`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`
`ORPHEUS GRANT, individually and on behalf of all
`other persons similarly situated who were employed
`by AM COMMUNCATIONS LTD, AM
`COMMUNCATIONS LLC.; AM
`COMMUNICATIONS OF OHIO LLC; and/or any
`other entities affiliated with or controlled by AM
`COMMUNICATIONS, LTD.; AM
`COMMUNCATIONS LLC; and AM
`COMMUNICATIUONS OF OHIO LLC;
`
`COMPLAINT
`
`COLLECTIVE ACTION and CLASS
`ACTION
`
`JURY TRIAL
`
`Docket No.:
`
`3:20-CV-1526 (DNH/ML)
`
`Plaintiffs,
`
`-against-
`
`AM COMMUNICATIONS, LTD.; AM
`COMMUNCATIONS LLC; AM
`COMMUNICATIONS OF OHIO LLC; and any
`related entities,
`
`Defendants.
`
`Plaintiff Orpheus Grant (the “Named Plaintiff”), by his attorneys Gattuso & Ciotoli, PLLC;
`
`and Virginia & Ambinder, LLP, allege upon knowledge to themselves and upon information and
`
`belief as to all other matters as follows:
`
`PRELIMINARY STATEMENT
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`1. This action is brought pursuant to the Fair Labor Standards Act (hereinafter referred to as
`
`"FLSA"), 29 U.S.C. §§ 206, 207, and 216(b); New York Labor Law § 190 et seq., New York
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`Labor Law §§ 650 et seq. and 663; 12 New York Codes, Rules and Regulations (hereinafter
`
`referred to as "NYCRR") §§ 137-1.2 and 137-1.3 to recover unpaid minimum wages, overtime
`
`compensation, and related damages owed to the Named Plaintiff and all similarly situated persons
`
`(collectively “Plaintiffs”) who are presently or were
`
`formerly employed by AM
`
`COMMUNICATIONS, LTD.; and/or AM COMMUNCATIONS LLC; and/or AM
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`COMMUNICATIONS OF OHIO LLC; and/or any other entities affiliated with or controlled by
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`AM COMMUNICATIONS, LTD.; AM COMMUNCATIONS LLC;
`
`and/or AM
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`COMMUNICATIONS OF OHIO LLC; (hereinafter “AM” or “Defendants”) in trades and
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`occupations entitled to receive overtime compensation.
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`2. Beginning in 2014 and continuing through the present, Defendants have engaged in a
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`policy and practice of depriving its employees of the applicable straight time wages and overtime
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`wages for work they performed as mandated by federal and state law.
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`3. Beginning in 2014 and continuing through the present, Defendants have engaged in a
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`policy and practice of requiring its employees to regularly work in excess of forty (40) hours per
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`week, without providing overtime compensation as required by the applicable federal and state
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`laws.
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`4. Defendants failed to provide proper wage notices to Plaintiffs in violation of state law.
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`5. Defendants have applied the same employment policies, practices and procedures to all
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`Plaintiffs that worked for Defendants at all of Defendants’ locations throughout the United States.
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`6. Named Plaintiff has initiated this action seeking for himself, and on behalf of all similarly
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`situated employees, all compensation, including straight time wages, minimum wages, and
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`overtime compensation of which they were deprived, plus interest, damages, and attorneys' fees
`
`and costs.
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`JURISDICTION
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`7. Jurisdiction of this Court is invoked pursuant to FLSA, 29 U.S.C. § 216(b), and 28 U.S.C.
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`§§ 1331 and 1337. This Court also has supplemental jurisdiction under 28 U.S.C. § 1367 of the
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`claims brought under New York Labor Law.
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`Case 3:20-cv-01526-DNH-ML Document 1 Filed 12/10/20 Page 3 of 14
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`8. The statute of limitations under FLSA, 29 U.S.C. § 255(a), for willful violations is three
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`(3) years.
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`9. The statute of limitations under New York Labor Law § 198(3) is six (6) years.
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`VENUE
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`10. Venue for this action in the Northern District of New York under 28 U.S.C. § 1391(b) is
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`appropriate because a substantial part of the events or omissions giving rise to the claims occurred
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`in the Northern District of New York.
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`CLASS ALLEGATIONS
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`11. Named Plaintiff realleges and incorporates by reference all the allegations set forth above.
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`12. This action is properly maintainable as a collective action pursuant to the FLSA, 29 U.S.C.
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`§ 216(b), and as a Class Action under Rule 23 of the Federal Rules of Civil Procedure.
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`13. This action is brought on behalf of Named Plaintiff and a class consisting of similarly
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`situated employees who worked for Defendants as cable television and internet installation
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`technicians throughout the United States.
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`14. Named Plaintiff and potential plaintiffs who elect to opt-in as part of the collective action
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`are all victims of Defendants’ common policy and/or plan to violate the FLSA by failing to pay
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`for all hours worked and overtime compensation at one and one-half the regular hourly rate for
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`hours in excess of 40 per week.
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`15. The putative class is so numerous that joinder of all members is impracticable. The size of
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`the putative class is believed to be in excess of 100 employees. In addition, the names of all
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`potential members of the putative class are not known.
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`16. The questions of law and fact common to the putative class predominate over any questions
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`affecting only individual members. These questions of law and fact include, but are not limited
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`Case 3:20-cv-01526-DNH-ML Document 1 Filed 12/10/20 Page 4 of 14
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`to: (1) whether Defendants failed to pay wages owed for all hours worked; (2) whether Defendants
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`properly accounted for and paid all hours worked; (3) whether Defendants paid overtime
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`compensation when owed; and (4) whether Defendants failed to provide New York Plaintiffs with
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`proper wage notices during the time of their employment.
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`17. The claims of the Named Plaintiff are typical of the claims of the putative class members.
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`Named Plaintiff and putative class members were all subject to Defendants’ policies and willful
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`practice of failing to account for and pay all hours worked, including overtime compensation, and
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`other wage violations.
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`18. Named Plaintiff and his counsel will fairly and adequately protect the interests of the
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`putative class. Named Plaintiff has retained counsel experienced in complex wage and hour
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`collective and class-action litigation.
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`19. A class action is superior to other available methods for the fair and efficient adjudication
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`of this controversy. The individual Named Plaintiff and putative class action members lack the
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`financial resources to adequately prosecute separate lawsuits against Defendants. A class action
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`will also prevent unduly duplicative litigation resulting from inconsistent judgments pertaining to
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`Defendants' policies.
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`THE PARTIES
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`20. Named Plaintiff Orpheus Grant is an individual who is currently a resident of Broome
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`County, New York, and was employed by Defendant(s) out of Defendants’ Rochester, New York
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`location as a technician from approximately December 2018 until September 2020.
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`21. Upon information and belief, Defendant AM COMMUNICATIONS, LTD. is a foreign
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`limited liability corporation authorized to do business within the State of New York, with a
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`principal place of business at 5707 State Route 309, Galion, Ohio 44833.
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`22. Upon information and belief, Defendant AM COMMUNCATIONS LLC is a domestic
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`limited liability company organized and existing under the laws of the State of New York and
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`authorized to do business in New York, with a principle place of business in Niagara County, New
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`York.
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`23. Upon information and belief, Defendant AM COMMUNICATIONS OF OHIO, LLC. is
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`a foreign limited liability corporation authorized to do business within the State of New York, with
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`a principal place of business at 5707 State Route 309, Galion, Ohio 44833.
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`24. At all times relevant to this action, Defendants constituted Plaintiffs’ employers as defined
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`by NYLL §§ 2(6), 190(3), and 651(6), and 29 U.S.C. § 203, et seq..
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`25. Plaintiffs repeat and re-allege the foregoing allegations hereof.
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`FACTS
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`26. This action is properly maintainable as a collective action pursuant to the FLSA, 29 U.S.C.
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`§ 216(b) and as a Class Action under Rule 23 of the Federal Rules of Civil Procedure.
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`27. This action is brought on behalf of Plaintiff and a putative class and collective consisting
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`of similarly situated employees who worked for Defendants as cable television and internet
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`installation technicians, and other employees performing similar tasks in furtherance of
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`Defendants’ operations.
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`28. While working for Defendants, Plaintiff and other similarly situated employees were
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`regularly required to perform work for Defendants without receiving pay for all hours worked
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`including overtime compensation for hours in excess of 40 in a week, as required by applicable
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`federal and state law.
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`29. Named Plaintiff worked for Defendants from approximately December 2019 through
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`October 9, 2020.
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`30. Named Plaintiff was paid approximately $11.80 per hour.
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`31. Named Plaintiff typically worked Monday through Saturday, from approximately 8:00 or
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`8:30 a.m., to approximately 8:30 or 9:00 p.m.
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`32. Throughout the entirety of his employment, Named Plaintiff and those similarly situated
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`were required to attend a regularly scheduled Thursday morning meeting beginning at 7:00 a.m.
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`and lasting to between 8:00 a.m. and 9:00 a.m.
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`33. The meeting was attended by approximately 20 technicians and five supervisors.
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`34. After the Thursday morning meetings, Named Plaintiff was required to travel between 30
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`and 60 minutes to his first service job for the day. Named Plaintiff and those similarly situated
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`were not allowed to clock-in to record his hours for pay until they arrived at the first service job
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`for the day.
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`35. This policy and practice by Defendants deprived Named Plaintiff and those similarly
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`situated of pay for all hours worked. Much, if not all, of this unpaid time was unpaid overtime.
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`36. Named Plaintiff and those similarly situated were required to use apps on a cell phone
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`provided by Defendants to record hours worked for pay. The apps were from Tech Mobile and
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`ADP.
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`37. Named Plaintiff and those similarly situated were required to clock-in on the apps upon
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`arrival at a customer’s residence and clock-out when leaving the customer’s residence, and not
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`clock-in again until they arrived at the next customer’s residence.
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`38. Named Plaintiff was instructed by a director from the Cleveland office named Jeff to clock
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`in and out after each job throughout the day. This practice continued through at least late March
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`or early April of 2020.
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`39. This policy and practice deprived Named Plaintiff and those similarly situated of pay for
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`travel time in between service jobs. Much, if not all, of this unpaid time was unpaid overtime.
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`40. This policy and practice also deprived Named Plaintiff and those similarly situated of New
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`York State minimum wages for all hours worked.
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`41. As a result of this policy and practice, the paystubs that Named Plaintiff and those
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`similarly situated received from Defendants did not accurately reflect all of the hours that they
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`worked.
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`
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`FIRST CAUSE OF ACTION
`FLSA FAILURE TO PAY OVERTIME COMPENSATION
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`42. Plaintiffs repeat and re-allege the allegations set forth above as if fully set forth herein.
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`43. Pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C § 207, “no employer shall
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`employ any of their employees who in any workweek is engaged in commerce or in the production
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`of goods for commerce, or is employed in an enterprise engaged in commerce or in the production
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`of goods for commerce, for a workweek longer than forty hours unless such employee receives
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`compensation for their employment in excess of the hours above specified at a rate not less than
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`one and one-half times the regular rate at which he is employed.”
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`44. Time spent training for an employer is compensable time.
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`45. Time spent traveling during normal business hours is compensable time.
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`46. Further, pursuant to 29 U.S.C. § 203(d), an “employer” includes “any person acting directly
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`or indirectly in the interest of an employer in relation to an employee and includes a public agency,
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`but does not include any labor organization (other than when acting as an employer) or anyone
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`acting in the capacity of officer or agent of such labor organization.”
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`47. Named Plaintiff and those similarly situated are employees within the meaning
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`contemplated in Fair Labor Standards Act (“FLSA”), 29 U.S.C. §203(e).
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`48. Defendants are “employer[s],” within the meaning contemplated in the FLSA, 29 U.S.C. §
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`203(d), and, consequently, are liable for violations of FLSA.
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`49. Defendants failed to pay Named Plaintiff, and similarly situated employees, wages owed
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`for all hours worked including overtime wages at the rate of one and one-half times the regular
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`rate of pay, for the time in which they worked after the first 40 hours in any given week.
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`50. The failure of Defendants to pay Named Plaintiff and those similarly situated their
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`rightfully owed wages and overtime compensation was willful.
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`51. By the foregoing reasons, Defendant is liable to Plaintiffs in an amount to be determined
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`at trial, plus interest, liquidated damages, attorneys’ fees, and costs.
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`SECOND CAUSE OF ACTION
`NEW YORK FAILURE TO PAY MINIMUM WAGES
`
`
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`52. Plaintiffs repeat and re-allege the allegations set forth above as if fully set forth herein.
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`53. New York Labor Law (“NYLL”) § 652(1) and 12 NYCRR § 142-2.1 prescribe a minimum
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`wage that employers must pay to their employees for each hour worked. Defendants are employers
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`within the meaning of the NYLL and Plaintiffs are employees within the meaning of the NYLL.
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`54. As a result of Defendants’ failure to pay Plaintiffs for all time worked, Defendants failed
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`to pay Named Plaintiff, and similarly situated employees, wages owed for all hours worked
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`including the minimum hourly rate required by the NYLL.
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`55. The failure of Defendants to pay Named Plaintiff and those similarly situated their
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`rightfully owed wages and overtime compensation was willful.
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`56. By the foregoing reasons, Defendants are liable to Plaintiffs in an amount to be determined
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`at trial, plus interest, liquidated damages, attorneys’ fees, and costs.
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`
`
`
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`THIRD CAUSE OF ACTION
`NEW YORK FAILURE TO PAY OVERTIME WAGE COMPENSATION
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`57. Plaintiffs repeat and re-allege the allegations set forth above as if fully set forth herein.
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`58. Title 12 NYCRR § 142-2.2 requires that, “[a]n employer shall pay an employee for
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`overtime at a wage rate of 1½ times the employee's regular rate for hours worked in excess of 40
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`hours in one workweek.”
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`59. New York Labor Law § 663, provides that “[i]f any employee is paid by his employer less
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`than the wage to which he is entitled under the provisions of this article, he may recover in a civil
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`action the amount of any such underpayments, together with costs and such reasonable attorneys’
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`fees.”
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`60. Time spent training for an employer is compensable time.
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`61. Time spent traveling during normal business hours is compensable time.
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`62. Upon information and belief, Named Plaintiff and those similarly situated regularly worked
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`more than forty (40) hours a week while working for Defendants.
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`63. Upon information and belief, Named Plaintiff and those similarly situated did not receive
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`compensation for all hours worked and did not receive overtime compensation at one and one-half
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`times their regular hourly rate for hours in excess of 40 in any given week.
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`64. Consequently, by failing to pay to Named Plaintiff and those similarly situated for all hours
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`worked and overtime compensation, Defendants violated New York Labor Law § 663 and 12
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`NYCRR § 142-2.2.
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`Case 3:20-cv-01526-DNH-ML Document 1 Filed 12/10/20 Page 10 of 14
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`65. Upon information and belief, Defendants’ failure to pay overtime compensation to Named
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`Plaintiff and those similarly situated potential plaintiffs was willful.
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`66. By the foregoing reasons, Defendants have violated New York Labor Law § 663 and 12
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`NYCRR § 142-2.2, and are liable to Plaintiffs in an amount to be determined at trial, plus interest,
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`damages, and attorneys' fees and costs.
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`FOURTH CAUSE OF ACTION
`NEW YORK FAILURE TO PAY WAGES
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`67. Plaintiffs reallege and incorporate by reference all the allegations set forth above.
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`68. Pursuant to Article Six of the NYLL, workers, such as Named Plaintiffs and putative class
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`members, are protected from wage underpayments and improper employment practices.
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`69. Pursuant to Labor Law § 190, the term “employee” means “any person employed for hire
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`by an employer in any employment.”
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`70. As persons employed for hire by Defendants, Named Plaintiff and those similarly situated
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`are “employees,” as understood in Labor Law § 190.
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`71. Pursuant to Labor Law § 190, the term “employer” includes any “person, corporation,
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`limited liability company, or association employing any individual in any occupation, industry,
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`trade, business or service.”
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`72. As an entity that hired Named Plaintiff and those similarly situated, Defendant is an
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`“employer.”
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`73. Named Plaintiff and those similarly situated wage rates were within the meaning of NYLL
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`Case 3:20-cv-01526-DNH-ML Document 1 Filed 12/10/20 Page 11 of 14
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`§§ 190, 191.
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`74. Pursuant to NYLL § 191 and cases interpreting same, workers, such as Named Plaintiffs
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`and putative class members, are entitled to be paid all their weekly wages “not later than seven
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`days after the end of the week in which the wages are earned.”
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`75. Defendants failed to pay Named Plaintiff and members of the putative class their hourly
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`wage for all hours worked.
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`76. Unpaid time work includes, but is not limited to, time spent traveling between jobs and at
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`morning meetings.
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`77. In failing to pay Named Plaintiff and putative class members proper wages for all hours
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`worked, and time and one-half for hours worked after forty hours in a week, Defendant violated
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`New York Labor Law.
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`78. Upon information and belief, Defendant’s failure to pay Named Plaintiff and those
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`similarly situated full wages every week was willful.
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`79. By the foregoing reasons, Defendant has violated NYLL and is liable to Named Plaintiff
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`and those similarly situated in an amount to be determined at trial, plus liquidated damages,
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`interest, attorneys’ fees and costs.
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`FIFTH CAUSE OF ACTION
`NEW YORK FAILURE TO PROVIDE ANNUAL WAGE NOTICES
`
`
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`80. Plaintiffs repeat and re-allege the allegations set forth above as if fully set forth herein.
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`81. Defendants have willfully failed to supply Plaintiffs with wage notices, as required by
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`NYLL § 195(1), in English or in the language identified as their primary language, containing
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`Plaintiffs rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary,
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`piece, commission, or other; hourly rate or rates of pay and overtime rate or rates of pay if
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`applicable; the regular pay day designated by the employer in accordance with NYLL § 191; the
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`name of the employer; any “doing business as” names use by the employer; the physical address
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`of the employer’s main office or principal place of business and a mailing address if different; the
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`telephone number of the employer; plus, such other information as the commissioner deems
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`material and necessary.
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`82. Plaintiffs did not receive all required wage notices during their employment with
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`Defendants.
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`83. Through their knowing or intentional failure to provide Plaintiffs with the wage notices
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`required by the NYLL, Defendants have willfully violated NYLL §§ 190 et. seq., and the
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`supporting New York State Department of Labor Regulations.
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`84. According to NYLL § 198-1(b), Plaintiffs are entitled to $50 for every week in which they
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`did not receive a wage notice and/or statement, or a total of $2500, together with costs and
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`reasonable attorney’s fees..
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`85. By the foregoing reasons, Defendants have violated NYLL §§ 195(1) and 198-1(b) and are
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`liable to the Plaintiffs in an amount to be determined at trial, plus liquidated damages, interest,
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`attorneys' fees and costs.
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`WHEREFORE, Named Plaintiff, individually and on behalf of all other persons similarly
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`situated who were employed by Defendants, demands judgment:
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`
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`(1) On the First Cause of Action against Defendants, all unpaid wages and unpaid
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`overtime wages in an amount to be determined at trial, plus liquidated damages in the amount
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`equal to the amount of unpaid wages, interest, attorneys’ fees and costs, pursuant to the FLSA
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`(2)
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`On the Second Cause of Action against Defendants, all unpaid minimum wages in
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`an amount to be determined at trial, plus liquidated damages in the amount equal to the amount of
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`unpaid wages, interest, attorneys’ fees and costs pursuant to the New York Labor Law;
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`
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`(3) On the Third Cause of Action against Defendants, all unpaid overtime wages in an
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`amount to be determined at trial, plus liquidated damages in the amount equal to the amount of
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`unpaid wages, interest, attorneys’ fees and costs pursuant to the New York Labor Law;
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`
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`(4) On the Fourth Cause of Action against Defendants, all unpaid wages in an amount to
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`be determined at trial, plus liquidated damages in the amount equal to the amount of unpaid wages,
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`interest, attorneys’ fees and costs pursuant to the New York Labor Law;
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`(5) On the Fifth Cause of Action, in an amount to be determined at trial, plus interest,
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`attorneys’ fees, and costs, pursuant to the New York Labor Law;
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`
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`(3)
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`Such other and further relief as this Court may deem just and proper.
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`Dated: New York, New York
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`December 10, 2020
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`By:
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`
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`/s/ James Emmet Murphy
`James Emmet Murphy, Esq.
`VIRGINIA & AMBINDER, LLP
`40 Broad Street, 7th Floor
`New York, New York 10004
`jmurphy@vandallp.com
`Tel:
`(212) 943-9080
`
` Fax:
`(212) 943-9082
`
`jmurphy@vandallp.com
`
`
`
`and
`
`Frank S. Gattuso, Esq.
`GATTUSO & CIOTOLI, PLLC
`The White House
`7030 E. Genesee Street
`Fayetteville, New York
`315-314-8000
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`315-446-7521 (fax)
`fgattuso@gclawoffice.com
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`
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`
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` Attorneys for the Plaintiff and putative class
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`14
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