(FLSA Overtime Violations, 29 U.S.C. § 207 -  Brought by Plaintiff on Behalf of Himself and the FLSA Collective)   (Failure to Provide Accurate Pay Statements – NYLL § 195(3)   Brought by Plaintiff on Behalf of Himself and the Class)  14   (Failure to Pay Wages and Overtime Wages – NYLL, Brought by Plaintiff on Behalf  of Himself and the Class)   1.2 million members in downstate New York.     18. Plaintiff sues on behalf of himself and all other similarly situated Marketing  Representatives employed by Defendants (the “FLSA Collective” or “FLSA Collective  Plaintiffs”).     19. Plaintiff is an appropriate representative of this collective action under 29. U.S.C.  §216(b).       20. Plaintiff and the other Marketing Representatives employed by Defendants are and have  been similarly situated, have had substantially similar job requirements and pay  provisions, and are and have been subject to Defendants’ decision, plan and common  policies, programs, practices, procedures, protocols, routines, and rules of willfully  failing and refusing to pay them at least one-and-one-half times their regular hourly rates  of pay for work in excess of forty (40) hours per workweek.  Defendants routinely  required them to work weekly hours in excess of forty but failed to pay them overtime  compensation at time and one-half their regular rate for all overtime hours worked.    21. Plaintiff brings the Second and Third Claims for Relief pursuant to Federal Rules of Civil  Procedure (“FRCP”) Rule 23, to recover unpaid wages, unpaid overtime pay, statutory  penalties, and other damages, on behalf of himself and all of Defendants’ current and  former Marketing Representatives currently and/or formerly employed by Defendants on  or after the date that is six years before the filing of this Complaint (the “Class” or “Class  Members”).     22. During the Class Members’ employment with Defendants, they consistently worked  longer hours than they were paid for, and are thus owed (i) wages at their regular rates of  pay for all hours up to 40 in a workweek, and (ii) overtime wages for all hours in excess  of 40 in a workweek.     23. The number and identify of, and the names and addresses of, the Class Members are  readily ascertainable from the records of the Defendants.  The dates of employment and  the rates of pay for each member of the Class, the hours assigned and worked, and the  wages paid to them, are also determinable from Defendants’ records.  Notice can be  provided by means permissible under FRCP Rule 23.    24. The proposed Class is so numerous that joinder of all members of the Class 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 Defendants, Plaintiff believes that there are significantly more  than forty (40) members of the Class.     25. Plaintiff’s claims are typical of those claims which could be alleged by any Class  Member, and the relief sought is typical of the relief which would be sought by each  Class Member in separate actions.  All the members of the Class were subject to the same  6  corporate practices and policies of Defendants, as alleged herein, of willfully failing and  refusing to properly pay them (i) for all hours worked up to forty (40) per workweek at  their regular rate of pay, and (ii) at least one-and-one-half times their regular hourly rates  of pay for work in excess of forty (40) hours per workweek, and of violating NYLL  §195(3).  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 each Class Member sustained similar losses, injuries  and damages arising from the same unlawful policies, practices, and procedures.     26. 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 wage and hour class action litigation who have many times  previously represented plaintiffs in wage and hour class cases.   27. 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  7  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 Defendants 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.   28. Upon information and belief, employees of Defendants and other employers are often  afraid to individually assert their rights out of fear of direct or indirect retaliation.  Former  employees are fearful of bringing claims because they fear that doing so could harm their  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.    29. The questions of law and fact common to the Class predominate over any questions  affecting only individual Class Members, including: (a) whether Defendants failed to  keep true and accurate time records for all daily and weekly hours worked by the Class  Members and other payroll records required by the NYLL, (b) whether Defendants failed  to pay the Class Members their regular hourly rates of pay for all work performed up to  forty (40) hours per workweek;  (c) whether Defendants failed to pay the Class Members  at least one-and-one-half times their regular hourly rates of pay for all work in excess of  8  forty (40) hours per workweek; (d) whether the Class Members are entitled to damages  for unpaid regular and/or overtime wages, and if so, the means of measuring such  damages; (e) whether Defendants are liable for NYLL liquidated damages; and (f)  whether it was Defendants’ policy and practice to fail to furnish the Class Members with  an accurate statement of wages, hours worked, rates paid, and gross wages as required by  31. Defendants operate a provider-sponsored health insurance company that serves more than   32. Defendants offer Medicaid, Medicare Advantage, Child Health Plus, and Managed Long  Term Care health insurance plans.     33. Plaintiff and the other Marketing Representatives were supposed to sell Medicare health  insurance plans for Defendants.    34. Defendants employ hundreds of Marketing Representatives in New York City and  assigned them to work in various areas/zones.     35. Defendants maintained offices in three areas/zones in Brooklyn, including offices in  downtown Brooklyn (“Downtown Brooklyn”), on 7th Avenue in Central Brooklyn  (“Central Brooklyn”), and on 86th Street in South Brooklyn (“South Brooklyn”).     36. Defendants assigned Plaintiff to work out of Defendants’ “Brooklyn South” area/zone  and he reported to Defendants’ Brooklyn South office.  9   37. Plaintiff was assigned to primarily work in Coney Island Hospital in Brooklyn, New  York.   38. Although Plaintiff was normally primarily assigned to work at Coney Island Hospital,  Plaintiff was also assigned to work at several doctors’ offices, and a CVS pharmacy, in  Brooklyn.     39. In accordance with Defendants’ Sales Incentive Plan, Defendants paid Plaintiff, the  FLSA Collective Plaintiffs, and the Class a base salary plus per enrollment incentive  compensation of $200.00 to $500.00 per enrollment.   40. Plaintiff’s, the FLSA Collective Plaintiffs’, and the Class’ primary work duties included  selling Defendants’ Healthfirst products, providing customer service, and filling out  various required forms and associated paperwork.  They also regularly had to make and  answer phone calls and emails to and from patients and prospective customers, and  personally drop off completed applications at Defendants’ offices at the end of each day.    41.  Defendants failed to properly track, record, and pay for all of the hours worked by the  Plaintiff, the FLSA Collective Plaintiffs, and the Class.     42. Defendants’ time-sheets did not accurately reflect all time worked because Plaintiff, the  FLSA Collective Plaintiffs, and the Class only recorded their scheduled, and not actual,  time worked.     43. Plaintiff, the FLSA Collective Plaintiffs, and the Class were normally scheduled to work  for Defendants five days a week, although during busy times like during the open  enrollment periods they worked six days a week.    10   44. Plaintiff, the FLSA Collective Plaintiffs, and the Class were normally scheduled to work  an eight and one half-hour shift –from 9:00 AM to 5:30 PM - which included a half-hour  unpaid lunch break.      45. Throughout their employment with Defendants, Plaintiff, the FLSA Collective Plaintiffs,  and the Class regularly started working before the start of their scheduled shifts without  being paid for all of the hours they worked.     46. For example, Plaintiff used to regularly start working at or about 8:00 AM.     47. Throughout their employment with Defendants, and especially during the busy times,  Plaintiff, the FLSA Collective Plaintiffs, and the Class regularly worked through their  unpaid lunch breaks - to make sales and/or assist/answer questions from current or  prospective customers.     48. Plaintiff, the FLSA Collective Plaintiffs, and the Class often had to stay 30 to 60 minutes,  or later, after the end of their scheduled shifts to finish any sales they were working on, to  assist/answer questions from current or prospective customers, to perform end of the day  duties, to complete required paperwork, and to personally drive to Defendants’ offices to  drop off completed applications.     49. In addition, inasmuch as Defendants' management told Plaintiff, the FLSA Collective  Plaintiffs, and the Class to give their cell phone numbers to prospective customer – and  Defendants printed their cell phone numbers on their business cards - Plaintiff, the FLSA  Collective Plaintiffs, and the Class often fielded phone calls and emails from customers  and prospective customers in the evenings and on their days off.   5   50. Plaintiff, the FLSA Collective Plaintiffs, and the Class were not compensated for their  post-shift work, or for their working through their unpaid lunch break, or when they were  11  called after hours or on their days off, or when they worked prior to the beginning of their  scheduled shifts.  They thus regularly worked between 1 to 2 or more off-the-clock hours  per day for which they were not compensated and during busy times they often worked  an extra 2 to 3 extra hours per day for which they were not compensated.     51. Defendants management exerted significant pressure on Plaintiff, the FLSA Collective  Plaintiffs, and the Class to meet or exceed their strict sales quotas which resulted in  Plaintiff, the FLSA Collective Plaintiffs, and the Class routinely working in excess of  their scheduled hours of work.   52. Defendants knew that Plaintiff, the FLSA Collective Plaintiffs, and the Class regularly  worked during their unpaid lunch periods, before and after their scheduled hours of work  each day, and on days that they were scheduled off.    53. Defendants’ practices resulted in the Plaintiff, the FLSA Collective Plaintiffs, and the  Class regularly working more than 40 hours a week without being paid all of their earned  overtime premiums, and in them not being compensated for all of the time they worked  for Defendants.      54. Defendant profited from the extra hours worked by Plaintiff, the FLSA Collective  Plaintiffs, and the Class, and Defendants should have paid them for this time.  Plaintiff’s Unpaid Commissions Claim   55. In accordance with Defendants’ Sales Incentive Plan, Defendants were supposed to pay  Plaintiff incentive compensation of between $200.00 to $500.00 per enrollment.     56. In December of 2018, Plaintiff enrolled approximately forty-four persons.     57. Defendants refused to pay Plaintiff incentive compensations for each of those  enrollments.   12  58. Plaintiff incorporates the allegations contained in the previous paragraphs of this  Complaint as if fully set forth herein.   59. Throughout the statute of limitations period covered by these claims, Defendants were  and continue to each be an “employer” engaged in interstate commerce within the  meaning of the FLSA and employed Plaintiff and each member of the FLSA Collective.   60. At all relevant times, Plaintiff and the FLSA Collective members regularly worked in  excess of forty (40) hours per workweek.   61. At all relevant times, Defendants operated under a policy and practice of failing to pay  proper overtime compensation to Plaintiff and the FLSA Collective members for all of  the hours they worked in excess of 40 hours per week, and demanded, encouraged,  allowed, and/or knowingly permitted the FLSA Collective members to work off-the- clock without paying them proper overtime compensation for all of the hours they  worked in excess of 40 hours per week.   62. At all relevant times, Defendants willfully, regularly, repeatedly and knowingly failed to  pay Plaintiff and the FLSA Collective members at the required overtime rate of one-and- one-half times their regular hourly rate of pay for all hours worked in excess of forty (40)  hours per workweek.   63. Plaintiff, on behalf of himself and the FLSA Collective members, seeks damages in the  amount of their respective unpaid overtime compensation, liquidated (double) damages  as provided by the FLSA for overtime violations, attorneys’ fees and costs, and such  other legal and equitable relief as this Court deems just and proper.  13  64. Plaintiff, on behalf of himself and the Class, realleges and incorporates by reference all  previous paragraphs as if they were set forth again herein.   65. 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.   66. It is unlawful under New York law for an employer to suffer or permit an employee to  work without compensation for all hours worked.   67. At all relevant times, Defendants willfully, regularly, repeatedly and knowingly failed to  pay Plaintiff and the Class Members for all hours worked at their regular rates of pay and   at the required overtime rates for all hours worked in excess of forty (40) hours per  workweek.   68. As a direct and proximate result of Defendants’ unlawful conduct, as set forth herein,  Plaintiff and the Class Members have sustained damages, including loss of earnings, in  an amount to be established at trial.   69. Plaintiff, on behalf of himself and the Class members, seeks damages in the amount of  their respective unpaid wages, unpaid overtime compensation, liquidated damages,  attorneys’ fees and costs, pre and post judgment interest, pursuant to the NYLL, and such  other legal and equitable relief as this Court deems just and proper.  70. Plaintiff, on behalf of himself and the Class members, realleges and incorporates by  reference all previous paragraphs as if they were set forth again herein.   71. 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."     72. Defendants provided pay statements to Plaintiff and the members of the Class that did not  include an accurate number of hours worked.     73. The pay statements that Defendants provided to Plaintiff 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.     74. Defendants violated NYLL § 195(3) and consequently owes Plaintiff and the members of  the Class statutory damages as specified by NYLL § 198(1-d).    75. Plaintiff, on behalf of himself 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.  :   :  JURY TRIAL DEMANDED   Defendants.  : 