The following e-filed papers read herein: Notice of Motion, Memorandum of Law, and Exhibits Annexed 53-54, 57-64 Affirmation in Opposition and Exhibits Annexed 68-79 Reply Memorandum, Affirmation in Further Support, and Exhibits Annexed 80-85 DECISION AND ORDER Upon the foregoing papers, plaintiff Bong Chul Kim (“plaintiff”) moves for summary judgment on his claim for unpaid overtime. Plaintiff seeks recovery for violations of the overtime provisions of the Fair Labor Standards Act (“FLSA”) and related provisions of New York law. Background Plaintiff began working for defendants as a Store Produce Manger in April 2005. From at least the start of the year 2012 through July 2014, plaintiff’s hours were tracked by defendants using a punch-in/punch-out system. Plaintiff contends that from July 2012 through July 2014, defendants failed to compensate him for overtime because he was paid based only on the scheduled shift start and end times, and not the hours actually indicated by his punch-in and punch-out times. Plaintiff asserts that defendants’ rounding scheme resulted in his hours being rounded down, always in defendants’ favor; for example, on July 30, 2012, plaintiff’s shift lasted ten hours, excluding one hour (unpaid) for lunch break and plaintiff punched-in at 6:47 am and punched-out at 6:06 pm. Plaintiff alleges that for July 30, 2012, he was paid for that day eight hours in straight time and two hours in overtime; he seeks to be paid for an additional 19 minutes in overtime for that day (the sum of the 13 minutes from 6:47 am to 7 am, and the 6 minutes from 6 pm to 6:06 pm). After adding all the minutes for the other days for which plaintiff asserts he was not paid, plaintiff seeks a total payment of $4,585.75 in overtime compensation, plus the statutory damages equal to 100 percent of the outstanding amount, plus prejudgment interest, plus $21,118.75 in attorney’s fees and $616.44 in costs. Defendants oppose plaintiff’s motion contending that material issues of fact remain regarding 1) whether plaintiff was working during the pre-shift and post-shift minutes for which he seeks compensation; 2) whether defendants had actual or constructive knowledge of any such work; and 3) whether plaintiff’s pre- and post-shift time was spent performing his principal activities or activities that were integral to his principal activities or activities that were integral to his principal activities — a prerequisite for the time to be compensable. Discussion 12 NYCRR §142-2.2 (“Overtime rate”) provides, in relevant part, that “an employer shall pay an employee for overtime at a wage rate of one and one-half times the employee’s regular rate in the manner and methods [as] provided in…the Fair Labor Standards Act of 1938, as amended…” (emphasis added). 29 CFR §785.48 (“Use of time clocks”) provides, in relevant part, that: “(a) Differences between clock records and actual hours worked. Time clocks are not required. In those cases where time clocks are used, employees who voluntarily come in before their regular starting time or remain after their closing time, do not have to be paid for such periods provided, of course, that they do not engage in any work. Their early or late clock punching may be disregarded. Minor differences between the clock records and actual hours worked cannot ordinarily be avoided, but major discrepancies should be discouraged since they raise a doubt as to the accuracy of the records of the hours actually worked” (emphasis added). To establish liability under the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”) on a claim for unpaid overtime, the employee has the burden of proving that he or she performed work for which he or she was not properly compensated, and the employer had actual or constructive knowledge of that work. See Kuebel v. Black & Decker Inc., 643 F3d 352, 361 [2d Cir 2011]; O’Donnell v. Jef Golf Corp., 173 AD3d 1528, 1529 [3d Dept 2019]. “The [United States] Supreme Court has since established that ‘any activity that is “integral and indispensable” to a “principal activity” is itself a “principal activity” under §[254(a)],’ and thus compensable under the FLSA even if performed before or after the regular shift.” Kuebel v. Black & Decker Inc., 643 F3d at 359 [2d Cir 2011] citing IBP v. Alvarez, 546 US 21, 37 [2015]. “Whether an activity is ‘integral and indispensable’ to an employee’s principal activities is a fact-dependent inquiry.” Kuebel v. Black & Decker Inc., 643 F3d at 359 citing Reich v. NYC Transit Auth., 45 F3d 646, 650 [2d Cir. 1995]. “[T]his regulation means that employees who clock in early do not have to be paid so long as they are not working” (Weil v. Metal Technologies, Inc., 925 F3d 352, 357 [7th Cir 2019] [internal quotation marks omitted]). “[A]n employee can clock in, grab a coffee, read the newspaper, and then start working once his scheduled shift begins — and an employer wouldn’t have to compensate him for that time” (id.). Stated another way, “time spent clocked in does not automatically equate to time spent working, and only time spent working is compensable” (Kolish v. Metal Technologies, Inc., 2018 WL 1566810, *9 [SD Ind 2018]). To succeed on his unpaid overtime claim, plaintiff must offer some evidence to establish that he spent time engaged in work for which he was not compensated. As defendants correctly point out, plaintiff has failed to submit an affidavit or other evidence1 indicating that he actually worked during the “gap” periods; that is, the periods between punching-in and the start of a scheduled shift, or between the end of a scheduled shift and punching-out (see Weil, 925 F3d at 357-358 [7th Cir 2019] ["Because the plaintiffs failed to provide evidence that employees were actually working without compensation --- not simply that they were clocked in for over 40 hours --- plaintiffs lack…both a theory of liability and proof of any injury."] [internal quotation marks, citation, and footnote omitted]; compare Schneider v. Union Hospital, Inc., 2016 WL 6037085 [SD Ind 2016] [plaintiffs testified that they punched in at the beginning of their shifts and immediately started working, and the district court credited that testimony]; Ramirez v. Riverbay Corp., 39 F Supp 3d 354, 367 [SD NY 2014] ["(T)he record supports the conclusion that the plaintiffs were working during pre- and post-shift on-the-clock 'gaps.' All nine plaintiffs whose deposition transcripts were submitted in connection with this motion testified that they perform work-related duties when they clock in early or clock out late."] [footnotes omitted]). Conclusion Based on the foregoing and after oral argument, it is ORDERED that plaintiff’s motion for summary judgment is denied; and it is further ORDERED that defendants’ counsel shall electronically serve a copy of this Decision and Order with notice of entry on plaintiff’s counsel and shall electronically file an affidavit of said service with the Kings County Clerk. This constitutes the Decision and Order of the Court.
