ALLYNE R. ROSS, District Judge.
This is an action by Mohamed Elghourab ("plaintiff" or "Elghourab") for unpaid overtime wages pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), and the New York Labor Law ("NYLL"). Plaintiff was employed as a chef at a hotel restaurant owned by defendant Vista JFK, LLC ("defendant" or "Vista JFK"). On July 27, 2018, defendant moved for summary judgment on the ground that plaintiff is exempt from receiving overtime payments under the executive exemption to the FLSA. The question of whether Elghourab is an exempt executive turns on whether he was a manager responsible for overseeing the kitchen and its employees. On November 27, 2018, I denied defendant's motion for summary judgment, concluding that factual disputes precluded a determination that Elghourab fell under the executive exemption as a matter of law. On May 21 and May 22, 2019, I held a bench trial to determine defendant's liability, if any. After careful consideration of the evidence introduced at trial and the relevant law, I find that plaintiff does not qualify as an exempt executive and is therefore entitled to relief.
Defendant's hotel, which is located near John F. Kennedy International Airport ("JFK"), caters to passengers traveling through JFK. See Pl.'s Trial Br. 3, ECF No. 63.
Defendant gets most of its business from travelers whose flights have been cancelled. See Berrones Testimony at 41:12-15; see also Pl.'s Trial Br. Ex. 25, at 379:12-380:1, 463:2-9 ("Elghourab Testimony"); Miller Testimony at 302:11-23. These cancelled flights are called "down flights." See Miller Testimony at 302:24-303:11. Whenever there is a down flight, the restaurant also prepares a lunch or dinner buffet, which could result in the restaurant opening earlier or closing later than scheduled. See Berrones Testimony at 41:16-19, 43:3-12; Borgella Testimony at 201:19-24; Miller Testimony at 322:18-20; Elghourab Testimony at 390:20-391:12. Down flights bring in approximately 160 guests. See Elghourab Testimony at 389:5-6. During plaintiff's employment, down flights occurred between two and seven times per week. See Elghourab Testimony at 378:24-379:4, 390:20-391:12; see also Reyes Testimony at 172:25-173:3.
During plaintiff's employment, there were only two non-union employees in the F&B department—plaintiff and the F&B manager. See Berrones Testimony at 9:8-19. Though some of defendant's witnesses testified to the contrary, I credit plaintiff's testimony that when an F&B manager was employed, the F&B manager supervised plaintiff and oversaw the entire F&B department. See Elghourab Testimony at 399:2-8. The F&B manager reported directly to the hotel's general manager ("GM"). See Miller Testimony at 337:11-22. There were several F&B managers throughout plaintiff's employment, though defendant has not provided any evidence regarding their dates of employment. I credit plaintiff's testimony that Amr was the F&B manager from the beginning of plaintiff's employment in 2011 until 2013 and that numerous F&B managers were employed after Amr, including Hany, Rafael, Tony, Angela, Robert, and Ram. See Elghourab Testimony at 399:19-403:3; see also Miller Testimony at 330:5-332:2. There was no F&B manager for most of 2015, during which time both plaintiff and the GM assumed a bigger role in the F&B department. See Elghourab Testimony at 416:3-8, 487:6-13. Darin Miller, the Vice President of Operations for Vista Hospitality LLC, served as the hotel's acting GM for a few weeks at the end of 2015, when there was a gap between GMs. See Elghourab Testimony at 377:11-378:15, 447:17-448:8.
A collective-bargaining agreement ("CBA") and memorandum of understanding ("MOU") between Vista JFK and the New York Hotel and Motel Trades Council, AFL-CIO ("union") govern various aspects of the union members' employment with defendant. The CBA and MOU control hourly pay rates and pay increases;
Elghourab, who has a high school education and no formal culinary training, was hired in September 2011 to work as a chef in defendant's hotel restaurant. See Pl.'s Trial Br. 7; Def.'s Trial Br. 1, ECF No. 64; Elghourab Testimony at 370:21-371:9. Plaintiff remained employed by defendant until September 2016. See Pl.'s Trial Br. 7; Def.'s Trial Br. 1; Elghourab Testimony at 371:4-7.
Elghourab's starting annual salary was $55,000. See Pl.'s Trial Br. 44; Def.'s Trial Br. 16. His salary was increased to $65,000 in 2014 and $69,000 in 2016. See Pl.'s Trial Br. 44; Def.'s Trial Br. 16. It is undisputed that plaintiff did not receive overtime. When plaintiff was employed, the hourly wages of his union co-workers were as follows:
Pl.'s Trial Br. 45-46 (citations omitted) (citing payroll registers).
Plaintiff's credible testimony, corroborated by the testimony of defendant's witnesses, supports the conclusion that he worked 67.5-98 hours per week, with the exception of the end of 2016, when he worked 50 hours per week.
Plaintiff never received a written job description. See Elghourab Testimony at 371:10-11; see also Berrones Testimony at 14:18-23, 17:13-16.
When breakfast closed at 11:00am, plaintiff would help clean up. See Elghourab Testimony at 387:20-23. If there was no down flight, plaintiff would order food, stock and clean the walk-in refrigerator, and take out garbage. See id. at 387:20-24, 389:18-390:19. If there was a down flight, however, plaintiff would help prepare the lunch buffet by cooking, filling ice, changing gas tanks, stocking soda, carrying trays back and forth from the buffet, helping with plates and silverware, and bussing tables. See id. at 388:24-390:19, 391:13-392:21; see also Reyes Testimony at 148:7-149:20 (testifying that when the restaurant was busy plaintiff would carry trays, plates, and utensils to the buffet, as well as clear tables); Borgella Testimony at 206:17-207:24 (testifying that plaintiff helped cook food for the customers when there were down flights).
Between 2:00pm and 4:30pm, if there was no down flight, the restaurant was closed, so plaintiff would begin preparing items for the dinner menu. See Elghourab Testimony at 394:11-395:19 (testifying that he would prepare the dinner food for Mr. Borgella by cleaning and marinating the chicken, slicing tomatoes, and gathering ingredients from the freezer); Borgella Testimony at 204:14-21 (testifying that plaintiff would sometimes do prep work for dinner before he arrived). If there was a down flight, however, plaintiff would prepare the dinner buffet. See Elghourab Testimony at 395:10-12, 397:8-398:8; Borgella Testimony at 206:7-207:24, 208:10-20. Between when Mr. Reyes stopped working at 3:00pm and Mr. Borgella arrived at 4:00pm or 4:30pm, plaintiff was the only chef in the kitchen, so if a down flight came in, Elghourab had to prepare much of the buffet by himself. See Elghourab Testimony at 395:10-12, 397:8-398:8; Borgella Testimony at 206:7-207:24, 208:10-20; see also Elghourab Testimony at 393:24-394:10; Reyes Testimony at 121:15-25. After 4:30pm, if there was a down flight, plaintiff would help the dinner chefs prepare and serve the dinner buffet. See Elghourab Testimony at 395:10-12, 397:8-398:18; Borgella Testimony at 206:7-207:24. If there was a banquet, plaintiff would help cook the food for the event. See Elghourab Testimony at 393:18-22.
There is no dispute that plaintiff was responsible for ordering food for the hotel. See Pl.'s Trial Br. 17-18 ("Twice a week, Plaintiff ordered food for the hotel. . . . [H]e would be the person who would notice if the stock of a perishable food was low. Plaintiff . . . would then call the only supplier the hotel used, US Food, and place a bulk order to make sure there was enough food to keep the refrigerator and freezer stocked so the hotel would not run out." (citations omitted)). Plaintiff also ordered food for the hotel banquets. See Elghourab Testimony at 484:2-19. The F&B department did not have a specific budget, and plaintiff simply ordered whatever was needed to keep the kitchen fully stocked. See Cristobal Testimony at 247:7-9, 247:19-249:1; Elghourab Testimony at 403:22-406:19, 431:7-8. Plaintiff was informed by the controller whether the food costs were high or low. See Elghourab Testimony at 407:1-7, 407:21-22 ("And then he say, this is the food cost. It is high, or it is down, there's nothing I can do."). Plaintiff was also responsible for taking inventory. See id. at 406:20-408:22. Plaintiff would count the food, and the controller would use the inventory list to manage the budget. See id.; see also Cristobal Testimony at 250:18-251:22. Alfonso Cristobal, defendant's controller who testified at trial, overlapped with plaintiff for only a couple of months. See Cristobal Testimony at 242:2-10, 247:16-18. During this time, he had one thirty-minute meeting with Elghourab, where they did a "quick count of the food inventory." See id. at 242:23-244:1, 261:17-262:1.
Although defendant claims that plaintiff had control over the restaurant's menu, the trial testimony makes clear that the menu changed rarely, if at all, during plaintiff's employment. See Pl.'s Br. 6-7 ("Plaintiff testified that the menu only changed when the Double Tree by Hilton changed to the Radisson JFK in 2013: the hotel logo was changed and a few of the more expensive items were removed; otherwise, it did not change. . . . Mr. Reyes testified that he cannot remember any changes to the menu during Plaintiff's employment. Mr. Borgella admitted that he has been cooking the same menu for years and that he doesn't remember the last time an item was added to the menu." (citations omitted)). While Miller testified that plaintiff was involved in setting menu prices, see Miller Testimony at 349:3-19, I find plaintiff's testimony that he was not involved in menu pricing more credible, see Elghourab Testimony at 408:23-409:5. For down flight buffets and the employee lunch, the cooks on duty would determine what to make based on what was available in the freezer. See Reyes Testimony at 140:13-141:5, 178:17-179:4, 180:2-9; Borgella Testimony at 202:18-20.
Plaintiff credibly testified that he was not responsible for preparing the kitchen for inspections when the hotel was a Double Tree because there was an F&B manager, and that the Radisson inspection did not include the F&B department. See Elghourab Testimony at 385:14 387:12; see also id. at 451:6-8 (stating that he was not responsible for ensuring the quality of the food); Reyes Testimony at 176:5-177:10 (testifying that cooks are responsible for keeping their work areas clean).
When Pierre Merhej became the hotel's GM in 2014, he held weekly management meetings. See Elghourab Testimony at 416:15-417:4; see also Def.'s Trial Exs. G-FF ("Meeting Minutes"). When there was no F&B manager, plaintiff attended the weekly management meetings; however, he often had to leave after a few minutes to retrieve a food order or deal with a down flight. See Elghourab Testimony at 416:21-418:11; see also Pl.'s Trial Br. 38 (noting that "[t]he vast majority of minutes introduced at trial are from 2015," when Mr. Merhej was the GM and there was no F&B manager). When the hotel had a banquet, plaintiff would sometimes attend a brief planning meeting. See Elghourab Testimony at 483:12-484:15.
Plaintiff did not supervise the work of the F&B employees. See Elghourab Testimony at 383:17-22, 387:13-17, 423:20-424:15, 430:4-19; see also Berrones Testimony at 23:14-25:18 (testifying that the duties and responsibilities of the union employees are set by the union and do not change without union approval); Reyes Testimony at 131:22-132:5 (testifying that he prepares the employee lunch by himself); Borgella Testimony at 191:22-192:2 (same), 214:8-10 (testifying that he knows exactly what he is going to do when he comes in for the dinner shift). In fact, most of the F&B employees had been performing the same job duties since before plaintiff's employment. See Pl.'s Trial Br. 12; see also Reyes Testimony at 129:10-15 (testifying that he has been doing the same thing every day at work for the past 18 years); Borgella Testimony at 192:5-16 (testifying that his responsibilities regarding the employee lunch have been the same for years). While Mr. Reyes and Mr. Borgella referred to Elghourab as "boss," "manager," and "supervisor" at trial, I agree with plaintiff that "they were unable to provide specific details about the manner in which Plaintiff allegedly directed their work, speaking in . . . generalities . . . . [and] chang[ing] the testimony that they had given at their depositions less than two months prior." Pl.'s Trial Br. 22, 48 (citations omitted) (citing trial transcript); see also supra nn.14-15. Plaintiff also never disciplined any F&B employees. See Elghourab Testimony at 430:2-3; see also Berrones Testimony at 27:8-29:4 (testifying that union employees do not get written reviews, that the Radisson JFK has a specific disciplinary procedure that requires documentation, and that no documentation exists showing that plaintiff disciplined an employee), 30:7-11 (testifying that she never observed plaintiff give a verbal warning to an F&B employee); Reyes Testimony at 132:19-23 (stating that has never been disciplined by anyone at the hotel); Borgella Testimony at 190:2-3 (testifying that he has not been disciplined in the past 10 years). At most, plaintiff discussed the quality of the food with his coworkers twice. See Pl.'s Trial Br. 16 n.134 ("Plaintiff testified that there was one time during his employment where he told a chef that he needed to make sure he followed the menu so that the food would be consistent, and Mr. Reyes testified that there was one conversation amongst all the chefs about the salt content of the food where Plaintiff said to `use less salt.'" (citations omitted) (citing trial record)); see also id. at 48.
Plaintiff did not train the kitchen employees. They received no training beyond their first few days of employment, if at all. See Berrones Testimony at 32:24-33:9 (acknowledging that "there's very limited training that goes on . . . in the kitchen . . . because everyone knows their job duties"); Reyes Testimony 142:14-143:6 (agreeing that he has not been trained to cook anything in the past several years); Borgella Testimony at 186:23-187:4 (testifying that he believes he was trained for "one day or a couple of hours" when he was hired). While Mr. Reyes and Mr. Borgella testified that they were occasionally trained by plaintiff in new menu items and food presentation, I again agree with plaintiff that their testimony lacked credibility, as they testified in "vague generalities" and "neither could recall an instance of new dishes being added to the menu during Plaintiff's employment with any specificity and the restaurant did not serve the kind of menu where presentation is even a consideration." Pl.'s Trial Br. 16-17 (citations omitted) (citing trial transcript); see also supra p. 11.
Regarding scheduling, when there was no F&B manager, plaintiff was responsible for changing the date on the weekly schedule, highlighting the date, submitting it to management, and posting it on the wall. See Elghourab Testimony at 426:5-11, 443:13-444:1, 487:21-23; see also Berrones Testimony at 70:16-71:15. This task took two or three minutes. See Elghourab Testimony at 487:24-25. When an employee was out sick or on vacation, or a banquet required an additional cook, either plaintiff or someone from the Human Resources department would call the union employee with the most seniority to offer that employee overtime. See id. at 444:6-445:21; see also Berrones Testimony at 37:8-22, 70:16-71:15; Miller Testimony at 310:20-311:12. Further, when there was no F&B manager, plaintiff would sign off on employee vacation requests. See Elghourab Testimony at 413:21-415:13; see also Berrones Testimony at 71:16-72:4, 105:11-108:7; Def.'s Trial Ex. NN, ECF No. 63-28. Plaintiff never denied a vacation request. See Reyes Testimony at 145:6-11; Borgella Testimony at 211:10-18.
Union employees are required to punch in and out, and a record is automatically generated from their punches. See Berrones Testimony at 75:18-23. When there was no F&B manager, plaintiff would review the punch records, ensure that they were accurate, highlight any overtime worked for the week, and give the records to Human Resources. See id. at 75:11-76:18, 112:17-20; see also Elghourab Testimony at 411:13-412:16. This task took 10-15 minutes. See Elghourab Testimony at 412:2-3; see also Berrones Testimony at 111:22-112:3 (testifying that she met with plaintiff for 15 minutes weekly to go over payroll). Plaintiff would also create a "tip report" for accounting and Human Resources. See Berrones Testimony at 77:13-24. This simply involved inputting the tips on receipts into an Excel spreadsheet and took plaintiff 10 minutes. See id. at 112:4-16; Elghourab Testimony at 412:17-413:20.
It is undisputed that during plaintiff's employment, no union employees in the F&B department were fired and only a few were hired. When a union position did become available, Ms. Berrones would inform the union, and the union would send candidates to the hotel. See Berrones Testimony at 49:7-21. Ahmed Zakaria was hired as a busser during plaintiff's employment. While Ms. Berrones testified to the contrary, see Berrones Testimony at 97:2-5, I credit plaintiff's testimony that he played no role in hiring him, see Elghourab Testimony at 422:12-423:19, 428:17-20, 429:7-8; see also Berrones Testimony at 113:4-25. Defendant also claims that plaintiff was responsible for hiring Jaiwante Singh as a dishwasher and Mohamad Hizam as a substitute cook. See Def.'s Trial Br. 31-32 (citing trial transcript). I again credit plaintiff's version of events, which is that he simply escorted these individuals to Human Resources where they were hired. See Elghourab Testimony at 418:14-421:8, 424:19-425:18, 438:2-439:7. To the extent that plaintiff asked these individuals questions, it was not with the intention of evaluating their credentials or weighing in on the hiring decision. See id. 438:2-439:7.
There is an office next to the kitchen that plaintiff shared with the F&B manager. See Elghourab Testimony at 488:3-10, 489:4-19. Plaintiff admittedly used this office to change his clothes and rest, as well as to perform limited managerial tasks. See id. at 489:4-19. Overall, however, when there was no F&B manager, plaintiff spent 90% of his time working in the kitchen and 10% of his time managing; when there was an F&B manager, plaintiff spent nearly all of his time working in the kitchen. See id. at 487:6-17.
Under the FLSA, employers are required to pay employees overtime compensation for all time worked in excess of 40 hours per week, unless the employee falls under an enumerated exemption. 29 U.S.C. § 207(a)(1).
The FLSA exemptions include "any employee employed in a bona fide executive . . . capacity." 29 U.S.C. § 213(a)(1). The FLSA does not define what it means to work in an "executive capacity" but "instead directs the Secretary of Labor to `define[] and delimit[]'" that term through regulations. Ramos, 687 F.3d at 559 (alterations in original) (citing § 213(a)(1)); see also Tamayo v. DHR Rest. Co., No. 14 Civ. 9633 (GBD), 2017 WL 532460, at *5 (S.D.N.Y. Feb. 3, 2017) (citing Ramos, 687 F.3d at 559). The Department of Labor ("the DOL") has defined "employee employed in a bona fide executive capacity" to mean any employee who is:
29 C.F.R. § 541.100(a) (2016). The question of whether an employee falls under the executive exemption is a mixed question of fact and law—i.e., how the employee spent his time working is a question of fact, while whether the employee's activities exclude him from overtime benefits is a question of law. See Ramos, 687 F.3d at 558 (first citing Myers v. Hertz Corp., 624 F.3d 537, 548 (2d Cir. 2010); then citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)); Tamayo, 2017 WL 532460, at *5 (citing Ramos, 687 F.3d at 558); Carhuapoma, 2013 WL 1285295, at *7 (first citing Myers, 624 F.3d at 548; then citing Icicle Seafoods, 475 U.S. at 714). The parties agree that element (1) is satisfied, but they disagree over elements (2), (3), and (4). I address each element in turn.
The DOL regulations define "management" to include a range of activities, such as:
29 C.F.R. § 541.102.
The DOL regulations define "primary duty" as "the principal, main, major or most important duty that the employee performs." 29 C.F.R. § 541.700(a). The regulations provide the following list of nonexclusive factors to be considered in determining whether an employee's primary duty is management: (1) the amount of time spent on exempt versus nonexempt work; (2) "the employee's relative freedom from direct supervision"; (3) "the relative importance of the [employee's] exempt duties as compared with other types of duties"; and (4) "the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee." Id.
The amount of time an employee spends performing exempt work "can be a useful guide in determining whether exempt work is the primary duty of an employee." § 541.700(b). "[E]mployees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement," id., but employees who spend less than 50 percent of their time on exempt work may still fall under the executive exemption if other factors support such a conclusion. See Tamayo, 2017 WL 532460, at *6 (citing § 541.700(b)); Carhuapoma, 2013 WL 1285295, at *9-10 (noting that exempt executives tend to have discretion over when they perform nonexempt duties and the ability to perform managerial and nonmanagerial duties concurrently). Courts in the Second Circuit have determined "that a chef's `primary duty' is not management where his duties primarily entail cooking." Karropoulos v. Soup du Jour, Ltd., 128 F.Supp.3d 518, 530 (E.D.N.Y. 2015) (citing Solis v. SCA Rest. Corp., 938 F.Supp.2d 380, 396 (E.D.N.Y. 2013)).
Here, plaintiff spent a significant portion of his day preparing and cooking food, and at least 90% of his time was consumed by nonexempt work. While this breakdown is not dispositive, it strongly suggests that plaintiff's primary duty was not management. Further, the hectic nature of the hotel restaurant left plaintiff with very little discretion over when to perform nonexempt duties; as discussed supra, plaintiff was constantly jumping in to prepare and serve food for down flights and banquets, clean the kitchen, wash the dishes, take out the trash, and assist with manual labor on an as needed basis. Thus, this factor weighs heavily in favor of plaintiff being a nonexempt employee.
An employee who is free from supervision is more likely to be a manager. While Elghourab admits that he performed some managerial tasks, particularly when there was no F&B manager, "[e]mployees may not be exempt, even if they perform managerial tasks, if they `d[o] so largely pursuant to the dictates of immutable corporate policy or at the behest of the . . . Manager to whom [they] report[ ].'" Carhuapoma, 2013 WL 1285295, at *10 (alterations in original) (quoting Clougher v. Home Depot U.S.A., Inc., 696 F.Supp.2d 285, 288 (E.D.N.Y.2010)). However, "an employee can be exempt even if his discretion is `circumscribed' by a guidebook or supervisor, as long as, despite the circumscription, `judgments must still be made' by that employee." Id. at *10 (quoting Donovan v. Burger King Corp., 675 F.2d 516, 521-22 (2d Cir. 1982)).
Because the CBA and MOU controlled the union employees' job duties, hours, vacations, salaries, and overtime opportunities, even when plaintiff was performing managerial tasks, he was doing so "largely pursuant to the dictates of immutable . . . policy," Carhuapoma, 2013 WL 1285295, at *10, and was making virtually no judgments. Throughout most of plaintiff's employment, he reported to the F&B manager, who handled the managerial duties but occasionally directed plaintiff to assist. See, e.g., Elghourab Testimony at 487:21-488:1 (testifying that he was not responsible for scheduling kitchen staff when an F&B manager was employed but that if the F&B manager asked him to prepare the schedule, he would "do the date and put it there," a task that took "two, three minutes"). In addition, as plaintiff notes, because the union members' job duties were pre-established, "[p]laintifff . . . was literally the only person that could be assigned to perform . . . additional duties either by a F&B [m]anager or in the absence of one." Pl.'s Br. 42. Plaintiff was thus not free from supervision, weighing against a finding that he was a manager.
In determining whether an employee's managerial duties were more important to the defendant than the employee's nonmanagerial duties, courts in the Second Circuit have looked at whether the business could operate successfully without the employee performing the purported managerial functions. See, e.g., Tamayo, 2017 WL 532460, at *6. In the context of a restaurant, "[t]he relative importance inquiry evaluates whether the restaurant[] could not operate successfully unless the purported managerial functions assigned to [the] Head Chef, such as determining amounts of food to be prepared, keeping track of inventory, and assigning employees to particular jobs, were performed." Id. If, however, "other employees could have also performed some of [the Head Chef's] supervisory duties, . . . those duties [are] less important." Id. at *9; see also 29 C.F.R. § 541.106(c) ("[A] working supervisor whose primary duty is performing nonexempt work . . . does not become exempt merely because the nonexempt. . . employee occasionally has some responsibility for directing the work of other nonexempt . . . employees when, for example, the exempt supervisor is unavailable.").
Most of plaintiff's managerial responsibilities—i.e., scheduling, signing off on vacation requests, and preparing payroll and tip reports—were handled by the F&B manager when one was employed. Thus, plaintiff resembles a nonexempt "working supervisor" who had "some [management] responsibility" when "the exempt supervisor [was] unavailable." 29 C.F.R. § 541.106(c). Further, most of the F&B employees had been performing the same job duties for years, rendering plaintiff's role in the successful operation of the hotel restaurant less important. However, Elghourab was indisputably responsible for ordering food and counting inventory, tasks that, while simple, were of obvious importance to the restaurant's operations. Overall, I find that this factor weighs neither in favor nor against plaintiff's primary duty being management.
If an employee makes more money than nonexempt employees, he is more likely to be a manager. When comparing a plaintiff's salary to the salaries of nonexempt employees, courts often reduce the allegedly exempt employee's weekly salary to an hourly rate of pay based on the actual number of hours worked. See, e.g., Tamayo, 2017 WL 532460, at *9; Carhuapoma, 2013 WL 1285295, at *12; Clougher, 696 F. Supp. 2d at 293. With the exception of the end of 2016, plaintiff was working 67.5-98 hours per week and making $10.79-$15.67 per hour; his nonexempt coworkers, on the other hand, were earning hourly wages between $22 and $27. See supra pp. 6-8. Thus, plaintiff was paid a significantly lower hourly rate than his coworkers, weighing against a finding that his primary duty was management.
Based on the evidence before me, I find that plaintiff's primary duty was to work alongside his union colleagues performing nonexempt tasks. He did not participate in the vast majority of the DOL-defined management activities, such as managing employees (discussed infra), hiring and firing employees (discussed infra), "setting and adjusting . . . rates of pay and hours of work," "handling employee complaints and grievances," "controlling the budget," and "monitoring or implementing legal compliance measures." 29 C.F.R. § 541.102. The management responsibilities he did perform were both limited and straightforward. Accordingly, I conclude that plaintiff's primary duty was not management.
Element three of the executive-exemption test requires the exempt employee to "customarily and regularly direct[] the work of two or more other employees." 29 C.F.R. § 541.100(a)(3). According to the DOL, "[t]he phrase `customarily and regularly' means greater than occasional but less than constant; it includes work normally done every workweek, but does not include isolated or one-time tasks."
An exempt executive must have "the authority to hire or fire other employees," or the executive's "suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees" must be "given particular weight." 29 C.F.R. § 541.100(a)(4). In determining whether an employee's recommendations carry "particular weight," courts are to consider whether the recommendations are part of the employee's job duties, and the frequency with which such recommendations are made and relied upon. § 541.105; see also id. (noting that an "occasional suggestion" is insufficient to meet the "particular weight" requirement). "An employee's suggestions and recommendations may still be deemed to have `particular weight' even if a higher level manager's recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee's change in status." Id. As detailed earlier, no F&B employee was fired or demoted during plaintiff's employment, and plaintiff's role in the hiring process was limited to escorting two individuals to Human Resources. The hiring process was heavily controlled by the CBA, and to the extent that decisions needed to be made, they were made by Human Resources or the hotel's GM. See, e.g., Elghourab Testimony at 418:19-420:7; Berrones Testimony at 64:17-65:11. Thus, this factor weighs in favor of plaintiff being a nonexempt employee.
In sum, while plaintiff did make more than $455 per week, his primary duty was not management, he did not customarily and regularly direct the work of two or more employees, and he did not participate in the hiring, firing, advancement, and promotion of employees. See 29 C.F.R. § 541.100(a). Accordingly, plaintiff does not qualify as an exempt executive.
As detailed below, I agree with plaintiff's damages calculation in its entirety. See Pl.'s Trial Br. 51-57; Pl.'s Trial Br. Ex. 27, ECF No. 63-29 ("Pl.'s Damages Calculation").
Under both the FLSA and the NYLL, "once an employee works 40 hours in a week, he must be paid `one and one-half times [his] regular rate' for all excess hours." Martinez v. Dannys Athens Diner, Inc., No. 16-cv-7468 (RJS), 2017 WL 6335908, at *2 (S.D.N.Y. Dec. 5, 2017) (alteration in original) (quoting Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 88 (2d Cir. 2013)), appeal docketed, No. 18-80 (2d Cir. Jan. 10, 2018). A plaintiff "is not entitled to recover cumulative damages for unpaid wages under both federal and state law." Llolla v. Karen Gardens Apartment Corp., No. 12-CV-1356 (MKB)(JO), 2014 WL 1310311, at *11 (E.D.N.Y. Mar. 10, 2014), adopted in relevant part by 2014 WL 1311773 (E.D.N.Y. Mar. 28, 2014). Instead, a plaintiff "may recover under the statute which provides the greatest amount of damages." Jiao v. Chen, No. 03 Civ. 0165(DF), 2007 WL 4944767, at *17 (S.D.N.Y. Mar. 30, 2007). In this case, Elghourab is seeking recovery under the NYLL because it affords him the greatest relief. Thus, I need only calculate plaintiff's damages under the NYLL. See Jiao, 2007 WL 4944767, at *17.
Under the NYLL, "[i]f an employer fails to pay an employee an hourly rate of pay, the employee's regular hourly rate of pay shall be calculated by dividing the employee's total weekly earnings . . . by the lesser of 40 hours or the actual number of hours worked by that employee during the work week." 12 N.Y.C.R.R. § 146-3.5(b); see also Martinez, 2017 WL 6335908, at *4 (S.D.N.Y. Dec. 5, 2017); Romero v. Rung Charoen Sub, Inc., No. 16 Civ. 1239 (VMS), 2017 WL 4480758, at *10 (E.D.N.Y. Sept. 30, 2017). Accordingly, plaintiff correctly calculated his regular rate of pay based on a 40-hour work week, not the actual number of hours he worked. See Pl.'s Damages Calculation. Using the NYLL's hourly rate and six-year statute of limitations period (see N.Y. Lab. Law §§ 198(3), 663(3)), plaintiff is owed overtime compensation in the amount of $420,248.36.
Under the FLSA, a plaintiff is presumptively entitled to "liquidated damages equal in amount to actual damages," unless "the employer shows that, despite its failure to pay appropriate wages, it acted in subjective `good faith' with objectively `reasonable grounds' for believing that its acts or omissions did not violate the FLSA." Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 150 (2d Cir. 2008) (quoting 29 U.S.C. § 260). "`Good faith' in this context requires more than ignorance of the prevailing law or uncertainty about its development. It requires that an employer first take active steps to ascertain the dictates of the FLSA, and then move to comply with them." Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 71 (2d Cir. 1997). As a result, the employer's "burden is a difficult one, with double damages being the norm and single damages the exception." Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999). Similarly to the FLSA, the NYLL allows plaintiffs to recover "liquidated damages equal to one hundred percent of the total . . . underpayments found to be due" "unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law." N.Y. Lab. Law § 663(1). Although this text "is not identical to that of the FLSA . . ., courts have not substantively distinguished the federal standard from the current state standard of good faith." Inclan v. N.Y. Hosp. Grp., Inc., 95 F.Supp.3d 490, 505 (S.D.N.Y. 2015).
Here, defendants have failed to demonstrate that their failure to pay plaintiff overtime wages was in good faith or that they took any "active steps" to comply with the law. Plaintiff was labeled as an exempt executive not based on his actual duties and responsibilities but because it was industry custom. See Miller Testimony at 289:7-24, 292:3-293:4, 294:8-294:20; see also Pl.'s Trial Br. 19, 54; Def.'s Reply 19, ECF No. 66. Ms. Berrones admitted that she has not done any research or taken any classes on the FLSA or the NYLL, and that she never analyzed whether Elghourab's position was exempt or not. See Berrones Testimony at 18:21-19:14. As the trial testimony makes clear, if defendant had taken the time to evaluate whether plaintiff was exempt under federal or state wage laws, it would have determined he was not. Accordingly, plaintiff is entitled to $420,248.36 in liquidated damages.
The NYLL also imposes certain notice requirements on employers. One such requirement is that each employer "provide his or her employees . . ., at the time of hiring, a notice containing" certain information, including the employee's "rate or rates of pay and basis thereof." N.Y. Lab. Law § 195(1)(a). On and after February 27, 2015, the NYLL entitles a plaintiff to $50 for each workday that a wage-notice violation occurs, not to exceed $5,000. See id. § 198(1-b); see also Chen v. New Fresco Tortillas Taco LLC, No. 15 Civ. 2158 (RA)(AJP), 2015 WL 5710320, at *8 (S.D.N.Y. Sept. 25, 2015). In this case, it is uncontested that defendant never provided plaintiff with a wage notice. As I noted in my opinion denying defendant's motion for summary judgment, plaintiff's wage-notice-violation claim turns on his exempt status. See Elghourab v. Vista JFK, LLC, No. 17-cv-911 (ARR) (ST), 2018 WL 6182491, at *10 (E.D.N.Y. Nov. 27, 2018). Because I determine that plaintiff is nonexempt, he is entitled to the statutory maximum of $5,000 for defendant's failure to provide wage notices.
The NYLL, unlike the FLSA, permits the award of both liquidated damages and prejudgment interest. Khurana v. JMP USA, Inc., No. 14-CV-4448 (SIL), 2017 WL 1251102, at *17 (E.D.N.Y. Apr. 5, 2017); Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 48 (E.D.N.Y. 2015). Under New York law, a prevailing employee is entitled to prejudgment interest at a rate of 9% per year for a NYLL claim. See N.Y. C.P.L.R. 5001, 5004. While courts have discretion in determining a reasonable date from which to award prejudgment interest, "[a] single reasonable intermediate date is the median date between the earliest and latest each Plaintiffs' NYLL claim accrued." Hernandez v. NJK Contractors, Inc., No. 09-CV-4812 (RER), 2015 WL 1966355, at *51 (E.D.N.Y. May 1, 2015); see also Khurana, 2017 WL 1251102, at *17; Coulibaly v. Millennium Super Car Wash, Inc., No. 12-CV-4760 (CBA)(CLP), 2013 WL 6021668, at *15 (E.D.N.Y. Nov. 13, 2013). Accordingly, I award plaintiff prejudgment interest of 9% per year from a midpoint date of March 10, 2014 until judgment is entered. Plaintiff is also awarded post-judgment interest at the statutory rate prescribed by 28 U.S.C. § 1961. See Coulibaly, 2013 WL 6021668, at *16.
As set forth in this opinion, I find that plaintiff does not fall under the executive exemption and that defendant is therefore liable for violations of the FLSA and the NYLL. Plaintiff is entitled to the following relief: (1) $420,248.36 in unpaid overtime compensation; (2) $420,248.36 in liquidated damages; (3) $5,000 in statutory wage notice damages; and (4) preand post-judgment interest. Plaintiff is also entitled to a 15% increase in the damages owed to him "if any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later." N.Y. Lab. Law §§ 198(4), 663(4); see also Martinez, 2017 WL 6335908, at *6. Under the FLSA and the NYLL, a prevailing plaintiff is entitled to reasonable attorneys' fees and costs. See 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1). Accordingly, plaintiff's request to make a motion for attorneys' fees, costs, and disbursements is granted. This motion is respectfully referred to Magistrate Judge Tiscione.
SO ORDERED.
