 [Violations of the Fair Labor Standards Act—Overtime Wage  Brought on behalf of the Plaintiffs and the FLSA Collective]   18.  Defendants committed the following alleged acts knowingly, intentionally and  willfully.   19.  Defendants knew that the nonpayment of overtime pay and failure to provide the  required wage notice at the time of hiring would financially injure Plaintiff and similarly situated  employees and violate state and federal laws.    20.  From 2006 until the present, Plaintiff was hired by Defendants to work as a store  worker for Defendants’ business located at 31-85 Whitestone Expressway, Flushing, NY 11354.   21.  For the applicable period, Defendants classified Plaintiff as an exempt employee  and did not pay overtime compensation for hours worked over forty (40) per week.  5   22.  Throughout the applicable period, Plaintiff generally worked six days per week  according to the following schedule: on Mondays, Plaintiff worked from 8:30am until 2:00pm.  On Wednesdays and Thursdays, Plaintiff worked from 10:30 a.m. until 8:00 p.m. On Fridays and  Saturdays, Plaintiff worked from 8:30 a.m. until 6:00 p.m. On Sundays, Plaintiff worked from  9:00 a.m. until 7:30 p.m. Therefore, Plaintiff worked approximately fifty-four (54) hours per  week.   23.  Throughout his employment, Plaintiff’s main job responsibility was receiving and  unloading merchandise from trucks, setting up the merchandise, and on-the-floor sales.    24.  From 2011 until on or about 2015, Plaintiff’s title was Restaurant Supply  Manager.    25.  From 2015 until the present, Plaintiff’s title was Assistant General Manager for  Restaurant Supplies Department.   26.  Although Defendants classified Plaintiff as a manager, Plaintiff did not have any  managerial authorities or duties such as hiring and firing, training and supervising employees,  setting employees’ pay rate and schedule.    27.  Plaintiff’s primary duty did not involve managing the enterprise or managing a  customarily recognized department or subdivision of the enterprise    28.  Plaintiff did not customarily and regularly direct the work of at least two or more  other full-time employees or their equivalent.   29.  Because Plaintiff was misclassified as an exempt employee, Plaintiff received a  fixed annual salary regardless of the hours he actually worked.   30.  From on or about September 2011 until on or about July 2012, Plaintiff received  yearly salary of $39,000.    6   31.  From on or about August 2012 until on or about June 2015, Plaintiff received  yearly salary of $42,000 per year.   32.  From July 2015 until September 2017, Plaintiff received yearly salary of $46,000.    33.  Defendants misclassified Plaintiff as exempt and did not compensate Plaintiff for  overtime compensation according to state and federal laws.   34.  Plaintiffs were not compensated for New York’s “spread of hours” premium for  shifts that lasted longer than ten (10) hours.    35.  Defendants did not provide Plaintiffs with wage notices at the time of their hiring.    36.  Defendants committed the following alleged acts knowingly, intentionally and  willfully.    37.  Defendants knew that the nonpayment of overtime and the “spread of hours”  premium would economically injure Plaintiff and the Class Members by their violation of federal  and state laws.    38.  Defendants committed the foregoing acts against the Plaintiffs, the FLSA  Collective Plaintiffs, and the Class.  39.  Defendants knowingly and willfully operated their business with a policy of not  paying Plaintiffs and other similarly situated employees either the FLSA overtime rate (of time  and one-half), or the New York State overtime rate (of time and one-half), in violation of the  FLSA and New York Labor Law and the supporting federal and New York State Department of  Labor Regulations.   7   40.  Defendants knowingly and willfully operated their business with a policy of not  paying the New York State “spread of hours” premium to Plaintiffs and other similarly situated  employees.   41.  Plaintiff brings this action individually and on behalf of all other and former non- exempt employees who have been or were employed by the Defendants at their business location  for up to the last three (3) years, through entry of judgment in this case (the “Collective Action  Period”), was misclassified and therefore not paid overtime compensation for all hours worked in  excess of forty (40) hours per week (the “Collective Action Members”), and have been subject to  the same common decision, policy, and plan to not provide required wage notices at the time of  hiring, in contravention to federal and state labor laws.    42.  Upon information and belief, the Collection Action Members are so numerous the  joinder of all members is impracticable. The identity and precise number of such persons are  unknown, and the facts upon which the calculations of that number may be ascertained are  presently within the sole control of the Defendants. Upon information and belief, there are more  than ten (10) Collective Action members, who have worked for or have continued to work for  the Defendants during the Collective Action Period, most of whom would not likely file  individual suits because they fear retaliation, lack adequate financial resources, access to  attorneys, or knowledge of their claims. Therefore, Plaintiff submits that this case should be  certified as a collection action under the FLSA, 29 U.S.C. §216(b).    43.  Plaintiff will fairly and adequately protect the interests of the Collective Action  Members, and have retained counsel that is experienced and competent in the field of  employment law and class action litigation. Plaintiff has no interests that are contrary to or in  conflict with those members of this collective action.  8   44.  This action should be certified as collective action because the prosecution of  separate actions by individual members of the collective action would risk creating either  inconsistent or varying adjudication with respect to individual members of this class that would  as a practical matter be dispositive of the interest of the other members not party to the  adjudication, or subsequently impair or impede their ability to protect their interests.    45.  A collective action is superior to other available methods for the fair and efficient  adjudication of this controversy, since joinder of all members is impracticable. Furthermore,  inasmuch as the damages suffered by individual Collective Action Members may be relatively  small, the expense and burden of individual litigation makes it virtually impossible for the  members of the collective action to individually seek redress for the wrongs done to them. There  will be no difficulty in the management of this action as collective action.    46.  Questions of law and fact common to members of the collective action  predominate over questions that may affect only individual members because Defendants have  acted on grounds generally applicable to all members. Among the questions of fact common to  Plaintiffs and other Collective Action Members are:   a. Whether the Defendants employed Collective Action members within the meaning of  the FLSA;   b. Whether Defendants has a policy of misclassifying the store workers as exempt from  the coverage of the overtime provisions of the FLSA;  c. Whether the Defendants failed to pay the Collective Action Members overtime wages  for all hours worked above forty (40) each workweek in violation of the FLSA and the  regulation promulgated thereunder;   9  d. Whether the Defendants failed to pay the Collective Action Members spread of hours  payment for each day an employee worked over 10 hours;  e. Whether the Defendants failed to provide the Collective Action Members with a wage  notice at the time of hiring as required by the NYLL;  f. Whether the Defendants’ violations of the FLSA are willful as that terms is used within  the context of the FLSA; and,   g. Whether the Defendants are liable for all damages claimed hereunder, including but  not limited to compensatory, punitive, and statutory damages, interest, costs and  disbursements and attorneys’ fees.    47.  Plaintiff knows of no difficulty that will be encountered in the management of this  litigation that would preclude its maintenance as a collective action.    48.  Plaintiff and others similarly situated have been substantially damaged by  Defendants’ unlawful conduct.   49.  Plaintiff brings his NYLL claims pursuant to Federal Rules of Civil Procedure  (“F. R. C. P.”) Rule 23, on behalf of all non-exempt persons employed by Defendants at their  business location on or after the date that is six years before the filing of the Complaint in this  case as defined herein (the “Class Period”).    50.  All said persons, including Plaintiff, is 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 positions held,  and the rate of pay for each Class Member is also determinable from Defendants’ records. For  10  purpose 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 said F.R.C.P 23.    51.  The proposed Class is so numerous that joinder of all members is impracticable,  and the disposition of their claims as a class will benefit the parities and the Court. Although the  precise number of such persons is unknown, and the facts on which the calculation of the number  is presently within the sole control of the Defendants, upon information and belief, there are  more than ten (10) members of the class.    52.  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  that  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. Defendants’ corporation wide policies and practices, including  but  not  limited   to  their  failure  to provide a wage notice at the time of hiring, affected all Class members  similarly, and Defendants benefited from the same type of unfair and/ or wrongful acts as to each  Class member. Plaintiffs and other Class members sustained similar losses, injuries and damages  arising from the same unlawful policies, practices and procedures.    53.  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 representing plaintiffs in both class action and wage and hour employment  litigation cases.     54.  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 corporate   11  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 expenses that numerous individual actions engender.  The losses, injuries, and damages suffered by each of the individual Class members are small in  the sense pertinent to a class action analysis, thus 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.  Further, 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 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.     55.  Upon  information  and  belief,  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  12  degree of anonymity which allows for the vindication of their rights while eliminating or  reducing these risks.     56.  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 Plaintiffs and the Class within the meaning of the New  York law;   b. Whether Plaintiffs and Class members are entitled to overtime under the New York  Labor Law;    c. Whether Defendants maintained a policy, pattern and/or practice of willfully  misclassifiying Plaintiff and  the  Rule  23  Class  as exempt from the overtime  requirements of  the NYLL;   d. Whether Defendants maintained a policy, pattern and/or practice of failing to pay  Plaintiff  and  the  Rule  23  Class  spread-of-hours  pay  as  required  by  the NYLL;   e. Whether the Defendants provided wage notices at the time of hiring to Plaintiffs and  class members as required by the NYLL;  f. At what common rate, or rates subject to common method of calculation were and are  the Defendants required to pay the Class members for their work  57.  Plaintiff re-alleges and incorporates by reference all preceding paragraphs as  though fully set forth herein.   13   58.  The FLSA provides that no employer engaged in commerce shall employ a  covered employee for a work week longer than forty (40) hours unless such employee receives  compensation for employment in excess of forty (40) hours at a rate not less than one and one- half times the regular rate at which he or he is employed, or one and one-half times the minimum  wage, whichever is greater. 29 USC §207(a).    59.  The  FLSA  provides  that  any  employer  who  violates  the  provisions  of  29   U.S.C. §207 shall be liable to the employees affected in the amount of their unpaid overtime  compensation,  and  in  an  additional  equal  amount  as  liquidated  damages.  29 USC §216(b).   60.  Defendants’ unlawful misclassification of patternmakers resulted in none payment  of overtime to Plaintiff and the FLSA Collective Action Members in violation of the FLSA.     61.  At all relevant times, Defendants had, and continue to have, a policy of practice of  refusing  to  pay  overtime  compensation  at  the  statutory  rate  of  time  and  a  half  to Plaintiff  and Collective Action Members for all hours worked in excess of forty (40) hours  per   workweek,  which  violated  and  continues  to  violate  the  FLSA,  29  U.S.C. §§201, et seq.,  including 29 U.S.C. §§207(a)(1) and 215(a).    62.  The FLSA and supporting regulations required employers to notify employees of  employment law requires employers to notify employment law requirements. 29 C.F.R. §516.4.    63.  Defendants  willfully  failed  to  notify  Plaintiff and  FLSA  Collective  of  the  requirements  of  the  employment  laws  in  order  to  facilitate  their  exploitation  of Plaintiff’s  and FLSA Collectives’ labor.    64.  Defendants  knowingly  and  willfully  disregarded  the  provisions  of  the  FLSA   as evidenced by their failure to compensate Plaintiff and Collective Class Members the statutory  overtime rate of time and one half for all hours worked in excess of forty (40) per week when  14  they knew or should have known such was due and that failing to do so would financially injure  Plaintiffs and Collective Action members.   65.  Plaintiff re-alleges and incorporates by reference all preceding paragraphs as  though fully set forth herein.    66.  Pursuant to the New York Wage Theft Prevention Act, an employer who fails to  pay proper overtime compensation shall be liable, in addition to the amount of any  underpayments, for liquidated damages equal to the total of such under-payments found to be  due the employee.    67.  Defendants’ unlawful misclassification of Plaintiff and the Rule 23 Class resulted  in nonpayment of overtime to Plaintiff and the Rule 23 Class in violation of the NYLL.   68.  Defendants’ failure to pay Plaintiff and the Rule 23 Class their overtime pay  violated the NYLL.    69.  Defendants’ failure to pay Plaintiff and the Rule 23 Class was not in good faith.   70.  Plaintiffs re-allege and incorporate by reference all preceding paragraphs as  though fully set forth herein.    71.  The NYLL requires employers to pay an extra hour’s pay for every day that an  employee works an interval in excess of ten hours pursuant to NYLL §§190, et seq., and §§650,  et seq., and New York State Department of Labor regulations §146-1.6.   15   72.  Defendants’ failure to pay Plaintiffs and Rule 23 Class spread-of-hours pay was  not in good faith.   91.  Plaintiff re-alleges and incorporates by reference all preceding paragraphs as  though fully set forth herein.   92.  The NYLL and supporting regulations require employers to provide written notice  of the rate or rates of pay and the basis thereof, whether paid by the hour, shift, day, week, salary,  piece, commission, or other; allowances, if any, claimed as a part of minimum wage, including  tip, meal, or lodging allowances; the regular pay day designated by the employer; the name of the  employer; any “doing business as” names used by the employer; the physical address of  employer’s main office or principal place of business, and a mailing address if different; the  telephone number of the employer.  NYLL §195-1(a).   93.  Defendants intentionally failed to provide notice to employees in violation of  New York Labor Law § 195, which requires all employers to provide written notice in the  employee’s primary language about the terms and conditions of employment related to rate of pay,  regular pay cycle and rate of overtime on his or his first day of employment.   94.  Defendants not only did not provide notice to each employee at Time of Hire,  but failed to provide notice to each Plaintiff even after the fact.   95.  Due to Defendants’ violations of New York Labor Law, each Plaintiff is entitled  to recover from Defendants, jointly and severally, $50 for each workday that the violation  occurred or continued to occur, up to $5,000, together with costs and attorneys’ fees pursuant to  New York Labor Law. N.Y. Lab. Law §198(1-b).  16  Prayer For Relief  WHEREFORE, Plaintiff, on behalf of himself, and the FLSA collective plaintiffs and  rule 23 class, respectfully request that this court enter a judgment providing the following relief:    a)  Authorizing plaintiff at the earliest possible time to give notice of this collective  action, or that the court issue such notice, to all persons who are presently, or have been  employed by defendants as non-exempt tipped or non-tipped employees. Such notice  shall inform them that the civil notice has been filed, of the nature of the action, of their  right to join this lawsuit if they believe they were denied proper hourly compensation and  premium overtime wages;   b)  Certification of this case as a class action pursuant to Rule 23 of the Federal Rules of  Civil Procedure;   c)  Designation of Plaintiff as representatives of the Rule 23 Class, and counsel of record  as Class counsel;   d)  Certification of this case as a collective action pursuant to FLSA;   e)  Issuance of notice pursuant to 29 U.S.C. § 216(b) to all similarly situated members of  the FLSA opt-in class, apprising them of the pendency of this action, and permitting them  to assert timely FLSA claims and state claims in this action by filing individual Consent  to Sue forms pursuant to 29 U.S.C. § 216(b), and appointing Plaintiff and his counsel to  represent the Collective Action Members;    f)  A declaratory judgment that the practices complained of herein are unlawful under  FLSA and New York Labor Law;   g)  An injunction against Home & Home, Corp., its officers, agents, successors,  employees, representatives and any and all persons acting in concert with them as  17  provided by law, from engaging in each of unlawful practices and policies set forth  herein;   h)  An award of unpaid overtime wages due under FLSA and New York Labor Law;   i)  An award of unpaid “spread of hours” premium due under the New York Labor Law;  j) An award of damages for Defendants’ failure to provide wage notice at the time of  hiring as required under the New York Labor Law.  k)  An award of liquidated and/or punitive damages as a result of Defendants’ knowing  and willful failure to pay overtime compensation pursuant to 29 U.S.C. §216;   l)  An award of liquidated and/ or punitive damages as a result of Defendants’ willful  failure to pay overtime compensation and “spread of hours” premium pursuant to New  York Labor Law;   m)  An award of costs and expenses of this action together with reasonable attorneys’ and  expert fees pursuant to 29 U.S.C. §216(b) and NYLL §§198 and 663;   n)  The cost and disbursements of this action;   o)  An award of prejudgment and post-judgment fees;    p)  Providing that if any amounts remain unpaid upon the expiration of ninety days  following the issuance of judgment, or ninety days after expiration of the time to appeal  and no appeal is then pending, whichever is later, the total amount of judgment shall  automatically increase by fifteen percent, as required by NYLL §198(4); and   q)  Such other and further legal and equitable relief as this Court deems necessary, just,  and proper.    [Violation of New York Labor Law—Time of Hire Wage Notice Requirement]   [Violation of New York Labor Law—Overtime Pay  Brought on behalf of Plaintiffs and the Rule 23 Class]   [Violation of New York Labor Law—Spread of Time Pay  Brought on behalf of Plaintiffs and the Rule 23 Class]  