Zachary v. BG Retail LLC

OPINION AND ORDER Plaintiff Tova Zachary brings this putative class action against her former employer, defendant BG Retail, LLC, alleging defendant failed to pay her and the putative class wages on a weekly basis in violation of Section 191(1)(a) of the New York Labor Law (“NYLL”), and failed to provide her and the putative class a wage notice at the time of hire in violation of Section 195(1)(a) of the NYLL. Now pending is defendant’s motion to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6), or, alternatively, to strike the class allegations pursuant to Rule 12(f). (Doc. #19). For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §1332(d). BACKGROUND For the purpose of ruling on the motion, the Court accepts as true all well-pleaded factual allegations in the amended complaint and draws all reasonable inferences in plaintiff’s favor, as summarized below. Defendant allegedly operates “branded retail establishments” in New York State, such as Famous Footwear and Naturalizer stores, at which it employs manual workers. (Doc. #18 (“Am. Compl.”) 4). Plaintiff contends she worked for defendant from approximately February through November 2018 at its Central Valley, New York, location. Plaintiff claims her job duties included “stocking shelves, moving inventory, receiving, unpacking, organizing, storing, packaging, and labeling merchandise, and generally remaining on her feet for the entirety of her shift.” (Id. 8). Because allegedly more than twenty-five percent of plaintiff’s workday involved performing manual tasks, she claims she is considered a “manual worker” within the meaning of NYLL Section 190(4). Defendant purportedly paid plaintiff and similarly situated manual workers1 biweekly; i.e., every other week. As a result, plaintiff alleges defendant violated NYLL Section 191, which requires employers to pay manual workers on a weekly basis, unless the New York State Department of Labor authorizes the employer to pay less frequently. NYLL §191(1)(a)(i), (ii). Plaintiff asserts she was injured by being “temporarily deprived of money owed to her.” (Am. Compl. 9). As a result, she allegedly “could not save, invest, earn interest on, or otherwise use these monies that were rightfully hers,” and was prevented from purchasing groceries, paying rent and utility bills, and making other routine payments “to provide for [her] basic needs.” (Id.