Turkish baklava and baked goods chefs suing for overtime pay do not fall under the Fair Labor Standards Act's creative professional exemption because their tasks require “consistency and precision, not innovation and imagination,” a Brooklyn federal judge has ruled.

The exemption defense put forward by Gulluoglu, an entity that sells Turkish food from multiple storefronts, including in Brighton Beach, Brooklyn and Astoria, Queens, must fail because “although defendants adequately demonstrate that plaintiffs were experienced and talented [chefs], defendants do not demonstrate how plaintiffs' experience and talent were applied to an innovative and imaginative task,” wrote Chief Judge Dora Irizarry, sitting in the Eastern District of New York, in a decision that denied summary judgment to the defendants.

Irizarry's opinion adopted the May 10 report and recommendation of U.S. Magistrate Judge Ramon Reyes of the Eastern District of New York. Reyes' report had concluded both that genuine issues of material fact existed, so as to prevent summary judgment, and that defendants did not carry their burden in asserting the creative professional exemption, an affirmative defense.

Gulluoglu and co-defendant Ercan Karabeyoglu, a manager and part-owner of Gulluoglu, objected to much of Reyes' report and recommendation, meaning that Irizarry was required to give the objected-to portions a de novo—or “clear error”—review.

She found Reyes' report and recommendation to be “thorough and well-reasoned.”

“Exemptions for the FLSA are to be narrowly construed and the defendant bears the burden of proving that its employees fall within the exemption,” Irizarry wrote in a Sept. 30 opinion, adding, “Defendants did not sell their baklava and other baked goods in five-star or gourmet establishments, and plaintiffs, tasked with preparing baklava and other enumerated Turkish baked goods to be sold by third parties, did not have the autonomy to design unique dishes and menu items.”

Plaintiffs Suleyman Eren and Tuncay Sinan, both former baked goods chefs for Gulluoglu, sued the Turkish food seller and wholesaler in 2015, claiming that they had worked overtime for years but had not been compensated properly for the extra work under the FLSA and related New York Labor Law provisions. They asked for declaratory relief, unpaid overtime, spread-of-hours compensation under the NYLL and liquidated damages, among other relief.

Eren alleged, for example, that he worked as a baklava baker for defendants from 2005 to 2014, often working 60 hours weeks and starting at 5 a.m., but only getting paid a fixed weekly salary of $700 regardless.

Reyes, in his report and recommendation, noted Eren's skill and training, writing that before coming to the United States he had served as an apprentice to a baklava maker in Turkey for seven years.

But Reyes also pointed out that deposition testimony showed that Eren never prepared baklava from scratch for Gulluoglu, but rather would heat and apply a “sweet syrup” to frozen baklava imported from Turkey. And beginning in 2010, the baklava was imported pre-cooked, with the syrup glaze already applied, Reyes said.

Sinan also did not make the cakes he prepared from scratch, Reyes added, but instead defrosted imported ones and added cream and ornaments.

“Courts have been reluctant to apply this definition [for the exemption] to all but the most extraordinary chefs,” Reyes also wrote in explaining his denial of summary judgment.

Irizarry agreed.

Defendants argue that “plaintiffs' talent alone should trigger the exemption,” she wrote. “The regulatory language makes clear that an employee talented at an unimaginative and unoriginal task does not fall within the exemption.”

Irizarry also noted, “Defendants have pointed to no case, and this court cannot locate one, in which a court applied the creative professional exemption to a chef or a baker.”

Louis Pechman, of the Pechman Law Group, represented the plaintiffs. He said on Tuesday, “We thought that defendants were nuts to argue that a baklava maker was a 'creative professional' and thankfully Judge Irizzary agreed. Our clients were entitled to overtime pay and we look forward to establishing their damages at trial.”

Richard Soto, a lawyer with Advocates For Justice, represented the defendants. He could not be reached for comment.