Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Rocha v. Bakhter Afghan Halal Kababs, Inc.

United States District Court, E.D. New York

September 15, 2014

MAGDALENO ROCHA, individually and on behalf of others similarly situated, Plaintiff,
v.
BAKHTER AFGHAN HALAL KABABS, INC., d/b/a BAKHTER AFGAN HALAL KABABS, WAZIR KHITAB, ABASEEN FOOD CORP., d/b/a BAKHTER AFGHAN HALAL KABABS, INC., NAWAZ KHAN-NABI and HABIB KHAN, Defendants

Page 338

For Magdaleno Rocha, individually and on behalf of others similarly situated, Plaintiff: Michael A. Faillace, LEAD ATTORNEY, Joshua S. Androphy, Michael Faillace & Associates, P.C., New York, NY; Lina Marcela Franco, Michael Faillace & Associates, New York, NY.

For Mateo Calel, Plaintiff: Lina Marcela Franco, Michael Faillace & Associates, New York, NY; Michael A. Faillace, Michael Faillace & Associates, P.C., New York, NY.

For MIGUEL PORTILLO, Plaintiff: Michael A. Faillace, Michael Faillace & Associates, P.C., New York, NY; Peter Hans Cooper, Cilenti & Cooper, PLLC, New York, NY.

For Bakhter Afghan Halal Kababs, Inc., doing business as Bakhter Afgan Halal Kababs, Defendant: Michael A. Faillace, Michael Faillace & Associates, P.C., New York, NY; Robert Aronov, Robert Aronov & Associates, P.C., Richmond Hill, NY.

For Wazir Khitab, Abaseen Food Corp, doing business as Bakhter Afghan Halal Kababs, Inc., Nawaz Khan-Nabi, Habib Khan, Defendants: Robert Aronov, Robert Aronov & Associates, P.C., Richmond Hill, NY.

Page 339

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge.

Plaintiff Magdaleno Rocha commenced this action individually and on behalf of others similarly situated on January 11, 2013, against Defendants Bakhter Afghan Halal Kababs, Inc., doing business as Bakhter Afghan Halal Kababs, and Wazir Khitab, alleging minimum wage and overtime violations of the Fair Labor Standards Act, 29 U.S.C. § § 201 et seq., and minimum wage, overtime and spread-of-hours violations of New York Labor Law § 652 and regulations, 12 N.Y. Comp. Codes R. & Regs. § 142-2.2, and seeking certification of the action as a collective action pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b). On July 11, 2013, and September 17, 2013, Mateo Calel and Miguel Portillo consented to join this action, respectively, as opt-in plaintiffs pursuant to 29 U.S.C. § 216(b). (Docket Entry Nos. 12, 15.) Plaintiffs filed an Amended Complaint on February 4, 2013, (Docket Entry No. 4), adding Defendants Abaseen Food Corp., doing business as Bakhter Afghan Halal Kababs, Nawaz Khan-Nabi and Habib Khan. (Docket Entry No. 4.) Plaintiffs filed a Second Amended Complaint on April 17, 2014, (Docket Entry No. 10), adding an allegation of retaliatory termination against Defendant Khan. The Court allowed limited discovery. Defendants now move to dismiss

Page 340

the Amended Complaint[1] for lack of subject matter jurisdiction and for failure to state a claim, and, in the alternative, for summary judgment. For the reasons set forth below, the Court denies Defendants' motions.

I. Background

Defendants are owners and operators of the Bakhter Afghan Halal Kababs Restaurant (the " Restaurant" ), located in Flushing, Queens.[2] (Am. Compl. ¶ 21.)[3] Rocha began working for Defendants at the Restaurant in June 2006, working on the grill and preparing plates with cooked food to serve Restaurant customers. ( Id. at 9 ¶ ¶ 36-37.) Rocha typically worked 66 hours each week. ( Id. at 9-10 ¶ ¶ 42-45.) He was paid his wages in cash, and was initially paid $400 each week. This amount increased every 6 to 18 months, and beginning in September 2011, Rocha was paid $650 each week. ( Id. ¶ ¶ 48-54.) Rocha's weekly pay did not vary even when Rocha worked longer than his typical hours. ( Id. ¶ 56.) Rocha was not provided with any break periods, and was never required to keep track of his time. ( Id. ¶ 57.) Defendants did not utilize any devices to keep track of the hours worked by employees, did not provide Rocha with any documentation of his hours worked, and did not post any notices or provide any other notification of statutory overtime and wage requirements. ( Id. ¶ ¶ 57-59.) Rocha seeks to represent a class of similarly situated individuals, who were also subject to the requirements to work in excess of 40 hours each week without being paid minimum wages, overtime compensation or spread-of-hours pay.[4] ( Id. at 9 ¶ 44, ¶ ¶ 60-68.)

Calel worked for Defendants from July 2011 until August 2013 as a general helper and kitchen preparation worker. (Declaration of Mateo Calel in Opposition to Defendants' Motion for Summary Judgment (" Calel Decl." ) ¶ 3.) Calel worked 6 days each week, generally 11 1/2 hours on weekdays, and 12 hours on Fridays and Saturdays, for a total of approximately 70 hours each week. ( Id. ¶ 4.) Calel was paid a cash salary that began at $400 each week at the beginning of his employment, and increased to $575 each week. ( Id. ¶ ¶ 5, 14.) Calel did not receive a statement of hours worked or wages paid, and he was not paid overtime for any work. ( Id. ¶ ¶ 6-7.)

Portillo worked for Defendants from April 2011 until June 23, 2013, as a dishwasher, general helper and kitchen preparation worker. (Affidavit of Miguel Portillo in Opposition to Defendants' Motion for Summary Judgment (" Portillo Aff." ) ¶ 3.) Portillo worked 6 days each week, generally

Page 341

11 1/2 hours on the weekdays and 12 hours on Fridays and Saturdays, for a total of approximately 70 hours each week. ( Id. ¶ 4.) Portillo was paid a weekly salary in cash, which began at $400 each week and increased to $600 each week. ( Id. ¶ 5.) Portillo did not receive a statement of hours worked or wages paid, and he was not paid overtime for any work. ( Id. ¶ ¶ 6-7.)

II. Discussion

a. Standards of Review

i. Rule 12(b)(1)

" [A] district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it." Shabaj v. Holder, 704 F.3d 234, 237 (2d Cir. 2013) (alteration in original) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)). " '[T]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,' but 'jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (alteration in original) (citations omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). A court may consider matters outside of the pleadings when determining whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013); Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010); Morrison, 547 F.3d at 170.

ii. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court " must take all of the factual allegations in the complaint as true." Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)); see also Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013) (quoting Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009)); Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir. 2009)). A complaint must plead " enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson, 631 F.3d at 63 (quoting Iqbal, 556 U.S. at 678); see also Pension Ben. Guar. Corp., 712 F.3d at 717-18. " [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' -- 'that the pleader is entitled to relief.'" Pension Ben. Guar. Corp., 712 F.3d at 718 (alteration in original) (quoting Iqbal, 556 U.S. at 679). Although all allegations contained in the complaint are assumed true, this principle is " inapplicable to legal conclusions." Iqbal, 556 U.S. at 678.

iii. Rule 56(b)

Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Bronzini v. Classic Sec., L.L.C., 558 F.App'x 89, 89 (2d Cir. 2014); Kwan v.

Page 342

Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013); Kwong v. Bloomberg, 723 F.3d 160, 164-65 (2d Cir. 2013); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012). The role of the court is not " to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of fact exists when there is sufficient " evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The " mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment; " there must be evidence on which the jury could reasonably find for the plaintiff." Id. The court's function is to decide " whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

b. Defendants' motion to dismiss the FLSA claims

The Fair Labor Standards Act (FLSA) provides federal minimum wage and overtime protections for employees that fall within its scope. See 29 U.S.C. § 206 (minimum wage) and § 207 (overtime). The FLSA was enacted to " correct and . . . eliminate" " conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202(a)-(b); Jacobs v. New York Foundling Hosp., 577 F.3d 93, 97 (2d Cir. 2009). " In turn, courts construe the FLSA 'liberally to apply to the furthest reaches consistent with congressional direction.'" Jacobs, 577 F.3d at 97 (quoting Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 296, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985)).

The minimum wage and overtime provisions of the FLSA apply to employees who are either (1) " engaged in commerce or in the production of goods for commerce," (individual coverage) or (2) " employed in an enterprise engaged in commerce or in the production of goods for commerce" (enterprise coverage). 29 U.S.C. § 206(a) and § 207(a)(1); Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 86 (2d Cir. 2013) cert. denied, 572 U.S. ___, 134 S.Ct. 918, 187 L.Ed.2d 781 (2014); Jacobs, 577 F.3d at 96 (" The FLSA requires that employers pay a premium or overtime wage . . . if an employee either: 1) 'is engaged in commerce or in the production of goods for commerce,' or 2) 'is employed in an enterprise engaged in commerce or in the production of goods for commerce.' The two categories are commonly referred to as 'individual' and 'enterprise' coverage." (quoting 29 U.S.C. § 207 (a)(1))).

Defendants argue that if Plaintiffs cannot show that they fall within the ambit of the FLSA under the enterprise coverage theory -- by showing that the Restaurant is an " enterprise engaged in commerce" -- the case should be dismissed for lack of subject matter jurisdiction.[5] (Def. Mem. 4;

Page 343

Def. Reply 1-2.) Plaintiffs argue that whether the Restaurant is an enterprise engaged in commerce is not a jurisdictional issue, but rather is an element of Plaintiffs' claim that must be decided on the merits and not on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.[6] (Portillo Opp'n Mem. 2-3; Rocha Opp'n Mem. 6-7.)

The Second Circuit has held that " [f]or the purpose of determining whether a district court has federal question jurisdiction pursuant to Article III and 28 U.S.C. § 1331 [federal question jurisdiction], the jurisdictional inquiry 'depends entirely upon the allegations in the complaint' and asks whether the claim as stated in the complaint 'arises under the Constitution or laws of the United States.'" Burke v. Lash Work Environments, Inc., 408 F.App'x 438, 440 (2d Cir. 2011) (quoting S. New Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 132 (2d Cir. 2010)); see also Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734 (2d Cir. 2007) (" A case arises under federal law within the meaning of § 1331 . . . if a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006))). Once this is established, the federal court has jurisdiction " unless the purported federal claim is clearly 'immaterial and made solely for the purpose of obtaining jurisdiction' or is 'wholly insubstantial and frivolous.'" S. New. Engl. Tel. Co., 624 F.3d at 132 (quoting Carlson v. Principal Fin. Grp., 320 F.3d 301, 306 (2d Cir. 2003)).

Defendants argue that the Court lacks subject matter jurisdiction because Plaintiffs have failed to establish that they are entitled to FLSA coverage under the enterprise theory. However, whether Plaintiffs can establish coverage is an element of Plaintiffs' claim and is not determinative of the Court's jurisdiction. The Second Circuit recognizes that:

[W]hether a plaintiff has pled a jurisdiction-conferring claim is a wholly separate issue from whether the complaint adequately states a legally cognizable claim for relief on the merits. . . . Thus a defense, however valid, does not oust the district court of subject matter jurisdiction. This is because once the court's jurisdiction has been properly invoked in the plaintiff's complaint, the assertion of such a defense is relevant only to whether the plaintiff can make out a successful

Page 344

claim for relief, and not to whether the court has original jurisdiction over the claim itself.

S. New Engl. Tel. Co., 624 F.3d at 132; see also Arbaugh v. Y& H Corp., 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (" [W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." ).

Several courts in this Circuit have found that the question of whether defendants in a FLSA action meet the statutory definition of " enterprise engaged in commerce" is not a jurisdictional question, but rather goes to the merits of the claim. See Jia Hu Qian v. Siew Foong Hui, No. 11-CV-5584, 2012 WL 1948820, at *2 (S.D.N.Y. May 30, 2012) (" The question of whether or not Defendants actually are an 'enterprise engaged in commerce' within the meaning of 29 U.S.C. § 203(s)(1) is an issue that goes to the merits of Plaintiff['s] claims rather than the Court's subject matter jurisdiction." (quoting Velez v. Vassallo, 203 F.Supp.2d 312, 332 (S.D.N.Y. 2002))); Monterossa v. Martinez Rest. Corp., No. 11-CV-3689, 2012 WL 3890212, at *3 (S.D.N.Y. Sept. 7, 2012) (" The question of whether or not Defendants actually are 'an enterprise engaged in commerce' within the meaning of 29 U.S.C. § 203(s)(1) is an issue that goes to the merits of Plaintiffs' claims rather than [to] the Court's subject matter jurisdiction." (alteration omitted) (quoting Velez, 203 F.Supp.2d at 332)); Benitez v. F & V Car Wash, Inc., No. 11-CV-01857, 2012 WL 1414879, at *1 (E.D.N.Y. Apr. 24, 2012) (" [T]he question of whether a defendant qualifies as an enterprise under the FLSA is not a jurisdictional issue, but an element that a plaintiff must establish in order to prove liability." (collecting cases)); Romero v. Jocorena Bakery, Inc., No. 09-CV-5402, 2010 WL 4781110, at *3 (E.D.N.Y. Nov. 23, 2010) (" While plaintiffs will have to ultimately prove that defendants grossed more than $500,000 in annual sales in order to be successful on their FLSA claims, the Court 'has jurisdiction over plaintiffs' FLSA claims irrespective of whether plaintiffs can ultimately prevail on the merits.'" (quoting Padilla v. Manlapaz, 643 F.Supp.2d 298, 301 (E.D.N.Y. 2009))); Padilla, 643 F.Supp.2d at 301 (" [T]here is nothing in the text of the FLSA that expresses a congressional intent to make the $500,000 requirement jurisdictional in nature." ).

Defendants assert that " enterprise coverage is a jurisdictional issue," but rely on case law that almost uniformly addresses this issue as one of the elements of the plaintiffs' claims, or that characterize the $500,000 annual income requirement as a " jurisdictional" issue but resolved the dispute on a Rule 56 motion for summary judgment, addressing whether there were material issues of fact regarding the defendants' income, rather than on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.[7] See Alvarez v. 40

Page 345

Mulberry Rest., Inc., No. 11-CV-9107, 2012 WL 4639154, at *4 (S.D.N.Y. Oct. 3, 2012) (extending discovery and granting defendant leave to move for summary judgment " on the issue of whether Asia Roma was an 'enterprise engaged in commerce' during the years it employed Alvarez" ); Yang Li v. Ya Yi Cheng, No. 10-CV-4664, 2012 WL 1004854, at *4 (E.D.N.Y. Jan. 6, 2012) (granting summary judgment to defendants after finding " no evidence that defendant Lucky Grand Hunan Chinese Restaurant had gross revenues in excess of $500,000" ), report and recommendation adopted, No. 10-CV-4664, 2012 WL 1004852 (E.D.N.Y. Mar. 23, 2012); Xelo v. Mavros, No. 03-CV-3665, 2005 WL 2385724, at *3-4 (E.D.N.Y. Sept. 28, 2005) (granting summary judgment after finding that " defendants have met their burden of demonstrating that there is no question of material fact with regard to [whether the defendants'] annual income" was in fact under $500,000, but referring to the $500,000 figure as a " jurisdictional threshold" ).[8]

Plaintiffs' Amended Complaint, invoking 28 U.S.C. § 1331, seeks relief pursuant to a federal law, the FLSA. Defendants do not argue, and there is nothing to suggest, that the FLSA claim is immaterial, made solely for the purpose of obtaining jurisdiction, or is wholly insubstantial or frivolous. Accordingly, the Amended Complaint " arises under" the laws of the United States, and because it does, the Court has subject matter jurisdiction. Defendants' motion to dismiss the Amended Complaint for lack of subject matter jurisdiction is denied.

c. Defendants' motion for summary judgment

Defendant moves to dismiss the Amended Complaint for failure to state a claim, or, in the alternative, for summary judgment, arguing that Plaintiffs have failed to establish that the Restaurant is an " enterprise" within the meaning of the FLSA.[9] (Def. Mem. 3-4.) Because both

Page 346

parties rely on documents outside the four corners of the Complaint, the Court treats Defendants' motion as a Rule 56 motion for summary judgment.

The FLSA defines " enterprise engaged in commerce or in the production of goods for commerce," as a business that (1) has employees " engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person" and (2) has an annual gross revenue of at least $500,000. 29 U.S.C. § 203(s)(1)(A) (emphasis added).

i. Plaintiffs satisfy the first prong of enterprise coverage

The first prong of this definition is relatively easy to establish. Several courts have held that it is satisfied " if Plaintiffs merely handled supplies or equipment that originated out-of-state." Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d 114, 121 (E.D.N.Y. 2011); see Jacobs, 577 F.3d at 99 n.7 (noting that requirement that an employer be an enterprise engaged in commerce " is rarely difficult to establish . . . because it is met by showing that two or more employees have 'handl[ed] . . . materials that have been moved in . . . commerce[.]" (alteration in Jacobs ) (quoting 29 U.S.C. § 203(s)(1)(A)(i) and citing Wirtz v. Melos Constr. Corp., 408 F.2d 626, 628 (2d Cir. 1969) and Archie v. Grand Cent. P'shp, 997 F.Supp. 504, 530 (S.D.N.Y. 1998))); Velez, 203 F.Supp.2d at 328 (" [T]he employee does not himself need to be involved in an activity that affects interstate commerce'; even a 'local laundry' is covered if the soap it uses moved in interstate commerce" (quoting Boekemeier v. Fourth Universalist Soc'y in City of New York, 86 F.Supp.2d 280, 285 (S.D.N.Y. 2000) and Marshall v. Baker, 500 F.Supp. 145, 151 (N.D.N.Y. 1980))). An employee's handling of cleaning and janitorial supplies and food products is sufficient to establish the first prong of enterprise coverage. See Gomez v. El Rancho De Andres Carne De Tres Inc.., No. 12-CV-1264, 2014 WL 1310296, at *3 (E.D.N.Y. Mar. 11, 2014) (food products), report and recommendation adopted, No. 12-CV-1264, 2014 WL 1310299 (E.D.N.Y. Mar. 31, 2014); Rodriguez, 784 F.Supp.2d at 121 (cleaning products) (citing Locke v. St. Augustine's Episcopal Church, 690 F.Supp.2d 77, 88 (E.D.N.Y. Mar. 3, 2010)); see also Jones v. E. Brooklyn Sec. Servs. Corp., No. 11-CV-1021, 2012 WL 3235784 at *4 (E.D.N.Y. Aug. 7, 2012) (" [E]nterprise coverage applies so long as some of the employees wear uniforms or use items such as radios, books, flashlights, clipboards, brooms, bags, and cleaning supplies that have moved in interstate commerce." ) (citations omitted).

In this case, Defendants do not directly address the first prong of the definition of " enterprise," arguing solely that " [c]ompanies which have less than the specified dollar amount of gross sales or business are not considered 'an enterprise' within the meaning of the FLSA." [10] (Def.

Page 347

Mem. 4.) The Amended Complaint alleges that Rocha " regularly handles goods in interstate commerce, such as dishwashing liquid, olive oil and meat, and other supplies produced outside of the State of New York." (Am. Compl. at 9 ¶ 39.) This is sufficient to establish the first prong.

ii. Plaintiffs have raised disputed issues of fact as to the second prong of enterprise coverage

Because Plaintiffs have shown that the Restaurant meets the first prong of an enterprise engaged in commerce, the question of Defendants' enterprise liability is determined by the second prong of the definition, whether Defendants have " annual gross volume of sales made or business done" of at least $500,000." 29 U.S.C. § 203(s)(1)(A)(ii). See Jones, 2012 WL 3235784 at *4 n.6 (" It should not come as a surprise that, given the expansiveness of this test, 'virtually every enterprise in the nation doing the requisite dollar volume of business is covered by the FLSA.'" (quoting Archie v. Grand Cent. P'shp., 997 F.Supp. 504, 530 (S.D.N.Y. 1998)). Defendants argue that " the incontrovertible evidence" in this case establishes that the Restaurant did not take in annual gross revenues of at least $500,000. (Def. Mem. 4.) Defendants point to tax returns for the Restaurant for each year between 2007 and 2012, as well as " register receipts," to argue that the Restaurant did not earn revenues in excess of $500,000.[11] (Def. Mem. 4.) Plaintiffs argue that the lack of reliability of the tax returns, Defendants' reliance on unauthenticated receipts, and evidence offered by Plaintiffs that Bakhtar's gross revenues were in excess of $500,000 create a genuine issue of material fact as to whether Bakhtar earned enough revenue to meet the FLSA definition of " enterprise." (Rocha Opp'n Mem. 9-13; Portillo Opp'n Mem. 3-8.) The Court agrees with Plaintiffs.

1. Defendants' tax returns are not signed or authenticated

Defendants submit U.S. Corporation Income Tax Return forms (Form 1120) for

Page 348

the years 2007-2012.[12] ( See Exs. 1-6 annexed to Affidavit of Nawaz Khan-Nabi.) According to the tax returns, the maximum " gross receipts or sales" for these years was $230,147, earned in 2012. (2012 Form 1120, annexed to Khan-Nabi Aff. as Ex. 6 at 1.) Defendants also submit register receipts for what appears to be the third quarter of 2013 (June through August), and argue in their memorandum of law that these " reflect the same rate of income as listed in the tax returns." [13] (Def. Mem. 4.) Plaintiffs note that only tax returns for the years 2007 and 2008 are signed; the returns for the years 2009 through 2012 are not signed, nor accompanied by a statement or affidavit of the tax preparer.[14] ( Id. at 11). The absence of a signature on the tax returns, combined with the absence of an affidavit from the tax preparer or from the owner of the business verifying the authenticity of the returns caution against presuming their authenticity. See Monterossa v. Martinez Rest. Corp., No. 11-CV-3689, 2012 WL 3890212, at *4 (S.D.N.Y. Sept. 7, 2012) (" [T]here is good reason to be cautious in relying on Defendants' tax returns because . . . the submitted returns are unsigned and unaccompanied by a statement or affidavit of the tax preparer." ). Moreover, Plaintiffs have sufficiently challenged the reliability of the information contained in the tax returns, as discussed below.

1. Plaintiffs' sworn statements contradict the tax returns

Plaintiffs argue that the tax returns are unreliable because the reported salaries and wages paid by the business in 2010 ($10,050), 2011 ($31,200), and 2012 ($39,980) are very low for a company that had at least 12 full-time employees working at all relevant times. (Rocha Opp'n Mem. 10 (citing 2010-2012 Forms 1120, annexed to Khan-Nabi Aff. as Exs. 4-6).) Plaintiffs assert that Rocha and Calel earned more in 2012 than is reported on the tax returns as total salaries and wages paid by the Restaurant for that year, ( id.), and that Portillo was paid $20,000 each year, (Portillo Opp'n Mem. 4). Defendants argue that Plaintiff's contention is " grossly misguided," asserting that Calel and Portillo " worked for less than three months, and Rocha worked in spurts, sometimes a few days or a few weeks at a time." (Def. Reply 6.) Defendants argue that the calculations reflect " full time employment for all Plaintiffs simultaneously and that claim is patently false." ( Id.) Plaintiffs' sworn statements indicate the start and end dates of their employment, how many hours and days they worked in a week and how much they earned each week, but do not directly state how many weeks they worked in 2012, nor do they directly state how much they earned in 2012. ( See Rocha Decl. ¶ ¶ 5-6; Calel Decl. ¶ ¶ 4-5; Portillo Aff. ¶ ¶ 4-5.) Rather, Plaintiffs' memoranda of law appear to calculate this amount based on their sworn statements. Plaintiffs' sworn statements, including the statement that the Restaurant employed between 12 and 13 full-time employees at any given time, is sufficient to raise genuine

Page 349

issues of material facts regarding the reliability of the Restaurant's tax returns.

Plaintiffs also assert that the tax returns falsely report the rent the Restaurant paid as $30,000 in 2010, $42,000 in 2011, and $52,000 in 2012, when the lease for the premises shows that Defendants paid a base rent of $120,000 each year beginning on July 1, 2011. (Portillo Opp'n Mem. 4-5; Rocha Opp'n Mem. 11 (citing Agreement of Lease dated July 1, 2011, annexed to affidavit of Joshua Androphy as Ex. A at 1).) Defendants do not dispute that the lease provides for a monthly rent of $10,000, but assert that " Abaseen Food Corp. acquired Bakhter Afghan Kebabs and paid to acquire its lease rights. Pursuant to IRS tax code, Abaseen was well within its rights to amortize those costs over the life of the lease. The reduced Rents line reflects that amortization." (Def. Reply 7 (citing IRS Tax Publication 535, Ch. 8).)[15] Defendants do not cite to the language from the cited publication to substantiate why the amortization of the unspecified amount paid by Abaseen Food Corp. to acquire the rights to the lease would be properly entered in the " Rents" line of its tax return. Even if true, the lease, which is the only relevant document in the record, shows that Defendants contracted to pay $120,000 each year in rent beginning on July 1, 2011, an amount that is higher than was reported in the 2011 and 2012 tax returns, undermining the reliability of the tax returns.

In addition, Portillo submits an affidavit stating that during the time he was employed by Defendants, from April 18, 2011, through June 23, 2014, he observed that the Restaurant was open 365 days each year, from 11:00 a.m. to 11:00 p.m. on weekdays, and to 12:00 midnight on weekend days. (Portillo Aff. ¶ ¶ 3, 9.) Portillo states that at any given time there were at least 12 full time employees working in the Restaurant, all of whom were paid in cash " off the books." ( Id. ¶ ¶ 10-11.) According to Portillo, the Restaurant had 36 tables in the main dining area and served more than 200 meals each day to both in-restaurant and take-out customers. ( Id. ¶ ¶ 10, 13.) The average cost of one of these meals was $11 to $12. ( Id. ¶ 12.) Portillo " personally observed that the Restaurant's cash sales were more than $2,200 per day." ( Id. ¶ 15.) In addition, the Restaurant had a separate room for private parties with a capacity for more than 100 guests, in which it served approximately three parties each week. ( Id. ¶ ¶ 10, 16.)

Rocha also submits an affidavit stating that, during the time he worked at the Restaurant, from 2006 through January, 2013, there were at least thirteen full time employees at any given time, nine of whom worked in the kitchen and four of whom worked waiting tables, and all of whom were paid in cash. (Affidavit of Magdaleno Rocha, (" Rocha Aff." ) ¶ ¶ 4, 10, 12.) According to Rocha, the Restaurant served more than 200 meals each day in the Restaurant, and 100 meals each day for customers to take out of the Restaurant. ( Id. ¶ 14.) In connection with his job duties of preparing plates with cooked food to serve eat-in customers of the Restaurant, Rocha would receive a food order ticket from the cook. ( Id. ¶ 15.) Rocha submits approximately 93 undated order slips, declaring that these are " a single day's order slips for eat-in orders, from a day in January 2013.[16] ( See Restaurant receipts, annexed to Rocha Aff. as Ex. A.) Rocha observed that the Restaurant's cash sales were more than $2,700 each day, not including the income from the approximately two parties

Page 350

each week that were held in the Restaurant's private party room. (Rocha Aff. ¶ 18.)

Plaintiffs' evidence challenges the reliability of the Restaurant's stated yearly income as set forth in the tax returns, and therefore raises genuine issues of material fact as to whether the Restaurant earned over $500,000 in gross sales for each of the years from 2010 through 2012. See Chang Mei Lin v. Yeh's Bakery, Inc., No. 12-CV-2146, 2013 WL 867436, at *3 (E.D.N.Y. Mar. 7, 2013) (finding that the defendants' " tax returns fall short of establishing as a matter of law that the annual gross income of the bakery falls below the FLSA threshold," where the plaintiff proffered evidence including the plaintiff's W-2 forms and her sworn statement about the number of food products she helped prepare each day and the average cost of each); Monterossa, 2012 WL 3890212, at *3-4 (S.D.N.Y. Sept. 7, 2012) (finding that the plaintiffs met their burden at the summary judgment stage, despite the defendants' submission of tax returns showing annual gross revenues well below $500,000, by proffering evidence that the tax returns were " inconsistent with Defendants' own records," a handwritten log of the Restaurant's expenses and wages, as well as with sworn statements of employees as to the defendants' daily gross revenue); Amaya v. Superior Tile & Granite Corp., No. 10-CV-4525, 2012 WL 130425, at *4-5 (S.D.N.Y. Jan. 17, 2012) (denying summary judgment and finding the defendant's tax returns " entirely unreliable" where they were " utterly inconsistent with a business employing six to eight workers full time, each earning $35,000 or more annually," and where the defendant " operated largely a cash business" ).

Defendants attack the credibility of Plaintiffs' assertions, citing purported inconsistencies between Plaintiffs' declarations and the Amended Complaint regarding the fact that Plaintiffs claim to have seen customers, and argue that Plaintiffs " do not state whether each customer made a purchase, individually or collectively." ( See Def. Reply 6-7.) Defendants also dispute that there were 12 to 13 full-time employees at any given time, arguing instead that " Plaintiffs offer no evidence to support their contention" that there were this many employees, and noting that Calel and Portillo " worked for less than three months," and that Rocha " worked in spurts, sometimes a few days or a few weeks at a time." (Def. Reply 6.) Defendants contend that " [i]t is much more credible that Defendants did not employ dozens of people and kept their overhead low, in line with their earnings." ( Id.) Defendants' arguments that Plaintiffs' sworn statements are not credible and their statements that the Court should determine that they are " much more credible" underscores the disputed facts that cannot be resolved on Defendants' motion for summary judgment. Because there are genuine, disputed issues concerning whether the Restaurant earned at least $500,000 in annual revenues during the time period of Plaintiffs' FLSA claims, the Court denies Defendants' motion for summary judgment as to Plaintiff's FLSA claims.

d. Defendants' motion to dismiss the New York Labor Law claims

Defendants argue that Plaintiffs' claim for overtime compensation under New York state law should be dismissed because " the New York Legislature has not created any right to compensation for overtime hours worked by employees such as Plaintiff," and the overtime regulation promulgated by the New York Commissioner of Labor is " the product of an impermissible delegation of lawmaking authority." (Def. Mem. 8-10.) Plaintiffs respond that Defendants' assertion that

Page 351

they have no right to overtime pay under New York law has been rejected by several state and federal courts and that the overtime regulations are lawful. (Rocha Mem. 15-19.) The Court agrees with Plaintiffs.

i. New York state law provides for overtime compensation

Defendants argue that " there is no applicable statutory entitlement to overtime compensation," because the New York State Legislature has not created any such right. (Def. Mem. 7.)

In enacting the Minimum Wage Act, the New York State Legislature (" the Legislature" ) enacted specific minimum wages, see N.Y. Lab. L. § 652, but did not directly enact an overtime provision. Instead, the Legislature delegated authority to the New York State Commissioner of Labor (" Commissioner" ) to issue " regulations governing . . . overtime ." N.Y. Lab. L. § 655-56. Pursuant to the authority delegated to the Commissioner by the Legislature, the Commissioner promulgated regulations governing overtime. See, e.g., 12 Comp. Codes R. & Regs. § § 142-2.2 (providing overtime wage for " miscellaneous industries and occupations); 146-1.4 (hospitality industry). Specifically, the Legislature empowered the Commissioner to investigate whether the established minimum wages were adequate, and if such investigation caused the Commissioner to determine that minimum wages were " insufficient to provide adequate maintenance and to protect . . . health," then the Commissioner is directed to " appoint a wage board to inquire into and report and recommend adequate minimum wages and regulations for employees" N.Y. Lab. L. § 653(1). Section 655 of the statute also provides that " [i]n addition to recommendations for minimum wages, the wage board may recommend such regulations as it deems appropriate to carry out the purposes of this article and to safeguard minimum wages," and provides that [s]uch recommended regulations may also include, but are not limited to, regulations governing . . . overtime ." Id. § 655(5)(b). The Legislature imposed a duty on the Commission to take action on any of the wage board's report and recommendations.[17] Id. § 656 (" [T]he commissioner shall by order accept or reject the [wage] board's report and recommendations." ).

The overtime regulation promulgated by the Commissioner provides that " [a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate in the manner and methods provided in and subject to the exemptions of" the overtime provisions of the FLSA. 12 N.Y. Comp. Codes R. & Regs. § 142-2.2. This regulation has been widely recognized as comprising New York state law. See Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013) (" [T]he NYLL adopts th[e] same standard . . . [as the] FLSA definition of overtime into the [New York Labor Law]" (citing 12 Comp. Codes R. & Regs. § 142-2.2);

Page 352

Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 556 (2d Cir. 2012) (" Like the FLSA, the NYLL 'mandates overtime pay and applies the same exemptions as the FLSA.'" (quoting Reiseck v. Universal Commc'ns of Miami, Inc., 591 F.3d 101, 105 (2d Cir. 2010))); Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 78 (2d Cir. 2003) (" The overtime compensation claim under § 142-2 is governed by the definitions in [12 Comp. Codes R. & Regs.] § 142-2.16, and the minimum wage claim under § 652(1) is governed by the definitions in New York Labor Law § 651." ); Bonito v. Avalon Partners, Inc., 106 A.D.3d 625, 967 N.Y.S.2d 19, 20 (App.Div. 2013) (" Plaintiffs may also assert claims against [a defendant] for violations of the New York Minimum Wage Act (Labor Law § 650 et seq.) and its implementing regulations, including 12 NYCRR 142-2.2." ); Anderson v. Ikon Office Solutions, Inc., 38 A.D.3d 317, 833 N.Y.S.2d 1, 1 (2007) (" § 142-2.2 provides that under the state minimum wage act (Labor Law § 650 et seq.), overtime shall be paid at 1 1/2 times the regular rate, subject to any exceptions in the federal statute." ).

Defendants rely on an appellate division and two district court cases, Hornstein v. Negev Airbase Constructors, 110 A.D.2d 884, 488 N.Y.S.2d 435 (App.Div. 1985), Gallegos v. Brandeis Sch., 189 F.R.D. 256, 259 (E.D.N.Y. 1999), and Diaz v. Electronics Boutique of Am., Inc., No. 04-CV-0840E, 2005 WL 2654270 (W.D.N.Y. Oct. 17, 2005), to argue that " New York does not have a mandatory overtime law." (Def. Mem. 7-8.) Hornstein and Gallegos rely on New York Labor Law § 160 to find that " New York does not have a mandatory overtime law." [18] Hornstein, 488 N.Y.S.2d at 437; Gallegos, 189 F.R.D. at 259 (citing Hornstein, 488 N.Y.S. at 437). However, § 160 is not the only provision of the New York Labor Law to discuss overtime, and it appears that the Hornstein and Gallegos courts did not look to any other provision of New York law. The Court therefore declines to follow these cases.[19] As discussed above, § 655 authorizes the wage board to recommend regulations governing overtime, while § 656 directs the Commissioner to either accept or reject any regulations recommended by the wage board, and, pursuant to this delegated authority, there are regulations governing overtime pay. See, e.g., § § 142-2.2; 146-1.4; see also Ahmed v. Subzi Mandi, Inc., No. 13-CV-3353, 2014 WL 4101224, at *3 (E.D.N.Y. May 27, 2014) (" NYLL's overtime provision specifies that eight hours constitutes a 'legal day's work,' N.Y. Lab. L. § 160, and that '[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate . . . ." (citing 12 N.Y. Comp. Codes R. & Regs. § 142-2.2)), report and recommendation adopted, No. 13-CV-3353, 2014 WL 4101247 (E.D.N.Y. Aug. 18, 2014); Ray v. Debt Free Nation, Inc., No. 11-CV-7316,

Page 353

2014 WL 957023, at *4 (S.D.N.Y. Mar. 11, 2014) ( " 'New York does not have a mandatory overtime law.' Instead, the Commissioner of Labor issued a Minimum Wage Order for Miscellaneous Industries and Occupations, providing that '[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate." ' (citing Hornstein, 488 N.Y.S.2d at 437 and 12 N.Y. Comp. Codes R. & Regs. § 142-2.); Fernandez v. Main Glatt Corp., No. 12-CV-986, 2014 WL 1310287, at *2 n.2 (E.D.N.Y. Mar. 14, 2014) (" New York law also provides that: '[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate.'" (citing 12 N.Y. Comp. Codes R. & Regs. § 142-2.2 and N.Y. Lab. L. § § 160)), report and recommendation adopted sub nom. Hernandez v. Main Glatt Corp., No. 12-CV-986, 2014 WL 1310291 (E.D.N.Y. Mar. 31, 2014); Stennett v. Moveway Transfer & Storage, Inc., 97 A.D.3d 655, 949 N.Y.S.2d 91, 94 (App.Div. 2012) (finding that the plaintiff's claim for failure to pay overtime wages " is premised upon the minimum wage directives set forth in 12 NYCRR 142-2.2, which were promulgated by the New York State Commissioner of Labor pursuant to authority vested in the Commissioner " (citing Ballard v. Community Home Care Referral Serv., 264 A.D.2d 747, 695 N.Y.S.2d 130 (App.Div. 1999))). In light of the extensive authority to the contrary, Defendants' argument that there is no right to overtime under New York law is without merit.[20]

ii. The New York State Legislature's delegation of authority to the Commissioner is constitutional

Defendants argue that the Legislature's delegation of authority to the Commissioner to establish the overtime regulation runs afoul of the New York State Constitution's provision that " [t]he legislative power of this state shall be vested in the senate and assembly." (Def. Mem. 8 (citing N.Y. Const. art. III, § 1).) Defendants argue that " the Legislature makes the fundamental policy decisions for residents and businesses in this State, and cannot delegate those decisions to administrative agencies such as the New York State Department of Labor." ( Id. at 8-9 (citing Boreali v. Axelrod, 71 N.Y.2d 1, 517 N.E.2d 1350, 523 N.Y.S.2d 464 (1987) and Health Ins. Ass'n of Am. v. Corcoran, 154 A.D.2d 61, 551 N.Y.S.2d 615 (App.Div. 1990), aff'd, 76 N.Y.2d 995, 565 N.E.2d 1264, 564 N.Y.S.2d 713 (1990)).

Although the New York State Constitution vests " legislative power" solely in the Legislature, see N.Y. Const. art. III, § 1, the delegation of discretionary authority from legislative bodies to administrative agencies to implement and execute legislation

Page 354

is a well-established principle essential to the functioning of the modern polity. See Darweger v. Staats, 267 N.Y. 290, 306, 196 N.E. 61 (1935) (" The law books are full of statutes unquestionably valid, in which the Legislature has been content to simply establish rules and principles, leaving execution and details to other officers." ); see also Raffellini v. State Farm Mut. Auto. Ins. Co., 9 N.Y.3d 196, 201, 878 N.E.2d 583, 848 N.Y.S.2d 1 (2007) (" It is well settled that the Legislature may authorize an administrative agency to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation." (citation and internal quotation marks omitted); Dorst v. Pataki, 90 N.Y.2d 696, 699, 687 N.E.2d 1348, 665 N.Y.S.2d 65 (1997) (" The Legislature is free to announce its policy in general terms and authorize administrators 'to fill in details and interstices and to make subsidiary policy choices consistent with the enabling legislation.'" (quoting Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 78 N.Y.2d 398, 410, 582 N.E.2d 568, 576 N.Y.S.2d 185 (1991))); Levine v. Whalen, 39 N.Y.2d 510, 515, 349 N.E.2d 820, 384 N.Y.S.2d 721 (1976) (" [T]here is no constitutional prohibition against the delegation of power, with reasonable safeguards and standards, to an agency or commission to administer the law as enacted by the Legislature." ). Although the delegation of discretion must " limit[] the field in which that discretion is to operate and provides standards to govern its exercise," Levine, 39 N.Y.2d at 515, New York courts have upheld statutes providing even the most generalized standards and boundaries. See, e.g., Levine, 39 N.Y.2d at 516 (holding that the standard provided in a public health law, " 'to provide for the protection and promotion of the health of the inhabitants of the state," is not so vague and indefinite as to set no standard or to outline no policy" ); Med. Soc'y of State v. Serio, 100 N.Y.2d 854, 864-65, 800 N.E.2d 728, 768 N.Y.S.2d 423 (2003) (holding that a provision in New York Insurance Law providing that " [t]he superintendent shall have the power to prescribe and from time to time withdraw or amend, in writing, regulations, not inconsistent with the provisions of [the Insurance Law] . . . does not cede to the executive branch fundamental legislative or policymaking authority, which remains at all times with the Legislature" ).

Here, New York Labor Law empowers the Commissioner to investigate whether established minimum wages " are sufficient to provide adequate maintenance and to protect the health of the persons employed," in various occupations, and authorizes a Commissioner-appointed wage board to " recommend such regulations as it deems appropriate to carry out the purposes of this article and to safeguard minimum wages . . . [including] regulations governing . . . overtime." N.Y. Lab. L. § § 650, 655. These limiting principles are sufficient to circumscribe the Commissioner's discretion in implementing the legislation. Therefore, the Legislature's delegation of authority to the Commissioner to implement the provisions of the minimum wage law does not violate the constitutionally-mandated separation of powers.[21] In light of the well-established principle that the Legislature may declare a broad policy

Page 355

and delegate authority to provide specificity in administering the policy, Defendants' argument that the Legislature improperly delegated its authority to create a mandatory overtime law is without merit. See Gen. Elec. Capital Corp. v. New York State Div. of Tax Appeals, 2 N.Y.3d 249, 254, 810 N.E.2d 864, 778 N.Y.S.2d 412 (2004) (" [T]he Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation . . . ." (quoting Nicholas v. Kahn, 47 N.Y.2d 24, 31, 389 N.E.2d 1086, 416 N.Y.S.2d 565 (1979))).

iii. The Commissioner lawfully exercised his rulemaking authority

Defendants argue that the Commissioner overstepped the authority delegated to him in imposing " substantive obligations upon employers beyond that required by the Legislature." (Def. Mem. 9.) Defendants concede that the administrative agency here operates under the authority of a " broad enabling statute," but contend that the Commissioner cannot " stretch that statute" to " draft[] a code embodying its own assessment of what public policy ought to be." ( Id.; see also Def. Reply 9.)

Regulations promulgated by administrative agencies pursuant to legislatively delegated authority are upheld unless they " exceeded the scope of [their] constitutional authority by engaging in inherently legislative activity." Serio, 100 N.Y.2d at 865; see Gen. Elec. Capital Corp., 2 N.Y.3d at 254 (" [A]n administrative agency

Page 356

may not, in the exercise of rule-making authority, engage in broad-based public policy determinations." ). Administrative agencies must also operate within the substantive scope of the enabling legislation and refrain from enacting regulations that are not " in harmony with the statute's over-all purpose," and must have a rational basis for their regulations. Gen. Elec. Capital Corp., 2 N.Y.3d at 254 (" [W]here an agency adopts a regulation that is consistent with its enabling legislation and is not so lacking in reason for its promulgation that it is essentially arbitrary the rule has the force and effect of law." (citations and internal quotation marks omitted)); see also Raffellini, 9 N.Y.3d at 201 (" [A]n agency can adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes. A duly promulgated regulation that meets these criteria has the force of law." (citations omitted).

Here, contrary to Defendants' claims, there is no " broad-based policy determinations" that were made by the Commissioner in promulgating the overtime regulation. Rather, as provided by the enabling statute, the overtime regulation was adopted upon the recommendation of a wage board that had been appointed by the Commissioner during the course of his investigation into the adequacy of the established minimum wage law. Cf. New York State Department of Labor, " Notice of Adoption: Hotel and Restaurant Wage Orders" N.Y.S. Register, December 29, 2010 (adopting 12 Comp. Codes R. & Regs. § 146 pursuant to N.Y. Lab. L. § § 21(11), 199, 653, 656). New York Labor Law authorizes the Commissioner to adopt the recommendations of the wage board regarding overtime regulations as part of his mandate to " carry out the purposes of [the minimum wage law] and to safeguard minimum wages." N.Y. Lab. L. § § 655, 656. In addition, the statute requires the Commissioner and the wage board to " consider the amount sufficient to provide adequate maintenance and to protect health" in establishing minimum wages and regulations, and specifically authorizes the wage board to make a recommendation regarding overtime. Id. § § 654, 655. By adopting an overtime regulation, the Commissioner did not act in a manner contrary to the Legislature's intent. See id. § 650 (stating the purpose of the minimum wage law to " eliminate[] as rapidly as practicable without substantially curtailing opportunities for employment or earning power" wages that are " insufficient to provide adequate maintenance for [workers]and their families" ).

Although New York courts have rarely struck down regulations as exceeding the scope of an agency's delegated authority, in Boreali the New York Court of Appeals struck down a regulation of the state Public Health Council (PHC) banning indoor smoking for four reasons: (1) although the council purported to be acting based on its authority to regulate public health, the regulation was " laden with exceptions based solely upon economic and social concerns," [22] even though the council had not been authorized to trade off the costs and benefits of its health-promoting actions,

[(2)] in adopting the antismoking regulations challenged here the PHC did

Page 357

not merely fill in the details of broad legislation describing the over-all policies to be implemented [but rather] . . . wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance, . . . [(3)] the agency acted in an area in which the Legislature had repeatedly tried -- and failed -- to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions, . . . [and (4)] no special expertise or technical competence in the field of health was involved in the development of the antismoking regulations challenged here.

Boreali, 71 N.Y.2d at 12-14. Similarly, in Health Insurance Association of America v. Corcoran, 154 A.D.2d 61, 551 N.Y.S.2d 615 (1990), the New York Supreme Court, Appellate Division, noting that " regulations must be consistent with and have a basis in the Insurance Law itself," struck down a regulation enacted by the Commissioner of Insurance that prohibited insurance companies from inquiring about an applicant's HIV status. Corcoran, 551 N.Y.S.2d at 618. The court found that the Commissioner, who passed the regulation with the intent to prevent discrimination in insurance coverage against people with HIV acted outside the scope of his delegated authority because the regulation contradicted provisions in the enabling statute specifying that " [n]othing herein contained shall require any insurer to insure every kind of risk which it is authorized to insure," and because the regulation was outside the scope of the Commissioner to prohibit insurance practices that are " unfair, inequitable, misleading or discriminatory [on the basis of race, color, etc.]." Id. at 618-19. The court concluded that " [w]ithout legislation more clearly suggesting that a specific, sound underwriting practice is condemned, an insurance regulation forbidding the practice is, in effect, a rule making illegal that which is permitted by law." Id. at 619.

In contrast to those cases, here, the New York State Legislature expressly authorized the wage board to recommend " such regulations as it deems appropriate to carry out the purposes of this article and to safeguard minimum wages . . . includ[ing] . . . regulations governing overtime." N.Y. Lab. L. § 655(5)(b). The Legislature specifically required the Commissioner to either adopt or reject the wage board's recommendations. Id. § 656. The Commissioner accepted the wage board's recommendations. Under these circumstances, the Commissioner was acting well within his delegated authority when he adopted the mandatory overtime regulation. See Statharos v. N.Y.C. Taxi & Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999) (rejecting the plaintiffs' argument that agency-imposed financial disclosure requirements were unconstitutional and noting that in Boreali " the court rested its holding on several 'coalescing circumstances' not present in this case" ); Serio, 100 N.Y.2d at 865 ( " The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation. That occurred here." (alteration, citation and internal quotation marks omitted)); Rent Stabilization Ass'n of New York City, 83 N.Y.2d at 164 (distinguishing Boreali in rejecting the defendant's argument that the New York City Division of Housing and Community Renewal " overstepped its mandate and invaded the province of the legislature, in violation of the constitutional

Page 358

separation of powers" in enacting regulations providing protections from eviction to family members of rent stabilized housing tenants). Contrary to Defendants' claim, the Commissioner did not exceed his statutorily-delegated authority to adopt an overtime regulation in enacting § 142-2.2.

iv. The regulation does not impermissibly adopt federal law

The overtime regulation promulgated by the Commissioner provides that:

An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate in the manner and methods provided in and subject to the exemptions of sections 7 and 13 of 29 U.S.C. 201 et seq., the Fair Labor Standards Act of 1938, as amended; provided, however, that the exemptions set forth in section 13(a)(2) and (4) shall not apply.

12 Comp. Codes R. & Regs. § 142-2.2. Defendants argue that, by adopting the relevant provisions of the FLSA and specifically referenced in the statute " as amended," in the overtime regulation, the Commissioner " improperly abdicated rulemaking authority to spell out the terms of a substantive state law . . . to the dictates of the United States Congress and the U.S. Department of Labor." [23] (Def. Mem. 9-10.) Defendants argue that " such delegation is improper because it permits future overtime regulations not yet promulgated by the U.S. Department of Labor to automatically become the law of New York State, without undergoing the usual legislative review and adoption process." ( Id. at 9-10.)

The Court is unpersuaded that the term " as amended" as used in § 142-2.2 is intended to incorporate any and all amendments to the relevant FLSA provisions, as opposed to being a descriptive title of 29 U.S.C. 201 et seq., which is commonly referred to as " the Fair Labor Standards Act of 1938, as amended," in recognition of the fact that the FLSA has been amended since its passage in 1938. See, e.g., Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 347, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998) (" The ADEA's remedial provisions were expressly to be enforced in accordance with the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 101 et seq." ); Kelly v. City of Mount Vernon, 162 F.3d 765, 766 (2d Cir. 1998) (" This case arises under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq." ). Indeed, in light of § 102 of New York Executive Law requiring the regulation to set forth a " precise identification" of the federal material being referenced, the inclusion of the term " as amended" can

Page 359

be understood as a descriptive rather than a prescriptive reference.[24] The overtime regulation is not an open-ended adoption of " sections 7 and 13 of 29 U.S.C. 201 et seq., the Fair Labor Standards Act of 1938, as amended" including any amendments made by Congress to those sections at any time in the future, but rather, it incorporates these sections as they existed at the time of the regulation's enactment.[25] See Archibald, 2009 WL 3817404, at *3 (" The regulation adopts the FLSA provisions as of the time of its enactment." ).

The overtime regulations enacted by the Commissioner are a valid exercise of properly delegated authority. Defendants' motion for summary judgment as to Plaintiffs' state overtime claims is denied.

III. Conclusion

For the foregoing reasons, the Court denies Defendants' motion to dismiss and their alternate motion for summary judgment.

SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.