Roberts v. Genting N.Y. LLC

GERALD ROBERTS, STEPHEN JOHNSON,CHRISTOPHER MCLEOD, DAVID SHAW, ANITAJOHNSON, CHRISTOPHER HUMPHRIES, JEFFREYWILKINS, LATANYA MARTIN-RICE, LAURASANCHEZ, LUCY MUNOZ, NATALIO HERRERA,RADIKA KANHAI, ROGER SIERRA, YOO SUNGKIM, CHRISTINA LAMBRU, IRENE TSOROROS,MARIA DIAZ, CYNTHIA DURAN, JASPER JONES,ALLEN CHERFILS, LISA LUNDSREN, TERESAAREVALO, SYED A. HAQUE, AHMED TALHA,OLIE AHMED, JAMAL AHMED, SORWARHUSSAIN, LUZ OSPINA, JOHNNY MURILLO,THOMAS DORGAN, SENECA SCOTT, ERIC LEE,WILLIAM BOONE, MARLENNI MINAYA, ISABELPENA, CELESTE BROWN-POLITE, DWIGHTCURRY, RAWLO BENFIELD, JOSEPH BROWN,SANDRA MILENA-MARTINEZ, MARINO CANO,ABIGAIL APPIAH-OTCHERE, DALIA TOPPIN, ANAMOREIRA, BETSABE TORRES, LORNA BENT,OSMOND WALKER, CONRAD HALL, VISHWANISUKHRAM, ANNE GRONATA, BRUCE SMITH,NESTOR AMAYA, GUIDO ANTONIO RODRIGUEZ,WILLIE BALLENTINE, PETER VONTAS, FELIXGONZALEZ, MICHELLE LATIMER, VARISEWALLER, SOOKIA FREEMAN, CAMARCAFLOWERS, ANTONIO SALCEDO, JOEVEN CORTEZ,and JUDITH ALLEN, on behalf of themselvesand all others similarly situated, Plaintiffs, v. GENTING NEW YORK LLC, d/b/a RESORTSWORLD CASINO NEW YORK CITY, Defendant.

14-CV-257 (ILG) (VMS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 12, 2021

MEMORANDUM & ORDER

GLASSER, Senior United States District Judge:

On January 14, 2014, plaintiffs Gerald Roberts, Stephen Johnson, Christopher McLeod, and David Shaw, on behalf of themselves and all others similarly situated, commenced this action against defendant Genting New York LLC, d/b/a Resorts World Casino New York City ("Resorts World"), alleging violations of the Worker Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C. §§ 2101, et seq., and New York Labor Law ("NYLL") §§ 860, et seq. ("N.Y. WARN Act"). Compl. ¶ 1, Dkt. 1. On March 17, 2014, plaintiffs filed an Amended Complaint, adding 59 new plaintiffs. Am. Compl., Dkt. 5. Before the Court are the parties' cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dkt. 53, 61. For the reasons set forth below, plaintiffs' motion for summary judgment is DENIED and Resorts World's cross motion for summary judgment is GRANTED.

BACKGROUND

I. Statutory and Regulatory Framework

Congress enacted the federal WARN Act to protect workers, their families, and communities by requiring employers to provide advance notice before plant closings and mass layoffs. 20 C.F.R. § 639.1(a). Such advance notice "provides workers and their families some transition time to adjust to the prospective loss of employment, to seek and obtain alternative jobs and, if necessary, to enter skill training or retraining that will allow these workers to successfully compete in the job market." Id.; see Guippone v. BH S & B Holdings LLC, No. 09-CV-1029 (CM), 2010 WL 2077189, at *2 (S.D.N.Y. May 18, 2010), aff'd, 737 F.3d 221 (2d Cir. 2013).

A business enterprise with 100 or more full time employees qualifies as an "employer" under the federal WARN Act. 29 U.S.C. § 2101(a)(1)(A). An employer must provide a 60-day written notice to each affected employee or their representative before a plant closing or mass layoff. 29 U.S.C. § 2102(a)(1). If an employer orders a plant closing or mass layoff without giving the required notice, the employer is liable to each affected employee for back pay and benefits for the period of the violation, up to a maximum of 60 days, but in no event for more than one-halfthe number of days the employee was employed by the employer. 29 U.S.C. § 2104(a)(1). A "plant closing" means "the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees excluding any part-time employees." 29 U.S.C. § 2101(a)(2) (emphasis added).

The regulations define an "operating unit" for purposes of the WARN Act as "an organizationally or operationally distinct product, operation, or specific work function within or across facilities at a single site." 20 C.F.R. § 639.3(j). The Department of Labor ("DOL"), when promulgating these regulations, explained that "[t]he reason for the use of the term 'operating unit' in WARN is to apply the protections of the law to small units of workers in a larger plant when their units are closed." Analysis of Final Rule and Comments to Section 639.3(j), 54 Fed. Reg. 16051 (1989). Indeed, the DOL stated, "[i]t is not relevant to this purpose whether the workers are production workers or support workers; their job loss and their need for protection is as real in either case." Id. The DOL further explained that "[t]he critical factor in determining what constitutes an operating unit will be the organizational or operational structure of the single site of employment" and that "[s]ources of evidence which will assist in defining separate and distinct units will be applicable collective bargaining agreements, the employer's organizational structure and industry understandings of what constitutes distinct work functions." 54 Fed. Reg. 16050.

The N.Y. WARN Act is similar to the federal WARN Act, with several key differences. First, the N.Y. WARN Act "sets a lower trigger threshold for its protections." 1199 SEIU United Healthcare Workers E. v. S. Bronx Mental Health Council, Inc., No. 13-CV-2768 (JGK)(JCF), 2013 WL 6003731, at *2 (S.D.N.Y. Nov. 13, 2013), report and recommendation adopted, 2013 WL 6244716 (S.D.N.Y. Dec. 3, 2013). Specifically, an "employer" is defined as a businessenterprise with 50 or more full time employees, as opposed to 100 or more, and a "plant closing" is defined as the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss during any 30-day period for 25 or more full time employees, as opposed to 50 or more. NYLL § 860-a(3), (6). Next, the notification requirements under the N.Y. WARN Act are stricter, requiring an employer to provide a 90-day written notice—as opposed to a 60-day notice—to each affected employee and their representative before a plant closing or mass layoff. NYLL § 860-b(1). "Given these stricter requirements, wherever there is liability under the federal WARN Act, there is necessarily liability under the N.Y. WARN Act." 1199 SEIU United Healthcare Workers E., 2013 WL 6003731, at *2.

II. Facts and Procedural History¹

Resorts World operates a casino in Queens, New York that offers thousands of games and a variety of food and beverage options. Def.'s Rule 56.1 Statement of Undisputed Material Facts ("SOF") ¶¶ 1, 3, Dkt. 65; Pls.' Response to Def.'s Rule 56.1 SOF ¶¶ 1, 3, Dkt. 68. In or around July 2010, prior to the opening of the casino in 2011, the New York Hotel and Motel Trades Council, AFL-CIO (the "Union") began to organize Resorts World's future non-management employees. Def.'s Rule 56.1 SOF ¶ 7; Pls.' Response to Def.'s Rule 56.1 SOF ¶ 7. In this regard, the Union and Resorts World entered into a card check and neutrality agreement (the "Neutrality Agreement"), which designated an "Interest Arbitrator" to preside over all matters between the Union and Resorts World. Def.'s Rule 56.1 SOF ¶¶ 7-8; Pls.' Response to Def.'s Rule 56.1 SOF ¶¶ 7-8; see Neutrality Agreement, Dkt. 63-2. On December 20, 2011, the Interest Arbitrator—the Office of the Impartial Chairperson—certified that the Union had obtained a majority of the cardsselecting the Union as the exclusive bargaining representative for all non-management job classifications. Def.'s Rule 56.1 SOF ¶ 8; Pls.' Response to Def.'s Rule 56.1 SOF ¶ 8; see Certification of Card Count, Dkt. 63-3. Plaintiffs were members of the Union at all times relevant to this action. See Def.'s Mem. of Law in Supp. of Mot. for Summ. J. ("Def.'s Mem. of Law") at 4, n.2, Dkt. 64.

On October 18, 2013, the Interest Arbitrator issued an award, which resolved certain unsettled terms in the Collective Bargaining Agreement ("CBA"), including, as relevant here, employee hourly and weekly wage rates, as well as a schedule of annual wage increases, and increases in pension and health benefits and vacation, holiday, and sick leave. Def.'s Rule 56.1 SOF ¶ 9; Pls.' Response to Def.'s Rule 56.1 SOF ¶ 9; see Interest Arbitration Award, Dkt. 63-4, 63-5, 63-6. This Interest Arbitration Award, which became effective immediately, "nearly doubled employee wages for Union members, and increased Union members' health and pension benefits by more than 20 percent." Def.'s Rule 56.1 SOF ¶ 10; Pls.' Response to Def.'s Rule 56.1 SOF ¶ 10. Resorts World claims that it was forced to mitigate "the extraordinary impact" of the Interest Arbitration Award by, among other things, reducing the workforce. Def.'s Rule 56.1 SOF ¶ 12; Pls.' Response to Def.'s Rule 56.1 SOF ¶ 12.

Furthermore, Resorts World claims that, from approximately November 2013 through the first week of January 2014, it had negotiated with the Union in meetings and by email concerning proposed non-management layoffs. Def.'s Rule 56.1 SOF ¶¶ 14-15; see Emails, Dkt. 63-7. Plaintiffs counter that the proposed "layoffs were more of a decree by [Resorts World] which the Union had no choice but to agree with in significant portion." Pls.' Response to Def.'s Rule 56.1 SOF ¶¶ 14-15.

On January 6, 2014, Resorts World closed the Aqueduct Buffet—one of the food outlets at the casino—and terminated approximately 177 employees, including cooks, food servers, food runners, bussers, hosts, cashiers, warehouse attendants, and stewards. Def.'s Rule 56.1 SOF ¶ 18; Pls.' Response to Def.'s Rule 56.1 SOF ¶ 18; Pls.' Rule 56.1 SOF ¶ 1, Dkt. 56; Def.'s Response to Pls.' Rule 56.1 SOF ¶ 1, Dkt. 59; see Not. of Layoffs dated Jan. 6, 2014 & FAQ, Dkt. 63-8; List of Layoffs, Dkt. 63-9. Resorts World contends that, "at the time they were laid off, some of the affected employees were working in the...