F&W’s client operates a limousine company. According to the plaintiff in the case, he alleged that the company did not pay its drivers proper overtime for the hours he, and other employees, worked over 40 in a week. The plaintiff further alleged that the company collected gratuities from its customers and told the customers that the tips would be given to the drivers, but that the company then kept the tips, instead of paying them to the drivers. Additionally, the plaintiff alleged his pay stubs did not meet the requirements of the New York Labor Law’s Wage Theft Prevention Act (WTPA). The plaintiff attempted to bring his claims as a class action, on behalf of himself and all of the limousine company’s drivers.

F&W partner and Long Island employment lawyer Matt Weinick filed a motion on behalf of the limousine company seeking to dismiss the lawsuit in its entirety. Among other things, Weinick argued that the plaintiff’s last pay stub proved he was paid properly, that the overtime claim was otherwise not sufficiently stated and supported by facts in the complaint, that the allegations relating to the tip issue were not sufficiently stated in the complaint, and that since those claims failed, the wage statement claim was also required to be dismissed under the law.

On September 15, 2017, Supreme Court Justice Randy Sue Marber granted the motion to dismiss the case. The Court agreed that the plaintiff’s complaint failed to state sufficient facts to support his claim about unpaid overtime. Additionally, the Court determined that the plaintiff did not rebut the information about his overtime pay reflected by his pay stub, which Weinick submitted to the Court. On the tip claim, the Court also agreed with Weinick that the plaintiff “merely sets forth the elements of the claim” without stating facts which supported the claim. Finally, the Court also agreed that dismissal of the wage statement claim was appropriate based on the affirmative defense in the Labor Law that the plaintiff must show a wage payment violation first, and that he failed to do so.

In sum, F&W successfully defeated a plaintiff’s attempt to bring a class action wage and hour lawsuit against its client. The firm obtained the result early in the case, saving the client from significant litigation costs.

If you have questions about class actions or unpaid wage, overtime, or tip cases, contact a Long Island employment lawyer at Famighetti & Weinick, PLLC at 631-352-0050 or visit our website at https://www.linycemploymentlaw.com.

Judge Recommends Answer Be Stricken and Default Entered

In the gas station case, F&W filed a lawsuit to which the defendants appeared in and submitted a response, called an answer. However, in the course of the lawsuit, the defendants or their lawyer failed to obey court orders, failed to respond to motions, and failed to participate in the discovery process. Further, after F&W filed an “amended complaint,” which sought to add a defendant, the defendants failed to respond to the amended complaint by submitting an answer. Magistrate Judge Shields recommended that the defendants’ existing answer be stricken and that a default judgment be entered against all the defendants because of their exhibited “willful” failure to defend themselves in the lawsuit.

Failure to Pay Overtime

The Fair Labor Standards Act and the New York Labor Law require that employers pay employees one and one half times the employee’s regular rate of pay for each hour that the employee works over 40 in a week. In F&W’s gas station case, the plaintiff worked 75 hours per week for nearly a year. The plaintiff alleged that he was not paid overtime for the 35 hours per week that he worked over 40. The Judge agreed and recommended that the plaintiff be paid $8,190 in actual damages and $8,190 in liquidated damages.

Wage Statements and Wage Notices

New York’s Wage Theft Prevention Act requires that employers provide written notice to employees of their wage amounts upon hire and provide wage statements detailing hours and pay rates at each pay period. The law provides that employers must pay statutory damages to employees when the law is violated. In the gas station case, Magistrate Judge Shields determined that the plaintiff was not provided any of the notices or statements required under the law and so he was entitled to statutory damages totaling $14,000.

Attorneys Fees

Both the New York Labor Law and the Fair Labor Standards Act allow attorneys to be awarded fees when they successfully represent clients in cases alleging violations of the laws. To determine the fees to be awarded, courts first determine the reasonable hourly rates for the attorneys who worked on the case, and then the court determines the reasonable amount of hours for attorneys to have worked on the case.

In the gas station, Magistrate Judge Shields determined that $350 per hour is a reasonable hourly rate for Long Island employment lawyers Matthew Weinick and Peter J. Famighetti. The Judge further determined that the amount of time they recorded as having worked on the case was reasonable. By multiplying the hourly rate by the number of hours, the Court recommended that F&W be awarded $11,970 in attorneys’ fees.

Long Island Wage and Hour lawyers

Magistrate Judge Shields’s order will be sent to District Judge Arthur D. Spatt for review. The plaintiff and defendant will have an opportunity to object to Magistrate Judge Shields’s recommendation, and then Judge Spatt will issue an order.

If you have questions about unpaid wages or overtime, contact the Long Island employment lawyers of Famighetti & Weinick, PLLC at 631-352-0050 or visit our website at https://www.linycemploymentlaw.com.