Practice point: While there is no private right of action against corporate officers for violations of Labor Law's Article 6, plaintiffs brought suit against the individual defendant as an
employer, not as a corporate officer, and so their claims were not precluded. Plaintiffs also were allowed to assert claims against him for violations of the New York Minimum Wage Act and its implementing regulations, including 12 NYCRR 142-2.2. Under the
Act, the individual defendant may be liable for failure to properly compensate plaintiffs if
he was their employer, or if plaintiffs show that the corporate veil should
be pierced. Here, plaintiffs alleged in their complaint that,
during their employment with the corporation, the individual defendant exercised control of the day-to-day operations and that he was their employer under New York
law. They also submitted a plaintiff's affidavit stating that the individual defendant hired and fired employees, supervised and controlled
employees' work schedules, determined the method and rate of pay, kept
employment records, and approved vacations.
Student note: At this pre-answer
juncture, and upon consideration of the economic realities of the case, plaintiffs have stated a cause of action against the individual defendant as an employer within the meaning of Labor Law §§ 190(3) and
651(6). Accordingly, plaintiffs were not required to
show that the corporate veil should be pierced or allege that the individual defendant exercised complete domination and control over the corporation.
Case: Bonito v. Avalon Partners, NY Slip Op 03775 (1st Dept. 2013).
Here is the decision.
Monday's issue: Tolling the statute of limitations in a legal malpractice action.
