(FLSA: Failure to Pay Overtime Compensation)   (FLSA-FAILURE TO PAY THE FEDERAL MINIMUM WAGE)   (NEW YORK LABOR LAW: Failure to Pay Overtime Compensation)   21. At all times relevant, Plaintiff and the members of the FLSA Class and New York Class,  performed non-exempt duties, including, but not limited to, cooking, preparation of food  and dishwashing services for defendants customers.    22. At all times hereinafter mentioned, Plaintiff and the members of the FLSA Class and New  York Class were required to be paid overtime pay at the statutory rate of time and one-half  their regular rate of pay for all hours worked over forty (40) hours in a workweek.   23. Plaintiff and the members of the FLSA Class and New York Class regularly worked more  than forty (40) hours in most workweeks in which they were employed by the Defendants.   24. Plaintiff regularly worked six (6) to eleven (11) hours per day, five (5) or six (6) days per  week, or approximately 42 ½-54 hours per week, without overtime pay or spread of hours  pay.   25. Plaintiff, and the members of the FLSA Class and New York Class, were paid an hourly  rate per hour of approximately $12.00 to $22.00 dollars for the first forty (40) hours worked  per week, irrespective of the amount of hours worked.     26. Plaintiffs and the members of the FLSA Class and New York Class consistently worked  over 40 hours per week but were not paid for any hours over 40 per week and their hourly  rate fell well below the statutory minimum wage.   27. For example, for the week of March 3, 2014- March 9, 2014, Plaintiff GPIMENTEL  worked fifty (50) hours, was only paid for the first forty (40) hours at an hourly rate, and  was not paid for any hours worked over 40.    28. Defendants failed to compensate the Plaintiff and the members of the FLSA Class and New  York Class for time worked in excess of forty (40) hours per week at a rate of at least one  and one-half times their regular hourly rate, throughout the entire term of their employment  with the Defendants.   29. Defendants willfully disregarded and purposefully evaded record keeping requirements of  the FLSA and the New York Labor Law by failing to maintain accurate time sheets and  payroll records.   30. Defendants failed to pay Plaintiff and the members of the FLSA Class and New York Class  employees spread of hours pay in violation of New York Labor Law. Despite working over  ten hours per day, Plaintiff and the members of the FLSA Class and New York Class were  not compensated an additional hours pay when they worked more than ten (10) hours in a  day.   31. Defendants’ refusal and/or failure to pay overtime and spread of hours pay was knowing  and willful.   32. Defendants failed to provide Plaintiff and the members of the FLSA Class and New York  Class time off for meal and break periods.   33. On numerous occasions, Plaintiff and the members of the FLSA Class and New York Class  received neither the thirty (30) minute noonday break period for employees who work  shifts in excess of six (6) hours that extend over the noonday meal period, nor the twenty  minutes between 5:00 p.m. and 7:00 p.m. for those employed on a shift starting before  11:00 a.m. and continuing after 7:00 p.m.  34. Plaintiff brings this action on behalf of himself and other employees similarly situated, as  authorized under 29 USC § 216(b).  The employees similarly situated are: FLSA CLASS:   All persons who are or have been employed by Defendants at MEMORIES PUB who were  paid an hourly rate within three (3) years prior to this action’s filing date through the date  of the final disposition of this action and who were subject to Defendants’ unlawful practice  of (a) failing to pay the applicable minimum wage; and (b) failing to pay overtime  compensation for all hours worked in excess of 40 hours per workweek.     35. Defendants meet the definition of an "employer" under the FLSA. By way of example only,  Defendants control how much the FLSA Class members are paid, maintain all time records  for the FLSA Class members, assigned and supervised all of the tasks given to the FLSA  Class members, and maintained and exercised control as to how the FLSA Class members  were to perform their tasks.   36. Each of the FLSA Class members are non exempt "employees" entitled to overtime  compensation for all hours worked in excess of 40 hours per workweek.   37. During the FLSA Class Period, Defendants paid Plaintiff and the members of FLSA Class  less than the statutory minimum wage.   38. Defendants also failed to pay Plaintiff and the FLSA Class members any overtime  premiums when they worked in excess of 40 hours in a given work week. Instead,  Defendants paid Plaintiff and the members of the FLSA Class an hourly rate for all hours  worked. For all employees, Defendants did not pay any compensation to the members of  the proposed FLSA Class for any hours worked in excess of 40 hours in a given workweek.   39. In addition to the foregoing, Defendants otherwise failed to properly compensate Plaintiff  and the members of the FLSA Class in accordance with the provisions of the FLSA and  the U.S. Department of Labor regulations.    40. Defendants' conduct; as set forth in this Complaint, was willful and in bad faith and has  caused significant damages to Plaintiff and the members of the FLSA Class.   41. Defendants are liable under the FLSA for failing to properly compensate Plaintiff and the  members of the FLSA Class, and as such, notice should be sent to the FLSA Class. There  are numerous similarly situated current and former employees of Defendants who were  subject to the aforementioned policies in violation of the FLSA who would benefit from  the issuance of a Court-supervised notice of the present lawsuit and the opportunity to join  in the present lawsuit. Those similarly situated employees are known to Defendants and  are readily identifiable through Defendants' records.  42. Plaintiff also brings this action as a class action  pursuant to Rule 23 of the Federal Rules  of Civil Procedure on behalf of the following defined class: New York Class:  All persons  who are or have been employed by Defendants at MEMORIES PUB who were paid an  hourly or flat daily rate within six (6) years prior to this action's filing date through the  date of the final disposition of this action and who were subject  to Defendants' unlawful  practice of (i) failing to pay minimum wage, (ii) failing to pay overtime compensation for  all hours worked in excess of 40 hours per workweek, (iii) failing to pay "spread of hours"  pay, and/or (iv) failing to furnish wage statements that specifically enumerated certain  criteria, as required by the New York Labor Law.   43. At all times during the New York Class Period, Defendants, as a matter of policy, (i) did  not pay Plaintiffs or the New York Class members minimum wage or overtime premium  pay for all hours worked in excess of 40 hours per workweek, (ii) did not pay Plaintiffs and  the members of the New York Class "spread of hours" pay as required by the New York  Labor Law, and (iii) failed to furnish wage statements required by the New York Labor  Law.   44. Defendants failed to make, keep and/or preserve accurate records with respect to Plaintiff  and the New York Class and failed to furnish to Plaintiff and the New York Class an  appropriate statement of wages, in violation of the New York Labor Law.   45. Numerosity:  The persons in the New York Class identified above are so numerous that  joinder of all members is impracticable.     46. The New York Class Members are readily ascertainable.  For purposes of notice and other  purposes related to this action, their names and addresses are readily available from  Defendants.   47. Defendants have acted or have refused to act on grounds generally applicable to the New  York Class, thereby making appropriate final injunctive relief or corresponding declaratory  relief with respect to the New York Class as a whole.   48. Commonality:  There are questions of law and fact common to the New York Class that  predominate over any questions solely affecting individual members of the New York  Class, including but not limited to:    (a)  Whether the Defendants unlawfully failed to pay proper  compensation in violation of and within the meaning of the  New York Labor Law Article 6, 190 et seq. and the supporting  New York State Department of Labor Regulations, 12  N.Y.C.R.R. Part 146;  (b)  Whether Defendants have failed to keep true and accurate time  records for all hours worked by Plaintiffs and the New York  Class;  (c)  What documents of hours worked is sufficient when an  employer fails in its duty to maintain true and accurate time  records;  (d)  What were the policies, practices, programs, procedures,  protocols and plans of Defendant regarding payment of  overtime wages;  (e)  Whether Defendants failed and/or refused to pay Plaintiff and  the New York Class overtime pay for hours worked in excess  of 40 hours per work week within the meaning of New York  Labor Law Article 19, §650 et seq., and the supporting New  York State Department of Labor Regulations, 12 N.Y.C.R.R.  Part 146;  (f)  The nature and extent of New York Class-wide injury and the  appropriate measure of damages for the class;  (g)  Whether Defendants’ general practice of failing and/or  refusing to pay Plaintiff and the New York Class overtime pay  for hours worked in excess of 40 hours per work week was  done willfully or with reckless disregard of the federal and  state wage and hour laws.   49. Typicality: 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 failing to pay overtime  compensation for hours worked in excess of forty (40) hours each week, failure to pay the  minimum wage and spread of hours pay.     50. Adequacy.  Plaintiff will fairly and adequately represent and protect the interests of the  New York Class and has retained counsel competent and experienced in complex class  actions and in labor and employment litigation.   51. Superiority: A class action is superior to other available methods for the fair and efficient  adjudication of this litigation, particularly in the context of a wage and hour litigation like  the present action, where individual plaintiffs may lack the financial resources to  vigorously prosecute a lawsuit in federal court against a corporate defendant. 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.  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  savings of these costs.  The members of the New York Class have been damaged and are  entitled to recovery as a result of defendants’ common and uniform policies, practices and  procedures. Although the relative damages suffered by individual New York Class  Members are not de minimis, such damages are small compared to the expense and burden  of individual prosecution of this litigation.  In addition, class treatment is superior because  it will obviate the need for unduly duplicative litigation that might result in inconsistent  judgments about defendants’ practices.  52. Plaintiff alleges and incorporates by reference all allegations in all preceding paragraphs.   53. During the relevant period, Plaintiff and members of the FLSA Class worked in excess of  forty (40) hours per workweek, and because of Defendants’ above outlined violations of  the FLSA, was not paid appropriate overtime compensation.    54. Defendants have engaged in a widespread pattern and practice of violating the FLSA, as  detailed in this Complaint.   55. Plaintiff has consented in writing to be party to this action, pursuant to 29 U.S.C. §216(b).   56. Defendants’ violations of the FLSA, as described in this Complaint have been willful and  intentional.     57. Because Defendants’ violations of the FLSA have been willful, a three-year statute of  limitations applies, pursuant to 29 U.S.C. §255.    58. As a result of Defendants’ willful violations of the FLSA, Plaintiff and members of the  FLSA Class are entitled to recovery of such amounts, liquidated damages, attorneys’ fees  and costs and equitable relief as the Court deems just and proper pursuant to 29 U.S.C.  §216(b).  59. Plaintiff alleges and incorporates by reference all allegations in all preceding paragraphs.   60. At all relevant times, Plaintiff and the members of the New York Class were employees  and Defendants have been an employer within the meaning of the New York Labor Law.   61. The overtime wage provisions of Article 19 of the New York Labor Law and its supporting  regulations apply to the Defendants.   62. Defendants employed Plaintiff and members of the New York Class for workweeks longer  than forty (40) hours and willfully failed to compensate the Plaintiff and members of the  New York Class for the time worked in excess of forty (40) hours per week, at a rate of at  least one and one-half times the regular hourly rate, in violation of New York Labor Law.   63. Defendants have failed to pay Plaintiff and members of the New York Class overtime  wages to which they were entitled under the New York Labor Law.   64. By Defendants’ failure to pay Plaintiff and members of the New York Class overtime  wages for hours worked in excess of 40 hours per week, it has willfully violated the New  York Labor Law Article 19, §650 et seq., and the supporting New York State Department  of Labor Regulations, including 12 N.Y.C.R.R. Part 146.   65. Due to Defendants’ violations of the New York Labor Law, Plaintiff and the members of  the New York Class are entitled to recover from Defendants their unpaid overtime wages,  liquidated damages, reasonable attorneys’ fees and costs of the action, and pre-judgment  and post-judgment interest.  66. Plaintiff alleges and incorporates by reference all allegations in all preceding paragraphs.   67. At all times relevant to this action, Plaintiff was Defendants’ employee within the meaning  of 29 U.S.C. §203(e)(1).   68. At all times relevant, Defendants was Plaintiffs employer within the meaning of 29 U.S.C.  §203(d).   69. At all times relevant, the applicable federal minimum wage is codified by 29 U.S.C.  206(a)(1).   70. Defendants willfully failed to pay Plaintiff and members of the FLSA Class the minimum  wages for hours worked, in violation of the Fair Labor Standards Act, 29 U.S.C. §206(a).   71. As a consequence of the willful underpayment of wages, Plaintiff and members of the  FLSA Class are entitled to the unpaid minimum wages, liquidated damages and attorneys’  fees and costs and such other legal and equitable relief as the Court deems just and proper.  