throbber
Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 1 of 21
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`YAEL ALMONTE, NESTOR BATISTA,
`JONATHAN BENCOSME, VICTOR
`MARTE, MARCOS ORTIZ, ELIEZER
`QUEZADA, and NOEL QUEZADA,
`
`
`
` - against -
`
`WASHINGTON HEIGHTS WIRELESS,
`INC.; FORDHAM WIRELESS PLAZA,
`INC.; EAST SIDE WIRELESS PLAZA,
`INC.; STP ROCKAWAY, INC., BRONX
`METRO WIRELESS, INC., MANHATTAN
`METRO WIRELESS, INC., collectively
`d/b/a METRO BY T-MOBILE f/k/a
`MetroPCS and ELLIOT DABAH, an
`Individual,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Civil Action No.: 20-8848
`
`
`COMPLAINT
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`Plaintiffs Yael Almonte, Nestor Batista, Jonathan Bencosme, Victor Marte, Marcos Ortiz,
`
`Eliezer Quezada, and Noel Quezada (collectively “plaintiffs”) by their attorneys the Law Offices
`
`of Mitchell Schley, LLC, complaining of defendants Washington Heights Wireless, Inc.,
`
`Fordham Wireless Plaza, Inc., East Side Wireless Plaza, Inc., STP Rockaway, Inc., Bronx Metro
`
`Wireless, Inc., and Manhattan Metro Wireless, Inc., collectively d/b/a Metro by T-Mobile, f/k/a
`
`MetroPCS, and Elliot Dabah, an Individual, (all collectively “defendants” or “Metro”), allege as
`
`follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This action is brought to recover unpaid overtime wages and all available relief
`
`pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), and the New York
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 2 of 21
`
`
`
`Labor Law § 190, et seq. (“NYLL”). It has also violated the New York Wage Theft Prevention
`
`Act (“WTPA”) by failing to furnish its employees with mandated notices regarding the terms of
`
`their employment and the required weekly pay stub with each paycheck showing the regular
`
`hours worked, the overtime hours worked, and regular and overtime rates of Pay. Plaintiffs seek
`
`2.
`
`Defendants Washington Heights Wireless, Inc., Fordham Wireless Plaza, Inc.,
`
`East Side Wireless Plaza, Inc., STP Rockaway, Inc., Bronx Metro Wireless, Inc., and Manhattan
`
`Metro Wireless, Inc., collectively d/b/a Metro by T-Mobile, f/k/a MetroPCS, (“Metro”) are
`
`cellular phone stores located in Manhattan, the Bronx and Brooklyn in New York City.
`
`3.
`
`Plaintiffs have been unlawfully deprived of overtime pay and minimum wage
`
`because of the employers’ disregard of the requirements of federal and state labor laws.
`
`4.
`
`Plaintiffs seek unpaid minimum wages, overtime wages, liquidated damages, pre-
`
`and post-judgment interest, injunctive and declaratory relief against defendants’ unlawful
`
`actions, and attorneys’ fees and costs pursuant to the FLSA, NYLL and the WTPA.
`
`JURISDICTION
`
`5.
`
`This Court has subject matter jurisdiction of this case pursuant to 29 U.S.C. §
`
`216(b) and 28 U.S.C. §§ 1331 and 1337. The Court has supplemental jurisdiction over plaintiffs’
`
`claims under the NYLL pursuant to 28 U.S.C. § 1367.
`
`6.
`
`The Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§
`
`2201 and 2202.
`
`VENUE
`
`7.
`
`Venue is proper in the Southern District of New York under 28 U.S.C. § 1391
`
`because a substantial part of the conduct alleged herein occurred in this judicial district and most
`
`defendants reside in this district.
`
`
`
`2
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 3 of 21
`
`THE PARTIES
`
`
`
`Plaintiffs
`
`8.
`
`9.
`
`Plaintiff Yael Almonte is a resident of Mount Vernon, New York.
`
`Yael Almonte was employed as a salesperson by Metro at the Washington
`
`Heights Wireless, Inc. store located at 1323 St. Nicholas Avenue, New York, NY 10033, from
`
`May 2010 until March 2020.
`
`10.
`
`At all relevant times, Yael Almonte was an employee engaged in commerce or the
`
`production of goods for commerce on behalf of defendants within the meaning of the FLSA.
`
`11.
`
`At all relevant times, Yael Almonte was an employee of defendants within the
`
`meaning of the FLSA and NYLL.
`
`12.
`
`13.
`
`Plaintiff Nestor Batista is a resident of the Bronx, New York.
`
`Nestor Batista was employed as a salesperson by Metro at the Washington
`
`Heights Wireless, Inc. store located at 1323 St. Nicholas Avenue, New York, NY 10033 and the
`
`Fordham Wireless Plaza, Inc. store located at 42 West Fordham Road, Bronx, NY 10468, from
`
`2017 until 2020.
`
`14.
`
`At all relevant times, Nestor Batista was an employee engaged in commerce or
`
`the production of goods for commerce on behalf of defendants within the meaning of the FLSA.
`
`15.
`
`At all relevant times, Nestor Batista was an employee of defendants within the
`
`meaning of the FLSA and NYLL.
`
`16.
`
`17.
`
`Plaintiff Jonathan Bencosme is a resident of the Bronx, New York.
`
`Jonathan Bencosme was employed as a salesperson by Metro at the Fordham
`
`Wireless Plaza, Inc. store located at 42 West Fordham Road, Bronx, NY 10468 and the Bronx
`
`Metro Wireless, Inc. store located at 318 East 149 Street, Bronx, NY 10451, and the Manhattan
`
`
`
`3
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 4 of 21
`
`
`
`Metro Wireless, Inc. store located at 3421 Broadway, New York, NY 10031, from February
`
`2009 until July 2020.
`
`18.
`
`At all relevant times, Jonathan Bencosme was an employee engaged in commerce
`
`or the production of goods for commerce on behalf of defendants within the meaning of the
`
`FLSA.
`
`19.
`
`At all relevant times, Jonathan Bencosme was an employee of defendants within
`
`the meaning of the FLSA and NYLL.
`
`20.
`
`21.
`
`Plaintiff Victor Marte is a resident of Brooklyn, New York.
`
`Victor Marte was employed as a salesperson by Metro at the STP Rockaway, Inc.
`
`store located at 2 Belmont Ave, Brooklyn, NY 11212, from September 2018 until March 2020.
`
`22.
`
`At all relevant times, Victor Marte was an employee engaged in commerce or the
`
`production of goods for commerce on behalf of defendants within the meaning of the FLSA.
`
`23.
`
`At all relevant times, Victor Marte was an employee of defendants within the
`
`meaning of the FLSA and NYLL.
`
`24.
`
`Plaintiff Marcos Ortiz is a resident of the Bronx, New York.
`
`25. Marcos Ortiz was employed as a salesperson by Metro at the Washington Heights
`
`Wireless, Inc. store located at 1323 St. Nicholas Avenue, New York, NY 10033, from April
`
`2015 until March 2020.
`
`26.
`
`At all relevant times, Marcos Ortiz was an employee engaged in commerce or the
`
`production of goods for commerce on behalf of defendants within the meaning of the FLSA.
`
`27.
`
`At all relevant times, Marcos Ortiz was an employee of defendants within the
`
`meaning of the FLSA and NYLL.
`
`28.
`
`Plaintiff Eliezer Quezada is a resident of the Bronx, New York.
`
`
`
`4
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 5 of 21
`
`
`
`29.
`
`Eliezer Quezada was employed as a salesperson by Metro at the Bronx Metro
`
`Wireless, Inc. store located at 318 East 149 Street, Bronx, NY 10451, from October 2009 until
`
`August 2017.
`
`30.
`
`At all relevant times, Eliezer Quezada was an employee engaged in commerce or
`
`the production of goods for commerce on behalf of defendants within the meaning of the FLSA.
`
`31.
`
`At all relevant times, Eliezer Quezada was an employee of defendants within the
`
`meaning of the FLSA and NYLL.
`
`32.
`
`33.
`
`Plaintiff Noel Quezada is a resident of the Bronx, New York.
`
`Noel Quezada was employed as a salesperson by Metro at the East Side Wireless
`
`Plaza, Inc. store located at 1197 East 233 Street, Bronx, NY 10466, from 2015 until 2017.
`
`34.
`
`At all relevant times, Noel Quezada was an employee engaged in commerce or
`
`the production of goods for commerce on behalf of defendants within the meaning of the FLSA.
`
`35.
`
`At all relevant times, Noel Quezada was an employee of defendants within the
`
`meaning of the FLSA and NYLL.
`
`Defendants
`
`36.
`
`Defendants Washington Heights Wireless, Inc., Fordham Wireless Plaza, Inc.,
`
`East Side Wireless Plaza Inc., STP Rockaway, Inc., Bronx Metro Wireless, Inc., and Manhattan
`
`Metro Wireless, Inc. do business as Metro by T-Mobile and formally did business as MetroPCS.
`
`37. Washington Heights Wireless, Inc. has been at all relevant times an employer
`
`engaged in commerce or in the production of goods for commerce within the meaning of the
`
`FLSA.
`
`38.
`
`At all relevant times, Washington Heights Wireless, Inc. has had an annual gross
`
`volume of sales in excess of $500,000 within the meaning of the FLSA.
`
`
`
`5
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 6 of 21
`
`
`
`39. Washington Heights Wireless, Inc.’s employees, including plaintiffs, handle and
`
`sell goods that have been moved in, or produced for, commerce within the meaning of the FLSA.
`
`40. Washington Heights Wireless, Inc. is an employer within the meaning of the
`
`FLSA.
`
`41. Washington Heights Wireless, Inc. is an employer within the meaning of the
`
`NYLL.
`
`42.
`
`Fordham Wireless Plaza, Inc. has been at all relevant times an employer engaged
`
`in commerce or in the production of goods for commerce within the meaning of the FLSA.
`
`43.
`
`At all relevant times, Fordham Wireless Plaza, Inc. has had an annual gross
`
`volume of sales in excess of $500,000 within the meaning of the FLSA.
`
`44.
`
`Fordham Wireless Plaza, Inc.’s employees, including plaintiffs, handle and sell
`
`goods that have been moved in, or produced for, commerce within the meaning of the FLSA.
`
`45.
`
`46.
`
`47.
`
`Fordham Wireless Plaza, Inc. is an employer within the meaning of the FLSA.
`
`Fordham Wireless Plaza, Inc.is an employer within the meaning of the NYLL.
`
`East Side Wireless Plaza Inc. has been at all relevant times an employer engaged
`
`in commerce or in the production of goods for commerce within the meaning of the FLSA.
`
`48.
`
`At all relevant times, East Side Wireless Plaza Inc. has had an annual gross
`
`volume of sales in excess of $500,000 within the meaning of the FLSA.
`
`49.
`
`East Side Wireless Plaza Inc.’s employees, including plaintiffs, handle and sell
`
`goods that have been moved in, or produced for, commerce within the meaning of the FLSA.
`
`50.
`
`51.
`
`East Side Wireless Plaza Inc. is an employer within the meaning of the FLSA.
`
`East Side Wireless Plaza Inc. is an employer within the meaning of the NYLL.
`
`
`
`6
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 7 of 21
`
`
`
`52.
`
`STP Rockaway, Inc. has been at all relevant times an employer engaged in
`
`commerce or in the production of goods for commerce within the meaning of the FLSA.
`
`53.
`
`At all relevant times, STP Rockaway, Inc. has had an annual gross volume of
`
`sales in excess of $500,000 within the meaning of the FLSA.
`
`54.
`
`STP Rockaway, Inc.’s employees, including plaintiffs, handle and sell goods that
`
`have been moved in, or produced for, commerce within the meaning of the FLSA.
`
`55.
`
`56.
`
`57.
`
`STP Rockaway, Inc. is an employer within the meaning of the FLSA.
`
`STP Rockaway, Inc. is an employer within the meaning of the NYLL.
`
`Bronx Metro Wireless, Inc. has been at all relevant times an employer engaged in
`
`commerce or in the production of goods for commerce within the meaning of the FLSA.
`
`58.
`
`At all relevant times, Bronx Metro Wireless, Inc. has had an annual gross volume
`
`of sales in excess of $500,000 within the meaning of the FLSA.
`
`59.
`
`Bronx Metro Wireless, Inc.’s employees, including plaintiffs, handle and sell
`
`goods that have been moved in, or produced for, commerce within the meaning of the FLSA.
`
`60.
`
`61.
`
`Bronx Metro Wireless, Inc. is an employer within the meaning of the FLSA.
`
`Bronx Metro Wireless, Inc. is an employer within the meaning of the NYLL.
`
`62. Manhattan Metro Wireless, Inc. has been at all relevant times an employer
`
`engaged in commerce or in the production of goods for commerce within the meaning of the
`
`FLSA.
`
`63.
`
`At all relevant times, Manhattan Metro Wireless, Inc. has had an annual gross
`
`volume of sales in excess of $500,000 within the meaning of the FLSA.
`
`64. Manhattan Metro Wireless, Inc.’s employees, including plaintiffs, handle and sell
`
`goods that have been moved in, or produced for, commerce within the meaning of the FLSA.
`
`
`
`7
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 8 of 21
`
`
`
`65. Manhattan Metro Wireless, Inc. is an employer within the meaning of the FLSA.
`
`66. Manhattan Metro Wireless, Inc. is an employer within the meaning of the NYLL.
`
`67.
`
`Defendant Elliot Dabah (“Dabah”) is the sole owner of Metro.
`
`68.
`
`Dabah is an owner of Metro.
`
`69.
`
`Dabah is an officer of Metro.
`
`70.
`
`Dabah is a manager of Metro.
`
`71.
`
`Dabah is sued individually in his capacity as an owner, officer and/or manager of
`
`Metro.
`
`72.
`
`At all relevant times, Dabah has been plaintiffs’ employer under the FLSA and
`
`NYLL because he exercised sufficient managerial and operational control and policy-making
`
`authority over Metro’ operations and established the sales person’s terms and conditions of
`
`employment.
`
`73.
`
`Dabah has, and had, the power to, and did, hire and fire employees, establish and
`
`implement pay practices, work assignments, scheduling, control labor relations and personnel
`
`policies and practices, determine wages, and maintain time and payroll records.
`
`74.
`
`As an owner, officer and/or manager of Metro, Dabah acted directly or indirectly
`
`in the interest of Metro in relation to an employee.
`
`75.
`
`Dabah is personally and jointly and severally liable for the violations of the FLSA
`
`and NYLL by Metro.
`
`76.
`
`Dabah is the registered agent for service of process for the defendants.
`
`Single Employer Allegations
`
`
`77.
`
`The Metro defendants, Washington Heights Wireless, Inc., Fordham Wireless
`
`Plaza, Inc., East Side Wireless Plaza Inc., STP Rockaway, Inc., Bronx Metro Wireless, Inc., and
`
`
`
`8
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 9 of 21
`
`
`
`Manhattan Metro Wireless, Inc. have common ownership, unified operation and/or control, and
`
`are related and have common business purpose and constitute an enterprise within the meaning
`
`of the FLSA and NYLL.
`
`78.
`
`The Metro defendants constitute a single employer within the meaning of the
`
`FLSA and NYLL, because they have an interrelation of operations, centralized control of labor
`
`relations, common management, and common ownership or financial control.
`
`(1) With regard to interrelation of operations, the following facts support this
`
`allegation:
`
`79.
`
`The Metro defendants have and had common employees, who worked as
`
`salespersons at more than one of the Metro store locations.
`
`80.
`
`For example, plaintiff Jonathan Bencosme, worked at the Fordham Wireless Plaza
`
`store in 2009, was moved to the Bronx Metro Wireless store in 2011, and went back to the
`
`Fordham Wireless Plaza store in 2012. In 2019, he was moved to a third location, the Manhattan
`
`Metro Wireless store.
`
`81.
`
`82.
`
`The Metro defendants have common management, among others, Elliot Dabah.
`
`The Metro defendants share the same suppliers and support staff.
`
`(2) With regard to centralized control of their labor relations, the following facts
`
`support this allegation:
`
`83.
`
`The Metro defendants have common management, who set the same terms and
`
`conditions of employment and labor relations policies and procedures for their employees.
`
`84.
`
`85.
`
`The Metro defendants have the same owner, Elliot Dabah.
`
`Dabah and his agents regularly visit each store to oversee operations.
`
`
`
`9
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 10 of 21
`
`
`
`86.
`
`Dabah hires, fires, disciplines, sets schedules, assigns work, determines employee
`
`pay and maintains payroll records for employees at the Metro defendants’ stores.
`
`87.
`
`The Metro defendants use the same method to pay employees. Namely, the Metro
`
`defendants pay each employee with a check and cash.
`
`88.
`
`The Metro defendants paid plaintiffs with a check each week and with an
`
`additional payment for commission at the end of each month.
`
`(3) With regard to common management, the following facts support this allegation:
`
`89.
`
`The Metro defendants have common management, among others, Elliot Dabah.
`
`(4) With regard to common ownership and financial control, the following facts support
`
`this allegation:
`
`90.
`
`91.
`
`92.
`
`Dabah serves as the owner and manager of the Metro defendants.
`
`Dabah is an owner of the Metro defendant stores.
`
`Dabah utilizes the same accountant to prepare the books and records, financial
`
`statements and tax returns for the Metro defendant stores.
`
`FACTUAL ALLEGATIONS
`
`93.
`
`T-Mobile provides wireless voice, messaging and data services in the United
`
`States. In 2013, T-Mobile merged with MetroPCS Communications, Inc. and branded itself as
`
`MetroPCS which focuses on consumers interested in lower-priced service without the
`
`requirement of a long-term contract like Verizon or AT&T. In 2018, the brand name was
`
`changed to Metro by T-Mobile.
`
`94. MetroPCS New York, LLC is a subsidiary of T-Mobile that manages and
`
`contracts with entities that operate Metro stores in New York City, including those of defendants.
`
`
`
`10
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 11 of 21
`
`
`
`95.
`
`Throughout their employment, plaintiffs’ primary duty was to sell cell phones,
`
`accessories and monthly cell phone plans.
`
`96.
`
`Throughout their employment plaintiffs spent more than fifty percent of their time
`
`at work selling cell phones, accessories and monthly cell phone plans.
`
`97.
`
`98.
`
`At all relevant times, Metro has been open for business seven days a week.
`
`Before 2018, defendants did not record the times plaintiffs began and ended work.
`
`Beginning in 2018, defendants recorded the times each plaintiff arrived at work, but did not have
`
`employees record the times they left work.
`
`99.
`
`At all relevant times, plaintiffs consistently worked over 40 hours a week,
`
`typically between 50 and 60 hours per week.
`
`100. Throughout plaintiffs’ employment, they regularly worked six days a week from
`
`when the store opened at 10:00 a.m. until after the store closed at 7:30 p.m. and oftentimes
`
`stayed later to finish a sale and close up the store.
`
`101. Plaintiffs did not receive a lunch break and instead took a few minutes to eat
`
`lunch when they had the opportunity.
`
`102. Plaintiffs were not told by defendants what they were paid per hour, but were
`
`regularly paid less than the applicable state and federal minimum wage.
`
`103. Plaintiffs received weekly paychecks and were paid a monthly commission which
`
`was paid in cash.
`
`104. Plaintiffs monthly commission depended on how many cell phone plans and
`
`accessories they sold.
`
`
`
`11
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 12 of 21
`
`
`
`105. Based on the hours each plaintiff worked each week, the weekly pay they
`
`received without commission did not provide employees with the minimum wage due by the
`
`FLSA.
`
`106. Based on the hours each plaintiff worked each week, the weekly pay they
`
`received without commission did not provide employees with the minimum wage due by the
`
`NYLL.
`
`107. Based on the hours each plaintiff worked each week, plaintiffs did not receive the
`
`minimum wage even with the addition from the monthly commission payments.
`
`108. Plaintiffs were entitled to be paid state and federal minimum wage.
`
`109. Plaintiffs were entitled to be paid at a rate of one-and-one-half (1 ½) times their
`
`hourly rate for rate for hours worked in excess of 40 per workweek.
`
`110. Defendants failed to pay plaintiffs at the rate of one-and-one-half (1 ½) times their
`
`hourly rate for rate for hours worked in excess of 40 per workweek.
`
`111. Plaintiffs were not exempt from overtime pay pursuant to the FLSA.
`
`112. Plaintiffs were not exempt from overtime pay pursuant to the NYLL.
`
`113. Defendants did not pay plaintiffs New York minimum wage of $15.00 per hour,
`
`or New York overtime rate of $22.50 per hour during 2019. For example, for the pay period of
`
`April 29, 2019 through May 5, 2019, plaintiffs were not paid at state or federal minimum wage
`
`rate, nor were plaintiffs paid at time and one-half their hourly rate for hours worked in excess of
`
`40 per workweek.
`
`114. During 2015, 2016, 2017, 2018, 2019 and 2020, the check pay stubs of the
`
`plaintiffs for most pay periods listed fewer hours than the plaintiffs actually worked that week.
`
`
`
`12
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 13 of 21
`
`
`
`115. For example, Yael Almonte, Nestor Batista, Jonathan Bencosme, Victor Marte
`
`and Morcos Ortiz all worked more than 40 hours during the week of April 29, 2019, as sales
`
`persons in the store.
`
`116. Yael Almonte was scheduled to work and worked 60 hours during the week of
`
`April 29, 2019, through May 5, 2019, as a salesperson.
`
`117. Yael Almonte’s Employee pay stub issued by defendants listed his total hours
`
`worked for the week of April 29, 2019, through May 5, 2019, as 21.33.
`
`118. Yael Almonte’s pay stub did not list his hourly rate.
`
`119. Defendants paid Yael Almonte, in cash, a total of $516.93 for the week of April
`
`29, 2019 through May 5, 2019.
`
`120. Yael Almonte’s regular hourly rate should have been at least the New York
`
`minimum wage, which was $15.00 for the week of April 29, 2019 through May 5, 2019.
`
`121. Thus, that week, defendants owed Yael Almonte $600.00 in base pay and $450.00
`
`in overtime pay for a total of $1050.00 but he was only paid $516.93 that week.
`
`122. Most, if not all, of the pay stubs issued to Yael Almonte listed his total hours
`
`worked per week as between 22 hours and 32 hours.
`
`123. Yael Almonte worked between 50 and 60 hours every workweek.
`
`124. By way of example, Jonathan Bencosme worked 60 hours during the week of
`
`May 6, 2019, through May 12, 2019. However, Jonathan Bencosme’s employee pay stub falsely
`
`states that he worked 32 hours at a rate of $15.00 per hour.
`
`125. Defendants did not pay plaintiffs state minimum wage of $13.50 per hour, or state
`
`overtime rate of $19.50 per hour during 2018. For example, for the pay period of May 21, 2018,
`
`through May 27, 2018, plaintiffs were not paid at state or federal minimum wage rate, nor were
`
`
`
`13
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 14 of 21
`
`
`
`plaintiffs paid at time and one-half their hourly rate for hours worked in excess of 40 per
`
`workweek.
`
`126. Even when accounting for Jonathan Bencosme’s commission amounts, the
`
`amount he was paid still does not amount to his minimum wage or overtime that he was owed.
`
`127. By way of example, Yael Almonte worked approximately 60 hours during the
`
`week of May 21 2018 through May 27, 2018. However, Yael Almonte’s employee pay stub
`
`falsely states that he worked 36.93 hours at a rate of $13.00 per hour.
`
`128. Defendants did not pay plaintiffs state minimum wage of $12.00 per hour, or state
`
`overtime rate of $18.00 per hour during 2017. For example, for the pay period of December 25,
`
`2017 through December 31, 2017, employed plaintiffs were not paid at state or federal minimum
`
`wage rate, nor were plaintiffs paid at time and one-half their hourly rate for hours worked in
`
`excess of 40 per workweek.
`
`129. By way of example, Marcos Ortiz typically worked 55 to 60 hours per week in
`
`2017. However, for instance, Marcos Ortiz’s employee pay stub for the pay period of December
`
`25, 2017 through December 31, 2017, does not specify an hourly rate or a number of hours, it
`
`only contains a total gross payment in the amount of $325.00.
`
`130. Defendants did not pay plaintiffs state minimum wage of $10.50 per hour, or state
`
`overtime rate of $15.75 per hour during 2016. For example, for the pay period of May 11, 2016,
`
`through May 17, 2016, plaintiffs were not paid at state or federal minimum wage rate, nor were
`
`plaintiffs paid at time and one-half their hourly rate for hours worked in excess of 40 per
`
`workweek.
`
`131. By way of example, Noel Quezada typically worked 55 to 60 hours per week in
`
`2016. Noel Quezada’s 2016 employee pay stub for the pay period of May 11, 2016 through May
`
`
`
`14
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 15 of 21
`
`
`
`17, 2016, does not specify an hourly rate or a number of hours. It only contains a total gross
`
`payment in the amount of $450.00.
`
`132. By way of example, in 2016, 2017, 2018, and 2019, plaintiffs often worked
`
`between 50 to 60 hours a week and was often given a paycheck of $300.00 to $400.00 for that
`
`entire week’s work.
`
`133. Defendants failed to post, in a conspicuous place, pursuant to FLSA, 29 U.S.C. §
`
`207, et seq. and 29 U.S.C. § 516 et. seq., a “Fair Labor Standards Act Poster (Minimum Wage
`
`Poster),” setting forth the federal minimum wage and overtime requirements, in English and in
`
`Spanish.
`
`134. Defendants failed to post, in a conspicuous place, pursuant to New York Labor
`
`Law § 190, et seq., and 12 NYCRR 142-2.8 a “New York Labor Law (Minimum Wage Poster),”
`
`setting forth the state minimum wage and overtime requirements in English and in Spanish.
`
`135. At all relevant times, defendants willfully disregarded and purposely evaded
`
`record-keeping requirements by neglecting to maintain accurate and complete time records and
`
`payroll records.
`
`136. At all relevant times, defendants provided some plaintiffs with pay stubs which
`
`contained false hours worked per week.
`
`137. The foregoing practices by defendants were done willfully to disguise the actual
`
`number of hours plaintiffs worked and to avoid paying plaintiffs properly for all hours worked
`
`and for overtime pay due.
`
`138. At all relevant times, defendants failed to pay plaintiffs federal minimum wage in
`
`each and every weekly pay period they worked at Metro.
`
`
`
`15
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 16 of 21
`
`
`
`139. At all relevant times, defendants failed to pay plaintiffs New York minimum
`
`wage in each and every weekly pay period they worked at Metro.
`
`COUNT I
`(Fair Labor Standards Act - Minimum Wage)
`
`140. Plaintiffs repeat and reallege all foregoing paragraphs as if fully set forth herein.
`
`141. Defendants were required to pay plaintiffs federal minimum wage for all hours of
`
`worked.
`
`142. Defendants have failed to pay plaintiffs the federal minimum hourly wages to
`
`which they are entitled under the FLSA.
`
`143. Defendants were aware or should have been aware that the practices described in
`
`this Complaint were unlawful and defendants have not made a good faith effort to comply with
`
`the FLSA with respect to the compensation of plaintiffs.
`
`144. Defendants’ violations of the FLSA have been willful and, therefore, a three-year
`
`statute of limitations applies pursuant to the FLSA, 29 U.S.C. § 255(a).
`
`145. As a result of defendants’ willful violations of the FLSA, plaintiffs have suffered
`
`damages by being denied minimum wage in accordance with the FLSA and are entitled to
`
`recovery of such amounts, liquidated damages, pre-judgment and post-judgment interest,
`
`attorneys’ fees and costs, and other compensation pursuant to 29 U.S.C. § 216(b).
`
`
`COUNT II
`(New York Labor Law – Unpaid Minimum Wage)
`
`
`146. Plaintiffs repeat and reallege all foregoing paragraphs as if fully set forth herein.
`
`147. Defendants were required to pay plaintiffs New York minimum wage for all hours
`
`worked.
`
`
`
`16
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 17 of 21
`
`
`
`148. Defendants failed to pay plaintiffs the minimum hourly wages to which they are
`
`entitled under the NYLL.
`
`149. Defendants have willfully violated the NYLL by knowingly and intentionally
`
`failing to pay plaintiffs minimum hourly wages.
`
`150. As a result of defendants’ violations of the NYLL, plaintiffs are entitled to
`
`recover their unpaid wages, reasonable attorneys’ fees and costs of the action, and pre-judgment
`
`and post-judgment interest.
`
`COUNT III
`(Fair Labor Standards Act - Unpaid Overtime)
`
`151. Plaintiffs repeat and reallege all foregoing paragraphs as if fully set forth herein.
`
`152. Defendants are required to pay plaintiffs one-and-one-half (1½) times the regular
`
`rate of pay for all hours they worked in excess of 40 in a workweek pursuant to the overtime
`
`wage provisions of the FLSA, 29 U.S.C. § 207, et seq.
`
`153. Defendants have failed to pay plaintiffs the overtime wages to which they are
`
`entitled under the FLSA, even though plaintiffs have regularly worked more than 40 hours per
`
`workweek.
`
`154. Defendants were aware or should have been aware that the practices described in
`
`this Complaint were unlawful and have not made a good faith effort to comply with the FLSA
`
`with respect to the compensation of plaintiffs.
`
`155. Defendants’ violations of the FLSA have been willful and, therefore, a three-year
`
`statute of limitations applies pursuant to the FLSA, 29 U.S.C. § 255(a).
`
`156. As a result of defendants’ willful violations of the FLSA, plaintiffs have suffered
`
`damages by being denied overtime pay in accordance with the FLSA and are entitled to recovery
`
`
`
`17
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 18 of 21
`
`
`
`of such amounts, liquidated damages, pre- and post-judgment interest, attorneys’ fees and costs,
`
`and other compensation pursuant to 29 U.S.C. § 216(b).
`
`COUNT IV
`(New York Wage and Hour Law - Unpaid Overtime)
`
`157. Plaintiffs repeat and reallege all foregoing paragraphs as if fully set forth herein.
`
`158. Under the NYLL, defendants are required to pay plaintiffs one-and-one-half (1 ½)
`
`times the regular rate of pay for all hours they worked in excess of 40 hours in a workweek.
`
`159. Plaintiffs have regularly worked more than 40 hours per week.
`
`160. Defendants have failed to pay plaintiffs the overtime wages to which they are
`
`entitled under the NYLL.
`
`161. Defendants were aware or should have been aware that the practices described in
`
`this Claim were unlawful and have not made a good faith effort to comply with the NYLL with
`
`respect to the compensation of plaintiffs.
`
`162. Defendants have willfully violated the NYLL by knowingly and intentionally
`
`failing to pay plaintiffs overtime wages.
`
`163. Due to defendants’ willful violations of the NYLL, plaintiffs are entitled to
`
`recover their unpaid overtime wages, reasonable attorneys’ fees and costs of the action, and pre-
`
`and post-judgment interest.
`
`COUNT V
`(New York Labor Law – Wage Theft Prevention Act)
`Violation of Notice Requirements
`
`164. Plaintiffs repeat and reallege all foregoing paragraphs as if fully set forth herein.
`
`165. Defendants violated NYLL § 195(1) by failing to furnish plaintiffs and the other
`
`non-exempt employees, at the time of hiring, with a notice in English and in the language
`
`identified by each employee as the primary language of such employee, containing the rate or
`
`
`
`18
`
`

`

`Case 1:20-cv-08848-PGG Document 1 Filed 10/22/20 Page 19 of 21
`
`
`
`rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece,
`
`commission, or other; allowances, if any, claimed as part of the minimum wage, including tip,
`
`meal, or lodging allowances; the regular pay day designated by the employer in accordance with
`
`NYLL § 191; the name of the employer; any “doing business as” names used by the employer;
`
`the physical address of the employer’s main office or principal place of business, and a mailing
`
`address if different; the telephone number of the employer, and anything otherwise required by
`
`law.
`
`166. Due to defendants’ violation of NYLL § 195(1), plaintiffs are entitled to recover
`
`from defendants liquidated damages of $50.00 per work day that the violation occurred, up to a
`
`maximum of $5,000, reasonable attorneys’ fees, and costs and disbursements of the action,
`
`pursuant to the NYLL § 198(1-b).
`
`
`
`COUNT VI
`(New York Labor Law – Wage Theft Prevention Act)
`Violation of Wage Statement Requirements
`
`167. Plaintiffs repeat and reallege all foregoing paragraphs as if fully set forth herein.
`
`168. Defendants violated NYLL § 195(3) by failing to furnish plaintiffs with each
`
`payment of wages an accurate statement listing: the dates of work covered by that payment of
`
`wages; name of employee; name of employer; address and phone number of employer; rate or
`
`rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece,
`
`commission, or other; the regular hourly rate or rates of pay; the overtime rate or rates of pay; the
`
`number of regular hours worked, and the number of overtime hours worked; gross wages;
`
`deductions; allowances, if any, claimed as part of the minimum wage;

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket