(Fair Labor Standards Act – Unpaid Overtime)   (Fair Labor Standards Act – Unpaid Minimum Wage)   (New York Labor Law – Unpaid Minimum Wage)   18.  From the start of Plaintiffs’ employment through March 21, 2020, La  Floridita was open for breakfast, lunch and dinner, seven days per week.   20.  From March 22, 2020 through April 30, 2020 La Floridita was closed due to  the COVID-19 pandemic.   21.  Upon reopening on May 1, 2020, La Floridita was open for take-out and  delivery of lunch and dinner.  The lunch shift was from 11:00 a.m. to 4:00 p.m. and the  dinner shift was from 4:00 p.m. to 9:00 p.m.   22.  There is no timeclock used in La Floridita to record the exact hours  worked by employees.     23.  Employees are paid based on a pre-written schedule, not on the actual  hours that they work.  For example, Toloza often arrived and began working 10-15  minutes before the start of her shift and had to stay past the end of her shift serving  customers.  However, she would only be paid for her scheduled shift hours.  Diana Toloza   24.  Toloza worked as a server at La Floridita.   25.  Toloza was regularly scheduled to work five to seven days per week.     26.  Toloza’s schedule changed from week to week but from June 2018  through March 21, 2020 she usually worked the breakfast and lunch shifts, from 8:00  a.m. to 4:00 p.m. or the dinner shift, from approximately 4:00 p.m. to 11:00 p.m. two to  three days per week and then worked double shifts (lunch and dinner shifts) from  approximately 11:00 a.m. to 11:00 p.m. the remainder of the week.  In total, Toloza  worked about 50 to 76 hours per week.   28.  From May 1, 2020 through June 2, 2020, a thirty-minute break was  automatically deducted from Toloza’s pay each day, even though she did not take any  uninterrupted breaks during her workday.   29.  From the start of her employment through March 21, 2020, Toloza was  paid in cash at a rate of $7.50 per hour for all hours worked, including hours over 40 per  workweek.   30.  Starting in May 2020, Toloza was paid by check.   31.  From May 1 to 14, 2020, Toloza was paid $15.00 per hour for all hours  worked, including hours over 40 in a workweek.    32.  From May 15, 2020 to June 1, 2020, Toloza was paid $10.00 per hour for all  hours worked, including hours over 40 in a workweek.   33.  Toloza’s last day of work was June 2, 2020.  She did not receive any  compensation for her work on that day.  Porfirio Emicente   34.  Emicente worked as a food runner at La Floridita.   35.  Throughout his employment, Emicente regularly worked double shifts at  La Floridita.   36.  From the start of his employment in July 2019 to approximately  September 2019, Emicente regularly worked from approximately 11:00 a.m. to 11:00  p.m., five days per week, for a total of about 60 hours per week.   38.  Throughout his employment, an hour-long break was automatically  deducted from Emicente’s pay even though he only took a break one to two times per  week.   39.  From July 2019 to September 2019, Emicente was paid in cash at a rate of  $7.50 per hour for all hours worked, including hours over 40 per workweek.   40.  From September 2019 through March 21, 2020, Emicente was paid in cash  at a rate of $10.50 per hour for all hours worked, including hours over 40 per  workweek.   41.  Starting in May 2020, Emicente was paid by check.   42.  From May 1 to 14, 2020, Emicente was paid $15.00 per hour for all hours  worked, including hours over 40 in a workweek.    43.  From May 15, 2020 to June 2, 2020, Emicente was paid $10.00 per hour for  all hours worked, including hours over 40 in a workweek.   44.  Other than during a two-week period in May 2020, Defendants failed to  pay Plaintiffs and other front-of-house workers at La Floridita at least the statutory  minimum wage for all hours worked.   45.  Defendants failed to pay Plaintiffs and other front-of-house workers at La  Floridita overtime wages of one and one-half (1 ½) times the statutory minimum wage  for hours worked over forty in a workweek.   46.  Defendants failed to pay Plaintiffs and other front-of-house workers at La  Floridita spread-of-hours pay on days that their shifts spanned more than ten hours.   48.  Defendants did not provide Plaintiffs and other front-of-house workers at  La Floridita with notices informing them of, inter alia, their rates of pay at their time of  hire and whenever their rate of pay changed.  49.  The claims in this Complaint arising out of the FLSA are brought by  Plaintiffs on behalf of themselves and similarly situated persons (i.e., front-of-house  workers) who were employed by La Floridita since at least July 2017 and who elect to  opt into this action (the “FLSA Collective”).   50.   The FLSA Collective consists of approximately thirty similarly situated  current and former front-of-house workers, who have been victims of Defendants’  common policy and practices that have violated their rights under the FLSA by, inter  alia, willfully denying them minimum and overtime wages and other pay.    51.  As part of its regular business practice, Defendants have intentionally,  willfully, and repeatedly harmed Plaintiffs and the FLSA Collective by engaging in a  pattern, practice, and/or policy of violating the FLSA and the NYLL.  This policy and  pattern or practice includes, inter alia, willfully failing to pay employees for all hours  worked and failing to pay the statutory minimum wage and overtime wages due for all  hours worked in excess of forty hours per workweek since July 2017.   52.  Defendants have engaged in their unlawful conduct pursuant to a  corporate policy of minimizing labor costs and denying employees compensation.   53.  Defendants’ unlawful conduct has been intentional, willful, and in bad  faith and has caused significant damage to Plaintiffs and the FLSA Collective.        55.  The claims in this Complaint arising out of the NYLL are brought by  Plaintiffs under Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves  and a class consisting of all similarly situated non-exempt employees (front-of-house  workers including servers, runners, busboys, bartenders), who work or have worked at  La Floridita since at least July 30, 2014 (the “Rule 23 Class”).   56.  The employees in the Rule 23 Class are so numerous that joinder of all  members is impracticable.   57.  The size of the Rule 23 Class is at least fifty individuals, although the  precise number of such employees is unknown.  Facts supporting the calculation of that  number are presently within the sole control of Defendants.   58.  Defendants have acted or have refused to act on grounds generally  applicable to the Rule 23 Class, thereby making appropriate final injunctive relief or  corresponding declaratory relief with respect to the Rule 23 Class as a whole.   60.  Plaintiffs’ claims are typical of the claims of the Rule 23 Class they seek to  represent.  Plaintiffs and the members of the Rule 23 Class work or have worked for  Defendants since at least July 30, 2014.  They enjoy the same statutory rights under the  NYLL to be paid at the overtime rate for all hours worked over forty in a workweek.   Plaintiffs and the members of the Rule 23 Class have sustained similar types of damages  as a result of Defendants’ failure to comply with the NYLL.   61.  Plaintiffs and the Rule 23 Class have all been injured in that they have  been under-compensated due to Defendants’ common policies, practices, and patterns  of conduct.   62.  Plaintiffs will fairly and adequately represent and protect the interests of  the members of the Rule 23 Class.   63.  Plaintiffs have retained legal counsel competent and experienced in wage  and hour litigation and class action litigation.   64.  There is no conflict between Plaintiffs and the Rule 23 Class members.   66.  This action is properly maintainable as a class action under Rule 23(b)(3)  of the Federal Rules of Civil Procedure.  67.  Plaintiffs repeat and reallege all foregoing paragraphs as if fully set forth  herein.   68.  Defendants are employers within the meaning of 29 U.S.C. §§ 203(e) and  206(a), and employed Plaintiffs and the FLSA Collective.   69.  Plaintiffs and the FLSA Collective are employees within the meaning of 29  U.S.C. §§ 203(e) and 206(a).   70.  Defendants were required to pay to Plaintiffs and the FLSA Collective the  applicable federal minimum wage rate.   71.  Defendants failed to pay Plaintiffs and members the FLSA Collective the  minimum wages to which they are entitled under the FLSA.    72.  Defendants were aware or should have been aware that the practices  described in this Complaint were unlawful and have not made a good faith effort to  comply with the FLSA with respect to the compensation of Plaintiffs and the FLSA  Collective.   74.  Plaintiffs repeat and reallege all foregoing paragraphs as if fully set forth  herein.     75.  Defendants are employers within the meaning of the NYLL §§ 190, 651(5),  652, and supporting New York State Department of Labor Regulations, and employed  Plaintiffs and the Rule 23 Class.   76.  Defendants failed to pay Plaintiffs and members of the Rule 23 Class the  minimum wages to which they are entitled under the NYLL.     77.  Defendants have willfully violated the NYLL by knowingly and  intentionally failing to pay the Plaintiffs and the Rule 23 Class minimum hourly wages.   78.  As a result of Defendants’ willful violations of the NYLL, Plaintiffs and  the members of the Rule 23 Class are entitled to recover their unpaid wages, reasonable  attorneys’ fees and costs of the action, liquidated damages, and pre-judgment and post- judgment interest.  79.  Plaintiffs repeat and reallege all foregoing paragraphs as if fully set forth  herein.   81.  Defendants have failed to pay Plaintiffs and the FLSA Collective the  overtime wages to which they are entitled under the FLSA.     82.  Defendants have willfully violated the FLSA by knowingly and  intentionally failing to pay Plaintiffs and the FLSA Collective overtime wages.     83.  Due to Defendants’ violations of the FLSA, Plaintiffs and the FLSA  Collective are entitled to recover their unpaid overtime wages, liquidated damages,  reasonable attorneys’ fees and costs of the action, and pre- and post-judgment interest. 