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Tacuri v. Nithun Constr. Co.

United States District Court, E.D. New York

January 21, 2015

LUIS TACURI, on behalf of himself and all other persons similarly situated, et al., Plaintiffs,
v.
NITHUN CONSTRUCTION COMPANY, ET AL., Defendants

For Luis Tacuri, Timoteo Castaneda, on behalf of themselves and all other persons similarly situated, Plaintiffs: David Stein, Samuel & Stein, New York, NY.

Ramon E. Reyes, Jr., United States Magistrate Judge. Honorable Carol B. Amon, Chief United States District Judge.

REPORT AND RECOMMENDATION

Ramon E. Reyes, Jr. U.S. Magistrate Judge

Plaintiffs Luis Tacuri (" Tacuri") and Timoteo Castaneda (" Castaneda"), (collectively, " Plaintiffs") brought this action against Nithun Construction Company (" Nithun") and Nurul Amin (" Amin") (collectively, " Defendants") to recover unpaid wages, overtime compensation, and related damages under the Wage Theft Prevention Act, Fair Labor Standards Act of 1938 (" FLSA"), 29 U.S.C. § § 207, 216, New York Labor Law (" NYLL") § § 191, 195, 198, 663, and New York Codes, Rules and Regulations (" NYCCR") title 12, § 142-2.2.[1] ( See generally Dkt. No. 1 (" Compl.").)

For the reasons stated herein, I respectfully recommend that Plaintiffs' motion be granted and default judgment be entered against Defendants in the amount of $59, 097.43. Out of this amount, I respectfully recommend that Tacuri be awarded $18, 415.52, comprising of $680.00 in unpaid wages, $6027.76 in unpaid overtime compensation, $5000.00 for Wage Theft Prevention Act violations, and $6707.76 in liquidated damages, and. Castaneda be awarded $35, 718.41 in damages, comprising of $200.00 in unpaid wages, $19, 290.66 in unpaid overtime compensation, $5000.00 in Wage Theft Prevention Act damages, and $11, 227.75 in liquidated damages. Additionally, I respectfully recommend an award of post-judgment interest, $4563.50 in attorney's fees, and $400.00 in costs.

BACKGROUND[2]

Nithun is a construction company with its principal place of business in Brooklyn, New York. (Compl. ¶ 6.) Amin is an owner or part owner of Nithun. (Id. ¶ 11.) Plaintiffs were employed as laborers by Defendants. (Id. ¶ 23.) Their workday was typically from 8:00 a.m. to 4:00 p.m. (Id. ¶ 26.) Plaintiffs worked six days a week. (Id.)

Tacuri worked for Defendants from approximately May 2012 through April 24, 2014. (Id. ¶ 21.) He worked approximately forty-eight hours per week. (Id. ¶ 27.) He was initially paid $130.00 per day, which was increased to $140.00 per day in November 2013. (Id. ¶ 30.)

Castaneda worked for Defendants from 2002 until January 2014. (Id. ¶ 22.) He frequently worked between thirty and sixty extra minutes a day after his regular shift. (Id. ¶ 26.) Castaneda frequently worked approximately fifty hours per week. (Id. ¶ 27.) His starting pay was $90.00 per day, which was occasionally increased by $10.00 per day, and eventually to $160.00 per day until the end of his employment. (Id. ¶ 31.)

Plaintiffs were not paid on time. (Id. ¶ 35.) At the time of the end of Tacuri's employment he was owed $1680.00 in back wages. (Id. ¶ 36.) Castaneda was owed $200.00 at the end of his employment. (Id. ¶ 37.)

Defendants did not pay Plaintiffs an overtime premium. (Id. ¶ 28.) Defendants never gave Plaintiffs documentation to show their pay rate, designated pay day, or pay method. (Id. ¶ 32.) They also never provided Plaintiffs with weekly notices of their pay rates or hours worked. (Id. ¶ 39.) Additionally, Defendants did not supply them with a time clock, time card, sign-in sheet, or any other way to record the time they worked. (Id. ¶ 34.)

PROCEDURAL HISTORY

Plaintiffs initiated this action against Defendants on May 8, 2014. (Dkt. Entry Dated 5/8/2014.) On June 27, 2014 Plaintiffs requested a Certificate of Default for Defendants. (Dkt. No. 6.) The Clerk of the Court entered default on June 30, 2014. (Dkt. Entry Dated 6/30/2014) On July 15, 2014, Plaintiffs filed this instant motion for default judgment. (Dkt. No. 7.) Your Honor subsequently referred Plaintiffs' motion to me for a report and recommendation. (Dkt. Entry Dated 7/15/2014.)

DISCUSSION

I. Liability

As an initial matter, this Court must determine whether Plaintiffs have adequately pleaded the requirements of liability under the FLSA and the NYLL. Upon entry of default, defendants concede all well-pleaded factual allegations of liability, except those related to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (citations omitted).

A. FLSA

In order to make a prima facie showing of a violation of the overtime provision of the FLSA, first Plaintiffs must adequately allege that they were employees covered under the FLSA. The FLSA defines an employee to mean " any individual employed by an employer." 29 U.S.C. § 203(e)(1) An employer, as defined by the FLSA, is " any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ." Id. § 203(d). Plaintiffs allege that at all relevant times, Defendants were employers within the meaning of the FLSA, 29 U.S.C. § 203(d). ( See Compl. ¶ 13.) Plaintiffs further allege that they were employed by Defendants (Compl. ¶ ¶ 21, 22.) Therefore, Plaintiffs have adequately alleged that they were employees within the definition of the FLSA.

Under the FLSA, employers have an obligation to pay overtime wages to employees who are " engaged in commerce or in the production of goods for commerce" or who are " employed in an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 207(a)(1). A defendant is such an enterprise if it (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) whose annual gross volume of sales made or business done is not less than $500, 000.00. 29 U.S.C. § 203(s)(1)(A).

Plaintiffs allege that Nithun was engaged in interstate commerce and/or the production of goods for commerce within the meaning of the FLSA. (Compl. ¶ 7.) Additionally, Plaintiffs allege that the Nithun had an annual gross revenue in excess of $500, 000.00 (Id. ¶ 9.) Therefore, Nithun qualifies as an employer with an obligation to pay overtime wages under the FLSA

Section 207(a)(1) of the FLSA requires employers to pay " not less than one and one-half times the regular rate" for hours worked in excess of forty. Plaintiffs allege that they worked more than forty hours per week and were not paid time-and-a-half for those overtime hours. (Compl. ¶ ¶ 27-28.) Plaintiffs have sufficiently pleaded that Defendants violated 29 U.S.C. § 207.

B. NYLL

The NYLL defines an employee as " any individual employed or permitted to work by an employer in any occupation." N.Y. Lab. Law § 651(5). Additionally, the NYLL defines an employer as " any individual, . . . corporation, . . . or any organized group of persons acting as employer." N.Y.Lab. Law § 651(6). Plaintiffs sufficiently allege that at all relevant times Defendants were employers and they were employees within the meaning of the NYLL (Compl. ¶ ¶ 11-13, 21-24.)

1. Overtime Compensation

The NYLL's overtime provision specifies that eight hours constitutes a " legal day's work." N.Y. Lab. Law § 160(3). Additionally, " [a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate . . . ." N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2. The applicable overtime rate for each workweek will be applied for working time over forty hours per week. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2.

Plaintiffs sufficiently allege that they worked over forty hours per week throughout the duration of their employment. (Compl. ¶ 27.) They further allege that they were not compensated with overtime premiums, but rather just paid their regular day rate. (Id. ¶ ¶ 28-29.) Therefore, Plaintiffs have sufficiently pleaded that Defendants violated New York's overtime provision.

2. Unpaid Wages

The NYLL provides that manual workers " shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned." N.Y. Lab.Law § 191(1). Plaintiffs allege that Defendants regularly fell behind in paying Plaintiffs and would have to " make up" for the unpaid wages in subsequent weeks. (Compl. ¶ 36.) At the time Plaintiffs ended their employment with Defendants, each was owed money in back wages. (Id. ¶ ¶ 36-37.) Thus, Plaintiffs have sufficiently pleaded that Defendants violated the NYLL with respect to unpaid wages.

3. Wage Theft Prevention Act

The NYLL also requires that " every employer shall provide their employees, at the time of hiring, and on or before February first of each subsequent year of the employee's employment with the employer a notice containing information about rates of pay." N.Y. Lab.Law§ 195(1)(a). Additionally, the NYLL states that all employers must " furnish each employee with a statement with every payment of wages . . ." N.Y. Lab. Law § 195(3).

Plaintiffs allege that Defendants never provided them with annual written notice of their regular rate of pay or overtime rate of pay. (Compl. ¶ 38.) Additionally, Plaintiffs allege that Defendants never provided them with notices of their rate of pay or their hours worked when they were paid. (Id. ΒΆ 39.) ...


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