Solis v. 3 East Bakery Corp.

Full title: HILDA L. SOLIS, Secretary of Labor, United States Department of Labor…

Court: United States District Court, S.D. New York

Date published: Nov 10, 2010

Civil Action No. 10 CV 1698 (PKC) (S.D.N.Y. Nov. 10, 2010)

Opinion

Civil Action No. 10 CV 1698 (PKC).

November 10, 2010

Eric Su, Esq., Foreht Associates, LLP, New York, New York, Attorney for the Defendants.

CONSENT JUDGMENT

P. CASTEL, District Judge

Plaintiff, the Secretary of Labor, has filed her Complaint and Defendants, 3 East Bakery Corp., Holly Kim, and Joon Kim (collectively, "the Defendants"), appeared by counsel, and agree to entry of this Judgment without contest. The Defendants acknowledge their responsibilities pursuant to this agreement, and acknowledge that they will be subject to sanctions in contempt of this Court if they fail to comply with the provisions of this Judgment. It is therefore upon motion of the attorneys for the Plaintiff and for good cause shown:

I. ORDERED that the Defendants, their officers, employees, agents, and all persons acting or claiming to act in the Defendants' behalf and interest be, and they hereby are, permanently enjoined and restrained from violating the provisions of sections 6, 7, 11(c), 15(a)(2) and 15(a)(5) of the Fair Labor Standards Act of 1938, as amended, ( 29 U.S.C. Section 201 et seq.), ("the Act" or "FLSA"), in any manner, specifically including:

(1) The Defendants shall not, contrary to Section 6 of the Act, pay to any of their employees wages at rates less than those which are now, or which in the future may become, applicable under Sections 6 and 15(a)(2) of the Act.

(2) The Defendants shall pay employees at time and one-half their regular hourly rates for all hours worked over 40 per week, and shall not, contrary to Section 7 of the Act, employ any of their employees in any workweek longer than the hours now, or which in the future become, applicable under Sections 7 and 15(a)(2) of the Act, unless the employee receives compensation in compliance with the Act.

(3) The Defendants shall make, keep, and preserve accurate and complete records of their employees and of the wages, hours, and other conditions and practices of employment maintained by them as prescribed by the Regulations issued pursuant to Sections 11(c) and 15(a)(5) of the Act and found at 29 CFR Part 516.

(4) The Defendants shall not discharge or take any retaliatory action against any employee because the employee engages in any of the following activities:

a. Discloses, or threatens to disclose, to a supervisor or to a public agency, any activity, policy or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of the Act, or a rule or regulation promulgated pursuant to the Act;

b. Provides information to, or testifies before, any public agency or entity conducting an investigation, hearing or inquiry into any alleged violation of the Act, or a rule or regulation promulgated pursuant to the Act, by the employer or another employer with whom there is a business relationship;

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of the Act, or a rule or regulation promulgated pursuant to the Act.

Nothing in this Consent Judgment shall affect Defendants' right to discipline their employees for legitimate, non-discriminatory and non-retaliatory reasons.

II. ORDERED that Defendants are enjoined and restrained from withholding the payment of minimum wage and overtime compensation, and liquidated damages due to their employees listed in Exhibit A in the total sum of $435,000.06 consisting of $217,500.03 in back wages and $217,500.03 in liquidated damages. Defendants are also enjoined and restrained from withholding $913.49 in post-judgment interest. The post-judgment interest shall be distributed on a pro-rata basis where applicable. Payment of these amounts shall be made as follows: $130,500.00 shall be paid by December 7, 2010; the remaining $305,413.55 shall be paid over 9 equal quarterly installments in accordance with the amounts and due dates set forth in Exhibit B to this Judgment. All payments shall be made by certified check. The certified checks shall be delivered to the United States Department of Labor — Wage and Hour Division, Northeast Region, The Curtis Center, Suite 850 West, 170 S. Independence Mall West, Philadelphia, PA 19106, payable to the order of "Wage and Hour Division-Labor". The WHISHARD No. "1524030" shall be written on the face of each certified check.

III. ORDERED that the Defendants shall send copies of the certified checks and cover letters simultaneously to Dinah Solivan, Assistant District Director, U. S. Department of Labor, Wage Hour Division, 10 Metrotech Center, 625 Fulton Street — 7th Floor, Brooklyn, New York 11201.

IV. ORDERED that in the event any one installment payment is not made by Defendants, or if any check or any other instrument given in payment of any part thereof is dishonored or uncollectible for any reason whatsoever, counsel for Plaintiff shall notify Defendants' attorney Eric Su, Foreht Associates, LLP, by letter or electronic mail, advising Defendants of their default under this Consent Judgment. In the event Defendants fail to cure any default within five (5) business days after Plaintiff has given notice as provided herein, all remaining installment payments on Exhibit B become due immediately.

V. ORDERED that the Defendants shall provide to Plaintiff the last known addresses, telephone numbers, and social security numbers of the employees named on Exhibit A to assist Plaintiff in delivering the proceeds of each check less any legal deductions to the employees as indicated on Exhibit A to this Judgment.

VI. ORDERED that any sums not distributed to the employees named on Exhibit A and or to their personal representatives because of inability to locate the proper persons or because of such persons' refusal to accept such sums, shall be deposited with the Clerk of this Court who shall forthwith deposit such money with the Treasurer of the United States pursuant to 28 U.S.C. § 2041 and § 2042.

VII. ORDERED that neither the Defendants nor anyone on their behalf shall directly or indirectly solicit or accept the return or refusal of any sums paid under this Judgment.

VIII. ORDERED that the Defendants will maintain a mechanical or electronic timekeeping system that accurately records employees' hours worked and breaks actually taken in their workplace. Defendants will compensate employees for all breaks that are not uninterrupted for at least 20 minutes. Further, the Defendants will provide training for all employees on the proper use of the time clocks in languages understandable to the employees and will pay employees for that training time in compliance with the Act.

IX. ORDERED that Defendants shall provide training to all existing employees on the requirements of the FLSA, their rights under the FLSA, including the payment of overtime, the retention of monies received as tips, and the rights of employees to engage in activities protected by the Act without fear of retaliation, and other wage and hour and record keeping requirements as outlined in this Consent Judgment, including Defendants' requirement to comply therewith. Defendants will provide interpreters where appropriate to ensure that the training is understood by their employees. This training to employees shall be completed within 60 days of the entry of Judgment. Defendants shall further provide training to new employees within 30 days of their employment. Defendants shall keep records of the attendance of all employees at the training sessions and provide them to Plaintiff upon request. Defendants' shall pay all employees for this training time in compliance with the Act. Further, Defendants shall post the "Employee Rights Under The Fair Labor Standards Act" document attached hereto as Exhibit C where employees may view it and shall distribute to all current and future employees individual copies of the document during the training sessions.

X. ORDERED that if Defendants fail to make the payments as set forth in Exhibit B, and fail to cure after due Notice as set forth in Paragraph IV above, then the Court shall appoint a Receiver. In the event a Receiver is appointed, it is:

A. ORDERED that Defendants shall produce to the Court appointed Receiver all books and records and any other information the Receiver requires to carry out the provisions of this Judgment. In addition, Defendants shall submit to a sworn accounting by an independent certified public accountant and/or the Receiver, and shall testify, if the accountant or Receiver so decides.

B. ORDERED that all the expenses of the accountant or Receiver shall be borne solely by the Defendants.

C. ORDERED that the Receiver shall serve until the payment of the monetary terms of this Judgment are satisfied.

D. ORDERED that the Receiver shall have full authority to: collect Defendants' assets and report her findings to the Court and the parties; to redeem and/or liquidate their assets and turn over the proceeds to the Plaintiff; if the asset is a debt that is due, collect it and turn over the proceeds to the Plaintiff; to analyze all indebtedness and where deemed appropriate seek restructuring; to analyze all transfers of their assets; to prevent waste or fraud; and to do all acts and take all measures necessary or proper for the efficient performance of the duties under this Judgment and Order.

XI. ORDERED that neither the commencement of this action nor the provisions of this Judgment shall in any way affect, determine, or prejudice any and all legal rights of any employees or former employees of the Defendants not listed in Exhibit A to this Judgment to file any action against the Defendants under Section 16(b) of the Act, or likewise for any current or former employee listed in Exhibit A to this Judgment to file any action against the Defendants under Section 16(b) of the Act for any violations alleged to have occurred after September 4, 2010.

XII. ORDERED that each party will bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.

DATED: 11-10, 2010

New York, New York

SO ORDERED:

The Defendants appeared by counsel, have waived any further answer and any defense to the Complaint, and hereby consent to the entry of this Judgment.

P. CASTEL, District Judge

STATE OF NEW YORK ) ss: COUNTY OF NEW YORK ) On the 4^th day of November 2010 before me personally appeared HOLLY KIM, known to me to be the individual described in and who executed the foregoing instrument and she duly acknowledged to me that she executed the same. STATE OF NEW YORK ) ss: COUNTY OF NEW YORK ) On the 4^th day of November 2010 before me personally appeared JOON KIM, known to me to be the individual described in and who executed the foregoing instrument and he duly acknowledged to me that he executed the same. STATE OF NEW YORK ) ss: COUNTY OF NEW YORK ) On the 4^th day of November, 2010 before me came HOLLY KIM, to me known, who, being by me duly sworn, did depose and say that she is an officer, owner, and authorized representative with authority to sign on behalf of 3 EAST BAKERY CORP., the corporation described in and which executed the foregoing instrument, and that she signed her name thereto by like order.

CONSENT JUDGMENT — EXHIBIT A

Employee Name Back Wages Liquidated Total Damages

Jose E. Ponce $4,455.31 $4,455.31 $8,910.61 Alejandro Baez $6,845.29 $6,845.29 $13,690.59 Ravi Narine $1,691.13 $1,691.13 $3,382.26 Rupert Samuels $6,686.77 $6,686.77 $13,373.53 Rajinder Singh $1,336.14 $1,336.14 $2,672.29 Salvador Garcia $203.27 $203.27 $406.54 Ramiro Sanchez $11,192.65 $11,192.65 $22,385.30 Gustavo Vargas $6,002.29 $6,002.29 $12,004.57 Leopoldo Alvarado $838.47 $838.47 $1,676.94 Domingo O Campo $1,527.33 $1,527.33 $3,054.66 Elfego Zurita $2,807.24 $2,807.24 $5,614.48 Victor Garces $6,764.74 $6,764.74 $13,529.47 Bonifacio Cabana $475.13 $475.13 $950.26 Ramiro Nosci $428.47 $428.47 $856.93 Henry Avila $3,323.02 $3,323.02 $6,646.03 Pablo Angel $29,134.19 $29,134.19 $58,268.38 Sixto Hernandez Rincon $45,711.50 $45,711.50 $91,423.00 Juan Orellana $9,825.58 $9,825.58 $19,651.15 Bruce Palomino $29,632.05 $29,632.05 $59,264.10 David Aponte $15,167.94 $15,167.94 $30,335.89 Carlos Ramirez $1,152.62 $1,152.62 $2,305.24 Jose Almonte $6,808.90 $6,808.90 $13,617.79 Rodrigo Mendoza $5,263.45 $5,263.45 $10,526.90 Rogelio Tehuitzil $9,115.55 $9,115.55 $18,231.11 Victor Gonzalez $4,927.27 $4,927.27 $9,854.53 Cecilio Fernandez $2,521.75 $2,521.75 $5,043.51 Pedro Noriega $3,661.98 $3,661.98 $7,323.96

CONSENT JUDGMENT — EXHIBIT B

Payment Due on or before Backwages/Liquidated Interest Total Payment Damages Total $435,000.06 $913.49 $435,913.55 Initial December 7, 2010 $130,500.00 $0.00 $130,500.00 Payment Installment April 7, 2011 $33,833.34 $20.69 $33,854.03 Payment 1 Installment July 7, 2011 $33,833.34 $44.77 $33,878.11 Payment 2 Installment October 7, 2011 $33,833.34 $62.06 $33,895.40 Payment 3 Installment January 7, 2012 $33,833.34 $77.50 $33,910.84 Payment 4 Installment April 7, 2012 $33,833.34 $248.98 $34,082.32 Payment 5 Installment July 7, 2012 $33,833.34 $29.90 $33,863.24 Payment 6 Installment October 7, 2012 $33,833.34 $112.87 $33,946.21 Payment 7 Installment January 7, 2013 $33,833.34 $211.85 $34,045.19 Payment 8 Installment April 7, 2013 $33,833.34 $104.87 $33,938.21 Payment 9 EMPLOYEE RIGHTS UNDER THE FAIR LABOR STANDARDS ACT THE UNITED STATES DEPARTMENT OF LABOR WAGE AND HOUR DIVISION FEDERAL MINIMUM WAGE $7.25 PER HOUR BEGINNING JULY 24, 2009 OVERTIME PAY CHILD LABOR 16 14 15 No more than 3 18 8 40 7 a.m. 7 p.m. 9 p.m. TIP CREDIT ENFORCEMENT ADDITIONAL INFORMATION At least 1½ times your regular rate of pay for all hours worked over 40 in a workweek. An employee must be at least years old to work in most non-farm jobs and at least 18 to work in non-farm jobs declared hazardous by the Secretary of Labor. Youths and years old may work outside school hours in various non-manufacturing, non-mining, non-hazardous jobs under the following conditions: • hours on a school day or hours in a school week; • hours on a non-school day or hours in a non-school week. Also, work may not begin before or end after , except from June 1 through Labor Day, when evening hours are extended to Different rules apply in agricultural employment. Employers of "tipped employees" must pay a cash wage of at least $2.13 per hour if they claim a tip credit against their minimum wage obligation. If an employee's tips combined with the employer's cash wage of at least $2.13 per hour do not equal the minimum hourly wage, the employer must make up the difference. Certain other conditions must also be met. The Department of Labor may recover back wages either administratively or through court action, for the employees that have been underpaid in violation of the law. Violations may result in civil or criminal action. Employers may be assessed civil money penalties of up to $1,100 for each willful or repeated violation of the minimum wage or overtime pay provisions of the law and up to $11,000 for each employee who is the subject of a violation of the Act's child labor provisions. In addition, a civil money penalty of up to $50,000 may be assessed for each child labor violation that causes the death or serious injury of any minor employee, and such assessments may be doubled, up to $100,000, when the violations are determined to be willful or repeated. The law also prohibits discriminating against or discharging workers who file a complaint or participate in any proceeding under the Act. • Certain occupations and establishments are exempt from the minimum wage and/or overtime pay provisions. • Special provisions apply to workers in American Samoa and the Commonwealth of the Northern Mariana Islands. • Some state laws provide greater employee protections; employers must comply with both. • The law requires employers to display this poster where employees can readily see it. • Employees under 20 years of age may be paid $4.25 per hour during their first 90 consecutive calendar days of employment with an employer. • Certain full-time students, student learners, apprentices, and workers with disabilities may be paid less than the minimum wage under special certificates Issued by the Department of Labor.