# Jimenez v. W&M Services Inc

> District Court, E.D. New York · March 25, 2025

URL: https://www.frixlaw.com/law-library/cases/10830686

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 25, 2025
- **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/10830686

## How later opinions describe it (automated extraction)

- emphasizing that the complaint “tracked the statutory language of the FLSA, lifting its numbers and rehashing its formulation, but alleg[ed] no particular facts sufficient to raise a plausible inference of an FLSA overtime violation”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
FELIX JIMENEZ, :
:
Plaintiff, :
:
-against- : MEMORANDUM AND ORDER
: 22-cv-5061 (DLI)(JRC)
W&M SERVICES INC. and JOEL MAYER, :
:
Defendants. :
----------------------------------------------------------------x
DORA L. IRIZARRY, United States District Judge:

On August 25, 2022, Felix Jimenez (“Plaintiff”) brought this action on behalf of himself
and others similarly situated against Defendants W&M Services Inc. (“W&M”) and Joel Mayer
(“Mayer”) (collectively, “Defendants”) for unpaid wages, unpaid overtime wages, and failure to
provide statutorily required wage notices and wage statements in violation of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., the New York Labor Law (“NYLL”), § 190 et
seq. and § 650 et seq., and related provisions from Title 12 of the New York Codes, Rules and
Regulations (“NYCRR”). See, Compl., Dkt. Entry No. 1. Plaintiff amended the Complaint on
January 9, 2023, only to include Mayer’s proper name. Am. Compl., Dkt. Entry No. 10. In lieu
of an answer, Defendants moved to dismiss the Amended Complaint for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and for lack of subject matter
jurisdiction with respect to certain claims for lack of standing, lack of federal question, and,
accordingly, insufficient basis to exercise supplemental jurisdiction over remaining state law
claims. See, Defs.’ First Mot. to Dismiss, Dkt. Entry No. 20.
On March 25, 2024, the Court granted Defendants’ motion and allowed Plaintiff to file a
Second Amended Complaint (“SAC”). See, Mot. to Dismiss Memorandum and Order (“MTD
Order”), Dkt. Entry No. 25. The Court held that: (1) Plaintiff’s conclusory allegations regarding
his FLSA minimum wage, overtime, and recordkeeping claims were not sufficient to support a
plausible entitlement to relief;1 and (2) with the federal claims dismissed, the Court declined to
exercise supplemental jurisdiction over the remaining state law claims, which nonetheless would
have been dismissed on the merits. See, MTD Order. The Court did not address the parties’

remaining arguments as all claims were dismissed. Id. at 9.
On April 24, 2024, Plaintiff filed a SAC that attempted to remedy the deficiencies
identified in the MTD Order. See, SAC, Dkt. Entry No. 26. The SAC removed the recordkeeping,
spread of hours, and wage notice and statement claims, leaving only FLSA and NYLL minimum
wage and overtime claims as to Plaintiff only. See, SAC ¶¶ 40–55. Defendants thereafter filed
the instant motion to dismiss pursuant to Rule 12(b)(6). Defs.’ Second Mot. to Dismiss (“Mot.”),
Dkt. Entry No. 27. Plaintiff opposed. Pl. Opp’n (“Opp’n”), Dkt. Entry No. 29. Defendants
replied. Reply, Dkt. Entry No. 33. For the reasons set forth below, Defendants’ motion to dismiss
is granted as to the FLSA minimum wage claims, which are dismissed with prejudice, and as to
the claims against Defendant Mayer, which are dismissed without prejudice. Defendants’ motion

to dismiss is denied as to the FLSA and NYLL overtime claims and the NYLL minimum wage
claims.
BACKGROUND2
W&M is a New York corporation headquartered at 305 Division Avenue, Brooklyn, NY
11211, engaged in the commercial passenger bus transportation business. SAC ¶¶ 2, 28. Mayer
allegedly is the President and CEO of W&M. Id. at ¶ 29. W&M allegedly employed Plaintiff

1 The FLSA recordkeeping claim was dismissed with prejudice. MTD Order at 7. The SAC also apparently removed
some of Plaintiff’s collective action allegations. However, class certification is not at issue here since Plaintiff no
longer is pursuing a collective action. See, Second Amended Compl. at 1 (“Plaintiff . . . brings this Action on behalf
of himself against Defendants.”).

2 The facts set forth below are taken from the SAC and are accepted as true as required at this stage of the case. The
parties’ familiarity with the facts and circumstances of this case, which also are detailed in the MTD Order, is assumed.
from August 23, 2020 to July 29, 2022 (the “Relevant Period”) to drive and clean school vans. Id.
at ¶ 31. Plaintiff was paid at a rate of $14.76 per hour and allegedly was not paid overtime despite
“working an average of fifty-four (54) hours per week at a flat rate of $14.76 per hour,” including
“an average of fourteen (14) hours of overtime each week.” SAC ¶ 3. Plaintiff alleges he worked

consistently for 54 hours per week from “9 A.M until 6 P.M,” and without breaks. Id. at ¶¶ 32,
36. Based on these allegations, and New York’s $15 hourly minimum wage, Plaintiff claims that
he is entitled to $10,435.32 in unpaid overtime wages and $969.60 in underpaid regular wages
during the Relevant Period, plus interest. Id. at ¶¶ 1, 3.
LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a
complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). The plausibility standard “does not require ‘detailed factual
allegations,’ but it demands more than . . . unadorned, the-defendant-unlawfully-harmed-me
accusation[s].” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court accepts as true all well
pled factual allegations and draws all reasonable inferences in the plaintiff’s favor. LaFaro v. N.Y.
Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (citations omitted). Nevertheless,
“threadbare recitals of the elements of a cause of action” that are supported by “conclusory”
statements and mere speculation are inadequate and subject to dismissal. Chavis v. Chappius, 618
F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted); See also, Iqbal, 556
U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. . . . Pleadings that are no more than conclusions
are not entitled to the assumption of truth.”) (internal quotation marks and modifications omitted).
Furthermore, the Second Circuit emphasized in a fair labor standards case that “[d]etermining
whether a plausible claim has been pled is ‘a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.’” Lundy v. Catholic Health Sys. of Long
Island Inc., 711 F.3d 106, 114 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at 679).

DISCUSSION
Defendants move to dismiss the SAC for failure to state a claim arguing that it fails to
allege adequately that: (1) Plaintiff was not paid the minimum wage for hours worked; (2) he was
not paid for overtime hours or “spread of hours”; (3) he was not provided wage notices and wage
statements; (4) Defendants W&M and Mayer constituted a “single employer”; (5) Defendants were
engaged in “interstate commerce”; (6) Plaintiff and similarly situated employees constitute a class;
and (7) Defendants acted willfully.3 Plaintiff counters that the motion should be denied in its
entirety because the SAC alleges sufficient facts for each of his remaining claims.
I. Minimum Wage Allegations Under FLSA
The FLSA requires employers to pay employees a minimum wage, currently set at $7.25

per hour. 29 U.S.C. § 206(a). “To state an FLSA minimum wage claim, it is sufficient for a
plaintiff to allege facts about her salary and working hours, such that a simple arithmetical
calculation can be used to determine the amount owed per pay period.” Tackie v. Keff Enters.
LLC, 2014 WL 4626229, at *3 (S.D.N.Y. Sept. 16, 2014). The NYLL currently sets a $15.00
minimum wage. See, N.Y. Lab. Law § 652 (McKinney).
Plaintiff alleges that he was paid at a rate of $14.76 per hour, just over twice the federal
minimum wage, but $0.24 under the New York minimum wage. See, SAC ¶¶ 3, 32, 35, 52. The
MTD Order dismissed the FLSA minimum wage claim because Plaintiff failed to provide

3 Several of Defendants’ arguments are irrelevant as they address claims that were dismissed in the MTD Order, i.e.,
recordkeeping allegation under FLSA.
sufficient detail regarding his wages or otherwise allege underpayment of the federal minimum
wage requirements. MTD Order at 4–5. Plaintiff contends that the Court took a “conscripted view
of the FLSA” that is “unsupported by the statute itself and . . . rejected by a legion of courts.”
Opp’n at 15. Plaintiff essentially claims that the FLSA provides a federal cause of action for

violations of state minimum wage laws, even if an employee is paid more than the federal
minimum wage. Id. at 15–17.
In support of his position, Plaintiff points to the FLSA’s “Savings Clause,” which provides
that “[n]o provision of this chapter or of any order thereunder shall excuse noncompliance with
any Federal or State law or municipal ordinance establishing a minimum wage higher than the
minimum wage established under this chapter.” 29 U.S.C. § 218(a); Opp’n at 16. However, this
provision “simply makes clear that the FLSA does not preempt any existing state law that
establishes a higher minimum wage or a shorter workweek than the federal statute.” Rosa v.
Dhillon, 2020 WL 7343071, at *3 (E.D.N.Y. Dec. 14, 2020) (quoting Cosme Nieves v. Deshler,
786 F.2d 445, 452 (1st Cir. 1986)). It does not incorporate state law as Plaintiff suggests.

Similarly, Plaintiff’s reliance on 29 C.F.R. § 778.5 is unavailing. This provision also
addresses preemption and, to the extent it incorporates state law, it does so for the “limited
purpose” of calculating the “regular rate” for FLSA overtime claims. Id.; 29 C.F.R. § 778.5
(“Where a higher minimum wage than that set in the Fair Labor Standards Act is applicable to an
employee by virtue of such other legislation, the regular rate of the employee . . . cannot be lower
than such applicable minimum” for purposes of an overtime claim); Opp’n at 16 n.1.
Notably, “[t]he fact that the FLSA does not preempt state minimum wage laws does not . . .
mean that the FLSA creates a federal cause of action to enforce state minimum wage laws.”
Andrade v. A to Z Hardware, Inc., 2024 WL 4029576, at *3–4 (E.D.N.Y. Aug. 17, 2024), report
and recommendation adopted, 2024 WL 4028472 (E.D.N.Y. Sept. 3, 2024) (rejecting an argument
identical to the one raised by Plaintiff’s counsel here, and recommending that “plaintiff not be
permitted to renew his FLSA minimum wage claims in the absence of allegations that [he] was
paid below the federal minimum wage”); Dhillon, 2020 WL 7343071 at *3 (“It’s one thing to say

that the FLSA does not preempt state law; it’s quite another to say that the FLSA incorporates state
law.”). Importantly, “for non-overtime wages, the FLSA requires only that employers pay the
minimum wage rates set by federal law.” Gurung v. Malhotra, 851 F. Supp.2d 583, 592 (S.D.N.Y.
2012) (emphasis in original) (quoting Pineda-Herrera v. Da-Ar-Da, Inc., 2011 WL 2133825, at
*5 (E.D.N.Y. May 26, 2011)). However, to the extent that an employee establishes an FLSA
violation, she may recover the greater of the federal or state minimum wage. Saavedra v. Dom
Music Box Inc., 2024 WL 208303, at *9 (E.D.N.Y. Jan. 19, 2024) (“Plaintiffs who bring claims
under both the FLSA and NYLL recover under the statute that provides the greater measure of
damages.”); De Jesus v. Sea Crest Diner-Rest., 2018 WL 3742778, at *2, 5 (E.D.N.Y. Dec. 6,
2018) (employee who was paid less than the FLSA’s $7.25 per hour minimum wage was entitled

to receive “the state minimum wage if it exceeds the federal minimum wage”).
Moreover, Plaintiff failed to provide any specific information regarding his wages as noted
in the MTD Order. MTD Order at 4–5. Plaintiff received weekly payments via Zelle and could
have ascertained whether he was paid less than the federal minimum wage in any given week.
Instead, the SAC retained the same generalized allegation that Plaintiff earned $14.76 per hour
throughout his employment. Accordingly, the FLSA minimum wage claims are dismissed with
prejudice as Plaintiff earned more than the federal minimum wage. However, Plaintiff plausibly
has alleged that Defendants violated the NYLL’s $15 minimum wage requirement.
II. Overtime Pay Allegations Under FLSA
Under the FLSA, an employee who works in “excess of forty hours” shall be paid for that
excess work “at a rate not less than one and one-half times the regular rate at which [s]he is
employed.” 29 U.S.C. § 207(a)(1); See also, Lundy, 711 F.3d at 113–14. In Lundy, the Second

Circuit affirmed the district court’s dismissal of FLSA and NYLL claims holding that, to state a
plausible overtime claim, “a plaintiff must sufficiently allege 40 hours of work in a given
workweek as well as some uncompensated time in excess of the 40 hours.” Lundy, 711 F.3d at
114. In Nakahata v. New York-Presbyterian Healthcare, 723 F.3d 192, 201 (2d Cir. 2013), the
circuit reinforced its holding in Lundy, affirming the district court’s dismissal of FLSA overtime
claims where plaintiffs “merely alleged that they were not paid for overtime hours worked.”
In Dejesus v. HF Management Services, LLC, the Second Circuit affirmed the dismissal of
an FLSA overtime claim that did no more than “rephras[e] the FLSA’s formulation specifically
set forth in section 207(a)(1).” 726 F.3d 85, 89 (2d Cir. 2013) (emphasizing that the complaint
“tracked the statutory language of the FLSA, lifting its numbers and rehashing its formulation, but

alleg[ed] no particular facts sufficient to raise a plausible inference of an FLSA overtime
violation”). The Second Circuit further found that, “[i]n light of the fact that the relevant portions
of [the NYLL] do not diverge from the requirements of the FLSA, our conclusions . . . about the
FLSA allegations apply equally to [the NYLL] state law claims.” Id. at n.5 (internal quotation
marks and citations omitted). The Dejesus court noted the plaintiff did “not estimate her hours in
any or all weeks or provide any other factual context or content. Indeed, her complaint was devoid
of any numbers to consider beyond those plucked from the statute.” Id. at 89. The court also
clarified that Lundy “was not an invitation to provide an all-purpose pleading template alleging
overtime in ‘some or all workweeks;’” rather, the pleading standard “was designed to require
plaintiffs to provide some factual context that will ‘nudge’ their claim from conceivable to
plausible.’” Id. at 90 (citing Twombly, 550 U.S. at 570). To satisfy this standard, plaintiffs are not
required to “keep careful records and plead their hours with mathematical precision,” but they
should provide “complaints with sufficiently developed factual allegations.” Id.

The Second Circuit recently addressed its overtime pleading doctrine in Herrera v. Comme
des Garcons, Ltd, 84 F.4th 110 (2d Cir. 2023). There, the plaintiffs alleged that: (1) their “regularly
scheduled work hours consisted of five shifts each week, and that each shift lasted between eight
and three-quarter hours and nine hours, amounting to between 43.75 hours and 45 hours of work
per regular week”; (2) they had “approximately an additional five hours of [post-work duties] per
week in excess of forty hours per week.” Id. at 115–16. The court held that each of these
allegations independently were sufficient to state a claim as the plaintiffs had “identified a period
of time when they were employed to work more than forty hours per week as part of their regularly
scheduled workweek, and . . . also quantified the number of hours they were required to work as
part of their regular schedule.” Id. at 116. It reasoned that the “pleading standard is unmet if all

that plaintiffs allege is that at some undefined period in their employment they worked more than
forty hours in a single week . . . [but] [t]he pleading standard is satisfied . . . if plaintiffs allege that
their regularly scheduled workweek for a given period of time included more than forty hours of
work, so that they were eligible for overtime during every week in which they worked their regular
schedule.” Id. at 116–17 (emphasis in original).
As discussed in the MTD Order, the Amended Complaint’s allegations that Plaintiff
“regularly work[ed] fifty-four (54) hours per week” and “worked 2 months out of the year in excess
of 40 hours per week” during the Relevant Period were insufficient to state an FLSA overtime
claim. MTD Order at 6. The SAC now alleges that Plaintiff’s “work schedule was from 9 A.M
until 6 P.M [] with no break,” and approximates that Plaintiff “work[ed] an average of fifty-four
(54) hours per week [during the Relevant Period] at a flat rate of $14.76 per hour.” SAC ¶¶ 3, 32,
36 (emphasis added). Plaintiff also alleges that he “consistently work[ed] fifty-four (54) hours per
week[,]” which included “an average of 14 hours of overtime each week.” Id. at ¶¶ 3, 32 (emphasis

added). The Court interprets these allegations to mean that Plaintiff’s work schedule throughout
the Relevant Period was 9:00 a.m. to 6:00 p.m., and, thus, Plaintiff worked an average of 54 hours
each and every week.
The new allegation regarding Plaintiff’s regular work schedule meets the Second Circuit’s
pleading criteria. Herrera clearly held that “[w]here the Plaintiffs plausibly allege that they
worked more than forty hours per week as part of their regularly scheduled workweek, they have
adequately stated a claim under the FLSA and need not list the specific workweeks during which
they worked more than forty hours.” Herrera, 84 F.4th at 112. Here, Plaintiff alleged that his
work schedule was from 9:00 a.m. to 6:00 p.m. during the Relevant Period, and he worked an
average of 54 hours every week. SAC ¶ 36. While the SAC does not allege the number of shifts

per week, the Court can infer from Plaintiff’s work schedule and total weekly hours that he worked
six shifts per week. As the Herrera Court explained, this “allegation itself gets us beyond forty
hours in any given [work]week, and therefore to a plausible claim of overtime.” Herrera, 84 F.4th
at 115 (internal quotation marks and citation omitted).
Since Herrera, several courts in this circuit have found similar allegations sufficient. See,
Montoya v. Havana Cent. NY 2, LLC, 2024 WL 874640, at *9 (S.D.N.Y. Jan. 8, 2024), report and
recommendation adopted, 2024 WL 871206 (S.D.N.Y. Feb. 29, 2024) (allegations that “from
January 6, 2017 to December 2017, [plaintiff] worked from around 6:00 a.m. to 5:00 p.m. or 6:00
p.m. for a total average of 55 to 60 hours [per week]” stated FLSA and NYLL overtime claims);
Muhammad v. Alto Pharmacy LLC, 2024 WL 4042479, at *3, 6 (S.D.N.Y. Sept. 4, 2024) (“Based
on allegations about Plaintiffs’ regular work hours, the Court can infer that Plaintiffs worked
between eight and ten hours per day, six days per week, for an average of 48 to 60 hours per
week . . . [which] would make them eligible for overtime.”); Aguilar v. Calexico Cinco LLC, 2024

WL 3837669, at *4 (E.D.N.Y. June 28, 2024) (overtime claim plausibly alleged in light of regular
work schedule, work on lunch breaks, and extra work at the end of the day). Accordingly, the
Court finds that Plaintiff plausibly has alleged FLSA and NYLL overtime violations. As such,
Defendants’ request that the Court decline to exercise supplemental jurisdiction over the remaining
state law claims is denied.
III. Parties’ Additional Arguments
Defendants contend the SAC insufficiently pleads the required interstate commerce nexus,
W&M and Mayer’s alleged status as a “single employer,” and Defendants’ “willfulness” with
respect to the alleged violations. As discussed below, the Court finds that: (1) Plaintiff plausibly
has alleged the interstate commerce nexus; (2) Plaintiff has failed to establish Mayer’s employer

status; and (3) willfulness is immaterial in the present case.
A. Interstate Commerce Nexus
Plaintiff plausibly has alleged the interstate commerce nexus at this stage. An employer is
subject to the FLSA, if the plaintiff employee either is: “(1) ‘engaged in commerce or in the
production of goods for commerce,’ (individual coverage)”; or (2) employed in an “enterprise
engaged in commerce or in the production of goods for commerce” whose “annual gross volume
of sales made or business done is not less than $500,000” (enterprise coverage).” Gonzalez v.
Victoria G’s Pizzeria LLC, 2022 WL 842666, at *2 (E.D.N.Y. Mar. 22, 2022) (Irizarry, J.) (quoting
Lopez v. 1923 Sneaker, Inc., 2021 WL 1845057, at *3 (E.D.N.Y. Mar. 5, 2021), report and
recommendation adopted, 2021 WL 1259623 (E.D.N.Y. Apr. 6, 2021)). Defendants’ arguments
focus on Plaintiff’s failure to allege that he personally engaged in interstate commerce, which goes
to individual coverage. Mot. at 6–7. However, the Court need not address individual coverage,
as the enterprise coverage requirement is satisfied.

Enterprise coverage is present where the employer: (1) has employees engaged in
commerce or in the production of goods for commerce “or [] has employees handling, selling, or
otherwise working on goods or materials that have been moved in or produced for commerce by
any person”; and (2) has “annual gross volume of sales made or business done is not less than
$500,000.” 29 U.S.C. § 203(s)(1)(A)(i)–(ii). The second element is satisfied by Plaintiff’s
“specific allegation that Defendants have an annual gross revenue in excess of $500,000.00.”
Baizan Guerrero v. 79th St. Gourmet & Deli Inc., 2019 WL 4889591, at *5 (E.D.N.Y. Sept. 10,
2019) (collecting cases); SAC ¶ 17. Thus, the primary issue is whether Plaintiff plausibly has
alleged that W&M “engaged in commerce.”
The first element that the enterprise be “engaged in commerce” is “rarely difficult to

establish . . . because it is met by showing that two or more employees have ‘handl[ed] . . . materials
that have been moved in . . . commerce[.]’” Jacobs v. New York Foundling Hosp., 577 F.3d 93,
99 n.7 (2d Cir. 2009) (quoting 29 U.S.C. § 203(s)); Soto v. Miss Laser Inc., 2023 WL 319547, at
*4 (E.D.N.Y. Jan. 19, 2023) (Enterprise coverage “is not a high hurdle for Plaintiff to clear”).
“Even where a plaintiff does not specify what types of goods the employer . . . handled in interstate
commerce, courts have found it reasonable to infer enterprise coverage from ‘the nature of an
employer’s business.’” Soto, 2023 WL 319547 at *5 (quoting Cardoza v. Mango King Farmers
Mkt. Corp., 2015 WL 5561033, at *4 (E.D.N.Y. Sept. 1, 2015), report and recommendation
adopted, 2015 WL 5561180 (E.D.N.Y. Sept. 21, 2015)).
Indeed, as a commercial transportation business, it is reasonable to assume that W&M
employees “handl[ed]” goods that were “moved in or produced for” interstate commerce. The
SAC alleges that W&M “relies heavily on products that have been transported across state lines,”
but does not specify which products. SAC ¶ 17. However, the first element of enterprise coverage

is satisfied by Plaintiff’s allegations that: (1) Defendants run a commercial bus transportation
business; and (2) he drove and cleaned school vans. SAC ¶¶ 13, 19, 31. The inference is
inescapable that Defendants’ employees did not handle vehicles, fuel, and cleaning supplies
originating exclusively within New York State. See, D’Arpa v. Runway Towing Corp., 2013 WL
3010810, at *13 (E.D.N.Y. June 18, 2013) (finding that there was an “inescapable” inference that
“the tow trucks [employees] drove and the fuel on which the trucks ran originated from out-of-
state” as it was “inconceivable that none of the trucks or other materials used by Plaintiffs in their
line of work originated outside of New York”); See also, Vasquez, et al., v. NS Luxury Limousine
Serv., Ltd., et al., 2021 WL 1226567, at *9 (S.D.N.Y. Mar. 31, 2021) (defendant car service
“own[ed] a fleet of cars and hired drivers to drive them. Cars are goods that are produced for and

move within interstate commerce.”). Accordingly, Plaintiff adequately has pled the interstate
commerce nexus at this stage.
B. Employer Status
Under the FLSA, an employer “includes any person acting directly or indirectly in the
interest of an employer in relation to an employee[.]” 29 U.S.C. § 203(d). “The NYLL defines
‘employer’ as ‘any person . . . employing any individual in any occupation, industry, trade,
business or service’ or ‘any individual . . . acting as employer.’” Irizarry v. Catsimatidis, 722 F.3d
99, 117 (2d Cir. 2013) (quoting NYLL §§ 190(3), 651(6)). Courts in this circuit interpret the
definition of ‘employer’ under the NYLL coextensively with the definition used by the FLSA.
See, Sethi v. Narod, 974 F. Supp.2d 162, 188 (E.D.N.Y. 2013) (collecting cases). The Second
Circuit has held that the remedial nature of the FLSA warrants an expansive interpretation of its
provisions. See, e.g., Greathouse v. JHS Sec. Inc., 784 F.3d 105, 113 (2d Cir. 2015). Thus, the
term “employer” is construed liberally to apply broadly and determined on a case by case basis.

Greenawalt v. AT & T Mobility LLC, 642 F. App’x 36, 37 (2d Cir. 2016).
Defendants do not dispute that W&M was Plaintiff’s employer. In an attempt to qualify
Mayer as an employer, Plaintiff asserts that W&M and Mayer constituted a “single employer.”
SAC ¶ 25; Opp’n at 29. However, the “single employer” theory is irrelevant here as it is used to
hold a corporate entity responsible for the conduct of another entity that technically employed the
plaintiff. Griffin v. Sirva Inc., 835 F.3d 283, 292 (2d Cir. 2016). The proper inquiry is whether
Mayer was Plaintiff’s employer such that he is jointly and severally liable with W&M.
To determine whether an individual or entity qualifies as an employer, courts examine the
“economic reality” of their relationship with employees. Irizarry, 722 F.3d at 104 (citing Herman
v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)) (explaining that this test applies equally

to managers and owners). “[T]he overarching concern is whether the alleged employer possessed
the power to control the workers in question.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139
(2d Cir. 1999) (citations omitted). Courts consider a nonexhaustive list of factors to determine
whether the requisite control exists, including the putative employer’s ability to: (1) hire and fire
employees; (2) supervise and control employee work schedules or conditions of employment; (3)
determine the rate and method of compensation; and (4) maintain employee records. Carter v.
Dutchess Community College, 735 F.2d 8, 37 (2d Cir. 1984), holding modified by, Zheng v. Liberty
Apparel Co. Inc., 355 F.3d 61, 71, 78–79 (2d Cir. 2003).
Plaintiff alleges in wholly conclusory fashion that Mayer “had the authority and power to
hire and fire Plaintiff, control the terms and conditions of his employment, including work
assignments and hours, and to determine the rate and method of any compensation in exchange for
Plaintiffs’ services . . . [and] supervised Plaintiff’s work schedule and conditions of his
employment.” SAC ¶ 26. However, “[t]hese conclusory allegations track nearly verbatim with

the factors set forth in Carter’s formal economic reality test.” Aguilar v. Calexico Cinco LLC,
2024 WL 3837669, at *7 (E.D.N.Y. June 28, 2024). Plaintiff does not allege any specific facts
regarding Mayer’s conduct, responsibilities, or authority, and “[t]hreadbare recitals of the elements
of a cause of action, supported by merely conclusory statements, do not suffice” to state a plausible
claim for relief. Id. (internal citation and quotation marks omitted). Accordingly, the claims
against Mayer hereby are dismissed without prejudice.
C. Willfulness
The FLSA statute of limitations is two years, “except that a cause of action arising out of
a willful violation may be commenced within three years after the cause of action accrued.” 29
U.S.C. § 255(a). “The statute of limitations starts to run when the employee begins to work for

the employer.” Rodriguez v. Queens Convenience Deli Corp., 2011 WL 4962397, at *2 (E.D.N.Y.
Oct. 18, 2011). The NYLL’s statute of limitations is six years. NYLL §§ 198(3), 663(3).
As Plaintiff observes, willfulness is immaterial here as the claims are covered by the FLSA
and NYLL’s standard limitations period. Opp’n at 20. Plaintiff was employed from August 23,
2020 to July 29, 2022, and this case was filed on August 25, 2022. See, Compl.; See also, SAC
¶ 3. The entire Relevant Period is covered by the FLSA’s standard two-year limitations period
except for August 23–24, 2020, which is covered by the NYLL’s six-year statute of limitations.
IV. Leave to Amend
Courts sua sponte may grant leave to amend. Straker v. Metro. Transit Auth., 333 F.
Supp.2d 91, 102 (E.D.N.Y. 2004). “The Court’s discretion is broad and its exercise depends upon
many factors, including undue delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously allowed undue prejudice to the
opposing party by virtue of the allowance of the amendment, futility of amendment, etc.” Id.
(quotations omitted). This is consistent with the Second Circuit’s strong preference for resolving
disputes on the merits. See, Williams v. Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011).
Plaintiff is granted leave to amend regarding his claims against Defendant Mayer. Any
amendment may address Mayer’s employer status only and not those claims dismissed with
prejudice. Further leave shall not be granted absent truly exceptional circumstances.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the Second Amended Complaint
is granted with prejudice as to the FLSA minimum wage claim, and denied as to the FLSA and

NYLL overtime claims and the NYLL minimum wage claim. Defendants’ motion is granted as
to the claims against Defendant Mayer, which are dismissed in their entirety without prejudice,
and Plaintiff is granted leave to amend the complaint as to the Mayer claims only. To the extent
Plaintiff intends to pursue his claims against Defendant Mayer, he shall file a Third Amended
Complaint BY NO LATER than April 24, 2025, consistent with this Memorandum and Order.
SO ORDERED.

Dated: Brooklyn, New York
March 25, 2025

/s/
DORA L. IRIZARRY
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10830686. Public record. Not legal advice.