District Judge Laura Taylor Swain


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After training plaintiff—from August to October 2014—under a June 20, 2014, agreement, FDM placed her as an FDM Consultant for a two-year term. Under an Oct. 20, 2014, Employment Agreement, she was treated as a W2 employee and compensated by a base pay of $23,000, and a daily bonus of $88 for an 8-hour day. Resigning from her FDM Consultant position shortly before her second year, plaintiff paid FDM a $20,000 “Termination Fee.” District court dismissed her lawsuit claiming minimum wage and overtime violations under the Fair Labor Standards Act and New York Labor Law. Applying the test in Glatt v. Fox Seachlight Pictures Inc., 811 F. 3d 528, it found plaintiff inadequately pleaded she was an employee under the FLSA or NYLL during her training. It further rejected her claim that the Termination Fee was an illegal kick-back that reduced her net wages below the minimum wage. The Oct. 20, 2014 Employment Agreement characterized the fee as liquidated damages for the agreement’s breach before completion of the two-year contracted consultancy period. Plaintiff’s FLSA and NYLL overtime claims were also dismissed. Her general allegations insufficiently pleaded that she worked more than 40 hours in any given week.