Nokaj v. Pappas New York

Background

The plaintiffs are former servers, cooks, bartenders, barbacks, and other workers at Pappas New York. They allege that the defendants required unpaid work before and after shifts and unpaid training, failed to pay minimum wage and overtime, failed to pay spread-of-hours premiums, paid wages late, withheld gratuities, failed to provide proper wage notices and statements, and failed to maintain proper records. They also allege that some plaintiffs complained about improper pay, that plaintiffs were predominantly of Albanian origin, and that they faced comments and threats based on national origin. The plaintiffs allege that all of them were fired around December 17, 2023, while non-Albanian workers were retained.

The amended complaint asserts claims under the Fair Labor Standards Act (FLSA), the New York Labor Law (NYLL), 26 U.S.C. § 7434, the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). Joseph Licul and Dennis Turcinovic moved under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal for failure to state a legally sufficient claim, arguing that the complaint was too general and did not identify conduct by either individual.

Claims Allowed to Proceed

The court held that the amended complaint plausibly alleged every FLSA and NYLL claim against Licul and Turcinovic. It found that the complaint adequately alleged that they had sufficient control over the plaintiffs’ employment to qualify as employers under both statutes. The complaint identified them as directors and owners who exercised control over employment terms and had authority to hire, fire, and determine pay. The court also noted that the defendants appeared to acknowledge their managerial authority over the restaurant.

The court found sufficient allegations for the minimum-wage, overtime, and spread-of-hours claims. The plaintiffs alleged that they worked more than 40 hours per week without overtime premiums, worked at least 10 hours on some days without the required additional compensation, and performed unpaid work that reduced their pay below the required minimum. The court also allowed the NYLL claims for untimely payment and nonpayment of wages to proceed because the plaintiffs alleged that they were paid every two to three weeks and were not paid for work during training weeks.

The court allowed the NYLL gratuity claim to proceed even though the amended complaint did not specifically identify conduct by Licul or Turcinovic showing that either personally took gratuities. The court relied on the allegations about their managerial control and the allegation that all defendants failed to provide the plaintiffs with tips they had earned.

The court also allowed the FLSA and NYLL retaliation claims to proceed. It found that the plaintiffs adequately alleged protected complaints about improper pay, termination as an adverse employment action, and a causal connection based on the timing between the complaints and the terminations.

Claims Dismissed

The court dismissed Count XI, the claim under 26 U.S.C. § 7434 for damages based on fraudulent information returns, as to Licul and Turcinovic. The court held that the plaintiffs alleged inaccurate tax forms and reporting, but did not provide facts supporting a plausible inference that either defendant voluntarily and intentionally filed a false information return. The court stated that merely alleging inaccurate returns was not enough to plead the required willfulness.

The court dismissed Counts XII and XIV, the NYSHRL and NYCHRL discrimination claims, as to Licul and Turcinovic. For the NYSHRL claim, the court held that individuals affiliated with a corporate employer do not qualify as employers under the law. For the NYCHRL claim, individuals may be liable for their own discriminatory conduct, but the amended complaint did not allege personal discriminatory conduct by Licul or Turcinovic.

The court dismissed Counts XIII and XV, the NYSHRL and NYCHRL retaliation claims, as to Licul and Turcinovic. Although individuals may be liable for retaliation under those laws when they personally participate in the retaliatory conduct, the court found that the amended complaint did not allege that either defendant personally participated in retaliation.

Disposition

Judge Margaret M. Garnett granted in part and denied in part the motion to dismiss. Counts XI, XII, XIII, XIV, and XV were dismissed as to Licul and Turcinovic only. The remaining claims against all defendants remain.