Opinion
22 Civ. 3342 (LGS)
2023-05-19
Jose RAMIREZ, et al., Plaintiffs, v. URION CONSTRUCTION LLC, et al., Defendants.
Avraham Y. Scher, Roman Mikhail Avshalumov, Helen F. Dalton & Associates, P.C., Kew Gardens, NY, James Patrick Peter O'Donnell, Kew Gardens, NY, for Plaintiffs.
Avraham Y. Scher, Roman Mikhail Avshalumov, Helen F. Dalton & Associates, P.C., Kew Gardens, NY, James Patrick Peter O'Donnell, Kew Gardens, NY, for Plaintiffs. ORDER LORNA G. SCHOFIELD, District Judge:
WHEREAS, on April 25, 2022, Plaintiffs filed their Complaint against Defendants alleging violation of the minimum wage and overtime provisions of the Fair Labor Standards Act and New York Minimum Wage Act, and the overtime, frequency of pay, notice and recordkeeping, and wage statement provisions of the New York Labor Law ("NYLL");
WHEREAS, by Order dated September 23, 2022, this matter was referred to Magistrate Judge Robert W. Lehrburger for Inquest After Default. Default Judgement was entered against Defendants by Order dated September 26, 2023;
WHEREAS, on April 28, 2023, Judge Lehrburger issued a Report and Recommendation (the "Report"), recommending that the Court award Plaintiffs damages totaling $601,524.40 on their first five causes of action, and dismiss Plaintiffs' two causes of action for violation of the NYLL notice and recordkeeping and wage statement provisions for lack of standing;
WHEREAS, as stated in Judge Lehrburger's Report, the deadline for any objections was fourteen days from service of the Report. Federal Rule of Civil Procedure 6(d) provides an additional three-day period when, as here, service is made by mail. Service was made on May 1, 2023. See Fed. R. Civ. P. 5(b)(2)(C) (providing that service by mail "is complete upon mailing");
WHEREAS, no timely objection was filed;
WHEREAS, in reviewing a Magistrate Judge's report and recommendation, a District Judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b) advisory committee's note to 1983 amendment; accord Anderson v. Comm'r of Soc. Sec., No. 20 Civ. 6462, 2022 WL 925070, at *1 (S.D.N.Y. Mar. 29, 2022);
WHEREAS, the Court finds no clear error on the face of the record. It is hereby
ORDERED that the Report is ADOPTED.
REPORT AND RECOMMENDATION TO HON. LORNA G. SCHOFIELD: INQUEST AFTER DEFAULT
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiffs Jose Ramirez ("Ramirez"), Alejandro Navarrete ("Navarrete"), Wilmer Caiza ("Caiza"), and Segundo Yanzapanta ("Yanzapanta") (together "Plaintiffs"), bring this action for violations of the Fair Labor Standards Act (the "FLSA") and the New York Labor Law (the "NYLL") against Defendants Urion Construction LLC ("Urion") and Heriberto Gonzalez Sirias ("Sirias") (together "Defendants"). The Hon. Lorna G. Schofield granted Plaintiffs' motion for default judgment and referred the matter to me for an inquest on damages. For the reasons set forth below, I recommend that the Court award Plaintiffs damages in a total amount of $601,524.40 on their first five causes of action, but dismiss Plaintiffs' two causes of action for violation of the NYLL wage notice and wage statement requirements due to lack of standing.
FACTS
The facts are drawn from the well-plead allegations of the Complaint ("Compl." Dkt. 1); the Affirmations of attorneys Avraham Y. Scher (Dkt. 22) ("Scher Aff.") and Roman Avshalumov (Dkt. 38) ("Avshalumov Aff."); the Declarations of Jose Ramirez (Dkt. 38-1) ("Ramirez Decl."), Alejandro Navarrete (Dkt. 38-2) ("Navarrete Decl."), Wilmer Caiza (Dkt. 38-3) ("Caiza Decl."), and Segunda Yanzapanta (Dkt. 38-4) ("Yanzapanta Decl."); and Plaintiffs' Proposed Findings Of Fact And Conclusions Of Law (Dkt. 39) ("FFCL"). A schedule of claimed damages is attached as Exhibit I to the Scher Decl. (Dkt. 22-9.) Citations appearing after multiple sentences support all preceding sentences for which there are no citations identified.
Plaintiffs are former employees of Urion, a construction company, incorporated and located in New York. (Compl. ¶ 11.) Sirias is Urion's sole owner. (Id. ¶ 12.) Sirias hired and terminated the employment of each of the Plaintiffs and determined their pay and work schedule. (Ramirez Decl. ¶¶ 10-11; Navarrete Decl. ¶¶ 10-11; Caiza Decl. ¶¶ 9-10; Yanzapanta Decl. ¶¶ 10-11.)
Ramirez was employed by Defendants as a construction worker from approximately April 2011 to January 2022. Throughout his employment, Ramirez worked daily shifts from 8:00 a.m. to 5:00 p.m. or later. From April 2016 through December 2017, Ramirez worked six days, about 54 hours, per week. From January 2018 until January 2022, Ramirez worked five days, about 45 hours, per week. Defendants paid Ramirez exclusively in cash every two weeks at a flat rate as follows: $1,680 during 2016 and 2017; $1,700 during 2018; $1,800 during 2019; $1,900 during 2020; and $2,000 during 2021 through the end of his employment in January 2022. (Ramirez Decl. ¶¶ 3-8.)
Navarrete was employed by Defendants as a construction worker from approximately March 2016 to January 2022. Like Ramirez, Navarrete worked daily shifts from about 8:00 a.m. to 5:00 p.m. or later. From March 2016 through December 2017, Navarrete worked six days, about 54 hours, per week. From January 2018 until January 2022, Navarrete worked five days, about 45 hours, per week. Defendants paid Navarrete exclusively in cash every two weeks at a flat rate as follows: $1,440 during 2016; $1,450 during 2017; $1,460 during 2018; $1,470 during 2019; $1,480 during 2020; and $1,490 during 2021 through the end of his employment in January 2022. (Navarrete Decl. ¶¶ 3-8.)
Navarrete's Declaration does not reference his pay for 2021. (See Navarrete Decl. ¶ 7.) That appears to be an unintentional omission as his 2021 pay rate is identified in other materials, including the Complaint (¶ 36), Scher Aff. (¶ 48) and FFCL (p. 5).
Caiza was employed by Defendants as a construction worker from approximately September 2021 until January 2022. He worked daily shifts from about 8:00 a.m. to 5:00 p.m. or later, for a total of about 45 hours per week. Defendants paid Caiza exclusively in cash, typically on a bi-weekly basis, at a flat rate of $140 per day. Caiza did not receive any pay for approximately nine days of work during his last two weeks in January 2022. (Caiza Decl. ¶¶ 3-7, 11; FFCL at 8-9.)
Yanzapanta was employed by Defendants as a construction worker from approximately March 2021 until January 2022. He worked daily shifts from about 8:00 a.m. to 5:00 p.m. or later, for a total of about 45 hours per week. Defendants paid Yanzapanta exclusively in cash, typically on a bi-weekly basis, at a flat rate of $185 per day during 2021, and $200 per day during 2022. Yanzapanta did not receive any pay for work during his last two weeks, totaling 7.5 days of unpaid work. (Yanzapanta Decl. ¶¶ 3-7, 12; FFCL at 9.)
None of the Plaintiffs received from Defendants any additional pay for overtime; nor did they receive any wage notices or statements. (Ramirez Decl. ¶¶ 8-9; Navarrete Decl. ¶¶ 8-9; Caiza Decl. ¶¶ 6, 8; Yanzapanta Decl. ¶¶ 8-9.)
PROCEDURAL HISTORY
Plaintiffs commenced this action on April 25, 2022. (Dkt. 1.) Although filed as a collective action, the only plaintiffs are Ramirez, Navarrete, Caiza, and Yanzapanta. Plaintiffs duly served Urion by delivering the summons and complaint to Urion's authorized agent through the New York State Secretary of State on May 5, 2022, and by delivering the same to its last known address on May 26, 2022. (See Dkts. 7-8.) Plaintiffs duly served the summons and complaint on Sirias as an individual by personal delivery to his last known residence and leaving the documents with his wife. (See Dkt. 9.) Neither Defendant filed an answer or other response to the Complaint. (Scher Aff. ¶¶ 9-10.) Sirias has repeatedly indicated that no one would appear in the action on behalf of either Defendant. (Dkt. 32 ¶¶ 6, 8.)
On August 2, 2022, Plaintiffs filed applications for certificates of default against the Defendants, which the Clerk of Court entered that same day. (Dkts. 16, 19.) Plaintiffs then moved by proposed order to show cause for default judgement on August 17, 2022. (Dkts. 21-23.) Judge Schofield issued the order to show cause on August 19, 2022, setting a telephone conference date for Defendants to appear and show cause why default judgment should not be entered against them. (Dkt. 24.) Defendants did not appear. On September 26, 2022, Judge Schofield entered an order of default judgment on behalf of the Plaintiffs and against the Defendants. (Dkt. 32.)
After the matter was referred to me for inquest (see Dkt. 29), I issued an order directing Plaintiffs to file certain materials to supplement what they already had submitted in support of their motion for default judgment. (Dkt. 34.) The order also provided Defendants an opportunity to file opposing papers. Plaintiffs filed their supplemental materials on December 14, 2022. (Dkts. 38-39.) Defendants did not file any response. Affidavits of service on Defendants of all relevant orders and filings by Plaintiffs are on file. (See Dkts. 14, 25, 28, 31, 33, 37, 40.)
JURISDICTION
The Court has federal subject matter jurisdiction by virtue of the FLSA claims. See 28 U.S.C. § 1331 (federal question jurisdiction). The Court has supplemental jurisdiction over the NYLL claims, which share the same common nucleus of operative facts as Plaintiffs' FLSA claims. See 28 U.S.C. § 1367 (supplemental jurisdiction).
LEGAL STANDARDS
When a defendant defaults, all well-pled facts alleged in the complaint, except those relating to the amount of damages, must be accepted as true. City Of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) ("It is an ancient common law axiom that a defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint" (internal quotations marks omitted)); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (trial court is required to "accept all of [the plaintiff's] factual allegations as true and draw all reasonable inferences in its favor.") "This principle applies regardless of whether default is entered as a discovery sanction or for failure to defend." Walpert v. Jaffrey, 127 F. Supp.3d 105, 129 (S.D.N.Y. 2015) (internal quotation marks omitted). The court may also rely on factual allegations pertaining to liability contained in affidavits and declarations submitted by the plaintiff. See, e.g., Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993); Fustok v. ContiCommodity Services, Inc., 873 F.2d 38, 40 (2d Cir. 1989). Nonetheless, the court "must still satisfy itself that the plaintiff has established a sound legal basis upon which liability may be imposed." Shld, LLC v. Hall, No. 15-CV-6225, 2017 WL 1428864, at *3 (S.D.N.Y. April 20, 2017) (internal quotations marks omitted); see Finkel, 577 F.3d at 84.
Once liability has been established, a plaintiff must provide admissible evidence establishing the amount of damages with reasonable certainty. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Division of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997); see also Lenard v. Design Studio, 889 F. Supp.2d 518, 527 (S.D.N.Y. 2012) (in an inquest following a default, "[a] plaintiff must . . . substantiate a claim with evidence to prove the extent of damages").
To assess whether the plaintiff has established a sufficient basis for damages, a court has the discretion, but is not required, to hold a hearing. See Fed. R. Civ. P. 55(b)(2); Fustok, 873 F.2d at 40. An inquest may be conducted on the papers, without an evidentiary hearing, where there is a sufficient basis on which to calculate damages. See Bricklayers and Allied Craftworkers Local 2, Albany, New York Pension Fund v. Moulton Masonry & Construction, LLC, 779 F.3d 182, 189 (2d Cir. 2015); Tamarin, 13 F.3d at 53-54; Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195, 2012 WL 1669341, at *2 (S.D.N.Y. May 14, 2012). There is sufficient basis to do so here; no party has requested a hearing; and the Court has determined that one is not needed because damages can be calculated with reasonable certainty based on the papers before the Court.
LIABILITY
Judge Schofield already has found Defendants liable for all causes of action stated in the Complaint. Those include failure to pay overtime pursuant to the FLSA and the NYLL (First and Second Causes of Action); unpaid wages pursuant to the FLSA and the NYLL (Third and Fourth Causes of Action); violation of the NYLL's frequency of pay requirements (Fifth Cause of Action); and violations of the NYLL's requirements for providing wage notices and statements (Sixth and Seventh Causes of Action). As stated by the Court, "[t]he Complaint sufficiently pleads these claims to establish liability as a matter of law. . . . The Complaint adequately alleges that Defendants willfully failed to pay Plaintiffs applicable minimum wages, willfully failed to pay Plaintiffs overtime compensation, willfully failed to pay Plaintiffs weekly and failed to provide Plaintiffs with written notice of their rate(s) of pay and/or dates of work covered by any payments received." (Dkt. 32 at 6-7.)
DAMAGES
As Defendants' liability has been established, the Court turns to evaluating damages. Plaintiffs seek to recover the following types of damages: (1) unpaid overtime wages; (2) unpaid regular wages for Caiza and Yanzapanta; (3) liquidated damages for willful conduct in connection with unpaid overtime and regular wages; (4) liquidated damages for paying on a bi-weekly instead of weekly basis; and (5) statutory penalties for violation of wage notice and statement requirements. Plaintiffs have established a basis for recovery for the first four categories of damages sought. Because they have not, however, established standing to sue for violation of the wage and notice statement rules, they cannot recover damages for those claims.
Plaintiffs' default motion papers do not request an award of either pre-judgment interest or attorney's fees, and Plaintiffs have offered no proposed calculations of either item, nor any information to support a determination of attorney's fees. Accordingly, the Court does not address them.
A. General Principles
The Court begins by addressing general principles concerning burden of proof, the applicable time period for damages, and assessment of damages where there are violations of both the FLSA and the NYLL.
1. Burden Of Proof
Where, as here, there are no employer time, wage, or other relevant employment records, an employee may establish their hours worked and pay received with "estimates based on [their] own recollection." Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011); see also Hosking v. New World Mortgage, Inc., 570 F. App'x 28, 32 (2d Cir. 2014) (noting "that the employee's burden in proving damages under the FLSA is minimal, particularly when the employer does not keep records"). The NYLL applies a similar framework to unpaid compensation claims, providing that "where an employer fails to 'keep adequate records or provide statements of wages to employees as required' by the statute, the employer 'shall bear the burden of proving that the complaining employee was paid wages, benefits and wage supplements.' " Gamero v. Koodo Sushi Corp., 272 F. Supp.3d 481, 498 (S.D.N.Y. 2017) (quoting Canelas v. World Pizza Inc., No. 14-CV-7748, 2017 WL 1233998, at *9 (S.D.N.Y. March 31, 2017) (quoting NYLL § 196-a(a))). Having reviewed each of the Plaintiffs' declarations attesting to their employment, the Court accepts Plaintiffs' reported hours and pay as sufficient to establish the predicate facts for their damages.
2. Relevant Time Period
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 if they are not. 29 U.S.C. § 255(a); NYLL § 663(3); see also Angamarca v. Pita Grill 7 Inc., No. 11-CV-7777, 2012 WL 3578781, at *4 (S.D.N.Y. Aug. 2, 2012), R & R adopted (S.D.N.Y. Dec. 14, 2012). The Complaint was filed on April 25, 2022. The Court already has found that Defendants acted willfully. (Dkt. 32 at 7.) Plaintiffs each allege their employment ended in January 2022. Accordingly, the period for which Plaintiffs may recover damages is from April 25, 2019 until January 2022 under the FLSA, and from April 25, 2016 until January 2022 under the NYLL.
In their damages schedule (Dkt. 22-9), Plaintiffs used a start date of April 1, 2016 for Ramirez and Navarrete. The Court has adjusted damages calculations so that the first day of accrual is April 25, 2016.
3. Statute Providing The Greatest Recovery
Although "plaintiffs may not recover under both the FLSA and the NYLL for the same injury, courts allow plaintiffs to recover under the statute that provides for the greatest relief." Ni v. Bat-Yam Food Services. Inc., No. 13-CV-7274, 2016 WL 369681, at *1 (S.D.N.Y. Jan. 27, 2016) (internal quotation marks omitted). The NYLL permits greater or equal recovery than the FLSA at all relevant times during Plaintiffs' applicable periods of employment with Defendants. Moreover, there are no damages at issue that Plaintiffs could recover only under the FLSA and not the NYLL, although there are claims under the NYLL for which there is no FLSA parallel (e.g., frequency of payments, wage notices and statements). Accordingly, the Court will apply the NYLL for all damages calculations. See Burns v. Scott, No. 20-CV-10518, 635 F.Supp.3d 258, 274 (Oct. 17, 2022) (adopting report and recommendation applying NYLL instead of FLSA because the NYLL "provides for equal or greater recovery" than FLSA); Gomez v. NYHS Design Inc., No. 20-CV-4174, 2022 WL 4284143, at *3 (S.D.N.Y. Sept. 16, 2022) ("Because the NYLL provides for the greater recovery in [this] case, we address only the provisions of the NYLL"), R & R adopted, 2022 WL 6175174 (S.D.N.Y. Oct. 6, 2022).
B. Overtime Pay
New York requires employers to pay employees "a wage rate of 1 ½ times the employee's regular rate for hours worked in excess of 40 hours in one workweek." 12 NYCRR § 146-1.4; see also Nakahata v. New York-Presbyterian Healthcare System, Inc., 723 F.3d 192, 200 (2d Cir. 2013) (citing 12 NYCRR § 142-2.2). Both the NYLL and FLSA carry a rebuttable presumption that a weekly salary covers only the first forty hours worked unless the parties have an alternate agreement. See, e.g., Perez v. Platinum 400 Cleaners, Inc., No. 12-CV-9353, 2015 WL 1881080, at *2 (S.D.N.Y. April 24, 2015) ("Defendants have not overcome the presumption that a flat weekly salary is intended to compensate employees for forty hours of work per week"); Amaya v. Superior Tile & Granite Corp., No. 10-CV-4525, 2012 WL 130425, at *9 (S.D.N.Y. Jan. 17, 2012) ("An agreement for a fixed weekly salary for more than 40 hours of work per week only complies with the FLSA and Labor Law if there is an explicit understanding between the employer and employee as to regular and overtime rates"); Giles v. City of New York, 41 F. Supp.2d 308, 317 (S.D.N.Y. 1999) ("Unless the contracting parties intend and understand the weekly salary to include overtime hours at the premium rate, courts do not deem weekly salaries to include the overtime premium for workers regularly logging overtime, but instead hold that weekly salary covers only the first 40 hours").
Here, there is no evidence of such an agreement, and each Plaintiff attests that they were not paid for overtime hours. Both Ramirez and Navarrete were paid a fixed amount on a bi-weekly basis throughout their employment with Defendants. Caiza and Yanzapanta also were paid bi-weekly, based on a per diem rate of pay. Accordingly, each Plaintiff's pay, received bi-weekly, is presumed to cover only the first 40 hours of each work week. With that understanding, the following tables sets forth the regular rate of pay and calculation of unpaid overtime for each Plaintiff for each relevant period:
Ramirez Overtime
| Begin | End | Weeks worked | Bi-weekly pay | Regular rate of pay | Time and a half pay | OT Hours per week | Total OT owed |
| 4/25/16 | 12/31/17 | 88 | $1,680 | $21.00 | $31.50 | 14 | $38,808.00 |
| 1/1/18 | 12/31/18 | 52 | $1,700 | $21.25 | $31.88 | 5 | $8,287.50 |
| 1/1/19 | 12/31/19 | 52 | $1,800 | $22.50 | $33.75 | 5 | $8,775.00 |
| 1/1/20 | 12/31/20 | 52.14 | $1,900 | $23.75 | $35.63 | 5 | $9,287.95 |
| 1/1/21 | 1/31/22 | 56.43 | $2,000 | $25.00 | $37.50 | 5 | $10,580.36 |
| TOTAL | $75,738.81 |
Navarrete Overtime
| Begin | End | Weeks worked | Bi-weekly pay | Regular rate of pay | Time and a half pay | OT Hours per week | Total OT owed |
| 4/25/16 | 12/31/16 | 35.64 | $1,440 | $18.00 | $27.00 | 14 | $13,471.92 |
| 1/1/17 | 12/31/17 | 52 | $1,450 | $18.13 | $27.19 | 5 | $7,068.75 |
| 1/1/18 | 12/31/18 | 52 | $1,460 | $18.25 | $27.38 | 5 | $7,117.50 |
| 1/1/19 | 12/31/19 | 52 | $1,470 | $18.38 | $27.56 | 5 | $7,166.25 |
| 1/1/20 | 12/31/20 | 52.14 | $1,480 | $18.50 | $27.75 | 5 | $7,234.82 |
| 1/1/21 | 1/31/22 | 56.43 | $1,490 | $18.63 | $27.94 | 5 | $7,882.37 |
| TOTAL | $49,941.61 |
Caiza Overtime
| Begin | End | Weeks worked | Daily pay | Regular rate of pay | Time and a half pay | OT Hours per week | Total OT owed |
| 9/1/21 | 1/31/22 | 21.71 | $140 | $17.50 | $26.25 | 5 | $2,850.00 |
| TOTAL | $2,850.00 |
Yanzapanta Overtime
| Begin | End | Weeks worked | Daily pay | Regular rate of pay | Time and a half pay | OT Hours per week | Total OT owed |
| 3/1/21 | 12/31/21 | 43.57 | $185 | $23.13 | $34.69 | 5 | $7,556.92 |
| 1/1/22 | 1/31/22 | 4.29 | $200 | $25.00 | $37.50 | 5 | $803.57 |
| TOTAL | $8,360.49 |
In sum, each Plaintiff is entitled to unpaid overtime wages as follows:
Unpaid Overtime Wages
| Ramirez | $75,738.81 |
|---|---|
| Navarrete | $49,941.61 |
| Caiza | $2,850.00 |
| Yanzapanta | $8,360.49 |
C. Unpaid Regular Wages
The FLSA and the NYLL each require an employer to pay not less than a statutorily-set minimum wage for each hour of work. See 29 U.S.C. § 206(a)(1); NYLL § 652(1); 12 NYCRR § 146-1.2(b) Caiza and Yanzapanta are entitled to receive their pay for the period they received no wages at all. Both claim not to have been paid for a number of days in January 2022. Each of their rates of regular rate of pay during 2022 - $17.50 for Caiza and $25.00 for Yanzapanta - exceeded New York's minimum wage of $15.00. See 12 NYCRR § 142-2.1(a). Accordingly, using the regular rates of pay, Caiza and Yanzapanta are due unpaid regular wages as follows. Caiza: 9 hours per day × 9 days × $17.50 per hour = $1,417.50. Yanzapanta: 9 hours per day × 7.5 days hours × $25.00 per hour = $1,687.50.
Unpaid Regular Wages
| Caiza | $1,417.50 |
|---|---|
| Yanzapanta | $1,687.50 |
D. Liquidated Damages For Unpaid Wages And Overtime
Both the FLSA and the NYLL provide for liquidated damages. Under the FLSA, any employer who violates the minimum wage and overtime provisions of the FLSA is presumptively liable to the affected employees for, in addition to back pay, 100% of the unpaid wages as liquidated damages. 29 U.S.C. § 216(b) ("Any employer who violates the provisions . . . of this title [relating to minimum wages and overtime compensation] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation . . . and in an additional equal amount as liquidated damages."). Liquidated damages are awarded unless the employer demonstrates that they acted in good faith, in which case the decision to impose liquidated damages is discretionary. 29 U.S.C. § 260.
The NYLL rules are similar. See Garcia v. Giorgio's Brick Oven & Wine Bar, No. 11-CV-4689, 2012 WL 3339220, at *4 (S.D.N.Y. Aug. 15, 2012) ("Effective April 9, 2011, Sections 198(1-a) and 663(1) of the NYLL were amended to provide for liquidated damages equal to one-hundred percent of the amounts underpaid."), R. & R. adopted, 2012 WL 3893537 (S.D.N.Y. Sept. 7, 2012). As with compensatory damages, a plaintiff may recover liquidated damages for unpaid wages under either the FLSA or the NYLL, whichever provides for a greater recovery. Morales v. Mw Bronx, Inc., No. 15-CV-6296, 2016 WL 4084159, at *10 (S.D.N.Y. Aug. 1, 2016). However, a plaintiff is not entitled to double recovery of liquidated damages. Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018) (per curiam) ("We therefore interpret the NYLL and FLSA as not allowing duplicative liquidated damages for the same course of conduct.").
Imposition of liquidated damages in this case is mandatory. There is no proof before the Court that Defendants acted in good faith. To the contrary, the Court already has determined that Defendants acted willfully. Accordingly, Plaintiffs are each entitled to recover liquidated damages equal to 100% of the amount owed to them in unpaid wages. Ramirez's total unpaid wages are $75,738.81; Navarrete's total unpaid wages are $49,941.61; Caiza's total unpaid wages are $4,267.50, and Yanzapanta's total unpaid wages are $10,047.99. Each Plaintiff thus is entitled to liquidated damages for failure to pay wages in the following amounts:
Liquidated Wages For Unpaid Wages
| Ramirez | $75,738.81 |
|---|---|
| Navarrete | $49,941.61 |
| Caiza | $4,267.50 |
| Yanzapanta | $10,047.99 |
E. Liquidated Damages For Bi-weekly Instead of Weekly Payment
Plaintiffs each were paid on a bi-weekly basis, which they contend violates the NYLL requiring payment to manual workers on a weekly basis and entitles them to additional liquidated damages.
The NYLL provides that a manual worker is required to be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned. NYLL § 191(1)(a)(i). A manual worker is defined as "a mechanic, workingman or laborer." Id. § 190(4). Each Plaintiff is covered by this provision as each labored as a construction worker, performing tasks such as waterproofing, painting, corking, and other manual and physical work. (Ramirez Decl. ¶ 3; Navarrete Decl. ¶ 3; Caiza Decl. ¶ 3; Yanzapanta Decl. ¶ 3.)
Courts have found that § 191, together with the remedial provisions of NYLL § 198, provide manual workers with a private right of action. E.g., Balderramo v. Go New York Tours Inc., No. 15-CV-2326, 668 F.Supp.3d 207, 224-27 (S.D.N.Y. March 31, 2023); Mabe v. Wal-Mart Associates, No. 20-CV-0591, 2022 WL 874311, at *1-8 (N.D.N.Y. March 24, 2022); Vega v. CM & Associates Construction Management, LLC, 175 A.D.3d 1144, 1146, 107 N.Y.S.3d 286, 288 (1st Dep't 2019). A majority of courts in this Circuit also have held that workers paid on an untimely basis necessarily incur a concrete harm due to the time value of money and thus have standing to claim damages under the same provisions. E.g., Levy v. Endeavor Air Inc., No. 21-CV-4387, 638 F.Supp.3d 324, 328-29 (E.D.N.Y. Nov. 1, 2022); Beh v. Community Care Companions Inc., No. 19-CV-01417, 2022 WL 5039391, at *7-9 (W.D.N.Y. Sept. 29, 2022); Gillett v. Zara USA, Inc., No. 20-CV-3734, 2022 WL 3285275, at *5-7 (S.D.N.Y. Aug. 10, 2022); Caul v. Petco Animal Supplies, Inc., No. 20-CV-3534, 2021 WL 4407856, at *2-4 (E.D.N.Y. Sept. 27, 2021); but see Rosario v. Icon Burger Acquisition LLC, No. 21-CV-4313, 2022 WL 198503, at *3 (E.D.N.Y. Jan. 21, 2022) (requiring allegations that plaintiff incurred injury from untimely payment such as lost opportunity to invest or to otherwise use the money); Rath v. Jo-Ann Stores, LLC, No. 21-CV-791, 2022 WL 3701163, at *8 (W.D.N.Y. Aug. 26, 2022) (same).
Plaintiffs have not calculated their actual damages from being paid on a biweekly rather than weekly basis. Instead, they seek an additional award of liquidated damages, which they calculate to be a sum of their regular rate of pay for every hour worked every other week - effectively, 100% of all wages that were not paid on time. Although draconian, support for such damages is found in the liquidated damages provision of NYLL § 198(1-a), which allows an employee to recover "an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due." Indeed, both state and federal courts have determined that "wages found to be due" encompasses untimely payment of wages, as well as nonpayment or partial payment of wages. As one court recently explained in awarding liquidated damages for bi-weekly payments, "Plaintiffs are entitled to recover liquidated damages equal to the total amount of all wages that were not paid in accordance with the law, including liquidated damages both for overtime wages that were not paid at all and for wages that were paid late." Bemejo v. Shaker Contractors., Corp., No. 22-CV-1427, 2022 WL 17251667, at *5 (S.D.N.Y. Nov. 28, 2022); see also Carrera v. DT Hospitality Group, No. 19-CV-4235, 2021 WL 6298656, at *11 (S.D.N.Y. Nov. 1, 2021) (awarding and calculating liquidated damages on default judgment for bi-weekly payments in violation of NYLL § 191), R & R adopted, 2021 WL 6298654 (S.D.N.Y. Dec. 7, 2021).
Based on the foregoing, the liquidated damages due to each of the Plaintiffs for untimely payment is as follows:
Ramirez Liquidated Damages For Late Payment
| Begin | End | No. of Late Payments (Every other week) | Regular rate of pay | Hours per week | Total OT owed |
| 4/25/16 | 12/31/17 | 44 | $21.00 | 54 | $49,696.00 |
| 1/1/18 | 12/31/18 | 26 | $21.25 | 45 | $24,662.50 |
| 1/1/19 | 12/31/19 | 26 | $22.50 | 45 | $26,325.00 |
| 1/1/20 | 12/31/20 | 26.07 | $23.75 | 45 | $27,863.84 |
| 1/1/21 | 1/31/22 | 28.21 | $25.00 | 45 | $31,741.07 |
| TOTAL | $160,688.41 |
Navarrete Liquidated Damages For Late Payment
| Begin | End | No. of Late Payments (Every other week) | Regular rate of pay | Hours per week | Total OT owed |
| 4/25/16 | 12/31/16 | 17.82 | $18.00 | 54 | $17,321.04 |
| 1/1/17 | 12/31/17 | 26 | $18.13 | 45 | $21,212.10 |
| 1/1/18 | 12/31/18 | 26 | $18.25 | 45 | $21,352.50 |
| 1/1/19 | 12/31/19 | 26 | $18.38 | 45 | $21,504.60 |
| 1/1/20 | 12/31/20 | 26.07 | $18.50 | 45 | $21,704.46 |
| 1/1/21 | 1/31/22 | 28.21 | $18.63 | 45 | $24,923.09 |
| TOTAL | $128,017.79 |
Caiza Liquidated Damages For Late Payment
| Begin | End | No. of Late Payments (Every other week) | Regular rate of pay | Hours per week | Total OT owed |
| 9/1/21 | 1/31/22 | 10.86 | $17.50 | 45 | $8,550.00 |
| TOTAL | $8,550.00 |
Yanzapanta Liquidated Damages For Late Payment
| Begin | End | No of Late Payments (Every other week) | Regular rate of pay | Hours per week | Total OT owed |
| 3/1/21 | 12/31/21 | 21.79 | $23.13 | 45 | $22,675.66 |
| 1/1/22 | 1/31/22 | 2.14 | $25.00 | 45 | $2,410.71 |
| TOTAL | $25,086.38 |
In sum, each Plaintiff is entitled to liquidated damages for late payments in the following amounts:
Liquidated Wages For Late Wages
| Ramirez | $160,688.41 |
|---|---|
| Navarrete | $128,017.79 |
| Caiza | $8,550.00 |
| Yanzapanta | $25,086.38 |
The liquidated damages calculated for late payment are sizeable and seemingly disproportionate to the harm. But if there is a problem to be fixed, it is for the legislature to do so, not the Court, particularly where the Defendants have elected not to appear and to instead default. See. Day v. Tractor Supply Co., No. 22-CV-489, 2022 WL 19078129, at *7 (W.D.N.Y. Dec. 1, 2022); ("[Defendant] argues that if liquidated damages, rather than civil penalties, for late wage payments are allowed, the result would be large damages assessments that would 'crush both large and small employers.' This Court recognizes [Defendant]'s concern but nonetheless concludes . . . that liquidated damages are the appropriate remedy for violations of § 191").
F. Statutory Damages For Wage Notices And Wage Statements
In their Sixth and Seventh Causes of Action, Plaintiffs seek damages for Defendants' violation of New York requirements that employers provide employees with a wage notice at the outset of their employment and regular wage statements with each payment made. The NYLL requires employers to provide employees, at the time of hiring, with a wage notice containing basic information such as their rate of pay. NYLL § 195(1)(a). The penalty for an employer's failure to provide the requisite wage notice within ten business days of the first day of employment is $50 for each workday that a violation occurs or continues to occur, not to exceed a total of $5,000. NYLL § 198(1-b). The NYLL also requires employers to provide employees with a wage statement with each payment of wages. NYLL § 195(3). An employee can recover $250 for each workday that a wage statement violation occurs or continues to occur, not to exceed a total of $5,000. NYLL § 198(1-d).
This Court cannot, however, award Plaintiffs damages for Defendants' violations of these provisions because Plaintiffs do not have standing under Article III of the U.S. Constitution. While there are many decisions previously awarding plaintiffs for violations of the wage and notice requirements without examining standing, or in some cases even finding Article III standing, see Imbarrato v. Banta Management Services, Inc., No. 18-CV-5422, 2020 WL 1330744 (S.D.N.Y. March 20, 2020), they all precede the Supreme Court's recent decisional law regarding Article III standing. See TransUnion LLC v. Ramirez, 594 U.S. 413, 141 S. Ct. 2190, 2205, 210 L.Ed.2d 568 (2021).
Courts throughout the Second Circuit have since found no standing in cases, such as the instant case, where Plaintiffs have not established any injury traceable to violation of the wage notice and statement requirements. See, e.g., Neor v. Acacia Network, Inc., No. 22-CV-4814, 2023 WL 1797267, at *4 (S.D.N.Y. Feb. 7, 2023) (dismissing wage notice and statement claim due to failure to plead facts demonstrating employees' standing); Beh, 2022 WL 5039391, at *7-8 (finding that "[w]hile the deficiencies in defendants' provisions of hiring notices may amount to violations of the labor law, neither plaintiffs nor the record demonstrates how those technical violations led to either a tangible injury or something akin to a traditional cause of action, as required by the Supreme Court"); Sevilla v. House of Salads One LLC, 20-CV-6072, 2022 WL 954740, at *7 (E.D.N.Y. March 30, 2022) (finding that "[w]hile Defendants did not provide proper wage notice and statements to Plaintiffs, Plaintiffs lack standing to maintain these claims").
"The requirements of Article III standing are well established: '[A] plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.' " Lacewell v. Office of Comptroller of Currency, 999 F.3d 130, 141 (2d Cir. 2021) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016)). These requirements are "an indispensable part of [a] plaintiff's case" and must be established "with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). "At the default judgment stage, as at the motion to dismiss stage, the plaintiff 'bears the burden of alleging facts that affirmatively and plausibly suggest that the plaintiff has standing to sue.' " Hennesssy by and through Hennessy v. Poetica Coffee Inc., No. 21-CV-5063, 2022 WL 4095557, at *2 (E.D.N.Y. Sept. 7, 2022) (quoting Calcano v. Swarovski North America Ltd., 36 F.4th 68, 75 (2d Cir. 2022)).
Moreover, "a plaintiff must demonstrate standing for each claim he seeks to press." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S. Ct. 1854, 1867, 164 L.Ed.2d 589 (2006). This principle applies to state law claims under supplemental jurisdiction no less than federal claims. The court thus cannot "exercise supplemental jurisdiction over a [state law] claim that does not itself satisfy [the] elements of the Article III inquiry." Id. at 351-52, 126 S. Ct. at 1867; see Sharehold Representative Services LLC v. Sandoz Inc., No. 12-CV-6154, 2013 WL 4015901, at *7 (S.D.N.Y. Aug. 7, 2013) ("The fact that the claims arise from a common set of facts does not relieve the plaintiff of its obligation to demonstrate constitutional standing to sue for each one.")
The Supreme Court has "rejected the proposition that 'a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.' " TransUnion, 594 U.S. 413, 141 S. Ct. at 2205 (2021) (quoting Spokeo, 578 U.S.at 341, 136 S. Ct. at 1549). "Only those plaintiffs who have been concretely harmed by a defendant's statutory violation may sue that private defendant over that violation in federal court." Id. (emphasis in original). Without a concrete injury fairly traceable to the alleged statutory violation, the plaintiff lacks Article III standing, and, in turn, the district court cannot enter a default judgment with respect to the corresponding statutory cause of action. See, e.g., Sevilla, 2022 WL 954740, at *7.
Here, none of the Plaintiffs have established an injury traceable to Defendants' violation of the NYLL wage notice and statement requirements. Instead, Plaintiffs merely allege that Defendants "failed to provide" them with required wage notices or wage statements and that, "[a]s a result of these violations," Plaintiffs "seek" damages, and "Defendants are liable" to Plaintiffs. (Compl., ¶¶ 57-59, 96-97, 99-100.) Plaintiffs' declarations do no more. Plaintiffs thus have failed to plead "facts that affirmatively and plausibly suggest that [they have] standing" with respect to their wage notice and statement claims. Calcano, 36 F.4th at 75. Accordingly, this Court has no jurisdiction over those claims and may not award Plaintiffs statutory damages for Defendants' violation of them.
CONCLUSION
For the foregoing reasons, I recommend awarding damages to Plaintiffs in a total amount of $601,524.40 as summarized in the following table:
| Ramirez | Navarrete | Caiza | Yanzapanta | |
|---|---|---|---|---|
| Regular Wages | $0.00 | $0.00 | $1,417.50 | $1,687.50 |
| Overtime Wages | $75,738.81 | $49,941.61 | $2,850.00 | $8,360.49 |
| Liquidated Damages for Unpaid Wages | $75,738.81 | $49,941.61 | $4,267.50 | $10,047.99 |
| Liquidated Damages for Late Payments | $160,688.41 | $128,017.79 | $8,550.00 | $25,086.38 |
| Statutory Damages | $0.00 | $0.00 | $0.00 | $0.00 |
| GRAND TOTAL | $312,166.03 | $227,901.01 | $16,650.00 | $44,807.36 |
SERVICE
Plaintiffs shall serve a copy of this Report and Recommendation on Defendants within two days of entry and shall file proof of service of same within two days following service.
DEADLINE FOR OBJECTIONS AND APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report And Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Lorna G. Schofield, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.