Jeong Woo Kim v. 511 E. 5th Street, LLC (133 F. Supp. 3d 654, 2015)

MEMORANDUM DECISION AND ORDER

FRANK MAAS, United States Magistrate Judge.

Plaintiff Jeong Woo Kim (“Kim”) brings this action against defendants 511 E. 5th Street, LLC (“511”), d/b/a Goat Town, Nicholas Morgenstern (“Morgenstern”), and Joel Hough (collectively, the “Defendants”), under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”), N.Y. Lab. Law § 190 et seq. On December 13, 2013, the Court conditionally certified the case as a collective action under the FLSA on behalf of kitchen staff members employed by the Defendants. (ECF No. 49). Thereafter, Abdulaye Tounkara (“Toun-kara”) and Juan Saiteros (“Saiteros”) joined the action as plaintiffs. (ECF Nos. 58, 59).

All three plaintiffs (collectively, the “Plaintiffs”) have now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In their motion, the Plaintiffs seek a determination that the Defendants: (a) failed to pay Kim and Saiteros overtime in violation of the FLSA and NYLL; (b) failed to provide the Plaintiffs with wage notices and wage statements in violation of the NYLL; (c) failed to pay Kim and Tounkara spread of hours premiums in violation of the NYLL; and (d) wilfully violated both the FLSA and NYLL, thereby entitling the Plaintiffs to recover liquidated damages. In addition, the Plaintiffs seek a determination that.511 and Morgenstern are jointly and severally liable under both statutes. Finally, the Plaintiffs maintain that they are entitled to an award of $47,489.50 in back wages, liquidated damages, and statutory penalties. (See ECF No. 68 (Mem. of Law in Supp. of Pis.’ Mot. for Summ. J. (“Pis.’ Mem.”)) at 3-4). For the reasons set forth below, the Plaintiffs’ motion, (ECF No. 67), is granted in part and denied in part.

I. Relevant Facts

Except where otherwise noted, the following facts are set forth in the light most favorable to the Defendants.

The Defendants operate a restaurant in Manhattan known as “Goat Town.” Mor-genstern is the managing partner, handling the day-to-day operations of Goat Town, including the hiring and firing of employees, staff and payroll, and human resources. (Morgenstern Decl. ¶ 1; Mor-genstern Tr. 8-9; but see Morgenstern Tr. at 24-25 (testimony that Morgenstern’s payroll and human resources duties were limited to signing paychecks)).

In early 2012, Kim responded to a job listing posted by the Defendants, expressing interest in a sous chef position at Goat Town. (Kim Tr. 73, 77). In April 2012, Kim was hired on a “consulting basis,” and he remained at Goat Town until August of that year. (Morgenstern Tr. 21; Kim Tr. 81). At the time of his hiring, Kim was applying for a visa, and Goat Town agreed to serve as his sponsor. (Kim Tr. 82; Morgenstern Decl. ¶ 8). Since Kim lacked a social security number, Goat Town could not pay him through its regular payroll. Accordingly, as an alternative, the Defendants initially paid Kim $550 in cash each week. These payments later were reduced to $400 per week about five weeks before Kim’s departure from the restaurant, after Kim abandoned his visa application and began working fewer hours. Kim did not receive any pay stubs, but the Defendants documented all of their payments to him at year-end on a “1099” form. (Pis.’ R. 56.1 Stmt. ¶ 12; Morgen-stern Decl. ¶ 4; Morgenstern Tr. 29-30, 40; Kim Tr. 86-87; Ex. 5).

Kim has significant culinary training, including degrees from the French Culinary Institute in Vancouver and the Culinary Institute of America. (Kim Tr. 18-21). Despite having been hired as a sous chef, however, Kim maintains that he actually worked as a line cook and that his primary duties involved cleaning, washing dishes, and preparing food. (Kim Decl. ¶¶ 1, 3). Kim also did butchering, helped with ordering and inventory, and occasionally helped with scheduling, but contends that he did not manage other staff members or have the authority to hire or fire, and never was asked to provide input regarding such decisions. (Morgenstern Decl. ¶ 8; Morgenstern Tr. 22; Kim L>ecl. ¶ 3; Kim Tr. 110-111).

Goat Town is open from 5 p.m. to 11 p.m. or 12 a.m. during the week. In addition, the restaurant serves brunch on weekends beginning at 10 a.m. (Morgen-stern Tr. 42). Despite this schedule, Kim contends that he typically worked fourteen-hour days, either five or six days per week. (Kim Decl. ¶ 2).

The opt-in plaintiffs, Tounkara and Saiteros, have not submitted any affidavits or declarations detailing the circumstances of their employment. Tounkara, however, appears to have been employed by Goat Town from October 2012 until June 2013, (see Exs. 11, 13), and Saiteros appears to have been employed there from late April until mid-June 2011, (Ex. 12). According to Goat Town’s time records, Tounkara’s workday exceeded ten hours per day approximately once each week. (Ex. 13).

The Defendants maintain that all Goat Town employees other than Kim and the head chef were paid on an hourly basis and “receive[d] overtime at one and one-half their regular rate for all hours worked over 40 hours a week.” (Morgenstern Class Cert. Decl. ¶ 5 (parentheses omitted); see also Morgenstern Tr. 25 (“Q. Do you pay your employees on a fixed salary basis? A. No.”)). Earn disagrees, alleging that all kitchen staff members were compensated on a salaried, rather than an hourly, basis, and therefore did not receive overtime pay. Kim bases this assertion on complaints by other kitchen staff members that he had overheard. (Kim Decl. ¶ 4).

II. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact” based on supporting materials in the record. Fed.R.Civ.P. 56. “An issue of fact is genuine if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ A fact is material if it ‘might affect the outcome of the suit under the governing law.’ ” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

In deciding a motion for summary judgment, the Court must “view the evidence in the light most favorable to the party opposing summary judgment and must draw all permissible inferences” in favor of that party. Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 78 (2d Cir.2002); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997). To defeat a motion for summary judgment, the nonmoving party cannot simply rely upon allegations contained in the pleadings that raise no more than “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the nonmoving party must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

Assessments of credibility, choosing between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the Court. Fischl, 128 F.3d at 55; see also Fed.R.Civ.P. 56(e) 1963 Advisory Committee’s note. Thus, “[t]he court’s function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried.” Fischl, 128 F.3d at 55.

III. Analysis

A. Overtime

The FLSA establishes a minimum hourly wage that employers must pay their employees and requires that the employers pay overtime wages, at a rate of one and one-half times an employee’s normal hourly rate, for any hours worked in excess of forty hours in a single week. 29 U.S.C. §§ 206, 207. The NYLL requires overtime pay that is consistent with the FLSA. See 12 N.Y. Comp.Codes R. & Regs. tit. 12, § 142-2.2 (“An employer shall pay an employee for overtime ... in the manner and methods provided in and subject to the exemptions of [the FLSA].”).

At the summary judgment stage, “if an employer’s records are inaccurate or inadequate, an employee need only present ‘sufficient evidence to show the amount and extent of [the uncompensated work] as a matter of just and reasonable inference.’ ” Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir.2011) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)). An employee may “meet this burden through estimates based on his own recollection.” Kuebel, 643 F.3d at 362. The burden then shifts to the employer to “come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence.” Anderson, 328 U.S. at 687-88, 66 S.Ct. 1187. “If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” Id.

The FLSA’s overtime requirements nevertheless are subject to a number of exemptions. In this case, the Defendants evidently contend that Kim is exempt from those requirements because he was “employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The bona fide executive exemption applies to any employee:

(1) [c]ompensated on a salary basis at a rate of not less than $455 per week ..., exclusive of board, lodging or other facilities; (2) [w]hose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (3) [w]ho customarily and regularly directs the work of two or more other employees; and (4) [w]ho has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

29 C.F.R. § 541.100(a).

Insofar as relevant, the bona fide professional exemption applies to any employee:

(1) [c]ompensated on a salary or fee basis at a rate of not less than $455 per week ..., exclusive of board, lodging, or other facilities; ... (2) [w]hose primary duty is the performance of work: (i) [requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction ....

Id. § 541.300(a). Chefs may fall into the exemption for professionals. As the Code of Federal Regulations explains, “executive chefs and sous chefs, who have attained a four-year specialized academic degree in a culinary arts program, generally meet the duties requirements for the learned professional exemption.” Id. § 541.301(e)(6). On the other hand, “[t]he learned professional exemption is not available to cooks who perform predominantly routine mental, manual, mechanical or physical work.” Id.

“[BJecause the FLSA is a remedial act, its exemptions ... are to be narrowly construed.” Martin v. Malcolm, Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991). Moreover, an employer such as Goat Town “bears the burden of proving that its employees fall within an exempted category of the Act.” Id.

1. Kim

The parties disagree as to whether Kim is exempt from the FLSA and NYLL overtime requirements. The Plaintiffs seek-summary judgment that Kim is not exempt, noting that he earned less than $455 per week during the final weeks of his employment, had his salary lowered when his hours declined, and allegedly performed work more typical of a non-exempt line cook than a sous chef. (See Pis.’ Mem. at 1-2, 6-12; Ex. 5). The Defendants maintain to the contrary that Kim is exempt because he was paid $550 per week for twelve weeks of his employment, resulting in an average weekly salary of more than $455 per week. They also suggest that his primary tasks were commensurate with those of an exempt professional chef and included various administrative duties. (Defs.’ Mem. at 8-10; Morgen-stern Decl. ¶¶ 7-9).

The parties also disagree with respect to the hours that Kim worked. Kim alleges that he often worked as many as fourteen hours per day, five or six days per week. (Kim Decl. ¶ 2). The Defendants contend that Earn worked closer to forty hours per week. (See Morgenstern Decl. ¶¶ 10-11).

Turning first to the issue of exemptions, both the executive and learned professional exemptions require as their first element that an employee be paid at least $455 per week and do not provide for income averaging. It therefore is apparent that the Defendants cannot invoke any exemption to the requirement to pay overtime for the last five weeks that Kim worked at Goat Town. Nevertheless, Kim was above the salary threshold earlier during his employment and appears to have studied cooking for a total of four years, earning two degrees. (See Kim Tr. 18-21). Depending on what his actual duties were, the Defendants may be able to prove that he was an exempt sous chef during this earlier time period. Summary judgment therefore must be denied to the extent that the Plaintiffs seek a ruling that Kim was not exempt from the overtime laws during the period that he was being paid $550 per week.

Turning to the hours that Kim actually worked, there are no records of his time. Kim maintains that he typically worked fourteen hours per day, but the Defendants maintain that this is unlikely, given the hours that the restaurant was open. There is, in fact, some evidentiary support for the Defendants’ position since the time records that do exist show that other kitchen staff rarely worked anything approaching fourteen hours per day. (See Ex. 13). Morgenstern also has testified that Kim’s estimates of his time at work are exaggerated. (Morgenstern Tr. 16).

In sum, there is a factual issue as to how often Kim worked more than forty hours per week and the number of overtime hours that he worked during such weeks. For that reason, even if the Defendants are unable to claim that Kim was exempt from the overtime laws for some or all of the time that he worked at Goat Town, the Court cannot award summary judgment with respect to Kim’s overtime claims.

2. Saiteros

The Plaintiffs seek summary judgment on opt-in plaintiff Saiteros’ claim that the Defendants failed to pay him an overtime premium for the week ending April 24, 2011, despite his having worked fifty-six hours that week. (Pis.’ Mem. at 14). The Plaintiffs base this claim on a Goat Town payroll spreadsheet for the week ending April 24, 2011, which indicates that Saiteros was paid his regular rate for the fifty-six hours that he worked that week. (See Ex. 8). According to that spreadsheet, Saiteros’ hourly pay rate was $8.50, and he was paid a total of $476, suggesting that he received no overtime. The Defendants contend that this business record is insufficient to establish an overtime violation because Saiteros has not supplemented it with an affidavit or declaration stating that he worked overtime that week. (See Defs.’ R. 56.1 Stmt. ¶ 10). As they explain, although the record shows that Saiteros was paid for fifty-six hours, nowhere does it say that he worked for fifty-six hours. (Id.).

The spreadsheet is curious because it confirms that seven other employees were paid overtime at one and one-half times their customary hourly rates that same week. Moreover, those employees’ additional hours are reflected in a separate overtime column. By comparison, Saite-ros’ hours are all reflected in the column for non-overtime hours. While there might be some explanation for this anomaly, the Defendants have not challenged the authenticity of this business record, nor have they suggested any reason to doubt its accuracy. Accordingly, because the record satisfies the Plaintiffs’ burden of showing that Saiteros worked fifty-six hours yet was paid no overtime, the Plaintiffs will be awarded partial summary judgment in favor of Saiteros for sixteen hours of overtime based on his $8.50 per hour base rate, ie., a total of $204.

B. Wage Notices

Under the NYLL, at the time of hiring, employers must provide employees with a notice setting forth the employee’s “rate[ ] of pay.” N.Y. Lab. Law § 195(l)(a). For nonexempt employees, the notice also must state the “overtime rate of pay.” Id. Any employee not provided such a notice within ten business days following their first day of employment, “may recover in a civil action damages of fifty dollars for each work day that the violations occurred or continue to occur, but not to exceed a total of five thousand dollars, together with costs and reasonable attorney’s fees.” Id. § 198(l-b). The wage notice requirement went into effect on April 9, 2011, and thus appears applicable to each of the Plaintiffs. See Cuzco v. F & J Steaks 37th St. LLC, No. 13 Civ. 1859(PAC), 2014 WL 2210615, at *3 (S.D.N.Y. May 28, 2014).

1. Kim

Kim contends that Defendants never furnished him with a wage notice at the time he was hired. (Pis.’ Mem. at 15; Kim Decl. ¶ 7). In support of this claim, Kim cites an email exchange between Morgen-stern and his counsel, in which Morgen-stern appears to concede that the Plaintiffs did not receive any written wage notices when they started working. {See Pis.’ Mem. at 14-15; Ex. 10). The Defendants do not dispute the accuracy of Morgen-stern’s admission, but instead assert that the email exchange is privileged and, therefore, inadmissible. (Defs.’ R. 56.1 Stmt. ¶ 7). Assuming that the email is inadmissible, Kim still has stated under oath that he never received a wage notice, (Kim Decl. ¶ 7), and the Court must credit that assertion in the absence of any evidence to the contrary. Here, there is no such evidence. Moreover, during his deposition, Morgenstern appears to have again conceded that the Defendants did not furnish a notice to Kim when he started work. {See Morgenstern Tr. 22). Kim is therefore entitled to summary judgment with respect to his wage notice claim.

2. Saiteros and Tounkara

Saiteros and Tounkara allege that the Defendants similarly failed to furnish them with wage notices at the time of their hiring, or at any time thereafter. (Pis.’ Mem. at 15-16). Their wage notice claims differ from the wage notice claim asserted by Kim, however, because they have not furnished the Court with any sworn statements establishing that the Defendants failed to provide them with such notices. {See Pis.’ Mem. at 15; Pis.’ R. 56.1 Stmt. ¶ 11). Instead, these Plaintiffs maintain that they are entitled to summary-judgment merely because the Defendants failed to produce copies of the required notices during discovery. (Pis.’ Mem. at 15; Pis.’ R. 56.1 Stmt. ¶ 11). Saiteros and Tounkara also presumably rely on the admission that Morgenstern made in his email exchange with his counsel. In that email, Morgenstern said that only “verbal” information was supplied when employees started to work at Goat Town. {See Ex. 10).

The Defendants note that Morgenstern testified during his deposition that Saiteros and Tounkara were, in fact, provided with wage notices. (Defs.’ R. 56.1 Stmt. ¶ 11 (citing Morgenstern Tr. 30)). Although the transcript excerpt that the Defendants cite relates to “pay stubs,” Morgenstern also testified that all of the Goat Town employees received certain documents required by New York State when they were hired:

Q. If I was to come work for you, ... would you give me certain forms to fill out before I start working?

A. Yes.

Q. What kind of forms would you have me fill out?

A. You would get a wage statement.

Q. When you say “a wage statement,” in this context, what is the wage statement?

A. It’s a document from the state website, fill it out according to what they require.

(Morgenstern Tr. 28-29). Morgenstern refers to this document as a “wage statement,” but it seems apparent that he was in fact referring to a wage notice.

Morgenstern thus has made two inconsistent statements regarding whether notices were furnished to Saiteros and Toun-kara when they were hired. Moreover, neither of these employees has stated under oath that they did not receive a timely wage notice. In these circumstances, there clearly is an issue of fact, and these Plaintiffs, therefore, are not entitled to summary judgment with respect to this aspect of their wage notice claim.

C. Wage Statements

Under the NYLL, an employer also must “furnish each employee with a statement with every payment of wages” that sets forth, among other information, “the dates of work covered by that payment of wages; ... 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.” N.Y. Lab. Law § 195(3). For all nonexempt employees, this statement must also “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.” Id. Any employee not provided such a wage statement is entitled to “recover in a civil action damages of two hundred fifty dollars for each work day that the violations occurred or continue to occur, but not to exceed a total of five thousand dollars, together with costs and reasonable attorney’s fees.” Id. § 198(1 — d).

1. Kim

The Plaintiffs contend that the Defendants never provided Kim with wage statements when he was paid and therefore violated the NYLL. (Pis.’ Mem. at 16-17). During his deposition testimony, Morgenstern admitted that Kim never received a “pay stub” while he was a Goat Town employee. (See Pis.’ R. 56.1 Stmt. ¶ 12; Morgenstern Tr. 29). In the absence of any evidence to the contrary, this testimony alone is sufficient to meet the Plaintiffs’ burden. Summary judgment therefore is granted in favor of Kim with respect to his wage statement claim.

2. Saiteros and Tounkara

Saiteros and Tounkara similarly allege that the Defendants failed to provide them with wage statements when they received their pay. (Pis.’ Mem. at 16-17). They have, however, failed to adduce any evidence to support this claim. (See Pis.’ R. 56.1 Stmt. ¶ 13). Furthermore, Morgenstern testified at his deposition that Goat Town employees other than Kim did receive such statements:

Q. Did you provide pay stubs for all your other employees also?

A. Yes.

Q. Currently and before? .

A. Always.

Q. You always gave pay stubs to all your employees?

A. Always.

(Morgenstern Tr. 30). Morgenstern also has stated under oath that, unlike Kim, “[e]very other employee reeeive[d] ... wage statements.” (Morgenstern Deck ¶ 16).

Although Morgenstern’s statements are admittedly general, they suffice to raise a question of fact as to whether Saiteros and Tounkara received wage statements along with their pay. Summary judgment as to the wage statement claims of these plaintiffs, therefore, must be denied.

D. Spread of Hours

Under the NYLL, an employee is entitled to “receive one hour’s pay at the basic minimum hourly wage rate ... for any day in which ... the spread of hours exceeds [ten] hours.” N.Y. Comp.Codes R. & Regs. tit. 12, § 142-2.4. The term “spread of hours” is, in turn, defined as the “length of the interval between the beginning and end of an employee’s workday,” and it “includes working time plus time off for meals plus intervals off duty.” Id. § 146-1.6. In the restaurant industry, effective January 1, 2011, employers must pay this spread of hours premium to “all employees ... regardless of a given employee’s regular rate of pay.” N.Y. Comp.Codes R. & Regs. tit. 12, § 146 — 1.6(d). The term “employee,” however, excludes persons who fall within the exemptions for executive or professional workers. N.Y. Comp.Codes R. & Regs. tit. 12, §§ 142-2.14(c)(4)(i), (ii).

1. Kim

Kim contends that he is entitled to spread of hours premiums because he typi- ' cally worked fourteen hours per day throughout his employment at Goat Town. (