(Failure to Pay Overtime Wages – FLSA, Brought by Plaintiffs on  Behalf of Themselves and the FLSA Collective Plaintiffs)   (Failure to Provide Accurate Pay Statements – NYLL § 195(3)  Brought by Plaintiffs on Behalf of Themselves and the Class)   (Failure to Pay Wages and Overtime Wages – NYLL, Brought by Plaintiffs   on Behalf of Themselves and the Class)   14.  Defendant is a nationwide distributor of dental supplies with a main office at 300  Jericho Quadrangle, Jericho, New York 117531.  1 http://www.google.com/finance?cid=11596890  accessed May 17, 2016.  4   15.  Defendant sells over 40,000 dental supply products to dental clinics and dentist  offices throughout the United States. Defendant conducts its business through telephone sales  and an e-commerce website. Defendant operates regional warehouse and distribution centers in  Arizona, Florida, Michigan, New York, Wisconsin, and Tennessee2. Defendant claims to be the  largest all-telesales national distributor of dental merchandise3.   16.  Plaintiffs, the Putative Collection Action Members, and the Class Members  worked for Defendant as hourly paid account managers. Account managers were assigned to  work at Defendant’s main office located at Jericho, New York and at locations in Coral Springs,  FL; Chandler, Arizona; DePere, Wisconsin; Michigan; and Memphis, TN.  In addition, some  account managers worked from their homes.     17.  Account managers’ primary duties include selling dental products by calling and  texting dental clinics and dentists’ offices.   18.  When Defendant first employs account managers, defendant expects account  managers to build up a customer base by making “cold calls” to dental offices and dental clinics  to solicit business4.   19.   Account managers make or receive calls to dental clinics, dentists’ offices, and  manufacturers during their normal workday. Account managers also e-mail manufacturers  regarding products and conduct internet searches regarding products.  2 http://www.google.com/finance?cid=11596890  accessed May 17, 2016.  3 https://www.darbydental.com/home/press.aspx accessed May 17, 2016.  4 http://www.indeed.com/cmp/Darby-Dental-Supply,-LLC/reviews accessed May 17, 2016.  5  58.  Plaintiffs bring the First Claim for Relief as a collective action pursuant to the  FLSA, 29 U.S.C. § 216(b), on behalf of all similarly situated Account Managers who were  employed by Defendant  in the United States on or after the date that is three years prior to the  filing of this Complaint to the entry of judgment in this case.  All said persons, including  Plaintiffs, are referred to herein as the “FLSA Collective Plaintiffs”.   59.  At all relevant times, Plaintiffs and the other FLSA Collective Plaintiffs are and  have been similarly situated, have had substantially similar job requirements, and job duties,  and are and have been subject to Defendant’s decision, policy, plan, practice, procedure, routine  and rules of willfully failing and refusing to pay them at least one-and-one-half times their  regular hourly rates of pay for all work performed for Defendant in excess of forty (40) hours  per workweek.  The claims of Plaintiffs herein are essentially the same as those of the other  FLSA Collective Plaintiffs.   60.  Other Account Managers currently or formerly employed by Defendant should  have the opportunity to have their claims for violations of the FLSA heard.  Certifying this  action as a collective action under the FLSA will provide other Account Managers notice of the  action and allow them to opt in to such an action if they so choose.    61.  The First Claim for Relief is 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 purpose of notice and other purposes related to this  action, their names and addresses are readily available from Defendant.  Notice can be provided  to the FLSA Collective Plaintiffs via first class mail to the last addresses known to Defendant.  62.  Plaintiffs bring the Second and Third Claims for Relief pursuant to the Fed. R.  Civ. P. (“FRCP”) Rule 23, to recover unpaid wages, unpaid overtime pay, and statutory  damages on behalf of a class of all individuals employed by Defendant as Account Managers in  11  New York State on or after the date that is six years before the filing of this Complaint until the  present (the "Class Period").  All said persons, including Plaintiffs, are referred to herein as the  “Class Members” and/or the “Class”.   63.  The number, names and addresses of the Class Members are readily ascertainable  from the records of the Defendant. The dates of employment and the rates of pay for each Class  Member, the hours assigned, and the wages paid to them, are also determinable from  Defendant’s records.  Notice can be provided by means permissible under FRCP Rule 23.   64.  The proposed Class is so numerous that joinder of all Class Members is  impracticable, and the disposition of their claims as a Class will benefit the parties and the  Court. While the precise number of such persons is unknown to Plaintiffs and is presently  within the sole control of Defendant, Plaintiffs believe that through discovery they will obtain  evidence to establish that there are well over one hundred members of the Class.   65.  Plaintiffs’ claims are typical of those claims of the Class Members, and the relief  sought is typical of the relief which would be sought by each Class Member in separate actions.  All the Class Members were subject to the same corporate practices of Defendant, in that they  were not properly compensated for all hours worked up to forty hours and for all overtime hours  worked as required by 12 NYCRR § 142-2.2.  Moreover all of the Class members were subject  to Defendant's policy of including the number of hours compensated rather than the number of  actual hours worked on their pay statements in violation of NYLL § 195(3).  Defendant’s  corporate-wide policies and practices affected all Class Members similarly, and Defendant  benefited from the same type of unfair and/or wrongful acts as to each Class Member.    66.  As fellow employees of Defendant, which failed to adequately compensate  Plaintiffs and the members of the Class as required by law, Plaintiffs and the other Class  Members sustained similar losses, injuries and damages arising from the same unlawful  policies, practices and procedures.   67.  Plaintiffs are able to fairly and adequately protect the interests of the Class and  have no interests antagonistic to the Class.  Plaintiffs are represented by attorneys who are  12  experienced and competent in employment and wage and hour litigation and class action  litigation who have many times previously represented plaintiffs in wage and hour class cases.   68.  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  individual class members lack the financial resources to vigorously prosecute a lawsuit against  corporate defendants.  Class action treatment will permit a large number of similarly situated  persons to prosecute their common claims in a single forum simultaneously, efficiently, and  without the unnecessary duplication of efforts and expense that numerous individual actions  engender.  Because the losses, injuries and damages suffered by each of the individual Class  Members are relatively 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 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.   69.  Upon information and belief, employees are often afraid to individually assert  their rights out of fear of direct or indirect retaliation and former employees are fearful of  bringing individual claims because the fear that doing so could harm their employment, future  employment, and future efforts to secure employment.  A class action provides 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.   13   70.  The questions of law and fact common to the Class predominate over any  questions affecting only individual Class Members, including, whether Defendant required  Class Members to work uncompensated hours and uncompensated overtime hours and failed to  adequately compensate the Class Members for all hours worked and all overtime hours worked  as required by 12 NYCRR § 142-2.2 and whether the pay statements that Defendant issued to  the Class violated NYLL § 195(3).   71.  Absent a class action, many of the Class Members likely will not obtain redress of  their injuries and Defendant will retain the proceeds of its violations of the NYLL.  72.  Plaintiffs, on behalf of themselves and the FLSA Collective Plaintiffs, reallege  and incorporate by reference all previous paragraphs as if they were set forth again herein.   73.  Plaintiffs consent in writing to be parties to this action under 29 U.S.C. § 216(b).   Plaintiffs’ written consents are attached hereto as Exhibit “A”.   74.  At all times relevant hereto, Plaintiffs and the FLSA Collective Plaintiffs  regularly worked in excess of forty (40) hours per workweek.   75.  At all relevant times, Defendant had a policy and practice of refusing to pay all of  the wages and overtime compensation it owed to its employees for all of their hours worked,  including hours worked in excess of forty hours per workweek.  At all relevant times,  Defendant willfully, regularly, repeatedly and knowingly failed to pay Plaintiff and the FLSA  Collective Plaintiffs the required overtime rates for all hours worked in excess of forty (40)  hours per workweek.   76.  Plaintiffs, on behalf of themselves and the FLSA Collective Plaintiffs, seek  damages in the amount of their respective unpaid hours and overtime compensation, liquidated  (double) damages as provided by the FLSA for overtime violations, pre-and post-judgment  14  interest, attorneys’ fees and costs, and such other legal and equitable relief as this Court deems  just and proper.  77.  Plaintiffs, on behalf of themselves and the Class Members, reallege and  incorporate by reference all previous paragraphs as if they were set forth again herein.   78.  It is unlawful under New York law for an employer to suffer or permit a non- exempt employee to work without paying overtime premiums for all hours worked in excess of  forty (40) hours in any workweek.   79.  It is unlawful under New York law for an employer to suffer or permit an  employee to work without compensation for all hours worked.   80.  Throughout the Class Period, Defendant willfully, regularly, repeatedly and  knowingly failed to pay Plaintiffs and the Class Members for all hours worked and for all of the  overtime hours worked at the required overtime rates for hours worked in excess of forty (40)  hours per workweek.   81.  As a direct and proximate result of Defendant’s unlawful conduct, as set forth  herein, Plaintiffs and the Class Members have sustained damages, including loss of earnings, in  an amount to be established at trial.   82.  Plaintiffs, on behalf of themselves and the Class Members, seek damages in the  amount of their respective unpaid wages, unpaid overtime compensation, liquidated damages,  prejudgment interest, attorneys’ fees and costs, pursuant to the NYLL, and such other legal and  equitable relief as this Court deems just and proper.  15  83.  Plaintiffs, on behalf of themselves and the Class Members, reallege and  incorporate by reference all previous paragraphs as if they were set forth again herein.   84.  Section 195(3) of the NYLL requires every employer to "furnish each employee  with a statement with every payment of wages…  For all employees who are not exempt from  overtime compensation as established in the commissioner's minimum wage orders or otherwise  provided by New York state law or regulation, the statement shall include the regular hourly  rate or rates of pay; the overtime rate or rates of pay; the number of regular hours worked, and  the number of overtime hours worked."     85.  Defendant provided pay statements to Plaintiffs and the members of the Class that  did not include an accurate number of hours worked.     86.  The pay statements that Defendant provided to Plaintiffs and the members of the  Class included the number of regular and overtime hours paid, not the number of regular and  overtime hours actually worked as required by the NYLL.     87.  In addition, the overtime rates of pay listed on the pay statements were inaccurate  insofar as they did not include commissions when calculating the listed overtime rates of pay.   88.  Defendant violated NYLL § 195(3) and consequently owes Plaintiffs and the  members of the Class statutory damages as specified by NYLL § 198(1-d).   89.  Plaintiffs, on behalf of themselves and the Class Members, seek statutory  damages as specified by NYLL § 198(1-d), reasonable attorneys’ fees and costs, and such other  legal and equitable relief as this Court deems just and proper. 