Opinion
FSTCV136020582S
03-11-2016
Marlene Rojas et al. v. Sandy Eunha Choe et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION AFTER TRIAL
TAGGART D. ADAMS, JUDGE TRIAL REFEREE.
I. Background
The plaintiffs, Marlene Rojas and Vilma Guevara, are former employees of a nail salon located at 1787 Post Road East in Westport, Connecticut which operated under the name Finger Nail. The salon was owned by a corporation known as Cosmoss Nail Corp. (Cosmoss) and subsequently, as of 2012, by a corporation named Blooming Nail & Spa, Inc. (Blooming Nail) both of which are defendants. The defendant Sandy Choe owned Cosmoss and operated the nail salon since about 2005. Choe's son, the defendant Eric Ha, is alleged to have an ownership interest in Blooming Nail and to have been involved in setting terms and conditions of employee compensation. Ha has denied any ownership or operating role in Finger Nail.
Rojas' and Guevara's primary language is Spanish. Choe's primary language is Korean, although she has some limited ability to speak English. She came to the United States when she was young and helped run a New York City garment business known as Risa Young with her late husband. Rojas worked at Finger Nail from 2005, prior to the time that business was purchased by Cosmoss. Rojas' primary responsibilities were cleaning the salon premises and giving massages to the patrons. Guevara was hired by Finger Nail in 2010 and performed the same work.
In their First Substitute Complaint, the plaintiffs allege that the defendants Cosmoss, Blooming Nail, Choe and Ha each violated Connecticut General Statutes § 31-72 by failing to pay the prevailing minimum wage and appropriate overtime wages and violated other provisions of the state wage statutes, and that each defendant wrongfully discharged each plaintiff for failing to provide a " kickback" in violation of Gen. Stat. § 31-73(b). The operative complaint also alleges a civil conspiracy by the defendants to effect the above results and seeks damages for lost wages, emotional distress and attorneys fees. The defendants generally admitted Cosmoss owned and operated the Finger Nail salon until September 2012, that Blooming Nail owned and operated the business thereafter, and denied the material allegations of wrongdoing in the complaint and asserted the special defenses of payment, accord and satisfaction, collateral estoppel, and that the claims are barred by the applicable statute of limitations. Evidence was taken in the trial of this action to this court over three days, September 24, 29 and 30, 2015. The parties filed post-trial memoranda in December 2015.
This case involves individuals and businesses attempting to survive in a difficult and somewhat hidden economy where only intermittent regard is paid to tax obligations and efforts are almost universally undertaken to reduce the amounts that are reportable as income. Wages are low; profits are likely to be marginal, and the lack of a common language severely hinders communications.
Although not directly related to the resolution of this case, it is pertinent that the Connecticut Department of Labor (DOL) investigated and audited the wage and hour practices of Finger Nail for the period November 2009 to November 2011 (Tr. III, 16) and found that a number of employees had not received statutorily required wages. The investigation resulted in an agreement between DOL and Choe for payments to be made by Finger Nail to DOL for wages that should have been paid to employees, including Rojas and Guevara. See Exhs. 26-31. During the investigation Choe reported to the DOL investigator that Rojas and Guevara worked between 40 and 48 hours per week. Tr. III, 19. DOL determined wages were owed by Finger Nail to Rojas of $7,769.18 and to Guevara of $4,115.37. Ex. 31. These amounts were collected by DOL in six monthly payments from Finger Nail, the last of which was due October 21, 2013. The plaintiffs received their checks from DOL in 2015. Exhs. 6, C. Following the settlement with DOL in 2012, Choe and Ha established a new corporation, Blooming Nail; Ex. 22, p. 55; and Finger Nail instituted new pay procedures, and introduced a time clock and more record keeping.
The references to " Tr." followed by a Roman numeral and an Arabic number are to the transcript of this trial. The Roman numeral identifies the transcript for the first, second or third day of the trial and the numbers following refer to a page or pages thereof.
Apparently the original DOL checks were returned by the plaintiffs for reasons unknown to the court, and were reissued by DOL.
II. Discussion
A. Wage and Overtime Claims . The plaintiffs Rojas and Guevara are seeking payment for allegedly unlawfully low wages paid to them by the corporations Cosmoss and Blooming Nail from December 2, 2011 to the date they claim their employment was terminated by Choe on October 29, 2013. During this period of time the minimum wage in Connecticut was $8.25 per hour and the minimum overtime wage was $12.37 per hour worked in excess of forty hours per week. Gen. Stat. § 31-76c. Rojas and Guevara each testified they arrived at the Westport nail salon location at around 9:20 a.m. having been picked up and driven there from New York City, along with other employees of Finger Nail in a large van owned by Choe. Tr. I, 5-6, 97-98. Monday through Saturday work hours would end about 6:25 p.m. and on Sunday would extend from about 9:45 a.m. to a little before 7:00 p.m. Id. See also Exhs. 9, 17. Both plaintiffs testified they generally worked five days a week. Id., 7, 100. Rojas testified she was paid $159.00 by check and $100.00 in cash on a weekly basis; Guevara said she received $175.00 by check and $100.00 in cash weekly. Id., 9, 102. Exhibit 13 shows that weekly Blooming Nail checks to Guevara from December 2012 to October 2013 were mostly in the amount of $175.00, but on occasion went as high as $230.00. See also Ex. 20. Exhibit 5 contains copies of three Blooming Nail weekly checks in October 2013 to Rojas in the amount of $159.67. None of the above checks reflect what, if any, deductions from gross pay were taken. Exhs. 5, 13. The two plaintiffs testified they usually worked close to 50 hours a week. Tr. I, 6-7, 14, 100-01. Both testified that on most days very little time was allowed for lunch. Id. 6-7, 101. The court found the testimony of the two plaintiffs to be generally credible and often corroborated by other evidence.
A non-party, Maribel Melo, started work in May 2012 at Finger Nail and testified all the cleaners, including the plaintiffs, worked five days a week. Tr. III, 61. She also testified she came to work in the Choe van, worked from 9:20 a.m. to about 7.00 p.m. and was paid in cash. Id. 60, 66.
Rojas and Guevara performed cleaning services and massages at the salon and received tips from patrons. Tr. I, 44, 129. Rojas testified she received about $100 per week in tips. Id., 88. Tips are not included in computing the minimum wage for these plaintiffs. Gen. Stat. § 31-60(b).
The evidence from the defendant on wages, primarily company records and Choe's testimony, was inconsistent. Choe testified that she was misled by her accountant as to the minimum wage laws in Connecticut and other matters. Tr. II, 51-52, 59. She said both plaintiffs were paid $280.00 per week; id., 62; and both worked four days per week. Id. 124. The defendants rely heavily on documents prepared by Choe following the investigation by DOL. Choe testified that subsequent to that investigation, sometime in September and October 2012, she destroyed the records of Finger Nail, closed down the corporation Cosmoss, and established a new corporation, Blooming Nail, to own Finger Nail. Tr. 11, 71-73. From that time Choe prepared documents that she required the plaintiffs to sign indicating Rojas and Guevara were being paid the legal minimum wage. These documents included signed employment agreements (with Spanish translation indicating hourly wages of $8.25 to be paid to Rojas and Guevara. Exhibits 7, 15. Interestingly, only the English language portions of these agreements were completed. There were handwritten lists of weekly hours worked by the plaintiffs from October 2012 to and including October 2013 which the plaintiffs signed off on; Exhibits 8, 16; and time clock records indicating the plaintiffs worked roughly from 9:30 a.m. to 6:45 p.m. or later, except on Sundays. Exhs. 9, 17. Importantly, these exhibits show that plaintiffs only worked four days a week and thus the weekly hours were almost always less than 40. The defendants contend this evidence compels a finding that the plaintiffs were receiving the minimum wage. Accepting these records as accurate could lead to the conclusion that the wages paid to the plaintiffs by Finger Nail were close to, or at, the minimum wage.
The court does not accept these exhibits and the information presented there as accurate for several reasons. First, there is Choe's own testimony that she did not change the number of hours worked by Rojas and Guevara after the Department of Labor investigation. Tr. II, 132. Second, both plaintiffs gave consistent and credible testimony that they worked the same number of hours per week after the DOL investigation was concluded. Tr. I, 6-7, 13-15, 100-01, 103. Third, the plaintiffs and Melo were consistent in their testimony that Choe was insistent on her cleaning workers signing the weekly reports showing they worked less than forty hours per week without explaining what the documents were, or their effect. Tr. I, 14-16, 111-13; Tr. III, 62. The court recognizes that this is very self-serving testimony and it seems likely that the plaintiffs must have had some idea what they were signing, but that does not necessarily mean the documents are accurate. Fourth, is the consistent and credible testimony of their co-worker Melo corroborating that plaintiffs worked at the salon five days a week. Tr. III, 61, 65-66. Fifth, is the plaintiffs' testimony that when a time-clock system was installed at Finger Nail, they were instructed not to punch in on the clock one day a week. Tr. I, 75-77, 113-14. Sixth is Choe's recorded statements at an October 29, 2013 meeting to the effect that the plaintiffs' then hourly rate was $5.50 per hour, and that Choe could not work with plaintiffs if they wanted to be paid $8.25 per hour. Ex. 10; Ex 11, 3-6.
Ex. 10 is a CD containing the recording of the meeting, made on Rojas' cell phone. Ex. 11 is a transcript of the recording. The admission of the recording and transcript into evidence is discussed infra .
The court now turns to the issue of overtime. Connecticut law requires employees to be compensated for work over 40 hours per week at " one and one-half [his or her] regular rate." Gen. Stat. § 31-76c. The testimony of the plaintiffs was consistent to the effect that they generally worked from about 9:30 a.m. after arriving in Choe's van to about 6:45 p.m. when they were driven back to New York City after Finger Nail closed. They estimated their weekly work hours at about 50 per week. Tr. I, 14, 101. In her testimony Choe confirmed the hours that Finger Nail was open 9:30 a.m. to 7:00 p.m. six days a week and 10:00 a.m. to 5:30 p.m. on Sunday. Tr. II, 52. Indeed, it was her fifteen-seat van that was delivering and picking up the plaintiffs and other employees, and on the days Choe worked in Westport, she rode in the front seat. Id., 53-54. The hours the plaintiffs worked were also confirmed by time clock reports submitted into evidence as Exhibits 9 (Rojas) and F (Guevara). As noted earlier these time clock cards only registered the plaintiffs working four days a week, evidence that the court has found to be misleading at best. The cards, however, do confirm that when the plaintiffs did clock in they were generally on the work premises for over nine hours a day. Exhibits 9, 17 and F cover the period October 2012 through October 2013. There is no other evidence on the issue of overtime except the plaintiffs' testimony noted above.
According the Choe, Finger Nail employed Hispanics for cleaning and massages and Koreans who were trained and licensed " nailists." Tr., II, 56.
The court finds, on the record discussed above, that the plaintiffs' Rojas and Guevara have proved by a preponderance of the evidence that they worked in excess of forty hours a week and were not paid the minimum wage and overtime wages mandated by Connecticut law.
B. Claims Under Section 31-73(b) . General Statutes § 31-73(b) prohibits an employer or supervisor from requesting or demanding a " refund" of wages in order to continue in employment. Such " refund" is defined in the statute as the return by an employee to his or her employer of any sum of money actually paid or owed to the employee for services performed. The plaintiffs contend that the defendants, through the actions of Choe, violated this statute during a meeting Choe had requested that included the plaintiffs and Rojas' husband, Fray Rojas, and took place in Flushing, New York on October 29, 2013. Tr. I, 17. Rojas was nervous about the meeting and recorded it on her cell phone. Id., 18-19. At the meeting, which took place approximately a week after Choe was required to make the last payment to DOL, Choe gave each of the plaintiffs a piece of paper with a number on it; Exhs. 4 and 14; and requested that the plaintiffs each pay her that amount. Tr. I, 24-28; 108-10. Choe was actually conversing in English with Fray Rojas who understood that language better than the plaintiffs. The amount of money requested by Choe from each plaintiff as reflected on the Exhibit 4 and 15 was exactly the amount DOL had charged Choe and Finger Nail to correct the wage violations with respect to Marlene Rojas and Guevara found in its investigation of Finger Nail; money that would eventually, but not yet, find its way to the plaintiffs. Choe lowered her demand from Marlene Rojas to $6,000. Both plaintiffs testified they understood that if they did not pay the requested amount they would be out of a job. Tr. I, 28-29, 108. Neither plaintiff knew what caused Choe to be asking for money, because they had not yet been notified by, or received any money from, DOL. Neither plaintiff had enough money to meet the Choe's demand.
As noted above, Exhibit 10 is a recording of the October 29, 2013 conversation, in English, between Choe and Fray Rojas. Fray Rojas authenticated that the recording was of his conversation with Choe. Tr. II, 20-21. While objecting to the admissibility of the recording, Choe did not disagree that the recording was of her conversation with Fray Rojas. Exhibit 11 is a typed transcript of the conversation and the accuracy of that transcript is not disputed. Tr. II, 22-24. The defendants have contended steadfastly--before, at, and after trial--that this evidence is hearsay. The court disagrees. The statements of Choe on the recording are not hearsay because she actually said the words. Even if someone else had repeated the words they would not be inadmissible hearsay since Choe is a party opponent. Connecticut Code of Evidence § 8-3(1).
The recording and transcript are not entirely clear, but the gist is that Choe has had to pay money to DOL to compensate for the below-minimum wages she paid to the plaintiffs and others prior to 2012, and she is demanding that the plaintiffs repay her. Mr. Rojas replies they do not have $6,000 to repay. Ex. 11, 7-11. In response Choe says she cannot work with the plaintiffs anymore. Id., 9-10. Based on the evidence in the record, the court concludes that Choe and Blooming Nail clearly violated General Statutes § 31-73(b). Although she was not successful in persuading the plaintiffs to return to her the money they would receive from DOL, Choe expressly demanded or requested such a return.
C. Wrongful Discharge . The plaintiffs contend that they were wrongfully discharged from employment at Finger Nail because they refused Choe's request or demand to pay back what Choe had to pay to DOL. In Lockwood v. Professional Wheelchair Transportation, Inc., 37 Conn.App. 85, 654 A.2d 1252, cert. denied, 233 Conn. 902, 657 A.2d 641 (1995), the Connecticut Appellate Court held:
The discharge of an employee for . . . refusing to refund a portion of his wages violates public policy as expressed in § 31-73.Id., 95.
The evidence relevant to the issue whether the plaintiffs' employment at Finger Nail was terminated as a result of the meeting on October 29, 2013 is mixed. Rojas and Guevara testified that Choe told them if Choe did not get the money demanded, there would be no work. Tr. I 28-29, 90, 108. However, Rojas conceded (id., 28) and it is apparent in the trial record, that Fray Rojas and Choe were having this conversation in English, and it is doubtful that either plaintiff understood much of what was said. For her part, Choe did not deny an accusatory question that she said if you want to work for me, you must pay me. Tr. II, 100. However, Choe also testified she did not fire the plaintiffs, but wanted them to stay. Tr. II, 125-26. In addition to the recollections of the parties, the court has the benefit of the recording of the meeting and the transcript prepared from it. That recording and transcript reflect that Choe said on two occasions:
You [Fray Rojas] will keep this money, I can't work with her any more.
You keep this amount, I can't work with her any more. You agree?Ex. 11 pp 9-10. Mr. Rojas said the plaintiffs will keep the money and if the plaintiff Rojas " can't work anymore, that's no problem." Id. 10-11. At that point Choe expresses hope the plaintiff will stay on temporarily until new people can be hired, but there is no agreement on that. Id. 11-12. Choe testified that she was upset when she was at the October 29, 2013 meeting (Tr. II, 101) and contends she really did not mean to fire the plaintiffs. However, the transcript indicates that Choe only wanted the plaintiffs to stay on for a few days while Finger Nail hired new employees. Ex. 11, 11-12. Based on the foregoing, the court determines that the plaintiffs' employment was terminated on October 29, 2013 in violation of Gen. Stat. § 31-73(b).
D. Special Defenses . The special defenses asserted by defendants have not been proven. The defenses of res judicata, collateral estoppel, payment, and accord and satisfaction are all founded on the DOL investigation of Finger Nail and payments made by Choe through DOL to the plaintiffs. It is undisputed that the payments from DOL constituted a remedy for the plaintiffs for illegal wages paid from 2009 through October or November 2011. Exhs. 26, 31. The DOL activities and decisions respecting that period of time cannot act as a res judicata, collateral estoppel or accord and satisfaction defense to this civil action that seek remedies for the period beginning in December 2011. Further, the plaintiffs were not parties to the DOL proceeding.
The same analysis pertains to the statute of limitations defense. The initial complaint in this case was served in late 2013, and the plaintiffs seek damages for actions taken by the defendants from, and after, December 3, 2011.
B. Damages . The calculations of damages is hindered by conflicting and even misleading evidence in the record as to wages paid to the plaintiffs. The Connecticut Supreme Court, quoting a United States Supreme Court decision in a Fair Labor Standards Act case, has explained the plaintiffs' burden of proof in Connecticut wage cases:
When the employer has kept proper and accurate records, the employee may easily discharge his burden by securing the production of those records. But where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes, a more difficult problem arises . . . In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 239-40, 828 A.2d 64 (2003), [quoting from Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)].
In this case there was evidence that Rojas was paid a weekly amount of $159.67 by check and $100 in cash and that Guevara was paid $175 by check and $100 in cash weekly. There was also testimony from Choe that each was paid $280 weekly. Tr., II, 61. The court does not rely on Finger Nail records showing that Rojas and Guevara worked less than 40 hours weekly for the reasons stated above, and the court's conclusion that these records were created to make it appear that Finger Nail was paying an $8.25 hourly wage and attempted to accomplish this by improperly recording that plaintiffs worked less than five days a week. That aside, Exhibits D and E, Finger Nail's own weekly payroll records, show that, although the hours were not recorded accurately, Rojas generally was paid $280 and Guevera $297 on a weekly basis, figures that are close to Choe's testimony.
A 9:30 a.m. to 6:45 p.m. work day with a quarter hour for lunch comes out to be nine-hour workday and a 45-hour work week. This evidence supports the conclusion that plaintiffs should have received at least the minimum wage for forty hours a week and time and a half for the remaining five hours. In their post-trial memorandum, and their testimony, plaintiffs contend they worked over 50 hours per week. They arrive at this figure by accepting Choe's statement that she paid the plaintiffs $5.50 per hour and dividing the weekly amount of $280 by that hourly rate and arriving at 50.9 hours worked per week. The court does not accept this calculation for two reasons. It does not comport with the employee arrival and departure times discussed above, and the court concludes that Choe did not pay by the hour, but by the week and calculations of time worked using a purported hourly wage are suspect.
Plaintiffs have claimed they did not get any time off for lunch. Tr. I, 7, 101. The evidence on this point is unclear. Choe did not dispute the plaintiffs' testimony, but the court concludes that plaintiffs did bring lunch and took at least some time to eat.
Rojas testified she did not work at Finger Nail for several months in late 2011 and early 2012 because of her pregnancy and the birth of her child in December 2011. Specifically, she testified she did not work for five months, November 2011 through March 2012. Tr. I, 46-47. Finger Nail time records confirm this absence. Ex. D. Rojas' post-trial memorandum contends that the pregnancy had been raised by Choe with DOL, and Choe should not benefit twice from one pregnancy. This is a misreading of the time line. During the period within the statute of limitations governing this case, the record shows Rojas did not work at Finger Nail until April 2012.
Plaintiffs claim damages from December 3, 2011 through October 29, 2013 when their employment was terminated. In the case of Guevara this is 99 weeks; in the case of Rojas, it is 82 weeks. Calculating the plaintiffs each worked 45 hours a week, the minimum wage for a week's work was $330 (regular) and $61.85 (overtime), a total of $391.85. Based on the evidence from Choe that the plaintiffs received $280 weekly, they are entitled to the following on their wage and overtime claims.
Marlene Rojas $111.85 x 86= $9,172
Vilma Guevara $111.85 x 99= $11,073Section 31-72 authorizes a court to impose double damages, costs and reasonable attorneys fees; however, such an assessment can be made only when a trial court finds that a defendant has acted with " bad faith, arbitrariness or unreasonableness." Sarrazin v. Coastal, Inc., 311 Conn. 581 615-16, 89 A.3d 841 (2014), Ravetto v. Tritan Thalassic Technologies, Inc., 285 Conn. 716, 724, 941 A.2d 309 (2008), both citing Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. at 269.
The court finds that the actions of the defendants Choe, Cosmoss and Blooming Nail fit the above description. While Choe claimed she was misled by an accountant as to the level of the Connecticut minimum wage, she conceded she knew what it was after DOL commenced its investigation. Tr. II, 69. Nevertheless, Choe continued to pay a lower wage and compounded this misfeasance, the court has found, by concocting business records to reflect that plaintiffs were purportedly receiving a higher hourly rate and earned no overtime. Double damages, costs and attorneys fees will be assessed.
The plaintiffs have asserted separate wage claims against Choe, Ha, Cosmoss and Blooming Nail & Spa. In Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 704 A.2d 222 (1997), the Connecticut Supreme Court held:
that an individual personally can be liable as an employer pursuant to § 31-72, notwithstanding the fact that a corporation is also an employer of the claimant, if the individual is the ultimate responsible authority to set the hours of employment and to pay wages and is the specific cause of the wage violation.Id., 463-64. See also Datto, Inc. v. Braband, 856 F.Supp.2d 354, 377-78 (D.Conn. 2012). In Butler the trial court found that the individual defendant Meyers controlled the work of the plaintiff, was solely responsible for all wage decisions, and " was specifically the cause for [the wage law violations]." Butler, supra, 243 Conn. 464.
The evidence is overwhelming that the individual defendant Choe controlled the working conditions, hours and wages of Finger Nail employees. It was her van that controlled the working hours of the plaintiffs. Choe was the " boss" who scheduled the work, controlled the wages, wrote the checks, and paid the cash. Tr. I, 7-10, 16, 73, 102. The conditions of employment remained the same after the DOL investigation. Choe told the plaintiffs when to punch the time clock and when not to sign in. Tr. I, 113. Choe, without any explanation of their nature, had the plaintiffs sign the documents which purported to show that each worked less than 40 hours per week. See Exhs. 7 and 16; Tr. I, 14, 112-13. These were the documents that were created to show that the plaintiffs were paid the minimum wage by incorrectly representing the weekly hours worked. Having once been fined and penalized by DOL, these documents represent Choe's efforts to continue the subterfuge that she was not breaking the law again. Choe admitted she knew what the minimum wage was by mid 2012. Tr. II, 69. The court finds that Choe's actions were the specific cause of the wage violations present in this case, and she must be held individually liable along with Cosmoss and Blooming Nail.
Similar evidence does not exist with respect to the other individual defendant, Eric Ha. Ha did not testify at trial, and while he may have had a hand in setting up of the successor corporation Blooming Nail; Ex. 23, p. 55; there is insufficient proof that he caused the wage violations at issue to permit holding him individually liable.
Wrongful Termination Damages . The plaintiffs seek damages for what the court has found to be their wrongful termination of employment on October 29, 2013. Specifically, they claim damages in the nature of " back pay" calculated at the minimum hourly wage and proper overtime rate assessed to the date of judgment in this case. In this connection, their counsel points out that Connecticut's minimum hourly wage increased to $8.70 on January 1, 2014, to $9.15 a year later, and to its present level of $9.60 on January 1, 2016.
In Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 662 A.2d 89 (1995), the Connecticut Supreme Court approved a calculation of back pay involving (1) an estimate of what the plaintiff would have earned if he had remained employed by the defendant and (2) a computation of what he " in fact had earned at other jobs" after his termination and an award based on subtracting (2) from (1). Id., 32-33. The Torosyan court also approved an award of future lost wages for breach of an implied contract of employment " as long as they are limited to a reasonable time and are supported by the evidence."
Rojas testified without contradiction, but somewhat incompletely, that she collected unemployment comparable after leaving Finger Nail; Tr. I, 29; Ex. 3; and subsequently has obtained comparable work at a nail spa in New York State and another in Connecticut at $250 for a 40-hour week. Tr. I, 31-32; 66-67. Guevara testified similarly that for two months after October 2013 she cleaned houses and earned about $50 weekly. Tr. I, 115. Subsequently, she too obtained comparable work at a nail spa on Long Island paying her $300 for a 40-hour week Id., 116. However, as a result of health issues she was unable to work between January 2014 and March 2015. Id., 116-17.
From 2009 to the end of 2013, the minimum hourly wage in New York State was $7.25. It was increased to $8.00 for 2014 and $8.75 for 2015. New York State Department of Labor Statistics.
With this background, the court calculates the back pay claims of the plaintiffs to March 11, 2016 based on 40 hours of minimum wage and 5 hours of overtime as follows:
Rojas
min.
Wkly.
wage
Year
Time
Wage
Total
$8.25
2013
8 wks
$392
$3,136
$8.70
2014
52 wks
$413
$21,476
$9.15
2015
52 wks
$435
$22,620
$9.60
2016
10 wks
$456
$4,560
$51,792
Rojas, according to the evidence received $364 workers' compensation and $250 weekly from at least January 1, 2014-114 weeks--for a total $28,864. Applying these deductions, her back pay damages are $22,928.
The court notes the possible anomaly in comparing wages in the same industry by using the minimum wage for work at Finger Nail and actual pay rates the plaintiffs received from a similar business that were below the minimum wage. The record indicates that no nail salon was paying minimum wages to employees like the plaintiffs. The rationale for the court's approach is twofold. First, the plaintiffs should not be penalized by, nor should the defendants benefit from, the illegal wage policies of other business entities. Second, the wage and pay statutes of Connecticut are remedial in nature and should be applied accordingly. Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 240.
Guevara
She would have earned the same wages as Rojas at Finger Nail, except for the fourteen months during which she had health problems (January 2014 through March 2015). Therefore, she would have earned $25,387 less through March 11, 2016 or $26,405. Guevara's back pay damages are $26,405 less $400 from house cleaning jobs in 2013 and 54 weeks of pay at $300 per week at her present job ($16,200) for a total of $9,805. In light of what appears to be the financially precarious business model of Finger Nail and the doubling of the amounts due for the wage and overtime violations and the assessment of attorneys fees, the court will award the relatively modest amount of $2,000 in " front pay" to each of the plaintiffs.
In their complaint the plaintiffs alleged a civil conspiracy by the defendants and claimed they suffered emotional distress. There was no apparent evidence to support these claims, and they were not briefed in the plaintiffs' thorough post-trial memorandum. The court will not make any award on these claims.
III. Conclusion
A. The court finds in favor of the plaintiffs on their wage and overtime claims set forth against Cosmoss in Count One, Blooming Nail in Count Two and Sandy Choe in Count Three and awards plaintiff Rojas $9,619 and plaintiff Guevara $11,073 which awards are doubled to $19,238 and $22,146 respectively plus costs and attorneys fees to be ascertained. This award is against the three defendants referenced jointly and severally. The record reflects that Cosmoss has been dissolved. Ex. 18.
B. The court finds in favor of the defendant Eric Ha on the claims set forth in Count Four.
C. The court finds in favor of the plaintiffs against Blooming Nail and Sandy Choe on the wrongful discharge claims set forth in Counts Five and Six and awards Rojas $24,928 and Guevara $11,805.
D. The court finds in favor of the defendant Ha on the claims set forth in Count Seven.
E. The court finds in favor of the defendants Choe and Ha on the claims set forth in Count Eight.
F. Plaintiffs are ordered to submit an application for reasonable attorneys fees. See Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004).