12.  Plaintiff brings claims for relief as a collective action pursuant to FLSA Section  16(b), 29 U.S.C. § 216(b), on behalf of all non-exempt employees, including cooks, food  preparers, dishwashers, cashiers, hosts/hostesses, porters, bartenders, barbacks, servers, runners,  6  bussers and delivery persons, employed by Defendants on or after the date that is six years  before the filing of the Complaint in this case as defined herein (“FLSA Collective Plaintiffs”).   13.  At all relevant times, Plaintiff and FLSA Collective Plaintiffs are and have been  similarly situated, have had substantially similar job requirements and pay provisions, and are  and have been subjected to Defendants’ decisions, policies, plans, programs, practices,  procedures, protocols, routines, and rules, all culminating in a willful failure and refusal to pay  them the proper overtime compensation at the rate of one and one half times the regular hourly  rate for work in excess of forty (40) hours per workweek due to time-shaving. With regard to  Plaintiff and a subgroup of FLSA Collective Plaintiffs who were tipped employees (“Tipped  Subclass”) (i.e. bartenders, barbacks, servers, bussers, runners and delivery persons), Defendants  were not entitled to take any tip credits because they failed to meet statutory requirements under  the FLSA. The claims of Plaintiff stated herein are essentially the same as those of FLSA  Collective Plaintiffs.   14.  The claims for relief are properly brought under and maintained as an opt-in  collective action pursuant to § 16(b) of the FLSA, 29 U.S.C. § 216(b). 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.  15.  Plaintiff brings claims for relief pursuant to the Federal Rules of Civil Procedure  (“F.R.C.P.”) Rule 23, on behalf of all non-exempt employees, including cooks, food preparers,  dishwashers, cashiers, hosts/hostesses, porters, bartenders, barbacks, servers, runners, bussers  7  and delivery persons, employed by Defendants on or after the date that is six years before the  filing of the Complaint in this case as defined herein (the “Class Period”).   16.  All said persons, including Plaintiff, are referred to herein as the “Class.” The  Class members are readily ascertainable. The number and identity of the Class members are  determinable from the records of Defendants. The hours assigned and worked, the position 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 F.R.C.P. 23.   17.  The proposed Class is so numerous that a joinder of all members is impracticable,  and the disposition of their claims as a class will benefit the parties and the Court. Although the  precise number of such persons is unknown, the facts on which the calculation of that number  are presently within the sole control of Defendants, there is no doubt that there are more than  forty (40) members of the Class. The Class further includes a subclass of tipped employees  comprised of servers, bussers, runners, bartenders, barbacks and delivery persons (“Tipped  Subclass”) who also number more than forty (40). Plaintiff is a member of both the Class and the  Tipped Subclass.   18.  Plaintiff’s 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, as alleged herein, of (i) failing to pay Class members for all  hours worked (including overtime hours) due to time-shaving, (ii) failing to pay spread-of-hours  premium, (ii) failing to provide proper wage statements per requirements of the New York Labor  Law, and (iv) failing to provide proper wage and hour notices per requirements of the New York  8  Labor Law. With regard to Plaintiff and the Tipped Subclass, Defendants were not entitled to  take any tip credits because they failed to meet statutory requirements under the New York  Labor Law. 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 and other Class members sustained similar losses, injuries and damages  arising from the same unlawful policies, practices and procedures.   19.  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.   20.  A class action is superior to other available methods for the fair and efficient  adjudication of the controversy – particularly in the context of the wage and hour litigation  where individual class members lack the financial resources to vigorously prosecute a lawsuit  against a corporate defendant. Class action treatment will permit a large number of similarly  situated persons to prosecute common claims in a single forum simultaneously, efficiently, and  without the unnecessary duplication of efforts and expense that numerous individual actions  engender. Because losses, injuries and damages suffered by each of the individual Class  members are small in the sense pertinent to a class action analysis, the expenses and burden of  individual litigation would make it extremely difficult or impossible for the individual Class  members to redress the wrongs done to them. On the other hand, important public interests will  be served by addressing the matter as a class action. The adjudication of individual litigation  claims would result in a great expenditure of Court and public resources; however, treating the  claims as a class action would result in a significant saving of these costs. The prosecution of  9  separate actions by individual members of the Class would create a risk of inconsistent and/or  varying adjudications with respect to the individual members of the Class, establishing  incompatible standards of conduct for Defendant and resulting in the impairment of class  members’ rights and the disposition of their interests through actions to which they were not  parties. The issues in this action can be decided by means of common, class-wide proof. In  addition, if appropriate, the Court can, and is empowered to, fashion methods to efficiently  manage this action as a class action.   21.  Defendants and other employers throughout the state violate the New York Labor  Law. Current employees are often afraid to assert their rights out of fear of direct or indirect  retaliation. Former employees are fearful of bringing claims because doing so can harm their  employment, future employment, and future efforts to secure 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.   22.  There are questions of law and fact common to the Class which predominate over  any questions affecting only individual class members, including:  (a)  Whether Defendants employed Plaintiff and Class members within the  meaning of the New York law;  (b)  What are and were the policies, practices, programs, procedures, protocols  and plans of Defendants regarding the types of work and labor for which Defendants did not pay  the Class members properly;  (c)  At what common rate, or rates subject to common methods of calculation,  was and are Defendants required to pay Plaintiff and Class members for their work;  10  (d)  Whether Defendants properly notified Plaintiff and Class members of their  regular hourly rate and overtime rate;  (e)  Whether Defendants paid Plaintiff and Tipped Subclass members the  proper minimum wage under the New York Labor Law;  (f)  Whether Defendants provided proper notice to Plaintiff and Tipped  Subclass members that Defendants were taking a tip credit;  (g)  Whether Defendants provided proper wage statements informing Plaintiff  and Tipped Subclass members of the amount of tip credit taken for each payment period and  other information required to be provided on wage statements;  (h)  Whether Defendants took the proper amount of tip credit allowance from  Plaintiff and Tipped Subclass members under the New York Labor Law;  (i)  Whether Defendants required Plaintiff and Tipped Subclass members to  perform non-tipped work for more than 20 percent of their workday;  (j)  Whether Defendants kept daily records of tips earned by Plaintiff and the  Tipped Subclass members;  (k)  Whether Defendants paid Plaintiff and Class members the proper overtime  compensation under the New York Labor Law;  (l)  Whether Defendants paid Plaintiff and Class members for all hours  worked given Defendants’ illegal policy of time-shaving.  (m)  Whether Defendants paid Plaintiff and Class members the “spread of  hours” premium as required by the New York Labor Law;  (n)  Whether Defendants provided proper wage statements to Plaintiff and  Class members per requirements of the New York Labor Law; and  11  (o)  Whether Defendants provided proper wage and hour notices to Plaintiff  and Class members per requirements of the New York Labor Law.  23.  In or about June 2011, Plaintiff ANSBERTO JUAREZ GONZALEZ was  employed by Defendants to work as a delivery person for Defendants’ “Angelo’s Pizza”  restaurant located at 1043 2nd Avenue, New York, NY 10022. Plaintiff’s employment was  terminated on February 21, 2017.   24.  During the employment of Plaintiff ANSBERTO JUAREZ GONZALEZ, he  worked over forty (40) hours per week. During Plaintiff ANSBERTO JUAREZ GONZALEZ’s  employment by Defendants, he regularly worked shifts that exceeded ten (10) hours in length  each workweek.   25.  Throughout his entire employment, Plaintiff’s working hours included the  following scheduled shifts: from 5:00 p.m. to 10:00 p.m. on Mondays, from 11:00 a.m. to 9:00  p.m. on Tuesdays, from 12:00 p.m. to 9:30 p.m. on Thursdays, from 11:00 a.m. to 10:00 p.m. on  Fridays, and from 5:00 p.m. to 10:00 p.m. on Saturdays; without a meal break, for a total of forty  and a half (40.5) hours per week. However, Defendants deducted one (1) hour for a lunch break  from Plaintiff’s and Class members’ payroll each workday, even though Plaintiff and Class  members worked through all of their lunch breaks during their employment with Defendants. In  addition, Defendants only paid Plaintiff and delivery persons for their scheduled working hours,  but in reality, Plaintiff and delivery persons had to work one (1) hour past their scheduled shift  each workday because they were instructed by the Defendants to make at least two to three  deliveries, even after clocking out. Each workweek, the resulting shaved time was approximately  ten (10) hours in length for Plaintiff and other delivery persons, and five (5) hours in length for  12  all other Class members. FLSA Collective Plaintiffs and Class members were required to work  similar hours and similarly suffered a policy of time-shaving.   26.  From the beginning of his employment until in or about January 2016, Plaintiff  received an hourly rate of $5.00 per hour. From in or about January 2016 until the end of his  employment, Plaintiff received an hourly rate of $7.50 per hour. Based on Plaintiff ANSBERTO  JUAREZ GONZALEZ’s direct observations and conversations with other employees, Tipped  Subclass members worked similar hours and were similarly paid on an hourly basis.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           27.  At all relevant times, Defendants paid Plaintiff and Tipped Subclass members  below the prevailing minimum wage in violation of the FLSA and NYLL.   28.  Plaintiff and Tipped Subclass members did not receive proper notice that  Defendants were claiming a tip credit. In addition, Plaintiff and Tipped Subclass members did  not receive notice informing them that the tips they received must be retained by them except for  a valid tip pooling arrangement, or that the tip credit taken by Defendants may not exceed the  value of tips that they actually received. Further, Defendants failed to provide proper wage  statements informing Plaintiff and Tipped Subclass members of the amount of tip credit taken for  each payment period.   29.  During his employment with Defendants, Plaintiff and the Tipped Subclass  members were required to engage in various non-tipped activities, such as accepting and  unloading incoming supplies, taking out all garbage, sweeping the floor and cleaning the  restaurant, for twenty (20) percent or more of their workday. Based on Plaintiff’s direct  observations and conversations with other employees, Tipped Subclass members similarly spent  at least twenty (20) percent of their workday performing such non-tipped activities.  13   30.  At all relevant times, Plaintiff, FLSA Collective Plaintiffs and Class members  regularly worked over forty (40) hours per week, but Defendants failed to pay them the proper  overtime compensation due to time-shaving, in violation of the FLSA and NYLL.   31.  At all times relevant, Defendants failed to pay Plaintiff and Class members for all  hours worked due to a policy of time-shaving, in violation of the FLSA and NYLL.   32.  At all times relevant, the workdays of Plaintiff and Class members regularly  exceeded ten (10) hours per day. However, Defendants failed to pay Plaintiff and Class members  the “spread of hours” premium as required by NYLL.   33.  At no time during the relevant time periods did Defendants provide Plaintiff or  Class members with proper wage and hour notices or wage statements as required by NYLL.   34.  Defendants knowingly and willfully operated their business with a policy of not  paying Plaintiff and Tipped Subclass members either the FLSA minimum wage or the New York  State minimum wage. With regard to Tipped Subclass members, Defendants were not entitled to  take any tip credits because they failed to meet statutory requirements under the FLSA and  41.  Plaintiff realleges and reavers Paragraphs 1 through 40 of this class and collective  action Complaint as if fully set forth herein.   42.  At all relevant times, Defendants were and continue to be employers 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, Plaintiff and FLSA Collective Plaintiffs are  covered individuals within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a).   43.  At all relevant times, Defendants employed Plaintiff and FLSA Collective  Plaintiffs within the meaning of the FLSA.   44.  At all relevant times, each of the Corporate Defendants had gross annual revenues  in excess of $500,000.  15   45.  At all relevant times, Defendants engaged in a policy and practice of refusing to  pay Plaintiff and FLSA Collective Plaintiffs for all hours worked due to time-shaving.   46.  At all relevent times, Defendants had a policy and practice of failing to pay the  statutory minimum wage to Plaintiffs and Tipped Subclass members for their hours worked.   47.  At all relevant times, Defendants had a policy and practice of failing to pay  overtime compensation at the statutory rate of time and one-half to Plaintiff and FLSA Collective  Plaintiffs for their hours worked in excess of forty (40) hours per workweek.   48.  Defendants knew of and/or showed a willful disregard for the provisions of the  FLSA as evidenced by their failure to compensate Plaintiff and Tipped Subclass members at the  statutory minimum wage when Defendants knew or should have known such was due.   49.  Defendants knew of and/or showed a willful disregard for the provisions of the  FLSA as evidenced by their failure to compensate Plaintiff and FLSA Collective Plaintiffs at the  the statutory overtime premium of time and one-half for their hours worked in excess of forty  (40) hours per week when Defendants knew or should have known such was due.   50.  Defendants failed to properly disclose or apprise Plaintiff and FLSA Collective  Plaintiffs of their rights under the FLSA.   51.  As a direct and proximate result of Defendants’ willful disregard of the FLSA,  Plaintiff and FLSA Collective Plaintiffs are entitled to liquidated (i.e. double) damages pursuant  to the FLSA.   52.  Due to the intentional, willful and unlawful acts of Defendants, Plaintiff and  FLSA Collective Plaintiffs suffered damages in an amount not presently ascertainable of unpaid  minimum wage and unpaid overtime compensation, plus an equal amount as liquidated damages.  16   53.  Records, if any, concerning the number of hours worked by Plaintiff and FLSA  Collective Plaintiffs and the actual compensation paid to Plaintiff and FLSA Collective Plaintiffs  are in the possession and custody of Defendants. Plaintiff intends to obtain these records by  appropriate discovery proceedings to be taken promptly in this case and, if necessary, will then  seek leave of Court to amend this Complaint to set forth the precise amount due.   54.  Plaintiff and FLSA Collective Plaintiffs are entitled to an award of their  reasonable attorneys’ fees and costs pursuant to 29 U.S.C. § 216(b).  55.  Plaintiff realleges and reavers Paragraphs 1 through 54 of this class and collective  action Complaint as if fully set forth herein.   56.  At all relevant times, Plaintiff and Class members were employed by Defendants  within the meaning of the New York Labor Law §§ 2 and 651.   57.  Defendants knowingly and willfully violated Plaintiff’s and Tipped Subclass  members’ rights by failing to pay them the minimum wage required by the New York Labor  Law. As factually described above, Defendants were not entitled to any tip credits under NYLL  with respect to the Tipped Subclass.   58.  Defendants knowingly and willfully violated Plaintiff’s and Class members’  rights by failing to pay them the proper overtime compensation at rates of not less than one and  one-half times the regular rate of pay for each hour worked in excess of forty (40) hours in a  workweek, due to time-shaving.   59.  Defendants knowingly and willfully violated Plaintiff’s and Class members’  rights by failing to pay them for all hours worked due to a policy of time-shaving.  17   60.  Defendants knowingly and willfully violated Plaintiff’s and Class members’  rights by failing to pay the spread-of-hours premium for each workday that exceeded ten (10)  hours.   61.  Defendants knowingly and willfully failed to provide proper wage and hour  notices to Plaintiff and Class members, as required by New York Labor Law § 195(1).   62.  Defendants knowingly and willfully failed to provide proper wage statements to  Plaintiff and Class members with every wage payment, as required by New York Labor Law §  195(3).   63.  Due to Defendants’ New York Labor Law violations, Plaintiff and Class members  are entitled to recover from Defendants their unpaid minimum wage, unpaid wages and overtime  compensation due to time-shaving, unpaid spread-of-hours premium, damages for unreasonably  delayed payments, statutory penalties, liquidated damages, reasonable attorneys’ fees and costs  and disbursements of the action, pursuant to New York Labor Law.  VIOLATION OF THE FAIR LABOR STANDARDS ACT   VIOLATION OF THE NEW YORK LABOR LAW  