82.  Plaintiffs reallege and incorporate by reference all allegations in all  preceding paragraphs.   83.  Defendants own and/or operate as Cornish Pasty Co., an enterprise located  in Maricopa County, Arizona.  -17-  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  A.  FLSA COLLECTIVE MEMBERS:  113. Plaintiffs reallege and incorporate by reference all allegations in all  preceding paragraphs.  114. Plaintiffs bring this action pursuant to 29 U.S.C. § 216(b) on their own  behalves and as representatives of individuals similarly situated who are current or  former servers and bartenders of Defendants.  115. At all times material, Defendants paid Plaintiffs and the Collective  Members at a rate of less than the full, applicable Arizona and federal minimum wage.  -23-  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  FAILURE TO PAY MINIMUM WAGE  177. Plaintiffs reallege and incorporate by reference all allegations in all  preceding paragraphs.  178. Defendants failed to inform Plaintiffs and the Arizona Class Members of  the provisions of the “tip credit” and 29 U.S.C. § 203(m) and its supporting regulations.  Therefore, Defendants were precluded from imposing a tip credit upon Plaintiffs’ and the  Arizona Class Members’ wages. As such, Defendants could not have paid less than the  Arizona minimum wage rate and still complied with federal and state law.  179. Defendants did not provide written notice to Plaintiffs and the Arizona  Class Members prior to exercising the tip credit, in violation of Arizona Administrative  Code (“A.A.C.”) provision § R20-5-1207 and A.R.S. Title 23. Thereafter, Defendants did  not notify Plaintiffs or the Arizona Class Members in writing each pay period of the  amount per hour that Defendants took as a tip credit, in violation of A.A.C. § R20-5-1207  and A.R.S. Title 23. Therefore, Defendants were precluded from exercising a tip credit  against Plaintiffs’ and the Arizona Class Members’ wages.  -39-  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  FAILURE TO PROVIDE TIP CREDIT NOTICE  171. Plaintiffs reallege and incorporate by reference all allegations in all  preceding paragraphs.  172. Defendants did not inform Plaintiffs and the Collective Members of the  provisions of the “tip credit” and 29 U.S.C. § 203(m) and its supporting regulations.   173. Defendants therefore did not pay Plaintiffs and the Collective Members the  applicable minimum wage according to the provisions of the FLSA for each and every  workweek that Plaintiffs and the Collective Members worked for Defendants, for the  duration of their employment, in violation of 29 U.S.C. § 206(a).  174. As such, full applicable minimum wage for such time Plaintiffs and the  Collective Members worked is owed to Plaintiffs and the Collective Members for the  entire time they were employed by Defendants.  175.  Defendants knew that – or acted with reckless disregard as to whether –  their failure to pay to Plaintiffs and the Collective Members the full minimum wage over  the course of their employment would violate federal and state law, and Defendants were  aware of the FLSA minimum wage requirements during Plaintiffs’ and the Collective  Members’ employment. As such, Defendants’ conduct constitutes a willful violation of  the FLSA.   176. Plaintiffs and the Collective Members are therefore entitled to  compensation for the full minimum wage at an hourly rate, to be proven at trial, plus an  -37-  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  ILLEGAL TIP POOL AND TIP RETENTION  163. Plaintiffs reallege and incorporate by reference all allegations in all  preceding paragraphs.  164. Defendants engaged in the regular policy and practice of not allowing  Plaintiffs and the Collective Members to retain all tips they received. Specifically,  Defendants subjected Plaintiffs and the Collective Members to their policy and practice  of requiring participation in a tip pool that included staff who do not customarily and  regularly receive tips, such as cooks, dishwashers, and management.   165. Defendants engaged in such conduct in direct violation of 29 U.S.C. §  203(m).   166. Therefore, Defendants were precluded from exercising a tip credit against  Plaintiffs’ and Collective Members’ wages, and the manner in which Defendants paid  Plaintiffs and the Collective Members violated 29 U.S.C. § 206(a).  167. Defendants therefore did not pay Plaintiffs and the Collective Members the  applicable minimum wage according to the provisions of the FLSA for each and every  workweek that Plaintiffs worked for Defendants, for the duration of their employment, in  violation of 29 U.S.C. § 206(a).  168. As such, full applicable minimum wage for such time Plaintiffs and the  Collective Members worked is owed to Plaintiffs and the Collective Members for the  entire time they were employed by Defendants.  -34-  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27 