Salustio v. 106 Columbia Deli Corp.
1:15-cv-06857
S.D.N.Y.Aug 30, 2017Background
- Plaintiffs Ruben Salustio (sandwich preparer) and Arturo Vivaldo (delivery worker) sued 106 Columbia Deli Corp. and its owner Ibrahim Alzubairy under the FLSA and New York Labor Law (NYLL) for unpaid wages, overtime, NYLL notice/statements violations, and spread-of-hours pay. A bench trial was held June 12, 2017.
- Defendants’ tax returns showed annual gross receipts under $500,000 for each year at issue; defendants produced internal time sheets and payroll records; plaintiffs testified to longer hours and different pay arrangements.
- Court found many aspects of plaintiffs’ testimony not credible and credited Alzubairy’s contemporaneous time sheets (with a minor correction that Vivaldo worked until 4:00 a.m., not 3:00 a.m.).
- Findings: Salustio worked (per records) intermittently from Jan 10, 2011 to June 7, 2014, generally 54 hours/week, paid $8.50/$12.75 (2011) then $10/$15 (2012–2014); Vivaldo worked May 20, 2013–Mar 29, 2014, generally 54 hours/week, paid $6/hr + tips and not paid overtime.
- Court held no enterprise coverage under the FLSA because gross receipts < $500,000, dismissed the FLSA claims on the merits, but exercised supplemental jurisdiction to adjudicate NYLL claims (trial already occurred).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FLSA enterprise coverage ($500,000 threshold) | Plaintiffs claimed enterprise coverage for FLSA remedies | Defendants argued receipts < $500,000 so no enterprise coverage | No enterprise coverage; FLSA claims dismissed (gross receipts under $500,000) |
| Credibility / burden on hours where records are imperfect | Plaintiffs urged Anderson-style burden-shifting because employer records did not fully comply with regulations | Defendants relied on contemporaneous time sheets as accurate evidence of hours/pay | Court credited defendants’ time records over plaintiffs’ testimony; no automatic burden-shift because records were produced and found credible |
| NYLL minimum wage/overtime — Salustio | Salustio claimed unpaid overtime and minimum-wage violations | Defendants said records show he was paid lawful regular and overtime rates | Salustio not owed minimum or overtime under NYLL — records show lawful pay and compensation for hours worked |
| NYLL minimum wage/overtime & tip credit — Vivaldo | Vivaldo argued he was paid below NY minimum and unpaid overtime; employer failed to give written tip-credit notice | Defendants conceded reduced wage but argued tips made up difference and relied on accountant’s advice | Employer failed to provide required written tip-notice; Vivaldo owed unpaid regular and overtime wages totaling $5,714.33; liquidated damages (100%) awarded for lack of good-faith proof |
| Supplemental jurisdiction over NYLL claims after FLSA dismissal | Plaintiffs wanted NYLL claims adjudicated in federal court after trial | Defendants argued federal claims gone, court should decline supplemental jurisdiction | Court exercised supplemental jurisdiction (Gibbs factors: economy, convenience, fairness favored retention) |
| Statutory wage-notice and wage-statement damages | Plaintiffs sought statutory damages for failure to furnish NYLL §195 notices and pay stubs | Defendants conceded no notices/stubs | Vivaldo awarded $5,000 (both notice and statement violations); Salustio awarded $2,500 (pay-stub violation only because his hire pre-dated §195 notice private-right rule) |
Key Cases Cited
- Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (U.S. 1946) (discusses burden-shifting when employer fails to keep proper records of hours)
- Jones v. Ford Motor Credit Co., 358 F.3d 205 (2d Cir. 2004) (district court should consider Gibbs factors before declining supplemental jurisdiction after dismissal of federal claims)
- Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234 (2d Cir. 2011) (NYLL and FLSA claims arising from same pay practices form a common nucleus of operative fact for supplemental jurisdiction)
- Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132 (2d Cir. 2008) (good-faith defense to liquidated damages requires active steps to ascertain and comply with wage laws)
- Purgess v. Sharrock, 33 F.3d 134 (2d Cir. 1994) (retention of supplemental jurisdiction may be appropriate after trial when dismissing federal claims would waste resources)