HARPER, J. The plaintiffs, Kleber Gonzalo Loja Lasso, as administrator of the estate of the decedent, Luis Albaro Ortega Ortega (Ortega), and Marcia Del Lourdes Gualan Coronel (Coronel), appeal from the judgment of the trial court granting the motion of the defendant O & G Industries, Inc. (O & G), for summary judgment as to counts four and five of the revised com- plaint, which alleged claims against O & G for the wrongful death of Ortega pursuant to General Statutes § 52-555 and for loss of consortium on behalf of Coronel, who was married to Ortega at the time of his death.1 On appeal, the plaintiffs claim that the court improperly granted the motion for summary judgment filed by O & G because (1) issues of material fact existed concerning O & G’s responsibility for ensuring safe workplace prac- tices with respect to certain tree removal work per- formed by the defendant Valley Tree and Landscaping, LLC (Valley Tree), and (2) the court erred in failing to find, pursuant to a construction contract between O & G and the borough of Naugatuck (borough), that O & G owed a duty of care to Valley Tree and, hence, to Ortega. The plaintiffs also claim that the court improp- erly rendered summary judgment as to Coronel’s loss of consortium claim against O & G, which was derivative of the negligence claim against O & G. We disagree and affirm the judgment of the trial court. The record before the court, viewed in the light most favorable to the plaintiffs, reveals the following relevant facts and procedural history. In 2011, O & G was awarded a contract with the borough to act as construc- tion manager for a project to renovate Naugatuck High School in 2012 (renovation project). In 2015, the build- ing committee for the borough determined that addi- tional borough funds could be used to remove trees near an upper parking lot for aesthetic purposes and to improve the viewing of fields for sporting events. The parking lot and trees to be removed were adjacent to, but not a part of, Naugatuck High School grounds where the renovation project was taking place. Two members of the building committee viewed the site to determine which trees to remove, and those trees were flagged by the building committee members. At the request of the building committee, Joseph Vetro, O & G’s project director, solicited bids from two companies and went to the site with representatives from those companies in order to point out the trees that were flagged for removal by the building committee. After the bids were submitted, the building committee voted to award the tree removal work to Valley Tree, issued a purchase order to Valley Tree for the tree removal work and sent an e-mail to the owner of Valley Tree accepting its bid. On December 16, 2015, Ortega was working for Valley Tree operating a mini excavator to remove trees from the upper parking lot area. The mini excavator had no door and there was no glass in the front and right-hand side windows. While performing that work, Ortega stood up to remove some branches near the right side window when the boom arm of the mini excavator suddenly came down, crushing him. He died as a result of the significant internal injuries he sustained in the accident. In their revised complaint, the plaintiffs alleged in count four that ‘‘[t]he mini excavator operated by Ortega was in a dangerous and defective condition in that it was missing several protective window enclo- sures that were designed not to open, thereby pre- venting its operator, including Ortega, from accessing any area where the operator may come into contact with the boom arms of the mini excavator.’’ The revised complaint further alleged that the protective window enclosures had been missing from the mini excavator for approximately one month prior to Ortega’s accident and that, as a result, it was operated by Valley Tree in a hazardous condition. The revised complaint also alleged that O & G, in its role as construction manager, ‘‘oversaw the entire renovation project,’’ and that, ‘‘[b]ecause of its role as construction manager, O & G had numerous duties, which include[d], but [were] not . . . limited to, the following: managing the construc- tion; coordinating the construction; conducting daily or other periodic inspections of the renovation site to monitor conditions at the site; ensuring that the con- struction at the site was performed in a safe and proper manner; ensuring that contractors at the site performed their work in compliance with federal and/or Connecti- cut <mask> standards and regulations; obtaining satisfactory performance from contractors at the site; notifying the owner of the property of any hazardous or dangerous conditions; assisting the owner of the property in arranging for contractors to actually perform the construction work; ensuring that contrac- tors at the site are coordinated; monitoring the field activities of each contractor at the site; and recommend- ing courses of action to the owner of the property with respect to failures in the performance of the contractors at the site.’’ According to the allegations of count four of the revised complaint, O & G was negligent, inter alia, in failing (1) ‘‘to prevent Ortega from operating the mini excavator that was in a hazardous condition,’’ (2) ‘‘to observe and detect that Valley Tree was performing its work in an unsafe and hazardous manner’’ and to stop Valley Tree from doing so, (3) to monitor the construc- tion site and to secure a safe workplace, and (4) to exercise reasonable care in fulfilling its duties as the construction manager for the project. In count five of the revised complaint, Coronel, based on the same alle- gations in count four, alleged a claim against O & G for loss of consortium. On October 2, 2018, following the completion of dis- covery, O & G filed a motion for summary judgment as to counts four and five of the revised complaint, claim- ing that ‘‘[a] wrongful death claim based on negligence against O & G . . . [could not] be maintained as a mat- ter of law since . . . O & G owed no duty to the plain- tiffs,’’ and that no genuine issues of material fact existed. Specifically, in its memorandum of law in sup- port of its motion for summary judgment, O & G claimed that ‘‘[t]he scope of [its] duties and obligations as con- struction manager for the work performed on the [reno- vation] project [was] limited to those [duties and obliga- tions] set forth in its contract with the borough,’’ and that it had no independent duty or obligation to perform tasks or services for the project apart from the duties and obligations set forth in the contract, which was devoid of any reference to the tree removal work per- formed by Valley Tree in the upper parking lot adjacent to the high school grounds. Moreover, O & G asserted that ‘‘there [was] no change order or other amendment [to its contract with the borough] that ever brought such work within [its] contractual scope of work.’’ In further support of its claim that it owed no legal duty to Ortega, O & G argued that (1) ‘‘[i]t [was] undis- puted that the borough directly hired Valley Tree to perform tree removal work in an area outside the con- tract limit line established in O & G’s contract,’’ (2) ‘‘O & G never exercised any dominion, rights or control over that area, nor did it ever contractually agree to oversee, direct, manage or supervise any of Valley Tree’s work,’’ and (3) ‘‘Valley Tree worked indepen- dently, utilizing its own equipment, machinery, man- power, and means and methods to perform the work contracted by the borough, completely outside O & G’s scope of work.’’ Finally, given its claim that the negligence count was insufficient as a matter of law, O & G argued that the loss of consortium claim, which was a derivative claim and not a separate cause of action, necessarily failed as well. On December 17, 2018, the court, Brazzel-Massaro, J., heard arguments on the motion for summary judg- ment. On January 9, 2020, the court issued a comprehen- sive memorandum of decision granting O & G’s motion for summary judgment. In its decision, the court explained that ‘‘[t]he sole issue raised in opposition to the [motion for] summary judgment is whether the argument that the deposition testimony of various [bor- ough] officials, the construction manager and the owner of Valley Tree, as well as the contract documents sup- port a duty owed by O & G.’’ In granting the motion for summary judgment, the court analyzed the contractual provisions, the actions of O & G in working on the renovation project, the deposition ‘‘testimony of the various officials of the [borough], the construction man- ager and the owner of Valley Tree . . . as to the imple- mentation of the contractual provisions and the opera- tion of the project by O & G,’’ and ‘‘the circumstances surrounding the hiring of Valley Tree for removal of the trees, including the bidding, the award of the bid, and the actions thereafter in accordance with the con- tract.’’ The court ultimately concluded that ‘‘the plaintiffs have [presented] no evidence or testimony that would create a duty as to O & G or any of its employees because the facts demonstrate that there is no genuine issue of fact that (1) the area of the work by Valley Tree was not a part of the construction limit line defined for the contractual obligations of O & G; (2) the contract clearly defines and establishes the duties and responsi- bilities of O & G as the construction management group for the [renovation project]; (3) the tree removal work was not work included in the contract [to renovate] . . . Naugatuck High School; (4) O & G was not respon- sible to oversee the work of trade contractors who were not hired by them or for whom they did not enter into a change order with the borough or board of education and their representatives in accordance with the con- tract documents; (5) there were no change orders for any tree removal work or responsibilities entered into by O & G as part of the contract; (6) O & G did not amend the contract by its actions of following the request by the building committee and assisting them in walking the property with Valley Tree but [was] coordinating in accordance with the contract provisions; (7) the only coordination by O & G was the timing of the work by Valley Tree to fit within the timeline for completing the work and not interfering with the contractors doing work with O & G; and (8) the funding for the tree removal was not part of the budget under O & G’s control that had been approved for the [renovation proj- ect]. The funds for the tree removal were from a sepa- rate account for supplemental work. ‘‘Based upon the foregoing, there is no genuine issue of fact that O & G was not contractually obligated to have the control or responsibility for the supplemental work of overseeing any separate contractors, including Valley Tree, by change order or otherwise. Thus, there is no genuine issue of fact that . . . O & G has a duty to Valley Tree or [its] employees for the safety issues alleged in the complaint.’’ From the summary judgment rendered in favor of O & G, the plaintiffs appealed. Additional facts and procedural history will be set forth as necessary. Before we address the plaintiffs’ claims on appeal, we set forth the relevant legal principles and our well settled standard of review of a court’s ruling on a motion for summary judgment. ‘‘Practice Book § [17-49] pro- vides that summary judgment shall be rendered forth- with if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material [fact] which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.’’ (Internal quotation marks omitted.) Augustine v. CNAPS, LLC, 199 Conn. App. 725, 728–29, 237 A.3d 60 (2020). ‘‘[I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.’’ (Internal quotation marks omit- ted.) Id., 733. ‘‘Our review of the decision to grant a motion for summary judgment is plenary. . . . We therefore must decide whether the court’s conclusions were legally and logically correct and find support in the record.’’ (Internal quotation marks omitted.) Cuozzo v. Orange, 178 Conn. App. 647, 655, 176 A.3d 586 (2017), cert. denied, 328 Conn. 906, 177 A.3d 1159 (2018). ‘‘When documents submitted in support of a motion for sum- mary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obli- gation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some dis- puted factual issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly pre- sented to the court under Practice Book § [17-45].’’ (Internal quotation marks omitted.) Belevich v. Renais- sance I, LLC, 207 Conn. App. 119, 124, 261 A.3d 1 (2021). ‘‘The essential elements of a cause of action in negli- gence are well established: duty; breach of that duty; causation; and actual injury. . . . Contained within the first element, duty, there are two distinct considera- tions. . . . First, it is necessary to determine the exis- tence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty. . . . The issue of whether a duty exists is a question of law . . . which is subject to plenary review. . . . ‘‘Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner. . . . Nevertheless, [t]he issue of whether a defendant owes a duty of care is an appro- priate matter for summary judgment because the ques- tion is one of law.’’ (Citation omitted; internal quotation marks omitted.) Goody v. Bedard, 200 Conn. App. 621, 631, 241 A.3d 163 (2020). Moreover, ‘‘[a] duty to use care may arise from a contract . . . .’’ (Internal quota- tion marks omitted.) Carrico v. Mill Rock Leasing, LLC, 199 Conn. App. 252, 262, 235 A.3d 626 (2020). In the present case, the court, in granting O & G’s motion for summary judgment, examined the contrac- tual provisions contained in the contract between O & G and the borough, and determined, on the basis of those provisions, that O & G did not owe a duty of care to Ortega. ‘‘Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact [subject to the clearly erroneous standard of review] . . . [when] there is definitive con- tract language, the determination of what the parties intended by their . . . commitments is a question of law [over which our review is plenary].’’ (Internal quota- tion marks omitted.) Alpha Beta Capital Partners, L.P. v. Pursuit Investment Management, LLC, 193 Conn. App. 381, 403, 219 A.3d 801 (2019), cert. denied, 334 Conn. 911, 221 A.3d 446 (2020), and cert. denied, 334 Conn. 911, 221 A.3d 446 (2020). To the extent that the plaintiffs’ claims on appeal are directed at the court’s interpretation of the contract between O & G and the borough, ‘‘our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.’’ (Internal quotation marks omitted.) Id. We first address the plaintiffs’ claim that the court improperly determined that the contract between O & G and the borough did not give rise to a legal duty owed by O & G to Valley Tree and its employees. According to the plaintiffs, the contract ‘‘created an obligation for O & G to supervise and control Valley Tree’s work,’’ and its express terms compelled ‘‘the conclusion that O & G owed Valley Tree and its employees a duty of care.’’ We are not persuaded. In its thorough and well reasoned decision, the court first examined in great detail the contractual provisions at issue in determining the duties of O & G under its contract with the borough. Its findings in connection therewith can be summarized as follows. There were two contractual documents that specified the parame- ters of the contract and the duties of O & G, which also contained provisions relating to safety, insurance and performance with respect to the renovation project. To determine the site for the work that was within the scope of the renovation project, the court also exam- ined the site plan, which provided the footprint of the work for the renovation, as well as an outline of the property included within the project. The court explained that O & G ‘‘contends that the scope of the project which they were contracted to oversee as the construction management company did not include the area’’ where the tree removal was to be performed, which O & G claimed was ‘‘outside of the construction limits.’’ The plaintiffs, on the other hand, relied on a proposal2 that was submitted by O & G in its bid for the renovation project as defining the duties of the construction manager. The court, however, concluded that ‘‘contrary to the plaintiffs’ contentions [the pro- posal] not change the duties set forth in the contract.’’ As the court explained: ‘‘The testimony and evidence clearly demonstrate that the area included in the . . . project for which O & G was the construction manager is restricted to the area in the site drawings,’’ which does not include the area near the upper parking lot where the tree removal was performed. Although the area where the trees were removed is owned by the borough, it was never considered part of the high school grounds, and, thus, ‘‘the tree removal work was sched- uled for an area never within the project area noted by O & G and the borough. . . . The site plan does . . . outline the area to be renovated as part of the work that is managed by O & G. Nowhere on the plan is there a notation which includes the area for this tree removal as part of the work or project. Additionally, the contrac- tual language, contrary to the plaintiffs’ assertions, does not designate this work as part of the management duties of O & G.’’ With respect to the plaintiffs’ claim that O & G, as the construction manager, was responsible for the safety of all contractors and subcontractors, the court found that the contract documents provide otherwise in that they ‘‘[reserve] the right [for the owner] to perform construction [and] operations related to the project with the owner’s own forces, and to award separate contracts in connection with other portions of the proj- ect or other construction or operations on the site . . . .’’ (Internal quotation marks omitted.) On the basis of the contractual provisions, the court found that the parties ‘‘intended that there would be subcontractors outside of the work supervised by the construction manager and that would not be within the responsibility of O & G, but which may need to be ‘coordinated’ with the work that O & G did supervise. This interpretation is exactly the situation existing with the bid acceptance for the supplemental tree removal work by Valley Tree. Not only is this work not included within the scope of work defined in sections E and F of the [renovation] project, but the process of awarding the work to Valley Tree supports the position of O & G.’’ The court, thus, found that ‘‘the borough could hire separate contractors as it did in this situation, and it would be responsible for supervising and directing the work, including jobsite safety.’’ That determination was supported by the depo- sition testimony of the business manager for the bor- ough, who controlled the expenditures, that ‘‘the removal of the trees was not tied into the work by O & G,’’ that it ‘‘wasn’t part of the original scope of the project,’’ that it ‘‘was added as an item to be part of the scope of the Naugatuck High School renovation project,’’ and that it ‘‘was under the borough’s project.’’ (Internal quotation marks omitted.) The court found that the testimony of the business manager for the bor- ough ‘‘confirmed that Valley Tree was hired directly by the borough.’’ (Internal quotation marks omitted.) The court also relied on the deposition testimony of the owner of Valley Tree that he had received an e-mail or letter from the borough stating that the borough was hiring Valley Tree to remove the trees, that he under- stood that he was working for the borough, and that he did not receive any written approvals or directives from O & G. Finally, in rejecting the plaintiffs’ claim that O & G had a duty by virtue of its obligation to provide a safe work environment under the contract, the court stated: ‘‘Although the contract provides a clear duty for certain aspects of safety during the term of the [high school renovation] project and within the scope of the project and the site, this duty is defined by the contract and the site plan drawings. . . . The plaintiffs have expanded th[e] safety aspects of the work to include work outside of the physical boundaries of the proposed project and oversight which is not clearly set forth in the contract language.’’ (Citation omitted.) The court, thus, found that the plaintiffs ‘‘espouse[d] an incorrect interpretation of [the deposition] testimony and the safety responsibilities of O & G.’’ Ultimately, the court concluded that there was nothing in the contract that required O & G to ‘‘inspect the equipment or procedures for contractors that were hired by the building commit- tee to do work outside of the site, contract and [certain safety] proposals [submitted by O & G in its bid for the work].’’ We conclude that the court’s determination that the contract between O & G and the borough did not give rise to a duty owed by O & G to Valley Tree and its employees was legally and logically correct and sup- ported by the language of the contract. After thoroughly examining the provisions of the contract, we agree with the court that they are ‘‘clear and unambiguous in the description, the extent of the project, and the work for which O & G [had] the duty to perform.’’ Consequently, the court correctly determined that they simply did not support the plaintiffs’ claims or suggested interpreta- tion. Because O & G, as the party moving for summary judgment, met its burden of proving the absence of any genuine issue of material fact as to the issue of whether the contract created a duty owed by O & G to Ortega, it was incumbent on the plaintiffs to present evidence demonstrating the existence of a disputed issue of mate- rial fact. See Belevich v. Renaissance I, LLC, supra, 207 Conn. App. 124. The court, however, found that the plaintiffs, in their opposition to the motion for summary judgment, did not submit any admissible evidence dem- onstrating that O & G’s responsibilities under the con- tract extended to the tree removal work. We agree with the court’s determination. The plaintiffs’ reliance on the representations made by O & G in its bid, which was incorporated into the contract, to create a duty by O & G for the tree removal work is misplaced, as those representations related to O & G’s responsibilities for work done within the area included in the renovation project, and the tree removal work occurred in an area that was not within the scope of the project covered by the contract, nor does the contractual language des- ignate the tree removal work as part of O & G’s manage- ment duties. The plaintiffs alternatively argue that O & G, through its actions, assumed a voluntary duty of care to Ortega. Specifically, the plaintiffs argue that O & G’s actions gave rise to a common-law duty to ensure safe work- place practices and that the court erred in failing to address the existence of such a common-law duty. According to the plaintiffs, ‘‘O & G took upon itself to control and direct Valley Tree’s work, and as a conse- quence thereof, owed a duty to Ortega.’’3 Moreover, the plaintiffs claim that the court, in finding no duty, improperly decided issues of disputed fact. Specifically, they argue that because questions of fact existed as to the extent of O & G’s control over Valley Tree, the motion for summary judgment should have been denied. We disagree. In its memorandum of decision, the court found that, ‘‘[a]t the request of the building committee . . . Vetro . . . [O & G’s] project director, contacted the two tree removal companies that were designated by the build- ing committee as possible contractors for the propos- als.’’ As the court explained, when Vetro ‘‘walked the site with the contractors, Vetro simply showed the trees that had been flagged by the [two members of the build- ing committee] . . . .’’ The court, therefore, rejected the plaintiffs’ claim that ‘‘Vetro’s actions of contacting the two companies for the tree removal bids, walking the site with the contractors and board members to designate the trees flagged for removal, and taking the bid documents back to the building committee extended the contractual work to be completed and the project area to include the tree removal within its responsibilities pursuant to the contract.’’ Specifically, the court found that the plaintiffs’ claim ‘‘ignore[d] the provisions in the contract [that] allow changes to work and responsibility,’’ which outline a method for change to the original work set forth in the contract documents. Without any change orders or amendments to the con- tract, the court found that ‘‘[t]here [was] no evidence that the minor assistance provided by the construction manager was significant to change the terms of the contract,’’ and that the plaintiffs were attempting to create a duty where none existed. Although the court did not expressly reference whether a common-law duty existed, the court did address the substance of the plaintiffs’ claim, namely, whether O & G exercised control over the work per- formed by Valley Tree and its employees sufficient to give rise to a duty of care owed to Valley Tree. The court explained that, the fact that Valley Tree was to coordinate its work with Vetro ‘‘did not involve O & G dictating to Valley Tree how, when, or where to do their work, but it was a simple coordination with O & G so the work would be completed before the fencing was installed by O & G. . . . O & G was still the overall general contractor and any work being done would have to be coordinated with them.’’ (Citations omitted.) In rejecting the plaintiffs’ claim that, because Valley Tree interacted with Vetro only to schedule the work, O & G was responsible to inspect and oversee that work, the court stated: ‘‘O & G never relayed to Valley Tree that O & G was to be the final authority and controller for the work to be done by Valley Tree. The plaintiffs . . . in their opposition to the motion . . . [do] not include any admissible evidence placing O & G in charge of the tree removal project. . . . In fact, in performing the work it was clear that Valley Tree decided the location for its equipment, the work deci- sions for the brush to be cut, the trees that would get cut, how big the logs would be, what the order of tree removal would be, and the pulling back of brush to locate machinery. . . . None of these decisions were made by O & G and none were conveyed to Valley Tree by the construction manager. . . . Coordination of the various subcontractors does not create a responsibility for O & G to check the equipment for safety issues or to provide other safety amenities to the workers at Valley Tree. There is no contractual provision requiring that O & G coordinate or control the work of a contrac- tor hired outside the parameters of the original con- tract.4 The interpretation of the construction site limits and the work responsibilities of O & G does not support the plaintiffs’ expansive interpretation of the contract.’’ (Citations omitted; footnote added; footnote omitted.) We agree with the court’s analysis of this argument, which is supported by the record viewed in a light most favorable to the plaintiffs. On the basis of our review of the record, we conclude that the trial court properly determined that, in opposing the motion for summary judgment, the plaintiffs failed to present any evidence of conduct on the part of O & G demonstrating that O & G was in charge of the project to remove the trees or in any way directed the activities of the employees of Valley Tree. The plaintiffs, therefore, failed to meet their burden of demonstrating the existence of a genu- ine issue of material fact as to whether O & G controlled the work of Valley Tree and its employees, thereby giving rise to a duty of care owed to Ortega.5 See Shukis v. Board of Education, 122 Conn. App. 555, 566, 1 A.3d 137 (2010) (‘‘[a] party opposing a motion for summary judgment must substantiate its adverse claim by show- ing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue’’ (internal quotation marks omitted)). On the basis of our thorough review of the record, we conclude that the court’s determination, as a matter of law, that O & G did not owe a duty to Ortega concern- ing the safety issues raised in count four of the revised complaint was legally and logically correct. Accord- ingly, because the existence of a duty is an essential element of a negligence cause of action; see Goody v. Bedard, supra, 200 Conn. App. 631; the court properly granted O & G’s motion for summary judgment as to count four of the revised complaint. Finally, the plaintiffs claim that the court improperly rendered summary judgment in favor of O & G with respect to the loss of consortium claim alleged in count five of the revised complaint. Because the loss of con- sortium claim in count five is derivative of the negli- gence claim alleged in count four, on which the court properly rendered summary judgment in favor of O & G, the loss of consortium claim in count five necessarily must fail. Therefore, the court properly granted O & G’s motion for summary judgment as to count five of the revised complaint as well. The judgment is affirmed. In this opinion the other judges concurred. In the original complaint, Coronel also alleged claims as parent and natural guardian of her three minor children with Ortega for loss of parental consortium. After motions to strike those counts were filed, the plaintiffs did not object and agreed to withdraw the claims. In the proposal, O & G made the following representations: O & G’s field ‘‘team will coordinate the efforts of all of the trade contractors and maintain a safe and secure worksite that does not disrupt the educational process of the Naugatuck High School’’; ‘‘[i]t is our intent to deliver this project assuring a safe environment for all and with minimal disturbance to the educational function of the building’’; ‘‘[w]e expect zero accidents and injur- ies on all of our projects [and] [a]ll of our safety planning is based upon this goal, and we actively encourage all workers on the site to participate and follow the safety guidelines’’; ‘‘[e]veryone involved with O & G is respon- sible for preserving health and safety [and] [t]he success of this safety program depends on the full participation of every employee, subcontractor, manager and vendor’’; and the project manager for O & G will ‘‘[c]oordinate and monitor safety and security programs as conditions dictate.’’ Specifically, the plaintiffs claim that ‘‘O & G directed Valley Tree’s work in the following ways: [1] O & G told Valley Tree it was in charge of the overall high school project, as well as Valley Tree’s piece of that project . . . [and] never disclaimed supervision; [2] O & G contacted Valley Tree to submit a bid and communicated with Valley Tree’s principal during the bidding process; [3] O & G directed when Valley Tree should start its work and when the tree removal work had to be completed; [4] O & G directed Valley Tree as to which trees were to be removed and which trees were to remain; [5] O & G instructed Valley Tree how to dispose of the trees—by chipping them—and then to leave the chips in the surrounding woods; [and] [6] Vetro visited the upper parking lot on at least one occasion to compliment Valley Tree’s work.’’ According to the plaintiffs, those facts were consistent with a statement made by O & G in its proposal that it would ‘‘coordinate the efforts of all of the trade contractors and maintain a safe and secure worksite.’’ (Internal quotation marks omitted.) The plaintiffs’ claim, how- ever, ignores the fact that the representation made by O & G in its proposal related solely to the work and area within the scope of the renovation project. The plaintiffs argue on appeal that their claim should not be limited to the geographic reach or precise terms of the contract because there is evidence that O & G did work outside the area of the renovation project and, at times, did work without requesting a change order. Specifically, they argue that O & G worked outside the construction limit line to install fencing and curbing near the upper parking lot area and, thereby, voluntarily assumed a duty of care over Valley Tree and its employees. We are not persuaded. The plaintiffs have presented no evidence demonstrating how O & G’s work installing the fencing and curbing gave rise to a duty of care to Valley Tree and its employees for the work they performed in the upper parking lot. The fact that O & G did some work outside of the scope of the work set forth in the contract does not raise a genuine issue of material fact that it thereby voluntarily assumed a duty to Valley Tree or Ortega, especially in the absence of evidence that O & G exercised control over the work of Valley Tree and its employees, and that the outside work performed by O & G did not occur in the upper parking lot and was unrelated to the tree removal work for which Valley Tree was hired directly by the borough. Thus, even if, as claimed by the plaintiffs, O & G’s responsibilities were not solely limited to those outlined in the contract, it was still incumbent on the plaintiffs to present some evidence demonstrating how the work per- formed by O & G outside of the contract gave rise to a duty of care to Valley Tree and its employees. Our review of the record simply does not support the plaintiffs’ contention that there is a genuine issue of material fact that O & G assumed a duty to Valley Tree and its employees for the tree removal work in the upper parking lot. The plaintiffs’ reliance on Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 825 A.2d 72 (2003), and Van Nesse v. Tomaszewski, 265 Conn. 627, 829 A.2d 836 (2003), is misplaced, as those cases are distinguish- able from the present case. In Pelletier, our Supreme Court held that, although, as a general rule, ‘‘a general contractor is not liable for the torts of its independent subcontractors’’; Pelletier v. Sordoni/Skanska Construction Co., supra, 518; there are exceptions to that general rule, including when the general contractor ‘‘in the progress of the work assume[s] control or interfere[s] with the work’’ of the subcontractor. Id. Control means the ‘‘[p]ower or authority to manage, direct, superintend, restrict, regulate, gov- ern, administer, or oversee.’’ Black’s Law Dictionary (6th Ed. 1990) p. 329. Pelletier and Van Nesse both involved actions by an injured employee of a subcontractor against the general contractor. Van Nesse v. Tomaszewski, supra, 628; Pelletier v. Sordoni/Skanska Construction Co., supra, 512–13. In Pelletier, our Supreme Court rejected the plaintiff’s claim that the contract between the general contractor and the owner of the building under con- struction, which charged the general contractor with certain safety and inspection responsibilities, created a duty owed by the general contractor to the plaintiff, concluding that the plaintiff was not a party to that agreement. Pelletier v. Sordoni/Skanska Construction Co., supra, 530–31. In the present case, a general contractor-subcontractor relationship did not exist between O & G and Valley Tree, as the record demonstrated that Valley Tree was hired directly by the borough to do tree removal work, which was outside the scope and area covered by the contract between O & G and the borough for the high school renovation project, nor was Valley Tree a party to that contract. Moreover, the plaintiffs did not present any evidence in opposition to the motion for summary judgment showing that O & G had the authority to control, or interfered with, the work of Valley Tree.


Wholly without merit is the petitioner’s claim that the Board’s decision “reads the WVPA out of existence by rendering it a redundancy of the General Duty Clause.” Rather than nullifying it, the NOVs specifically referenced the WVPA and offered its provisions as examples of corrective measures that the employer could take to correct the violation. The Board in its decision similarly recognized that the two statutes could work together to insure <mask>. Its analysis was rationally based on the underlying federal and state statutory schemes and the language of the two statutes involved.


The trial court granted summary judgment, holding that "Defendants have satisfied their burden to show that there is no triable issue of material fact and Defendants are entitled to summary judgment as a matter of law, pursuant to the Privette doctrine.... Privette and its progeny establish that the hirer of an independent contractor presumptively delegates to that contractor its duty to provide a safe workplace for the contractor's employees.... Plaintiff has provided no evidence showing that Defendants retained control of the contracted work or rebutting the presumptive delegation to the contractor employee, PCMC, of responsibility for <mask>."


The original complaint alleged each plaintiff had been employed as an order selector at Save Mart's Roseville Distribution Center (Rymel was also a forklift driver). Each alleged an industrial injury and torts flowing therefrom (failure to accommodate, retaliation, wrongful discharge, etc.) under the California Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq. ). Hagins also alleged he was retaliated against after he reported a <mask> hazard, purportedly a whistleblower violation under Labor Code section 1102.5. After the court granted Save Mart's motion to sever, each plaintiff filed a separate complaint.


“anxiety, panic attacks, racing heart, palpitations and inability to sleep when thinking about work the next day.” Id. at 172a. She prescribed an antidepressant. Id. On March 12, 2019, Claimant had a follow-up appointment with Dr. Clayton. They discussed Claimant’s anxiety symptoms, which persisted but were “improving,” according to the doctor. Id. at 174a. They also discussed the carbon monoxide alarm incident, which occurred the previous day, and Claimant’s fear that his <mask> concerns were not being addressed. Id. at 175a. “[He] is feeling he cannot handle it [at] work right now,” she wrote. Id. Dr. Clayton urged Claimant to seek counseling. She also provided Claimant with a note requesting that Claimant be excused from work for the following week so that he would have an opportunity to find a counselor, and to “work on stress reduction, relaxation techniques . . . and nutrition.” Id. At the end of the one-week period, the doctor wrote that she would “re-evaluate his return to work.” Id. Another follow-up with Dr. Clayton occurred on March 19, 2019. According to Dr. Clayton’s notes, Claimant reported that he was “feeling well” and his symptoms, such as lack of sleep and poor appetite, were “improving.” Id. at 177a- 178a. The two discussed several issues in Claimant’s personal life, including Claimant’s upcoming trip to Florida; they also discussed “lifestyle changes” that Claimant was making to improve his financial situation. Id. There was a brief discussion of Claimant’s work situation as well. Dr. Clayton noted that Claimant “does not feel that he is able to go back to work at this time” and that Claimant reported being unable to do “light duty.” Id. After his April 3 appointment, Dr. Clayton noted that there were “[n]o new complaints at [that] time,” and that Claimant’s condition was still “improving.” Id. at 180a. She recorded that Claimant had begun seeing a counselor the day before.


The Supreme Court held that the Privette rule applied to the case before it, and therefore US Airways was not liable to the injured employee or, derivatively, to the workers' compensation insurer. The court explained that by hiring an independent contractor, "the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor's employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor's employees to comply with applicable statutory or regulatory safety *1089requirements." ( SeaBright , supra , 52 Cal.4th at p. 594, 129 Cal.Rptr.3d 601, 258 P.3d 737.) In the case before it, therefore, "US Airways presumptively delegated to Aubry any tort law duty of care the airline had under Cal-OSHA and its regulations to ensure <mask> for the benefit of Aubry employees. The delegation-which ... is implied as an incident of an independent contractor's hiring-included a duty to identify the absence of the safety guards required by Cal-OSHA regulations and to take reasonable steps to address that hazard." ( Id. at p. 601, 129 Cal.Rptr.3d 601, 258 P.3d 737.)


A co-employee can only be liable for such injuries if the employer (prior to workers compensation) would not have been liable because the co-employee either [1] breached a duty unrelated to the master-servant relationship or [2] committed a breach of <mask> that was so unforeseeable to the employer as to take it outside the employer's nondelegable duty to provide a reasonably safe workplace. 542 S.W.3d 315, 324 (Mo. banc 2018) (emphasis in original); see also McComb, supra and Fogerty v. Armstrong , 541 S.W.3d 544, 546 (Mo. banc 2018). The first category is "rare and easy to spot" and is not at issue here. Conner , 542 S.W.3d at 324, n 4. The allegations of duty in this case seek, but fail, to come within the second category.


The term "owner” is not specifically defined in the Labor Law. Courts have considered the issue of ownership in cases *178involving <mask> statutes. A leading case is Celestine v City of New York (59 NY2d 938, affg on opn below 86 AD2d 592) wherein the Long Island Rail Road Company, grantor of an easement of its property to another railroad while still retaining ownership of the fee, was held responsible for violations of Labor Law § 241 (6). In Copertino v Ward (100 AD2d 565, 566), the term "owner” was defined under the Labor Law "to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit”. More recently in Gordon v Eastern Ry. Supply (82 NY2d 555), the Court of Appeals gave a broad meaning to the word "owner” by affirming the imposition of liability under Labor Law § 240 (1) against a fee owner which leased the property to another concern which controlled the work. Less than a month ago in Coleman v City of New York (91 NY2d 821), the Court of Appeals held, in a Labor Law § 240 (1) case, that any party who was "technically an 'owner’ ” (at 823) must be considered an owner under the statute even if the "owner” had no control of the work and the work was being performed for the benefit of others.


Next, the Board discussed at length the Workplace Violence Prevention Act (Labor Law § 27-b), enacted in 2006. Whereas PESHA’s General Duty Clause speaks about <mask> in broad terms, WVPA targets workplace violence specifically and includes provisions “to ensure that the risk of workplace assaults ... is evaluated . . . and that [public] employers *402design and implement workplace violence protection programs to prevent and minimize the hazard of workplace violence.” (Labor Law § 27-b [1].) To help effectuate that goal, the WVPA gives examples of factors that an employer might consider in evaluating workplace risks and then offers elements that might be included in a written workplace violence prevention program. The statute then expressly directs the Commissioner of Labor to adopt detailed implementing rules and regulations so as to meet the intent of the WVPA, consistent with the requirement in Labor Law § 27-a (4) (b), discussed above, to develop “specific standards.” Such regulations were adopted effective April 29, 2009, about two years after the NOVs in this case were issued.


“As between an undocumented worker and the federal government, the act of submitting fraudulent documents in order to secure employment is unlawful (see 8 USC § 1324c [a]). As between the employer and the federal government, the act of hiring an undocumented worker knowingly or without verifying his or her employment eligibility is unlawful (see 8 USC § 1324a [a] [1]). As between the undocumented worker and the employer, however, there is a contract of employment, under which the worker is entitled to be paid for his or her work. Moreover, as between the worker and an alleged tortfeasor, there are duties under the common law and the New York statutes governing <mask> (see Labor Law § 240 [1]; § 241 [6]).” (Majlinger v Cassino Contr. Corp., 25 AD3d 14, 24-25 [2d Dept 2005].) The Labor Law is blind as to status. Therefore, the plaintiffs use of an assumed identity, although unlawful, does not eradicate the defendants’ liability. “The contractual, statutory, and common-law duties owed to the worker are unrelated to, and do not depend on, the worker’s compliance with federal . . . laws.” (Id. at 25; see Mendoza a Monmouth Recycling Corp., 288 NJ Super 240, 247, 672 A2d 221, 224-225 [1996].)


Neither Armenta nor Gonzalez presents the situation we face here: Plaintiffs are not using sections 221, 222, and 223 to support a <mask> claim, but instead assert a stand-alone cause of action for violation of section 223, which by its terms applies to an employer who "secretly pay[s] a lower wage while purporting to pay the wage designated by statute or by contract." (Italics added.)18 While the term "secretly" may reasonably be applied where an employer seeks to average the total pay for both compensated and uncompensated time, it would stretch the meaning of the word beyond all recognition to apply it here, where the only issue is a bona fide dispute about whether the time the employees spent on pre- and post-work activities constituted hours worked.


Section 1194, subdivision (a) provides: "Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal <mask> or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit."


Plaintiffs alleged they were not paid for all the time they spent at the correctional institutions under defendants' control. Specifically, they were expected to sign in and sign out on time sheets that reflected only their officially assigned work day. Plaintiffs were required to be at their assigned posts at the beginning of their official shifts. However, the sign-in and sign-out locations were often significantly removed from plaintiffs' actual work posts, and they were not compensated for the time it took to travel from those locations to their work posts after signing in or to return to those locations to sign out at the end of a shift. Second, plaintiffs alleged that they were required to spend time before checking in and after checking out on such activities as being briefed before a shift, briefing relief staff at work posts after a shift, checking out and checking in mandated safety equipment, putting on and removing mandated safety equipment, waiting in lines, submitting to searches at security checkpoints, and taking inventories of weapons, ammunition, and other equipment. Plaintiffs were either not allowed to or were discouraged from adjusting their time logs to reflect these additional tasks. Plaintiffs alleged causes of action for failure to pay *732contractual overtime ( Lab. Code,2 §§ 222, 223 ) (first cause of action), failure to pay the California <mask> (§§ 1182.11, 1182.12, 1194; 8 Cal. Code Regs. § 11000 et seq. ) (second cause of action), failure to keep accurate records of hours worked (§ 1174) (third cause of action), and failure to pay overtime in breach of common law contractual obligations (fourth cause of action). They sought unpaid overtime wages, unpaid California minimum wages, liquidated damages, and injunctive relief.


In Bluford , supra , 216 Cal.App.4th at page 866, 157 Cal.Rptr.3d 212 ( Bluford ), the Third District Court of Appeal reversed the trial court's denial of class certification in an action by a truck driver claiming the employer had violated the law by, inter alia, failing to compensate him and other employees similarly situated for rest periods. The employer-similar to the position asserted by its counterpart in Gonzalez concerning hours spent on the job for tasks other than repair work-argued that it was not required to pay separate compensation to its piece-rate employees for rest periods. ( Bluford , supra , at p. 871, 157 Cal.Rptr.3d 212.) The appellate court disagreed. It noted that "[u]nder Industrial Welfare Commission wage orders, employers are required to 'authorize and permit all employees to take rest periods' at the rate of at least 10 minutes for every four hours worked. ( Cal.Code Regs., tit. 8, §§ 11070, subd. 12 ; 11090, subd. 12.) 'Authorized rest periods shall be counted as hours worked for which there shall be no deduction from wages.' (Ibid. )" ( Ibid. ) The Bluford court, relying on Armenta , supra , 135 Cal.App.4th 314, 37 Cal.Rptr.3d 460, held that "a piece-rate compensation formula that does not compensate separately for rest periods does not comply with California <mask> law. [Citations.]" ( Bluford , supra , at p. 872, 157 Cal.Rptr.3d 212 ; cf. Vaquero v. Stoneledge Furniture LLC (2017) 9 Cal.App.5th 98, 108-110, 214 Cal.Rptr.3d 661 [sales associates paid on commission basis entitled to separate compensation for rest periods].)


Motions for temporary injunctions in actions brought to declare the 1962 local law unconstitutional were granted by the Appellate Division (Wholesale Laundry Bd. of Trade v. City of New York, 17 A D 2d 327). Thereafter this court, at Special *817Term, granted the plaintiffs’ motions for summary judgment and denied the defendant’s motions to dismiss the complaint and for judgment declaring the local law constitutional (Mr. Justice Fine, N. Y. L. J., Dec. 24, 1962, p. 9, col. 2). The Appellate Division affirmed (18 A D 2d 968, 969). The Court of Appeals also affirmed, though by a divided court (12 N Y 2d 998). The majority of the Court of Appeals affirmed upon the opinion of the Appellate Division in 17 AD 2d 327. In that opinion, Mr. Justice Steuer, writing for the court, held that the 1962 local law was inconsistent with sections 650 through 665 of the Labor Law, also called the <mask> Act, because the local law (p. 330) “ forbids a hiring at a wage which the State law permits and so prohibits what the State law allows ’ ’. Since the State Constitution, as it then read prohibited a city from enacting legislation inconsistent with the ‘ ‘ laws of the State, ’ ’ the court held that the 1962 local law was unconstitutional. It pointed out that (p. 330) “ the State law indicates a purpose to occupy the entire field [of minimum wage legislation.] ” The court declared that this purpose was apparent (p. 330) “from the restriction on any law that supersedes any provision of the Labor Law (City Home Rule Law, § 21) ” as well as from the provisions of the State Minimum Wage Act which provide ‘ ‘ machinery for the determination of an adequate wage in any occupation and in any locality, including the City of New York.” Attention was also called (p. 329) to the provision of subdivision 4 of section 11 of the City Home Rule Law that “ Nothing contained in this section shall be deemed by implication or otherwise to authorize an amendment or repeal of any provision of the labor law.”


The parties also entered into stipulations concerning the applicable legal standards. Specifically, the parties stipulated that Certified Tire is "governed by the California Labor Code and Wage Order 4[-2001]." ( Cal. Code Regs., tit. 8, § 11040.) (Wage Order 4)8 The parties *829agreed that under Wage Order 4, "Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable <mask> for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise." ( Cal. Code Regs., tit. 8, § 11040, subd. 4(B).) The parties identified the applicable minimum wage as "not less than nine dollars ($9.00) per hour for all hours worked, effective July 1, 2014, and not less than ten dollars ($10.00) per hour for all hours worked, effective January 1, 2016." In addition, the parties agreed that Wage Order 4 provides for rest period as follows: "Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. ... Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages." ( Cal. Code Regs., tit. 8, § 11040, subd. 12(A).)


Lainez filed his class action complaint on May 14, 2015, alleging six causes of action. In the first cause of action of his complaint, Lainez alleged *137that he, along with members of his purported class, were piece-rate agricultural workers employed by Jackpot. (See Cal. Code Regs, tit. 8, § 11140, subd. 2(L) [defining piece-rate compensation for agricultural workers as "a method of payment based on units of production or a fraction thereof"].) Their jobs required them to (1) perform a minimum of 10 minutes of mandatory exercise in the morning, (2) attend meetings of approximately 15 minutes in duration, (3) make trips between fields two to three times per month with an average duration of 30 minutes, and (4) take 15-minute rest breaks. Jackpot's workers were compensated only on a piece-rate basis, and they were not separately paid for this nonproductive time and rest time at a rate equal to or greater than <mask>. Citing various provisions of the Labor Code,4 Lainez asserted on behalf of himself and similarly situated Jackpot workers a claim for damages, liquidated damages, interest, and fees.


Gonzalez pointed out that several federal district court decisions had applied Armenta 's holding to piece-rate compensation programs. (Gonzalez, supra, 215 Cal.App.4th at p. 49, 155 Cal.Rptr.3d 18.) Here, plaintiffs cite and rely on federal district court decisions reaching the same conclusion regarding piece-rate compensation programs as Gonzalez . (Cardenas v. McLane FoodServices, Inc. (C.D.Cal. 2011) 796 F.Supp.2d 1246, 1252 [in a case involving truck driver compensation, the court concluded that "a piece-rate formula that does not compensate directly for all time worked does not comply with California Labor Codes, even if, averaged out, it would pay at least <mask> for all hours worked"]; Ontiveros v. Zamora (E.D.Cal., Feb. 20, 2009, No. CIV S-08-567LKK/DAD), 2009 WL 425962, at *3 [applying Armenta's holding to automobile mechanics compensated on piece rate basis]; Ridgeway v. Wal-Mart Stores, Inc. (N.D.Cal. 2015) 107 F.Supp.3d 1044, 1053 [truck drivers paid on a piece-rate basis must be separately compensated for unpaid work activities when under the employer's control]; Villalpando v. Exel Direct Inc. (N.D.Cal. 2016) 161 F.Supp.3d 873, 889 (Villalpando ) [when truck drivers who were paid on a piece-rate basis could not directly earn compensation during pre-trip work hours, the employer could not establish compliance with minimum wage requirements by showing that the drivers' average wages for all hours worked was at or above the minimum wage rate].) As the holdings of those federal cases do not materially differ from the holding of Gonzalez , we do not separately discuss them here.


The plaintiff credibly explores the Federal Davis Bacon Act (US Code, tit 40, § 276a et seq.). That 1931 depression law limits the contract wage rights to the time of the award. It was the first Federal law governing <mask>. They claim the State has overreached in its superior bargaining position in this case. This is more an equity complaint which cannot be determined collaterally on this proceeding. (Necessary parties are not before the court.)


The cases cited by the employer in support of this position deal with instances where a plaintiff after several years moved to amend the bill of particulars to allege new injuries, and to increase the ad damnum without such supporting affidavits, or to do so after trial. (Natale v Pepsi-Cola Co., 7 AD2d 282, 285; Handschu v Weltz, 13 AD2d 679; Koi v P. S. & M. Catering Corp., 15 AD2d 775; Ferrari v Paramount Plumbing & Heating Co., 20 AD2d 878; Jimenez v Seickel & Sons, 22 AD2d 643; Maasch v Corning Co., 29 AD2d 774; London v Moore, 32 AD2d 543; Galarza v Alcoa S. S. Co., 34 AD2d 907; Osborne v Miller, 38 AD2d 298, 300; Pugh v Hoffman, 51 AD2d 950.) This, however, is not the situation here. Plaintiff claims no new injuries. The basis for his motion is that, had he not been disabled by the accident, plaintiff would have been paid a higher wage after 1973 than longshoremen earned at the time of the last amendment. There has been no showing that defendants or third-party defendant would be prejudiced by such an amendment, and they do not claim they were unaware of the <mask> increases. The real basis for their opposition is that granting the motion would let "the jury hear mention of a million dollars”. The only remaining question is, therefore, whether, in a court of general jurisdic*625tion, a request for a large sum of money would, if granted, be sufficiently prejudicial to warrant denial of a motion to increase the amount demanded in the ad damnum.


[W]e acknowledge that the General Assembly enacted the AMWA and allowed "an action for equitable and monetary relief against [the State]." Ark. Code Ann. § 11-4-218(e). Nevertheless, we *658conclude that the legislative waiver of sovereign immunity in section 11-4-218(e) is repugnant to article 5, section 20 of the Arkansas Constitution. In reaching this conclusion, we interpret the constitutional provision, "The State of Arkansas shall never be made a defendant in any of her courts," precisely as it reads. Andrews , 2018 Ark. 12, at 10, 535 S.W.3d 616, 623. Pursuant to this rationale, the majority dismissed the plaintiff-appellee's claim against his State employer for unpaid wages brought pursuant to the Arkansas <mask> Act (AMWA). Id. Effectively, a majority of this court held that the State of Arkansas does not have to pay its employees minimum wage, or at least that no court can make the State pay its employees their wages when it has declined to do so. Id. As one circuit judge put it shortly thereafter, this was a "sea change" that significantly abridged the then-acknowledged exceptions to sovereign immunity-according to Andrews , citizens can no longer recover any legal damages from the State, even if the State has passed a law that specifically says so. Id. Instead, the majority opined, these damaged individuals can try their luck with the Arkansas Claims Commission, a politically created forum where the merits and value of any claim are within the discretion of appointed commissioners, and not subject to the constitutional guarantees of a jury trial or a legal remedy. Id. at 12, 535 S.W.3d at 623.


Like the workers' compensation law in Healy , <mask> requirements are substantive regulations that directly implicate municipal interests in compensation of their employees. But also like the statewide workers' compensation scheme, the statewide minimum wage requirement serves the fundamental purpose of protecting the health and welfare of workers. (See § 3202 [Workers' compensation provisions of the Labor Code "shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment."]; Andersen v. Workers' Comp. Appeals Bd. (2007) 149 Cal.App.4th 1369, 1375-1376, 57 Cal.Rptr.3d 839 ["The purpose of workers' compensation is to extend its benefits for the protection of persons injured on the job."].)


Kao filed suit alleging multiple causes of action, only a few of which are at issue on appeal. Kao alleged breach of contract on the theory he was a third party beneficiary of the H-1B visa application and entitled to the hourly rate stated in the application. Kao also alleged violations of federal and state statutes regulating <mask> and overtime pay, asserting that his monthly salary of $2,000 to $2,500 was below statutory standards for work in excess of 40 hours a week. (29 U.S.C. § 201 et seq. ; Lab. Code, §§ 1194, 1194.2.) Kao further alleged defendants failed to provide adequate wage and hour statements (Lab. Code, § 226 ) and timely payment of wages upon his termination (Lab. Code, § 203 ).


Today's decision essentially ignores the teachings of FLIS in that it abandons the holding that sovereign immunity is to be treated as an affirmative defense. Arkansas Rule of Civil Procedure 8(c) requires that a party shall set forth, in its response to a complaint, counterclaim, cross-claim, or third-party claim, "any other matter constituting an avoidance or affirmative defense." The Arkansas Department of Veterans Affairs (ADVA) did not set forth sovereign immunity as an affirmative defense in its answer; rather, it affirmatively stated that the appellees' claims under the Arkansas <mask> Act (AMWA), Arkansas Code Annotated §§ 11-4-201 et seq. (Repl. 2012), were not barred by sovereign immunity. Sovereign immunity is not a Rule 12(h) defense that is waived by the failure to assert it in the original responsive pleading, and notably, ADVA did not amend its answer pursuant to Rule 15. Although ADVA filed a motion to dismiss, its motion was not filed in response to the *355complaint.3 In reality, ADVA filed a motion for judgment on the pleadings. See Ark. R. Civ. P.-Civ. 12(c) ("[A]fter the pleadings are closed ... any party may move for judgment on the pleadings."). Thus, ADVA moved for judgment on the pleadings, and those pleadings directly contradict ADVA's asserted basis for dismissal.


*641Plaintiffs' second theory of recovery was that, by not counting the improperly shortened meal periods as "time worked," defendant did not pay plaintiffs "the legal minimum wage" under section 1194.3 That is, the "truncated meal periods should have been considered an 'on-duty meal period,' ... and the belt sorters should have been paid at least the <mask> for this time." Plaintiffs asserted this theory of recovery was "separate and distinct from the right to recover a meal period premium" under section 226.7. According to plaintiffs, each class member could recover 30 minutes of pay at the minimum wage for each shortened meal period, plus interest, as well as liquidated damages in the same amount under section 1194.2.4 The amount claimed was $216,486.92.


The city, as afore-mentioned, has the power to deal with persons whom it considers responsible. It also has the power to qualify those persons from whom bids are accepted. The law does, however, demand parity. The requirement of $1.50 <mask> would, and is, applicable to all persons seeking contracts and from those qualifying the lowest responsible bidder will, ‘ ‘ things being equal ’ ’, be accepted.


Plaintiffs are seven former employees of District Anchor, a District of Columbia restaurant previously owned and operated by Defendants. Plaintiffs seek relief from their former employers, alleging that they failed to pay Plaintiffs regular and minimum wages and failed to provide them safe and sick leave as required by law. Plaintiffs bring their claims under the Fair Labor Standards Act, the D.C. <mask> Revision Act, the D.C. Wage Payment and Collection Law, and the District of Columbia Accrued Safe and Sick Leave Act. After Defendants failed to appear, file an answer, or otherwise respond to Plaintiffs’ complaint, the Clerk’s office entered a default against them. Plaintiffs now move for a default judgment against Defendants pursuant to Federal Rule of Civil Procedure 55(b)(2) in the amount of $97,468.69, which is comprised of $13,096.60 in unpaid minimum and regular wages, $39,289.80 in liquidated damages, $4,030.80 in lost wages for unpaid safe and sick leave, $19,253.59 in statutory damages, $21,140.90 in attorneys’ fees, and $657.00 in costs. Because Plaintiffs have met their evidentiary burden, the Court grants their motion for a default judgment. However, as


Mr. Arahovitis worked an average of 37Vz hours each week. No expert or other witness competent to testify as to the value of the services was called to offer an opinion. (Cf. Fisch, NY Evidence [2d ed], § 419.) This does not deprive claimant of a recovery. During the period of his employment, which we find extended for 75 weeks, the <mask> was $1.60 per hour. (Labor Law, former § 652, subd 1, par [c] [repealed L 1978, ch 747, § 1].) Claimant is therefore entitled to compensation of $4,500.


After careful study and deliberation, this court concludes that the Schedule of Rental Values cannot be deemed to come within the Cull case (supra) definition of a rule or regulation.^ Missing as an essential ingredient is the element that a rule or ¡ regulation must be of legal effect, i.e., the administrative counter- j part of a statute of the Legislature, legally binding both the! Administrator and those within its regulatory ambit. (It should! be noted, at the outset, that this element clearly distinguishes the case before the court from Wirtz v. Lobello, 1 A D 2d 416 in which the agency promulgated and duly filed <mask> orders.)


The City seeks to distinguish Sheppard by noting it predates the amendment to section 1197, effective January 1, 2016, which the City asserts altered the applicability of the wage orders. However, that amendment had no effect on the applicability of the wage orders, but instead confirms their continuing operation. (See § 1197 ["The <mask> for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees ...." (Italics added.) ].) The amendment to section 1197 was intended to authorize the Labor Commissioner to investigate and enforce violations of local minimum wage laws, not to abrogate the applicability of IWC wage orders to specific entities. (See Legis. Counsel's Dig., Assem. Bill No. 970 (2015-2016 Reg. Sess.) Stats. 2015, ch. 783, Summary Dig. ["This bill ... authorize[s] the Labor Commissioner to investigate and, upon a request from the local entity, to enforce local laws regarding overtime hours or minimum wage provisions ...."].)


Employees filed suit against Koppers pursuant to the Arkansas <mask> Act (AMWA), Ark. Code Ann. §§ 11-4-201 et seq. for unpaid overtime. They claimed that Koppers violated the AMWA by failing to compensate them for time spent donning and doffing their uniforms and protective equipment and walking to and from their workstations. After filing their complaint, employees moved to certify a class of


"In actions under section 1194 to recover unpaid minimum wages, the IWC's wage orders do generally define the employment relationship, and thus who may be liable." ( Martinez, supra , 49 Cal.4th at p. 52, 109 Cal.Rptr.3d 514, 231 P.3d 259 ; accord, Flowers, supra , 243 Cal.App.4th at p. 74, 196 Cal.Rptr.3d 352 ["Specific employers and employees become subject to the <mask> requirements only through and under the terms of wage orders .... [Citation.] Accordingly, 'an employee who sues to recover unpaid minimum wages actually and necessarily sues to enforce the wage order.' "].) As noted above, "[t]he IWC's wage orders are to be accorded the same dignity as statutes," and "[t]hey are 'presumptively valid' legislative regulations of the employment relationship ...." ( Brinker, supra , 53 Cal.4th at p. 1027, 139 Cal.Rptr.3d 315, 273 P.3d 513.)


Here, the testimony established that both parents were committed and had an emotional bond with the child, and Family Court found that, despite transportation challenges, the father had exercised most of his visitation time. While the mother’s desire to relocate to Florida in an effort to create economic opportunity is admirable, the record demonstrates that, at the time of the hearings, she was working as a hotel desk agent at slightly higher than <mask>. While there was further testimony that the child enjoyed certain recreational opportunities and attended a local day care there, the record as a whole fails to establish “that relocation would substantially enhance the child’s economic, emotional or educational well-being” (Matter of Scheffey-Hohle v Durfee, 90 AD3d at 1428; see Matter of Stetson v Feringa, 114 AD3d at 1091; Rose v Buck, 103 AD3d at 961).


" 'The IWC's wage orders are to be accorded the same dignity as statutes. They are "presumptively valid" legislative regulations of the employment relationship [citation], regulations that must be given "independent effect" separate and apart from any statutory enactments [citation]. To the extent a wage order and a statute overlap, we will seek to harmonize them, as we would with any two statutes.' " ( *64Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1082, 216 Cal.Rptr.3d 889, 393 P.3d 375, quoting Brinker, supra , 53 Cal.4th at p. 1027, 139 Cal.Rptr.3d 315, 273 P.3d 513.) *561The IWC continued periodically to raise the <mask> by amendments to its wage orders. On October 23, 2000 the IWC promulgated a wage order setting the minimum wage as of January 1, 2001 ($6.25 per hour) and January 1, 2002 ($6.75 per hour). (Wage Order No. MW-2001; Cal. Code Regs., tit. 8, § 11000.) That order also made the minimum wage provisions in wage orders regulating certain industries applicable for the first time to "employees directly employed by the State or any political subdivision thereof, including any city, county, or special district." ( Cal. Code Regs., tit. 8, §§ 11040, subd. 1(B) [Wage Order No. 4-2001 governing employees in professional, technical, clerical, mechanical, and "similar" occupations] & 11100, subd. 1(C) [Wage Order No. 10-2001 governing employees in the amusement and recreation industry].)4


Plaintiffs contend there is no conflict between the state <mask> law and the City Charter because the City is free to determine the wages of its employees, so long as those wages are at or above the state minimum. However, the City's charter provides that wages for the City's employees are to be set by the City Council. (Long Beach City Charter, art. V, § 503.) And the MOU setting plaintiffs' wages was adopted by a City Council resolution.


1. Wrongful termination in violation of public policy. ( Lab. Code, §§ 923 [employees may organize], 6310 [retaliation for an OSHA complaint], 6400 [duty to provide a safe work environment], 1102.5 [whistleblower protection].) 2. Unpaid wages under the wage order. ( Cal. Code Regs, tit. 8, § 11090.) 3. Failure to pay <mask>. ( Lab. Code, §§ 1182.12 [minimum wage], 1194 [right of action], 1194.2 [liquidated damages], 1197 [duty to pay minimum wage].) 4. Failure to pay overtime. ( Lab. Code, §§ 510 [overtime], 1194 [right of action].) *5645. Failure to provide meal and rest breaks. ( Lab. Code, §§ 226.7 [rest periods], 512 [meal breaks].) 6. Failure to furnish accurate wage statements. ( Lab. Code, §§ 226 [wage statements], 226.3 [civil penalties], 2699 [PAGA penalties].) 7. Waiting time penalties. ( Lab. Code, §§ 201 -202 [wages and leave due upon departure], 203 [penalties].) 8. Unfair competition (UCL), based on the foregoing violations. ( Bus. & Prof. Code, § 17200 et seq. ; Lab. Code, § 2699 [PAGA penalties].) Defendants moved for summary judgment. Relying on Borello, supra, 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399, they argued all eight causes of action failed because Garcia was an independent contractor, *365not an employee. Erik's declaration established various ways in which BTG did not exercise control over drivers. Garcia and others remained free to set their hours, use the car for personal errands, decline the optional radio dispatch service, keep their collected fares, enter into sublease agreements, hold other jobs, advertise services in their own names, etc.


The express intent of the SAG 1967 Television Agreement is to set out the <mask> scale and working conditions for all persons employed in "television motion pictures.” (See? SAG 1967 Television Agreement para 1.) "Television motion pictures” are defined as: "entertainment motion pictures produced primarily for exhibition over free television whether made on or by film, tape or otherwise, and whether produced by means of motion picture cameras, electronic cameras or devices, or any combination of the foregoing, or any other means, methods or devices now used or which may herein after be adopted.” (Id.)


The statute that pertains to ADC recipients, Social Services Law § 336-c, was enacted in 1990, well after the decision in Young v Toia (supra) where the court recognized that ADC recipients then were not covered by section 164 (2) (a). Here, undoubtedly in response, the Legislature inserted language for wage measurement based on the text of the Constitution, although it did not describe the program as "public work”. Under section 336-c (2) (b), before an ADC recipient may be assigned to WEP, the local social services district must calculate the number of hours an ADC recipient must work, by dividing the family’s benefits by the higher of the State or Federal <mask> or "the rate of pay for persons employed in the same or similar occupations by the same employer at the same or equivalent site”. (Social Services Law § 336-c [2] [b] [emphasis added]; see also, 18 NYCRR 385.12 [k] [5].)


Mejia filed a complaint against the MBM defendants asserting a single cause of action, pursuant to PAGA, to address these various Labor Code violations. Specifically, Mejia identifies the following Labor Code provisions as having been violated: sections 226.7 and 512 (failure to provide meal periods); sections 226.7 (failure to provide rest periods); sections 510, 1194, 1194.2, 1197, and 1198 (failure *730to pay legal <mask> and/or overtime at the correct rate); sections 226 and 226.3 (failure to provide accurate itemized wage statements); and sections 201, 202, 203, 204, and 210 (failure to timely pay all earned wages owed upon separation from employment).


I. Factual & Procedural Background On April 4, 2018, Claimant filed a claim petition asserting that he sustained disabling work-related injuries on January 8, 2018. Reproduced Record (R.R.) at 2a-6a. It was ultimately determined that the proper employer at the time of the incident was WP Ventures, Inc. (WP Ventures), which contested Claimant’s claim petition. WCJ Decision, 1/3/20, at 8. In his deposition, Claimant testified that he receives Social Security Disability (SSD) benefits due to mental health conditions. Certified Record (C.R.) at 238-39. WP Ventures finds part-time <mask> jobs for individuals receiving SSD who wish or need to earn supplemental income. Id. at 240-41. In late 2015 or early 2016, Claimant was placed as a custodial worker at the Center in the Park, a senior citizens’ community center located in a small public park in the Germantown area of Philadelphia. Id. at 243-44 & 259. His duties included cleaning, emptying trash, performing basic maintenance, and setting up the facility for events and meetings. Id. at 249-51. He worked at the Center in the Park for 20 hours a week on weekday afternoons but was paid by WP Ventures. Id. at 248 & 253. On the day of the incident, the facility was being cleaned and ventilated after a roof leak and Claimant was not able to do most of his usual tasks. C.R. at 254 & 286. At about 4:00 p.m., he was hungry and decided to take a break for a cigarette and to get a sandwich at a shop on Germantown Avenue just outside the park. Id. at 255, 308-09 & 323. Claimant testified that he would ask for permission if his supervisor was around, but if his supervisor was not around, it was understood that he could take limited breaks without permission: “[I]f you wanted to take a smoke, and you didn’t have anything scheduled to do at that specific time, you were allowed to go out and maybe get a sandwich if you were hungry or take a smoke.” Id. at 256 & 284-85. Claimant added that it was not a written or specific policy: “When [the supervisor] was there, to be seen, . . . we would ask him directly. But


Counsel for the city point out that the prior constitutional provision prohibited local laws inconsistent with the ‘ ‘ laws of the State ”, whereas the amendment prohibits local laws inconsistent with “any general law”. It is argued that the State <mask> Act is not a “ general law ”, which is defined as a “ law which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages ” (N. Y. Const., art. IX, § 3 subd. [d], par. [1]), because “ the Industrial Commissioner is authorized to establish a different minimum wage rate for different localities in respect to particular industries.” It seems clear, however, that the act is a “general law” in that the provisions for a minimum wage up to $1.25 per hour and for the establishment by the Commissioner of a higher minimum wage for particular occupations, varying with localities, apply alike to all cities and counties. The statute is clearly not a “special law”, which is defined in paragraph (4) (§ 3, subd. [d]) of article IX of the Constitution as “ A law which in terms and in effect applies to one or more, but not all, counties, counties other than those wholly included within a city, cities, towns or villages.” It follows that the 1964 local law violates the constitutional prohibition against local laws inconsistent with “ general laws ” of the State on the same subject.


There is a practical standard to be applied in determining the reasonable value of the plaintiff’s labor. The court takes judicial notice of the fact that in December 1969 the <mask> for unskilled labor, both Federal and State, was $1.60 an hour. I find that the reasonable amount of time for the performance of this work was 10 hours.


Of the eight causes of action alleged in Garcia's complaint, five arise under the wage order: unpaid wages, failure to pay <mask> (which may overlap), failure to provide meal and rest periods, failure to furnish itemized wage statements, and UCL claims based on the foregoing. These claims are governed by the "suffer or permit to work" standard described in Dynamex .


Here, the statewide concern in worker health and welfare is reasonably related to *77the imposition of a <mask>. As discussed above, the minimum wage law does not deprive the City completely of its authority to determine wages. Rather, the law sets a floor based on the Legislature's judgment as to the minimum income necessary for a living wage within this state. The City retains authority to provide wages for its employees above that minimum as it sees fit. The minimum wage requirement therefore intrudes less on local authority than the prevailing wage laws, mandatory binding arbitration requirements, and prohibitions on cost-of-living pay increases held invalid by the Supreme Court. (See City of Vista, supra , 54 Cal.4th at p. 564, 143 Cal.Rptr.3d 529, 279 P.3d 1022 ; County of Riverside, supra , 30 Cal.4th at p. 282, 132 Cal.Rptr.2d 713, 66 P.3d 718 ; Sonoma County, supra , 23 Cal.3d at p. 302, 152 Cal.Rptr. 903, 591 P.2d 1.) As such, the balance struck is " 'sensible and appropriate fashion as between local and state legislative bodies.' " ( California Fed. Savings , supra , 54 Cal.3d at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) This "limited interference ... is substantially coextensive with the state's underlying regulatory interest." ( Id. at p. 25, 283 Cal.Rptr. 569, 812 P.2d 916.)


. Section 661 of the Labor Law provides in pertinent part: “Every employer shall keep true and accurate records of hours worked by each employee covered by an hourly *740<mask> rate, the wages paid to all employees, and such other information as the commissioner deems material and necessary, and shall, on demand, furnish to the commissioner or his duly authorized representative a sworn statement of the same. Every employer shall keep such records open to inspection by the commissioner or his duly authorized representative at any reasonable time * * * Employers shall permit the commissioner or his duly authorized representative to question any employee of such employer in the place of employment and during working hours in respect to wages paid to and the hours worked by such employee or other employees.”


“Violation of Federal Labor Law 29 USC Section 206 “44. . . . the federal <mask> law is codified by 29 USCS Section 206 and applies to Respondents. . . . “46. Respondents’ retroactive taking of wages which were earned by Petitioner would result in Petitioner having worked for wages far below the minimum wage mandated by federal labor law. Therefore, Respondents’ enforcement of TL Section 1613-b and SSL Section 131-r are violative of federal labor laws.” *605The fifth cause of action in the petition alleges, in pertinent part:


Section 663-a of the Labor Law provides as follows: “To effectuate the aim of this article and to protect the <mask> standards and rates provided for women and minors, no male twenty-one years of age or over shall be employed in an occupation at less than the minimum standards or rates of wages fixed for women and minors in such occupation under a minimum wage order.”


The court concluded, "Here, the state law at issue is not a <mask> law of *69broad general application; rather, the law at issue here has a far narrower application, as it pertains only to the public works projects of public agencies. In addition, it imposes substantive obligations on charter cities, not merely generally applicable procedural standards. These distinctions further undermine the Union's assertion that the matter here presents a statewide *567concern and therefore requires Vista, a charter city, to comply with the state's prevailing wage law on the city's locally funded public works projects." ( City of Vista, supra , 54 Cal.4th at pp. 564-565, 143 Cal.Rptr.3d 529, 279 P.3d 1022.)


Labor Code section 203 empowers a court to award "an employee who is discharged or who quits" a penalty equal to up to 30 days' worth of the employee's wages "[i]f an employer willfully fails to pay" the employee his full wages immediately (if discharged) or within 72 hours (if he or she quits). ( Lab. Code, § 203, italics added; see also Lab. Code, §§ 201, subd. (a), 202, subd. (a) ; Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 378, 36 Cal.Rptr.3d 31.) It is called a waiting time penalty because it is awarded for effectively making the employee wait for his or her final paycheck. A waiting time penalty may be awarded when the final paycheck is for less than the applicable wage-whether it be the <mask>, a prevailing wage, or a living wage. ( Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, 326, 37 Cal.Rptr.3d 460 ; Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 779-780, 125 Cal.Rptr.2d 804 ( Road Sprinkler Fitters ).)


*519Husband has again cited facts that might support a decision not to award maintenance to Wife. Husband failed to cite the facts that support the judgment and why, based on those facts, the trial court's decision represents an abuse of discretion. Again, we note that the trial court engaged in an extensive analysis of each of the statutory factors set forth in section 452.335 and stated why under those factors it believed maintenance should be awarded in the specific amount set forth. A review of those facts indicates the long-term marriage during which Wife was primarily a homemaker. Husband had substantial income from two separate sources, one of them a disability payment from the California Highway Patrol. The court imputed a <mask> to Wife. The court analyzed each of Wife's claimed expenses. The court determined that given her age, work history, the award of the marital assets, and Wife's lack of income producing assets and lack of education, Wife's employment income would not meet her reasonable needs. Such careful consideration by the trial court was not an abuse of discretion.


However, even if defendant’s motion is considered to be timely, it should be denied on all three grounds. The second and third grounds hardly warrant discussion. As his second ground, defendant claims that the low statutorily authorized payment for jury service makes it financially impossible for certain persons, i.e., persons who are self-employed, work on commission, or work for an employer that will pay for only two weeks of jury service, to serve as jurors. In support of this argument, defendant relies upon the fact that a number of prospective jurors from the four questioned panels had been excused for reasons of financial hardship. Significantly, defendant has presented no evidence that the jury panels do not include these persons. Therefore, defendant’s challenge is to the petit jury and not the jury venire. As such, the claim is baseless because defendant is not entitled to a petit jury of any particular composition. (Lockhart v McCree, 476 US 162 [1986].) Additionally, defendant’s third asserted ground, that jurors are paid less than the Federal <mask>, is not an articulable challenge to the Bronx County jury venire and therefore is not a basis for relief.


The Legislature of this State has recognized the fact that employer and employee do not meet on an equal footing; that the employer in his superior position ofttimes conditions the terms of employment to his own best advantage. Realizing that fact, the Legislature has found that certain conditions so imposed by the employer are detrimental to the welfare of both the State and the individual employee. Thus, for example, hours of employment (Labor Law, art. 5), manner and time of payment of wages (Id. art. 6), and <mask> standards for women and minors (Id. art. 19) are being regulated. The minimum wage standard law for women and minors was enacted on the authority of West Coast Hotel Co. v. Parrish (300 U. S. 379), which held a similar Washington statute to be constitutional. In the New York statute (Labor Law, § 551) the Legislature declared the public policy of the State to be “ that women and minors employed in any occupation should receive wages sufficient to provide adequate maintenance and to protect their health.”


This action was filed as a class action. The operative pleading names two plaintiffs, Fernando Jimenez Sanchez and Porfirio Preciado. It alleges they brought this action as a class action, on behalf of themselves and all other similarly situated current and former employees of defendant who worked as drivers. Defendant is a trucking company and plaintiffs were employed as drivers to transport milk within California; they were paid on a piece-rate1 basis for driving and at a contractual rate for certain other activities. Plaintiffs allege defendant enforced policies that: imposed a piece-rate system that failed to compensate employees for all "hours worked," as defined by law; failed to authorize or permit rest breaks by not separately compensating for them at an hourly rate; failed to schedule meal periods, provide uninterrupted duty-free meal periods of at least 30 minutes, or pay employees for on-duty meal periods; failed to pay premiums when rest or meal breaks were not provided; failed to maintain accurate records of employee time; failed to provide accurate wage statements; and failed to pay all wages owed upon termination of employment. Plaintiffs assert causes of action for: (1) failure to pay at least <mask> or the contractual rate for all hours worked, including "nonproductive time"; (2) failure to provide rest periods or premium wages in lieu of them; (3) failure to provide meal periods or premium wages in lieu of them; (4) failure to provide accurate wage statements; (5) failure to timely pay wages due at termination; and (6) violation of the unfair competition law ( Bus. & Prof. Code, § 17200 et seq. ).


New York’s <mask> law demands that "every employer shall pay to each of his employees in every occupation” a specified minimum wage (Labor Law, § 652, subd 1, par [g]) and after defining "employee” for minimum wage purposes to include "any individual employed or permitted to work by an employer in any occupation” the statute (Labor Law, § 651, subd 5) then excludes from the coverage of the law certain categories of employment not here relevant. The core issue in this litigation is whether or not the subject students, when they participate at retail pharmacies in the aforesaid professional practice program of the plaintiff, are then individuals "employed or permitted to work by an employer in [an] occupation”, that is, are they then in the relationship which is now generally referred to as an employment relationship but which used to be more generally termed as the relationship of master and servant.


In December 2013, Halim pleaded guilty to misuse of visas in violation of title 8 United States Code section 1546(a). Anwar pleaded guilty to <mask> violations under the Fair Labor Standards Act ( 29 U.S.C. §§ 206(f), 215 ). The first paragraph of Halim's plea agreement stated: "This agreement is limited to the USAO and cannot bind any other federal, state, local, or foreign prosecuting, enforcement, administrative, or regulatory authorities." In February 2014, Halim was sentenced to five years probation, 400 hours of community service, and was ordered to pay restitution in the amount of $137,669 and a $50,000 fine. Anwar was sentenced to two years probation, 100 hours of community service, and was ordered to pay a $10,000 fine.


This court holds that plaintiff’s violation is overshadowed by defendant’s entire course of deceptive conduct and, therefore, plaintiff is entitled to payment under the New York State Labor Law of the <mask> then in effect for the period from January 1, 1973 to May 13, 1974, amounting to $6,629.60 (the initial 15 weeks constituting the period of plaintiff’s apprenticeship), plus liquidated damages of $1,657.40, equal to 25%, totaling $8,287. In addition, defendant shall play the sum of $1,500 as and for reasonable attorney’s fees.


We conclude legislation setting a statewide <mask>, generally applicable to both private and public employees, addresses the state's interest in protecting the health and welfare of workers by ensuring they can afford the necessities of life for themselves and their families. Thus, the Legislature may constitutionally exercise authority over minimum wages, despite the constitutional reservation of authority in charter cities to legislate as to their municipal affairs. We reverse.


In this case, because of the claim for lost earnings, plaintiff had to plead special damages, now estimated at $160,000, which figure obviously accounts for only part of the $750,000 increase plaintiff now seeks. The remainder, therefore, must be an increase in general damages. Had plaintiff at this point in the case sought to amend so as to eliminate the specification of the amount of general damages, and thus expose defendants to unlimited liability, it might indeed be prejudicial to grant the motion. However, in light of the nature of the injuries previously alleged and the continued erosion of the value of the dollar since the last amendment, it should come as no surprise to the defendants that plaintiff now seeks a further amendment. Nor is the sum sought unreasonable under the circumstances. It must be noted that plaintiff could have demanded one million, or even 20 million, dollars in his original complaint and defendants could not have prevented the jury from hearing the word "million”, which is not in itself prejudicial. Jurors are not so naive that they will automatically award plaintiff $1,000,000 merely because he asks for it, and those that are will presumably be weeded out by defendants in the selection process. Moreover, no purpose would be served by requiring the plaintiff to make an annual motion to amend whenever the longshoremen’s *627<mask> increased instead of doing so just once prior to trial.


In Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, 155 Cal.Rptr.3d 18 ( Gonzalez ), the Second District held that in addition to the piece-rate compensation paid by an automotive repair service, the service's technicians were entitled to separate hourly compensation for time spent waiting for repair work or performing other nonrepair tasks directed by the employer, even though the employer supplemented the technicians' compensation to cover any shortfall between the piece-rate wage and <mask> rate. ( Id. at pp. 40-41, 155 Cal.Rptr.3d 18.) Shortly thereafter, this court held that an employee subject to piece-rate compensation must also be paid for rest periods. ( Bluford v. Safeway Stores, Inc . (2013) 216 Cal.App.4th 864, 866, 871-873, 157 Cal.Rptr.3d 212 ( Bluford ).)


But in Garcia v Freeland Realty (63 Misc 2d 937) the court noted that the landlord had a statutory duty to repair and paint the apartments in the multiple dwelling. Though not recognizing an implied warranty of habitability, in allowing the tenant the cost of materials and <mask> allowance for his time in painting, the court took a different tack from previous decisions which had held that duties statutorily imposed are enforcible by the municipality only. In Jackson v Rivera (65 Misc 2d 468), the court not only recognized the warranty in this nonpayment proceeding but allowed the tenant’s claim for $22 for the repair of *645the tenant’s toilet. The court stated {supra, at p 471): “a tenant may make repairs and deduct their reasonable cost from rent when (1) the condition in question creates an emergency seriously affecting the habitability of the home, (2) the landlord has refused to make the repairs, and (3) the condition cannot reasonably be permitted to continue until code enforcement proceedings have run their course.” (Italics supplied.) In Kekllas v Saddy (88 Misc 2d 1042), the court recognized repair and deduct as a valid remedy but because no notice was given to the landlord, the tenant could not recover. The question of excessive cost to remove the odor complained of was also considered by the court in denying relief to the tenant. Thus, in order for a tenant to recover in these repair and deduct situations, it is apparent that the tenant must give notice to the landlord (see Altz v Lieberson, 233 NY 16, 18), and that the condition or violation complained of must be substantial in that it affects the habitability of the premises and that the landlord has either refused or has not repaired in reasonable time after reasonable opportunity to repair has been given to the landlord. A tenant making the repairs under these circumstances will be allowed to set off or deduct from the rent provided that the cost is reasonable and not excessive.


"I'm going to—I want the journal entry to reflect that I believe the total restitution obligation to be as agreed by counsel at $54,601.01. That is an amount that may be factored in by the parole board or post-release supervising authority when he is released if they undertake the recommendation that I made. I will order as far as payment is concerned that he pay in restitution the sum of $12,547.39, which represents the amounts of the Topeka ENT billing, the Lyon County Ambulance billing, and the Newman Regional Health billing. "Mr. Smith has no physical disabilities of which we are aware. He has reasonable trade skills which would allow him to be employed at employment compensation levels certainly greater than <mask> and certainly greater than what he was earning at [the fast-food restaurant]. As his employment history would indicate, he is capable of earning wages in excess of $14 per hour. And while it may take some time to do so, I'm not aware of any time limit on this restitution obligation, so, therefore, I am going to fix, his restitution at the sum of $200 per month at such time as he becomes employed, which would allow this to be paid in a fairly reasonable time period." (Emphases added.)


The Temple relies on a number of pre- Hosanna-Tabor cases that have interpreted the ministerial exception broadly and have suggested that it exempts from court scrutiny all " 'employment decisions regarding ... ministers,' " without regard to whether those decisions "actually burden" the free exercise of religion or result in excessive government entanglement with religion. ( Alcazar v. Corp. of Catholic Archbishop of Seattle (9th Cir. 2010) 598 F.3d 668, 673-674 ( Alcazar ), aff'd in part & vacated in part (9th Cir. 2010) 627 F.3d 1288 [ministerial exception barred application of Washington's <mask> Act to Catholic seminarians suing for overtime wages]; see also Skrzypczak v. Roman Catholic Diocese of Tulsa (10th Cir. 2010) 611 F.3d 1238 [ministerial exception barred religious director's post-termination claims against church for violations of various antidiscrimination laws, including the Equal Pay Act]; Shaliehsabou v. Hebrew Home of Washington (4th Cir. 2004) 363 F.3d 299 [ministerial exception barred kosher supervisor's overtime claim under FLSA]; Schleicher v. Salvation Army (7th Cir. 2008) 518 F.3d 472 [ministerial exception barred minimum wage and overtime claims brought by Salvation Army ministers under FLSA].) In the view of those cases, an "actual burden" inquiry is not necessary because "government interference with the church-minister relationship inherently burdens religion." ( Alcazar , at p. 673,.) The Temple urges this broad view of the ministerial exception, suggesting that requiring a religious employer to demonstrate burden or excessive entanglement "miss[es] the point."