In Cunliffe v. Sandberg, No. 150610/2022, 2022 WL 2343202 (N.Y. Sup Ct, New York County June 28, 2022), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim that defendant failed to comply with the New York Labor Law’s wage notice requirement, codified at NYLL § 195(3). (I addressed that portion of the court’s decision which denied defendant’s motion to dismiss plaintiff’s claim of color discrimination, under the New York State Human Rights Law, here.)
From the decision:
As to plaintiff’s Second Cause of Action, NYLL § 195(3) requires employers to “furnish each employee with a statement with every payment of wages” listing specific information, including dates of work and rates of pay. For employees not exempt from overtime compensation, this wage statement must include “the number of regular hours worked, and the number of overtime hours worked” (id.).
Defendant argues that it complied with the requirements of § 195(3) simply by furnishing the wage statements regardless of their accuracy. However, courts have interpreted § 195(3) as requiring employers to furnish accurate wage statements that reflect the number of hours actually worked (see Copper v Cavalry Staffing, LLC, 132 F Supp 3d 460, 468 [EDNY 2015]; Rojas v Splendor Landscape Designs Ltd., 268 F Supp 3d 405, 413 [EDNY 2017]). Accepting the facts alleged in the complaint as true, plaintiff alleges an average of three hours per week that are not accounted for on the wage statements. Plaintiff has thus stated a claim for a violation of NYLL § 195(3) for furnishing inaccurate wage statements. Moreover, defendant’s reliance on Gardner v D&D Elec. Const. Co. Inc., 2019 N.Y. Slip Op. 32389[U] [N.Y. Sup Ct, New York County 2019] is unavailing. In Gardner, the court granted the motion to dismiss where paystubs submitted by the defendant utterly refuted plaintiff’s claim that the wage statements lacked statutorily required information. Here, even if the wage statements constitute documentary evidence, they cannot utterly refute plaintiff’s allegation that she worked additional unscheduled hours that are not accounted for on the wage statements.
Accordingly, the court denied this branch of defendant’s motion.