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MOON v. KWON

September 6, 2002

KEUN-JAE MOON, PLAINTIFF
V.
JOON GAB KWON; 43 WEST 32ND STREET CORP., D/B/A HOTEL STANFORD; BEAUTRI REALTY CORP., D/B/A SEOUL HOUSE; "ABC CORPORATION"; STANFORD HOTEL NEW YORK CORPORATION, LLC; CENTRAL PALACE LLC; HAN AH REUM INC., DEFENDANTS.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge.

  OPINION AND ORDER

Plaintiff Keun-Jae Moon brings this action under the Fair Labor Standards Act ("FLSA") and the New York Labor Law alleging that the defendants, acting as joint employers, failed to pay overtime wages to which he is entitled. The Court has jurisdiction over Moon's federal claims pursuant to 28 U.S.C. § 1331 and exercises supplemental jurisdiction over Moon's state law claims pursuant to 28 U.S.C. § 1367. Moon, a Korean immigrant who speaks little English, claims that he was required by his employers to work as a maintenance man for a hotel and related businesses essentially seven days a week and virtually 24 hours per day for years, without receiving the premium pay required by federal and New York State law for work beyond the ordinary maximum work week established by law. Following a bench trial, the Court finds that Moon's claims are for the most part accurate, and only slightly exaggerated, and concludes that under the law, he is entitled to substantial damages.

Moon's complaint originally was filed on December 6, 1999, and subsequently was amended twice. A notice of entry of default was filed as to defendant Beautri Realty Corp. on March 17, 2000. Following the completion of discovery, Moon's claims were tried before this Court at a bench trial held November 13 to 15, 2001. In accordance with the Individual Practices of this Court in civil bench trials, and without objection, the parties submitted the direct testimony of their witnesses by affidavit as well as their documentary evidence in advance of trial. Moon submitted his own affidavit (Pl. Ex. 19 ("Moon Aff.")) as well as the affidavits of Victor Sanchez, who has worked at the hotel as a bellman since 1993 (Pl. Ex. 20 ("Sanchez Aff.") ¶¶ 1-2), and Victor Tejada, who worked at the hotel as in the housekeeping department from 1991 until he was laid off in 2001 (Pl. Ex. 21 ("Tejada Aff.") ¶¶ 1-2). The defendants submitted the declarations of defendant Joong Gab Kwon ("Kwon"), the owner and manager of the Hotel Stanford (Def. Ex. T ("Kwon Decl.") ¶¶ 3, 7); Woo Jin Choi, who was employed as a senior manager at the hotel from November 1988 until July 1999 (Def. Ex. U ("Choi Decl.") ¶ 3-5), Young Bok Kwon ("Thomas Kwon"), who was a front desk clerk at the hotel from 1994 until 2000 (and is not related to defendant Joong Gab Kwon) (Def. Ex. V. ("T. Kwon Decl.") ¶ 4); Jay Young Park, who has worked as a front desk clerk at the hotel since 1995 (Def. Ex. X ("Park Decl.") ¶ 2); Ki Nam Kim, who worked as a front desk manager at the hotel from 1988 until 1995 and again from 1998 to the present (Def. Ex. W (Kim Decl.") ¶ 2); and Nicolas Lee, who has served as the hotel's Director of Operations since 1999 (Def. Ex. Y ("Lee Decl.") ¶ 2.).

Plaintiff also relied on excerpts from the deposition testimony of Huee Kyung Kwon ("Ms. Kwon"), who is the daughter of defendant Kwon and has worked at the hotel since 1998, first as the hotel's comptroller and currently as its director of management. (H. Kwon Dep. 9-10, 15, 21.) The defendants relied upon excerpts from the plaintiffs deposition. (Moon Dep.) The parties submitted counter-designations from both depositions. All of the witnesses were cross-examined at trial. Moon testified through a Korean language interpreter, and Sanchez and Tejada testified through a Spanish language interpreter. While most of the witnesses for the defense appeared to understand English in varying degrees, all of the defense witnesses except Choi relied upon the assistance of a Korean language interpreter when testifying.

In general, the Court finds Moon's testimony credible with respect to the terms and conditions of his employment and the nature and extent of the work he performed for the defendants. While Moon understandably does not recall every last detail concerning the work he performed in particular weeks, his overall testimony concerning the work he performed is amply corroborated by documentary evidence and the testimony of other witnesses. By contrast, the Court finds the defense witnesses considerably less credible than Moon. In particular, the Court finds Kwon not to be credible in his testimony concerning his own day-to-day involvement in the operations of the hotel, the terms and conditions of Moon's employment relationship, the nature and extent of the work that Moon performed for the defendants, and his knowledge of the defendants' failure to pay Moon overtime to the extent required by law. The remaining defense witnesses, all of whom are affiliated with the defendants in one way or another (Tr. 206-07, 252, 281, 291-92, 298-99), do not credibly refute Moon's overall account of the work he performed for the defendants.

In light of the evidence received at trial, the following constitutes this Court's findings of fact and conclusions of law under Fed.R. Civ. P. 52.

FINDINGS OF FACT

I. Parties

Plaintiff Keun-Jae Moon is a 57-year-old Korean immigrant who came to the United States in 1985 and currently lives in the Bronx. (Moon Aff. ¶¶ 3-4.) Moon has had no formal education, and does not speak or read English; he did, however, receive some training as a repairman and mechanic in Korea. (Moon Aff. ¶¶ 5-7; Tr. 38-40.) From November 1987 until August 2000, Moon worked at the Hotel Stanford, a year-round, 121-room hotel located in midtown Manhattan. (Stip. Facts. ¶ 11.)

The hotel is owned and operated by defendant Stanford New York L.L.C. ("Stanford"); prior to June 1998, the hotel had been operated by defendant 43 West 32nd Street Corp. ("43 West"). (Stip. Facts ¶ 1.) Defendant Joong Gab Kwon, in turn, is a member of Stanford and the President and Treasurer of 43 West. (Stip. Facts ¶¶ 4-5; Def. Ex. T ("Kwon Decl.") ¶ 3-4.) While Kwon testified that he does not maintain an office in the hotel and does not participate in setting the conditions of employment at the hotel beyond the senior managerial level (Kwon Decl. ¶¶ 22-23), on cross-examination Kwon admitted that he regularly works out of an office in the hotel, has actively and directly participated in labor negotiations with union representative of the hotel's non-managerial employees, and has participated directly in decisions involving the terms and conditions of Moon's employment, such as his day-to-day job responsibilities and his compensation, health care benefits, and housing. (Kwon Decl. ¶¶ 17, 23; Tr. 209-11, 216, 222-23; Pl. Exs. 13, 24.) Indeed, Kwon claims to have personally made the decision to hire Moon. (Tr. 216, 227.) The Court finds that Kwon plays an active, day-to-day role in the operation of the hotel, including direct supervision of employees such as Moon.

Kwon also was a shareholder of defendant Beautri Realty Corp. ("Beautri") until January 1998 and a member, the majority shareholder, and the manager of defendant Central Palace L.L.C. ("Central") until its dissolution.*fn2 (Stip. Facts ¶¶ 7, 9; Kwon Decl. ¶ 17; Tr. 220.) Between 1994 and 1998, Beautri owned a residential apartment building located on the same block as the hotel and known as "Seoul House." (Kwon Decl. ¶ 17.) At all relevant times, Central owned a nearby commercial building on 41st Street near Park Avenue (the "41st Street Building"). (Tr. 219-20.) The last corporate defendant, Han Ah Reum Corp., sued herein as Han Ah Reum Inc. ("Han Ah Reum"), is owned by Kwon's brother. (Kwon Decl. ¶ 6.). Han Ah Reum operates a Korean grocery store on the same block as the hotel. (Moon Aff. ¶ 29.)

The parties have stipulated that the hotel does business within the city of New York and is an enterprise engaged in commerce or in the production of goods for commerce within the meaning of FLSA, 29 U.S.C. § 206-07, and that collectively, Stanford, 43 West, Central, and Han Ah Reum also constitute an enterprise engaged in commerce or in the production of goods for commerce within the meaning of FLSA. (Stip. Facts. ¶¶ 1-2.)

II. Moon's Compensation

Moon was brought to the hotel in November 1987 by a friend and was hired as a maintenance worker after meeting with one of the hotel's managers. (Moon Aff. ¶ 9-10; Stip. Facts ¶ 10; Tr. 23.) Prior to working at the hotel, Moon had previously worked in the United States as a maintenance worker and in a grocery store, and in Korea doing plumbing and repairing refrigerators and air conditioners. (Moon Aff. ¶¶ 7-8.) Kwon maintains that he, too, interviewed Moon, even though he did not typically participate in the hiring process at the hotel, as a favor to a friend who had informed him that Moon was an orphan of the Korean War. (Kwon Decl. ¶ 10.) According to Kwon, Moon confirmed during that interview that he was a Korean War orphan and that his family had remained in Korea; after the interview, Kwon asserts, he instructed the hotel's management to hire Moon as a maintenance worker even though Moon did not have any skills. (Kwon Decl. ¶ 11.) Moon, however, disputes Kwon's account, asserting that he never had an interview with Kwon and that he is not, in fact, a Korean War orphan. (Tr. 48, 304-05.) While this factual dispute is not material to any important issues in this case, the Court credits Moon's testimony that he is not a Korean War orphan and did not meet with Kwon during his employment interview at the hotel; Kwon's lack of credibility regarding this minor matter casts some doubt on the balance of his testimony.

The parties agree that Moon never had a written employment contract with any of the defendants. (Stip. Facts ¶ 12.) Nor have the defendants preserved "a written memorandum summarizing the terms" of Moon's oral employment agreement, as federal law requires. 29 C.F.R. § 516.5(b)(4). in the absence of any written instrument memorializing the parties' intentions, the Court must infer the terms of their agreement from the entire course of their conduct, based on the testimonial and documentary evidence in the record.

A. Wages and Hours

Moon testified that he initially was paid only in cash, but that the hotel began, without ever discussing the change with him, to pay his weekly salary in both cash and check in April 1988. (Moon Aff. ¶¶ 16-18.) Thereafter, Moon claims to have received small wage increases each year, typically in the form of increased cash payments of approximately $5 per week, and asserts that the hotel's management did not discuss any of these raises with him. (Moon Aff. ¶¶ 18-19.) According to Moon, his regular weekly salary from 1993 through 1999 was as follows:

Period Cash Check Total
1993 $207 $461.54 $668.54
1994 $212 $461.54 $673.54
1995 $217 $461.54 $678.54
1996 $222 $461.54 $683.54
1997-March 1998 $227 $490.38 $717.38
April 1998-June 1999 $0 $836.54 $836.54

(Moon Aff. ¶ 19.)

Moon's testimony concerning the amounts paid by check is confirmed by his paycheck receipts, a large number of which he has retained. (Def. Ex. B; Pl. Ex. 3.) As for the cash payments, these are not reflected in the W-2 forms issued by the hotel or the tax returns filed by Moon, and the defendants argue that no such cash payments ever were made. (Def. Br. 43-45.) Nevertheless, the Court credits Moon's testimony and finds that Moon was paid the weekly cash amounts that he claims. Sanchez credibly testified that he, too, was paid off-the-books in cash until he complained, and at least one hotel document also reflects that Moon was paid cash along with his check. (Sanchez Aff. ¶ 2; Pl. Ex. 6.) Moreover, after initially denying any knowledge of off-the-books cash payments by the hotel, Choi, who was responsible for payroll matters, admitted that the hotel paid its employees cash without reporting those payments on their W-2 forms. (Tr. 230-31, 237-40, 248-49, 254-56.) In addition, as discussed below, Moon's contention that he was paid substantial amounts in cash is corroborated by the otherwise inexplicable dramatic increase in his weekly paycheck in April 1998, when he maintained that he ceased receiving cash.

For purposes of determining the parties' intentions with respect to the terms and conditions of Moon's employment, their employment relationship with the hotel may be divided into four distinct phases: (1) from the start of his employment in 1987 until early 1988, (2) from early 1988 until April 1998, and (3) from April 1998 until June 1999, and from (4) June 1999 onward.

1. Period One — November 1987 until Early 1988

Moon maintains that at the start of his employment in 1987, a hotel manager told him that he was to work 10 hours a day, six days a week, and that he would be paid $7 per hour for that work. (Moon Aff. ¶¶ 10, 15; Tr. 24, 42, 54.) Moon testified that he also was told that if he worked more than 60 hours per week, he would be paid $7 per hour for those extra hours. (Tr. 147; Moon Aff. ¶ 15.) The defendants dispute this contention, maintaining that Moon was told at the very outset of his employment that he was to be paid a weekly salary, based on a 60 hour workweek. According to Choi, all maintenance workers, including Moon, were paid fixed weekly salaries rather than hourly wages. (Choi Decl. ¶ 8.) The Court credits Moon's account of this initial phase of his employment relationship, and finds that he agreed to work at least 60 hours per week for an hourly wage of $7 per hour, or a total of $420 per week, with overtime payments of $7 for hours in excess of 60 per week.

2. Period Two — Early 1988 until April 1998

Moon testified that in early 1988, he met with Woo Jin Choi ("Choi"), the hotel's manager, and was told that because he was "making too much money," (1) his compensation would be decreased to approximately $400 per week, and (2) he no longer would be paid anything for hours in excess of 60 per week. (Moon Aff. ¶ 16; Tr. 50.) Moon states in his affidavit that he understood that he was still expected to work at least 60 hours per week, characterizing a workweek of 60 hours as his "regular schedule." (Moon Aff. ¶¶ 15-16, 31, 147.) On cross-examination, however, Moon explained further that while he was told at the 1988 meeting with Choi that he would thenceforth be paid the same amount of money each week and that he was expected to work at least 60 hours per week, he did not know or understand what the underlying basis for that weekly salary would be. (Tr. 44-46, 54.) He testified that "[w]hat I understood was ten hours [per day] and a weekly payment, but other than that, I don't know in details." (Tr. 54.) Based primarily on Moon's own testimony, the defendants maintain that (1) Moon agreed to work at least 60 hours of work each week for a weekly salary, rather than for hourly wages, and (2) the parties also intended for that salary to include an overtime premium for hours worked in excess of 40 hours per week. (Kwon Decl. ¶ 13.)

For purposes of FLSA, "[t]here is a rebuttable presumption that a weekly salary covers 40 hours; the employer can rebut the presumption by showing an employer-employee agreement that the salary cover a different number of hours." Giles v. City of New York, 41 F. Supp.2d 308, 317 (S.D.N.Y. 1999). While Moon argues that the defendants have failed to rebut this presumption, the Court disagrees and finds that during the period from early 1988 until April 1998, the parties agreed that Moon would be paid a weekly salary in exchange for at least 60 hours of work per week. In making this finding, the Court credits Moon's own testimony that he was expected to work at least 60 hours per week, and notes further that throughout this period, Moon was in fact paid a weekly salary and consistently worked more than his "scheduled 60 hours" per week. (Pl. Exs. 6, 7; Def. Ex. B; H. Kwon Dep. 90, 98-99; Tr. 44-45; Moon Aff. ¶ 21.) While Moon's paycheck receipts, on their face, indicate that Moon was compensated for 40 hours of work each week, rather than 60 hours (Def. Ex. B), the Court credits the testimony of several defense witnesses that the notations on Moon's paycheck receipts indicating that he was being paid for only 40 hours of work per week resulted from the peculiarities of the hotel's accounting software, which automatically designated all "salaried" employees as having worked 40 hours per week.*fn3 (Choi Decl. ¶¶ 9-10; Lee Decl. ¶ 4; Tr. 234-35; H. Kwon Dep. 88-89.) Moon consistently testified that from the very beginning, he was expected and agreed to work regular 60-hour weeks, that his pay was intended to cover that many hours, and indeed was initially computed based on 60 hours of work at $7 per hour. Nothing in the record, including Moon's own testimony, persuasively suggests that this initial agreement changed to a 40-hour week in 1988.

At the same time, the Court also credits Moon's testimony concerning his subjective understanding — or lack of understanding — concerning the manner in which this weekly salary was to be calculated. "Unless the contracting parties intend and understand the weekly salary to include overtime hours at the premium rate, courts do not deem weekly salaries to include the overtime premium for workers regularly logging overtime, but instead hold that weekly salary covers only the first 40 hours." Giles, 41 F. Supp.2d at 317. The evidence here establishes rather clearly that while Moon understood as of early 1988 that he was henceforth to be paid a weekly salary, he did not at all understand how that weekly amount was to be calculated. In particular, no credible evidence supports a finding that Moon understood or agreed that his weekly salary would include any sort of overtime premium for work in excess of 40 hours per week. Indeed, the defendants offer no evidence indicating that either party to the agreement understood Moon's weekly salary to include any such overtime premium. While Kwon and Choi testified that they intended to comply fully with federal and state minimum wage and overtime laws (Kwon Decl. ¶ 13; Choi Decl. ¶ 20; Tr. 248-49), these general platitudes concerning the defendants' aspirations to comply with the labor laws, even if truthful, are not sufficient to support a more specific finding that the parties explicitly agreed to include an overtime premium in Moon's weekly salary. The Court also draws an inference concerning the defendants' intentions from Moon's credible testimony that under the terms of his original employment contract, agreed to less than a year before, the hotel agreed to compensate him for hours in excess of 60 per week at his normal rate of $7 per hour, not at a premium rate.

The documentary evidence submitted by the parties also tends to support an inference that the defendants did not intend for Moon's salary to include any overtime premium. As already noted, Moon's paycheck receipts on their face indicate that Moon was compensated for 40 hours of work each week, rather than 60 hours, and the defendants' only explanation for this notation is that Moon was treated by their accounting software as a salaried employee. While the Court credits the defendants' explanation, that testimony also supports an inference that the hotel mistakenly understood Moon to be exempt from overtime wages under FLSA altogether — an understanding directly at odds with the notion that the hotel simultaneously intended its employment agreement with Moon explicitly to have included any premium for overtime hours.*fn4 The contradictory nature of the inferences the defendants would have the Court draw from this testimony is illustrated by the 1989 version of the Hotel Stanford Employee Handbook, which informs the hotel's employees that

[i]n order to comply with the [FLSA], we have two categories of employees:
1. Exempt or salaried employees who are not entitled to overtime pay and must satisfy the provisions of the [FLSA] to qualify as an Executive, Administrative or Professional exemption.
2. Non-Exempt Hourly employees. If you are a non-exempt hourly employee, you will be paid for overtime work at the rate of 1 1/2 times your base salary pay rate for all hours paid over forty (40) in a work week. The Hotel defines a work week as 12:01 a.m. Sunday through Midnight of the following Saturday.

(Pl. Ex. 9 ("Hotel Employee Handbook") at 5.) Neither category, however, contemplates the compensation terms that the defendants now claim that they intended: a weekly salary calculated to include overtime wages at a premium rate. There is no basis, therefore, to conclude that either party intended such an arrangement.

To summarize, the Court finds that while Moon agreed to a salary that would cover a 60-hour workweek during the period between early 1988 and April 1998, he clearly was confused about the manner in which his weekly wages were calculated and certainly did not agree to a particular calculation of those wages that included a premium rate for hours in excess of 40 per week. At the same time, the documentary evidence does not suggest that the defendants intended Moon's weekly salary to include any premium for overtime, and indeed more reasonably supports the opposite inference. Accordingly, the Court finds that Moon and the hotel did not agree to include an overtime premium as part of his weekly salary during the period from early 1988 until April 1998.

3. Period Three — April 1998 until June 1999

Beginning in January 1998, the hotel initiated steps that materially changed the nature of Moon's employment relationship. As of April 1998, the hotel stopped including cash with Moon's weekly checks, instead paying his entire weekly salary by check. Accordingly, the amount of that weekly check increased over 40 percent, from $490.38 to $836.54. (Moon Aff. ¶ 19; Def. Ex. B; Pl. Ex. 3.) In addition, Moon testified that at some point between January and April 1998, a new hotel manager informed Moon that he no longer should stay for dinner or work at night, work on his days off, or respond to emergencies, and Moon asserts that his work hours decreased significantly as a result. (Moon Aff. ¶ 55; Tr. 43-44.) This testimony finds support in Moon's contemporaneous, handwritten notes, in which he summarized the maintenance and repair work he had performed each day and, in many instances, also recorded the date and approximate time.*fn5 Moon's notes after April 1998 indicate that he rarely performed work late in the evening during this period, and that on many occasions he left work between 7:00 p.m. and 8:00 p.m. Finally, in October 1998, the hotel began to require Moon to record his work hours using a time card, as it had required of other employees since the early 1990s. (Moon Aff. ¶ 31; Choi Decl. ¶ 7; Stip. Facts ¶ 13.)

According to Moon, his regular work schedule changed during this period from 60 hours per week to 48 hours per week (Tr. 44-45), and the Court credits this testimony. This finding finds additional support in the hotel's employment records, which are considerably more extensive in the period after April 1998, when it appears to have been trying to regularize its compensation policies. After the hotel stopped paying Moon cash and increased the amount of his paycheck to $836.54, it also on occasion indicated instances in which it purported to be paying Moon for overtime hours, sick days, and vacation days. For example:

Each of Moon's paycheck receipts for the five weeks between May 23, 1998, and June 20, 1998, indicates that he was paid for 40 "regular" hours, totaling of $836.52, and eight "overtime" hours, for a total of $209.16. On its face, this calculation reflects compensation for "regular" hours at an hourly rate of $20.91 and for "overtime" hours at an hourly rate of $26.29. However, the amounts make much more sense if we accept Moon's testimony that his workweek was meant to include 48 "regular" hours, rather than the 40 indicated on the receipt. On that assumption, the check instead reflects compensation for 48 "regular" hours at the hourly rate of $17.42 and for eight "overtime" hours at the hourly rate of $26.29 — which represents exactly one-and-one-half times the "regular" hourly rate of $17.42.
Moon's paycheck receipt for the week ending March 13, 1999 — the week following his injury — indicates that he was paid for 24 "regular" hours, totaling $418.08, and 24 "sick" hours, also totaling $418.08. Again, this calculation reflects compensation for both "regular" and "vacation" hours at a uniform hourly rate of $17.42, and a total work week of 48 hours.

(Pl. Ex. 3.)

The evidence gives no reason to believe that the hotel intended to account for compensation within these various categories at different hourly rates — to the contrary, it is clear that at least with respect to vacation and sick hours, the hotel's policy was to compensate its employees at their "regular" hourly rates. (Hotel Employee Handbook at 19; H. Kwon Dep. 85-86.) However, as Moon's attorneys painstakingly and persuasively demonstrate in their post-trial brief (Pl. Br. 39-46), reconciling these numbers so as to ensure a uniform hourly rate for regular, vacation, and sick hours only is possible when one assumes Moon's regular workweek to be 48 hours.*fn6 On that assumption, Moon's paycheck receipts for this period reflect compensation for regular, sick, and vacation hours at a uniform rate of approximately $17.42 per hour for a 48-hour workweek, and compensation for overtime hours beyond 48 at a premium of one-and-one-half times that normal rate.*fn7

Accordingly, the Court finds that between April 1998 and June 1999, the parties intended to compensate Moon for a 48-hour regular workweek and continued to pay him a weekly salary for that work. Notwithstanding the handful of instances in May and June 1998 in which Moon's paychecks purport to indicate overtime payment for work in excess of 48 hours per week, the parties did not evidently agree to compensate Moon at a premium rate for work in excess of 40 hours per week. Because Moon's compensation for his regular 48-hour work schedule seems to have been calculated at a consistent hourly rate, and because Moon's paycheck receipts do not reflect the actual amount of overtime work that Moon performed, the Court finds that Moon's weekly salary did not incorporate any premium rate for overtime in excess of 40 hours per week.

4. Period Four — After June 1999

After seriously injuring himself in early 1999, Moon was transferred from his position as a maintenance worker into a less physically demanding position in housekeeping. The transfer is material to this case because the defendants maintain that housekeeping employees, unlike maintenance workers, were paid hourly wages rather than weekly salaries, and Moon only seeks damages arising from his employment as a maintenance worker. (Choi Decl. ¶¶ 10.)

While Moon offers conflicting testimony as to precisely when this transfer took place (Moon Aff. ¶¶ 12, 57; Tr. 48-49), the hotel's payroll records indicate that the weekly compensation for Joong Hyun Park, Moon's successor as the hotel's senior maintenance worker, increased during for the pay period ending June 26, 1999. (Pl. Ex. 11.) From those payroll records, the Court infers that Park assumed his new position as the senior maintenance worker during the week ending June 26, 1999, and also finds, accordingly, that Moon assumed his new position in housekeeping during that same week. Based on the defendants' own account of the hotel's payroll structure, Moon was no longer paid a weekly salary as of that pay period, but rather was paid wages based on a fixed hourly rate.

B. Meals and Lodging

In addition to making monetary payments each week, the hotel also compensated Moon by providing him with meals and lodging. It is undisputed that throughout the period of his employment, the hotel provided Moon and other employees with both lunch and dinner (or reimbursed them for the cost of those meals), and that it did so for their benefit rather than its own. (Moon Aff. ¶ 20; Kwon Decl. ¶ 19; Choi Decl. ¶ 15; Kim Decl. ¶ 5; Moon Dep. 204-05; Tr. 172-73.) The hotel did not maintain any records with respect to the fair value or reasonable cost of these meals, as required by both federal and state law. However, Moon's unrefuted testimony indicates that the defendants in fact reimbursed him $6 for lunch and between $6 and $12 for dinner if he obtained those meals on his own. (Moon Aff. ¶ 20.) Accordingly, the Court finds that the hotel provided Moon with lunch and dinner on each day that he worked, at an average cost of $6 for each lunch and $9 for each dinner.

As for lodging, Moon asserts that the hotel asked him to spend his nights at the hotel soon afer he began working for them, since at the time he needed to return from his apartment in Queens when paged to respond to emergencies. (Moon Aff. ¶ 24.) While Moon initially refused to do so, he asserts that he ultimately did move to the hotel in late 1991 or early 1992, when he was instructed to take over the job responsibilities of a departed coworker, Hyun Ku Lee, who had been responsible for covering all evening maintenance work. Moon asserts that the demands of this position routinely required Lee to work past midnight, and that as a result Lee essentially lived in the hotel, sleeping in various places throughout the building including a changing room in the basement next to the boiler, where he brought a bed; in room 202 of the hotel (which he shared with the coffee shop manager); or in recently vacated hotel rooms that had not yet been cleaned. (Moon Aff. ¶ 22; Tr. 25, 125.) While Moon concedes that no hotel employee specifically told him to sleep in the basement, he asserts that the hotel managers told him to work in the same manner that Lee had worked. For that reason, when the hotel instructed Moon to assume Lee's responsibilities, he too moved into the hotel, sleeping either in the basement, as Lee had done before him, or, if he received permission from the front desk, in a vacant room in the hotel, usually room 1009. (Moon Aff. ¶¶ 22-25; Tr. 24-25, 107-08; Moon Dep. 19, 21.) Tejada corroborates this account of the responsibilities undertaken by both Lee and Moon, testifying that when he came to work in the morning, he would frequently find that Moon had slept in the basement laundry room, or in the sub-basement boiler room, and was just getting up. (Tejada Aff. ¶¶ 5, 8.) Tejada also testified that at times, when room 1009 was not available because the hotel was full, he helped Moon move his belongings out of the room so that it could be rented to a guest. (Tejada Aff. ¶ 7; Tr. 85-86.) Moon, too, testified that while was able to stay in room 1009 quite frequently, there were a number of occasions when neither room 1009 nor any other room was available to him because the hotel was entirely full, for example, during the tourist season or when there were merchandise shows. (Tr. 103-04.) Nevertheless, Moon testified that regardless of where in the hotel he slept, he stayed in the hotel every night from the time he assumed Lee's employment duties in early 1991 or late 1992 until September 1994, when he moved to Seoul House. (Tr. 108-09, 124.)

The defendants, on the other hand, paint a rather different picture of how Moon came to be living in the hotel. Kwon testified that Moon practically begged him to provide a place to stay in the hotel as early as his initial interview. (Kwon Decl. ¶ 12.) Kwon claims to have felt sorry for Moon and to have directed the hotel to provide room 1009 to him at no cost. (Kwon Decl. ¶ 12.) According to the defendants, the hotel staff was aware that the room had been designated for Moon's exclusive use and that no guests were to be placed in that room — which made it unnecessary for Moon to sleep in the basement or anywhere else within the hotel. (Kwon Decl. ¶ 12; Choi Decl. ¶¶ 16, 19; T. Kwon Decl. ¶ 7; Kim Decl ¶ 7.)

Kwon's account that he provided Moon with regular, stable housing in room 1009 of the hotel simply is not credible, hinged as it is to his basic assertion that he hired Moon out of sympathy for his supposed status as a Korean War orphan. Moreover, the defendants failed to produce registration or other records, presumably readily available to the hotel, that would corroborate their account by showing that room 1009 was never rented to guests. In contrast, Tejada's testimony corroborates Moon's account that room 1009 was not permanently available to Moon. The Court credits Moon's general account that he moved into the hotel because he was instructed to assume Lee's duties, which required him to be available during the evening and night-time hours, and the Queens apartment where he lived at the time was simply too far away to perform those duties effectively and to the satisfaction of the hotel.

This does not, however, amount to a finding that the hotel required Moon to stay in the hotel overnight, whether in the basement or in a vacant guest room. Presumably, had Moon lived closer to the hotel, there would have been no need for him to live in the hotel, and he could have promptly come in to do overnight maintenance work whenever necessary. Moon himself admits that he was permitted to leave the hotel at night as long as he remained available and the hotel staff could page him when necessary for emergency calls. (Tr. 109-10.) Thus, the hours that Moon spent in sleep or recreation during the night were not hours in which he was "at work" on a standby basis, required to be on the premises — save for those hours when he actually was called upon to perform particular tasks. The fact that Moon received free lodging and slept at the hotel is thus relevant to the amount of his regular compensation, but does not necessarily bear upon the number of overtime hours he worked.

Thus, the Court finds that as of January 1992, the hotel effectively renegotiated and modified the terms of Moon's employment to provide him with some form of makeshift housing in the hotel, either in a hotel room when one was available or, otherwise, in the changing room in the basement — where, helpfully, Lee had already placed a bed. As with the meals, the hotel did not maintain any records with respect to the fair value or reasonable cost of the lodging provided to Moon. But given the itinerant nature of Moon's sleeping arrangements within the hotel, the fair value of this housing cannot be assessed, as counsel for Moon urges, simply with reference to hotel's regular room rates for its guests, which Moon does not know with certainty in any event. Instead, the Court finds that the fair value of the housing provided to Moon at the hotel — necessarily an estimate, since no records were maintained — is $200 per month, or $50 per week.

After Kwon purchased an interest in the nearby Seoul House apartment building in May 1994, Moon moved into apartment 4A of that building, where he lived from September 1994 until July 1998.*fn8 (Moon Aff. ¶¶ 26-27; Kwon Decl. ¶ 17.) None of the material facts concerning Moon's period of residence at Seoul House appear to be in dispute. According to Moon, he moved to Seoul House at the instruction of a manager at the hotel, Mr. Hwang; Kwon confirms that he arranged Moon's housing at Seoul House. (Moon Aff. ¶ 26; Kwon Decl. ¶ 17.) As with Moon's housing at the hotel, the Court finds that the parties effectively renegotiated the terms of Moon's employment in September 1994 to provide him with rent-free housing at Seoul House. Moon paid for-utilities at Seoul House, but did not pay any rent until Kwon sold his interest in the building in January 1998. Based on the defendants' records concerning the other apartments in the building, the Court finds the market rental value of the apartment at the time to have been $650 per month. (Def. Ex. E.)

After Kwon sold his interest in the building, Moon began to pay the new owner a reduced rent of $350 per month. (Moon Aff. ¶¶ 26-27; Tr. 110-11.) According to Kwon, the new owner agreed to let Moon pay this below-market rent in exchange for Moon's agreement to provide certain cleaning services at Seoul House. (Kwon Del. ¶ 18.)*fn9 In July 1998, Moon moved to the Bronx. (Moon Aff. ¶ 27.)

To summarize, the Court finds that the hotel provided Moon with meals on each day that he worked, at an average cost of $6 for each lunch and $9 for each dinner, and provided him with lodging at a fair value of $200 per month, or $50 per week, from January 1992 through August 1994 and at a value of $650 per month, or $162.60 per week, from September 1994 through January 1998. There is no evidence in the record indicating that the parties intended these meal and lodging benefits as being particularly tied to overtime hours, and certainly not as any kind of premium pay, to compensate Moon for overtime work — indeed, the hotel did not even maintain any records concerning the value of the meals and lodging provided to Moon. Rather, they were simply part of his regular weekly compensation.

III. Moon's Responsibilities

A. The Hotel

During his employment, Moon was one of two, and at times three, maintenance workers at the hotel. (Kwon Decl. ¶ 16.) He testified that his responsibilities at the hotel encompassed a wide variety of maintenance and repair tasks, including:

Checking each floor of the hotel twice each day for various problems, such as light fixtures in need of new bulbs, exhaust fans that needed to be turned on or off, windows that were open or unlocked, and fire safety searchlights in need of new bulbs or batteries.
Work involving the hotel's plumbing and electrical systems, including frequent unclogging of the basement drainpipe.
Maintenance and repair of the hotel's elevator and its boiler, which provided hot water and heat for the building and which presented frequent maintenance problems while Moon was employed at the hotel.
Responding to complaints by hotel guests — for example, adjusting the temperature of individual guest rooms that were too hot or too cold and releasing air from individual guest room radiators when they were making too much noise.
Maintenance and repair of appliances such as refrigerators and air conditioners.
Ongoing maintenance and repair of the bathrooms, including tile work and unclogging of drains.

Painting the hotel's walls.

During the winters, shoveling snow and sprinkling salt on the sidewalk early in the morning.

(Moon Aff. ¶¶ 33-35, 37, 125-28, 144-45, 156-59.) According to Moon, the boiler required a disproportionate amount of time, especially during the winters, because it was old and frequently broke down, depriving the building of heat and hot water. (Moon Aff. ¶ 35; Tr. 26, 35, 125-28, 134-35.) Moon testified that his work on the boiler would require considerable follow-up. When he repaired the boiler in the evening, he would get up in the middle of the night to make sure it was still working, often sleeping in the boiler room for that very purpose; he also testified that the front desk staff would instruct him, in the days following a breakdown, to make sure that the boiler was still operating properly. (Moon Aff. ¶ 35; Tr. 124-25, 130.)

The defendants maintain that Moon was not expected to perform substantial maintenance on the boiler or elevator, since the hotel had 24-hour service contracts for its boiler and elevator and the front desk staff was instructed to contact the boiler company whenever necessary. (Choi Decl. ¶ 18; Lee Decl. ¶ 3; Tr. 301.) But the Court credits Moon's general testimony that the boiler had serious problems while he worked at the hotel and that, as a result, he spent a considerable amount of time performing maintenance and repair work on the boiler. Sanchez credibly corroborated Moon's account, testifying that the "first step" when there were problems with the boiler was to call Moon, and that only if the problem was very serious would the boiler company be called. (Tr. 74.) A defense witness, Thomas Kwon, confirmed that, notwithstanding any maintenance contracts the hotel might have had with outside contractors, Moon was called upon to fix certain problems with the elevator. (Tr. 280.)

Nor is Moon's credibility concerning his work responsibilities undermined by the defendants' assertion that guest complaints frequently would be resolved by the bellmen themselves or by switching the guests to different rooms, and that when paged, Moon often would simply instruct the front desk staff over the phone on how to resolve a given problem, rather than coming in to resolve the problem himself. Moon testified that he sometimes instructed the bellmen on how to resolve simple problems because he was so short of time, and both Sanchez and Thomas Kwon confirm this account. (Sanchez Aff. ¶¶ 6-7; Tr. 274-75.) Certainly, during the years that Moon lived at the hotel and at Seoul House, it is not plausible that he would have routinely responded to emergency calls by phoning instructions in from the basement or down the block; Moon testified that beginning only in 1998 or 1999 — after he had already moved out of Seoul House and into the Bronx — would he respond to a page by giving instructions to the hotel staff over the phone, rather than coming in to the hotel. (Tr. 159-60.)

B. Seoul House, the 41st Street Building, Han Ah Reum, and Kwon's Residence

Moon testified that on many occasions, he was instructed to perform work for the defendants at several locations outside the hotel — Seoul House, the Han Ah Reum grocery store, the 41st Street Building, and Kwon's personal residence. Moon's testimony is corroborated by his handwritten notes. (Moon Decl. ¶ 59; Pl. Exs. 2, 18; Tr. 16-22, 135-38; Moon Dep. 227-68.) The work at each of these locations was performed at the direction of hotel supervisors, including Kwon himself, as well as supervisors at those particular locations. (Moon Aff. ¶¶ 26, 28-29; Tr. 27-29, 219, 250; Moon Dep. 159-70, 259-60; Tr. 111-12, 242-43, 250; Pl. Ex. 2.)

Upon Kwon's acquisition of Seoul House in May 1994, Moon was instructed by the management of the hotel to provide maintenance work for that building. Moon was first taken to Seoul House by Kwon and Choi, who instructed him to clean the floor and the roof when they went to inspect the building shortly after Kwon acquired it. (Moon Aff. ¶ 26; Tr. 27-28.) Before long, Moon was shouldering the responsibility for all of the maintenance work at the apartment building. Even though he continued to be responsible for his existing maintenance duties at the hotel, Moon was the only maintenance worker or superintendent at Seoul House, which consisted of 12 commercial and residential units on five floors. (Moon Aff. ¶ 26; Tr. 28-29, 221.) Moon's responsibilities at Seoul House, which included general repair work for building tenants, regular janitorial services, plumbing and tile work in the bathrooms, and collection of the garbage from the apartment building and delivery to the hotel for pickup, were assigned by Kwon and other managers at the hotel as well as a real estate agent for Seoul House. (Moon Aff. ¶ 26; Moon Dep. 159-63; Tr. 28-29.) Moon's testimony is corroborated by entries in his handwritten notes, which record well over 150 days between June 1994 and January 1998 on which he performed maintenance, repair, and janitorial tasks at Seoul House. (Pl. Exs. 2, 18.)

Kwon flatly denies that Moon ever performed any maintenance or cleaning services at Seoul House at all during his ownership of the building, going so far as to say that since the apartment building consisted of only a small number of low-rent studio apartments, the tenants handled their own maintenance — including cleaning of the public hallways. (Kwon Decl. ¶ 18; Tr. 220-21.) Kwon's account lacks credibility. His testimony is refuted not only by Moon's more credible testimony that Kwon himself personally instructed Moon to perform work at Seoul House, but also by Moon's recorded notes, which clearly indicate that he performed a great deal of work at the apartment building during the period in question. Moreover, it is far from clear why Seoul House — which, according to Moon, had no garbage service (Tr. 29) — would not have needed a maintenance worker during Kwon's ownership of the building, but then suddenly did require the maintenance and janitorial services of Moon himself upon Kwon's sale of the building to his friend in 1998, as Kwon himself acknowledges without explanation. (Kwon Decl. ¶ 18.) Finally, the claim that the tenants maintained not only the their own apartments but also the common areas and services of the building is implausible on its face. The Court thus finds that Moon regularly performed the work he claims to have performed at Seoul House during Kwon's ownership of the building.

Moon testified that on several occasions, he also was instructed to perform various duties at Kwon's Manhattan apartment. (Moon Aff. ¶ 28; Moon Dep. 167-70; Tr. 121.) Kwon confirms Moon's testimony, but indicates that Moon performed these tasks "on rare occasions" and during his regular work hours as an employee of the hotel. (Kwon Decl. ¶ 9.) Kwon characterizes these duties as comprising relatively minor tasks such as hanging pictures on the wall. (Tr. 219.) Moon's contemporaneous notes, however, cast serious doubt upon the credibility of Kwon's testimony. It is clear from those notes that these instances were more significant and time-consuming than Kwon would have the Court believe, including several days spent painting the apartment into the early evening and one occasion in which Moon assembled and straightened Kwon's furniture. (Pl. Exs. 2, 18.) Aside from tips from Kwon's wife, Moon was not compensated for this work. (Moon Aff. ¶ 30.) The Court credits Moon's testimony and finds that he performed this work at Kwon's residence.

Finally, Moon testified that he performed repair work on many occasions at the 41st Street Building and at Han Ah Reum at the direction of hotel personnel, including work in the early mornings before his work day the hotel began and in the evenings. (Moon Aff. ¶ 29; Tr. 250-51; Pl. Exs. 2, 18.) Moon first was brought to the 41st Street Building by Kwon and Choi, and he subsequently went to that site very often — indeed, he testified that he ultimately purchased three bicycles (the first two having been stolen) for the specific purpose of traveling to the 41st Street Building to do work before starting his regular workday at the hotel. (Moon Aff. ¶ 28; Tr. 118-120.) The bulk of this work entailed routine checks of the locks and security at the building, which Moon did not record in his daily notes. ...


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