Nicholas Malfitano Jun. 16, 2016, 4:00pm


PHILADELPHIA – On June 7, a federal judge ruled a plaintiff has in fact stated a valid claim for violation of the Fair Labor Standards Act (FLSA) and Pennsylvania Minimum Wage Act (PMWA), when he accused his former employer of failing to compensate him with overtime pay.

Judge Gerald J. Pappert of the U.S. District Court for the Eastern District of Pennsylvania said Emilio Diaz made a case for Cousins, Inc. and fellow defendants Cesare, Ernesto and Giuseppe Villico being in violation of the aforementioned federal and state laws, thereby defeating a defense motion to dismiss Diaz’s allegations for failure to state a claim.

According to Diaz’s complaint, defendant Cousins operates a restaurant known as “J&J South Philly Pizza” in Philadelphia. Diaz worked at the restaurant for approximately three years prior to November 2015, as both a laborer and cook, in addition to working with shipments from various vendors.

Diaz stated he “typically worked approximately 65 to 70 hours per week, and he alleges he “never received overtime premium compensation for any hours worked over 40 per week.” Diaz contended Cousins’ failure to pay overtime compensation violates the FLSA and PMWA, while the defendants responded with a motion to dismiss for failure to state a claim.

Pappert explained the FLSA mandates an employer must pay an employee a specified minimum hourly wage, plus time-and-a-half for any hours worked above 40.

“To state a claim that an employer violated the FLSA’s overtime compensation requirement, a plaintiff must first allege that ‘an actionable employer-employee relationship’ existed. The plaintiff must then establish that he is an employee covered by the FLSA’s overtime wage provisions. Coverage can be established if an employee is ‘engaged in commerce or in the production of goods for commerce’ or if the employer is an “enterprise engaged in commerce,” Pappert said.

Pappert added Cousins accused Diaz of “failing to include sufficient factual allegations that he was engaged in interstate commerce and that he inaccurately stated the FLSA standard.”

“Cousins also argues that supplemental jurisdiction over Diaz’s PMWA claim should be declined because he did not sufficiently state a federal question for the Court to exercise original jurisdiction,” Pappert said.

However, Pappert stated Diaz had in fact made a valid case.

“Diaz has sufficiently alleged a plausible claim under the FLSA. He asserts that an employer/employee relationship existed because ‘for approximately three years prior to November 2015, defendants employed plaintiff at their Philadelphia restaurant and paid him an hourly wage.’ Diaz also sufficiently alleges facts to plausibly establish coverage of the employer/employee relationship under the FLSA,” Pappert said.

Pappert said while Cousins contended FLSA coverage “can only be established through the individual employee’s engagement in commerce”, FLSA coverage can in fact be established “through the individual employee or the enterprise” – and on this point, Diaz alleges “sufficient factual detail to plausibly establish coverage under the FLSA.”

“Diaz contends both that he ‘regularly received shipments from vendors such as Sysco who provided food and other supplies that had moved in commerce’ and that Cousins engaged in commerce – including receiving and preparing food that had moved in commerce – and asserts that its gross sales ‘exceed $500,000.’ Diaz has gone beyond a threadbare recitation of the statutory language and alleged sufficient facts to plausibly establish coverage by the FLSA as required by Iqbal,” Pappert commented.

Pappert went on to say Diaz also succeeded in stating a valid overtime claim under the FLSA.

“Diaz also alleges sufficient facts to state a plausible FLSA overtime claim. Davis v. Abington Mem’l Hosp. that “a plaintiff must sufficiently allege [forty] hours of work in a given work week as well as some uncompensated time in excess of the [forty] hours,” Pappert said. “Diaz satisfies this standard by stating, “Plaintiff worked approximately 65-70 hours during a typical week” and “never received overtime premium compensation for hours worked over 40 per week.”

The plaintiff is represented by Michael G. Hollander of Community Legal Services, in Philadelphia.

The defendants are represented by Michael D. Pomerantz of Marrone Law Firm, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-06620

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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