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Said v. SBS Electronics

April 1, 2010

ASHRAF SAID, PLAINTIFF,
v.
SBS ELECTRONICS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Orenstein U.S. Magistrate Judge

JAMES ORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

On February 24, 2010, I issued a Report and Recommendation in which I recommended that the court enter judgment against defendants SBS Electronics, Inc. ("SBS") and Seth Siegel ("Siegel") in the total amount of $203,643.57. Docket Entry ("DE") 38 ("R&R"). On March 31, 2010, the court adopted some of my recommendations but rejected my conclusion that SBS and Siegel should be held liable for violations of the rights of plaintiff Ashraf Said ("Said") under applicable wage laws to the extent those violations occurred before October 1, 2007. DE 43 (Memorandum and Order ("M&O")). The court referred the matter back to me to recalculate the award that should be entered against SBS pursuant to the M&O. I now make my report and, for the reasons set forth below, respectfully recommend that the court enter judgment against SBS in the total amount of $72,184.79 (consisting of $4,500.00 in unpaid wages; $26,527.50 in unpaid overtime; $26,527.50 in liquidated damages; $1,658.80 in "spread of hours" wages; $6,282.11 in prejudgment interest; $6,338.88 in attorneys' fees; and $350.00 in costs).

I. Background

I assume the reader's familiarity with all prior filings in this case. In my original report, I concluded that SBS and Siegel bore successor liability for DTV's wage law violations, including those prior to October 1, 2007, when SBS took over DTV's operations. R&R at 11. The court disagreed and found that Said failed to establish successor liability and that Siegel is not personally liable for SBS's violations. M&O at 6-7. I therefore recalculate each component of the award that should be entered on the basis of the defendants' default.

II. Damages

A. Regular Wages

In his fourth cause of action, Said seeks payment for the full amount of his unpaid wages under New York Labor Law § 191. Said asserts that SBS failed to compensate him for his last ten weeks of employment, for which Said should have been paid $450.00 per week, or $4,500.00. DE 31-2 (Said Declaration ("Said Dec.")) ¶¶ 7, 9. Said remains entitled to $4,500.00 in unpaid regular wages.

B. Overtime Wages

Both the state and federal statutes require SBS to pay Said a 50 percent premium for his overtime hours -- that is, the hours in excess of 40 that he worked in each "work week." 29 C.F.R. § 778.105; N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.2. Said asserts that he has worked 13 or 14 hours each day and five or six days each week. Said Dec. ¶ 6. For each week Said worked more than 40 hours after October 1, 2007, he is entitled to overtime wages from SBS.

I previously recommended that the court find that Said's hourly wage was $11.25, and that he was therefore entitled to premium overtime wages at an hourly rate of $16.875 for each hour he worked after the first 40 hours of work each week in the covered time period. For those weeks in which Said worked five days, for an average of 13.5 hours per day, he accrued a total of 27.5 overtime hours per week, and for those weeks in which he worked six days, for an average of 13.5 hours per day, he accrued a total of 41 overtime hours per week.

Said asserts that he worked 7 five-day weeks and 41 six-day weeks in 2007. Said has not provided the court with information regarding when those weeks occurred. I therefore extrapolate from the information provided that 11 of the 13 weeks worked during the covered time period, from October 1, 2007 until the end of the year, were six-day weeks and the remaining 2 weeks were five-day weeks. This estimate represents the application of roughly the same proportion of six-day weeks to five-day weeks for the entire year (41 of 48) to the covered time period (11 of 13). The calculation results in 506 overtime hours for 2007. Adding that to the 1,066 overtime hours for 2008 results in a total of 1,572 overtime hours during the covered time period. Multiplying that amount by the hourly rate of $16.875 produces a total amount of $26,527.50. I respectfully recommend awarding Said that amount in unpaid overtime damages on his first two causes of action.

C. "Spread of Hours" Damages

The "spread of hours" provision of New York law entitles Said to one additional hour of pay at the minimum hourly wage for each day he worked over ten hours. N.Y. Lab. Law § 650 et seq.; N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4. Said attests to working more than ten hours every day he worked for SBS. For the 13 weeks in 2007, I estimate that Said worked 76 days (11 six-day weeks and 2 five-day weeks), for which SBS owes Said $7.15 per day (equal to the minimum wage for one hour of work in New York in 2007), for a total of $543.40. For the 156 days worked in 2008, SBS owes Said $7.15 per day (equal to the minimum wage for one hour of work in New York in 2008), for a ...


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