ANALISA TORRES, District Judge:
In this action, Plaintiffs, current and former employees of the restaurant known as Fresco by Scotto, allege that Defendants, Starjem Restaurant Corp. (d/b/a Fresco by Scotto), Marion Scotto, and Anthony Scotto, violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law ("NYLL"), §§ 190 and 650 et seq. In particular, Plaintiffs allege that Defendants: (1) improperly took a tip credit against Plaintiffs' wages; (2) failed to pay Plaintiffs for all hours worked; (3) failed to provide Plaintiffs written notices and wage statements compliant with NYLL § 195; (4) wrongly required Plaintiffs to cover the costs of uniforms and crumbers; and (5) failed to pay Plaintiffs the "spread of hours" premium mandated by the New York Commissioner of Labor's Minimum Wage Order, codified at N.Y. Comp.Codes R. & Regs. tit. 12, § 146-1.6.
The Court held a bench trial from December 8 to 16, 2014, to determine Defendants' liability,
At trial, Plaintiffs called Pablo Alvarado, Jose Amezquita, Miguel Caravantes, Angel Cedeño, Nahun Flores, Pablo Francisco Lopez, Vicente Leon, Francisco Lugo, Luis Roballo, Alfredo Rodriguez, Enrique Salinas, Christian Urgiles, and Valentin Xochipiltecatl (i.e., the 13 Plaintiffs) as witnesses. Defendants called Natasha Gelman, Anthony Scotto, Marion Scotto, and Attilio Vosilla. Defendants also submitted excerpts from the deposition of Brent Drill. Plaintiffs adduced counter-designations from the deposition.
The Court finds the lion's share of Plaintiffs' testimony credible. This determination is based on the substance of Plaintiffs' testimony and their demeanor at trial. Although there were some inconsistencies in Plaintiffs' testimony, the Court considers them to be honest errors, not intentional lies. The Court also finds the testimony of Marion Scotto and, for the most part, that of Gelman credible. By contrast, the Court finds Anthony Scotto's and Vosilla's testimony less than credible. This determination is likewise based on the substance of their testimony and their demeanor. Anthony Scotto was a flippant, evasive, and combative witness. See, e.g., Tr. 516:19-517:5 ("Q. Were those answers [given at your deposition] correct and truthful? A. Yes, sir. Q. So, your mother had been present at some interviews? A. Possibly I was taking things a little bit more lackadaisical on this conversation with you, sir. Q. Referring to the conversation at the deposition? A. Yes, sir. I think I was ... just being a little silly with you, sir. Q. Okay. And you were under oath at that time, correct? A. Still possibly being silly, sir."); Tr. 536:7-9 ("Q. Friday we also discussed the Fresco employee policy guide. Do you recall that? A. Sorry, sir. Everything is a blur these days."); Tr. 579:8-13 ("Q. Other than your affidavit, is Mr. Vosilla described in any documents as a maitre d' or service manager? A. I don't know. Q. At your deposition d[id] you ever refer to him as maitre d'? A. Sir, if I wasn't getting sued would you really care what his title was?"). Vosilla was uncommonly reticent and appeared reluctant
"In an action tried on the facts without a jury ... the court must find the facts specially and state its conclusions of law separately." Fed.R.Civ.P. 52(a)(1). Following are the Court's findings of fact and conclusions of law.
Fresco by Scotto ("Fresco" or the "Restaurant") is an Italian restaurant located in the Midtown East neighborhood of Manhattan. The Restaurant is owned and operated by Starjem Restaurant Corp. ("Starjem"). Tr. 511:12-14.
Alvarado was employed at Fresco from October 8, 1998 until November 13, 2012. Joint Stipulation of Fact ("Jt. Stip.") ¶ 10, Nov. 11, 2014, ECF No. 56. He worked as a runner. Id.
Amezquita worked at Fresco from January 1, 2012 until August 27, 2013. Id. ¶ 6. Over the course of his employment, Amezquita worked in the following positions: (1) busser; (2) barback; (3) coffee preparer; and (4) stocker. Tr. 429:25-430:7; Amezquita Decl. ¶ 9, Pl. Ex. 114.
Caravantes worked at Fresco from September 21, 1999 until February 21, 2013. Jt. Stip. ¶ 8. Over the course of his employment, Caravantes worked in the following positions: (1) busser; (2) barback; (3) coffee preparer; (4) stocker; and (5) runner. Tr. 410:9-22, 417:14-15; Caravantes Decl. ¶ 9, Pl. Ex. 113.
Cedeño began working at Fresco on March 1, 2011. Jt. Stip. ¶ 3. At the time of trial, Cedeño was still employed there. Id. Over the course of his employment, Cedeño has worked in the following positions: (1) busser; (2) barback; (3) coffee helper; and (4) stocker. Tr. 391:13-392:14; Cedeño Decl. ¶ 10, Pl. Ex. 112.
Flores worked at Fresco from May 1, 1998 until May 1, 2013. Jt. Stip. ¶ 9. Over the course of his employment, Flores worked in the following positions: (1) busser; (2) barback; (3) coffee preparer; (4) stocker; and (5) runner. Id.; Tr. 362:5-363:4; Flores Decl. ¶ 10, Pl. Ex. 111. During his last ten years at Fresco, Flores spent approximately 90 percent of his shifts in the coffee preparer position. Tr. 362:5-17.
Francisco Lopez worked at Fresco from November 1, 2007 until January 15, 2012. Jt. Stip. ¶ 11. Over the course of his employment, Francisco Lopez worked in the following positions: (1) busser; (2) barback; (3) coffee preparer; and (4) stocker. Tr. 279:2-6; Francisco Lopez Decl. ¶ 11, Pl. Ex. 108.
Leon began working at Fresco on January 1, 1999. Jt. Stip. ¶ 13. At the time of trial, Leon was still employed there. Id. Over the course of his employment, Leon has worked in the following positions: (1) busser; (2) barback; (3) coffee helper; (4) coffee preparer; (5) stocker; and (6) runner. Id.; Tr. 478:2-14, 482:23-24, 492:23-24; Leon Decl. ¶¶ 9-11, Pl. Ex. 116.
Lugo worked at Fresco from November 1, 2011 until February 7, 2014. Jt. Stip. 5. Over the course of his employment, Lugo worked in the following positions: (1) busser; (2) barback; (3) coffee helper; and (4) stocker. Tr. 460:10-24, 464:8-9; Lugo Decl. ¶ 10, Pl. Ex. 115.
Roballo worked at Fresco from December 1, 2009 until April 4, 2013. Jt. Stip. ¶ 7. Over the course of his employment, Roballo worked in the following positions: (1) busser; (2) barback; (3) coffee preparer; and (4) stocker. Id.; Tr. 333:25-334:10, 353:11-15; Roballo Decl. ¶ 11, Pl. Ex. 110.
Rodriguez began working at Fresco on March 1, 2011. Jt. Stip. ¶ 2. At the time of trial, Rodriguez was still employed there. Id. Over the course of his employment, Rodriguez has worked in the following positions: (1) busser; (2) barback; and (3) stocker. Tr. 312:7-20; Rodriguez Decl. ¶ 10, Pl. Ex. 109.
Salinas worked at Fresco from January 1, 2006 until April 26, 2013. Jt. Stip. ¶ 1. Over the course of his employment, Salinas worked in the following positions: (1) busser; (2) barback; (3) coffee preparer; (4) coffee helper; and (5) Stocker. Tr. 11:6-8, 48:7-9, 55:15-19, 70:9-20; Jt. Stip. ¶ 1; Salinas Decl. ¶¶ 10-11, Pl. Ex. 104. Salinas spent 75 to 90 percent of his shifts in the stocker position. Tr. 70:9-20.
Urgiles worked at Fresco from January 1, 2006 until April 23, 2013. Jt. Stip. ¶ 4. Over the course of his employment, Urgiles worked in the following positions: (1) busser; (2) barback; (3) coffee preparer; and (4) Stocker. Tr. 137:21-23, 179:12-15, 189:4-6; Urgiles Decl. ¶ 10, Pl. Ex. 105.
Xochipiltecatl worked at Fresco from June 17, 2009 until November 3, 2010. Jt. Stip. ¶ 12. Over the course of his employment, Xochipiltecatl worked in the following positions: (1) busser; and (2) Stocker. Tr. 261:6-8; Xochipiltecatl Decl. ¶ 10, Pl. Ex. 107.
Anthony Scotto is the general manager of Fresco. Tr. 511:8-11. He is also a shareholder and the secretary-treasurer of Starjem. Tr. 511:12-512:5; A. Scotto Aff. ¶ 3, Def. Ex. K. He is usually at the Restaurant every day that it is open. A. Scotto Aff. ¶ 4. On weekdays, he is there from 8:30 a.m. until 10:00 p.m. Id. On Saturdays, he is there for a short period at around 7:00 a.m., and again from 2:00 p.m. until 9:00 p.m. Tr. 512:12-18; A. Scotto Aff. ¶ 4. During the summer, he is often not at the Restaurant on Saturdays. Tr. 514:17-25. As general manager, Anthony Scotto is responsible for managing the business and running the day-to-day operations. A. Scotto Aff. ¶ 3. In particular, he is involved in: (1) hiring employees; (2) disciplining employees; (3) firing employees; (4) scheduling employees for shifts; (5) determining employee compensation; and (6) maintaining employment records. Tr. 236:10-23, 390:17-19, 409:19-410:8, 429:14-17; A. Scotto Aff. ¶¶ 4-5, 10, 13, 17-18; A. Scotto Supp. Decl. ¶ 12, Def. Ex. L.
Marion Scotto is the chief executive officer, president, and majority shareholder of Starjem. Tr. 511:24-512:2, 681:19-682:2, 682:14-16; M. Scotto Aff. ¶ 4, Def. Ex. O. She is typically at the Restaurant every day that it is open. Tr. 685:8-12; M. Scotto Aff. ¶ 11. On weekdays, she is there from 12:00 p.m. until 8:00 p.m. or 8:30 p.m. M. Scotto Aff. ¶ 11. Marion Scotto's main duties include: (1) greeting customers when they arrive at the Restaurant; (2) helping the host seat customers; (3) checking on customers throughout their meal; and (4) making arrangements for private parties. Tr. 524:5-10, 685:15-19; M. Scotto Aff. ¶¶ 7-8, 12. In performing these duties, Marion Scotto may tell a
Vosilla has worked as a manager at Fresco since 1999. Tr. 663:24-665:6; Pl. Ex. 74 at 7996 ("Fresco Policy Document" dated October 2007 identifying Vosilla as a "restaurant manager"). His job duties have remained largely the same since the beginning of his employment. Tr. 665:2-6, 676:22-24, 679:24-680:7.
Drill worked at Fresco from April 2002, Drill Dep. 12:25-13:4, Jan. 6, 2014, until July 25, 2014, A. Scotto Aff. ¶ 37. He was hired to work as a waiter, but was promoted to the position of "floor captain" after less than a year. Drill Dep. 14:16-15:4. By October 2007, Drill had become a manager. Pl. Ex. 74 at 7996 ("Fresco Policy Document" dated October 2007 identifying Drill as a "restaurant manager").
At Fresco, bussers' main duties include: (1) pouring water for customers; (2) bringing bread to tables; and (3) clearing and resetting tables. Alvarado Decl. ¶ 7; Amezquita Decl. ¶¶ 7, 19; Caravantes Decl. ¶¶ 8, 19; Cedeño Decl. ¶¶ 8, 22; Flores Decl. ¶¶ 8, 22; Francisco Lopez Decl. ¶¶ 9, 22; Leon Decl. ¶¶ 7, 21; Lugo Decl. ¶¶ 8, 22; Roballo Decl. ¶¶ 9, 22; Rodriguez Decl. ¶¶ 18, 22; Salinas Decl. ¶¶ 8, 22; Urgiles Decl. ¶¶ 8, 22; Xochipiltecatl Decl. ¶¶ 8, 20; A. Scotto Aff. ¶ 6. At the beginning of a shift, before the Restaurant opens, bussers perform "side work," which includes: (1) folding napkins; (2) placing glasses at their proper stations; (3) filling and bringing ice buckets to their proper stations; (4) cleaning and polishing bread baskets, candleholders, pans, sugar bowls, coffee trays, and milk trays; (5) cleaning mirrors, coffee pots, tea pots, and water pitchers; and (6) sweeping the floor. Amezquita Decl. ¶ 21; Caravantes Decl. ¶ 21; Cedeño Decl. ¶ 24; Flores Decl. ¶ 25; Francisco Lopez Decl. ¶ 24; Leon Decl. ¶ 24; Lugo Decl. ¶ 24; Roballo Decl. ¶ 25; Rodriguez Decl. ¶ 24; Salinas Decl. ¶ 24; Urgiles Decl. ¶ 24; Xochipiltecatl Decl. ¶ 22. This beginning-of-shift side work takes approximately 30 minutes to complete. Tr. 292:9-11, 295:17-296:3, 416:20-25, 460:25-461:16, 462:2-9; Amezquita Decl. ¶ 21; Caravantes Decl. ¶ 21; Cedeño Decl. ¶ 24; Flores Decl. ¶ 25; Francisco Lopez Decl. ¶ 24; Leon Decl. ¶ 24; Lugo Decl. ¶ 24; Roballo Decl. ¶ 25; Rodriguez Decl. ¶ 24; Salinas Decl. ¶ 24; Urgiles Decl. ¶ 24; Xochipiltecatl Decl. ¶ 22. Bussers also perform side work at the end of their shifts, which includes: (1) cleaning the busser stations, the area of the kitchen where bread is made, and the Restaurant's walls; (2) dumping ice buckets at the busser stations; (3) bringing boxes of water to the bar; (4) sweeping the floor; (5) collecting
Runners' primary duty is to bring food from the kitchen to customers in the dining area. Alvarado Decl. ¶ 9; Caravantes Decl. ¶ 23; A. Scotto Aff. ¶ 7. At the beginning of their shifts, before the Restaurant opens, runners perform side work, which includes: (1) weighing pasta; (2) plucking basil leaves; (3) cutting lemons; (4) preparing artichokes for calamari; (5) setting up plates with artichokes and penne gratin; (6) cleaning dishes, containers, and bread baskets; (7) separating doilies to put on plates; (8) folding napkins; and (9) cutting linens to use for polishing dishes, silverware, and glasses. Alvarado Decl. ¶ 13; Caravantes Decl. ¶ 24. This beginning-of-shift side work takes approximately 15 to 20 minutes to complete. Alvarado Decl. ¶ 13. Runners also perform side work at the end of the lunch shift, which includes: (1) "turning in" plates from the dishwasher station; and (2) preparing artichokes for penne gratin. Id. ¶ 15. This end-of-shift side work takes approximately five to 10 minutes to complete. Id. In addition, runners routinely perform the following tasks throughout their shifts: (1) cleaning the Restaurant's walls and doors; (2) cutting rags for polishing silverware; and (3) making cookies. Alvarado Decl. ¶ 11; Caravantes Decl. ¶ 24. These tasks take approximately 30 to 60 minutes to complete. Alvarado Decl. ¶ 11.
Barbacks' duties include: (1) clearing and resetting tables in the bar area; (2) bringing ice, boxes of water, boxes of liquor, silverware, and glasses to the bar; (3) preparing non-alcoholic drinks (i.e., soda and water); (4) serving house wine; (5) washing glasses; (6) cleaning bottles, mirrors, windows, and the bar area; and (7) sweeping the sidewalk in front of the Restaurant. Tr. 55:15-56:4, 146:23-152:13,
Stockers' main duties include: (1) cleaning, polishing, and drying glasses, dishes, and silverware; (2) bringing these items from the kitchen to the stocking stations; (3) cleaning the stocker stations; (4) laying down small carpets; (5) cutting rags for polishing glasses, dishes, and silverware; and (6) sweeping the sidewalk in front of the Restaurant. Alvarado Decl. ¶ 24; Amezquita Decl. ¶¶ 13-14; Caravantes Decl. ¶¶ 14-15; Cedeño Decl. ¶¶ 14-16; Flores Decl. ¶¶ 15-16; Francisco Lopez Decl. ¶¶ 16-17; Leon Decl. ¶¶ 14-15; Lugo Decl. ¶¶ 15-16; Roballo Decl. ¶¶ 16-17; Rodriguez Decl. ¶¶ 15-16; Salinas Decl. ¶¶ 15-16; Urgiles Decl. ¶¶ 15-16; Xochipiltecatl Decl. ¶¶ 14-15; see also Tr. 612:10-14, 670:3-7. At times, Stockers are also required to wash dishes. Amezquita Decl. ¶ 15; Cedeño Decl. ¶ 17; Flores Decl. ¶ 17; Francisco Lopez Decl. ¶ 18; Leon Decl. ¶ 16; Lugo Decl. ¶ 17; Roballo Decl. ¶ 18; Rodriguez Decl. ¶ 17; Salinas Decl. ¶ 17; Urgiles Decl. ¶ 17; Xochipiltecatl Decl. ¶ 16. In addition, Stockers are sporadically ordered by the chef to "run" food to customers (i.e., to carry food from the kitchen to tables). Tr. 23:9-19, 33:5-34:11, 315:21-23, 335:11-19, 414:2-415:13; Amezquita Decl. ¶ 17; Caravantes Decl. ¶ 16; Cedeño Decl. ¶ 18; Flores Decl. ¶ 19; Francisco Lopez Decl. ¶ 19; Leon Decl. ¶ 18; Lugo Decl. ¶ 19; Roballo Decl. ¶ 19; Rodriguez Decl. ¶ 19; Salinas Decl. ¶¶ 18-19; Urgiles Decl. ¶ 19; Xochipiltecatl Decl. ¶ 17. However, when this occurs during a shift, stockers spend no more than approximately five to 15 minutes running food. Tr. 116:16-117:5, 335:15-19, 415:14-22; Amezquita Decl. ¶ 17; Caravantes Decl. ¶ 16; Cedeño Decl. ¶ 18; Flores Decl. ¶ 19; Francisco Lopez Decl. ¶ 19; Leon Decl. ¶ 18; Lugo Decl. ¶ 19; Roballo Decl. ¶ 19; Rodriguez Decl. ¶ 19; Salinas Decl. ¶ 19.
The coffee preparer's primary duty is to make coffee and tea. Alvarado Decl. ¶ 29;
Prior to June 26, 2011, Fresco used a "shift pay concept" under which Plaintiffs were compensated for "a set number of hours depending on whether they worked a lunch or dinner shift." A. Scotto Aff.
In the absence of records detailing their exact hours, Plaintiffs provided estimates of the length of their shifts. Plaintiffs asserted that prior to June 26, 2011, a busser's: (1) lunch shift typically lasted five and a half hours, Tr. 57:10-59:4, 64:8-21, 130:21-131:4; Caravantes Decl. ¶ 30; Cedeño Decl. ¶ 30; Flores Decl. ¶ 35; Francisco Lopez Decl. ¶ 32; Leon Decl. ¶ 34; Roballo Decl. ¶ 33; Rodriguez Decl. ¶ 32; Salinas Decl. ¶ 31; Urgiles Decl. ¶ 31; Xochipiltecatl Decl. ¶ 28; (2) weekday dinner shift typically lasted seven and a half hours, Caravantes Decl. ¶ 31; Flores Decl. ¶ 36; Francisco Lopez Decl. ¶ 33; Leon Decl. ¶ 33; Roballo Decl. ¶ 34; Rodriguez Decl. ¶ 33; Salinas Decl. ¶ 32; Urgiles Decl. ¶ 32; Xochipiltecatl Decl. ¶ 29; and (3) Saturday dinner shift typically lasted eight and a half hours, Roballo Decl. ¶ 35; Rodriguez Decl. ¶ 34; Salinas Decl. ¶ 33; Urgiles Decl. ¶ 34. Alvarado, the only Plaintiff who regularly worked as a runner prior to June 26, 2011, estimated that his lunch shift typically lasted four and a half or four and three quarters hours and his dinner shift typically lasted six and a half hours. Tr. 228:15-232:16; Alvarado Decl. ¶¶ 31-32.
Defendants contend that Plaintiffs' estimates should not be credited because they exceed the average length of shifts after June 26, 2011 (i.e., when Fresco implemented a time clock system, see infra Section II.D.2). Plaintiffs, by contrast, claim that the average length of shifts decreased markedly after this date. See Tr. 59:2-71:5, 130:21-137:20, 232:6-24, 254:6-14, 254:24-255:11, 296:9-297:3, 346:15-348:1, 360:22-361:15, 486:11-487:25. The Court credits Plaintiffs and finds that the hours that Plaintiffs worked after June 26, 2011 are not coextensive with the hours that Plaintiffs worked prior to June 26, 2011. Moreover, Plaintiffs' estimates regarding the lunch shift are consistent with the number of hours for which bussers and runners were compensated prior to June 26, 2011. See infra Section II.E.3.a. And Plaintiffs' estimates regarding the dinner shift are consistent with the Restaurant's hours of operation. See, e.g., Vosilla Aff. ¶ 6 (noting that Fresco's "kitchen closes by 11 PM and the guests are usually gone by that time"). Defendants have thus failed to "negative the reasonableness" of Plaintiffs' estimates. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946); see also infra Section III.C. Accordingly, the Court accepts Plaintiffs' estimates for the purpose of determining the amount of uncompensated work, if any, that Plaintiffs performed prior to June 26, 2011.
On June 26, 2011, the Restaurant implemented a punch-in-punch-out time clock system.
In addition, Leon, Roballo, and Urgiles claim that the punch reports do not show all of the hours that they worked because they were directed by Drill to not punch in for several shifts. Tr. 161:25-164:3; Leon Decl. ¶ 43; Roballo Decl. ¶ 44; Urgiles Decl. ¶ 45. Fresco's records support these claims. For example, the "Busboy Calculation Sheet" for the week ending December 29, 2012 notes that Urgiles received $181 in tips for a dinner shift on December 24, 2012. Pl. Ex. 77 at 9009. Urgiles' punch report, however, does not indicate that he punched in or out on that date. Pl. Ex. 24 at 1781. The Court, therefore, credits Leon, Roballo, and Urgiles' testimony that they worked hours beyond those recorded in the time clock system.
Fresco serves a "family meal" for employees during both the lunch and dinner shift. Jt. Stip. ¶ 15. This has been the Restaurant's practice before and after June 26, 2011. The family meal is scheduled at fixed times — from 10:30 a.m. until 11:00 a.m. for the lunch shift and from 4:30 p.m. until 5:00 p.m. for the dinner shift. Id. No work is performed during family meals, Tr. 87:12-22, 223:16-224:6, 462:13-17; A. Scotto Decl. ¶ 42; Vosilla Decl. ¶ 11, and employees are permitted to leave the Restaurant if they choose, Tr. 87:23-24, 224:7-227:1; A. Scotto Decl. ¶ 44; Vosilla Decl. ¶ 11.
From May 2007 until July 24, 2009, Plaintiffs then-employed at Fresco were generally
Plaintiffs were also compensated in tips. Specifically, Plaintiffs participated in the Restaurant's "tip pool," whereby tips received from customers during a shift are distributed amongst the bussers, barbacks, Stockers, the coffee preparer, runners, waiters, and the floor captain pursuant to a point-based system. Alvarado Decl. ¶¶ 51-52; Amezquita Decl. ¶¶ 42-43; Caravantes Decl. ¶¶ 53-54; Cedeño Decl. ¶¶ 47-48; Flores Decl. ¶¶ 53-54; Francisco Lopez Decl. ¶¶ 51-52; Leon Decl. ¶¶ 54-55; Lugo Decl. ¶¶ 49-50; Roballo Decl. ¶¶ 50-51; Rodriguez Decl. ¶¶ 50-51; Salinas Decl. ¶¶ 54-55; Urgiles Decl. ¶¶ 54-55; Xochipiltecatl Decl. ¶¶ 45-46. The tip pool participants are assigned the following points: (1) 0.5 points for bussers, barbacks, and stockers; (2) 0.6 points for the coffee preparer; (3) 0.75 points for runners; (4) 1.0 point for waiters; and (5) 0.5 or 1.5 points for the floor captain. Tr. 387:11-22; A. Scotto Aff. ¶ 8; Pl. Ex. 79 ("Tip Out Work Sheets"). Drill participated in the tip pool until December 31, 2012. Jt. Stip. ¶ 17. Vosilla never participated. A. Scotto Aff. ¶ 33. However, prior to June 2011, Vosilla did receive 15 percent of the 20 percent service charge imposed on private parties (i.e., three percent of the bill), Jt. Stip. ¶ 16, when he served as a party captain. Tr. 670:19-24; Vosilla Aff. ¶ 32-33; A. Scotto Decl. ¶ 34. The remaining 85 percent of the service charge (i.e., 17 percent of the bill) went into the tip pool. Jt. Stip. ¶ 16. Since June 2011, Fresco has imposed a 17 percent charge for gratuity and a three percent "administration fee" on private parties. Vosilla Aff. ¶ 31; see also A. Scotto Aff. Ex. 1-J (private party receipt indicating a "SUBTOTAL" of $2,898.00, an "Admin" fee of $85.89, and a "GRATUITY" of $486.71). The 17 percent charge goes into the tip pool, whereas the administration fee goes to the party captain. Tr. 670:25-671:4; Vosilla Aff. ¶ 31; see also M. Scotto Aff. Ex. 3-A (Fresco private party confirmation forms stating, inter alia, that: (1) "17% of the food and beverage cost will be added to your account as a gratuity and will be fully distributed to the members of the service staff"; (2) "3% of the food and beverage cost will be added to your account as a[n] administration fee used to offset costs associated with the administration of the party"; and (3) "[t]his 3% is not a gratuity and will not be distributed to members of the service staff"). Vosilla receives the three percent administration fee when he serves as a party captain. Vosilla Aff. ¶ 33; A. Scotto Aff. ¶ 34.
From January 2007 until November 8, 2008, the Restaurant paid bussers and runners for five and a half hours of work for lunch shifts and seven hours of work for dinner shifts. Gelman Aff. ¶ 33, Def. Ex. M; Pl. Ex. 76 at 1293-1326 (ADP "Payroll
However, the Restaurant did not always adhere to this compensation scheme. In particular, the Restaurant never compensated bussers and runners for more than 40 hours of work in a given week. For example, during the week ending May 3, 2008, Caravantes worked four lunch shifts and four dinner shifts, Flores worked two lunch shifts and six dinner shifts, Francisco Lopez worked three lunch shifts and four dinner shifts, and Salinas worked four lunch shifts and three dinner shifts. Pl. Ex. 77 at 903 ("Busboy Calculation Sheet" for week ending May 3, 2008). In accordance with Fresco's compensation scheme, Caravantes, Flores, Francisco Lopez, and Salinas should have been paid for 50, 53, 44.5, and 43 hours of work, respectively. Instead, they were each paid for 40 hours of work. Pl. Ex. 76 at 894-902 (ADP "Payroll Worksheet" for week ending May 3, 2008). Likewise, during the week ending December 13, 2008, Salinas worked five lunch shifts and six dinner shifts. Pl. Ex. 77 at 2399 ("Busboy Calculation Sheet" for week ending December 13, 2008). Thus, he should have been paid for 61 hours of work. Instead, he was paid for 40 hours of work. Pl. Ex. 76 at 2385-97 (ADP "Payroll Worksheet" for week ending December 13, 2008). During the week ending October 2, 2010, Flores worked three lunch shifts and six dinner shifts, and Roballo worked four lunch shifts and five dinner shifts. Pl. Ex. 77 at 3834 ("Busboy Calculation Sheet" for week ending October 2, 2010). Therefore, they should have each been paid for 45 hours of work. Instead, they were paid for 40 hours of work. Pl. Ex. 76 at 3822-33 (ADP "Payroll Worksheet" for week ending October 2, 2010). During the week ending February 12, 2011, Caravantes worked five lunch shifts and five dinner shifts. Pl. Ex. 77 at 5178 ("Busboy Calculation Sheet" for week ending February 12, 2011). Under Fresco's compensation scheme, he should have been paid for 55 hours of work. Instead, he was paid for 40 hours of work. Pl. Ex. 76 at 5163-76 (ADP "Payroll Worksheet" for week ending February 12, 2011). At trial, Natasha Gelman, Fresco's bookkeeper, testified that the Restaurant did not always adhere to its purported compensation scheme because Anthony Scotto instructed Gelman to pay bussers and runners for 40 hours of work even when they worked eight or more shifts in a week. Tr. 657:2-11, 659:23-660:18.
Since June 27, 2011, Fresco has paid bussers and runners based on the hours recorded in the time clock system. Specifically, the Restaurant compensates employees each week for the total amount of time listed on the weekly payroll report. Tr. 658:2-659:18. Like the punch reports, the weekly payroll reports accurately reflect employees' "in" and "out" times, but, as of the dinner shift on July 1, 2011, undercount the length of employees' shifts by approximately 19 minutes. See generally Pl. Ex. 78 (weekly payroll reports). On occasion, the Restaurant has also paid bussers and runners for shifts worked without punching in — namely, where the "Busboy Calculation Sheet" notes that an employee received tips for a shift but neither the punch report nor weekly payroll report shows any recorded time. Tr. 661:24-662:9; see also Gelman Aff. ¶¶ 13, 17-19. For example, Urgiles' punch report and the weekly payroll report for the week ending December 29, 2012 indicate that Urgiles only worked a 4.37-hour lunch shift on December 28, 2012. Pl. Ex. 24 at 1781; Pl. Ex. 78 at 9043. The "Busboy Calculation Sheet" for that week, however, notes that Urgiles received $181 in tips for a dinner shift on December 24, 2012. Pl. Ex. 77 at 9009. And, as reflected on the "Payroll Worksheet," the dinner shift was taken into account because Fresco paid Urgiles for 12.54 hours of work for the week. Pl. Ex. 76 at 9004 (ADP "Payroll Worksheet" for week ending December 29, 2012).
Anthony Scotto claims in his trial affidavit that he "meet[s] with all new hires to explain how much and how often they will be paid by the [R]estaurant" and that, in doing so, he "explain[s] how the tipped minimum wage rate works, i.e., that they will be paid additional makeup pay if they do not earn enough tips." A. Scotto Aff. ¶ 9. With the exception of Amezquita,
Adjacent to a stairwell in the kitchen, Fresco displays government posters that include information in small print about "employee rights, payroll, hourly wages, sick pay, [and] sick day[s]." Tr. 625:7-25; see also Pl. Ex. ¶ 9 (photographs of government posters).
Since March 2011, the Restaurant "has provided food runners and bussers written notice of the hourly and overtime pay rates applicable to tipped food service employees at least once a year and/or at the time of hire." Jt. Stip. ¶ 14; see also Pl. Exs. 30, 32, 38, 40, 44, 46, 50, 54, 58, 61, 65, 68 ("For food service workers, the tip credit taken will be $2.25 per hour. Accordingly, you will be paid a tipped minimum wage of $5.00 per hour, and an overtime rate of $8.63."). These notices "explain that food service workers who do not receive sufficient tips to make up the difference between the tipped and full minimum wage and overtime hourly rates will be paid additional wages to make up the difference." Jt. Stip. ¶ 14; see also Pl. Exs. 30, 32, 38, 40, 44, 46, 50, 54, 58, 61, 65, 68 ("If you do not receive enough tips over the course of a week to bring you up to the minimum hourly rates of $7.25 for the first 40 hours and $10.875 per hour for hours over 40, you will be paid additional wages that week to make up the difference."). Fresco provided English-only notices until July 2012, when the Restaurant began issuing notices in both English and Spanish. Jt. Stip. ¶ 14; see also Pl. Exs. 30, 32, 38, 40, 44, 50, 54, 58, 61, 65, 68.
Since at least January 2007, the Restaurant has given bussers and runners a wage statement with each payment. Alvarado Decl. ¶ 102; Amezquita Decl. ¶ 93; Caravantes Decl. ¶ 96; Cedeño Decl. ¶ 93; Flores Decl. ¶ 109; Francisco Lopez Decl. ¶ 97; Lugo Decl. ¶ 101; Roballo Decl. ¶ 103; Rodriguez Decl. ¶ 106; Salinas Decl. ¶ 108; Urgiles Decl. ¶ 111; Xochipiltecatl Decl. ¶ 85; see also Pl. Exs. 82-87 (sample wage statements). The statement includes the following information: (1) the pay period date; (2) the employee's name; (3) the Restaurant's name and address; (4) the employee's pay rate; (5) the employee's hours worked; (6) the amount of tips the employee received; (7) deductions; and (8) the employee's gross and net wages. Pl. Exs. 82-87. It does not include any information about allowances claimed as part of the minimum wage. Id.; Alvarado Decl. ¶ 102; Amezquita Decl. ¶ 93; Caravantes Decl. ¶ 96; Cedeño Decl. ¶ 93; Flores Decl. ¶ 109; Francisco Lopez Decl. ¶ 97; Lugo Decl. ¶ 101; Roballo Decl. ¶ 103; Rodriguez Decl. ¶ 106; Salinas Decl. ¶ 108; Urgiles Decl. ¶ 111; Xochipiltecatl Decl. ¶ 85.
At Fresco, bussers and runners are required to wear particular clothing while at work. Specifically, they must wear a button-down shirt and tie in designated colors, black dress pants, black dress shoes, and a black belt. Tr. 110:24-111:3; Alvarado Decl. ¶ 91; Amezquita Decl. ¶ 84; Caravantes Decl. ¶ 87; Cedeño Decl. ¶ 84; Flores Decl. ¶ 98; Francisco Lopez Decl. ¶ 87; Leon Decl. ¶ 93; Lugo Decl. ¶ 93; Roballo Decl. ¶ 91; Rodriguez Decl. ¶ 95; Salinas Decl. ¶ 96; Urgiles Decl. ¶ 100; Xochipiltecatl Decl. ¶ 80. During their employment, Plaintiffs purchased the requisite shirts and ties directly from the Restaurant by paying Gelman in cash. Tr. 111:7-114:13, 243:6-11, 425:8-426:20; Alvarado Decl. ¶ 93; Amezquita Decl. ¶ 85; Caravantes Decl. ¶ 88; Cedeño Decl. ¶ 86; Flores Decl. ¶ 100; Francisco Lopez Decl. ¶ 89; Leon Decl. ¶ 95; Lugo Decl. ¶ 95; Roballo Decl. ¶ 93; Rodriguez Decl. ¶ 97; Salinas Decl. ¶ 98; Urgiles Decl. ¶ 102; Xochipiltecatl Decl. ¶ 81.
An individual may be held liable under the FLSA if she is an "employer," which the statute defines as "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). The Second Circuit has adopted an "economic reality" test to determine whether an individual meets this definition. Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir.2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1516, 188 L.Ed.2d 450 (2014). Under this test, courts consider "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Id. at 104-05 (internal quotation marks and citation omitted). "No one of the four factors standing alone is dispositive," however, and the "totality of the circumstances" must be considered. Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999). "[T]he overarching concern is whether the alleged employer possessed the power to control the workers in question, with an eye to the `economic reality' presented by the facts of each case." Id. (citation omitted). Thus, "[e]vidence that an individual is an owner or officer of a company, or otherwise makes corporate decisions that have nothing to do with an employee's function, is insufficient to demonstrate `employer' status." Irizarry, 722 F.3d at 109. "Instead, to be an `employer,' an individual defendant must possess control over a company's actual `operations' in a manner that relates to a plaintiff's employment." Id.
Here, there is no evidence that Marion Scotto: (1) has the power to hire and fire employees (although she may offer
The FLSA and the NYLL require an employer to pay its employees at least minimum wage. 29 U.S.C. § 206(a); N.Y. Lab. Law § 652(1).
An employer may not take a tip credit under the FLSA unless the employer has "inform[ed] the employee of the [statute's] tip credit provision." Copantitla, 788 F.Supp.2d at 287 (internal quotation marks and citation omitted); accord 29 U.S.C. § 203(m). This requirement is "strictly construed, and must be satisfied even if the employee received tips at least equivalent to the minimum wage." Chung v. New Silver Palace Rest., Inc., 246 F.Supp.2d 220, 229 (S.D.N.Y.2002). The employer "bear[s] the burden of showing that [it] satisfied the FLSA's notice requirement by, for example, providing [the] employee[] with a copy of § 203(m) and informing [the employee] that [her] tips will be used as a credit against the minimum
The regulations implementing the NYLL also impose notice requirements with respect to the tip credit. Under the current regulations, an employer may not take a tip credit unless the employer has given the employee written notice stating: (1) the amount of tip credit to be taken from the basic minimum hourly rate; and (2) that extra pay is required if tips are insufficient to bring the employee up to the basic minimum hourly rate. N.Y. Comp.Codes R. & Regs. tit. 12, § 146-2.2(a); see also id. § 146-1.3 ("An employer may take a credit towards the basic minimum hourly rate if [the tipped employee] receives enough tips and if the employee has been notified of the tip credit as required in section 146-2.2 of this Part."). The employer must provide the notice in English and "any other language spoken by the ... employee as his/her primary language." Id. § 146-2.2(a).
Prior to January 1, 2011, the written notice requirement of § 146-2.2 was not yet in effect. Nevertheless, an employer could not take a tip credit unless "certain preconditions [we]re met." Copantitla, 788 F.Supp.2d at 290 (internal quotation marks and citation omitted). Specifically, an employer was required to: (1) "furnish to [the] employee a statement with every payment of wages listing ... allowances... claimed as part of the minimum wage," N.Y. Comp.Codes R. & Regs. tit. 12, § 137-2.2 (repealed eff. Jan. 1, 2011); and (2) "maintain and preserve for not less than six years weekly payroll records ... for [the] employee [showing] ... allowances... claimed as part of the minimum wage," id. § 137-2.1(a) (repealed eff. Jan. 1, 2011); see also, e.g., Copantitla, 788 F.Supp.2d at 290.
Applying these principles, the Court finds that Defendants were not entitled to take a tip credit against Plaintiffs' wages under the FLSA prior to July 2012.
Defendants were likewise not entitled to take a tip credit under the NYLL prior to July 2012. First, the written notices provided beginning in March 2011 did not comply with § 146-2.2 because they were in English only and Plaintiffs' primary language is Spanish. N.Y. Comp.Codes R. & Regs. tit. 12, § 146-2.2(a). Second, prior to January 1, 2011, Defendants failed to "furnish to [Plaintiffs then-employed at Fresco] a statement with every payment of wages listing ... allowances ... claimed as part of the minimum wage." Id. § 137-2.2 (repealed eff. Jan. 1, 2011). Indeed, the wage statements issued by Defendants, see supra Section II.F.4, "show only that [P]laintiffs earned tip-related income; they do not record that any of the tip income was claimed as part of the minimum wage," Copantitla, 788 F.Supp.2d at 290.
The FLSA provides that "an employer may not avail itself of the tip credit if it requires tipped employees to share their tips with employees who do not `customarily and regularly receive tips.'" Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 240 (2d Cir.2011) (quoting 29 U.S.C. § 203(m)).
The NYLL also "bars employers from requiring tipped employees to share tips with employees who do not perform direct customer service — i.e., employees who are not `busboys or similar employees' and employees who are managers or `agents' of the employer." Shahriar, 659 F.3d at 240 (quoting NYLL § 196-d) (brackets omitted); see also Barenboim v. Starbucks Corp., 21 N.Y.3d 460, 471-72, 972 N.Y.S.2d 191, 995 N.E.2d 153 (2013) (defining the term "similar employee," as used in § 196-d, to mean "employees who... are ordinarily engaged in personal customer service").
In light of the foregoing, the Court concludes that stockers and, on some shifts, the coffee preparer are improperly included in Fresco's tip pool.
The Court also concludes that, prior to January 1, 2013, Defendants violated the NYLL by requiring Plaintiffs to share tips with tip-ineligible managers when they worked in tip-eligible positions. In particular, the Court finds that Drill and Vosilla each had meaningful authority over subordinates. Indeed, as of at least October 2007, Drill: (1) had "the ability to discipline subordinates," Barenboim, 21 N.Y.3d at 473, 972 N.Y.S.2d 191, 995 N.E.2d 153, and did discipline subordinates both formally and informally; (2) had the ability to "participate in the process of hiring or terminating employees," id., and did participate in these processes; (3) oversaw new employees' training; and (4) gave suggestions to Anthony Scotto about employee scheduling. See supra Section II.B.2. Accordingly, Drill's inclusion in the tip pool prior to January 1,
During this period, Vosilla likewise: (1) had "the ability to discipline subordinates," Barenboim, 21 N.Y.3d at 473, 972 N.Y.S.2d 191, 995 N.E.2d 153, and did discipline subordinates both formally and informally; (2) had the ability to "participate in the process of hiring or terminating employees," id., and did participate in these processes; (3) "ha[d] input in the creation of employee work schedules," id.; and (4) signed employment documents on behalf of the Restaurant. See supra Section II.B.1. However, Vosilla did not participate in Fresco's tip pool. That said, prior to June 2011, he did receive a portion of the 20 percent service charge imposed on private parties when he served as a party captain. Since June 2011, he has received the three percent administration fee imposed on private parties when he serves as a party captain. See supra Section II.E.2. Therefore, to decide the extent of Defendants' liability with respect to Vosilla's tip ineligibility, the Court must determine whether Fresco's service charge and administration fee should be deemed a gratuity.
A mandatory service charge may constitute a "charge purported to be a gratuity" within the meaning of NYLL § 196-d "when it is shown that employers represented or allowed their customers to believe that the charge[] [was] in fact [a] gratuit[y] for their employees." Samiento v. World Yacht Inc., 10 N.Y.3d 70, 854 N.Y.S.2d 83, 883 N.E.2d 990, 996 (2008). Whether "a mandatory charge or fee is purported to be a gratuity [is to] be weighed against the expectation of the reasonable customer." Id., 854 N.Y.S.2d 83, 883 N.E.2d at 994. Prior to January 1, 2011, factors bearing on "whether a reasonable customer would believe a particular service charge is a gratuity" included:
Maldonado v. BTB Events & Celebrations, Inc., 990 F.Supp.2d 382, 390 (S.D.N.Y. 2013) (citing N.Y. State Dep't of Labor, Op. Letter (Mar. 11, 2010), available at https://labor.ny.gov/legal/counsel-opinion- letters.shtm). There is no record evidence from which the Court can evaluate whether Fresco "represented or allowed [its] customers to believe" that the 20 percent service charge imposed on private parties "was in fact [a] gratuit[y]." Samiento, 854 N.Y.S.2d 83, 883 N.E.2d at 996. Thus, the Court is unable to determine whether Vosilla received a "charge purported to be a gratuity" prior to January 1, 2011 and, consequently, whether Plaintiffs were required to share tips with him during this period.
Since January 1, 2011, there has been rebuttable presumption under New York law that "any charge in addition to charges for food, beverage, lodging, and other specified materials or services, including but not limited to any charge for `service' or `food service,' is a charge purported to be a gratuity." N.Y. Comp.Codes R. & Regs. tit. 12, § 146-2.18(b). For such a charge to not be considered a gratuity, it must be "clearly identified as such" and customers must be "notified that the charge is not a gratuity or tip." Id. § 146-2.19(a); see also id. § 146-2.19(c) (explaining that "[a]dequate notification" requires "a statement in the contract or agreement with the customer, and on any menu and bill listing prices, that the administrative charge is for administration..., is not purported to be a gratuity, and will not be distributed as gratuities to the employees who provided service to the guests" and that such statement must "use ordinary language readily understood ... in a font size ... no smaller than a 12-point font"). Moreover, "[t]he employer has the burden of demonstrating, by clear and convincing evidence, that the notification was sufficient to ensure that a reasonable customer would understand that such charge was not purported to be a gratuity." Id. § 146-2.19(b). Plaintiffs concede, and the Court agrees, that Defendants have satisfied their burden with respect to the notification provided to customers beginning in June 2011 concerning the three percent administration fee. See supra Section II.E.2. Therefore, the Court concludes that Vosilla has not received a "charge purported to be a gratuity" since June 2011. By contrast, for the period between January 1 and June 2011, Defendants have adduced no evidence that they provided notification — let alone adequate notification — to customers regarding the nature of the 20 percent service charge. Thus, Defendants have not rebutted the presumption that the service charge was a "charge purported to be a gratuity." Accordingly, the Court finds that Defendants violated the NYLL by requiring Plaintiffs to share tips with Vosilla between January 1 and June 2011 on shifts where Vosilla served as a party captain and Plaintiffs worked in tip-eligible positions.
Under the FLSA, "tipped employees who spend a substantial amount of time, or more than twenty percent of their [working time], engaged in related but non-tip-producing work must be paid the full minimum wage for the time spent performing the non-tipped work." Chhab, 2013 WL 5308004, at *3. New York law goes even further. Indeed, if a tipped employee performs non-tipped work "(a) for two hours or more, or (b) for more than 20 percent of his or her shift, whichever is less, the wages of the employee shall be subject to no tip credit for that day." N.Y. Comp.Codes R. & Regs. tit.
Since at least May 2007, Defendants have taken a tip credit against Plaintiffs' wages for almost all hours worked. See supra Section II.E.1. However, bussers at Fresco perform non-tipped work for approximately 80 minutes per shift, see supra Section II.C.1, and runners perform non-tipped work for approximately 70 minutes per lunch shift and 62.5 minutes per dinner shift, see supra Section II.C.2.
The FLSA and the NYLL both "guarantee[] compensation for all work... engaged in by [covered] employees." Kuebel v. Black & Decker Inc., 643 F.3d 352, 359 (2d Cir.2011) (internal quotation marks, citation, and brackets omitted). In particular, an employee must be paid at least minimum wage. 29 U.S.C. § 206(a); N.Y. Lab. Law § 652(1). "[F]or any hours worked in excess of forty per week," the employee must "be compensated at a rate of no less than one and one-half times the regular rate of pay." Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir.2013); accord 29 U.S.C. § 207(a)(1); N.Y. Comp.Codes R. & Regs. tit. 12, § 146-1.4; id. § 137-1.3 (repealed eff. Jan. 1, 2011). "[A]ll of the time worked during a continuous workday is compensable, save for bona fide meal [periods]." Hart v. Rick's Cabaret Int'l, Inc., 60 F.Supp.3d 447, 475 n. 15 (S.D.N.Y. 2014). To qualify as a bona fide meal period, "[t]he employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period." 29 C.F.R. § 785.19(a). "The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating." Id.
To establish liability on a claim for underpayment of wages, "a plaintiff must prove that he performed work for which he was not properly compensated, and that the employer had actual or constructive knowledge of that work." Kuebel, 643 F.3d at 361. Where an employer fails to maintain adequate or accurate records of its employees' hours, the employee need only "produce[] sufficient evidence to show the amount and extent of [the uncompensated] work as a matter of just and reasonable inference." Anderson, 328 U.S. at 687, 66 S.Ct. 1187. This burden is "not high." Kuebel, 643 F.3d at 362. Indeed, the employee may satisfy his burden "through estimates based on his own recollection." Id. "The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence." Anderson, 328 U.S. at 687-88, 66 S.Ct. 1187. If the employer fails to do so, "the court may then award damages to the employee, even though the result be only approximate." Id. at 688, 66 S.Ct. 1187.
Defendants did not keep records of Plaintiffs' exact hours prior to June 26, 2011. Accordingly, the Anderson burden-shifting framework governs the analysis of Plaintiffs' claim. Drawing upon this framework, the Court credits Plaintiffs' estimates and finds that Defendants have failed to produce "evidence of the precise amount of work performed" or "evidence to negative the reasonableness" of the estimates. See supra Section II.D.1. Thus, the Court concludes that Defendants did not compensate Plaintiffs for all hours worked during this period.
Plaintiffs were compensated for all hours worked from June 27, 2011 until the lunch shift on July 1, 2011, as Defendants paid Plaintiffs based on the full amount of time recorded in the time clock system. As of the dinner shift on July 1, 2011, however, Defendants began undercounting the length of Plaintiffs' shifts by approximately 19 minutes and compensating Plaintiffs accordingly. See supra Sections II.D.2, II.E.3.b. That said, with respect to shifts where Plaintiffs punched in before the family meal (i.e., before 10:30 a.m. for the lunch shift and before 4:30 p.m. for the dinner shift), this 19-minute deduction does not give rise to a claim for underpayment of wages. The 30-minute family meal is a bona fide meal period for which employees are not entitled to compensation. See supra note 33. Defendants nevertheless did not subtract any time from Plaintiffs' hours to account for the family meal. Therefore, even with the 19-minute deduction, Plaintiffs who punched in before the family meal were compensated for time (i.e., approximately 11 minutes) beyond Defendants' legal obligation. Cf. Desilva v. N. Shore-Long Island Jewish Health Sys., Inc., 27 F.Supp.3d 313, 321 (E.D.N.Y.2014) ("[C]ourts in this circuit have recognized[] [that] automatic meal deduction policies are not per se illegal."); Zivali v. AT & T Mobility, LLC, 784 F.Supp.2d 456, 461 (S.D.N.Y.2011) (finding that an employer's timekeeping system is lawful under the FLSA "as long as it allows for the complete and accurate recording of all time worked"); N.Y. State Dep't of Labor, Op. Letter 1 (Nov. 25, 2009), available at http sc://labor.ny.gov/legal/counsel-opinion-letters.shtm (explaining that "recordkeeping software that automatically deducts the lunch break from the amount of time worked" does not violate the NYLL "[s]o long as the practice [] ... result[s] in the payment of wages for all hours worked"). By contrast, Plaintiffs who punched in more than 11 minutes after the family meal began (i.e., after 10:41 a.m. for the lunch shift and after 4:41 p.m. for the dinner shift) were not compensated for all hours worked. Indeed, they were subjected to a 19-minute deduction even though their shifts included less than 19 minutes of non-compensable time. For example, on October 8, 2011, Salinas worked from 5:02 p.m. until 11:17 p.m. Pl. Ex. 78 at 5753 (weekly payroll report for week ending October 8, 2011). Thus, he should have been paid for 6.25 hours of work. Instead, due to the 19-minute deduction, he was paid for 5.93 hours of work. Id. Defendants do not disclaim "actual or constructive knowledge of [this uncompensated]
Leon, Roballo, and Urgiles contend that they are also entitled to compensation for shifts where they were directed to work without punching in. They assert that they received tips, but did not receive any wages for these shifts. See supra Section II.D.2. These claims fail. First, Urgiles was, in fact, paid for the one shift that he worked without punching in (i.e., the dinner shift on December 24, 2012). Compare Pl. Ex. 24 at 1781 (Urgiles' punch report), and Pl. Ex. 77 at 9009 ("Busboy Calculation Sheet" for week ending December 29, 2012), with Pl. Ex. 76 at 9004 (ADP "Payroll Worksheet" for week ending December 29, 2012), and Pl. Ex. 78 at 9043 (weekly payroll report for week ending December 29, 2012). Second, Leon's statement that he "worked approximately three or four shifts in December 2013 when [he] did not punch in and ... only received tips," Leon Decl. ¶ 43, and Roballo's statement that he "was told approximately twice ... in December ... that [he] could come in to work and ... get tips, but [he] could not punch in and punch out and would not be paid by the house," Roballo Decl. ¶ 44, are insufficient "to show the amount and extent of [their uncompensated] work as a matter of just and reasonable inference," Anderson, 328 U.S. at 687, 66 S.Ct. ¶ 87. Moreover, the fact that Urgiles was paid wages for the one shift that he worked without punching in, and Gelman's credible testimony that she ensures that all bussers and runners who earn tips during a particular shift are also paid wages for that shift, Tr. 661:24-662:9, suggest that Leon and Roballo were compensated for the few shifts that they worked without punching in.
Since April 9, 2011, the NYLL has required that, at the time of hiring,
Since April 9, 2011, the NYLL has also required that employers "furnish each employee with a statement with every payment of wages, listing the following" information: (1) the dates of work covered by that payment of wages; (2) the employee's name; (3) the employer's name, address, and telephone number; (4) the rate or rates of pay and basis thereof;
Under New York law, an employer cannot require its employees to pay for the cost of purchasing a required uniform. N.Y. Comp.Codes R. & Regs. tit. 12, § 146-1.8 ("When an employee purchases a required uniform, he or she shall be reimbursed by the employer for the total cost of the uniform no later than the next payday."); accord id. § 137-1.8 (repealed eff. Jan. 1, 2011).
Federal law, by contrast, mandates that an employer cover uniform costs only when "the employees' expenditures for these purposes would reduce their wages to below minimum wage." Ayres v. 127 Rest. Corp., 12 F.Supp.2d 305, 310 (S.D.N.Y.1998). The term "uniform" is also not expressly defined. However, the U.S. Department of Labor's Field Operations Handbook (the "FOH")
Based on these precepts, the Court concludes that the ties and shirts
The black dress pants, black dress shoes, and black belt, however, are not supplied by the Restaurant and there is no evidence that Fresco prohibits variation in these items, which all fall within the scope of "ordinary basic street clothing." Thus, they do not constitute a required uniform under New York law or a uniform under federal law. See, e.g., Lu v. Jing Fong Rest., Inc., 503 F.Supp.2d 706, 712 (S.D.N.Y.2007) (concluding that "black dress pants, black socks, and black leather shoes ... do not qualify as a `uniform'" (internal quotation marks and citation omitted)); U.S. Dep't of Labor, Wage & Hour Div., Op. Letter 1-2 (May 15, 2008), available at http://www.dol.gov/whd/ opinion/FLSA/2008/2008_05_15_04_FLSA. pdf (explaining that "darkcolored," closed-toed shoes with a non-slip sole, which may be of any "quality, brand, style, model, or type" and purchased from the employee's vendor of choice, are not a "uniform" under federal law). Defendants, therefore, bear no responsibility for the costs of these purchases.
An employer violates the FLSA if it requires an employee to purchase "tools of the trade which will be used in or are specifically required for the performance of the employer's particular work" and "the cost of such tools ... cuts into the minimum or overtime wages required to be paid to [the employee]." 29 C.F.R. § 531.35. The same holds true under New York law. E.g., Lin v. Benihana Nat'l Corp., 755 F.Supp.2d 504, 511-12
The statute of limitations for "a cause of action arising out a willful violation" of the FLSA is three years. 29 U.S.C. § 255(a). For non-willful violations, the statute of limitations is two years. Id.
Applying the foregoing principles, the Court concludes that Plaintiffs have established that Defendants committed a willful violation by failing to compensate Plaintiffs for all hours worked prior to June 26, 2011. There is no question that Defendants knew that employees must be paid for all hours worked. This legal obligation is axiomatic. Nevertheless, prior to June 26, 2011, Defendants capped Plaintiffs' compensation per shift and per week at levels below the number of hours Plaintiffs actually worked. See supra Sections II.D.1, II.E.3.a, III.C.1. Such conduct epitomizes a willful violation. Accordingly, Defendants' liability for this FLSA violation extends back to three years prior to the filing of the complaint. With respect to the other FLSA violations, the Court finds that Defendants acted, at most, unreasonably, which is insufficient to trigger the three-year limitations period.
For the reasons stated, the Court finds that Plaintiffs have proven, by a preponderance of the evidence, that Defendants Starjem and Anthony Scotto
SO ORDERED.
