Rescalvo Vazquez v. Wally's Deli & Grocery Corp.

Background

Efrain Rescalvo Vazquez sued Wally’s Deli & Grocery Corp. and Derhim Nasser on behalf of himself and other similarly situated people. He alleged violations of the Fair Labor Standards Act (FLSA) and the New York Labor Law, as amended by the Wage Theft Prevention Act (WTPA). His claims sought unpaid overtime, New York “spread of hours” compensation, liquidated damages, statutory damages for missing wage notices and statements, and attorneys’ fees and costs.

Vazquez alleged that he worked as a deli man from August 2013 through July 2019. He said he generally worked six or seven 12-hour days each week, with workweeks ranging from 60 to 112 hours, and that his weekly pay increased from $550 to $990. He alleged that the defendants did not pay overtime for hours over 40 in a week or spread-of-hours compensation for days lasting more than 10 hours. He also alleged that he was paid only in cash, received no paystubs or wage statements, and never received the written pay notice or signed acknowledgment required by the WTPA.

Default and service

The defendants did not file an answer or other response after being served. The Clerk entered certificates of default against both defendants. Vazquez then moved for default judgment. The court found that he adequately served the summons and complaint, the default-judgment motion and supporting papers, and the court’s later orders. The defendants did not submit answering papers despite extensions of time.

A default judgment is a judgment entered when a defendant fails to plead or otherwise defend. The court treated the complaint’s well-pleaded factual allegations as admitted, but it still independently determined whether those allegations established legal liability.

Liability

The court held that Vazquez established an overtime claim under both the FLSA and the New York Labor Law. The allegations showed that Wally’s Deli was an enterprise engaged in commerce with annual gross revenue above $500,000, that Vazquez was an employee, and that his deli work was not exempt from the FLSA’s overtime requirements. The alleged work schedules and unpaid hours were sufficient to establish work exceeding 40 hours per week without the required one-and-one-half-times overtime rate.

The court also held that Nasser could be individually liable under both laws. Vazquez alleged that Nasser was an owner or part owner and principal who had authority over hiring and firing, wages, schedules, and employment records. The court found those allegations sufficient to establish that Nasser was an employer under the applicable laws.

The court further held that Vazquez established a New York spread-of-hours claim. He alleged that he worked shifts lasting more than 10 hours and was not paid an additional hour at the minimum wage for those days. His damages materials identified the weeks and days involved.

Finally, the court held that Vazquez established violations of the WTPA’s notice and wage-statement requirements. The allegations showed that the defendants did not provide the required hiring notice or obtain a signed acknowledgment, and did not provide wage statements containing the required information with wage payments.

Disposition

The court granted Vazquez’s motion for default judgment. It directed that the matter be referred by separate order to Magistrate Judge Fox for an inquest into damages. This opinion did not determine the amount of damages. The Clerk was directed to terminate the motion at docket entry 21.