(FLSA: Unpaid Minimum Wage)   (FLSA: Failure to Pay Overtime Compensation)   (NYLL: Unpaid Minimum Wage)   (NYLL: Unlawful Deductions)   (NYLL: Failure to Pay Overtime Compensation)   (NYLL: Failure to Furnish Wage Statements)   (On Behalf of Plaintiff Silva)  (NYLL: Retaliation)   10.  Plaintiffs bring this action on behalf of themselves and other employees similarly  situated, as authorized under 29 U.S.C. § 216(b).  The employees similarly-situated are:  FLSA Collective Action: All persons who are or have been employed by  Defendants as Account Executives, or other similar job title(s) at any  location operated by Defendants in the State of New York from three (3)  years prior to this action’s filing date through the date of the final  disposition of this action and who were subject to Defendants’ unlawful  practice of (i) failing to pay the applicable minimum wage; and (ii) failing  to pay applicable overtime premiums for all hours worked in excess of 40  hours per workweek.   11.  Defendants employed Plaintiff and the members of the FLSA Collective Action  during the time period relevant to the FLSA Collective Action, and classified Plaintiffs as non- exempt from the minimum wage and overtime requirements of the FLSA.   12.  Defendants each meet the definition of an “employer” under the FLSA. By way of  examples only, Defendants control how much the FLSA Collective Action members are paid,  maintain all-time records for the FLSA Collective Action members, assign and supervise all of  4  the tasks given to the FLSA Collective Action members, and maintain and exercise control as to  how the FLSA Collective Action members are to perform their tasks.�   13.  Each of the FLSA Collective Action members are or were non-exempt employees  entitled to overtime compensation for all hours worked in excess of 40 hours per workweek.   14.  However, at all times during the FLSA Collective Action period, Defendants  failed to pay the Collective Action members overtime premiums for all hours worked in excess  of 40 per workweek.   15.  Defendants required Plaintiffs to routinely work in excess of 50 hours per  workweek, but rarely, if ever, paid any wages or overtime premium at all for hours worked in  excess of 43.5 hours per workweek.   16.  Moreover, for the maximum of 3.5 hours in excess of 40 per workweek for which  Defendants did, at times, pay an “overtime premium” rate, that “overtime premium rate” was  less than 1.5 times Plaintiffs’ applicable hourly rate under the FLSA.    17.  Defendants’ conduct, as set forth in this Complaint, was willful and in bad faith,  and has caused significant damages to Plaintiffs and the FLSA Collective Action members.   18.  Defendants are liable under the FLSA for failing to properly compensate  Plaintiffs and the FLSA Collective Action members and, as such, notice should be sent to the  FLSA Collective Action members.    19.  There are, upon information and belief, more than 40 similarly situated current  and former employees of Defendants who were subject to the aforementioned policies in  violation of the FLSA who would benefit from the issuance of a Court-supervised notice of the  present lawsuit and the opportunity to join in the present lawsuit.  Those similarly situated  individuals are known to Defendants and are readily identifiable through Defendants’ records.  5  20.  Plaintiffs bring this action as a class action pursuant to Rule 23 of the Federal  Rules of Civil Procedure on behalf of the following defined class:  New York Class:  All persons who are or have been employed by  Defendants as Account Executives or other similar job title(s) at any  location operated by Defendants in New York from six (6) years prior to  this action’s filing date through the date of the final disposition of this  action and who were subject to Defendants’ unlawful practice of (i) failing  to pay the applicable minimum wage; and (ii) failing to pay applicable  overtime premiums for all hours worked in excess of 40 hours per  workweek (iii) taking deductions from Plaintiffs’ earned wages in  violation of NYLL § 193; and (iv) failing to furnish wage statements that  specifically enumerated certain criteria, as required by NYLL § 195(3).   21.  At all times during the time period relevant to the New York Class, Defendants,  as a matter of policy, (i) did not pay Plaintiffs or the New York Class any wages or the  applicable overtime premium pay rate for all hours worked in excess of 40 per workweek; (ii)  took deductions from Plaintiffs’ earned wages based on Defendants’ assessment of Plaintiffs’  work performance and for other reasons and purposes prohibited by the NYLL; and (iii) failed to  furnish correct and accurate wage statements required by the NYLL.    22.  The facts as alleged in Paragraphs 11-19 with respect to the FLSA Collective  Action are similarly true for the New York Class during the time period relevant to the New  York Class.    23.  Defendants failed to make, keep and/or preserve accurate records with respect to  Plaintiffs and the New York Class and failed to furnish to Plaintiffs and the New York Class an  accurate statement an appropriate statement of wages, in violation of the NYLL and supporting  New York State Department of Labor regulations.     24.  Numerosity: The proposed New York Class is so numerous that joinder of all  members is impracticable. Upon information and belief, during the relevant time period,  6  Defendants employed in excess of 40 people who fall within the New York Class and thus  satisfy the numerosity definition of the proposed New York Class.   25.  Typicality: Plaintiffs’ claims are typical of the members of the proposed New  York Class.  During the New York Class period, Defendants subjected Plaintiffs and the  members of the New York Class to same policy and practice of failing to pay them minimum  wage and overtime compensation required by the NYLL.     26.  Superiority: A class action is superior to other available methods for the fair and  efficient adjudication of the controversy.   27.  Adequacy: Plaintiffs will fairly and adequately protect the interests of the  proposed New York Class and have retained counsel experienced in FLSA and NYLL class and  collective action litigation.   28.  Commonality: Common questions of law and fact exist with respect to all  members of the proposed New York Class that predominate over any questions solely affecting  individual members of the proposed New York Class, including but not limited to:  a.  Whether Defendants violated the NYLL as alleged herein;  b.  Whether Defendants unlawfully failed to pay the applicable minimum  wage to members of the New York Class in violation of the NYLL;  c.  Whether Defendants unlawfully failed to pay appropriate overtime  compensation to members of the New York Class in violation of NYLL;  d.  Whether Defendants took unlawful deductions from wages earned by  members of the New York Class in violation of NYLL;  e.  Whether Defendants employed Plaintiffs and the New York Class within  the meaning of New York law;  7  f.  Whether Defendants should be enjoined from continuing the practices that  violate the NYLL;  g.  What the proper measure of damages sustained by the New York Class  are; and  h.  Whether Defendants’ actions were “willful.”   29.  The case is maintainable as a class action under Fed. R. Civ. P. 23(b)(1) because  prosecution of actions by or against individual members of the class could result in inconsistent  or varying adjudications and create the risk of incompatible standards of conduct for Defendants.   Further, adjudication of each individual member’s claim as a separate action would be  dispositive of the interest of other individuals not party to this action, impeding their ability to  protect their interests.   30.  Class certification is also appropriate under Fed. R. Civ. P. 23(b)(3) because  questions of law and fact common to the New York Class predominate over any questions  affecting only individual members, and because a class action is superior to other available  methods for the fair and efficient adjudication of this litigation.  Defendants’ common and  uniform policies and practices denied the New York Class the wages to which they are entitled.   The damages suffered by the New York Class members are small compared to the expense and  burden of individual prosecution of this litigation.  In addition, class certification is superior  because it will obviate the need for unduly duplicative litigation that might result in inconsistent  judgments of Defendants’ practices.   31.  Plaintiffs intend to send notice to all members of the New York Class to the  extent required by Rule 23.  The names and addresses of the New York Class are available from  Defendants.  8  32.  As outlined above, Defendants employed Plaintiff Silva as an “Account  Executive” from approximately July 2013 through July 25, 2016.    33.  As an Account Executive, Mr. Silva was responsible for contacting potential  clients of Defendants by telephone to solicit leases from Defendants of portable toilets and toilet- trailers at construction sites and other venues in the greater New York City area.   34.  Mr. Silva and other Account Executives were also tasked with spending a portion  of each workweek driving to construction sites and other venues of Defendants’ potential clients  to inform them of Defendants’ services and to request contact information for Defendants to  follow-up by phone in connection with Defendants’ solicitation efforts.   35.  Mr. Silva and other Account Executives were also required to spend a portion of  each workday fielding customer service-related inquiries and complaints from existing clients of  Defendants.   36.  At all times during his employment, Defendants classified Mr. Silva as a non- exempt employee entitled to the protections of the FLSA and NYLL.   37.  Defendants compensated Mr. Silva on an hourly basis as well as through  commission payments earned by securing leases for Defendants’ portable toilets and toilet  trailers.   38.  During most weeks of his employment, Defendants required Mr. Silva to work in  excess of 40 hours per week.   39.  During the “summer” months – from approximately May through October of each  year – Mr. Silva generally worked in excess of 50 hours per workweek.  9   40.  During the remainder of the year, Mr. Silva generally worked approximately 43  hours per workweek.   41.  Defendants at times compensated Mr. Silva at “overtime premium” rates for up to  a maximum of 3.5 hours in excess of 40 hours that he worked each workweek –– provided that  such overtime hours had been formally scheduled in advance by Defendants.  However, the  “overtime premium” that Defendants paid for even that maximum of 3.5 hours per week was still  less than 1.5 times Mr. Silva’s applicable hourly rate of pay.   42.  Defendants paid no wages at all for hours worked in excess of 43.5 per  workweek, including the approximately 7 additional hours that Mr. Silva worked during most  weeks from May through October each year.   43.  Defendants also took deductions from Mr. Silva’s earned wages for failing to  satisfy certain performance measures imposed by Defendants.  For example, Defendants  routinely deducted portions of Mr. Silva’s earned wages on a sliding scale based on the number  of hours that Mr. Silva spent soliciting new customers by phone during each workweek.    44.  On Friday, July 22, 2016 –– after meeting or exceeding Defendants’ legitimate  expectations for his position during the preceding three years of his employment –– Mr. Silva  approached his immediate supervispr to inquire into the basis and justification for Defendants’  routine deductions from his earned wages.  Mr. Silva’s supervisor responded that she was unable  to explain the basis or justifications for such deductions, and informed Mr. Silva that he should  address his inquiry to Defendant Howard, who was away from the office that day.   45.  On Monday, July 25, 2016, Defendant Howard spoke to Mr. Silva in response to  Mr. Silva’s inquiry to his supervisor on July 22nd.  Defendant Howard informed Mr. Silva that  10  he was terminating Mr. Silva’s employment effective immediately because he no longer  “trusted” Mr. Silva as a result of his inquiry and objection to Defendants’ payroll practices.  46.  Plaintiffs allege and incorporate by reference the allegations in the preceding  paragraphs.   47.  As outlined above, during the relevant time period, Defendants’ practices violated  the provisions of the FLSA regarding payment of a minimum wage to Plaintiffs and the members  of the FLSA Collective Action by, among other things, failing to pay them the applicable  minimum wage for all hours worked.    48.  Accordingly, Plaintiffs and the members of the FLSA Collective Action are  entitled to the difference between the wages paid by Defendants and the FLSA minimum wage  as damages for Defendants’ violations of the FLSA’s minimum wage provisions.   49.  The foregoing conduct, as alleged, constitutes a willful violation of the FLSA,  within the meaning of 29 U.S.C §§ 216(b) and 255(a).    50.  Plaintiffs and the members of the FLSA Collective Act seek recovery of their  attorneys’ fees and costs to be paid by Defendant, as provided by the FLSA, 29 U.S.C. § 216(b),  and such other legal and equitable relief as the Court deems just and proper.  51.  Plaintiffs allege and incorporate by reference the allegations in the preceding  paragraphs.  11   52.  During the relevant time period, Plaintiffs and the members of the FLSA  Collective Action worked in excess of 40 hours per workweek and, because of Defendants’  above-outlined violations of the FLSA, were not paid appropriate overtime compensation.     53.  Despite the hours worked by Plaintiffs and the members of the FLSA Collective  Action, Defendants willfully, in bad faith, and in knowing violation of the FLSA, failed and/or  refused to pay Plaintiffs and the members of the FLSA Collective Action appropriate overtime  compensation.   54.  The foregoing conduct, as alleged, constitutes a willful violation of the FLSA,  within the meaning of 29 U.S.C §§ 216(b) and 255(a).    55.  Plaintiffs and the members of the FLSA Collective Action seek recovery of their  attorneys’ fees and costs to be paid by Defendants, as provided by the FLSA, 29 U.S.C. § 216(b),  and such other legal and equitable relief as the Court deems just and proper.  56.  Plaintiffs allege and incorporate by reference the allegations in the preceding  paragraphs.   57.  As outlined above, Defendants’ pay practices failed to pay Plaintiffs and the  members of the New York Class a minimum wage required by the NYLL.    58.  Accordingly, Plaintiffs and the members of the New York Class are entitled to the  difference between the NYLL minimum wage and the wages paid by Defendants as damages for  Defendants’ violations of the NYLL and Minimum Wage Order’s minimum wage provisions.   59.  The foregoing conduct, as alleged, constitutes a willful violation of the NYLL  without a good faith basis within the meaning of NYLL § 198, and as a result Plaintiffs and the  12  members of the New York Class are entitled to liquidated damages and such other legal and  equitable relief as the Court deems just and proper.   60.  Plaintiffs and the members of the New York Class also seek to have their  reasonable attorneys’ fees and costs paid by Defendants, as provided by the NYLL.  61.  Plaintiffs allege and incorporate by reference the allegations in the preceding  paragraphs.   62.  During the relevant time period, Plaintiffs and the members of the New York  Class worked in excess of 40 hours per workweek and, because of Defendants’ above-outlined  violations of the NYLL, were not paid appropriate overtime compensation.     63.  Despite the hours worked by Plaintiffs and the members of the New York Class,  Defendants willfully, in bad faith, and in knowing violation of the NYLL, failed and/or refused  to pay them appropriate overtime compensation.   64.  The foregoing conduct, as alleged, constitutes a willful violation of the NYLL  without a good faith basis within the meaning of NYLL § 198, and as a result Plaintiffs and the  members of the New York Class are entitled to liquidated damages and such other legal and  equitable relief as the Court deems just and proper.   65.  Plaintiffs and the members of the New York Class also seek to have their  reasonable attorneys’ fees and costs paid by Defendant, as provided by the NYLL.  66.  Plaintiffs allege and incorporate by reference the allegations in the preceding  paragraphs.  13   67.  During the relevant time period, as set forth above, Defendants unlawfully  deducted portions of Plaintiffs’ earned wages for purposes that were not for Plaintiffs’ benefit  and were outside the enumerated categories of permissible deductions from employee wages  under NYLL § 193.   68.  The foregoing conduct, as alleged, constitutes a willful violation of the NYLL  without a good faith basis within the meaning of NYLL § 198, and as a result Plaintiffs and the  members of the New York Class are entitled to liquidated damages and such other legal and  equitable relief as the Court deems just and proper.   69.  Plaintiffs and the members of the New York Class also seek to have their  reasonable attorneys’ fees and costs paid by Defendant, as provided by the NYLL.  70.  Plaintiffs allege and incorporate by reference all allegations in all preceding  paragraphs, as if fully set forth herein.    71.  During the relevant time period, Defendants failed to furnish Plaintiffs and the  members of the New York Class with accurate wage statements that specifically enumerated  certain criteria, as required by NYLL § 195(3).    72.  Defendants’ violation of the NYLL was willful and, as a result, Defendants are  liable to Plaintiffs and the members of the New York Class in the amount of $5,000 for each  violation.   73.  In addition to statutory penalties, Plaintiffs and the members of the New York  Class are entitled to recover from Defendants reasonable attorneys’ fees and costs of the action,  and pre-judgment and post-judgment interest.  14  74.  Plaintiffs allege and incorporate by reference all allegations in all preceding  paragraphs, as if fully set forth herein.    75.  Plaintiff Silva engaged in a protected activity in July 2016 by complaining to  Defendant Howard about Defendants’ improper pay practices.�   76.  Defendants took adverse action against Mr. Silva by terminating his employment  on or about July 25, 2016.    77.  There is a clear causal nexus between Mr. Silva’s protected activity and his  termination, as Defendant Howard explained that he was terminating Mr. Silva in response to  Mr. Silva’s complaints about Defendants’ pay practices.    78.  Accordingly, Defendants retaliated against Plaintiff Silva for engaging in a  protected activity in violation of Labor Law § 215.    79.  Plaintiff Silva is therefore entitled to an award of damages to compensate Plaintiff  for all monetary and/or economic harm, including, but not limited to, the loss of past and future  income, wages, compensation, and other benefits of employment; an award of damages for any  and all other monetary and/or non-monetary losses suffered by Plaintiff; and an award of  punitive damages, each in amounts to be determined at trial, plus pre- and post-judgment  interest, as well as Plaintiff’s reasonable attorneys’ fees to the fullest extent permitted by law.  15 