(Violation of FLSA Overtime/Unlawful Deduction/Recordkeeping Provisions)  113.   Plaintiffs repeats and realleges all paragraphs above as though fully set forth  herein.  114.  At all times relevant to this action, Defendants were Plaintiffs’ employers (and  employers of the putative FLSA Class members) within the meaning of the Fair Labor Standards  Act, 29 U.S.C. § 203(d). Defendants had the power to hire and fire Plaintiffs (and the FLSA class  members), control the terms and conditions of employment, and determine the rate and method  of any compensation in exchange for their employment.  115.  At all times relevant to this action, Defendants were engaged in commerce or in  an industry or activity affecting commerce.  116.  Defendants constitute an enterprise within the meaning of the Fair Labor  Standards Act, 29 U.S.C. § 203 (r-s).  21  117.  Defendants, in violation of the FLSA, failed to pay Plaintiffs (and the FLSA Class  members) overtime compensation at rates of one and one-half times the regular rate of pay for  each hour worked in excess of forty hours in a workweek, in violation of 29 U.S.C. § 207 (a)(1).  118.  Defendants’ failure to pay Plaintiffs (and the FLSA Class members) overtime  compensation was willful within the meaning of 29 U.S.C. § 255(a).  119.  Defendants took unlawful deductions from Plaintiffs’ earned wages and the FLSA  Collective’s earned wages.   120.  Defendants, in violated of the FLSA, failed to pay Plaintiffs agreed-upon wages  by virtue of their withholding policies, time-clock policies and chargeback policies as described  herein.  121.  Defendants failed to satisfy the FLSA’s recordkeeping requirements.  122.  Defendants acted willfully in their violations of the FLSA’s requirements.  123.   Plaintiffs (and the FLSA Collective) was damaged in an amount to be determined  at trial.  (Violation of the Overtime/Unpaid Wages/Unlawful Deductions/Spread-of-Hours- Pay/Recordkeeping/Wage Statement Provisions of NYLL/Frequency of Payment)  124.  Plaintiffs repeats and realleges all paragraphs above as though fully set forth  herein.  125.  At all times relevant to this action, Defendants were Plaintiffs’ employers within  the meaning of the N.Y. Lab. Law §§ 2 and 651. Defendants had the power to hire and fire  Plaintiffs, control terms and conditions of employment, and determine the rates and methods of  any compensation in exchange for employment.  126.  Defendants, in violation of the NYLL and associated rules and regulations, failed  to pay Plaintiffs overtime compensation at rates of one and one-half times the regular rate of pay  for each hour worked in excess of forty hours in a workweek, in violation of N.Y. Lab. Law §  190 et seq. and supporting regulations of the New York State Department of Labor.  127.  Defendants failed to pay Plaintiffs (and the Class members) in a timely fashion, as  require by Article 6 of the New York Labor Law.   128.  Defendants failed to provide Plaintiffs (and the Class members) with a paycheck  every week. Rather, they paid him every  two (2) weeks, in violation of violation of Labor Law §  191(1)(a) which requires weekly payment of manual workers.  129.  Defendants’ failure to pay Plaintiffs (and the Class members) overtime  compensation was willful within the meaning of N.Y. Lab. Law § 663.  130.  Defendants, in violation of the NYLL, failed to pay Plaintiffs agreed-upon wages  by virtue of their withholding policies, time-clock policies and chargeback policies as described  herein.  131.  Plaintiffs (and the Class Members) was damaged in an amount to be determined  at trial.  132.  Plaintiffs repeats and realleges all paragraphs above as though fully set forth  herein.  133.  Defendants failed to pay Plaintiffs (and the Class) one additional hour’s pay at the  basic minimum wage rate before allowances for each day Plaintiffs’ spread of hours exceeded  23  ten hours in violation of New York Lab. Law §§ 190 et seq. and 650 et seq. and the wage order  of the New York Commissioner of Labor codified at N.Y. COMP. CODES R. & REGS. Tit. 12, §  137-1.7 and 137-3.11.  134.  Defendants’ failure to pay Plaintiffs (and the Class) an additional hour’s pay for  each day Plaintiffs’ (and the Class) spread of hours exceeded ten hours was willful within the  meaning of New York Lab. Law § 663.  135.  Plaintiffs (and the Class members) was damaged in an amount to be determined at  trial.  136.  Plaintiffs repeats and realleges all paragraphs above as though fully set forth  herein.  137.  Defendants failed to provide Plaintiffs with a written notice, in English and in  Spanish (Plaintiffs’ primary language), of his rate of pay, regular pay day, and such other  information as require by NYLL §195(1).   138.  Defendants are liable to Plaintiffs in the amount of $5,000 together with costs and  attorney’s fees.  139.  Plaintiffs repeats and realleges all paragraphs above as though set forth fully  herein.  140.  Defendants did not provide Plaintiffs with wage statements upon each payment of  wages, as required by NYLL 195(3).   141.  Defendants acted willfully in his violation of the above-described NYLL  requirements.  17.  Plaintiffs bring his FLSA claims on behalf of themselves and all similarly situated  persons who work or have worked for Defendants on or after December 8, 2013, who elect to  opt-in to this action (the “FLSA Collective”).    18.  All of the work that Plaintiffs and the FLSA Collective have performed has been  assigned by Defendants and/or Defendants have been aware of all of the work that Plaintiffs and  the FLSA Collective have performed.   19.  As part of his regular business practice, Defendants have intentionally, willfully  and repeatedly engaged in a pattern, practice and/or policy of violating the FLSA with respect to  Plaintiffs and the FLSA Collective. This policy and pattern or practice includes, but is not  limited to:   5  a. Willfully failing to pay overtime wages for hours worked in excess of 40  hours per week;   b. Willfully failing to keep records that satisfy statutory requirements.   20.  At all relevant times, Plaintiffs and other members of the FLSA Class who are  and/or have been similarly situated, have had substantially similar job requirements and pay  provisions, and have been subject to Defendants’ common practices, policies, programs,  procedures, protocols and plans of willfully failing and refusing to pay them the require overtime  pay at a one and one-half his regular rates for work in excess of forty (40) hours per workweek  under the FLSA, willfully taking improper wage deductions and other improper credits against  Plaintiffs’ wages for which Defendants did not qualify under the FLSA, and willfully failing to  keep records require by the FLSA.   21.  The claims of Plaintiffs stated herein are similar to those of the other employees  and Plaintiffs and the FLSA Collective all perform or performed the same primary duties.    22.  Defendants are aware that FLSA required them to pay employees performing  non-exempt duties, including Plaintiffs and the FLSA Collective overtime premium for hours  worked in excess of 40 hours per workweek.    23.  Defendants’ unlawful conduct has been widespread, repeated and consistent.  24.  Plaintiffs bring certain NYLL claims pursuant to FRCP 23 on behalf of all of  Defendants’ employees who work or have worked for Defendants from December 8, 2013 and  the date of final judgment in this matter (“the Class”).    25.  Excluded from the Class are, inter alia, Defendants’ employees who will submit  timely and otherwise proper requests for exclusion from the Class.    26.  On information and belief, the size of the Class is roughly 10 individuals.  Although the precise number is unknown, the facts on which the calculation of that number  depends are presently within the sole control of Defendants.    27.  Common questions of law and fact exist as to the Class that predominate over any  questions only affecting them individually and include, but are not limited to, the following:   a. Whether Defendants violated Article 6 of the NYLL and the supporting NYS  Department of Labor regulations;   b. Whether Defendants failed to compensate the Class for hours worked in  excess of 40 hours per workweek;  c. Whether Defendants misclassified Plaintiffs and members of the Class as  exempt;  d. Whether Defendants failed to keep true and accurate time and pay records for  all hours worked by Plaintiffs and the Class, and other records required by  the NYLL;   e. Whether Defendants’ policy of failing to pay workers was instituted willfully  or with reckless disregard of the law; and  f. The nature and extent of class-wide injury and the measure of damages for  those injuries.    28.  Plaintiffs’ claims are typical of the Class’s claims that they seek to represent.  Defendants employed Plaintiffs and the Class in New York State. Plaintiffs and the Class enjoy  7  the same NYLL rights to receive overtime; to be protected from unlawful deductions; to have  legally sufficient record-keeping. Plaintiffs and the Class have all sustained similar type of  damages as a result of Defendants’ non-compliance with the NYLL. Plaintiffs and the Class have  all been injured by virtue of Defendants’ under compensation of them or Defendants’ failure to  compensate them due to Defendants’ common policies, practices and patterns of conduct.    29.  Plaintiffs will fairly and adequately represent and protect the interests of the  Class’s members. Plaintiffs understand that as class representatives they assume a fiduciary  responsibility to the class to represent its interests fairly and adequately. Plaintiffs recognize that  as class representatives, they must represent and consider the interests of the class just as they  would represent and consider their own interests. Plaintiffs understand that in decisions  regarding the conduct of the litigation and its possible settlement, they must not favor his own  interests over the Class’s interests. Plaintiffs recognize that any resolution of a class action must  be in the best interest of the Class. Plaintiffs understand that in order to provide adequate  representation, they must be informed of developments in litigation, cooperate with class  counsel, and testify at deposition/trial. Plaintiffs have retained counsel competent and  experienced in complex class actions and employment litigation. There is no conflict between  Plaintiffs and the Class.    30.  A class action is superior to other available methods for the fair and efficient  adjudication of this litigation. The members of the Class have been damaged and are entitled to  recovery as a result of Defendants’ violation of the NYLL as well as its common and uniform  policies, practices and procedures. Although the relative damages suffered by individual  members of the Class are not de minimis, such damages are small compared to the expense and  burden of individual prosecution of this litigation. For example, Class members lack the financial  resources to conduct a thorough examination of Defendants’ timekeeping and compensation  practices and to prosecute vigorously a lawsuit against Defendants to recover such damages. In  addition, class litigation is superior because it will obviate the need for unduly duplicative  litigation that might result in inconsistent judgments about Defendants’ practices.    31.  This action is properly maintainable as a class action under FRCP 23(b)(3).  41.  Defendants operate a construction contracting company where the Plaintiffs  worked. At all relevant times, Individual Defendants Serge Pisman possess or possessed  operational control over Defendant Corporations; possess or possessed an ownership interest in  Defendant Corporations, and control or controlled significant functions of Defendant  Corporations.    42.  Corporate Defendants purport to be separate corporate entities. On information  and belief, this is not true and Defendants have manipulated the corporate forms in order to  deprive Plaintiffs and other employee members of the Proposed Class of FLSA, NYLL and other  state law protections.    43.  Corporate Defendants and Individual Defendants are associated and joint  employers, act in the interest of each other with respect to employees, pay employees by the  same method, and share control over the employees.   44.  At relevant times, each Corporate Defendant possessed substantial control over  Plaintiffs’ and other similarly situated employees’ working conditions, and over the policies and  practices with respect to the employment and compensation of Plaintiffs, and all similarly  situated individuals, referred to herein.   45.  Corporate Defendants jointly employed Plaintiffs, and all similarly situated  individuals, and are Plaintiffs’ and all similarly situated individuals employers within the  meaning of 29 U.S.C. 201 et seq. and the NYLL.  11   46.  In the alternative, Corporate Defendants constitute a single employer of Plaintiffs  and/or similarly situated individuals, as the corporate divisions between them are fictional.   47.  Upon information and belief, Individual Defendants Serge Pisman,   Operate each Defendant Corporation as the alter ego of the other one, and/or fail to operate  Defendant Corporation as legal entities separate and apart from themselves by, among other  things:   (a)  failing to adhere to the corporate formalities necessary to operate Defendant  Corporation as separate and legally distinct entities;   (b)  defectively forming or maintaining Defendant Corporation by, among other  things, failing to hold annual meetings or maintaining appropriate corporate records;   (c)  transferring assets and debts freely as between all Defendants;   (d)  operating Defendant Corporation for Individual Defendants’ own benefit as the  sole or majority shareholder(s) even as the Defendant Corporation operated collectively in the  execution of his moving business;   (e)  operating Defendant Corporation for each Individual Defendants’ own benefit and  maintaining control over it as a closed corporation or closely controlled entity;   (f)  intermingling assets and debts of Defendants Corporations;   (g)  diminishing and/or transferring assets of Defendant Corporation to protect his  own interests; and   (h)  other actions evincing a failure to adhere to the corporate form.   48.  At all relevant times, Individual Defendants were Plaintiffs’ employers within the  meaning of the FLSA, NYLL and other law.    49.  Individual Defendants had the power to hire and fire Plaintiffs, control the terms  and conditions of employment, and determine the rate and method of any compensation in  exchange for Plaintiffs’ services.    50.  Individual Defendants supervised Plaintiffs’ work schedules and conditions of his  employment.   51.  Individual Defendants also determined the rate and method of payment for  Plaintiffs and other similarly situated employees.    52.  Individual Defendants also controlled and guided what limited recordkeeping that  took place which Plaintiffs contends is deficient pursuant to FLSA and NYLL requirements.   Individual Plaintiff Jonathan Arriaga    53.  Plaintiff is a former employee of Defendants, primarily employed in performing  the duties of a plumber’s assistant.   54.  Plaintiff did not work at his own convenience, having to report to work according  to a schedule devised by Defendants. Furthermore, once scheduled for a shift, Plaintiff did not  come and go at his pleasure, but rather was controlled by Defendant.    55.  Plaintiff worked (6) or (7) six days per week for 10 hours per day and was paid a  $12 per hour. Many times, Plaintiffs had to stay past his regularly scheduled departure time to  complete his job duties. Defendants never paid him for that extra time.    56.  Plaintiff is non-exempt under FLSA and the NYLL. Among other things, Plaintiff  did not occupy what law would characterize as “professional,” “executive” or even  “administrative” positions, as Plaintiffs’ employment for Defendants was physical labor.  Plaintiffs did not receive salary and their primary duties  13   57.  Plaintiff commences this action as a collective action under 29 U.S.C. § 216(b)  and as a putative class action under FRCP 23 with respect to the New York state law claims.    58.  Plaintiffs Arriaga was employed by Defendants from approximately June 2016  until August 25, 2017.    59.  Plaintiffs Arriaga regularly handled goods in interstate commerce, such pipes,  cement and hardware that were necessary to perform their work and that were produced outside  of the State of New York.     60.   Plaintiffs Arriaga’s work duties required neither discretion nor independent  judgment.    61.  Throughout his employment with Defendants, Plaintiffs Arriaga regularly worked  in excess of 40 hours per week.    62.  From approximately 2016 until his departure in August 2017 Plaintiff Arriaga  worked about (6) six or (7) days per week. Typically, 7:30am to 5:30pm.   63.  Plaintiffs Arriaga worked (60) sixty to (70) seventy hours per week with a half  hour break per day.    64.  From 2016 until his departure in August 2017, Plaintiff Jonathan Arriaga was  paid $12 per hour at straight time, and not at the premium time and a half required by law.     65.  Defendants did not provide Plaintiffs Arriaga with each payment of wages an  accurate statement of wages, as require by NYLL 195(3).   66.  Defendants did not provide Plaintiff Arriaga with a paycheck every week. Rather,  they paid him every two (2) weeks, in violation of violation of Labor Law § 191(1)(a) which  requires weekly payment of manual workers.   67.  Defendants never provided Plaintiffs Arriaga with a written notice, in English and  in Spanish (Plaintiffs Arriaga’s primary language), of his rate of pay, employer’s regular pay  day, and such other information as require by NYLL §195(1).    Individual Plaintiff Maldonado   68.  Plaintiff Maldonado is a former employee of Defendants, primarily employed in  performing the duties of welder and plumber.    69.  Plaintiff did not work at his own convenience, having to report to work according  to a schedule devised by Defendants. Furthermore, once scheduled for a shift, Plaintiff did not  come and go at his pleasure, but rather was controlled by Defendants.    70.  Plaintiffs worked a schedule for Defendants from 7:30am to 5:30pm. Many times,  Plaintiff had to stay past midnight to complete his work at the different buildings that he serviced  through his employer, Marcon Contracting.     71.  Plaintiff is non-exempt under FLSA and the NYLL. Among other things, Plaintiff  did not occupy what law would characterize as “professional,” “executive” or even  “administrative” positions, as Plaintiffs’ employment for Defendants was physical labor. Plaintiff  did not receive salary but an hourly wage that changed throughout the years and sometimes  varied per project.    72.  Plaintiff commences this action as a collective action under 29 U.S.C. § 216(b)  and as a putative class action under FRCP 23 with respect to the New York state law claims.    73.  Plaintiff Maldonado was employed by Defendants from approximately June 2013  until November 11th, 2018.   15   74.  Plaintiff Maldonado regularly handled goods in interstate commerce, such  hardware and plumbing materials that were necessary to perform his work and that were  produced outside of the State of New York.     75.   Plaintiff Maldonado’s work duties required neither discretion nor independent  judgment.    76.  Throughout his employment with Defendants, Plaintiff Maldonado regularly  worked in excess of 40 hours per week.    77.  From approximately December 2013 until his departure in November 2018  Plaintiff Maldonado worked from 7:30am until on or about 5:30pm.    78.  For approximately six (6) months in 2014, Plaintiff Maldonado worked on a city  contract where he was supposed to be paid $90 per hour. Instead, Serge Pisman asked him to lie  and tell the City Inspectors if they came, that he was earning this amount.     79.  Individual Defendant paid him a certain amount of money conforming to the City  contract and after Plaintiff Maldonado deposited the check, he had to give back Individual  Defendant Pisman money back.    80.  Plaintiffs Maldonado worked (60) sixty to (70) seventy hours per week with a half  hour break per day.    81.  From June 2013, he received a payment of $10 per hour. This amount increased to  $11 per hour after 4 months or October 2013, then increased to $12 in December of 2013.     82.  In January 2014, Plaintiff Maldonado was promoted to “Mechanic and Plumber”  and was earning $14 per hour.     83.  In April of 2016, Plaintiff Maldonado’s salary was raised to $17 per hour.   84.  In August of 2017, Plaintiff Maldonado’s salary was raised to $20 per hour. He  warned $20 per hour until his departure in November 12th, 2019.   85.  Plaintiff was paid his wages by check, every two (2) weeks, in violation of  violation of Labor Law § 191(1)(a) which requires weekly payment of manual workers.   86.  Defendants did not provide Plaintiff Maldonado with each payment of wages an  accurate statement of wages, as required by NYLL 195(3).   87.  Defendants did not provide Plaintiff Maldonado with a paycheck every week.  Rather, they paid him every two (2) weeks, in violation of violation of Labor Law § 191(1)(a)  which requires weekly payment of manual workers.   88.  Defendants never provided Plaintiffs Maldonado with a written notice, in English  and in Spanish (Plaintiffs Maldonado’s primary language), of his rate of pay, employer’s regular  pay day, and such other information as require by NYLL §195(1).    Individual Plaintiff Raul Simbana    89.  Plaintiff Simbana is a former employee of Defendants, primarily employed in  performing the duties of an assistant to the plumber and mechanic.    90.  Plaintiff Simbana did not work at his own convenience, having to report to work  according to a schedule devised by Defendants. Furthermore, once scheduled for a shift, Plaintiff  did not come and go at his pleasure, but rather was controlled by Defendants.    91.  Plaintiff Simbana worked a schedule of 7:30am to 5:30 PM. Many times, Plaintiff  had to go to Home Depot to buy supplies at 6:00 am and was not compensated for this  extra  time.   17   92.  Plaintiff Simbana is non-exempt under FLSA and the NYLL. Among other  things, Plaintiff did not occupy what law would characterize as “professional,” “executive” or  even “administrative” positions, as Plaintiffs’ employment for Defendants was physical labor.  Plaintiffs did not receive salary and their primary duties   93.  Plaintiff Simbana commences this action as a collective action under 29 U.S.C. §  216(b) and as a putative class action under FRCP 23 with respect to the New York state law  claims.    94.  Plaintiff Simbana was employed by Defendants from approximately August 28,  2017 until October 20th, 2018    95.  Plaintiff Simbana regularly handled goods in interstate commerce, such as food  and products sold at the restaurant that were necessary to perform their work and that were  produced outside of the State of New York.     96.   Plaintiffs Simbana’s work duties required neither discretion nor independent  judgment.    97.  Throughout his employment with Defendants, Plaintiff Simbana regularly worked  in excess of 40 hours per week.    98.  From approximately August 28, 2017 until his departure in October 20th, 2019  Plaintiff Simbana worked from (6) six to (7) seven days per week.     99.  Plaintiff Simbana worked (60) sixty to (70) hours per week with a half hour break  per day.   100.  Defendants did not provide Plaintiff Simbana with each payment of wages an  accurate statement of wages, as require by NYLL 195(3).  101.  Defendants did not provide Plaintiff Maldonado with a paycheck every week.  Rather, they paid him every two (2) or (3) weeks, in violation of violation of Labor Law §  191(1)(a) which requires weekly payment of manual workers.  102.  Defendants never provided Plaintiff Simbaba with a written notice, in English and  in Spanish (Plaintiffs Arriaga’s primary language), of his rate of pay, employer’s regular pay  day, and such other information as require by NYLL §195(1).    Defendants’ General Employment Practices  103.  Defendants regularly require Plaintiffs to work in excess of forty (40) hours per  week without paying him the proper overtime wages or spread of hours compensation.   104.  At all times relevant to this complaint, Defendants maintained a policy and  practice of requiring Plaintiffs and all similarly situated employees to work in excess of forty  (40) hours per week without paying them appropriate overtime compensation or spread of hours  compensation, as require by federal and state laws.  105.  Defendants willfully disregarded and purposefully evaded record keeping  requirements of the Fair Labor Standards Act and New York Labor Law by failing to maintain  accurate and complete timesheets and payroll records.  106.  By employing this practice, Defendants avoided paying Plaintiffs at the overtime  rate of time and a half for most or all of their hours worked in excess of forty (40) hours per  week.  107.  Defendants failed to post require wage and hour posters and did not provide  Plaintiffs with statutorily require wage and hour records or statements of their pay received, in  19  part so as to hide Defendants’ violations of the wage and hour laws, and to take advantage of  Plaintiffs’ relative lack of sophistication in wage and hour laws.  108.  Upon information and belief, these practices by Defendants were done willfully to  disguise the actual number of hours Plaintiffs (and similarly situated individuals) worked, and to  avoid paying Plaintiffs properly for (1) their full hours worked, (2) for overtime due, and (3) for  spread of hours pay.  109.  Defendants did not provide Plaintiffs, and similarly situated employees, with the  wage statements and annual pay notices require by NYLL §§195(1) and 195(3).   110.  Defendants did not provide Plaintiffs and similarly situated emploees with a  paycheck every week. Rather, they paid him every  two (2) weeks, in violation of violation of  Labor Law § 191(1)(a) which requires weekly payment of manual workers.  111.  Defendants failed to provide Plaintiffs and other employees with wage statements  at the time of payment of wages, containing: the dates of work covered by that payment of  wages; name of employee; name of employer; address and phone number of employer; rate or  rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece,  commission, or other; gross wages; deductions; allowances, if any, claimed as part of the  minimum wage; net wages; the regular hourly rate or rates of pay; the overtime rate or rates of  pay; the number of regular hours worked, and the number of overtime hours worked, as require  by NYLL §195(3).  112.  Defendants failed to provide Plaintiffs and other employees, at the time of hiring  and on or before February 1 of each subsequent year, a statement in English and the employees’  primary language, containing: the rate or rates of pay and basis thereof, whether paid by the  hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of  the minimum wage, including tip, meal, or lodging allowances; the regular pay day designated  by the employer; the name of the employer; any "doing business as" names used by the  employer; the physical address of the employer's main office or principal place of business, and a  mailing address if different; and the telephone number of the employer, as require by New York  Labor Law §195(1).  Defendants Constitute Joint Employers  