United States District Court, S.D. New York
OPINION AND ORDER OF DISMISSAL
PITMAN United States Magistrate Judge.
matter is before me on the parties' joint application to
approve the parties' settlement (Docket Item 36). All
parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C. § 636(c).
an action brought by an individual who was formerly employed
as an administrative assistant and scheduler by defendants
and seeks unpaid minimum wages, unpaid overtime premium pay,
spread-of-hours pay as well as damages for illegal
retaliation. The action is brought under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. §§ 201
et seq., and the New York Labor Law
("NYLL"). Plaintiff also asserts claims for alleged
violations of other provisions of the NYLL.
alleges that he was employed by defendants as an
administrative assistant/scheduler from February 15, 2013
through December 13, 2014. Plaintiff claims that from
February 2013 through September 2013 his agreed-upon work
schedule was 60 hours per week and he was paid a "flat
rate" wage of $9 per hour for those 60 scheduled hours.
During this period, plaintiff claims that he was generally
required to work 1-3 hours per day beyond his scheduled
shifts, but was not paid for those additional hours.
further alleges that from October 2013 through December 2013
his agreed-upon work schedule was four days a week for ten
hours a day and he was paid a "flat rate" wage of
$9 per hour for those 40 scheduled hours. Plaintiff claims
that during this period, defendants typically required him to
work an additional 1-3 hours per day beyond his scheduled
shifts, but did not pay him for those extra hours.
plaintiff alleges that from January 2014 through October
2014, his agreed-upon work schedule was 11.5 hours per day
for three days a week and that he was paid a "flat
rate" wage of $12 per hour for those 34.5 scheduled
hours. During this period, plaintiff claims that he was
generally required to work an additional 1-3 hours per day,
but was never paid for these hours. Plaintiff further alleges
that when he raised the foregoing wage issues with
defendants, defendants initially retaliated by cutting the
number of hours he worked and subsequently firing him.
addition to his claims for failure to pay the minimum wage,
unpaid overtime premium pay and illegal retaliation,
plaintiff seeks damages under the NYLL for defendants'
alleged failure to pay "spread-of-hours" pay and to
provide plaintiff with a written notice of his regular hourly
rate, overtime rate and other related information. Plaintiff
claims his unpaid wages total approximately $13, 000.00.
Plaintiff alleges that if he is awarded this sum as unpaid
wages, he is also entitled to $26, 000.00 in liquidated
damages and $5, 000.00 for wage notice violations. However,
because plaintiff cannot recover liquidated damages under
both the FLSA and the NYLL, Chowdhury v. Hamza Express
Food Corp., 666 F.App'x 59 60-61(2d Cir. 2016)
(summary order), he can recover a maximum of $13, 000 in
liquidated damages. Additionally, if the case proceeds to
trial, plaintiff may be entitled to recover additional
damages for his retaliation and emotional distress claims,
and, potentially, putative damages. Thus, plaintiff's
maximum possible recovery could exceed $100, 000.00,
exclusive of attorney's fees and costs.
other things, defendants dispute the number of hours
plaintiff claims that he worked and his claim of retaliation.
Defendants deny that plaintiff actually worked the number of
hours he alleges and contend that, in any event, plaintiff is
exempt from the overtime provisions of the FLSA and NYLL.
Additionally, defendants deny that they retaliated against
plaintiff for complaining about not being paid properly.
parties have agreed to a total settlement of $40, 000.00.
Plaintiff is represented by pro bono counsel who has
graciously waived any claim for fees. After $, 046.37 for
counsel's out-of-pocket costs, plaintiff's net
recovery will be $38, 953.63.
Court approval of an FLSA settlement is appropriate
"when [the settlement] [is] reached as a result of
contested litigation to resolve bona fide disputes."
Johnson v. Brennan, No. 10 Civ. 4712, 2011 WL
4357376, at *12 (S.D.N.Y. Sept. 16, 2011). "If the
proposed settlement reflects a reasonable compromise over
contested issues, the court should approve the
settlement." Id. (citing Lynn's Food
Stores, Inc. v. United States, 679 F.2d 1350, 1353 n. 8
(11th Cir. 1982)).
Agudelo v. E & D LLC, 12 Civ. 960 (HB), 2013 WL
1401887 at *1 (S.D.N.Y. Apr. 4, 2013) (Baer, D.J.).
"Generally, there is a strong presumption in favor of
finding a settlement fair, [because] the Court is generally
not in as good a position as the parties to determine the
reasonableness of an FLSA settlement." Lliguichuzhca
v. Cinema 60, LLC, 948 F.Supp.2d 362, 365 (S.D.N.Y.
2013) (Gorenstein, M.J.) (inner quotation marks and citations
omitted). "Typically, courts regard the adversarial
nature of a litigated FLSA case to be an adequate indicator
of the fairness of the settlement." Beckman v.
Keybank, N.A., 293 F.R.D. 467, 476 (S.D.N.Y. 2013)
(Ellis, M.J.), citing Lynn's Food Stores,
Inc. v. United States, 679 F.2d 1350, 1353-54 (11th Cir.
1982). The presumption of fairness in this case is bolstered
by the caliber of the parties' counsel. All parties are
represented by counsel who have demonstrated themselves to be
extremely knowledgeable regarding wage and hour matters and
who are well suited to assess the risks of litigation and the
benefits of the proposed settlement.
Wolinsky v. Scholastic, Inc., 900 F.Supp.2d 332, 335
(S.D.N.Y. 2012), the Honorable Jesse M. Furman, United States
District Judge, identified five factors that are relevant to
an assessment of the fairness of an FLSA settlement:
In determining whether [a] proposed [FLSA] settlement is fair
and reasonable, a court should consider the totality of
circumstances, including but not limited to the following
factors: (1) the plaintiff's range of possible recovery;
(2) the extent to which the settlement will enable the
parties to avoid anticipated burdens and expenses in
establishing their respective claims and defenses; (3) the
seriousness of the litigation risks faced by the parties; (4)
whether the settlement agreement ...