29.  The crux of the FLSA and NJ State Law is, inter alia, that all employees are entitled  to be paid mandated minimum wages for all hours worked.   31.  Plaintiff and the members of the Classes were Tipped Employees employed by  Defendants.  Plaintiff’s Experience Working for Defendant   32.  During the course of Plaintiff’s employment with Defendants, her hourly wage rate  was $2.15 plus tips.   33.  Plaintiff and the other servers recorded their tips on Defendants’ Point of Sale  (“POS”) system at the end of each shift.   34.  As set forth below, due to Defendants’ pay practices Plaintiff and the Tipped  Employees were not paid all wages, including the statutory minimum wage, due and owing to them.   35.  For example, despite earning insufficient tips on multiple occasions, Defendants  never adjusted Plaintiff’s hourly rate to ensure that she earned at least the minimum wage for each  hour worked.   36.  Indeed, Defendants took the maximum tip credit for each hour worked by their Tipped  Employees regardless of the amount of tips earned by Tipped Employees.   37.  Additionally, Defendants Kolovos and Fakouras admitted in their sworn depositions  in the Ponzios Litigation that they often altered the payroll records to reflect a higher tip amount than  the Tipped Employees actually received during a given shift.   38.  In addition, Defendants took the maximum tip credit for each hour worked by their  Tipped Employees despite having failed to provide their Tipped Employees with the information  required to do so.   39.  Defendants also applied a $10.00 meal credit – pro-rated for each 40 hours worked to  Plaintiff’s and all Tipped Employees’ weekly gross pay regardless of whether they actually received  a meal during any given shift.   41.  Defendants’ policies of not adjusting Tipped Employees’ hourly rate when  insufficient tips were earned, inflating the tip amounts recorded by Tipped Employees, and  improperly applying a meal credit to every Tipped Employees pay were uniform policies/procedures  that applied to all Tipped Employees (and thus were applicable to the members of the Classes).  The Tip Credit Provision & Requirements   42.  Rather than pay its Tipped Employees the applicable minimum wage (either the  applicable state minimum wage or the federal minimum wage, whichever is higher), Defendants  chose to take a tip credit and pay these employees less than the applicable minimum wage.   43.  Under applicable law, in certain circumstances, it is permissible for an employer to  take a tip credit and pay its employees less than the mandated minimum wage, provided that the  employee’s tips received from customers plus the tip credit wage paid by the employer equals at  least the applicable minimum wage.1   44.  According to the Department of Labor’s (“DOL”) Fact Sheet #15: Tipped  Employees Under the Fair Labor Standards Act (FLSA) (“Fact Sheet #15”):  the maximum tip credit that an employer can currently claim under the FLSA  is $5.12 per hour (the minimum wage of $7.25 minus the minimum required  cash wage of $2.13).   46.  Although New Jersey had a higher minimum wage during the period encompassed  by this Complaint, it did follow the federal law in requiring only a cash wage of $2.13 to be paid to  employees who customarily and regularly receive tips.   47.  As is made plain in Fact Sheet #15, in order to claim a tip credit, the employer must  notify its employees of its intention to take the tip credit and must also inform its employees that all  tips received by the employee are to be retained by the employee (except for those tips that are part  of a valid tip pooling arrangement).   48.  Moreover, an employer must explicitly notify the employee as to the amount of the  tip credit and inform the employee that the employee must still earn the mandated minimum of $7.25  per hour between the amount of the tip credit taken by the employer and the amount of tips earned  by the employee.   49.  An employer bears the burden of showing that it has satisfied the notification  requirement of informing its employees that tips are being credited against the employee’s hourly  wage.2 If an employer cannot demonstrate its compliance with this notification requirement, no  credit can be taken and the employer is liable for the full minimum wage.   51.    Under NJ State Law in effect at the time the Diner was in operation, an employer  could pay a tipped employee as low as $2.13 per hour only if the employer could “demonstrate that  the balance of the . . . minimum wage required under State law is paid through gratuities in  accordance with N.J.A.C. 12:56-4 and 12:56-8.”  N.J.A.C. 12:56-14.4(b).  N.J.A.C. 12:56-4  pertains to certain record keeping requirements and N.J.A.C. 12:56-8 pertains to gratuities, food  and lodging deductions/credits.   52.  Like federal law, NJ State Law does not permit an employer using a food credit to  offset the wages owed by more than the actual cost of the food to the employer.  Thus, no amount  of profit to the employer can be included in the meal credit.   53.  With respect to the gratuities requirement, under NJ State Law the employer must  have an agreement with its employees regarding how tips are calculated and that agreement must  either be based on actual tips received, gross sales, or a method approved by the Commissioner.   75.  Plaintiff brings this action on behalf of the FLSA Collective Class as a collective  action pursuant to the FLSA. Plaintiff also brings this action as a class action pursuant to Rule 23  on behalf of herself and the NJ Class for claims under the NJ State Law.   76.  The claims under the FLSA are being pursued by those who opted-in to this case  pursuant to 29 U.S.C. § 216(b). The claims brought pursuant to the NJ State Law are being pursued  by all similarly-situated persons who do not opt-out of the NJ Class pursuant to Rule 23.   77.   The members of the NJ Class are so numerous that joinder of all members is  impracticable. While the exact number of the members of the NJ Class can only be ascertained  through Defendants’ records, Plaintiff reasonably believes there are over 330 individuals in the NJ  Class.   78.  Defendants acted or refused to act on grounds generally applicable to the Classes,  thereby making final injunctive relief or corresponding declaratory relief with respect to the Classes  as a whole, appropriate.   80.  Common questions of law and fact exist as to the Classes that predominate over any  questions only affecting them individually and include, but are not limited to, the following:  a)  Whether Defendants were precluded from claiming the tip credit during the  period encompassed by this Complaint;  b)  Whether Defendants failed to pay minimum wages for each hour worked;  c)  Whether Defendants were precluded from applying a meal credit to the weekly  pay of each of their Tipped Employees; and  d)  Whether Plaintiff and members of the Classes are entitled to compensatory  damages, and if so, the means of measuring such damages.   81.  Plaintiff will fairly and adequately protect the interests of the Classes as her interests  are aligned with those of the members of the Classes. Plaintiff has no interests adverse to the Classes  she seeks to represent, and has retained competent and experienced counsel.   82.  The class action/collective action mechanism is superior to other available methods  for a fair and efficient adjudication of the controversy. The damages suffered by individual  members of the Classes may be relatively small when compared to the expense and burden of  litigation, making it virtually impossible for members of the Classes to individually seek redress  for the wrongs done to them.   83.  Plaintiff and the Classes she seeks to represent have suffered and will continue to  suffer irreparable damage from the illegal policy, practice and custom regarding Defendants’ pay  practices.   85.  Plaintiff, on behalf of herself and the FLSA Collective Class, re-alleges and  incorporates by reference the paragraphs above as if they were set forth again herein.   86.  At all relevant times, Defendants had gross revenues in excess of $500,000.00.   87.  At all relevant times, Defendants were employers engaged in interstate commerce,  within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a).   88.  At all relevant times, Defendants employed Plaintiff and each of the FLSA Collective  Class Members within the meaning of the FLSA.   89.  Pursuant to Defendants’ compensation policies, rather than pay Tipped Employees  the federally-mandated minimum wage, Defendants took a tip credit and paid Tipped Employees  only the tip-credit wage.   90.  In addition, Defendants improperly claimed a meal credit by basing it off the retail  price of the food.   91.  Defendants violated the FLSA. The foregoing conduct, as alleged, constitutes a  willful violation of the FLSA within the meaning of 29 U.S.C. § 255(a).   92.  Due to Defendants’ FLSA violations, Plaintiff, on behalf of herself and the members  of the FLSA Collective Class, are entitled to recover from the Defendants compensation for unpaid  wages; an additional equal amount as liquidated damages; and reasonable attorneys’ fees and costs  and disbursements of this action, pursuant to 29 U.S.C. § 216(b).  93.  Plaintiff, on behalf of herself and the members of the NJ Class, re-alleges and  incorporates by reference the paragraphs above as if they were set forth again herein.   94.  At all relevant times, Defendants employed Plaintiff and each of the NJ Class  Members within the meaning of the NJ State Law.   95.  Pursuant to Defendants’ compensation policies, rather than pay Tipped Employees  the applicable New Jersey minimum wage, Defendants improperly took a tip credit and paid Tipped  Employees at a rate well below New Jersey’s minimum wage.   96.  Pursuant to Defendants’ compensation policies, rather than pay Tipped Employees  the required minimum wage in New Jersey, Defendants took a tip credit and paid Tipped Employees  only the tip-credit wage.   97.  At relevant times in the period encompassed by this Complaint, Defendants had a  willful policy and practice of failing to satisfy the notification requirements in order for Defendants  to claim the tip credit.   98.  At all relevant times in the period encompassed by this Complaint, Defendants had a  willful policy of claiming the maximum tip credit even in instances where Tipped Employees did  not receive enough in tips to earn minimum wage.   FAIR LABOR STANDARDS ACT MINIMUM WAGE VIOLATIONS  (On Behalf of Plaintiff and the FLSA Collective Class)  