     15-2143
     Rivera v. Anjost Corp., Joseph Zaro

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of April, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PETER W. HALL,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       LOUIS RIVERA,
13                Plaintiff-Appellant,
14
15                    -v.-                                               15-2143
16
17       ANJOST CORPORATION, JOSEPH ZARO,
18                Defendants-Appellees.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Robert S. Powers, Law Office of
22                                             Robert S. Powers, North Babylon,
23                                             New York.
24
25       FOR APPELLEES:                        Michael J. Volpe, Adam G.
26                                             Possidente, Venable LLP, New
27                                             York, New York.
28

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Southern District of New York (Cedarbaum, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Louis Rivera appeals from the order of the United
 9   States District Court for the Southern District of New York
10   (Cedarbaum, J.) granting summary judgment in favor of his
11   former employers, defendants Anjost Corporation and Joseph
12   Zaro. Rivera alleges that defendants failed to pay overtime
13   wages as required by the Fair Labor Standards Act (“FLSA”),
14   29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”)
15   Article 19, § 650 et seq. The district court determined
16   that there was no dispute of fact as to Rivera’s status as
17   an exempt executive employee under the FLSA and NYLL. We
18   assume the parties’ familiarity with the underlying facts,
19   the procedural history, and the issues presented for review.
20
21        To be classified as an executive employee exempt from
22   the FLSA’s overtime requirements, the “employee’s work must
23   satisfy both a duties requirement and a salary requirement.”
24   Anani v. CVS RX Servs., Inc., 730 F.3d 146, 147 (2d Cir.
25   2013). As to the latter, the employee must be paid at least
26   $455 per week on a “salary basis.” 29 C.F.R.
27   §§ 541.100(a)(1), 541.600(a); see also 29 C.F.R.
28   § 541.602(a). Under the NYLL, Rivera must have been paid a
29   salary of at least $536.10 (before July 24, 2009) and
30   $543.75 (on and after July 24, 2009) per week. N.Y. Comp.
31   Codes R. & Regs. tit. 12, § 142-2.14(c)(4)(i)(e).
32
33       Rivera concedes that the duties requirement is
34   satisfied, but contends that he was not paid on a “salary
35   basis” because he received “differing amounts each week
36   based upon the number of days he worked.” Br. of Appellant
37   at 5. This argument lacks merit. The undisputed evidence
38   shows that Rivera always received regular weekly
39   compensation for five days (or less) of work per week.
40   Rivera introduced no evidence that he ever received less
41   than that standard weekly amount. Indeed, Rivera repeatedly
42   admitted that he was paid a salary, and admitted that he was
43   paid for sick, vacation, and personal days. Rivera was
44   provided additional compensation for weeks that he worked an

                                  2
 1   additional (sixth) day, in the amount of one-fifth his usual
 2   weekly pay.1 However, additional compensation for
 3   additional work does not impair exempt status. To the
 4   contrary:
 5
 6            [a]n employer may provide an exempt employee with
 7            additional compensation without losing the
 8            exemption or violating the salary basis
 9            requirement, if the employment arrangement also
10            includes a guarantee of at least the minimum
11            weekly-required amount paid on a salary
12            basis. . . . [T]he exemption is not lost if an
13            exempt employee who is guaranteed at least $455
14            each week paid on a salary basis also receives
15            additional compensation based on hours worked for
16            work beyond the normal workweek. Such additional
17            compensation may be paid on any basis (e.g., flat
18            sum, bonus payment, straight-time hourly amount,
19            time and one-half or any other basis), and may
20            include paid time off.
21
22   29 C.F.R. § 541.604(a). The same principle applies to the
23   NYLL. See Ramos v. Baldor Specialty Foods, Inc., 687 F.3d
24   554, 556 n.1 (2d Cir. 2012) (discussing “only the FLSA”
25   because “[t]he NYLL ‘. . . applies the same exemptions as
26   the FLSA’” (quoting Reiseck v. Universal Commc’ns of Miami,
27   Inc., 591 F.3d 101, 105 (2d Cir. 2010))). Rivera thus was
28   compensated on a salary basis, and was exempt from otherwise
29   applicable overtime provisions by virtue of his status as an
30   executive employee.
31
32        Rivera also invokes § 195(1) of the NYLL, which
33   establishes notice and record-keeping requirements. But
34   Rivera does not bring any claim against defendants for
35   failure to provide required wage notices; and the alleged
36   lack of a wage notice does not create a dispute of material
37   fact as to his salaried, exempt status.
38



         1
           For a week that Rivera worked seven days, he received
     extra pay in the amount of two-fifths his weekly
     compensation.
                                  3
1        For the foregoing reasons, and finding no merit in
2   Rivera’s other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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