HAIFENG XIE, Plaintiff, v. SAKURA KAI I INC. d/b/a SAKURA JAPANESE CUISINE, YOULIN WANG, and “JOHN” CHEN, Defendants.
17-CV-7509 (ILG) (JO)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
April 11, 2019
GLASSER, Senior United States District Judge
MEMORANDUM AND ORDER
GLASSER, Senior United States District Judge:
Plaintiff Haifeng Xie (“Plaintiff“) brings this action against Defendants Sakura Kai I Inc. d/b/a Sakura Japanese Cuisine (“Sakura“), Youlin Wang (“Wang“) and “John” [sic] Chen (“Chen“), for violations of, inter alia, the Fair Labor Standards Act (“FLSA“),
Plaintiff‘s initial complaint was filed on December 27, 2017, naming Sakura, his employer, and Wang, its manager, as Defendants, and pleading all of the aforementioned causes of action other than the retaliation claims. (ECF No. 1 (Compl.)). Two days later, on December 29, 2017, Plaintiff filed his amended complaint, adding “John” Chen,1 Plaintiff‘s “[b]oss,” as a Defendant, and alleging that Chen unlawfully terminated him after he refused to withdraw his lawsuit. (Am. Compl. ¶¶ 18-20, 57, 125-133). On the same day he filed his amended complaint, Plaintiff moved for a temporary restraining order reinstating his job at Sakura, accompanied by a sworn declaration by Plaintiff describing how Chen had unlawfully terminated him. (ECF Nos. 8 (Notice of Emergency Motion), 8-2 (Xie Decl.)). The Court ordered Plaintiff reinstated on January 8, 2018. (ECF No. 18).
Plaintiff‘s complaint was originally brought on behalf of himself and a putative class. During the initial conference, however, Plaintiff‘s counsel acknowledged that there does not
The parties submitted briefing and proposed findings of fact on February 18, 2019 (ECF Nos. 44, 46, 47), and a bench trial was conducted on March 4 and 5, 2019 (ECF Nos. 50, 51). The Court heard from three witnesses at trial. The only witness who testified on Plaintiff‘s behalf was Plaintiff himself. For the defense, the Court first heard testimony from Jingcheng Liang, a current employee at Sakura who worked there during the duration of Plaintiff‘s employment. (Liang 84:20-85:1). The Court then heard testimony from Wang, who exercised supervisory responsibilities over Plaintiff and owned 60% of the business. (Xie 9:24-10:1; Wang 129:4-9). Throughout trial, the Court assessed the tone, demeanor, and responsiveness of the witnesses, which informs its determination as to their credibility.
Based on its examination of the evidence at trial, the Court makes the following findings of fact and conclusions of law pursuant to
DISCUSSION
1. Time Period Covered by Plaintiff‘s Amended Complaint
Plaintiff‘s amended complaint was filed December 29, 2017, after he was allegedly terminated, but prior to his reinstatement after this Court‘s January 8, 2018 order. The complaint was never further amended to encompass any claims which may have arisen in the course of Plaintiff‘s employment from January 8, 2018 onward. Accordingly, Plaintiff‘s claims are restricted to the events occurring on and before December 29, 2017.
2. Claims Against “John” Chen
Inexplicably, despite naming “John” Chen as a Defendant and submitting a detailed affidavit describing Chen‘s conduct, Plaintiff never presented any evidence regarding Chen at
3. Counts I through V: Minimum Wage, Overtime, and Spread of Hours Claims
Counts I through V plead violations of federal and state minimum wage and overtime laws and regulations, as well as state regulations concerning spread of hours pay. See
A. Statutory framework
i. Minimum wage
At all relevant times, the federal minimum wage was $7.25 per hour.
ii. Overtime
Federal law requires that, subject to exceptions not applicable here, employees covered by the FLSA who work longer than 40 hours in a given week be paid 1 1/2 times “the regular rate at which [the employee] is employed.”
iii. Spread of hours
For restaurant workers, New York Department of Labor regulations provide that, “[o]n each day on which the spread of hours exceeds 10, an employee shall receive on additional hour of pay at the basic minimum hourly rate.”
iv. Tip credits
Under both state and federal law, employers may credit an employee‘s tips toward their wage under certain circumstances. See
v. Meal breaks
For federal minimum wage purposes, employers may exclude “bona fide meal breaks” from an employee‘s working hours.
Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minute or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.
B. Findings concerning Plaintiff‘s hours and compensation
i. Burden of proof
Under both the FLSA and the NYLL, the initial burden of proof as to liability rests with the plaintiff. By law, employers are required to keep and maintain accurate payroll records reflecting the number of hours worked and the wages received by each employee. See
ii. Evidence concerning hours and compensation
Plaintiff worked at Sakura from August 19, 2016 until December 29, 2017. (Xie 4:15, 38:25-39:3; Pl. Ex. 6 / Def. Ex. A, D0046; Def. Ex. B).3 The restaurant is located in Queens, New York and had approximately seven employees. (Wang 129:14-15, 130:11-12). While at Sakura, Plaintiff made deliveries, washed dishes, took out the garbage, and helped out with other
Defendants did not, during the relevant period, keep contemporaneous time or payroll records. (Wang 178:3-6). The only documents that provide a detailed record of the hours that Plaintiff might have worked are a series of handwritten work schedules corresponding to the period from March 13, 2017 to April 8, 2018 (Pl. Ex. 6 / Def. Ex. A, D0005-D0059; Def. Ex. A-a). Wang testified that these schedules were prepared at the beginning of each week (Wang: 134:7-22, 174:18-175:4, 184:1-4, 184:18-25) and represented the hours that each employee was expected to work (id. at 136:3-7). He characterized these documents as the employees’ “normal working schedule.” (id. at 175:14). At the end of each week, according to Wang, the pay received by each employee would be written down (Id. at 204:25-205:15).
These schedules show that, in most weeks, Plaintiff worked 38.5 hours and received a flat sum of $375—an effective wage of about $9.74 per hour. (Pl. Ex. 6 / Def. Ex. A, D0005-D0039). According to these documents, Plaintiff generally worked four days per week, on Mondays, Fridays, Saturdays, and Sundays. (Id.). They indicate that his workday started at 11:00 a.m. or noon and ended at 11:00 or 11:30 p.m., the precise start and end times varying by the day of the week. (Id.). The schedules also show that Plaintiff was given a mid-afternoon break from 2:30 p.m. to 5:00 p.m. on Mondays, Fridays, and Saturdays, and a break from 3:00 p.m. to 5:00 p.m. on Sundays. (Id.).
In contrast to what the schedules appear to show, Plaintiff testified that, prior to his reinstatement in January 2018, he worked six days per week, usually taking Tuesdays off. (Xie
At trial, Plaintiff attempted to challenge the accuracy, if not the authenticity, of the schedules corresponding to the time period before this lawsuit was brought. None of these schedules were signed or initialed by any employees. (Pl. Ex. 6 / Def. Ex. A, D0005-D0046). By contrast, most of the schedules for January 2018 onwards are signed. (Id. at D0047-59; Def. Ex. A-a). Plaintiff testified that he never saw the schedules until he was reinstated on January 10, 2018, at which point he was required to sign them on a weekly basis. (Xie 15:8-11, 16:18-17:3). Wang testified that the employees “trusted each other” prior to Plaintiff‘s lawsuit, but that afterwards it became necessary to have each employee sign. (Wang 169:9-14).
iii. Evidence concerning withholding of December 2017 pay
Plaintiff claimed that Wang withheld his pay “from the end of November” through the entire month of December 2017. (Xie 39:21-40:1, 40:24-25). According to Plaintiff, Wang had claimed that Plaintiff owed him an unrelated debt. (Id. at 45:5-11). Plaintiff testified that this debt was actually paid back and claimed that his pay was therefore withheld wrongfully. (Id. at 45:9-11).5
On cross-examination, the defense questioned Plaintiff about a text that he sent Wang on December 17, 2017, which read: “The balance (is) 3700 dollar.” (Def. Ex. B). Plaintiff explained that he sent this text because Wang “still needed a check for $3,700 and then asked me to send him a message to remind him about the figure because he was busy” (Xie 59:7-10). On redirect, the Plaintiff testified that his text regarding a $3,700 “balance” was a reminder for Wang to give Plaintiff $3,700 in cash, so that Plaintiff could write Wang a $3,700 check. (Id. at 78:8-13). He added that Wang never, in fact, gave Plaintiff the $3,700. (Id. at 78:14-16). He denied that he owed Wang $3,700 in December of 2017. (Id. at 59:17-20, 78:6-7).
Wang‘s testimony was that this arrangement never happened. He testified that Plaintiff‘s family had run into financial hardship and that he lent Plaintiff money to help him out. (Wang 201:21-202:16). This testimony was buttressed by a series of text messages between them. Plaintiff sent Wang a text on December 31, 2017—four days after the commencement of this lawsuit, and two days after Plaintiff‘s departure from Sakura—in which, among other things, he warned Wang that “[a]n employer will be seriously punished by law and pay huge damages, if wage payments are not made or delayed. ... I hope you understand that tomorrow you need to
iv. Findings of fact concerning Plaintiff‘s hours and compensation
The work schedules, when taken at face value, show that Plaintiff was paid less than the legally required wage. See Discussion 3.E, infra. Although questions have been raised as to the accuracy of these schedules, it is clear that, by introducing them as authentic and reasonably approximate records of Plaintiff‘s wages and hours, Defendants have set a floor as to their liability. The only genuine issue of fact is whether Defendants are more liable than these documents suggest. That is, did Plaintiff work more than the schedules show? Was he paid less than they show?
Plaintiff‘s credibility was significantly impaired by his meandering, contradictory testimony regarding the transaction he entered into with Wang. Plaintiff gave conflicting testimony regarding whether the value of this transaction was $5,000 or $3,700. His explanation that he was expected to give Wang a $3,700 check made little sense in light of his prior statements which contemplated that only a single, $5,000 check was to be paid. His testimony that Wang never gave him $3,700 and that he did not owe Wang any money in December 2017 was at odds with his rather extemporaneous remark that he “never imagined [Wang] would use this $3,700 matter to put this over me.” And the Court finds it incredible on its face that Wang
In the final analysis, it is Plaintiff‘s burden to show that he worked more hours, or was paid less, than what is reflected in the working schedules. This is a question of fact, and the only evidence upon which Plaintiff would be able to prevail on this question is his own purported recollection. But the force of this testimony hinges on his credibility as a witness, and the Court finds his credibility damaged by the foregoing inconsistencies. Accordingly, the only reasonable course is to adopt the schedules as an approximation of Plaintiff‘s actual wages and working hours between March 13 and December 29, 2017.6 These schedules establish a floor as to Defendants’ liability, and there is nothing in the trial record that would justify a finding of greater liability.
To be sure, the schedules are no substitute for contemporaneous time records. They do not state Plaintiff‘s hours with mathematical exactitude, and they are not signed or otherwise self-authenticating. But Plaintiff has failed to persuade the Court, with credible testimony, that any doubts as to the accuracy of these documents should be resolved in his favor.
Wang testified that, prior to the start of Plaintiff‘s employment, it was agreed that Plaintiff would be entitled to retain his tips, which Wang estimated to be approximately $50 per day. (Wang 168:14-23, 174:2). However, Wang did not tell Plaintiff that he would take a tip credit and did not give Plaintiff a written statement, as required, explaining what a tip credit was or what Plaintiff‘s wage rate would be. (Id. at 173:16-22, 174:3-8). Wang also never explained the provisions of
D. Findings concerning meal breaks
Plaintiff claimed that he had two, 15-minute meal breaks (Xie 21:21-22:7). Liang testified that employees had two, 15-minute meal breaks, before correcting himself and stating that employees had three 15-minute breaks. (Liang 85:19-87:6). Wang testified that employees had three meal breaks: a 15-minute break for breakfast, a 30-minute break for lunch and a 30-minute break for dinner. (Wang 170:23-171:8). No meal breaks are recorded in the written schedules.
Although Plaintiff and Liang are imperfect witnesses, the Court credits their testimony and finds that meal breaks were only 15 minutes in length.
E. Conclusions concerning Defendants’ liability
As previously noted, the Court will rely on the working schedules as a reasonable approximation of the hours that Plaintiff worked and the pay he received; for those periods where schedules are unavailable, the Court will presume that Plaintiff worked the same hours and received the same weekly pay that he did for the period between March 13 and November
Based on these findings of fact and conclusions of law, the Court calculates that Plaintiff was paid more than the federal minimum wage, but less than the state minimum wage (taking into account overtime and spread of hours pay), in every week between August 19, 2016 and December 29, 2017, inclusive. The cumulative amount of this underpayment is $4,024.53. The Court‘s calculations are set forth in an Appendix to this opinion.
Accordingly, judgment should be entered in Plaintiff‘s favor as to Counts II, IV and V in the amounts set forth below.
F. Damages
A plaintiff aggrieved by an employer‘s violation of the New York minimum wage law is entitled to double the amount of underpayment, half of which is deemed to be liquidated damages. See
Liquidated damages may not be awarded if “the employer proves a good faith basis to believe that its underpayment of wages was in compliance with law.”
In analyzing the liquidated damages provision of the NYLL, we may look to case law discussing the liquidated damages provision of the FLSA for guidance. See Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018) (“[I]t is clear that the New York State legislature rewrote its liquidated damages provision to cover the same ground as the FLSA“); Inclan v. New York Hospitality Group, Inc., 95 F.Supp.3d 490, 505 (S.D.N.Y. 2015) (“[C]ourts have not substantively distinguished the federal standard from the current state standard of good faith“).
In this case, Defendants have not met their “difficult” burden. To the contrary, the evidence suggests that Defendants were aware of law‘s requirements and did not comply with
Accordingly, Plaintiff is entitled to damages for Counts II, IV and V in the amount of $4,024.53 in unpaid wages and an additional $4,024.53 in liquidated damages, together with attorney‘s fees and prejudgment interest as calculated below. See Discussion 12, infra.
4. Count VI: Meal Breaks
Count VI, asserting a claim under
5. Count VII: Recordkeeping
Count VII, asserting a claim under
6. Count VIII: Time of Hire Notices
Every employer shall:
1. (a) provide 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, a notice containing the following information: the rate or 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; .... Each time the employer provides such notice to an employee, the employer shall obtain from the employee a signed and dated written acknowledgement, in English and in the primary language of the employee, of receipt of this notice, which the employer shall preserve and maintain for six years. ... 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[.]
For a violation of
Here, Wang conceded that Plaintiff was never provided with a written statement of his agreed-upon wage rate. (Wang 173:16-22). This violation was ongoing up until the date of this lawsuit and and, a fortiori, exceeded 100 days in length. Accordingly, Plaintiff is entitled to the statutory maximum of $5,000, together with costs and reasonable attorney‘s fees.
7. Count IX: Pay Stubs
Every employer shall: ...
3. furnish each employee with a statement with every payment of wages, listing the following: the dates of work covered by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day week, salary, piece, commission, or other gross wages; deductions; allowances, if any, claimed as part of the minimum wage; and net wages. 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 statement
shall include the regular hourly rate or rates of pay; the overtime rate or rates of pay; the number of regular hours worked, and the number of overtime hours worked.
For a violation of
Here, the testimony established that Plaintiff did not provide his social security number to Wang until after this lawsuit was commenced and, accordingly, was not given pay stubs with his pay during the period relevant to this lawsuit. (Xie 14:17-19, 61:8-62:9; Wang 166:1-4, 190:23-24). Although Wang initially testified that certain documents introduced at trial (Pl. Ex. 11/Def. Ex. G) were “pay stubs” (Wang 164:18, 165:9), he later corrected this testimony and clarified that they were a payroll run rather than pay stubs (Wang 190:23-24). In any event, the documents originally identified by Wang as Plaintiff‘s “pay stubs” do not apply to any payroll periods before this lawsuit. (Pl. Ex. 11/Def. Ex. G).
Therefore, the Court finds that Defendants did not provide Plaintiff with pay stubs until January 2018 at the earliest. This violation was ongoing up until the date of this lawsuit and, a
8. Count X: Breach of Implied Contract for Reimbursement
Plaintiff‘s claim for breach of an implied contract for reimbursement is predicated entirely on his testimony that he was required to spend $300 on batteries for his delivery bike. (Xie 27:1-5, 27:22-23, 28:23-29:4). Because the Court does not generally find Plaintiff‘s testimony to be credible, see Discussion 3.B.iv, supra, it declines to credit this portion of his testimony. Accordingly, Plaintiff does not prevail under Count X.
9. Counts XI and XII: Retaliation
The FLSA prohibits an employer from terminating an employee because the employee filed a complaint or instituted a proceeding against the employer under the FLSA. See
At trial, Plaintiff testified that, after Wang learned about the lawsuit, he confronted Plaintiff in the restaurant‘s kitchen. (Xie 36:22-24, 38:8-12). As Plaintiff was still an employee of the restaurant at the time, he was worried that Wang might retaliate against him, so he denied that he had filed the lawsuit. (Id. at 37:1-3). Wang then called a number on his cellphone, presumably Plaintiff‘s attorney, and told him, falsely, that there was “no such person as Xie Haifeng” at the restaurant. (Id. at 37:5-7). Wang then demanded that Plaintiff accompany him in his car and that they drive to his attorney‘s office to withdraw the complaint. (Id. at 37:7-10). Halfway through the trip, Plaintiff pointed out that it would look odd for the two of them to appear together, since Wang had just said on the phone that no one named Xie Haifeng worked there. (Id. at 37:10-14). Wang became angry and told him: “[Y]ou take care of this, otherwise if you don‘t take care of this, don‘t go back to work.” (Id. at 37:14-16). Wang then drove Plaintiff
On December 31, 2017, Plaintiff sent Wang a text message, warning Wang that “[i]f an employer fires worker for no reason, the employer needs to make one month‘s more pay” (Def. Ex. B). Wang replied, “[i]t was not the case that I fired you for no reason. It was that you left restaurant without coming back to work in the evening of Friday, the 29th day of this month.” (Id.). At trial, Wang testified point blank that he did not “fire” Plaintiff (Wang 153:5-7), but the above-quoted exchange suggests that he did, albeit for non-retaliatory reasons.
While Wang‘s testimony appears to be inconsistent with the text messages, Plaintiff‘s credibility was also damaged. In connection with his motion for a temporary restraining order, Plaintiff submitted a sworn statement, dated the same day as his alleged termination, claiming that it was “John” Chen, rather than Wang, who fired him. (Xie Decl.). Virtually all of the details of Plaintiff‘s trial testimony matched up with the affidavit, the sole exception being that Plaintiff now claimed it was a different person with whom he had the above-described encounter. (Xie 38:8-12).
In sum, serious questions concerning the credibility of both witnesses preclude the Court from making heads or tails of what really happened on December 29, 2017. But it is Plaintiff‘s affirmative burden to demonstrate that he was retaliated against in violation of the FLSA and/or the NYLL. Accordingly, Plaintiff does not prevail under Counts XI and XII.
10. Count XIII: Filing of False Internal Revenue Service Returns
The parties did not brief Plaintiff‘s claim under this statute, and the issue was excluded from the parties’ proposed pretrial order listing “Plaintiff‘s Claims Remaining to be Tried.” (ECF No. 48 (Proposed Pretrial Order) at 2-3). Assuming the claim has not been abandoned, it fails nonetheless. Courts are reluctant to infer a violation of
Accordingly, Plaintiff does not prevail under Count XIII.
11. Count XIV: GBL § 349
Plaintiff‘s claim under
Accordingly, Plaintiff does not prevail under Count XIV.
12. Prejudgment Interest
Plaintiff is entitled to prejudgment interest under Counts II, IV and V. See
“Courts applying the NYLL in wage-and-hour cases often choose the midpoint of the plaintiff‘s employment” in computing prejudgment interest. Id. (citations, internal quotation marks and alterations omitted). Under the unique circumstances of this case, however, having prejudgment interest accrue at the mid-point of Plaintiff‘s entire employment period would overcompensate him; the vast majority of Defendants’ liability accrued after December 31, 2016, when the state minimum wage was increased.9 Accordingly, the Court finds that the appropriate accrual date is June 30, 2017, which is the approximate mid-point between December 31, 2016 and December 29, 2017, the date Plaintiff left Sakura. In computing prejudgment interest, the Court applies a rate of 9% per annum. See
Accordingly, prejudgment interest should be awarded in the amount of:
$4,024.53 x (650 ÷ 365) x 9% = $645.03.
For the reasons set forth above, the Court concludes that Plaintiff is entitled to relief under Counts II, IV, V, VIII, and IX solely against Defendants Wang and Sakura. The Clerk of Court is directed to prepare a judgment reflecting this holding and setting forth Plaintiff‘s damages as $18,694.09, consisting of the following:
Counts II, IV, and V: $4,024.53 in unpaid wages under the NYLL; $645.03 in prejudgment interest; and $4,024.53 in liquidated damages.
Count VIII: $5,000.00 in statutory damages.
Count IX: $5,000.00 in statutory damages.
Pursuant to
[I]f any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent.
Plaintiff also is entitled to reasonable attorney‘s fees and costs under the NYLL. Accordingly, Plaintiff shall file a motion for fees and costs on or before May 11, 2019.
SO ORDERED.
Dated: Brooklyn, New York April 11, 2019
/s
I. Leo Glasser U.S.D.J.
Plaintiff‘s Actual Compensation
| Period | # Weeks | Weekly Pay | Comp. |
|---|---|---|---|
| 8/19/16-8/21/16 | n/a | $282.47a | $282.47 |
| 8/22/16-10/8/17 | 59 | $375.00 | $22,125.00 |
| 10/9/17-10/15/17 | 1 | $290.00 | $290.00 |
| 10/16/17 - 11/19/17 | 5 | $375.00 | $1,875.00 |
| 11/20/17/11/26/17 | 1 | $500.00 | $500.00 |
| 11/27/17-12/3/17 | 1 | $400.00 | $400.00 |
| 12/4/17-12/10/17 | 1 | $550.00 | $550.00 |
| 12/11/17-12/17/17 | 1 | $720.00 | $720.00 |
| 12/18/17-12/24/17 | 1 | $680.00 | $680.00 |
| 12/25/17-12/31/17 | 1 | $320.00 | $320.00 |
| Total | $27,742.47 |
Required Compensation under FLSA
| Period | Min. Wage | Hours / Wk | # Weeks | Comp. |
|---|---|---|---|---|
| 8/19/16-8/21/16 | $7.25 | 29.0 | n/a | $210.2500 |
| 8/22/16-10/8/17 | $7.25 | 38.5 | 59 | $16,468.3750 |
| 10/9/17-10/15/17 | $7.25 | 29.5 | 1 | $213.8750 |
| 10/16/17-11/19/17 | $7.25 | 38.5 | 5 | $1,395.6250 |
| 11/20/17-11/26/17 | $7.25 | 48.5 | 1 | $382.4375 |
| 11/27/17-12/3/17 | $7.25 | 41.5 | 1 | $306.3125 |
| 12/4/17-12/10/17 | $7.25 | 50.5 | 1 | $404.1875 |
| 12/11/17-12/17/17 | $7.25 | 64.5 | 1 | $556.4375 |
| 12/18/17-12/24/17 | $7.25 | 58.0 | 1 | $485.7500 |
| 12/25/17-12/31/17 | $7.25 | 32.5 | 1 | $235.6250 |
| Total | $20,658.88 |
Required Compensation under NYLL
| Period | Min. Wage | Hours / Wk | # Days / Wk with Spread of Hours > 10 | # Weeks | Comp. |
|---|---|---|---|---|---|
| 8/19/16-12/29/16 | $9.00 | 38.5 | 4 | 19 | $7,276.500 |
| 12/30/16 | $9.00 | 10.0 | 1 | n/a | $99.000 |
| 12/31/16 | $10.50 | 10.0 | 1 | n/a | $115.500 |
| 1/1/17 | $10.50 | 9.0 | 1 | n/a | $105.000 |
| 1/2/17-10/8/17 | $10.50 | 38.5 | 4 | 40 | $17,850.000 |
| 10/9/17-10/15/17 | $10.50 | 29.5 | 3 | 1 | $341.250 |
| 10/16/17-11/19/17 | $10.50 | 38.5 | 4 | 5 | $2,231.250 |
| 11/20/17-11/26/17 | $10.50 | 48.5 | 5 | 1 | $606.375 |
| 11/27/17-12/3/17 | $10.50 | 41.5 | 4 | 1 | $485.625 |
| 12/4/17-12/10/17 | $10.50 | 50.5 | 5 | 1 | $637.875 |
| 12/11/17-12/17/17 | $10.50 | 64.5 | 7 | 1 | $879.375 |
| 12/18/17-12/24/17 | $10.50 | 58.0 | 6 | 1 | $766.500 |
| 12/25/17-12/31/17 | $10.50b | 32.5 | 3 | 1 | $372.750 |
| Total | $31,767.00 |
NYLL Underpayment: $31,767.00 - $27,742.47 = $4,024.53.