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Federal Court for New York’s Southern District Awards $396,992.64 to Three Plaintiffs in Wage-and-Hour Case Against Rosa’s Pizza and Pasta Restaurants

On August 26, 2014, magistrate Judge James L. Cott issued his Report and Recommendation in the case Yuquilema et al v. Manhattan’s Hero Corp et al., which included detailed calculations that the Court was required to make itself because the Defendants defaulted by failing to appear. The Plaintiffs’ allegations in the case ran a familiar gamut–that the Defendants required them to work extensive overtime without ever paying time-and-a-half; that Defendants paid all Plaintiffs in cash and failed to keep records in order to conceal their underpayment of wages; that Defendants paid tipped employees less than minimum wage while requiring them to spend more than 20% of their work hours doing non-tip-generating tasks; that employees were never notified that they were entitled to minimum wage and overtime pay, or that Defendants intended to claim a tip credit; that they failed to pay “spread of hours” pay of one hour at minimum wage for shifts longer than 10 hours–all in violation of both the Fair Labor Standards Act and the New York Labor Law.

A striking fact about the Magistrate’s Report is the detailed calculation of each Plaintiff’s award based on estimates of hours worked at various wage-rates, and in the performance of various tasks, during different periods of time. The Court generated detailed–and frankly impressive–charts to explain the basis of its recommended judgment:

*For Plaintiff Orea, $90,864 in compensatory damages for unpaid wages, $2,500 in statutory damages for failure to receive wage statement, $34,920 in federal liquidated damages, and $25,298 in New York liquidated damages *For Plaintiff Velendez, $33,160 in compensatory damages for unpaid wages, $2,500 in statutory damages, $23,094.48 in federal liquidated damages, and $16,978.38 in New York liquidated damages
*For Plaintiff Carrasco, $73,899 in compensatory damages for unpaid wages, $2,500 in statutory damages, $45,666 in federal liquidated damages, and $35,611.57 in New York liquidated damages
In addition, Plaintiffs would also be awarded $8,810 in attorney’s fees and $430 in costs.

The damages awarded this case might have been even greater, but for the fact that Plaintiff Yuquilema and his attorneys failed to provide the Court with consistent and timely information about his hours worked. Concluding that it could not calculate damages for Yuquilema on the basis of the information provided, the Court ultimately decided to deny entry of judgment for damages in his favor. The total judgment of nearly $400,000 is for only three of the four original Plaintiffs.

The Court’s award of damages might have been greater for another reason, too. Under New York Labor Law, if a company fails to provide its employee with a wage notice within ten business days of the start of her employment, then annually each February thereafter, the employer must pay fifty dollars for each week in which this violation occurred or continued to occur. NYLL § 198(1-b). However, the Court notes: “Oddly, the NYLL extends this private cause of action to employees whose employer fails to provide the initial notice at their hire, but not for subsequent failures to furnish the annual notice in following years…as a consequence, none of the Plaintiffs here may recover under this provision of the NYLL–even though Defendants failed to provide the requisite annual notices…as each commenced employment prior to April 9, 2011.” In other words, only the company’s notification at the initial time of the employees’ hiring matters legally, but that time is outside the statute of limitations in this case.

If you believe your rights under the Fair Labor Standards Act or State Labor Laws have been violated, please contact The Harman Firm, LLP.

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