The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
N? 14-CV-5388 (JFB) (SIL)
SETH FEUER AND SUSANN FEUER,
Plaintiffs,
VERSUS
CORNERSTONE HOTELS CORP. AND NAEEM BUTT,
Defendants.
MEMORANDUM AND ORDER
January 24, 2020
JOSEPH F'. BIANCO, Circuit Judge (sitting by NYLL, N.Y. Lab. Law § 652; (4) N.Y. Lab.
designation): Law § 195(3), which requires employers to
furnish employees with wage statements
Plaintiffs Seth Feuer and Susann Feuer containing certain information each payday;
(“plaintiffs”) bring this action against and (5) N.Y. Lab. Law § 195(1), which
Cornerstone Hotels Corp., doing business as, requires employers to furnish employees with
at various times, Sun N Sand Hotel, Sea a wage notice containing certain information
Haven Resort, Ocean Breeze Motel, and at the time of hiring and on an annual basis.
Longview Motel (“the hotel” — or In their complaint, plaintiffs seek:
“Cornerstone”), and Naeem Butt (“Butt”) (1) preliminary and permanent injunctions
(collectively, “defendants”), asserting claims restraining defendants from violating the
under the Fair Labor Standards Act relevant provisions of the FLSA and NYLL;
(“FLSA”), 29 U.S.C. §§ 201-219, and the (2) an order restraining defendants from
New York Labor Law (“NYLL”), N.Y. retaliation against plaintiffs, (3) a judgment
Lab. Law §§ 190 e¢ seg. and 650 ef seq. declaring defendants’ practices unlawful and
Specifically, plaintiffs allege that defendants! willful violations of federal and New York
violated the following provisions: (1) the state law; and (4) an award of compensatory
minimum wage and overtime provisions of damages, liquidated damages, attorney’s
the FLSA, 29 U.S.C. §§ 206(a), 207(a); (2) fees, costs, pre-judgment interest, and post-
the minimum wage and overtime provisions judgment interest. (ECF Nos. 1, 12-13.)
of the NYLL, N.Y. Lab. Law §§ 160, 652(1);
(3) the “spread of hours” provisions under the
! Although the Court refers to both defendants for the the trial, and therefore the judgment is limited to
purpose of this opinion, Comerstone was not a part of Butt,
At the summary judgment stage, the and his wife, Susann Feuer, to have a free
Court adopted the Report and room at the hotel while Seth helped out with
Recommendation of Magistrate Judge Steven work at the hotel; (2) although Susann Feuer
I. Locke, holding that: (1) Cornerstone is a assisted Seth Feuer in his work at the hotel,
covered employer under the FLSA and the agreement with Butt was that Seth and
plaintiffs’ employer under the FLSA and Susann Feuer would receive a total of $250
NYLL; (2) Butt is individually liable as an per week (regardless of whether Susann
employer under the FLSA and NYLL; Feuer assisted her husband in his tasks at the
(3) defendants are liable for failing to provide hotel); (3) Seth Feuer was not “on call” to
wage notices and statements to plaintiffs as work throughout each day; (4) Butt’s records
required by NYLL § 195(1) and 195(3); and accurately reflect the dates and hours worked
(4) plaintiffs were entitled to summary by Seth Feuer and Susann Feuer; (5) with the
judgment on defendants’ second and ninth exception of the first week of employment
affirmative defenses of good faith and lack of (May 5 through 11, 2014), for which Seth
wilifulness, and therefore entitled to Feuer was not paid and Susann Feuer did not
liquidated damages. (ECF No. 76.) work, the amount Butt paid each week was
sufficient to satisfy the minimum wage
A bench trial was held on September 5 requirement for the total hours worked by
and September 6, 2018, to determine Seth Feuer and Susann Feuer;* (6) the total
defendants lability, if any, with regard to the hours worked by Seth Feuer or Susann Feuer
overtime and minimum wage provisions of never exceeded 10 hours in any day and, thus,
the FLSA and NYLL and the “spread of plaintiffs are not entitled to any spread-of-
hours” provision of the NYLL. Having held hours pay; (7) the total hours worked by Seth
a bench trial, the Court now issues its Feuer or Susann Feuer never exceeded 40
findings of fact and conclusions of law, as hours in any week and, thus, no overtime was
required by Rule 52(a) of the Federal Rules owed; and (8) neither Seth Feuer nor Susann
of Civil Procedure, after carefully Feuer received wage statements or notice
considering the evidence introduced at trial, provisions as required under New York
including assessing the credibility of the Labor Law during the period of time that they
witnesses, the arguments of counsel, and the were performing work at the hotel.
controlling law on the issues presented.
. Based upon these findings, and the other
_In summary, based upon the credible findings infra, plaintiffs are entitled to the
evidence, the Court finds that (1) in or about following relief: (1) $92 in unpaid wages for
early May 2014, Butt agreed to pay $250 per violations of the minimum wage provisions
week to Seth Feuer, and to allow Seth Feuer of the FLSA and NYLL relating to Seth Feuer
? With the exception of the first week (for which Seth Feuer (namely, 17 hours), and Susann Feuer did not
Feuer received no compensation) and the week of May work any hours that week.
25.20 une L204 be whch Seth Fever wasup But nade cl hat ny wok hat Sus
the employment ended in September 2014, The $250 Feuer performed to assist her husband would be
payment was sufficient to satisfy the minimum wage included mn the $250 cash payment each week, Butt
requirement for each week, even when the total hours was still required to comply with the wage statements
worked each week by Seth Feuer and Susann Feuer are and notice provisions as it related to Susann Feuer
combined, For the week of May 26 to June 1, 2014, because he knew that she was performing work for
the $150 was also sufficient to cover the minimum defendants, and in fact, Butt was tracking her hours.
Wage requirement for all the hours worked by Seth
(for the week of May 5, 2014, to May 11, On October 14, 2016, Butt filed a letter
2014, for which he was not paid);* (2) $92 in requesting leave to amend his answer. (ECF
liquidated damages relating to Seth Feuer; (3) No. 57,) On October 17, 2016, plaintiffs filed
$2,700 in statutory damages relating to Seth a motion for partial summary judgment.
Feuer in connection with his eighteen weeks (ECF Nos. 55, 56.) At the Court’s direction,
of employment for violation of the wage Butt formally filed his motion to amend and
statements and notice provisions under cross-motion for summary judgment on
NYLL; (4) $2,300 in statutory damages November 17, 2016. (ECF No. 61.) The
relating to Susann Feuer for violation of the Court referred the motions to amend and for
wage statements and notice provisions under pattial summary judgment to Magistrate
NYLL; (5) pre-judgment interest to be Judge Locke on April 6, 2017. (ECF No. 69.)
determined; and (6) post-judgment interest to Magistrate Judge Locke issued a Report and
be determined. Recommendation on August 4, 2017 (ECF
No, 76), which the Court adopted on August
1, BACKGROUND 31, 2017 (ECF No. 78).
On September 15, 2014, plaintiffs filed As noted supra, the Report and
their complaint alleging violations of the Recommendation, as adopted, granted
FLSA and NYLL. (ECF No. 1.) Defendants plaintiffs’ motion in its entirety, and denied
answered on November 26, 2014. (ECF No. defendants’ motions in their entirety, holding
11.) Counsel for defendants made a motion that: (1) Cornerstone is a covered employer
to withdraw on March 12, 2015 (ECF No. under the FLSA and plaintiffs’ employer
18), which was granted by Magistrate Judge under the FLSA and NYLL; (2) Butt is
Locke on March 16, 2015. In an order dated individually liable as an employer under the
April 20, 2015 (ECF No. 21), Magistrate FLSA and NYLL; (3) defendants are liable
Judge Locke informed Butt that, although he for failing to provide wage notices and
could represent himself pro se, he could not statements to plaintiffs as required by NYLL
represent Cornerstone, “a corporation, which § 195(1) and 195(3); and (4) plaintiffs were
must appear through an attorney” (ECF No. entitled to summary judgment on defendants’
76 at 5), The order further warned that failure second and ninth affirmative defenses of
to obtain counsel could risk the corporation good faith and lack of willfulness, and
being held in default and having a default therefore entitled to liquidated damages.
judgment entered against it. (/d.)° To date, (ECF No. 76.)
no attorney has entered an appearance on
behalf of Cornerstone. The parties undertook The Court held a bench trial on
discovery for the remainder of 2015 and September 5 and September 6, 2018, to
much of 2016. determine defendants’ liability, if any, with
_ regard to the overtime and minimum wage
* Although plaintiffs stopped working at the hotel in 5 In their Proposed Findings of Fact, plaintiffs note
September 2014 and remained at the hotel until their intention to request a certificate of default
February 2015 without paying any rent, defendants are judgment and subsequently move for default judgment
not entitled to a lodging credit because plaintiffs were against Cornerstone, such that it may be “jointly and
no longer working at that point, and (in any event) no severally liable” for the judgment amount. (ECF No.
notice was given to plaintiffs. See, e.g., N.Y. Comp. 87 at 3,n.1.)
Codes R. & Regs. tit. 12, § 146-2.3 (“The pay stub
must list hours worked, rates paid, gross wages, credits
claimed (for tips, meals and lodging) if any,
deductions and net wages.”).
provisions of the FLSA and NYLL, and the hotel where they lived and worked during the
spread-of-hours provision of the NYLL. ® relevant period. Plaintiffs also read into the
Plaintiffs Seth Feuer and Susann Feuer, and record portions of the deposition of Butt
plaintiffs’ friend Rosemarie Markus, testified taken on September 30, 2015. (PI. Ex. 8, ECF
for plaintiffs in their case-in-chief. No. 87-8.) Among the exhibits introduced at
Defendant Naeem Butt testified for the trial were records of hours that Butt kept for
defense. Both sides also introduced exhibits both plaintiffs. In one set of records, Butt
into the trial record for consideration by the listed the tasks that plaintiffs performed, and
Court. the other set included timecards (PI, Exs. 1,
2, ECF No. 87-1, 2), the validity of which
The Court has fully considered all of the plaintiffs contest. Plaintiffs also introduced a
evidence presented by the parties, as well as record of Seth Feuer’s hours (PI. Ex. 4, ECF
their written submissions. Below are the No. 87-4), which Butt contests; a document
Court’s Findings of Fact and Conclusions of signed by Butt committing to pay Seth Feuer
Law. $250 per week (P1. Ex. 3, ECF No. 87-3), the
II, FINDINGS OF FACT validity of which Butt contests; and emails
. sent by Susann Feuer to a third party who was
The following section constitutes the considering purchasing the hotel during the
Court’s Findings of Fact’ pursuant to Federal relevant period (PI. Ex. 5, ECF No. 87-5). No
Rule of Civil Procedure 52(a)(1). These additional documentation was introduced
Findings of Fact are drawn from witness regarding Susann Feuer’s hours.
testimony at trial and the parties’ trial
exhibits. Upon careful consideration, the Court
Defendant Nacem Butt is the owner and concludes that Butt’s time records, entered
operator of Cornerstone Hotels Corp., doing into evidence as Plaintiffs’ Exhibits 1 and 2,
business as, at various times, Sun N Sand are adequate and accurate records of
Hotel, Sea Haven Resort, Ocean Breeze plaintiffs’ hours.’ Throughout the records,
Motel, and Longview Motel, located at 52 Butt documents the tasks performed and total
Longview Road, Southampton, New York. hours in one record (see Pl. Ex. 1), and logs
(Tr, 20-21, 80, 118, 188.) The hotel the time of the hours worked and total hours
comprises fourteen guest rooms. (Tr. 199.) in the other (see PI. Ex. 2). The hours worked
Defendant Butt runs the hotel, along with his are often recorded as occurring mid-to-late
family, year-round, (Tr. 198-201.) morning through early-to-mid afternoon,
which is consistent with cleaning and
During the trial, plaintiffs offered the maintenance work that would need to be done
testimony of Susann Feuer, Seth Feuer, and between 11:00 a.m. check-outs and 3:00 p.m.
Markus, a friend of plaintiffs who visited the
6 Both parties consented to a bench trial. (See requirements (¢.g., those listed at 29 C.FR.
Defendants’ Pretrial Order (“PTO”), ECF No. 81, § 516,.2(a)(5)-(9)), the Court concludes that the
{ (v); Plaintiffs’ PTO, ECF No, 80, 5.) records — combined with other documents and
testimony at trial - are more than sufficient to satisfy
7 To the extent that any Finding of Fact reflects a legal an employer’s burden to come forward with evidence
conclusion, it shall be deemed a Conclusion of Law, of the precise amount of work performed and to negate
and vice-versa. the testimony and evidence offered by plaintiffs.
® Even assuming argwendo that the records are
insufficient under the FLSA _ record-keeping
check-ins.? (See Tr. 53.) Butt credibly five additional months (over Butt’s
testified that he kept time records, including objection) and left the hotel while the
records of the tasks performed, in order to eviction process was still pending. (Tr. 91-
ensure that plaintiffs were paid adequately 94.)
for their time. (Tr. 202.) Based upon these B, Seth Feuer
records and other credible evidence adduced
at trial, the Court concludes that Butt’s time 1, Duration of Employment
records are accurate and makes the following Seth Feuer testified that he began
findings regarding plaintiffs employment working for defendants on May 3, 2014 (Tr.
with defendants. 118), and that his last day was September 8,
A. Background 2014 (Tr. 119, 143). Seth Feuer’s records of
his own time also reflect that his last day was
Plaintiffs arrived at the hotel with the September 8, 2014.'' Butt testified that Seth
understanding, through their contact with a began work on May 6, 2014 (Tr. 207) and
third party, that an individual (Duharminder worked for seventeen weeks (Tr, 200),
Singh) was going to purchase the hotel and ending on September 2, 2014 (Tr. 206), the
needed someone to operate it for him. (Tr. day after Labor Day. Butt’s time records
60-68; Pl. Ex. 5.) More specifically, reflect hours for Seth Feuer beginning on
plaintiffs were told that they were going to be May 5, 2014, and concluding on September
paid $250 each to run the hotel, and also 2014, (Pl. Ex. 1, at 1, 111; Pl. Ex. 2, at 112,
would receive a free two bedroom house on 128.) In light of the conflicting testimony
the property. (Tr. 63.) After plaintiffs and evidence on this issue, the Court
arrived at the hotel, the sale of the hotel fel! concludes (having evaluated the evidence,
through. (Tr. 198.) Plaintiffs told Butt that including the credibility of the witnesses),
they were homeless at that point and needed that Butt’s time records are the most reliable
some money to eat, (Tr, 198.) Given that the and credible evidence of Seth Feuer’s dates
summer Season was approaching, Butt agreed ofemployment, Accordingly, the Court finds
to allow them to stay in a room for free, and that Seth Feuer worked for defendants from
to find work at the hotel for Seth Feuer in May 5, 2014, through September 2, 2014.
exchange for $250 per week. (Tr. 198-99.)
As discussed in more detail below, pursuant 2. Hours
to this arrangement, Seth Feuer started .
working on May 5, 2014, On May 15, 2014, The parties presented —_conilicling
Susann Feuer began assisting her husband in testimony and documentary _ evidence
his tasks." (Tr. 199.) regarding Seth Feuer’s hours. Seth Feuer
testified that he began work at 10:00 a.m. (Tr.
After plaintiffs ceased working in early 120), and worked until at least 8:00 p-m. each
September 2014, they continued to stay in the day (Tr. 127, 139). Plaintiffs friend
hotel without paying rent for approximately Rosemarie Markus, who testified that she
visited the hotel on one occasion for
? The Court notes that Butt also credibly testified that 1 Although plaintiffs introduced Seth’s own records
his family assisted in the work that needed to be of his hours at trial, he did not begin recording time
performed at the hotel. (Tr. 300.) until mid-June, (See Pl. Ex. 3, ECF No, 87-3.)
0 To the extent that the details of this arrangement
vary in the record, the Court finds these facts based
upon the credible testimony at the trial.
§
approximately three days in May or June besides cleaning such as maintenance, as
during the relevant period, recalled that Seth needed, and landscaping, on a weekly basis
Feuer would leave the room “a little later” (Tr. 125), the Court does not credit the
than 7:00 a.m. and return approximately half testimony of plaintiffs’ witnesses with regard
an hour before Susann Feuer returned at 9:00 to Seth Feuer’s hours.'”
or 9:30pm. (Tr. 101-02.) Seth Feuer oy oo
testified that his responsibilities included Similarly, after considering all of the
cleaning and maintenance of the guestrooms evidence, the Court finds that Seth Feuer’s
and grounds, and that he would confer with records do not accurately reflect the hours he
Butt before he began work each day, and worked. With respect to the records
when he finished work each night. (Tr. 120- themselves, they frequently reflect lengthy
25, 129.) Butt also testified that he knew stretches of work which remain unchanged
when Seth began and ended his work each from day to day. For example, the records for
day because Seth would come and check in August 25 through 29 all indicate six hours of
with Butt when he had finished. (Tr. 224.) work from 10:00 a.m. to 4:00 p.m., despite
the inevitable variation in work that would
Seth Feuer testified that he would, “a accompany a fluctuation in guests from one
couple of times a week,” “get calls after day to the next. (Pl. Ex. 4, at 131.) Plaintiffs’
hours” from Butt to assist with additional records likewise fail to account for lunch and
tasks (Tr. 128), and that he was “on called other breaks to which Seth and Susann Feuer
[sic] seven days at nights” (Tr. 145), Susann both testified. (Tr. 43-44, 127.) The same
Feuer similarly testified that “Seth was records bear the note, “on call 24 hours seven
always working, Seth was on call.” (Tr. 52.) days a week.” (Pl. Ex. 4, at 133.) When
In his testimony, Butt denied that Seth Feuer asked by the Court why his time records did
was ever “on-call,” noting that because Butt not account for hours until 8:00 p.m. each
lived on the property himself, after-hours day, Seth Feuer testified, regarding the tasks,
check-ins and other tasks were handled by “No, because I was doing — it was like second
him and his family. (Tr. 209, 225.) nature. I would just do it to do it.” (Tr. at
. 145.) The Court finds this explanation to be
As previously stated, the hotel comprises not credible. In short, the Court does not
only fourteen guestrooms (Tr. 199), two of believe these records are accurate when
which were occupied by plaintiffs and a long- considering the records in light of all of the
term renter (Tr. 25-26, 147), and testimony evidence in the case — including an
offered by both plaintiffs and Butt agree that assessment of the credibility of the witnesses.
cleaning a single guestroom takes on average
between 10 to 20 minutes for a stayover, or By contrast, the Court concludes that
between 40 minutes to an hour for a Butt’s records are accurate in light of the size
checkout. (Tr. 36, 38, 83, 122-23, 200-201.) of the property, number of rooms, and tasks
Butt also testified that he typically did not ask performed, and all of the other evidence in
Seth Feuer to clean more than two or three the case, Butt’s time records do not reflect
rooms in a day, and that he only requested any work day exceeding 4.5 hours or any
that Seth Feuer clean four rooms on five or week exceeding 17 hours. (PI. Ex. 2.)
six occasions. (Tr. 199-200.) Even crediting
testimony that Seth Feuer performed tasks In sum, the Court does not credit
plaintiffs’ testimony that Seth Feuer was on-
2 The Court also notes that, other than one week of 41 work day exceeding 8.5 hours, or any week exceeding
hours, Seth Feuer’s own records do not reflect any forty hours. (See Pl. Ex. 4.)
call 24 hours a day, nor that he worked from what plaintiffs were paid. The email from
10:00 a.m. until 8:00 p.m. each night, and, May 26, 2014, states that plaintiffs were paid
instead, finds Butt’s testimony to the contrary $250 “last week,” which the Court
to be credible. In fact, plaintiffs’ claims are understands to reference that they had been
unsubstantiated even by Seth Feuer’s own paid that past weekend for the week of May
records of his time, which the Court finds 12 to May 18. (Pl. Ex. 5, at 150.) The email
unreliable for the reasons stated above. from June 4 states that Butt had paid “$250
Accordingly, the Court finds that Butt’s twice,” which the Court understands to
testimony and records are a_ reliable refiect payment for the weeks of May 12 and
accounting of Seth Feuer’s hours, May 19.!3 (PI. Ex. 5, at 147.) The email from
June 7 states that Butt “only gave $150” to
3. Wages Seth Feuer for “last week,” which the Court
. understands to refer to the week of May 26.
At trial, Susann Feuer testified that (Id. at 145.)
plaintiffs were not paid for “three weeks in
May,” after which Butt gave Seth Feuer his In light of this contemporaneous
first payment of $250. (Tr. 28, 94.) She documentary evidence and the credible
further testified that Butt then attempted to testimony, the Court does not credit Butt’s
reduce the weekly payment to $150, but that testimony that he paid plaintiffs $250 in cash
she confronted him on June 5, 2014. On that each week beginning May 5, when Seth
day, she had him sign a note, discussed infra Feuer began work. (Tr. 207.) Accordingly,
and admitted at trial as Plaintiffs’ Exhibit 3 the Court concludes that plaintiffs did not
(hereafter, “June 5 Note”), committing to pay receive any pay for the week of May 5
Seth Feuer $250 beginning June 6, 2014, through 11; that plaintiffs were paid $250 for
“with pay on 6/12/14 and every Saturday the week of May 12 through May 18 and
thereafter.” (Tr. 29-31, 75.) $250 for the week of May 19 through May
. 25; that plaintiffs were paid $150 for the
Seth Feuer testified that he was first paid week of May 26 through June 1; and that Seth
at the end of May (Tr. 161), that Butt paid Feuer received $250 for the week of June 2
him a decreased amount in “June, end of through June 8, and for each week thereafter,
May, beginning of June” (Tr. 137), and that terminating on September 2, for any work
he was paid $250 a week thereafter. He also that he performed and any assistance that his
confirmed that the impetus for the June 5 wife gave him.
Note was that Butt wanted to “lower the
money from $250 to $150.” (Tr. 137.) C. Susann Feuer
These issues regarding payment are the 1. Duration of Employment
subject of portions of Plaintiffs’ Exhibit 5, .
which contains various emails sent by Susann At trial, Susann Feuer testified that she
Feuer to a third party during the relevant worked for defendants from May 2, 2014 (Tr.
period. As relevant here, Susann Feuer’s 20) through September 6, 2014 (Tr. 54), for
emails provide contemporaneous accounts of 122 days straight” (Tr. 33). As noted,
plaintiffs did not submit any documentation
3 Although Seth Feuer testified that he did not receive May/early June. In light of all the evidence, the Court
any payment during the month of May (Tr. 136), that finds his testimony not credible on this issue.
testimony is contradicted by Susann Feuer’s
contemporaneous emails (nected above) which discuss
two payments in May for $250 and one for $150 in late
of hours kept by Susann Feuer. never exceeded 40 hours in one week (or 10
□□ hours in one day), and the $250 payment by
At trial, plaintiffs introduced, and Susann Butt each week was sufficient to cover the
Feuer testified to the veracity of, the June 5 combined hours of Seth and Susann Feuer for
Note, which reads: “Seth Feuer is to be paid purposes of the minimum wage requirements
$250.00 weekly beginning 6/6/14 with pay of the FLSA and the NYLL.!°
on 6/12/14 and every Saturday thereafter.”
(PI. Ex. 3.)'4 Susann Feuer testified that she 2. Hours
wrote the text of the document, which Butt
then signed, (Tr, 29-30, 70-71.) When asked With regard to her hours, Susann Feuer
why she did not include payment for herself testified that she would confer with Butt at
in the text of the document, Susann testified 7:00 a.m. each morning regarding the rooms
that it was because Seth “was doing the to be cleaned that day (Tr. 22), although no
majority of the work.” (Tr. 70, 73.) rooms were ever ready to be cleaned at that
. time (Tr. 35). She testified that she worked
Butt testified that Susann started four hours a day (Tr. 44, 51), but that because
“participating” in Seth Feuer’s work on May of the nature of the tasks, like waiting for
15, 2014 (Tr. 199}, and did so until Seth laundry cycles, “I did it 24 hours a day
Feuer’s employment ended on September 2, combined . . . [i]t wasn’t just, okay, she
2014 (Tr. 205-06), worked from 7 to 11” (Tr. 40). She also
Having considered the conflicting testified that she would often tell Butt when
documentation and testimony, the Court she had completed rooms or tasks. (Tr. 45.)
finds that Susann Feuer did work during the . The Court does not credit Susann Feuer’s
period of May 15, 2014, to September 2, testimony regarding her work hours for
2014. In connection with that work, it was reasons similar to those undermining Seth
clear to plaintiffs that Seth Feuer was Feuer’s testimony. In particular, given the
receiving $250 in cash per week for his work, scope of the work that she said she
as well as for any assistance that Susann performed, and which Butt’s records
Feuer provided her husband, and that any describe, it is not credible that Susann Feuer
remuneration for Susann Feuer would be part worked for four or more hours a day, seven
of the $250 given to Seth Feuer.'5 Moreover, days a week at an establishment of this size.
as discussed infra, their combined hours Plaintiffs also have — supplied □□
4 Although Butt contests the authenticity of the discussion or documentation regarding payment to
document itself, he does not contest its substance — Susann Feuer.
namely, that he agreed to pay Seth Feuer $250 per
week for his services. (Tr. 215.) '6 ‘The Court highlights that Susann Feuer did not work
during the week of May 26 when Seth Feuer was paid
The Court notes that there is evidence in the record $150, instead of $250.
that Susann Feuer believed that the potential buyer of
the hotel was going to pay her and Seth $250 each per '? Rosemarie Markus testified that, during her visit,
week when they first arrived at the hotel. There is no Susann Feuer would leave the room to work around
evidence, however, that Butt ever agreed to such 6:30 a.m. and return around 9:00 or 9:30 p.m. (Tr.
payment for each of them when the purchase of the 101.) The Court does not credit the testimony of
hotel fell through and Butt agreed to hire Seth Feuer Markus in light of the other testimony and evidence
for the summer. In fact, the understanding with Butt provided, and emphasizes that her estimates far exceed
was confirmed at the June 5 meeting which related to even Susann Feuet’s own account of her work.
Seth Feuer’s rate of pay ($250 per week), without any
QR
documentation of her hours. In short, the made clear that payment for any assistance
Court does not credit Susann Feuer’s that Susann Feuer decided to provide to her
testimony regarding her hours and, instead, husband was included in the $250 in cash
finds that Butt’s time records are a reliable Butt gave to her husband each week.
accounting of Susann Feuer’s time. IIL. BURDEN OF PROOF
3. Wages Plaintiffs bear the burden of proof in this
. case on each and every claim, as well as on
As noted above, based on the credible the issue of damages. They must prove by a
testimony and documentary evidence preponderance of the evidence that
produced at trial, the Court concludes that defendants did not adequately compensate
defendants paid plaintiffs collectively $250 them as required by the FLSA and NYLL.
for the weeks of May 12 through 18 and May See Reich v. S. New England Telecomm.
19 through 26, and paid $150 for their Corp., 121 F.3d 58, 67 (2d Cir, 1997)
combined work the week of May 26 through (“[Plaintiffs] must produce _ sufficient
June 1. Plaintiffs collectively received $250 evidence to establish that the employees have
each week thereafter until they stopped in fact performed work for which they were
working in early September 2014. improperly compensated and produce
sufficient evidence to show the amount and
As confirmed by the June 5 Note, all extent of that work ‘as a matter of just and
payments made were intended to be reasonable inference.’” (quoting Anderson v.
consideration of Seth Feuer’s work because it Mt. Clemens Pottery Co., 328 U.S. 680, 687
was understood that Susann Feuer would not (1946), superseded by statute, The Portal-to-
be separately paid by Butt for any voluntary Portal Act)); Flores v. J & B Club House
assistance she gave her husband. Thus, the Tavern, Inc., No. 10-Civ-4332 (GAY), 9012
$250 was intended to cover all the work WL 4891888, at *1 (S.D.N.Y. Oct. 16, 2012)
regardless of whether performed solely by (discussing NYLL plaintiffs’ burden to prove
Seth Feuer, or with the help of his wife, they performed the work for which they
Susann Feuer. In fact, Susann Feuer claim defendant failed to compensate them).
acknowledged during her testimony that, Plaintiffs must also prove the amount of
following the June 5 meeting, she understood damages by a preponderance of the evidence.
that any payment for her work would be
included in the $250 cash payments each IV. CONCLUSIONS OF LAW
week to her husband. (See, e.g., Tr. 96 (“I ,
honestly felt that the $250 was one and a Plaintiffs assert that Seth Feuer has not
quarter each, that he was paying for both of been fully compensated for overtime under
.”); Tr. at 97 (“In my reality I thought the FLSA and NYLL, and that neither
he was giving us one and a quarter each a plaintiff was paid in accordance with the
week and when he knocked us down to 1001 minimum wage requirement. For the reasons
thought we were getting $75 a week each. I set forth below, the Court finds that plaintiffs
believed I was getting paid but I was getting have not proved by a preponderance of the
paid half of what we initially agreed upon.”).) evidence that defendants have violated the
Although she testified that she understood overtime provisions of the FLSA and NYLL
that she was getting half of her husband’s or spread-of-hours provision of the NYLL,
payment, the Court finds that Butt never but that they have proved that defendants are
agreed to any such arrangement, but rather liable for limited violations of the minimum
wage provisions of the FLSA and NYLL.
A. Unpaid Wages Claims requirements of the FLSA, but otherwise
“mirrors the FLSA in compensation
Under the FLSA, employers engaged in provisions regarding minimum hourly wages
interstate commerce must pay overtime and overtime.” Ethelberth v. Choice Sec.
compensation to an employee working more Co., 91 F. Supp. 3d 339, 359-60 (E.D.N.Y,
than forty hours per week at one and one-half 2015) (quoting Santillan v. Henao, 822 □□
times his or her hourly rate or applicable Supp. 2d 284, 292 (E.D.N.Y. 2011)). That
minimum wage. 29 U.S.C. § 207(a)(1). plaintiffs were not exempt from the overtime
NYLL has a parallel requirement. N.Y. requirements of either statute is not in
Comp. Codes R. & Regs. tit. 12, § 146-1.4. dispute.
The regular, minimum rates at which P
employees must be paid are established by Plaintiffs allege that Seth Feuer worked
Section 6 of the FLSA, 29 U.S.C. § over ten hours a day, seven days a week, and
206(a)(1\(C), and Section 652(1) of the was on-call 24 hours a day, seven days a
NYLL. During the relevant period, the week, throughout the duration of his
federal minimum wage was $7.25 per hour; employment with defendants, and that he was
the New York state minimum wage was not compensated for overtime work, or for
$8.00 per hour, 29 U.S.C. § 206(a\(1)(O); extra. compensation required where his
N.Y. Lab. Law § 652(1). spread of hours exceeded ten. Plaintiffs also
allege that Seth Feuer and Susann Feuer were
In addition, the FLSA sets forth a broad not paid the minimum wage as required by
civil enforcement scheme, pursuant to which: federal and New York state law.
Although a plaintiff generally “has the
[any emp overt Mo oes burden of proving that he performed work for
or ction 207 of this title which he was not properly compensated,”
shall be liable to the employee when an □□ loyer has | Inaccurate oF
or employees affected in the inadequate records, the plaintiff “has carried
amount of their unpaid out his burden if he proves that he has in fact
minimum wages or performed work for which he was improperly
their unpaid overtime compensated and if he produces sufficient
compensation, as the case evidence to show the amount and extent of
may be, and in an additional that work as a matter of just and reasonable
equal amount as liquidated inference.” Mt. Clemens, 328 USS. at 687.
damages Sufficient evidence may be established by
, “recollection alone.” Doo Nam Yang □□□
29 U.S.C. §216(b). In an action to recover (SDN © 3008), see aloo eae okt
mpi ovrti, wages und the FLSA © Duce hy 618 34952, 3624 C2011
employee who was eligible for overtime (tt □□ well settled among the district courts of
not exempt from the Act’s overtime this Circuit, and We agrees that it is possible
pay requirements); and (2) that he actually for a plaintiff to meet this burden through
worked overtime hours for which he was not estimates based on his own recollection.”).
compensated.” Hosking v. New World The burden then shifts to the employer to
Mortg, Inc., 602 F. Supp. 2d 441, 447 come forward with evidence of the precise
(EDNY, 2009), The NYLL scheme lacks amount of work performed or with evidence
the interstate commerce and minimum sales to negative the reasonableness of the
10
inference to be drawn from the employee’s employment when defendants failed to pay
evidence.” Mf. Clemens, 328 U.S. at 687-88. him in compliance with the then-applicable
New York state and federal minimum wage
Although, as discussed supra, plaintiffs rate, see 29 C.F.R. §§ 778.5, 778.315; N.Y.
presented testimony and evidence in support Lab. Law § 652(1); and (3) that defendants
of their overtime and minimum wage are, therefore, liable for the difference
allegations, the Court concludes that Butt between the amount that the employee was
credibly presented accurate records to rebut paid and the amount that the employee would
plaintiffs’ overtime claims and minimum have earned if he had received hourly pay at
wage claims, with the exception of the week the applicable minimum wage. See, □□□□□
of May 5, 2014, for which Seth Feuer was not Rodriguez v. Queens Convenience Deli
paid. The Court does not credit the testimony Corp., No. 09-CV-1089 KAM SMG, 2011
of plaintiffs’ witnesses, including plaintiffs, WL 4962397, at *2 (E.D.N.Y. Oct. 18,
or plaintiffs’ documentary evidence with 2011); Cao v. Chandara Corp., No. 00 Civ.
regard to hours worked. Plaintiffs have met 8057(SAS), 2001 WL 34366628, at *6
their burden only with regard to the one week (S.D.N.Y. July 25, 2001).
during which Seth Feuer was not paid. As
noted supra, Susann Feuer did not work that B. Spread-of-Hours Claim
week.
Under New York state law, employees in
In sum, notwithstanding Butt’s credible “all-year hotels” who work a “spread of
testimony and time records that undermine hours” in excess of ten hours — defined as
the testimony of plaintiffs’ witnesses and “the length of the interval between the
time records, the Court finds that defendants beginning and end of an employee’s
have violated the minimum wage provisions workday” — are entitled to an additional
as to Seth Feuer for the first week of his hour’s worth of pay at the minimum wage.
employment. 29 U.S.C. §§ 206, 207, N.Y, Comp. Codes R. & Regs. tit. 12, § 146-
215(a)(2); N.Y. Lab, Law § 160, 652(1). The 1.6. Because, based on a review of
Court bases this conclusion upon the records defendants’ credible time records, the Court
_of payment found in plaintiff's does not find evidence in the record to
contemporaneous emails and corroborated by establish that Seth Feuer had any workday
plaintiffs’ testimony on this point. spanning more than ten hours during his
Specifically, the Court finds the following: employment with defendants, plaintiffs are
(1) during the relevant time period, not entitled to recover under this provision.!”
defendants did not violate the overtime
provisions of the FLSA or its NYLL C. Recordkeeping Claims
counterpart because, although defendants
paid a fixed weekly salary, plaintiffs’ hours As noted above, the Court previously
never exceeded 40 hours per week; adopted the Report and Recommendation of
(2) during the relevant time period, Magistrate Judge Locke, finding that
defendants violated the minimum wage defendants are liable for violations of NYLL
provision of the FLSA and its NYLL § 195(3) and 195(1). Accordingly, plaintiffs
counterpart for the first week of Seth Feuer’s
'8 The Court underscores that even the combined hours Moreover, even if Susann Feuer’s hours are
of Susann and Seth Feuer never exceeded forty hours considered along with her husband’s hours, their
in a particular week. combined hours do not exceed ten hours on any
individual day.
17
are entitled to statutory damages for federal one, 29 U.S.C. § 218(a), as is the case
violations of these sections as detailed below. here, the Court calculates plaintiffs’ damages
using the state minimum wage and grants
D. Damages recovery under NYLL.
Plaintiffs seek (1) for Seth Feuer, The Court does not find the damage
$33,143.03 in unpaid minimum wage and calculations by plaintiffs to be a reasonable
overtime compensation, $1,040 in unpaid estimate of the amount due to plaintiffs based
spread-of-hours compensation, $34, 183,03 in upon the evidence in the record, and finds
liquidated damages, and $2,700 in statutory that plaintiffs have not met their burden of
damages under NYLL § 195; and (2) for proof on this issue. Once a plaintiff has
Susann Feuer, $2,596.88 in unpaid minimum proven a prima facie case, “the burden shifts
wages, $2,596.88 in liquidated damages, and to the employer . . . to produce evidence of
$2,700 in statutory damages under NYLL the ‘precise amount of work performed’ or
§ 195, Plaintiffs also request pre-judgment evidence to ‘negative the reasonableness of
interest under NYLL dating from July 5, the inference to be drawn from the
2014 through the date of judgment, as well as employee’s evidence.’” Reich, 121 F.3d at
post-judgment interest on the award amount, 67 (quoting Mt Clemens, 328 U.S, at 687-
88). In particular, plaintiffs did not establish
1. Backpay a prima facie case, and in any event,
defendants presented credible evidence of the
Plaintiffs seek $33,143.03 for Seth Feuer, hours that plaintiffs worked, thus enabling
and $2,596.88 for Susann Feuer in unpaid the Court to calculate the unpaid wages owed
wages for violations of the minimum wage to plaintiff Seth Feuer for the week during
and overtime provisions of the FLSA and which the Court has found that he was not
NYLL, 29 U.S.C. § 216(b); N.Y. Lab, Law paid — namely, his first week of employment.
§§ 160, 652(1). (See Pls.’ Prop. Findings, Crediting defendants’ contemporaneous
ECF No. 87, at 1.) Although plaintiffs may records of plaintiffs’ hours, the Court finds
be entitled to recover under both statutes, that Seth Feuer is entitled to $92 for work
they may not “double recover” for violations performed during the week of May 5 through
of both statutes. Pinzon v. Paul Lent Mech. 11, 2014, as calculated by multiplying the
Sys., Inc., No. CV 11-3384(DRH)(WDW), hours he worked (11.5) by the applicable
2012 WL 4174725, at *2 (E.D.N.Y. Aug. 21, $8.00 minimum wage in New York state.”°
2012), report and recommendation adopted, A review of Butt’s time records and wages
2012 WL 417410 (E.D.N.Y. Sept. 19, 2012); paid for all other weeks reflect that plaintiffs
Jin M. Cao v. Wu Liang Ye Lexington Rest., (even when Seth and Susann Feuer’s hours
Inc., No. 08 Civ. 3725(DC), 2010 WL are combined) were paid at a rate above the
4159391, *3 (S.D.N.Y. Sept. 30, 2010), minimum wage for their hours during each
Because Butt’s liability is coextensive under particular week.”!
both statutes in light of the findings above, i,
and state minimum wage laws are not 2. Liquidated Damages
preempted by the federal minimum wage Under the FLSA and NYLL, employers
where the state minimum wage exceeds the who violate the law are liable not only for
2 As stated supra, Susann Feuer did not begin *1 The Court reached this conclusion by dividing the
working for defendants until May 15, 2014. compensation plaintiffs received by the number of
hours worked in a week for each week of work.
12
unpaid wages but for “an additional equal that defendants’ actions were not in good
amount as liquidated damages.” 29 U.S.C. faith, and that they had no reasonable
§ 216(c); NYLL §§ 198, 663. The Portal-to- grounds for so acting. Accordingly, the
Portal Act modified the FLSA by allowing Court finds that plaintiff Seth Feuer is
courts, in their discretion, to reduce the entitied to a judgment in the amount of $92 in
amount awarded in liquidated damages or to liquidated damages under NYLL.
eliminate them entirely if an employer proves
that its actions were “in good faith and that 3. Statutory Damages
[it] had reasonable grounds for believing that
[its] act or omission was not a violation” of Pursuant to the version of NYLL § 195(3)
the FLSA. 29 U.S.C. § 260. “[TJhe employer that was effective at the time of plaintiffs’
bears the burden of establishing, by ‘plain employment, plaintiffs are entitled to
and substantial evidence,’ subjective good $100.00 dollars for each work week during
faith and objective reasonableness.” Reich, which an employer fails to provide wage
121 F.3d at 71 (quoting Martin v. Cooper statements meeting statutory requirements,
Elec. Supply Co., 940 F.2d 896, 907 (3d Cir. up to a maximum of $2,500.00. N.Y. Lab,
1991)). “The burden . . . is a difficult one to Law § 198(1-d). Likewise, pursuant to
meet, however, and double damages are the NYLL § 195(1), plaintiffs are entitled to
norm, single damages the exception.” Id. $50.00 for each work week during which an
(alteration, citation, and internal quotation employer fails to provide the wage notices
marks omitted). Liquidated damages in the that the NYLL requires be provided at the
amount of actual damages are likewise time of hiring, up to a maximum of
available under NYLL §§ 198(1-a) and $2,500.00. N.Y. Lab. Law § 198(1-b).
663(1), “unless the employer proves a good
faith basis to believe that its underpayment of In adopting Magistrate Judge Locke’s
wages was in compliance with the law.” As Report and Recommendation upon summary
with coextensive compensatory damages, judgment, the Court found that plaintiffs had
plaintiffs may only recover liquidated met their burden in proving that defendants
damages under one statute. See Chowdhury are liable for failing to provide wage notices
y, Hamza Express Food Corp., 666 F. App’x and wage statements as required under
59, 61 (2d Cir, 2016). NYLL § 195(1) and 195(3). Accordingly,
multiplying Seth Feuer’s duration of
In adopting Magistrate Judge Locke’s employment of eighteen weeks by $100.00
Report and Recommendation upon summary for violation of § 195(3), the Court finds that
judgment, the Court found that plaintiffs had Seth Feuer is entitled to $1,800 under that
met their burden in proving that defendants’ provision. Multiplying his eighteen weeks of
actions were willful. Butt acknowledged in employment by $50.00 for violation of
his deposition and at trial that he had worked § 195(1), the Court concludes that Seth Feuer
in the hotel industry for many years and held is entitled to $900.00, for a combined total of
supervisory roles for over two decades, yet $2,700.00 in statutory damages for the
failed to seck any advice regarding eighteen weeks that he worked for
compensation practices, and demonstrated defendants.
recklessness by paying plaintiffs in cash, .
rather than through ee proper and With respect to Susann Feuer, the Court
traceable means, like checks. (See ECF No. reiterates that she did not work during her
76, at 32-33.) Therefore, the Court concludes husband’s first week of employment (May 5,
2014) or his last week of employment
13
(September 2, 2014), nor did she work the any unpaid minimum wages, and they failed
week of May 26, 2014. Accordingly, to prove that either plaintiff is entitled to
performing the same calculations for Susann spread-of-hours pay or overtime
Feuer, the Court concludes that Susann Feuer compensation. Accordingly, plaintiffs are
is entitled to $1,500.00 under § 195(3) for the entitled to pre-judgment interest on Seth
fifteen weeks that she performed work. Feuer’s award of $0.02 daily between July 4,
These fifteen weeks account for the fact that 2014,”* until the day that judgment is entered.
she did not work the week of May 26, 2014, This amount was calculated by multiplying
and thus there was ne need for Butt to provide Seth’s unpaid wages by nine percent, and
her a wage statement that week. With respect dividing that figure by 365 days. See, □□□□□
to § 195(1), the Court finds that Susann Feuer Rosales vy. Low Bid, Inc, No,
is entitled to $800.00 for defendants’ 17CV3183ADSSIL, 2018 WL 3468710, at
continued failure to provide a wage notice for *10 n.2 (E.D.N.Y. July 3, 2018), report and
the sixteen weeks that she was in their recommendation adopted, No.
employ, for a combined total $2,300.00 in 217CV03183ADSSIL, 2018 WL 3468697
statutory damages. (E.D.N.Y. July 18, 2018); Pimental vy.
Memories Pub iInc., No. CV 16-51
4, Pre-Judgment Interest (IFB(ARL), 2018 WL 1973174, at *3
NYLL provides for the award of pre- (E.D.NY, Feb. 20, 2018), rep ort and
ue vos recommendation adopted sub nom. Pimentel
judgment interest to prevailing plaintiffs » Memories Pub Inc. No, 16-CV-
under § 198(1-a). The applicable interest rate 0051 (JEB\ ARL), 2018 WL 1970742
is 9% per annum, calculated “from the date (E.D.N.Y. Apr. 25, 2018)
[each item] was incurred or upon all of the oe o—
damages from a_ single reasonable
intermediate date.” NY. C.P.L.R. >. Post-Judgment Interest
§§ 5001(b), 5004. Plaintiffs are “entitled to Plaintiffs are entitled to post-judgment
an award of prejudgment interest only on interest “from the date of the entry of the
unpaid wages and spread of hours pay for judgment, at a rate equal to the weekly
which liquidated damages pursuant to the average l-year constant maturity Treasury
FLSA were not assessed.” Santillan, 822 F, yield, as published by the Board of
Supp. 2d at 298. In addition, “[p]rejudgment Governors of the Federal Reserve System, for
interest is not available for violations of the the calendar week preceding[ | the date of the
wage statement or wage notice provisions.” judgment.” 28 U.S.C. § 196](a).
Gamero v. Koodo Sushi Corp., 272 F. Supp. Accordingly, the Court concludes that
3d 481, 515 (S.D.N.Y. 2017), aff'd, 752 F. plaintiffs be awarded post-judgment interest
App’x 33 (2d Cir, 2018); Salustio v. 106 on its monetary award, to be calculated
Columbia Deli Corp., 264 F. Supp. 3d 540, pursuant to 28 U.S.C. § 1961(a).
557 (S.D.N.Y. 2017),
VY. CONCLUSION
As explained above, plaintiffs have
demonstrated that Seth Feuer is owed $92 in For the foregoing reasons, the Court
unpaid wages. By contrast, plaintiffs have concludes, after carefully considering the
not demonstrated that Susann Feuer ts owed evidence introduced at trial, the arguments of
Calculated as halfway between May 5 and
September 2, 2014.
14
counsel, and the controlling law on the issues SO ORDERED.
presented, that plaintiffs have not
demonstrated the overtime or spread-of-
hours violations by a preponderance of the S/ JOSEPH F. BIANCO
evidence. However, the Court finds that Butt
is liable for the limited minimum wage JOSEPH F. BIANCO_———-—~-
violations and for the wage statement and pale States Circuit Judge
wage notice violations discussed herein. The (sitting by designation)
Court hereby enters judgment against
defendant Butt in the amount of $2,884 to Dated: January 24, 2020
Seth Feuer consisting of: (1) $92 in unpaid Central Islip, NY
wages for violation of the minimum wage
provisions of the FLSA and NYLL (for the
week of May 5 to May 11, 2014, for which ne
he was not paid); (2) $92 in liquidated
damages relating to Seth Feuer; and (3) Plaintiffs are represented by Dong
$2,700 in statutory damages relating to Seth Phuong V. Nguyen, Borrelli & Associates,
Feuer in connection with his eighteen weeks P.L.L.C., 1010 Northern Boulevard, Suite
of employment for violation of the wage 328, Great Neck, NY 11021.
statements and notice provisions under
NYLL. The Court also enters judgment Defendant Naeem Butt proceeds pro se,
against defendant Butt in the amount of 52 Longview Road, Southampton, NY
$2,300 in statutory damages relating to 11968. Defendant Cornerstone Hotels Corp.
Susann Feuer in connection with her sixteen is unrepresented.
weeks of employment for violation of the
wage statements and notice provisions under
NYLL.” The Court thus finds Butt liable for
a total of $5,184.00,
Added to this amount shall be pre- and
post-judgment interest to be calculated as
stated above. The Clerk of the Court shall
enter judgment accordingly.”4
23 To the extent that plaintiffs seek any declaratory or 4 Because defendant Cornerstone Hotels Corporation
injunctive relief, the Court concludes there is no basis is unrepresented, the judgment does not apply to it.
for such relief under the facts of this case. However, plaintiffs may move for a default judgment
against the corporation if they wish to pursue the
claims against it.
15