34.  In or about November 2013 Defendants hired Plaintiff to work as a non-exempt  employee at one of the locations of the chain of mobile telecommunications store Defendants  own and operate.     35.  Plaintiff at all relevant times was a covered employee within the meaning of the  FLSA and NYLL.   36.  For the first approximately two years, Plaintiff worked at various stores in  Brooklyn, seven days per week, from 10am to 8pm, taking a day off approximately once a month  and sometimes less frequently than that. On occasion Plaintiff had to come into work earlier or  stay later beyond the regular hours. Plaintiff was paid wages of $350 per week. This did not  compensate Plaintiff in amount equal to the proper minimum wage, overtime wage, and spread- of-hours pay for all of the time that he was suffered or permitted to work each workweek.   37.  For the approximately next 8 months, Plaintiff worked at stores in Buffalo, NY,  earning $700 per week. Defendants explained that they needed someone with experience to work  at their new stores in Buffalo and they would offer a pay raise to any employee willing to go.  Plaintiff accepted the offer.  In Buffalo Plaintiff worked seven days per week from 10am to 8pm,  taking a day off approximately once a month and sometimes less frequently than that. On  occasion Plaintiff had to come into work earlier or stay later beyond the regular hours. This did  - 7 -  not compensate Plaintiff in amount equal to the proper minimum wage, overtime wage, and  spread-of-hours pay for all of the time that he was suffered or permitted to work each workweek.   38.  Plaintiff then returned to working at stores in New York because Buffalo was an  undesirable location and he did not wish to work there. Upon his return, he worked at various  stores in Brooklyn, NY, seven days per week, from 10am to 8pm, taking a day off approximately  once a month and sometimes less frequently than that. On occasion Plaintiff had to come into  work earlier or stay later beyond the regular hours. Plaintiff was paid wages of $500 per week.  This did not compensate Plaintiff in amount equal to the proper minimum wage, overtime wage,  and spread-of-hours pay for all of the time that he was suffered or permitted to work each  workweek.   39.  At no point did Defendants inform Plaintiff of the minimum wage or overtime  provisions of the FLSA or the NYLL.   40.  Plaintiff has had direct first hand conversations with employees at each of the  locations and knows from those conversations that Defendants have a policy of paying all of  their employees a fixed weekly salary that does not properly compensate employees for the  minimum due under state and federal wage laws.   41.  Defendants knowingly and willfully operated their business with a policy of not  paying Plaintiff and other similarly situated employees either the federal or New York State  minimum wage, the FLSA overtime rate (of time and one-half), and the New York State  overtime rate (of time and one-half), in direct violation of the FLSA and New York Labor Law  and the supporting federal and New York State Department of Labor Regulations.   42.  Defendants knowingly and willfully operate their business with a policy of not  paying Plaintiff and other similarly situated employees "spread of hours" premium for each day  - 8 -  that they work a shift in excess of ten (10) hours, in direct violation of the New York Labor Law  and the supporting New York State Department of Labor Regulations.   43.  Defendants did not furnish Plaintiff with an accurate statement with every  payment of wages, listing gross wages, deductions and net wages as required by New York  Labor Law § 195.   44.  Defendants failed to display, in a place accessible to employees and in a visually  conspicuous manner, the notices of employee rights to receive the minimum wage and overtime  pay at a rate of one and one-half times their regular rate as required under the New York Labor  Law.    45.  Defendants failed to display, in a place accessible to employees and in a visually  conspicuous manner a copy of New York Labor Law § 193 regarding the prohibition on illegal  deductions from wages.    46.  Plaintiff brings this action individually and as class representative on behalf of the  “Proposed FLSA Collective” defined as:  all other current and former non-exempt employees who have been or  were employed by Defendants at one of their franchise locations as hourly  workers in the three years preceding the date of the filing of this action.   47.  Upon information and belief, the total number of members of the proposed  collective action class is so numerous that joinder of all members is impracticable. Although the  precise number of such persons is unknown, and the facts upon which the calculation of that  number are presently within the sole control of the Defendants, upon information and belief,  there are more than fifty (50) Collective Action Members who worked for the Defendants during  the Collective Action Period, most of whom would not be likely to file individual suits because  - 9 -  they lack adequate financial resources, access to attorneys, or knowledge of their claims.  Therefore, Plaintiff submits that this matter should be certified as a collective action under the  FLSA, 29 U.S.C. § 216(b).   48.  Plaintiff will fairly and adequately protect the interests of the Collective Action  Members and has retained counsel that is experienced and competent in the fields 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.   49.  This action should be certified as a collective action because the prosecution of  separate actions by individual members of the class would create a risk of either inconsistent or  varying adjudications with respect  to  individual members of the class, or adjudications with  respect to individual members of the class that would as a practical matter be dispositive of the  interests of the other members not parties to the adjudication,  or substantially  impair  or impede  their ability  to protect their interests.   50.  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 make 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 a collective action.   51.  Questions of law and fact common to the 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 common questions of law and  fact common to Plaintiff and other Collective Action Members are:  - 10 -  a. Whether the Defendants employed Plaintiff and the Collective Action Members  within the meaning of the FLSA;  b.  Whether the Defendants failed to keep true and accurate time and  pay records  for all hours worked by Plaintiff and the Collective Action Members;  c. What proof of hours worked is sufficient where the employer fails in its duty to  maintain time records;  d. Whether the Defendants' violations of the FLSA are willful as that term is used  within the context of the FLSA; and,  e. Whether the Defendants are liable for all damages claimed hereunder, including  but not limited to compensatory, liquidated and statutory damages, interest,  attorneys' fees, and costs and disbursements.  f. Whether the Defendants failed to pay Plaintiff and the Collective Action  Members minimum wages for all hours worked; and  g. Whether the Defendants failed to pay Plaintiff and the Collective Action  Members for hours worked in excess of 40 hours per workweek.   52.  Plaintiff knows of no difficulty that will be encountered in the management of this  litigation that would preclude its maintenance as a collective action.   53.  Plaintiff and others similarly situated have been substantially damaged by the  Defendants' wrongful conduct.  54.  Plaintiff sues on his own behalf and on behalf of a class of persons under Rules  23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure.   55.  In addition to bringing this action as a proposed collective action to remedy  - 11 -  violations of the FLSA, Plaintiff also brings this action on behalf of a “Proposed Rule 23 Class”,  under Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure, and consisting of:   all other current and former non-exempt employees who have been or  were employed by Defendants at one of their franchise locations in New  York as hourly service workers in the six year period preceding the filing  of this action.   56.  Upon information and belief, the persons in the Proposed Class are so numerous  that joinder of all members is impracticable. Although the identity and precise number of such  persons is unknown, and the facts upon which the calculation of that number may be ascertained  are presently within the sole control of the Defendants, the Proposed Class consists of all non- managerial current and former employees and, therefore, is so numerous that joinder is  impracticable and most of whom would not be likely to file individual suits because they lack  financial resources, access to attorneys, or knowledge of their claims.   57.  The claims of Plaintiff are typical of the claims of the Proposed Class, and a Rule  23 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 individuals lack the  financial resources to vigorously prosecute a lawsuit in federal court against a corporate  defendant.   58.  The Defendants have acted on grounds generally applicable to the Proposed  Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with  respect to the Proposed Class as a whole.   59.  Plaintiff has committed himself to pursuing this action and has retained counsel  experienced in employment law and class action litigation.   60.  Plaintiff will fairly and adequately protect the interests of the Proposed Class.  Plaintiff understands that, as a class representative, he assumes a fiduciary responsibility to the  - 12 -  Class Members to represent their interests fairly and adequately, and that he must consider their  interests just as he would represent and consider her own interests, and that he may not favor her  own interests over theirs.   61.  Plaintiff recognizes that any resolution of a Rule 23 class action lawsuit, including  any settlement or dismissal thereof, must be in the best interests of the Class. Plaintiff  understands that in order to provide adequate representation, he must remain informed of  litigation developments and he understands that he may be called upon to testify in depositions  and at trial.   62.  Plaintiff has the same interests in this matter as all other members of the Proposed  Class and Plaintiff’s claims are typical of the Proposed Class.   63.  There are questions of law and fact common to the Proposed Class which  predominate over any questions solely affecting the individual members of the Proposed Class,  including but not limited to:  a. Whether the Defendants employed Plaintiff and the Class members within the  meaning of the New York Labor Law;  b. Whether the Defendants failed to keep true and accurate time and pay records for  all hours worked by Plaintiffs and the Class members;  c. What proof of hours worked is sufficient where the employer fails in its duty to  maintain time records;  d.  Whether the Defendants failed to pay the Plaintiff and the Class members the  applicable minimum wage for all straight time hours worked and the required  overtime compensation for all hours worked in excess  of forty (40) hours per  workweek, in violation of  the New  York  Labor Law and the regulations   - 13 -  promulgated thereunder;  e. Whether the Defendants failed to pay the Plaintiff and the Class members "spread  of hours" premium for each day they  worked  a  shift in excess of ten (10) hours,  in violation of the New  York  Labor  Law and the  regulations  promulgated  thereunder;  f. Whether the Defendants' violations of the New York Labor Law are willful as that  term is used within the context of the New York Labor Law; and,  g. Whether the Defendants are liable for all damages claimed hereunder, including  but not limited to compensatory, liquidated and statutory damages, interest, costs,  attorneys' fees, and costs and disbursements.  64.  Plaintiff re-alleges and re-avers each and every allegation and statement contained  in paragraphs "l" through "62" of this Complaint  as if fully set forth herein.   65.  Plaintiff has consented in writing to be a party to this action, pursuant to 29  U.S.C. § 216(b).   66.  At all relevant times, upon information and belief, Defendants were and continue  to be an employer engaged in interstate commerce and/or the production of goods for commerce  within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a). Further, Plaintiff and the  Proposed FLSA Collective members are covered individuals within the meaning of the FLSA, 29  U.S.C.  §§ 206(a) and 207(a).   67.  At all relevant times, Defendants employed Plaintiff and the Proposed FLSA  Collective members within the meaning of the FLSA.  - 14 -   68.  Upon information and belief, at all relevant times, Defendants have had gross  revenues in excess of $500,000.   69.  Plaintiff and the Proposed FLSA Collective members were entitled to be paid at  the applicable federal minimum wage for all straight time hours worked.   70.  Plaintiff and the Proposed FLSA Collective members were entitled to be paid at  the rate of time and one-half for all hours worked in excess of the maximum hours provided for  in the FLSA.   71.  Defendants failed to pay Plaintiff and the Proposed FLSA Collective members  minimum wage or overtime compensation in the lawful amount for all hours worked in excess of  the maximum hours provided for in the FLSA.   72.  At all relevant times, Defendants had, and continue to have a policy and practice  of refusing to pay minimum wage.   73.  At all relevant times, Defendants had, and continue to have a policy and practice  of refusing to pay overtime compensation at the statutory rate of time and one-half to Plaintiff  and the Proposed FLSA Collective members  for  all  hours  worked  in  excess  of forty (40)  hours per work  week, which violated and continues to violate the FLSA, 29 U.S.C. §§ 201, et  seq., including 29 U.S.C. §§ 207(a)(l) and 215(a).   74.  Defendants knowingly and willfully disregarded the provisions of the FLSA as  evidenced by their failure to compensate Plaintiff and the Proposed FLSA Collective members at  the minimum wage and the statutory overtime rate of time and one-half for all hours worked in  excess of forty (40) hours per week, when they knew or should have known such was due and  that non-payment of minimum wage and overtime compensation would financially injure  Plaintiff and the Proposed FLSA Collective members.  - 15 -   75.  As a result of the Defendants' failure to properly record, report, credit and/or  compensate its employees, including Plaintiff and the Proposed FLSA Collective members,   76.   Defendants have failed to make, keep and preserve records with respect to each  of its employees sufficient to determine the wages, hours and other conditions and practices of  employment in violation of the FLSA, 29 U.S.A. §§ 201, et seq., including  29 U.S.C.  §§  21 l(c)  and 215(a).   77.  Defendants failed to properly disclose or apprise Plaintiff and the Proposed FLSA  Collective members of their rights under the FLSA.   78.  As a direct and proximate result of Defendants' violation of the FLSA, Plaintiff  and the Proposed FLSA Collective members are entitled to liquidated damages pursuant to the  81.  Plaintiff re-alleges and re-avers each and every allegation and statement contained  in paragraphs "l" through "79" of this Complaint as if fully set forth herein.   82.  Defendants employed Plaintiff and the Rule 23 Proposed Class members within  the meaning of New York Labor Law §§ 2 and 651.   83.  Defendants knowingly and willfully violated the rights of Plaintiff and the Rule  - 16 -  23 Proposed Class members by failing to pay Plaintiff and the Rule 23 Proposed Class members  the applicable minimum wage for all straight time hours worked and required overtime  compensation at the rate of time and one-half for each hour worked in excess of forty (40) hours  in a workweek.   84.  Employers are required to pay a "spread of hours" premium of one (1) additional  hour' s pay at the statutory minimum hourly wage rate for each day where the spread of hours in  an employee's workday exceeds ten (10) hours.  New York State Department of Labor  Regulations § 146-1.6.   85.  Defendants knowingly and willfully violated the rights of Plaintiff and the Rule  23 Proposed Class members by failing to pay "spread of hours" premium to Plaintiff and the  Rule 23 Proposed Class members for each day they worked in excess of ten (10) hours pursuant  to New York State Department of Labor Regulations.   86.  Defendants failed to properly disclose or apprise Plaintiff and the Rule 23  Proposed Class members of their rights under the New York Labor Law.   87.  Defendants failed to furnish Plaintiff and the Rule 23 Proposed Class members  with a statement with every payment of wages listing gross wages, deductions and net wages, in  contravention of New York Labor Law § 195(3) and New York State Department of Labor  Regulations  § 146-2.3.   88.  Defendants failed to keep true and accurate records of hours worked by each  employee covered by  an  hourly  minimum  wage  rate,  the  wages  paid  to  all  employees, and  other similar information in  contravention  of  New  York  Labor  Law  § 661.   89.  Defendants failed to establish, maintain, and preserve for not less than six (6)  years payroll  records showing  the hours  worked,  gross wages, deductions, and net wages for  - 17 -  each employee, in contravention of the New  York  Labor Law§  194(4),  and New  York State   Department  of Labor Regulations§ 146-2.1.   90.  At the time of their hiring, Defendants failed to notify Plaintiff and the Rule 23  Proposed Class members of their rates of pay and their regularly designated  payday,  in  contravention  of New York Labor Law § 195(1).   91.  Due to the Defendants' New York Labor Law violations, Plaintiff and the Rule 23  Proposed Class members are entitled to recover from Defendants the difference between their  actual wages and the amounts that were owed under the New York Labor law. The deficiency  accounts for minimum wage for all straight time hours, overtime compensation for all overtime  hours, "spread of hours" premium, reasonable attorneys' fees, and costs and disbursements of this  action, pursuant to New York  Labor Law§§  663(1),  198.   92.  Plaintiff and the Rule 23 Proposed Class members are also entitled to liquidated  damages pursuant to New York Labor Law§ 663(1), as well as civil penalties and/or liquidated  damages pursuant to the New York State Wage Theft Prevention Act.  93.  Plaintiff re-alleges and re-avers each and every allegation and statement contained  in paragraphs "l" through "91" of this Complaint as if fully set forth herein.   94.  Defendants have willfully failed to supply Plaintiff and the members of the Rule  23 Class with wage notices, as required by NYLL, Article 6, § 195(1), in English or in the  language identified by Plaintiff and the members of the Rule 23 Class as their primary language,  containing Plaintiff and the members of the Rule 23 Class' rate or rates of pay and basis thereof,  whether paid by the hour, shift, day, week, salary, piece, commission, or other; hourly rate or  rates of pay and overtime rate or rates of pay if applicable; the regular pay day designated by the  - 18 -  employer in accordance with NYLL, Article 6, § 191; the name of the employer; any "doing  business as" names used by the employer; the physical address of the employer's main office or  principal place of business, and a mailing address if different; the telephone number of the  employer; plus such other information as the commissioner deems material and necessary.   95.  Through their knowing or intentional failure to provide Plaintiff and the members  of the Rule 23 Class with the wage notices required by the NYLL, Defendants have willfully  violated NYLL, Article 6, §§ 190 et seq., and the supporting New York State Department of  Labor Regulations.   96.  Defendants have willfully failed to supply Plaintiff and the members of the Rule  23 Class with accurate statements of wages as required by NYLL, Article 6, § 195(3), containing  the dates of work covered by that payment of wages; name of employee; name of employer;  address and phone number of employer; rate or rates of pay and basis thereof, whether paid by  the hour, shift, day, week, salary, piece, commission, or other; gross wages; hourly rate or rates  of pay and overtime rate or rates of pay if applicable; the number of hours worked, including  overtime hours worked if applicable; deductions; and net wages.   97.  Through their knowing or intentional failure to provide Plaintiff and the members  of the Rule 23 Class with the accurate wage statements required by the NYLL, Defendants have  willfully violated NYLL, Article 6, §§ 190 et seq., and the supporting New York State  Department of Labor Regulations.   98.  Due to Defendants' willful violations of NYLL, Article 6, § 195(1), Plaintiff and  the members of the Rule 23 Class are entitled to statutory penalties of fifty dollars each day that  Defendants failed to provide Plaintiff and the members of the Rule 23 Class with wage notices,  or a total of five thousand dollars each, reasonable attorneys' fees, costs, and injunctive and  - 19 -  declaratory relief, as provided for by NYLL, Article 6, § 198(1-b ).   99.  Due to Defendants' willful violations of NYLL, Article 6, § 195(3), Plaintiff and  the members of the Rule 23 Class are entitled to statutory penalties of two hundred fifty dollars  for each workweek that Defendants failed to provide Plaintiff and the members of the Rule 23  Class with accurate wage statements, or a total of five thousand dollars each, reasonable  attorneys' fees, costs, and injunctive and declaratory relief, as provided for by NYLL, Article 6, §  198(1-d).  Brough on behalf of Plaintiff and the Proposed Rule 23 Class   Brought on behalf of Plaintiff and the Proposed FLSA Collective   Brough on behalf of Plaintiff and the Proposed Rule 23 Class  