Case 1:15-cv-00327-CLP Document 115 Filed 04/24/18 Page 1 of 28 PageID #: 1834
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`KUJTIM DEMIROVIC et al.,
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`Plaintiffs,
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`Defendants.
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`POLLAK, United States Magistrate Judge:
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`MEMORANDUM AND ORDER
`15 CV 327 (CLP)
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`-against-
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`FRANKLIN ORTEGA et al.,
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`This action was commenced on January 21, 2015, by plaintiffs Kujtim Demirovic,
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`Richard Reinoso, Murto Avdalovic, and Senad Perovic (collectively, “plaintiffs”) against
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`Franklin Ortega, Rocio Uchofen, and P.O. Italianissimo Ristorante Inc. (the “Restaurant”)
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`(collectively, “defendants”), pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
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`§ 201 et seq., and New York Labor Law (“NYLL”) § 650 et seq. Plaintiffs sought to recover
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`unpaid overtime, minimum wages, and spread-of-hours pay, along with applicable liquidated
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`damages, under both the FLSA and NYLL, as well as damages for defendants’ failure to provide
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`wage notices and retaliation.1 On September 21, 2015, the parties consented to have the case
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`reassigned to the undersigned for all purposes.
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`The Court bifurcated the trial of this matter so that the wage and hour claims under the
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`FLSA and NYLL were presented in the first phase of the trial, while the retaliation claims under
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`those same statutes were presented in a second phase. The first phase of the trial began on
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`1In their Answer filed on March 12, 2015, defendants asserted various counterclaims for
`conversion, fraud, abuse of process, unjust enrichment, defamation, and civil RICO violations,
`which were dismissed by this Court on September 15, 2016. On January 31, 2017, this Court
`also granted the third-party defendants’ motion to dismiss the Third Party Complaint.
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`1
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`October 23, 2017 and continued until October 25, 2017. On October 26, 2017, the jury returned
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`a verdict in favor of the plaintiffs and against the Restaurant and defendant Ortega. The jury,
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`however, found that defendant Uchofen was not an “employer” under the FLSA or NYLL and
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`therefore was not liable for the unpaid wages. In the second phase of the trial, held on October
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`26, 2017, the same jury returned a verdict in favor of the plaintiffs against all defendants,
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`including Uchofen, on plaintiffs’ claims of retaliation.
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`The jury returned its verdicts in the form of special verdicts under Rule 49(a) of the
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`Federal Rules of Civil Procedure. The Court has calculated damages based on the jury’s verdicts
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`as set forth below. The Court also grants plaintiffs’ motion for liquidated damages on the
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`retaliation claims under Section 215 of the New York Labor Law and plaintiffs’ motion for
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`attorney’s fees and costs.
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`DISCUSSION
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`A. Damages Based on the Jury Verdict in Phase One—the Wage Claims Trial
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`The Court submitted special verdict forms that asked the jury to make written findings
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`with respect to specific issues of fact. See Fed. R. Civ. P. 49(a), (b); see also Cash v. County of
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`Erie, 654 F.3d 324, 343 (2d Cir. 2011) (setting forth the framework for interpreting general and
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`special verdicts). In entering judgment based on the jury’s responses to the questions, the Court
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`is mindful of its duty “to attempt to harmonize the answers, if it is possible under a fair reading
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`of them” and “to reconcile the jury’s findings, by exegesis if necessary[.]” Gallic v. Baltimore &
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`Ohio R.R. Co., 372 U.S. 108, 119 (1963).
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`2
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`1. Defendants’ Liability
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`The jury found that, in addition to the Restaurant, Franklin Ortega was plaintiffs’
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`employer within the meaning of the FLSA and the NYLL for the period from January 21, 2009
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`through December 6, 2014. See Murphy v. Healthshare Human Servs. of N.Y., 254 F. Supp. 3d
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`392, 404 (E.D.N.Y. 2017) (explaining that “[c]ourts apply the same horizontal joint employment
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`test under federal and New York labor law”). (See Verdict Sheet I2 at 80). The jury also
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`determined that Rocio Uchofen was not plaintiffs’ employer at any time relevant to this
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`litigation. (See id. at 81). Thus, defendants P.O. Italianissimo Ristorante, Inc. and Franklin
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`Ortega are jointly and severally liable as employers for the damages on plaintiffs’ wage claims,
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`but defendant Rocio Uchofen is not liable as an employer for such. See N.Y. Lab. Law § 651(6);
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`Drozd v. Vlaval Constr., Inc., No. 09 CV 5122, 2011 WL 9192036, at *5-7 (E.D.N.Y. Oct. 18,
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`2011), adopted, 2012 WL 4815639 (Oct. 10, 2012).
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`2. The Wage Claims: Legal Standards
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`a. Minimum Wage Claims
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`As indicated on the verdict form, the jury found that the Restaurant and defendant Ortega
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`had failed to pay each of the plaintiffs proper minimum wages in violation of the FLSA and
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`NYLL. An employer who fails to meet minimum wage obligations under the FLSA and the
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`NYLL “shall be liable to the employee or employees affected in the amount of their unpaid
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`minimum wages . . . and in an additional equal amount as liquidated damages.” 29 U.S.C.
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`§ 216(b); see N.Y. Lab. Law § 663(1). Here, the plaintiffs claimed and the jury found that, other
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`2 Citations to “Verdict Sheet I” refer to the first Verdict Sheet completed by the jury with
`respect to plaintiffs’ wage claims in the first phase of the trial, dated October 26, 2017, ECF No.
`92.
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`3
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`than tips and gratuities, plaintiffs were not paid any wages for their services.3 (See Verdict Sheet
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`I at 2, 23, 43, 64). Thus, based on the jury’s findings, plaintiffs were owed minimum wages for
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`every hour worked during the relevant employment period.
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`In determining the wages owed based on the hours the jury found that each plaintiff had
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`worked, the Court considered the applicable minimum wage rates in effect under the FLSA and
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`NYLL during each plaintiff’s period of employment. Both statutes specify that, where the other
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`prescribes a higher minimum wage rate, the statute containing the higher wage rate shall control.
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`See 29 U.S.C. § 218(a); N.Y. Lab. Law § 652(1) (McKinney 2016). In this case, the wage rates
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`provided by the NYLL were higher throughout plaintiffs’ employment; therefore, the Court uses
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`the rates prescribed under the NYLL as the applicable minimum wage rate for each relevant
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`period.
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`Thus, in calculating the wages owed to each plaintiff, the Court has used the following
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`minimum wage rates prescribed by the NYLL for each of the relevant time periods as follows:
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`(1) $7.15 per hour from January 21, 2009 to July 23, 2009; (2) $7.25 per hour for the period from
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`July 24, 2009 to December 30, 2013; and (3) $8.00 an hour for the period from December 31,
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`3 Since defendants failed to comply with the tip credit requirements under the NYLL and
`FLSA, defendants were not authorized to deduct the amounts received by the plaintiffs in tips
`and gratuities when calculating the amounts of wages owed. See, e.g., 29 U.S.C. § 203(m); 29
`C.F.R. § 531.59(b)(explaining that “an employer is not eligible to take the tip credit unless it has
`informed its tipped employees in advance of the employer’s use of the tip credit of the provisions
`of [29 U.S.C. § 3(m)]” and that “[i]n order for the employer to claim the maximum tip credit, the
`employer must demonstrate that the employee received at least that amount in actual tips”); N.Y.
`C.C.R.R. § 146-1.3 (providing that an employer may take a tip credit if the employee “receives
`enough tips and if the employee has been notified of the tip credit as required”); Camara v.
`Kenner, No. 16 CV 7078, 2018 WL 1596195, at *11 (S.D.N.Y. Mar. 29, 2018) (summarizing the
`requirements under the NYLL and FLSA). (See n.4 infra).
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`4
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`2013 to the end of plaintiffs’ employment. See N.Y. Lab. L. § 652(1); 12 N.Y. C.C.R.R. § 137-
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`1.2(e) (2009).4
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`b. Overtime Claims
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`Under both the FLSA and NYLL, an employee is entitled to overtime pay, calculated at
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`one and one-half times the employee’s regular hourly rate, for hours worked in excess of 40 in
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`one work week. See 29 U.S.C. § 207(a)(2)(C); N.Y. Lab. Law § 663(3); 12 N.Y. C.C.R.R.
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`§ 146-1.4. The jury found that three of the plaintiffs, Demerovic, Reinoso, and Perovic, worked
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`more than 40 hours per week and thus were entitled to receive unpaid overtime wages for the
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`hours worked over 40 in a week.5 The method for calculating overtime under both the FLSA
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`and NYLL is the same. Even if the plaintiffs are owed overtime wages in violation of both the
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`FLSA and the NYLL, they are not entitled to recover double damages. See Janus v. Regalis
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`Constr., Inc., No. 11 CV 5788, 2012 WL 3878113, at *7 (E.D.N.Y. July 23, 2012), adopted,
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`2012 WL 3877963 (E.D.N.Y. Sept. 4, 2012).
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`The FLSA provides that overtime pay should be calculated based on the employee’s
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`4 Defendants argue that although the jury was charged on the regular minimum wage rate,
`each plaintiff testified that he worked as a server and thus “equity dictates that the servers’
`minimum wage should apply.” (11/2/2017 Behrins Decl. at 1, ECF No. 103). The defendants
`waived any such argument by failing to object to the jury instructions that contained the standard
`minimum wage and by failing to request an instruction as to the tip credit. See, e.g., Fed. R. Civ.
`P. 51(c); Cash v. County of Erie, 654 F.3d at 340 (explaining that failure to object on the record
`as required under Rule 51(c) results in waiver). Even if the argument had not been waived, the
`defendants cite no authority in support of their position, nor could they: the tip credit is an
`affirmative defense that the defendants did not raise, on which the jury was not instructed, and as
`to which the defendants adduced no evidence. See, e.g., Martinez v. Alimentos Saludables
`Corp., No. 16 CV 1997, 2017 WL 5033650, at *22 n.12 (E.D.N.Y. Sept. 22, 2017) (explaining
`that the tip credit is an affirmative defense upon which the defendants bear the burden of proof).
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`5 Plaintiff Avdalovic did not allege a claim for unpaid overtime (see Am. Compl. ¶¶ 62-
`63, 141, Mar. 23, 2015, ECF No. 10), and the portions of the verdict sheet pertaining to him did
`not ask the jury to make findings with respect to overtime. (See Verdict Sheet I at 23-41).
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`5
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`regular rate of pay or the minimum wage, whichever is greater. See 29 U.S.C. § 207; 29 C.F.R.
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`§ 778.107. New York law also requires that employees be compensated at “one and one-half
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`times the employee’s regular rate of pay” and provides that the regular rate should be calculated
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`“in the manner and methods provided in” the FLSA. 12 N.Y. C.C.R.R. § 142-2.2.
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`Under the Code of Federal Regulations, when state law provides for a higher minimum
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`wage than that set by the FLSA, the higher rate applies not only for purposes of determining
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`minimum wages but also for calculating overtime rates. 29 C.F.R. § 778.5; see Santana v. Latino
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`Express Restaurants, Inc., No. 15 CV 4934, 2016 WL 4059250, at *4 (S.D.N.Y. July 28, 2016)
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`(calculating overtime wages due to plaintiff under both the FLSA and NYLL by using the state
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`minimum wage rate); Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 126 (E.D.N.Y.
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`2011) (explaining that “[u]npaid overtime wages are calculated by multiplying the New York
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`minimum wage rate or the FLSA minimum wage rate, whichever is higher, by 0.5 to determine
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`the additional amount owed per hour over 40 hours worked”).
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`Thus, using the NYLL’s minimum wage rates in effect at the time of plaintiffs’
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`employment, the Court has calculated the proper overtime rates as follows: (1) $10.725 per hour
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`from January 21, 2009 to July 23, 2009; (2) $10.875 per hour for the period from July 24, 2009
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`to December 30, 2013; and (3) $12.00 an hour for the period from December 31, 2013 to the end
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`of plaintiffs’ employment
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`c. Spread of Hours Pay Claims
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`The jury also found that plaintiffs were entitled to receive spread-of-hours pay under the
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`NYLL. Under the NYLL, an employee is entitled to earn an additional hour of pay at the
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`minimum wage for each day on which that employee works more than ten hours. 12 N.Y.
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`6
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`C.C.R.R. § 146-1.6(a). That compensation is calculated at the applicable minimum wage
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`“regardless of a given employee’s regular rate of pay.” Id. § 146-1.6(d).
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`3. The Amounts Owed to Each Plaintiff
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`a. Kujtim Demirovic
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`The jury found that plaintiff Demirovic was never paid wages for the hours he worked at
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`the Restaurant; he was only compensated through tips or other gratuities. (See Verdict Sheet I at
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`2). The jury also found that Mr. Demirovic never received overtime wages for any hours over 40
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`that he worked in a given week and he did not receive spread-of-hours pay on days when he
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`worked more than ten hours in one day. (See id. at 2-3, 5-21). The jury further determined that
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`from January 21, 2009 to December 31, 2011, Mr. Demirovic worked 55 hours per week and that
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`he worked more than 10 hours in a day on five days each week. (Id. at 5-13). The jury found
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`that from January 1, 2012 through April 12, 2014, Mr. Demirovic worked 40 hours per week and
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`worked more than ten hours a day for two days per week. (Id. at 13-19). For the period from
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`April 13, 2014 through May 3, 2014, the jury found that Mr. Demirovic worked 40 hours per
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`week and worked more than ten hours a day for four days each week. (Id. at 20). Finally, the
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`jury found that from May 4, 2014 through December 6, 2014, Mr. Demirovic worked 29 hours
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`per week and worked more than ten hours a day for two days each week. (Id. at 20-21).
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`The verdict sheet directed the jury to determine the number of days each employee
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`normally would have worked but did not work due to vacation days, sick days, inclement
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`weather, and other days off. (See id. at 3). The jury was instructed not to deduct those days off
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`from their responses regarding the number of hours worked per week because “[t]he Court will
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`account for days off and other time listed in [the jury’s] answer[.]” (Id. at 4). The jury found
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`that Mr. Demirovic did not work on 15 days in 2009, 19 days in 2010 (including 15 days for
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`Hurricane Irene), 5 days in 2011, 20 days in 2012 (including 15 days for Hurricane Sandy), 5
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`days in 2013, and 5 days in 2014. (Id. at 3).
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`To calculate damages based on the jury’s verdict, the Court first subtracted the days the
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`jury found that Mr. Demirovic did not work from the total number of days that the jury found he
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`had worked. Then, after applying the applicable minimum and overtime wage rates to the jury’s
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`determination of the number of hours Mr. Demirovic worked, the Court calculated that Mr.
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`Demirovic is entitled to wages in the total amount of $114,991.75. That award consists of
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`$83,589.75 in regular wages, $23,755.50 in overtime wages, and $7,646.50 in spread-of-hours
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`wages.6
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`b. Murto Avdalovic
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`The jury found that plaintiff Avdalovic was never paid wages for the hours he worked at
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`the Restaurant; like Mr. Demirovic, he only received tips or other gratuities. (See Verdict Sheet
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`I at 23). The jury also found that Mr. Avdalovic did not receive spread-of-hours pay on days
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`when he worked more than ten hours in one day. (See id. at 23, 25-41). The jury further
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`determined that from January 21, 2009 through December 6, 2014, Mr. Avdalovic worked 29
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`hours per week and that he worked more than 10 hours in a day once each week. (Id. at 25-41).
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`Mr. Avdalovic did not bring a claim for overtime.
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`The verdict sheet directed the jury to determine the number of days Mr. Avdalovic
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`normally would have worked but did not work due to vacation days, sick days, inclement
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`6 Where the jury did not indicate specific weeks in which each plaintiff took time off, the
`Court deducted the time off from the last full week in a given year. See Fed. R. Civ. P. 49(a)(3)
`(explaining that if a party does not demand submission of an issue to the jury, then the party
`waives the right to jury trial on that issue and “the court may make a finding on the issue”). The
`Court’s detailed calculations are appended as exhibits to this Opinion. (See nn.13-16, infra).
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`weather, and other days off. (See id. at 24). The jury was instructed not to deduct those days off
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`from their responses regarding the number of hours worked per week because “[t]he Court will
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`account for days off and other time listed in [the jury’s] answer[.]” (Id. at 24). The jury found
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`that Mr. Demirovic took 2 days off in 2009, 2 days in 2010, 2 days in 2011, 8 days in 2012, 2
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`days in 2013, and 2 days in 2014. (Id.)
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`To calculate damages based on the jury’s verdict, the Court first subtracted the days the
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`jury found that Mr. Avdalovic did not work from the total number of days worked. Then, after
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`applying the applicable minimum wage rates to the jury’s determination of the number of hours
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`Mr. Avdalovic worked, the Court calculated that Mr. Avdalovic is entitled to wages in the total
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`amount of $66,562.50. That award consists of $64,317.20 in regular wages and $2,245.30 as
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`spread-of-hours wages.
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`c. Senad Perovic
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`The jury found that plaintiff Perovic received only tips or gratuities and was never paid
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`wages for the hours he worked at the Restaurant. The jury also found that he never received
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`proper overtime wages or spread-of-hours pay. (See Verdict Sheet I at 43-44, 46-62). The jury
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`further found that from January 21, 2009 to December 6, 2014, Mr. Perovic worked 55 hours per
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`week and worked more than 10 hours in a day on four days each week. (Id. at 46-62).
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`The verdict sheet directed the jury to determine the number of days Mr. Perovic normally
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`would have worked but did not work due to vacation days, sick days, inclement weather, and
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`other days off. (See id. at 44). The jury was instructed not to deduct those days off from their
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`responses regarding the number of hours worked per week because “[t]he Court will account for
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`days off and other time listed in [the jury’s] answer[.]” (Id. at 45). The jury found that Mr.
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`Perovic did not work on 3 days in 2009, 3 days in 2010, 3 days in 2011, 18 days in 2012
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`(including 15 days for Hurricane Sandy), 8 days in 2013, and 3 days in 2014. (Id. at 44).
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`To calculate damages based on the jury’s verdict, the Court first subtracted the days the
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`jury found that Mr. Perovic did not work from the total number of days worked. Then, after
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`applying the applicable minimum and overtime wage rates to the jury’s determination of the
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`number of hours Mr. Perovic worked and the spread-of-hours rate to the number of days the jury
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`determined Mr. Perovic worked more than ten hours in one day, the Court calculated that Mr.
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`Perovic is entitled to wages in the total amount of $146,268.83. That award consists of
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`$88,302.75 in regular wages, $49,197.38 in overtime wages, and $8,768.70 in spread-of-hours
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`wages.
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`d. Richard Reinoso
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`The jury found that plaintiff Reinoso was never paid wages for the hours he worked at the
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`Restaurant; he received only tips or other gratuities, and he never received proper overtime
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`wages or spread-of-hours pay. (See Verdict Sheet I at 64-65, 67-77). The jury further found that
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`from May 10, 2011 to December 6, 2014, Mr. Reinoso worked 54 hours per week and worked
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`more than 10 hours in a day on four days each week. (Id. at 67-77).
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`The verdict sheet directed the jury to determine the number of days Mr. Reinoso
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`normally would have worked but did not work due to vacation days, sick days, inclement
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`weather, and other days off. (See id. at 65). They were instructed not to deduct those days off
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`from their responses regarding the number of hours worked per week because “[t]he Court will
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`account for days off and other time listed in [the jury’s] answer[.]” (Id. at 66). The jury found
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`that Mr. Reinoso did not work on 5 days in 2011, 20 days in 2012 (including 15 days for
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`Hurricane Sandy), 5 days in 2013, and 5 days in 2014. (Id. at 65).
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`To calculate damages based on the jury’s verdict, the Court first subtracted the days the
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`jury found that Mr. Reinoso did not work from the total number of days worked. Then, after
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`applying the applicable minimum and overtime wage rates to the jury’s determination of the
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`number of hours Mr. Reinoso worked and the spread-of-hours rate to the number of days the jury
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`determined Mr. Reinoso worked more than ten hours in one day, the Court has calculated that
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`Mr. Reinoso is entitled to wages in the total amount of $87,165.00. That award consists of
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`$53,640.00 in regular wages, $28,161.00 in overtime wages, and $5,364.00 in spread-of-hours
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`wages.
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`e. Summary
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`The amounts owed to each plaintiff in unpaid minimum wages, overtime, and spread-of-
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`hours compensation is summarized below:
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`Regular Wages
`Overtime Wages
`Spread of Hours
`TOTAL
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`
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`Demirovic
`$83,589.75
`$23,755.50
`$7,646.50
`$114,991.75
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`Avdalovic
`$64,317.20
`$0.00
`$2,245.30
`$66,562.50
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`Perovic
`$88,302.75
`$49,197.38
`$8,768.70
`$146,268.83
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`Reinoso
`$53,640.00
`$28,161.00
`$5,364.00
`$87,165.00
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`4. Wage Theft Prevention Act Claims
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`The jury also found that the Restaurant and defendant Ortega had failed to provide
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`plaintiff Reinoso with a proper rate of pay notification and failed to provide all of the plaintiffs
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`with proper wage statements as required by the NYLL.
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`Section 195 of the NYLL, enacted as part of the Wage Theft Prevention Act, requires
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`employers to furnish employees with two different notices. See N.Y. Lab. Law § 195; Piedra v.
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`Ecua Rest., Inc., No. 17 CV 3316, 2018 WL 1136039, at *14-15 (E.D.N.Y. Jan. 31, 2018),
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`adopted, 2018 WL 1135652 (Feb. 28, 2018). First, an employer is required to provide written
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`notice of certain wage information at the time of hiring. See N.Y. Lab. Law § 195(1)(a).
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`Second, an employer must furnish each employee with a wage statement containing specified
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`information each time an employee is paid wages. See id. § 195(3).
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`a. Rate of Pay Notifications
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`Prior to April 9, 2011, Section 195(1) of the NYLL required an employer to “notify his or
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`her employees, in writing, at the time of hiring of the rate of pay and of the regular pay day
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`designated by the employer.” N.Y. Lab. Law § 195(1), 2009 N.Y. Laws ch. 270 § 1 (effective
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`Oct. 26, 2009) (amended by 2010 N.Y. Laws ch. 564 § 3). For employees eligible to receive
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`overtime compensation, the notices were required to state both the “regular hourly rate and
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`overtime rate of pay.” Id. Despite imposing this statutory duty on employers, the NYLL did not
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`provide any remedy for employees who did not receive the required notice before April 9, 2011.7
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`Martinez v. Alimentos Saludables Corp., No. 16 CV 1997, 2017 WL 5033650, at *18 (E.D.N.Y.
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`Sept. 22, 2017), adopted by Slip Op. (Oct. 18, 2017).
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`Effective April 9, 2011, Section 195(1) was amended to add a subsection (a), which
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`provides that an employer must:
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`[P]rovide his or her employees, in writing in English and in the
`language identified by each employee as the primary language of
`such employee, 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 the following information: the rate or
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`7 For this reason, the three plaintiffs who began working for the Restaurant before April
`9, 2011—Kujtim Demirovic, Murto Avdalovic, and Senad Perovic—are not eligible for statutory
`damages for violations of Section 195(1) and the jury was not asked to answer an interrogatory
`on this issue with respect to them. Only Richard Reinoso, who began working for the Restaurant
`in May 2011, is eligible to recover statutory damages for violations of Section 195(1), and it is
`only with respect to him that a question on this issue was submitted to the jury. (See Jury
`Verdict I at 78).
`
`
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`
`rates of pay and basis thereof, whether paid by the hour, shift, day,
`week, salary, piece, commission or other; allowances, if any,
`claimed as part of the minimum wage, including tip, meal, or
`lodging allowances; the regular pay day designated by the employer
`in accordance with section one hundred ninety-one of this article;
`the name of the employer; any “doing business as” names used by
`the employer; the physical address of the employer’s main office or
`principal place of business, and a mailing address if different; the
`telephone number of the employer; plus such other information as
`the commissioner deems material and necessary. . . . For all
`employees who are not exempt from overtime compensation as
`established in the commissioner’s minimum wage orders or
`otherwise provided by New York state law or regulation, the notice
`must state the regular hourly rate and overtime rate of pay.
`
`N.Y. Lab. Law § 195(1)(a), 2010 N.Y. Laws ch. 564 § 3 (effective Apr. 9, 2011) (amended by
`
`2014 N.Y. Laws ch. 537 § 1); see also Martinez v. Alimentos Saludables Corp., 2017 WL
`
`5033650, at *18; Franco v. Jubilee First Ave. Corp., No. 14 CV 7729, 2016 WL 4487788, at *13
`
`(S.D.N.Y. Aug. 25, 2016). This wage notice provision is enforced through Section 198(1-b).
`
`
`
`Section 198(1-b) provides that if an employee is not provided with the wage notice
`
`required by Section 195(1)(a) within ten days of his or her date of hire, the employee is entitled
`
`to recover statutory damages for the violation. N.Y. Lab. Law § 198(1-b) (effective Feb. 27,
`
`2015). Currently, the statute provides for damages in the amount of $50 per day that the
`
`violation occurred or continued to occur, up to a maximum of $5,000. Id. From April 9, 2011
`
`through February 26, 2015, however, Section 198(1-b) provided for statutory damages of $50 per
`
`week, up to a maximum of $2,500. See N.Y. Lab. Law § 198(1-b) (effective Apr. 9, 2011).
`
`Plaintiffs do not seek retroactive application of the $5,000 maximum. (See, e.g., Pls.’ Damages
`
`Calculations at 5, Nov. 2, 2017, ECF No. 102). Moreover, this Court has previously held that the
`
`amendment should not be given retroactive effect. Martinez v. Alimentos Saludables Corp.,
`
`2017 WL 5033650, at *21 n.11.
`
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`b. Wage Statements
`
`
`
`Section 195(3) requires that every employer provide to his or her employees “a statement
`
`with every payment of wages,” listing various information including the dates of work covered
`
`by the payment, information identifying the employer and employee, details regarding the rate of
`
`pay and the overtime rate of pay, and the number of hours worked. N.Y. Lab. Law § 195(3).
`
`From April 9, 2011 through the end of plaintiffs’ employment,8 an employee could recover $100
`
`for each work week that the employer violated Section 195(3) by failing to provide wage notices,
`
`up to a statutory maximum of $2,500.00. See N.Y. Lab. Law § 198(1-d) (effective April 9,
`
`2011). The statutory duty, and thus the attendant statutory damages, applies each time the
`
`employer pays wages, and an employee’s hiring date therefore does not affect entitlement to
`
`damages for wage statement violations after the statute’s effective date.
`
`The jury found that none of the four plaintiffs were ever provided with wage statements
`
`or paystubs containing the information required by Section 195(3) of the New York Labor Law.
`
`(See Verdict Sheet I at 22, 42, 63, 67-77). Based on the number of weeks the jury found each
`
`plaintiff to have worked, which far exceeds 50 weeks in each instance, the Court has calculated
`
`that each plaintiff is entitled to statutory damages in amount of the $2,500.00, the statutory
`
`maximum. See N.Y. Lab. Law § 198(1-d) (effective April 9, 2011).
`
`The jury also found that Mr. Reinoso was not provided with the written notice containing
`
`the information required by Section 195(1) when he was hired. (See Verdict Sheet I at 78).
`
`Since he entered employment after April 9, 2011, Mr. Reinoso is entitled to statutory damages in
`
`the amount of $50.00 per work week that the violation continued. See N.Y. Lab. Law § 198(1-b)
`
`
`8 From February 27, 2015 onward, an employee could recover $250 for each work day
`that the employer was in violation of Section 195(3), up to a statutory maximum of $5,000.00.
`See N.Y. Lab. Law § 198(1-d) (effective February 27, 2015).
`
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`Case 1:15-cv-00327-CLP Document 115 Filed 04/24/18 Page 15 of 28 PageID #: 1848
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`(effective Apr. 9, 2011). Mr. Reinoso worked for more than 50 weeks without being provided
`
`the required notice, and therefore he is entitled to statutory damages in the amount of $2,500.00,
`
`the maximum amount allowed under the statute in effect at the time. See id. (See also Verdict
`
`Sheet I at 67-77).
`
`5. Liquidated Damages – Wage Claims
`
`Under both the FLSA and NYLL, an employee who is not paid his or her minimum wage
`
`or overtime compensation is entitled to recover an award of liquidated damages in an amount
`
`equal to his unpaid wages, 29 U.S.C. § 216(b); N.Y. Lab. Law §§ 198(1-a), 663(1), unless the
`
`employer can demonstrate that he or she acted in good faith and had reasonable grounds for
`
`believing that the act or omission in proper payment was in compliance with the law. See
`
`Jemine v. Dennis, 901 F. Supp. 2d 365, 388 (E.D.N.Y. 2012) (citing 29 U.S.C. §§ 216(b), 260);
`
`see also Piedra v. Ecua Rest., Inc., 2018 WL 1136039, at *15; Gold v. N.Y. Life Ins. Co., 730
`
`F.3d 137, 144 (2d Cir. 2013) (holding that “[a]s of November 24, 2009, an employee was
`
`entitled to NYLL liquidated damages ‘unless the employer proves a good faith basis for
`
`believing that its underpayment of wages was in compliance with the law’”).
`
`The first Verdict Sheet asked the jury to answer the following question: “Have the
`
`defendants proven by a preponderance of the evidence that they had a good faith basis to believe
`
`any underpayment of wages to the plaintiffs during their employment was in compliance with the
`
`law?” (Verdict Sheet I at 81). The jury responded “yes.” (Id.) The Court is bound by the jury’s
`
`finding of good faith as to this issue, and therefore plaintiffs are not entitled to an award of
`
`liquidated damages on their wage claims.
`
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`6. Prejudgment Interest
`
`a. Legal Standard
`
`Plaintiffs are entitled to prejudgment interest on damages awarded for unpaid wages
`
`under the NYLL calculated at a rate of 9% per year pursuant to New York law. See N.Y. Lab.
`
`Law § 663(1); N.Y. C.P.L.R. § 5004; Galeana v. Lemongrass on Broadway Corp., 120 F. Supp.
`
`3d 306, 321-22 (S.D.N.Y. 2014). The Second Circuit has held that, because liquidated damages
`
`and prejudgment interest are not functional equivalents under the NYLL, prevailing plaintiffs
`
`may recover both for claims brought under the NYLL. Reilly v. Natwest Mkts. Grp. Inc., 181
`
`F.3d 253, 265 (2d Cir. 1999). Where plaintiffs receive damages under both the FLSA and the
`
`NYLL, prejudgment interest