Case 2:22-cv-00671-MKB-JMW Document 1 Filed 02/07/22 Page 1 of 13 PageID #: 1
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`LEE LITIGATION GROUP, PLLC
`C.K. Lee (CL 4086)
`148 West 24th Street, Eighth Floor
`New York, NY 10011
`Tel.: 212-465-1188
`Fax: 212-465-1181
`Attorneys for Plaintiff, FLSA Collective
`Plaintiffs, and the Class
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`EDWARD CASTRO,
`on behalf of himself, FLSA Collective Plaintiffs
`and the Class,
`
`Plaintiff,
`
`v.
`
`Case No.:
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`CLASS AND COLLECTIVE
`ACTION COMPLAINT
`
`HEMPSTEAD POULTRY, LLC,
`HEMPSTEAD POULTRY FARMS, INC., and
`JORGE PEREZ,
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`Jury Trial Demanded
`
`Defendants.
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`Plaintiffs EDWARD CASTRO (“Plaintiff”), on behalf of himself and others similarly
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`situated, by and through his undersigned attorneys, hereby files this Class and Collective Action
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`Complaint against HEMPSTEAD POULTRY, LLC, HEMPSTEAD POULTRY FARMS, INC.,
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`(“Corporate Defendants”) and JORGE PEREZ (“Individual Defendant” and together with the
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`Corporate Defendants, “Defendants”) and states as follows:
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`INTRODUCTION
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`1.
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`Plaintiff EDWARD CASTRO alleges, pursuant to the Fair Labor Standards Act, as
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`amended, 29 U.S.C. §§ 201 et seq. (“FLSA”), that he and others similarly situated are entitled to
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`recover from Defendants: (1) unpaid overtime wages due to misclassification of non-exempt
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`workers as exempt, (2) unpaid minimum wages due to misclassification of a non-exempt worker
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`as exempt, (3) liquidated damages and (4) attorneys’ fees and costs.
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`2.
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`Plaintiff EDWARD CASTRO alleges, pursuant to the New York Labor Law
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`(“NYLL”), that he and others similarly situated are entitled to recover from Defendants: (1) unpaid
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`overtime wages due to misclassification of non-exempt workers as exempt, (2) unpaid minimum
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`wages due to misclassification of a non-exempt worker as exempt, (3) unpaid spread of hours
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`premium, (4) liquidated damages, (5) statutory penalties, and (6) attorneys’ fees and costs.
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`JURISDICTION AND VENUE
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`3.
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`This Court has jurisdiction over this controversy pursuant to 29 U.S.C. § 216(b),
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`28 U.S.C. §§ 1331, 1337 and 1343, and has supplemental jurisdiction over Plaintiff’s state law
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`claims pursuant to 28 U.S.C. §1367.
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`4.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Corporate
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`Defendant is headquartered in this District and because the events giving rise to this action took
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`place in this District.
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`PARTIES
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`5.
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`6.
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`Plaintiff EDWARD CASTRO is a resident of Suffolk County, New York.
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`Defendants collectively own and operate Hempstead Poultry Farms, Inc. and
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`Hempstead Poultry, LLC at a single location in Hempstead, New York.
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`7.
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`Corporate Defendant HEMPSTEAD POUTLRY, LLC. is domestic limited liability
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`company organized under the laws of New York with a principal place of business and address for
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`service of process at 39 Newmans CT, Hempstead, New York 11550.
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`8.
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`Corporate Defendant HEMPSTEAD POUTLRY, FARMS, INC. is domestic
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`business corporation organized under the laws of New York with a principal place of business and
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`address for service of process at 39 Newmans CT, Hempstead, New York 11550.
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`9.
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`Individual Defendant JORGE PEREZ is the owner and president of HEMPSTEAD
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`POULTRY FARMS, INC., which operates HEMPSTEAD POULTRY, LLC.
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`10.
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`JORGE PEREZ exercised functional control over the business and financial
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`operations Corporate Defendants. and over the terms and conditions of Plaintiff’s employment and
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`those of FLSA Collective Plaintiffs and Class members. With respect to Plaintiff, FLSA Collective
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`Plaintiffs and Class Members, JORGE PEREZ exercised his power to (and also delegated to
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`managers and supervisors the power to) (i) fire and hire, (ii) determine rate and method of pay,
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`(iii) supervise and control employee work schedules or conditions of employment, (iv) maintain
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`employment records, and (iv) otherwise affect the quality of employment. JORGE PEREZ had
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`ultimate authority over employee-related decisions, including personnel, workplace conditions,
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`payroll, and wage and hour policies concerning Plaintiff, FLSA Collective Plaintiffs and Class
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`members.
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`11.
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`At all relevant times, Corporate Defendant was and continues to be an “enterprise
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`engaged in commerce” within the meaning of the FLSA.
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`12.
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`At all relevant times, Corporate Defendants employed at least fifteen (15)
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`employees within the meaning of the FLSA and the NYLL.
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`13.
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`At all relevant times Defendants were Plaintiff’s employer within the meaning of
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`NYLL § § 2 and 651.
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`14.
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`At all relevant times, Plaintiff was Defendants’ employees within the meaning of
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`NYLL § § 2 and 651.
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`15.
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`At all relevant times, the work performed by Plaintiff was directly essential to the
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`business operated by Defendants.
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`STATEMENT OF FACTS
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`16.
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`Plaintiff EDWARD CASTRO has been employed by Defendants as a chicken
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`cutter from in or about November 24, 2019, through the present. During the duration of Plaintiff
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`CASTRO’s employment, he has been paid at a fixed salary, and has been paid in cash on a weekly
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`basis.
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`17.
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`As a chicken cutter, Plaintiff works at Defendants’ Hempstead Poultry, LLC,
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`located at 39 Newmans CT, Hempstead New York, 11550. Plaintiff CASTRO’s duties are to
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`slaughter chickens and cut them to size.
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`18.
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`During the entire duration of Plaintiff CASTRO’s employment with Defendants,
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`Plaintiff CASTRO has worked the same schedule. Plaintiff CASTRO works Tuesday – Saturday
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`from 7:00 a.m. to 5:30 p.m., and on Sundays from 7:00 a.m. to 4:00 p.m., for a total of 61.5 hours
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`per week.
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`19.
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`During the duration of Plaintiff CASTRO’s employment his fixed salary varied.
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`From the start of his employment in November 2019 to June 2020, Plaintiff CASTRO was paid
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`$420 per week; from June 2020 to June 2021, Plaintiff CASTRO was paid $500 per week; from
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`June 2021 to August 2021, Plaintiff CASTRO was paid $600 per week; and from August 2021 to
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`the present, Plaintiff CASTRO has been paid $650 per week. Class members were similarly paid
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`on a fixed salary basis.
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`20.
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`At no time during the duration of his employment has Plaintiff CASTRO been paid
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`overtime wages for his hours worked over forty (40) in a workweek, because Defendants have
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`classified him as exempt. This is a misclassification, however.
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`21.
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`Additionally, due to Defendants paying Plaintiff CASTRO on a fixed salary basis
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`for all hours worked, Plaintiff CASTRO was not compensated at the required minimum wage for
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`the hours he worked for Defendants. Also, there was no agreement by Plaintiff or Class members
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`that any portion of this fixed salary covered overtime hours.
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`22.
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`Defendants were not entitled to classify Plaintiff CASTRO as an exempt worker
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`because he does not fall into any of the exemption categories, under either FLSA or NYLL. Class
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`members similarly are not exempt.
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`23.
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`Additionally, during the duration of Plaintiff CASTRO’s employment, Plaintiff
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`CASTRO and Class members regularly worked shifts exceeding ten (10) hours in duration, but
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`Defendants have failed to pay Plaintiff CASTRO or Class members their spread of hours premiums
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`for these shifts, as required by NYLL.
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`24.
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`Plaintiff CASTRO and Class members never received a wage and hour notice, at
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`hiring or annually thereafter, in violation of NYLL.
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`25.
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`Plaintiff CASTRO and Class members never received any wage statements with
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`their weekly cash wages.
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`26.
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`Additionally, had Defendants provided wage statements to Plaintiff or Class
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`members, these would have been improper, since Defendants treated Plaintiff CASTRO and Class
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`members as exempt workers when they were not exempt. Thus, the wages received by Plaintiff
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`and Class members did not account for their overtime hours.
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`27.
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`From his discussions with co-workers, Plaintiff learned that many other employees
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`of Defendants had also been misclassified as exempt, although they did not fall into any of the
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`exemption categories, under either FLSA or NYLL. As a result of this misclassification, these
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`other employees also did not receive all of their minimum wages and overtime compensation.
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`28.
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`Additionally, from discussions and interactions with co-workers, Plaintiff learned
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`that many other employees also worked shifts lasting ten (10) hours or more in duration, but were
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`not paid their spread of hours compensation, as a result of being misclassified as exempt
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`employees.
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`29.
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`Defendants’ violations of FLSA and NYLL were willful, as Defendants were
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`perfectly aware that Plaintiff was not qualified as an exempt employee under either FLSA or
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`NYLL.
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`FLSA COLLECTIVE ACTION ALLEGATIONS
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`30.
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`Plaintiff brings claims for relief as a collective action pursuant to FLSA Section
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`16(b), 29 U.S.C. § 216(b), on behalf of all current and former fixed-salary employees (including,
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`but not limited to, chicken cutters, chicken slaughterers, cashiers, cleaners, counter persons, and
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`poultry preparers) employed by Defendants on or after the date that is three (3) years before the
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`filing of this Complaint (“FLSA Collective Plaintiffs”).
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`31.
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`At all relevant times, Plaintiff and FLSA Collective Plaintiffs are and have been
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`similarly situated, have had substantially similar job requirements and pay provisions, and are and
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`have been subjected to Defendants’ decisions, policies, plans, programs, practices, procedures,
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`protocols, routines, and rules, all culminating in a willful failure and refusal to pay them all wages
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`owed due to a policy of time shaving. The claims of Plaintiff stated herein are essentially the same
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`as those of FLSA Collective Plaintiffs.
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`32.
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`The claims for relief are properly brought under and maintained as an opt-in
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`collective action pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b). The FLSA Collective
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`Plaintiffs are readily ascertainable. For purposes of notice and other purposes related to this action,
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`their names and addresses are readily available from Defendants. Notice can be provided to the
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`FLSA Collective Plaintiffs via first class mail to the last address known to Defendants.
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`RULE 23 CLASS ALLEGATIONS
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`33.
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`Plaintiff brings claims under NYLL for relief pursuant to the Federal Rules of Civil
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`Procedure (“F.R.C.P.”) Rule 23, on behalf of all current and former fixed-salary employees
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`(including, but not limited to, chicken cutters, chicken slaughterers, cashiers, cleaners, counter
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`persons, and poultry preparers) employed by Defendant on or after the date that is six (6) years
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`before the filing of this Complaint (the “Class” or “Class members”).
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`34.
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`At all relevant times, Plaintiff and Class members are and have been similarly
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`situated, have had substantially similar job requirements and pay provisions, and are and have been
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`subjected to Defendants’ decisions, policies, plans, programs, practices, procedures, protocols,
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`routines, and rules, all culminating in a willful failure to pay all wages owed due to a policy of
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`time shaving.
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`35.
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`The Class members are readily ascertainable. The number and identity of the Class
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`members are determinable from the records of Defendants. The hours assigned and worked, the
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`position held, and rates of pay for each Class member are also determinable from Defendants’
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`records. For purposes of notice and other purposes related to this action, their names and addresses
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`are readily available from Defendants. Notice can be provided by means permissible under
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`F.R.C.P. 23.
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`36.
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`The proposed Class is so numerous that a joinder of all members is impracticable,
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`and the disposition of their claims as a class will benefit the parties and the Court. Although the
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`precise number of such persons is unknown, the facts on which the calculation of that number are
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`presently within the sole control of Defendants, there is no doubt that there are more than forty
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`(40) Class Members in the Class.
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`37.
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`Plaintiff’s claims are typical of claims that could be alleged by any member of the
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`Class, and the relief sought is typical of the relief that would be sought by each member of the
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`Class or in separate actions. All Class members were subject to the same corporate practices of
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`Defendants, as alleged herein, of failing to pay overtime wages because of a policy of
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`misclassifying employees as exempt, in violation of NYLL.
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`38.
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`Defendants failed to provide proper wage notices and failed to provide proper wage
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`statements to Class members in violation of the NYLL.
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`39.
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`Defendants’ corporate-wide policies and practices affected all Class members
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`similarly, and Defendants benefited from the same type of unfair and/or wrongful acts as to each
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`Class member. Plaintiff and other Class members sustained similar losses, injuries and damages
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`arising from the same unlawful policies, practices and procedures.
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`40.
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`Plaintiff is able to fairly and adequately protect the interests of the Class and has no
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`interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced and
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`competent in both class action litigation and employment litigation and have previously
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`represented plaintiffs in wage and hour cases.
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`41.
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`A class action is superior to other available methods for the fair and efficient
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`adjudication of the controversy – particularly in the context of the wage and hour litigation where
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`individual class members lack the financial resources to vigorously prosecute a lawsuit against a
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`corporate defendant. Class action treatment will permit a large number of similarly situated
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`persons to prosecute common claims in a single forum simultaneously, efficiently, and without the
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`unnecessary duplication of efforts and expense that numerous individual actions engender.
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`Because losses, injuries and damages suffered by each of the individual Class members are small
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`in the sense pertinent to a class action analysis, the expenses and burden of individual litigation
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`would make it extremely difficult or impossible for the individual Class members to redress the
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`wrongs done to them. On the other hand, important public interests will be served by addressing
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`the matter as a class action. The adjudication of individual litigation claims would result in a great
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`expenditure of Court and public resources; however, treating the claims as a class action would
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`result in a significant saving of these costs. The prosecution of separate actions by individual
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`members of the Class would create a risk of inconsistent and/or varying adjudications with respect
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`to the individual members of the Class, establishing incompatible standards of conduct for
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`Defendants and resulting in the impairment of class members’ rights and the disposition of their
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`interests through actions to which they were not parties. The issues in this action can be decided
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`by means of common, class-wide proof. In addition, if appropriate, the Court can, and is
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`empowered to, fashion methods to efficiently manage this action as a class action.
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`42.
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`Defendants and other employers throughout the country violate their respective
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`states’ labor laws. Current employees are often afraid to assert their rights out of fear of direct or
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`indirect retaliation. Former employees are fearful of bringing claims because doing so can harm
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`their employment, future employment, and future efforts to secure employment. Class actions
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`provide class members who are not named in the Complaint a degree of anonymity, which allows
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`for the vindication of their rights while eliminating or reducing these risks.
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`43.
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`There are questions of law and fact common to the Class which predominate over
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`any questions affecting only individual class members, including:
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`a) Whether Defendants employed Plaintiff and Class members within the meaning
`of the NYLL;
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`b) What are and were the policies, practices, programs, procedures, protocols and
`plans of Defendants regarding the types of work and labor for which Defendants
`did not pay Plaintiff and Class Members properly;
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`c) At what common rate, or rates subject to common methods of calculation, were
`and are Defendants required to pay Plaintiff and Class Members for their work;
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`d) Whether Defendants paid Plaintiff and Class Members overtime wages for all
`overtime hours worked;
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`e) Whether Defendants wrongly treated Plaintiff and Class members as exempt;
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`f) Whether Defendants provided proper wage statements to Plaintiff and Class
`members per requirements of the NYLL; and
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`g) Whether Defendants provided proper wage notices to Plaintiff and Class
`members per requirements of the NYLL.
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`STATEMENT OF CLAIM
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`COUNT I
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`VIOLATION OF THE FAIR LABOR STANDARDS ACT
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`44.
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`Plaintiffs reallege and incorporate all the foregoing paragraphs of this Class and
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`Collective Action Complaint as if fully set forth herein.
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`45.
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`At all relevant times, Defendants were and continue to be employers engaged in
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`interstate commerce and/or the production of goods for commerce within the meaning of the
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`FLSA, 29 U.S.C. §§ 206(a) and 207(a). Further, Plaintiffs and FLSA Collective Plaintiffs are
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`covered individuals within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and 207(a).
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`46.
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`At all relevant times, Defendants employed Plaintiffs and FLSA Collective
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`Plaintiffs within the meaning of the FLSA.
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`47.
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`48.
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`At all relevant times, Defendants had gross annual revenues in excess of $500,000.
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`At all relevant times, Defendants had a policy and practice of failing to pay Plaintiff
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`and FLSA Collective Plaintiffs overtime wages for all overtime hours worked, in violation of the
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`FLSA.
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`49.
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`Records, if any, concerning the number of hours worked by Plaintiff and FLSA
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`Collective Plaintiffs and the actual compensation paid to Plaintiffs and FLSA Collective Plaintiffs
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`should be in the possession and custody of Defendants. Plaintiffs intend to obtain these records by
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`appropriate discovery proceedings to be taken promptly in this case and, if necessary, will then
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`seek leave of Court to amend this Complaint to set forth the precise amount due.
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`50.
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`Defendants showed a willful disregard for the provisions of the FLSA as evidenced
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`by their willful failure to compensate Plaintiff and FLSA Collective Plaintiffs for overtime work.
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`51.
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`Defendants failed to properly disclose or apprise Plaintiff and FLSA Collective
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`Plaintiffs of their rights under the FLSA.
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`52.
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`As a direct and proximate result of Defendants’ willful disregard of the FLSA,
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`Plaintiff and FLSA Collective Plaintiffs are entitled to liquidated (i.e., double) damages pursuant
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`to the FLSA.
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`53.
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`Due to the intentional, willful and unlawful acts of Defendants, Plaintiff and FLSA
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`Collective Plaintiffs suffered damages in an amount to be determined at trial, plus an equal amount
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`as liquidated damages.
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`54.
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`Plaintiff and FLSA Collective Plaintiffs are entitled to an award of their reasonable
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`attorneys’ fees and costs pursuant to 29 U.S.C. § 216(b).
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`COUNT II
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`VIOLATION OF THE NEW YORK LABOR LAW
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`55.
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`Plaintiff realleges and incorporates all the foregoing paragraphs of this Class and
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`Collective Action Complaint as if fully set forth herein.
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`56.
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`At all relevant times, Plaintiff and Class members were employed by Defendants
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`within the meaning of the New York Labor Law §§ 2 and 651.
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`57.
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`Defendants knowingly and willfully failed to pay Plaintiffs and Class members for
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`their overtime work due to a policy of misclassifying them as exempt, in violation of NYLL.
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`58.
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`Defendants knowingly and willfully failed to pay Plaintiff and Class members their
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`spread of hours premiums for shifts lasting longer than ten (10) hours in duration due to a policy
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`of misclassifying them as exempt, in violation of NYLL.
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`59.
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`Defendants knowingly and willfully failed to provide Plaintiffs and Class members
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`with proper wage statements as required under the NYLL.
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`60.
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`Defendants knowingly and willfully failed to provide Plaintiffs and Class members
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`with proper wage and hour notices as required under the NYLL.
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`61.
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`Due to the Defendants’ New York Labor Law violations, Plaintiffs and Class
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`members are entitled to recover from Defendants unpaid wages, reasonable attorneys’ fees,
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`liquidated damages, statutory penalties and costs and disbursements of the action, pursuant to the
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`NYLL.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff on behalf of himself, FLSA Collective Plaintiffs and Class
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`members, respectfully request that this Court grant the following relief:
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`a. A declaratory judgment that the practices complained of herein are unlawful under the
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`FLSA and NYLL;
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`b. An injunction against Defendants and their officers, agents, successors, employees,
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`representatives and any and all persons acting in concert with them as provided by law,
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`from engaging in each of the unlawful practices, policies and patterns set forth herein;
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`c. An award of unpaid wages due under the FLSA and NYLL;
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`d. An award of liquidated damages as a result of Defendants’ willful failure to pay wages
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`pursuant to the FLSA;
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`e. An award of liquidated damages as a result of Defendants’ willful failure to pay wages,
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`pursuant to the NYLL;
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`f. An award of pre-judgment and post-judgment interests, costs and expenses of this
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`action together with reasonable attorneys’ and expert fees and statutory penalties;
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`g. Designation of Plaintiff as the Representative of the FLSA Collective Plaintiffs;
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`h. Designation of this action as a class action pursuant to F.R.C.P. 23;
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`i. Designation of Plaintiff as Representative of the Class; and
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`j. Such other and further relief as this Court deems just and proper.
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`JURY DEMAND
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`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demand trial by
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`jury on all issues so triable as of right by jury.
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`Dated: February 7, 2022
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`Respectfully submitted,
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`LEE LITIGATION GROUP, PLLC
`
`By:
`
` /s/ C.K. Lee
`
`C.K. Lee, Esq. (CL4086)
`148 West 24th Street, Eighth Floor
`New York, NY 10011
`Tel.: (212) 465-1188
`Fax: (212) 465-1181
`Attorneys for Plaintiff,
`FLSA Collective
`Plaintiffs, and the Class
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`13
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