Case 2:19-cv-20569-BRM-JAD Document 1 Filed 11/21/19 Page 1 of 19 PageID: 1
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`Roosevelt N. Nesmith, Esq. (008271997)
`LAW OFFICE OF ROOSEVELT N. NESMITH LLC
`363 Bloomfield Avenue, Suite 2C
`Montclair, New Jersey 07042
`Tel: (973) 259-6990
`Fax: (866) 848-1368
`roosevelt@nesmithlaw.com
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`
`Counsel for Plaintiff and the
`Putative Collective and Classes
`[additional counsel on signature page]
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`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`
`RENIER GONZALEZ,
`individually and on behalf of all
`others similarly situated,
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`
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`COMPLAINT
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`Class and Collective Action
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`Plaintiff,
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` -vs-
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`LYFT, INC.,
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`Defendant.
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`______________________________________
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` Jury Trial Demanded
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`INTRODUCTION
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`
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`Plaintiff Renier Gonzalez (“Gonzalez” or “Plaintiff”), individually and on behalf of all
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`other similarly situated persons, files this Class and Collective Action Complaint against Lyft,
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`Inc. (“Lyft” or “Defendant”), seeking all available relief for unpaid minimum wages, unpaid
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`overtime wages and unreimbursed business expenses pursuant to the Fair Labor Standards Act
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`29 U.S.C. § 201, et seq. (“FLSA”), the New Jersey Wage and Hour Law, N.J.S.A §. 34:12-56, et
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`seq. and the New Jersey Wage and Hour Regulations N.J.A.C. § 12:56-5.1, et seq. (collectively,
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`with the New Jersey Wage and Hour Law, “NJWHL”).
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`NATURE OF THE ACTION
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`1.
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`Plaintiff alleges, on behalf of himself and all similarly situated, current and former
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`Lyft drivers engaged in interstate commerce, and who elect to opt into this action pursuant to the
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`FLSA (hereinafter “Collective Active Members”), that they are entitled to inter alia: (1) unpaid
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`minimum wages; (2) unpaid overtime wages for hours worked above forty (40) in a work week,
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`as required by law; (3) unreimbursed business expenses; and (4) and liquidated damages
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`pursuant to the FLSA.
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`2.
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`Plaintiff also brings this action under NJWHL pursuant to Fed. R. Civ. P. 23, on
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`behalf of himself and all similarly situated current and former Lyft drivers in the State of New
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`Jersey engaged in interstate commerce that they are entitled to inter alia, unpaid minimum wage,
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`social security and unemployment contributions and credits, unpaid overtime wages for hours
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`worked above forty (40) in a work week, and unreimbursed business expenses as required by the
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`NJWHL.
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`3.
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`Defendant violated the FSLA and the NJWHL by misclassifying Plaintiff and
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`similarly situated employees as independent contractors and failing to pay these employees for
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`all the hours worked at minimum wage after work-related expenses, by failing to pay them
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`overtime wages and failing to reimburse their business-related expenses pursuant to Defendant’s
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`company policy for employees. Plaintiff and all persons similarly situated, are entitled to unpaid
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`wages from Defendant for all hours worked by them at minimum wage after payment of work-
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`related expenses, as well as unpaid overtime wages for hours in excess of forty (40) hours
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`worked per work week and unreimbursed business expenses pursuant to company policy.
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`4.
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`This Court has jurisdiction over Plaintiff’s FSLA claims pursuant to 29 U.S.C. §
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`216 (b) and 28 U.S.C. § 1331.
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`5.
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`This Court has jurisdiction over Plaintiff’s NJWHL claims pursuant to 28 U.S.C.
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`§ 1332(d) and the Class Action Fairness Act, 28 U.S.C. §§ 1332, 1453 and 1711-1715, and 28
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`U.S.C. § 1367. The parties are diverse and, on information and belief, the amount in controversy
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`exceeds $5,000,000, exclusive of interest and costs.
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`6.
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`7.
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`Plaintiff is a citizen of a State different from that of Defendant.
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`Venue is proper pursuant to 28 U.S.C. § 1391, because a substantial part of the
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`events or omissions giving rise to the claims occurred in this District.
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`8.
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`9.
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`Plaintiff resides in this district.
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`Defendant regularly conducts business in this district.
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`THE PARTIES
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`10.
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`Plaintiff RENIER GONZALEZ is an individual residing in Jersey City, New
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`Jersey. Plaintiff has worked as a driver engaged in interstate commerce for Lyft from October
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`2017 to the present. While working for Lyft, Plaintiff has engaged in interstate commerce by
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`driving passengers from New Jersey to New York City and from New Jersey to New York
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`airports and picking up and dropping off passengers from Newark International Airport and New
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`Jersey train stations.
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`11.
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`In 2017, Plaintiff completed 92 trips and drove 763 miles for Lyft. Lyft paid
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`Plaintiff $1,068.80 for his work on its behalf. Plaintiff was not reimbursed for additional out-of-
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`pocket expenses necessarily incurred on the job and required by Lyft, including return trip tolls,
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`vehicle maintenance, gas, and insurance which totaled more than $408.17. Plaintiff’ net pay
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`from Lyft was $660.63. As a result of Lyft’s failure to reimburse Plaintiff for all work-related
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`expenses, Plaintiff did not receive minimum wage for all hours worked. Plaintiff also worked in
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`excess 40 hours during a workweek without receiving overtime compensation.
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`12.
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`In 2018, Plaintiff drove 334.23 miles for Lyft. Lyft paid Plaintiff $879.98 for his
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`work on its behalf. Plaintiff was not reimbursed for additional out-of-pocket expenses
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`necessarily incurred on the job and required by Lyft, including return trip tolls, vehicle
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`maintenance, gas, and insurance which totaled more than $178.81. Plaintiffs net pay from Lyft
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`was $701.17. As a result of Lyft’s failure to reimburse Plaintiff for all work-related expenses,
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`Plaintiff did not receive minimum wage for all hours worked.
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`13.
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`Defendant Lyft Technologies, Inc. is a transportation services company that
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`provides drivers who can be hailed and dispatched through a mobile phone application. Lyft is
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`headquartered in San Francisco, California.
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` FACTUAL ALLEGATIONS
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`14.
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`Pursuant to Defendant’s policy, pattern and/or practice, Defendant failed to pay
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`Plaintiff and all similarly situated employees proper minimum wage, and failed to reimburse his
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`business-related expenses per the terms of company policy.
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`15.
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`The FLSA and NJWHL require employers to provide their employees with
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`sufficient reimbursements for employment related expenses (“kickbacks”) to ensure that
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`employees’ hourly wages equal or exceed the required minimum wage after such expenses are
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`counted against the hourly wages. Defendant systematically under-reimbursed its drivers for
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`vehicular wear and tear, gas, tolls, airport fees, and other driving-related expenses, thereby
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`ensuring that the majority of Defendant’s drivers are effectively paid well below the minimum
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`wage.
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`16.
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`At all times relevant hereto, Defendant has been an employer within the meaning
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`of Section 3(d) of the FLSA.
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`17.
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`At all times relevant herein, Defendant has been an enterprise within the meaning
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`of Section 3(r) of the FLSA and an enterprise engaged in commerce, including interstate
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`commerce, within the meaning of Section 3(s)(1) of the FLSA because it has employees engaged
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`in commerce, including interstate commerce.
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`18.
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`Defendant has had a gross volume of sales made or business done of at least
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`$500,000 per annum.
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`19.
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`At all times relevant herein, Plaintiff and others similarly situated were engaged
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`in interstate commerce as Lyft drivers. Indeed, Lyft drivers in the tri-state area of New Jersey
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`regularly engage in interstate commerce which is defined as trade, traffic, or transportation in the
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`United States— (1) between a place in a State and a place outside of such State (including a
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`place outside of the United States); (2) between two places in a State through another State or a
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`place outside of the United States; or (3) between two places in a State as part of trade, traffic, or
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`transportation originating or terminating outside the State or the United States, including, but not
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`limited to, instate airports, train stations and bus depots.
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`20.
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`Because Plaintiff and other similarly situated Lyft drivers are or were engaged in
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`interstate commerce on behalf of Lyft, the arbitration clause in the Lyft Driver Agreement is
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`unenforceable. See New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019).
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`21.
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`Defendant issued paychecks to Plaintiff and all similarly situated employees
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`during their employment.
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`22.
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`Defendant directed the work of Plaintiff and similarly situated employees and
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`benefitted from work performed that Defendant suffered or permitted from them.
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`23.
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`Plaintiff and others similarly situated were not paid minimum wage for all hours
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`worked, and Plaintiff and others similarly situated worked in excess of 40 hours per work week
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`without receiving overtime compensation, as required by the FSLA, the NJWHL, and other
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`applicable local, state and federal wage and hour laws.
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`Lyft Has Misclassified Its Drivers as Independent Contractors
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`24.
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`Defendant has tried to shield itself from liability for its blatant minimum wage
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`violations by misclassifying its drivers as independent contractors. Lyft drivers, however, are
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`employees. They are required to follow a litany of detailed requirements imposed on them by
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`Lyft and they are graded, and subject to termination, based on their failure to adhere to these
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`requirements (such as rules regarding their conduct with customers, their ability to reject rides,
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`the cleanliness of their vehicles, their timeliness in picking up customers and taking them to their
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`destination, what they are allowed to say to customers, etc.). Lyft thus supervises the
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`performance of drivers’ work according to criteria set by Lyft.
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`25.
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`Lyft controls the hours and locations worked by the drivers via the Lyft Driver
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`App. Lyft will automatically log out the driver from the Driver App after 14 hours of work and
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`not allow them to log back onto it for at least six hours, preventing the driver from working
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`during that period. Lyft has the ability to deactivate its Driver App at any time; making it
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`impossible for the driver to work while it is deactivated. When a New Jersey Lyft driver enters
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`New York, Defendant prevents the driver from logging into the Driver App, thus making it
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`impossible for the New Jersey Lyft driver to obtain a return fare back to New Jersey.
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`26.
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`Lyft states in its Driver Agreement that it may immediately terminate the
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`Agreement or deactivate the driver’s User Account in the event the driver engaged in Lyft-
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`defined Restricted Activities, if the driver has not fulfilled Representations, Warranties and
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`Agreements Lyft requires the drivers make as a condition of employment, or for any other breach
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`Lyft determines to be a material term of the Agreement. Lyft also reserves the right to terminate
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`the Agreement and deactivate the driver’s account if the driver falls below Lyft’s performance
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`rating or cancellation threshold.
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`27.
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`Lyft requires its drivers to use electronic mobile devices, such as cell phones, with
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`cellular service to access the Driver App. Lyft does not reimburse drivers for the cost and
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`maintenance of the driver’s mobile device and the necessary wireless data plan.
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`28.
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`Lyft controls the method of pay for the drivers and sets the fare for each ride.
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`Lyft prohibits drivers from setting rates of pay for their services; rather, their rates are
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`determined by Lyft. Lyft calculates the compensation paid to drivers from its “base fare or
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`pickup fare amount plus incremental amounts based on actual time and distance of the ride, as
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`measured by Lyft.” Lyft varies the base fare, pickup fare, and/or time and distance amounts
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`based on the market where the driver provided the ride, the date the driver applied for, or was
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`approved, as a Lyft driver, the type of vehicle the driver uses, and the type of Lyft service
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`provided by the driver. Lyft reserves the right to change its base fare, pickup fare, and/or time
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`and distance amounts at its discretion. Lyft also reserves the right to adjust the fare for a
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`particular instance of transportation services if the driver takes an inefficient route, i.e., a route
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`different than the one provided by Lyft on the Driver App.
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`29.
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`Lyft controls the work and directs the manner in which the drivers perform their
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`work. Via the Lyft Driver App, Lyft provides its drivers with the only instrumentality by which
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`a driver can perform services for Lyft. Lyft issues each of its drivers a Driver ID. The Driver
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`ID enables the driver to access and use the Driver App on a hand held electronic device or cell
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`phone. Through the Driver App, Lyft sets the passenger pick up location. Lyft only provides the
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`driver with the location of the passenger for pick up, and does not disclose the destination of the
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`passenger, until the pickup has been made. If the Lyft driver declines the ride once the
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`destination is provided, Lyft punishes the driver by deactivating the Driver App., precluding new
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`pickups during the punishment time period.
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`30.
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`Lyft tracks each driver’s location on the Driver App and recommends that the
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`driver follow the route provided on the Driver App. If the driver does not follow the route
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`provided by Lyft on the Driver App, the driver’s fare will be reduced if the alternate route takes
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`longer.
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`31.
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`Lyft also requires that its drivers review introductory videos and periodically
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`review videos regarding company safety procedures. Lyft requires that drivers review the videos
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`within a timeframe set by the company. If the drivers do not view the videos by the Lyft
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`deadline, it deactivates the Driver App. Lyft does not compensate its drivers for the time spent
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`watching the company videos.
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`32.
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`Lyft thus maintains control, oversight, and discretion over its operations,
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`including the work of Plaintiff and similarly situated drivers.
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`33.
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`Lyft is in the business of providing transportation servicers to passengers, and that
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`is the service that Plaintiff and the other Lyft drivers provide. The drivers’ servicers are fully
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`integrated into Lyft’s business, and without the drivers, Lyft would not exist.
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`34.
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`Plaintiff, the Collective Action Members and the New Jersey Class Members,
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`performed their work in the normal course of Lyft’s business and their work was integrated into
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`Lyft’s business.
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`35.
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`Defendant’s improper and illegal, company-wide policy, pattern and/or practice
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`of mischaracterizing Defendant’s labor force as “independent contractors” improperly reduced
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`Defendant’s labor cost, thereby fraudulently increasing the appearance of Defendant’s
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`profitability.
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`36.
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`Defendant’s company-wide policy, patterns and/or practice of misclassifying its
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`employees as independent contractors was knowing and intentional.
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`37.
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`Pursuant to a centralized, company-wide policy, pattern and/or practice,
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`Defendant misclassified Plaintiff and other similarly situated current and former employees, as
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`independent contractors exempt from coverage of the minimum wage and overtime provisions of
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`the FLSA and the NJWHL.
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`Lyft Fails to Reimburse Its Drivers For
`Work-Related Expenses Required by Lyft
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`38.
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`Throughout the relevant time period, Lyft has required its drivers to maintain and
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`provide a safe, clean, functioning, insured and legally-operable automobile to make deliveries.
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`Lyft has also required its drivers to bear the “out-of-pocket” costs associated with their vehicles,
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`including vehicle maintenance and repairs, insurance, and gas.
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`39.
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`The Internal Revenue Service (“IRS”) has calculated and published a standard
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`mileage reimbursement rate (“IRS rate”) for businesses and employees to use in computing the
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`minimum deductible costs of operating an automobile for business purposes. In 2017, the IRS
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`rate was $0.53.5 per mile. In 2018, the IRS rate was $0.54.5 per mile. As of January 1, 2019,
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`the IRS rate is $0.58 per mile.
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`40.
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`Thus, during the relevant period, the actual “out-of-pocket” costs that Lyft’s
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`drivers paid to provide a safe, functioning, insured and legally-operable automobile was a
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`minimum of $0.53.5 per mile and a maximum of $0.58 per mile.
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`41.
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`Plaintiff and other Lyft drivers were paid per ride at rates above the hourly
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`minimum wage. However, the rate per ride was not sufficient to offset Plaintiff’s and other Lyft
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`drivers’ actual “out-of-pocket” costs incurred and thus, netted out to be less than minimum wage
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`for all hours on the job.
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`42.
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`By way of illustration, during the week of October 30, 2017 to November 5, 2017,
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`Plaintiff worked 9.3 hours for Lyft. During that time period he drove 17.78 miles for Lyft. Lyft
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`paid Plaintiff $45.22 for his work on its behalf. Lyft did not reimburse him for additional out-of-
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`pocket expenses necessarily incurred on the job and required by Lyft, including return trip tolls,
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`vehicle maintenance, gas, and insurance, which totaled more than $9.51. Plaintiff’s net pay from
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`Lyft was $35.71. As a result of Lyft’s failure to reimburse Plaintiff for all work-related
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`expenses, Plaintiff did not receive minimum wage for all hours worked.
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`43.
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`Plaintiff also was not compensated for the overtime hours he worked for Lyft.
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`For example, during the week of October 16, 2017 to October 22, 2016, Plaintiff worked 46
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`hours for Lyft. During that time period he drove 246.25 miles for Lyft. Lyft paid Plaintiff
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`$328.29 for his work on its behalf. Plaintiff was not reimbursed for additional out-of-pocket
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`expenses necessarily incurred on the job and required by Lyft, including return trip tolls, vehicle
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`maintenance, gas, and insurance which totaled more than $131.74. Plaintiff did not receive
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`minimum wage for his hours worked up to 40 hours during that calendar week, and did not
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`receive overtime compensation for the hours he worked in excess of 40 hours during that week.
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`44.
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`As a result, Lyft has underpaid Plaintiff and its other drivers and fails to pay
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`minimum wage for all hours worked after deduction of the work-related expenses.
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`45.
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`Plaintiff, the Collective Action Members, and the New Jersey Class also worked
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`in excess of 40 hours per work week without being paid overtime wages in violation of the
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`FLSA the NJWHL and other local and state wage and hour laws.
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`46.
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`The number of hours Plaintiff and other members of the Class worked per week
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`can be ascertained from Defendant’s records, including the trip logs maintained on the Lyft
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`Driver App.
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`47.
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`Defendant, via the Lyft Driver App, assigned all of the work that Plaintiff, the
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`Collective Action Members, and the New Jersey Class Members performed, and Defendant is
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`aware of all of the work that they have performed.
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`FLSA COLLECTIVE ACTION ALLEGATIONS
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`48.
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`Pursuant to 29 U.S.C. §§ 207 and 216(b), Plaintiff seeks to prosecute his FLSA
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`claim as a Collective Action on behalf of all individuals who during the relevant time period are
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`or were Lyft drivers in the United States classified as “independent contractors” and (a) who
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`drove across state lines to pick up or transport passengers to and from their destinations,
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`including, but not limited to airports, train stations and bus stations servicing interstate and/or
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`international destinations, or (b) who drove within one state to pick up or transport passengers to
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`and from airports, train stations and bus stations that service interstate and/or international
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`destinations.
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`49.
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`Defendant is liable under the FLSA for, inter alia, failing to pay proper minimum
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`wage and overtime wages and failing to reimburse business expenses to Plaintiff and other
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`similarly situated employees.
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`50.
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`There are many similarly situated current and former Lyft drivers engaged in
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`interstate commerce who have not been paid proper minimum wages, overtime wages and
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`reimbursed their business expenses in violation of the FLSA and who would benefit from the
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`issuance of a court-supervised notice of this lawsuit and the opportunity to join it. Thus, notice
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`should be sent to the Collective pursuant to 29 U.S.C. § 216(b).
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`51.
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`The similarly situated employees are known to Defendant, are readily identifiable,
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`and can be located through Defendant’s records.
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`NEW JERSEY CLASS ALLEGATIONS
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`52.
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`Plaintiff also sues on his own behalf and on behalf of the New Jersey Class,
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`pursuant to Fed. R. Civ. P. 23(a), (b)(2) and (b)(3), defined as all current and former Lyft drivers
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`in the state of New Jersey who during the relevant time period are or were classified as
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`“independent contractors” and (a) who drove across state lines to pick up or transport passengers
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`to and from their destinations, including, but not limited to airports, train stations and bus
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`stations servicing interstate and/or international destinations, or (b) who drove within one state to
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`pick up or transport passengers to and from airports, train stations and bus stations that service
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`interstate and/or international destinations.
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`53.
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`Defendant violated the NJWHL and the regulations promulgated thereunder by
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`failing to pay proper minimum wages to Plaintiff and other putative New Jersey Class Members,
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`and required overtime wages to Plaintiff and other putative New Jersey Class Members.
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`54.
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`The New Jersey Class is so numerous that joinder of all members is
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`impracticable. Although the precise number of such persons is unknown, these similarly situated
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`employees are known to Defendant, are readily identifiable, and can be located through
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`Defendant’s records.
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`55.
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`Upon information and belief, there are more than 1000 members of the New
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`Jersey Class. Lyft is estimated to have not less than 20 percent of the ride-share market in New
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`Jersey, which would translate into approximately 3,200 drivers. See
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`https://www.theinformation.com/articles/where-lyft-gained-on-uber-and-where-it-didnt.
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`However, that number is conservative given Lyft’s recent claim in filings with the Securities and
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`Exchange Commission that its market share has increased to 39 percent nationally. See
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`https://www.sec.gov/Archives/edgar/data/1759509/000119312519059849/d633517ds1.htm#toc6
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`33517_6
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`56.
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`There are questions of law and fact common to the members of the New Jersey
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`Class that predominate over any questions solely affecting the individual members of the New
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`Jersey Class.
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`57.
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`The critical question of law and fact common to Plaintiff and the New Jersey
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`Class that will materially advance the litigation is whether Defendant is required by the NJWHL
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`to pay Plaintiff and the New Jersey Class minimum wage and overtime wages at a rate of 1.5
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`times their regular hourly rate for hours worked in excess of forty (40) hours per week.
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`58.
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`Other questions of law and fact common to the New Jersey Class that will
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`materially advance the litigation include, without limitation:
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`Whether Defendant employed Plaintiff and the New Jersey Class Members
`within the meaning of NJWHL;
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`The nature and extent of the class-wide injury and the appropriate measure of
`damages for the Class;
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`Whether Defendant failed to pay Plaintiff and the New Jersey Class the
`legally required minimum wage in violation of the NJWHL;
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`Whether Defendant failed to pay Plaintiff and the New Jersey Class overtime
`compensation for hours worked in excess of 40 hours per workweek, in
`violation of the NJWHL;
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`Whether Defendant failed to reimburse Plaintiff and the New Jersey Class for
`business-related expenses promised under the Company policy.
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`Whether the ruling of the New Jersey Department of Labor that Lyft drivers
`are employees of Lyft is determinative of collective and class members
`employment status under the doctrine of administrative collateral estoppel.
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`Whether Defendant is liable for all damage claimed by Plaintiff and the New
`Jersey Class, including, without limitation, compensatory and statutory
`damages, interest, costs and disbursements, and attorneys’ fees.
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`a.
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`59.
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`Plaintiff’s claims are typical of the claims of the members of the New Jersey
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`Class.
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`60.
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`Plaintiff has the same interests in this matter as all other members of the New
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`Jersey Class.
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`61.
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`Plaintiff is an adequate class representative, is committed to pursuing this action
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`and has retained competent counsel experienced in wage and hour law and class action litigation.
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`62.
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`Class certification of Plaintiff’s NJWHL claim is appropriate pursuant to Fed. R.
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`Civ. P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to
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`the New Jersey Class, making appropriate both declaratory and injunctive relief with respect to
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`the New Jersey Class as a whole. The members of the New Jersey Class are entitled to
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`injunctive relief to end Lyft’s common and uniform policy, pattern and/or practice of denying
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`New Jersey Class Members the wages to which they are entitled.
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`63.
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`Class certification of Plaintiff’s NJWHL claim is also appropriate pursuant to Fed.
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`R. Civ. P. 23(b)(3) because questions of law and fact common to the New Jersey Class
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`predominate over questions affecting only individual members of the New Jersey Class, and
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`because a class action is superior to other available methods for the fair and efficient
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`adjudication of the litigation.
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`64.
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`Plaintiff knows of no difficulty that would be encountered in the management of
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`this ligation that would preclude its maintenance as a class action.
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`FIRST CAUSE OF ACTION
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`FAIR LABOR STANDARDS ACT: UNPAID MINIMUM WAGE,
`UNPAID OVERTIME WAGES AND UNREIMBURSED BUSINESS EXPENSES
`(Brought on Behalf of Plaintiff and All Collective Action Members)
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`65.
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`Plaintiff, on behalf of himself and all Collective Action Members, repeats,
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`reiterates and realleges each and every allegation of Paragraphs 1 through 64 as if they were set
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`forth herein at length.
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`66.
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`At all relevant times, Defendant has been, and continues to be, an employer
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`engaged in interstate commerce within the meaning of the FLSA, 29 § U.S.C. 206(a) and 207(a).
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`67.
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`Defendant formerly employed Plaintiff, and employed and/or continues to
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`employ, each of the Collective Action Members, within the meaning of FLSA.
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`68.
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`Defendant has and continues to engage in a policy, pattern and/or practice of
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`violating the FLSA, as detailed in this Complaint.
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`69.
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`Plaintiff has consented in writing to be party to this action, pursuant to 29 U.S.C.
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`§ 216(b).
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`70.
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`The overtime wage provisions set forth in 29 U.S.C. §§ 201, et seq., apply to
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`Defendant.
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`71.
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`At all relevant times and continuing to the present time, Defendant had a policy
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`pattern and/or practice of failing to pay minimum wage and overtime compensation to its
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`employee drivers misclassified as independent contractors.
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`72.
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`As a result of Defendant’s willful failure to compensate its employees, including
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`Plaintiff and the Collective Action Members, at minimum wage, and its willful failure to
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`compensate Plaintiff and the Collective Members at a rate not less than one and one-half times
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`the regular rate of pay for work performed in excess of 40 hours in a workweek, Defendant has
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`violated and continues to violate the FLSA, 29 U.S.C. §§ 201, et seq., including 29 U.S.C. § §
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`207(a)(1) and 215(a).
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`73.
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`Because Defendant’s violations of the FLSA have been willful, a three-year
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`statute of limitations applies, pursuant to 29 U.S.C. § 255.
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`74.
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`As a result of Defendant’s FSLA violations, Plaintiff, on behalf of himself and the
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`Collective Action Members, is entitled (a) to recover from Defendant their unpaid wages for all
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`of the hours worked by them at minimum wage and at one and a half times the regular rate of
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`pay as overtime compensation for all hours worked in excess of 40 hours per week, (b) to
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`recover an additional, equal amount as liquidated damages, and (c) to recover their unreasonably
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`delayed payment of wages, reasonable attorneys’ fees, and costs and disbursements of this
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`action, pursuant to 29 U.S.C. § 216(b).
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`SECOND CAUSE OF ACTION
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`NEW JERSEY WAGE AND HOUR LAW: UNPAID MINIMUM WAGES, UNPAID
`OVERTIME WAGES; AND UNREIMBUTSED BUSINESS EXPENSES
`(Brought on Behalf of Plaintiff and All New Jersey Class Members)
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`Plaintiff repeats, reiterates and realleges each and every allegation of Paragraphs 1
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`75.
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`through 64, as if they were set forth herein.
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`76.
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`At all relevant times, Plaintiff and the New Jersey Class Members were employed
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`by Defendant within the meaning of the NJWHL, and Defendant was an employer within the
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`meaning of NJWHL.
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`77.
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`The overtime wage provision of the NJWHL and its supporting regulations apply
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`to Defendant.
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`78.
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`Defendant willfully violated Plaintiff’s rights and the rights of the New Jersey
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`Class Members by failing to pay them the legally required amount of minimum wage and
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`overtime compensation at rates not less than one and one-half times their regular rate of pay for
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`all hours worked by them in excess of 40 hours in a workweek, in violation of the NJWHL and
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`its regulations.
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`79.
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`Defendant knew and/or showed reckless disregard that its conduct was prohibited
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`by the NJWHL.
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`80.
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`As a result of Defendant’s willful violations of the NJWHL, Plaintiff and the New
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`Jersey Class Members are entitled to recover from Defendant their unpaid wages, reasonable
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`attorneys’ fees and costs of the action and pre-judgment and post-judgment interest, including
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`the employer’s share of FICA, FUTA, state unemployment insurance, and any other required
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`employment taxes, reasonable attorneys’ fees and costs and disbursements of this action,
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`pursuant to N.J.S.A. §34:11-56a25.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, the Collective Action Members and the New Jersey Class
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`Members are entitled to and pray for the following relief:
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`a)
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`b)
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`c)
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`d)
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`Designation of this action as an FLSA collective action on behalf of Plaintiff and
`the Collective Action Class and prompt issuance of notice pursuant to 29 U.S.C. §
`216(b) to all similarly situated members of the Collective Action Class, apprising
`them of the pendency of this action, permitting them to assert timely FLSA claims
`in this action by filing individual Consents to Sue pursuant to 29 U.S.C. § 216(b),
`and tolling of the statute of limitations;
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`Certification of the New Jersey Class as a class action pursuant to Fed. R. Civ. P.
`23(b)(2) and (b)(3), and the appointment of Plaintiff and his counsel to represent
`the members of the New Jersey Class;
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`A declaratory judgment that the practices complained of herein are unlawful
`under the FLSA and the NJWHL;
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`An injunction requiring Defendant to cease its unlawful practices under the FLSA
`and the NJWHL and to comply with the law;
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