Accordingly, defendants' motion for summary judgment dismissing plaintiff's state law and common law claims is granted.
The first cause of action is the only cause of action that includes plaintiff's FLSA claims. Section 206 of the FLSA requires the payment of a minimum wage; section 207 prescribes a maximum work week of forty hours.
29 U.S.C. § 206
Defendants argue that they are entitled to summary judgment on plaintiff's claim under § 206 of the FLSA claim if plaintiff fails to account for the amount of wages he received in gratuities. This argument is inappropriate on a motion for summary judgment, and is relevant to damages, not liability. Plaintiffs agree, in any event, that the tips received by plaintiff in the course of his employment with defendants may be offset from any damages assessed against defendants pursuant to § 206.
29 U.S.C. § 207 Claim
Claims under § 207 of the FLSA do not apply to employees with workweeks of forty or fewer hours. Plaintiff admitted to having worked only forty hour workweeks in 1991, see Def. Notice of Motion, Ex. B, and therefore he cannot recover overtime compensation under § 207 of the FLSA for 1991. Because defendants have not provided records of the hours plaintiff worked in years prior to 1991, defendants' motion for summary judgment as to the years from 1982 through 1990 is denied.
Vacation and Holiday Pay
Plaintiff is not entitled to payment for vacation or holidays under 29 U.S.C. § 216, which states that an employer who violates the FLSA shall be liable to its employees "in the amount of their unpaid minimum wages, or their unpaid overtime compensation . . . and in an additional equal amount as liquidated damages." Plaintiff alleges that holiday and vacation pay are provided for in the CBAs. Am. Compl. P 35. He may seek to recover such holiday and vacation pay by arbitrating his dispute as required by the CBAs. Accordingly, defendants' motion for summary judgment to dismiss plaintiff's claims for holiday and vacation pay pursuant to 29 U.S.C. § 216 is granted.
Plaintiff concedes that punitive damages are not available for plaintiff's first cause of action under § 206 and § 207 of the FLSA and are barred. Accordingly, defendants' motion for summary judgment as to plaintiff's claim for punitive damages based on § 206 and § 207 is granted.
Defendants move to dismiss plaintiff's claims to the extent they seek to recover for stand-by time, that is, the period during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes. See 29 C.F.R. § 785.16(a) (1993). Such a period does not constitute hours worked for which the employee may be compensated. Plaintiff has denied that he was given any stand-by time, and defendants have introduced no evidence to the contrary. Accordingly, defendants' motion for summary judgment on this basis is denied.
Counsel for both parties are ordered to submit by September 6, 1993, memoranda addressing the issue of whether plaintiff's remaining claims under the FLSA are affected by the arbitration clause contained in the CBAs.
For the foregoing reasons, defendants' motion for summary judgment is granted in part and denied in part.
All counsel are to attend a pretrial conference on September 20, 1993 at 9:00 a.m. in courtroom 302.
IT IS SO ORDERED.
Dated: New York, New York
August 13, 1993
Robert P. Patterson, Jr.