Bauin v Feinberg

[*1] Bauin v Feinberg 2005 NY Slip Op 50343(U) Decided on March 18, 2005 Civil Court Of The City Of New York, New York County Gesmer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 18, 2005
Civil Court of the City of New York, New York County

BETTY BAUIN, Plaintiff,

against

DENISE FEINBERG, individually and as the ADMINISTRATOR OF THE ESTATE OF EDYTHE FEINBERG, Defendant.



11568/04



The Urban Justice Center, New York City (Tony Y. Lu), for plaintiff. Denise Feinberg, defendant pro se.

Ellen Gesmer, J.

Plaintiff Betty Bauin did domestic work for Edythe and Irving Feinberg. She alleges that they failed to pay her wages and overtime pay during the last eleven weeks of her employment. She claims that Denise Feinberg is liable to her for these amounts, either personally, because she hired Ms. Bauin, or in her capacity as the administrator of the estate of Edythe Feinberg, because Edythe Feinberg hired Ms. Bauin. In either event, Ms. Bauin claims that she is also entitled to statutory damages and attorneys' fees because of defendants' failure to pay her in a timely way.

This matter was tried on February 1 and 7, 2005. Plaintiff testified on her own behalf and defendant Denise Feinberg testified for defendants.

FINDINGS OF FACT

The Court makes the following findings of fact, based on the testimony adduced at trial.

In July 1998, Edythe Feinberg (Mrs. Feinberg) interviewed Betty Bauin for a part-time job in which her responsibilities would include laundry, grocery shopping, errands and cleaning for Edythe and Irving Feinberg. Edythe Feinberg's daughter, Denise Feinberg (Ms. Feinberg), set [*2]up the interview and was present for it. Mrs. Feinberg hired Ms. Bauin to work three days a week, four hours per day. It was agreed that she would be paid $10.00 per hour, and reimbursed for actual expenses. Ms. Bauin worked for Mrs. Feinberg, with some interruptions, until October 13, 2002.

At the time she hired Ms. Bauin, Mrs. Feinberg was in good health and in full command of her faculties. She did not let anyone else, including her daughter, make decisions about how things were done in her home. During most of the period of her employment, Ms. Bauin was supervised in her work directly by Mrs. Feinberg who gave her lists of tasks that she wanted completed. At some point before June 2002, Ms. Bauin began to work full time, and her duties increased to include providing some personal care for Mr. and Mrs. Feinberg. In late July 2002, Mrs. Feinberg became ill. As a result, after July 29, 2002, Ms. Bauin began to work for the Feinbergs seven days a week, often in excess of eight hours per day. Her duties were expanded to include assisting Mrs. Feinberg with her personal needs, either in the hospital or at home, as appropriate. She also made and served meals to Mr. Feinberg.

Ms. Bauin gave Mrs. Feinberg a weekly accounting of her hours but she did not keep a copy for herself. Ms. Bauin was paid, either by check or cash, by Mrs. Feinberg, and occasionally by Mr. Feinberg. Ms. Feinberg did not keep track of Ms. Bauin's hours and could not locate any documentation showing that her mother had done so.

On September 1, 2002, Ms. Feinberg gave Ms. Bauin a check in the amount of $3,154.75, to cover her wages and expenses for the period from July 29 through September 1, 2002. Ms. Feinberg wrote the check but Mr. Feinberg signed it. Ms. Feinberg post-dated the check September 13, and instructed Ms. Bauin not to cash it until September 13. That was the last check that Ms. Bauin received from the Feinbergs.

During the period from September 1 through October 11, the services rendered by Ms. Bauin included shopping, laundry, picking up medications, cleaning the bathroom, cleaning and feeding Mr. Feinberg and performing errands for Mr. Feinberg. Ms. Bauin testified that she worked the following hours during the weeks of September 2 and 9:

MonTuesWedThurs

FriSat Suntotal

2 Sept11111111510.54.564

9 Sept1111.511115.511667

131

She did not establish that she incurred any expenses during that period. Ms. Bauin documented that she worked the following hours and incurred the following expenses during the four weeks starting on September 16, 2002: [*3]

The documents she produced are consistent with her testimony that, during this period, she worked six or seven days a week, and worked ten or more hours on many days.

On October 13, 2002, Ms. Bauin had a conversation with Ms. Feinberg concerning her outstanding pay. They did not come to an agreement and Ms. Bauin did not work after that date.

Irving Feinberg died on September 25, 2002. Edythe Feinberg died recently; Denise Feinberg is the administrator of her estate.

ANALYSIS

The Court must answer a series of questions in order to decide this action.

Who employed the plaintiff?

Plaintiff contends that she was employed by both Ms. Feinberg and her mother. In order to determine this issue, the Court must apply, as plaintiff urges, the "economic reality" test, which has four factors: "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." (Carter v Dutchess Community College, 735 F.2d 8, 12 [2d Cir 1984]; see also Herman v RSR Sec. Servs., 172 F.3d 132, 139 [2d Cir 1999]). Applying those factors to the facts of this case leads the Court to conclude that Mrs. Feinberg was Ms. Bauin's employer and that her daughter, Ms. Feinberg, was not.

Specifically, Ms. Bauin testified that Ms. Feinberg frequently instructed her as to her duties, even before Mrs. Feinberg became ill. I find that Ms. Bauin's testimony in this respect was not credible, especially in view of her acknowledgment that Mrs. Feinberg was "bossy." Moreover, I find very credible Ms. Feinberg's testimony that her mother was controlling and would not have permitted her daughter to give instructions concerning work to be done in her home. I find that Ms. Feinberg did not have the power to hire or fire Ms. Bauin; that Mrs. Feinberg supervised Ms. Bauin's work; and that Mrs. Feinberg determined what Ms. Bauin would be paid.

Accordingly, I find that Mrs. Feinberg, and not Ms. Feinberg, was Ms. Bauin's employer. Consequently, any liability for wages, overtime and penalties related to Ms. Bauin's employment will be the responsibility of Ms. Feinberg solely in her capacity as the administrator of her mother's estate.

Is defendant liable to plaintiff for overtime pay?

Under the Fair Labor Standards Act, 29 USC §201 et. seq. (FLSA), an employer must pay [*4]most non-residential employees one and a half times their normal rate of pay for any hours worked in excess of forty hours per week (29 USCS § 207). In 1974, Congress amended the FLSA to broaden its coverage to employees performing "domestic services," defined in the relevant committee reports to include, for example, maids, housekeepers and laundresses. (Coke v Long Island Care at Home, Ltd., 376 F.3d 118, 123 [2d Cir 2004], citing S. Rep. No 93-690, at 20 (1974) and HR Rep No 93-913, at 35-36 [1974]). At the same time, Congress carved out an exception for employees "employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary.)" (29 USCS § 213[a][15]). The regulations define "companionship services" as those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked.

(29 CFR 552.6). The parallel provision of New York State law has adopted the FLSA standards and exemptions (12 NYCRR § 142-2.2 ).In deciding whether the exemption applies, the court must consider that because the FLSA is a remedial act, its exemptions are to be narrowly construed (Coke v Long Island Care at Home, Ltd., 376 F.3d at 123; Martin v Malcolm Pirnie, Inc., 949 F.2d 611, 614 [2d Cir 1991]). Consequently, "[t]o extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people." (Coke v Long Island Care at Home, Ltd., 376 F.3d at 123, citing A.H. Phillips, Inc. v Walling, 324 US 490, 493 [1945]; see also Scott Wetzel Servs. v New York State Bd. of Indus. Appeals, 252 AD2d 212, 214 [3d Dept 1998]). The employer bears the burden of proving that its employees fall within an exempted category of the Act, and must overcome the presumption that the exemption does not apply to the employee (Corning Glass Works v Brennan, 417 US 188, 197 [1974]; Coke v Long Island Care at Home, Ltd., 376 F.3d at 123; Martin v Malcolm Pirnie, Inc., 949 F.2d at 614; McGuiggan v CPC Int'l, Inc., 84 F. Supp. 2d 470, 481 [SDNY 2000]). Consequently, defendant must overcome the presumption that the "companionship services" exemption does not apply to Ms. Bauin.

The exemption applies to home health care aides (Coke v Long Island Care at Home, Ltd., 376 F.3d at 122; Ballard v Community Home Care Referral Serv., 264 AD2d 747, 748 [2d Dept 1999]), but there are no cases construing the exemption in the context of a case like the one at bar. Ms. Bauin testified that she was hired to perform services which were in the nature of housekeeping cleaning the apartment, doing laundry, running errands. Although she testified that her duties expanded when Mr. and Mrs. Feinberg were ill, she testified that she still performed many of the same duties. [*5]

Ms. Feinberg's testimony on the nature of Ms. Bauin's duties was inconsistent. She acknowledged that Ms. Bauin did laundry, cleaned her parents' apartment and went shopping for her mother. While she seems to argue that Ms. Bauin was employed as a companion to her parents, she testified that her mother had arguments with Ms. Bauin frequently and fired her many times. This would seem to be inconsistent with Ms. Feinberg's claim that Ms. Bauin served as a companion to her mother.

The Court finds that defendant failed to meet her burden to show that Ms. Bauin came within the "companionship" exemption to the FLSA. Accordingly, Ms. Bauin is entitled to be paid for overtime, if she proves that she worked in excess of 40 hours in any week.

Is plaintiff entitled to be paid for spread of hours?

Under state law, an employee is entitled to an extra hour's wages for any day when the employee's "spread of hours" exceeds 10 hours (12 NYCRR § 142-2.4). "Spread of hours" is defined as the "the interval between the beginning and end of the workday." (12 NYCRR § 138-4.13). Defendant has not argued that there are any exemptions to this section applicable to plaintiff, and the Court has not been able to locate any. Accordingly, plaintiff is entitled to an extra hour's pay for any day when she has shown that her "spread of hours" exceeded ten hours.

Is plaintiff entitled to liquidated damages, under federal and state law?

Despite the parallels between federal and state wage laws, their provisions regarding liquidated damages are substantially different, as to the method of calculation of liquidated damages, the standard for assessing them, and the burden of proof. For the reasons set forth below, the Court finds in this case that the employer is liable for liquidated damages under the FLSA but not under state law.

Liquidated damages under the FLSA:

An employer who violates FLSA's minimum wage and overtime requirements is liable for any unpaid minimum wages or overtime compensation "and an additional equal amount as liquidated damages." (20 USC §216[b]) "As used in the FLSA 'liquidated damages' is something of a misnomer. It is not a sum certain, determined in advance as a means of liquidating damages that might be incurred in the future. It is an award of special or exemplary damages added to the normal damages." (Brock v Superior Care, Inc., 840 F.2d 1054, 1063, n.3 [2d Cir 1988]) Liquidated damages under the act are compensatory, not punitive. (Overnight Motor Co. v Missel, 316 US 572, 583 [1942]). The Supreme Court explained that the provision mandating liquidated damages [] constitutes a Congressional recognition that failure to pay the statutory minimum on time may be so detrimental to maintenance of the minimum standard of living "necessary for health, efficiency and general well-being of workers" and to the free flow of commerce, that double payment must be made in the event of delay in order to insure restoration of the worker to that minimum standard of well-being. Employees receiving less than the statutory minimum are not likely to have sufficient resources to maintain their well-being and efficiency until such sums are paid at a future date. The same policy [*6]which forbids waiver of the statutory minimum as necessary to the free flow of commerce requires that reparations to restore damage done by such failure to pay on time must be made to accomplish Congressional purposes.

(Brooklyn Sav. Bank v O'Neil, 324 US 697, 707-708 [1945]).

An employer facing a wage or overtime claim may avoid liquidated damages by showing "to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not in violation of the [Act]." (29 USC § 260) The employer bears the burden of establishing, by "plain and substantial" evidence, its subjective good faith and objective reasonableness. (Reich v Southern New Eng. Telcoms. Corp.,121 F3d 58, 70-71 (2d Cir 1997][citations omitted]) The burden,"is a difficult one to meet, however, and 'double damages are the norm, single damages the exception . . . .'" (Brock v Wilamowsky, 833 F2d 11, 19 (2d Cir 1987) quoting Walton v United Consumers Club, Inc., 786 F2d 303, 310 [7th Cir 1986]). "'Good faith' in this context requires more than ignorance of the prevailing law or uncertainty about its development. It requires that an employer first take active steps to ascertain the dictates of the FLSA and then move to comply with them. ..... Nor is good faith demonstrated by the absence of complaints on the part of employees, or simple conformity with industry-wide practice." (Reich v Southern New Eng. Telcoms. Corp., 121 F.3d 58, 71 [2d Cir 1997][citations omitted]; see also Herman v RSR Sec. Servs., 172 F.3d 132, 142 [2d Cir 1999]; Brock v Wilamowsky, 833 F.2d at 19). While a court may reject the employer's good faith defense, a court does not have discretion, under the FLSA, to decline to award liquidated damages, in whole or in part, unless the employer has established its good-faith, reasonable-basis defense (Brock v Wilamowsky, 833 F.2d at 20).

In this case, defendant has not even asserted a defense based on her "good faith and objective reasonableness," much less proved it. Consequently, she is subject to liability for liquidated damages under FLSA. While this result might seem harsh, given that Mrs. Feinberg is no longer alive to present proof, the Court notes that the action was commenced while she was alive and she did not interpose an answer asserting such a defense. Moreover, her administrator was not able to show the Court that Mrs. Feinberg had kept records of any kind or maintained any file showing that she had made any attempt to learn her duties under Federal law. In the absence of such a showing, the Court will grant liquidated damages under the FLSA if it concludes that Mrs. Feinberg did not pay Ms. Bauin any wages or overtime due to her.

Liquidated damages under state law:

Under New York law, an employee may be awarded liquidated damages equal to an additional 25 percent of the total wages owed by the employer "upon a finding that the employer's failure to pay the wage[s] required . . . was willful." (Labor Law §§ 198(1-a), 663) While the FLSA mandates liquidated damages unless the employer proves good faith, New York Labor Law requires a finding of willfulness. (Gustafson v Bell Atl. Corp., 171 F Supp. 2d 311, 327 [SDNY 2001]) The Court must find that the employer "knowingly, deliberately, or voluntarily disregards its obligation to pay wages." (Ayres v 127 Restaurant Corp., 12 F Supp. 2d 305, 309 [SDNY 1998] quoting P & L Group, Inc. v Garfinkel, 150 AD2d 663, 664 [2d Dept [*7]1989]), but it need not find malice or bad faith (Id. at 309).

The Court has not been able to locate any New York decision which explicitly allocates the burden of proof on the question of willfulness. However, it appears that the standard of willfulness applicable under New York law for determining whether to award liquidated damages is similar to the standard for willfulness applied by the Federal courts for determining the applicable FLSA statute of limitations.[FN1] (Keun-Jae Moon v Joon Gab Kwon, 248 F. Supp. 2d 201, 235 [SDNY 2002]). Under that standard, the plaintiff must show that the employer "either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." (McLaughlin v Richland Shoe Co., 486 US 128, 133, 135 [1988]; Herman v RSR Sec. Servs., 172 F.3d at 141). Consequently, it appears that the burden is on plaintiff to prove willfulness in order to obtain liquidated damages under New York law (See also, Epelbaum v Nefesh Achath B'Yisrael, Inc., 237 AD2d 327, 330 [2d Dept 1997])

In this case, the Court finds that plaintiff has failed to prove that Mrs. Feinberg acted willfully in failing to pay her wages. Accordingly, the Court will not award liquidated damages under New York law.

What is Ms. Bauin entitled to be paid for the period from 9/16 to 10/11?

Ms. Feinberg testified that she was present on a date sometime after September 26 when her mother paid Ms. Bauin in full for her wages through that date by a combination of check and cash. I do not credit this testimony since Ms. Feinberg was not able to produce a check constituting payment for that period. Moreover, I find credible Ms. Bauin's testimony that she was not paid at all for her work during the period from September 2 through October 11.

Ms. Bauin presented competent evidence in documentary form, supplemented by her testimony, that, during the period from September 16 to October 11, she worked a total of 196 hours; that 47 of those hours constituted overtime; and that on 13 days during that period, her "spread of hours" was 10 hours or more.[FN2] Consequently, Ms. Bauin is entitled to be paid the following for this period:

Unpaid wages, 196 hrs @$10/hr 1,960. [*8]Overtime, 57 hrs @ $10. x .5 285 "Spread of hours" 130. FLSA Liquidated damages, 1960 + 285 2,245. Total 4,620 She is also entitled to be reimbursed $103.25 for the expenses she incurred on behalf of her employer during this period.

What is Ms. Bauin entitled to be paid for the period from 9/1 to 9/15? Ms. Bauin did not have clear records of her working hours from September 1 through September 15. However, the FLSA does not impose a record keeping requirement on employees, but rather on employers, directing them to keep records of their employees' hours and other conditions of employment. (29 USC §211(c); 516.2, 516.5; Keun-Jae Moon v Joon Gab Kwon, 248 F. Supp. 2d at 218 [SDNY 2002]). "Ordinarily, an employee seeking to recover unpaid minimum wages or overtime under FLSA "has the burden of proving that he performed work for which he was not properly compensated, " but the burden shifts when the employer fails to keep records (Anderson v Mt. Clemens Pottery Co., 328 US 680, 687 [1946]). The Supreme Court explained: When the employer has kept proper and accurate records, the employee may easily discharge his burden by securing the production of those records. But where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes, a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

(Anderson v Mt. Clemens Pottery Co., 328 US at 687-688; Keun-Jae Moon v Joon Gab Kwon, 248 F. Supp. 2d at 219; Reich v Southern New Eng. Telcoms. Corp., 121 F.3d at 66-67).

Although the court did not accept into evidence Ms. Bauin's records of her employment for the first two weeks of September because she failed to establish a proper foundation for their admissibility, the Court can nonetheless credit her testimony. The Court finds that Ms. Bauin's testimony met her burden of showing the amount and extent of her work "as a matter of just and [*9]reasonable inference." Accordingly, the Court finds that she worked, and was not paid, for 131 hours, of which 51 constituted overtime. During this period, she worked more than 10 hours on 10 days. Consequently, she is entitled to be paid as follows: Unpaid wages, 131 hrs @$10/hr 1,310 Overtime, 51 hrs @ $10. x .5 255. "Spread of hours" 100 FLSA Liquidated damages, 1,310 + 255 1,565 Total 3,230

What is Ms. Bauin entitled to be paid for the period from 7/29 to 9/1?

Ms. Bauin testified credibly that the check dated September 13 in the amount of $3,154.75 was intended to compensate her for wages and expenses for the period from July 29 through September 1, a total of five weeks. Since defendant did not keep records, the Court may rely on Ms. Bauin's testimony to establish the amount of her work during that period "as a matter of just and reasonable inference."

Plaintiff suggests two different methods for determining the number of hours she worked. First, she suggests that the court simply divide the amount of the check by Ms. Bauin's hourly rate of pay of $10.00 to determine the number of hours that she worked during that period. The Court rejects that method because Mrs Feinberg's payments to Ms. Bauin generally included reimbursement for expenses. There is no reason to infer that the payment made to her by the September 13 check did not similarly include expenses, which this method does not account for. Secondly, Ms. Bauin suggests that the Court accept her testimony that she worked seven days per week; that on at least five days each week, she worked at least 10 hours per day; and that on the other two days, she worked at least eight hours, for a total of 66 hours per week. However, this testimony is inconsistent with the documentary evidence that Ms. Bauin introduced to establish the amount that she worked during her final four weeks of employment. Therefore, the Court rejects both of the methods suggested by Ms. Bauin.

The Court will instead base its assessment of the number of hours that Ms. Bauin worked during this five week period on its findings for the five week period from September 2 through October 6, since Ms. Bauin presented specific evidence as to the later period, and further testified generally that her weekly hours were more or less the same after July 29. During the five week period from September 2 through October 6, Ms. Bauin worked a total of 308 hours, of which 108 were overtime hours, and there were 22 days when the "spread of hours" exceeded 10 hours. Based on that, the Court now finds that Ms. Bauin worked the same number of hours during the five week period from July 29 through September 1, and incurred the same number of overtime hours and excessive "spread of work" days as she did during the following five week period. [*10]Accordingly, the Court finds that when Ms. Bauin was paid $3154.75 by the check dated September 13, she was being paid for her 308 hours of work at $10.00 per hour and reimbursed for $74.75 of expenses, which is a "just and reasonable inference." For this period, then, Ms. Bauin is also due the following:

Overtime pay, 108 hrs @$10/hr x .5 540 "Spread of hours", 22 days @ $10 220. Federal liquidated damages, $540 540 Total 1,300

Is Ms. Bauin entitled to attorneys' fees?

In her complaint, plaintiff seeks an award of attorneys' fees. An employee who prevails on a wage claim is entitled to recover reasonable attorneys' fees. (29 USC §216[b]; Labor Law §198 [1-a] ). Defendant has not identified, and the Court has not located, any provision which would exempt defendant from this provision.

At the conclusion of trial, the Court directed plaintiff to submit a memorandum, detailing her calculations and contentions as to the amount due to her, and gave defendant an opportunity to respond. At that time, plaintiff did not ask for leave to address her entitlement to attorneys' fees by way of affidavit. Plaintiff then submitted to the Court an affidavit setting forth her claim for attorneys' fees as well as a memorandum of law and calculation concerning the amount due her under the FLSA and the New York Labor Law. In her response, defendant objected to the idea that plaintiff would be awarded attorneys' fees, and also objected to certain specific expenditures. However, she did not request a hearing. Therefore, I will decide the plaintiff's request for attorneys' fees on the papers submitted.

Plaintiff seeks attorneys' fees at the rate of $100.00 per hour. The Court finds that this is reasonable, given Mr. Lu's level of experience. The Court also notes that the plaintiff did not seek fees for the time spent by senior attorneys supervising Mr. Lu, although a more senior attorney was present in court throughout the entire trial. In addition, the attorneys' fee application redacts a substantial amount of the time spent on this matter, including time spent on activities to which defendant objected, including the time spent drafting and appearing on a summary judgment motion which was withdrawn, drafting and filing an amended complaint, drafting and appearing on a motion to vacate a default and drafting a notice for a deposition that did not take place. After these activities are redacted, plaintiff seeks fees for 46.9 hours of work. However, the Court finds that some of the time spent was not reasonable; for example, the plaintiff spent a considerable amount of time during trial attempting unsuccessfully to establish a business records foundation for Ms. Bauin's records; the time must be adjusted to reflect that. I also find that an unreasonable amount of time was spent preparing for trial. Therefore, I will reduce the amount claimed by five hours, to 41.9 hours, which I find to be reasonable. Consequently, I find [*11]that defendant is liable to plaintiff for attorneys' fees in the amount of $4,190.00.

Defendant's counterclaim

Defendant interposed a counterclaim which appears to be for harassment. The Court finds that her counterclaim does not state a cause of action and, accordingly, dismisses it.

CONCLUSION

Defendant Denise Feinberg, as Administrator of the Estate of Edythe Feinberg, is liable to plaintiff for the total amount of $13,443.25. The Clerk shall enter judgment accordingly.

Dated: March 18, 2005

ELLEN GESMER

Judge, Civil Court Footnotes

Footnote 1:The FLSA imposes a two year statute of limitations, except as to "willful" violations, for which the statute is extended to 3 years. (29 USC §255[a])

Footnote 2:Defendant argues that the Court may not consider plaintiff's post-trial submission, which set out her calculations of the amount due her, because it was not verified by her. The Court rejects this argument. The Court specifically requested that plaintiff make such a submission and gave defendant an opportunity to respond to it. There was no need for plaintiff's post-trial submission to be verified since it merely summarized the testimony adduced at trial, and did not add any new facts.