In Vega v. CM & Assoc. Constr. Mgt., LLC, 2019 NY Slip Op 06459 (App. Div. 1st Dept. Sept. 10, 2019), the court affirmed the denial of defendant’s motion to dismiss plaintiff’s claims brought under the New York Labor Law.
Here, plaintiff alleges that she was employed by defendant as a manual laborer, and during that time, she was paid wages on a biweekly basis, in violation of Labor Law § 191(1)(a), which requires weekly payment of manual workers. She sought to recover liquidated damages, as well as interest and reasonable attorney’s fees, pursuant to Labor Law § 198(1-a).
Defendant argued that Labor Law § 198 provides remedies only in the event of nonpayment or partial payment of wages, but not in the event of late payment of wages. The court disagreed:
Contrary to defendant’s argument, the term underpayment encompasses the instances where an employer violates the frequency requirements of section 191(1)(a) but pays all wages due before the commencement of an action. “In the absence of any controlling statutory definition, we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts’ in determining the meaning of a word or phrase” (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479-480 ). The word underpayment is the noun for the verb underpay; underpay is defined as “to pay less than what is normal or required” (Merriam-Webster’s Collegiate Dictionary 1364 [11th ed 2012]). The moment that an employer fails to pay wages in compliance with section 191(1)(a), the employer pays less than what is required.
We reject defendant’s implicit attempt to read into section 198(1-a) an ability to cure a violation and evade the statute by paying the wages that are due before the commencement of an action [FN1]. The employer may assert an affirmative defense of payment if there are no wages for the “employee to recover” (Labor Law § 198[1-a]). However, payment does not eviscerate the [*2]employee’s statutory remedies.
The court also, inter alia, held that “even if Labor Law § 198 does not expressly authorize a private action for violation of the requirements of Labor Law § 191, a remedy may be implied since plaintiff is one of the class for whose particular benefit the statute was enacted, the recognition of a private right of action would promote the legislative purpose of the statute and the creation of such a right would be consistent with the legislative scheme[.]”