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Rosario v. Icon Burger Acquisition LLC

Time Value of Money Theory Over Biweekly Pay Provides Eatery Workers Article III Standing

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MEMORANDUM & ORDER Presently before the Court is Defendant’s Motion to Dismiss Plaintiffs’ Second Amended Complaint (hereafter “SAC”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Mot. at 1, ECF No. 29.) Defendant argues: (1) that Plaintiffs lack Article III standing because they have failed to specify a particularized and actual injury; and (2) that New York Labor Law (“NYLL”) §191 does not afford a private right of action for untimely wages that have been paid in full. (Support Memo, ECF No. 32, at 1-2.) If its motion is not granted, Defendant seeks an order pursuant to the Federal Arbitration Act, 9 U.S.C. §§3-4, compelling Plaintiff Rosario to individually arbitrate his claims. (Id.) For the reasons that follow, Defendant’s Motion to Dismiss is DENIED. BACKGROUND The Court presumes familiarity with the facts underlying this case which are detailed in the Court’s earlier decision. See Rosario v. Icon Burger Acquisition LLC, No. 21-CV-4313, 2022 WL 198503, at *1-2 (E.D.N.Y. Jan. 21, 2022) (hereafter “Rosario I”).1 Nevertheless, the Court provides the following summary for the reader’s convenience.2 “Defendant owns a chain of hamburger restaurants that employs thousands of manual workers in the State of New York.” (SAC, ECF No. 26, 10.) Plaintiffs were each employed by Defendant in various capacities; however, all Plaintiffs aver that twenty-five percent of their job responsibilities involved manual labor. (Id.

11-13.) Plaintiffs allege that under NYLL, Article 6, §191, Defendant was required to pay its manual workers “on a weekly basis unless they receive[d] an express authorization [to the contrary…from the New York State Department of Labor Commissioner." (Id. 2.) Plaintiffs allege that Defendant did not receive such authorization and thus violated NYLL §191 by paying its manual workers biweekly instead of weekly. (Id.

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