(Tips Theft)   - 8 -   31.  Plaintiff brings this action individually and as class representatives on behalf of  himself and all other current and former non-exempt employees who have been or were  employed by Defendants in the three years preceding the filing of this complaint, (the  "Collective Action Period"), and who were compensated: at rates less than the applicable  minimum wage for straight time hours and at rates less than one-half times the applicable  minimum wage for all hours worked in excess of forty (40) hours per workweek (the "Collective  Action Members").  - 6 -   32.  Upon information and belief, the collective action class is so numerous that  joinder of all members is impracticable. Although the precise number of  such persons is  unknown, and the facts upon which the calculation of that number are presently within the sole  control of the Defendants, upon information and belief, there are more than forty (40) Collective  Action Members who worked for the Defendants during the Collective Action Period, most of  whom would not be likely to file individual suits because they lack adequate financial resources,  access to attorneys, or knowledge of their claims. Therefore, Plaintiff submits that this matter  should be certified as a collective action under the FLSA, 29 U.S.C. § 216(b).   33.  Plaintiff will fairly and adequately protect the interests of the Collective Action  Members and has retained counsel that is experienced and competent in the fields of employment   law and  class action  litigation.  Plaintiff have no interests that are contrary to or in conflict  with  those members  of this collective action.   34.  This action should be certified as a  collective  action  because  the prosecution of  separate actions by individual members of the class would create a risk of either inconsistent or  varying adjudications with respect  to  individual  members  of  the class, or adjudications with  respect to individual members of the class that would as a practical matter be dispositive of the  interests of the other members not parties to the adjudication, or substantially  impair  or impede  their ability to protect their interests.   35.  A collective action is superior to other available methods for the fair and efficient  adjudication of this controversy, since joinder of all members is impracticable. Furthermore,  inasmuch as the damages suffered by individual Collective Action Members may be relatively  small, the expense and burden of individual litigation make it virtually impossible for the  members of the collective action to individually seek redress for the wrongs done to them. There  - 7 -  will be no difficulty in the management of this action as a collective action.   36.  Questions of law and fact common to the members of the collective action  predominate over questions that may affect only individual members because Defendants have  acted on grounds generally applicable to all members. Among the common questions of law and  fact common to Plaintiff and other Collective Action Members are:  a. Whether the Defendants employed Plaintiff and the Collective Action Members  within the meaning of the FLSA;  b.  Whether the Defendants failed to keep true and accurate time and pay records for  all hours worked by Plaintiff and the Collective Action Members;  c. What proof of hours worked is sufficient where the employer fails in its duty to  maintain time records;  d. Whether the Defendants failed to pay the Plaintiff and the Collective Action  Members in accordance with minimum wage and  overtime law requirements;  e. Whether the Defendants' violations of the FLSA are willful as that term is used  within the context of the FLSA; and,  f. Whether the Defendants are liable for all damages claimed hereunder, including  but not limited to compensatory, liquidated and statutory damages, interest,  attorneys' fees, and costs and disbursements.   37.  Plaintiff know of no difficulty that will be encountered in  the management of this  litigation that would preclude its maintenance as a collective action.   38.  Plaintiff and others similarly situated have been substantially damaged by the  Defendants' wrongful conduct.  39.  Plaintiff sue on their own behalf and on behalf of a class of persons under Rules  23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure.   40.  Plaintiff bring their New York Labor Law claims on behalf  of all  persons who  were employed by Defendants at any in the six year period preceding the filing of this Complaint  (the  "Class Period") who were non-exempt employees within the  meaning  of  the New York   Labor Law and were compensated: at rates less than the applicable minimum wage for straight  time hours; at rates less than one-half times the applicable minimum wage for all hours worked  in excess of forty (40) hours per workweek; and without the required "spread  of  hours"   premium, all in violation of the New  York Labor  Law (the "Class").     41.  Upon information and belief, the persons in the Class identified herein are so  numerous that joinder of all members is impracticable. Although the identity and precise number  of such persons is unknown, and the facts upon which the calculation of that number may be  ascertained are presently within the sole control of the Defendants, the Class consists of all non- managerial current and former employees and, therefore, is so numerous that joinder is  impracticable and most of whom would not be likely to file individual suits because they lack  financial resources, access to attorneys, or knowledge of their claims.   42.  The claims of Plaintiff are typical of the claims of the Class, and a class action is  superior to other available methods for the fair and efficient adjudication of the controversy,  particularly in the context of wage and hour litigation, where individuals lack the financial  resources to vigorously prosecute a lawsuit in federal court against a corporate defendant.   43.  The Defendants have acted on grounds generally applicable to the Class, thereby  making appropriate final injunctive relief or corresponding declaratory relief with respect to the  Class as a whole.  - 9 -   44.  Plaintiff has committed themselves to pursuing this action and have retained  counsel experienced in employment law and class action litigation.   45.  Plaintiff will fairly and adequately protect the interests of the NY Class members.  Plaintiff understand that, as class representative, he assumes a fiduciary responsibility to the  Class and Collective Action Members to represent their interests fairly and adequately, and that  he must consider the interests of the Class and Collective Action Members just as he would  represent and consider his own interests, and that he may not favor his own interests over those  of the Class or Collective Action Members.   46.  Plaintiff recognizes that any resolution of a class action lawsuit, including any  settlement or dismissal thereof, must be in the best interests of the Class and Collective Action  Members. Plaintiff understands that in order to provide adequate representation, he must remain  informed of litigation developments and he understands that he may be called upon to testify in  depositions and at trial.   47.  Plaintiff has the same interests in this matter as all other members of the Class and  Plaintiff claims are typical of the Class.   48.  There are questions of law and fact common to the Class which predominate over  any questions solely affecting the individual members of the Class, including but not limited to:  a. Whether the Defendants employed Plaintiff sand the Class members within the  meaning of the New York Labor Law;  b. Whether the Defendants failed to keep true and accurate time and pay records for  all hours worked by Plaintiff and the Class members;  c. What proof of hours worked is sufficient where the employer fails in its duty to  maintain time records;  - 10 -  d.  Whether the Defendants failed to pay the Plaintiff and the Class members the  applicable minimum wage for all straight time hours worked and the required  overtime compensation for all hours worked in excess of forty (40) hours per  workweek, in violation of the New York Labor Law and the regulations  promulgated thereunder;  e. Whether the Defendants failed to pay the Plaintiff and the Class members "spread  of hours" premium for each day they worked a shift in excess of ten (10) hours, in  violation of the New York Labor Law and the regulations promulgated  thereunder;  f. Whether the Defendants' violations of the New York Labor Law are willful as that  term is used within the context of the New York Labor Law; and,  g. Whether the Defendants are liable for all damages claimed hereunder, including  but not limited to compensatory, liquidated and statutory damages, interest, costs,  attorneys' fees, and costs and disbursements.  49.  Plaintiff realleges and incorporates by reference all allegations in all preceding  paragraphs.   50.  At all times relevant, Plaintiff and the FLSA Collective were employed by an  entity engaged in commerce and/or the production or sale of goods for commerce within the  meaning of 29 U.S.C. §§ 201 et seq., and/or they were engaged in commerce and/or the  production or sale of goods for commerce within the meaning of 29 U.S.C. §§ 201 et seq.   51.  Defendants have not been eligible to avail themselves of the federal tipped  - 11 -  minimum wage rate under the FLSA, 29 U.S.C. §§ 201 et seq., because Defendants required  Plaintiffs and the FLSA Collective to distribute a portion of their tips to workers who do not  “customarily and regularly” receive tips and Defendants failed to provide required notices and  maintain required records concerning their intention to take a tip credit.   52.  Defendants unlawfully required Plaintiffs to share tips with employees not  entitled to tips under the FLSA and/or the NYLL, including, but not limited to, managers and  sushi chefs.    53.  In this regard, owners and managers are tip-ineligible employees because their  primary duties do not include directly servicing customers.   54.  The FLSA Collective was paid at the tipped minimum wage rate rather than the  full hourly minimum wage rate as required by 29 U.S.C. §§ 201 et seq.   55.  As a result of Defendants’ willful violations of the FLSA, Plaintiff and the FLSA  Collective have suffered damages by being denied minimum wages in accordance with the   FLSA in amounts to be determined at trial, and are entitled to recovery of such amounts,  liquidated damages, prejudgment interest, attorneys’ fees and costs, and other compensation  pursuant to 29 U.S.C. §§ 201 et seq.  56.  Plaintiffs reallege and incorporate by reference all allegations in all preceding  paragraphs.   57.  The overtime wage provisions set forth in the FLSA, 29 U.S.C. §§ 201 et seq.,  and the supporting federal regulations, apply to Defendants and protect Plaintiffs and the FLSA  Collective.  - 12 -   58.  Defendants failed to pay Plaintiffs and the FLSA Collective the premium  overtime wages to which they were entitled under the FLSA – at a rate of 1.5 times the full  minimum wage rate – for all hours worked beyond 40 per workweek.   59.  As a result of Defendants’ willful violations of the FLSA, Plaintiffs and the FLSA  Collective have suffered damages by being denied overtime compensation in amounts to be  determined at trial, and are entitled to recovery of such amounts, liquidated damages,  prejudgment interest, attorneys’ fees and costs, and other compensation pursuant to 29 U.S.C. §§  201 et seq.  60.  Plaintiffs reallege and incorporate by reference all allegations in all preceding  paragraphs.   61.  At all times relevant, Plaintiffs and the Rule 23 Class have been employees of  Defendants, and Defendants have been employers of Plaintiffs and the Rule 23 Class within the  meaning of the NYLL §§ 650 et seq., and the supporting New York State Department of Labor  Regulations.   62.  Defendants have failed to pay Plaintiffs and the Rule 23 Class the minimum  hourly wages to which they are entitled under the NYLL and the supporting New York State  Department of Labor Regulations.   63.  Pursuant to the NYLL, Article 19, §§ 650 et seq., and the supporting New York  State Department of Labor Regulations, Defendants have been required to pay Plaintiffs and the  Rule 23 Class the full minimum wage at a rate of (a) $7.25 per hour for all hours worked from  August 5, 2013 through December 30, 2013; (b) $8.00 per hour for all hours in 2014; (c) $8.75  - 13 -  per hour for all hours worked from December 31, 2014 through December 30, 2015; and (d)  $9.00 per hour for all hours worked from December 31, 2015 through December 30, 2016; (e)  $11.00 per hour for all hours worked from December 31, 2016 through December 31, 2017; (f)  $13.00 per hour for all hours worked from December 31, 2017 through December 31, 2018; and  (g) $15.00 per hour for all hours worked from December 31, 2018 through the present date.   64.  Defendants have failed to notify Plaintiff and the Rule 23 Class of the tip credit in  writing as required by the NYLL and the supporting New York State Department of Labor  Regulations.   65.  Due to Defendants’ violations of the NYLL, Plaintiff and the Rule 23 Class are  entitled to recover from Defendants their unpaid minimum wages, liquidated damages as  provided for by the NYLL, reasonable attorneys’ fees and costs, and pre-judgment and post-  judgment interest.  66.  Plaintiffs reallege and incorporate by reference all allegations in all preceding  paragraphs.   67.  The overtime wage provisions of Article 19 of the NYLL and its supporting  regulations apply to Defendants, and protect Plaintiffs and the Rule 23 Class.   68.  Defendants failed to pay Plaintiffs and the Rule 23 Class the premium overtime  wages to which they were entitled under the NYLL and the supporting New York State  Department of Labor Regulations – at a rate of 1.5 times the full minimum wage rate – for all  hours worked beyond 40 per workweek.   69.  Due to Defendants’ violations of the NYLL, Plaintiff and the Rule 23 Class are  - 14 -  entitled to recover from Defendants their unpaid overtime wages, liquidated damages as  provided for by the NYLL, reasonable attorneys’ fees and costs of the action, and pre-judgment  and post-judgment interest.  70.  Plaintiffs reallege and incorporate by reference all allegations in all preceding  paragraphs.   71.  Defendants unlawfully demanded or accepted, directly or indirectly, part of the  gratuities received by Plaintiffs and the Rule 23 Class in violation of NYLL, Article 6, § 196-d,  and 12 NYCRR 146-2.14.   72.  Defendants unlawfully required Plaintiff and the Rule 23 Class to share the gratuities  they received with employees other than tipped employees, in violation of NYLL Article 6, § 196-d  and 12 NYCRR 146-2.14.   73.  Due to Defendants’ violations of the NYLL, Plaintiff and the Rule 23 Class are  entitled to recover from Defendants the value of the misappropriated gratuities, liquidated  damages as provided for by the NYLL, reasonable attorneys’ fees and costs, and pre-judgment  and post-judgment interest.  74.  Plaintiffs reallege and incorporate by reference all allegations in all preceding  paragraphs.   75.  Defendants have failed to furnish Plaintiffs and the Rule 23 Class with proper  - 15 -  annual wage notices as required by NYLL, Article 6, § 195(1), in English or in the language  identified by each employee as their primary language, at the time of hiring, and on or before  February first of each subsequent year of the employee's employment with the employer, a notice  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 in  accordance with NYLL, Article 6, § 191; 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; the telephone number of the employer; plus  such other information as the commissioner deems material and necessary.   76.  Due to Defendants’ violations of NYLL, Article 6, § 195(1), Plaintiffs and the  Rule 23 Class are entitled to statutory penalties of fifty dollars each workday that Defendants  failed to provide Plaintiff and the Rule 23 Class with annual wage notices, or a total of five  thousand dollars each, and reasonable attorneys’ fees and costs, as provided for by NYLL,  Article 6, § 198(1-b).  77.  Plaintiffs reallege and incorporate by reference all allegations in all preceding  paragraphs.   78.  Defendants failed to supply Plaintiffs and the Rule 23 Class with an accurate  statement of wages with every payment of wages as required by NYLL, Article 6, § 195(3),  listing: 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  - 16 -  the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions;  allowances, if any, claimed as part of the minimum wage; hourly rate or rates of pay and  overtime rate or rates of pay if applicable; the number of hours worked, including overtime hours  worked if applicable; deductions; and net wages.   79.  Due to Defendants’ violations of NYLL, Article 6, § 195(3), Plaintiff and the  Rule 23 Class are entitled to statutory penalties of two hundred fifty dollars for each workday  that Defendants failed to provide them with accurate wage statements, or a total of five thousand  dollars each, and reasonable attorneys’ fees and costs, as provided for by NYLL, Article 6, § 198  (1-d).  80.  Plaintiffs reallege and incorporate by reference all allegations in all preceding  paragraphs.   81.  Defendants retained for themselves tips that by law should have been turned over  to plaintiff.    82.  The reason the tips belonged to the plaintiff and not the defendants is that the tips  were left by customers intending to leave a gratuity to the service staff and the defendants under  the NYLL and the Hospitality Wage Order to no qualify as service staff.   83.  Plaintiff seeks as damages, a monetary award of all tips taken by defendants  wrongfully, together with liquidated damages, pre and post judgment interest, and attorneys fees  and expenses.  Fair Labor Standards Act  Minimum Wages (Brought on behalf of Plaintiffs and the FLSA Collective)   Fair Labor Standards Act  Overtime Wages (Brought on behalf of Plaintiffs and the FLSA Collective)   New York Labor Law  Minimum Wages (Brought on behalf of Plaintiffs and the Rule 23 Class)   New York Labor Law  Overtime Wages (Brought on behalf of Plaintiffs and the Rule 23 Class)   New York Labor Law  Failure to Provide Proper Annual Wage Notices  (Brought on behalf of Plaintiffs and the Rule 23 Class)   New York Labor Law  Failure to Provide Accurate Wage Statements  (Brought on behalf of Plaintiffs and the Rule 23 Class)   New York Labor Law  Tip Misappropriation (Brought on behalf of Plaintiffs and the Rule 23 Class)  