Full opinion text
MEMORANDUM OPINION AND ORDER RICHARD J. HOLWELL, District Judge: Plaintiffs Ricardo Copantitla, Diego Diaz de la Vega, Ignacio Garcia, Freddy Guachun, Julio Lantigua, Manuel Lizondro, Martin Lopez (“M. Lopez”), Sebastian Lopez (“S. Lopez”), Augustin Maldonado, Henry Matute, Joelito Melendez, Aussencio Ramirez, and Jose Luis Vargas bring this action against defendants Fiskardo Estiatorio, Inc. d/b/a Thalassa Restaurant, George Makris, Julia Makris, Steve Makris, and Fantis Foods, Inc. Plaintiffs, who are current and former employees of Thalassa Restaurant, bring claims under the Fair Labor Standards Act (“FLSA”), New York Labor Law (“NYLL”), New York statutory and common law, and New York City law for alleged violations arising out of their employment. Now before the court are plaintiffs’ motion for partial summary judgment and defendants’ motion for partial summary judgment and to dismiss certain plaintiffs. For the reasons that follow, plaintiffs’ motion for summary judgment is GRANTED in part and DENIED in part and defendants’ motion is also GRANTED in part and DENIED in part. BACKGROUND I. The Parties A. Defendants Fiskardo Estiatorio, Inc. (“Fiskardo”), a New York corporation, has operated and done business as Thalassa Restaurant (“Thalassa”) at all times relevant to this action. (Pls.’ Rule 56.1 Stmt. ¶ 15.) Thalassa opened in November 2002 in the Tribeca neighborhood of New York City. (Id.; Defs.’ Rule 56.1 Stmt. ¶ 1.) The parties agree that Fiskardo is engaged in interstate commerce and is or was plaintiffs’ employer within the meaning of the FLSA. (Defs.’ Opp’n at 1; see also Pls.’ Rule 56.1 Stmt. ¶ 15.) Fantis Foods, Inc. (“Fantis Foods”), a New York corporation with its principal executive office in New Jersey, is a wholesale food importer and distributor that generally imports European foods. (Pis.’ Rule 56.1 Stmt. ¶ 16; see also Defs.’ Rule 56.1 Stmt. ¶¶ 29, 32.) Fantis Foods sells food and beverages to hundreds of customers, including small businesses, grocery stores, and restaurants. (Defs.’ Rule 56.1 Stmt. ¶ 31.) Among Fantis Foods’s customers is Thalassa, who represents less than 1% of Fantis Foods’s gross annual sales. (See id. ¶¶ 41, 44.) About 15-20% of Thalassa’s food is purchased from Fantis Foods. (Id. ¶ 41.) Julia Makris (“J. Makris” or “Julia”) has been the sole owner, shareholder, and President of Fiskardo since its formation in 2001. (Pis.’Rule 56.1 Stmt. ¶ 17.) Julia Makris originally conceived of the idea to open Thalassa and envisioned the type of food it would serve. (Id.) Julia’s husband, George Makris (“G. Makris” or “George”), has been President of Fantis Foods since 2002. (Defs.’ Rule 56.1 Stmt. ¶ 17; G. Makris Deck ¶ 3.) George Makris has no ownership interest in Fiskardo or Thalassa, and does not receive a paycheck from Fiskardo. (Defs.’ Rule 56.1 Stmt. ¶ 18; Pis.’ Rule 56.1 Stmt. ¶ 21.) George owns 60% of Fantis Foods. (Defs.’ Rule 56.1 Stmt. ¶ 33.) Julia became ill in February 2003, and her son Steve Makris (“S. Makris” or “Steve”), who lives with his family in an apartment above Thalassa, became her “eyes and ears” at the restaurant. (First Aranyos Deck Ex. Y [Fiskardo 30(b)(6) ] at 22:6-20; see also J. Makris Deck ¶¶2, 5; Pis.’ Rule 56.1 Stmt. ¶ 12.) Steve Makris served in that role “from day one” at Thalassa on behalf of his mother. (Pis.’ Rule 56.1 Stmt. ¶ 20.) More recently, Steve became the General Manager at Thalassa. (Ashley Deck Ex. 20 [S. Makris] at 15:17-25.) Steve Makris represents to customers and to the public that he is the owner of Thalassa, and has been responsible for determinations regarding the management and supervisory structure of the Restaurant and the payment of its employees. (Pis.’ Rule 56.1 Stmt. ¶ 20.) Steve has the authority to hire and fire Thalassa employees, to set work schedules for those employees, and has invoked his authority on occasion to fire employees. (Id. ¶ 21.) Prior to Steve’s tenure as General Manager of Thalassa, the previous general managers, the Special Events Coordinator, maitre d’s, and chefs reported to Steve regarding decisions on employment, food, service, and customer satisfaction. (Id.) In addition, Steve is the Chief Operating Officer of Fantis Foods and has held that position for “[a] few years.” (Ashley Deck Ex. 20 [S. Makris] at 14:25-15:8.) Steve is also the Treasurer of Fantis Foods and owns 20% of that company. (Defs.’ Rule 56.1 Stmt. ¶¶ 33, 34.) B. Positions at Thalassa To understand the plaintiffs’ roles at Thalassa, it is helpful first to review the different positions that exist at the restaurant. Among the “front-of-the-house” positions that exist at Thalassa are General Manager, Maitre d’, Sommelier, Captain, Runner, Expediter, Busboy, Bartender, Barback and Host/Hostess. (Defs.’ Rule 56.1 Stmt. ¶ 74.) These positions had different responsibilities, some of which are outlined below. Thalassa has always had a position titled “maitre d’ ” since its founding in 2002. (Defs.’ Rule 56.1 Stmt. ¶ 79.) In 2002, the maitre d’ was Nickos Farmakas; after Farmakas’s departure, Sait Dogan became the maitre d’, followed by George Theodosio, Henry Matute, and Kemal Kurt. (Id.) Kurt’s tenure as maitre d’ began sometime in the first half of 2008 and ended in May 2009. (See Defs.’ Rule 56.1 Stmt. ¶ 82; Aranyos Decl. Ex. JJ [Kurt] 51:10-23.) The maitre d’s responsibilities included seating and greeting customers, serving customers, and taking orders from customers. (See First Aranyos Decl. Ex. EE [Ziotas] at 55:8-24.) With respect to customers’ service needs, a maitre d’ would do “[w]hatever needs to be done.” (First Aranyos Decl. Ex. CC [S. Makris] at 71:7-13.) The maitre d’ also had certain supervisory and management functions, which could include supervising the front of the house staff, assigning work stations, creating the work schedule, supervising the training of new front-of-the-house employees, and interviewing prospective employees. (See Goodman Decl. Ex. 4 [Dogan] at 49:4-50:23, Ex. 18 [Matute] at 16:10-17:2, Ex. 19 [Kurt] at 94:7-103:21, 122:23-123:7. But see Goodman Decl. Ex 18 [Matute] at 146:10-17 (noting that Sait Dogan was the only maitre d’ who made hiring and firing decisions), Ex. 19 [Kurt] at 122:8-18 (noting that Kemal Kurt, as maitre d’, did not set work schedules).) Captains, also known as waiters, are assigned to tables in the dining room and responsible for the physical arrangement of the room and for taking food and wine orders. (Defs.’ Rule 56.1 Stmt. ¶¶ 85, 86.) Busboys are responsible for preparing the restaurant for service by, among other things, setting up the coffee stations and tables, plates, glasses, and silverware, polishing glasses, and clearing dirty dishes. (Id. ¶ 87.) Busboys also worked on the floor folding napkins and clearing tables. (Id. ¶ 88.) One busboy at a time would be assigned to the polishing station and would be responsible for polishing glass and silverware. (Goodman Decl. Ex. 16 [Diaz de la Vega] at 62:2-9.) That polishing station is located in Thalassa’s basement and is surrounded by a thick curtain. (Goodman Decl. Ex. 23 ¶ 7, Ex. 25 ¶ 4.) Runners were responsible for bringing food to the table. (Defs.’ Rule 56.1 Stmt. ¶ 90.) C. Plaintiffs Plaintiffs are current and former employees of Thalassa. (Pis.’ Rule 56.1 Stmt. ¶ 1.) Details regarding each plaintiff follow. Ricardo Copantitla has been employed by Thalassa since September 23, 2003, under the name Eduardo Garcia. (Pis.’ Rule 56.1 Stmt. ¶ 2.) Diego Diaz de la Vega was employed as a busboy by Thalassa from at least November 7, 2007. (Id. ¶ 3.) His last day at Thalassa was April 25, 2008. (Defs.’ Rule 56.1 Stmt. ¶ 122.) As a busboy, Diaz de la Vega cleared and re-set tables with linens, dishes and silverware, and prepared olives, oils, bread, and coffee for service. (Pis.’ Rule 56.1 Stmt. ¶ 3.) Near the end of his employment, Diaz de la Vega worked at the polishing station. (Id.) Ignacio Garcia was employed from approximately May 30, 2008 to September 21, 2008 by Thalassa as a busboy working in Thalassa’s main dining room. (Id. ¶ 4; Defs.’ Rule 56.1 Stmt. ¶ 124.) Freddy Guachun was employed by Thalassa from approximately 2003 through December 9, 2008. (Pis.’ Rule 56.1 Stmt. ¶ 5.) He worked as a busboy for about three years, as a runner for approximately one year, and occasionally served as an expediter in 2004. (Id.; Ashley Deck Ex. 6 [Guachun] at 31:4-9.) When Thalassa hosted banquets, Guachun also worked as a waiter, bartender, busboy, or runner depending on Thalassa’s needs. (Pis.’ Rule 56.1 Stmt. ¶ 5.) Julio Lantigua was employed from approximately July 12, 2007 to July 18, 2008 as a captain at Thalassa. (Id. ¶ 6; Defs.’ Rule 56.1 Stmt. ¶¶ 130,131.) Manuel Lizondro was employed by Thalassa from approximately January 5, 2007 through June 30, 2008, and his responsibilities primarily involved polishing. (See Pis.’ Rule 56.1 Stmt. ¶ 7; see also Defs.’ Rule 56.1 Stmt. ¶¶ 141,143.) Martin Lopez worked at Thalassa from approximately June 23, 2008 to December 23,2008. (Id. ¶ 8.) Sebastian Lopez worked at Thalassa as a busboy from approximately July 12, 2006 through December 30, 2008, except for a period from July to November 2007 when he was not employed by Thalassa. (Id. ¶ 9.) Augustin Maldonado worked at Thalassa from January 2007 to January 2008 under the name Samuel Merino and from approximately January 10, 2008 to June 30, 2009 under the name Augustin Maldonado. (Id. ¶ 10; see also Second Amended Answer ¶ 15.) At the beginning of his employment, Maldonado worked as a busboy on the restaurant’s main floor and at banquets. (Pis.’ Rule 56.1 Stmt. ¶ 10.) After about ten months, he became a runner on the main floor, but remained a busboy at banquets. (Id.) Henry Matute worked at Thalassa from approximately November 20, 2002 to April 9, 2008. (Id. ¶ 11; Defs.’ Rule 56.1 Stmt. ¶ 144.) He first worked as a busboy for four months, then as a runner and expediter for six months; by early 2004, was working as a waiter and was also responsible for overseeing banquest. (Pis.’ Rule 56.1 Stmt. ¶ 11; see also Defs.’ Rule 56.1 Stmt. ¶¶ 145-147.) Matute also assumed the duties of the maitre d’ for a short period. (Pis.’ Rule 56.1 Stmt. ¶ 11.) Joelito Melendez worked at Thalassa from approximately December 1, 2006 to March 14, 2008, working as a busboy. (Id. ¶ 12; Defs.’ Rule 56.1 Stmt. ¶¶ 148-149.) Aussencio Ramirez worked at Thalassa from approximately March 30, 2007 to September 17, 2008 as a dishwasher. (Pis.’ Rule 56.1 Stmt. ¶ 13.) Jose Luis Vargas has worked at Thalassa since approximately March 29, 2007 as a busboy. {Id. ¶ 14; Defs.’ Rule 56.1 Stmt. ¶¶ 150-151.) His responsibilities include providing water to customers, providing proper silverware, and clearing tables. (Defs.’ Rule 56.1 Stmt. ¶ 152.) II. The Structure of Thalassa and Fantis Foods A. Involvement of the Makris Family in Thalassa As mentioned above, Julia Makris is the sole shareholder of Fiskardo, doing business as Thalassa Restaurant. Her son, Steve, is her “eyes and ears” at the restaurant, and more recently, Thalassa’s General Manager. Steve Makris was not the restaurant’s first General Manager. In 2002, when Thalassa opened, its management consisted of Gregory Zapantis, Executive Chef, and Mina Newman, General Manager. (Defs.’ Rule 56.1 Stmt. ¶ 68.) Upon Newman’s departure, Sophia Zilo took over as General Manager in or around May 2004. {Id. ¶ 69; See Pis.’ Rule 56.1 Stmt. ¶ 25.) Zilo continued in that capacity until February 2008, when she was injured in an automobile accident and was unable to return to work. (Defs.’ Rule 56.1 Stmt. ¶ 70.) Tasso Zapantis (“Zapantis”) took over as General Manager later that year when it became evident that Zilo would not be able to return. {Id.) Prior to that, Zapantis had worked in other capacities at Thalassa. (Pis.’ Rule 56.1 Stmt. ¶ 24.) Zapantis began in 2003 or 2004 at Thalassa, and at that time was responsible for taking reservations. {Id.) After a year and a half of working in reservations, Steve Makris promoted him to be Special Events Manager, in charge of sales and marketing of banquets at Thalassa. {See id.; Defs.’ Rule 56.1 Stmt. ¶ 71.) Zapantis, notwithstanding his stint as General Manager, continues in his role as Special Events Manager to the present. (Pis.’ Rule 56.1 Stmt. ¶ 24.) Steve Makris assumed the role of General Manager in November 2009. (Defs.’ Rule 56.1 Stmt. ¶¶ 16, 72.) Also part of the management is Tommy Ziotas, the Vice President of Thalassa. (Pis.’ Rule 56.1 Stmt. ¶ 18; Defs.’ Rule 56.1 Stmt. ¶ 61.) Ziotas oversees the financials of Thalassa, including corporate filings, accounts receivable, and transmission of payroll information from Thalassa to its outside payroll company. (Defs.’ Rule 56.1 Stmt. ¶ 61; see also Pis.’ Rule 56.1 Stmt. ¶ 22.) Julia Makris worked at Thalassa briefly when it opened in November 2002, but shortly thereafter, because of an illness in February 2003, delegated her responsibilities at the restaurant to Ziotas and her son Steve. (Goodman Decl. Ex. 34 [J. Makris] at 18:3-9, 20:14-17.) Since that time, Julia has had only limited involvement in Thalassa’s business. In her capacity as sole shareholder of Fiskardo, Julia signed Consents to Action in Lieu of Formal Annual Meetings of Shareholders from 2001 to 2007 and in 2009 electing herself and Ziotas as directors for one-year terms. (Pis.’ Rule 56.1 Stmt. ¶ 19.) In 2008, she signed a similar Consent electing herself only as a director. {Id.) During those years, Ziotas, as Secretary of Fiskardo, signed Consents in Lieu of Formal Annual Meetings of Directors of Fiskardo electing Julia as Presidenf/Treasurer and himself as Vice President and Secretary for one-year terms. {Id.) Regarding the everyday operation of Thalassa, Ziotas has occasionally discussed with Julia how to improve the restaurant generally. (Goodman Decl. Ex. 5 [Ziotas] at 19:18-21, Ex. 34 [J. Makris] at 35:11-36:10.) Julia has also made recommendations about food and ambiance to Steve, which he sometimes followed. (Id. Ex. 6 [S. Makris] at 18:5-19:3.) She may also have made recommendations as to hiring. (Compare Goodman Decl. Ex. 6 [S. Makris] at 17:14-20 (“Q: Does she ever make recommendations to you as to whether to hire anyone, has she ever? A: She makes recommendations about a lot of things. Q: Is that one of them? A: Yeah, I guess so.”) with Aranyos Decl. Ex. AA [J. Makris] at 23:23-25 (“Q: Did Tommy [Ziotas] and Steve ever consult with you about whether to hire an employee? A: No.”) and J. Makris Decl. ¶ 8 (“I do not consult or confer with any employee or manager of the Restaurant regarding employment related matters at the Restaurant.”).) Otherwise, Julia’s role is primarily one of patron; she does not, for example, set employment compensation, determine Thalassa’s tip policy, or address employee complaints. (See Aranyos Decl. Ex. AA [J. Makris] at 29:20-32:19; J. Makris Decl. ¶11.) George Makris, Julia’s husband and Steve’s father, has never been a shareholder, director, officer, or employee of Fiskardo, and does not receive a paycheck from it. (Defs.’ Rule 56.1 Stmt. ¶ 21.) B. Overlap Between Fantis Foods and Thalassa Fantis Foods is a privately held corporation; George Makris owns 60% of the company, Steve owns 20%, and Steve’s brother, Jerry Makris, owns the remaining 20%. (Defs.’ Rule 56.1 Stmt. ¶33.) The three Makris men serve as corporate officers (President, Treasurer, and Vice President, respectively), and Steve Makris serves as Fantis Foods’s Chief Operating Officer. (Id. ¶¶ 34, Goodman Decl. Ex. 6 [S. Makris] at 14:25-15:5.) About 15-20% of Thalassa’s food is purchased from Fantis Foods, representing less than 1% of Fantis Foods’s annual sales. (Defs.’ Rule 56.1 Stmt. ¶¶ 41, 44.) Other than selling food products to the restaurant, Fantis Foods does not derive any revenue from Thalassa, and other Fantis Foods customers have received equally preferential discounts to Thalassa. (Id. ¶ 45.) Two other people outside of the Makris family have responsibilities at Fantis Foods and Thalassa. First, Tommy Ziotas, Vice President of Thalassa, also serves as Fantis Foods’s General Manager. (Defs.’ Rule 56.1 Stmt. ¶ 37.) In that capacity, his responsibilities include purchasing products, accounts payable, and accounts receivable. (Id.) Ziotas began working for Fantis Foods in 1978, and for Thalassa in 2002. (Id. ¶¶ 59, 60.) 70% of Ziotas’s income comes from Fantis Foods, and 30% comes from Thalassa; he receives separate checks from each company. (Id. ¶ 62.) Second, Kathy Zotos receives approximately 80% of her income from Fantis Foods and 20% from Thalassa in two separate checks. (Id. ¶¶ 63, 64.) At Thalassa, Zotos is primarily responsible for gathering payroll information and submitting it to the outside payroll company. (Id. ¶ 65.) Approximately once a week, either Thalassa’s General Manager or office assistant would fax the payroll data to Ziotas or Zotos, who were based in Fantis Foods’s office in New Jersey. (Id. ¶ 66; see also Goodman Decl. Ex. 5 [Ziotas] at 21:14-16, 3015-22, 39:6-20, 46:5-11.) Zotos or Ziotas would organize that information and send it to the outside payroll company that both Thalassa and Fantis Foods used, which in turn would issue paychecks for Thalassa employees. (Defs.’ Rule 56.1 Stmt. ¶ 67; Goodman Decl. Ex. 5 [Ziotas] at 46:12-47:2.) III. Front-of-the-House Dress Code The front-of-the-house employees at Thalassa have a dress code. (Defs.’ Rule 56.1 Stmt. 1191.) When the restaurant opened, captains were wore black slacks and a black vest. (Id. ¶ 94.) When Henry Matute became a captain in January 2004, the captains’ clothing also included a blue shirt, a tie, an apron and black shoes. (Goodman Decl. Ex. 18 [Matute] at 28:22-29:2.) Subsequently, Thalassa made the decision to require captains to wear suits and ties, and currently, the maitre d’ and captains wear dark suits, a white or light blue button down shirt, and dark shoes. (Defs.’ Rule 56.1 Stmt. ¶¶ 95-97.) There appears to have been an informal requirement that full-time captains at Thalassa wear the same style of suit, shirt, and tie, which were navy blue suits (that did not have the name or logo of Thalassa on them) purchased at a cost of $200 to $250 and at the captains’ expense from Sarar, a New Jersey clothing company. (See Goodman Decl. Ex. 1 [Lantigua] at 49:6-50:15, 52:25-53:12; id. Ex. 23 (“Matute Aff.”) ¶ 5; id. Ex. 18 [Matute] at 29:12-30:20, 35:21-36:2; see also Ziotas Decl. ¶¶ 35, 41-43.) For example, Lantigua wore his own black suit when he started as a captain, but after “a few weeks,” Sait Dogan, then the maitre d’, “show[ed] up with three shirts, couple of ties, and two suits” from Sarar, which Lantigua then paid for and wore when on duty. (See Goodman Decl. Ex. 1 [Lantigua] at 45:3-46:14, 47:15-47:24, 51:20-52:17, 53:15-53:24, 55:18-56:9.) Matute bought two suits for work from Century 21, a department store, but was only “allowed” to wear these suits when he served as “head server,” as the head server could wear a variety of suit styles while on duty. (See id. Ex. 18 [Matute] at 35:24-36:8; Matute Aff. ¶ 6.) When employees left Thalassa, they kept the suits and shirts. (Defs.’ Rule 56.1 Stmt. ¶ 105.) When Thalassa opened, busboys, runners, and expediters wore black slacks, a black vest, and aprons. (See Defs.’ Rule 56.1 Stmt. ¶ 107; Goodman Decl. Ex. 18 [Matute] at 25:2-10.) Matute, for example, wore a light blue shirt, a vest, an apron, black pants, and black shoes as a busboy; the pants and shoes were his. (Defs.’ Rule 56.1 Stmt. ¶ 108.) Currently, the busboys, runners, and expediters wear a black shirt, black pants, black shoes, a black apron, and a black vest. (Ziotas Decl. ¶ 45; See Goodman Decl. Ex. 16 [Melendez] 118:5-7; Defs.’ Rule 56.1 Stmt. ¶ 114.) These employees purchased their own shirts, pants, and shoes, which were theirs to keep. (Id.; see also Defs.’ Rule 56.1 Stmt. ¶¶ 111, 117, 118, 119; Goodman Decl. Ex. 28 [Maldonado] at 28:24-29:5.) Thalassa provided the aprons and vests to these employees, the costs of which were deducted from the employees’ paychecks. (Goodman Decl. Ex. 16 [Melendez], Ex. 18 [Matute] 24:24-25:17, Ex. 24 (“Copentitla Aff.”) ¶ 7, Ex. 42 (“Guachun Aff.”) ¶ 3.) None of this clothing had the name of the restaurant on it. (Ziotas Decl. ¶45; see also Defs.’ Rule 56.1 Stmt. ¶¶ 112, 116.) IV. Compensation A. Tip Pool Thalassa is a “pooled house” in which all front-of-the-house employees participate in and receive a portion of the tip pool except for the General Manager and hosts/hostesses. (Defs.’ Rule 56.1 Stmt. ¶75, 77.) The tip pool operates on a point system whereby each participant’s share of the daily tips is based on the number of points assigned to that job title. (See Goodman Decl. Ex. 28 [Maldonado] at 58:15-59:16; see also id. Ex. 6 [S. Makris] at 111:24-112:4.) B. Pay Rate Before Tips From late 2002 when Thalassa opened until approximately March 2007, Thalassa generally paid its wait staff $3.75 per hour, although it paid Guachun $5.25 per hour in 2007. (See Pis.’ Rule 56.1 Stmt. ¶ 27(a), (d), (f), (h); see also Second Ziotas Decl. ¶ 16, Ex. D.) From approximately March 2007 to July 2009, the general rate was $4.60 per hour, and after July 2009, the general rate was $4.65 per hour. (Pis.’ Rule 56.1 Stmt. ¶ 27(h), (hi).) The specific pay rate for some of the plaintiffs in this case is outlined in tabular format below. Matute was paid a base rate of as low as $2.00-$2.15 per hour in 2003, although he could earn extra money for lunch shifts he worked; Thalassa paid an extra $25 to captains for each lunch shift worked between between 2002 and 2006. (See Ashley Decl. Ex. 52; Second Ziotas Decl. ¶ 17.) For the week ending November 9, 2003, for example, Matute worked 28.88 hours, and earned a base pay of $57.79, plus “special” pay of $50 for two lunch shifts worked. (Ashley Decl. Ex. 52.) With the same caveat regarding special pay for lunch shifts, Matute was paid as low as $2.15 per hour from 2004 to 2007. (Id. Exs. 53, 54, 55, 56.) Beginning in March 2007, Matute was paid as low as $4.60 per hour until the end of his employment in approximately April 2008. (See id. Exs. 57, 58.) C. Overtime All plaintiffs occasionally worked more than 40 hours per week, and when they did, they were paid overtime compensation at 1.5 times their standard hourly rate before tips. (Pis.’ Rule 56.1 Stmt. ¶ 28.) For example, when Guachun was paid $5.25 per hour, his overtime rate was $7,875 per hour, and when Matute was paid $4.60 per hour, his overtime rate was $6.90. (Id. ¶ 29.) Thalassa used this formula until January 2009, when it began paying overtime compensation at a rate of $8.18 per hour. (Id. ¶ 30.) D. Spread of Hours Certain plaintiffs occasionally worked shifts spanning over ten hours. (Pis.’ Rule 56.1 Stmt. ¶ 31.) Until approximately December 2008, Thalassa did not pay any plaintiffs one hour of extra pay at the minimum-wage rate to compensate the time they worked beyond the span of ten hours. (Id.) V. Banquet Service Charges A. Terms Used To Refer to the Banquet Service Charges Thalassa has offered “Banquet Services,” pre-planned events in which customers negotiate the menu, number of guests, and price in advance of the event, since at least December 2002. (Pis.’ Rule 56.1 Stmt. ¶ 32.) Thalassa’s banquet rooms can accommodate large groups; it has advertised, for example, that its “Gallery Loft” can accommodate 120 seated guests and 200 for cocktails. (Id. ¶ 33.) Throughout the period that Thalassa has offered Banquet Services, it has routinely imposed and collected service charges of approximately 20% of the total food and wine bill (the “Banquet Service Charge”). (Id. ¶ 34.) The current Banquet Service Charge for Banquet Services is 15%. (Id.) In several marketing documents, Thalassa vacillated between using the words “gratuity” and “service charge” to describe the Banquet Service Charge. On a page about private dining on Thalassa’s website, for example, under the heading “Gratuity,” a paragraph informed website visitors that “[a] 20% service charge will be added to your final bill to accommodate the service staff.” (Id. ¶ 37.) Thalassa also distributed marketing materials explaining “Private Dining at Thalassa,” which included menu options for banquets; some of these menu options used the “gratuity” to describe the Banquet Service Charge, while others used the term “service charge.” (Id. ¶ 38.) Certain e-mails Thalassa sent to customers also referred to the Banquet Service Charge as a “gratuity.” (See Ashley Decl. Exs. 114, 115.) Other documents created by Thalassa to account for the collection and distribution of the Banquet Service Charge referred to it as a “Banquet Tip” or a “tip.” (Pis.’ Rule 56.1 Stmt. ¶¶53, 55.) The interchangeable use of “gratuity” and “service charge” existed in Thalassa’s banquet contracts as well. Prior to approximately September 2005, certain menu and contract proposals explaining the terms of banquets described the Banquet Service Charge using the terms “service” or “service charge.” (Id. ¶ 40.) Starting in approximately September 2005, Thalassa’s menu and contract proposals included a document called “Thalassa Restaurant Contract Details,” which contained standard contract terms. (Id. ¶ 41.) The menu and contract proposals from September 2005 through December 2008, in explaining the details of the banquet contract, explained the Banquet Service Charge using both “gratuity” and “service charge” in the explanation. (Id. ¶¶ 42, 45.) Sometimes the terms would be used interchangeably when preparing documents for the same event. (Id. ¶46.) Documents labeled “INVOICE — Final Bill,” which Thalassa provided to customers, also used both terms at times to describe the Banquet Service Charge. (Id. ¶ 49.) Thalassa requested at times that banquet customers sign and return the proposed menu and contract in advance of the banquet, which they sometimes did. (Id. ¶ 43.) The banquet contracts generally required customers to pay a portion of the cost of the banquet in advance, and it was “rare” that a patron would tip the wait staff directly on the night of a banquet, or at any other time. (Id. ¶ 44; See Second Ziotas Decl. ¶ 8.) The banquet contracts did not contain any information stating that the Banquet Service Charge would not be paid entirely to the service staff, nor did they indicate that Thalassa would keep some of it to compensate ownership or management, to pay part-time workers, or to give bonuses to banquet managers. (Pis.’ Rule 56.1 Stmt. ¶ 47.) The documents labeled “INVOICE — Final Bill” lacked that same information. (Id. ¶ 50.) B. Thalassa’s Retention of Portions of the Banquet Service Charges Thalassa retained approximately 25% of the Banquet Service Charges it collected and used that money for marketing and promotion purposes, which was recorded either as a “House”-kept portion or as a “Room Rental Fee.” (Id. ¶¶ 57, 58.) Steve Makris made the decision to retain a portion of the Banquet Service Charge for the restaurant. (Id. ¶ 59.) Thalassa also occasionally hired part-time or temporary workers to assist at banquets, who were paid at a flat rate per shift without tips. (Id. ¶ 60.) These workers were sometimes paid out of the Banquet Service Charge. (Id.) In addition, Thalassa sometimes deducted approximately 2.5% of the Banquet Service Charge to provide additional compensation to the banquet manager. (Id. ¶ 62.) VI. Defendants’ Consultation of Labor Laws Julia Makris is unfamiliar with minimum wage laws, overtime laws, and the FLSA; she has never consulted with a lawyer regarding labor laws relating to Thalassa. (Pis.’ Rule 56.1 Stmt. ¶ 66.) Steve Makris made the decision to retain a portion of the Banquet Service Charge for the house, but never consulted or otherwise informed himself as to the law relating to tip retention, is not familiar with overtime laws, does not know whether Thalassa ever consulted with counsel regarding any labor issue except that he indicated in his deposition that Ziotas may have done so, and never spoke to Ziotas about any labor law issue. (Id. ¶ 67.) The extent to which Ziotas informed himself of the FLSA and New York Labor Law’s requirements is that he called an accountant and requested “information on things that he was not aware of, such as minimum wage, if it increased during the year.” (Id. ¶ 68.) VII. Spring 2008 Incident In addition to Thalassa’s general practices, two labor-dispute incidents form the factual core of this case. The first of these incidents occurred on a Saturday night in the Spring of 2008, when nearly all of the front-of-the-house employees stopped working and left the floor during service (the “Spring 2008 Incident”). (See Aranyos Decl. Ex. SS [Lizondro] at 122:13-123:2, 124:19-21; id. Ex. KK [Kurt NLRB] at 712:10-13; id. Ex. TT [Lizondro NLRB] at 400:5-11; Goodman Decl. Ex. 3 [Diaz de la Vega] at 111:2-21.) They went to the restaurant’s office, located in its lower level. (Defs.’ Rule 56.1 Stmt. ¶ 154.) Matute acted as an Spanish interpreter during this meeting. (Id. ¶ 155.) At the meeting, the employees complained to Kemal Kurt, the maitre d’ at the time, about low paychecks, although it is disputed whether they informed Kurt that they believed that the paychecks should have been higher given the number of large private parties that had happened recently. (Compare Aranyos Decl. Ex. JJ [Kurt] at 189:10-190:15 and id. Ex. KK [Kurt NLRB] at 714:9-16 with Goodman Decl. Ex. 1 [Lantigua] at 171:9-21 and id. Ex. 3 [Diaz de la Vega] at 112:7-12.) Kurt responded that he would look into it, although there is some dispute about exactly what was said. (Compare Aranyos Decl. Ex. KK [Kurt] at 714:10-19) (“And I said T don’t do it. I don’t know what happened with the pay, but we can ask. We have a duty to do now. Please let’s go back up and continue our duties, and then we will ask Mr. Tasso and then we will take it from there.’ ”) with Goodman Decl. Ex. 3 [Diaz de la Vega] at 113:2-19 (“Q: Did he tell you he was nervous because there were customers upstairs that were not being attended to? A: No, he wasn’t all of a sudden nervous because of that. He was nervous because he didn’t know how to answer — how to answer our accusations .... Q: And at the end of the meeting he said he would look into it, correct? ... A: He agreed to two things: That he was going to make a book for tips, and number two, that he was going to find the problem to resolve it, in reference to why our checks were coming in very short.”). Kurt, like all employees at the meeting, was a member of the tip pool. (Defs.’ Rule 56.1 Stmt. ¶ 157.) After 15 or 20 minutes, the employees returned to work. (Compare Aranyos Decl. Ex. KK [Kurt NLRB] at 713:21-23, 714:22-24 with Goodman Decl. Ex. 3 [Diaz de la Vega] at 112:2-3.) In April 2008, the tip apportionment system changed to give a greater share of tips to busboys and other employees, which resulted in a lesser share of tips to captains, maitre d’s, and sommeliers. (Defs.’ Rule 56.1 Stmt. ¶ 164.) After the Spring 2008 Incident, Steve Makris fired Matute, who was “instrumental” in the incident in his opinion. (Goodman Decl. Ex. 48 [S. Makris NLRB] 164:24-165:17.) Steve Makris also fired another employee, Dominick LaRuffa, although additional factors may have been involved there. (Id. at 163:10-164:23.) Later, Kurt and Tasso Zapantis compared the Spring 2008 Incident to “gangrene” and “cancer” and intimated that “[b]efore the cancer is spread, they [would] cut off the limbs.” (Goodman Decl. Ex. 12 [Lantigua NLRB] at 221:8-19; see also id. Ex. 1 [Lantigua] at 186:23-187:16; id. Ex. 3 [Diaz de la Vega] at 101:6-101:20; id. Ex. 47 [S. Lopez NLRB] 347:8-348:5.) VIII. Employees Whose Employment Ended Following the Spring 2008 Incident After the Spring 2008 Incident, the employment of several employees at Thalassa ended. The circumstances of those departures from Thalassa are detailed below. A. Diego Diaz de la Vega Diaz de la Vega’s last day of work at Thalassa was April 25, 2008. (Defs.’ Rule 56.1 Stmt. ¶ 165.) From April 21, 2008 to April 24, 2008, Diaz de la Vega underwent paid training at the Tribeca Grand Hotel. (See Goodman Decl. Ex. 21 [Diaz de la Vega NLRB] at 770:4-771:5; Aranyos Decl. Ex. B.) Immediately after his employment at Thalassa ended, Diaz de la Vega worked at the Tribeca Grand Hotel; he worked there on April 26, 2008, from 4:15 p.m. to 3:30 a.m. (Defs.’ Rule 56.1 Stmt. ¶¶ 170, 171.) Beyond that, however, the circumstances of Diaz de la Vega’s departure are disputed. According to defendants, on April 25, 2008, a Friday, Diaz de la Vega told Kurt and Steve Makris that he could not work the following day because he needed to train at another job. (See S. Makris Deck ¶ 19; Aranyos Deck Ex. JJ [Kurt] at 303:10-20; id. Ex. KK [Kurt NLRB] at 718:9-19.) Diaz de la Vega denies that this conversation happened. (Goodman Deck Ex. 3 [Diaz de la Vega] at 107:14-108:16.) Instead, according to him, he asked Kurt if he could take the next day off because one of his cousins was coming from outside the United States, and Kurt told him that he could “take all [his] days off.” (Id. Ex. 21 [Diaz de la Vega NLRB] at 456:9-16.) Diaz de la Vega continued to work at the Tribeca Grand three or four days a week through mid-July 2008, which was his only job during that time. (Defs.’ Rule 56.1 Stmt. ¶ 178.) B. Manuel Lizondro The circumstances of Lizondro’s departure from Thalassa are in dispute as well. It is undisputed that Lizondro is the father of two children; that at some point, he told Kurt that he saved up and had no need to work; that Lizondro quit his employment sometime in the summer of 2008 perhaps in or around June; and that Kurt told Lizondro to speak with Zapantis about his decision. (See Defs.’ Rule 56.1 Stmt. ¶¶ 180, 184, 185; Goodman Deck Ex. 27 [Lizondro NLRB] at 411:18-21.) Beyond that, the two sides tell different stories. According to defendants, Lizondro told Kurt that he could not work as many hours as he had done previously because he was going to school and because of family obligations. (Aranyos Deck Ex. KK [Kurt NLRB] at 719:10-720:17.) Kurt then attempted to persuade Lizondro to keep working and suggested that Lizondro pursue accommodations to meet his scheduling needs, but Lizondro nevertheless quit. (Id.) According to Lizondro, prior to the Spring 2008 Incident, he had a schedule that allowed him to take Mondays and Tuesdays off. (Goodman Deck Ex. 27 [Lizondro NLRB] at 409:9-15.) That schedule allowed him to pay a babysitter for only three days per week, as he could take care of the children on Mondays and Tuesdays, and his wife could do so on Wednesdays and Thursdays. (Id. at 409:16-19.) After the Spring 2008 Incident, Kurt gave Lizondro Wednesdays and Thursdays off, upsetting this schedule, and would sometimes send Lizondro home after he showed up for work. (Id. at 409:22-410:16.) Because Kurt did this instead of calling him at home to cancel his shift, this further inconvenienced Lizondro because his commute from Brooklyn to Thalassa was an hour and forty-five minutes. (Id. at 410:17-24.) According to Lizondro, these efforts “were trying to tire me out so I would leave.” (Id. at 410:15.) C. Julio Lantigua Lantigua’s employment with Thalassa ended in July 2008. (Defs.’ Rule 56.1 Stmt. ¶ 130.) Prior to that, in late 2007, Lantigua began the process of seeking entrance to law schools by taking the LSAT in December 2007 and February 2008. (Id. ¶ 132.) As of February 2008, Lantigua was preparing applications for law school, including letters of recommendation, one of which he asked Sophia Zilo, the former General Manager of Thalassa, to write. (Id. ¶¶ 133, 134.) After Zilo’s accident, Zapantis prepared and signed the letter in Zilo’s name and gave it to Lantigua in April 2008. (Id. ¶ 134.) On April 2, 2008, Lantigua was accepted into CUNY School of Law for the Fall 2008 semester, and he accepted admission, completed his paperwork, and was approved for his loans in Spring 2008. (Id. ¶¶ 136, 137, 138.) Over the 4th of July weekend in 2008, Thalassa re-polished its floors and had to remove all tables, chairs, and other objects from the floor. (Id. ¶ 188.) From that point, the two sides’ stories diverge. Defendants assert that Lantigua showed up late or did not show up at all on several occasions in July 2008. (See id. ¶¶ 187, 189-191.) Subsequently, according to defendants, Lantigua informed Kurt that he could only work one or two nights per week on weekends only, and Thalassa declined the offer. (See id. ¶¶ 193-194.) In contrast, according to Lantigua, in response to the Spring 2008 Incident, his hours were reduced in 2008, and Thalassa called Lantigua in late July 2008 to fire him. (Goodman Decl. Ex. 12 [Lantigua NLRB] at 239:8-240:25.) When Lantigua asked Kurt why he was being fired, Kurt told him that he “did it to [him]self ’ because he “was getting all the busboys and the front of the house against the company.” (Id. at 242:17-23.) IX. The October 2008 Incident The second labor-dispute incident occurred on October 1, 2008, at 6:06 p.m., when a group of approximately twenty-five people, including plaintiffs Lantigua and Vargas, entered Thalassa and attempted to deliver a letter detailing alleged labor law violations by Thalassa to Kurt (the “October 2008 Incident”). (See Aranyos Decl. Ex. GG [Zapantis NLRB] at 41:23-42:20; id. Ex. KK [Kurt NLRB] at 722:22-724:15; Goodman Decl. Ex. 12 [Lantigua NLRB] at 244:16-246:1; Goodman Decl. Ex. 13; see also Defs.’ Rule 56.1 Stmt. ¶ 205.) A few customers were in the restaurant at the time. (See Aranyos Decl. Ex. KK [Kurt NLRB] at 723:9-16; Goodman Decl. Ex. 12 [Lantigua NLRB] at 322:16-24.) Initially, Kurt was happy to see Lantigua, but that changed when he saw the rest of the group walk in. (Aranyos Decl. Ex. KK [Kurt NLRB] at 724:2-12; Goodman Decl. Ex. 12 [Lantigua NLRB] at 245:13-246:1.) Shortly after the group entered, Tasso Zapantis joined Kurt. (Aranyos Decl. Ex. GG [Zapantis NLRB] at 82:15-20; Goodman Decl. Ex. 12 [Lantigua NLRB] at 246:25-247:3.) Zapantis and Kurt assert that they were never informed of the contents of the letter that the group attempted to deliver. (Aranyos Decl. Ex. GG [Zapantis NLRB] at 85:4-16; id. Ex. KK [Kurt NLRB] at 727:13-25.) Lantigua, on the other hand, asserts that he informed Zapantis and Kurt that the group was there to deliver a letter to Steve, George, and Julia Makris, that they were represented by counsel, and that the letter detailed certain alleged labor law violations on Thalassa’s part. (Goodman Decl. Ex. 12 [Lantigua NLRB] at 246:9-17.) Kurt ultimately refused to accept the letter, telling Lantigua that he was not following the proper channels. (See Aranyos Decl. Ex. GG [Zapantis NLRB] at 42:21-24; Goodman Decl. Ex. 12 [Lantigua NLRB] at 246:18-24.) The group was asked to leave and did. (See Aranyos Decl. Ex. KK [Kurt NLRB] at 727:5-9; Goodman Decl. Ex. 12 [Lantigua NLRB] at 247:4-10.) While leaving, the group started cheering and clapping in front of the restaurant. (Defs.’ Rule 56.1 Stmt. ¶ 204.) The letter that the group attempted to deliver on October 1, 2008 was ultimately delivered on October 3, 2008. (See S. Makris Decl. ¶ 13.) X. Interrogation of Vargas Steve Makris was in New Jersey on October 1, 2008, and someone at Thalassa informed him of the October 2008 Incident that night. (Defs.’ Rule 56.1 Stmt. ¶ 209.) Concerned by what he heard, Steve went to the restaurant and viewed a surveillance video of the October 2008 Incident. (Id.; Goodman Decl. Ex. 6 [S. Makris] at 128:22-129:9.) Around midnight, Steve called Nick Giakoumis, a friend of his and a New York City police officer. (See Goodman Decl. Ex. 14 [Giakoumis] at 29:2-5, 42:9-24.) The next day, Vargas, who had been part of the October 2008 Incident group, reported to work. (Defs.’ Rule 56.1 Stmt. ¶ 211.) Steve Makris was in New Jersey at the time, and Zapantis called him to say that Vargas had arrived at work. (Id. ¶ 212.) Steve then went to Thalassa, and Vargas was asked to go to the General Manager’s office, where he was questioned. (Id. ¶ 214.) That office was the same office where the employees met in the Spring 2008 Incident. (Id. ¶ 216.) Thalassa’s Executive Chef, Ralpheal Abrahante was present and served as a translator during the meeting. (Id. ¶ 219.) Steve asked Giakoumis, who was then off duty, to be present when he questioned Vargas, (See Aranyos Decl. Ex. DD [S. Makris] at 132:9-22), and Giakoumis showed up with another officer, Joseph Conway, at the restaurant in plain clothes; they accompanied Steve, Abrahante, and Zapantis for the questioning. (Aranyos Decl. Ex. DD [S. Makris] at 132:23-134:11.) There, the officers identified themselves as police officers to Vargas with their badges. (Goodman Decl. Ex. 9 [Vargas] at 121:25-122:19.) At the meeting, Steve showed a security system videotape of the October 2008 Incident to everyone in the room. (Defs.’ Rule 56.1 Stmt. ¶ 227.) Steve then questioned Vargas about the identity of the people in the video, what Vargas wanted, and about the content of the letter. (See Aranyos Decl. Ex. CC [S. Makris] at 146:11-147:2,149:25-150:4; Goodman Decl. Ex. 9 [Vargas] at 127:23-129:9, 129:20-23, 131:15-17.) Vargas told Steve that the people in the video were ex-workers and friends supporting them. (See Goodman Decl. Ex. 9 [Vargas] at 128:16-18; see also Aranyos Decl. Ex. CC [S. Makris] at 146:14-16.) Vargas also told Steve that he had a lawyer, referred some questions to his lawyer, and asked to retrieve his attorney’s card. (See Goodman Decl. Ex. 9 [Vargas] at 131:18-22, 134:9-19; see also Aranyos Decl. Ex. CC [S. Makris] at 150:7-14; Defs.’ Rule 56.1 Stmt. ¶244.) Eventually, Vargas did leave the office for a short time to retrieve his lawyer’s card and returned. (See Goodman Decl. Ex. 9 [Vargas] at 134:13-19; see also Aranyos Decl. Ex. CC [S. Makris] at 150:11— 18.) Vargas gave Steve the card, and Steve, along with the two officers, left the office. (Goodman Decl. Ex. 15 [Vargas NLRB] at 498:11-17.) Giakoumis told Steve to call 911, which he did. (Defs.’ Rule 56.1 Stmt. ¶ 240; Aranyos Decl. Ex. CC [S. Makris] at 152:17-153:3.) According to Vargas, Steve then spoke to him alone in the office, telling him that he needed to talk now, asking him whether he had been in jail before, and threatening him with arrest if he did not speak at that moment; Vargas also asserts that Steve asked the uniformed officers who arrived in response to the 911 call to arrest him. (Goodman Deck Ex. 15 [Vargas NLRB] at 499:25-501:20.) Steve denies making these statements. (See Aranyos Deck Ex. CC [S. Makris] at 158:11-16; S. Makris Deck ¶ 10.) Vargas told the two uniformed officers who arrived in response to the 911 call that the dispute was a labor dispute. (Goodman Deck Ex. 15 [Vargas NLRB] at 501:11-15, 501:21-25.) After some time, the uniformed officers left. (See Aranyos Deck Ex. CC [S. Makris] at 154:24-155:5; Goodman Deck Ex. 15 [Vargas NLRB] at 502:3-14.) Steve Makris ended the questioning and told Vargas to go home. (See Aranyos Deck Ex. CC [S. Makris] at 152:6-11; Goodman Deck Ex. 9 [Vargas] at 142:23-25.) Vargas gathered his belongings from his locker and left. (Goodman Deck Ex. 9 [Vargas] at 143:18-25.) XI. NLRB Hearing Many of the facts to be adjudicated in this litigation have already been through litigation in front of the National Labor Relations Board (“NLRB”). Administrative Law Judge Eleanor MacDonald issued a decision in that litigation on June 9, 2010, which was adopted by the NLRB on March 31, 2011, subject to modifications not relevant here. (Field Aff. Ex. A (“NLRB Decision”) at 1.) In that action, the NLRB’s Complaint alleged that Thalassa had, in violation of Section 8(a)(1) and (3) of the [National Labor Relations] Act[, 29 U.S.C. § 158(a)(1), (3) (the “Act”) ], interrogated employees, engaged in surveillance, threatened employees with termination and arrest and with physical harm, suspended employees, reduced employees’ hours, caused the termination of Manuel Lizondro, discharged employees Diego Diaz de la Vega and Julio Lantigua and retaliated by issuing a new handbook and promulgating a new rule. (NLRB Decision at 2.) Plaintiffs Vargas, Diaz de la Vega, Lantigua, Lizondro, and S. Lopez were Charging Parties in the action, while defendant Fiskardo was the respondent. (Id.) Relevant to this action, the NLRB found that Thalassa violated Section 8(a)(1) of the Act “by threatening employees with termination for engaging in protected concerted activities” when “Kurt and Zapantis warned employees to stop asking about their tips and threatened that they might be fired in the same manner as Matute and LaRuffa.” (NLRB Decision at 16.) With respect to Diaz de la Vega’s alleged termination, the NLRB credited Kurt and Steve Makris in finding that “Diaz de la Vega could no longer work at the restaurant because he had another job,” that Diaz de la Vega’s job at the Tribeca Grand would “necessarily conflict with his job at Thalassa” and that therefore, Diaz de la Vega was not fired for asking for a day off. (Id. at 17.) The NLRB also credited defendants’ version of the events with respect to Lantigua’s employment, finding that Lantigua did not appear or appeared late for work on several occasions and finding that Zapantis “fired Lantigua because he needed a full time Captain.” (Id. at 18.) The NLRB also “d[id] not find that [Thalassa] constructively discharged Lizondro,” finding that instead Lizondro had quit to attend school. (Id.) With respect to the questioning of Vargas, the NLRB found that the October 2008 Incident constituted protected activity under the Act and that Thalassa was on notice “that a current employee and a former employee were part of a group seeking a remedy for alleged labor law violations at Thalassa and that the group’s lawyer was prepared to file a suit” because of the October 2008 Incident. (Id. at 19.) The NLRB further found, crediting Vargas’s testimony, that Steve Makris threatened Vargas with arrest and told the uniformed officers that Vargas should be arrested. (Id.) Therefore, the NLRB found that Steve “engaged in a coercive interrogation of Vargas ... [and] thus violated Section 8(a)(1) of the Act.” (Id. at 20.) XII. Claims in This Action The Second Amended Complaint (“SAC”) asserts thirteen causes of action as follows: Count One alleges that defendants failed to pay plaintiffs the minimum wage required under the FLSA. (SAC ¶¶ 147-153.) Count Two alleges minimum wage violations under NYLL § 652. (Id. ¶¶ 154-158.) Count Three alleges a violation of the FLSA’s overtime provisions, and Count Four does the same under the NYLL. (Id. ¶¶ 159-169.) Count Five alleges a failure to pay “spread of hours wages of an additional hour of pay at the minimum wage for each day Plaintiffs had a spread of hours in excess of ten hours per day, in violation of the New York Labor Law.” (Id. ¶¶ 170-174.) Count Six alleges that defendants made unauthorized deductions from plaintiffs’ wages in violation of the NYLL. (Id. ¶¶ 175-179.) Count Seven alleges that defendants unlawfully retained gratuities and “charges purported to be gratuities” under the NYLL. (Id. ¶¶ 180-184.) Count Eight alleges that defendants failed to reimburse plaintiffs for the cost of purchasing, cleaning, and maintaining uniforms, in violation of the NYLL. (Id. ¶¶ 185-190.) Count Nine alleges a failure to pay “call-in pay” under the NYLL, because certain plaintiffs were sent home without pay when they reported for work at Thalassa. (Id. ¶¶ 191-194.) Count Ten alleges that defendants retaliated against plaintiffs Copantitla, Diaz de la Vega, Garcia, Lantigua, Lizondro, S. Lopez, Maldonado, Melendez, and Vargas for their complaints about violations of the NYLL. (Id. ¶¶ 195-198). Count Eleven alleges that the interrogation of Vargas was false imprisonment under New York common law. (Id. ¶¶ 199— 202.) Finally, Counts Twelve and Thirteen allege sexual harassment by Kemal Kurt against plaintiffs Diaz de la Vega and Melendez in violation of the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”). (Id. ¶¶ 203-216.) XIII. The Motions The parties have filed cross-motions for partial summary judgment. Plaintiffs seek summary judgment on whether: (1) defendants illegally retained gratuities or charges purported to be gratuities; (2) defendants violated minimum wage laws; (3) defendants violated overtime laws; (4) defendants violated New York State spread of hours law; (5) Fiskardo, Julia Makris, and Steve Makris are “employers” under the FLSA and the NYLL; and (6) plaintiffs are entitled to liquidated damages. Defendants seek summary judgment that: (1) plaintiffs’ counsel has a conflict of interest requiring disqualification; (2) George and Julia Makris are not “employers” under the FLSA, the NYLL, or the New York State and City Human Rights Laws; (3) Fantis Foods is not an “employer” of plaintiffs; (4) Vargas’s false imprisonment claim must be dismissed; (5) plaintiffs were not required to wear “uniforms” under New York law; (6) Melendez’s claim for hostile work environment cannot survive; (7) Diaz de la Vega’s claim for quid pro quo sexual harassment cannot survive; (8) defendants did not retaliate in violation of New York Labor Law; (9) procedural issues bar certain claims in this action; (10) Garcia’s allegations regarding his retaliation claim should be stricken; (11) a failure to meet certain discovery obligations implies that M. Lopez and Copantitla’s claims should be dismissed; and (12) certain plaintiffs are not entitled to equitable tolling. DISCUSSION I. Standard for a Motion for Summary Judgment Summary judgment is proper if the moving party shows that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Proc. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In deciding whether there is a genuine issue of material fact as to an element essential to a party’s case, the court must examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party.” Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir.2002) (internal quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must demonstrate that no genuine issue exists as to any material fact. Celotex, 477 U.S. at 323-25, 106 S.Ct. 2548. As to an issue on which the non-moving party bears the burden of proof, “the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548 (rejecting a construction of Rule 56(c) that would require the party moving for summary judgment to produce evidence affirmatively establishing the absence of a genuine issue of material fact with respect to an issue on which the nonmoving party bears the burden of proof). If the moving party makes such a showing, the “non-movant may defeat summary judgment only by producing specific facts showing that there is a genuine issue of material fact for trial.” Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.1996); Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. In seeking to show that there is a genuine issue of material fact for trial, the non-moving party cannot rely on mere allegations, denials, conjectures or conclusory statements, but must present affirmative and specific evidence showing that there is a genuine issue for trial. See Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505; Gross v. Nat’l Broad. Co., 232 F.Supp.2d 58, 67 (S.D.N.Y.2002). II. Conflict of Interest The Court begins its analysis by examining defendants’ claim that plaintiffs’ counsel has a conflict of interest in pursuing the illegal retention of tips claim. According to defendants, “plaintiffs’ counsel presented a claim on behalf of certain plaintiffs — busboys and waiters (ie., ‘correctly tipped employees’) — where, if they prevail, will expose other plaintiffs — ‘polishers’ and ‘managers’ (ie., ‘incorrectly tipped employees’) — to liability.” (Defs.’ Mem. at 2.) This is because some plaintiffs accused others of improperly participating in the tip pool during depositions, and defendants have now asserted a counterclaim for a “ ‘set-off from the ‘incorrectly tipped employees’ who are named as plaintiffs for any amounts they were improperly paid.” (Id. at 2-3.) Thus, “[i]f the ‘correctly tipped employees’ ultimately prevail on their claim that fellow plaintiffs improperly received tips, defendants’ counterclaim seeks to recover the tips paid to polishers and managers (as a set-off to damages awarded, if any).” (Id. at 3.) Defendants contend that plaintiffs’ counsel must therefore be disqualified or, in the alternative, that plaintiffs’ illegal retention of tips claim must be dismissed to alleviate the conflict. Generally, disqualification motions are disfavored, as they “are often interposed for tactical reasons, and ... even when made in the best of faith, such motions inevitably cause delay.” Evans v. Artek Sys. Corp., 715 F.2d 788, 791-92 (2d Cir.1983) (internal quotation marks omitted). Accordingly, such motions are “subjected to a high standard of proof.” Merck Eprova AG v. ProThera, Inc., 670 F.Supp.2d 201, 207 (S.D.N.Y.2009). Nevertheless, the Second Circuit has stated that “[i]n cases of concurrent representation, we have ruled it is ‘prima facie improper’ for an attorney to simultaneously represent a client and another party with interests directly adverse to that client.” Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127, 133 (2d Cir.2005). And the Second Circuit has also stated that “in the disqualification situation, any doubt is to be resolved in favor of disqualification.” Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir.1975). In deciding disqualification motions, a court “balance[s] ‘a client’s right freely to choose his counsel’ against ‘the need to maintain the highest standards of the profession.’ ” Hempstead, 409 F.3d at 132 (quoting Gov’t of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir.1978)). Although “decisions on disqualification motions often benefit from guidance offered by the American Bar Association (ABA) and state disciplinary rules, such rules merely provide general guidance and not every violation of a disciplinary rule will necessarily lead to disqualification.” Id. (internal citations omitted). In this case, plaintiffs’ counsel are not representing clients with directly adverse interests. Certainly, if defendants have stated a viable counterclaim, then pursuing the improper tip distribution claim could be said to put plaintiffs’ counsel in a position where they are advocating for the “correctly tipped employees” to the detriment of the “incorrectly tipped employees.” But defendants’ counterclaim has no basis in law. Defendants’ counterclaims are styled “set-offs” and assert that if it is determined that gratuity from the tip pool was improperly paid to certain plaintiffs, that any amount of improper payment should be used to set off any monetary judgment awarded to that plaintiff. (See Second Amended Answer ¶¶ 272-316.) These counterclaims do not specify any provision of law on which defendants rely for the legal existence of such counterclaims, and although “setoff can be claimed ... a party must have a legally subsisting cause of action upon which it could maintain an independent claim” to do so. Bendat v. Premier Broadcast Group, Inc., 175 A.D.2d 536, 572 N.Y.S.2d 796, 798-99 (N.Y.App.Div. 1991). The one case that defendants cite, Hoyle v. Dimond, 612 F.Supp.2d 225, 231 (W.D.N.Y.2009), does not support the proposition that an employer can recover from its employees money that the employees received as a result of an improper tip distribution. First, that case is not factually on point, as it involved a plaintiff suing a monastery falsely holding itself out as Benedictine to recover money he had given the monastery based on that representation. See Hoyle, 612 F.Supp.2d at 228-29, 231. Second, neither of the causes of action on the page cited by defendants, namely unjust enrichment and money had and received, apply to this action. “A cause of action for money had and received is established where (1) the defendant received money belonging to [the] plaintiff, (2) the defendant benefited from receipt of the money, and (3) under principles of equity and good conscience, the defendant should not be permitted to keep the money.” State v. Int’l Asset Recovery Corp., 56 A.D.3d 849, 866 N.Y.S.2d 823, 826 (N.Y.App.Div.2008) (internal quotation marks omitted). Defendants’ counterclaim fails on the first element: if an employee improperly received money from a tip pool, then it is not money belonging to Thalassa, but money belonging to another employee. It also fails on the third: it hardly seems in keeping with “principles of equity and good conscience” to disgorge tips from an employee who did nothing but receive the money his employer paid him. “The theory of unjust enrichment lies as a quasi-contract claim,” IDT Corp. v. Morgan Stanley Dean Witter Co., 12 N.Y.3d 132, 879 N.Y.S.2d 355, 907 N.E.2d 268, 274 (2009), and is “based on the equitable principles that a person shall not be allowed to enrich himself unjustly at the expense of another.” Banco Popular North America v. Lieberman, 75 A.D.3d 460, 905 N.Y.S.2d 82, 85 (N.Y.App.Div. 2010). That doctrine’s applicability to this action is also problematic, as again, to the extent the “improperly tipped employees” were improperly tipped, it was at the expense of the other employees, not Thalassa. Because defendants’ counterclaims are legally insufficient, plaintiffs’ counsel are not in a position where advocating for the retention of tips claim would be detrimental to other clients, and there is no conflict of interest. The Court now turns to plaintiffs’ motion for summary judgment on the substantive wage claims. III. Tip Deductions Plaintiffs first argue for summary judgment on whether defendants unlawfully retained gratuities or charges purported to be gratuities in violation of the NYLL. A. Applicable Law The relevant statutory provision, N.Y. Lab. Law § 196-d, provides in relevant part that “[n]o employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.” In 2008, the New York Court of Appeals held that “the statutory language of Labor Law § 196-d can include mandatory charges when it is shown that employers represented or allowed their customers to believe that the charges were in fact gratuities for their employees.” Samiento v. World, Yacht Inc., 10 N.Y.3d 70, 854 N.Y.S.2d 83, 883 N.E.2d 990, 996 (2008). The Court of Appeals reasoned that “[b]oth the plain meaning of Labor Law § 196-d and its legislative history establish that the service charges at issue in this appeal are contemplated within Labor Law § 196-d.” Id., 854 N.Y.S.2d 83, 883 N.E.2d at 994. “[T]he standard under which a mandatory charge or fee is purported to be a gratuity should be weighed against the expectation of the reasonable customer as this standard is consistent with the purpose of Labor Law § 196-d.” Id., 854 N.Y.S.2d 83, 883 N.E.2d at 994-95. Banquet charges are not exempted from this provision. Id., 854 N.Y.S.2d 83, 883 N.E.2d at 995. B. Retroactivity of World Yacht Defendants contend, however, that World Yacht ought not to be applied retroactively, and that therefore all plaintiffs’ claims for service charges accruing prior to 20