Kress v. Bigsky Technologies, LLC
6:15-cv-06430
W.D.N.Y.Aug 4, 2016Background
- Plaintiff Robert Kress sued Bigsky Technologies, LLC and individual defendants Cathy Fleischer and Michael Duffy under the FLSA and NYLL, alleging unpaid overtime and failures to provide statutorily required wage notices/statements.
- The district court previously dismissed the original complaint but allowed Kress to amend; Kress filed an Amended Complaint alleging more specific facts about Fleischer and Duffy.
- Amended factual allegations: Fleischer and Duffy are owners; they personally hired and fired Kress; they supervised him, were regularly present at the workplace, gave specific job and schedule instructions, and discussed his pay.
- Defendants moved to dismiss claims against Fleischer and Duffy (arguing they are not FLSA "employers") and to dismiss NYLL wage-notice/statement claims.
- Court evaluated individual liability under the FLSA/NYLL using the "economic reality" factors (hire/fire power, supervision, compensation control, records) and considered statutory timing issues under the Wage Theft Prevention Act (WTPA).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fleischer and Duffy qualify as "employers" under the FLSA/NYLL | Kress alleges Fleischer and Duffy owned Bigsky, hired and fired him, supervised and were present full-time, dictated duties/schedule, and discussed pay | Defs contend allegations are boilerplate and insufficient to show operational control or economic reality of employment | Court: Denied dismissal; allegations are factual and, construed favorably, plausibly allege employer status under the economic-reality test |
| Whether plaintiff can assert claims for annual WTPA wage notices for years after WTPA effective date | Kress alleges he was not provided annual notices before Feb 1 in 2012, 2013, 2014 | Defs argue employees hired before WTPA (Apr 9, 2011) cannot sue for wage-notice violations and §198 limits relief to time-of-hire notice | Court: Allowed claim for failure to provide annual notices after WTPA went into effect; plaintiff did not base claim on initial pre-2011 hire notice |
| Whether plaintiff can assert claim for failure to provide wage statements with each paycheck under NYLL §195(3) | Kress alleges failure to provide required written wage statements for specified pay periods | Defs did not meaningfully contest this claim | Court: Found the wage-statement claim plausible on its face and did not dismiss it |
| Whether any claim for failure to provide initial time-of-hire notice survives given pre-April 9, 2011 hire | Kress seeks statutory notices generally | Defs argue pre-WTPA hires cannot recover for missing initial notice | Court: To the extent plaintiff seeks relief for an initial time-of-hire notice predating Apr 9, 2011, that claim would be dismissed as insufficiently stated |
Key Cases Cited
- Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327 (S.D.N.Y.) (defines broad FLSA/NYLL employer concept and economic-reality inquiry)
- Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132 (2d Cir.) (sets forth economic reality factors for individual liability under the FLSA)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard requires more than labels and conclusions; plausibility requirement)