PR Decisions 2020-2015

Decisions
Docket Number Date Issued Case Name Decision Summary
PR 18-059 08/12/2020 Susan R. Meloccaro, Warren L. Richman, and Career and Educational Consultants, Inc. T/A Career and Educational Consultants

Petition denied. Motion to dismiss denied. Wage order affirmed as modified. Minimum wage order affirmed. Penalty order affirmed. Records offered by petitioners were insufficient to satisfy recordkeeping requirements. Canceled checks and copies of money orders were insufficient proof of wages paid. No proof money orders were cashed and no way to determine what period of wages the checks and money orders covered. Petitioners provided insufficient evidence of specific hours and dates of employment periods. Petitioners not permitted to retroactively reduce wages for alleged absences which took place over course of claim period. Petitioners owed overtime wages to employee who worked through lunch. Petitioners offered sufficient proof that two claimants left their employ prior to the end of claim period and wage order was affirmed as modified to reflect that reduction.

PR 19-013 08/12/2020 Charles S. Cha and Millennium Dae Dong Petition granted in part and denied in part. Minimum wage order affirmed as modified. Wage order and penalty order affirmed. Records offered by petitioners were technically deficient, internally inconsistent and unreliable. Records were insufficient to satisfy recordkeeping requirements and not a reliable basis to determine hours worked and wages paid. Respondent entitled to use best available evidence of claim forms and interview sheets to determine minimum wage underpayment. Minimum wages owed to two claimants were modified to accurately reflect information on interview sheets.
PR 19-045R 08/12/2020

Kulbir Bir Singh and Kul Construction, Inc. T/A Taj Palace Restaurant Also T/A K&D United Inc.

Application for reconsideration denied. Petitioners provided no justification for reconsideration and did not set forth any new facts or circumstances.

PR 19-083 08/12/2020 Christopher Palazzolo

Petition denied. Petitioner, while not the owner of the construction business, interviewed employees, hired claimants, negotiated pay rates, set schedules, supervised workers, reviewed time sheets and signed paychecks. General and conclusory testimony of petitioner failed to demonstrate that he was not the claimants’ employer. Wage order and penalty order affirmed.  

PR 19-108 08/12/2020 Anthony A. Smith A/K/A Toni Smith and JBS Transportation Inc.

Petition denied. Petitioners failed to offer sufficient evidence of hours worked and wages paid. Petitioners’ conclusory and inexact testimony that claimant was paid all wages owed is insufficient. Respondent entitled to use the best available evidence, such as the information on claim form and copy of text, to determine wage underpayment. Order affirmed.

PR 19-145 08/12/2020 Gene Frisco Respondent’s motion to amend order to remove petitioner is granted. Petition is granted.
PR 17-065 06/24/2020 Tak Yuet Kong and Yu Fu Zhang and King’s Rice, Inc. (T/A King’s Rice Restaurant, Inc.)

Petition denied. Minimum wage order affirmed. Penalty order affirmed. Petitioners were afforded due process through their participation at the de novo hearing before the Board. Respondent’s determination that Kong was claimants’ employer was reasonable. Kong’s vague and general denial of involvement in the business was insufficient and contradicted by other proof submitted by petitioners, including statements contained in their own petition. Additionally, credible evidence was presented regarding his authority at the business. Because petitioner provided insufficient evidence of legally required records of the daily and weekly hours worked or wages paid to the claimants, and proof that they were paid for those hours, the Commissioner was entitled to use the best available evidence as a basis for her calculation of underpayment. Petitioners did not offer evidence to challenge interest or the civil penalty. Petitioners did not prove the good faith necessary to avoid liquidated damages in minimum wage order. Penalty order affirmed. Petition dismissed.

PR 18-078 06/24/2020 Michele Barnett Occhino A/K/A Michelle Yvette Occhino and Michele Barnett Occhino Agency, Inc.

Petition denied. Order affirmed. Claimant was employed by petitioners during the entirety of the claim period. Petitioner failed to offer required payroll records and offered insufficient evidence to show all wages, minimum wages or unlawful deductions paid. Wages and wage supplement amounts are modified to conform to the evidence based on an accurate calculation. The civil penalty is upheld as modified to reflect the modifications in the wages and supplemental wages owed. Petitioners failed to challenge the imposition of interest, which are upheld as modified based on the wage and supplement modifications.

PR 19-028 06/24/2020 Ricardo Enrique Barba and Global Service Construction Corp.

Petition granted. Petitioners had not hired, employed or ever met claimants. Petitioners met the burden of proving that they were not claimants’ employers. Order is revoked.

PR 19-041 06/24/2020 Pamela S. Costa and Platinum Design Corp. Petition denied. Petitioners failed to maintain required payroll records or issue a notice of pay rate. Petitioners failed to prove claimant was paid all wages and wage supplements owed. Respondent used the best available evidence to calculate the wages and wage supplements owed. Claimant was an employee of petitioners, not a partner or a separate business entity. Petitioners failed to challenge the imposition of interest or liquidated damages. Non-wage related civil penalties also affirmed.
PR 19-060 06/24/2020 Rubin J. Pitarka and Uscana Construction Corp. Petition denied. Petitioners failed to offer required payroll records and could not show specific hours worked by claimants or that claimants were paid for those hours. Respondent entitled to use best available evidence for underpayment calculation. Petitioners’ records consisting of summary time sheets were admittedly often inaccurate as well as legally insufficient. Petitioners did not introduce credible evidence to challenge the civil penalty. Petitioners failed to prove a good faith belief on compliance needed to avoid liquidated damages. Petitioners did not offer evidence to challenge the imposition of interest.
PR 19-101 06/24/2020 Cristobal Bonilla and Juquila Mexican Cuisine Corp. Petition denied. Minimum wage order affirmed. Petitioners failed to offer required payroll records and could not show specific hours worked by claimants or that claimants were paid for those hours. Respondent entitled to use best available evidence for underpayment calculation. Petitioners failed to prove they paid all wages and failed to contest the wage deductions contained in the order for a uniform expense. Petitioners did not contest the imposition of interest, liquidated damages or civil penalties, and those issues are waived. Penalty order affirmed. Petition dismissed.
PR 19-104R 06/24/2020 Samir Z. Dhanani and Queens Dollar Inc. T/A 99 Cents Rush

Application for reconsideration denied. Respondent provided no justification for reconsideration. Respondent attempts to relitigate the same arguments made in original motion which were previously considered and rejected by the Board.

PR 19-132 06/24/2020

Jaime Cesareo Illescas aka Jimmy Illescas Guzman and 1 The New Tropical Deli 2 Inc. T/A New Tropical Deli

Petition denied. Petition dismissed for failure to appear at hearing.
PR 19-154 06/24/2020 Mohamed K. Alsaidi Petition granted. Respondent's letter motion to amend order to remove petitioner's name granted.
PR 17-060 01/29/2020 Mohammad Afzal Petition denied. Minimum wage order modified and, as modified, affirmed. Penalty order affirmed. Petitioner was claimants’ employer after credible evidence confirmed that petitioner interviewed and hired claimants and set their duties, work schedule and rate and method of pay. Petitioner’s claim that he was employee could not be credited. Petitioner knew where personnel and banking records were maintained, that a payroll register existed, and that it was missing. Petitioner testified he was familiar with claimants’ work schedules, even those that did not coincide with his own. Petitioner’s vague and general testimony was insufficient to meet burden of proof. Petitioner failed to maintain required payroll records or provide required wage statements for claim period and did not show by a preponderance of the evidence the specific hours worked by claimants or that they were paid for those hours. Respondent’s calculation of wages owed modified to reconcile amount with claimants’ testimony.  Board rejected petitioner’s claim that the minimum wage order was invalidated by one claimant’s agreement to withdraw complaint. Claimant was not a party to Board proceeding.  Petitioner did not offer evidence to challenge interest, liquidated damages or civil penalty in minimum wage order. These amounts reduced proportionally, however, as a result of the Board’s modification of wages in the minimum wage order. Penalty order affirmed. Petition dismissed.
PR 18-038 01/29/2020 First Dacia Corporation T/A Romanian Garden Restaurant

Petition denied in part and granted in part. Minimum wage order modified and, as modified, affirmed. Penalty order revoked. After relevant claim period but before respondent issued order to comply, corporation was sold by its sole shareholder. New owner’s lack of knowledge of unresolved wage claim at time of purchase does not relieve corporate petitioner of liability for unpaid wages. Petitioner was employer during relevant period, failed to maintain legally required payroll records and did not show specific hours worked by claimant or that claimant was paid for those hours. Wages, interest and liquidated damages affirmed. Underpayment calculation affirmed. Civil penalty in wage order revoked after respondent offered insufficient proof that statutory factors to be considered in imposing 100% penalty were applied by respondent to present ownership of petitioner corporation. Non-wage-related penalties revoked on same basis. Petition dismissed in part, granted in part.

PR 19-076 01/29/2020 Ann Marie Mane A/K/A Mame N. Mane and Wee Care Childcare, LLC

Petition denied. Petition dismissed for failure to comply with Board Rules 66.3 (d) and amend petition to include copies of order or orders to be reviewed.

PR 19-102 01/29/2020 Johnathan Edward Hamiter II

Petition denied. Respondent's motion to dismiss untimely petition granted.

PR 19-104 01/29/2020 Samir Z. Dhanani and Queens Dollar Inc. T/A 99 Cents Rush Petition granted. Order revoked. Respondent failed to file a response to the petition or request an extension of time to respond. Respondent advised that failure to timely file a pleading when due may constitute a waiver of respondent’s further right to participate in the proceeding and directed respondent to file a motion within ten days establishing good cause for the failure to file a timely response. Respondent’s motion for leave to file late answer was filed more than ten days from the Board’s letter. Respondent’s counsel alleged that respondent’s late answer was the result of a calendaring system failure.  Respondent’s counsel further asserted that the motion seeking permission to file a late answer was not timely due to “the Thanksgiving holiday, the state offices being closed on December 2, 2019 and the affiant’s Board hearing on December 3, 2019.” Petitioners opposed respondent’s motion. Law office failure is not good cause for respondent’s failure to comply with Board Rules. Respondent’s further explanations regarding the late motion also not good cause because motion noticed 10 days prior. Respondent’s failure to timely file response to petition is a waiver of right to further participation in proceeding. As a result, the Board found the factual allegations as contained in the petition admitted for the purposes of the instant review. Petition granted.
PR 18-083 12/11/2019 Edward L. Mossow T/A Main Street Auto Petition denied. Unpaid wages order and penalty order affirmed. Petitioner failed to offer required payroll records and could not show specific hours worked by claimant or that claimant was paid for those hours. Respondent entitled to use best available evidence for underpayment calculation. Petitioner did not offer evidence challenging interest, liquidated damages or civil penalty in unpaid wages order. Non-wage related penalty for failing to keep required payroll records affirmed. Petition dismissed.
PR 19-039 12/11/2019 Carlos M. Hernandez D/B/A York Street Grocery Petition denied. Minimum wage order and penalty order affirmed. Petitioner failed to provide required payroll records and could not show specific hours worked by claimant or that claimant was paid for those hours. Petitioner's assertion that he did not own the store for the duration of the claim period, and therefore not an employer during that period of time, not credible in light of petitioner's inconsistent supporting documentary evidence. Petitioner did not challenge interest, liquidated damages or civil penalty in minimum wage order. Non-wage-related penalties for failing to provide required meal break, failing to keep required payroll records and failing to provide required wage statements affirmed. Petition dismissed.
PR 19-045 12/11/2019 Kulbir Bir Singh and Kul Construction, Inc. T/A Taj Palace Restaurant ALSO T/A K&D United Inc Petition denied. Petition dismissed for failure to appear at hearing.
PR 19-056 12/11/2019 Kedar Ramesh Shah A/K/A Kedar Shah, Ramesh B. Shah A/K/A Sunil Ramesh Shah and Pratishtha, Inc. T/A Yuva Restaurant Petition denied. Petition dismissed for failure to appear at hearing.
PR 19-073 12/11/2019 Joseph Caronna Petition denied. Petition dismissed for failure to appear at hearing.
PR 19-076i 12/11/2019 Ann Marie Mane A/K/A Mame N. Mane and Wee Care Childcare, LLC Interim decision. Application for reconsideration granted. Petitioners applied for reconsideration after discovering correspondence related to petition after death of owner of Wee Care Childcare, LLC. As respondent did not oppose application for reconsideration, it was granted. Petitioners directed to file amended petition.
PR 19-114 12/11/2019 Ronnie Paulino Petition denied. Respondent's motion to dismiss untimely petition granted.
PR 19-118 12/11/2019 Nicole Duke Petition denied. Respondent's motion to dismiss untimely petition granted.
PR 17-156 10/23/2019 Stuart Schlesinger and Julien & Schlesinger, P.C. Petition denied. Petition dismissed for failure to appear at hearing.
PR 19-019 10/23/2019 Dong K. Ok, APS Domestic Corp., and DSL Sourcing Co., Inc. Petition denied. Minimum wage order and penalty order affirmed. Respondent's motion to dismiss petition with respect to minimum wage order granted where petitioners failed to establish prima facie case regarding wages owed. Petitioners' consisted of testimony from one witness with no personal knowledge of employer's operation, 7 weeks of time cards for claim period of more than two years, and some piece rate data for only one of three claimants.
PR 19-046 10/23/2019 Joseph Allaham and PGB 38 LLC and PPHG Grill, Inc. T/A Prime Butcher & Baker Also T/A Prime Grill Petition denied. Petition dismissed for failure to appear at hearing.
PR 19-091 10/23/2019 Jordan Poluch and Off the Bone BBQ Resolution of Decision issued in error by Board on September 11, 2019 revoked. Amended petition to be served on respondent.
PR 19-098 10/23/2019 John K. Zafaranloo Petition denied. Petition dismissed as petitioner failed to comply with Board Rules 66.3 (b) (1), (d), and (h) and amend petition to state petitioner's correct mailing address and telephone number, attach complete copy of order or orders to be reviewed, and submit petition signed by petitioner or authorized agent.
PR 18-036 09/11/2019 Francis J. Paolangeli and Rese Ithaca Limited T/A Paolangeli Contractor Petition denied. Supplemental wage order for unpaid vacation leave affirmed, but modified, revoking wage order civil penalty. Petitioners failed to maintain required documented vacation policy and payroll records required by Articles 6 and 19. Petitioners' time records showing vacation time used, accrued or forfeited erroneous and insufficient. Amount of underpayment in supplemental wage order affirmed. Civil penalty in supplemental wage order revoked as respondent only considered petitioners' good faith, one of several factors to be considered in setting civil penalties, and no other factor. Penalty order affirmed as petitioners' lack of documented vacation policy and inaccurate payroll records insufficient to show compliance with required record-keeping. Petition otherwise dismissed.
PR 18-042 09/11/2019 Arlina A. Contreran AKA Arlina Waheed Butt AKA Arlina A. Contreras and NYCS Fried Chicken Dinner Inc. Petition denied. Wage order and penalty order affirmed. Petitioners failed to show they did not employ claimant and failed to offer legally required records to prove they maintained records showing specific hours claimant worked and that claimant paid for those hours. Respondent entitled to use best available evidence for underpayment calculation. Penalty order affirmed. Petition dismissed.
PR 18-063 09/11/2019 Nan N. Oo Petition denied. Wage order and penalty order affirmed. Petitioner failed to show claimant not employee and failed to offer legally required records to prove she maintained required records showing specific hours claimant worked and that claimant paid for those hours. Claimant petitioner's employee as matter of economic reality because petitioner paid claimant his wages, set his schedule and supervised his work. As petitioner failed to maintain legally required payroll records, respondent entitled to use best available evidence for underpayment calculation. Petition dismissed.
PR 18-085 09/11/2019 Amandeep Singh and Rennon Construction Corp. Petition granted in part and denied in part. Wage order revoked and penalty order affirmed. Fair Play Act's presumption of employment in construction industry applies to Labor Law Articles 6 and 19. To rebut presumption, employer must show worker independent contractor or separate business entity. Employer offered no evidence that claimant provided services outside usual course of petitioners' masonry business or that claimant owned and operated own business. Petitioners denied that they employed claimant for entire claim period, alleging claimant employed for only one day and paid for that work. Respondent failed rebut petitioners' credible testimony. Unpaid wages order revoked. Respondent assessed civil penalty against petitioners for failure to keep and/or furnish required payroll records, which petitioners did not challenge. Penalty order affirmed.
PR 18-090 09/11/2019 Robert J. Aronson and Empire Carpet Supplies, Inc. Petition denied. Petition dismissed for failure to appear at hearing.
PR 19-011 09/11/2019 Rhandy Landayan Libiran Petition denied. Petition dismissed for failure to appear at hearing.
PR 19-022 09/11/2019 Fletcher A. Brothers and Gates Community Chapel of Rochester, Inc. D/B/A Freedom Village USA, Inc. Petition denied. Respondent moved to dismiss petition for failure to state clearly and concisely grounds on which orders alleged to be invalid or unreasonable, and as orders had already been litigated in earlier matter (Matter of Fletcher A. Brothers and Gates Community Chapel of Rochester, Inc. D/B/A Freedom Village USA, Inc., Docket No. PR 15-059 [June 6, 2018]). Respondent's motion unopposed by petitioners. Arguments contained in petition unavailing. Petitioners' argument that bankruptcy filing precluded respondent from amending and reissuing orders incorrect. Automatic-stay provision of Bankruptcy Code does not preclude Board from deciding appeal of order. Board role is to decide whether order unreasonable or invalid, not to rule on how it might be enforced. Facts and issues in amended and reissued orders already fully litigated and decided by Board. Respondent's motion granted and petition dismissed.
PR 19-031 09/11/2019 Jonathan Iveys and Medic Transportation Inc T/A Medical Transportation Petition denied. Petition dismissed for failure to appear at hearing.
PR 19-035 09/11/2019 Abdul Bari Nasari Petition granted. Respondent's motion to amend order granted. Order revoked as to petitioner and petition granted.
PR 19-036 09/11/2019 Laura A/ Brito A/K/A Laura Ortiz Brito, Ricardo Brito A/K/A Ricardo J. Brito, and Silva Cabinetry, Inc. T/A Silva Cabinetry & Stone

Petition denied. Respondent's motion to dismiss unitemly petition granted. Undisputed that petition was untimely. Petitioners' argumnet that filing of bankruptcy petition extends statute of limitations to file a petition was without support. The statutory deadline by which a petition must be filed is strict and may not be extended by the Board.  

PR 19-058 09/11/2019 Hungry Bunny Café, Inc. Petition denied. Petition dismissed as petitioner failed to comply with Board Rules 66.3 (b) (1), (d) and (e) and amend petition to state petitioner's correct mailing address and telephone number, attach complete copy of order or orders to be reviewed and set forth clearly and concisely grounds on which order or orders alleged to be invalid or unreasonable.
PR 19-063 09/11/2019 John Alvarez A/K/A John Freddy Alvarez and John Alvarez Corp. Petition granted. Respondent's letter motion to amend order to remove petitioners' name granted. Order revoked as to named petitioners and petition granted.
PR 19-066 09/11/2019 James L. Geritano T/A Bagels by the Park Petition denied. Motion to dismiss untimely petition granted.
PR 19-076 09/11/2019 Ane Marie Mane A/K/A Mame N. Mane and Wee Care Childcare, LLC Petition denied. Petition dismissed for failure to comply with Board Rules 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 19-091 09/11/2019 Jordan Poluch and Off the Bone BBQ Petition denied. Petition dismissed for failure to comply with Board Rules 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 19-092 09/11/2019 Jhong Unk Kim A/K/A Kim Jhong Unk and Richmond IHOP LLC T/A Richmond IHOP Petition denied. Motion to dismiss untimely petition granted.
PR 16-092 05/29/2019 The ARC of Livingston-Wyoming Petition granted. Supplemental wage order revoked after petitioner presented credible evidence claimant terminated for violating agency rules, invoking vacation-forfeiture policy, of which claimant aware. Burden shifted to respondent to refute petitioner' evidence, which respondent failed to do.
PR 17-131 05/29/2019 Chaudhry M. Razzaq A/K/A Chaudhry Chaudry and Jerome Auto Repair Corp. Petition denied. Petitioner Razzaq individually liable as employer. Minimum wage order and penalty order affirmed. Petitioner failed to offer legally required records to prove petitioners maintained required records showing specific hours claimants worked and that they were paid for these hours. Respondent entitled to use best available evidence for underpayment calculation.
PR 18-012 05/29/2019 Benjamin G. Abraham Petition denied. Wage order and penalty order affirmed. Petitioner individually liable as employer. Petitioner' argument that he could not be held liable as employer because he was not an owner of subject business unpersuasive and did not necessarily relieve petitioner from individual liability. Respondent failed to provide explanation for civil penalties assessed in wage order and penalty order. Petitioner did not challenge these civil penalties in his petition or at hearing, requiring Board to affirm them.
PR 18-014 05/29/2019 Mariellen Cupini Petition granted. Unpaid wages order revoked as petitioner not individually liable as employer because she lacked requisite authority over claimants' employment during relevant period. Petitioner credibly testified she was placed on unpaid suspension and prohibited from premises or contacting employees. Burden then shifted to respondent. Respondent's evidence, that some claimants identified petitioner as "responsible person" on claim form, insufficient basis, alone, to refute petitioner's evidence.
PR 18-016 05/29/2019 Ahmad A. Hussein T/A Alyas Home Improvement Petition denied. Wage order affirmed, as modified and penalty order affirmed. Petitioner failed to offer legally required records to prove petitioner maintained required records showing specific hours claimants worked and that they were paid for these hours. Respondent entitled to use best available evidence for underpayment calculation. Wage order modified, however, to reduce wages owing to three claimants consistent with time period explicitly contained in order. Liquidated damages and interest to be recalculated accordingly. Penalty order revoked as respondent provided no reasonable explanation for it.
PR 18-033 05/29/2019 Edward D. Vugmayster, Jr. AKA Edward Vugmayster and Best Buy Liquors, Inc. FKA Crazy Eddie Liquors Inc. T/A Best Buy Liquors Petition granted in part, denied in part. Wage order revoked, and penalty order affirmed. Petitioner not individually liable as employer because he lacked requisite authority over claimant's employment during relevant period. Petitioners credibly testified they did not know claimant and had no record of anyone by claimant's name having worked for them. Burden then shifted to respondent. Unsubstantiated claim form and emails between respondent and claimant regarding claim insufficient to overcome petitioners' evidence. Payroll records insufficient to demonstrate compliance with record keeping requirements of Labor Law.
PR 18-040 05/29/2019 Ali Araif AKA Araif Ali and Buffalo Financial Services LLC T/A Delavan Check Cashing Petition granted in part, denied in part. Minimum wage order affirmed. Penalty order revoked. Petitioners offered no evidence of legally required payroll records and offered insufficient evidence to show wage order invalid or unreasonable. Interest, liquidated damages and civil penalty in minimum wage order affirmed. Respondent assessed $3,000 civil penalty, which exceeded statutory maximum for first violation and respondent offered no explanation at hearing as to how amount determined.
PR 18-057 05/29/2019 Linda M. Carron and Westchester Architectural Glass, Inc. Petition denied. Petition dismissed for failure to appear at hearing.
PR 18-073 05/29/2019 Rickanda Smith and Reiki Construction Corp. Petition denied. Petition dismissed for failure to appear at hearing.
PR 18-081 05/29/2019 Perry A. Ciambella and Ciambella Home Care, Inc. T/A Firstlight Home Care Motion to dismiss untimely petition denied. Petitioners represented by attorney who notified respondent of representation. Prior to issuance of order, attorney engaged in unsuccessful negotiations with respondent to resolve alleged violations of Labor Law. Respondent had statutory obligation under Executive Law § 168 to send copy of subsequent written communication to attorney, including orders. No evidence respondent did so.
PR 18-084 05/29/2019 VK Real Estate Holdings, LLC T/A VK Holding Corporation Petition granted. Respondent's letter motion to amend order to remove petitioner's name granted.
PR 18-091 05/29/2019 Steve Kellman and TACC General Contractor, Inc. Petition denied. Petition dismissed as petitioners failed to comply with Board Rule 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 19-008 05/29/2019 Michael Joseph Filippone, Sr. AKA Michael Filippone and Prima Contracting LTD Petition denied. Motion to dismiss untimely petition granted.
PR 19-009 05/29/2019 Michael Scott Bregman Petition granted. Respondent's letter motion to amend order to remove petitioner's name granted.
PR 19-012 05/29/2019 Romick Adams T/A RKA Piping and Heating Petition denied. Petition dismissed as petitioner failed to comply with Board Rule 66.3 (e) and amend petition to state clearly and concisely grounds on which order or orders alleged to be invalid or unreasonable.
PR 19-044 05/29/2019 Jacob Adams Petition denied. Petition dismissed as petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 19-049 05/29/2019 Michael J. O'Brien, Jr. Petition denied. Petition dismissed as petitioner failed to comply with Board Rule 66.3 (b) (1), (c), (e) and (g) and amend petition to state correct mailing address and telephone number; set out facts supporting allegation petitioner person in interest; state clearly and concisely grounds on which order or orders alleged to be invalid or unreasonable; or to set forth request for relief.
PR 17-116 03/06/2019 Jose D. Santos Sr. and JS Restaurant Corp. (T/A Caridad Restaurant) Petition denied. Minimum wage order affirmed as modified to reduce wages due, with civil penalty, liquidated damages and interest modified proportionally. Penalty order affirmed. Petitioners' time sheets and payroll summaries unreliable and insufficient to prove petitioners maintained required records showing specific hours claimants worked and that they were paid for these hours. Respondent entitled to use best available evidence for underpayment calculation. Minimum wage order modified as to one claimant based on his credible testimony of hours worked in kitchen and making deliveries.
PR 17-122 03/06/2019 Felipe Diab Petition granted. Minimum wage order, unpaid wage orders and penalty order revoked as to petitioner as he was not employer. He did not hire or fire employees, supervise or control their schedules or working conditions, determine their rate and method of pay or maintain employment records. Orders remain valid as against another named in orders unless Board determines them invalid.
PR 18-023 03/06/2019 Serafino Tomassetti Petition denied. Unpaid wages order and penalty order affirmed. Petitioner individually liable as employer. Petitioner did not meet burden to show he was not individually liable as employer and did not maintain legally required records of hours worked and wages paid. That petitioner's sister or other family member might also be liable as employer did not eliminate his liability.
PR 18-062 03/06/2019 Jason Delbert Petition denied. Petition dismissed for failure to appear at hearing.
PR 18-067 03/06/2019 Wayne D. Mitchell A/K/A Wayne Mitchell and Mitchell's Real Estate, Inc. Petition denied. Respondent's motion to dismiss untimely petition granted. Orders issued to petitioner on July 9, 2018. Petition filed October 23, 2018. Petitioners' excuse for untimely filing, that petition mistakenly sent to respondent, unavailing. Petition untimely and must be dismissed.
PR 19-003 03/06/2019 Kamal Kumar Petition denied. Petition dismissed for failure to comply with Board Rule 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 19-014 03/06/2019 Ilyas Ahmad Petition granted. Respondent's motion to amend order to remove petitioner's name granted.
PR 18-071 1/30/2019 Monika A. Cholewa A/K/A Monika Emad and Olive Tan Spa, LLC T/A Olive Organic Petition denied. Petition dismissed as petitioners failed to comply with Board Rule 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 19-094 5/25/2019 Michael J. O'Brien, Jr. Petition denied. Petition dismissed as petitioner failed to comply with Board Rule 66.3 (b) (1), (c), (e) and (g) and amend petition to state correct mailing address and telephone number; set out facts supporting allegation petitioner person in interest; state clearly and concisely grounds on which order or orders alleged to be invalid or unreasonable; or to set forth request for relief.
PR 18-061 1/30/2019 Glenn Walker T/A Great Northern Trading Co. Petition denied. Petition dismissed as petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 18-053 1/30/2019 South Nassau Walk-In Medical Care, P.C. Petition granted. Respondent's motion to amend order to remove petitioner's name granted.
PR 18-049 1/30/2019 Childrens Community Services Petition denied. Respondent's motion to dismiss untimely petition granted. Orders served on, and received by, petitioner in September 2017. Petitioner's general and unsupported accusation that respondent concealed from petitioner requirement for appeal to Board until after 60-day deadline had passed unpersuasive. Filing instructions and deadline clearly set out in orders. Petitioner not denied due process as due process satisfied by opportunity to contest orders at Board hearing.
PR 18-047 1/30/2019 Kenneth V. Reisig and New York State Safety Standard Inc. Petition denied. Petition dismissed for failure to appear at hearing.
PR 18-045 1/30/2019 Michelle Kanhai & Andy Kanhai & Happily Ever After Daycare, LLC T/A Happily Ever After Daycare & Preschool and Once Upon a Time Daycare LLC Petition denied. Petition dismissed for failure to appear at hearing.
PR 18-041 1/30/2019 Koon Ja Song and Hyo Kook Song A/K/A Henry Song and Mrs. J's Café of L.I., Inc. T/A Mrs. J's Café Petition denied. Petition dismissed for failure to appear at hearing.
PR 18-024 1/30/2019 Victor A. Dedvukaj, Anthony Joseph Dilullo and Johnny's Pizzeria of Mamaroneck Inc. T/A Joe's Pizza Petition denied. Petition dismissed for failure to appear at hearing.
PR 17-097 1/30/2019 James Michael Foley and Reel Fast Fishing Adventures, Inc. (T/A Hampton Lady Beach Bar and Grill) Petition denied. Minimum wage order affirmed, as modified, and penalty order affirmed. Petitioners failed to maintain legally required payroll records. Payroll reports only served to demonstrate total hours worked as reported to payroll company and did not reflect actual hours worked each day. Petitioners' time records unsubstantiated, facially inaccurate and unreliable. Minimum wage order modified to reduce wages owed to claimant who testified that he worked fewer hours in one week. Interest, liquidated damages and civil penalty in minimum wage order affirmed, as modified.
PR 16-155 1/30/2019 Ralph T. Pescrillo, Pescrillo Niagara, LLC, and Pescrillo New York, LLC (T/A Ralph T. Pescrillo Development) Petition denied in part, modified in part and granted in part. Unlawful deductions order affirmed, as modified and penalty order revoked. Stay provision of Bankruptcy Code does not preclude Board from deciding appeal. Pescrillo individually liable as claimants' employer because he hired and fired them, supervised and controlled work schedules and conditions of employment, determined rate and method of pay, and maintained employment records. LLCs also employers under theory of single integrated enterprise liability. Pescrillo and LLCs shared interrelated operations, centralized control of labor relations, common management, and common ownership or common financial control. Penalty Order revoked. Respondent assessed civil penalty for each employee covered by order but offered no evidence at hearing that due consideration was given to factors required in Labor Law.
PR 15-148r 1/30/2019 Roy J. Schukraft, Jr. and RJS Janitorial, LLC Application for reconsideration denied. Petitioners provided no justification for reconsideration. Petitioners attempted to relitigate arguments made at hearing, contested determination of weight of evidence, and failed to set out circumstances arising after hearing to warrant decision's revocation.
PR 18-011 12/12/2018 Gregory A. George A/K/A Gregory A. George, Sr Petition granted. Respondent's motion to amend unpaid wages order to remove petitioner's name granted. Petitioner uncompensated member of Board of Directors. Lacking basis for liability regarding petitioner, respondent moved to amend unpaid wages order to remove petitioner's name. Motion granted. Order revoked only as to petitioner.
PR 18-005 12/12/2018 Yajaira L. Rojas and Aura M. Hernandez and Express Hand Car Wash & Detailing, Inc. Petition denied. Unpaid wages order and penalty order affirmed. Wages included in unpaid wages order not barred by statute of limitations. Petitioners failed to maintain required wage and hour records. Petitioners offered insufficient evidence to show wage order invalid or unreasonable. Interest, liquidated damages and civil penalty in unpaid wages order affirmed. Penalty order affirmed.
PR 17-170 12/12/2018 William Ritter A/K/A Bill J. Ritter III and QLS Linen Service Inc. T/A Quality Linen Service Petition denied. Petition dismissed for failure to appear at hearing.
PR 17-120 12/12/2018 Lorenzo Mannino and Giulio Mannino and Il Colosseo, LLC Petition granted in part and denied in part. Minimum wage order, unlawful deduction order and penalty order revoked as to Lorenzo Mannino. Lorenzo Mannino found to not be an employer as he did not exercise sufficient operational control over business. Minimum wage order and unlawful deductions order affirmed as to Giulio Mannino and Il Colosseo, LLC. Giulio Mannino and Il Colosseo, LLC employers as matter of economic reality. Petitioners did not maintain legally required payroll records and offered insufficient evidence to show minimum wage order or unlawful deduction order invalid or unreasonable. Penalty order counts one, two and four affirmed as to Giulio Mannino and Il Colosseo, LLC. Count three revoked.
PR 17-039 12/12/2018 Giuliana M. Osorio and Genaro Vara and Mex-Italian Pizza Inc. (T/A Mario's Pizza) Petition denied. Unpaid wages order and penalty order affirmed. Petitioners not denied due process. Due process satisfied by opportunity to contest orders at hearing before the Board. Respondent may bring action to recover back wages within six years. Statute of limitations is tolled from either date an employee files a claim or the date the investigation commenced, whichever is earlier. Petitioners failed to maintain required wage and hour records for relevant period. Petitioners offered insufficient evidence to show wage order invalid or unreasonable. Age and lack of business experience did not relieve petitioners of Labor Law obligations.
PR 18-025 10/24/2018 Andrew Kirtzman Motion to dismiss untimely petition granted.
PR 18-022 10/24/2018 Wiley Christopher Harrison and Business of Your Business, LLC T/A Business of Your Business Motion to dismiss untimely petition granted. Petition was post-marked after statutory deadline for filing petition due to law office error.
PR 18-021 10/24/2018 Abdul Khalik Nasar Respondent's motion to amend order to remove petitioner's name granted. Respondent incorrectly named petitioner although he had no role in operation or management of business. Petition granted; order revoked only as to petitioner.
PR 18-019 10/24/2018 Patrick J. Halpin and Cyberport Staffing, Inc. T/A Cyberport Staffing Petition dismissed for failure to appear at hearing.
PR 17-179i 10/24/2018 James C. Nenni, Sr. and James C. Nenni, Jr. and Nenni Construction Co. Interim decision. Petitioners' application for reconsideration granted. June 6, 2018 decision revoked; petitioners to file amended petition.
PR 17-149 10/24/2018 Pascuala Campos Respondent's motion to amend order to remove petitioner's name granted. Respondent incorrectly named petitioner although she was only owner in name and had no role in operation or management of business. Petition granted; order revoked only as to petitioner.
PR 17-127 10/24/2018 Ali Al Rahaimi (T/A Sanchez Grocery & Deli) Unpaid wages order and minimum wage order modified to revoke civil penalties and affirmed; petition dismissed. Testimony of petitioner and his witnesses insufficient to show he was not claimant's employer and claimant's testimony that petitioner was his employer credible; evidence established petitioner hired claimant and permitted him to work as general helper/clerk during period of claim. Petitioner failed to provide records of days and hours worked and wages paid. Civil penalties in wage orders revoked after petitioner showed subject store burned down prior to start of investigation and never re-opened at that location and petitioner never received communications from respondent until he learned of orders to comply, otherwise he would have responded to letters. Respondent had no record of trying to send communications to petitioner at another address. Unreasonable to impose penalty for lack of cooperation/failure to respond when respondent did not try to communicate with petitioner at address other than that of store, which no longer existed. Petitioner failed to challenge interest, liquidated damages and penalty order; these affirmed.
PR 17-109 10/24/2018 Betty Bytheway A/K/A Elizabeth Bytheway and Bytheway Typesetting Services Inc. Supplemental wage order modified to revoke liquidated damages and affirmed; petition dismissed. In absence of specific, unambiguous provision in personnel policies stating that vacation pay earned on pro rata basis or evidence to show such policy communicated to claimant, claimant's vacation time not subject to forfeiture or reduction. Because petitioners cooperative during investigation, showed good-faith belief their interpretation of personnel policy correct and had no prior matters before respondent, 50% civil penalty appropriate and affirmed. As petitioners demonstrated good-faith basis for underpayment, liquidated damages revoked.
PR 15-303 10/24/2018 Panagiotis Kalligeros A/K/A Peter Kalligeros and Theodore Calligeros, and Golden Dolphin Restaurant Corp. (T/A The Golden Dolphin) Petition dismissed as to Theodore Calligeros; unpaid wages order withdrawn; minimum wage order modified to revoke spread-of-hours pay for one claimant, and civil penalty, liquidated damages, and interest modified proportionally; as modified, minimum wage order affirmed; penalty order revoked due to mathematical error; petition dismissed. Respondent's motion to dismiss petition granted where petitioner did not appear at hearing, presented no evidence, and, thus, failed to meet burden. Respondent's motion to dismiss as to second individual petitioner denied because he presented evidence in case-in-chief and raised issues of fact at hearing that Board had to resolve. Petitioners not denied due process, which was satisfied by opportunity to contest orders at hearing. Given totality of circumstances, petitioner Peter Calligeros employer as matter of economic reality; he hired and disciplined employees, supervised and controlled schedules, gave raises, and otherwise determined rate and method of payment and conditions of employment. Petitioners offered no payroll or time records, or wage statements provided employees. Records submitted to respondent during its investigation incomplete and inconsistent with information from employees. Minimum wage order affirmed and modified for one claimant. Respondent's determination of minimum wages, overtime and spread-of-hours pay owed claimants based on claim forms, interview sheets and information gained during investigation; petitioners failed to meet burden of proof in showing what workers paid or that respondent's calculations unreasonable. As one claimant's hours did not satisfy requirements for spread-of-hours pay, minimum wage order to be reduced. Lookback period not excessive and excluded two-year period covered by USDOL audit.
PR 15-148 10/24/2018 Roy J. Schukraft, Jr. and RJS Janitorial, LLC Minimum wage order, as modified, affirmed; penalty order revoked; petition granted in part and denied in part. Claimant petitioners' employee, not independent contractor; his work integral part of petitioners' business. At outset of relationship, petitioners had established business and claimant employed by temporary labor services company, and without car or telephone. Petitioners hired claimant, provided him with car and telephone and then asked claimant to sign independent contractor agreement; claimant signed agreement personally, not on behalf of his own business, which was created later and at behest of petitioner. Claimant's business insurance obtained with help from petitioner, who also provided equipment claimant used for petitioner company's accounts. Totality of circumstances reveals claimant dependent on petitioners to perform cleaning services. That claimant had cleaning accounts other than those with petitioners also insufficient to prove claimant independent contractor. Petitioners controlled how claimant performed duties, set rate of pay, and provided no persuasive evidence to show claimant independent contractor. Claimant's role did not involve opportunity for profit or loss and required no specialized degree of skill and independent initiative. Respondent properly calculated wages due as petitioners did not maintain or provide payroll records showing precise hours worked or wages paid, and petitioner did not show respondent's inferences in calculating wages owed unreasonable. Interest to be reduced proportionally based on modified principal amount. Civil penalties and liquidated damages revoked as not supported by record. Unreasonable penalty order revoked; amount more than allowed for first violation.
PR 18-013 8/8/2018 East End Steel Fabrications, Inc. Petition dismissed where petitioners failed to comply with Board Rule 66.3 (e) and amend petition to state clearly and concisely grounds on which order being appealed invalid or unreasonable.
PR 17-160 8/8/2018 Lauren H. Simons and GRJH, Inc. Orders revoked as to Simons, otherwise affirmed; petition granted in part and denied in part. Corporate petitioner failed to meet its burden of proof. Claimant employed by corporate petitioner, as established by claim form and credible and specific information claimant gave respondent during investigation. Absence of employment records not proof claimant not employed by corporate petitioner. Petitioner Simons not individually liable as employer as she credibly testified she did not know claimant, did not manage drivers, never spoke to those who did when responding to respondent's investigation, and otherwise had no knowledge about claimant's employment. With no records from employer, respondent made reasonable inferences and used other evidence to establish underpayments.
PR 17-150 8/8/2018 Michael Carl White and Hampton Beverage Worx Corp. t/a Montauk Beverage Works Unpaid wages order modified to reduce wages owing, with liquidated damages, civil penalties and interest reduced proportionally and respondent directed to issue modified order; penalty order affirmed; petition denied. Petitioners failed to show they were not employer. Claimant's testimony detailed and credible regarding his hiring for telephone sales position, home and office work schedule, days and hours he worked, and his efforts to generate sales for petitioners. Board did not credit petitioners' evidence, rejected argument that claimant independent contractor, and found petitioners employers as matter of economic reality as they hired and fired him, determined his pay rate, supervised or controlled his work schedule and location, and expected progress reports from him. Respondent's determination of unpaid wages owed reasonable, but as record shows petitioners owe claimant less, order must be modified. Petitioners failed to maintain employment records for claimant; penalty order affirmed.
PR 17-110 8/8/2018 Vlasdislav Borisob a/k/a Vladislov Borisov a/k/a Walter Vladimir and Textile Binding & Apparel Trimming, Inc. Petition dismissed for failure to appear at hearing.
PR 17-105 8/8/2018 Hugh H. Mo a/k/a Hugh Ha Mo and The Law Firm of Hugh H. Mo, P.C. Order revoked; petition granted. Respondent could not substantiate claim for unpaid overtime wages, but, based on its investigation, issued order finding petitioners failed to maintain required payroll records and failed to provide required wage statements. At hearing, petitioners showed respondent's demand for records improperly served as it had wrong date and demanded production of records by date prior to date notice served. As respondent never served valid notice of revisit prior to issuing order, order unreasonable and invalid. Order also unreasonable for assessing civil penalty more than that allowed by statute for first violation.
PR 17-030 8/8/2018 N Nguyen a/k/a The Nguyen and 374 SALON INC. (t/a Envy Nails) Minimum wage, unlawful deductions and penalty orders revoked with respect to individual petitioner; minimum wage order affirmed for corporate petitioner and amended to change one claimant's name; unlawful deductions order affirmed for corporate petitioner; counts one through three of penalty order affirmed for corporate petitioner; count four revoked; petition granted in part and denied in part. Petitioner Nguyen not individually liable as employer; petitioners presented credible, unrebutted evidence that his only role was to incorporate, and invest in, corporate petitioner. He had no role in operating business day to day; absent evidence he "suffered or permitted" nail technicians to work, he cannot be liable as employer. Petitioners failed to prove that nail technicians named in orders independent contractors. As matter of economic reality, named nail technicians employees of corporate petitioner. Work of nail technicians integral part of petitioners' business and unlicensed nail technicians cannot be considered separate business entities. Without contemporaneous payroll records for employees or testimony about pay for nail technicians named in orders, petitioners failed to negate respondent's determination of wages owed. Observation by investigators that named nail technicians worked in salon, and answers they freely provided during interviews set out rational basis for determination of minimum wages owed where petitioners provided no reliable, specific evidence of hours worked and wages paid to show otherwise. Tips may be considered part of minimum wage under certain circumstances, but where employer did not maintain weekly records of claimed tip allowance, as here, no such allowance permitted. Unlawful deductions order affirmed because petitioners illegally deducted monthly rent of work station from employee pay. First three counts of penalty order affirmed as petitioners presented no evidence they maintained required records, provided wage statements with each payment of wages or provided employees at hiring with notice of pay rate and designated pay day.
PR 16-156 8/8/2018 Thomas J. Falcone Wage order to be modified to reduce wages owed and adjust interest, civil penalties and liquidated damages accordingly; petition denied. Petitioner claimants' employer as matter of economic reality and responsible for wages owed. Petitioner only called claimants as witnesses and did not himself testify or introduce records; claimants' testimony credible and undisputed. Also undisputed that petitioner did not provide required employment records; in absence of same, proper for respondent to accept claimants' statements as best available evidence.

 

PR 16-051

8/8/2018 Michael D. Andrzejewski and Great City Food, Inc. (t/a Mike A's at the Lafayette) Order modified to revoke civil penalties and liquidated damages and, as modified, affirmed; petition denied. Petitioners did not prove claimants exempt from Labor Law Article 19 employee definition because they were employed in executive, administrative, learned professional or creative professional capacity. Executive and administrative exemptions require fixed, regular salary not subject to weekly variation by hours worked. Here, claimants' pay changed week to week depending on hours worked and was calculated based on daily rate, not weekly salary. Claimants also not exempt under learned professional or creative professional capacities because they didn't have requisite four-year culinary art degree for learned professional exemption, nor were they exceptional chefs, as creative professional capacity requires. As it must be plain and unmistakable that employee fits into exemption for it to be applicable, petitioners did not prove claimants exempt employees. Civil penalty revoked as respondent made no claim petitioners violated record-keeping or other requirements or had prior violations, believed petitioners did not intentionally violate law, and offered no reasonable explanation to justify penalty. Liquidated damages also revoked as petitioners demonstrated good-faith belief claimants exempt from minimum wage requirements, and respondent did not believe they intended to violate law in treating claimants as exempt employees.
PR 15-363 8/8/2018 Anand D. Singh, Renu Hooda, and BJ Magazines Inc. Minimum wage, unpaid wages and penalty orders affirmed; petition denied. Petitioners did not submit time or payroll records at hearing showing hours and dates worked or wages paid to claimant. Petitioner Singh' testimony about hours claimant worked not credible, unreliable, conflicting or incomplete. He also did not prove he had paid wages he claimed to have paid. Claimant's detailed testimony credible regarding hours worked and wages received. Singh admitted to owing some wages; however, he failed to credibly testify as to specific and precise amounts paid or owed to claimant.
PR 12-088 8/8/2018 Kati Mancuso d/b/a Kati's Place Petition dismissed for failure to appear at hearing. See also PR 17-021.
PR 18-010i 6/6/2018 Hristos Karayiannis A/K/A Chris Karayiannis and 63-68 Diner Corp. T/A Shalimar Diner Interim. Motion to dismiss untimely petition denied as service of order to comply improper.
PR 17-179 6/6/2018 James Nenni, Sr. and James C. Nenni, Jr., and Nenni Construction Co. Petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 17-159 6/6/2018 Russell Nowakowski Motion to dismiss untimely petition granted.
PR 17-146i 6/6/2018 Samuel Moscowitz Interim. Motion to dismiss untimely petition denied as service of order to comply improper.
PR 17-133 6/6/2018 Mortgage Enterprise, Ltd. Petition dismissed for failure to appear at hearing.
PR 17-130 6/6/2018 Cui Wu Li A/K/A "Melissa" and Chinese-American Planning Council Home Attendant Program, Inc. Unpaid wages and penalty orders affirmed; petition dismissed. Petitioners statutory employers and responsible for claimant's wages. Petitioners controlled conditions of employment for all home care workers in agency, made administrative determinations regarding hiring and firing, issued employment handbooks, maintained certain employment records and controlled payment of wages. Petitioners presented no documentary evidence and little testimonial evidence to counter claimant's credible testimony. Petitioners failed to maintain requisite payroll records; absence of records did not prove claimant did not work for petitioners. Respondent correct to rely on claim form to calculate wages due.
PR 17-126 6/6/2018 Anand Persaud Petition dismissed for failure to appear at hearing.
PR 17-121 6/6/2018 Paul Andrew Ghiron and The Crystal Spoon Corp. Petition dismissed for failure to appear at hearing.
PR 17-102 6/6/2018 Mouhammad S. Malik A/K/A Mohammad S. Malik and Trenton Halal Meat Inc. (T/A New Al Salim Halal Meat) Petition dismissed. Petitioners did not attend hearing, but appeared by counsel, who sought to remand matter to respondent on due process ground, alleging petitioners did not have opportunity to be heard; request denied as due process satisfied by opportunity to contest orders at hearing. Petitioners did not present any evidence; respondent moved to dismiss and failed to meet burden of proof. As burden of proof petitioners' and as they failed to meet it; petition dismissed.
PR 17-050 6/6/2018 Kehinde Adebowale T/A Saramik Day Care Petition dismissed. Petitioner failed to show amount of work performed by claimant, or to negate reasonableness of respondent's determination of hours worked and wages owed. As petitioner did not keep payroll records and offered only general testimony, petitioner did not meet burden of proof.
PR 17-029 6/6/2018 Ernest A. Zurita II A/K/A Ernesto Zurito Unpaid wages, minimum wage and penalty orders affirmed; petition dismissed. Petitioner joint employer who had functional control over employees; petitioner did not have formal control over employees as he did not hire or fire employees, set their rate of pay or make other determinations about their pay or hours of work. Petitioner's company and Fama Fashion, also named as employer, but not petitioner in this matter, occupied same premises and used same address. No evidence petitioner's business worked with any company other than Fama Fashion. While petitioner and claimants testified that his communication with workers limited to greeting them, petitioner and one claimant also testified that he explained to workers what final product should look like. Petitioner testified that he was at factory daily to check on progress of work and that he would check every piece before packing it, which demonstrates his supervision and functional control over work. Petitioner did not present sufficient evidence to prove that he did not have functional control over Fama Fashion employees. Additionally, petitioner listed as 50 percent owner of Fama Fashion on Application for Apparel Industry Certificate of Registration filed with respondent in 2009. As petitioner presented no evidence to contradict ownership, he failed to prove he was not employer under Articles 6 and 19.
PR 17-026 6/6/2018 Gary Martin and GMA Family Associates, LLC Petition dismissed for failure to appear at hearing.
PR 16-133 6/6/2018 Vladimir Kornev and V & V Construction Solutions Corp. Petition dismissed for failure to appear at hearing.
PR 16-017 6/6/2018 John X. Kapetanos, Jr. A/K/A John Kapetanos and 495 J.J.K. Corp. Petition dismissed. Overtime wage and penalty orders revoked for individual petitioner and affirmed as amended for corporate petitioner. Individual petitioner did not hire or fire employees, did not supervise or control employees' work schedules or conditions, and did not make determinations regarding employee pay. He signed checks, some of which were used to pay employees, purchase supplies or pay rent. He would sign blank checks and was not involved with their ultimate use, and he did not supervise daily operations. Respondent failed to produce sufficient evidence to show that individual petitioner employer or that his presence rose to level of operational control necessary to hold him individually liable. His status as part owner, absent specific evidence of requisite control, insufficient to render him liable as employer. Overtime wage order upheld for corporate petitioner as corporation offered no evidence to support assertion it was not employer. Claimant eligible for overtime pay as there was insufficient proof he was manager. Overtime wage order affirmed as amended for corporate petitioner.
PR 15-059 6/6/2018 Fletcher A. Brothers and Gates Community Chapel of Rochester, Inc. D/B/A Freedom Village USA, Inc. Petition dismissed; respondent directed to issue amended orders under Articles 6 and 19 of Labor Law, and as amended, orders affirmed. Petitioners' engagement of claimants to provide labor and services as senior staff members in exchange for cash and benefits was agreement for hire. Petitioners had power to hire and fire claimants, controlled work schedules and conditions of employment, determined rates of pay and methods of payment, and maintained employment records. Claimants paid above minimum wage were thereby "hired" and "employed" by petitioners under Article 6 and owed wages for their work. Purported releases signed by two senior staff claimants for all claims for lost wages cannot be given weight, as documents and circumstances surrounding their execution hearsay based on conversations petitioner had with attorney friend active in church. Respondent not party to alleged agreements and has broad authority to enforce Labor Law and wage protections; private agreements between employers and employees do not preclude administrative agency from enforcing laws in public interest. Given inference of bias by attorney and that he acted as agent for petitioners, potential for abuse makes alleged releases too unreliable to bind respondent. Claimants not paid minimum wages owed wages under Article 19. They do not fit within exemptions for employees of religious organization employed or permitted to work as member of religious order, if work incidental to or in return for charitable aid conferred and not under express contract of hire, or for such organization, if individual is student. Such exceptions to be narrowly construed. Term "religious order" in this context is "group of persons joined together under the authority of a religious leader, and . . . dedicated to the performance of religious works." Petitioners' employee handbook described senior staff members as staff and not as missionaries or members of delineated religious order. Petitioners issued them W-2 statements during period covered by order identifying petitioner church as "employer" and claimant as "employee" and stating that income, social security and Medicare taxes withheld on their behalf. Without credible evidence that claimant senior staff members were employed or permitted to work as members of delineated religious order, along with petitioners' representation to them and to federal and state governments that they were employed as employees throughout relevant period, petitioners failed to meet burden of proof to establish they were exempt under Labor Law. Term student defined as "individual who is enrolled in and regularly attends during the daytime a course of instruction leading to a degree, certificate or diploma, offered at an institution of learning, or who is completing residence requirements for a degree." As permanent school records for three other claimants showed graduation dates prior to or just after start of periods covered by order, petitioners failed to establish they were exempt as students. Regulations define "work incidental to or in return for charitable aid" as work or duties performed by person not under any express contract of hire, in or for nonprofitmaking religious or charitable institution, as means of discharging obligation to such institution for charitable aid given worker. Petitioners did not meet burden to demonstrate that work performed by one claimant was to satisfy obligation for charity he received; as record showed, he was compensated by housing, medical care and other benefits for entire period covered by order, and under express contract of hire for most of it. Petitioners also failed to substantiate alleged status of claimants as working to discharge obligation for charity with required personnel records containing date work commenced, work classification and nature, and for individual permitted to work for charitable aid conferred, statement of dates, nature and extent of that aid; petitioners failed to maintain such records. Petitioners thereby failed to show claimants not paid minimum wages were exempt; they were employed or permitted to work and are owed wages under Article 19.
PR 17154 3/7/2018 Brian Weber Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 17147 3/7/2018 Albert C. Corhan and Iphigenia Romanos (T/A Adelphi Academy of Brooklyn) Respondent's motion to file late answer denied as law office failure does not excuse failure to comply with Board rules; orders revoked; petition granted.
PR 17138 3/7/2018 John Michael Krawchuck, Sr. and Leslie Wenzler and LG Contracting Inc. Petition dismissed for failure to appear at hearing.
PR 17136 3/7/2018 William M. Laisdell a/k/a Bill Laisdell and Timber & Stone Construction, LLC Petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 17135 3/7/2018 Stephen R. Hoody T/A New Health C & PT LLC, also (T/A Novo Weight Loss) Petition dismissed for failure to appear at hearing.
PR 16123 3/7/2018 Guy Nicolas a/k/a Guy Nicholas and Capital District Auto Care Service, LLC Petition granted in part and denied in part. Minimum wage and unpaid wage orders affirmed as to Capital District Auto Care Service, LLC and revoked as to Nicolas. Nicolas found to have employed some auto shop workers as he had power to hire and fire them, set hourly rates of pay and controlled their hours of work and work assignments. Nicolas found not to have employed claimant. There was no evidence to show he controlled claimant's schedule or conditions of employment, but evidence did show that Nicolas and claimant, who ran separate commercial entity, agreed that Nicolas would pay claimant referral fee for customers seeking to buy car from Nicolas. Penalty order affirmed as petitioners did not keep required payroll records for auto shop employees.
PR 16103 3/7/2018 Serge Durka and Café Crème Brasserie Ltd. Petitioners' application for reconsideration denied.
PR 16096 3/7/2018 Muhammad Irfan and FM Halal Meat and Grocery Incorporated (T/A Fresh Meadows Halal Meat & Grocery) Petition denied; minimum wage and penalty orders affirmed where petitioners failed to pay claimants full wages for hours worked. Petitioners not denied due process because they did not attend earlier compliance conference as they had full opportunity to contest orders at hearing. Petitioners failed to maintain required records and failed to overcome respondent's approximation of hours claimants worked.
PR 15033 3/7/2018 Carol A. Beneke and Kenneth J. Beneke and Willow Brook Farms, LLC (T/A WILLOWBROOK FARM) Petition granted in part and denied in part. Minimum wage order under Article 19-A to be modified to reduce wages owed, with liquidated damages and civil penalty to be reduced and interest recalculated. Petitioners did not maintain legally required records, but met burden of proof to show one farmworker did not regularly work 66 hours a week as determined by respondent. Petitioners failed to show housing allowance used by respondent in determining underpayment unreasonable. Petitioners' allegation that housing allowance out-of-date and unreasonably low time-barred by Labor Law. Petitioners' argument that they were entitled to meal allowance because they provided certain food and drink to claimant in unlimited, but unspecified, amounts failed because petitioners could not show amount claimant took or that required four food groups included in food petitioners offered. Respondent's decision not to credit petitioners for meal allowances and payments in kind reasonable.
PR 14245r 3/7/2018 Jagtar Singh Petitioner's application for reconsideration denied.
PR 17153 1/23/2018 Mildred Scharf and Nightingale Management Services Petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 17143 1/23/2018 Leon Mege and The Art of Platinum a/k/a Leonid Mezhibovsky and Leon Mege Inc. (T/A Leon Mege The Art of Platinum) Board's December 13, 2017 decision to dismiss petition revoked.
PR 17142 1/23/2018 Vincent A. Tortora, II a/k/a Vincent Tortora and Tortora Property Management, Inc Petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition to include copies of order or orders to be reviewed.
PR 17-141 1/23/2018 Javier A. Morel and 1628 Bathgate, LLC. (T/A Mamita' Foods) Motion to dismiss late petition granted.
PR 17083 1/23/2018 May Street Restaurant Motion to dismiss late petition granted.
PR 16121 1/23/2018 Ambush Alarm & Electronics, Inc. Petition dismissed, for second time. Petition originally dismissed after petitioner failed to comply with Board Rule 66.3 and amend petition to include copies of order or orders to be reviewed. Arguing it did not receive letter instructing it to amend petition, petitioner applied for reconsideration, which was granted. Petitioner again ordered to file amended petition, which petitioner failed to do.
PR 17143 12/13/2017 Leon Mege and The Art of Platinum Petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 17-123 12/13/2017 222 Automotive Repairs Inc. Motion to dismiss late petition granted.
PR 17078 12/13/2017 Juan Antonio Castillo (T/A JC Painting Contracting) Petition dismissed for failure to appear at hearing.
PR 17063 12/13/2017 Melissa Tejada (T/A Melissa Spa & Beauty Center, Corp.) also (T/A Melissa Beauty Salon) Penalty order under Articles 5 and 19 affirmed. Board found claimant was employee, not volunteer. Claimant did not fall into class of persons exempted from Article 19, and petitioner suffered or permitted her to work at petitioner's beauty salon, paid her and benefitted from her work. Penalty order affirmed where petitioner failed to keep and/or furnish required payroll records and failed to show claimant provided at least 30 minutes off for noon day meal when working shift of more than six hours extending over noon day meal period.
PR 17001 12/13/2017 Bernarda T. Toribio Petition dismissed for failure to appear at hearing.
PR 16005 12/13/2017 Michael Benner and Roc Raiders Professional Football Team, LLC Order to comply with Article 6 wage order modified to revoke claim settled prior to hearing, to reduce amounts owed two claimants to reflect time petitioners controlled football team, and to revoke civil penalty where basis not properly explained. Board found petitioners employed claimants, who provided credible, unrebutted testimony about games and practices, hours worked, rate of pay, formation of contracts and other aspects of their employment, and failed to pay them earned wages. Petitioner Benner did not need to be present on daily basis in direct supervision of employees to be liable as employer for unpaid wages. Wage amounts owed deemed reasonable in absence of accurate required payroll records. Article 19 penalty order affirmed.
PR 15338 12/13/2017 Hassan Osman and Adel Fathelbab and Bahaa Elansary and Moataz Bella Mahmoud and Z-One Diner & Lounge Inc. (T/A Z One) Application for reconsideration and reinstatement denied where request for reinstatement untimely and without justification, and grounds for reinstatement unpersuasive.
PR 14114 12/13/2017 Fred Barthelman III and North Coast Sealing, Inc. Order to comply with Article 6 (unlawful deductions order) affirmed; order to comply with Article 19 (minimum wage order) modified and affirmed. Unlawful deductions order affirmed as wage deduction for colored t-shirts employees required to wear while paving/sealing parking lots not permitted; unlawful deductions also served to reduce or eliminate wages owed. Minimum wage order affirmed as modified; modification necessary to correct underpayments owed several employees for last year covered by order. Petitioners impermissibly paid workers "bonus," rather than agreed upon higher hourly rate; bonus scheme used by petitioners was device to evade overtime requirements of Labor Law. Petitioners also improperly rounded, failed to fully compensate employees for all hours worked and underpaid employees for meal periods they worked through. Commissioner directed to recalculate minimum wages owed and issue amended order, with interest, liquidated damages and civil penalty modified proportionally. Petitioners' argument that some underpayments barred by statute of limitation incorrect; DOL notified petitioners by letter that it had commenced investigation to recover back wages; subsequent orders directed payment of wages owed within six-year limitations period. Penalty order affirmed as petitioners failed to keep and/or furnish required payroll records.
PR 17-024 10/25/2017 Khemnauth Deocharran and Express Trucking & Courier Inc. Order to comply with Article 6 affirmed, but civil penalty revoked. Claimant truck driver was employee and not independent contractor, where claimant, who used petitioners' truck, made deliveries for petitioners, was not in business for himself, and had no investment in petitioners' business other than his own time and labor. Commissioner's determination of amount of wages owed reasonable where Commissioner relied on claimant's statement in absence of required payroll records. Furthermore, deductions from claimant's wages for lease of truck, damage to truck, and purchase of GPS device, violated Labor § 193. Civil penalty imposed by order to comply revoked as unreasonable where Commissioner did not show statutory factors to support civil penalty properly considered. Order under Article 19 for failure to keep or furnish required payroll records affirmed.
PR 16-121i 10/25/2017 Ambush Alarm & Electronics, Inc. Interim. Motion for reconsideration granted; Board's May 3, 2017, decision in matter revoked, where Board dismissed matter due to petitioner's failure to comply with directive to file amended petition. Petitioner alleged it did not receive Board's directive to amend petition. Respondent took no position regarding petitioner's motion. Petitioner stated valid reason to justify failure to file amended petition.
PR 16-119 10/25/2017 Ava V. Minango and JAW Sweater Inc. Amended order to comply with Article 19 affirmed. Petitioners, who operated sweater factory, failed to prove they were not claimants' employer. Board found claimants' detailed and specific testimony of their work at factory credible in absence of records required to be kept by petitioners. Petitioners' testimony, in contrast, not credible. Order under Article 19 finding petitioners failed to maintain or produce required payroll records also affirmed.
PR 17017 9/13/2017 John C. Pastor, Sr. Petition dismissed for failure to appear at hearing.
PR 16085 9/13/2017 Donald Merriam and David Paul and Light House Lake Construction, LLC Order to comply with Article 6 for unpaid wages affirmed. Petitioners were claimant's employers under Labor Law where they hired, fired, supervised and trained employees; managed daily operations of company and determined rates of pay. Ownership of company not required in order to be employer under Labor Law. Penalty order under Article 19 for failing to maintain or produce required payroll records revoked where record shows DOL did not make proper records request after its demand for payroll records returned by postal service as undeliverable and, therefore, not received by petitioners.
PR 16019 9/13/2017 Jaroslaw S. Skorupski and Best Choice Renovation Inc. Order to comply with Article 6 of Labor Law modified to reduce wages due one claimant to correspond to actual period of his wage claim, but otherwise affirmed where petitioners failed to meet their burden of proof to show claimants were independent contractors. Board applied Construction Industry Fair Play Act, Labor Law § 861 et seq., where workers in construction industry presumed to be employees unless employer can show that workers meet all statutory requirements of independent contractor or separate business entity. Petitioners failed to prove workers met statutory tests.
PR 17-091 7/26/2017 F & G Supermarket Corp. Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 17-074 7/26/2017 Don Pablo Corp D/B/A El Libertador Restaurant Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 17-073 7/26/2017 404 Henry Corp D/B/A El Libertador Restaurant Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 17-070 7/26/2017 Diego Flores A/K/A Diego Manosalvas and Nazca Restaurant Corp. (T/A Nazca Restaurant) Motion to dismiss late petition granted.
PR 17-066 7/26/2017 Tracy Cui Yun A/K/A Tracey Cui Yun Motion to dismiss petition granted; service of order proper. Petitioner did not dispute facial validity of affidavit of service; petitioner's statement of non-receipt insufficient to overcome presumption of proper service by mail and petitioner's due receipt. Respondent properly served order on petitioner; petition untimely and must be dismissed.
PR 17-021i 7/26/2017 Kati Mancuso D/B/A Kati's Place Interim. Motion for reconsideration granted; Board's December 14, 2012 decision in matter revoked, where Board dismissed matter due to petitioner's failure to comply with directive to file amended petition. Petitioner alleged she did not receive Board's directive to amend petition because owners of property where she had conducted business had unlawfully locked her out of premises and discarded her mail, including Board letter directing her to amend petition. Respondent took no position regarding petitioner's motion. Petitioner stated valid reason to justify failure to file amended petition.
PR 17-019 7/26/2017 Asim Mouhammad Rafiqi and Khiali Pulao Corp. Motion to dismiss late petition granted.
PR 16-064 7/26/2017 Arthur Johnson and Unity Home Care Agency, Inc. Unpaid wages and penalty orders affirmed. Petitioners did not introduce evidence showing days and weeks claimant worked during periods in question, her rate of pay for those days or proof of payment for each day. Claimant provided records of time she worked and credibly testified about hours she worked and payments received during her employment. Testimony of petitioners' only witness inconsistent and general; conclusory testimony regarding amount of work performed by claimant insufficient to meet employer's burden of proof. Wage calculation in unpaid wages order affirmed. Petitioners offered no evidence to challenge interest, liquidated damages or penalty order; all affirmed.
PR 16-034 7/26/2017 Suechand Toolsee A/K/A Jack Toolsee and Toolsee Wash Corp. Minimum wage and penalty orders affirmed. Petitioners did not maintain time or payroll records showing dates and hours worked or wages paid claimant during time employed by them; petitioner Toolsee's testimony cannot be credited as contradicted often - by petition, by respondent's investigation notes, and by claimant. Board credited claimant's credible, detailed, unrebutted testimony. Respondent's approximation of wages owed reasonable; petitioners failed to overcome approximation.
PR 16-020 7/26/2017 Ibrahim Issa A/KA Anthony Isaa and Bronxdale Auto Care, Inc. Minimum wage order as to petitioner Issa revoked; minimum wage order as to petitioner Bronxdale Auto Care, Inc. modified to include only wages due for part of claim period; civil penalty revoked; penalty order revoked. Petitioner Issa not statutory employer as his role was limited to that of corporate officer and did not exercise requisite operational control of business to be liable for wages owing. Respondent introduced into evidence one claimant's minimum wage claim form, which set out that Issa hired him, but no employee testified to this at hearing and no investigator with personal knowledge regarding employee interviews testified that Issa hired or fired employees, that he supervised or controlled terms of employment, set rate or method of pay or maintained employment records during relevant period. Uncontested that petitioner Bronxdale Auto Care, Inc. employer only for part of claim period before dissolved. Petitioners under no legal obligation to maintain payroll records for claim period and offered credible and unrebutted evidence that Issa lawfully paid employees. Petitioners raised substantial and credible doubt as to whether, at any point in investigation, respondent's request for records had been reasonably calculated to reach petitioners; respondent failed to timely seek employment records relevant to claim period.
PR 15-409 7/26/2017 Joel Scher and Event Locations, Inc. (T/A Locations Magazine) Application for reconsideration denied. Petitioners filed petition seeking review of order issued by respondent. Respondent thereafter notified Board that parties had settled; by terms of stipulation, petitioners withdrew petition. In July 2016 decision, Board approved withdrawal of petition and discontinued proceeding; applicant-claimant in underlying enforcement action-sought reconsideration and alleged respondent failed to properly review claim of Labor Law violation. Claimant not barred from seeking reconsideration of decision; his application denied on other grounds. Settlement must be submitted in writing or entered on record at hearing; at any point during proceeding, subject to Board approval, petitioner may withdraw petition. Parties stipulated to settlement, and petitioners sought leave to withdraw petition, which Board approved, leaving no rule, regulation or order before Board for reconsideration.
PR 15-313 7/26/2017 Roberto C. Guendjian A/K/A Roberto Guengin and Grilled Steak, Corp. (T/A Chivito D'Oro) Respondent directed to issue amended minimum wage order; civil penalty, liquidated damages, and interest to be recalculated on new principal amount; penalty order affirmed. Petitioners not denied due process because respondent prevented them from submitting relevant or additional evidence during investigation; due process satisfied by opportunity to contest orders at hearing. Petitioners failed to prove they maintained legally required payroll records and did not begin providing wage statements until two years after claim period. Undisputed that petitioners kept time cards that recorded employees' arrival and departure times for part of claim period. Petitioners did not produce time cards during investigation, but at hearing established them as valid record of employees' arrival and departure times for part of claim period. Board rejected weekly schedule forms as every form identical and line for employee signature filled out only with "/s/;" forms prepared in advance of work performed and not contemporaneous record of how many hours worked in given week. Payroll journals rejected as they did not include all required information and not contemporaneously maintained; only created in response to respondent's investigation. Claimants' testimony best evidence for period for which time cards unavailable, and respondent's determination of amount owed for period affirmed. Order to be modified, however, based on accurate time cards. Respondent credited petitioners with settlement payment, which did not satisfy amount owing in orders. Settlement between petitioner and claimant barred further claims by claimant, but did not bar non-party government agency. Civil penalty based on petitioners' continued bad faith in failing to follow record keeping requirements after previous investigations in 2010 and 2012, and petitioners' failure to provide promised documentation during investigation.
PR 14-184 7/26/2017 Ashraf Mohamed Abdelaal A/K/A Ashraf Mohamed Abdel al and K & J Supermarket, Inc. (T/A Associated Supermarket) Minimum wage order affirmed as modified; minimum wages due reduced; civil penalty, liquidated damages, and interest to be recalculated based on new principal amount; wage and penalty orders affirmed. Petitioners failed to prove claimants properly paid; petitioners did not provide legally required records showing daily and weekly hours worked or employee wage rates. Check record did not list daily or weekly hours or pay rates, making it impossible to tell how earnings computed, and not kept contemporaneously; it could not be credited as accurate or reliable evidence of when claimants worked, or that they were properly compensated. Proper to base underpayment calculation on best available evidence, including credible claims and employee testimony. Claimant's desire to not pursue claim did not negate respondent's power to enforce statute protecting New York employees and law-abiding employers vulnerable to undercutting by noncompliant competitors.
PR 11-175 7/26/2017 Charles L. Albright and Albright Investigative Associates Inc. Order revoked. Petitioners alleged employees exempt from Minimum Wage Act. Executive and administrative exemptions require that several factors be met, including that employee was paid salary that meets prescribed minimum rate. These exemptions did not apply to petitioners' employees as they were not paid required salary. Flat fees paid to employees not salary for purposes of Labor Law. Private investigators, although performing work requiring advanced knowledge, did not work in field of science or learning and did not have recognized professional status; they did not meet exemption for creative professionals because they did not perform work in recognized field of artistic or creative endeavor. Petitioners met burden to negate reasonableness of inferences drawn by respondent, and established no rational basis in record to support underpayment amounts found due. Respondent had time sheets for at least one employee that showed actual hours worked, including travel time; these were best evidence, but were not used. Respondent also had other records, including timesheets, which, if reviewed and audited, would have provided basis to make required inferences in determining liability for unpaid wages. Audit unreasonable and arbitrary.
PR 17-040 6/14/2017 Milton Rios (T/A Rios Deli Chambalaya) Motion to dismiss late petition granted.
PR 16-127 6/14/2017 Louis Essman, M.D. Petition dismissed. Petition initially filed without copies of orders. Board, therefore, directed petitioner to file amended petition and copy of orders by set date, and dismissed matter when petitioner failed to comply. Petitioner filed application for reconsideration, stating he did not receive letter directing him to file amended petition; respondent took no position on application, and Board granted motion and directed petitioner to file amended petition within 30 days of service of interim decision, and petitioner did not file amended petition as directed.
PR 16-116 6/14/2017 Paul M. Collins Jr. and Aqua-Marina, Ltd. Motion to dismiss late petition granted. Petitioner incorrect that five days must be added to time allowed for filing by mail. Board rules explicit that five days will not be added for mailing of petitions.
PR 16-103 6/14/2017 Serge Durka and Café Crème Brasserie Ltd. Petition dismissed for failure to appear at hearing.
PR 16-089 6/14/2017 Gameel M. Omar and Wise Enterprises, Inc. (T/A Dairy King) Orders revoked as to petitioners. Omar credibly testified that as potential purchaser of his business, Kya Jacobs (also named in order to comply, but not petitioner in this matter) wanted to try running business before deciding whether to purchase it, and that he and Jacobs entered short-term contract whereby they split revenue while she operated ice cream shop under name of K.J. Sweets, rather than Dairy King. No employment relationship existed because Omar neither hired claimant, controlled conditions of employment, or suffered or permitted him to work, and respondent failed to rebut petitioners' evidence with credible or reliable evidence establishing that claimant worked for petitioners during period of claim. Claimant and Jacobs did not testify, and claim form and statements to investigators during investigation insufficient to rebut petitioners' credible evidence. With no valid, reasonable basis to find petitioners claimant's employers, orders revoked as to Omar and Wise Enterprises, Inc. (T/A Dairy King).
PR 16-030 6/14/2017 JBCStyle NY LLC (T/A JBC Styles) Unpaid wages order and penalty order affirmed. Petitioner did not provide adequate record of hours claimant worked or wages paid and failed to show claimant paid, or that respondent's wage calculation unreasonable. At hearing, petitioner did not produce time records or wage statements with required information; direct deposit transmission records merely show preparation, at unknown date and time, of various sums petitioner allegedly paid claimant and 2015 W-2 form insufficient proof of payment in this matter. Petitioner's records unreliable and insufficient; petitioner failed to meet its burden to prove precise hours worked and wages paid to claimant or otherwise show wage determination unreasonable. Respondent correctly determined claimant not paid all wages owed; petitioner did not offer evidence to challenge imposition of interest or liquidated damages; issues waived. Petitioner offered no evidence of opposition to penalty at hearing. History of previous violations significant factor in setting civil penalty. Petitioner offered nothing other than vague, unsupported testimony that other wage claims should not be relevant; without more, petitioner failed to meet burden.
PR 15-366 6/14/2017 Alexander Kaganowicz and Rjak Enterprises, Inc. (T/A Precision Car Wash) Order revoked. Individual petitioner was employer as matter of economic reality where he hired and fired employees, set work schedules, performed payroll, tracked employee hours, hired claimant and set claimant's wage rate and schedule. Corporate petitioner also was employer where petitioners failed to produce evidence of lack of operational control. Petitioners, however, met their burden of proof that claimant paid minimum wage. Petitioners had no legal obligation to maintain records for claim period at time respondent requested records because more than six years had passed from last day of claim period. Petitioners, therefore, not subject to Labor Law § 196-a burden of proof in absence of required records, and met burden to show respondent's determination of wages owed unreasonable. Respondent failed to rebut petitioners' evidence claimant properly paid. Hearing officer's decision to strike claimant's testimony after he failed to appear at continuation of hearing proper. Respondent did not produce claimant at continuation and failed to seek relief from Board in advance of hearing, depriving petitioners of ability to confront witness; proper to strike his earlier testimony; respondent's argument to contrary inapt or lacking in common sense.
PR 12-120 6/14/2017 Nasir Ali Musaid Omar A/K/A Nasir M. Baqash A/K/A Nasir M. Baqush A/K/A Nasir Muzaid Omar Buqash A/K/A Nasir Ali Muzaid-Omar and Universal Food Mart, Wage and penalty orders affirmed. Petitioners not denied due process during respondent's investigation because they had opportunity to appeal orders to Board. Petitioners employed claimant where credible evidence showed petitioners hired claimant, assigned him job duties, made his work schedule, set his rate of pay, made deductions from his wages, and terminated him. Petitioners failed to keep and/or furnish true and accurate payroll records as required by Labor Law.
PR 16-130 5/3/2017 Joseph Silvestro and 96 Vreeland Street Corp. (T/A Rosamaria Bakery) Petition dismissed for failure to appear at hearing. Petitioners requested adjournment due to medical condition of witness; hearing officer denied request. Petitioners then requested adjournment claiming unavailable witness was employer, and to find otherwise before hearing would prejudice petitioners' case. Hearing officer responded by noting witness not named as employer in order to comply, and required hearing to go forward as scheduled. Petitioners did not appear at hearing.
PR 16-127i 5/3/2017 Louis Essman, M.D. Interim decision. Request for reconsideration granted after Board dismissed petition for failure to file amended petition and requisite copies of orders to comply.
PR 16-121 5/3/2017 Ambush Alarm and Electronics, Inc. Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-114 5/3/2017 Anh Thu Tran A/K/A Anh Thi Tran and Hang Tran D/B/A Elite Nail Spa #2 Petition dismissed for failure to appear at hearing.
PR 15-390 5/3/2017 Rong H. Zheng and Rong Trading Corp. Minimum wage order modified against petitioners, reducing wages owed, with interest, liquidated damages and penalty reduced proportionally; penalty order affirmed; petition dismissed. Claimant's testimony detailed, specific, and unrebutted; petitioners failed to establish by credible evidence that they did not employ him before date Rong Trading Corp. incorporated. Petitioner Zheng did not testify and petitioners submitted no evidence other than DOS report indicating Rong Trading Corp. was registered as active corporation in October 2011. Report not proof petitioner did not employ claimant prior as individual employer; report merely evidence of incorporation date. Petitioner Zheng "boss" and at company warehouse every day. Petitioner handled money, assigned duties, supervised work, set rate of pay, and petitioner or his wife paid claimant. Claimant described warehouse operations, hours of work and duties in detail, which included opening and closing warehouse, loading and unloading trucks, storing merchandise, cleaning building, and assisting drivers with deliveries. After disabling injury at work, claimant terminated. Minimum wage order affirmed, but modified as to wage amount owed. In absence of accurate records, respondent may draw reasonable inferences and calculate unpaid wages based on best available evidence drawn from employee statements or other evidence, even if results approximate. Petitioners failed to overcome approximation with sufficient and reliable evidence establishing precise hours worked, and that claimant paid, or with other credible and reliable evidence showing respondent's determination unreasonable. As claimant acknowledged last day of work December 31, 2012, Board modified wages owed.
PR 15-287 5/3/2017 Frank Lobosco and 1378 Coffee, Inc. (T/A Juliano Gourmet Coffee) Minimum wage order modified, with interest and liquidated damages reduced proportionally and interest to start from September 5, 2014; penalty in minimum wage order revoked; penalty order affirmed. Petitioners failed to establish precise hours worked by claimant, that he was paid for those hours or that inferences supporting calculation of wages by respondent in minimum wage order otherwise unreasonable. Petitioner conceded he did not maintain required time records, and asserted he did not owe overtime wages because claimant did not work beyond business hours, received hour for lunch and paid in full for each week of work. General, incomplete, and conclusory testimony concerning work performed by employee insufficient to meet employer's burden of proof; mere assertions of alleged work schedule or that employee never worked overtime insufficient. By administrative error, final order directs payment of $33,236.22 in wages due; investigation revealed correct underpayment was $16,002.49. Order modified accordingly; amended order to be issued and interest and liquidated damages reduced proportionally. At hearing, investigator did not explain considerations used to set penalty amount; thus, penalty in minimum wage order revoked.
PR 15-245 5/3/2017 John Ellis A/K/A John C. Ellis Sr. (T/A J Ellis & Sons) Orders affirmed. Petitioner contractor did not show claimants independent contractors who met all three sections of ABC test, or separate business entities meeting all 12 factors of statutory definition of separate business entity. Under ABC test, claimants independent contractors if not under petitioner' direction and control in performing painting services, if painting work outside usual course of petitioner's painting business, and if claimants customarily engaged in independently established occupation similar to painting work they performed for petitioner. Several claimants provided credible and unrebutted testimony that petitioner supervised their work on jobs he had subcontracted to others. Petitioner also determined price of each job directly with customer with no negotiation or input from claimants. Claimants did not provide service outside usual course of petitioner's business. While record had some evidence one claimant may have had painting company and insurance, petitioner produced no testimony from that claimant about independent business and not one claimant testified he had independently established business; that claimant may have had insurance not dispositive of independent contractor status. Claimants not free from direction or control over means and manner of providing service, subject only to petitioner's ability to specify desired result. Petitioner produced no evidence any claimant had substantial investment of capital beyond ordinary tools and equipment, and no evidence any claimant included services rendered on federal income tax schedule as independent business or profession. After analyzing first factors, no need to consider others as petitioner could not prove claimants met all statutory requirements for separate business entity under Fair Play Act.
PR 15-008 5/3/2017 Alessandro Altigieri and Baci da Roma LLC (T/A Carbone Restaurant) Minimum wage order, unpaid wage order and penalty order affirmed. As matter of economic reality, claimant employee and petitioners responsible for wages owed. Altigieri owned and operated restaurant; he asked claimant to help in restaurant, answering phones, taking food deliveries and orders, speaking with customers and other work, as needed. Petitioners alleged her work not part of customary business of operating restaurant, but work can be integral to business even if just one component of business. Claimant' duties sufficiently integral to operating restaurant as to show her employee. Intermittent character of working relationship among petitioners and claimant not related to claimant's independent-business initiative. Petitioners offered no evidence business relationship on project basis or otherwise limited in duration, other than due to claimant's schooling or failure of business relationship. Claimant did not exercise independent business skills, judgment or initiative and petitioners presented no evidence to show claimant in business for herself; petitioners' evidence underscored her economic dependence upon petitioner. Petitioners challenged wage calculation, but general, incomplete and contradictory testimony and conjecture insufficient to show calculation unreasonable. Minimum wage order found petitioners also failed to pay second claimant statutory minimum wage; petitioners did not challenge order as to this claimant. Wage order indicated petitioners owed claimant for unlawful tip appropriations. Witness testified he received allotment of tips in paycheck and tips separately identified as such. Petitioners put forward no evidence of how tips divided, or among whom. Tips paid to one employee not dispositive as to another.
PR 14-347 and PR 15-401 5/3/2017 Rosa A. Mejia and La Nueva Cocina Restaurant, Inc. (T/A La Cocina Restaurant Inc.) Petitions dismissed for failure to appear at hearing. Respondent moved, without opposition, to amend orders; by interim decision, Board approved issuance of amended orders. Respondent failed to file proof of service on petitioners of amended orders; Board advised petition would be granted if amended orders not served within 30 days. When orders served late without explanation, Board granted petition. Petitioners opposed amended orders; respondent answered and moved, without opposition, for reconsideration of dismissal of first petition and for consolidation of matters. By interim decision, Board granted motion and revoked earlier interim decision in favor of deciding matter on merits. Hearing scheduled; petitioners failed to attend.
PR 14-274 5/3/2017 Dora E. Idez and Javier Roman Idez (T/A Subway) Minimum wage order, unpaid wages order, unlawful deduction order, and penalty order affirmed; petition dismissed. Petitioners' only witness had no personal knowledge of facts relevant to orders, did not manage employees and not involved with payroll. Signature and date in document, without more, not determinative of employee's start date. Petitioner's payroll summary and check purportedly issued claimant not supported by testimony from witness personal knowledge, and neither indicated pay period was covered, or if check received and negotiated. Petitioners produced no evidence of precise work performed or wages paid to claimant. Petitioners failed to show claimant not entitled to wages claimed and did not challenge unlawful deduction order, interest for wage orders or imposition of liquidated damages. Petitioners objected to penalties, but offered no evidence at hearing and failed to introduce required records and required wage statements or to show they did not take prohibited deductions and provided sufficient meal time.
PR 14-245 5/3/2017 Jagtar Singh Minimum wage order modified; penalty order affirmed. Respondent's investigator testified petitioner showed her, during site visit, cash book showing claimant's weekly earnings; she was not given copy. Petitioner introduced into evidence business records showing claimant's daily earnings; they did not consistently or credibly track hours worked or comply with payroll records regulations; could not be credited as accurate or reliable evidence claimant properly compensated. Petitioner also argued claimant independent contractor or, that he did not employ claimant prior to start of business operations in 2010, but failed to provide credible evidence in support of either argument. Claimant' unrebutted testimony indicates petitioner exercised his authority to hire and supervise employees and control employment conditions. As matter of economic reality, petitioner was employer and claimant not independent contractor. Petitioner's sale of business did not immunize him from determination that he was employer. Sale did not relinquish petitioner's supervisory role over claimant. Respondent's determination that petitioner individually liable as employer reasonable and valid. Minimum wage order to be modified as petitioner liable for underpayment of wages up until date claimant stopped working for him.
PR 13-007 5/3/2017 Houcine Rached and Spectrum Jewelry, Inc. Orders revoked; petition granted. Petitioners met burden of proof in showing they did not employ claimants. Rached credibly testified that two separate businesses operated at same location (electronics and cell phone store owned/operated by another, doing business as Electronics Spot, as well as Rached's business, Spectrum Jewelry), that he had no involvement with other business, that he employed only his relatives, and that individuals interviewed by respondent worked for other business. Rached's testimony unrebutted and record supported description of two separate, unrelated entities at same location, including testimony of respondent's investigator. Petitioners showed they were not claimants' employers; respondent did not rebut their proof.
PR 16-140 3/1/2017 Rajendra Mistry and Enaura Bridal Inc., Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-107 3/1/2017 Michael Mangione D/B/A Allstate Painting Petition dismissed where petition late and service proper.
PR 16-091 3/1/2017 Felix J. Terraferma Jr. and Blue Chip Fish & Clam Co. Inc. (T/A Blue Chip Fish Market) Motion to dismiss untimely petition granted. Petitioners acknowledged doing business out of address used for service despite leasing part of it to another entity. Respondent provided affidavits of service showing Terraferma and Blue Chip Fish & Clam Co. Inc. were each served by regular mail at same address; orders not returned. Petitioners' statement that orders not received insufficient to overcome presumption of proper service. Petitioners did not dispute facial validity of affidavits of service. Service proper.
PR 16-076i 3/1/2017 Celia Durao, Durao Building Enterprises Inc. and Durao Concrete Corporation Interim Decision. Respondent moved for order allowing her to amend and reissue orders to substitute Durao Concrete Corporation as liable corporate employer. Board approved amendment and reissuance of orders. Interest suspended until respondent files answer.
PR 16-044 3/1/2017 Baron Associates Respondent served orders by mail at petitioner's last known place of business and provided affidavit of service showing orders served by mail on "Baron Associates LLC" at Yonkers, New York address; orders not returned. Petitioner admitted it owned or managed property at that address. Board directed parties to brief question of whether service effective; petitioner failed to do so, even after seeking, and receiving, more time to do so. Petitioner did not show address where orders served not its place of business or that mailing orders to such address not reasonably calculated to give notice. Service proper.
PR 16-035i 3/1/2017 Anthony Leone Interim Decision. Petitioner denied being employer and named another as employer; respondent moved, and was granted permission to, amend and reissue orders. Interest suspended until respondent files answer.
PR 15-151 3/1/2017 Kenneth Pieri Wage and penalty orders revoked as to petitioner Pieri; petition otherwise granted. Petitioner credibly testified that he manages rental property, making repairs and reviewing applications from prospective tenants; he has office in building's basement in proximity to, but unrelated to, office of another named in orders; Pieri never on that petitioner's payroll, did not provide management or supervision or acted on behalf of, another named in orders. Petitioner did not hold himself out as associated with others in orders, and provided them with no work, labor or services. Petitioner did not instruct claimant how to perform her duties; once, as favor to another named in orders who was "short on money" and on condition that he be repaid, petitioner issued check to claimant for $186.00. Burden shifted to respondent to show petitioner had requisite authority over claimant's employment to be deemed employer; respondent did not meet burden. Claimant did not testify; identified another as responsible party on claim form. Petitioner did not step into shoes of employer, and his having reported to respondent that another entity owed wages cannot be understood to be admission that he employed claimant. While petitioner issued check to claimant for wages, record has insufficient evidence to conclude petitioner possessed requisite day-to-day operational control to find him liable for unpaid wages. Based on totality of circumstances, including petitioner's unrebutted, credible testimony, unreasonable to consider petitioner employer.
PR 15-034 3/1/2017 Fabian Bravo and IFK Handbags Corp Petition dismissed for failure to appear at hearing.
PR 14-159 3/1/2017 Kevin J. Silvar and Joseph P. Romano and Visionpro Communications Corp. Minimum wage, wage and penalty orders affirmed; petition dismissed. Petitioners contend defense of release bars claimants from pursuing claims, claims barred or precluded by res judicata, claim-preclusion bars respondent from prosecuting this action on behalf of claimants. Defense of release effective when legally enforceable, applies to claimants and encompasses claims asserted below. Parties do not dispute that release legally enforceable and encompasses legal claims at issue; sole question whether release applies to claimants. Petitioners did not meet burden to show they acted with reasonable diligence to provide notice to claimants. Petitioners introduced list of employees provided to claims administrator to administer settlement. List contains no information to show its author, date of creation or delivery, and date submitted to claims administrator not verified, making document unreliable. Given inconsistencies of witness testimony, list of purported class members cannot be considered accurate or reliable evidence showing claimants were timely sent notice reasonably calculated to apprise them of pendency of action and afford opportunity to object.
PR 14-101 3/1/2017 Long Cove Deng and New York Mart, Inc. Wage and penalty orders affirmed; petition denied. Petitioners failed to provide accurate, reliable payroll records; respondent entitled to calculate underpayment based on best available evidence. Petitioners' only witness manager with no role in payroll and not involved in termination of claimant, whose credible testimony unrebutted by petitioners.
PR 14-096 3/1/2017 Orazio J. Petito, Jr. and Peto Management Corp. Minimum wage, unpaid wage and penalty orders affirmed; petition denied. Employer status of corporate petitioner uncontested; Petito found to be employer as he owned buildings in which claimants worked and corporate entity that managed those buildings, and as he hired claimants, set their rates of pay and method of payment and assigned or re-assigned tasks. Building service industry wage order applies to employees in building service; employers required to pay employees for each hour worked wage not less than minimum wage, which, for residential building janitor, based on number of units in building(s) she or he serves. Janitors in residential building not entitled to overtime. With some restrictions, apartment furnished by employer to employee in residential building, and occupied by her or him may be part of minimum wage. As petitioner did not produce required payroll records or meet evidentiary burden, respondent's calculation of wages for work performed to be credited. Petito testimony conclusory or vague and included number of admissions in respondent's favor.
PR 16-120 2/16/2017 Global Cash Card, Inc. Payroll card regulations revoked because Commissioner of Labor exceeded scope of Labor Law Article 6 by regulating financial services products.
PR 16-129 1/25/2017 Anthony Grigoli and Safeway Industries Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-127 1/25/2017 Louis Essman, M.D. Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-067 1/25/2017 Roslyn Rogers Motion to dismiss granted. Matter previously litigated and decided by 2013 Board resolution of decision.
PR 15-338 1/25/2017 Hassan Osman and Adel Fathelbab and Bahaa Elansary and Moataz Bella Mahmoud and Z-One Diner & Lounge Inc. (T/A Z One) Petition dismissed for failure to appear at hearing.
PR 15-311 1/25/2017 Rodney Brayman and Phoenix Beverages MTO, LLC and Phoenix Beverages, Inc., (T/A Phoenix Beehive and Phoenix Beverages Lobo) Supplemental wage order affirmed as modified; penalty order revoked. Upon resigning, claimants sought vacation and personal-time pay, per employer's written vacation policy; employer argued that vacation days were accrued pro rata during year worked. Employer's position rejected; employee must be paid for accrued vacation upon separation unless employer's written policy specifies that accrued vacation forfeited. Employer's vacation policy repeatedly set out in employee handbook did not specify that vacation time to be earned pro rata over course of year, as opposed to being earned and available on January 1. Additionally, employer's summary of time off indicated claimants had earned 120 vacation hours and 8 personal hours as of first week of January. Any ambiguity in vacation policy to be construed against drafter of policy. Petitioners' purported past practice of pro rating vacation pay not substantiated by payroll records and contradicted by admission that another employee paid full year of vacation when he had worked for only part of year. Contradictory evidence of past practice did not overcome plain meaning of policy. Respondent provided no valid or reasonable explanation for supplemental wage order's civil penalty. Employer adhering to position with which respondent disagrees does not reach level of "willful or egregious" violation and petitioner had no prior Labor Law violations; supplemental wage order penalty revoked. Liquidated damages portion of order revoked as respondent presented no evidence of petitioners' bad faith. Penalty order revoked as petitioners provided required payroll records and respondent did not prove otherwise.
PR 15-238 1/25/2017 Filippo Lia A/K/A Philip Lia and Filippo', Inc. Petition dismissed for failure to appear at hearing.
PR 15-225 1/25/2017 Thomas C. Fricker A/K/A Thomas Carlton (T/A T Carlton' Spalon) Petition dismissed for failure to appear at hearing.
PR 15-098 1/25/2017 Ramon Benitez A/K/A Raymond Benitez and Caroray Corp. Wage and penalty orders affirmed. In absence of legally required payroll records for relevant period, employer bears burden of proving disputed wages paid and respondent may draw reasonable inferences and calculate unpaid wages based on best available evidence, even if results approximate. Employer must show evidence of precise amount of work performed or precise wage paid to negate reasonableness of inferences drawn from employee evidence. Petitioner Benitez testified that he agreed to pay claimant flat weekly wage regardless of hours worked; he then deferred paying her due to insufficient funds. Claimant testified partial wage payments made, but denied wage payments were deposited into her bank account or that she signed agreement regarding wages; petitioners did not rebut her testimony. Petitioner not entitled to withhold payment to claimant on basis she misappropriated funds.
PR 15-031 1/25/2017 Mohammad Mansoor Mirza A/K/A Mohammed M. Mirza and 99 Cent Mini Depot Inc. Minimum wage and penalty orders affirmed. Respondent moved to dismiss petition at close of petitioners' case, the only evidence of which was testimony from two witnesses, on grounds that petitioners failed to establish prima facie case or meet burden of proof showing minimum wage and penalty orders invalid or unreasonable. Petitioners opposed minimum wage order arguing they were not employers as they did not own place of employment during claim period. Petitioners' two witnesses did not offer relevant or probative evidence sufficient to show this and petitioners presented insufficient evidence to contradict or rebut respondent's determination that they employed claimant. Motion to dismiss granted.
PR 13-179 1/25/2017 Brendan Spiro Unpaid wages and penalty orders affirmed. Petitioner alleged he was only a consultant to restaurant owner, but testimony including his own showed that he sufficiently controlled working conditions of two employees, hired them, supervised their work and determined their rates and methods of pay. Petitioner present at restaurant on continuous basis after expiration of "consultant agreement." That others may have acted as employer does not relieve petitioner of liability as employees may have more than one employer. Petitioner did not dispute that wages owed or manner in which respondent calculated unpaid wages; petitioner, as employer, is liable for those wages. Penalty order is affirmed as any payroll records not produced by petitioner during investigation or at hearing; petitioner claimed no access to records after restaurant closed, but made no attempt to subpoena records.
PR 16-106 12/14/2016 Pomadoro Ristorante & Pizzeria Inc. (T/A Pomodoro Restaurant & Pizzeria) Motion to dismiss untimely petition granted.
PR 16-060i 12/14/2016 Jimmy La (T/A Nails 4 U) Interim. Petitioner's application for reconsideration granted. Petition dismissed as untimely in Board's September 2016 decision; petitioner applied for reconsideration, which respondent did not oppose. Petitioner explained that while he was aware of orders issued against him and his wife, he did not have orders in his possession due to his separation from his wife and their pending divorce. Petitioner retained counsel and, when his attorney attempted to obtain copy of orders from respondent, respondent sent said copies to incorrect address. When error was noted and corrected, statute of limitations had run; petitioner filed late petition, which was dismissed as untimely. Board found petitioner made good faith attempt to file timely appeal and granted application.
PR 16-032 12/14/2016 Angel Salgado and Coamex Restaurant Inc. (T/A/ Casa Colombia) Petition dismissed for failure to appear at hearing.
PR 15-236 and PR 15-256 12/14/2016 AJ J. Black A/K/A/ AJ Black and Il Tesoro Ristorante and Bar, LLC (T/A Il Tesoro Restaurante) Petitions dismissed for failure to appear at hearing.
PR 15-205 12/14/2016 Bulganin B. Chandok, Sr. a/k/a Bulganin Chandhok, Sr. and Reena B. Chandok, Sr. a/k/a Reena Chandhok, Sr. and Triple V Enterprises LLC (T/A Universal Minimum wage, wage and penalty orders modified to limit periods for which two petitioners liable; otherwise affirmed. B. Chandhok confirmed to be employer after credible testimony that he interviewed, hired and set employee work schedule and conditions of employment undermined his assertion that he had no role in business before October 2011. His role as employer did not change regardless of which corporation operative as he had power to hire and fire employees, supervised and controlled work schedules and conditions of employment, determined rate and method of pay and maintained employee records. Orders modified to reflect Royal Services, Inc. liable prior to October 17, 2011 (date Molly Maid franchise expired and Chandhoks began operating cleaning business) and liability of Triple V Enterprises, LLC limited to period starting October 17, 2011 (date Universal Maids established). Minimum wage must be paid for time employees permitted to work, or required to be available for work at place prescribed by employer, and must include time spent traveling, to extent travel part of duties. Undisputed that cleaners required to report and return to home office daily for instructions and supplies and to pick up and return car used to perform duties. Travel time to and from office and from site to site during work day to be included in hours worked. While petitioners free to base wages on percentage of what customers paid, not excused from obligation to pay at least minimum wage and must pay overtime premium for hours worked over 40 a week, spread-of-hours pay and a weekly allowance for failure to launder or maintain required uniforms. In disputing number of hours worked, petitioners sought to rely on assignment sheets, which lacked specific times for jobs, included cross-outs, deletions and obscurities, were incomplete or implausible or did not reflect travel time; these not best evidence in case with credible and consistent testimony from claimants and sworn claim forms. Without adequate payroll records, respondent may rely on best available evidence and draw approximation of hours worked and wages owed from claims forms.
PR 15-079 12/14/2016 Syndie Molina A/K/A Dr. Syndie G. E. Molina and Family Fitness Unlimited LLC Board's interim April 2016 decision granting reconsideration rescinded; its September 2015 decision dismissing petition for failure to appear reinstated. After petitioner Molina failed to appear at July 2015 hearing, Board dismissed petition. Petitioners requested, and were granted, reconsideration due to petitioner Molina having been abroad on hearing date, on an emergency basis, and to her involvement in a motor vehicle accident upon her return. Board rescheduled hearing for August 2016; shortly before hearing, respondent moved to rescind Board's April 2016 decision and reaffirm September 2015 decision after respondent learned petitioner Molina was not abroad for July 2015 hearing, but was present and available for work in New York City. After petitioners failed to refute respondent's allegation, Board found petitioner Molina was in New York City on day of July 2015 hearing and reinstated its September 2015 decision dismissing petition for failure to appear.
PR 15-073 12/14/2016 Spiridon Varlas A/K/A Spiro Varlas and AAA Food Delights Inc. (T/A Euro Delights) Minimum wage order and penalty order affirmed. Petitioners' asserted that claimant did not work at petitioner's restaurant; petitioner Varlas testified that he did not know and had not even seen claimant prior to compliance conference; petitioners maintained no employment records. Respondent presented credible and reliable evidence sufficient to establish that petitioners employed claimant. At hearing, claimant affirmatively identified Varlas as his boss and credibly and specifically testified that Varlas was person who had hired him to work as dishwasher, porter and delivery man. Petitioner Varlas's testimony that he was sole employee, and was assisted by family members, was contradicted by claimant's testimony that restaurant had several employees, each of whom claimant identified by name. Petitioners produced tax records, but these are not dispositive as they contain unreliable hearsay and are not persuasive. Respondent showed, with claimant's unrebutted, specific, credible testimony, by preponderance of evidence, that claimant was employee. Petitioners did not challenge wages, interest, liquidated damages and civil penalties; thus, minimum wage order affirmed in entirety.
PR 14-216 12/14/2016 Tracy Krawitt and Spacey Tracy's, Inc. (T/A Spacey Tracy's Pickles Unpaid wages order, supplemental wage order and penalty order affirmed. Petitioners failed to maintain required payroll records showing wage rate of each employee, number of hours worked daily and weekly (including the time of arrival and departure for each working spread of hours exceeding ten), amount of gross and net wages paid, and to provide each employee statement with payment of wages showing hours worked, rates paid, gross and net wages, any allowances claimed and deductions. Petitioners failed to produce such records, alleging, rather, that an employee of respondent (stationed in county in which investigation did not originate), had copies of their payroll records. This does not satisfy petitioners' burden; the other employee did not testify and her appearance was not compelled by petitioners. Petitioner Krawitt herself testified that she did not keep records for entire claim period, and relied on dry-erase board in her home to track employees' work hours. Lacking evidence to the contrary, Boart found petitioners failed to maintain required payroll records. Having failed to produce legally sufficient payroll records, petitioners were to negate reasonableness of respondent's inferences drawn from claimant's evidence. Petitioners failed to meet this burden; instead, petitioners offered inconsistent, conflicting and overly general testimony, while claimant's was specific and detailed. Respondent's determination of unpaid wages affirmed. Regarding supplemental wages, claimant's testimony that she paid for gas for petitioners' vehicle when travelling to county fair work sites was credible and specific, while petitioners' was irrelevant and their argument that gas expenses were not an employer's responsibility wrong. We find respondent's determination that claimant was not reimbursed for gas expense reasonable and valid. Petitioners did not present evidence to challenge interest assessed in orders, thus waiving issue. Petitioners failed to prove required good-faith basis to believe that underpayment in compliance with law; 25% liquidated damages affirmed. As petitioners did not present evidence to challenge respondent's determination of civil penalties and as testimony showed respondent relied upon requisite statutory factors in determining civil penalties, civil penalties affirmed in each order. Penalty order affirmed as petitioners did not maintain required payroll records.
PR 14-061 12/14/2016 Gary Hsin Liang A/K/A Gary Liang and Happy Lemon Inc. Order modified to reduce penalties. Petitioners retaliated against claimant for having filed a minimum wage claim against them. Labor Law § 215 (1) (a) and (b), read together, allow respondent to assess maximum civil penalty of $10,000.00 for retaliation, unless employer had illegally retaliated against employee in prior six years. As there was no showing that petitioners violated statute in prior six years, and as statute does not allow respondent to assess two civil penalties of same amount for single violation of statute, order modified to reduce total penalty due from $20,000.00 to $10,000.00. Maximum civil penalty (of $10,000.00) supported by record where respondent showed retaliation to be severe and egregious, and exercises her discretion to punish retaliation by imposing maximum civil penalty.
PR 16-075 10/26/2016 Alma Felicies, Graciela Velez and Chinelos II Corp. Motion to dismiss untimely petition granted. Velez not named in order, but filed petition with Felicies in which they specifically named themselves as petitioners, together with Chinelos II Corp.
PR 15-328 10/26/2016 Anthony Anton (T/A Tony's Pizza) Petition dismissed for failure to appear at hearing.
PR 15-281 10/26/2016 Moshe Maman and Lola 8 West Ltd. (T/A Filicori Zecchini) Respondent's motion at hearing to withdraw orders against Filicori Zecchini USA Corp. granted; minimum wage and penalty orders revoked as to Lola 8 West Ltd. Minimum wage order modified to reduce wages due and to revoke civil penalty as to Maman; civil penalty, liquidated damages and interest affirmed on recalculated principal amount. Count 1 of penalty order revoked as to Maman and otherwise affirmed; counts 2 and 4 affirmed; count 3 revoked. Maman testified he was not employer; respondent produced credible and unrebutted evidence to show he was as matter of economic reality in that he hired claimant to work as barista, promoted him, told him what to wear to work, supervised him, made his work schedules and determined his rate and method of payment. Lola 8 West not employer where other than one paycheck, for which credible explanation offered, there was no evidence to show it employed claimants. Minimum wage order to be modified based on best available evidence (time records printed from work site cash register), which respondent did not consider, and petitioners' credible and unrebutted testimony that claimant did not work for petitioners and, other than claim form, respondent presented no evidence to contrary. Civil penalty in minimum wage order revoked as to Maman after respondent failed to show it properly notified Maman of investigation prior to issuance of orders and Maman had no opportunity to show good faith belief he had complied with law.
PR 15-269 10/26/2016 Jocelyne Wildenstein Civil penalty in unpaid wages and supplemental wage orders revoked; orders otherwise affirmed. Penalty order affirmed. Petitioner failed to meet burden of proof to show she was not employer where claimant provided unrebutted, detailed, credible testimony regarding work for petitioner as her personal assistant, manner in which she entered work site, conditions of employment and how she was hired and supervised; petitioner' evidence, consisting principally of testimony by property manager, too speculative and inconsistent. Respondent's estimation of wages owed reasonable after claimant's detailed and credible testimony regarding hours worked and amounts petitioner failed to pay, and after petitioner offered no proof to contrary. Civil penalty in unpaid wages and supplemental wage orders revoked when it could not be shown at hearing how respondent assessed those penalties.
PR 15-220i 10/26/2016 Americo E. Pullini and Edward A. Pullini and Pullini Subsurface Contractors, Inc. Interim. Petitioners' motion for reconsideration granted; September 2016 Resolution of Decision revoked; July 2015 petition reinstated. When petitioners failed to attend hearing, adjournment granted, conditioned on petitioners' payment of court reporter and interpreter fees. After petitioners failed to pay those fees, petition dismissed for failure to appear at scheduled hearing. Petitioners timely requested reconsideration, and Board granted request, conditioned on payment of reporter and interpreter fees by date certain, which fees then were timely paid.
PR 15-159 10/26/2016 Luping Huang a/k/a Luping Huang-Ferreira and Amazing Touch Spa Inc. Petition dismissed for failure to appear at hearing.
PR 15-097 10/26/2016 Winston Castillo and E-Z Parking Lot Corp. (T/A E-Z Parking & Auto Sales) Civil penalty in minimum wage and unpaid wages orders revoked; orders otherwise affirmed. Penalty order revoked. Petitioners were claimant's employers. Castillo's inconsistent and contradictory testimony insufficient to meet petitioners' burden of proof where claimant's testimony credible, consistent and specific with regard to parking attendant work for petitioners, as well as duration, terms and conditions of that employment. Amounts owing under minimum and unpaid wage orders were based on best available evidence, using information from claim forms as corroborated by claimant' credible testimony at hearing. Civil penalties in minimum wage and unpaid wages orders revoked where respondent failed to show requisite considerations in determining penalty amounts; penalty order also revoked where respondent failed to show due consideration given to statutory factors.
PR 14-301 10/26/2016 Perry R. Stuart and Long Island Limousine Service Corp. Wage and supplemental wage orders revoked; penalty order affirmed. Petitioners presented credible testimonial evidence that claimant did not work on day for which wages claimed, which respondent failed to rebut. While respondent offered testimonial evidence from claimant and investigator, respondent did not produce at hearing claimant's notebook, in which claimant had kept independent record of time worked, and would have been best available evidence. For supplemental wage order, petitioners presented unrebutted evidence that company policy stated claimant not entitled to benefits; respondent' order also showed that claim period did not include holidays for which claimant sought wages, making supplemental wage order invalid on its face.
PR 14-217 10/26/2016 Hisham S. Ghazelle Minimum wage, unpaid wages, and penalty order affirmed. Petitioner was employer because he owned restaurant, hired claimant and had authority to fire him, supervise and control his work schedule and conditions of employment, and determine manner and means of payment and maintain employment records, regardless of whether he exercised those powers during period claimant employed at his restaurant. Petitioner produced no payroll records and claimant's credible and detailed testimony was unrebutted. Liquidated damages in unpaid wages order not affirmed where no amount of liquidated damages set out in total due.
PR 12-090 10/26/2016 Wah Chan Wong and H.K. Tea and Sushi, Inc. Minimum wage, tip appropriations and penalty orders revoked as to Wong; civil penalties in minimum wage and tip appropriations orders revoked and orders otherwise affirmed as to H.K. Tea and Sushi, Inc.; penalty order affirmed as to H.K. Tea and Sushi, Inc. Based on totality of circumstances, respondent's conclusion that Wong individually liable as employer unreasonable. Wong lacked requisite authority over claimants' employment; he was minority shareholder in restaurant, but had minimal financial and operational role therein, which was managed by co-owner, who purchased supplies, interviewed, hired, fired and directed employees and set their wages. Wong worked long hours at his bakery nearly every day, was infrequently at restaurant and did not keep, and was not responsible for, its employment records. Wong did not speak, read or write English and signed documents for restaurant solely at behest of co-owner. Respondent's evidence did not show Wong was supervisor or manager of restaurant and testimony regarding this by investigators and one claimant insufficient to counter Wong's specific and credible testimony. Wong's having provided certain records to investigator insufficient to show him to have been responsible for keeping and maintaining such records during claim period. Underpayment calculation affirmed as to corporate petitioner given lack of required payroll records and general testimony. Wong did not partake in distribution, tip appropriations order revoked as against him, but affirmed as to H.K. Tea and Sushi, Inc. Respondent failed to consider statutory factors, and civil penalties in orders revoked.
PR 16-081 9/14/2016 Jianyu Yao and Yao's Diner Inc. Motion to dismiss untimely petition granted.
PR 16-072 9/14/2016 Kya Jacobs Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-060 9/14/2016 Jimmy La (T/A Nails 4 U) Motion to dismiss untimely petition granted.
PR 15-372 9/14/2016 Dov Greenbaum and Mold Pro Restoration Specialist LLC (T/A Mold Pro) Minimum wage order modified to reduce principal amount owing, eliminate civil penalty and liquidated damages, and recalculate interest on modified principal amount; penalty order affirmed. Board found principal amount incorrect after petitioner denied claimant worked hours claimed, and entered into record calendar showing all jobs scheduled during relevant period. Claimant's inconsistent testimony insufficient to overcome finding that unpaid overtime amount incorrect. Petitioner unaware of respondent's investigation and could not have been uncooperative or lacking in good faith; civil penalty in minimum wage order revoked. Petitioner testified credibly that he paid overtime on daily basis, which resulted in underpayment; however, Board found petitioner had good faith belief that underpayment compliant with law and revoked liquidated damages. As not disputed that required payroll records not furnished, penalty order affirmed.
PR 15-334, PR 15-335 9/14/2016 Tatiana Ballakis and Carpio Organization, Inc. (T/A Caprice Café), and Sarantis Ballakis, respectively Wage and penalty orders revoked with respect to one petitioner. Petitioner (wife) filed petition on her own behalf and on behalf of business seeking review of two orders issued against her, the business and her husband in which she alleged, in part, that she was not an employer. Petitioner (husband) also filed petition on his own behalf seeking review same two orders, in which he alleged that he did not own business and was not claimant's employer. All petitioners contested civil penalties and liquidated damages in orders. Board consolidated cases for hearing, on consent of parties. Petitioner (wife) not individually liable as employer because she came to business sporadically, did not pay or supervise claimant, gave him no instructions and did not hire or fire him. Board determined claimant employee and husband employer after credible testimony from claimant and from prior owner of business that husband had power to hire and fire claimant, supervised and controlled his work schedule and conditions of employment, and determined rate and method of payment. Wage order affirmed as to husband and business; husband did not provide payroll records during investigation or at hearing, gave contradictory and conclusory testimony that was insufficient to meet burden of proof.
PR 15-220 9/14/2016 Americo E. Pullini and Edward A. Pullini and Pullini Subsurface Contractors, Inc. Petition dismissed. Petitioners failed to appear at hearing and their counsel requested adjournment, which was granted on condition that petitioners pay fees incurred by state for court reporter and interpreter; after petitioners failed to remit payment as directed, petition dismissed.
PR 15-147 9/14/2016 Kassim A. Hussein A/K/A Kassim A. Kuszin Minimum wage order revoked; penalty order affirmed. Claimant not employee. Petitioner credibly testified claimant never worked in store; corroborated by regular customer who never saw claimant working in store. Respondent failed to rebut petitioner's evidence; claimant did not testify at hearing and claim form and statements he made to investigators hearsay that did not outweigh petitioner's proof to contrary. Respondent's argument that petitioner could not have operated business alone failed; Board found petitioner's testimony plausible given that he ran store as family business slow from start. Penalty order affirmed although petitioner proved claimant not employee because petitioner admitted he had permitted various individuals to work in store and did not maintain required payroll records for them.
PR 15-137 9/14/2016 Jimmy Illescas A/K/A Jamie Illescas and The New Tropical Deli 2 Inc. (T/A Tropical Restaurant) Orders affirmed and petition dismissed when petitioners did not appear at hearing and did not provide evidence at hearing, thus failing to meet burden of proof.
PR 15-063 9/14/2016 Charles Allen and Charosa Foundation Corporation Order modified to revoke civil penalty. As undisputed that petitioner had and exercised authority to hire employees, supervised employees, controlled conditions of employment, hours, rate and method of pay and work schedule, and reported payroll information to payroll service, respondent's determination that petitioner individually liable as employer reasonable and valid. Also undisputed that claimant paid less than amount necessary to be exempt from Article 6 protection and as petitioner did not show claimant paid wages due, it was reasonable for respondent to conclude claimant not exempt employee. Petitioners' payroll journals and claimant's credible testimony unrebutted. Petitioners waived challenge to underpayment calculations. Respondent not estopped from issuing order to comply as nothing in record demonstrated respondent settled with petitioners on underpayment to claimant. Investigator testified credibly, and documentary evidence confirmed, that at compliance conference only issue with regard to claimant that was settled was her coffee club deductions; her Article 6 claim was not addressed at conference. Respondent's failure to focus at time of conference on Article 6 claim not equivalent of final administrative or judicial determination, which could have precluded re-litigation. To extent petitioners' argument was that it was unfair to hold them liable after petitioner believed matter was concluded, Board noted it would have been more unfair had claimant not collected earned wages. Furthermore, law clear that government agency not estopped from correcting errors, even if result harsh. Civil penalty revoked as invalid and unreasonable after respondent's investigator in his testimony recited statutory factors to be considered, but did not explain their application to case. Board disagreed that employer' simple objection to respondent's findings evidence of bad faith. Penalty imposed revoked as lacking reasonable and valid basis.
PR 15-007 9/14/2016 Alberto Baudo Minimum wage order modified; respondent to recalculate wages owed, interest and liquidated damages; civil penalty in minimum wage order and penalty order revoked. Petitioner failed to meet burden of proof to establish hours worked by claimants or to show they were paid for those hours. Wages ordered recalculated for some claimants based on testimony and claim forms. Board rejected petitioner's argument that wages should be revoked as to claimant who did not testify at hearing; it is petitioner's burden to prove disputed wages paid, not the employee's. Petitioner did not receive collection letter sent to his restaurant after it had been sold or letter sent to apartment where he no longer lived. Petitioner also argued that penalties inappropriate because he operated small business, acted in good faith, paid his employees at minimum wage and afforded them meal breaks and because inability to provide written records excusable given their destruction and respondent's failure to provide opportunity to participate in investigation. Petitioner's testimony sufficiently invoked statutory factors respondent must weigh with regard to size of business, gravity of violation, petitioner' claimed good faith, history of prior violations, and other recordkeeping or non-wage violations. Investigator who testified at hearing had no involvement in investigation and provided no explanation of how penalties determined or why reasonable. Civil penalties in minimum wage and penalty orders revoked for failure to explain basis for respondent's penalty determination.
PR 14-347i, PR-15-401 9/14/2016 Rosa A. Mejia and La Nueva Cocina Restaurant, Inc. (T/A La Cocina Restaurant Inc.) Interim. Respondent's motion for reconsideration granted; October 2015 Resolution of Decision revoked; accrual of interest suspended until final decision issued; matters consolidated. Petitioners filed petition for review, which was served on respondent; thereafter respondent timely moved for order granting permission to issue amended orders, which motion went unopposed. By interim decision, Board approved issuance of amended orders, service on petitioners required within 30 days of service of interim decision, and proof of service required to be filed with Board. Respondent served amended orders late and provided no explanation for failure to comply with Board directive; Board granted petition in October 2015. Petitioners timely appealed amended orders, which petition was assigned new docket number and served on respondent. Respondent filed answer and motion for reconsideration of October 2015 decision and consolidation of petitions; petitioners did not oppose. In interest of deciding matters on merits, respondent' motion granted.
PR 14-297 9/14/2016 Rosario A. Masullo and R & G Masullo Inc. (T/A R and G Masullo) Wage order and minimum wage order affirmed, but modified to revoke civil penalty; penalty order revoked. Petitioners failed to meet burden of proof establishing accurate accounting of work performed by claimant and wages he was paid for that work, or showing inferences supporting respondent' calculation of wages otherwise unreasonable. Petitioners' time records, maintained by petitioner in lieu of time clock, facially inaccurate; while they showed daily hours worked by claimant on weekly basis and pay rate, they are stated in exact even numbers daily for period of years. Rounding method demonstrated that petitioners' records not reliable enough to support accurate estimate of claimant's period of employment, hours worked, precise wages paid. Paystubs offered into evidence created by one who did not appear at hearing and witness (petitioner's son) could not testify to personal knowledge of payroll process. In absence of required records, respondent reasonably relied on claim form to determine underpayment and adjusted it to reflect claimant's base rate, which changed over claim period and when claimant did not work. Calculations supported by claimant's specific, detailed and candid testimony. Penalty order and civil penalties in wage and minimum wage orders revoked after petitioners' argued, and respondent failed to contest, that respondent did not contact petitioners until after orders issued, which revealed that respondent failed to duly consider petitioners' good faith and compliance with recordkeeping obligations.
PR 14-283 9/14/2016 Clifton J. Morello (T/A Iron Horse Beverage LLC) Wage order affirmed; minimum wage order revoked; penalty order affirmed. Petitioner not denied due process when respondent did not make final determination based on additional information received before orders issued as that information merely restated facts; due process satisfied by opportunity to contest orders at hearing. For purposes of minimum wage and overtime, claimant outside salesman, not employee. Claimant was route salesman and delivery driver; solicited sales, delivered products to customers, and customarily and regularly engaged away from petitioner' place of business. Claimant not independent contractor; employment relationship existed between claimant and petitioner, who was liable for unpaid wages under Article 6. Petitioner exercised control over claimant; contacted outlets to authorize claimant to sell company products in assigned territory; petitioner and claimant communicated daily; petitioner set compensation terms and supplied all sales material and gave claimant sales leads. Claimant's sole investment in work was his time and services; had no financial stake in business and profit and loss accrued to petitioner. That invoices showed claimant's name did not confer independent contractor status; hearsay evidence regarding claimant's status unreliable and did not show claimant had own business. Salesmanship alone insufficient to show independent contractor status. Claimant did not need special skills to perform job, was required to use materials provided by petitioner and required petitioner's introduction to sell petitioner's products. That employer provided 1099, rather than W-2, did not alter economic realities or override principle that employee's duties, rather than labels, are determinative. Commissions due claimant; indisputable there was no commission-salesperson written agreement and claimant paid in cash. Civil penalty, liquidated damages and interest assessed in wage order and all affirmed; liquidated damages affirmed as petitioner failed to prove he had good faith basis to believe he did not have to pay agreed-on commissions. Penalty order affirmed as petitioner himself testified that he did not find it necessary to have written agreements setting out terms of employment or rates of pay and commission. Petitioner also provided no evidence that required payroll records maintained or required wage statements provided.
PR 14-170 9/14/2016 Israel I. Berkowitz and NPI Manufacturing, Ltd. (T/A NPI Limited) Minimum wage order modified; penalty order affirmed. Petitioner NPI did not exist before 2006 and could not be responsible for wages prior to its existence; minimum wage order so modified. Modification of minimum wage order also necessary to correct mathematical errors by respondent for 5 of 312 weeks of audit period. Petitioners' excuse for failure to provide required payroll records on hurricane damage, unavailing. Petitioners supplied certain payroll records for 2009 and 2010 and then additional records covering claim period, but these did not show daily and weekly hours worked, wage rate or gross wages paid. At hearing, petitioners introduced some paystubs, but these did not show necessary arrival and departure times. Petitioners failed to provide required records; penalty order affirmed.
PR 16-056 7/13/2016 Royal Kabab and Curry, Inc. Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-037i 7/13/2016 Eddy E. Mendoza and Petros Contracting Group Interim Decision. Decision to dismiss petition for failure to comply with Board Rule 66.3 (d) revoked after petitioner filed amended petition.
PR 16-037 7/13/2016 Petros Contracting Group Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-030i 7/13/2016 Bryan Zaslow and JCBStyle NY LLC Interim Decision. Unopposed motion for reconsideration granted. In May 2016, Board dismissed petition after petitioners failed to comply with Board directive to file amended petition. Petitioners moved for reconsideration, stating they had not received Board's directive. As original petition seemed to have been timely filed, Board granted motion.
PR 16-003 7/13/2016 Qaush Beqiraj A/K/A Quash Beqiraj and Aferdite Beqiraj Petition dismissed for failure to appear at hearing.
PR 15-332 7/13/2016 Anil Amin and PAAM Group Inc. (T/A Nirvana Restaurant) Petition dismissed for failure to appear at hearing.
PR 15-009 7/13/2016 Zhen Hua Chen A/K/A Saichem Z. Chen and Sai Zhen Chen and Cheung Chi Lam and GTBI Corp. (T/A Good Taste Buffet) Petition dismissed for failure to appear at hearing.
PR 14-293 7/13/2016 Li Jing (T/A Jingli US LLC) and Jingli US LLC Wage order revoked; penalty order affirmed. Petitioner testified that after meeting claimant, claimant contacted her seeking employment or learning experience in media field; petitioner advised company could not hire claimant, but she was welcome to observe as learning exercise. Petitioner did not promise claimant wages for training sessions and claimant never performed any work for company. Petitioners established that claimant did not displace any regular employees during training; that training was for claimant's benefit and company derived no immediate advantage from it; and that claimant was not entitled to wages or job with company at conclusion of training. Balance of factors weighed in favor of finding claimant not employee. Respondent failed to rebut petitioners' evidence with credible proof establishing claimant employee. Claimant did not testify at hearing; claim form and earlier letter triggering investigation were hearsay and not substantiated by investigator. Respondent's attempt to impeach petitioner's testimony with letter allegedly written on company letterhead stating claimant employee unavailing as petitioner denied she authored or signed it. Petitioner acknowledged that at least three individuals were employed during 2012, but failed to produce necessary employment records. Petitioner produced 1099 forms, which did not show weekly record of employees' wage rates, gross wages, deductions from gross wages and net wages paid. Board determined petitioner personally responsible for civil penalty after she admitted she had authority to hire employees, schedule their hours and decide their pay rate and after she submitted tax records showing she maintained employment records. Board concluded she was employer as matter of economic reality and responsible for penalty assessed in penalty order.
PR 14-287 7/13/2016 Wilson Quiceno and Sendexpress Inc. (T/A Send Express) Minimum wage order, wage order and penalty order affirmed. Petitioners failed to establish precise hours worked by claimant, that he was paid for those hours or that inferences supporting calculation of wages in minimum wage order unreasonable. Petitioner did not submit daily or weekly time records required to establish hours claimant worked, but asserted in conclusory fashion that claimant worked no more than 44 hours per week. Board has held that general, incomplete and conclusory testimony insufficient to meet employer's burden of proof. Board credited claimant's testimony concerning hours as it was detailed, specific and corroborated by his claim. Petitioners argued respondent should have deducted daily lunch hour from calculation of unpaid wages; but claimant credibly testified he did not receive meal break when in field. Board found respondent's determination reasonable due to petitioners' failure to maintain required record of daily and weekly hours worked by claimant, including lunch hour. Record showed claimant owed wages in amount greater than stated in minimum wage order, as he was paid below minimum wage for several weeks and was owed spread-of-hours payments. Respondent's calculation of wages in minimum wage order under-inclusive; this did not make approximation of wages unreasonable. Absent required payroll records, respondent entitled to rely on claim filed by claimant as best available evidence, even if imprecise. Petitioners failed to overcome respondent's calculation with credible or reliable evidence establishing precise hours claimant worked, and that he was paid for those hours, or with other evidence showing respondent's findings unreasonable. Determination of wages owed in minimum wage order affirmed after petitioner submitted, as proof of payment of wages owed, receipts for salary and commission payments to claimant prepared and signed by petitioners' accountant, but did not submit cancelled checks signed by claimant and claimant testified he did not receive paycheck for some hours he worked. Without proof claimant received wages, petitioners failed to meet burden of proof that precise wages owed were paid. Interest, liquidated damages, penalties not challenged.
PR 14-271 7/13/2016 John J. Kennelly (T/A Advanced Legal Processing & Associates) also (T/A Advanced Legal Processing) Wage order modified to reduce wages owed, with interest, liquidated damages and civil penalty reduced; penalty order unchallenged. Claimants were employees, not independent contractors, as matter of economic reality. Claimants' work part of integrated unit of production; petitioner argued claimants' work not instrumental to business because there were other avenues for turning profit, but this argument failed because work can be integral to business even if just component. Short duration of business relationship also not probative. Claimants did not exercise independent business skills, judgment or initiative, further confirming their economic dependence on petitioner. Claimants' sole duty was to place telephone calls in hope of locating homeowners in need of petitioner' services; to facilitate this, petitioner purchased lists of homeowners, which determined calls claimants made. Even if claimants had exercised skill or judgment in placing calls, their work was reviewed by manager whose duty it was to make final determination of whether claimants could finalize sales appointment. Petitioner alleged claimants had represented they had certain productivity and business knowledge and experience, but fact that workers skilled not itself indicative of independent-contractor status. Claimants' work was in substantial part rote, which was further evidence of economic dependence on petitioner. Nature and extent of relative investments of petitioner and claimants in business and their respective opportunity for profit or loss did not support petitioner's contention that claimants were independent contractors. Petitioner provided office space, computers, telephones, calls lists and interview sheets. Board rejected petitioner's argument that claimants economically independent because they would have been able to generate profit for themselves from commissions. Fact that claimants could control hours during which they worked also not significant in determining status. Claimants were permitted or suffered to work and were employees. Employer must provide statement of earnings paid or due to commissioned sales force, and must set out agreed terms of employment in written agreement, which petitioner did not produce; this failure gave rise to presumption that terms of employment presented by claimants were agreed terms of employment. Petitioner admitted he had not entered into written agreement with claimants setting out terms of employment, but argued he hired claimants on provisional basis; in this regard, law recognizes no probationary period. Board found calculation of claimants' hours reasonable as based on claimants' written claims and supported by their credible, specific, unrebutted testimony.
PR 14-265 7/13/2016 Mohamedali H. Amlani A/K/A Mohamed Ali Minimum wage order and penalty order revoked as to petitioner, whom Board found was not employer. Based on totality of circumstances, respondent's determination that petitioner individually liable as employer unreasonable. Board found little evidence supporting factors necessary for employer status. Petitioner testified without contradiction he was not owner of either business employing claimants, but was employee. He did not pay employees or bills for either company, did not have knowledge of when former owner sold or transferred business to another, and did not possess any business records other than those he obtained from owner. Burden shifted to respondent to establish petitioner had requisite authority over claimants' employment such that he might be deemed individual employer; evidence submitted fell short. Neither claimant, nor investigator who communicated with him during investigation testified. While investigator witnessed claimant working, claimant did not indicate who hired him or supervised his work. Although there was testimony that claimant later filled out questionnaire stating that "Ali" hired him, there was no testimony that this referred to petitioner. Statements in claim form, interview sheet and questionnaire insufficient to rebut petitioner' testimony to contrary.
PR 14-239 7/13/2016 Dejean Gathers (T/A Camp Vision Summer Camp Inc.) Wage order affirmed. Interest, liquidated damages, penalties under wage order and penalty order not challenged. Petitioner alleged claimant was volunteer and owed no wages; Board found claimant was employee. Board credited claimant's testimony that she responded to job ad and was hired by petitioner, that he offered her wage rate and job title, and that she performed work for him. Petitioner did not rebut claimant's testimony, and there was no credible evidence that she volunteered her services. Employers must maintain for no fewer than six years accurate payroll records that include daily and weekly hours worked, wage rate, gross and net wages paid and any allowances claimed as part of minimum wage. Without such records, employer must prove disputed wages were paid. Where employer has failed to keep such records, respondent may draw reasonable inferences and calculate unpaid wages based on best available evidence, including employee statements or other evidence, even if results may be approximate. Petitioner disputed wage calculation based on his unsubstantiated contention that claimant refused to sign proffered employment agreement, and, thus, her hours worked were less than those in respondent' calculation. This argument failed because employer-employee relationship does not turn on existence of writing, and because petitioner's shifting and inconsistent testimony was implausible and in contrast to claimant's credible and specific testimony.
PR 14-048 7/13/2016 Mike Gordon A/K/A Meir Gordon and Kenben Industries Ltd. Minimum wage order revoked; unpaid wages order and penalty order affirmed. Board found minimum wage order unreasonable because respondent's approximation of wages owed and hours worked-in absence of required employer records-lacked rational basis in record. Minimum wage order found petitioners failed to pay overtime to 209 employees in 14 occupational classifications over six years. Without required records, petitioners had burden of proving by preponderance of evidence that disputed wages were paid and/or that order invalid or unreasonable. Where no records available, respondent may make just and reasonable inferences and use other evidence to establish underpayment amount, even if results approximate, but approximation must have at least have some rational basis in record. Board concluded that petitioners negated reasonableness of inferences drawn respondent and established that rational basis in record lacking. There was no evidence that any of 195 non-complaining employees worked more than 40 hours weekly or were not paid overtime, if they did. Respondent's investigators did not interview non-complaining employees despite being provided contact information by petitioners, did not send them surveys and made no effort to conduct surveillance or field interviews. Of 14 occupational classifications in order, respondent had information on only three. Board concluded that respondent's use of averages that were flawed and based on small and unrepresentative sample of workforce to impute overtime liability for every week for every employee during six-year period unreasonable and without rational basis in record. Audit also unreasonable for not using best available evidence. Respondent did not credit records supplied by petitioners because they did not contain all information required by law. While available records were not legally required payroll records, they did contain information that could have been used to conduct reasonable audit. Claimants testified that they offered respondent's investigators additional records, which were declined as too voluminous to copy, and were never reviewed or considered despite being best evidence of what each claimant was paid. Instead, respondent relied on estimate of hours worked from claim forms, which Board could not credit because of consistent and credible testimony that employees did not work such hours every week. That respondent had, but failed to consider, evidence that might have given more accurate estimate of hours worked compelled Board to find audit unreasonable. Unpaid wages order found petitioners failed to pay earned wages and petitioners presented no evidence it paid amounts claimed; Board affirmed respondent's determination of unpaid wages. Unpaid wages order also included civil penalty and petitioners presented no evidence it was unreasonable or invalid; Board affirmed it. Penalty order assessed civil penalties for failing to keep and/or furnish true and accurate payroll records, for failing to provide employees with time off for noon day meal, and for failing to give each employee required wage statement. Petitioners did not maintain required payroll records for six years, and did not provide complete wage statements. Credible evidence also showed there were occasions when employees did not take required meal break. Board found penalty order reasonable and valid.
PR 12-180 7/13/2016 Sheng Wang Zhang and Century Diner Buffet, Inc. Minimum wage order modified to eliminate wages owed two claimants and six unknown employees, to affirm wages owed others, to require liquidated damages and interest be recalculated, and to revoke civil penalty; penalty order affirmed. Board found petitioner was employer as he exercised control over kitchen and wait staff; despite having manager to oversee restaurant and supervise wait staff, petitioner had power to hire and fire staff, supervise and control work schedules, determine rate and method of pay and maintain employment records. Delegation of these duties to manager did not change status as employer; under economic reality test, power to control does not require continuous monitoring of employees. Petitioner's status as shareholder also did not exempt him from liability as employer; petitioner testified that no other shareholder participated in day-to-day operation of business and that he maintained payroll records. Based on totality of circumstances, Board found respondent's determination that petitioner individually liable as employer reasonable. Without required payroll records, petitioners had burden of showing amount of work performed and that disputed wages were paid, or of presenting evidence to negate reasonableness of inferences drawn from employee evidence, even if result were approximation. Respondent relied on one claim form and interview sheets from site visit and offered incomplete evidence of calculations and inferences. Petitioners presented credible and unrebutted evidence as to some employees. Board found respondent' order must be supported by reason and based on more than unsubstantiated interview sheets that failed to dispute testimony at hearing, and that no wages were owed two employees. Regarding four other employees, petitioner failed to meet its burden, did not present evidence at hearing to dispute work hours or pay rates; general and conclusory testimony insufficient without evidence to dispute contents of order. Minimum wage order modified to disallow award to six unknown employees; wages owed unidentified employees only when existence, work hours and wages of employees established by preponderance of evidence, which burden respondent did not meet. Petitioners' evidence regarding liquidated damages insufficient to demonstrate good faith basis to believe underpayments legally compliant. Board found respondent erred in analysis of civil penalty. Law required respondent, in assessing penalty, to take into account size of business, employer's good faith, gravity of violation, history of previous violations and failure to comply with recordkeeping and other requirements. Where employer repeat offender or violations willful or egregious, respondent may assess up to 200% civil penalty. Respondent assessed penalty for egregious violation because petitioners, as experienced employers, knew or should have known to pay minimum wage, and did not pay wages to some employees. Given its finding that reduced wages owed, Board found civil penalty unreasonable. Petitioners contend, and respondent failed to rebut, that petitioners have no prior history of violations. Board revoked entire civil penalty; penalty order affirmed for failure to pay wages weekly after petitioner and witnesses testified to bi-weekly or monthly pay, for failure to maintain payroll records after no evidence showed required records maintained, and for failure to provide wage statements because record clear they were not.
PR 16-033 5/25/2016 Demola Bamgbose and Tayo Bello Bamgbose Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-030 5/25/2016 Bryan Zaslow and JBCStyle NY LLC Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-009 5/25/2016 Dana Poland (T/A Dana' Rusty Anchor) Motion to dismiss untimely petition granted.
PR 15-375 5/25/2016 Gavin Ralph Farella and James Ralph A/K/A Jamie Farella and Brothers Barbecue, Inc. (T/A Brothers Barbecue) Motion to dismiss untimely petition granted.
PR 15-367 5/25/2016 Eric Vadillo A/K/A Erick Vadillo and Paragon Home Designs, Inc. Motion to dismiss untimely petition granted.
PR 15-348 5/25/2016 Angela De La Rosa and El Conde Rest. Corp. (T/A El Conde Restaurant) Motion to dismiss untimely petition granted; Board declined to extend statute of limitations for filing of petition based on possible professional malpractice of third party.
PR 15-273 5/25/2016 Juan F. Mendoza and Martha J. Mendoza and La Fonda De Don Juan, Inc. (T/A Pupuseria) Motion to dismiss untimely petition granted.
PR 15-182 5/25/2016 Anastasia Y. Konovaltseva Motion to dismiss untimely petition granted.
PR 15-171 5/25/2016 Elba Arvelo A/K/A Elba Peralta (T/A Restaurant Los Taxistas) Minimum wage and penalty orders revoked and petition granted. Petitioner was employee, rather than employer as matter of economic reality. Petitioner met burden of proof when she showed, and respondent did not rebut, that she did not hire or fire employees, supervise or control employee work schedules or conditions of employment, determine employees' rates and methods of payment or maintain employment records. Owner of business was often out of country, but continued to set employee work schedules and provided instructions on operation of business. That petitioner may have had some authority to make accommodations to employee schedules when owner away was not sufficient control over schedules and conditions of employment to find her individually liable as employer. Similarly, passing instructions on to employees from owner did not indicate employer status; petitioner may have supervised claimants in owner's absence, but credible evidence showed she lacked authority to act on her own. She earned same pay as claimants or less, had no meaningful authority or operational control, had no ownership interest and did not share in profits. Her status as trusted employee communicating necessary information to co-workers in order for them to perform their respective jobs did not rise to level of supervision and control required to find her employer.
PR 15-033i 5/25/2016 Carol A. Beneke and Kenneth J. Beneke and Will Brook Farms, LLC (T/A Willowbrook Farm) Interim Decision. Unopposed motion to amend and reissue orders granted, respondent to serve amended reissued orders on petitioners within 30 days of service of interim decision, and file proof of service of amended reissued orders with Board within 15 days of service on petitioners.
PR 14-310 5/25/2016 Eleanor Capogrosso and Eleanor Capogrosso Attorney at Law, PLCC, and Eleanor Capogrosso, LLC Petition dismissed for failure to appear at hearing.
PR 14-080 5/25/2016 Dimitrios Potamianos Sr. and Saveta Lakeram (T/A DS Studio LLC) Wage and penalty orders affirmed; petition denied. Petitioners did not meet their burden of proof when they failed to produce legally sufficient payroll records; their evidence, including "earnings statement," was facially inaccurate and/or too general, conclusory, incomplete and unreliable to satisfy burden. Respondent' wage calculation, in absence of acceptable evidence from petitioner, was used to determine wages owed.
PR 14-020 5/25/2016 Shalini Mohabir Edwards and Suresh Construction Corp. Wage and minimum wage orders revoked in their entirety; penalty order affirmed; petition granted in part and denied in part. Respondent did not rebut petitioners' credible testimony and documentary evidence that no wages were owing. Petitioner credibly testified that she hired claimants' that terms of their agreement regarding work hours, daily pay rate, and method of payment were clear and agreed upon; petitioner presented four checks made out to, and endorsed by, claimants, all of which were negotiated during claim period. Respondent presented evidence showing that it relied on letter filed by organization on behalf of claimants. Letter attached claim forms signed by claimants, but forms lacked critical information that only appeared in unsworn referral letter from organization. Respondent's investigators testified that they visited petitioners' business, but were unable to find anyone, that they never spoke to claimants and that their findings were based on unsworn statements in referral letter. Board disagreed with respondent that unsworn referral letter was best available evidence on which to rely for its findings. Board found that even if petitioners' evidence were minimal and lacking in precision, it was not valid and reasonable for respondent to base its findings on other than actual investigation that revealed violation of labor law for unpaid wages.
PR 12-160 5/25/2016 Randy Zielinski and Priority One Networks LLC Wage order affirmed as modified to reduce amount of commission owed after unrebutted testimony and documentary evidence from petitioner showing that commission should have been equivalent of one month of recurring monthly service charge and respondent offered no documentary evidence to rebut. Interest, liquidated damages and civil penalty to be reduced consistent with decision; supplemental wage order affirmed where petitioner's assertion that accruals did not begin until after 60 days of employment was countered by credible testimony from claimant and another witness, and petitioner produced no documentary evidence of accrual policy. Petitioner also did not meet burden of proof regarding respondent's determination that car/cell phone allowance was owed for period claimant was on maternity leave where claimant's credible testimony and notes showed that she had worked (e.g., emailing petitioner on work related matters, assisting client with installation problem) while on maternity leave. Penalty order affirmed; petition otherwise dismissed.
PR 16-023 4/13/2016 Jeffrey Genshaft and The Big Picture, Inc. Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition to include copies of orders to be reviewed.
PR 16-008 4/13/2016 Pedro A. Naveda Motion to dismiss untimely petition granted.
PR 16-001 4/13/2016 Boguslaw Pajor a/k/a Bogdan Pajor and Amtec International of NY Corp. Motion to dismiss untimely petition granted.
PR 15-405 4/13/2016 Viwat Jongvishayasawach a/k/a Viwat Sawach and Note Thai Corp. Motion to dismiss untimely petition granted.
PR 15-382 4/13/2016 Hamilton' Soda Fountain NY LLC (T/A Hamiltons Soda Fountain) Petitioner's cross-motion to strike respondent's motion to dismiss denied as respondent's answer filed according to Board directive; respondent's motion to dismiss petition granted after petition filed late and petitioner failed to show service of orders improper. Petition dismissed.
PR 15-360 4/13/2016 Peter Schmidt and Richard Schmidt a/k/a Richie Schmidt (T/A Crazy Cow Dairy) Petition dismissed for failure to appear at hearing.
PR 15-350 4/13/2016 Christopher James Brewer and CB Painting, Inc. Petition dismissed for failure to appear at hearing.
PR 15-308 4/13/2016 Ahmed Mosid and Best Deli Grocery Corp. Petition dismissed for failure to appear at hearing.
PR 15-297 4/13/2016 Zuleyha Akcay a/k/a Julie Akcay and Banco Building LLC (T/A Arcade Department Store) Motion to dismiss untimely petition granted; law-office failure cannot excuse petitioners' failure to comply with 60-day statute of limitations.
PR 15-283 4/13/2016 Debashis S. Das a/k/a Bob Das and Clean-o-matic, Inc. Petition dismissed for failure to appear at hearing. Petitioners' attorney appeared at hearing; petitioners did not. As petitioners' attorney called no witnesses, was unable to present evidence and petitioners failed to meet burden of proof. By letter filed with Board, but incorrectly addressed to respondent, petitioners requested reinstatement on ground petitioner unable to appear at hearing because he was only person who could open his business on that day; this not good cause for failure to appear.
PR 15-079i 4/13/2016 Syndie Molina a/k/a Dr. Syndie G. E. Molina and Family Fitness Unlimited, LLC Petitioners' motion for reconsideration granted; September 16, 2015 decision revoked; petition filed March 2015 reinstated; Board will schedule new hearing. Petitioner provided sufficient information regarding out-of-county family emergency and subsequent motor vehicle accident resulting in injuries to her head and spine to warrant new hearing.
PR 14-151 4/13/2016 Gabriel Rabinovich, Oleg Yemyashev and G&L Ambulette Co., Inc. Minimum wage order, unpaid wages order, penalty order and supplemental wage order affirmed, and petition denied against recidivist employer. Board determined one claimant not administrative employee because his weekly wage did not meet required minimum, and not exempt from overtime because he did not meet conditions for overtime-exempt employee as dispatcher duties did not meet general-business-operations test and did not require that he act with independent judgment in matters of significance.
PR 14-053 4/13/2016 Fen F. Lim a/k/a Diana F. Lim and Kelantan Corp. (T/A Nyonya Malaysian Cuisine) Minimum wage order revoked as to individual petitioner, and otherwise modified; respondent directed to issue and serve minimum wage order consistent with decision. Unrebutted evidence from individual petitioner showed she did not have authority to hire or fire, supervise or control employee schedules or conditions of employment, determine rates or method of pay or maintain employment records; Board determined she was not employer and minimum wage order revoked as to her. Minimum wage order modified to reduce wages owed an employee because period of employment unclear and sworn testimony in unrelated proceeding conflicted with period he worked, and modified to reduce wages owed another employee who testified he did not work for three months during period covered by order, and modified to revoke with respect to two employees where no evidence was presented to show how they were correctly included in order. Regarding four unidentified employees to whom respondent found wages were owed, order reasonable because existence of employees and wages due them were established by preponderance of evidence, and respondent's conclusion reasonable that restaurant could not operate without server, busser, food preparer and cook during period when no known employees claimed to have worked in those positions. Liquidated damages and civil penalty affirmed, with recalculation of amounts owed required. Tip appropriations order revoked lacking evidence to show tips improperly appropriated. One count of penalty order revoked (relating to tip appropriations); remainder of order affirmed.
PR 14-049 4/13/2016 Fen F. Lim a/k/a Diana F. Lim and Kelantan Corp. (T/A Nyonya Malaysian Cuisine) Minimum wage order revoked as to individual petitioner, and otherwise modified; respondent directed to issue and serve minimum wage order consistent with decision. Unrebutted evidence from individual petitioner showed she did not have authority to hire or fire, supervise or control employee schedules or conditions of employment, determine rates or method of pay or maintain employment records; Board determined she was not employer and minimum wage order revoked as to her. Minimum wage order modified to reduce wages owed an employee because period of employment unclear and sworn testimony in unrelated proceeding conflicted with period he worked, and modified to reduce wages owed another employee who testified he did not work for three months during period covered by order, and modified to revoke with respect to two employees where no evidence was presented to show how they were correctly included in order. Regarding four unidentified employees to whom respondent found wages were owed, order reasonable because existence of employees and wages due them were established by preponderance of evidence, and respondent's conclusion reasonable that restaurant could not operate without server, busser, food preparer and cook during period when no known employees claimed to have worked in those positions. Liquidated damages and civil penalty affirmed, with recalculation of amounts owed required. Tip appropriations order revoked lacking evidence to show tips improperly appropriated. One count of penalty order revoked (relating to tip appropriations); remainder of order affirmed.
PR 12-081 4/13/2016 Iqbal Ahmed Wage order affirmed, but modified to reduce amount of wages owed due to claimant testimony regarding weekly wage and partial payment of wages owed, with interest reduced proportionally and civil penalty revoked. Minimum wage order affirmed, but modified to reduce total due by revoking civil penalty as respondent failed to consider required factors; based on claimant's testimony regarding weekly pay rate, wage amount would have been increased, were Board not precluded from modifying wages upward. One count of penalty order revoked for same reason, and three other counts affirmed when uncontested by petitioner; penalty reduced. Petitioner found, under totality of circumstances, to be employer where credible detailed testimony showed petitioner hired claimant, directed his work, paid him, sampled and approved his menus, supervised daily operations and counted daily proceeds. Petition otherwise denied.
PR 12-062 4/13/2016 Kyra Haring and For Pet's Sake Veterinary Center, P.C. Petition granted in part and denied in part. Minimum wage order affirmed for five employees as petitioners failed to meet burden of proof when they alleged an accounting error resulted in underpayment of four employees, and when they alleged firth employee had falsified time records, but period of alleged falsification was outside period covered by order. Minimum wage order revoked for one employee where respondent offered no evidence to rebut petitioners' evidence showing payment of required overtime. Minimum wage order modified for another employee who, as salaried administrative employee, was exempt from overtime for part of the period covered by the order when salary exceeded required weekly amount. Civil penalty revoked where respondent failed to consider statutory factors; interest to be recalculated. Supplemental wage order revoked as petitioners had written policy requiring vacation leave be used in year it accrued and credible, and uncontradicted evidence showed employee took or was paid for accrued vacation. Penalty order revoked as unreasonable when record showed petitioners' failure to produce required records was oversight related to computer system and promptly rectified.
PR 11-393 4/13/2016 Llesh J. Beqiraj and Mento Beqiraj (T/A University Pizza & Restaurant) also (T/A University Pizza, Ltd.) Petitioners' application for reconsideration denied. Petitioners sought review of two orders and, after hearings, Board issued decision affirming orders in part, revoking them in part, and otherwise denying petition. Petitioners wrote letter seeking "review" of decision, alleging that Board had failed to properly weigh evidence at hearing; Board treated letter as application for reconsideration. Petitioners' application sought to re-litigate evidence already submitted at hearing, and did not set out new facts or circumstances arising subsequent to decision or consequences resulting from compliance with decision that would warrant reconsideration. Application for reconsideration denied.
PR 15-395 3/2/2016 Abdelilah Alami Binani and Alandalous Properties Corp. (T/A Parika Islamic and Arabic School) Petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition, and because Board lacks jurisdiction to review judgment entered against petitioners by respondent.
PR 15-385 3/2/2016 Karen Globokar Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-384 3/2/2016 Edward Globokar Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-365 3/2/2016 Lorraine Caruso A/K/A Lori Caruso and Precision Assembly Technologies, Inc. Motion to dismiss untimely petition granted. Petitioners' argument that orders to comply improperly served unavailing. Service proper as Labor Law § 33 allows Commissioner to serve orders by mail to parties at last known place of business and affidavits of service show copy of orders was mailed to each party at last known place of business.
PR 15-357 3/2/2016 Parviz Shakiban Motion to dismiss untimely petition granted.
PR 15-289 3/2/2016 Tara Joy Oolie and Just Calm Down, LLC and Just Calm Down Ii, LLC (T/A Just Calm Down Spa) Motion to dismiss untimely petition granted.
PR 15-274 3/2/2016 Yevgeny Panchenko A/K/A Gene Panchenko Construction Nyc, Inc. (T/A Rhino Construction) Motion to dismiss untimely petition granted.
PR 15-227 3/2/2016 Ruben Munet, Zenaida Munet, Ruben Munet, Jr. and St. James Park Daycare Center Inc. Petitioners' first petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition; thereafter, petitioners wrote Board to assert that they could not afford to pay amounts in order. Board treated letter as motion for reconsideration, and then denied it because petitioners again failed to comply with Board Rule 66.3 (d) and amend petition; October 28, 2015 decision dismissing proceeding confirmed.
PR 15-209 3/2/2016 Frank Cammarata Petition dismissed for failure to appear at hearing.
PR 15-156 3/2/2016 Brandon C. Delmarle And BCD Home Improvements, LLC Petition dismissed for failure to appear at hearing.
PR 15-134 3/2/2016 Rob Josclyn and Wasoff Plumbing and Utility Co., Inc. Petition dismissed after petitioners, who also did not participate in prehearing conference, failed to appear at hearing. Petitioners requested reinstatement on ground that due to miscommunication, they had wrong date for hearing; request denied because they did not establish good cause for failing to appear.
PR 15-051 3/2/2016 Luisa Martinez Orders revoked after respondent moved at hearing to withdraw orders against petitioner, and motion granted.
PR 14-190 3/2/2016 Marek Jandroska and 123 New York Corporation Wages, interest and liquidated damages in wage order affirmed where general contractor could not avoid his burden to provide required payroll records because cancelled checks were in possession of subcontractor, and he could have obtained copies from subcontractor, or by subpoena. An employer is not absolved of responsibility to maintain and produce records, even where another has possession of payroll records. Civil penalty in wage order and penalty order revoked when respondent failed to adequately explain basis for administrative determination of penalty amounts sought.
PR 14-099 3/2/2016 Melissa L. Dewey A/K/A Melissa L. Fuller, Timothy M. Dewey, And Tmd Contracting LLC Wages, interest and liquidated damages in wage order affirmed where, based on totality of circumstances, claimant, as matter of economic reality, was employee, not subcontractor, and dependent on petitioners to render service. Petitioners hired claimant; set her wages, hours and location of work; assigned work she was to perform; provided computer and financial materials to do so; and monitored her work, which itself was sufficiently integral to petitioners' operations as to be evidence of claimant's status as employee. Claimant employed part-time elsewhere, did not operate own business, did not advertise with business cards, and did not have own workers-compensation or disability policy. Petitioners produced no proof of claimant's status as independent contractor such as estimate for job or contract between parties. Claimant's dependence on petitioners to provide opportunities for work does not reflect skill or independent initiative of bona fide independent contractor. Civil penalty in wage order and penalty order revoked after investigator testified that penalty imposed was standard penalty, which contradicts requirement to give due consideration to factors enumerated in statute, and after respondent provided no reasonable explanation of how factors considered.
PR 13-126 3/2/2016 Dimitrios Gatanas Minimum wage order, unpaid wages order and penalty order revoked with respect to petitioner, who proved he was not complainants' employer because he did not exercise sufficient operational control over business. Respondent' evidence at hearing that petitioner may have directed employees to undertake take-out customer-service tasks or was sometimes present at pizzeria, and that employees believed he was owner or boss, does not rise to level of operational control necessary to hold petitioner individually liable as employer.
PR 13-016 3/2/2016 Ronald M. Delevan And Susquehanna Locomotive & Railcar Repair Services Inc Petition dismissed for failure to appear at hearing.
PR 12-124 3/2/2016 Abdul Abdullah And Rayen Hussein (T/A Stock Aide Deli) Also (T/A Stock Aide Market & Deli) Minimum wage order modified to remove one employee as no evidence presented at hearing to prove he had worked more than 40 hours per week, and respondent's investigation lacked reasonable basis; principal amount due corrected, with liquidated damages and interest to be recalculated; civil penalty in minimum wage order revoked where respondent presented no evidence at hearing of having considered factors required by statute; order under Articles 5 and 19 affirmed. Petitioners not entitled to meal or lodging credit as they failed to keep required records; mere testimony about free meals or that employee living with them could eat anything he or she wanted not enough to overcome requirements of law and regulations.
PR 11-301 3/2/2016 Patrick Horan (T/A Horan Communications LLC) Minimum wage order directing payment of minimum wage payments owed 29 named employees revoked as unreasonable where petitioner met burden of proof after presenting credible evidence that no overtime was worked. Board accepted that petitioner's payroll records inaccurately showed overtime hours worked because he used "gross up" payment method combined with promise to pay employees net daily wage rate; he reported more hours to payroll company than employees actually worked in order to engineer correct net wage amounts. Respondent failed to rebut petitioner's evidence. Respondent investigator who testified had no personal knowledge of investigation, did not speak to petitioner's employees, and did not calculate overtime liability. Other evidence offered by respondent at hearing too general and equivocal to support determination that employees whose statements were not in evidence were owed overtime wages for period in question. Penalty order modified to revoke penalty for failure to provide required meal break as record shows that employees received at least 30-minute meal period each day.
PR 11-300 3/2/2016 Patrick Horan (T/A Horan Communications LLC) Minimum wage order directing payment of minimum wage payments owed 50 named employees revoked as unreasonable where petitioner met burden of proof after presenting credible evidence that no overtime was worked, and where respondent failed to rebut petitioner's evidence. Board accepted that petitioner's payroll records inaccurately showed overtime hours worked because he used "gross up" payment method combined with promise to pay employees net daily wage rate; he reported more hours to payroll company than employees actually worked in order to engineer correct net wage amounts. Respondent's investigator testified that employee statements were used to calculate unpaid overtime, but no statement in evidence at hearing showed overtime owed and no investigator with personal knowledge of interviews with named employees testified. Penalty order modified to revoke penalty for failure to provide required meal break as record showed that employees received at least 30-minute meal period each day.
PR 15-378 1/20/2016 Jim Hans Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-361 1/20/2016 Hector Rojas Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition, and for want of jurisdiction, as Board has no jurisdiction over judgment entered against petitioner in favor of respondent.
PR 15-321 1/20/2016 Moal Grocery & Deli, Inc. Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-320 1/20/2016 Rodolfo Valentin Quiroga A/K/A Rodolfo Valentin and The New York Hair Salon Inc. Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-318 1/20/2016 Mark Bonner Petition dismissed where petitioner failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-315 1/20/2016 Vladislav R. Yusufov and Signature Inc. (T/A Shazka Restaurant) Motion to dismiss untimely petition granted. Petitioners did not dispute that petition untimely, but argued-incorrectly-that petitioners' prior counsel's alleged failure to timely file petition excused late filing.
PR 15-299 1/20/2016 Bernard Watson and Rightway Plumbing and Heating Inc. Motion to dismiss untimely petition granted.
PR 15-298 1/20/2016 Mohammed A. Aldhufri and Khald Grocery Deli Inc. Petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition.
PR 15-290 1/20/2016 Mohammed Malik and 133 Plus 24 Sanford Ave. Realty Corp. Motion to dismiss untimely petition granted. Petitioners argued petition was "timely mailed under the circumstances," those circumstances being petitioners' counsel's two-day observance of religious holy days; argument was unavailing because only legal holidays, which did not include holy days observed here, permit extension of time to file petition. Petitioners also sought to apply Section 25-a of New York General Construction Law, which allows five-day extension for mailing; this argument also was wrong; section 101 (1) of New York Labor Law and Board Rules of Procedure and Practice 65.3 (a) and 65.5 (d) control.
PR 15-215 1/20/2016 Moshe Jii Jerusalem Petition dismissed where petitioners failed to comply with Board Rule 66.3 (d) and amend petition.
PR 13-180 1/20/2016 Sotirios Econopouly, Sr. and 84Th St. Food Corp. Respondent's motion for leave to establish good cause for its failure to timely file its answer denied, petition granted and order to comply revoked in its entirety. Respondent missed several deadlines established by Board Rules or in Board's discretion for filing requisite documents and pleadings. In this case, respondent's proffered explanation of what petitioners aptly styled "law office failure" was insufficient. Further, respondent's assumption of Board approval when Board was silent is counter to express provisions of law, as is respondent's notion that petitioner's lack of objection, or consent, to extension is equivalent of Board approval.
PR 13-153 1/20/2016 David Popermhem and G.T.S. Thai Inc. (T/A Planet Thailand) (CORRECTED and REISSUED) Minimum wage order affirmed in part, modified in part and revoked in part. Affirmed as to three claimants; modified to reduce wages due two claimants where records in evidence and investigator testimony did not adequately explain claim, and where it was necessary to modify claim period to not overlap with claim for unpaid wages; civil penalty revoked because employer records were maintained and produced, and because respondent's standard imposition of 100% civil penalty contradicts statutory requirement to give consideration to required factors and respondent provided no reasonable explanation of how they had been considered; liquidated damages affirmed and interest to be recalculated. Unpaid wages order modified to change claim periods for three claimants where, although petitioners did not meet burden of proof to show unpaid wages order invalid or unreasonable, record was clear that claims for unpaid wages were limited to specific periods; civil penalty revoked (for reason set out above) and interest affirmed. Penalty order modified to reduce penalty due; counts 1, 2 and 3 affirmed; count 4 (failure to provide 30-minute break) revoked because petitioners provided employees required break of at least 30 minutes per shift. Decision issued in this matter on January 20, 2016 revoked and replaced by corrected and reissued decision.
PR 15-278 12/9/2015 Linda J. Cunegin and Tri-County Home Nursing Services, Inc. Motion to dismiss untimely petition granted.
PR 15-266 12/9/2015 Frickly Mejia and Mohammed El Baroudy and F & M Used Tires Inc Motion to dismiss untimely petition granted.
PR 15-261 12/9/2015 Jonathan A. Saslaw and Custclo Inc. Motion to dismiss untimely petition granted.
PR 15-259 12/9/2015 Mwez Blas and Izak Blas and Smarty of New York Inc. Motion to dismiss untimely petition granted.
PR 15-253 12/9/2015 Markku V. Wekara A/K/A Mark Wekara and Christopher Haigney and Optigolf Syracuse Llc and Optigolf America, Llc Motion to dismiss untimely petition granted.
PR 15-221 12/9/2015 Elisas Food & Plus No 1, Inc. (T/A Elisas Food & Plus) Motion to dismiss untimely petition granted.
PR 15-207 12/9/2015 Earl Edwards and Robertina R. Edwards and Stepping Up Day Care Center, Inc. Motion to dismiss untimely petition granted.
PR 15-188 12/9/2015 Manuel A. Caisaguano A/K/A Emanuel Caisaguano and Maca Restaurant, Corp. (T/A Firenze Ristorante) Petition dismissed where petitioners failed to comply with Board Rule 65.14 and amend petition.
PR 15-142 12/9/2015 Abraham B. Greenfield and Ahava Medical & Rehabilitation Center, Llc Motion to dismiss untimely petition granted. Petitioners did not dispute that petition untimely, but argued that individual petitioner improperly served; argument unavailing as petitioner served at very address confirmed in petition as his business address.
PR 15-129 12/9/2015 Majed Y Al Salaj and Columbia Street Limousine Services, Inc. Motion to dismiss untimely petition granted.
PR 15-045 12/9/2015 Lori A. Sottilotta and Royale Class, Inc. and Royale Class Consulting, Inc. Petition dismissed when petitioners failed to appear, failed to communicate correct contact information to Board, and made no application for reinstatement.
PR 12-152 12/9/2015 Saturnina Serrano (T/A Teletronic Radio & T.V. Co.) Petitioner found to be claimant's employer, as matter of economic reality. Wage order modified to reduce wages due, civil penalty and interest; liquidated damages modified to reflect that petitioner had good faith belief claimant not her employee for electronics store and rental property, but same good faith belief could not be reasonably extended to claimant's domestic work in petitioner's home. Penalty order affirmed.
PR 12-040 12/9/2015 Rafael Almonte and D'Almonte Enterprises Parking Garage Inc. Wage order affirmed against individual petitioner, found to be employer based on claimant's consistent and specific testimony and petitioner's own inconsistent, general and unreliable testimony. Wage order modified to reduce wages owed by corporation to include only period after it was registered with State; interest, liquidated damages and civil penalty reduced proportionally. Respondent directed to issue amended wage order consistent with decision.
PR 12-028 12/9/2015 Hung Cheng A/K/A Holly Cheng and New Asian Supermarket, Inc. Wage order affirmed after petitioner failed to meet burden of proof in showing that as shareholder, she was not individually and personally liable as employer. Petitioner exercised control over day-to-day affairs and financial operations of enterprise and, thus, controlled conditions of employment. In spite of testimony to the contrary, no evidence produced at hearing to support claim that petitioner merely minority shareholder and contractually precluded from controlling conditions of employment.
PR 11-394 12/9/2015 Joseph Baglio and The Club At Windham, Ltd. Wage order affirmed with regard to wages owed three claimants, and revoked with regard to remaining employees listed in order, with interest and civil penalties reduced proportionally. Petitioners met burden of proof showing respondent' findings unreasonable or invalid after respondent based those findings on unsubstantiated and partial responses to questionnaires mailed to employees, and in calculating wages owed, did not verify or authenticate information, either by means of a telephonic or other form of interview or at hearing.
PR 10-188 12/9/2015 Krista Schultz and RkJ Interests Llc Decision, dated November 5, 2014, revoked because service of decision on petitioners was defective. Decision reissued; wage order affirmed except that accrual of interest suspended from November 5, 2014 to December 9, 2015.
PR 15-263 10/28/2015 Eitan Sror Petition granted after petitioner alleged he was not employer of claimant during period covered by order and respondent agreed order incorrectly included petitioner.
PR 15-227 10/28/2015 Ruben Munet, Zenaida Munet, Ruben Munet, Jr., and Saint James Park Daycare Center Inc. Petition dismissed for failure to file amended petition.
PR 15-213 10/28/2015 Michael Ricotta, Jr. A/K/A Mike Ricotta and Sam Bernstein (T/A Emmons Avenue Condominium) also (T/A Emmons Avenue Condominium/1 Rewe Street) Motion to dismiss untimely petition granted.
PR 15-194 10/28/2015 Jabbar E. McDonald (T/A Best Kept Service) Petition dismissed for failure to file amended petition.
PR 15-180i 10/28/2015 Gabriela Bancescu Interim decision: Respondent's motion to dismiss petition as untimely denied because service of orders on petitioner defective where orders were mailed to residence.
PR 15-162 10/28/2015 Kathleen Olesko and Karen Card and One More Round, Inc. Motion to dismiss untimely petition granted.
PR 15-160 10/28/2015 Jameson Roofing Company. Motion to dismiss untimely petition granted.
PR 15-152 10/28/2015 Robert J. Greenman and Bob's Collision & Customs Motion to dismiss untimely petition granted.
PR 15-150 10/28/2015 Menashe Newhouse Motion to dismiss untimely petition granted.
PR 15-005 10/28/2015 Vita A. Defeo and Viajo's, Inc. Proceeding dismissed. After testimony by, and on behalf of, petitioners that claimants were owed no wages for relevant period, respondent permitted to withdraw minimum wage order and petitioners withdrew petition contesting penalty order.
PR 14-347 10/28/2015 Rosa A. Mejia and La Nueva Cocina Restaurant, Inc. (T/A La Cocina Restaurant) Petition granted when, without cause, respondent failed to provide Board with timely proof of service of amended orders.
PR 14-284 10/28/2015 Douglas Hannant Petition dismissed for failure to file amended petition.
PR 14-157 10/28/2015 Angelo Georges and GR January Corp. (T/A Michael's Restaurant) Wage order affirmed with respect to wages due, liquidated damages and interest. One petitioner was employer as matter of economic reality where claimant's unrebutted and credible testimony showed that petitioner hired him, supervised his work and paid him. Petitioners failed to maintain required wage and hour records and to meet burden of proof to show respondent's calculation of unpaid wages unreasonable; calculations were based on claimant's statement and confirmed at hearing by his credible testimony. Petitioners incorrectly alleged Article 19 statute of limitations ran from date orders issued; but Labor Law provides that statute tolled from date employee files complaint. As wages sought within statutory six- year period, orders not barred. Orders also not barred by laches; while no dispute that respondent delaying in notifying petitioners of claim, delay did not prejudice petitioners. Civil penalty in wage order revoked because respondent presented no evidence of considerations used to set it.
PR 14-116 10/28/2015 Franco Lamotta A/K/A Franko Lamotta and Cafe Amore of N.Y. Restaurant, Inc. (T/A Cafe Amore's Pizzeria Ristorant Motion to dismiss untimely petition granted.
PR 14-050 10/28/2015 Evgeny A. Freidman A/K/A Gene Freidman A/K/A Evegeny A. Freidman and Millennium Taximeter Corp. (T/A Millennium Taxi Meter Shop) Minimum wage order affirmed where claimants were employees, not independent contractors, because their sole investment was their time and labor; their sole source of income was from work at petitioners' site; they were economically dependent on petitioners; they had no opportunity for profit and loss other than their labor; and work they performed was essential to petitioners' business. Petitioner who was sole owner, president and secretary of petitioner corporation was employer, based on totality of circumstances, where he personally made all significant decisions concerning terms and conditions of employment, including giving raises, requiring uniforms and requiring certifications. Petitioners did not meet burden to show underpayment calculations invalid or unreasonable; petitioners' version of claimants' hours and circumstances in which they worked was not creditable, while claimants' testimony was, and constituted best available evidence. Respondent was not collaterally estopped from issuing orders because doctrine applies to already litigated issue, and not to previously investigated issue. Respondent also not equitably estopped from issuing orders because respondent may change its position after petitioners detrimentally relied on an investigation report as a government agency may correct errors, even with harsh results, particularly after petitioners provided false information during prior investigation.
PR 11-085 10/28/2015 Joyce A. Santamaria and Zenker Corp. (T/A Empire State Karate) Wage order affirmed, as modified to reduce wages owed; respondent to recalculate civil penalty and interest commensurately. Petitioners did not maintain legally required payroll records; nevertheless, petitioner's credible and consistent testimony and her reconstruction of claimant' hours, as well as claimant's own lack of credibility, were best available evidence, revealing that claimant did not work hours alleged. Petitioners met burden of proof even in absence of payroll records.
PR 14-014 9/16/2015 Mark Wieboldt a/k/a Mark Wieboudt and Laundry Palace Col Corp. and Laundry Palace C.I., Inc. and Laundry Palace CLT Corp. and Laundry Palace Dale LLC Wage order affirmed where Board determined that petitioners did not meet burden of proof in putting into evidence, among other things, three receipt books created by laundromat manager showing receipts alleged to have been signed by some, but not all, laundromat employees, including claimant, and showing weekly pay received.
PR 13-033 9/16/2015 Kamy Netram a/k/a Kamylawatee Netram and All in One Construction LLC Wage order, supplemental wage order and penalty order affirmed. Considering totality of circumstances, petitioners did not meet burden of proof in showing to be unreasonable or invalid respondent's determination that petitioner hired claimants to work as laborers, set wages and hours of work, directed and supervised them, promised to pay cash daily and ended work after refusing to pay wages they had earned, or to reimburse expenditures for material and transportation costs. Petitioners did not offer evidence sufficient to refute specific, credible evidence from respondent regarding claimants' work site, duties, hours, pay rates and hiring and supervision by petitioner.
PR 12-201 9/16/2015 Ioannis Kapsalas a/k/a John Kapsalas and First Choice Deli & Grocery, Inc. Wage order affirmed. Claimant's testimony was creditable while petitioners' documentary and testimonial evidence was contradictory, inconsistent and could not be credited. Petitioners failed to meet burden to show respondent's determination that claimant not paid all wages owed unreasonable.
PR 12-149 9/16/2015 Hugo Fernandez and New Tacolandia, Inc. Minimum wage order revoked where claimant did not appear at hearing and Board determined that claimant's having made reference to petitioners on claim form, without more, cannot form basis for finding that petitioners are liable for claimed unpaid minimum wages under Labor Law. Petitioners met their burden of proof; penalty order, modified to remove penalty for failure to furnish wage statements and penalty for failure to provide adequate meal period, affirmed.
PR 12-089 9/16/2015 Demaree J. Barnes and Ruth Walden and Saba Jambu and Neighborhood Youth & Family Services Wage order revoked as to two petitioners where Board determined they met burden of proof in establishing they were not employers. No evidence one petitioner personally had power to hire or fire employees, supervised employee schedules or conditions of employment, determined pay rates or maintained employment records; her limited role during relevant period did not rise, under totality of circumstances, to operational control necessary to hold her individually liable as employer. Evidence provided by respondent insufficient to contradict her testimony; fact that her name appeared on certain tax filings or that she may have met with employees to explain agency closure not enough to establish she was employer. Another petitioner also not employer as his role was limited to that of volunteer board member of not-for-profit corporation; as such, he had no authority to act on own with respect to employment matters.
PR 11-276 9/16/2015 Sodhi Longia and Guaran Ditta Corp. (T/A Happy Days Diner) Minimum wage order affirmed where petitioner records were not credible, complete or reliable, and, thus, were not sufficient to meet burden of proof that order was unreasonable or invalid; order affirmed and remanded with regard to one employee to recalculate wages owed using correct rate of pay and deleting payments for spread of hours.
PR 11-001 9/16/2015 Enigma Management Corp. Wage order affirmed. Board found that petitioner failed to show it was not employer, even if it were accurate that petitioner was unaware of claimant's work, because it had benefited from that work and had power to prevent it. Penalty order revoked as respondent incorrectly sought petitioner's employment records from corporate entity with which petitioner was not affiliated.
PR 14-319 7/22/2015 Moshe Zupnick Respondent permitted to withdraw orders after petitioner's documentary and testimonial evidence that he was not owner of business and did not employ claimants during relevant period. Lacking order to review, Board dismissed proceeding.
PR 14-192 7/22/2015 Steve Donigan and the Steve Donigan Agency, Inc. Motion to dismiss petition granted. Board lacks jurisdiction to review decision by Commissioner of Labor to not pursue claim; such decision is not rule, regulation or order, per Labor Law § 101. "assumption of accrual" on pro rata basis was unavailing. Supplemental wage order's civil penalties and liquidated damages, as well as penalty order, revoked absent respondent's demonstration of bad faith on part of petitioner and/or evidence of false or inaccurate records.
PR 14-128 7/22/2015 William Farinon Motion to dismiss petition granted. Board lacks jurisdiction to review decision by Commissioner of Labor to not pursue claim; such decision is not rule, regulation or order, per Labor Law § 101. "assumption of accrual" on pro rata basis was unavailing. Supplemental wage order's civil penalties and liquidated damages, as well as penalty order, revoked absent respondent's demonstration of bad faith on part of petitioner and/or evidence of false or inaccurate records.
PR 14-104 7/22/2015 Stephen S. Mills and the New York Hospital Medical Center of Queens Supplemental wage order modified to clarify name of corporate petitioner and to revoke civil penalty and liquidated damages and, as modified, affirmed; penalty order revoked. Board found that supplemental wages in form of frontloaded vacation accruals were owed upon separation because employee manual did not specifically set out that accrued vacation leave would be forfeited upon termination. Thus, employee leaving petitioner's employ was entitled to all frontloaded vacation accruals credited in January for use during coming year. Petitioner's argument that there was "assumption of accrual" on pro rata basis was unavailing. Supplemental wage order's civil penalties and liquidated damages, as well as penalty order, revoked absent respondent's demonstration of bad faith on part of petitioner and/or evidence of false or inaccurate records.
PR 13-058 7/22/2015 Marie Carolyn E. Anyanechi and Young Achievers Day Care Center, Inc. Wage order affirmed; Respondent's motion to dismiss, made at conclusion of petitioners' case, granted. Respondent moved to dismiss petition on grounds that petitioners failed to meet burden of proof that orders are invalid or unreasonable; Board granted motion because petitioners' arguments that orders were unreasonable or invalid were unsubstantiated and petitioners failed to produce credible evidence in their direct case as their testimony and documentary evidence were vague, irrelevant, incomplete and/or not creditable.
PR 11-393 7/22/2015 LLesh J. Beqiraj and Mentor Beqiraj (T/A University Pizza & Restaurant, also T/A University Pizza, Ltd.) Wage order modified as against Llesh J. Beqiraj to reduce wages owing, with interest, liquidated damages and civil penalty reduced proportionately, and, as modified, affirmed; wage order revoked by respondent as against Mentor Beqiraj because he was not owner during claim period. Petitioner Llesh Beqiraj offered unsupported, vague, broad, inconsistent and incomplete evidence and, thus, failed to meet burden of proof to establish an accurate estimate of amount of work claimant performed and precise wages he was paid. He also failed to show that inferences supporting calculation of wages made by Commissioner were unreasonable.
PR 11-257 7/22/2015 Boris Grayver and Bora-Bora Bukovina, Inc. (T/A Bagels For You) Wage order modified, on respondent's application at hearing, to reduce wages owed by eliminating Sunday hours; amount of wages due and owing $18,984.00, with interest, liquidated damages, and civil penalty reduced proportionately; wage order, as modified, affirmed. Petitioner found to be employer where claimant's testimony credible while petitioner's testimony concerning his status and authority in business was unbelievable, vague, evasive and inconsistent with admissions made during investigation and at hearing, and witness testimony was inconsistent with petitioner's admissions. For the same reasons, petitioner's assertion that claimant was not owed wages was not proven.
PR 11-002 7/22/2015 Michael Sanseverino and Rocco's Pizza & Pasta of Ontario, Inc. (T/A Rocco's Pizza and Pasta) Wage order modified to remove wages earned outside of period covered by wage order, and, as modified, affirmed. Board determined that petitioners' attempt to avoid paying overtime by moving employees between their two pizza restaurants was impermissible. Petitioner corporations were joint employers operating common business enterprise and failed to properly pay overtime to employees working more than 40 hours per week. Employees at both sites were doing same job for same type of business, were supervised by same person and wore same uniforms.
PR 10-329 7/22/2015 Haull 4 PFS, Inc. Wage order affirmed where Board found claimant was employee of petitioner trucking company when he was hired as truck driver by petitioner to make deliveries for petitioner in truck leased by petitioner on routes determined by petitioner at rate established by petitioner. That petitioner might have been transitioning from one corporate entity to another did not alter Board's finding.
PR 14-120 6/10/2015 James T. Metz III, Alicia Harding Metz, Lauren H. Simons, and GRJH, Inc. (T/A Cobble Pond Farms) Petitioners did not challenge wage or penalty order in petition; issues related to those orders waived and those orders affirmed. Supplemental wage order for two weeks of vacation pay revoked as invalid and unreasonable because petitioners met their burden of proof by showing claimant had received, and acknowledged receipt of, employee manual that set out that earned vacation time would be forfeited upon termination.
PR 14-088 6/10/2015 Julianne W. Beckerman Petition granted in part and denied in part. Minimum wage order revoked after Board found that although petitioner failed to provide adequate payroll records, she met her burden of proof to show minimum wage order invalid or unreasonable through credible and consistent witness testimony at hearing. Claimant's account of hours and duties was contradicted by her own testimony at hearing and not credible; no other evidence corroborated her claims. Supplemental wage order modified to limit vacation pay to one week and respondent directed to recalculate interest, civil penalty and liquidated damages after Board found that when employer has paid vacation leave policy, such benefit must be paid in accordance with established terms, and absent specific policy providing for forfeiture of accrued vacation pay, it must be paid notwithstanding termination of employment.
PR 14-004 6/10/2015 Muhammad W. Qureshi and Sunshine Grill & Restaurant, Inc. Petition granted in part and denied in part. At hearing, petitioners admitted they did not maintain required wage and hour records; nevertheless, Board found respondent' approximation of hours worked and wages owed not supported by record. One claimant found to be owed no wages as regular rate of pay more than required minimum wage for time she worked. Second claimant acknowledged he had received $2,000.00 payment from petitioners to settle matter; Board offset settlement amount against wages owed of $432.80 and found none owed. Liquidated damages affirmed as third-party settlement did not bar respondent from collecting liquidated damages.
PR 13-163 6/10/2015 Gregorio Estevez (T/A Gregory's Home Improvement) Wage order affirmed where day laborer was an employee and not an independent contractor. Claimant was hired and supervised by petitioner, who decided how work was to be performed and obtained licenses and permits; work was same work ordinarily performed by petitioners; there was no written contractor's agreement. Claimant had no opportunity for profit and loss, the job did not require special skills or initiative and there was no evidence that claimant had his own business.
PR 13-064 6/10/2015 Yolonda D. Braham a/k/a Yolonda D. White Petition granted and supplemental wage order for unpaid vacation time revoked with respect to petitioner. Petition did not dispute that claimants were owed vacation pay or amounts claimed in supplemental wage order, but stated that petitioner was never claimants' employer. Applying "economic reality test," Board found that petitioner met burden of proof in showing that it was not valid and reasonable to hold her personally liable as a statutory employer in that there was no reliable or decisive evidence showing she a) had power to hire and fire employees, b) controlled claimant work and vacation schedules or had authority to act on her own in this regard, c) had anything to do with illegal failure to pay earned vacations or with financial problems that caused failure, d) was involved in setting wage rates, methods of payment, vacation policy or other parameters for employment or had authority to do so, or e) maintained employment and personnel records and employee time cards.
PR 11-260 6/10/2015 Richard M. Aufrichtig and Aufrichtig Brothers Inc. (T/A Big Apple Produce Market) Petition granted in part and denied in part. At hearing, wage order amended to reflect wages owed only for six-year period from date respondent notified petitioners of claims against them and respondent revoked penalty order. Board found that laches did not bar issuance of orders because employers are required by law to maintain for six years payroll records indicating time worked by, and wages paid to, employees. Although prosecution of matter delayed because respondent did not notify petitioners they were under investigation until March 2011 for claims filed in November and December 2006, Board concluded that there is no exception that allows employer to dispose of records in fewer than six years because it has gone out of business or for any other reason, and concluded that where wage order, as amended, seeks to recover unpaid wages only for six years from date petitioners notified of investigation, there was no prejudice to petitioners when weighed against strong public policy of enforcing wage and hour laws.
PR 11-104 6/10/2015 Robert H. Weiss Petition granted in part and denied in part. Based on record, Board modified wage and vacation pay orders to reduce amounts due and give petitioner credit for amount paid in a small claims court action settlement. Board found that there was no deferred compensation due since any promised payment was contingent on profitability.
PR 15-065 4/29/2015 CJF Construction, Inc. Untimely petition dismissed per Board Rule 66.3 (d).
PR 15-055 4/29/2015 Karen Zapata Untimely petition dismissed per Board Rule 66.3 (d).
PR 15-013 4/29/2015 Silvia Brodrick (T/A Jordanville Farm) Untimely petition dismissed per Board Rule 66.3 (d).
PR 14-347i 4/29/2015 Rosa A. Mejia and La Nueva Cocina Restaurant, Inc.) Interim decision: Amendment and reissuance of orders requested by respondent approved; any interest suspended that has accrued between February 23, 2015, and date amended orders served.
PR 14-343 4/29/2015 Alan Walkow Withdrawal of orders with respect to petitioner approved; proceeding dismissed.
PR 14-329i 4/29/2015 Patricia Towle and Tatra Farm LLC and Tatra Farm Operating Corp. Interim Decision: Respondent's motion to dismiss petition as untimely denied where service of respondent's orders defective because each individual or entity named therein was not served with a copy of orders.
PR 14-307 4/29/2015 Marilyn Shehebar Motion to dismiss untimely petition granted.
PR 14-280 4/29/2015 Helmer Toro and The First Toro Family Limited Partnership (T/A H&H Bagels) Petition dismissed pursuant to Board Rule 65.24 when petitioners failed to appear and made no application for reinstatement.
PR 14-253i 4/29/2015 Patrick Holiday and Debra Holiday (T/A Country Coach Catering) Interim Decision: After April 7, 2015 letter from petitioner notifying Board that petitioners never received Board's letter directing them to file amended petition, March 11, 2015 decision dismissing petition revoked, and petitioners directed to timely file amended petition.
PR 14-201 4/29/2015 John Voyiatzis and Johnny G' Restaurant, Inc. Petition dismissed pursuant to Board Rule 65.24 when petitioners failed to appear and made no application for reinstatement.
PR 14-082 4/29/2015 Richard Russell and Richland Equity Resources Corp. Petition dismissed pursuant to Board Rule 65.24 when petitioners failed to appear and made no application for reinstatement.
PR 14-062 4/29/2015 Ammar A. Zabarah (T/A Guy R. Deli) March 11, 2015 decision clarified and reissued, to clarify that the only modification to the minimum wage order was that the applicable wage orders are Minimum Wage Order for the Restaurant Industry (12 NYCRR Part 137) and Wage Order for the Hospitality Industry (12 NYCRR Part 146), rather than Wage Order for Miscellaneous Industries (12 NYCRR Part 142) ); as so modified, affirmed and penalty order affirmed.
PR 12-157 4/29/2015 Joseph Ventura and William Tell Services, LLC (T/A William Tell financial Services) Petition dismissed where financial broker co-employers' argument that claimant received non-employee compensation was unavailing; wage and penalty orders upheld where petitioners were found to have employed claimant and failed to pay her overtime compensation.
PR 12-092 4/29/2015 Robinson Leon Minimum wage order and penalty order revoked where there was no valid and reasonable basis to find that newspaper hawkers were employees, rather than independent contractors.
PR 11-334 4/29/2015 Yat Sam Chang A/K/A Kelley Y Chang and Kam Fook Cheong and Jia & Jae, Inc. (T/A Hunan Village) Wage order affirmed; tip appropriations order modified to reduce both appropriated tips due and civil penalty, and to recalculate interest on new principal. Tip appropriations order modified, based on record, where one claimant testified that she could recall only one instance of petitioners taking her tips, making respondent' tip order unreasonable with regard to her.
PR 11-308 4/29/2015 Yook Wah Chu and Lucky Horse (NY) Corp. (T/A Fulton Chef) Minimum wage order affirmed as amended by respondent during hearing to remove one claimant where petitioner restaurant operators did not meet burden of proof; minimum wage owed reduced, and liquidated damages, interest, and civil penalty also modified.
PR 11-092 4/29/2015 James A. Kane and A & A Private Investigations & Security, Ltd. (T/A A & A Investigation & Security) Wage order affirmed for failure of petitioners to meet their burden of proof where they failed to pay overtime wages to security guard employee for hours he worked over 40 per week. Petitioners also failed to maintain time records of actual hours worked and adequate payroll records demonstrating claimant's rate of pay. Only evidence offered at hearing was general and imprecise testimony that claimant never worked overtime and was not paid for portion of claim period at rate stated in his claim.
PR14207 3/11/2015 Roy A. Dean and The Office, Inc. Petition dismissed as untimely; petitioner argued that petition was timely, pursuant to CPLR 2103 (b) (2)'s 'mailbox rule,' which adds five days for service by mail. This argument inapplicable as Board is quasi-judicial administrative agency within Executive Branch, governed by its own rules of procedure; CPLR is not binding. Ref: Petition of Patrik Harmanicin Construction, PR 09-256 (June 23, 2010).
PR14062 3/11/2015 Ammar A. Zabarah (T/A Guy R Deli) Deli owner, who did not maintain payroll records, received notice in 2013 of a claim filed in 2005. The duty to maintain records for six years relates back from the date when the petitioner is notified of the claim. Petitioner had burden of proof pursuant to § 196-a only for the six-year period 2007-2013. Contrary to parties' agreement that Minimum Wage Order for Miscellaneous Industries applied, Minimum Wage Order for Hospitality Industry (12 NYCRR Part 146) applied; there was no need to recalculate wages because the minimum wage requirements for this petitioner were the same under both. Civil penalty in wage order revoked as arbitrary because respondent failed to adequately explain basis for penalty.
PR13158 3/11/2015 Christopher Murphy Petitioner sought review of respondent's decision not to pursue wage claim petitioner had filed. Respondent moved to dismiss petition for lack of jurisdiction. Under Labor Law § 101, Board only has jurisdiction to review respondent' rules, regulations or orders and lacks authority to review decision. Petition dismissed.
PR13079 3/11/2015 Linas Smoriginas and Linas Construction, Inc. Petition granted in part and denied in part. Orders against Linas Construction, Inc. revoked after respondent stipulated that it had been named improperly in orders. Orders against Linas Smoriginas affirmed. Claimant carpenter was employee, and not independent contractor of construction firm where claimant, although skilled carpenter, was not in business for himself and did not have workers compensation insurance, and where petitioner hired claimant, set his work schedule and hourly rate of pay, supervised his work, approved additional work requested by client, required him to keep track of hours of extra work, and reviewed his work with client prior to being paid.
PR12173 3/11/2015 Bruce D. Zipes, Joel P. Goldberg and Brumeljo Inc. (T/A Bruce's Bakery) 2010 stipulation of settlement required entry of judgment, but when petitioners defaulted after making partial payment, respondent issued orders. Stipulation of settlement was drafted by respondent, which had waived authority to issue order under Labor Law § 218 in favor of settling claims without need for further administrative action, making orders invalid and unreasonable. Orders revoked.
PR12059 3/11/2015 Barbara Waltuch (T/A Barbara Waltuch, Esq.) Petitioner's counsel requested postponement of hearing due to court engagement on same date, but failed to substantiate said engagement when requested to do so. His second request to postpone hearing, for medical reasons, was received after hearing had taken place; neither petitioner, nor her counsel attended hearing although adjournment had not been confirmed. Petitioner was given opportunity to substantiate medical condition requiring second postponement of hearing, and to establish good cause for reinstatement. She failed to do either and petition was dismissed.
PR11298 3/11/2015 Luchia McSweeney Orders affirmed and petition dismissed where petitioner failed to meet her burden of proof to show she was not claimants' employer; as day laborers, claimants were employees, not independent contractors because petitioner hired and fired them, set their wages and hours of work, and directed and supervised work they did. Further, claimants did not have business of their own or workers compensation insurance, and while one claimant had his own tools, petitioner supplied materials; claimants had no investment in business and no opportunity for profit or loss from their work, other than their own labor. Claimants' day-to-day work reflects nature of short-term labor in home repair/construction industry and not their success in marketing their skills independently.
PR14214 1/28/2015 Dimitri A. Grivas and Arma International, Inc. Petition filed with Board more than 60 days after date orders issued; respondent moved to dismiss petition as untimely. Petitioners opposed motion, arguing petition was timely due to fact that petitioners had been in settlement discussions and, petitioners claimed, had been told that filing of petition might limit respondent's ability to settle; this is legally insufficient reason. Respondent's motion to dismiss untimely petition granted; petition dismissed.
PR14042 1/28/2015 Richard Harary and Rajo, Inc. (T/A Richard' Interior Design) Petition dismissed where petitioners failed to appear for hearing after request for adjournment denied because request, sent on eve of hearing, was supported by overly general and speculative doctor's note, and where petitioners failed to submit timely application for reinstatement.
PR13194 1/28/2015 Jason Moodie, David Sandberg, and Aqua Marlborough, LLC (T/A Hudson Valley Car Wash) First petition deemed abandoned and dismissed August 2014. (Petitioners failed to timely provide Board with updated contact information; notice of pre-hearing conference and rescheduled pre-hearing conference returned by US Postal Service. Board Rule 65.4 requires prompt communication of any change in contact information; failure to do so deemed waiver of right to notice and service.) Petitioners filed second petition, asserting same claims as in first petition, but did not address its dismissal. Proper procedure to address failure to appear at hearing is request for reinstatement within five days of scheduled hearing, in the absence of extraordinary circumstances, or upon showing of good cause. Petitioners did not make timely request for reinstatement, failed to show good cause for failure to appear at first hearing and for untimely filing of second petition (nearly one year after date of orders appealed). Second petition dismissed as untimely; no basis for reinstatement of first petition.
PR12045 1/28/2015 Mohammed Khalid A/K/A Khalid Butt (T/A Little Pakistan Deli) Order finding wages due deli-employee claimants affirmed where Petitioner did not have contemporaneous records of hours worked or wages paid. Reasonable and valid for Commissioner to use consistent employee statements (including employees' written claims and interview reports) as best available evidence to calculate wages due.