EDGARDO RAMOS, District Judge.
Plaintiff Roberto Herrera ("Plaintiff" or "Herrera") brought this action for violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), New York Labor Law §§ 190 et seq. and 650 et seq. ("NYLL"), and orders of the New York Commissioner of Labor codified at N.Y. Comp. Codes R. & Regs. Tit. 12, § 142-2.4(a) (2009). See Compl. (Doc. 1). The Defendants are Gloria Genao ("Genao"), Roberto Vasquez ("Vasquez"), Star Parking Garage, Inc., and Star Parking 2 ("Star Parking"). A bench trial was conducted by this Court on February 26, 2018. This Opinion constitutes the Court's findings of fact and conclusions of law on whether Defendants willfully violated labor laws and the proper measure of damages, if any.
On June 9, 2016, Plaintiff brought this action for unpaid minimum wages and overtime pursuant to the FLSA and NYLL and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor. See Compl. (Doc. 1); Joint Pre-Trial Order ("JPTO") (Doc. 16), at 2. Plaintiff also seeks liquidated damages, interest, attorneys' fees, and costs. JPTO at 7.
Herrera alleges that for most of his employment at Star Parking, he worked for twelve hours a day, seven days per week. Tr. (Doc. 18) at 22:16, 25:6-11, 49:6-11. Despite this, he was paid only $490 per week. Id. 51:2-4. Defendants state that Herrera actually only worked seven hours per day, five days per week, and was paid $325 per week. Id. at 84:11-85:17, 89:22-90:5, 102:7-19. Herrera also alleges that he never received wage notices; Defendants state that they provided a sheet that listed each of their employees and the corresponding wages for the week and asked the employees to sign when they received pay. Id. at 44:25-45:21, 87:22-89:19.
At the bench trial, Herrera and Genao appeared and were cross-examined. Plaintiff also called Jaime Rijo-Contreras ("Rijo-Contreras"), Melissa Rodriguez ("Rodriguez"), and Alvaro Vargas ("Vargas"). Defendants called Manuel Fernando Guerrero ("Guerrero"), Kendrick Vasquez ("Kendrick"), and Roberto Vasquez ("Robertico").
From January 2015 through February 28, 2016, Herrera was employed primarily as an attendant at Star Parking, a parking lot licensed by the New York City Department of Consumer Affairs. See JPTO at 4-5.
The parties also stipulated to the admission of trial exhibits. Tr. at 69:15-21. Defendants' Exhibit 1 is a copy of the Plaintiff's disclosures pursuant to Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure. Defendants' Exhibit 2 (which is also Plaintiff's Exhibit 3) is a form titled "Notice and Acknowledgement of Pay Rate and Payday" in both English and Spanish. The pay rate on the form is listed as $9.00 and the overtime pay rate is listed as $13.50. It is signed by "Robeto H.R." and dated February 23, 2015.
Defendants' Exhibit 3 is a document listing the name and pay of Star Parking 2 employees per week. There are eight columns: (1) name; (2) hours; (3) hourly rate; (4) overtime rate; (5) amount paid; (6) pay date; (7) week worked; and (8) signature. Herrera's name first appears on the exhibit on January 25, 2015; according to the exhibit, he worked thirty-six hours that week and was paid $325. In general, the spreadsheet shows that each week, Julio (another employee at Star Parking) and Herrera each worked for 36 hours and earned $325. The spreadsheet also shows Alvaro Vargas receiving payment in lieu of Herrera on June 14, 2015, and Fernando Guerrero receiving payment in lieu of Herrera on November 15, 2015, November 22, 2015, and November 30, 2015. Beginning on December 16, 2015, Herrera, Guerrero, and Julio are all listed each week as receiving payment for 36 hours of work. However, there are inconsistencies throughout the document.
Defendants' Exhibit 4 was never discussed at trial; however, it appears to be a screenshot of an individual's transaction history on the website xoom.com. Herrera's name is listed next to a transaction number and the date November 13, 2015. The amount of that transaction appears to have been $465.00.
Defendants' Exhibit 5 is a handwritten log that contains a date, an employee name, and a dollar figure on each row. The log spans from December 23, 2013 to January 31, 2016. Herrera's name first appears on January 22, 2015, and the log indicates that he worked every day through the end of the month. There are no entries between February 1, 2015 and November 22, 2015, but the log covers the period between November 23, 2015 and January 21, 2016. In the last week of November, the log indicates that Herrera worked three times.
Defendants' Exhibits 6, 7, 8, and 9 were also not discussed at trial. Defendants' Exhibit 6 is a handwritten document listing hours worked for Guerrero, Julio, and Herrera in December 2015 and January 2016. For each week, Guerrero and Herrera are listed as having worked 36 hours at an hourly rate of $9, and Julio is listed as having worked 37 hours at the same rate. Defendants' Exhibits 7 and 8 show Star Parking's tax returns for 2014 and 2015, respectively. Defendants' Exhibit 9 shows the parking lot license for Star Parking.
Plaintiff's Exhibit 1 is a photograph of a spreadsheet that looks identical to Defendants' Exhibit 3. However, in Plaintiff's Exhibit 1, only the last two columns (the date and signature columns) are filled out. The other columns (like the hours, rate, and amount paid columns) are blank. Plaintiff's Exhibit 2 is the page from Defendants' Exhibit 3 that matches the dates in Plaintiff's Exhibit 1, and shows the spreadsheet for those dates in which all of the columns are filled out. Plaintiff's Exhibit 4 is a spreadsheet illustrating Plaintiff's damages calculations.
Herrera interviewed for a position at Star Parking in January 2015. Tr. at 22:5-11.
In 2015, Herrera went to the Dominican Republic for a trip from November 10 to November 25. Id. at 23:21-24:6.
Rijo-Contreras is a taxi and Uber driver; in 2015 and 2016, he would park his car at Star Parking. Tr. at 61:3-6, 61:16-22. Rijo-Contreras would retrieve his car from the lot six or seven days a week at 8:00 a.m.; Herrera was always the attendant who would bring it out to him. Id. at 62:3-12. Rijo-Contreras would generally work a twelve hour day and then drop his car off at 8:00 p.m.; Herrera was the attendant who parked his car. Id. at 62:20-22. Occasionally, especially on weekends, Rijo-Contreras would work a later shift, picking his car up in the afternoon and driving through most of the night. Id. at 62:13-63:8. Herrera would usually retrieve his car in the early afternoon, and either Herrera or Julio would be there at night when Rijo-Contreras dropped his car off. Id. at 63:20-64:6. Rijo-Contreras also recalled seeing another attendant working at the lot approximately two or three times per month. Id. at 66:4-10.
Rodriguez met Herrera in May 2015 when she began parking her car at Star Parking. Tr. at 70:19-71:3. Rodriguez would typically retrieve her car every day at 8:00 a.m. and park her car between 7:00 p.m. and 9:00 p.m. Id. at 71:4-10. Herrera was usually the attendant who assisted her, although she also frequently saw Julio working. Id. at 71:11-19. Herrera and Rodriguez began dating in June 2015, and in July 2015, he moved into her apartment. Id. at 72:3-12.
Vargas began working at Star Parking in December 2015. Tr. at 78:9-13. Vargas began covering one daytime shift and one evening shift per week. Id. at 78:19-24. Vargas confirmed that each shift was twelve hours long. Id. at 79:3-9. Vargas was paid $70 per shift. Id. at 79:14-18. Vargas never saw Genao or one of her sons parking cars at the lot. Id. at 79:22-25.
Genao is the owner of Star Parking. Tr. at 83:17-18.
Genao testified that when employees began working at Star Parking, she provided them with a wage notice that explained their hours and hourly wage rate. Id. at 87:14-88:12.
Genao would also keep a record of the money each employee made for Star Parking that day. Id. at 90:22-91:14 (discussing Defendants' Exhibit 5). Genao stated that the record included the names of all of the attendants that worked that day, but also stated that she did not include herself or her sons when they worked at the lot. Id. at 91:15-92:5.
Genao testified that she did not know Vargas, and that she had never hired Vargas. Id. at 103:13-17. She testified that when Herrera left Star Parking, Guerrero took over his shift and works from 7:00 a.m. to 2:00 p.m. Id. at 103:24-104:3.
Guerrero is a current parking attendant at Star Parking. Tr. at 7:5-19. Guerrero initially began working as a substitute for Herrera, including during Herrera's trip to the Dominican Republic. Id. at 8:11-9:4, 12:15-13:7.
When Herrera left Star Parking, Guerrero began working on weekdays from 7:00 a.m. to 2:00 p.m. Id. 10:11-11:20. He also began earning $13.50 per hour. Id. According to Guerrero, Herrera previously was responsible for that shift, and was scheduled to work only five days a week, from 7:00 a.m. to 1:00 p.m. Id. at 9:22-10:5. Guerrero's shift was also preceded by Julio's and followed by Kendrick's. Id. at 12:1-7, 17:6-12. According to Guerrero, Genao would also occasionally work at the lot for two or three hours in the afternoon. Id. at 12:1-7.
Guerrero further testified that he never received a written wage notice, but that Genao would tell him what his wages would be when he started working. Id. at 17:21-25. He was also paid by check. Id. at 18:4-7.
Kendrick, Genao's son, testified that he has worked at Star Parking since 2015. Tr. at 113:5-15. Kendrick has never been assigned a particular shift at the lot. Id. at 113:16-17. However, he stated that there was an afternoon shift, from 5:00 p.m. to 12:00 a.m., that he, his brother Robertico, and Genao would split. Id. at 113:16-114:2.
Robertico, Genao's eldest son, also worked at Star Parking, although he did not work a specific shift. Id. at 120:13-21. Robertico testified that he could only recall consistently working Saturdays and Sundays in 2015. Id. at 121:3-6. However, he also testified that during the weekday, either he, Kendrick, or Genao would always be working at the lot, sometimes together. Id. at 121:7-15. Robertico recalled that Herrera worked the morning shift at Star Parking in 2015, which was on weekdays from 7:00 a.m. to 2:00 p.m. Id. at 121:16-24. Genao would then work from 2:00 p.m. to 4:00 p.m. or 5:00 p.m., and either Kendrick or Robertico would work from then until 11:00 pm. or 11:30 p.m. Id. at 121:25-122:10.
The Court credits Herrera's testimony that he generally worked twelve hour shifts seven dates a week. The Court found the testimony of Rijo-Contreras and Rodriguez, that they saw Herrera at the lot when they picked up their cars around 8:00 a.m., and again when they dropped their cars off in the evening, to be credible. Tr. at 62:3-22, 71:4-10. The Court also notes little incentive for either Rijo-Contreras, who only saw Herrera socially on one occasion and who was subpoenaed to attend trial,
By comparison, the testimony of Genao, Guerrero, Kendrick, and Robertico that Herrera worked only seven hours per day, five days per week, was not as credible in light of their conflicting testimony and the documentary evidence before the Court.
First, as stated above, this testimony is contradicted by Defendants' Exhibits 3 and 5. Both exhibits indicate that during most weeks, only two or three employees—usually Julio and Herrera—worked at Star Parking. Although Defendants' Exhibit 3 indicates that Julio and Herrera each only worked 36 hours, the Court credits Plaintiff's argument that the "hours" listed on the spreadsheet were not contemporaneous reflections of hours worked but instead were filled out after the fact. Herrera's testimony that he consistently signed only a blank spreadsheet is corroborated by the photograph he took of the blank spreadsheet
Defendants' attempts to explain away these inconsistencies were unavailing. Defendants asserted that although only two non-relative employees worked per day, Genao, Kendrick, and Robertico would work as parking attendants on duty ten hours per day, and Julio and Herrera would only work for seven hours. E.g., Tr. at 85:18-86:24, 113:16-114:2, 121:7-15. But not only are there no wages attributed to Kendrick and Robertico during 2015 and 2016 in Defendants' Exhibit 3, they are also not associated with any income earned for the lot during the same time period in Defendants' Exhibit 5. Genao stated that she kept separate income records for the parking income earned by her sons, Tr. at 90:22-91:14; this, however, is undermined by the fact that Robertico is listed as responsible for parking lot income at several points in 2014. See Defs.' Ex. 5 at 13-17. Defendants' Exhibit 5 also indicates that Herrera regularly worked on weekends, despite defense witnesses' contentions that he only worked on weekdays. See Defs.' Ex. 5 at 27.
Further, although defense witnesses consistently testified that Herrera only worked from 7:00 a.m. to 2:00 p.m. on weekdays, they were somewhat less consistent when describing how the remainder of the shifts were split. Genao testified that either she, Kendrick, or Robertico would arrive at the lot by 1:30 p.m—most often Kendrick. Tr. at 85:1-6. If one of her sons arrived, they would work until 11:00 p.m. or midnight. Id. at 86:12-15. If she arrived, she would work for a few hours, and then one of her sons would work the remainder of the shift. Id. at 85:18-86:24. Guerrero testified that Kendrick would take the 2:00 p.m. shift and either stayed until 7:00 p.m. or 11:00 p.m. Id. at 86:12-15. However, he added that Genao would occasionally work for a few hours in the afternoon. Id. at 9:22-10:5, 12:1-7. Kendrick, by contrast, stated that he never had a consistent shift at Star Parking. Id. at 113:16-17. Instead, he testified that Genao always worked from 2:00 p.m. to 4:00 p.m., and that Kendrick, Robertico, and Genao would split the 5:00 p.m. to 12:00 a.m. shift. Id. at 113:16-114:11. Robertico also testified that he did not work a particular shift, and could not recall consistently working at Star Parking. Id. at 120:13-21. But Robertico also told the Court that he consistently worked weekends in 2015; then he recalled that during the weekdays, either he, Kendrick, or Genao would always be at the lot, sometimes together. Id. at 121:3-15. After further questioning, Robertico seemed to recall that Genao would work from 2:00 p.m. to 4:00 p.m or 5:00 p.m. on weekdays, and either he or Kendrick would work from then until 11:00 p.m. or 11:30 p.m. Id. at 120:13-122:10. No defense witnesses ever fully explained how shifts were split on weekends.
The Court also finds that Herrera never received a wage notice from Star Parking or Genao. Herrera and Guerrero both testified that they never received wage notices from Star Parking. Tr. at 17:21-18:3, 44:25-45:4. Defendants put forward Defendants' Exhibit 2, a form titled "Notice and Acknowledgement of Pay Rate and Payday" and ostensibly signed by Herrera on February 23, 2015. See Defs.' Ex. 2. But Herrera testified that he had never seen, much less signed, that piece of paper. Tr. at 45:5-21. The name on the signature line was also misspelled "Robeto" rather than "Roberto." Id. The Court finds it unlikely that Herrera would misspell his own name and concludes that Herrera was never presented with a wage notice. It therefore concludes that Defendants' Exhibit 2, like Defendants' Exhibit 3, was fabricated by Defendants.
An employee is only covered by the FLSA's minimum wage and overtime provisions if he is personally "engaged in commerce or in the production of goods for commerce" or if he is "employed in an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. §§ 206(a), 207(a)(1). Plaintiff concedes that there is no enterprise jurisdiction. See Plaintiff's Proposed Findings of Fact and Conclusions of Law (Doc. 20), ¶ 65. Thus, he is operating solely under the "`individual coverage' theory" and must establish that he was "performing work involving or related to the movement of persons or things . . . among the several States or between any State and any place outside thereof." Owusu v. Corona Tire Shop, Inc., No. 09 Civ. 3744 (NGG) (JO), 2010 WL 4791629, at *2 (E.D.N.Y. Nov. 17, 2010) (quoting 29 C.F.R. § 779.103). "Activities that `simply affect or indirectly relate to interstate commerce' are insufficient to plead individual coverage." Jones v. SCO Family of Servs., 202 F.Supp.3d 345, 351 (S.D.N.Y. 2016) (quoting Li v. Zhao, 35 F.Supp.3d 300, 308 (E.D.N.Y. 2014)). For jurisdiction under the individual coverage theory to lie, a "substantial part" of the employee's work must relate to interstate commerce. Owusu, 2010 WL 4791629, at *2.
Plaintiff argues that individual coverage lies because "Herrera's work as a parking lot attendant caused cars to be both removed from and placed into the flow of traffic, which necessarily had an impact on local traffic, and by extension, interstate commerce." Doc. 20 ¶ 66. The two cases Plaintiff cites in support of this contention are from the Southern District of Florida and the Eastern District of Louisiana; moreover, both are inapposite. In Montoya v. L.C. 1 Trucking Corporation, the Southern District of Florida found an issue of fact as to individual coverage jurisdiction after the plaintiff put forward evidence that the trucks parked in the lot in question were mostly driven "across state lines to and from destinations outside the state of Florida" and that the parking lot owners also owned trucks that "shipped materials across the country to New York, New Jersey, and Illinois." No. 12 Civ. 23816 (BSS), 2013 WL 5007621, at *3 (S.D. Fla. Sept. 12, 2013). In Murillo v. Coryell County Tradesmen, LLC, the Eastern District of Louisiana declined to dismiss the plaintiffs' claims under the individual coverage theory because they alleged that they were "largely migrant workers" who "traveled to New Orleans from different parts of the country and were renovating a luxury hotel and apartment building while being employed by several interstate construction companies." No. 15 Civ. 3641 (NJB), 2017 WL 1133113, at *4, *9 (E.D. La. Mar. 27, 2017). Herrera is not a migrant worker, Star Parking is not an interstate company, and Plaintiff has put forward no evidence that the cars parked in the lot were engaged in interstate commerce. There is simply nothing in the record before the Court that would allow it to conclude that Plaintiff is covered by the FLSA.
That does not, however, deprive the Court of jurisdiction over Plaintiff's claims. 28 U.S.C. § 1367(a) provides for supplemental jurisdiction over state law claims that "derive from a common nucleus of operative fact," as Plaintiff's NYLL claims do. A district court may decline supplemental jurisdiction if it has dismissed "all claims over which it has original jurisdiction." Salustio v. 106 Columbia Deli Corp., 264 F.Supp.3d 540, 551-52 (S.D.N.Y. 2017). However, in so doing, a court should also consider whether dismissal would promote or hinder the values articulated in United Mine Workers of America v. Gibbs: economy, convenience, fairness, and comity. Id. (quoting Jones v. Ford Motor Credit Co., 358 F.3d 205, 214 (2d Cir. 2004)). Here, the Court finds that dismissal would be inefficient and inconvenient at this late stage. See id. (declining to dismiss NYLL claims after a bench trial); Marcelino v. 374 Food, Inc., No. 16 Civ. 6287 (KPF), 2018 WL 1517205, at *11 (S.D.N.Y. Mar. 27, 2018) (same).
Under the NYLL, an employee is entitled to be paid a minimum wage for his labor; the minimum wage rate was set at $8.75 in 2015 and $9.00 in 2016. See N.Y.L.L. § 652(1); 21 N.Y.C.R.R. § 146-1.2. When an employer's payroll records are inaccurate or incomplete, the employer bears the burden "of proving that the complaining employee was paid wages, benefits, and wage supplements." Marcelino, 2018 WL 1517205, at *18 (quoting NYLL § 196-a(a)). When an employer has not met that burden, a plaintiff must proffer "sufficient evidence from which violations of the [FLSA and NYLL] and the amount of an award may be reasonably inferred." Id. at *16 (quoting Gonzalez v. Masters Health Food Serv. Inc., 14 Civ. 7603 (VEC), 2017 WL 3835960, at *16 (S.D.N.Y. July 27, 2017)).
The Court finds that Defendants' records were inaccurate (as in the case of Defendants' Exhibit 3) or incomplete (as in the case of Defendants' Exhibit 5); therefore, Defendants have not met their burden of proving that Herrera was paid minimum wage for the first forty hours per week he worked during his employment at Star Parking. Herrera testified that before he went to the Dominican Republic in November 2015, he worked eighty-four hours per week, and was only paid $490 per week. Tr. at 22:14-21, 51:2-4. When he returned, he worked fewer shifts; however, he typically received pay as if he had worked all seven shifts and was expected to pay Vargas for twelve hours of pay. Id. at 27:2-28:3. Plaintiff argues that the Court should credit Defendants' Exhibit 5, to the extent that those logs exist, and infer that on each day on which Herrera's name is listed, he worked a twelve-hour shift. See Doc. 20 ¶ 93. Plaintiff also argues that he did not work on June 21, 2015, because Vargas signed Genao's pay spreadsheet that day. Id. The Court finds that Plaintiff's proposed calculations are based on "sufficient evidence from which violations of the [NYLL] may be inferred." Therefore, the Court adopts the damages calculation contained in Plaintiff's Proposed Findings of Fact and Conclusions of Law and finds that Herrera is entitled to $6,690 in unpaid minimum wage. See Doc. 20 ¶ 95.
New York law also requires employers to provide overtime pay, a wage that is 50% higher than minimum wage, for hours worked in excess of forty hours per week. See 12 N.Y.C.R.R § 142-2.2. An employee may also be entitled to "spread of hours" pay. Id. at 142-2.4. An employee's spread of hours is the length between the beginning and end of the workday. Id. at 142-2.18. When an employee's spread of hours is greater than ten, his employer must pay him for one additional hour at the minimum wage rate. Id. at 142-2.4. For the reasons discussed above, the Court finds that Defendants have failed to meet their burden to show that they paid Herrera for any overtime hours he worked. Because Plaintiff has put forward evidence (in the form of his testimony and that of Rijo-Contreras, Rodriguez, and Vargas) that he generally worked greater than ten hours per day and forty hours per week, the Court finds in favor of Plaintiff on his fourth and fifth claims.
With respect to the amount of the award that is appropriate, the Court finds that Plaintiff's calculations, based on Herrera's testimony of his wages (supported by Vargas' testimony that he earned $70 for one twelve-hour shift) and hours and days worked (corroborated, where possible, by Defendant's Exhibit 5) are based on sufficient evidence. The Court therefore finds that Herrera is entitled to $15,109 in unpaid overtime wages and $3,184 in unpaid spread of hours wages. Doc. 20 ¶¶ 96-97.
Under the NYLL, employers must provide employees with wage notices within ten business days of the start of employment. NYLL § 198(1-b). A wage notice must be written in English and "in the language identified by each employee as [his] primary language," and it must include several pieces of information, including the employee's pay rate and pay day. See NYLL § 195(1)(a); Kone v. Joy Constr. Corp., No. 15 Civ. 1328 (LTS), 2016 WL 866349, at *5 (S.D.N.Y. Mar. 3, 2016). Every pay day, an employer must also provide its employees with an earnings statement, including the employee's name, hours worked at regular rates, hours worked at overtime rates, and net wages. Id.
As the Court discussed above, Herrera was never presented with a wage notice. The alleged wage notice provided by Defendants (Defendants' Exhibit 2) was dated February 23, 2015, more than ten days after Herrera began employment at Star Parking. See Defs.' Ex. 5 at 27 (showing Herrera earning money for the lot beginning January 22, 2015). Further, Defendants' Exhibit 2 was signed "Robeto H.R.," which is not the correct spelling of Herrera's name. See Defs.' Ex. 2. Herrera also testified that he never received a wage notice, which was corroborated by Guerrero's testimony. Tr. at 17:21-18:3, 44:25-45:4.
Both Herrera and Guerrero testified that they did not receive any type of wage notice, which this Court understands to include any earnings statements. Tr. at 17:21-18:3, 44:25-45:4.
The Court therefore finds in favor of Plaintiff on his Sixth Claim. Under the Wage Theft Prevention Act, an employee was entitled to recover damages for violations of the wage notice requirement of $100 per work week (not to exceed $2,500) prior to February 27, 2015, and after February 27, 2015, could recover damages of $50 per work day, not to exceed $5,000. See Marcelino, 2018 WL 1517205, at *20; NYLL § 198(1-d). For violations of the statutory earnings statement requirement, a plaintiff is entitled to $250 per work day that the violations continue, not to exceed $5,000. Id. Based on the Court's factual findings about the failure of Defendants to provide wage notices or earnings statements and Herrera's work schedule, he is entitled to recover the statutory maximum for each violation, which is $10,000 total.
Under the NYLL, an employee is entitled to 100% of his underpaid wages as liquidated damages unless his employer can prove "a good faith basis to believe that its underpayment of wages was in compliance with the law." NYLL § 198(1-a). An employer must show that it "took active steps to ascertain the dictates of the FLSA and then act to comply with them." Marcelino, 2018 WL 1517205, at *18 (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 150 (2d Cir. 2008)). The employer's burden to prove that it acted in good faith is a "difficult one," as "double damages [are] the norm and single damages the exception." Barfield, 537. F.3d at 150 (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999)).
Defendants offer the conclusory statement that they "should not owe any liquidated damages whatsoever to Plaintiff," but do not attempt to put forward evidence showing that they have met their burden of proof. See Defendants' Proposed Findings of Fact and Conclusions of Law (Doc. 23) ¶ 5. Nor can the Court find anything in the record that suggests that Genao or Star Parking were acting in good faith when failing to compensate Herrera fully for his work schedule. To the contrary, the evidence presented at trial showed that Defendants' purported records were inaccurate, fabricated, or both. See Defs.' Ex. 2; compare Pl.'s Ex. 1, with Defs.' Ex. 3. The Court therefore grants Herrera liquidated damages in the amount of $24,983.
The NYLL also allows for the recovery of prejudmgnet interest at the statutory interest rate of nine percent per year. See NYLL § 198(1-a) (stating that courts should allow recovery of prejudgment interest); N.Y. C.P.L.R. § 5004 (setting the statutory interest rate at nine percent per year). Prejudgment interest is available only for an employee's damages due to underpayment, it is not recoverable on liquidated damages or statutory damages for notice violations. Marcelino, 2018 WL 1517205, at *21. Courts generally award prejudgment interest beginning from the midpoint of the plaintiff's employment within the statute of limitations period. Hengjin Sun v. China 1221, Inc., No. 12 Civ. 7135 (RJS), 2016 WL 1587242, at *6 (S.D.N.Y. Apr. 19, 2016); Tackie v. Keff Enters. LLC, No. 14 Civ. 2074 (JPO), 2014 WL 4626229, at *6 (S.D.N.Y. Sept. 16 2014). Because the Court finds that Herrera began work on January 22, 2015 and ended work on February 28, 2016, the midpoint of his employment was August 11, 2015, and he is entitled to prejudgment interest beginning on that date.
Defendants seek an offset from any damages because Herrera "owes money to Defendants for the car payments he never made." JPTO at 3-4; Doc. 23 ¶ 10. But Defendants put forward no evidence of the amount of money owed to Genao, except for Genao's testimony that she was paid less than $2,000 for the car. Tr. at 97:14-17. Herrera testified that he paid Genao back in full. Tr. at 57:4-21. The Court declines to credit Genao's testimony based on the doctrine of falsus in unun, falsus in omnium and Genao's testimony regarding Star Parking's employment records, which the Court found to be false. The Court therefore declines to offset Plaintiff's damages.
For the reasons set forth above, Plaintiff has established that Defendants have violated the NYLL's minimum wage, overtime, and notice provisions, but has not established jurisdiction under the FLSA. It is therefore ordered that:
It is SO ORDERED.
