Recio v. D'Almonte Enters. Parking Garage, Inc.
Docket Number | 22 Civ. 6153 (RA) (GWG) |
Decision Date | 05 July 2023 |
Citation | 680 F.Supp.3d 448 |
Parties | Isidro RECIO, et al., Plaintiffs, v. D'ALMONTE ENTERPRISES PARKING GARAGE, INC., et al., Defendants. |
Court | U.S. District Court — Southern District of New York |
Anna Goldstein, Steven Arenson, Avi Mermelstein, Arenson, Dittmar and Karban, New York, NY, for Plaintiffs.
Diana Y. Seo, Robert Jun, Seo Law Group, PLLC, Flushing, NY, for Defendants.
PlaintiffsIsidro Recio, Dario Almonte, Radhames Rodriguez, Jose Pichardo de la Cruz, and Ulrich Zimerman Hernandez, on behalf of themselves and a putative class and proposed collective, have sued defendantsD'Almonte Enterprises Parking Garage, Inc., Ramcell Parking Corporation, IB Parking Lot, Inc., 119 Parking Lot Corporation, Rafael Almonte, Dayhana Martinez, Kelvin Mejia, Ariel Reyes, and Miguel Velazquez, asserting that the defendants violated the Fair Labor Standards Act,29 U.S.C. §§ 201 etseq.("FLSA"), and New York State Labor Law wage-and-hour provisions.See Complaint, filed July 19, 2022(Docket # 1)("Comp."); First Amended Complaint, filed Nov. 14, 2022(Docket # 16)("Am. Comp.").Before the Court is plaintiffs' motion for conditional approval of a collective action pursuant to 29 U.S.C. § 216(b).1For the reasons stated below, plaintiffs' motion is granted.
The named plaintiffs in this case allege they are or were employees of defendants, seeAm. Comp. ¶ 5, which are New York parking garages and their owners and operators, id.¶ 10.The defendants have employed workers as "parking attendants and other occupations related to the parking garage business, whose work included . . . parking, moving, and retrieving vehicles[;] taking and providing tickets[;] collecting fees from patrons[;] and other non-managerial parking garage-related work."Id.¶ 38.All of the corporate defendants make up a "single integrated enterprise" majority-owned and operated by Rafael Almonte, and typically plaintiffs would report work issues to Rafael Almonte or Reyes.Id.¶¶ 60, 62-64, 66.
Plaintiffs were paid in cash once a week, id.¶ 70, and defendants required employees to work 15-30 minutes "off-the-clock" every day they worked, id.¶ 71.Defendants deducted cash from the envelopes containing their weekly pay based on damage to vehicles or customer underpayments, id.¶ 71, 98-102, 120-124, 139-144, 156-158, 170-176, and they did not pay proper minimum wage or overtime wage rates, id.¶¶ 78, 92-94, 104, 113-116, 125, 131-134, 145, 151-153, 160, 164-167, 169, 177.
Plaintiffs filed this suit on July 19, 2022.See Comp.They now move for approval of an FLSA collective and of a proposed notification to putative members of the collective pursuant to Section 216(b).See Mot.
Plaintiffs' proposed FLSA collective consists of:
Each current and former employee of D'ALMONTE ENTERPRISES PARKING GARAGE INC., RAMCELL PARKING CORPORATION, IB PARKING LOT, INC., 119 PARKING LOT CORPORATION, RAFAEL ALMONTE, DAYHANA MARTINEZ, KELVIN MEJIA, ARIEL REYES, and/or MIGUEL VELAZQUEZ, who was/is employed in the position of parking garage attendant during the time period from July 19, 2019 through the present.Managers, supervisors, officers, executives, managerial or administrative personnel are not part of this group.
Notice of Pendency, annexed as Exhibit A. to Goldstein Decl. (Docket # 39-1)("Proposed Not.")at 1.
Plaintiffs have provided declarations from Recio, Dario Almonte, and opt-in plaintiffRamon Muñoz.All three state they worked as parking garage attendants and that in that role they"parked, moved, and retrieved vehicles[;] took and provided tickets[;] collected fees from [customers][;] and performed other non-managerial parking garage-related work."Recio¶ 4;accordAlmonteDecl. ¶ 4;MuñozDecl. ¶ 4.Recio worked at three of defendants' garages from February 2014 to March 2020.RecioDecl. ¶¶ 2-3.Dario Almonte worked at two of defendants' garages from May 2015 to February 2021.AlmonteDecl. ¶¶ 2-3.Muñoz has worked at four of defendants' garages since October 2017.MuñozDecl. ¶ 2-3.
All of the declarants state that Rafael Almonte and Reyes oversaw and directed their work.SeeRecio¶¶ 16, 27-31;AlmonteDecl. ¶¶ 12, 25-29;MuñozDecl. ¶¶ 22-25.Muñoz states, however, that Reyes "left approximately two to three years ago," and his new manager is Miguel Garcia, who provides his schedule, and that the schedule is given to Garcia by Rafael Almonte.MuñozDecl. ¶ 24.
All of the declarations state the defendants required them to work more than 40 hours per week and never paid them "time and a half" for the overtime hours.Thus, Recio alleges that he generally worked 8 hours a day, 6 days a week from December 2015 through September 2017, from May 2018 through November 2018, and from January 2019 through July 2019.RecioDecl. ¶¶ 6-8, 11, 13.Dario Almonte generally worked 8 hours a day, 6 days a week from May 2015 to February 2019, 6 days a week on occasion from August 2019 to January 2020, and seven days a week from February 2020 through April 2020.SeeAlmonteDecl. ¶¶ 6, 8, 9.Also, Dario Almonte would "pick up approximately 4 extra hours here and there throughout the week" from March to June 2019.Id.¶ 7.Muñoz worked eight hours a day, six days a week one week a month from March 2018 to January 2020 and from May 2020 to February 2022, and he worked eight hours a day for seven days a week during a one-week period within February to March 2022 and again for two weeks of April 2022.MuñozDecl. ¶¶ 8, 10-11.Muñoz worked four hours a day for five days a week from October 2017 to February 2018 but was only paid for three hours of work per day.Id.¶ 6.Sometimes Recio, Dario Almonte, and Muñoz would work additional overtime hours when assigned to cover other employees.SeeRecioDecl. ¶¶ 7, 10, 16;AlmonteDecl. ¶ 12;MuñozDecl. ¶ 10.In Recio's case, this could happen as often as once a week, which could require Recio to work a full additional eight-hour shift immediately following a regularly scheduled shift.RecioDecl. ¶¶ 7, 10, 16.Recio, Dario Almonte, and Muñoz never received overtime pay for hours worked beyond 40 but were instead paid at a flat rate.Id.¶¶ 5, 24-25;AlmonteDecl. ¶ 5, 20;MuñozDecl. ¶¶ 5, 18.
These statements are corroborated in some instances by pay and hour records that were apparently prepared by the employer and given to the employee.See Exhibits A, B, and C to Recio Decl. (Docket ## 36-1, 36-2, 36-3); Exhibit A. to Almonte Decl. (Docket # 37-1); Exhibit A to Muñoz Decl. (Docket # 35-1).These records reflect that the same hourly rate was paid to the recipients even when the weekly hours exceeded 40 hours per week.Seeid.
All of the declarations state the defendants required them to work some "off-the-clock" time, for which the defendants did not pay them at all.Defendants required Recio, Dario Almonte, and Muñoz to work "approximately 30 minutes per day 'off the clock' " ahead of the "recorded" start time of their shifts and another 30 minutes after the end of each shift "to compile a handwritten inventory of the number of cars in the lot on daily tickets, the amount of money collected for those cars, and match the tickets to those cars."RecioDecl. ¶ 27;accordAlmonteDecl. ¶ 24;MuñozDecl. ¶ 20.Defendants did not pay them for the "off the clock" time.RecioDecl. ¶ 27;AlmonteDecl. ¶ 24;MuñozDecl. ¶ 21.Muñoz added that if "an employee do[es] not come in early prior to their recorded shift start time, that employee generally gets in trouble with management."MuñozDecl. ¶ 20.
All of the declarations state that at least during some periods of their employment, they were paid less than the statutory minimum wage applicable at the time.For reference, the applicable minimum wage rate for large employers in New York is: $8.75 through 2015, $9.00 through 2016, $11.00 through 2017, $13.00 through 2018, and $15.00 from 2019 to the present.SeeN.Y. Lab. Law § 652.Per hour, Recio was paid: $7.50 through 2015, seeRecioDecl. ¶ 18; $9.00 through 2016, id.¶ 19; $ 10.50 through 2017, id.¶ 20; $12.00 through 2018, id.¶ 21; $13.50 through 2019, id.¶ 22; and $15.00 from January through March 28, 2020, id.¶ 23.Per hour, Dario Almonte was paid: $9.00 from May 2, 2015 through December 2016, seeAlmonteDecl. ¶ 14; $10.50 through 2017, id.¶ 15; $12.00 through 2018, id.¶ 16; $13.50 through 2019, id.¶ 17; and $15.00 from January 2020 through February 20, 2021, id.¶ 18.Per hour, Muñoz was paid: $12.00 from September 2017 through December 2018, seeMuñozDecl. ¶ 14; $13.50 from January 2019 through February 2019, id.¶ 15; $10.00 from March 2020 through May 2020, id.¶ 16; and $15.00 from June 2020 onwards, id.¶ 17.
Recio said his experience was the same regardless of which garage he worked at and that his co-workers were "always paid the same way" as him.SeeRecioDecl. ¶ 32.Recio identified five of those co-workers by name ("Eduardo Gonzales, Paulino, Luis, . . . Juan, . . . and Simon"), physical appearance, and age as people"also not being paid overtime and off-the-clock wages."Id.¶ 33.Dario Almonte made a similar assertion and identified two prior co-workers by name ("Paulino" and "Juan"), physical appearance, and age as people"also not being paid for the overtime hours worked" and "not paid for their off-the[-]clock work."SeeAlmonteDecl. ¶¶ 30-31.Muñoz added, "I personally witnessed my co-workers also work over forty hours a week, and I learned from speaking with them that they also were also not paid the overtime premium."SeeMuñozDecl. ¶ 18.Muñoz identified what may be three different co-workers by name ("Paolino Jonathan and Luis"), and for two of those people("Paolino" and "Luis") by name, physical description, and age, as people who "were also not being paid for overtime work and off-the-clock work."Id.¶ 28....
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