22.  All Plaintiffs performed substantially similar duties.   23.  Plaintiffs at all relevant times were covered employees within the meaning of  the FLSA and NYLL.   24.  Plaintiff Castro’s employment began in or about 2008.  He was and continues  to be employed as a busboy.    25.  Plaintiff Castro’s regular work schedule varied.  He typically worked 6 days  per week. A typical schedule for him would be something like the following: Monday 5pm- 2am, Tuesday 5pm-9pm, Thursday –Saturday 5pm-3am and Sunday 4pm-1am.  He worked  mostly night shifts.    26.  Plaintiff Castro estimates that he averaged about 56 hours per week, until about  one year ago when he began averaging about 51 hours per week.   27.  Plaintiff Castro routinely worked more than 40 hours per week and routinely  - 20 -  had workweeks with workshifts that exceeded 10 hours per day.   28.  Plaintiff Vasquez’s employment began about 12 years ago. He was employed  as a busboy.    29.  Plaintiff Vasquez’s regular work schedule varied.  In the beginning of the  employment he typically worked from 11am to 9pm, six days per week.     30.  Starting about four years ago, this changed so that he was typically working  from 7am to 4pm, four days per week, and a fifth day (usually Fridays) from 7am to 5pm.    31.  Defendants paid Plaintiffs a day-rate as a base wage, and allowed Plaintiff to  receive a share of a tip pool.   32.  Defendants never provided Plaintiffs with a notice or other document  concerning their intention to take a tip credit.   33.  Plaintiff routinely worked more than 40 hours per week and routinely had  workweeks with workshifts that exceeded 10 hours per day.   34.  Defendants has a policy of not monitoring or recording the actual hours worked  by Plaintiffs and other employees.   35.  Upon information and belief, until the present, Defendants charged  customers a gratuity on all bills and catered events.   36.  Upon information and belief, until the present, Defendants engaged in a policy and  practice of failing to properly remit the gratuity to Plaintiffs, in violation of NYLL Article 6 § 196-d  and the cases interpreting the same.   37.  Plaintiffs were required to perform job duties for which customers do not  regularly tip or leave a gratuity.  This included for Plaintiff Vasquez this included sweeping  - 20 -  the floors everyday and cleaning the bathroom every shift (two times per shift).  This included  for Plaintiff Santos cleaning the bathroom every shift, at least once and usually twice; and  occasionally cleaning the outside of the establishment, including sweeping garbage from the  outside floor.    38.  Plaintiffs were required to prior to their scheduled start time, and help with  stocking items in the diner, including ketchup, milk, coffee, sugar, salt and pepper, sour  cream, napkins, cups, silverware, etc.  This would usually take between 5 and 15 minutes.   39.  Plaintiffs were required to work past the end of their scheduled workshift  because they were required to finish clearing all of their assigned tables before leaving, and on  a routine basis, this meant that they had to work 15 to 30 minutes past the end of their  scheduled workshift.  Also they would have to stay past their schedule end time on occasions  in order to cover for an employee who was arriving late for the next shift or who called out of  work.     40.  Plaintiffs did not receive a regularly scheduled and uninterrupted meal break or  rest breaks as required by the New York Labor Law.   41.  At no point did Defendants inform Plaintiffs of the minimum wage or overtime  provisions of the FLSA or the NYLL.   42.  Defendants knowingly and willfully operated their business with a policy of not  paying Plaintiffs and other similarly situated employees either the federal or New York State  minimum wage, the FLSA overtime rate (of time and one-half), and the New York State  overtime rate (of time and one-half), in direct violation of the FLSA and New York Labor Law  and the supporting federal and New York State Department of Labor Regulations.   43.  Defendants knowingly and willfully operate their business with a policy of not  - 20 -  paying Plaintiffs and other similarly situated employees "spread of hours" premium for each  day that they work a shift in excess of ten (10) hours, in direct violation of the New York  Labor Law and the supporting New York State Department of Labor Regulations.   44.  Defendants did not furnish Plaintiffs with an accurate statement with every  payment of wages, listing gross wages, deductions and net wages as required by New York  Labor Law § 195.   45.  Defendants failed to display, in a place accessible to employees and in a visually  conspicuous manner, the notice of employee rights to receive the minimum wage and overtime  pay at a rate of one and one-half times their regular rate as required under the New York Labor  Law.   46.  Defendants failed to display, in a place accessible to employees and in a visually  conspicuous manner a copy of New York Labor Law § 193 regarding the prohibition on illegal  deductions from wages.   47.  Defendants failed to provide written notice concerning the terms of a commission  program under which employees were eligible to receive commissions.   48.  There is no written contract or other written document, signed or otherwise,  reflecting the terms of the commissions program offered and administered by Defendants.  49.  Plaintiffs bring this action individually and as class representative on behalf of the  “Proposed FLSA Collective” defined as:  all current and former employees of Defendants for the three year period  prior to the filing of the complaint.   50.  Upon information and belief, the total number of members of the proposed  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  - 20 -  number are presently within the sole control of the Defendants, upon information and belief,  there are more than fifty (50) 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, Plaintiffs submit that this matter should be certified as a collective action under the  FLSA, 29 U.S.C. § 216(b).   51.  Plaintiffs will fairly and adequately protect the interests of the Collective Action  Members and have retained counsel that is experienced and competent in the fields of  employment law and class action litigation. Plaintiffs have no interests that are contrary to or in  conflict with those members of this collective action.   52.  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.   53.  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  will be no difficulty in the management of this action as a collective action.   54.  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  - 20 -  acted on grounds generally applicable to all members. Among the common questions of law and  fact common to Plaintiffs and other Collective Action Members are:  a. Whether the Defendants employed Plaintiffs 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 Plaintiffs 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' violations of the FLSA are willful as that term is used  within the context of the FLSA; and,  e. 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.  f. Whether the Defendants failed to pay Plaintiffs and the Collective  Action Members minimum wages for all hours worked; and  g. Whether the Defendants failed to pay Plaintiffs and the Collective  Action Members for hours worked in excess of 40 hours per workweek.   55.  Plaintiffs know of no difficulty that will be encountered in the management of this  litigation that would preclude its maintenance as a collective action.   56.  Plaintiffs and others similarly situated have been substantially damaged by  the Defendants' wrongful conduct.  57.  Plaintiffs 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.  - 20 -   58.  In addition to bringing this action as a proposed collective action to remedy  violations of the FLSA, Plaintiffs also bring this action on behalf of a “Proposed Rule 23 Class”,  under Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure, and consisting of:  all current and former employees of Defendants during the six year period  prior to the filing of the complaint.   59.  Upon information and belief, the persons in the Proposed Class 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 Proposed 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.   60.  The claims of Plaintiffs are typical of the claims of the Proposed Class, and a  Rule 23 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.   61.  The Defendants have acted on grounds generally applicable to the Proposed  Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with  respect to the Proposed Class as a whole.   62.  Plaintiffs have committed themselves to pursuing this action and has retained  counsel experienced in employment law and class action litigation.   63.  Plaintiffs will fairly and adequately protect the interests of the Proposed Class.  Plaintiffs understand that, as a class representatives, they assume a fiduciary responsibility to the  - 20 -  Class Members to represent their interests fairly and adequately, and that they must consider  their interests just as he would represent and consider their own interests, and that they may not  favor their own interests over those of the Class Members.   64.  Plaintiffs recognize that any resolution of a Rule 23 class action lawsuit, including  any settlement or dismissal thereof, must be in the best interests of the Class. Plaintiffs  understand that in order to provide adequate representation, they must remain informed of  litigation developments and that they may be called upon to testify in depositions and at trial.   65.  Plaintiffs have the same interests in this matter as all other members of the  Proposed Class, and Plaintiffs’ claims are typical of the Proposed Class.   66.  There are questions of law and fact common to the Proposed Class which  predominate over any questions solely affecting the individual members of the Proposed Class,  including but not limited to:  a. Whether the Defendants employed Plaintiffs and 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 Plaintiffs and the Class members;  c. What proof of hours worked is sufficient where the employer fails in its duty to  maintain time records;  Whether the Defendants failed to pay Plaintiffs 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;  d. Whether the Defendants failed to pay Plaintiffs 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  - 20 -  thereunder;  e. Whether 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,  f. Whether 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.  67.  Plaintiffs re-allege and re-aver each and every allegation and statement contained  in paragraphs above of this Complaint as if fully set forth herein.   68.  Plaintiffs have consented in writing to be a party to this action, pursuant to 29  U.S.C. § 216(b).   69.  At all relevant times, upon information and belief, Defendants were and continue  to be an employer engaged in interstate commerce and/or the production of goods for commerce  within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). Further, Plaintiffs and the  Proposed FLSA Collective members are covered individuals within the meaning of the FLSA, 29  U.S.C. §§ 206(a) and 207(a).   70.  At all relevant times, Defendants employed Plaintiffs and the Proposed  FLSA Collective members within the meaning of the FLSA.   71.  Upon information and belief, at all relevant times, Defendants have had gross  revenues in excess of $500,000.   72.  Plaintiffs and the Proposed FLSA Collective members were entitled to be paid  at the applicable federal minimum wage for all straight time hours worked.  - 20 -   73.  Plaintiffs and the Proposed FLSA Collective members were entitled to be paid at  the rate of time and one-half for all hours worked in excess of the maximum hours provided for  in the FLSA.   74.  Defendants failed to pay Plaintiffs and the Proposed FLSA Collective members  minimum wage or overtime compensation in the lawful amount for all hours worked in excess of  the maximum hours provided for in the FLSA.   75.  At all relevant times, Defendants had, and continue to have a policy and practice  of refusing to pay minimum wage.   76.  At all relevant times, Defendants had, and continue to have a policy and practice  of refusing to pay overtime compensation at the statutory rate of time and one-half to Plaintiffs  and the Proposed FLSA Collective members for all hours worked in  excess  of forty (40)  hours per work week, which violated and continues to violate the FLSA, 29 U.S.C. §§ 201, et  seq., including 29 U.S.C. §§ 207(a)(l) and 215(a).   77.  Defendants knowingly and willfully disregarded the provisions of the FLSA as  evidenced by their failure to compensate Plaintiffs and the Proposed FLSA Collective members  at the minimum wage and the statutory overtime rate of time and one-half for all hours worked  in excess of forty (40) hours per week, when they knew or should have known such was due and  that non-payment of minimum wage and overtime compensation would financially injure  Plaintiffs and the Proposed FLSA Collective    78.  Defendants have failed to make, keep and preserve records with respect to each  of its employees sufficient to determine the wages, hours and other conditions and practices of  employment in violation of the FLSA, 29 U.S.A. §§ 201, et seq., including 29 U.S.C. §§ 21 l(c)  and 215(a).   79.  Defendants failed to properly disclose or apprise Plaintiffs and the Proposed  - 20 -  FLSA Collective members of their rights under the FLSA.   80.  As a direct and proximate result of Defendants' violation of the FLSA, Plaintiffs  and the Proposed FLSA Collective members are entitled to liquidated damages pursuant to the  83.  Plaintiffs re-allege and re-aver each and every allegation and statement contained  in paragraphs above of this Complaint as if fully set forth herein.   84.  Defendants employed Plaintiffs and the Rule 23 Proposed Class members  within the meaning of New York Labor Law §§ 2 and 651.   85.  Defendants knowingly and willfully violated the rights of Plaintiffs and the  Rule23 Proposed Class members by failing to pay Plaintiffs and the Rule 23 Proposed Class  members the applicable minimum wage for all straight time hours worked and required  overtime compensation at the rate of time and one-half for each hour worked in excess of forty  (40) hours in a workweek.   86.  Employers are required to pay a "spread of hours" premium of one (1) additional  hour' s pay at the statutory minimum hourly wage rate for each day where the spread of hours in  an employee's workday exceeds ten (10) hours. New York State Department of Labor  Regulations § 146-1.6.  - 20 -   87.  Defendants knowingly and willfully violated the rights of Plaintiffs and the Rule  23 Proposed Class members by failing to pay "spread of hours" premium to Plaintiffs and the  Rule 23 Proposed Class members for each day they worked in excess of ten (10) hours pursuant  to New York State Department of Labor Regulations.   88.  Defendants failed to properly disclose or apprise Plaintiffs and the Rule  23 Proposed Class members of their rights under the New York Labor Law.   89.  Defendants failed to furnish Plaintiffs and the Rule 23 Proposed Class members  with a statement with every payment of wages listing gross wages, deductions and net wages, in  contravention of New York Labor Law § 195(3) and New York State Department of Labor  Regulations § 146-2.3.   90.  Defendants failed to keep true and accurate records of hours worked by each  employee covered by an hourly minimum wage rate, the wages paid to all employees, and other  similar information in contravention of New York Labor Law § 661.   91.  Defendants failed to establish, maintain, and preserve for not less than six (6)  years payroll records showing the hours worked, gross wages, deductions, and net wages for  each employee, in contravention of the New York Labor Law§ 194(4), and New York State  Department of Labor Regulations§ 146-2.1.   92.  At the time of their hiring, Defendants failed to notify Plaintiffs and the Rule  23 Proposed Class members of their rates of pay and their regularly designated payday, in  contravention of New York Labor Law § 195(1).   93.  Due to the Defendants' New York Labor Law violations, Plaintiffs and the Rule  23 Proposed Class members are entitled to recover from Defendants the difference between their  actual wages and the amounts that were owed under the New York Labor law. The deficiency  accounts for minimum wage for all straight time hours, overtime compensation for all overtime  - 20 -  hours, "spread of hours" premium, reasonable attorneys' fees, and costs and disbursements of this  action, pursuant to New York Labor Law§§ 663(1), 198.   94.  Plaintiffs and the Rule 23 Proposed Class members are also entitled to liquidated  damages pursuant to New York Labor Law§ 663(1), as well as civil penalties and/or liquidated  damages pursuant to the New York State Wage Theft Prevention Act.  95.  Plaintiffs re-allege and re-aver each and every allegation and statement contained  in paragraphs above of this Complaint as if fully set forth herein.   96.  Defendants have willfully failed to supply Plaintiffs and the members of the Rule  23 Class with wage notices, as required by NYLL, Article 6, § 195(1), in English or in the  language identified by Plaintiffs and the members of the Rule 23 Class as their primary  language, containing Plaintiffs’ and the members of the Rule 23 Class' rate or rates of pay and  basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other;  hourly rate or rates of pay and overtime rate or rates of pay if applicable; 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.   97.  Through their knowing or intentional failure to provide Plaintiffs and the  members of the Rule 23 Class with the wage notices required by the NYLL, Defendants have  willfully violated NYLL, Article 6, §§ 190 et seq., and the supporting New York State  Department of Labor Regulations.   98.  Defendants have willfully failed to supply Plaintiffs and the members of the Rule  - 20 -  23 Class with accurate statements of wages as required by NYLL, Article 6, § 195(3), 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; 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.   99.  Through their knowing or intentional failure to provide Plaintiffs and the  members of the Rule 23 Class with the accurate wage statements required by the NYLL,  Defendants have willfully violated NYLL, Article 6, §§ 190 et seq., and the supporting New  York State Department of Labor Regulations.  100.  Due to Defendants' willful violations of NYLL, Article 6, § 195(1), Plaintiffs and  the members of the Rule 23 Class are entitled to statutory penalties of fifty dollars each day that  Defendants failed to provide Plaintiffs and the members of the Rule 23 Class with wage notices,  or a total of five thousand dollars each, reasonable attorneys' fees, costs, and injunctive and  declaratory relief, as provided for by NYLL, Article 6, § 198(1-b ).  101.  Due to Defendants' willful violations of NYLL, Article 6, § 195(3), Plaintiffs and  the members of the Rule 23 Class are entitled to statutory penalties of two hundred fifty dollars  for each workweek that Defendants failed to provide Plaintiffs and the members of the Rule 23  Class with accurate wage statements, or a total of five thousand dollars each, reasonable  attorneys' fees, costs, and injunctive and declaratory relief, as provided for by NYLL, Article 6, §  198(1-d).  Brough on behalf of Plaintiffs and the Proposed Rule 23 Class   Brought on behalf of Plaintiffs and the Proposed FLSA Collective   Brought on behalf of Plaintiffs and the Proposed Rule 23 Class  