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Elite Travel Employee not paid nearly 400 hours of overtime; awarded time and a half and liquidated


The action was brought pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 and New York Labor Law (implementing its regulations), alleging that the defendants wrongfully withheld overtime pay. In 2002, Plaintiff began working as an advertising salesperson for Elite Travel, a magazine owned by defendants. Her base salary was $75,000 plus commissions and bonuses. Her duties included travel to trade shows, conferences, and other functions. She recorded her hours on weekly timesheets, which she submitted to her supervisors. After a lengthy litigation history, several defendants were released and default judgment was granted against the remaining Defendants in March, 2014.

The FLSA and the NYLL require employers to "compensate employees who work over forty hours per week with overtime pay at the rate of one and one-half times the regular rate." Wong v. Hunda Glass Corp., No. 09 Civ. 4402, 2010 WL 2541698, *2 (S.D.N.Y. June 23, 2010). Employers must keep employee records of the hours worked each workday and the total hours of each workweek. 29 C.F.R. §516.2(a)(7); NYLL §661. When an employer's records are inaccurate or inadequate, an employee must establish the hours worked by producing "sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372, 379 (E.D.N.Y. 2012) (internal quotation marks omitted).

A plaintiff may carry this burden "solely through h[er] own recollection." Pineda v. Masonry Construction, Inc., 831 F. Supp. 2d 666, 674 (S.D.N.Y. 2011); see Angamarca v. Pita Grill 7 Inc., No. 11 Civ. 7777, 2012 WL 3578781, at *3 (S.D.N.Y. Aug. 2, 2012) (finding "[a]n affidavit that sets forth the number of hours worked" sufficient to carry burden of showing uncompensated hours worked). If the defendant does not rebut a plaintiff's recollection of hours worked, that estimate is then presumed to be correct. Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005).

Both the FLSA and the NYLL provide for liquidated damages when overtime violations are willful. 29 U.S.C. §216(b); NYLL §663(1). Under the FLSA, an employer's conduct is considered "willful" if the employer "either knew or showed reckless disregard for the matter of whether its conduct was prohibited." Herman v. RSR Security Services Ltd., 172 F.3d 132, 141 (2d Cir. 1999) (internal quotation marks omitted); accord Gurung v. Malhotra, 851 F. Supp. 2d 583, 591 (S.D.N.Y. 2012). The willfulness standard under the NYLL is "not appreciably differ[ent]." Kuebel v. Black Decker Inc., 643 F.3d 352, 366 (2d Cir. 2011) (internal quotation marks omitted).

Here, the defendants' default constitutes not only an admission of liability, but also of willfulness. See Gurung, 851 F. Supp. 2d at 591; Pineda, 831 F. Supp. 2d at 675, 682; Jin M. Cao v. Wu Liang Ye Lexington Restaurant, Inc., No. 08 Civ. 3725, 2010 WL 4159391, at *6 (S.D.N.Y. Sept. 30, 2010). For FLSA claims, liquidated damages may be awarded "in an additional amount equal to the unpaid overtime wages," Pineda, 831 F. Supp. 2d at 674, essentially doubling a plaintiff's recovery. For NYLL claims, liquidated damages are calculated as twenty-five percent of the unpaid overtime.2 NYLL §663(1). The statute of limitations for willful violations of the FLSA is three years, 29 U.S.C. §255(a), and the statute of limitations under The NYLL is six years, NYLL §198(3).

The Court evaluated the amount of hours that Plaintiff worked and was not compensated: On her own accord, Plaintiff recalled approximately 400 hours. The Court found that the Defendants did not rebut the amount of hours but merely the motivation as to why Plaintiff worked those hours and awarded Plaintiff time and a half ($113.64) for each hour worked, amounting to $45,342.36. “The FLSA’s liquidated damage provision is considered to be compensatory while the NYLL liquidated damages provision is intended to be punitive.” Reiseck v. Universal Communications of Miami, 06-Civ.0777, * 10 (SDNY Sept. 5, 2014) citing Gurung, 851 F.Supp.2d at 593. The Court found it appropriate to impose liquidated damages under both Federal and New York law, awarding Plaintiff an equal amount of punitive damages as compensatory damages under Federal law ($45,432.36) and $11,335.59 under New York law. The Court found that “[b]ecause Ms. Reiseck is entitled to FLSA liquidated damages for all of her unpaid overtime, she may not receive prejudgment interest.” Reiseck v. Universal Communications of Miami, 06-Civ.0777, * 11.

When a plaintiff prevails in an action under the FLSA or The NYLL for unpaid overtime, she is entitled to reasonable attorneys' fees and costs. 29 U.S.C. §216(b); NYLL §198. An attorneys' fees award should be based on the court's determination of a "'presumptively reasonable fee.'" Sandoval v. Materia Brothers Inc., No. 11 Civ. 4250, 2013 WL 1767748, at *3 (S.D.N.Y. March 5, 2013) (quoting Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, 522 F.3d 182, 189 (2d Cir. 2008))...Fee awards include "'reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.'" LeBlanc — Sternberg v. Fletcher, 143 F. 3d 748, 763 (2d Cir. 1998) (quoting United States Football League v. National Football League, 887 F. 2d 408, 416 (2d Cir. 1989)). Here, the costs include attorney transportation and meals, fees for court reporting services, expert retainer fees, investigative reports fees, WestLaw usage fees, and sundries including mail and photocopies. (Costs).

While courts in this district remain divided over whether legal research costs are properly recoverable as part of attorneys' fees, I hew to the reasoning that such costs are recoverable "where it is clear that counsel regularly charge paying clients separately for them." Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 547 (S.D.N.Y. 2008); see Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, 369 F.3d 91, 98 (2d Cir. 2004) (finding "charges for [] online research may properly be included in a fee award" when firm "normally bills its paying clients for the cost of online research services"). Likewise, "expenses relating to travel, including transportation and meals, are routinely recoverable." Bobrow Palumbo Sales, Inc. v. Broan-Nutone, LLC, 549 F. Supp. 2d 274, 287 (E.D.N.Y. 2008) (collecting cases); Teamsters Local 814 Welfare Fund v. Dahill Moving & Storage Co., Inc., 545 F. Supp. 2d 260, 269 (E.D.N.Y. 2008) (finding it reasonable that parking costs be included in attorneys' fees award).

The Case is Reiseck v. Universal Communications of Miami, 06-Civ.0777 (SDNY Sept. 5, 2014).

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