Krawitz v. Five Below, Inc., 2:22-cv-02253

Plaintiffs Spencer Krawitz and Cassandra Rodriguez allege Five Below violated N.Y. Lab. Law §191 by paying wages bi‑weekly instead of weekly, seeking to represent a New York statewide class for the prior six years.
Plaintiffs allege at least 25% of their duties were "manual labor" (cleaning, stocking, unpacking, processing transactions, removing garbage).
Plaintiffs seek statutory and liquidated damages under N.Y. Lab. Law §198(1‑a) for untimely wage payments.
Five Below moved to dismiss under Fed. R. Civ. P. 12(b)(1), arguing (1) §191 does not afford a private right of action, (2) plaintiffs lack Article III standing, (3) plaintiffs are not manual workers, and (4) class allegations are deficient.
The court denied the motion in full, holding Vega and subsequent Second Circuit district decisions control, plaintiffs adequately pleaded standing and manual‑worker status at the pleading stage, and class challenges are premature.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §191/§198(1‑a) provides a private right of action for pay‑frequency claims	Vega establishes an express private right via §198(1‑a) for §191 violations	§198 does not create an express/private remedy for §191; enforcement lies with NY DOL; legislative history and Konkur counsel against a private action	Court follows Vega and circuit precedent: private right exists under §191 enforced via §198(1‑a); rejects defendant's contrary arguments
Article III standing for statutory late‑pay claim	Temporary deprivation of wages (delayed receipt) is a concrete economic injury	Alleged statutory violation alone is insufficient to show concrete harm	Court finds concrete injury from temporary deprivation of wages sufficient for standing
Whether plaintiffs qualify as “manual workers” under §191 (25% physical labor)	Allegations that ≥25% of duties were physical (specific tasks pleaded) satisfy definition	Plaintiffs’ titles/duties insufficient; dispute requires individualized inquiry	Court holds pleaded factual description is sufficient at pleading stage to allege manual‑worker status
Class allegations / motion to strike at Rule 12 stage	Class definition adequate; commonality and predominance to be addressed at certification	Class fails commonality/predominance; court should strike class now to avoid discovery burden	Court deems class‑challenge premature; denies motion to strike and reserves issues for class certification

Vega v. CM & Assocs. Constr. Mgmt., LLC, 175 A.D.3d 1144 (N.Y. App. Div. 1st Dep't 2019) (holds §198(1‑a) permits private actions for §191 pay‑frequency violations, allowing liquidated damages even if wages later paid)
Konkur v. Utica Acad. of Sci. Charter Sch., 38 N.Y.3d 38 (N.Y. 2022) (New York Court of Appeals decision cited by defendant; court here finds Konkur does not overturn Vega on §191 private remedies)
Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) (standard for Rule 12(b)(1) subject matter jurisdiction motions)
Levy v. Endeavor Air Inc., 638 F. Supp. 3d 324 (E.D.N.Y. 2022) (E.D.N.Y. decision applying Vega and rejecting arguments that Vega should be disregarded)