United States District Court, S.D. New York
OPINION & ORDER
WILLIAM H. PAULEY III, District Judge:
Rodriguez brings this action under the Fair Labor Standards
Act (“FLSA”) and New York Labor Law
(“NYLL”) against 3551 Realty Company, Milton
Gordon Management Corporation, and their CEO
(“Defendants”) alleging minimum wage violations,
failure to pay overtime and spread-of-hours pay, illegal
deductions, and retaliation. After the parties reached a
settlement, Rodriguez filed a Rule 41(a) notice dismissing
this action with prejudice. For the following reasons, this
Court declines to grant his request for dismissal.
July 2008 to July 2017, Rodriguez was the superintendent of
Defendants' apartment building located at 3551 DeKalb
Avenue, Bronx, New York. His job entailed cleaning, making
repairs, accepting deliveries, and maintaining vacant units.
According to the Complaint, Defendants regularly failed to
pay Rodriguez minimum wage and overtime, required him to buy
his own tools and work phone, and failed to keep accurate
records of Rodriguez's hours or provide him with wage
notices. Specifically, Rodriguez claims that he worked
“between seventy (70) and ninety (90) hours per week,
” but was not paid the required time and a half for
these extra hours. (Complaint, ECF No. 1 at 6.) Additionally,
Rodriguez alleges that Defendants' CEO retaliated against
him after he complained about his pay.
often occurs in FLSA cases, the parties settled quickly-only
six weeks after the Complaint was filed. On October 11, 2017,
Rodriguez filed a notice of voluntary dismissal with
prejudice. (ECF No. 11.) Because it was with prejudice, this
Court ordered the parties to submit their settlement
agreement and Rodriguez's counsel's billing records.
(Order, ECF No. 13.) See Cheeks v. Freeport Pancake
House, 796 F.3d 199, 206 (2d Cir. 2015)
(“[D]ismissals settling FLSA claims with prejudice
require the approval of the district court or the DOL to take
Olano v. Designs by RJR, Ltd., this Court identified
a laundry list of FLSA settlement provisions that run afoul
of Cheeks. See Olano, 2017 WL 4460771
(S.D.N.Y. Oct. 6, 2017) (noting that the parties'
“Settlement Agreement . . . compile[d] a
‘greatest hits' of various provisions that have
been struck down or questioned by various courts in this
Circuit”); Alison Frankel, Don't even bother
trying to hide wage-and-hour settlements before this N.Y.
judge, Reuters (Oct. 13, 2017),
submission could be “Volume 2” of the greatest
hits of invalid FLSA settlement provisions. First, the
sweeping general release includes claims arising under the
National Labor Relations Act, Title VII, and the Americans
with Disabilities Act, among others. But “an employer
is not entitled to use a FLSA claim . . . to leverage a
release from liability unconnected to the FLSA.”
Thallapaka v. Sheridan Hotel Assoc., 2015 WL
5148867, at *1 (S.D.N.Y. Aug. 17, 2015) (internal citation
and alterations omitted).
especially troubling given that Rodriguez agrees to withdraw
a retaliation charge with the National Labor Relations Board
in connection with this settlement. (Settlement § 12.2.)
The parties try to circumvent this issue by providing in
their settlement agreement that Rodriguez is entitled to file
claims under these statutes, but surrenders any entitlement
to relief. (Settlement § 10.2.) However, “a right
without a remedy has no substance.” Piccard v.
Sperry Corp., 36 F.Supp. 1006, 1010 (S.D.N.Y. 1941).
This Court will not green-light such a provision.
Rodriguez agrees to keep this settlement strictly
confidential. (Settlement § 19.) Courts have held that
such a provision “thwart[s] Congress's intent to
ensure widespread compliance with [FLSA].” Camacho
v. Ess-A-Bagel, Inc., 2015 WL 129723, at *2 (S.D.N.Y.
Jan. 9, 2015) (internal alteration and citation omitted). It
“impedes . . . the goa[l] of the FLSA-to ensure that
all workers are aware of their rights.” Guareno v.
Vincent Perito, Inc., 2014 WL 4953746, at *1 (S.D.N.Y.
Sep. 26, 2014). Similarly, the parties' non-disparagement
provision (Settlement § 18) should contain a
“carve-out for truthful statements about
plaintiffs' experience litigating [his] case.”
See Larrea v. FPC Coffees Realty Co., Inc., 2017 WL
1857246, at *4 (S.D.N.Y. May 5, 2017) (internal citation
parties implicitly acknowledge that these provisions violate
FLSA, as the Settlement explains the “general release
and confidentiality provision(s)” have been negotiated
for Plaintiff's other claims, “separate and
apart” from the FLSA claims. (Settlement § 10.3.)
But the parties have presented a single settlement agreement
and expect this Court to simply accept this unadorned
“[b]efore a court will find a settlement fair and
reasonable, the parties must provide enough information for
the court to examine the bona fides of the dispute. . . . The
employer should articulate the reasons for disputing the
employee's right to a minimum wage or overtime, and the
employee must articulate the reasons justifying his
entitlement to the disputed wages.” Guareno,
2014 WL 4953746, at *1 (internal citation and alterations
omitted); see also Wolinsky v. Scholastic Inc., 900
F.Supp.2d 332, 335 (S.D.N.Y. 2012) (listing considerations
for this inquiry).
parties have not done this. Their assertion that Rodriguez
himself finds the settlement “fair and
reasonable” is insufficient. (Settlement § 11.)
Rodriguez “does not provide an estimate of the wages he
is owed, making it impossible to determine if the settlement
is reasonable.” Guareno, 2014 WL 4953746, at
“[w]here a proposed settlement of FLSA claims includes
the payment of attorney's fees, the court must also
assess the reasonableness of the fee award.”
Thallapaka, 2015 WL 5148867, at *2 (internal
citation omitted). Here, Rodriguez's counsel and
Rodriguez agreed to a 1/3 contingency fee arrangement, and