Opinion
21-CV-10212 (LGS) (KHP)
01-19-2023
MARCO ANTONIO ORTEGA, Plaintiff, v. THE MATILDA GOURMET DELI INC. (D/B/A GREEN GOURMET DELI), DE REIMER FOOD CORP. (D/B/A DE REIMER GOURMET DELI & GRILL), NEREID GOURMET DELI INC, GREEN ARROW GOURMET DELI CORP., OMAR TAREB, SAM TAREB AND MOIMER MALIK MOHAMMED TAREB, Defendants. Year Number of Weeks Actually Worked in the Relevant Period Differential Between Rate Paid and Minimum wage Differential Between Amount Paid for Overtime Hours Worked and Amount Owed, Per Hour Regular Pay Owed Due to Minimum Wage Underpayment
HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DAMAGES INQUEST
KATHARINE H. PARKER United States Magistrate Judge
Plaintiff is a former employee of Defendants, two Delis and their owners/operators. Plaintiff asserts claims under the Fair Labor Standards Act (“FLSA”) 29 U.S.C. § 203(d) et seq., as well as pendent state claims under the New York Labor Law §§ 190 et seq. and 650 et seq. (“NYLL”), for violations of minimum wage and overtime laws, wage notice and statement violations, liquidated damages, and attorneys' fees and costs. After entry of default against the Defendants, the Honorable Lorna G. Schofield referred this action to me for a report and recommendation on damages. Defendants did not file an opposition to the Plaintiff's Motion for a Default Judgment, nor did they appear at any point in the damages inquest proceedings. After review of the submissions, I respectfully recommend that Plaintiff be awarded damages as set forth in detail below.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the Complaint (ECF No. 19, “Compl.”) and an affidavit submitted by Plaintiff (ECF No. 91, “Ortega Decl.”).
Plaintiff was employed by Defendants from December 1, 2014 through November 15, 2021.(Compl. ¶ 9; Ortega Decl. ¶ 5.) He worked at Green Gourmet Deli for the first five years of his employment reporting to Omar Tareb and later Sam Tareb. (Compl. ¶ 11; Ortega Decl. ¶¶ 3-4.) He worked at De Reimer Gourmet Deli & Grill from November 2019 until November 12, 2021 reporting to Moimer Malik Mohammed Tareb. (Compl. ¶ 12; Ortega Decl. ¶¶ 3-5.) At both locations, Plaintiff worked in the kitchen preparing sandwiches. (Compl. ¶ 10; Ortega Decl. ¶ 9.)
The Complaint states November 12, 2021 was Plaintiff's last day worked, but Plaintiff's Declaration states he was paid through November 15, 2021. Thus, the Court treats November 15, 2021 as Plaintiff's last day of work.
All three Tarebs are alleged to have ownership and/or officer positions in the Defendant Delis and to have had discretion to hire and fire employees and make decisions about wages and hours and to be Plaintiff's employers. (Compl. ¶¶ 2-4, 7.) The Delis received at least $500,000 in annual gross revenue and Plaintiff's job duties involved handling goods that traveled in interstate commerce such as food and drinks manufactured outside of New York. (Ortega Decl. ¶¶ 11-12.)
For his first six months of employment, Plaintiff worked six days per week from 4:00 p.m. until 12:00 a.m., that is, 60 hours per week. Thereafter, Plaintiff worked six days per week from 6:00 a.m. to 4:00 p.m., also 60 hours per week. (Compl. ¶¶ 15-17; Ortega Decl. ¶¶ 7-8, 13.) He did not receive any breaks, including meal breaks. (Ortega Decl. ¶ 14.) From December 2015 until February 14, 2018, Plaintiff was paid $10 per hour for all hours worked- no overtime premium was paid for hours worked in excess of 40 in a week. From February 15, 2018 until his departure, Plaintiff was paid $15 per hour for all hours worked-again, no overtime premium was paid for hours worked in excess of 40 per week.(Compl. ¶ 18, Ortega Decl. ¶ 6.) Throughout his employment, except for a 5-6 month period in 2017 when he did not work, Defendants paid Plaintiff in cash and did not provide any pay statement. (Compl. ¶¶ 1920, 23-26; Ortega Decl. ¶¶ 17-20.) Nor did Defendants ever provide Plaintiff with any kind of notice of his pay rate or pay days at any time. (Compl. ¶ 24, Ortega Decl. ¶¶ 18-19.)
The Complaint and Plaintiff's Declaration differ on when Plaintiff's wage rate changed. Plaintiff's sworn declaration says he was paid $10 per hour “through February 2018” and that “from February, 2018 until November 15, 2021” he was paid $15 per hour. The Court therefore takes mid-February as the date when Plaintiff's hourly rate changed and credits Defendants with paying $15 per hour as of February 15, 2018.
The complaint states that Plaintiff did not work for a 5-6 month period in 2017, but Plaintiff's Declaration is silent on this break. However, Plaintiff's damages computation accounts for a break in employment of six months. The Court assumes that this was an oversight in Plaintiff's Declaration. Because Plaintiff seeks damages for only 26 weeks of employment in 2017, the Court similarly credits Plaintiff with only 26 workweeks in 2017.
Plaintiff alleges that Defendants intentionally and willfully failed to comply with the wage laws and indeed did not provide required wage notices and statements in part to hide their violations from Plaintiff and take advantage of his lack of sophistication in wage and hour laws, resulting in him not being aware of his rights and being underpaid. (Compl. ¶¶ 27-33)
Plaintiff filed his complaint on December 1, 2021 and properly served all of the Defendants in this action, but they failed to appear. On September 26, 2022, Judge Schofield entered a default judgment against Defendants finding that Plaintiff had properly stated a cause of action for violations of the minimum wage and overtime provisions of the FLSA, the New York Minimum Wage Act and the overtime, notice and recordkeeping, and wage statement provisions of the NYLL sufficient to establish liability. (ECF No. 86.) She found the Complaint failed to establish liability as to a spread-of-hours claim. (Id.) Thereafter, she referred the matter to the undersigned for an inquest on damages. (ECF No. 87.) Plaintiff subsequently filed papers in support of the damages he seeks and an affidavit of service on Defendants of these submissions. (ECF Nos. 89-92.)
Plaintiff seeks a total of $44,110.00 for the period November 15, 2015 until November 15, 2021 for unpaid wages and overtime and liquidated damages in the same amount. Plaintiff also seeks statutory damages of $10,000 for failure to comply with New York's Wage Notice and Wage Statement law, as well as attorneys' fees in the amount of $5,897.50. (ECF Nos. 90, 82, 84 & Exh. E.) The adjustments were made to account for the minimum wage rates for small employers and for a six-month gap in employment in 2017.
DISCUSSION
I. Default Judgment
Federal Rule of Civil Procedure (“Rule”) 55 governs judgments against a party that has failed to plead or otherwise defend itself in an action. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61 (2d Cir. 1981) (defendant's ongoing failure to appear supported failure to plead for the purpose of entry of default). Rule 55 requires a two-step process for an entry of a default judgement. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). First, upon notification from the moving party, the court clerk enters a default of the party who failed to defend. Priestley v. Headminder, Inc., 647 F.3d 497, 505 (2d Cir. 2011) (citing Fed.R.Civ.P. 55(a)). Second, once the clerk issues a certificate of default, the moving party may apply for entry of default judgment pursuant to Rule 55(b). Id. A default constitutes an admission of all well-pleaded factual allegations in the complaint, and the allegations as they pertain to liability are deemed true. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). However, plaintiffs are not entitled to a default judgment as a matter of right merely because the opposing party is in default. Finkel v. Universal Elec. Corp., 970 F.Supp.2d 108, 118 (E.D.N.Y. 2013). Plaintiffs bear the burden to demonstrate that their uncontroverted allegations, without more, establish the defendant's liability on each asserted cause of action. Greyhound Exhibitgroup, Inc., 973 F.2d at 158; see also La Barbera v. Fed. Metal & Glass Corp., 666 F.Supp.2d 341, 348 (E.D.N.Y. 2009) (collecting cases).
To determine whether a motion for default judgment is warranted, courts within this district consider three factors: (1) whether the defendant's default was willful; (2) whether the defendant has a meritorious defense to plaintiff's claims; and (3) the level of prejudice the nondefaulting party would suffer as a result of the denial of the motion for default judgment. Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 455 (2d Cir. 2013) (applying these factors in review of lower court's grant of a default judgment).
Here, Plaintiff has satisfied the two-step procedural requirements of Rule 55 by submitting a request for both entry of default and default judgment following the issuance of the clerk's certification. (ECF Nos. 18-21, 28-30.) Additionally, all three of the foregoing factors weigh in Plaintiffs' favor. The Defendants' failure to sustain an appearance and to respond to either Plaintiffs' Complaint or Motion for a Default Judgment are indicative of willful conduct. See Am. All. Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 60 (2d Cir. 1996) (explaining that Second Circuit courts look for evidence of bad faith or more than mere negligence to satisfy the willfulness standard). Additionally, the Defendants cannot assert any meritorious defenses to Plaintiffs' claims because they failed to respond or make any appearance in this case. See Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 31 (E.D.N.Y. 2015) (reasoning that a meritorious defense cannot be established where the defendant has not filed an answer, made an appearance and responded to the claims in the case). And, Plaintiff will be prejudiced if denied the ability to seek judgment by default because he will have no alternative legal redress to recover the amounts due to him for the work performed during his employment. See World Gold Tr. Servs., LLC v. GoldCoin Devs. Grp. LP, 2021 WL 4134681, at *2 (S.D.N.Y. Sept. 10, 2021) (finding that the plaintiff would be prejudiced if denied the ability to seek judgment because it had no alternative legal redress to obtain damages or injunctive relief).
Generally, a defendant's default is an admission of the plaintiff's well-pleaded allegations as to liability but not for purposes of determining damages. See Greyhound Exhibitgroup, 973 F.2d at 158. Even when a defendant has defaulted, a substantive analysis of the alleged claims is required to determine whether the plaintiff may be awarded damages, and proof of damages is required. Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). As noted, Plaintiff submitted a declaration concerning his hours and pay and Plaintiff's counsel submitted contemporaneous time records reflecting time spent on this matter. Because Judge Schofield already found a sufficient basis for liability, I only address damages based on the submissions.
Although a court may hold a hearing to assess damages, a hearing is not required when a sufficient basis on which to make a calculation exists. See Fed.R.Civ.P. 55(b)(2). Holding an inquest by affidavit, without an in-person court hearing, is permissible “as long as [the court] ensured that there was a basis for the damages specified in the default judgment.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Division of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997) (citation omitted). In this case, Plaintiff has offered sufficient evidentiary support through declarations and exhibits submitted in support of his claim for damages. His counsel filed an affidavit of service of Plaintiff's papers on Defendants on December 7, 2022, but Defendants have not submitted any response or otherwise appeared in this action.Hence, no evidentiary hearing is required.
The Court notes that Plaintiff was directed to serve Defendants by November 14, 2022 with a copy of his papers and a copy of the Court's scheduling order regarding this inquest. (ECF No. 88.) Plaintiff did not timely serve Defendants nor is it apparent whether Plaintiff served Defendants with a copy of the Court's scheduling order. Nevertheless, Defendants subsequently were served with Plaintiff's moving papers and they have not made an appearance or submitted opposing papers.
II. Unpaid Wages Under the FLSA and NYLL
The FLSA was enacted by Congress to “protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for the health, efficiency and general well-being of workers.'” Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739 (1981) (quoting 29 U.S.C. § 202(a)). To establish a claim under the FLSA, a plaintiff must show that: (1) he or she was an “employee” of the defendants, as defined by the statute; (2) the defendants were employers engaged in commerce; and (3) the employment relationship was not exempt from the FLSA. See Dejesus v. HF Mgmt. Servs., LLC, 72 6 F.3d 85, 90 (2d Cir. 2013) (plaintiff alleged facts about employment status and duties to satisfy FLSA claim).
Section 206 of the FLSA sets forth the minimum hourly wage that employers must pay their employees. 29 U.S.C. § 206(a)(1)(C). Section 207 specifies that an employer must pay employees who work more than forty hours during a workweek for the excess hours “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207(a)(1). There is a presumption that an employee is entitled to overtime; an employer bears the burden of proving that an employee is exempt from overtime. 29 USC § 207(a)(1); Bilyou v. Dutchess Beer Distributors, Inc., 300 F.3d 217, 222 (2d Cir. 2002) (recognizing that exempt status under the FLSA is an affirmative defense). Employers who violate the FLSA's minimum wage and overtime provisions are liable for the amount of unpaid wages and an additional equal amount as liquidated damages. 29 USC § 216(b).
New York's Labor law is the state analogue to the federal FLSA. Although the Labor Law “does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of sales,” it otherwise mirrors the FLSA in compensation provisions regarding minimum hourly wages and overtime. Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 556 (2d Cir. 2012). The NYLL also expressly provides that employees are entitled to recover all unpaid wages and liquidated damages at a rate of 100 percent of the wages due. See N.Y. Lab. Law § 198(3); Chun Jie Yin, 2008 WL 906736, at *6; Jowers v. DME Interactive Holdings, Inc., 2006 WL 1408671, at *9 (S.D.N.Y. May 22, 2006).
New York's minimum wage was at all relevant times higher than the federal minimum wage. See 29 U.S.C. §§206(a)(1), 207(a)(1), Art. 19 NYLL Sec. 652. Hospitality Industry Minimum Wage Order, 13A N.Y. Prac, Employment Law in New York § 7:89 (2d ed.); see also Dept. of Lab. New York City Minimum Wage rates at https://dol.ny.gov/minimum-wage-0 (last visited Jan. 13, 2023). Under applicable law, Plaintiff is entitled to the more generous minimum wage and overtime rates during all relevant periods. Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498, 515-16 (S.D.N.Y. 2017), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018) (collecting cases, and applying NYLL's “higher” minimum wage rate).
The federal minimum wage during Plaintiffs' employment was $7.25. 29 U.S.C. § 206(a)(1). The federal overtime rate is 1.5 times the employee's regular hourly rate. 29 U.S.C. § 207(a)(1). In New York City, the minimum wage for employees in restaurants with less than 11 employees (Plaintiff did not allege that Defendants employed more than 11 individuals) was $8.75 per hour from December 31, 2014 through December 30, 2015; $9.00 per hour from December 31, 2015 to December 30, 2016; $10.50 per hour from December 31, 2016 to December 30, 2017; $12.00 per hour from December 31, 2017 through December 30, 2018; $13.50 from December 31, 2018 to December 30, 2019; and $15 from December 31, 2019 to the end of Plaintiff's employment. Art. 19 NYLL Sec. 652. The New York State overtime rate also is 1.5 times the regular rate. Hospitality Industry Wage Order 146-1.4.
Here, Plaintiff attested that Defendants were his employers and that he was employed by Defendants. He asserted that Defendants hired, supervised and controlled his work and pay. Thus, Plaintiff has met the requirement of demonstrating that Defendants were employers and that he was an employee. Rahman v. Red Chili Indian Cafe, Inc., 2021 WL 2003111 (S.D.N.Y. May 19, 2021) (in default judgment context, finding allegations in complaint that restaurant and its owner had the power to hire and fire employees and set wages was sufficient to establish that both the entity and its owners were employers under the FLSA); see also 29 U.S.C. § 203(d, e); NY LL 190(2, 3); Irizarry v. Catsimatidis, 722 F.3d 99, 104-11 (2d Cir. 2013) (An “employer” may include an individual owner who exercises sufficient operational control over employees).
Plaintiff has also alleged that Defendant delis are an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA, and that their annual gross revenue was in excess of $500,000 as required by 29 U.S.C. § 203(s)(1)(A)(i)-(ii). (Compl. ¶¶ 42, 43.) This is sufficient to demonstrate that Defendants were engaged in commerce. Rahman, 2021 WL 2003111 at *2 (plaintiffs adequately alleged that defendants were engaged in commerce where the complaint asserted that defendants “engaged in interstate commerce” and that the defendant cafe had annual gross sales of “not less than $500,000); Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 33 (S.D.N.Y. 2015).
The FLSA exempts certain employees from minimum wage and overtime wage protections; however, general laborers carrying out work such as delivery, cooking, dishwashing and food preparation generally are not exempt. See, e.g., Solis v. SCA Rest. Corp., 938 F.Supp.2d 380, 398 (E.D.N.Y. 2013) (finding that chef was not exempt from overtime eligibility); Fermin, 93 F.Supp.3d at 32-33 (plaintiffs' respective jobs as kitchen helper/food preparer, and cook all constitute non-exempt employment under the FLSA.); Genxiang Zhang v. Hiro Sushi at Ollie's Inc., 2019 WL 699179, at *11 (S.D.N.Y. Feb. 5, 2019) (delivery workers are not exempt employees). Given the presumption that an employee is entitled to overtime and Defendants' failure to appear and meet their burden that Plaintiff falls under a specific exemption, Plaintiff has satisfied his entitlement to unpaid wages, including overtime, under the FLSA.
Because the analysis under New York law is the same, Plaintiff also has satisfied his burden in demonstrating Defendants' exposure to liability under the NYLL. Debejian v. Atl. Testing Labs., Ltd., 64 F.Supp.2d 85, 87, n. 1 (N.D.N.Y. 1999) (finding NYLL provisions “substantially similar to the federal scheme” such that its analysis of federal law would apply equally to claims brought under the FLSA and NYLL).
Importantly, claims brought under the FLSA and the NYLL are subject to different statutes of limitations. Under the FLSA, claims are subject to a two-year statute of limitations if the violation is not willful and a three-year statute of limitations if the violation is willful. See Pineda v. Masonry Const. Inc., 831 F.Supp.2d 666, 674 (S.D.N.Y. 2011) (citing 29 U.S.C. § 255(a)). When defendants are in default, the court may accept the plaintiff's allegation that the defendants' violation was willful, such that a three-year statute of limitations would apply in this case. See Angamarca v. Pita Grill 7 Inc., 2012 WL 3578781, at *4 (S.D.N.Y. Aug. 2, 2012) (accepting plaintiff's allegation of defendants' willful violation where defendants defaulted). Claims brought pursuant to the NYLL are subject to a six-year statute of limitations. See Byer v. Periodontal Health Specialists of Rochester, PLLC, 2021 WL 3276725, at *2 (2d Cir. 2021) (citing NYLL § 663(1), (3)). In this case, the state statute of limitations is the relevant one, as Plaintiff was employed more than three years. See, e.g., Elisama v. Ghzali Gourmet Deli Inc., 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), adopted by 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero, 272 F.Supp.3d at 515-16 (same).
Here, Plaintiff's damages calculation incorrectly applied the relevant statute of limitations period. The Complaint in this case was filed on December 1, 2021. This means damages are available for the six-year period preceding the filing of the Complaint; that is, from December 1, 2015 to the date of Plaintiff's termination on November 15, 2021. However, Plaintiff's damages computation starts in November 2015. Thus, the Court makes an adjustment to include only the period of time within the six-year statute of limitations.
Plaintiff provided a declaration stating that he worked 60 hours a week for the entirety of his employment. The NYLL requires employers to compensate their employees at 1.5 times their regular hourly rate for every hour worked over forty hours per week. See 29 U.S.C. § 207(a)(1); 12 N.Y. Comp. Codes R. & Regs. § 142-2.2; Shanfa Li v. Chinatown Take-Out Inc., 812 Fed.Appx. 49, 52 (2d Cir. 2020). However, if a plaintiff's regular hourly rate fell below the minimum wage, that plaintiff is entitled to overtime damages equal to one and one-half times the minimum wage rate. Rosendo v. Everbrighten Inc., 2015 WL 1600057 *4 (S.D.N.Y. 2015). Here, Plaintiff was paid above or at the minimum wage rate for the entire period of his employment except from December 31, 2016 until February 13, 2018. Thus, for those weeks when Plaintiff's wage rate equaled or exceeded the minimum wage rate, his overtime is computed at 1.5 times his hourly rate. For those weeks when Plaintiff's wage rate was less than the minimum wage rate, his overtime rate is 1.5 times the minimum wage rate. Because he consistently worked 60 hours per week, Plaintiff is entitled to 20 hours of overtime premium pay for each full week of his employment.
Because Plaintiff's pay changed over time, as did New York's minimum wage rate, the computation of Plaintiff's damages requires a year-by-year computation, with each yearly period beginning on December 31 of the previous year. Similarly, the overtime computation calculates only periods of employment within the six-year statute of limitations and excludes 26 weeks of employment in 2017. The following chart sets forth the damages due for minimum wage underpayments and overtime premiums due to Plaintiff:
Year
Number of Weeks Actually Worked in the Relevant Period
Hourly Rate Paid
Differential Between Rate Paid and Minimum wage
Differential Between Amount Paid for Overtime Hours Worked and Amount Owed, Per Hour
Regular Pay Owed Due to Minimum Wage Underpayment
Overtime Premium Owed for 20 Overtime Hours Per Week Worked
2015
4 (12/1/2015-12/30/2015)
$10
n/a
$5.00
n/a
$400.00
2016
52
$10
n/a
$5
n/a
$5,200.00
2017
26 (exact dates unknown)
$10
0.50
$5.75
$780.00
$2,990.00
2018
52
$10 until 2/13/2018, and then $15
2.50 until 2/13/2018 [i.e. for 6 weeks] and then no relevant differential
$8.75 until 2/13/2018 and then $7.50
$900.00
$7,950.00
2019
52
$15
n/a
$7.50
n/a
$7,800.00
2020
52
$15
n/a
$7.50
n/a
$7,800.00
2021
45 (12/31/2020-11/12/2021)
$15
n/a
$7.50
n/a
$6,750.00
TOTAL
$1,680.00
$38,890.00
Based on these calculations, Plaintiff is owed $1,680.00 to compensate him for minimum wage underpayment and $38,890.00 to compensate him for failure of his employers to pay him at the overtime rate for overtime hours worked, which totals $40,570.00.
III. Liquidated Damages
Plaintiff seeks liquidated damages under the NYLL. Under the NYLL, “liquidated damages are presumed unless defendants can show subjective good faith.” Zubair v. EnTech Eng'g, P.C., 900 F.Supp.2d 355, 360 n.3 (S.D.N.Y. 2012); see also N.Y. Lab. Law § 663(1). Liquidated damages are 100% of the unpaid wages/overtime. 29 U.S.C. 216(b); NYLL § 198(1-a), 663(1). As Defendants have defaulted, they have not established the good faith necessary to rebut the liquidated damages presumption. Accordingly, Plaintiff is entitled to liquidated damages in the amount of $40,570.00.
For similar reasons, Plaintiffs are entitled to liquidated damages under federal law. However, a plaintiff may not recover liquidated damages under both the FLSA and the NYLL for the same claims. Chowdhury v. Hamza Express Food Corp., 666 Fed.Appx. 59, 61 (2d Cir. 2016) (holding that plaintiffs cannot recover liquidated damages under both the FLSA and NYLL because the liquidated damages provisions of the FLSA and NYLL “are identical in all material respects, serve the same functions, and redress the same injuries”); see also de Los Santos v. Marte Constr., Inc., 2020 WL 8549054, at *6 (S.D.N.Y. Nov. 25, 2020), report and recommendation adopted, 2020 WL 8549055 (S.D.N.Y. Dec. 17, 2020).
Accordingly, while I respectfully recommend an award of liquidated damages under state law, I do not recommend a separate award under federal law.
IV. Statutory Damages
Plaintiffs also seek statutory damages for Defendants' failure to provide wage notices in compliance with New York's Wage Theft Prevention Act (“WTPA”), and NYLL § 195(1) and (3), which require employers to “provide [their] employees, in writing . . . a notice containing . . . the rate or rates of pay thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other allowances.” N.Y. Lab. Law. § 195(1) and (3). NYLL § 198 sets the amount of statutory damages an employee may recovery for violations of NYLL § 195.
Regarding wage notices, in 2011, the WTPA required employers to provide written wage notices “at the time of hiring, and on or before February first of each subsequent year of the employee's employment with the employer.” N.Y. Lab. Law § 195(1-a) (eff. Apr. 9, 2011 to Feb. 27, 2015). Failure of the employer to follow this resulted in a $50 per week payment to the employee with a maximum recovery of $2,500 per employee. Subsequently, the WTPA was amended, effective February 27, 2015, to provide that employers were only required to provide written wage notices “at the time of hiring” and/or within ten days of their hire date. 2014 N.Y. Laws ch. 537 § 1, amending N.Y. Lab. Law § 195(1-a). Failure to follow this results in a $50 per day payment to the employee with a maximum recovery of $5,000.00 per employee. N.Y. Lab. Law § 198(1-b). “[T]he version of the provision in effect at the time of hiring - or at any point in which an employee's wage changes - is applied when determining statutory damages.” Olivares v. 1761 Fonda Mexico Magico LLC, 2022 WL 4534458, at *8 (S.D.N.Y. Sept. 28, 2022) (citations omitted).
Plaintiff attests that he never received a written wage notice at the time of hiring or anytime thereafter. Because Defendants are in default, the Court accepts Plaintiff's allegations that Defendants failed to provide the required notices. See Xochimitl v. Pita Grill of Hell's Kitchen, Inc., 2016 WL 4704917, at *14 (S.D.N.Y. Sept. 8, 2016) (awarding plaintiff statutory damages under NYLL § 195(1) and (3) where defendants defaulted), report and recommendation adopted, 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016). Plaintiff began his employment prior to the 2015 amendment, but his wage rate changed after the 2015 amendment. Because Plaintiff had a wage increase that changed after the February 27, 2015 amendment, for which he should have received notice, Plaintiff is entitled to the recovery under the 2015 Amendment, which entitles him to the maximum rate of $5,000.00. See, e.g. Olivares, 2022 WL 4534458, at *8 (S.D.N.Y. Sept. 28, 2022); Campos Marin v. J&B 693 Corp., 2022 WL 377974, at *9 (S.D.N.Y. Jan. 21, 2022), report and recommendation adopted sub nom. Marin v. J&B 693 Corp., 2022 WL 374522 (S.D.N.Y. Feb. 7, 2022) (finding plaintiffs were entitled to recovery under the 2015 Amendment although they were hired prior to 2015 because they had a wage increase following the amendment).
Regarding wage statements, the WTPA formerly entitled employees to recover statutory damages for violations of the wage statement requirement of $100 per work week, not to exceed $2,500.” Baltierra v. Advantage Pest Control Co., 2015 WL 5474093, at *10 (S.D.N.Y. Sept. 18, 2015) (citation omitted); accord, Inclan v. N.Y. Hosp. Grp., Inc., 95 F.Supp.3d 490, 507 (S.D.N.Y. 2015); see also 2010 N.Y. Laws ch. 564 § 7, amending N.Y. Lab. Law § 198(1-d). By amendment, effective February 27, 2015, the law changed to allow employees to recover statutory damages of $250 dollars “for each work day that the violations occurred or continue to occur,” not to exceed $5,000. 2014 N.Y. Laws ch. 537 § 2, amending N.Y. Lab. Law § 198(1-d); see also Zhang v. Red Mtn. Noodle House Inc., 2016 WL 4124304, at *6 (E.D.N.Y. July 5, 2016), report and recommendation adopted, 2016 WL 4099090 (E.D.N.Y. Aug. 2, 2016).
Plaintiff asserted that he never received wage statements with his pay. The applicable law provides for $250 dollars in damages for each work day, totaling no more than $5,000. See N.Y. Lab. Law § 198(1-d). Defendants failed to comply with § 195(3) throughout the period of Plaintiff's employment and for days beyond when the statutory cap was reached. Thus, Plaintiff is entitled to the $5,000 statutory maximum in damages.
Accordingly, I respectfully recommend that Plaintiff be awarded statutory damages in the total amount of $10,000.00.
V. Attorneys' Fees
The FLSA and NYLL both provide for an award of reasonable attorneys' fees to successful plaintiffs. See 29 U.S.C. § 216(b); NYLL §§ 198(1-a), 663(1). Plaintiff is represented by Lina Stillman of Stillman Legal PC. Stillman submitted an attorney declaration attaching a breakdown of attorneys' fees and costs incurred in the action. (ECF No. 56 & Exh. 4.) In it she states that her standard billing rate is $350 per hour. She is a 2012 graduate of Rutgers Law School and has practiced exclusively in the area of wage and hour litigation since. She also teaches a law class at Borough of Manhattan Community College. On or about August 11, 2022, she submitted a correction to the amount of fees sought and requested $5,897.50 in fees. (ECF No. 81.) This amounts to just under 17 hours of work on this matter based on the hourly rate of $350.
Attorneys' fee awards are typically determined using the lodestar approach, or “the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v. Metro-North R.R., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008)); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010). “The reasonable hourly rate is the rate a paying client would be willing to pay,” bearing in mind that “a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190. In assessing whether an attorney's hourly rate is reasonable, courts may rely on their own knowledge of a firm's hourly rates. See Gurung v. Malhotra, 851 F.Supp.2d 583, 596 (S.D.N.Y. 2012) (citing Miele v. N.Y.S. Teamsters Conference Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987)).
In assessing whether the number of hours billed by the attorney is reasonable, courts consider “whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (citation omitted). Plaintiff bears the burden to produce “contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.” Scott v. City of N.Y., 626 F.3d 130, 133-34 (2d Cir. 2010) (citation omitted); s ee also Fisher v. S.D. Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020).
District courts exercise “considerable discretion” in awarding attorneys' fees. Arbor Hill, 522 F.3d at 190; see also D.B. ex rel. S.B. v. N.Y.C. Dep't of Educ., 2019 WL 6831506, at *1 (S.D.N.Y. Apr. 22, 2019), report and recommendation adopted, 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); McDaniel v. County of Schenectady, 595 F.3d 411 (2d Cir. 2010). However, when awarding attorneys' fees, the court must also “clearly and concisely state reasons supporting the award.” Tackie v. Keff Enters. LLC, 2014 WL 4626229, at *6 (S.D.N.Y. Sept. 16, 2014) (first citing Hensley, 461 U.S. at 437; then citing Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014)) (awarding attorneys' fees under FLSA and NYLL).
Courts in this district have determined that a fee ranging from $250 to $450 is appropriate for experienced litigators in wage and hour cases. See, e.g., Xochimitl, 2016 WL 4704917, at *20 (finding a range of $250 to $450 per hour reasonable; collecting cases); Lopez v. Emerald Staffing, Inc., 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) (“In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour”); Trinidad v. Pret a Manger (USA) Ltd., 2014 WL 4670870, at *9 (S.D.N.Y. Sept. 19, 2014) (approving hourly rates for $300-$400 for partners in FLSA cases). Accordingly, the hourly rate of $350 is reasonable and consistent with rates awarded to lead counsel in wage and hour matters in this District.
When assessing whether the hours worked were reasonable, “[h]ours that are excessive, redundant, or otherwise unnecessary, are to be excluded . . . and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (internal citations and quotation marks omitted); see also Williams v. Metro-N. R.R. Co., 2018 WL 3370678, at *10-11 (S.D.N.Y. June 28, 2018), report and recommendation adopted, 2018 WL 3368713 (S.D.N.Y. July 10, 2018) (excluding from attorneys' fee award hours that the court found to be excessive). Courts also consider the nature of the legal matter, reason for the fee award, whether the case involved complex issues “requiring particular attorney skills and experience [,which] may command higher attorney rates,” and whether the case “require[ed] retention of a firm with the resources needed to prosecute a case effectively.” Williams, 2018 WL 3370678 at *3 (citing Arbor Hill, 522 F.3d at 185-87).
The attorney timesheets submitted to the Court indicate that a total of 16.85 hours were expended working on this case. Plaintiff's counsel's billing records, while contemporaneous, are not particularly detailed. Nevertheless, given the Court's own knowledge of the filings in this case and the time generally necessary to draft and file these types of pleadings, and given the Court's general knowledge of the time needed to file a wage and hour action and move for default, the hours expended are reasonable and not excessive. Thus, I recommend awarding attorney's fees in the amount of $5,897.50.
The FLSA and NYLL also entitle prevailing plaintiffs in wage-and-hour actions to recover costs. 29 U.S.C. §216(b); NYLL §663(1). However, Plaintiff did not request an award for any particular costs and accordingly no award for costs should be granted.
VI. Prejudgment Interest
Plaintiff also requests and is entitled to prejudgment interest under the NYLL. See N.Y. Lab. Law § 663; Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 48 (E.D.N.Y. 2015) (“In contrast to the FLSA, the NYLL permits an award of both liquidated damages and prejudgment interest.”). “Prejudgment interest is calculated on the unpaid wages due under the NYLL, not on the liquidated damages awarded under the state law.” Fermin, 93 F.Supp.3d at 49 (citation omitted). The statutory rate of interest is nine percent per annum. N.Y.C.P.L.R. § 5004. Where damages were incurred at various times, interest may be calculated from a single reasonable intermediate date. Id. § 5001(b). The midpoint of a plaintiff's employment is a reasonable intermediate date for purposes of calculating prejudgment interest. See Fermin, 93 F.Supp.3d at 49.
To calculate prejudgment interest, the court must multiply the total amount of Plaintiff's compensatory damages (for unpaid overtime wages and spread of hours wages) by an interest rate of 9 percent which will yield the amount of prejudgment interest per year. Plaintiff was employed during the statute of limitations period from December 1, 2015 through November 15, 2021. The approximate midpoint date between those two dates for calculating prejudgment interest is therefore November 23, 2018. Consequently, Plaintiff should receive prejudgment interest on a principal of $40,570.00 at an interest rate of nine percent per year as applied from November 23, 2018 to the date of entry of judgment. This amount will be calculated by the Clerk of the Court in the event this Recommendation is adopted.
VII. Post-Judgement Interest
28 U.S.C. § 1961 provides that an award of post-judgment interest is mandatory in any civil case where money damages are recovered. Duffy v. Oyster Bay Indus., Inc., 2011 WL 2259798, at *3 (E.D.N.Y. Mar. 29, 2011), report & recommendation adopted, 2011 WL 2259749 (E.D.N.Y. June 2, 2011); see generally Begum v. Ariba Disc., Inc., 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding post-judgment interest in a FLSA and NYLL wage-and-hour case). Therefore, I respectfully recommend that Plaintiff be awarded post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. See id.
CONCLUSION
For the reasons set forth above, I recommend that Plaintiff be awarded $40,570.00 in unpaid wages, $40,570.00 in liquidated damages, $10,000 in statutory damages, and $5,897.50 in attorneys' fees, plus prejudgment interest on the unpaid wages at a rate of nine percent per annum from the period of November 23, 2018 to the date of entry of judgment, and postjudgment interest to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961.
Plaintiff is directed to serve a copy of this Report and Recommendation on Defendants and file proof of service of the same on the docket by two weeks from the date of this Report and Recommendation.
NOTICE
Plaintiff shall have fourteen days, and Defendant shall have fourteen days, from 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) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
Plaintiff shall have fourteen days to serve and file any response. Defendant shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lorna G. Schofield at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Schofield. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).