Andreyuk v. ASF Construction & Excavation Corp.

Background

Anatoliy Andreyuk and Jenny Felippelli, as executor of the estate of Jose Felippelli, brought claims under the Fair Labor Standards Act and the New York Labor Law against ASF Construction & Excavation Corp. and Andre Fernandez. They sought unpaid minimum wages, overtime wages, statutory penalties, attorneys’ fees, and costs. Defendants moved for summary judgment, which asks the court to rule without a trial when no genuine dispute of important fact exists. Plaintiffs filed a cross-motion for summary judgment.

Andreyuk worked for ASF from October 2016 until March 2019. Defendants characterized him as a yard supervisor who managed operations and supervised employees. Plaintiffs characterized him as a yard laborer who performed manual work and lacked authority over hiring, firing, and pay. The parties also disputed whether he was paid on a fixed salary or only for days worked. Defendants argued that he was exempt from minimum-wage and overtime requirements as a bona fide executive employee.

Felippelli worked for ASF as a driver from 2017 through January 23, 2020. He was paid an hourly rate of $25, later increased to $30, and was supposed to receive overtime pay for hours over 40 in a week. The parties disputed the hours he worked, the reliability of ASF’s time records, and whether cash payments included overtime wages. Felippelli did not provide sworn testimony before his death, so plaintiffs relied in part on Andreyuk’s testimony about Felippelli’s hours.

Andreyuk’s Minimum-Wage and Overtime Claims

The court held that factual disputes prevented summary judgment on defendants’ executive-exemption defense. The exemption requires proof that the employee was paid on a salary basis, primarily performed management duties, regularly directed at least two employees, and either had hiring or firing authority or made recommendations given particular weight.

Evidence about Andreyuk’s pay was inconsistent. Although some evidence described a weekly salary of $960, later $1,080, payroll records showed weeks with lower and higher payments. Testimony also suggested that he might not have been paid for days he did not work. The court concluded that a reasonable factfinder could determine that ASF did not intend to pay him on a salary basis.

The parties also presented conflicting accounts of Andreyuk’s duties, the amount of manual labor he performed, his authority over other workers, the duration of any supervisory role, and the influence of his personnel recommendations. Because those disputes could not be resolved as a matter of law, both parties’ motions concerning Andreyuk’s first, second, fifth, and sixth causes of action were DENIED.

Felippelli’s Overtime Claim

For the period from Felippelli’s hiring through March 27, 2019, the court found conflicting evidence about his hours and compensation. ASF lacked some time records, but Andreyuk’s estimate that Felippelli generally worked six 12-hour days each week was contradicted by other evidence, including biometric records from a later period and testimony that Felippelli did not always begin work at the yard. The court stated that credibility decisions and choosing between conflicting accounts were matters for a jury.

The court reached a different result for March 28, 2019, through January 23, 2020. Andreyuk no longer worked for ASF during that period and therefore had no basis to testify about Felippelli’s hours. Because plaintiffs offered no other evidence for that period, defendants’ motion for summary judgment on Felippelli’s unpaid-overtime claims for that period was GRANTED.

For the period from Felippelli’s hiring through March 27, 2019, both parties’ motions on the first and second causes of action as to Felippelli were DENIED. The court also found that defendants had not established, on the current record, that cash payments fully covered any overtime wages under the New York Labor Law.

Felippelli’s Minimum-Wage Claims

The court found that Felippelli’s regular hourly pay of $25, later $30, exceeded the applicable federal and New York minimum wages. Plaintiffs did not present evidence showing that he was paid below the minimum wage and did not respond to defendants’ arguments on this claim. Defendants’ motion for summary judgment on the fifth and sixth causes of action was therefore GRANTED as to Felippelli.

Claims About the Timing of Wage Payments

Plaintiffs asserted that defendants violated New York Labor Law section 191 by failing to pay wages weekly. The court found no dispute that both plaintiffs were paid weekly. It also concluded that plaintiffs had abandoned Andreyuk’s claim and had presented no evidence that Felippelli was paid late. Defendants’ motion for summary judgment on the third cause of action was GRANTED as to both plaintiffs. The court stated that any unpaid overtime could be addressed through the overtime claims rather than as a separate claim based on the timing of wage payments.

Wage-Notice Claims

The parties agreed that defendants did not provide the wage notices required by New York Labor Law section 195. Defendants asserted an affirmative defense based on having fully paid all wages due. Because factual disputes remained about Andreyuk’s exemption and whether Felippelli received all overtime wages, the court could not resolve that defense or the wage-notice claims on summary judgment. Both parties’ motions on the fourth cause of action were DENIED as to both plaintiffs.

Disposition

Judge Andrew E. Krause ordered that defendants’ motion for summary judgment was GRANTED IN PART and DENIED IN PART. Plaintiffs’ cross-motion for summary judgment was DENIED. The court scheduled an in-person status conference for October 19, 2022, and directed counsel to discuss possible trial dates.