# Choi v. SD Tools, Inc

> District Court, E.D. New York · December 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10755628

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10755628

## How later opinions describe it (automated extraction)

- describing inventory management for others as not incident to sales

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

YOUNG TAEK CHOI, YUN SEOB SHIN, JI
HYUN KIM, and RACHEL SON,
MEMORANDUM & ORDER
Plaintiffs, 19-CV-2008(EK)(VMS)

-against-

SD TOOLS, INC., ZERED, INC., and HAK
JIN HAN,

Defendants.

------------------------------------x
ERIC KOMITEE, United States District Judge:
The four plaintiffs in this case assert that the
defendants failed to comply with various provisions of the Fair
Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”).
They bring claims for: (1) FLSA overtime wages; (2) NYLL
overtime wages; (3) “spread of hours” compensation under the
NYLL; (4) violation of the NYLL’s time of hire wage notice
requirement; and (5) violation of the NYLL’s pay stub
requirement. The defendants are two companies — SD Tools, Inc.
and Zered, Inc. — and their owner, Hak Jin Kim.
The defendants have moved for summary judgment against
one defendant — Choi — on the ground that, as an “outside
salesperson,” he is exempt from the wage-and-hour requirements
at issue. Choi disputes that he qualifies for the outside-
salesperson exemption. In addition, all plaintiffs have moved
for summary judgment on all of their claims. They contend that
judgment is warranted because they are not covered by any
exemption and because it is undisputed that they were not paid

for all overtime hours worked.
For the reasons that follow, the plaintiffs’ motion
for summary judgment is denied. The defendants’ motion is
granted.
I. Background
The facts in this order are drawn from the parties’
submissions in connection with the motion for summary judgment,
including the plaintiffs’ Local Rule 56.1 Statement (“Pl. 56.1”
(ECF No. 70-2)), and the defendants’ opposition thereto (“Def.
56.1 Response” (ECF No. 71)). Citations to a party’s Rule 56.1
Statement incorporate the documents cited therein. The
defendants have not filed an affirmative Rule 56.1 statement in

support of their motion for partial summary judgment, but rely
on excerpts from Mr. Choi’s deposition and their earlier Rule
56.1 Response in opposition to summary judgment .
The parties (and, as applicable, their claims) are as
follows:
Defendants
SD Tools, Inc. Defendant SD Tools is located in
College Point, New York. Like its sister company Zered, it sold
industrial tools and fabricated components. Pl. 56.1 ¶ A(2),
A(8); Decl. of Jiwoo Han ¶ 1, ECF No. 70-15. SD Tools
functioned in the New York tristate area as a retail and
wholesale reseller. Id.; Decl. of Hak Jin Han (“Han Decl.”) ¶¶

1-2. ECF No. 76.
Zered, Inc. Zered is a nationwide wholesale reseller
of industrial tools. Han Decl. ¶ 2. It is operated out of the
same location as SD Tools, under the same ownership. Pl. 56.1 ¶
A(8); Han Decl. ¶ 1.
The parties do not distinguish between Zered and SD
Tools when referring to the plaintiffs’ employment
relationships.1
Hak Jin Han. Defendant Han (who went by the name
James) is the sole owner of both SD Tools and Zered. Pl. 56.1 ¶
A(1); see 7/9/21 Dep. of Hak Jin Han (“Han Dep.”) 7:22-9:2, ECF
No. 70-3; Han Decl. ¶¶ A(1)–(2). Han continues to manage both

companies, which sell their products by sending employees to
visit customers along designated sales routes. Def. 56.1
Response ¶ 2.
Plaintiffs
Young Taek Choi. Plaintiff Choi (also known as David)
worked for the defendants from approximately October 2016 to

1 Indeed, the defendants themselves repeatedly refer to each plaintiff
as working for “Defendants” collectively. See, e.g., Def. Opp. 2; Defs. Mot.
for Partial Summary J. 1, ECF No. 82. And two plaintiffs testified that the
companies effectively functioned as a single operation. See Shin Dep.
110:22–111:12; Son Dep. 5–12.
November 2017, and then again from February or March 2018 to
November 2018. See Pl. 56.1 ¶ B(a)(1); Han Decl. ¶ 5. Choi was
hired as a salesperson. See Han Decl. ¶ 6; Dep. of Young Taek
Choi2 (“Choi Dep.”) 31:23. Like other sales employees, Choi had

an assigned company vehicle and was responsible for selling the
defendants’ products in a designated area. Choi Dep. 52:18–22,
180:23–25. David left this job in fall of 2017, due to an
injury to his elbow. Pl. 56.1 ¶¶B(a)(1), (B)(a)(9); Def. 56.1
Response ¶(B)(a)(1). He returned the following year — to work
again as a salesperson, but with a different compensation
structure. Pl. 56.1 ¶¶ 1, 9-11.
Choi moves for summary judgment on all five causes of
action. The defendants have cross-moved for summary judgement
on three of Choi’s claims: his FLSA overtime wages, NYLL
overtime wages, and spread-of-hours claims (Counts I-III). The

defendants’ motion is predicated on the assertion that Choi
clearly qualifies, on the evidentiary record submitted, for the
“outside salesperson” exemption. Defs. Mot. for Partial Summary
J., ECF No. 82.
Yun Seob Shin. Plaintiff Shin, too, was hired as a
salesman. Dep. of Yun Seob Shin (“Shin Dep.”) 11:21-24, 26:14-

2 The Plaintiffs and Defendants submitted different excerpts from the
same deposition of Choi. See ECF Nos. 70-5, 82-1, 83-1. The deposition is
continuously paginated, and therefore consistently paginated in each excerpt.
Accordingly, the court refers to all Choi deposition excerpts as “Choi Dep.”
19, ECF No. 70-7; Han Decl. ¶ 12. He worked for the defendants
from July 2016 to March 2019. See Pl. 56.1 ¶ B(a)(1); Han Decl.
¶ 12;Shin Dep. 25:5–17.

The parties do not agree on the nature of Shin’s job
duties. Compare Han Decl. ¶¶ 16 with Shin Dep. 55:5–56:25. Han
testified that after six months, Shin became the companies’
Chief Marketing Officer (“CMO”), see Han Dep. 32:2–9; Shin
testified that he was never asked to take on the
responsibilities of a CMO and never actually did so. See Shin
Dep. 55:5–56:25. They agree that towards the end of his
employment, Shin also assisted Han in managing the defendants’
warehouse. Pl. 56.1 ¶¶ B(b)(5); see Oct. 26, 2021 Han Dep.
36:13-20.
They also diverge in their descriptions of his
compensation structure: Shin says he was to be paid weekly, Pl.

56.1 at (B)(b)(12)-(13), whereas the defendants claim he was
compensated through car payments and paid a base weekly salary
and monthly commission based on sales, Def. 56.1 Response ¶¶
(B)(1)(12)-(13); Def. Han Decl. ¶¶ 17-18.
It is undisputed that Shin spent seven months based in
Cleveland, Ohio, during which he also traveled to Pittsburgh for
work. Pl. 56.1 at ¶¶ (B)(b)(14)-(15). He also spent seven
months in Orlando, Florida, during which time he occasionally
worked in Georgia. See Shin Dep. 83:7-15, 101:4-15; Han Decl. ¶
13.
Shin moves for summary judgment on each of his claims.

The defendants oppose summary judgment, arguing that Shin, too,
is an exempt outside salesman, though (unlike with Choi) they
have not moved affirmatively for summary judgment on this basis.
As an alternative basis for denying Shin’s motion, the
defendants contend that Shin qualifies for the administrative
exemption, and / or that he is exempt under the “combined
exception,” for employees who perform multiple types of exempt
work. They also deny that he ever worked more than forty hours
per week. Defs. Mem. in Opp. to Pl. Summary Judgment (“Def.
Opp.”) 9-17, ECF No. 72.
Rachel Son. Plaintiff Son worked for the defendants
from May 2018 to March 2019. Pl. 56.1 ¶ B(d)(29); Han Decl. ¶

38. She performed “basic” “office job” duties including filing
and answering phones. Dep. of Rachel Son (“Son Dep.”) 11:17-
12:8, ECF No. 70-8. Son moves for summary judgment on each
claim. The defendants concede that Son is non-exempt, but they
oppose summary judgment nonetheless, contending there is a
material dispute over whether she ever worked more than forty
hours in a workweek. Def. Opp. 20-22.
Ji Hun Kim. Plaintiff Kim worked for the defendants
from approximately January or February 2016 to December 2017.
See Pl. 56.1 ¶ B(c)(18); Han Decl. ¶ 27. Like Son, Kim worked
in administrative roles at the corporate defendants’ offices.
See Pl. 56.1 ¶¶ B(c)(19), (30); Han Decl. ¶ 45. Her duties
included accounting, billing, and customer relations. See Dep.

of Ji Hyun Kim (“Kim Dep.”) 7:18-20, 11:21-23, ECF No. 70-6.
The parties dispute the scope of Kim’s authority. Han described
Kim as an “office manager” with the ability to hire, fire, and
train employees. Han Dep. 33:18–35:6; Han Decl. ¶ 31. But Kim
disputes that she ever held that title or any supervisory
responsibilities. Kim Dep. 15:11–22, 19:13-23. Kim also moves
for summary judgment on each claim; the defendants assert she is
an exempt administrative employee and see genuine disputes of
material fact as to the number of hours she worked.
* * *
Defendants’ Record-Keeping. The defendants concede

that they maintained no time clock, timecard machine, or other
standardized procedure to track any of the hours that the
plaintiffs worked. Pl. 56.1 ¶ A(6); see Han Dep. 25:1–9, 66:24–
67:2. They likewise admit that the plaintiffs never received
any “time-of-hire” notices or pay stubs. Pl. 56.1 ¶¶ B(a)(13),
B(b)(17), B(c)(28), B(d)(36); see Def. 56.1 Response 8, 13, 17,
20.
II. Legal Standard
Summary judgment is appropriate when the record
demonstrates that “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter
of law.” Fed R. Civ. P. 56(a). “A fact is material for these
purposes if it might affect the outcome of the suit under the
governing law. An issue of fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263
F.3d 208, 212 (2d Cir. 2001).
The moving party has the burden of demonstrating the
absence of a dispute of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). The movant can carry
that burden by “pointing out to the district court . . . an
absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the movant carries its burden, “the nonmoving party
must come forward with admissible evidence sufficient to raise a
genuine issue of fact for trial in order to avoid summary
judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d
Cir. 2008). If the non-moving party fails to do so, the Court
should grant summary judgment. In performing this analysis, the
Court must “construe the facts in the light most favorable to
the non-moving party and must resolve all ambiguities and draw
all reasonable inferences against the movant.” Cunningham v.
Cornell Univ., 86 F.4th 961, 980 (2d. Cir. 2024).
When plaintiffs and defendants cross-move for summary

judgment, “the court must evaluate each party’s motion on its
own merits, taking care in each instance to draw all reasonable
inferences against the party whose motion is under
consideration.” Heublein, Inc. v. United States, 996 F.2d 1455,
1461 (2d Cir. 1993).
III. Discussion
A. Rule 56.1 Statement
Local Rule 56.1(a) requires that a short and concise
statement of undisputed material facts be filed with any motion
for summary judgment. The rule further provides that “[f]ailure
to submit such a statement may constitute grounds for denial of
the motion.” As mentioned above, the defendants have not

submitted an affirmative 56.1 statement in support of their
motion for partial summary judgment. Still, “[a] district court
has broad discretion to determine whether to overlook a party’s
failure to comply with the local rules,” including Rule 56.1.
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001),
abrogated on other grounds by Gross v. FBL Fin. Servs., 557 U.S.
167, 176 (2009). The Court “may in its discretion opt to
conduct an assiduous review of the record even where one of the
parties has failed to file such as statement.” Id.; see also
Gilani v. GNOC Corp., No. 04-CV-2935, 2006 WL 1120602 (E.D.N.Y.
Apr. 26, 2006) (looking past parties’ failure to submit 56.1
statements and ruling on summary judgment motion based on the
record).3 I consider the defendants’ motion on its merits.
B. Plaintiffs’ Overtime Claims

The Fair Labor Standards Act and New York Labor Law
both require employers to pay time-and-a-half for hours worked
in excess of forty per week, unless a given employee falls into
one or more exempt categories. 29 U.S.C. § 207; Isett v. Aetna
Life Ins. Co., 947 F.3d 122, 125 (2d Cir. 2020). All plaintiffs
assert that they were non-exempt employees, that they worked
overtime, and that the defendants failed to pay them time-and-a-
half.
The defendants respond that there are genuine disputes
of material fact regarding whether Plaintiffs were exempt

employees and worked overtime. And as to plaintiff Choi, the
defendants cross-moved for summary judgment arguing there is no
genuine dispute of material fact that he was an exempt employee.
As set forth below, the defendants are entitled to
summary judgment based on Choi’s exempt status. There are,
however, triable issues of fact about the other three

3 This approach can be appropriate when, as here, all parties cite to
the record in their briefing. See Conte v. Cnty. of Nassau, No. 06-CV-4746,
2010 WL 3924677, at *1 n.2 (E.D.N.Y. Sept. 30, 2010).
plaintiff’s employment. Accordingly, none of the plaintiffs are
entitled to summary judgment on their overtime wage claims.
1. FLSA and NYLL Overtime Requirements

The FLSA generally requires employers to pay employees
overtime compensation for work in excess of forty hours per
week. 29 U.S.C. § 207(a). The NYLL has the same requirement.
See N.Y. Lab. L. § 651; 12 N.Y.C.R.R § 142-2.2.4
“To establish liability under the FLSA for a claim for
unpaid overtime, a plaintiff must prove that [he or she]
performed work for which [he or she] was not properly
compensated, and the employer had actual or constructive
knowledge of that work.” Kuebel v. Black & Decker Inc., 643
F.3d 352, 361 (2d Cir. 2011). The plaintiffs’ burden is
diminished, however, when an employer has not kept time records.
Both the FLSA and NYLL require employers to maintain
records of their employee’s work hours and wages. See 29 U.S.C.

§ 211(c); N.Y. Lab. L. §§ 196-a, 195(4). Here, the defendants
admit that they did not do so. Defs. 56.1 Response ¶ 6; Han
Decl. Tr. 66:24-67:2. Because of this, the plaintiffs “need
only present sufficient evidence to show the amount and extent

4 The NYLL may require an employer to pay overtime even when the FLSA
does not. See 12 N.Y.C.R.R § 142-2.2; Hayward v. IBI Armored Services Inc.,
954 F.3d 573, 575-76 (2d Cir. 2020) (under the NYLL, “employees subject to
FLSA exemptions” may be “nonetheless entitled to overtime compensation at a
rate of one and one-half times the minimum wage”).
of the uncompensated work as a matter of just and reasonable
inference.” Kuebel, 643 F.3d at 362.
A plaintiff may meet this burden “through estimates”
formed “based on his own recollection.” Id.; see Doo Nam Yang
v. ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005). “It is

well settled that this burden may be met solely through a
plaintiff’s testimony . . . .” Canela-Rodriguez v. Milbank Real
Est., No. 09-CV-6588, 2010 WL 3701309 (S.D.N.Y. Sept. 20, 2010);
see also Mangoni v. Smith & Laguercia, LLP, 661 F.Supp.2d 412,
417 (S.D.N.Y. 2009) (“[Plaintiff] has provided evidence of the
approximate number of hours for which she believes she is
entitled to overtime compensation, and Defendants dispute this
evidence. There is therefore a genuine dispute of material fact
on the issue.”). Once the plaintiff has submitted such
evidence, the burden shifts to the employer to present “evidence

of the precise amount of work performed or . . . evidence to
negative the reasonableness of the inference to be drawn from
the employee’s evidence.” Kuebel, 643 F.3d at 362.
2. Exemptions
Certain employees, however, are exempt from the FLSA’s
overtime protections. 29 U.S.C.A. § 213. The NYLL’s overtime
provisions likewise turn on these exemptions. See 12 N.Y.C.R.R.
§ 142–2.2 (providing different overtime coverage to employees
who are exempt under the FLSA than those who are not); id. at
§ 142–2.14 (excluding “outside salesperson[s]” and individuals
employed in an “[e]xecutive, administrative, or professional
capacity” from the NYLL’s definition of “employee” for overtime

pay). Where the same exemptions are relevant to the NYLL and
the FLSA, courts conduct a single analysis. See, e.g., Ramos v.
Baldor Specialty Foods, Inc., 687 F.3d 554, 556 n.1 (2d Cir.
2012); Kinney v. Artist & Brand Agency LLC, 13-cv-08864, 2015 WL
10714080 at *12 (S.D.N.Y. Nov. 25, 2015), report and
recommendation adopted, Case No. 13-cv-08864, 2016 WL 1643876
(S.D.N.Y. Apr. 22, 2016). The employer “bears the burden to
establish the applicability of an[y] exemption under the FLSA.”
Flood v. Just Energy Mktg. Corp., 904 F.3d 219, 227 (2d Cir.
2018). Two exemptions are at issue in this case: the “outside
salesperson” and “administrative” exemptions. If the employee’s
primary duties involve a combination of exempt categories — for

example, if she spends half her time on exempt “executive” work,
and half working as an outside salesperson, the employee will be
exempt under the “combined exception.” 29 CFR § 541.708.
Outside Salespeople. The FLSA’s overtime provisions
do not apply to “any employee employed . . . in the capacity of
outside salesman.” 29 U.S.C. § 213(a)(1). Congress delegated
authority to the Department of Labor to “issue regulations from
time to time to define and delimit” the term outside salesman.
Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 147
(2012). “In light of the statute’s express delegation to the
Secretary of Labor, all of these regulatory definitions have the
force of law as much as though they were written in the
statute.” Flood v. Just Energy Marketing Corp., 904 F.3d 219,

228 (2d Cir. 2018).
As the DoL currently defines it, an outside salesman
is an employee whose “primary duty” is “making sales” or
“obtaining orders or contracts,” and who is “customarily and
regularly engaged away from” the employer’s premises in that
effort. 29 C.F.R. § 541.500(a); see also 12 N.Y.C.R.R. § 142–
2.2 (applying FLSA Exemption 13(a)(1), the outside salesman
exemption); 12 N.Y.C.R.R. § 142–2.14(c)(5) (defining outside
salesperson). The term “sale” is defined to include “any sale,
exchange, contract to sell, consignment for sale, shipment for
sale, or other disposition.” 29 U.S.C. § 203(k).
Administrative Employees. The FLSA’s overtime

provisions do not apply to “any employee employed in a bona
fide . . . administrative . . . capacity.” 29 U.S.C.
§ 213(a)(1); see also 12 N.Y.C.R.R. § 142–2.2 (applying FLSA
Exemption 13(a)(1)); id. § 142–2.14(4)(ii) (definition of
administrative capacity). The administrative exemption applies
to an employee “[w]hose primary duty is the performance of
office or non-manual work directly related to the management or
general business operations of the employer or the employer’s
customers.” 29 C.F.R. § 541.200(a)(2) (2019). Clerical roles
do not qualify: the administrative employee’s duties must
include “the exercise of discretion and independent judgment
with respect to matters of significance.” Id. § 541.200(a)(3).
Identifying Primary Duties. In the context of both

exemptions, the phrase “primary duty” refers to the “principal,
main, major or most important duty that the employee performs,”
based on the totality of the relevant circumstances. 29 C.F.R.
§ 541.700(a). The identification of a primary duty depends on
“all the facts in a particular case, with the major emphasis on
the character of the employee’s job as a whole.” Id. That
said, “employees who spend more than 50 percent of their time
performing exempt work will generally satisfy the primary duty
requirement.” Id. § 541.700(b).
The DoL has identified four non-exclusive factors

relevant to this determination: (1) “the relative importance of
the exempt duties as compared with other types of duties”; (2)
“the amount of time spent performing exempt work”; (3) “the
employee’s relative freedom from direct supervision”; and
(4) “the relationship between the employee’s salary and the
wages paid to other employees for the kind of nonexempt work
performed by the employee.” Id. § 541.700(a); see Domenech v.
Parts Authority, Inc., 653 F. App’x 26, 27 (2d Cir. 2016). The
DoL has also adopted “primary duty” regulations specific to
certain types of employment. One is relevant here: the
regulations defining the outside-sales exemption provide
guidance on how to identify the primary duties of “[d]rivers who
deliver products and also sell such products.” See 29 C.F.R.

§ 541.504(a).
While these exemptions were previously narrowly
construed, that is no longer the case; courts now “have no
license to give the exemption anything but a fair reading.”
Vasto v. Credico (USA) LLC, 767 F. App’x 54, 56 (2d Cir. 2019);
see also Encino Motorcars, LLC v. Navarro, 584 U.S. 79, 89
(2018) (“Those exemptions are as much a part of the FLSA’s
purpose as the overtime-pay requirement.”). “The question of
how an employee spends his or her time working is one of fact,
while the question of whether those work activities exempt him
or her from the FLSA is one of law.” Flood, 904 F.3d at 227.
3. Plaintiff Choi

Both Choi and the defendants move for summary judgment
on Choi’s overtime claims. The defendants’ motion is based on
their contention that Choi was an “outside salesperson” and is
therefore exempt from the overtime-wage requirements at issue.
To succeed, the defendants must demonstrate that there is no
genuine dispute that the exemption’s two requirements are
satisfied: (1) Choi’s “primary duty” was making sales, and (2)
he was “customarily and regularly engaged away from his
employer’s place of business in performing that duty.” 29
C.F.R. § 541.500(a). In conducting this analysis, courts look
not only to the wording of the exemption itself, but also to the

examples of outside salespeople that the DoL has provided at 29
C.F.R. §§ 541.504(c)(1)–(4). And some courts have looked to
certain “indicia” or “hallmarks” of sales work, including the
receipt of commissions. See, e.g., Heras v. Metropolitan
Learning Inst. Inc., Case No. 19-cv-2694, 2023 WL 5810784 at *9
(E.D.N.Y Aug. 18, 2023; Martin v. Sprint United Mgmt. Co., 273
F. Supp. 3d 404, 439–40 (S.D.N.Y. 2017).
Choi argues that he does not qualify for the exemption
because:
he was not paid commissions for much of his
employment with Defendants, he spent a
significant portion of his workday at
Defendants’ offices loading, organizing or
unloading his vehicle or entering
information into Defendants’ computer
systems, and he was required to regularly
work in Defendants’ offices on Saturdays to
perform inventory and organize the
warehouse.

Choi Letter in Opposition to Def. Mot. for Summary Judgment
(“Choi Opp.”), ECF 84 at 2. These arguments do not carry the
day.
Choi does not dispute that his role included “making
sales.” And the undisputed facts show that to have been his
primary duty.
The DoL construes sales activity broadly, to include
efforts in preparation for the selling effort as well as the
sales pitch itself. “In determining the primary duty of an

outside sales employee, work performed incidental to and in
conjunction with the employee’s own outside sales or
solicitations, including incidental deliveries and collections,
shall be regarded as exempt outside sales work.” 29 C.F.R.
§ 541.500(b); 5 see also 29 U.S.C. § 203(k) (defining “sale” to
include an ”exchange,” “consignment,” “shipment for sale, or
other disposition.” And Section 541.504, which addresses
salespeople who drive, states: “In determining the primary duty
of drivers who sell, work performed incidental to and in
conjunction with the employee’s own outside sales or
solicitations, including loading, driving or delivering
products, shall be regarded as exempt outside sales work.”

Choi testified that he was “hired as a salesperson”
and originally worked the “Brooklyn route.” Choi Dep. 9:25-
10:2, 79:20-25. He had “seven to eight” years of sales
experience when he joined the defendant companies. Id. at 32:7-
10. In lieu of formal training with the defendants, he “went
out with a former salesperson on the sales route together” for

5 The same regulation continues: “Other work that furthers the
employee’s sales efforts also shall be regarded as exempt work including, for
example, writing sales reports, updating or revising the employee's sales or
display catalogue, planning itineraries and attending sales conferences.”
Id.
“two to three weeks” after he started. Id. at 31:5-11. His
“job involved door-to-door work,” as he visited and sold tools
to the customers along his route. Id. at 87:3–5, 180:23-24.

Choi testified that his sales performance grew over
time: after five or six months in the role, he “was at the top”
of the sales group in terms of volume of goods sold. Id. at
137:22-138:6; 170:8-10. In his assessment, “new accounts [that
he] established” had a “closer relationship with [him] than the
company itself.” Id. at 33:19-22. See Chenensky v. N.Y. Life
Ins. Co., 7-CV-11504, 2009 WL 4975237, at *5 (S.D.N.Y. Dec. 22,
2009) (considering, among other “hallmark activities,” “whether
the employee independently solicits new business”).
He also spent a substantial amount of his time on the
road, showing he was “customarily and regularly engaged away
from his employer’s place of business in performing [his sales]

duty.” 29 C.F.R. § 541.500(a). Choi described his work as
“door-to-door visiting [of customers] and driving.” See Choi
Dep. at 86:2-3, 87:3–5. He testified that he “would mostly
arrive at 8:00, and [do] the loading and unloading for about an
hour or an hour and a half,” and then “leave right away” for his
sales route. Id. at 179:22-180:13. After he visited “12 to 15
[customer] locations a day,” id. at 166:15-16, he would return
to the office by 5:00 P.M. to “do loading and unloading and
input information in the computer,” id. at 182:14-22. See 29
C.F.R. § 541.500(b) (exempt sales work includes “writing sales
reports, updating or revising the employee’s sales or display
catalogue, [and] planning itineraries”).

Based on this evidence, “no reasonable juror could
conclude that Plaintiff’s non-sales duties accounted for more
than 50% of his job duties—particularly because Plaintiff admits
that they took less than half of his work time.” Tortorici v.
Bus-Tev, LLC, No. 17-CV-7507, 2021 WL 4177209, at *2 (S.D.N.Y.
Sept. 14, 2021). And “employees who spend more than 50 percent
of their time performing exempt work will generally satisfy the
primary duty requirement.” 29 C.F.R. § 541.700.
In opposing the outside-salesman designation, Choi
relies, first, on the assertion that he was not paid on
commission for “much of his employment” — a reference to the
second period of Choi’s work for Defendants. But the Second

Circuit has counseled that the outside-sales analysis should
turn on the contents of the “regulation defining what it means
for an employee to be ‘making sales,’” Flood, 904 F.3d at 233,
and that regulation does not require commission payments. It is
true that the Supreme Court referred to the pharmaceutical
employees in Christopher as bearing the “external indicia of
salesmen,” including that “they were rewarded for their efforts
with incentive compensation.” 567 U.S. at 166. But as the
Second Circuit has noted, this was a “passing reference.”
Flood, 904 F.3d 233; see also Vasto v. Credico, 767 Fed. App’x
54, 57 (2d. Cir. 2019)(plaintiffs’ invocation of the “indicia of
outside salespersons” referred to “what is arguably dicta in
Christopher”). Moreover, nothing in Christopher (whether dicta

or not) suggests that each and every indicium is a necessary
condition for the exemption’s application.6
The DoL regulations at issue are plainly focused on
the nature of the work the employee does, rather than the manner
of compensation. See 29 C.F.R. §§ 541.500, 541.504. Moreover,
the regulations’ single reference to commission-based
compensation actually militates against a determination that
such compensation is a necessary condition to the exemption’s
application. In Section 504’s list of four examples of drivers
who may qualify as exempt, the first one refers explicitly to a
driver who “receives compensation commensurate with the volume
of products sold.” Id. § 541.504(c)(1). The next three

examples, in contrast, make no reference to compensation at all.
See id. This omission plainly suggests that commission
compensation is not a necessary ingredient. Further, the nature

6 In Christopher, the Court referenced five potential indicia of an
outside salesman: “sales experience,” sales training, “work[ing] away from
the office,” “minimal supervision,” and “incentive compensation.”
Christopher, 567 U.S. at 165-66. The Second Circuit has counseled against
over-reliance on these indicia. Flood, 904 F.3d at 233 n.8. Even so, of the
Christopher indicia, all but one clearly favor categorizing Choi as an exempt
outside salesperson: He was hired for his sales experience, see Choi Dep.
32:7-10, 92:11-20, received on-the-job sales training, see id. at 31:5-11,
worked away from the office regularly, see id. at 87:3-5, 166:13-23, 180:23-
24, and was relatively minimally supervised, see id. at 86:9-87:24, 166:9-12.
of Choi’s employment maps neatly onto the characteristics listed
in three of the DoL’s examples. He “obtain[ed] or solicit[ed]
orders for the employer’s products from persons who ha[d]
authority to commit the customer for purchases.” 29 C.F.R..
§ 541.504(c)(2); see Choi Dep. 33:19-22, 51:13-15, 165:10-

166:12. And the record reflects that Choi both “call[ed] on new
prospects” and “established customers” along his sales route to
persuade them “to accept delivery of increased amounts of goods
or of new products.” 29 C.F.R. §§ 541.504(c)(3)–(4); see Choi
Dep. 33:11-22, 92:11-20, 166:15-16.
Choi briefly argues that the outside salesman
exemption is intended to apply to employees who “typically earn
salaries well above minimum wage,” and that he did not. Choi
Opp. at 1-2. But, the Second Circuit has rejected the argument
that “poor[] compensation” means someone is not an outside
salesman. Vasto, 767 Fed. App’x 54, 57. “In the absence of

words in the statute or regulation that require consideration of
the plaintiff’s level of compensation when deciding if an
employee is ‘making sales,’ we decline to add a ‘subject to
compensation’ exception to the ‘making sales’ requirement of the
outside salesmen exemption under the FLSA.” Id. Choi’s
argument is thus unavailing.
Choi also points to evidence of his other job
responsibilities, which he characterizes as unrelated to making
sales. These include: organizing his assigned sales truck,
making deliveries, collecting payment, exchanging defective
products, entering sales information into the computer system,

and organizing the warehouse and taking inventory. Pl. 56.1 ¶
B(a)(2); see also Choi Dep. 74:16-20 (“I’m suing because I
didn’t get overtime for all the loading and unloading delivery
and driving the van. That’s why I filed the lawsuit. They
wouldn’t pay me for that.”).
The majority of these tasks are, however, actually
consistent with the outside-salesperson exemption. This
includes loading and unloading: for drivers who sell, “loading
[and] delivering products” are expressly identified as exempt
work. 29 C.F.R. § 541.504(a). So are “incidental deliveries
and collections.” Id.; see also id. § 541.500(b) (stating that
“work performed incidental to and in conjunction with the

employee’s own outside sales . . . shall be regarded as exempt
outside sales work”).
To be sure, Choi has adduced evidence that he
performed tasks that are not explicitly exempted. Each of
these, however, is either clearly incidental to his sales work,
or took only a very small fraction of Choi’s time (or both).
For example, the defendants held monthly meetings for sales
employees. Pl. 56.1 ¶ 8. Although the record reveals little
about what transpired at those meetings, other district courts
have found sales meetings to be exempt activities. See
Cangelosi, 2015 WL 6107730, at *1 (finding “attending trade
shows and meetings” to be incidental to sales); Marcus v. AXA
Advisors, LLC, 307 F.R.D. 83, 99 n.20 (E.D.N.Y. 2015) (“[T]he

in-office follow-up meetings conducted by some 20th edition
agents could be considered in-office work ‘in conjunction with
the employee’s own outside sales’ within the meaning of 29
C.F.R. § 541.500.”). Given that these sessions are specifically
identified as sales meetings, Pl. 56.1 ¶ B(b)(8), there is no
logical reason to distinguish them from activities like
“attending sales conferences” which are specifically exempted.
In any event, these meetings took only an hour to three-and-a-
half hours a month. Id.
Choi also worked some Saturdays, for roughly six hours
a day (or, according to the defendants, three to four hours).

Pl. 56.1 ¶ B(a)(6); Def. 56.1 Resp. ¶ B(a)(6). He testified
that he worked on a Saturday “probably once a month, because we
had to check the inventory.” Choi Dep. at 103:4-17; see also
id. (“So they were afraid that salesmen might steal something,
so they have us check the inventory. That was about once a
month or every two months.”). In addition to this “inventory
check,” Choi and others “had to clean the van and [see to]
organization.” Id. 103:15-17; see also id. 107:12-13 (“Most of
the time when I went in [on Saturdays], it was to organize the
van.”).
For purposes of the defendants’ motion, and drawing

all inferences in Choi’s favor, we count the “inventory check”
that Choi testified about in the non-exempt category. Choi does
not specify what the check consisted of, but the deposition
transcript is fairly read to indicate that he was checking
inventory separate and apart from his own sales activity. See
Killion v. KeHE Distributors, LLC, 761 F.3d 574, 585-86 (6th
Cir. 2014) (describing inventory management for others as not
incident to sales). Even so, Choi testified he spent six hours
a month engaged in this activity. Adding those six hours to the
eight-hour days he worked, five days a week, yields a total of
166 hours a month. On that denominator, the six hours of
Saturday work constituted roughly 3.6% of his time. This is

well below the 50% threshold that generally satisfies the
“primary duty” test. 29 C.F.R. § 541.502.
Finally, Choi spent some amount of time exchanging
defective items. Pl. 56.1 ¶ B(a)(2). The parties agree that
the salespeople would do exchanges for “their” customers, see
id., and to the extent Choi was exchanging items that he had
sold himself, that work was clearly “directly and closely
related” to Choi’s exempt sales work and therefore was itself
exempt. 29 C.F.R. § 541.703. Indeed, as the DoL’s “Making
Sales” regulation points out, the authorizing statute itself
defines a “sale” to include any “exchange” or “other
disposition.” Id. § 541.501(b) (citing 29 U.S.C. § 203); see
also Chenensky, 2009 WL 4975237, at *6 (holding that maintaining

good relationships with and “presenting . . . solution[s]” to
customers constituted work incidental to sales).
The undisputed record therefore indicates that Choi
was an exempt outside salesman and Defendant’s summary judgment
motion on Choi’s FLSA and NYLL overtime wage claims is granted.
4. Plaintiff Shin
a. Material disputes of fact exist regarding whether
Shin qualifies as an exempt outside salesperson
Shin moved for summary judgment on all counts; the
defendants did not cross-move but they oppose Shin’s motion by
arguing he should be treated as an exempt outside salesman. As
noted above, for Shin to be treated as an exempt outside
salesman, the defendants must raise triable issues of fact that:
(1) his primary duty was “making sales,” and (2) he was
“customarily and regularly engaged away from [his] employer’s
place of business” in performing that duty. 29 U.S.C.
§ 213(a)(1). Shin effectively concedes the second prong. He
testified to spending most of his day on the road when working

out of New York. Shin Dep. 24:5-13, 26:21-23. And for the
seven months he spent in Cleveland and seven months he spent in
Florida, he maintained a similar schedule on the road. Id. at
25:25-26:2, 113:20-22, 121:22-122:5.
The first prong has two elements: does the employee
make sales and is that the employee’s primary duty. See 29

U.S.C. § 213(a)(1). On this prong, Shin does not dispute that
he made sales and a reasonable juror could comfortably conclude
that that was Shin’s primary duty. First, as to the relative
importance of his exempt and non-exempt duties, Shin’s own
deposition testimony indicates that his position primarily
involved making sales. Shin testified that he was hired for a
sales position and remained “a salesman,” even if “doing other
things as well.” Shin Dep. at 11:21-24, 26:14-19. Like Choi,
he would drive a truck along an assigned route to solicit and
make sales to customers. Id. at 24:8-10, 26:20-27:13. When
Shin first started at the company, he covered routes for other
sales representatives while they were away. Id. at 29:22-30:4.

His time in Cleveland is particularly indicative of a sales
focus. Shin testified that, while Cleveland had no existing
customers when he arrived, he was able to establish at least
fifty to seventy customers in the area. Id. at 30:7-16, 115:18-
21. He also was a primary point of contact between customers
and the company; for example, he would give customers his
personal number, which they would call directly. Id. at 28:4-
16.
Shin asserts that he, like Choi, had various other job

responsibilities that were unrelated to making sales, including:
organizing products in the defendants’ trucks, making product
deliveries, and organizing the warehouse and taking inventory.
See Pl. 56.1 ¶ B(b)(4); Pl. Mem. 10–11. Shin estimated, for
example, that he spent fifty to eighty minutes every morning
loading up his van prior to leaving for his sales route. Shin
Dep. 24:5-22. He also testified that he would spend minutes to
an hour daily logging sales after he had finished his route.
Id. at 27:5-11. At the very least, the defendants raise triable
issues of fact as to whether these activities were “incidental
to and in conjunction with the employee’s own outside sales or
solicitations.” 29 C.F.R. § 541.500(b).

Second, evidence in the record reflects that Shin
spent the majority of his time visiting clients to make sales.
Shin testified that he spent most of his day on the road: he
would spend fifty to eighty minutes in the morning loading his
van and then leave between 8:30 a.m. and 9:00 a.m.; drive his
route; and then return to the office between 5:00 p.m. and 7:00
p.m. to input sales information into the office computers. See
Shin Dep. 24:5-22, 26:23-27:13.
Third, Shin’s relative lack of supervision supports

the outside sales exemption. The defendants point, in
particular, to Shin’s time in Cleveland, where he successfully
built up the company’s customer base and sales through his
efforts. Shin testified that he gave his personal number to
customers and could adjust his route based on calls from them.
Id. at 30:13-16. He also testified that he had authority to
negotiate price with customers, provided a certain minimum was
achieved. Id. at 34:16-21.
In the end, the record does not clearly establish
Shin’s duties throughout the length of his tenure. For example,
in addition to his salesman duties, and those described below in
relation to the administrative exemption, Shin also helped

manage the defendants’ warehouse for the last year of his
employment. Pl. 56.1 ¶ 5. Han testified that Shin did this
with Han and one other individual after Jiwoo Han left the
company (which was in March 2018). Han Dep. 36:13-23. The
record does not indicate precisely what this warehouse-
management role entailed, or how long Shin spent on it.
Thus, because the defendants raise triable issues of
fact regarding whether Shin falls within the outside salesman
exemption, summary judgment is denied on his overtime wage
claims.
b. Disputes of fact remain as to whether Shin
qualifies as an exempt administrative employee
The defendants also assert that Shin was a “bona fide
administrative” employee and therefore exempt from the FLSA and
NYLL’s overtime-pay requirement. Administrative employees are
those who are “[c]ompensated on a salary or fee basis” in
accordance with certain salary requirements, and whose primary
duty: (1) is the performance of office or non-manual work

directly related to the management or general business
operations of the employer or the employer’s customers; and (2)
includes the exercise of discretion and independent judgment
with respect to matters of significance.” 29 C.F.R. § 541.200;
Isett v. Aetna Life Ins. Co., 947 F.3d 122, 127 n.7 (2d Cir.
2020). The NYLL similarly recognizes an administrative employee
exemption, see 12 N.Y.C.R.R. § 142-2.1(c)(4)(ii), and courts
typically conduct one combined analysis. See, e.g., Timberg v.
Toombs, No. 20-CV-6060, 2022 WL 954739, at *5 (E.D.N.Y. Mar. 30,
2022) (collecting cases); Sethi v. Narod, 974 F. Supp. 2d 162,
184 (E.D.N.Y. 2013).7

7 The NYLL exemption also requires that the individual “regularly and
directly assist[] an employer, or an employee employed in a bona fide
executive or administrative capacity (e.g., employment as an administrative
assistant),” or “perform[], under only general supervision, work along
specialized or technical lines requiring special training, experience or
First, the parties do not dispute that Shin’s
compensation met the FLSA’s base-salary threshold in full and
the NYLL’s threshold in part. During the relevant period,

FLSA’s administrative exemption applied to employees who
received a base salary exceeding $455 per week. 29 C.F.R.
§ 541.200(a). The NYLL also has a base-salary requirement,
which was as follows for New York City employers with eleven or
more employees: $825.00 per week, from December 31, 2016 through
December 30, 2017; $975.00 per week from December 31, 2017
through December 30, 2018; and $1,125.00 per week after December
31, 2018. 2 NY.C.R.R. 142-2.14(c)(4)(i)(1).
Han attested that Shin’s salary was $560 per week from
July 4, 2016 to July 10, 2016; $600 per week from July 11, 2016
to September 11, 2016; $650 per week from September 12, 2016 to
November 6, 2016; November 7, 2016 to January 31, 2017, $700.00

per week; and $1,800 per week from February 1, 2017 to March 8,
2019. Han Decl. ¶ 12. Shin does not dispute these
representations. Thus, Shin’s salary exceeded the FLSA minimum
for the full period of employment and exceeded the NYLL minimum
from February 1, 2017, through the end of his employment.
Because his salary does not meet the NYLL threshold from July 4,
2016 to February 1, 2017, the defendants argue instead that the

knowledge” — in addition to the salary minimum, office or nonmanual work, and
exercise of discretion and independent judgment requirements found in FLSA.
12 N.Y.C.R.R. § 142–2.14(c)(4)(ii).
outside salesman exemption should apply to this time period for
that claim.
There are, however, disputes of fact regarding whether

Shin’s primary duty of office or non-manual work directly
related to management or general business operations of the
employer or employer’s customers.” 29 C.F.R. § 541.200(a)(2).
To satisfy the second element of the administrative exemption,
an employee must “perform work directly related to assisting
with the running or servicing of the business, as distinguished,
for example, from working on a manufacturing production line or
selling a product in a retail or service establishment.” 29
C.F.R. § 541.201(a). “[E]mployees performing general
administrative work applicable to the running of any business”
may fall within the administrative exemption, while “employees
directly producing the good or service that is the primary
output of a business” do not. Davis v. J.P. Morgan Chase & Co.,

587 F.3d 529, 535 (2d Cir. 2009).
As most relevant here, administrative operations may
include “advising the management, planning,” “representing the
company,” “promoting sales,” and “business research and
control.” Reiseck v. Universal Commc’ns of Miami, Inc., 591
F.3d 101, 106 (2d Cir. 2010) (citing 29 C.F.R. § 541.205(b)).
“[S]ales promotion consists of marketing activity aimed at
promoting (i.e., increasing, developing, facilitating, and/or
maintaining) customer sales generally,” and “an employee
encouraging an increase in sales generally among all customers
is an administrative employee” under FLSA. Id. at 107.

The record contains evidence that, notwithstanding the
parties’ dispute over his formal title, Shin engaged in some
sales promotion activities — and not simply sales — during his
employment. The defendants point, in particular, to his work
outside New York. Shin was sent to Cleveland for seven months,
where he developed a new market from scratch, identified
potential customers, and established the company brand. Shin
Dep. 30:7-16, 115:18-21. After creating a viable sales
territory there, he identified and trained a salesman to take on
a sales role in that territory. Id. at 84:11-13. He also went
to Orlando for seven months, where he was tasked with helping a
struggling regional manager, “mak[ing] a sales territory” and
expanding the customer base. Id. at 114:20-115:21.

Additionally, Shin traveled to Columbus, Ohio to conduct market
research, see id. at 92:18-19, and went to Las Vegas at least
once a year to attend a trade show, where he met wholesalers and
performed market research into the products sold by potential
competitors, see id. at 93:24-95:5.
Disputes of fact also exist as to the third element of
the exemption: whether Shin’s primary duty included “the
exercise of discretion or independent judgment on matters of
significance.” 29 C.F.R. § 541.200(a)(3). Exercising
discretion and independent judgment “involv[es] the comparison
and the evaluation of possible courses of conduct, and acting or

making a decision after the various possibilities have been
considered.” Id. § 541.202(a). Responsibilities like “clerical
or secretarial work, recording or tabulating data, or performing
other mechanical, repetitive, recurrent or routine work” do not
count. Id. § 541.202(e). “Matters of significance,” in turn,
“refers to the level of importance or consequence of the work
performed.” Id. § 541.202. The defendants proffer evidence
that Shin’s work required him to exercise discretion and
independent judgment— again, especially during his time outside
of New York. As discussed above, he established a new market
for the company in Cleveland, which efforts included identifying
and training a new salesman for that area, and worked to expand

the customer base in Orlando. Shin Dep. 83:6-84:13. While
Plaintiffs assert that Han “made [the] decisions about expanding
the [Cleveland and Orlando] territory[ies] and hiring new
salespeople there,” they concede that Chin went to “set up new
sales territories” in those cities. See Pl. Mem. 5. Han also
attested that Shin supervised and trained various other
employees, including salesman in Florida, Georgia, and New York.
See Han Decl. ¶ 16. These responsibilities at least raise
triable issues of fact as to whether Shin exercised discretion
and independent judgment.
In sum, disputes of material fact remain regarding

whether Shin is exempt as an individual employed in an
administrative capacity, apart from or in addition to the
applicability of the outside salesman exemption. Summary
judgment as to Shin’s overtime wages claim is therefore denied.
c. Material disputes of fact exist regarding Shin’s
working hours
Genuine disputes of facts also exist regarding Shin’s
hours during his time spent working in New York. On the one
hand, Shin testified that he generally reported to work at 7:40
a.m., but many times came in before then. Shin Dep. 18:19-
19:14, 59:4-18. On weekdays, an early return to the office from
his sales route was 5:00 p.m., but he often did not return until
6:00 p.m. or 7:00 p.m., and sometimes as late as 10:00 p.m.,
depending on how far he had to travel. Id. at 26:20-27:13,
49:20-50:3. Shin further testified that the defendants held
monthly meetings on Friday evenings for sales employees, which
would start at 7:30 p.m. or 8:00 p.m. and end around 10:00 p.m.
or 11:00 p.m. Id. at 52:23-53:22. He also often had to work
Saturdays and Sundays, including doing inventory once or twice a
month, which “usually [took] six to seven hours.” Id. at 74:13-

75.
In rebuttal, the defendants offer evidence regarding
the salespeople’s typical workdays, early morning hours, and the
frequency and duration of weekend work: namely, that salespeople

arrived in the morning around 8:00 a.m. and returned in the
afternoon between 3:00 p.m. and 5:30 p.m. See Han Decl. ¶ 4,
23; Jiwoo Han Decl. ¶ 5. Han also placed the frequency and time
of weekend work as occurring only “once every three or six
months” and lasting three to four hours each time. See Han Dep.
104:21–22; Han Decl. ¶ 25.
The defendants do not, however, dispute Shin’s
assertions of hours worked during his seven months in Ohio and
seven months in Florida. At his deposition, Shin testified that
he worked three days in Pittsburgh and two days in Cleveland
each week, and sometimes on Saturday. See Shin Dep. 83:8-11.
On days that he went to Pittsburgh, he would leave at 5:00 a.m.
and finish work at 8:00 p.m. or 9:00 p.m. Id. at 83:11-15.

According to Shin, he maintained this schedule for the “whole
six months.” Id. at 83:16-19. Similarly, Shin testified that,
while working in Florida, he worked from 8:00 a.m. until 6:00
p.m. or 7:00 p.m. every day, and worked on Saturdays three times
a month. Id. At 121:24-122:20. The defendants point to no
evidence to rebut these assertions. See Def. 56.1 Response 16–
17.
Notwithstanding the undisputed evidence indicating
that Shin worked more than forty hours at least during some
weeks, summary judgment is nevertheless denied because the

defendants raise triable issues of fact regarding whether he
falls within the outside salesman or administrative exemption
(or a combined exemption).
5. Plaintiff Kim
Jeannie Kim testified, and Han did not meaningfully
contest, that she worked more than forty hours during at least
some weeks. Kim stated that she started work at 9:00 a.m. and
“usually” stopped around 8:00 p.m., for 11 hours a day. See Kim
Dep. 10:21-11:12. Defendant Han, in turn, testified that Kim
“[s]ometimes left at 6:00, sometimes at 7:00, sometimes at
8:00.” Han Dep. 17:10–16; see Han Decl. ¶ 34. The parties
dispute whether Kim took a lunch break. Compare Kim Dep. 30:8-
19, with Han Decl. ¶ 45. Even assuming she did take a full

lunch break each day, however, her post-6:00 p.m. work would
have put her over the forty-hour limit and would require
overtime compensation. Indeed, the defendants only “[d]ispute
. . . how often she worked past 6:00” — not that she ever did
so. Def. 56.1 Response 16.
As with Shin, however, Kim is not entitled to summary
judgment on her overtime wage claims: Even if she worked more
than forty hours a week, the defendants raise triable issues of
fact regarding how often she did so and whether she is an exempt
administrative employee.
There is no dispute that Kim’s compensation exceeded

both FLSA’s and NYLL’s base salary thresholds, satisfying the
first requirement of the exemption. In her responses to the
defendants’ interrogatories, Kim stated that she was paid
$800.00 per week from the beginning of her employment on January
15, 2016 until September 18, 2016, and then paid $925.00 from
September 19, 2016 until the end of her employment on December
15, 2017. See Pl. Inter. Responses 3, ECF No. 70-17. Thus,
Kim’s salary exceeded the both the FLSA and NYLL minimum salary
thresholds throughout the relevant period. See 29 C.F.R.
§ 541.200(a); 2 NY.C.R.R. 142-2.14(c)(4)(i)(1).
Nor does Kim meaningfully dispute that her “primary
duty of office or non-manual work directly related to management

or general business operations of the employer or employer’s
customers.” 29 C.F.R. § 541.200(a)(2). See Pl. Memo at 11
(focusing only on whether defendants can show Kim exercised
discretion and independent judgment in performing her duties).
She therefore satisfies the second requirement of the
administrative exception.
The parties sharply dispute, however, the third part
of the administrative exemption: whether Kim’s primary duties
included “the exercise of discretion or independent judgment on
matters of significance.” 29 C.F.R. § 541.200(a)(3). Han
testified that Kim acted as the “office manager” and had the
authority to hire, fire, and train employees, which she

exercised on at least one occasion by recruiting and hiring a
new employee who later became her executive assistant. See Han
Dep. 33:18–35:6; Han Decl. ¶¶ 30, 35. He also attested that she
“took care of the office and managed the office employees,”
including by monitoring their punctuality. Id. at ¶¶ 30, 32.
The defendants argue this required discretion as she dealt with
personnel and showed Kim’s implementation of a significant
company policy. See Def. Opp. 19. According to the defendants,
Kim also “trained employees in managing account receivable and
payable software, data entry and management, customer relations,
financial record organizing, bookkeeping and other
administrative tasks.” Id. ¶ 31.

Kim tells a different story, asserting that she sought
direction from Han in deciding how to do her work and did not
supervise any other employees. See Pl. 56.1 ¶ B(c)(19)—(21);
Kim Dep. 15:15–22. For example, Kim disputed that she worked as
an office manager or supervised anyone in that role, and she
denied hiring or firing anyone during her employment. See Kim
Dep. 15:11–22, 19:13-23. She also testified that all personnel
paperwork was handled by Han or a CPA, and she was not involved
in personnel issues. See id. at 96:11-97:16, 84:25-85:10.
Ultimately, these factual questions regarding the
scope and responsibilities of Kim’s position are best left for a
jury to resolve. Because the defendants raise triable issues of

fact regarding whether Kim falls within the administrative
exemption, summary judgment is denied on her overtime wage
claims.
6. Plaintiff Son
Finally, material disputes of fact exist regarding
Rachel Son’s weekly hours. On the one hand, Son testified that
she could never leave before 6:00 p.m., because she had to wait
for salespeople to return to the office, input their invoices,
and collect their checks for depositing. Son Dep. 18:2-14,
60:20-63:8. She “mostly picked up [her] kid” from childcare at
7:00 p.m. because she left work late. Id. at 52:7-14. She also
deposited the checks collected from the salespeople each day

after leaving the office, which took between five and fifteen
minutes. Id. at 52:15-54:21. On several occasions, she made
these deposits after picking up her child from daycare. Id. at
75: 21-25. Son also testified that she only took fifteen to
twenty minutes for lunch and did not receive a break. Id. at
30:19-31:25. Plaintiffs point to ATM deposit receipts as late
as 9:00 p.m. as indicative of her long working hours.
On the other hand, Han states that Son was given a one
hour lunch break and left early before 6:00 p.m. every day to
pick up her child. Han Decl. ¶¶ 38, 45. As the defendants
point out, Han worked in the same office as Son and therefore
had personal knowledge of her work hours and lunch break. Def.
Opp 21; see Pl. 56.1 ¶ A(7). Son herself acknowledged that when

Han was in the office (in other words, not out of town or on a
business trip), “there was [n]ever a day when he left before
[she] did.” Son Dep. 83:10-18. The defendants also produced an
affidavit from Hannah Ko, the principal of Son’s child’s daycare
center for the relevant time period. See Aff. of Hannah Ko (“Ko
Aff.”), ECF No. 70-16. Ko stated that “Son generally dropped-
off her child between 8:30 am and 8:40 am” and “usually picked
up her child by 5:30 p.m.” Id. ¶¶ 3, 5. “[A]pproximately 5 to 6
days per month, she picked up her child between 6:00 p.m. and
6:10 p.m..” Id. ¶ 5.
Because there are factual disputes regarding Son’s

weekly hours, summary judgment on her overtime claims is denied.
C. Plaintiffs’ NYLL Wage Notice and Statement Claims
Plaintiffs also move for summary judgment on their
NYLL claims that the defendants failed to provide proper wage
notice and statements. Summary judgment is denied because the
defendants raise affirmative defenses that turn on Plaintiffs’
hours worked and applicable exemptions, which are disputed for
the reasons set forth above. Moreover, Plaintiffs will be
directed to show cause why these claims should not be dismissed
for lack of standing.
1. Summary Judgment

Section 195(1) of the NYLL obligates an employer to
give a wage notice to an employee at the time of hiring. See
N.Y. Lab. L. § 195(1). That notice must include, among other
things, “the rate or rates of pay and basis thereof,”
information as to whether pay will be “by the hour, shift, day,
week, salary, piece, commission, or other,” “allowances,” “wage
supplements,” “the name of the employer,” and “the telephone
number of the employer.” Id. The notice must also “state the
regular hourly rate and overtime rate of pay” for “employees who
are not exempt from overtime compensation.” Id.
Section 195(3) of the NYLL further requires employers
to “furnish each employee with a statement with every payment of

wages” that lists information such as “the dates of work covered
by that payment of wages”; the “name of [the] employee”; the
“name of [the] employer”; the “rate or rates of pay and basis
thereof”; whether pay was “by the hour, shift, day, week, salary
piece, commission, or other”; “gross wages”; “deductions”; and
“allowances.” N.Y. Lab. L. § 195(3). That statement must also
“include the overtime rate or rates of pay” for “employees who
are not exempt from overtime compensation,” among other
information. Id.
Importantly, however, an employer’s “‘complete and
timely payment of all wages . . . to the employee who was not
provided notice’ or ‘who was not provided statements’ serves as

an affirmative defense to a wage notice or wage statement
claim.” See Mendez v. MCSS Rest. Corp., 564 F. Supp. 3d 195,
219 (E.D.N.Y. 2021) (quoting N.Y. Lab. L. §§ 198(1-b); 198(1-
d)).
Here, there is no dispute that the defendants failed
to provide time-of-hire notice or pay stubs to any of the
Plaintiffs. See Pl. 56.1 ¶¶ B(a)(13), B(b)(17), B(c)(28),
B(d)(36); see Def. 56.1 Response 8, 13, 17, 20. The defendants,
however, assert that each plaintiff received “complete and
timely payment of all wages due,” invoking the affirmative
defense to those Section 195 claims pursuant to N.Y. Lab. L.
§§ 198(1-b), 198(1-d). Def. Opp. 22–23; see Han Decl. ¶¶ 9, 17,

29, 36; Exs. B–E (Defendants’ pay records for Choi, Shin, Kim,
and Son).
Because there are genuine disputes regarding both
whether Son worked more than forty hours in a week, and whether
Shin and Kim are exempt employees, the merits of this defense
cannot be resolved at this time. In other words, if these
plaintiffs worked less than forty hours a week or fell within an
exemption such that they were not entitled to overtime pay, then
they would have been paid all wages due, which Han attested were
timely made. See Guohua Liu v. Elegance Rest. Furniture Corp.,
No. 15-CV-5787, 2017 WL 4339476, at *6 (E.D.N.Y. Sept. 25,
2017); Dudley v. Hanzon Homecare Servs., Inc., No. 15-CV-8821,

2018 WL 481884, at *4 (S.D.N.Y. Jan. 17, 2018). Summary
judgment on these claims is therefore denied with respect to
Shin, Kim, and Son.
The Court likewise denies summary judgment on Choi’s
claims.8 Even though the Court concluded above that Choi is an
exempt outside salesman, there is a material dispute of fact
regarding whether he received complete and timely payment of all
wages due: as noted above, Choi testified that he did not
received commissions to which he was entitled. Choi Dep. at
88:14-22; 137:10-138:12; cf. Rakeman v. MLD Mortg. Inc., No. 16-
CV-453, 2020 WL 13566471, at *13 (E.D.N.Y. Dec. 18, 2020)
(observing, on claim for unpaid commissions, that “NYLL entitles

a successful plaintiff to recover the full amount of wages
owed[.]”).

8 The court also finds it appropriate to retain supplemental
jurisdiction over Choi’s NYLL claims. See 28 U.S.C. § 1367. For a claim to
fall within the scope of a court's supplemental jurisdiction, it must be “so
related to claims in the action within such original jurisdiction that they
form part of the same case or controversy.” 28 U.S.C. § 1367(a). And claims
“form part of the same case or controversy” when they “derive from a common
nucleus of operative fact.” City of Chicago v. International College of
Surgeons,522 U.S. 156, 157 (1997). Choi’s claims relate to the same common
nucleus of operative fact as the other Plaintiff’s FLSA claims. See Fallon
v. 18 Greenwich Ave., LLC, No. 19 Civ. 9579, 2021 WL 1105066, at *8 (S.D.N.Y.
Mar. 23, 2021) (“Courts commonly find the common nucleus test satisfied where
. . . a non-FLSA plaintiff's NYLL claims involve the same issues of hours and
payments for plaintiffs who were employed in the same jobs, doing the same
work, during periods that overlap with many of the FLSA plaintiffs.”).
2. Standing
Plaintiffs have not established that they have
standing to maintain their wage notice and statement claims.
See Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 64 (2d Cir.

2012) (“It is well established that a plaintiff must demonstrate
standing for each claim she seeks to press.”). Because the
issue of standing implicates the subject-matter jurisdiction of
a federal court, the Court has an affirmative obligation to
evaluate (and re-evaluate) whether standing exists as to each of
Plaintiffs’ claims. See DaimlerChrysler Corp. v. Cuno, 547 U.S.
332 (2006).
“Article III standing requires a concrete injury even
in the context of a statutory violation.” TransUnion LLC v.
Ramirez, 141 S. Ct. 2190, 2205 (2021). Thus, evidence that a
defendant violated a statute, even when the legislature has

created a statutory cause of action, is insufficient to confer
standing because “an injury in law is not an injury in fact.”
Id. Instead, “[o]nly those plaintiffs who have been concretely
harmed by a defendant’s statutory violation may sue . . . over
that violation in federal court.” Id. As a result,
“[t]echnical statutory violations that do not lead to either a
tangible injury or something akin to a traditional cause of
action cannot sustain Article III standing in federal court.”
Sevilla v. House of Salads One LLC, No. 20-CV-6072, 2022 WL
954740, at *7 (E.D.N.Y. Mar. 30, 2022).
For this reason, numerous courts in the Second Circuit

have concluded that employees lacked standing when they failed
to establish any concrete injury traceable to the violation of
the NYLL’s wage notice and statement requirements. See, e.g.,
Ramirez v. Urion Constr. LLC, 674 F.Supp. 3d 42, 55 (S.D.N.Y.
May 19, 2023) (collecting cases); Sanchez v. Trescly, No. 19-CV-
4524, 2023 WL 2473070, at *1 (E.D.N.Y. Mar. 13, 2023); Sevilla,
2022 WL 954740, at *7. The statutory violation is not enough,
as an employee must show that they suffered “a tangible injury”
or that the statutory violation would give rise to “something
akin to a traditional cause of action.” Ramirez, 674 F.Supp at
55. Such is the case here: Plaintiffs do not allege, let alone
proffer any evidence, “link[ing] any injury-in-fact to

Defendants’ failure to provide statutory notices under the
NYLL.” See Wang v. XBB, Inc., No. 18-CV-7341, 2022 WL 912592,
at *13 (E.D.N.Y. Mar. 29, 2022) (denying, after bench trial, any
recovery on NYLL statutory notice violations).
Accordingly, Plaintiffs are ordered to show cause, by
January 6, 2025, why the Court should not dismiss these claims
for lack of subject-matter jurisdiction.
D. Plaintiffs’ Spread-of-Hours Claims
Summary judgment on Plaintiffs’ spread-of-hours claims
must be denied for the same reasons as the wage notice and

statement claims: there are factual disputes as to how many
hours Plaintiffs worked each day, and whether they fall within
any applicable exemptions.
Under the NYLL, an employee is entitled to an
additional hour of pay at the “basic minimum hourly rate” for
each day on which that employee works more than ten hours. 12
N.Y.C.R.R. § 142-2.4. “Spread of hours” is defined as “the
length of the interval between the beginning and end of an
employee’s workday,” which “includes working time plus time off
for meals plus intervals off duty.” Id. § 142-2.18. As with
the NYLL’s overtime wage provisions, the term “employee”
excludes workers who fall within the outside salesman or

administrative exemptions. 12 N.Y.C.R.R. § 142-2.14(c)(4)–(5);
see Jeong Woo Kim v. 511 E. 5TH St., LLC, 133 F. Supp. 3d 654,
664 (S.D.N.Y. 2015).
As noted above, there are factual disputes regarding
whether Son worked more than ten hours on any given day, and
whether Shin, and Kim are exempt employees — either of which
could preclude the defendants from the obligation to pay spread-
of-hours wages. Thus, Son, Shin, and Kim are not entitled to
summary judgment on these claims. Kim, 133 F. Supp. 3d at 664;
Perez v. G & P Auto Wash Inc., 930 F. Supp. 2d 423, 436
(E.D.N.Y. 2013) (denying summary judgment where factual dispute
over whether “off-the-clock work” should be counted for spread-

of-hours purposes). However, because Choi is an exempt outside
salesman, the Court also grants summary judgment to the
defendants on his spread-of-hours claim. See 12 N.Y.C.R.R.
§ 142-2.14(c)(5).
E. Joint and Several Liability for All Defendants
Finally, Plaintiffs move for summary judgment on the
issue of whether SD Tools, Zered, and Han are all “employers”
under the FLSA and the NYLL and therefore can be held jointly
and severally liable for any damages. Because Plaintiffs’ are
not entitled to summary judgment on any of their substantive
claims, the Court concludes that this issue is best left for
determination at trial.
IV. Conclusion

For the foregoing reasons, Plaintiffs’ motion for
summary judgment is denied. The defendants’ motion for summary
judgment is granted.
SO ORDERED.

/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge

Dated: December 4, 2024
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10755628. Public record. Not legal advice.