MEMORANDUM OF DECISION AND ORDER
On Nоvember 13, 2012, the Plaintiffs Efrain Danilo Mendez a/k/a Efrain D. Mendez-Rivera (“Mendez”); Aldraily Alberto Coiscou (“Coiscou”); Fernando Molina a/k/a Jorge Luis Flores Larios (“Molina”); Siryi Nayrobik Melendez (“Melendez”); and Rene Alexander Oliva (“Oliva,” and collectively, the “Original Plaintiffs”) commenced this action by filing a Complaint (the “Original Complaint”) against the Defendants U.S. Nonwovens Corp. (“U.S. Nonwovens”); Samuel Mehdizadeh a/k/a Solomon Meh-dizadeh (“Samuel”); Shervin Mehdizadeh (“Shervin”) and Rody Mehdizadeh (“Rody,” and collectively the “Defendants”).
In their Original Complaint, the Original Plaintiffs asserted the following causes of action: (1) a collective action claim pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the “FLSA”), and specifically 29 U.S.C. § 216(b), alleging that the Defendants failed to pay the Original Plaintiffs overtime compensation for the hours they worked in excess of a forty hour work week; (2) a class action claim pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 23 and New York Labor Law (“NYLL”) Article 19 alleging that the Defendants failed to pay the Original Plaintiffs and putative сlass members overtime compensation for the hours they worked in excess of a forty hour work week; (3) a class action claim pursuant to Fed.R.Civ.P. 23 and NYLL Article 19 alleging that the Defendants failed to pay the Original Plaintiffs and putative class members overtime compensation in a timely manner; (4) a class action claim pursuant to Fed.R.Civ.P. 23 and NYLL Article 19 alleging that the Defendants failed to pay the Original Plaintiffs and putative class members additional compensation of one hour’s pay at the minimum hourly wage rate for each day during which the spread of hours exceeded ten hours; and (5) a class action claim pursuant to Fed. R.Civ.P. 23 and the NYLL alleging that the Defendants failed to comply with the notice provisions of the Wage Theft Prevention Act (“WTPA”), Article 6 of the
Presently before the Court is a motion by the Original Plaintiffs, together with Juan Flores-Larios (“Flores-Larios”); Ramiro Cordova (“Cordova”) and Daniel Sante (“Sante,” and collectively with the Original Plaintiffs, the “Plaintiffs”) to amend the Original Complaint under Fed. R.Civ.P. 15(a). In this regard, the Plaintiff seeks to (1) add Flores-Larios; Cordo-va and Sante as named Plaintiffs and class representatives; (2) insert a first cause of action asserting a collective action claim pursuant to FLSA 29 U.S.C. 201 et seq., and 29 C.F.R. § 778.106, alleging that the Defendants failed to pay the Plaintiffs overtime compensation in a timely manner; (3) renumber the first through fifth causes of action as the second through sixth causes of action; (4) add a Fed.R.Civ.P. 23 class action claim for New York State common law breach of contract, alleging that the Defendants failed to play the Plaintiffs and the putative class members promised wages; and (5) supplement the “Nature of the Action” and “Summary of Causes of Action” portions of the Original Complaint accordingly. The Plaintiffs included with their motion a Proposed First Amended Complaint (the “Amended Complaint”). In addition, with their reply papers, the Plaintiffs have submitted a Revised Proposed First Amended Complaint (the “Revised Amended Complaint”) in order to accommodate concerns raised by the Defendants in their opposition to the Plaintiffs motion to amend.
The Court pauses here to note that the Plaintiffs’ Amended Complaint, Revised Amended Complaint, motion papers and reply use footnotes, which is contrary to this Court’s Individual Rule II.A. Notwithstanding this infraction, the Court will consider the Plaintiffs’ papers in rendering its decision. However, the Court advises the Plaintiffs’ counsel that any future filings that contain footnotes will not be considered by this Court.
For the reasons that follow, the Court grants the Plaintiffs’ motion.
I. BACKGROUND
The following facts are derived from the Original Complaint, the Amended Complaint and the Revised Amended Complaint and are construed in the light most favorable to the Plaintiffs.
The Defendant U.S. Nonwovens, a domestic business corporation that is organized and existing under New York State law, manufacturers a wide variety of products, such as household cleaning products; disposable cleaning wipes for personal hygiene and other cleaning uses; other non-woven products; and laundry cleaning and care products. U.S. Nonwovens clients include Wal-Mart, K-Mart, Sears, CVS and Walgreens. In addition to operating three factories located in Brentwood, New York, U.S. Nonwovens also maintains a warehouse and distribution center located in Hauppauge, New York. U.S. Nonwovens is considered a covered employer within the meaning of the FLSA and NYLL and has a gross volume of sales made or business done that is not less than $500,000 per year.
The individual Defendants Samuel, Shervin and Rody Mehdizadeh (collectively, the “Individual Defendants”) are shareholders in U.S. Nonwovens and together own one hundred percent of the outstanding shares of stock of U.S. Nonwovens. Shervin and Rody are brothers, while Samuel is their father. According to the Revised Amended Complaint, the Individual Defendants obtained a controlling interest in U.S. Nonwovens in 2005.
Prior to becoming a shareholder in U.S. Nonwovens in October of 2005, on January
Also on January 2, 1997, U.S. Nonwov-ens hired Shervin as Assistant Manager. Shervin has served U.S. Nonwovens in various capacities and is currently the company’s Chief Executive Officer. In addition, Rody is the Chief Operating Officer of U.S. Nonwovens. The Revised Amended Complaint does not contain any factual allegations as to when Rody began his involvement with U.S. Nonwovens.
According to the Plaintiffs, the Individual Defendants are actively involved in managing U.S. Nonwovens day-to-day operations. Of relevance here, the Plaintiffs claim that the Individual Defendants have power over payroll decisions, including the power to retain time and/or wage records, as well as the power to stop any illegal practices in violation of the FLSA and/or the NYLL. The Individual Defendants also allegedly have power over personnel decisions, including the power to hire and fire employees, set wages and otherwise control the terms and conditions of an employee’s employment.
The Plaintiffs who bring this action are all residents of Suffolk County, New York, and are current or former factory workers that were employed by U.S. Nonwovens. The Revised Amended Complaint describes them as “part of an immigrant workforce.” (Rev. Amend. Compl., ¶ 3.) In this regard, according to the Revised Amended Complaint, Mendez was employed by the Defendants from May of 2012 to November of 2012; Coiscou was employed by the Defendants from August 20, 2012 to September 25, 2012; Molina was employed by the Defendants from August 13, 2010 to October 11, 2012; Melendez was employed by the Defendants from September 4, 2012 to September 18, 2012; and Oliva was employed by the Defendants from August 20, 2012 to November of 2012. The Revised Amended Complaint also adds the Plaintiffs Flores-Larios, who was employed by the Defendants from May 7, 2012 to August or September of 2012; Cordova, who was employed by the Defendants from May 23, 2001 to January 11, 2013; and Sante, who was employed by the defendants from August of 2010 to at least the time that the Revised Amended Complaint was filed.
On behalf of themselves and other factory workers employed by U.S. Nonwovens in the State of New York, the Plaintiffs allege that they were not paid premium overtime compensation for all the hours they worked beyond the standard forty hour work week. According to the Plaintiffs, the Defendants “intentionally, willfully, and repeatedly engaged in a pattern, practice, and/or policy” that involved (1) “willfully failing to properly record all hours worked”; (2) “willfully failing to pay overtime earned on the regular pay day for the period in which such workweek ends”; (3) “willfully delaying the payment of overtime for a period longer than is reasonably necessary for the employer to compute and arrange for payment of the amount due”; (4) “willfully failing to pay its employees ... premium overtime wages for hours that they worked in excess of 40 horn's per workweek”; (5) “[w]illfully failing to record all of the timе that its employees ... have worked for the benefit of the Defendants”; (6) “[f]ailing to
The Revised Amended Complaint contains specific factual allegations "with respect to each of the Plaintiffs. First, concerning Mendez, the Plaintiffs allege that he was employed as a “pallet loadеr” at the Defendants’ Brentwood factory and earned a regular rate of $7.25 per hour, which is the minimum wage. During the course of his approximately six-month employment with the Defendants in 2012, Mendez, with rare exception, worked shift hours from 4:30 p.m. to 3:00 a.m. the following morning, with a half-hour break for lunch. Generally, Mendez worked five days per week, Monday through Friday, for a total of fifty hours per week. However, occasionally he worked a sixth day during the week, in which case his total hours per week was sixty.
Although Mendez daily worked a “spread of hours” in excess of ten hours during his employment with the Defendants, he allegedly did not receive a spread of hours pay. In addition, apparently, “[intermittently throughout his employment,” his paycheck did not include overtime hours to which he was entitled. (Rev. Amend. Compl., ¶ 83.) After complaining about the supposed underpayment of overtime wages to his supervisors, Mendez would receive payment for the overtime hours approximately one month after he earned them.
Mendez claims thаt he cannot precisely remember the amount of overtime wages that the Defendants delayed paying him, but he estimates that during the course of his employment, wages for five to ten overtime hours were delayed. Further, Mendez alleges that he was not paid for three overtime hours during the course of his employment with the Defendants, even though he made complaints to his supervisor. Nevertheless, Mendez does not know with precision the total amount of overtime wages that allegedly remain unpaid. However, the Plaintiffs allege that the Defendants know the precise amount of overtime wages that were paid to Mendez on a delayed basis, as well as the length of the delays. The Defendants also apparently know the amount of overtime wages that are owed by the Defendants to Mendez. According to the Plaintiffs, the amount of overtime wages owed to Mendez can be calculated by examining the Defendants’ shift records, payroll records and computerized timekeeрing records. In addition, the Defendants allegedly failed to provide Mendez with a wage notice in compliance with NYLL § 195.
As to the Plaintiff Coiscou, he was employed by the Defendants for a period of about one month in the late summer of 2012 at the regular rate of $7.25 per hour, which is the minimum wage. He started his employment with the Defendants as a machine operator, before being assigned to moving boxes of pallets, wrapping the pallets and moving the pallets to another area. During the first two weeks of his employment, Coiscou worked at least four days a week, from 4:30 p.m. to 3:00 a.m. the following morning. During the last two weeks of his employment, Coiscou
With respect to the Plaintiff Molina, he was employed by the Defendants for nearly two years. From August of 2010, when he started with the Defendants, until January of 2011, Molina was a forklift operator and was paid the regular rate of $7.25 per hour, which is the minimum wage. In January of 2011, Molina’s salary rose to $9 per hour. Three or four months later, in either March or April of 2011, Molina was promoted to “Production Supervisor,” and his salary increased again, this time to $12 per hour. Thereafter, in September of 2012, Molina’s title was changed to “Warehouse Manager.” However, the change in job title was not accompanied by an additional raise.
Molina does not provide details with respect to the hours he typically worked, but claims that he “consistently worked a spread of hours in excess of 10,” for which the Defendants never paid him. (Rev. Amend. Compl., ¶ 99.) He also claims that he “consistently worked in excess of 40 hours per week” and that “[tjhroughout the entire course of his employment with U.S. Nonwovens there were consistently one or two overtime hours ‘missing’ from [][his] paycheck.” (Rev. Amend. Compl., ¶ 102.) Molina asserts that although he regularly complained about the missing overtime wages to his supervisor, the Defendants continued to fail to pay him for all the overtime hours he worked until his employment with the Defendants was terminated in October of 2012.
In this regard, Molina alleges that on one occasion, in December of 2011, he worked ninety-six hours during one week, but was only paid for seventy hours. He complained about not being paid for these twenty-six overtime hours until October of 2012, when his employment with the Defendants was terminated. At the time of the filing of the Revised Amended Complaint, Molina had still not been paid for the twenty-six overtime hours he allegedly worked in December of 2011.
Except for the December of 2011 incident, Molina provides no additional details with respect to other occasions when he was not paid overtime wages to which he was entitled. However, while Molina cannot precisely remember the total amount of overtime wages that remain unpaid, the Plaintiffs allege that the Defеndants know the amount and that it can be determined by examining the Defendants’ shift records, payroll records and computerized timekeeping records. Molina also claims that the Defendants never provided him with a wage notice in accordance with the NYLL § 195 requirements.
Concerning the Plaintiff Melendez, she was only employed by the Defendants for a period of two weeks in September of 2012. Her employment ended when she decided to resign on or about September 18, 2012.
During her two weeks of employment with the Defendants, Melendez worked at the Defendants’ Brentwood factory and packed into boxes containers of “wipes” that were coming off the production line. She received a regular rate of $7.25, which was minimum wage, and worked a scheduled shift of 4:30 p.m. to 3:00 a.m. the next morning. Thus, every day she worked for the Defendants, Melendez worked a spread of hours of more than ten, but she allegedly never received spread of hours pay from the Defendants.
As to the Plaintiff Oliva, he was employed by the Defendants for a two to three month period in the late summer and fall of 2012. His salary was a regular rate of $7.25 per hour, which was minimum wage.
During his first two weeks of employment with the Defendants, Oliva worked a scheduled shift of 4:00 p.m. until 5:00 a.m. the next morning, for a spread of hours of approximately thirteen hours. For the rest of his employment, his scheduled shift was from 4:00 p.m. until 3:30 a.m. the following morning, for a spread of hours of approximately 11.5. The Plaintiffs claim that the Defendants never paid Oliva spread of hours pay.
Further, according to the Plaintiffs, Oli-va regularly worked in excess of forty hours per week while employed by the Defendants, but that on several occasions, overtime wages were inexplicably missing from his paycheck. Apparently, Oliva complained to the night manager, Mike Ortiz (“Ortiz”), who provided no explanation for the omission and simply said that the missing overtime wages would be included in his next paycheck. Nevertheless, the Plaintiffs allege that when Oliva received his next paycheck, wages for overtime hours were still missing. When Oliva again brought the issue to Ortiz’s attention, Ortiz simply repeated that the overtime wages would be included in the next paycheck. As such, the Plaintiffs claim that Oliva’s overtime payments were delayed for up to one month.
However, the Plaintiffs do not provide any additional specifics with regard to Oli-va’s overtime wages, and Oliva is unable to recall with precision the amount of overtime that was delayed, except that he estimates the Defendants delayed paying him wages for about five to ten hours of overtime during the course of his employment. Also, the Plaintiffs allege that Oliva was not paid wages for two hours of overtime he works while employed by the Defendants. Nevertheless, the Plaintiffs claim that the Defendants know the amount of overtime wages that Oliva was paid on a delayed basis, as well as the amount of overtime wages that are owed to Oliva, which can be determined by examining the Defendants’ shift records, payroll records and computerized timekeeping records. Lastly, the Plaintiff assert that the Defendants failed to comply with the wage notice requirements of NYLL § 195, in that they never provided Oliva with a wage notice.
With respect to the Plaintiff Flores-Lar-ios, he was employed at the Defendants’ Hauppauge warehouse as a fork lift operator for approximately four months in the late spring and summer of 2012. While employed by the Defendants, he earned a regular rate of $7.25 per hour, which was the minimum wage. He аlso allegedly worked a spread of hours exceeding ten hours, but the Plaintiffs provide no details concerning the hours he generally worked. The Plaintiffs also claim Flores-Larios never received a wage notice from the Defendants in violation of NYLL § 195.
Concerning the Plaintiff Cordova, he was employed by the Defendants for al
In addition, Cordova himself often was missing wages for one or two hours of overtime from his paycheck. While Cor-dova complained to his supervisors, he was told that an employee in payroll, only identified as “Malik” in the Revised Amended Complaint, did not have time to address the issue. On one occаsion, on an unspecified date, Cordova went directly to Malik and said “I’m not so new here that you can be doing this to me.” (Rev. Amend. Compl., ¶ 144.) A week later, Cordova was paid the overtime wages that had been missing from his previous paycheck.
At some point in 2008, Cordova worked 57.5 hours in one week, but was only paid for forty hours. Cordova complained to his supervisor, Rafael Bobea (“Bobea”). However, Bobea responded “Man does not live by bread alone,” referring apparently to Matthew 4:4, which states “But he answered and said, It is written, Man shall not live by bread alone, but by every word that proceedeth out of the mouth of God.” (Rev. Amend. Compl., ¶ 146.) The Plaintiffs allege that although Cordova repeatedly complained to Bobea about not being paid for his overtime hours, he never received those wages.
Similarly, at some point in 2010, Cordo-va’s paycheck was missing wages for three overtime hours that he had worked. Cor-dova complained to Ortiz, who told Cordo-va that he would mention the issue to Shervin. However, Ortiz also told Cordo-va “that he ‘wasn’t sure’ whether Shervin would ‘approve’ the overtime or not.” (Rev. Amend. Compl., ¶ 149.) According to the Plaintiffs, the wages for these three overtime hours were never paid. Allegedly, Ortiz told Cordova that the reason for this was because Cordova’s request to be paid the overtime was made “too late.” (Rev. Amend. Compl., ¶ 150.)
The Plaintiffs claim that the supervisors at the Defendants’ factories and warehouse often blamed employees for the missing overtime wages in their paychecks. In this regard, the supervisors supposedly stated that employees “had not ‘punched’ correctly.” (Rev. Amend. Compl., ¶ 151.) However, contrary to the supervisors’ theory, during his nearly twelve years of employment with the Defendants, Cordova allegedly heard complaints regarding missing overtime wages notwithstanding the time clock or time recording method that was used.
Although Cordova cannot recall the amount of overtime wages that are still owed to him or the amount of overtime wages that were unreasonably delayed, the Plaintiffs allege the Defendants know this information and that it can be determined through an examination of the Defendants’ shift records, payroll records and computerized timekeeping records. Further, the Defendants allegedly failed to provide Cor-dova with a wage notice in accordance with NYLL § 195’s requirements.
Finally, the Plaintiff Sante worked in various capacities for the Defendants for approximately three years and was still presently employed by the Defendants at the time the Revised Amended Complaint was filed. From August 2010 until April 2011, Sante earned the regular rate of $7.25 per hour, which was the minimum wage. Without giving details, the Plaintiffs allege he regularly worked a spread of hours exceeding ten hours and that he was
II. DISCUSSION
A. Legal Standard Under Fed.R.Civ.P. 15(a)
Fed.R.Civ.P. 15(a) governs a motion to amend a complaint and states, in relevant part, as follows:
A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served_ Otherwise a party may amend the party’s pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given as justice so requires.
See also Lucente v. Int’l Bus. Machs. Corp.,
“An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6).” Lucente,
Therefore, an amended complaint is futile when it does not contain enough allegations of fact to state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly,
B. Legal Standard Under the FLSA and the NYLL
“The FLSA requires compensation at one and one-half times the minimum wage for every hour worked over forty hours per week.” Palacios v. Z & G Distributors, Inc., 11 CIV. 2538 AT FM,
Further, pursuant to the NYLL, an employee must “receive one hour’s pay at the basic minimum hourly wage rate, in addition to the minimum wagе required in this Part for any day in which: (a) the spread of hours [defined as the time from the start of the work day to the end of the work day] exceeds 10 hours.” NYCCR § 142-2.4; see also Guadalupe, 2013 WL
In addition, under NYLL § 195, “an employer must ‘provide his or her employees, in writing ... at the time of hiring, and ... each subsequent year of the employee’s employment with the employer, a notice containing [inter alia] the rate or rates of pay and basis thereof and ‘the regular hourly rate and overtime rate of pay.’ ” D’Arpa v. Runway Towing Corp., 12-CV-1120,
“Although the FLSA does not explicitly require that [overtime] wages be paid on time, courts, including the Second Circuit, have long interpreted the statute to include a prompt payment requirement.” Conzo v. City of New York,
In this regard, the DOL has provided the following guidance:
[t]he general rule is that overtime compensation earned in a particular workweek must be paid on the regular pay day for the period in which such workweek ends. When the correct amount of overtime compensation cannot be determined until some time after the regular pay period, however, the requirements of the [FLSA] will be satisfied if the employer pays the excess overtime compensation as soon after the regular pay period as is practicable. Payment may nоt be delayed for a period longer than is reasonably necessary for the employer to compute and arrange for payment of the amount due and in no event may payment be delayed beyond the next payday after such computation can be made.
Following Lundy, in Nakahata v. New York-Presbyterian Healthcare System, Inc.,
In this regard, the Second Circuit emphasized “[t]o plead a plausible FLSA overtime claim, [plaintiffs must provide sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty hours in a given week.” Id. However, the Second Circuit also added that “[w]hat aspects of [the] [plaintiffs’ position, pay, or dates of employment are necessary to state a plausible claim for relief consistent with this decision and Lundy is a case-specific inquiry for the trial court” and that “generalized allegations that may prove false at trial are not necessarily the basis for dismissal at the pleadings stage.” Id. (emphasis removed). See also Bustillos,
Most recently, in Dejesus v. HF Management Services, LLC,
The Second Circuit noted that “Lundy's requirement that plaintiffs allege overtime without compensation in a ‘given’ workweek ... was designed to require plaintiffs to provide some factual context that will ‘nudge’ their claim ‘from conceivable to plausible.’ ” Id. at 90 (citations and internal quotation marks omitted.) While plaintiffs are “not required [] to keep careful records and plead their hours with mathematical precision, [the Second Circuit] [has] recognized that it is employees’ memory and experience that lead them to claim in federal court that they have denied overtime in violation of the FLSA in the first place.” Id. Therefore, the Second Circuit’s “standard requires that plaintiffs draw on those resources in providing complaints with sufficiently developed factual allegations.” Id. See also Bustillos,
C. As to Whether the Plaintiff’s Proposed Seventh Cause of Action for New York State Common Law Breach of Contract Fails to State a Claim as a Matter of Law
First, the Defendants oppоse the Plaintiffs’ Fed.R.Civ.P. 15 motion to amend on the ground that the common law breach of contract claim that the Plaintiffs seek to add is duplicative of their FLSA and NYLL claims. Thus, according to the Defendants, the Plaintiffs’ amendment is futile.
The Plaintiffs’ proposed seventh cause of action alleges that the Plaintiffs and the Defendants “had a verbal contract” under which “[the] Defendants agreed to pay [the] Plaintiffs [] for the first 40 hours worked at the regular rate of pay, and all hours worked in excess of 40 hours per week at the overtime rate.” (Rev. Amend. Compl., ¶¶ 189, 190.) According to the Plaintiffs, “[b]y failing to pay [them] for all non-overtime hours worked at the agreed upon rates, the Defendants breached their contract of employment with [the] Plaintiffs.” (Rev. Amend. Compl., ¶ 192.) Further, the Plaintiffs include the caveat that they only bring the breach of contract claim “to the extent that it is not duplica-tive of relief available to the [Plaintiffs under the FLSA or the NYLL, in that this cause of action seeks unpaid straight wages,” rather than compensation for undеrpayment and/or delayed payment of overtime wages. (Rev. Amend. Compl., ¶ 191.)
While the Defendants argue that the Plaintiffs’ proposed seventh cause of action is identical to their proposed first and second causes of action under the FLSA and their third and fourth causes of action under the NYLL, the Court finds that the Defendants fail to acknowledge the nature of the Plaintiffs’ breach of contract claim. In this regard, the FLSA and NYLL claims only concern overtime compensation. In contrast, the proposed common law breach of contract claim explicitly states that it only concerns unpaid straight wages, not overtime wages.
District courts in this Circuit have permitted plaintiffs to proceed on such breach of contract claims for straight wages in conjunction with FLSA and NYLL overtime claims. See, e.g., Wilk v. VIP Health Care Servs., Inc., 10 CIV. 5530 ILG JMA,
D. As to Whether the Plaintiffs Have Stated Plausible Claims For Underpaid and Untimely Overtime Wages Under the FLSA
Also in opposition to the Plaintiffs motion to amend pursuant to Fed.R.Civ.P. 15, the Defendants contest the Plaintiffs’ proposed first and second FLSA causes of action, which allege a failure to pay overtime wages and a failure to timely pay overtime wages respectively, as inadequate under the pleading requirement set forth by the Second Circuit in Lundy, Nakaha-ta, and Dejesus. As such, the Defendants argue that the Plaintiffs proposed Amended Complaint is futile and therefore should be rejected by the Court.
However, in reply to the Defendants’ opposition, the Plaintiffs have submitted a Revised Amended Complaint, which includes more specific factual allegations than either the Original Complaint or the Amended Complaint. The Court recognizes that some of these new factual allegations still seemingly rely on the sort of generalizations that were disapproved of by the Second Circuit, such as using terms like “intermittently,” “typically,” “consistently,” “regularly” and “often.” See Bustillos,
First, the issue in Lundy was that the three plaintiffs alleged that they typically worked under forty hours per week, but occasionally they may have worked more than forty hours per week due to missing meal breaks, working before or after scheduled shifts and training or staff meetings.
[T]he [plaintiff Wolman] has not alleged that she ever completely missed all three meal breaks in a week, or that she also worked a full 15 minutes of uncompensated time around every shift; but even if she did, she would have alleged a total 39 hours and 45 minutes worked. A monthly 30-minute staff meeting, an installment of the ten yearly hours of training, or an additional or longer shift could theoretically put herover the 40-hour mark in one or another unspecified week (or weeks); but her allegations supply nothing but low-octane fuel for speculation, not the plausible claim that is required.
.... Maybe the [plaintiff Iwasiuk] missed all of her meal breaks, and always worked an additional 30 minutes before and two hours after her shifts, and maybe some of these labors were performed in a week when she worked more than her four shifts. But this invited speculation does not amount to a plausible claim under FLSA.
[T]he [plaintiff] Lundy worked between 22.5 and 30 hours per week and Plaintiffs conceded below — and do not dispute on appeal — that he never worked over 40 hours in any given week.
Id. at 115 (citations omitted).
Similarly, the Second Circuit in Nakaha-ta reached a similar conclusion and provided the following reasoning:
Plaintiffs have merely alleged that they were not paid for overtime hours worked. These allegations — that Plaintiffs were not compensated for work рerformed during meal breaks, before and after shifts, or during required trainings — raise the possibility that Plaintiffs were undercompensated in violation of the FLSA and NYLL; however, absent any allegation that Plaintiffs were scheduled to work forty hours in a given week, these allegations do not state a plausible claim for such relief. To plead a plausible FLSA overtime claim, Plaintiffs must provide sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty hours in a given week. For these reasons, the District Court properly dismissed the FLSA and NYLL overtime claims.
Lastly, in Dejesus, the Court found that the plaintiff “provided less factual specificity than did the plaintiffs in Lundy or Nakahata, ” in that “[s]he did not estimate her hours in any or all weeks or provide any other factual context or content.”
Conversely, in this ease, all the Plaintiffs who are bringing the overtime causes of action under the FLSA claim that they were regularly scheduled by the Defendants to work more than forty hours per week. To this end, the Plaintiffs include specifics with respect to their shift hours and the numbers of days they worked per week. For example, the Revised Amended Complaint alleges that the Plaintiffs Mendez, Melendez and Oliva worked nighttime shifts of 10.5 hours or more at least five days a week. Based on these factual allegations, it is clear that these Plaintiffs were routinely scheduled by the Defendants to work more than forty hour per work week. This differs from the plaintiffs in the cases before the Second Circuit, who alleged that they generally worked forty hours a week or less but then speculated that there might have been some weeks in which they worked more than forty hours because there were occasions when they worked additional time outside of their regularly scheduled shifts.
Moreover, unlike the comрlaints before the Second Circuit in Lundy, Nakahata and Dejesus, the Revised Amended Com
The Court finds that these specific factual allegations are sufficient to sustain the FLSA overtime claims contained in the Plaintiffs’ Revised Amended Complaint. Applying the reasoning of the court in Perry v. City of New York, 13 CIV. 1015 JMF,
Accordingly, in the Court’s view, the Plaintiffs’ have stated FLSA claims for unpaid and untimely overtime wages. The Court therefore rejects the Defendants argument that the Plaintiffs’ proposed first and second causes of action are futile.
E. As to Whether the Plaintiffs Have Stated a Wage Notice Violation Claim Under the NYLL
In addition, the Defendants contend that the Plaintiffs’ proposed sixth cause of action for wage notice violations under NYLL § 195-1 fails to provide notification of the precise nature of the alleged violations and is therefore futile. In this regard, according to the Defendants, because NYLL § 195-1 contains several obligations, the Plaintiffs were required to include in their Amended Complaint specifics with respect to which obligations the Defendants allegedly failed to meet.
The Court first notes that the Plaintiffs’ proposed sixth cause of action is the same as the fifth cause of action contained in the Original Complaint, which the Defendants answered. Nevertheless, the Court will address the Defendants’ argument here and finds that it is without merit.
As stated above, NYLL § 195 requires “an employer [to] ‘provide his or her employees, in writing ... at the time of hiring, and ... each subsequent year of the employee’s employment with the employer, a notice containing [inter alia ] the rate or rates of pay and basis thereof and ‘the regular hourly rate and overtime rate of pay.’ ” D’Arpa,
F. As to Whether the Plaintiffs Have Stated Claims Against the Individual Defendants
The Defendants also oppose the Plaintiffs’ motion to amend by suggesting that the Plaintiffs’ Amended Complaint improperly lumps all of the Defendants together and provides no specific factual allegations concerning each Defendant’s involvement in the alleged FLSA and NYLL violations. The Court disagrees.
“Individual liability under the FLSA is premised upon ‘personal responsibility for making decisions about the conduct of the business that contributed to the violations of the Act.’ ” Schear v. Food Scope Am., Inc.,
While “[t]he New York Court of Appeals has not answered the question of whether the employer test under the NYLL is the same as under the FLSA[,] ... district courts in this Circuit have interpreted the definition of employer under the [NYLL] coextensively with the definition used by the FLSA.” Schear,
Of importance, “the remedial nature of the [FLSA] ... warrants an expansive interpretation of its provisions so that they will have the widest possible impact in the national economy.” Irizarry,
[t]he statute provides an empty guarantee absent a financial incentive for individuals with control, even in the form of delegated authority, to comply with the law, and courts have continually emphasized the extraordinarily generous interpretation the statute is to be given. Nor is “only evidence indicating [an individual’s] direct control over the [plaintiff employees] [to] be considered.” Instead, “evidence showing [an individual’s] authority over management, supervision, and oversight of [a company’s] affairs in general” is relevant to “the totality of the circumstances in determining [the individual’s] operational control of [the company’s] employment of [the plaintiff employees].”
Id. (quoting RSR,
In this case the Plaintiffs’ allege that the Individual Defendants are immediate family; they together own one hundred percent of the outstanding shares of stock of U.S. Nonwovens; and they exercise the power to hire and fire employees, set their wages and otherwise control the terms and conditions of their employees. Their power includes managing the day-today operations of U.S. Nonwovens and having control over payroll decisions, such as retaining time and/or wage records. Given these factual allegations, the Court finds that the Plaintiffs have satisfactorily stated claims for individual liability against all three Individual Defendants. See, e.g., Apolinar v. Global Deli & Grorcery, Inc., 12 CV 3446 RJD VMS,
G. As to Whether the Plaintiffs’ Revised Amended Complaint Contains Inappropriate Allegations
To the extent the Defendants argue in opposition to the Plaintiffs’ motion to amend that the Amended Complaint contained allegations that were inappropriate for a pleading, the Court finds that the Revised Amended Complaint addresses these concerns. In this regard, the Revised Amended Complaint removes all of the allegedly offensive parаgraphs. Therefore, the Court need not explore the Defendants’ arguments as they are now moot.
III. CONCLUSION
In sum, the Defendants have presented the Court with no reason as to why the Plaintiffs’ motion to amend their Original Complaint pursuant to Fed.R.Civ.P. 15 should not be granted. Moreover, having reviewed the Plaintiffs’ Revised Amended Complaint, the Court finds neither undue delay, bad faith, futility or prejudice exist in this case so as to warrant the denial of the Plaintiffs’ motion. Thus, for the foregoing reasons, it is hereby
ORDERED, that the motion by the Plaintiffs’ to amend their Original Com
ORDERED, that the Plaintiffs are directed to file the Revised Amended Complaint that was included with their reply papers within ten days of the date of this Order. Further, to the extent the Revised Amended Complaint contains footnotes, the Plaintiffs are directed to remove these footnotes in accordance with this Court’s Individual Rule H.A., but may incorporate the substance of the footnotes into the text of the Revised Amended Complaint. However, the Plaintiffs shall not make any other changes to the Revised Amended Complaint without first seeking court approval pursuant to Fed.R.Civ.P. 15.
SO ORDERED.