(FLSA Collective Action)   (NYLL Class Action)   15.  Defendants own and operate two restaurants in the New York City area under the  trade name Libertador.   16.  From on or around September 2, 2019 until her termination on or around October  2, 2019, Plaintiff worked for Defendants as a food server at the Libertador restaurant located at  1725 Second Avenue in Manhattan (“Restaurant”).  Throughout her employment Plaintiff was  paid at the rate of $10 per hour, the tip-credit minimum wage under the NYLL.   18.  However, not all of Plaintiff’s worked time was recorded by Defendants.  At the  beginning of their shifts, Plaintiff and others similarly situated would be “clocked in” by one of  the Individual Defendants.  When they finished their server duties, Plaintiff and others similarly  situated would be “clocked out” by one of the Individual Defendants.  At no point were Plaintiff  or others similarly situated allowed to clock in or clock out for themselves.   19.  After clocking out, Plaintiff and others similarly situated were required to do  additional (non-tipped) work, such as cleaning the Restaurant and preparing service reports.   Plaintiff routinely performed approximately 1.5 to 2 hours of such work per shift.  However,  Plaintiff and others similarly situated were still paid at the tip-credit minimum wage no matter  how much time they spent performing non-tipped work.   20.  Moreover, Defendants did not pay Plaintiff and others similarly situated for any  work performed after they had been clocked out, either at the regular NYLL-mandated minimum  wage of $15 or at the tip-credit minimum wage of $10.   21.  Thus for the first three weeks of her employment with Defendants, Plaintiff  regularly worked 7.5 to 10 hours per week for which she was not paid, including hours in excess  of 40 for the week.   22.  The unpaid hours Plaintiff and others similarly situated regularly worked for  Defendants additionally served to reduce their average hourly wage below the federal minimum  wage of $7.25 per hour.   24.  The Individual Defendants also improperly took a portion of the tips that  rightfully should have gone to Plaintiff and others similarly situated.  Pursuant to Defendants’  policy, all of the tips collected throughout the shift were pooled and divided among employees.   However, once or twice a week, Xiomara worked a shift as a bartender and server, and the tips  she collected from the bar area were never included in the tip pool.   25.  Defendants also took improper deductions from the wages of Plaintiff and others  similarly situated.  Specifically, Plaintiff and others similarly situated were made to pay for any  items returned by customers or for tables that walk out.  Per the Restaurant’s online menu1,  individual entrees are priced in the range of $30-40, with the “Mixed Grill for 2 Person” going  for $72.95.  During her employment with Defendants, Plaintiff was made to pay for returned  dishes or even entire tables an average of twice per week.   26.  As a result of Defendants’ policies, Plaintiff and others similarly situated were not  paid for all of the time they worked (including overtime hours), and are not paid all of the wages  and compensation they were due, including federal- and state-mandated minimum wages.   27.  Defendants also failed to properly record the unpaid time Plaintiff and others  similarly situated worked, and thereby failed to make and keep accurate payroll records and  provided Plaintiff and others similarly situated with fraudulent and inaccurate wage statements  and wage notices in violation of the FLSA and NYLL.   29.   Defendants were or should have been aware of their statutory requirements as  employers, including specifically but without limitation the requirements under the FLSA and  NYLL to pay Plaintiff and others similarly situated for all of the time they worked (including  overtime hours), to pay them at a rate equal to or above the applicable federal and state minimum  wage, to not withhold gratuities or otherwise make improper deductions from employees’ pay,  and to make and preserve proper payroll records.   30.  However, Defendants knowingly failed to pay Plaintiff and others similarly  situated all of the regular and overtime wages to which they were entitled, and to make and  preserve proper payroll records.   31.  As such, the various violations of the FLSA and NYLL alleged herein were  committed knowingly, willfully, and intentionally by Defendants.   32.  Furthermore, these violations are ongoing, as Defendants continue to engage in  the wrongful conduct described herein.  FLSA Collective Action Allegations   33.  Plaintiff brings this action as a collective action pursuant to Section 216(b) of the  FLSA on behalf of herself and all other waitstaff, bussers, bartenders, food runners, and other  non-exempt laborers employed by Defendants on or after the date that is six years before the  filing of the initial Complaint in this case (“FLSA Collective Plaintiffs”).   35.  The claims for relief are properly brought under and maintained as an opt-in  collective action pursuant to Section 216(b) of the FLSA.  The FLSA Collective Plaintiffs are  readily ascertainable.  For purposes of notice and other purposes related to this action, their  names and addresses are readily available from Defendants.  Notice can be provided to the FLSA  Collective Plaintiffs via first class mail to the last address known to Defendants.  Class Action Allegations   36.  Plaintiff brings claims for relief under the NYLL pursuant to Rule 23 of the  Federal Rules of Civil Procedure on behalf of herself and all other waitstaff, bussers, bartenders,  food runners, and other non-exempt laborers employed by Defendants on or after the date that is  six years before the filing of the initial Complaint in this case (“Class Period”).   37.  All said persons, including Plaintiff, are referred to herein as the “Class.”  The  members of the Class are readily ascertainable.  The number and identity of the members of the  Class are determinable from Defendants’ records.  The hours assigned and worked, the positions  held, and rates of pay for each Class member are also determinable from Defendants’ records.   For purposes of notice and other purposes related to this action, their names and addresses are  readily available from Defendants.  Notice can be provided by means permissible under Rule 23.   39.  Plaintiff’s NYLL claims are typical of those claims, which could be alleged by  any member of the Class, and the relief sought is typical of the relief, which would be sought by  each member of the Class in separate actions.  All the Class members were subject to the same  corporate practices of Defendants (i) failing to pay proper regulary, minimum, and overtime  wages for off-the-clock work; (ii) improperly retaining gratuities; (iii) improperly deducting  returned and unpaid items from employees’ wages; (iv) improperly taking a tip credit against  employees’ wages; and (iv) failing to provide proper wage notices and wage statements that were  in compliance with the requirements under the NYLL.  Defendants’ corporate-wide policies and  practices affected all Class members similarly, and Defendants benefited from the same type of  unfair and/or wrongful acts as to each Class member.  Plaintiff sustained similar losses, injuries,  and damages as other Class members, wth such injuries and damages arising from the same  unlawful policies, practices, and procedures.   40.  Plaintiff is able to fairly and adequately protect the interests of the Class and has  no interests antagonistic to the Class.  Plaintiff is represented by attorneys who are experienced  and competent in both class action litigation and employment litigation and have previously  represented plaintiffs in wage and hour cases.   42.  When wage and hour violations arise, current and former employees are often  afraid to assert their rights.  Current employees fear direct or indirect retaliation by their  employers, while former employees are fearful of damage to their current or future employment.     Class actions provide class members who are not named in the complaint a degree of anonymity,  which allows for the vindication of their rights while eliminating or reducing these risks.   44.  Plaintiff repeats each and every previous allegation as if fully set forth herein.   45.  At all relevant times Plaintiff and the other FLSA Collective Plaintiffs were  employees of DPI within the meaning of the FLSA, and were persons covered by and intended to  benefit from the provisions of the FLSA.   46.  At all relevant times DPI was an employer within the meaning of the FLSA.   47.  At all relevant times DPI and the Individual Defendants were joint employers of  Plaintiff and the other FLSA Collective Plaintiffs.   49.  As a result of these unpaid hours, Plaintiff and the other FLSA Collective  Plaintiffs regularly worked at an average rate of pay below $7.25 per hour, in violation of the  52.  Plaintiff repeats each and every previous allegation as if fully set forth herein.   53.  At all relevant times Plaintiff and the other Class members were employees of  DPI within the meaning of the NYLL, and were persons covered by and intended to benefit from  the provisions of the NYLL.   54.  At all relevant times DPI was an employer within the meaning of the NYLL.   55.  At all relevant times DPI and the Individual Defendants were joint employers of  Plaintiff and the other Class members.   57.  Section 193 of the NYLL prohibits employers from making any deduction from  the wages of an employee, except deductions “expressly authorized in writing by the employee  and are for the benefit of the employee.”   58.  12 N.Y.C.R.R. § 146-2.9 (promulgated under the NYLL) provides that a food  service worker who works at a non-tipped occupation for the lesser of (1) two hours or (2) 20  percent of her shift must be paid at the regular minimum wage without a tip-credit deduction.   59.  12 N.Y.C.R.R. § 195-4.5(d) (promulgated under the NYLL) prohibits employers  from deducting from employee’s wages “repayment of employer losses, including for spoilage  and breakage, cash shortages, and fines or penalties incurred by the employer through the  conduct of the employee.”    60.  As alleged herein, Plaintiff and the other Class members regularly worked hours  for Defendants for which they were not paid, in violation of the NYLL.   61.  Plaintiff and the other Class members also regularly spent more than 2 hours or 20  percent of their work days performing non-tipped work, but were still paid at the tip-credit  minimum wage in violation of the NYLL.   62.  Defendants also unlawfully withheld gratuities from Plaintiff and other Class  members, in violation of the NYLL.   63.  Defendants also regularly took improper deductions from the wages of Plaintiff  and the other Class members, including deductions for returned or unpaid food, in violation of  the NYLL.   65.  Defendants knew of and/or showed a willful disregard for the provisions of the  NYLL as evidenced by their failure to pay Plaintiff and the other Class members all of their tips  and wages for all of the hours they worked when Defendants knew or should have known such  was due, and their failure to provide Plaintiff and the other Class members with accurate wage  notices and statements.   Wage And Hour Allegations  