Labor & Employment Law Daily Wrap Up, WAGE-HOUR—OVERTIME—E.D.N.Y.: Pizzeria must face trial on former cook’s overtime, spread-of-hour, retaliation claims, (Jun 24, 2025)

By Marjorie Johnson, J.D.

He claimed that the restaurant paid him his regular rate in cash for overtime hours worked and didn’t keep records of overtime payments, and that he was effectively fired for filing a lawsuit.

A former cook at a New York pizzeria who claimed he often worked over 40 hours a week but was paid his regular rate in cash for many of those extra hours will get a trial on his unpaid overtime claims under the FLSA and New York Labor Law (NYLL). Because triable issues also existed as to whether he was discharged or voluntarily resigned and whether he was paid extra money for his shifts that last over ten hours, his retaliation and spread-of-hours claims also survived the employer’s and owner’s partial motion for summary judgment, a federal district court in New York ruled (Rivera v. Stony Brook Pizza, LLC, No. 2:24-cv-01260-HG (E.D.N.Y. Jun. 20, 2025)).

Underpaid overtime in cash. The employee, who worked at the pizzeria since 2017, claimed that he was paid by check for his 40-hour week but paid in cash for overtime work. He also testified that he regularly worked over 40 hours per week, but that instead of being paid his overtime premium for many of those extra hours he was paid his regular rate. The employer partially contested this but did not provide any evidence of any overtime payments since it did not maintain cash receipts or a cash ledger.

No “spread of hours” pay. The employee also testified that from 2017 through the end of 2022, he regularly worked 12-hour shifts on Tuesdays and 11-hour shifts on Wednesdays but was not paid extra money for those over 10-hour shifts.

Files suit. The employee initiated this FLSA and NYLL action against the employer and its owner on February 19, 2024, and the owner testified that shortly thereafter he received a solicitation letter from an attorney with the cover page of the complaint.

Dispute over how employment ended. On Friday, February 23, the owner’s son (who also worked at the restaurant) confronted the employee about the suit, asking whether he was suing his father. The employee allegedly responded that he could not discuss it, handed over the restaurant keys and instructed him to give them to his dad, and said he was “leaving.” The son claimed he then called his father to inform him of the employee’s resignation so that they could find someone to cover his shift the next day and was “shocked” when he showed up on Saturday.

In contrast, the employee claimed that after confronting him about the lawsuit, the son was upset and did not speak to him for most of the day. The employee then returned the keys because he believed the son intended to fire him for suing the restaurant and his father. He testified that because he did not quit, he returned to work the next day and discovered he had been replaced. The son asked why he was there and stated, “if you drop the case, you can continue working here,” but “if you still have a case against us, you cannot work here anymore because I don’t feel comfortable having you here.” For his part, the owner claimed that his son had no authority to hire or fire anyone, and that he only learned about the lawsuit after the employee simply “stopped coming to work.”

Adverse action? The court rejected the employer’s contention that the employee’s retaliation claims failed since he voluntarily resigned, concluding there was “sharply conflicting evidence.” According to the employee, the owner’s son terminated him, replaced him, and refused to give him his job back unless he dismissed the suit. Under this version of events, he certainly suffered an adverse employment action as the risk of termination surely would discourage a reasonable employee from commencing a FLSA action. However, under the son’s version of events, he suddenly resigned, so the pizzeria was forced to arrange for coverage. And according to the owner, the son didn’t even have the authority to terminate him, and he simply “stopped coming to work.” These circumstances, if true, would not establish an adverse employment action.

Causation. The parties also presented conflicting testimony surrounding causation. The employee’s claim that the son fired him, replaced him, and made his return offer contingent on his withdrawing his lawsuit was direct evidence of retaliatory animus which, combined with the owner’s testimony that he received a solicitation letter notifying him of the lawsuit, would allow an inference of causation. And while the owner claimed he was not aware of the lawsuit until after the employee “stopped coming to work,” the credibility of that statement was for a jury to decide. In sum, this kind of “he said, she said” dispute could not be resolved on summary judgment.

Spread-of-hours claim. The court also denied summary judgment on the employee’s spread-of-hours claim under the NYLL, which provides that on each day that an employee’s “spread of hours” exceeds ten, the employer must provide one additional hour of pay at the basic minimum hourly rate. Here, the employee claimed that worked over ten-hour shifts on Tuesdays and Wednesdays and limited his spread-of-hours claim to those days. And while the employer disputed the length of his shift on those days, it did not challenge his testimony that he was not paid extra money if he worked more than ten hours in a day.

Overtime claims. The employee’s overtime claims under both the FLSA and NYLL also advanced to trial. He testified that he worked over 40 hours per week, but the employer often only paid him his regular rate in cash for the extra hours rather than the appropriate overtime rate. Moreover, the employer conceded that a factual dispute existed as to whether he was paid his full overtime compensation and failed to offer any evidence in its favor as it did not maintain records of overtime payments.

The case is No. 2:24-cv-01260-HG.

Judge: Gonzalez, H.

Attorneys: Keith E. Williams (The NHG Law Group) for Francisco Rivera. Diana Y. Seo (Seo Law Group) for Stony Brook Pizza, LLC.

Companies: Stony Brook Pizza, LLC

Cases: Retaliation WageHour Overtime StateLawClaims NewYorkNews