On Tuesday, a plaintiff suing fabric retailer Jo-Ann Stores survived the company’s motion to dismiss, according to an order filed in the Western District of New York. The plaintiff, Wendy Rath, brought her putative class action alleging that Jo-Ann violated New York labor law by paying their employees on a bi-weekly basis, rather than weekly.
Defendants requested dismissal based on the assertions that “New York Labor Law does not create an express or implied right of action for delayed payments of salary,” that “New York Labor Law addresses a right of action only for alleged underpayment of salary and does not apply when a manual worker is untimely paid biweekly”, and that therefore “liquidated damages for nonpayment or underpayment claims are recoverable by the employee, but a delayed payment claim is not.”
In analyzing the arguments, the court found that since there is no ruling precedent for a case of this nature in the New York Court of Appeals, the court must predict how that court would rule on the matter. With that in mind, the court ruled that the defense’s arguments on all three matters did not reflect precedent set forth in other courts, and believes that the plaintiffs’ allegations are worthy of further consideration under New York labor law.
The defendant will have 28 days to file an amended answer, but at this time the court holds that there is an implied right of action for untimely pay since it qualifies as a form of underpayment, and that this merits a request for liquid damages by the plaintiffs.
The plaintiff is represented by Connors LLP and Bursor & Fisher. The defendant is represented by Harter Secrest & Emery.
