Grant v. Glob. Aircraft Dispatch, Inc.

204 N.Y.S.3d 117

223 A.D.3d 712

Besante Fitzgerald GRANT, etc., appellant,

v.GLOBAL AIRCRAFT DISPATCH, INC., respondent.

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 21, 2023

January 17, 2024

Abdul Hassan Law Group, PLLC, Queens Village, NY(Abdul K. Hassan of counsel), for appellant.

Jackson Lewis P.C., Melville, NY (Jeffrey W. Brecher of counsel), for respondent.

ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In a putative class action, inter alia, to recover damages for violations of Labor Law article 6, the plaintiff appeals from an order of the Supreme Court, Queens County (Donna-Mane E. Golia, J.), entered April 20, 2021. The order, insofar as appealed from, granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff, who allegedly was employed by the defendant as a manual worker, commenced this putative class action on behalf of himself and a proposed class composed of other manual workers employed by the defendant. In the first cause of action, the plaintiff alleged that the defendant paid him and the putative class members on a biweekly, rather than weekly, basis, in violation of Labor Law § 191(1)(a). For this alleged violation, the plaintiff sought to recover liquidated damages, prejudgment interest, and attorneys’ fees.

The defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, arguing that no private right of action existed for the claimed violation of Labor Law § 191(1)(a). In an order entered April 20, 2021, the Supreme Court, among other things, granted that branch of the defendant’s motion which was to dismiss the first cause of action. The plaintiff appeals.

[1] Labor Law § 191, entitled "Frequency of payments," provides, inter alia, with certain exceptions not applicable here, that "[a] manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned" (id. § 191[1][a][i]). This requirement, first imposed in 1890 (see L 1890, ch 388, § 1), was intended "to assure prompt payment of daily wages to those … who depended upon their earnings for support on a per diem rather than on a salary basis" (People v. Vetri, 309 N.Y. 401, 405, 131 N.E.2d 568). The enforcement mechanism provided in the original statute was a civil penalty, not exceeding $50 and not less than $10 for each violation, to be recovered in a civil action (see L 1890, ch 388, § 2). Additionally, failure to pay wages within the time prescribed constituted a misdemeanor for which an employer could be criminally prosecuted (see People v. Vetri, 309 N.Y. at 404–405, 131 N.E.2d 568, citing former Penal Law § 1272).

The weekly pay requirement for manual workers, while subject to some amendment, such as to permit the Commissioner of Labor (hereinafter the Commissioner) to authorize larger employers with a history of employment in the State to pay biweekly (see Labor Law § 191[1][a][ii]), has been retained since 1890 (see e.g. Mem in Support, Bill Jacket, L 1966, ch 548 at 2 [explaining that the subject act repealed and replaced article 6 of the Labor Law "[w]hile retaining present provisions dealing with when wages of manual workers … must be paid"]). Similarly, the Labor Law continues to provide for civil and criminal penalties for violations of article 6 (see Labor Law §§ 197, 198, 218; AHA Sales, Inc. v. Creative Bath Prods., Inc., 58 A.D.3d 6, 16, 867 N.Y.S.2d 169; Matter of IKEA U.S. v. Industrial Bd. of Appeals, 241 A.D.2d 454, 455, 660 N.Y.S.2d 585).

[2] The plaintiff contends that, in addition to the official enforcement mechanism provided for in article 6, there exists a private right of action to recover damages for violations of the "[f]requency of payments" provision (Labor Law § 191). The plaintiff recognizes that Labor Law § 191 does not expressly authorize such a private right of action (cf. AHA Sales, Inc. v. Creative Bath Prods., Inc., 58 A.D.3d at 15, 867 N.Y.S.2d 169), but contends that a private right of action is expressly provided for in Labor Law § 198.

Initially, contrary to the Supreme Court’s conclusion, this Court’s decision in Matter of IKEA U.S. v. Industrial Bd. of Appeals, 241 A.D.2d 454, 660 N.Y.S.2d 585 is not dispositive of this question. That decision confirmed an administrative determination of the Commissioner finding that the petitioning employer had violated Labor Law § 191(1)(a) by failing to pay weekly wages to manual workers (see Matter of IKEA U.S. v. Industrial Bd. of Appeals, 241 A.D.2d 454, 660 N.Y.S.2d 585). The fact that the Commissioner exercised the statutory authority to enforce section 191(1)(a) in that case, and that this Court confirmed the determination that the statute was, in fact, violated, has no bearing upon the question of whether manual workers possess a private right of action to recover damages for such a violation. Nevertheless, we conclude that neither the language nor the legislative history of Labor Law § 198 supports the plaintiff’s contention that this statute expressly provides a private right of action to recover liquidated damages, prejudgment interest, and attorneys’ fees for a violation of Labor Law § 191(1)(a) where, as here, the employer pays wages pursuant to a regular biweekly pay schedule.

Labor Law § 198(1–a) permits the Commissioner to bring an action or administrative proceeding "[o]n behalf of any employee paid less than the wage to which he or she is entitled … to collect such claim" (emphasis added). That subdivision further provides: "In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney’s fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due" (id. [emphasis added]).

In Vega v. CM & Assoc. Constr. Mgt., LLC, 175 A.D.3d 1144, 107 N.Y.S.3d 286, the Appellate Division, First Department, considered the question now before this Court—whether Labor Law § 198(1–a) expressly provides a private right of action for a manual worker paid on a biweekly basis in violation of Labor Law § 191(1)(a) to recover liquidated damages, interest, and attorneys’ fees. The First Department determined that such a private right of action exists, concluding that the "wage claim[s]" to which section 198 refers in- clude not only instances of nonpayment or partial payment of wages, but also late payment of wages (see Vega v. CM & Assoc. Constr. Mgt., LLC, 175 A.D.3d at 1145–1146, 107 N.Y.S.3d 286). The First Department reasoned that "[t]he moment that an employer fails to pay wages in compliance with section 191(1)(a), the employer pays less than what is required," thereby permitting recovery for underpayment under section 198(1-a) (Vega v. CM & Assoc. Constr. Mgt., LLC, 175 A.D.3d at 1145, 107 N.Y.S.3d 286). The First Department, as the plaintiff does here, equated the biweekly pay schedule with a violation and cure, the cure serving merely as an affirmative defense, which could not "eviscerate the employee’s statutory remedies" (id.).

[3] We respectfully disagree with the reasoning of Vega and decline to follow it. The plain language of Labor Law § 198(1–a) supports the conclusion that this statute is addressed to nonpayment and underpayment of wages, as distinct from the frequency of payment (see Gutierrez v. Bactolac Pharm., Inc., 210 A.D.3d 746, 747, 177 N.Y.S.3d 704), and we do not agree that payment of full wages on the regular biweekly payday constitutes nonpayment or underpayment.

[4] The first sentence of Labor Law § 198(1–a) refers to an employee being "paid less than the wage to which he or she is entitled" (emphasis added). "Wages" is defined as "the earnings of an employee for labor or services rendered" (id. § 190[1]). The natural import of this phrase, as well as the later, related reference to an employee recovering "the full amount of any underpayment" (id. § 198[1–a] [emphasis added]), is that an employee has received a lesser amount of earnings than agreed upon, not that the employee received the agreed-upon amount one week later, on the regular payday.

[5, 6] Moreover, acknowledging that he was paid his wages in full, the plaintiff here seeks only liquidated damages (as well as interest and attorneys’ fees). However, section 198(1–a) provides for liquidated damages as an "additional amount," clearly contemplating recovery of an underpayment as the primary, foundational remedy. In other words, under the statute as written, the recovery of liquidated damages is dependent upon the recovery of an underpayment. Thus, absent an underpayment or nonpayment, liquidated damages are not available. While we agree with the proposition set forth by our dissenting colleague that "[m]oney later is not the same as money now" (Georgiou v. Harmon Stores, Inc., 2023 WL 112805, *1, 2022 U.S. Dist. LEXIS 234643, *3 [E.D.N.Y., No. 2:22–cv–02861-BMC] [internal quotation marks omitted]), or, in other words, that late payment is injurious to workers, we nevertheless are bound to "give effect to the plain meaning of [the] words used" in the statute and may not "legislate under the guise of interpretation" (People v. Finnegan, 85 N.Y.2d 53, 58, 623 N.Y.S.2d 546, 647 N.E.2d 758 [internal quotation marks omitted]).

[7] The First Department’s reasoning that the "moment an employer fails to pay wages in compliance with section 191(1)(a), the employer pays less than what is required" (Vega v. CM & Assoc. Constr. Mgt.,...