MEMORANDUM AND ORDER Plaintiffs, former deliverymen with J. Kings Food Services Professionals, Inc. (“JKF”), a food distributor, brought this claim for overtime under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §207(a)(1) and the New York Labor Law (“NYLL”), for defective wage notices under the New York Labor Law, and for retaliation under the New York Labor Law against John Barclay and Michael Opinski. Defendants now move for summary judgment on all of these claims. Plaintiffs oppose and cross-move for summary judgment on their overtime claim, and defendants oppose plaintiffs’ cross-motion. Of central importance to these cross-motions is the question of whether the “Motor Carrier Act” exemption to the FLSA’s overtime rules apply to these employees. For the reasons stated below, defendant’s motion for summary judgment is granted in part and denied in part, and plaintiffs’ motion for partial summary judgment is granted as to Quartararo and denied as to Barclay, Keresztes, and Opinski. BACKGROUND I. Plaintiffs’ Employment with JKF Defendant J. Kings Food Service Professionals, Inc. is a New York company, with its principal office in Holtsville, New York. (Pl.’s 56.1 at 1). Defendant John King (“King”) is the founder, Chief Executive Officer (“CEO”), and Chief Customer Officer of J. Kings. (King Aff. (Doc. No. 69) at 1.) Beginning on July 8, 2010, when JKF switched from paying an hourly rate to paying its drivers by the day, JKF did not pay any of the plaintiffs the statutory overtime rate of time-and-a-half for any hours they worked over 40 per week. (Compl
9-10.; Def.’s Resp. To Pl.’s 56.1 (Doc. No. 67) at 10.) a. Terms of Employment, Weekly Hours and Job Titles of the Plaintiffs Quartararo worked at JKF from 2002 to 2016. (Quartararo Aff. (Doc. No. 62) at 2); (Def.’s Resp. to Pl.’s 56.1 at 20.) Quartararo claims that from 2011 to 2016 he regularly worked Monday through Saturday and averaged 60 hours per week. (Quartararo Aff. At 5.) JKF’s records show that Quartararo worked variable weekly hours during this period, though they do not suggest an average amount. (Def.’s Ex. Q (Doc. No. 61-4).) Keresztes worked at JKF from July 5, 1999, to July 29, 2016. (Keresztes Aff. (Doc. No. 64) at 2); (Def.’s Resp. to Pl.’s 56.1 at 46.) Keresztes claims that he regularly worked six days per week, Monday through Saturday, and averaged 60 hours per week. (Keresztes Aff. 3.) JKF’s records show that he usually worked less than 60 hours per week. (Def.’s Ex. M (Doc. No. 61).) Barclay worked at JKF from August 1997 until August 2016, though it is disputed whether he remained employed until November 2016. (Def.’s Resp. to Pl.’s 56.1 at 52.) Barclay claims that he regularly worked six days per week and averaged 50 to 55 hours per week, inclusive of an additional hour per day spent doing pre — and post-shift work. (Barclay Aff. (Doc. No 65) at 9-11.) JKFs records indicate that he typically worked less than 50 hours per week. (Def.’s Ex. K (Doc. No. 60-11).) Opinski worked at JKF from September 1996 to July 9, 2015. (Opinski Aff. (Doc. No. 63) at 3.) He claims he worked an average of 62 hours per week. (Id. at 5.) JKF’s records show that he rarely worked over 60 hour per week. (Def.’s Ex. O (Doc. No. 61-2).) Keresztes, Quartararo, Barclay, and Opinski all claimed that they were not permitted breaks “for meals or any other purpose.” (Keresztes Aff. at 2; Quartararo Aff. at 7; Barclay Aff. at 13-15; Opinski Aff. at 6.) However, Opinski contradicted this point in his deposition, testifying employees could stop at their discretion for meal breaks. (Opinski Dep. (Doc. No. 60-4) at 113:21-24.) Each plaintiff twice signed a “Notice and Acknowledgment of Pay Rate and Payday” pursuant to NYLL §195 (“195 Notice”): once during 2013, and once again at the beginning of 2014. (Pl.’s Resp. to Def.’s 56.1 at
