Defendants Carlos and Christina Aguinaga, who employed plaintiff Elza Almeida as a live-in domestic service employee from 1990 to December 2005, move for partial summary judgment dismissing her claims for overtime and "spread-of-hours" pay under the New York Labor Law § 650 et seq., and its implementing Minimum Wage Order for Miscellaneous Industries and Occupations, N.Y. Comp. Codes R. & Regs. tit. 12, §§ 142-1.1 to 142-2.25 (the "New York regulations"). In so doing, they do not attack Almeida's contract or fiduciary duty claims, and they concede that there are fact issues with respect to her pay during 2005.*fn1
For purposes of this motion, the Aguinagas concede that Almeida worked for them an average of 16.5 hours per day at all times open under the six year statute of limitations, N.Y. Lab. Law § 663(3). According to Almeida's present statement of her claimed hours and wages,*fn2 from May 24, 2000 to June 2001 she worked six days, or 99 hours a week. Although her chart shows that she was paid only $500 per week, she is bound by her deposition testimony that she began earning $100 a day in 1998 (Almeida Dec. 12, 2006 Dep. Tr. 138:15-23) and that when she worked six days a week she was paid for six days (id. at 133:23-134:6) ("Q: So am I correct, if you worked five days, you were paid for five days, is that right? A: Yes. Q: If you worked six days --- A: If I worked six, I would get paid for six. If I worked seven, I would get paid for seven."). See Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) ("The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony.").
Almeida did not work for the Aguinagas from June to November 2001. She claims that in November and December 2001 she worked three days, or 49.5 hours a week, and was accordingly paid $300 per week.
Almeida claims that from January 2002 through December 2004 she worked five days, or 82.5 hours a week, and was paid $500 per week.
It is undisputed that Almeida was given $1,000 a year, or $19.23 per week, which the Aguinagas refer to as vacation pay. The Aguinagas assert, and she denies, that she was given double her daily wage when she worked on Christmas or New Years Day. Because of that factual issue, those claimed double-daily payments are disregarded on this motion, as is the vacation pay for November and December 2001 since the Aguinagas do not include it for that time period in their overtime calculation.
The above figures, together with other information (discussed below) are presented in tabular form in the attached Appendix.
1. Meal and Lodging Allowances
Under the New York regulations, the Aguinagas are entitled to credits of $1.75 for each of Almeida's three meals per day, and $2.20 for each day of lodging they provided to her, as payments toward her minimum wage. 12 N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.5(a)(1).
Almeida's argument that the meals and lodging were provided primarily for the Aguinagas' benefit (so that she could work longer hours) finds no support in the New York Labor Law or the New York regulations, which do not condition the meal and lodging allowance on the outcome of arguments about which party had the greater benefit from those accommodations. The cases Almeida cites involve regulations under the federal FLSA, not New York law, and are therefore inapposite.
Nor does Almeida's assertion that her shared living quarters at the Aguinagas' home were "substandard" create an issue of fact. With respect to the relevant time period, she states only that:
From 1998, until my employment ended on or about December 6, 2005, I was forced to share a room with another domestic employee, and then ultimately had no choice but to sleep in the laundry area of the household, because of the substandard conditions of the shared room. Indeed, Mrs. Aguinaga was aware that I dragged my mattress to the laundry area and slept there.
(Almeida May 16, 2007 Aff. ¶ 26.) The New York regulations provide that "Lodging includes room, house or apartment, and means living accommodations which meet generally accepted standards for protection against fire, and all structural, sanitation and similar standards in State and local laws, codes, regulations and ordinances applicable to the premises." N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.20. Almeida has not claimed that the room the Aguinagas provided her violated any of those provisions.
In sum, as set out in the Appendix, from May 24, 2000 to June 2001, when Almeida worked six days a week, $31.50 per week for meals and $13.20 per week for lodging are counted towards her minimum wage; during November and December 2001, when she worked three days a week, $15.75 per week for meals and $6.60 per week for lodging are counted towards her minimum wage; and from January 2002 through December 2004, when she worked ...