noting that the FLSA “supplements the hourly employment arrangement with features that may not be guaranteed by state laws, without creating a federal remedy for all wage disputes”
How later courts described this case
- noting that the FLSA “supplements the hourly employment arrangement with features that may not be guaranteed by state laws, without creating a federal remedy for all wage disputes”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CONSTANCE BELL, individually and on
behalf of all others similarly situated,
Plaintiff,
– against –
MEMORANDUM & ORDER
ARCHCARE COMMUNITY SERVICES, 24-cv-01877 (NCM) (CLP)
INC., d/b/a ArchCare and CARMEL
RICHMOND NURSING HOME, INC.,
Defendants.
NATASHA C. MERLE, United States District Judge:
Before the Court is defendants ArchCare Community Services, Inc. (d/b/a
ArchCare) (“Archcare”), and Carmel Richmond Nursing Home, Inc.’s (“Carmel”) motion
to dismiss plaintiff’s amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6).1 For the reasons stated below, defendants’ motion is GRANTED in part,
DENIED in part.
BACKGROUND
Plaintiff Constance Bell was employed by defendants as a nurse aid trainee from
about December 2021 to May 2022. Am. Compl. (“AC”) ¶¶ 9–10, ECF No. 13. Defendants
1 The Court hereinafter refers to the Memorandum of Law in Support of Defendants’
Motion to Dismiss the Amended Complaint, ECF No. 25, as the “Motion”; Plaintiff’s
Memorandum of Law in Opposition to Motion to Dismiss, ECF No. 27, as the
“Opposition”; and the Reply Memorandum of Law in Further Support of Defendants’
Motion to Dismiss Plaintiff’s Amended Complaint, ECF No. 28, as the “Reply.”
1
operate nursing homes and provide nursing care services throughout the State of New
York. AC ¶ 2. Defendants employ more than 1,000 hourly employees, including nurses,
aids, and nurse aid trainees. AC ¶ 2. As a nurse aid trainee, plaintiff’s job duties consisted
of “providing healthcare services to patients at [d]efendants’ facilities, including
administering medication, making beds, preparing patients for doctor appointments, and
recording clinical tasks.” AC ¶ 10.
Defendants calculate their employees’ pay via a timekeeping system. See AC ¶¶ 37,
45. There are two key features of defendants’ system. First, the system “rounds to the
nearest 15-minute increment,” based on when an employee clocks in or out and when they
are scheduled to work. AC ¶¶ 34, 37. For instance, if one of defendants’ employees is
scheduled to start their shift at 6:00 a.m., but clocks in and begins working at 5:50 a.m.,
the system rounds to the nearest 15-minute interval and the employee “is paid starting at
6:00 a.m.” rather than at 5:50 a.m. AC ¶ 36. In the same vein, if an employee is scheduled
to end their shift at 2:00 p.m., but continues working and clocks out at 2:10 p.m., she will
be paid “only until 2:00 p.m.” AC ¶ 36. Second, the system “automatically deduct[s] 30
minutes per shift from each . . . [h]ourly [e]mployees’ pay for a meal break.” AC ¶ 45.
Defendants configured these automatic meal deductions in lieu of their employees
“clock[ing] out during their meal breaks.” AC ¶ 45.
Plaintiff was paid at a rate of $15.00 per hour. AC ¶ 9. Throughout her employment
with defendants, plaintiff’s regular shifts were scheduled from 6:00 a.m. until 2:00 p.m.,
including her uncompensated 30-minute meal break. See AC ¶ 11. However, plaintiff was
required to “routinely work[] before and/or after her scheduled shifts and during her
uncompensated meal breaks[.]” AC ¶ 13. Plaintiff’s supervisors knew that she would work
2
before her scheduled shifts, after her scheduled shifts, and during her meal breaks, “but
did nothing to rectify the situation or compensate Bell for her time.” AC ¶ 25. Plaintiff was
never compensated for these “additional hours,” and she “never received any overtime
pay during her employment with [d]efendants[.]” AC ¶¶ 20, 24.
Plaintiff’s complaint provides an example of her work schedule. See AC ¶ 18.
Specifically, plaintiff supplies the exact time she clocked in, and the exact time she clocked
out, for all of her shifts for the pay period from March 6, 2022, to March 19, 2022. See AC
¶ 18. Plaintiff “clocked in before the start of her scheduled shift and/or after the end of
her scheduled shift every single day during that two-week pay period, but was only
compensated according to her scheduled hours[.]” AC ¶ 18. For example, on March 7,
2022, plaintiff clocked in at 5:55 a.m. and clocked out at 2:04 p.m. but was only
compensated for those hours worked between 6:00 a.m. and 2:00 p.m., exclusive of her
automatically deducted 30-minute meal break. See AC ¶ 18. Plaintiff alleges that during
this two-week period she “worked at least 1 hour and 17 minutes on the clock for which
she was not paid.” AC ¶ 19. And during this same two week stretch, plaintiff’s
“uncompensated meal break was interrupted by approximately 5-10 minutes each day,”
by requests from her supervisors to work. AC ¶ 24. In total, from March 6, 2022, to March
19, 2022, plaintiff was credited with working 75 hours, “inclusive of 10 automatically
deducted 30-minute meal periods.” AC ¶ 24.
On March 13, 2024, plaintiff filed the instant putative collective action on behalf of
herself and similarly situated “current and former hourly paid and non-exempt
employees” of defendants. See Compl. ¶ 1, ECF No. 1. Plaintiff brought claims against
defendants for overtime and minimum wage violations pursuant to the Fair Labor
3
Standards Act, 29 U.S.C. §§ 203, et seq., (“FLSA”), and claims for unpaid overtime,
nonpayment of straight wages, violation of notice and record keeping requirements, and
violation of wage statement provisions pursuant to the New York Labor Law (“NYLL”).
See generally Compl. Two months later plaintiff filed the amended complaint, dropping
her claims for violations of notice and record keeping requirements and wage statement
provisions, but otherwise retaining her FLSA and NYLL claims. See generally AC.
Defendants moved to dismiss the amended complaint in its entirety for failure to state a
claim pursuant to Rule 12(b)(6). See Mot. 6.
LEGAL STANDARD
When deciding a motion to dismiss, a district court must “accept[] all factual
claims in the complaint as true, and draw[] all reasonable inferences in the plaintiff’s
favor.” Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014).
Factual disputes are typically not the subject of the Court’s analysis, as Rule 12 motions
“probe the legal, not the factual, sufficiency of a complaint.” Plastic Surgery Grp., P.C. v.
United Healthcare Ins. Co. of N.Y., Inc., 64 F. Supp. 3d 459, 468–69 (E.D.N.Y. 2014).
That is, “the issue” on a motion to dismiss “is not whether a plaintiff will ultimately
prevail” but instead whether a plaintiff is “entitled to offer evidence to support the claims.”
Sikhs for Just. v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012). Accordingly, dismissal
is only appropriate if “it appears beyond doubt that the plaintiff can prove no set of facts
which would entitle him or her to relief.” Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir.
2000).
At the same time, plaintiff must allege sufficient facts to “nudge[] their claims
across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S.
4
544, 570 (2007). Conclusory allegations and legal conclusions masquerading as factual
conclusions do not suffice to overcome a motion to dismiss. Nwaokocha v. Sadowski, 369
F. Supp. 2d 362, 366 (E.D.N.Y. 2005) (quoting Smith v. Local 819 I.B.T. Pension Plan,
291 F.3d 236, 240 (2d Cir. 2002)).
DISCUSSION
I. FLSA Overtime Wage Claim
To state a claim for overtime wages, a plaintiff must plausibly allege: “(1) the
employer was an enterprise engaged in commerce or in the production of goods for
commerce; (2) the plaintiff is an employee within the meaning of the FLSA; and (3) that
the plaintiff worked in excess of forty (40) hours in a given workweek and did not receive
overtime compensation for such work.” Erdemir v. Allstate Marble & Granite, Kitchens
and Baths Inc., 704 F. Supp. 3d 337, 357 (E.D.N.Y. 2023). Defendants’ motion to dismiss
focuses on the third element, specifically, whether plaintiff sufficiently alleges that she
worked more than 40 hours in a given week. See Mot. 10.
Employees covered by the FLSA are entitled to be compensated at a rate of at least
“one and one-half times the regular rate of pay for any hours worked in excess of forty per
week.” See Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d
Cir. 2013) (citing 29 U.S.C. § 207(a)). To recover unpaid overtime, a plaintiff must allege
that she was not paid overtime wages for compensable overtime hours. See Zhang v.
Great Sichuan on 3rd Ave. Inc., No. 15-cv-04558, 2024 WL 1159002, at *2 (S.D.N.Y. Feb.
2, 2024). A complaint must supply “sufficient factual matter to state a plausible claim that
[a plaintiff] worked compensable overtime in a workweek longer than 40 hours.” Lundy
v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). That is, a plaintiff
5
must “provide some degree of specificity in order to sufficiently plead an FLSA overtime
claim.” Herrera v. Comme des Garcons, Ltd., 84 F.4th 110, 114 (2d Cir. 2023). However,
an employee is not required “to provide a week-by-week recounting,” nor must she “set
forth the approximate number of unpaid regular and overtime hours,” that she allegedly
worked. Herrera, 84 F.4th at 114–15; see also Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d
85, 90 (2d Cir. 2013) (explaining that “employees’ memory and experience . . . lead them
to claim . . . that they have been denied overtime in violation of the FLSA in the first place,”
and that the pleading standard “requires that plaintiffs draw on those resources in
providing complaints with sufficiently developed factual allegations”).
Plaintiff alleges that she “never received any overtime pay during her employment
with [d]efendants, despite [the fact] that she routinely worked in excess of 40 hours in a
week.” AC ¶ 20. Plaintiff’s alleged shifts during her employment with defendants began
at 6:00 a.m. and ended at 2:00 p.m., including an “automatically deducted meal break of
30 minutes per day.” AC ¶ 11. However, plaintiff alleges that she “routinely worked before
and/or after her scheduled shifts and during her uncompensated meal breaks,” and was
“not properly compensated for all hours worked, including overtime[.]” AC ¶ 13. Indeed,
plaintiff points to a two-week period in March 2022 as an example of defendants’ routine
underpayment. See AC ¶¶ 18–19, 24. Specifically, plaintiff alleges that during this period
(i) she “clocked in before the start of her scheduled shift and/or after the end of her
scheduled shift every single day,” AC ¶ 18; (ii) her “uncompensated meal break was
interrupted by approximately 5-10 minutes each day,” in order to “perform[] work on
[d]efendants’ behalf,” AC ¶ 24; and yet (iii) she was not paid any overtime, see AC ¶ 20.
6
Together, these allegations state a plausible claim that plaintiff worked compensable
overtime and was not paid overtime wages.
Defendants argue that these allegations fail to support an overtime wage claim
because they lack the requisite “specificity.” See Mot. 11–12. Namely, defendants assert
that plaintiff’s complaint is deficient because she “never alleges that she was scheduled to
work for forty (40) hours a week,” given that her regular work schedule, “minus her daily
30-minute meal break, total[ed] 37.5 hours a week.” Mot. 12. Defendants further contend
that even “assuming [plaintiff] worked 10 minutes during each meal break,” this would
only amount to “an extra 50 minutes of work,” per week, equaling a total of “38 hours and
20 minutes, which is not more than 40 hours.” Mot. 13. Finally, defendants argue that
“[e]ven if [plaintiff] worked through every single minute of her daily meal breaks, she
does not and cannot exceed 40 hours worked.” Mot. 13. Each of these arguments lack
merit.
A. Uncompensated Meal Break
To begin, a meal break counts towards the 40-hour weekly total unless an
employee “enjoy[s] a daily bona fide meal period during which they are completely
relieved from duty.” Herrera, 84 F.4th at 116. If an employee is required to perform job
duties during their meal break, “[s]he is not completely relieved from duty, and the meal
period is compensable.” Shanfa Li v. Chinatown Take-Out Inc., 812 F. App’x 49, 52 (2d
Cir. 2020). Employees are not required to “quantify how many minutes were spent during
any given lunch break actually [performing job duties] in order to demonstrate that their
lunch break was not a bona fide meal period.” Herrara, 84 F.4th at 116 (quoting 29 C.F.R.
§ 785.19(a)). Instead, if a plaintiff “is required to be on-call to handle whatever work arises
7
during the meal break,” they have sufficiently shown that they were not “completely
relieved from duty” and thus did not enjoy a bona fide meal period. Id. at 116.
Plaintiff alleges that her 30-minute meal breaks “would routinely be interrupted,”
and that she was “required to perform work” before her meal breaks concluded
throughout her tenure with defendants. AC ¶ 23. Plaintiff provides additional factual
detail, including that her meal breaks were interrupted “by approximately 5–10 minutes,”
every day that she worked from March 6, 2022, to March 19, 2022. AC ¶ 24. These
allegations are sufficient to support an inference that plaintiff was “required to be on-call
during her lunch break and therefore was not completely relieved of duty.” Isayeva v.
Diamond Braces, No. 22-cv-04575, 2024 WL 1053349, at *7 (S.D.N.Y. Mar. 11, 2024); see
also Aguilar v. Calexico Cinco LLC, No. 22-cv-06345, 2024 WL 3837669, at *5 (E.D.N.Y.
June 28, 2024), report and recommendation (finding allegation that plaintiff “worked
during his 30-minute lunch break every day” was “sufficient to conclude that this period
did not qualify as a bona fide meal period”); Mizzero v. Albany Med. Health Sys., No. 23-
cv-00548, 2024 WL 2078628, at *6 (N.D.N.Y. May 9, 2024) (finding allegations of
continuous and constant interruptions to unpaid lunch break “while somewhat lacking in
specific detail, are nonetheless sufficient to satisfy the plausibility standard in that they
sufficiently suggest that [the] [p]laintiff was required to remain on-call and perform work-
related tasks during her lunch break and thus did not receive a bona fide meal break”).
Because plaintiff plausibly alleges that she did not enjoy a bona fide meal period,
her allegations support a reasonable inference that her regular weekly work schedule,
consisting of shifts from 6:00 a.m. to 2:00 p.m., constituted 40 hours of compensable
work. AC ¶¶ 11–12. Thus, defendants’ argument that plaintiff’s overtime claim must be
8
dismissed because her regular work schedule, “minus her daily 30-minute meal break,
total[ed] 37.5 hours a week,” Mot. 12, is of no moment. See Aguilar, 2024 WL 3837669,
at *5 (determining allegations that the plaintiff’s “regular scheduled work week was 37.5
hours per week,” in addition to alleged “additional, uncompensated hours” supported a
“plausible claim that he worked uncompensated overtime”).
Defendants’ argument that the only portion of plaintiff’s meal breaks which count
toward her weekly total hours is the 5–10 minutes she alleges were interrupted each break
is misplaced. See Mot. 13. As previously explained, plaintiff is “not require[d] . . . to
quantify how many minutes were spent during any given lunch break” actually working
“to demonstrate that [her] lunch break was not a bona fide meal period.” Herrara, 84
F.4th at 116. And because “[c]ourts have consistently held that on-call time can constitute
compensable work under the FLSA,”—i.e., when an employee does not enjoy a bona fide
meal period—the entire thirty-minute period is compensable. Redzepagic v. Hammer,
No. 14-cv-09808, 2017 WL 780809, at *7 (S.D.N.Y. Feb. 27, 2o17); see also Borja v. MSK
Rest. Corp., No. 22-cv-06178, 2025 WL 951402, at *14 (E.D.N.Y. Mar. 13, 2025), report
and recommendation adopted, 2025 WL 948122 (Mar. 29, 2025) (“If an employer grants
time for meal breaks but interrupts or shortens them, that break time is therefore
compensable as hours worked.”); Aguilar, 2024 WL 3837669, at *4 (finding allegations
that lunch break was disrupted every day by employer rendered the entire lunch break
compensable time).
Contrary to defendants’ assertion, that plaintiff does not “state why [she] was
asked to do” work during her meal break or “what that work entailed,” does not compel a
different conclusion. Mot. 13. At the pleading stage, “[t]he specific tasks that [plaintiff]
9
was required to perform during her lunch hour . . . are immaterial.” Isayeva, 2024 WL
1053349, at *8. To survive a motion to dismiss, “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. Here, plaintiff alleges that throughout her employment—
including the weeks of March 6, 2022 and March 13, 2022—she “was scheduled to work
at least 40 hours per week,” AC ¶ 11, inclusive of her consistently interrupted meal breaks,
and that she “routinely worked before and/or after her scheduled shifts” without being
compensated, AC ¶ 13. At the motion to dismiss stage, “[n]othing more is required.”2
Herrera, 84 F.4th at 115.
B. Pre- and Post- Shift Work
Defendants argue that “[e]ven if [plaintiff] worked through every single minute of
her daily meal breaks, she does not and cannot exceed 40 hours worked.” Mot. 13. This is
not so. During the precise pay period which plaintiff alleges that her lunch breaks were
interrupted each day, the complaint further catalogues that plaintiff “clocked in before
the start of her scheduled shift and/or after the end of her scheduled shift every single
day.” AC ¶ 18. Since plaintiff alleges she was only compensated from 6:00 a.m. to 2:00
2 For these reasons, defendants’ reliance on Lundy is misplaced. See Mot. 11. As the
Second Circuit has explained, the issue with the Lundy plaintiffs’ allegations was that
“they had not plausibly alleged having worked more than forty hours ‘in a given
workweek.’” Herrera, 84 F.4th at 114 (quoting Lundy 711 F.3d at 109, 114) (emphasis
added). That is, they “alleged with insufficient specificity the weeks in which they were
supposedly under-compensated.” Ramirez v. Liberty One Grp. LLC, No. 22-cv-05892,
2023 WL 4541129, at *6 (S.D.N.Y. July 14, 2023). Here, by contrast, plaintiff alleges two
specific weeks in which she was undercompensated, including the precise times she
clocked in and clocked out. See AC ¶ 18; see also Llivichuzhca v. Alphacraft Constr. Inc.,
No. 18-cv-01017, 2019 WL 13290820, at *3 (E.D.N.Y. Mar. 14, 2019) (“Defendants
effectively ask this Court to ignore these specific allegations and focus instead on the
occasions where [the] [p]laintiffs make reference to their typical and routine patterns of
hours. The Court will not engage in such impermissible cherry-picking.”).
10
p.m.—irrespective of whether she clocked in early or clocked out late for her shifts—over
the course of those two weeks, she plausibly alleges that she worked more than forty hours
and was not compensated. AC ¶ 19.
For their part, defendants argue that plaintiff fails to allege sufficient facts to
support the inference that this alleged pre- and post-shift work was compensable. See
Mot. 14–15. Defendants correctly note that “[n]ot all time spent on work related tasks
before or after a shift is compensable.” Mot. 15 (quoting DeSilva v. N. Shore-Long Island
Jewish Health Sys. Inc., 770 F. Supp. 2d 497, 510 (E.D.N.Y. 2011)). And in defendants’
view, because the amended complaint fails to describe plaintiff’s pre- and post- shift work,
and because plaintiff “offers no explanation as to why [her] alleged preliminary and
postliminary work took 3 minutes on some days, but 10 minutes on other days,” she fails
to plausibly demonstrate that this work was “integral” to the performance of her job
duties, and therefore compensable. See Mot. 15–16.
While the complaint is not abundantly detailed on this score, plaintiff does allege
some facts as to what her pre- and post-shift work entailed. Specifically, plaintiff alleges
that the work performed during her “pre- and post-shift rounding periods include some
or all of the job duties referenced supra,” AC ¶ 22, referring to her duties articulated
earlier in the amended complaint, such as “providing healthcare services to patients at
[d]efendants’ facilities, including administering medication, making beds, preparing
patients for doctor appointments, and recording clinical tasks.” AC ¶ 10. That these pre-
and post- shift tasks allegedly included her core “job duties” suggests that the work was
“integral and indispensable to performance of her job,” and therefore compensable. See
Lundy, 711 F.3d at 112.
11
Defendants’ argument that plaintiff’s claims are somehow less plausible simply
because she did not spend the same amount of time on pre- and post-shift work each day
is unsupported by authority, and in any event has no bearing on whether she, in fact,
worked compensable overtime hours. Moreover, the fact that plaintiff “does not merely
allege that she worked over forty hours per week . . . but additionally provides an estimate
of her overtime hours . . . helps draw her claim closer to plausibility.” Brain v. Execu-
Search Grp., LLC, No. 22-cv-08219, 2024 WL 838085, at *4 (S.D.N.Y. Feb. 28, 2024)
(quoting Nakahata, 723 F.3d at 201 n.10). Indeed, plaintiff specifically alleges that during
a two week pay period in March 2022, she worked “1 hour and 17 minutes” worth of
overtime “for which she was not paid.” AC ¶ 19; see also Opp’n 15. While this may not be
“a large overtime claim, it is an overtime claim nonetheless.” Aguilar, 2024 WL 3837669,
at *5.
In sum, plaintiff alleges sufficient facts to support an inference that she worked
compensable overtime in a workweek longer than 40 hours, and therefore plausibly states
an overtime wage claim pursuant to the FLSA. Accordingly, defendants’ motion to dismiss
this claim is denied.3
3 Because plaintiff plausibly alleges that she was not paid overtime for hours worked
in excess of forty per week, the Court does not reach the parties’ arguments concerning
whether defendants’ alleged “rounding” practices violate the FLSA. See Vilella v. Pup
Culture LLC, No. 23-cv-02291, 2023 WL 7986562, at *5 n.5 (S.D.N.Y. Nov. 17, 2023)
(“The Court need not at this stage determine whether Plaintiff has put forward sufficient
evidence to demonstrate a rounding violation or whether there was a common practice of
improper rounding. Plaintiff has submitted sufficient evidence of a common practice of
not paying employees overtime for hours worked in excess of forty a week.”).
12
II. FLSA Minimum Wage Claim
Plaintiff also brings a minimum wage claim pursuant to the FLSA. AC ¶ 74.
Notably, plaintiff’s amended complaint does not appear to bring a minimum wage claim
pursuant to the NYLL. See AC ¶¶ 80–93 (listing second and third causes of action for
nonpayment of straight wages and unpaid overtime, respectively). To sufficiently allege a
minimum wage violation pursuant to the FLSA, “an employee must plead facts
demonstrating that her average hourly wage falls below the minimum wage.” Navarro v.
Building Serv., Inc., No. 23-cv-07343, 2024 WL 4225747, at *2 (E.D.N.Y. Sept. 18, 2024).
An employee’s “average hourly wage” is calculated by dividing the “total remuneration for
employment in any workweek by the total number of hours actually worked by h[er][.]”
Id. (quoting 29 C.F.R. § 778.109). Because the parties dispute how many hours plaintiff
actually worked, they also dispute her exact average hourly wage. See Mot. 19; Opp’n 23
n.8. However, for purposes of this motion, defendants argue that even if plaintiff “was
uncompensated due to alleged mealtime interruptions for two and a half hours,” her
average hourly wage rate for a full 40-hour week would fall to $14.06—still above the
federal minimum wage—and her claim must be dismissed. See Mot. 19. Therefore,
plaintiff’s claim turns on which minimum wage applies for purposes of determining
liability under the FLSA: the federal minimum wage or the state minimum wage.
The FLSA protects workers by “guarantee[ing] covered employees a
federal minimum wage.” Mei Xing Yu v. Hasaki Rest., Inc., 944 F.3d 395, 402 (2d Cir.
2019) (citing 29 U.S.C. § 206). In addition to supplying a guaranteed federal minimum
wage, the FLSA also “expressly defers to state wage laws affording employees greater
protection.” Gurung v. Halhotra, 851 F. Supp. 2d 583, 592 (S.D.N.Y. 2012). Specifically,
13
the FLSA’s “savings clause” 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) (“Section 218”).
The FLSA’s federal minimum wage is $7.25 per hour. 29 U.S.C. § 206(a)(1)(C).
The minimum wage in New York State between 2021 and 2022—the time of plaintiff’s
employment with defendants—was $15.00 per hour for employers with more than 11
employees. N.Y. Lab. Law § 652(1)(a)(i); see also AC ¶ 2 (defendants “employ more than
1,000 current [h]ourly [e]mployees”). Thus, plaintiff argues that she was “entitled to be
paid at least $15.00 [per] hour for all time worked.” Opp’n 23. Defendants disagree and
contend that “when evaluating FLSA minimum wage claims, the focus is solely on
whether the employee’s hourly rate meets or exceeds the federal minimum wage.” Reply
10.
Courts in this circuit agree that, when calculating actual damages, plaintiffs will
recover under the higher state minimum wage, even for a FLSA claim. See Sanchez v. Ms.
Wine Shop Inc., 643 F. Supp. 3d 355, 374 (E.D.N.Y. 2022) (“A plaintiff may recover
liquidated damages for unpaid wages under either the FLSA or the NYLL, whichever
provides for a greater recovery.”); see also Reyes-Fana v. Moca Grocery NY Corp., No.
21-cv-04493, 2022 WL 5428688, at *10 (E.D.N.Y. Aug. 16, 2022) report and
recommendation adopted, 2022 WL 4094241 (Sept. 7, 2022) (calculating damages for
FLSA and NYLL violations and explaining that “[a] plaintiff with a valid wage claim under
both federal and state law may recover under whichever statute provides the greater
damages”).
14
The law in this circuit is less clear, however, as to whether FLSA liability alone for
minimum wage claims can be based on a wage above the federal minimum wage but below
the state minimum wage. While some courts have indicated that an “employer must pay
the state minimum wage to satisfy the FLSA’s minimum wage requirement[,]” they have
done so in the context of default judgment and where a plaintiff sought to recover for
unpaid minimum wages under both the FLSA and NYLL. Cooper v. Fire & Ice Trucking,
Corp., No. 23-cv-01675, 2024 WL 3344001, at *8 n.6 (E.D.N.Y. July 9, 2024); see also
Sevilla v. House of Salads One LLC, No. 20-cv-06072, 2022 WL 954740, at *6 (E.D.N.Y.
Mar. 30, 2022) (concluding on motion for default judgment that the defendant violated
“the FLSA’s and NYLL’s minimum wage provisions,” where defendant paid an average
rate above the federal minimum wage, but below the city minimum wage).
Similarly, courts have stated that the FLSA requires employers to pay the state
minimum wage if it is greater than the federal minimum wage in the context of inquests
on damages following default judgment where plaintiffs brought minimum wage claims
under both federal and state law. See e.g., Jesus v. Gotham Cleaners, No. 23-cv-04783,
2024 WL 4264906, at *7 (S.D.N.Y. Aug. 1, 2024), report and recommendation adopted,
2024 WL 4264906 (Nov. 26, 2024) (noting in inquest on damages where the defaulting
defendants failed to pay “minimum wage compensation required under the FLSA and
NYLL,” that the “FLSA requires employers to pay employees . . . the state minimum wage
if it is greater,” than the federal minimum wage); Melgadejo v. S & D Fruits & Vegetables
Inc., No. 12-cv-06852, 2015 WL 10353140 (S.D.N.Y. Oct. 23, 2015), report and
recommendation adopted, 2016 WL 554843 (Feb. 9, 2016) (same).
15
On the other hand, in the context of assessing whether a plaintiff has stated a
plausible FLSA minimum wage claim on a motion to dismiss, courts have concluded that
the FLSA only requires employers to pay the federal minimum wage. See e.g., Jimenez v.
W&M Servs. Inc., No. 22-cv-05061, 2025 WL 916921, at *3 (E.D.N.Y. Mar. 25, 2025)
(rejecting argument 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,” on motion to dismiss and concluding that the FLSA only requires employers to pay
the federal minimum wage); Szabelski v. AM&G Waterproofing, LLC, No. 22-cv-06590,
2024 WL 1259425, at *4 (E.D.N.Y. Mar. 25, 2024) (granting motion to dismiss because
the plaintiff “d[id] not allege that [the] [d]efendants violated the minimum wage
requirement under the FLSA because he allege[d] that he was paid at an hourly rate
significantly higher than the federal minimum wage during the relevant time period.”);
Rosa v. Dhillon, No. 20-cv-03672, 2020 WL 7343071, at *3 (E.D.N.Y. Dec. 14, 2020)
(granting motion to dismiss FLSA minimum wage claim and concluding that “for non-
overtime wages, the FLSA requires only that employers pay the minimum wage rates set
by federal law”) (collecting cases).
The difference in these cases reflects the fact that while the FLSA’s savings clause
makes clear the statute “does not preempt any existing state law that establishes a higher
minimum wage,” it does not “incorporate state law[.]” Jimenez, 2025 WL 916921, at *3.
That is, although the FLSA does not preempt state minimum wage laws, it also does not
“create[] a federal cause of action to enforce state minimum wage laws.” Andrade v. A to
Z Hardware, Inc., No. 22-cv-07304, 2024 WL 4029576, at *3 (E.D.N.Y. Aug. 17, 2024),
report and recommendation adopted, 2024 WL 4028472 (Sept. 3, 2024); see also Lundy,
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711 F.3d at 116 (noting that the FLSA “supplements the hourly employment arrangement
with features that may not be guaranteed by state laws, without creating a federal remedy
for all wage disputes”). As one court has explained:
While the FLSA clearly provides that states and municipalities
may enact laws providing for more generous minimum wages,
and while the FLSA clearly provides that compliance with the
FLSA minimum wage does not excuse noncompliance with a
state or municipal minimum wage, there is no support for
plaintiffs’ argument that the failure to pay that more generous
minimum wage states a FLSA minimum wage violation. Such
failure may trigger a violation of the relevant state or
municipal law, but it does not, by itself, support a federal
minimum wage FLSA claim.
McElmurry v. U.S. Bank Nat’l Ass’n, No. 04-cv-00642, 2005 WL 2078334, at *4 (D. Or.
Aug. 24, 2005).
Thus, while the FLSA does not prevent a plaintiff from recovering wages due under
state minimum wage laws—and does not excuse noncompliance with such laws—the
violation of a state minimum wage higher than the federal minimum wage does not, on
its own, support a FLSA minimum wage claim. See Jimenez, 2025 WL 916921, at *3
(“FLSA requires only that employers pay the minimum wage rates set by federal law[,]
[h]owever, to the extent that an employee establishes an FLSA violation, she may recover
the greater of the federal or state minimum wage.”).4 Put differently, while the FLSA’s
4 Each of plaintiffs’ cited cases illustrates this point. See Jesus, 2024 WL 4264906,
at *7 (noting in damages inquest where plaintiff alleged minimum wage violations under
both the FLSA and NYLL that the FLSA required employers to “pay employees . . . the
state minimum wage if it is greater”); Villanueva v. 179 Third Ave. Rest Inc., 500 F. Supp.
3d 219, 234, 236 (applying state minimum wage in damages inquest where plaintiffs
brought claims for violation of the FLSA and the NYLL’s minimum wage provisions and
noting that “[t]he federal minimum wage . . . does not preempt the state minimum wage,
and a plaintiff may recover under whatever statute provides the highest measure of
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savings clause ensures that the FLSA does not preempt state minimum wages, it does not
expressly incorporate those amounts and turn them into violations of federal law. See
Lundy, 711 F.3d at 115–16; see also Fuk Lin Pau v. Jian Le Chen, No. 14-cv-00841, 2015
WL 6386508, at *8 (D. Conn. Oct. 21, 2015) (“[C]onsider a[n] . . . employer who pays her
employees $7.25 per hour. That employer has violated state law, but she has not violated
federal law.”). Accordingly, the Court finds that plaintiff’s claim for unpaid minimum
wages pursuant to the FLSA must be premised on the federal minimum wage and not the
higher state minimum wage.
* * *
Because plaintiff fails to allege facts indicating that her average hourly wage was
less than the federal minimum wage, she has failed to state a plausible FLSA claim for
minimum wage violations. Therefore, defendants’ motion to dismiss this claim is granted.
III. NYLL Claims
Finally, plaintiff also brings claims for nonpayment of straight wages and unpaid
overtime pursuant to the NYLL. See ¶¶ 80–93. Defendants’ sole proffered basis for
dismissal is that the Court should decline to exercise supplemental jurisdiction over these
damages.”); Melgadejo, 2015 WL 10353140, at *9 (“Actual damages for minimum wage
and overtime compensation owed will be calculated pursuant to the NYLL because during
all relevant time periods the state minimum wage under the NYLL was greater than or
equal to the federal minimum wage under the FLSA.”); Hinson v. Tammys Nail Utopia
LLC, No. 23-cv-02395, 2024 WL 3611409, at *14 (S.D.N.Y. July 31, 2024) (“Because
plaintiffs who bring claims under both the FLSA and NYLL recover under the statute that
provides the greater measure of damages, the Court applies the higher NYLL minimum
wage.”); McLaughlin v. Onanafe Mgmt. Sols. LLC, No. 22-cv-06792, 2024 WL 4184485,
at *9 (E.D.N.Y. Sept. 14, 2024) (concluding that plaintiff was entitled to recover under the
higher of local, state, or federal minimum wage where plaintiff brought claims for FLSA
and NYLL minimum wage violations).
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claims because plaintiff’s “federal claims arising under the FLSA are lacking.” Mot. 7 n.3.
As discussed above, the Court concludes that plaintiff plausibly alleges a claim for unpaid
overtime pursuant to the FLSA. See generally Part I. Accordingly, the Court may exercise
supplemental jurisdiction over plaintiff’s state law claims, and defendants’ motion to
dismiss these claims on this basis is denied. See Aponte v. St. Pizza Inc., No. 22-cv-03188,
2023 WL 1795189, at *3 (S.D.N.Y. Feb. 7, 2023) (“Since [the] [p]laintiffs have sufficiently
alleged a cause of action pursuant to FLSA, the Court may exercise supplemental
jurisdiction over [the] [p]laintiffs’ state NYLL claims.”).
CONCLUSION
For the reasons stated above, defendants’ motion to dismiss is GRANTED in
part, DENIED in part. Defendants shall file and serve an answer to the amended
complaint on or before May 12, 2025. This case is referred to Magistrate Judge Cheryl L.
Pollak for pretrial supervision.
SO ORDERED.
/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge
Dated: April 28, 2025
Brooklyn, New York
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