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Eva Pineda-Herrera, et al v. Da-Ar-Da

May 26, 2011


The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge


Plaintiffs Eva Pineda-Herrera and Sandra Martinez ("plaintiffs") brought this suit for minimum wage, overtime and "spread-of-hours" payments owing pursuant to the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law. On March 2, 2011, following a two-day trial, the jury returned a verdict in plaintiffs' favor. See Verdict Sheet (Mar. 2, 2011) ("Verdict Sheet"), Electronic Case Filing ("ECF") Docket Entry ("D.E.") #33. In accordance with special interrogatories included on the verdict sheet, the jury made findings as to each plaintiff's length of employment, hours, and wages; the jury also found that defendants Da-Ar-Da, Inc. ("Da-Ar-Da") and Romelia Benitez ("Benitez") (collectively, "defendants") willfully violated federal and state labor laws in their dealings with plaintiffs.*fn1 Id.

The Court thereupon directed the parties to submit post-trial letter-briefs calculating the damages due pursuant to the jury's verdict. See Order (Mar. 14, 2011). Plaintiffs did so, and moved for an award of attorney's fees pursuant to the fee-shifting provisions of the FLSA and the New York Labor Law. See Letter from Plaintiffs (Mar. 15, 2011) ("3/15/11 Pl. Letter") at 4, D.E. #37; 29 U.S.C. § 216(b); N.Y. Labor L. § 198. At the Court's direction, plaintiffs' counsel submitted a letter touching upon his qualifications and experience, as well as copies of each plaintiff's retainer agreement, see Order (Mar. 17, 2011), D.E. #38; Letter from Plaintiffs (Mar. 21, 2011) ("3/21/11 Pl. Letter"), D.E. #39; however, he failed to produce contemporaneous time records, as he had not maintained any. See Letter from Plaintiffs (Apr. 11, 2011) ("4/11/11 Pl. Letter") at 1, D.E. #49; see also Order (Apr. 6, 2011), D.E. #47. Defendants (who were then represented by counsel*fn2 submitted a letter "find[ing] no fault" with plaintiffs' calculation of the damages and "defer[ring] to the Court's discretion" on the question of fees. Letter from Defendants (Mar. 24, 2011) ("3/24/11 Def. Letter") at 1, D.E. #41.

For the reasons discussed below, and in accordance with the jury's verdict, the Court finds defendants jointly and severally liable as follows: to plaintiff Pineda-Herrera, for $59,856.81 in damages; to plaintiff Martinez, for $46,333.75 in damages; and to plaintiffs jointly, for a single award of $13,125.00 in attorney's fees. The Court directs the Clerk to enter judgment accordingly.


Plaintiffs worked as waitresses at La Riqueza, a restaurant owned by defendants. Joint Pretrial Order (Nov. 23, 2010) at 1, D.E. #10. Plaintiff Pineda-Herrera worked from March 27, 2007 through February 15, 2009; plaintiff Martinez worked from January 5, 2008 to February 19, 2009. Verdict Sheet at 1-2. Defendants failed to produce any records of plaintiffs' wages and hours; accordingly, plaintiffs sought to establish their wages and hours through general testimony,*fn3 and defendants sought to rebut plaintiffs' claims through the testimony of defendant Benitez and current employees of the restaurant. It was undisputed that defendants paid each plaintiff $35.00 per day in wages, regardless of the number of hours worked; each plaintiff was also paid a $3.00 commission on some drink purchases made by patrons of the establishment.*fn4 Joint Pretrial Order at 1. Plaintiffs testified that they routinely worked long hours and received commission payments inadequate to make up for their low daily pay. The jury found that on average, plaintiff Pineda-Herrera worked 65 hours over the course of a 5-day workweek and was paid $250 weekly in salary and commissions, and that on average, plaintiff Martinez worked 75 hours over the course of a 6-day workweek and was paid $270 in salary and commissions. Verdict Sheet at 1-2.


After discussing the applicable statutes of limitations and other preconditions to liability, the Court, using the jury's findings, details its calculations as to the award due to each plaintiff pursuant to the jury's verdict.


The FLSA provides for a two-year statute of limitations, extended to three years for "willful" violations. 29 U.S.C. § 255(a). This action was commenced on November 23, 2009. Plaintiff Martinez began working for defendants on January 5, 2008. See Verdict Sheet at 2. Accordingly, all aspects of her claims are timely under the shorter statute of limitations. Plaintiff Pineda-Herrera began working for defendants on March 27, 2007; the jury found that defendants willfully violated the FLSA in connection with their compensation of plaintiff Pineda-Herrera. Id. Accordingly, all aspects of her claims are timely under the three-year statute of limitations for willful violations. New York Labor Law sets forth a six-year statute of limitations for violations thereof. See New York Labor L. § 663(3). Both plaintiffs' claims are fully timely under state law.


To be held liable under the FLSA, a defendant must be an "employer," which the statute broadly defines to include individuals "acting directly or indirectly in the interest of an employer." 29 U.S.C. § 203(d); see also id. § 203(g) (defining "employ" to include "suffer or permit to work"). Similarly, the New York Labor Law's minimum wage provisions apply to "employers," including in that term an "owner" or "proprietor." N.Y. Labor L. §§ 2, 652(1). Defendants Benitez and Da-Ar-Da each concede that they employed both plaintiffs. See Complaint ¶¶ 2, 20, 27, 63, 64, 71, D.E. #1; Answer (Jan. 19, 2010) ¶ 1, D.E. #2; Joint Pretrial Order at 1.

The FLSA, unlike the New York Labor Law, applies only where the employee or the employer was "engaged in commerce or in the production of goods for commerce." 29 U.S.C. §§ 206(a), 207(a). Defendants conceded in their Answer that they were employers engaged in commerce within the meaning of the FLSA. Complaint ¶ 71; Answer ¶ 1. The Court denied defendants' belated request for leave to amend the Answer to deny the allegation that defendants were covered by the FLSA. Memorandum and Order (Feb. 22, 2011) at 1-2, D.E. #30.

Because defendants conceded that they employed plaintiffs and that they were employers engaged in commerce and thus covered under the FLSA, the only remaining question as to liability under the FLSA and the New York Labor Law is the sufficiency of each plaintiff's wages in light of the number of hours worked. Accordingly, the Court will calculate the amount of wages due, if any, before addressing the availability of liquidated damages, attorney's fees and costs.*fn5


The jury found that plaintiffs Pineda-Herrera and Martinez were paid, in wages and commissions, $250.00 and $270.00 per week, respectively. Verdict Sheet at 1-2. Because overtime obligations are calculated on a weekly basis, see 29 U.S.C. § 207(a)(1), the Court will determine the minimum compensation each plaintiff should have received on a weekly basis, under the applicable overtime, minimum wage and spread-of-hours provisions, and will determine the weekly shortfall by subtracting each plaintiff's actual pay from the weekly pay required by state and federal law.

A. Overtime

The jury found that plaintiffs Pineda-Herrera and Martinez worked 65 and 75 hours per week, respectively. The FLSA requires, for each hour worked in excess of 40 per week, compensation "at a rate not less than one and one-half times the regular rate at which [she was] employed." 29 U.S.C. ยง 207(a)(1). Of course, both plaintiffs worked at "regular rates" well below the minimum wages allowed under both federal and state law. Federal regulations (overlooked by plaintiffs) clarify that "the words 'regular rate at which he is employed' as used in ...

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