overtime wages for Almonte Period 1.
The period spans 30 weeks and 1 day. 30 + (1 / 7) = 30.14.
30.14 x 15 = 452.1.
$11 x 1.5 = $16.50.
On January 7, 2015, Almonte was reincarcerated for four months for a work release violation. Hr'g Tr. at 19:21-20:2; Almonte Aff. ¶ 10. Before that, from July 8, 2014 through January 6, 2015 (Almonte Period 2), he worked "6-7 days per week" (6.5 days on average) and -according to his affidavit - "10-12 hours per day." Almonte Aff ¶ 9. Because he was still required to report to the facility at 7:00 p.m., however, I find, once again, that he did not work more than 10 hours per work day during this period. Therefore, he worked approximately 65 hours per week during Almonte Period 2, representing 25 overtime hours per week. Although his affidavit stated that by this point he had received a raise to $125 per work day, Almonte Aff. ¶ 9, I find, based on his hearing testimony, that Almonte did not receive that raise until he was once again released from prison. This means that during Almonte Period 2 he was still paid $80 per day, making his regular rate of pay $11 per hour.
See supra n.34.
At the hearing, Almont clearly stated that he received his raise after he was released from prison on May 7, 2015. Hr'g Tr. at 39:23-25, 42:10-14.
($80 x 5.5) / 40 = $11.
During the 26 weeks of Almonte Period 2, Almonte worked (and was not properly compensated for) 650 hours of overtime, for which he should have been paid $16.50 per hour.Consequently, Almonte is owed $10,725 for Almonte Period 2.
26 x 25 = 650.
$11 x 1.5 = $16.50.
On May 7, 2015, Almonte was released on parole, with a 10:00 p.m. curfew. Hr'g Tr. at 36:21-37:4. From that day through March 16, 2016 (Almonte Period 3), Almonte worked "5-6 days per week" (5.5 days on average) and "10-12 hours per day" (11 hours on average). Almonte Aff. ¶ 11. Therefore, Almonte worked approximately 60.5 hours per week during Almonte Period 3, representing 20.5 overtime hours per week. During this period Almonte was paid $125 per work day, Hr'g Tr. at 39:23-25, 42:10-14, for a total of $687.50 per week, making his regular rate of pay $17.19 per hour.
($125 x 5.5) / 40 = $17.19.
During the 44.86 weeks of Almonte Period 3, Almonte worked (and was not properly compensated for) 919.63 hours of overtime, for which he should have been paid $25.79 per hour. Consequently, Almonte is owed $23,717.26 for Almonte Period 3.
The period spans 44 weeks and 6 days. 44 + (6 / 7) = 44.86.
44.86 x 20.5 = 919.63.
$17.19 x 1.5 = $25.79.
From March 17, 2016 through July 15, 2016 (his last day with Primo TV) (Almonte Period 4), Almonte worked "5-6 days per week" (5.5 days on average) and "10-12 hours per day" (11 hours on average). Almonte Aff. ¶ 12. Therefore, Almonte worked approximately 60.5 hours per week during Almonte Period 3, representing 20.5 overtime hours per week. By this time Almonte had received a second raise, to $150 per work day, Almonte Aff. ¶ 12, for a total of $825 per week, making his regular rate of pay $20.63 per hour.
($150 x 5.5) / 40 = $20.63.
During the 17.14 weeks of Almonte Period 3, Almonte worked (and was not properly compensated for) 351.37 hours of overtime work, for which he should have been paid $30.95 per hour. Consequently, Almonte is owed $10,874.90 for Almonte Period 3.
The period spans 17 weeks and 1 day. 17 + (1 / 7) = 17.14.
17.14 x 20.5 = 351.37.
$20.63 x 1.5 = $30.95.
In total, Almonte is owed $52,775.91 in overtime pay.
$7,708.31 + $10,725 + $23,717.26 + $10,874.90.
3. Yaser Calderon
Calderon worked for defendants from "around January 6, 2015" until "around July 15, 2018." Calderon Aff. ¶ 2. From the start of his employment through May 9, 2015 (Calderon Period 1), Calderon worked "6-7 days per week" (6.5 days on average) and "15-16 hours per day" (15.5 hours on average). Calderon Aff. ¶ 7. Therefore, Calderon worked approximately 100.75 hours per week during Calderon Period 1, representing 60.75 overtime hours per week. Calderon was paid $100 per work day, Calderon Aff. ¶ 7, for a total of $650 per week, making his regular rate of pay, during this time, $16.25 per hour.
Calderon explained at the hearing that he began working for Primo TV as a van driver, and that part of his job was finding parking for the van at the end of the work day, which took him two to three hours. Hr'g Tr. at 74:10-14, 74:20-75:6, 79:23-80:6. Rodriguez agreed that Calderon's search for (legal) parking at the end of the night was part of his job responsibility. Hr'g Tr. at 101:21103:15. Time spent using an employer's vehicle incidental to commuting is not normally compensable. See 29 U.S.C. § 254(a); Colella v. City of New York, 986 F.Supp.2d 320, 340-41 (S.D.N.Y. 2013) (plaintiffs' travel between their homes and work locations normally constitutes noncompensable commute time under FLSA); Williams v. Epic Sec. Corp., 358 F.Supp.3d 284, 300 ("The NYLL does not differ from the FLSA as to the compensation of commutes."). Calderon's search for parking, however, was not incidental to commuting; it was one of his "principal . . . activities" for his employer, 29 U.S.C. § 254(a), and therefore compensable in this instance.
($100 x 6.5) / 40 = $16.25.
During the 17.57 weeks of Calderon Period 1, Calderon worked (and was not properly compensated for) 1,067.38 hours of overtime, for which he should have been paid $24.38 per hour. Consequently, Calderon is owed $26,022.72 for Calderon Period 1.
The period spans 17 weeks and 4 days. 17 + (4 / 7) = 17.57.
17.57 x 60.75 = 1,067.38.
$16.25 x 1.5 = $24.38.
From May 10, 2015 through January 11, 2016 (Calderon Period 2), Calderon worked "5-6 days per week" (5.5 days on average) and "10-12 hours per day" (11 hours on average). Calderon Aff. ¶ 8. At the hearing, he explained that while he still had parking responsibilities, Rodriguez had "reduced the schedule" for him. Hr'g Tr. at 85:11-21. Therefore, Calderon worked approximately 60.5 hours per week during Calderon Period 2, representing 20.5 overtime hours per week. Because Calderon had received a raise to $125 per work day, commensurate with his assumption of new, additional responsibilities as a handyman, Calderon Aff. ¶ 8; Hr'g Tr. at 83:684:9, he was paid a total of $687.50 per week, making his regular rate of pay $17.19 per hour.
($125 x 5.5) / 40 = $17.19.
During the 35.14 weeks of Calderon Period 2, Calderon worked (and was not properly compensated for) 720.37 hours of overtime, for which he should have been paid $25.79 per hour. Consequently, Calderon is owed $18,578.34 for Calderon Period 2.
The period spans 35 weeks and 1 day. 35 + (1 / 7) = 35.14.
35.14 x 20.5 = 720.37.
$17.19 x 1.5 = $25.79.
Calderon left Primo TV on July 15, 2018, because he was "tired." Hr'g Tr. at 88:20-89:8. From January 12, 2016 through July 15, 2018 (Calderon Period 3), he worked "5-6 days per week" (5.5 days on average) and "10-12 hours per day" (11 hours on average). Calderon Aff. ¶ 10. Therefore, he worked approximately 60.5 hours per week during Calderon Period 3, representing 20.5 overtime hours per week. By then Calderon had received another raise, to $150 per work day, and had taken on more responsibilities, such as electrical work. Calderon Aff. ¶ 9; Hr'g Tr. at 86:22-87:3. This means that his regular rate of pay was $20.63 per hour.
($150 x 5.5) / 40 = $20.63.
During the 128.86 weeks of Calderon Period 3, Calderon worked (and was not properly compensated for) 2,641.63 hours of overtime, for which he should have been paid $30.95 per hour. Consequently, Calderon is owed $81,758.45 for Calderon Period 3.
Calderon took two weeks of vacation during Calderon Period 3, Prop. Findings ¶ 145. Thus, the period spans 128 weeks and 6 days. 128 + (6 / 7) = 128.86.
129.86 x 20.5 = 2641.63.
$20.63 x 1.5 = $30.95.
In total, Calderon is owed $126,359.51 in overtime pay.
$26,022.72 + $18,578.34 + $81,758.45.
I. Liquidated Damages
Plaintiffs request liquidated damages, in the amount of 100% of their unpaid wages, under both the FLSA and the NYLL. Compl. at ECF page 6. The Second Circuit has held that wage-and-hour plaintiffs may not recover liquidated damages under both the FLSA and the NYLL for the same period of time. Chowdhury v. Hamza Express Food Corp., 666 Fed.Appx. 59, 60 (2d Cir. 2016). Instead, "plaintiff should be permitted recovery 'under the statute that provides the greatest relief.'" Almanzar v. 1342 St. Nicholas Ave. Rest. Corp., 2016 WL 8650464, *27-28 (S.D.N.Y. Nov. 7, 2016) (quoting Castillo v. RV Transp., Inc., 2016 WL 1417848, at *3 (S.D.N.Y. Apr. 11, 2016)); see also Quiroz v. Luigi's Dolceria, Inc., 2016 WL 2869780, at *3 (E.D.N.Y. May 17, 2016) (the court will "rely on the statute that provides the greater recovery to the plaintiff"); Wicaksono v. XYZ 48 Corp., 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011) ("[T]o the extent the plaintiffs' allegations allow recovery under both state and federal law, the law providing for the greatest recovery will govern the calculation of damages."), report and recommendation adopted, 2011 WL 2038973 (S.D.N.Y. May 24, 2011).
Here, because the NYLL has a longer statute of limitations than the FLSA (encompassing all three plaintiffs' full periods of employment), and allows for prejudgment interest at 9% in addition to liquidated damages, see NYLL § 198(1-a), the NYLL will provide the greatest relief. Under the NYLL, an employer must pay liquidated damages equal to the full amount of the unpaid wages to which its employees were entitled "under the provisions of this article," unless it can demonstrate that it acted in "good faith." NYLL § 198(1-a). Because good faith must be pled as an affirmative defense under NYLL § 198, a defaulting defendant cannot carry this burden. Tackie, 2014 WL 4626229, at *4; Jaramillo v. Banana King Rest. Corp., 2014 WL 2993450, *5 (E.D.N.Y. July 2, 2014). Thus, plaintiffs Guzman, Almonte, and Calderon are also entitled to an additional $113,685.66, $52,775.91, and $126,359.51, respectively, in liquidated damages.
This is not the case under the FLSA. See Valdez v. H & S Rest. Ops., Inc., 2016 WL 3079028, at *6 (E.D.N.Y. Mar. 29, 2016) (collecting cases), report and recommendation adopted, 2016 WL 3087053 (E.D.N.Y. May 27, 2016).
J. Prejudgment Interest
Although a wage-and-hour plaintiff may not recover more than one liquidated damages award, he may recover both liquidated damages and prejudgment interest under NYLL § 198(1)(a). Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999) (reasoning that "liquidated damages under the Labor Law and pre-judgment interest serve fundamentally different purposes"); Andrade v. 168 First Ave Rest. Ltd., 2016 WL 3141567, at *10 (S.D.N.Y. June 3, 2016) ("[E] ven where a plaintiff is awarded liquidated damages under the NYLL, prejudgment interest still is appropriate."), report and recommendation adopted, 2016 WL 3948101 (S.D.N.Y. July 19, 2016). However, because liquidated damages are considered punitive under the NYLL, while prejudgment interest "compensate[s] a plaintiff for the loss of use of money," Reilly, 181 F.3d at 265 (quoting Chandler v. Bombardier Capital Inc., 44 F.3d 80, 83 (2d Cir. 1994)), "prejudgment interest applies only to the amount of compensatory damages, and excludes the amount of liquidated damages." Xochimitl v. Pita Grill of Hell's Kitchen, Inc., 2016 WL 4704917, at *18 (S.D.N.Y. Sept. 8, 2016) (quoting Maldonado v. LaNueva Rampa, Inc., 2012 WL 1669341, at *11 (S.D.N.Y. May 14, 2012)), report and recommendation adopted, 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016).
New York's prejudgment interest rate is 9% per annum, see N.Y.C.P.L.R. (CPLR) 5004, and is computed "on a simple interest basis." Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 90 (2d Cir. 1998). "Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date." CPLR 5001(b); see alsoMarfia, 147 F.3d at 91 ("New York law leaves to the discretion of the court the choice of whether to calculate prejudgment interest based upon the date when damages were incurred or 'a single reasonable intermediate date,' which can be used to simplify the calculation.") (citing 155Henry Owners Corp. v. Lovlyn Realty Co., 231 A.D.2d 559, 560-61, 647 N.Y.S.2d 30, 32 (2d Dep't 1996)). In NYLL cases, courts often calculate prejudgment interest from the midpoint of the plaintiff's employment. See Gunawan v. Sake Sushi Rest., 897 F.Supp.2d 76, 93 (E.D.N.Y. 2012) (collecting cases). I recommend that method here, which yields the following results:
• The midpoint of Guzman's employment was January 11, 2016. The interest that accrues on his actual damages from that date is $28.03 per day ([$113,685.66 x 0.09] / 365).
• The midpoint of Almonte's employment was March 28, 2015. The interest that accrues on his actual damages from that date is $13.01 per day ([$52,775.91 x 0.09] / 365).
• The midpoint of Calderon's employment was October 10, 2016. The interest that accrues on his actual damages from that date is $31.16 per day ([$126,359.51 x 0.09] / 365).
K. Attorney's Fees
Plaintiffs request an award of $630.31 for expenses and $21,285 in attorney's fees. Prop. Findings ¶¶ 289-90. Both the FLSA and the NYLL allow a successful plaintiff to recover reasonable attorney's fees. 29 U.S.C. § 216(b); NYLL §§ 198, 663. To determine a "presumptively reasonable fee," courts in our Circuit multiply the hours that counsel reasonably spent on the litigation by a reasonable hourly rate. Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008); Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011) "The presumptively reasonable fee boils down to what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively." Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotation marks omitted).
1. Reasonable Hourly Rate
"In determining whether an hourly rate is reasonable, the Second Circuit has observed that the court should apply the prevailing rate within the district for similar services by lawyers of comparable experience and skill." Galeana, 120 F.Supp.3d at 323 (citing Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir.1998)). Additionally, a court may adjust the hourly rate to account for case specific variables such as:
[i] the time and labor required; [ii] the novelty and difficulty of the questions; [iii] the skill requisite to perform the legal service properly; [iv] the preclusion of employment by the attorney due to acceptance of the case; [v] the customary fee; [vi] whether the fee is fixed or contingent; [vii] time limitations imposed by the client or the circumstances; [viii] the amount involved and the results obtained; [ix] the experience, reputation, and ability of the attorneys; [x] the "undesirability" of the case; [xi] the nature and length of the professional relationship with the client; and [xii] awards in similar cases.Gamero v. Koodo Sushi Corp., 328 F.Supp.3d 165, 173 (S.D.N.Y. 2018) (quoting Hensley v. Eckerhart, 461 U.S. 424, 430 n.3 (1983)).
In the Southern District of New York, courts in recent years have typically awarded experienced wage-and-hour attorneys between $300 and $400 per hour. See Sanchez v. Jyp Foods Inc., 2018 WL 4502008, at *15 (S.D.N.Y. Sept. 20, 2018) (citing Surdu v. Madison Global, LLC, 2018 WL 1474379, at *10 (S.D.N.Y. Mar. 23, 2018) (collecting cases regarding litigators with one or more decades of experience)); Pastor v. Alice Cleaners, Inc., 2017 WL 5625556, at *7 (S.D.N.Y. Nov. 21, 2017) ("Courts in this District have determined in recent cases that a fee in the range of $250 to $450 is appropriate for experienced litigators in wage-and-hour cases.") (collecting cases); but see Williams v. Epic Sec. Corp., 2019 WL 1322384, at *3 (S.D.N.Y. Mar. 25, 2019) (awarding lead attorney with 32 years of experience $600 per hour, and a junior partner - with 11 years of general experience but no prior wage-and-hour experience - $350 per hour).
Here, plaintiff's counsel, Leo Glickman, seeks an hourly rate of $450. Prop. Findings ¶ 289.. The figure is at the higher end of the range that the courts generally award in cases of this nature. Moreover, Glickman failed to submit "admissible evidence" describing his "background and qualifications," as directed by the Court. Sched. Order ¶ 5. However, another judge in this District awarded $350 per hour to attorney Glickman in a wage-and-hour case more than ten years ago, noting that his "skill, experience, and reputation further support the requested rate" and that he was already a "well-seasoned litigator[] with at least 10 years of experience." McDow v. Rosado, 657 F.Supp.2d 463, 468 (S.D.N.Y. 2009). Since then, Glickman has become even more experienced, and inflationary pressures have pushed hourly rates upward for attorneys at all experience levels. I therefore accept Glickman's hourly rate of $450 as reasonable for purposes of this inquest.
2. Reasonable Hours
An application for attorney's fees must include "contemporaneous time records" that specify "the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). Glickman submits two pages of time records, totaling 47.3 hours worked on this action, including initial client meetings, legal research, preparation of the Complaint, moving for default judgment, filing the inquest papers, and attending the evidentiary hearing, at which he cross-examined Rodriguez. See Glickman Timesheet. These hours appear reasonable. I therefore recommend that plaintiffs be awarded attorney's fees of $21,285 ($450 per hour x 47.3 hours).
3. Costs
Plaintiffs request costs in the amount of $630.31 for the filing fee, process service, postage costs, printing, and copying. Prop. Findings ¶ 290. I can take judicial notice of the $400 filing fee. However, plaintiffs failed to submit "evidence documenting plaintiff[s'] costs and expenses," as required. See Sched. Order ¶ 5. Consequently, I recommend that plaintiffs be awarded $400 in expenses.
III. CONCLUSION
The individual defendant, Rodriguez, is protected from a judgment in this action by his bankruptcy discharge. Consequently, I recommend, respectfully, that all of plaintiffs' claims against him be dismissed.
The corporate defendant, Primo TV, remains answerable in damages to plaintiffs despite its dissolution. However, plaintiffs failed to state any claim against Primo TV for unpaid minimum wages, unpaid spread-of-hours pay, unreimbursed uniform laundering expenses, or improper deductions. Consequently, I recommend, respectfully, that those claims be dismissed as well.
Plaintiffs adequately stated a claim against Primo TV for unpaid overtime compensation, and substantiated their claim with admissible evidence as to their damages. Consequently, for the reasons set forth above, I recommend, respectfully, that judgment be entered against Primo TV for unpaid overtime wages under the FLSA and the NYLL, and that plaintiffs be awarded the following damages and ancillary relief:
For plaintiff Guzman: damages in the amount of $227,371.32, comprising (a) $113,685.66 in unpaid overtime wages and (b) $113,685.66 in liquidated damages under state law, plus prejudgment interest in the amount of $28.03 per day, running from January 11, 2016 to the date of entry of final judgment.
For plaintiff Almonte: damages in the amount of $105,551.82, comprising (a) $52,775.91 in unpaid overtime wages and (b) $52,775.91 in liquidated damages under state law, plus prejudgment interest in the amount of $13.01 per day, running from March 28, 2015 to the date of entry of final judgment.
For plaintiff Calderon: damages in the amount of $252,719.02, comprising (a) $126,359.51 in unpaid overtime wages and (b) $126,359.51 in liquidated damages under state law, plus prejudgment interest in the amount of $31.16 per day, running from October 10, 2016 to the date of entry of final judgment.
Finally, I recommend, respectfully, that plaintiffs be awarded $21,685 in attorney's fees and costs.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Analisa Torres at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned Magistrate Judge. Any request for an extension of time to file objections must be directed to Judge Torres. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).