 (NYLL Minimum Wage Violations)  On Behalf of Plaintiff and the NYLL Class   (FLSA Minimum Wage Violations)  On Behalf of Plaintiff and the FLSA Collective   (Failure to Provide Annual Wage Notices in Violation of NYLL § 195)  On Behalf of Plaintiff and the NYLL Class  108.  Plaintiff, on behalf of herself and the NYLL Class, realleges and incorporates by  reference all preceding paragraphs as if they were set forth again herein.   109.  As set forth above, during the NYLL Period, Defendants have failed to supply  Plaintiff and the NYLL Class with wage notices as required by NYLL § 195(1).  21  110.  Defendants’ violations of the NYLL entitle Plaintiff and the NYLL Class to  recover damages of fifty dollars per person affected for each work day that Defendants failed to  provide them with wage notices, up to a total of $5,000.00 per person affected, together with  reasonable attorneys’ fees and costs.  (Failure to Furnish Accurate Wage Statements in Violation of NYLL § 195)  On Behalf of Plaintiff and the NYLL Class  105.  Plaintiff, on behalf of herself and the NYLL Class, realleges and incorporates by  reference all preceding paragraphs as if they were set forth again herein.  106.  As set forth above, during the NYLL Period, Defendants failed to furnish accurate  wage statements to Plaintiff and the NYLL Class, in violation of NYLL § 195 by providing wage  statements that did not provide the requisite details and information.    107.  Defendants’ violations of the NYLL entitle Plaintiff and the NYLL Class to  recover damages of one hundred dollars per person affected for each work week that such  violations occurred, up to a total of $5,000.00 per person affected, together with reasonable  attorneys’ fees and costs.  (Failure to Pay Spread-of-Hours)  On Behalf of Plaintiff and the NYLL Class  100.  Plaintiff, on behalf of herself and the NYLL Class, realleges and incorporates by  reference all preceding paragraphs as if they were set forth again herein.   101.  Plaintiff and the NYLL Class members regularly worked more than 10 hours in a  workday.  102.  12 NYCRR 146-1.6(a) states that “[o]n each day on which the spread of hours  exceeds 10, an employee shall receive one additional hour of pay at the basic minimum hourly  rate.”  20  103.  As set forth above, during the NYLL Class Period, Defendants have willfully  failed to pay Plaintiff and the NYLL Class additional compensation of one hour’s pay at the  basic minimum hourly wage rate for each day during which they worked more than 10 hours.   104.  Defendants’ violations of the NYLL have significantly damaged Plaintiff and the  NYLL Class and entitle them to recover from Defendants their unpaid spread-of-hours wages, an  additional amount in liquidated damages and attorneys’ fees and costs.  (NYLL §§ 191 et seq. Violations for Failure to Pay Wages)  On Behalf of Plaintiff and the NYLL Class   (NYLL §§ 193 et seq. Unlawful Deductions)  On Behalf of Plaintiff and the NYLL Class   (Violation of IRC § 7434)  On Behalf of Plaintiff and the IRC Class  111.  Plaintiff, on behalf of herself and the IRC Class, realleges and incorporates by  reference all preceding paragraphs as if they were set forth again herein.   112.  26 U.S.C. § 7434 provides that where any person willfully files a fraudulent  information return with respect to payments purported to be made to any other person, such other  person may bring a civil action for damages against the person filing such information return.  113.  As set forth above, during the IRC Class Period, Defendants willfully filed  fraudulent information returns with respect to payments purported to be made to Plaintiff and the  IRC Class.  These information returns falsely stated that taxable income was received by  Plaintiff and the IRC Class in the form of wages and/or tips that were never actually paid.  As a  result, Plaintiff and the IRC Class suffered increased tax liability.   114.  Defendants’ violations of 26 U.S.C. § 7434 entitle Plaintiff and the IRC Class to  recover damages of the greater of: $5,000 per person or the actual economic damages sustained  as a proximate result of the filing of the fraudulent information return (including any costs  attributable to resolving the deficiencies asserted as a result of such filing), plus reasonable  attorneys’ fees and costs.   22  13.  Federal and state law require employers to pay employees a minimum wage.     14.  Defendants did not pay Plaintiff, the FLSA Collective and the NYLL Class any  minimum hourly wage and they were instead compensated solely through customer tips.    15.  Arguably, Defendants could have paid certain tipped employees at the lower tip-  credit minimum wage so long as the “tips” or “gratuities” that such tipped employees receive,  5  when added to the hourly wages, meet or exceed the standard hourly minimum wage, and so  long as all tips received by the employees are retained by the employees.      16.  However, although academic here given that Defendants did not pay any hourly  wage to service employees, Defendants were not entitled to avail themselves of a reduced  minimum wage by applying the tip credit because, inter alia, Defendants required service  employees to share and/or pool their tips with non-service employees such as Kitchen Chefs,  Counter Chefs and other employees who did not perform “tipped” duties or have any meaningful  customer interaction.    Uncompensated Work Time   17.  Defendants also routinely failed to pay Plaintiff and the FLSA Collective and  NYLL Class for all hours worked.   18.  For instance, Plaintiff and the FLSA Collective and NYLL Class who worked the  morning shift were required to arrive up to two hours before customers arrived to make  preparations for the lunch shift, including by cleaning menus and receipt books, wiping down  tables, counters and computers, cleaning and refilling sauce and salt dispensers, cutting limes,  making frozen margaritas and more.    19.  However, the time that Plaintiff and the FLSA Collective and NYLL Class spent  preparing for the morning shift was uncompensated because they were not paid any hourly wage  and given that they were not servicing customers, they were not paid tips.    20.  Upon the conclusion of their scheduled shifts, Plaintiff and the FLSA Collective  and NYLL Class were often required to remain at Pedro’s – well after the Restaurant was closed  to customers – to clean the premises, wipe down glasses, put away inventory and package  utensils for the next shift.    6   21.  However, Plaintiff and the FLSA Collective and NYLL Class were not  compensated for post-closing time because they were not paid any hourly wage and given that  they were not servicing customers, they were not paid tips.  Unlawful Deductions and Spread-of-Hours Violations   22.  Defendants also unlawfully deducted wages from Plaintiff and the NYLL Class.   For example, Defendants unlawfully deducted from the tips they earned if a customer walked out  on a bill, if they spilled a drink and had it replaced or if there was a cash register shortage at the  end of the night.    23.  The NYLL provides that employees are entitled to an extra hour of wages at the  minimum wage rate on days when those employees work more than 10 hours, which is called  “spread-of-hours” pay.    24.  While Plaintiff and the NYLL Class often worked double shifts in which they  worked more than 10 hours in a single workday, they were never paid spread-of-hours pay.   Failure to Provide Wage Notices and Accurate Wage Statements   25.  Defendants never provided Plaintiff and the NYLL Class with wage notices  setting forth their rates of pay or any of the additional information required by NYLL § 195(1).    26.  Defendants also never provided accurate wage statements to Plaintiff and the  NYLL Class detailing the rate of compensation, the time period covered by the paycheck, the  number of hours worked during the applicable time period and many other details required by  34.  Plaintiff brings her FLSA claims as a collective action pursuant to the FLSA on  behalf of herself and on behalf of all other similarly-situated persons who were employed by  Defendants as “Waiters,” “Servers,” “Bussers,” “Bartenders” or other similar “tipped” positions  during the three year limitations period covered by the FLSA (the “FLSA Collective Period”).  8   35.  At all relevant times, Plaintiff and the FLSA Collective were similarly situated,  had substantially similar job requirements, were paid in the same manner and under the same  common policies, plans and practices, and were subject to Defendants’ practice of willfully  failing and refusing to pay them at the legally required minimum wage for all hours worked and  requiring tipped employees to disburse part of their tips with non-tipped employees.    36.  During the FLSA Collective Period, Defendants were fully aware of the duties  performed by Plaintiff and the FLSA Collective, and that those duties were not exempt from the  minimum wage of the FLSA.     37.  As a result of Defendants’ conduct as alleged herein, Defendants violated 29  U.S.C. § 206 by not paying Plaintiff and the FLSA Collective the prevailing minimum wage for  all hours worked.   38.  Defendants’ violations of the FLSA were willful, repeated, knowing, intentional  and without a good-faith basis, and significantly damaged Plaintiff and the FLSA Collective.     39.  As a result of Defendants’ conduct, Defendants are liable to Plaintiff and the  FLSA Collective for the full amount of their unpaid minimum wages, plus an additional equal  amount as liquidated damages, plus the attorneys’ fees and costs incurred by Plaintiff and the  FLSA Collective.   40.  While the exact number of the FLSA Collective is unknown to Plaintiff at the  present time, upon information and belief, there are at least 40 other similarly-situated persons  who were employed by Defendants as “Waiters,” “Servers,” “Bussers,” “Bartenders” or other  similar “tipped” positions during the FLSA Collective Period.   41.  Plaintiff is currently unaware of the identities of the members of the FLSA  Collective.  Accordingly, Defendants should be required to provide Plaintiff with a list of all  9  persons employed by Defendants as “Waiters,” “Servers,” “Bussers,” “Bartenders” or other  similar “tipped” positions during the FLSA Collective Period, along with their last known  addresses, telephone numbers and e-mail addresses, so Plaintiff can give the FLSA Collective  notice of this action and an opportunity to make an informed decision about whether to  participate in it.    42.  Plaintiff brings her NYLL claims as a class action pursuant to FRCP 23 on behalf  of herself and on behalf of all other similarly-situated persons who were employed by  Defendants during the six year limitations period (the “NYLL Class Period”) as “Waiters,”  “Servers,” “Bussers,” “Bartenders” or other similar “tipped” positions who were: (i) not paid the  prevailing minimum wage for all hours worked; (ii) unlawfully denied tips and gratuities; (iii)  not paid wages for all hours worked; (iv) denied wages due to unlawful deductions; (v) denied  spread-of-hours pay; and (vi) not furnished with accurate wage statements or wage notices.   43.  The basic job duties of the NYLL Class were the same as or substantially similar  to those of Plaintiff, and the NYLL Class members were paid in the same manner and under the  same common policies, plans and practices as Plaintiff.   44.  The members of the NYLL Class, like Plaintiff, all have been subject to the same  unlawful policies, plans and practices of Defendants, including not paying the prevailing  minimum wage for all hours worked, unlawfully retaining gratuities, not paying wages for all  hours worked, making unlawful deductions, not paying spread-of-hours pay, not furnishing  accurate wage statements and not furnishing wage notices.   10   45.  During the NYLL Class Period, Defendants were fully aware of the duties  performed by Plaintiff and the NYLL Class, and that those duties were not exempt from the  minimum wage and other applicable provisions of the NYLL and/or its regulations.   46.  As a result of Defendants’ conduct as alleged herein, Defendants violated the  NYLL and/or its regulations.  Defendants’ violations of the NYLL and/or its regulations were  willful, repeated, knowing, intentional and without a good faith basis, and significantly damaged  Plaintiff and the NYLL Class.     47.  As a result of Defendants’ conduct, Defendants are liable to Plaintiff and the  NYLL Class for the full amount of their unpaid minimum wages, the tips or gratuities unlawfully  distributed to non-service employees, the unpaid wages owed, the unlawfully deducted wages,  unpaid spread-of-hours pay, the statutory penalties for failure to distribute accurate wage  statements and wage notices, an additional amount as liquidated damages, plus the attorneys’  fees and costs incurred by Plaintiff and the NYLL Class.   48.  Certification of the NYLL Class’ claims as a class action is the most efficient and  economical means of resolving the questions of law and fact common to Plaintiff’s claims and  the claims of the NYLL Class.  Plaintiff has standing to seek such relief because of the adverse  effect that Defendants’ unlawful compensation policies and practices have had on her  individually and on the NYLL Class.  Without class certification, the same evidence and issues  would be subject to re-litigation in a multitude of individual lawsuits with an attendant risk of  inconsistent adjudications and conflicting obligations.  Certification of the NYLL Class is the  most efficient and judicious means of presenting the evidence and arguments necessary to  resolve such questions for Plaintiff, the NYLL Class and Defendants.    11   49.  Plaintiff’s claims raise questions of law and fact common to the NYLL Class.   Among these questions are:   a.  Whether Defendants employed Plaintiff and the NYLL Class members  within the meaning of the NYLL;  b.  Whether Defendants paid Plaintiff and the NYLL Class members the  minimum wage for all hours worked during the NYLL Class Period;  c.  Whether Defendants illegally required Plaintiff and NYLL Class members  to share their tips with to non-tipped employees, such as Kitchen Chefs  and Counter Chefs and other individuals who were not working in  customarily tipped positions and/or did not have meaningful contact with  customers;  d.  Whether Defendants’ failure to pay Plaintiff and the NYLL Class their  wages earned constitutes a violation of NYLL § 191;   e.  Whether Defendants failed to pay spread-of-hours pay to Plaintiff and the  NYLL Class;   f.  Whether Defendants failed to furnish accurate wage statements to Plaintiff  and the NYLL Class;   g.  Whether Defendants failed to furnish wage notices to Plaintiff and the  NYLL Class; and  h.  Whether Defendants’ violations of the NYLL and/or its regulations were  willful.   50.  These common questions of law and fact arise from the same course of events,  and each class member will make similar legal and factual arguments to prove liability.   51.  Plaintiff is a member of the NYLL Class that she seeks to represent.  Plaintiff’s  claims are typical of the claims of the NYLL Class.  The relief Plaintiff seeks for the unlawful  policies and practices complained of herein are also typical of the relief which is sought on  behalf of the NYLL Class.     52.  Plaintiff’s interests are co-extensive with those of the NYLL Class that she seeks  to represent in this case.  Plaintiff is willing and able to represent the NYLL Class fairly and to  12  vigorously pursue her similar individual claims in this action.  Plaintiff has retained counsel who  are qualified and experienced in labor and employment class action litigation, and who are able  to meet the time and fiscal demands necessary to litigate a class action of this size and  complexity.  The combined interests, experience and resources of Plaintiff and her counsel to  litigate the individual and NYLL Class claims at issue in this case satisfy the adequacy of  representation requirement of Fed. R. Civ. P. 23(a)(4).   53.  Defendants have acted or refused to act on grounds generally applicable to the  NYLL Class, making final injunctive and declaratory relief appropriate with respect to the  NYLL Class as a whole.   54.  Injunctive and declaratory relief are the predominant relief sought in this case  because they are the culmination of the proof of Defendants’ individual and class-wide liability  and the essential predicate for Plaintiff’s and the NYLL Class’ entitlement to monetary and non- monetary remedies to be determined at a later stage of the proceedings.     55.  The common issues of fact and law affecting Plaintiff’s claims and those of the  NYLL Class members, including the common issues identified above, predominate over any  issues affecting only individual claims.   56.  A class action is superior to other available means for the fair and efficient  adjudication of Plaintiff’s claims and the claims of the NYLL Class.  There will be no difficulty  in the management of this action as a class action.   57.  The cost of proving Defendants’ violations of the NYLL and the supporting New  York State Department of Labor regulations makes it impracticable for Plaintiff and the NYLL  Class to pursue their claims individually.  Maintenance of a class action promotes judicial  economy by consolidating a large class of potential plaintiffs litigating identical claims.  The  13  claims of the NYLL Class interrelate such that the interests of the members will be fairly and  adequately protected in their absence.  Additionally, the questions of law and fact common to the  NYLL Class arise from the same course of events and each class member will make similar legal  and factual arguments to prove the Defendants’ liability.    58.  The NYLL Class is so numerous that joinder of all members is impracticable.   While the exact number of the NYLL Class is unknown to Plaintiff at the present time, upon  information and belief, there are at least 40 similarly-situated persons who were/are employed by  Defendants as “Waiters,” “Servers,” “Bussers,” “Bartenders” or other similar “tipped” positions  during the NYLL Class Period.    59.  Plaintiff is currently unaware of the identities of the members of the NYLL Class.   Accordingly, Defendants should be required to provide Plaintiff with a list of all persons  employed by Defendants as “Waiters,” “Servers,” “Bussers,” “Bartenders” or other similar  “tipped” positions during the NYLL Class Period, along with their last known addresses,  telephone numbers and e-mail addresses, so Plaintiff can give the NYLL Class notice of this  action and an opportunity to make an informed decision about whether to participate in it.    Internal Revenue Code Claims   60.  Plaintiff brings her Internal Revenue Code claims as a class action pursuant to  Fed. R. Civ. P. 23 on behalf of herself individually and on behalf of all persons employed by  Defendants during the six year limitations period (the “IRC Class Period”) who were subjected  to Defendants’ unlawful filing of fraudulent information returns with the IRS.   61.  The members of the IRC Class, like Plaintiff, were/are subjected to Defendants’  unlawful filing of fraudulent information returns with the IRS.   14   62.  The claims of Plaintiff described herein are typical of the claims of the IRC Class  she seeks to represent.    63.  Plaintiff will fairly and adequately represent and protect the interests of the IRC  Class and has retained counsel competent and experienced in complex class actions and  employment litigation.   64.  Common questions of law and fact exist as to the IRC Class, and predominate  over any questions affecting only individual members of the IRC Class, which include, but are  not limited to, the following:   a.  Whether Defendants filed fraudulent information returns with the IRS as  to Plaintiff and the IRC Class;   b.  Whether Defendants reported that Plaintiff and the IRC Class received  taxable income on account of unpaid wages and/or tips;  c.  Whether Defendants reported that Plaintiff and the IRC Class were  provided wages and/or tips that were not actually provided;  d.  Whether taxable income was imputed to Plaintiff and the IRC Class for  unpaid wages and/or tips;  e.  Whether Plaintiff and the IRC Class suffered increased tax liability on  account of Defendants’ filing of false information returns; and  f.  Whether Defendants’ violations of the Internal Revenue Code were  willful.   65.  These common questions of law and fact arise from the same course of events,  and each class member will make similar legal and factual arguments to prove liability.    66.  Plaintiff is a member of the IRC Class that she seeks to represent.  Plaintiff’s  claims are typical of the claims of the IRC Class.  The relief Plaintiff seeks for the unlawful  policies and practices complained of herein are also typical of the relief which is sought on  behalf of the IRC Class.   15   67.  Plaintiff’s interests are co-extensive with those of the IRC Class that she seeks to  represent in this case.  Plaintiff is willing and able to represent the IRC Class fairly and to  vigorously pursue her similar individual claims in this action.  Plaintiff has retained counsel who  are qualified and experienced in labor and employment class action litigation, and who are able  to meet the time and fiscal demands necessary to litigate a class action of this size and  complexity.  The combined interests, experience and resources of Plaintiff and her counsel to  litigate the individual and IRC Class claims at issue in this case satisfy the adequacy of  representation requirement of Fed. R. Civ. P. 23(a)(4).    68.  Defendants have acted or refused to act on grounds generally applicable to the  IRC Class, making final injunctive and declaratory relief appropriate with respect to the IRC  Class as a whole.    69.  Injunctive and declaratory relief are the predominant relief sought in this case  because they are the culmination of the proof of Defendants’ individual and class-wide liability  and the essential predicate for Plaintiff’s and the IRC Class’ entitlement to monetary and non- monetary remedies to be determined at a later stage of the proceedings.    70.  The common issues of fact and law affecting Plaintiff’s claims and those of the  IRC Class members, including the common issues identified above, predominate over any issues  affecting only individual claims.    71.  A class action is superior to other available means for the fair and efficient  adjudication of Plaintiff’s claims and the claims of the IRC Class.  There will be no difficulty in  the management of this action as a class action.    72.  The cost of proving Defendants’ violations of the IRC and the supporting Federal  Regulations makes it impracticable for Plaintiff and the IRC Class to pursue their claims  16  individually.  Maintenance of a class action promotes judicial economy by consolidating a large  class of potential plaintiffs litigating identical claims.  The claims of the IRC Class interrelate  such that the interests of the members will be fairly and adequately protected in their absence.   Additionally, the questions of law and fact common to the IRC Class arise from the same course  of events and each class member will make similar legal and factual arguments to prove  Defendants’ liability.   73.  The IRC Class is so numerous that joinder of all members is impracticable.   While the exact number of the IRC Class is unknown to Plaintiff at the present time, upon  information and belief, there are at least 40 similarly-situated persons who were/are employed by  Defendants on whose behalf Defendants filed fraudulent information returns with the IRS during  the IRC Class Period.    74.  Plaintiff is currently unaware of the identities of the members of the IRC Class.   Accordingly, Defendants should be required to provide Plaintiff with a list of all persons  employed by Defendants on whose behalf Defendant filed fraudulent information returns during  the IRC Class Period, along with their last known addresses, telephone numbers and e-mail  addresses, so Plaintiff can give the IRC Class notice of this action and an opportunity to make an  informed decision about whether to participate in it.   75.  Plaintiff, on behalf of herself and the FLSA Collective, realleges and incorporates  by reference all preceding paragraphs as if they were set forth again herein.   76.  The FLSA requires covered employers, such as Defendants, to pay all non- exempt employees the prevailing minimum wage for all hours worked.    17   77.  Plaintiff and the FLSA Collective were not exempt from the requirement that  Defendants pay them the prevailing minimum wage under the FLSA.   78.  As set forth above, during the FLSA Collective Period, Defendants did not pay  Plaintiff and the FLSA Collective the prevailing minimum wage for all hours worked for  Defendants.     79.  As a result of Defendants’ failure to pay Plaintiff and the FLSA Collective the  prevailing minimum wage for all hours worked, Defendants violated the FLSA.   80.  Defendants’ violations of the FLSA have significantly damaged Plaintiff and the  FLSA Collective and entitle them to recover the total amount of their unpaid minimum wages, an  additional equal amount in liquidated damages and attorneys’ fees and costs.  81.  Plaintiff, on behalf of herself and the NYLL Class, realleges and incorporates by  reference all preceding paragraphs as if they were set forth again herein.   82.  The NYLL requires covered employers, such as Defendants, to pay all non- exempt employees the prevailing minimum wage for all hours worked.     83.  Plaintiff and the NYLL Class were not exempt from the requirement that  Defendants pay them the prevailing minimum wage under the NYLL.   84.  As set forth above, during the NYLL Class Period, Defendants did not pay  Plaintiff and the NYLL Class the prevailing minimum wage for all hours worked for Defendants.   85.  As a result of Defendants’ failure to pay Plaintiff and the NYLL Class the  prevailing minimum wage for all hours, Defendants violated the NYLL.  18   86.  Defendants’ violations of the NYLL have significantly damaged Plaintiff and the  NYLL Class and entitle them to recover the total amount of their unpaid minimum wage, an  additional amount in liquidated damages and attorneys’ fees and costs.  87.  Plaintiff, on behalf of herself and the NYLL Class, realleges and incorporates by  reference all preceding paragraphs as if they were set forth again herein.   88.  The NYLL requires covered employers, such as Defendants, to pay employees all  the wages they are owed with the requisite frequency.     89.  Plaintiff and the NYLL Class were not exempt from the requirement that  Defendants pay them all the wages they are owed with the requisite frequency.     90.  As set forth above, during the NYLL Class Period, Defendants did not pay  Plaintiff and the NYLL Class all the wages they were owed with the requisite frequency.     91.  As a result of Defendants’ failure to pay Plaintiff and the NYLL Class all the  wages they are owed with the requisite frequency, Defendants violated the NYLL.   92.  Defendants’ violations of the NYLL have significantly damaged Plaintiff and the  NYLL Class, and entitle them to recover the total amount of their unpaid wages, an additional  amount in liquidated damages and attorneys’ fees and costs.  93.  Plaintiff, on behalf of herself and the NYLL Class, realleges and incorporates by  reference all preceding paragraphs as if they were set forth again herein   19   94.  The NYLL prohibits covered employers from making certain deductions from the  wages of employees.    95.  As set forth above, during the NYLL Class Period, Defendants unlawfully  deducted amounts from the wages of Plaintiff and the NYLL Class.   96.  Defendants did not make said deductions in accordance with the provisions of any  law or any rule or regulation issued by any governmental agency.    97.  Plaintiff and the NYLL Class did not authorize Defendants in writing to make  said deductions, and said deductions were not for the benefit of Plaintiff or the NYLL Class.    98.  As a result of Defendants’ unlawful deductions from the wages of Plaintiff and  the NYLL Class, Defendants violated the NYLL.    99.  Defendants’ violations of the NYLL have significantly damaged Plaintiff and the  NYLL Class and entitle them to recover the total amount of the wages that were deducted from  their pay, an additional amount in liquidated damages and attorneys’ fees and costs.   Minimum Wage Violations   New York Labor Law Claims  