In 2005, Lisa Rosenbaum was hired as a secretary, a non-exempt position, at Bais Yaakov Drav Meir, a private elementary school in New York.
On March 18, 2020, the School temporarily closed due to the COVID-19 pandemic. The School paid Rosenbaum her weekly wages for the work weeks ending on March 20 and March 27, 2020. On April 5, 2020, the School did not pay Rosenbaum, so she contacted the School. The School then paid some but not all of her wages for that week. On April 21, 2020, Rosenbaum filed for unemployment for the weeks of April 10 and 17. On April 26, 2020, Rosenbaum worked at the School from 9:00 A.M. to 4:00 P.M., handing out books to students and taking phone calls from parents to coordinate remote learning.
The School’s bookkeeper told Rosenbaum that the School was working to correct the payroll issues to provide Rosenbaum with her outstanding wages. On May 8, 2020, the School provided Rosenbaum with her past-due wages but did not include a check for her wages due for the workweek ending on May 8, 2020, and failed to remit the paychecks due on May 15 and May 22. Rosenbaum contacted the School to complain about her unpaid wages. The School said they would deliver the outstanding wages and told Rosenbaum that the outstanding wages would be paid less the amount Rosenbaum received through unemployment.
On June 8, 2020, after still not receiving her outstanding wages, Rosenbaum called the School and the School administrator berated Rosenbaum about her complaints regarding her unpaid wages, told her that she was “unemployed herself” as a result of her complaints, and ultimately terminated her employment.
In September 2020, Rosenbaum filed suit asserting retaliation under the Fair Labor Standards Act of 1938 (FLSA). In October 2020, after the School was served with the summons and complaints, the School’s bookkeeper called Rosenbaum and encouraged her to settle the matter in Rabbinical Court. Rosenbaum said she was proceeding in secular court. Allegedly, the bookkeeper threatened Rosenbaum and reminded her that she had “children to marry off,” a warning suggesting that Rosenbaum’s pursuit of her claims in secular court would result in other people in the community refusing to marry her children. A couple of days later, the School administrator emailed Rosenbaum to schedule a time for the parties to appear before the Rabbinical Court. Rosenbaum’s counsel notified the School that she declined to consent to appear in Rabbinical Court.
In November 2020, the School filed a new action in the Rabbinical Court, which contained a note that Jewish individuals are forbidden to litigate in secular courts without the consent of the Rabbinical Court.
The School filed a motion to dismiss in secular court, arguing that Rosenbaum’s claims about payment of wages fail under the FLSA and New York law because Rosenbaum did not perform any work during the relevant period; and her retaliation claims fail under the FLSA and New York law because Rosenbaum was not involved in any protected activity.
Concerning the prompt payment of wages, the School argued that once the School closed due to the pandemic, Rosenbaum only performed work on one day, April 26, 2020. The Court noted that the School is required to pay employees at least the minimum wage in any workweek where they perform work. The FLSA does not specify when the wage must be paid, but courts have long interpreted a prompt payment requirement, and late wages are considered a form of unpaid wages. The Court found that Rosenbaum’s complaint sufficiently plead facts in support of her claims, in that it detailed how the School missed payments on multiple occasions without any legitimate business reason, and these late or missed payments were unreasonable.
For her retaliation claim, Rosenbaum argued that the School violated the FLSA’s and New York law’s anti-retaliation provisions after she filed the instant action. The Court found that Rosenbaum sufficiently plead that the School failed to promptly pay her wages, in violation of the FLSA, that Rosenbaum subsequently instituted this action, and, as a result, the School initiated adverse employment actions towards Rosenbaum. Rosenbaum’s complaint states that she informed the School she was pursuing the FLSA claims in federal court, and the School terminated her employment and withheld her outstanding wages owed. The School threatened her family’s future within the Jewish community by proceeding with the action in Rabbinical Court, which Rosenbaum argues will likely have the effect of permanently tarnishing her reputation within the Jewish community. The Court found that Rosenbaum alleged sufficient facts to assert a plausible retaliation claim under the FLSA and New York law.
The Court denied the School’s motion to dismiss.
Rosenbaum v. Meir (E.D.N.Y., Mar. 1, 2023) 2023 WL 2305960.
Note: This case shows the importance of timely paying wages to employees and is a reminder that employees can bring retaliation claims against a school under the FLSA.