The Volokh Conspiracy
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In Black v. Cakor Restaurant, Inc., decided Thursday by Judge Valerie Caproni (S.D.N.Y.), plaintiff, a bartender at restaurants owned by defendants, claimed that she was paid less than what employment law requires:
Plaintiff was "ostensibly employed as a tipped worker," but her non-tipped duties exceeded the lesser of 20% or two hours of each workday. Plaintiff further alleges that Defendants paid her and all other tipped employees at a rate lower than the required tip-credit rate. Plaintiff alleges that she consistently worked well over 40 hours per week and was paid a fixed salary of $600 per week from approximately March 2018 through September 2019, then $300 per week from November 2019 through April 2021. Plaintiff alleges that she was not required to keep track of the time she worked, and that Defendants did not keep track of the time Plaintiff worked.
Plaintiff sued, and claimed that at some point defendants started to "incessantly" call her and her husband, and also sent her husband a photograph and the text message, "Are you this person [in the screenshot] … I have taken out a video and have reported you to immigration, [Plaintiff] may have married you for money."
The court concluded that plaintiff adequately alleged that this was illegal retaliation under the federal Fair Labor Standards Act and the New York Labor Law; the "threat to report Plaintiff's husband to immigration authorities," which could subject "Plaintiff and her husband … to criminal and administrative action," "constitutes an adverse employment action within the meaning of the FLSA." And the court court therefore preliminarily enjoined defendants "from contacting or communicating with, or causing anyone else from contacting or communicating with, in any way, any local, state, or federal government official or agency, or any staff member of any government official or agency," including immigration authorities and other federal and state law enforcement, about plaintiff's or her husband's immigration status:
Plaintiff alleges that, absent injunctive relief, she and her husband risk criminal prosecution and administrative action, which could deter her from enforcing her rights under the FLSA and the NYLL. The threat also has the potential to "chill" other present and former employees from seeking to enforce their rights against Defendants or testifying in support of Plaintiff's claims….
Defendants argue that granting Plaintiff injunctive relief will result in an unconstitutional restraint on Defendants' First Amendment rights. But a threat that would cause "an ordinary, reasonable recipient who is familiar with the context" of the communication to "interpret it as a threat of injury" is not protected by the First Amendment, and immigration-related threats fall within this category of unprotected speech. Because Defendants' immigration-related threats to Plaintiff and her husband are not protected by the First Amendment, a preliminary injunction against such threats would not implicate Defendants' First Amendment rights….
Finally, granting a preliminary injunction would be in the public interest. The purpose of the antiretaliation provisions of the FLSA and NYLL is to provide for effective enforcement of wage-and-hour laws by enabling "employees [to feel] free to approach officials with their grievances" Accordingly, preventing further retaliation by Defendants helps enforce the FLSA and NYLL and, consequently, serves the public interest.