United States District Court, S.D. New York
OPINION AND ORDER
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE.
Ruben Salustio and Arturo Vivaldo brought this action to
recover unpaid wages, overtime wages, and other damages under
the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
(“FLSA”), and the New York Labor Law, N.Y. Labor
Law § 1 et seq. (“NYLL”). The defendants are
106 Columbia Deli Corporation and Ibrahim Alzubairy. The
Court held a bench trial on June 12, 2017, see
Transcript, filed Aug. 23, 2017 (Docket # 106)
(“Tr.”), and has considered the parties'
pre-trial and post-trial submissions.
Opinion and Order contains the findings of fact and
conclusions of law required by Federal Rule of Civil
brief, plaintiffs claim that they worked for defendants'
delicatessen and were not properly paid under federal and
state labor laws. They claim that they worked more hours than
are reflected on defendants' records; that they were not
paid for overtime work; that defendants did not provide them
with the notices required by the NYLL; and that defendants
failed to pay them “spread of hours” pay as
required by the NYLL. See Pls. Post-trial Mem. at
11-18. Vivaldo, who was a delivery worker for defendants,
additionally claims that defendants improperly used a
“tip-credit” to calculate his hourly wage instead
of paying him at the minimum wage rate. Id. at
further explained below, the Court has subject matter
jurisdiction over plaintiffs' federal claims pursuant to
28 U.S.C. § 1331 and supplemental jurisdiction over
their state law claims under 28 U.S.C. § 1367(a).
Columbia Deli Corp. is a domestic corporation that does
business as a delicatessen called “106 Columbia
Deli” at 945 Amsterdam Avenue in New York, New
York. Pretrial Order at 9. The plaintiffs are
former employees of 106 Columbia Deli Corp. and of Ibrahim
Alzubairy, who was the president and sole shareholder of the
corporation. Id.; Alzubairy: Tr. 48-49. From its
date of incorporation to the date plaintiffs filed this
lawsuit, Alzubairy (1) hired and fired employees; (2)
determined employees' work hours and schedules; (3) paid
employees; and (4) managed and supervised employees,
including the plaintiffs. Pretrial Order at 9.
concede that Vivaldo was not paid the proper overtime rate
per hour. See Defendants Proposed Findings of Fact
and Conclusions of Law, filed Mar. 23, 2017 (Docket # 95),
¶ 51. Also, defendants have not disputed that plaintiffs
were never given written notice of what their hourly wage
would be or on what basis any reductions would be made from
that wage - including, in Vivaldo's case, any “tip
credit” taken - and were not given any written
statements with each week's pay. (Salustio: Tr. 8;
Vivaldo: Tr. 30-31; Alzubairy: Tr. 66-67, 93-94).
next section, we summarize the relevant testimony of each
witness, without making a finding of fact as to the matters
testified to. The findings of fact are contained in section
started working at Columbia Deli as a sandwich preparer in
2007 and stopped working there in August 2014. (Salustio: Tr.
6). He worked at the deli continuously and did not take any
vacations while he worked there. (Id.). He worked 60
hours every week: from 7:00 a.m. to 4:00 p.m. on Mondays,
Tuesdays, Fridays, and Saturdays, and from 7:00 a.m. to 7:00
p.m. on Wednesdays and Thursdays. (Id.). He did not
receive any breaks during the workday. (Salustio: Tr. 7).
Salustio was never asked to record the time at which he
started or ended work, nor shown any time or pay records by
Columbia Deli. (Id.).
was hired by a man named Muhammad, who was his boss from 2007
to 2010. (Salustio: Tr. 15). He first met Alzubairy in 2007,
when Alzubairy was working at Columbia Deli as a cashier.
(Salustio: Tr. 14-15). Alzubairy became Salustio's boss
in 2010. (Salustio: Tr. 16).
December 2010 until his last day at Columbia Deli, Salustio
was paid $10 an hour, in cash. (Salustio: Tr. 7-8). He was
never given a document informing him what his pay would be,
never discussed overtime pay with anyone, and received the
same pay for regular and overtime work. (Salustio: Tr. 8). He
ate lunch and dinner in the store, and while he did not have
to pay for sandwiches, he had to pay $1 for sodas. (Salustio:
worked next to the cash register. (Salustio: Tr. 9). He could
see how much money the deli made by watching how much money
went in and out from the register. (Id.). He
testified the delicatessen made “$4, 000 a day.”
cross-examination, Salustio testified that even though he was
very busy with his work, he could still observe the money
going into the cash register and keep track of the number of
sandwiches sold. (Salustio: Tr. 19-22). He estimated that
about 45 “big” sandwiches were sold each day, for
about $6 each, and that “the sales of sandwiches,
sodas, beer, [and] deliveries” reached the $4, 000
mark. (Salustio: Tr. 21-22). He also testified that he saw
Alzubairy and Muhammad count the money in the cash register
each evening. (Salustio: Tr. 22). He said that he saw them
count the money “two or three times” on the days
when he worked from 7:00 a.m. to 4:00 p.m., but watched the
money being counted every day he worked from 7:00 a.m. to
7:00 p.m. (Salustio: Tr. 23).
cross-examination, Salustio's testimony made clear that
his statement on direct examination that he worked from 7:00
a.m. to 4:00 p.m. on Saturdays was incorrect. He admitted
that between 2010 and 2014 he in fact “used to help
[his] brother-in-law [who had a flower shop] two or three
days”; that on those two or three days he “went
in at 7 a.m. and . . . left at 1 p.m.”; and that those
days occurred “whenever [his brother] needed [him],
” and included Saturdays. (Salustio: Tr. 19).
began working for Columbia Deli as a delivery person in
January 2013, and stopped working there in September 2015,
about four days after Salustio left. (Vivaldo: Tr. 27,
36-37). He applied for the job, along with
Salustio, in December 2012, but Muhammad hired Salustio
instead. (Vivaldo: Tr. 33). He then was hired in 2013 by
Alzubairy. (Vivaldo: Tr. 33-34). He left in 2015 because he
saw Salustio and Muhammad get into an argument at
“Mario Deli” at 106th Street and Amsterdam in New
York, New York, about 20 meters from Columbia Deli, which was
apparently where Salustio was working at a flower shop.
(See Vivaldo: Tr. 37-39). He said that Muhammad was
a supervisor at both Mario Deli and Columbia Deli, and that
he saw this argument while he was retrieving his bicycle from
Mario Deli. (Vivaldo: Tr. 38-39).
shift at Columbia Deli was from 7:00 p.m. to 7:00 a.m., seven
days per week from 2013 to February 2014 and six days per
week from then until September 2015. (Vivaldo: Tr. 28). He
testified that he did not take any breaks while working.
(Vivaldo: Tr. 29). Vivaldo was never asked to record what
time he arrived or when he left work, and was not aware of
any system in place at Columbia Deli by which they kept track
of his hours. (Vivaldo: Tr. 28-29).
Vivaldo was paid $250 per week, plus any tips he received,
but in February 2014 his weekly pay increased to $300.
(Vivaldo: Tr. 29-30). He would receive the same wage even if
he “worked hours beyond [his] typical schedule.”
(Vivaldo: Tr. 30). He was paid in cash, and was never given
any sort of document with his pay, nor any document
explaining his rate of pay. (Id.). He also made a
total of “[a]round 30 to 40 dollars” in tips each
day, both from cash and credit card receipts. (Vivaldo: Tr.
45). No one at Columbia Deli explained to Vivaldo the basis
on which Vivaldo was paid, nor how receiving tips affected
his weekly pay. (Vivaldo: Tr. 30-31). Vivaldo testified that
he ate sandwiches at the store twice a day and drank canned
sodas, and was told that he could have them for free.
(Vivaldo: Tr. 43-44).
would make 20 deliveries per day during the week and about 25
per day on the weekends, with each delivery taking “six
or ten minutes.” (Vivaldo: Tr. 40). Sometimes he would
make multiple deliveries at once, which would take 25 to 40
minutes. (Vivaldo: Tr. 40-41). In addition to his duties as a
delivery person, Vivaldo “dealt with sodas . . .
[brought] ice bags, and [took] out the garbage, ” and
cleaned. (Vivaldo: Tr. 27, 43). He estimated that these
non-delivery tasks took him five or six hours per day, which
he performed while he waited to make deliveries. (Vivaldo:
Tr. 31). However, on cross-examination he testified that the
five-hour figure was actually the total time spent by him and
his coworker, Pedro. (Vivaldo: Tr. 41-43).
was the owner and sole shareholder of 106 Columbia Deli Corp.
from December 2010 until he sold the business in June 2015.
(Alzubairy: Tr. 48-49). He was responsible for the finances
of the business, including the filing of corporate tax
returns and quarterly sales returns. (Alzubairy: Tr. 50). His
business's gross receipts were $214, 011 from December
2010 to November 2011; $289, 372 from December 2011 to
November 2012; $320, 375 from December 2012 to November 2013;
and $374, 461 from December 2013 to November 2014.
(Alzubairy: Tr. 53, 55).
worked at Columbia Deli “10, 12, 14 [hours] on the
weekend if they need me to stay” but was at the store
“mostly during the day.” (Alzubairy: Tr. 56-57).
He hired employees, paid employees, and told employees what
to do - including Vivaldo and Salustio. (Alzubairy: Tr.
57-58). Alzubairy kept written records for his employees
which listed how much he paid them, the dates and how many
hours they worked, and how much time they took for meal
breaks. (Alzubairy: Tr. 57, 59). He explained that he would
write down on a sheet of paper the time that an employee came
to work, and would keep using that piece of paper until
Saturday. (Alzubairy: Tr. 99-100). On Saturday he would then
transfer what was written on that paper to an “employee
time sheet” and throw out the piece of paper.
(Alzubairy: Tr. 100). These employee time sheets were
admitted into evidence. Alzubairy: Tr. 59-60; 65; see
also Exs. B & C (time records for Salustio and
the employee time sheet records, Alzubairy testified that
Salustio worked about 54 hours per week when he started, and
was paid a regular rate of $8.50 per hour and an overtime
rate of $12.75 per hour. (Alzubairy: Tr. 59-60). At some
point Alzubairy gave Salustio a raise, paying him $10 per
hour regular rate and $15 per hour overtime rate. (Alzubairy:
Tr. 60). He said that he was there “most of the
time” when Salustio left for the day, and that Salustio
never worked more than nine hours a day or 54 hours per week.
(Alzubairy: Tr. 60-61). Alzubairy also saw Salustio take a
30-minute break each day and eat lunch and dinner at the
deli, for which he did not have to pay. (Alzubairy: Tr. 61).
also testified that Salustio would “leav[e] a lot and
com[e] back.” (Alzubairy: Tr. 62). He said that
get mad if he had a problem with a customer. . . . [F]or a
small reason[ ], he [would] leave his job. If he fight with a
customer for one sandwich mistake, that's it, I'm not
working, or the next day never show up. . . . I feel sorry
for him, and I know, like, he['s] not doing that, like,
on purpose. So he quit or the next day he don't show up
and go for a month, and after that come back to his job.
(Alzubairy: Tr. 63). This happened “three, four . . .
or five” times, for three months or more. (Alzubairy:
Tr. 96). Alzubairy would rehire Salustio when he returned
(Alzubairy: Tr. 63-64) and the records reflect these periods
where Salustio was absent (Alzubairy: Tr. 63).
Vivaldo, Alzubairy testified that even though the records
said Vivaldo's shift was from 7:00 p.m. to 3:00 a.m., he
actually worked until 4:00 a.m., or 54 hours per week.
(Alzubairy: Tr. 65-66). Alzubairy did not have a clear
explanation for why this mistake occurred, saying “I
think it was in my mind to 3 and[ ] I started doing that all
the time. That's a mistake. But the total, I was right in
the total, in the pay, and I'm sorry for this
mistake.” (Alzubairy: Tr. 101-02).
paid Vivaldo $6 per hour for all hours worked. (Alzubairy:
Tr. 66). He explained:
I called my accountant. I spoke with one of his, what you
call him, the payroll workers and ask[ed] him about delivery.
I know it's different [from] the regular worker. In that
time they told me [$]5.75, then I decided to give him [$]6.
That's okay. So his hour pay was $6.
(Id.). He said that his accountant “didn't
tell [him] about the overtime for the delivery boy” and
he thought he was properly paying Vivaldo because “$6,
plus they making a lot of tip and they [were] doing good with
the tip.” (Id.). He also said that his
accountant never told him anything about written notices,
including for tip credits. (Alzubairy: Tr. 66-67). He said
that he consulted with “payroll persons” once,
and did not do anything else to determine the requirements
for paying delivery workers. (Alzubairy: Tr. 73-74). He did
not specifically know the payroll person's background in
wage and hour laws, but believed the person gave him
competent advice because as an “account office”
and “as an office for employees, they know, they should
know.” (Alzubairy: Tr. 88-89).
knew that Vivaldo made $70-80 in tips each day because of
“the records of the GrubHub, online they have three
companies” that would report tips. (Alzubairy: Tr. 69).
Alzubairy's cashiers would pay out Vivaldo's tips
from these services. (See Alzubairy: Tr. 67).
Vivaldo never worked more than nine hours a day, and
Alzubairy never paid Vivaldo more than $6 an hour.
(Alzubairy: Tr. 69). Alzubairy admitted that “I
didn't pay [Vivaldo] for the extra hours. I didn't
know that for delivery boy you have to do that.”
(Alzubairy: Tr. 73).
said that he was at the store during Vivaldo's shift,
though not usually until the end. (Alzubairy: Tr. 67). He was
sometimes there when Vivaldo took a meal break, but not
always. (Id.). Alzubairy would observe Vivaldo
performing 30 to 40 minutes of nondelivery work such as
cleaning the floor outside and fixing “a little bit
[of] soda.” (Alzubairy: Tr. 74). He had regular
conversations with Vivaldo about pay and hours, beginning
when Vivaldo started working. (Alzubairy: Tr. 67-68). He said
that Vivaldo never complained about his hours or his pay, and
“when he quit and go and work with anybody else, he
[would] come back to the store ...