Case 1:21-cv-00970-VSB Document 1 Filed 02/03/21 Page 1 of 28
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`COMPLAINT
`
`
`COLLECTIVE ACTION UNDER
`29 U.S.C. § 216(b)
`
`ECF Case
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`MICHAEL FAILLACE & ASSOCIATES, P.C.
`60 East 42nd Street, Suite 4510
`New York, New York 10165
`Telephone: (212) 317-1200
`Facsimile: (212) 317-1620
`Attorneys for Plaintiffs
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------------------------X
`ARMANDO FRANCISCO FLORES, NOE
`ESCAMILLA VILLANO, and MARIO
`CLEMENTE, individually and on behalf of
`others similarly situated,
`
`
`
`
`
`
`
`CHOWBUS INC. (D/B/A CHOWBUS),
`FANTUAN GROUP, INC. (D/B/A
`CHOWBUS), CHOWBUS GROCERY LLC
`(D/B/A CHOWBUS), CHEN PU, EDDIE
`LOU, and LINXIN WEN,
`
`
`
`
`
`Defendants.
`-------------------------------------------------------X
`
`-against-
`
`
`
`Plaintiffs Armando Francisco Flores, Noe Escamilla Villano, and Mario Clemente ,
`
`individually and on behalf of others similarly situated (collectively, “Plaintiffs”), by and through
`
`their attorneys, Michael Faillace & Associates, P.C., upon their knowledge and belief, and as
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`against Chowbus Inc. (d/b/a Chowbus), Fantuan Group, Inc. (d/b/a Chowbus), Chowbus Grocery
`
`LLC (d/b/a Chowbus), (“Defendant Corporations”), Chen Pu, Eddie Lou, and Linxin Wen,
`
`(“Individual Defendants”), (collectively, “Defendants”), allege as follows:
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`

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`Case 1:21-cv-00970-VSB Document 1 Filed 02/03/21 Page 2 of 28
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`NATURE OF ACTION
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`1.
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`Plaintiffs are former employees of Defendants Chowbus Inc. (d/b/a Chowbus),
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`Fantuan Group, Inc. (d/b/a Chowbus), Chowbus Grocery LLC (d/b/a Chowbus), Chen Pu, Eddie
`
`Lou, and Linxin Wen.
`
`2.
`
` Defendants own, operate, or control a food service delivery application, located at
`
`55 E Jackson Blvd., Ste. 450, Chicago, IL 60604 under the name “Chowbus.”
`
`3.
`
`Upon information and belief, individual Defendants Chen Pu, Eddie Lou, and Linxin
`
`Wen, serve or served as owners, managers, principals, or agents of Defendant Corporations and,
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`through these corporate entities, operate or operated a delivery application as a joint or unified
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`enterprise.
`
`4.
`
`Plaintiffs were employed as delivery workers at a delivery application located at 55
`
`E Jackson Blvd., Ste. 450, Chicago, IL 60604.
`
`5.
`
`At all times relevant to this Complaint, Plaintiffs worked for Defendants in excess of
`
`40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation
`
`for the hours that they worked.
`
`6.
`
`Rather, Defendants failed to maintain accurate recordkeeping of the hours worked
`
`and failed to pay Plaintiffs appropriately for any hours worked, either at the straight rate of pay or
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`for any additional overtime premium.
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`7.
`
`Further, Defendants failed to pay Plaintiffs the required “spread of hours” pay for any
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`day in which they had to work over 10 hours a day.
`
`8.
`
`9.
`
`Furthermore, Defendants repeatedly failed to pay Plaintiffs wages on a timely basis.
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`In addition, Defendants maintained a policy and practice of unlawfully appropriating
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`Plaintiffs’ and other tipped employees’ tips and made unlawful deductions from these Plaintiffs’ and
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`Case 1:21-cv-00970-VSB Document 1 Filed 02/03/21 Page 3 of 28
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`other tipped employees’ wages.
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`10.
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`Defendants’ conduct extended beyond Plaintiffs to all other similarly situated
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`employees.
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`11.
`
`At all times relevant to this Complaint, Defendants maintained a policy and practice
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`of requiring Plaintiffs and other employees to work in excess of forty (40) hours per week without
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`providing the minimum wage and overtime compensation required by federal and state law and
`
`regulations.
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`12.
`
`Plaintiffs now bring this action on behalf of themselves, and other similarly situated
`
`individuals, for unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of
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`1938, 29 U.S.C. § 201 et seq. (“FLSA”), and for violations of the N.Y. Labor Law §§ 190 et seq.
`
`and 650 et seq. (the “NYLL”), and the “spread of hours” and overtime wage orders of the New York
`
`Commissioner of Labor codified at N.Y. COMP. CODES R. & REGS. tit. 12, § 146-1.6 (herein the
`
`“Spread of Hours Wage Order”), including applicable liquidated damages, interest, attorneys’ fees
`
`and costs.
`
`13.
`
`Plaintiffs seek certification of this action as a collective action on behalf of
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`themselves, individually, and all other similarly situated employees and former employees of
`
`Defendants pursuant to 29 U.S.C. § 216(b).
`
`JURISDICTION AND VENUE
`
`14.
`
`This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question)
`
`and the FLSA, and supplemental jurisdiction over Plaintiffs’ state law claims under 28 U.S.C. §
`
`1367(a).
`
`15.
`
` Venue is proper in this district under 28 U.S.C. § 1391(b) and (c) because all, or a
`
`substantial portion of, the events or omissions giving rise to the claims occurred in this district,
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`Case 1:21-cv-00970-VSB Document 1 Filed 02/03/21 Page 4 of 28
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`Defendants maintain their corporate headquarters and offices within this district, and Defendants
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`operate a food service delivery application located in this district. Further, Plaintiffs were employed
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`by Defendants in this district.
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`PARTIES
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`Plaintiffs
`
`16.
`
`Plaintiff Armando Francisco Flores (“Plaintiff Flores” or “Mr. Flores”) is an adult
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`individual residing in Bronx County, New York.
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`17.
`
`Plaintiff Flores was employed by Defendants at Chowbus from approximately
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`March 2020 until on or about October 2020.
`
`18.
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`Plaintiff Noe Escamilla Villano (“Plaintiff Escamilla” or “Mr. Escamilla”) is an
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`adult individual residing in Bronx County, New York.
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`19.
`
`Plaintiff Escamilla was employed by Defendants at Chowbus from approximately
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`February 26, 2020 until on or about June 27, 2020.
`
`20.
`
`Plaintiff Mario Clemente (“Plaintiff Clemente” or “Mr. Clemente”) is an adult
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`individual residing in New York County, New York.
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`21.
`
`Plaintiff Clemente was employed by Defendants at Chowbus from approximately
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`May 15, 2020 until on or about September 21, 2020.
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`Defendants
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`22.
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`At all relevant times, Defendants owned, operated or controlled food service delivery
`
`application, located at 55 E Jackson Blvd., Ste. 450, Chicago, IL 60604 under the name “Chowbus.”
`
`23.
`
`Upon information and belief, Chowbus Inc. (d/b/a Chowbus) is a domestic
`
`corporation organized and existing under the laws of the State of New York. Upon information and
`
`belief, it maintains its principal place of business at 55 E Jackson Blvd., Ste. 450, Chicago, IL 60604.
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`Case 1:21-cv-00970-VSB Document 1 Filed 02/03/21 Page 5 of 28
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`24.
`
`Upon information and belief, Fantuan Group, Inc. (d/b/a Chowbus) is a domestic
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`corporation organized and existing under the laws of the State of New York. Upon information and
`
`belief, it maintains its principal place of business at 55 E Jackson Blvd., Ste. 450, Chicago, IL 60604.
`
`25.
`
`Upon information and belief, Chowbus Grocery LLC (d/b/a Chowbus) is a domestic
`
`corporation organized and existing under the laws of the State of New York. Upon information and
`
`belief, it maintains its principal place of business at 55 E Jackson Blvd., Ste. 450, Chicago, IL 60604.
`
`26.
`
`Defendant Chen Pu is an individual engaging (or who was engaged) in business in
`
`this judicial district during the relevant time period. Defendant Chen Pu is sued individually in his
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`capacity as owner, officer and/or agent of Defendant Corporations. Defendant Chen Pu possesses
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`operational control over Defendant Corporations, an ownership interest in Defendant Corporations,
`
`and controls significant functions of Defendant Corporations. He determines the wages and
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`compensation of the employees of Defendants, including Plaintiffs, establishes the schedules of the
`
`employees, maintains employee records, and has the authority to hire and fire employees.
`
`27.
`
`Defendant Eddie Lou is an individual engaging (or who was engaged) in business in
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`this judicial district during the relevant time period. Defendant Eddie Lou is sued individually in his
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`capacity as owner, officer and/or agent of Defendant Corporations. Defendant Eddie Lou possesses
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`operational control over Defendant Corporations, an ownership interest in Defendant Corporations,
`
`and controls significant functions of Defendant Corporations. He determines the wages and
`
`compensation of the employees of Defendants, including Plaintiffs, establishes the schedules of the
`
`employees, maintains employee records, and has the authority to hire and fire employees.
`
`28.
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`Defendant Linxin Wen is an individual engaging (or who was engaged) in business
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`in this judicial district during the relevant time period. Defendant Linxin Wen is sued individually
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`in his capacity as owner, officer and/or agent of Defendant Corporations. Defendant Linxin Wen
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`Case 1:21-cv-00970-VSB Document 1 Filed 02/03/21 Page 6 of 28
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`possesses operational control over Defendant Corporations, an ownership interest in Defendant
`
`Corporations, and controls significant functions of Defendant Corporations. He determines the
`
`wages and compensation of the employees of Defendants, including Plaintiffs, establishes the
`
`schedules of the employees, maintains employee records, and has the authority to hire and fire
`
`employees.
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`FACTUAL ALLEGATIONS
`
`Defendants Constitute Joint Employers
`
`29.
`
`Defendants operate a food service delivery application in New York City with its
`
`corporate headquarters located at 55 E Jackson Blvd., Ste. 450, Chicago, IL 60604.
`
`30.
`
`Individual Defendants, Chen Pu, Eddie Lou, and Linxin Wen, possess operational
`
`control over Defendant Corporations, possess ownership interests in Defendant Corporations, and
`
`control significant functions of Defendant Corporations.
`
`31.
`
`Defendants are associated and joint employers, act in the interest of each other with
`
`respect to employees, pay employees by the same method, and share control over the employees.
`
`32.
`
`Each Defendant possessed substantial control over Plaintiffs’ (and other similarly
`
`situated employees’) working conditions, and over the policies and practices with respect to the
`
`employment and compensation of Plaintiffs, and all similarly situated individuals, referred to herein.
`
`33.
`
`Defendants jointly employed Plaintiffs (and all similarly situated employees) and are
`
`Plaintiffs’ (and all similarly situated employees’) employers within the meaning of 29 U.S.C. 201 et
`
`seq. and the NYLL.
`
`34.
`
`In the alternative, Defendants constitute a single employer of Plaintiffs and/or
`
`similarly situated individuals.
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`Case 1:21-cv-00970-VSB Document 1 Filed 02/03/21 Page 7 of 28
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`35.
`
`Upon information and belief, Individual Defendants Chen Pu, Eddie Lou, and Linxin
`
`Wen operate Defendant Corporations as either alter egos of themselves and/or fail to operate
`
`Defendant Corporations as entities legally separate and apart from themselves, by among other
`
`things:
`
`a) failing to adhere to the corporate formalities necessary to operate Defendant
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`Corporations as Corporations,
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`b) defectively forming or maintaining
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`the corporate entities of Defendant
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`Corporations, by, amongst other things, failing to hold annual meetings or
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`maintaining appropriate corporate records,
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`c) transferring assets and debts freely as between all Defendants,
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`d) operating Defendant Corporations for their own benefit as the sole or majority
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`shareholders,
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`e) operating Defendant Corporations for their own benefit and maintaining control
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`over these corporations as closed Corporations,
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`f) intermingling assets and debts of their own with Defendant Corporations,
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`g) diminishing and/or transferring assets of Defendant Corporations to avoid full
`
`liability as necessary to protect their own interests, and
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`h) Other actions evincing a failure to adhere to the corporate form.
`
`36.
`
`At all relevant times, Defendants were Plaintiffs’ employers within the meaning of
`
`the FLSA and New York Labor Law. Defendants had the power to hire and fire Plaintiffs, have
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`controlled the terms and conditions of employment, and have determined the rate and method of any
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`compensation in exchange for Plaintiffs’ services.
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`Case 1:21-cv-00970-VSB Document 1 Filed 02/03/21 Page 8 of 28
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`37.
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`During 2020, Defendants had, both separately and jointly, had a gross annual volume
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`of sales of not less than $500,000 (exclusive of excise taxes at the retail level that are separately
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`stated).
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`38.
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`In addition, upon information and belief, Defendants and/or their enterprise were
`
`directly engaged in interstate commerce. As an example, numerous items that are used in a delivery
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`application on a daily basis are goods produced outside of the State of New York.
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`Individual Plaintiffs
`
`39.
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`Plaintiffs are former employees of Defendants who were employed as delivery
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`workers.
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`40.
`
`Plaintiffs seek to represent a class of similarly situated individuals under 29 U.S.C.
`
`216(b).
`
`Plaintiff Armando Francisco Flores
`
`41.
`
`Plaintiff Flores was employed by Defendants from approximately March 2020 until
`
`on or about October 2020.
`
`42.
`
`43.
`
`Defendants employed Plaintiff Flores as a delivery worker.
`
`Plaintiff Flores regularly handled goods in interstate commerce, such as a delivery
`
`application and other supplies produced outside the State of New York.
`
`44.
`
`45.
`
`Plaintiff Flores’s work duties required neither discretion nor independent judgment.
`
`Throughout his employment with Defendants, Plaintiff Flores regularly worked in
`
`excess of 40 hours per week.
`
`46.
`
`From approximately March 2020 until on or about October 2020, Plaintiff Flores
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`worked from approximately 11:00 a.m. until on or about 10:00 p.m., 6 days a week (typically 66
`
`hours per week).
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`Case 1:21-cv-00970-VSB Document 1 Filed 02/03/21 Page 9 of 28
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`47.
`
`Throughout his employment, Defendants paid Plaintiff Flores his wages by direct
`
`deposit.
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`48.
`
`From approximately March 2020 until on or about August 2020, Defendants paid
`
`Plaintiff Flores a fixed salary of $150 per day.
`
`49.
`
`From approximately September 2020 until on or about October 2020, Defendants
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`paid Plaintiff Flores a fixed salary of $135 per day.
`
`50.
`
`Plaintiff Flores’s pay did not vary even when he was required to stay later or work a
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`longer day than his usual schedule.
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`51.
`
`For example, Defendants required Plaintiff Flores to continue working an additional
`
`30 minutes past his scheduled departure time once or twice a month, and did not pay him for the
`
`additional time he worked.
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`52.
`
`Plaintiff Flores was never notified by Defendants that his tips were being included as
`
`an offset for wages.
`
`53.
`
`Defendants did not account for these tips in any daily or weekly accounting of
`
`Plaintiff Flores’s wages.
`
`54.
`
`55.
`
`Defendants withheld all of Plaintiff Flores's tips.
`
`Plaintiff Flores was not required to keep track of his time, nor to his knowledge, did
`
`the Defendants utilize any time tracking device such as punch cards, that accurately reflected his
`
`actual hours worked.
`
`56.
`
`Defendants took improper and illegal deductions from Plaintiff Flores’s wages;
`
`specifically, Defendants deducted half the value of any mistaken order from Plaintiff Flores's weekly
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`wages.
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`Case 1:21-cv-00970-VSB Document 1 Filed 02/03/21 Page 10 of 28
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`57.
`
`No notification, either in the form of posted notices or other means, was ever given
`
`to Plaintiff Flores regarding overtime and wages under the FLSA and NYLL.
`
`58.
`
`Defendants did not provide Plaintiff Flores an accurate statement of wages, as
`
`required by NYLL 195(3).
`
`59.
`
`Defendants did not give any notice to Plaintiff Flores, in English and in Spanish
`
`(Plaintiff Flores’s primary language), of his rate of pay, employer’s regular pay day, and such other
`
`information as required by NYLL §195(1).
`
`60.
`
`Defendants required Plaintiff Flores to purchase “tools of the trade” with his own
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`funds—including one electric bicycle.
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` Plaintiff Noe Escamilla Villano
`
`61.
`
`Plaintiff Escamilla was employed by Defendants from approximately February 26,
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`2020 until on or about June 27, 2020.
`
`62.
`
`63.
`
`Defendants employed Plaintiff Escamilla as a delivery worker.
`
`Plaintiff Escamilla regularly handled goods in interstate commerce, such as a delivery
`
`application and other supplies produced outside the State of New York.
`
`64.
`
`Plaintiff Escamilla’s work duties required neither discretion nor independent
`
`judgment.
`
`65.
`
`Throughout his employment with Defendants, Plaintiff Escamilla regularly worked
`
`in excess of 40 hours per week.
`
`66.
`
`From approximately February 26, 2020 until on or about March 25, 2020, Plaintiff
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`Escamilla worked from approximately 11:30 a.m. until on or about 10:00 p.m., 6 days a week
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`(typically 63 hours per week).
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`67.
`
`From approximately March 25, 2020 until June 2020, Plaintiff Escamilla worked
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`from approximately 11:30 a.m. until on or about 10:00 p.m., 3 to 4 days a week (typically 38 to 47.5
`
`hours per week).
`
`68.
`
`Throughout his employment, Defendants paid Plaintiff Escamilla his wages by direct
`
`deposit.
`
`69.
`
`From approximately February 26, 2020 until on or about May 2020, Defendants paid
`
`Plaintiff Escamilla a fixed salary of $150 per day.
`
`70.
`
`From approximately May 2020 until June 2020, Defendants paid Plaintiff Escamilla
`
`a fixed salary of $135 per day.
`
`71.
`
`Plaintiff Escamilla never was notified by Defendants that his tips were being included
`
`as an offset for wages.
`
`72.
`
`Defendants did not account for these tips in any daily or weekly accounting of
`
`Plaintiff Escamilla’s wages.
`
`73.
`
`74.
`
`Defendants withheld all of Plaintiff Escamilla's tips.
`
`Plaintiff Escamilla was not required to keep track of his time, nor to his knowledge,
`
`did the Defendants utilized any time tracking device such as punch cards, that accurately reflected
`
`his actual hours worked.
`
`75.
`
`Defendants took improper and illegal deductions from Plaintiff Escamilla’s wages;
`
`specifically, Defendants deducted $200.00 from Plaintiff Escamilla's weekly wages for mistakes
`
`made on orders and deducted $50.00 to $100.00 every week from Plaintiff Escamilla's weekly
`
`wages.
`
`76.
`
`No notification, either in the form of posted notices or other means, was ever given
`
`to Plaintiff Escamilla regarding overtime and wages under the FLSA and NYLL.
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`77.
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`Defendants never provided Plaintiff Escamilla an accurate statement of wages, as
`
`required by NYLL 195(3).
`
`78.
`
`Defendants never gave any notice to Plaintiff Escamilla, in English and in Spanish
`
`(Plaintiff Escamilla’s primary language), of his rate of pay, employer’s regular pay day, and such
`
`other information as required by NYLL §195(1).
`
`79.
`
`Defendants required Plaintiff Escamilla to purchase “tools of the trade” with his own
`
`funds—including one bicycle.
`
` Plaintiff Mario Clemente
`
`80.
`
`Plaintiff Clemente was employed by Defendants from approximately May 15, 2020
`
`until on or about September 21, 2020.
`
`81.
`
`82.
`
`Defendants employed Plaintiff Clemente as a delivery worker.
`
`Plaintiff Clemente regularly handled goods in interstate commerce, such as a delivery
`
`application and other supplies produced outside the State of New York.
`
`83.
`
`Plaintiff Clemente’s work duties required neither discretion nor independent
`
`judgment.
`
`84.
`
`Throughout his employment with Defendants, Plaintiff Clemente regularly worked
`
`in excess of 40 hours per week.
`
`85.
`
`From approximately May 15, 2020 until on or about September 21, 2020, Plaintiff
`
`Clemente worked from approximately 11:00 a.m. until on or about 10:00 p.m., 6 days a week
`
`(typically 66 hours per week).
`
`86.
`
`Throughout his employment, Defendants paid Plaintiff Clemente his wages by direct
`
`deposit.
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`87.
`
`From approximately May 15, 2020 until on or about September 21, 2020, Defendants
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`paid Plaintiff Clemente $15.00 per hour.
`
`88.
`
`Plaintiff Clemente was never notified by Defendants that his tips were being included
`
`as an offset for wages.
`
`89.
`
`Defendants did not account for these tips in any daily or weekly accounting of
`
`Plaintiff Clemente’s wages.
`
`90.
`
`Defendants withheld a portion of Plaintiff Clemente’s tips; specifically, Defendants
`
`withheld approximately $400 to $600 in tips.
`
`91.
`
`Plaintiff Clemente was not required to keep track of his time, nor to his knowledge,
`
`did the Defendants utilize any time tracking device such as punch cards, that accurately reflected his
`
`actual hours worked.
`
`92.
`
`Defendants took improper and illegal deductions from Plaintiff Clemente’s wages;
`
`specifically, Defendants deducted $100.00 from Plaintiff Clemente's weekly wages for mistakes
`
`made on orders.
`
`93.
`
`No notification, either in the form of posted notices or other means, was ever given
`
`to Plaintiff Clemente regarding overtime and wages under the FLSA and NYLL.
`
`94.
`
`Defendants did not provide Plaintiff Clemente an accurate statement of wages, as
`
`required by NYLL 195(3).
`
`95.
`
`Defendants did not give any notice to Plaintiff Clemente, in English and in Spanish
`
`(Plaintiff Clemente’s primary language), of his rate of pay, employer’s regular pay day, and such
`
`other information as required by NYLL §195(1).
`
`96.
`
`Defendants required Plaintiff Clemente to purchase “tools of the trade” with his own
`
`funds—including one bicycle, one bookbag and one raincoat.
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` Defendants’ General Employment Practices
`
`97.
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`At all times relevant to this Complaint, Defendants maintained a policy and practice
`
`of requiring Plaintiffs (and all similarly situated employees) to work in excess of 40 hours a week
`
`without paying them appropriate minimum wage, spread of hours pay, and overtime compensation
`
`as required by federal and state laws.
`
`98.
`
`Plaintiffs were victims of Defendants’ common policy and practices which violate
`
`their rights under the FLSA and New York Labor Law by, inter alia, not paying them the wages
`
`they were owed for the hours they worked.
`
`99.
`
`Defendants’ pay practices resulted in Plaintiffs not receiving payment for all their
`
`hours worked, and resulted in Plaintiffs’ effective rate of pay falling below the required minimum
`
`wage rate.
`
`100.
`
`Defendants habitually required Plaintiffs to work additional hours beyond their
`
`regular shifts but did not provide them with any additional compensation.
`
`101.
`
`Plaintiffs and all other tipped workers were paid at a rate that was below minimum
`
`wage by Defendants.
`
`102.
`
`In violation of federal and state law as codified above, Defendants classified these
`
`Plaintiffs and other tipped workers as tipped employees, and paid them at a rate that was below
`
`minimum wage when they should have classified them as non-tipped employees and paid them at
`
`the minimum wage rate.
`
`103.
`
`Defendants failed to inform Plaintiffs who received tips that Defendants intended to
`
`take a deduction against Plaintiffs’ earned wages for tip income, as required by the NYLL before
`
`any deduction may be taken.
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`104.
`
`Defendants failed to inform Plaintiffs who received tips, that their tips were being
`
`credited towards the payment of the minimum wage.
`
`105.
`
`Defendants failed to maintain a record of tips earned by Plaintiffs who worked as
`
`delivery workers for the tips they received.
`
`106.
`
`As part of its regular business practice, Defendants intentionally, willfully, and
`
`repeatedly harmed Plaintiffs who received tips, by engaging in a pattern, practice, and/or policy of
`
`violating the FLSA and the NYLL. This policy and pattern or practice included depriving delivery
`
`workers of a portion of the tips earned during the course of employment.
`
`107.
`
`Defendants unlawfully misappropriated charges purported to be gratuities received
`
`by tipped Plaintiffs, and other tipped employees, in violation of New York Labor Law § 196-d
`
`(2007).
`
`108.
`
`Under the FLSA and NYLL, in order to be eligible for a “tip credit,” employers of
`
`tipped employees must either allow employees to keep all the tips that they receive or forgo the tip
`
`credit and pay them the full hourly minimum wage.
`
`109.
`
`Defendants willfully disregarded and purposefully evaded
`
`recordkeeping
`
`requirements of the FLSA and NYLL by failing to maintain accurate and complete timesheets and
`
`payroll records.
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`110.
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`Defendants failed to post at the workplace, or otherwise provide to employees, the
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`required postings or notices to employees regarding the applicable wage and hour requirements of
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`the FLSA and NYLL.
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`111.
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`Upon information and belief, these practices by Defendants were done willfully to
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`disguise the actual number of hours Plaintiffs (and similarly situated individuals) worked, and to
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`avoid paying Plaintiffs properly for their full hours worked.
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`112.
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`Defendants engaged in their unlawful conduct pursuant to a corporate policy of
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`minimizing labor costs and denying employees compensation by knowingly violating the FLSA and
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`NYLL.
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`113.
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`Defendants’ unlawful conduct is intentional, willful, in bad faith, and caused
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`significant damages to Plaintiffs and other similarly situated former workers.
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`114.
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`Defendants failed to provide Plaintiffs and other employees with accurate wage
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`statements at the time of their payment of wages, containing: the dates of work covered by that
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`payment of wages; name of employee; name of employer; address and phone number of employer;
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`rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece,
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`commission, or other; gross wages; deductions; allowances, if any, claimed as part of the minimum
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`wage; net wages; the regular hourly rate or rates of pay; the overtime rate or rates of pay; the number
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`of regular hours worked; and the number of overtime hours worked, as required by NYLL §195(3).
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`115.
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`Defendants failed to provide Plaintiffs and other employees, at the time of hiring and
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`on or before February 1 of each subsequent year, a statement in English and the employees’ primary
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`language, containing: the rate or rates of pay and basis thereof, whether paid by the hour, shift, day,
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`week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage,
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`including tip, meal, or lodging allowances; the regular pay day designated by the employer; the name
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`of the employer; any “doing business as” names used by the employer; the physical address of the
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`employer's main office or principal place of business, and a mailing address if different; and the
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`telephone number of the employer, as required by New York Labor Law §195(1).
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`FLSA COLLECTIVE ACTION CLAIMS
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`116.
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`Plaintiffs bring their FLSA minimum wage, overtime compensation, and liquidated
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`damages claims as a collective action pursuant to FLSA Section 16(b), 29 U.S.C. § 216(b), on behalf
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`of all similarly situated persons (the “FLSA Class members”), i.e., persons who are or were
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`employed by Defendants or any of them, on or after the date that is three years before the filing of
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`the complaint in this case (the “FLSA Class Period”).
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`117.
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`At all relevant times, Plaintiffs and other members of the FLSA Class were similarly
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`situated in that they had substantially similar job requirements and pay provisions, and were subject
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`to Defendants’ common practices, policies, programs, procedures, protocols and plans including
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`willfully failing and refusing to pay them the required minimum wage, overtime pay at a one and
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`one-half their regular rates for work in excess of forty (40) hours per workweek under the FLSA,
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`and willfully failing to keep records under the FLSA.
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`118.
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`The claims of Plaintiffs stated herein are similar to those of the other employees.
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`FIRST CAUSE OF ACTION
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`VIOLATION OF THE MINIMUM WAGE PROVISIONS OF THE FLSA
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`119.
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`120.
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`Plaintiffs repeat and reallege all paragraphs above as though fully set forth herein.
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`At all times relevant to this action, Defendants were Plaintiffs’ employers within the
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`meaning of the Fair Labor Standards Act, 29 U.S.C. § 203(d). Defendants had the power to hire and
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`fire Plaintiffs (and the FLSA Class Members), controlled the terms and conditions of their
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`employment, and determined the rate and method of any compensation in exchange for their
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`employment.
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`121.
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`At all times relevant to this action, Defendants were engaged in commerce or in an
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`industry or activity affecting commerce.
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`122.
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`Defendants constitute an enterprise within the meaning of the Fair Labor Standards
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`Act, 29 U.S.C. § 203 (r-s).
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`123. Defendants failed to pay Plaintiffs (and the FLSA Class members) at the applicable
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`minimum hourly rate, in violation of 29 U.S.C. § 206(a).
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`124.
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`Defendants’ failure to pay Plaintiffs (and the FLSA Class members) at the applicable
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`minimum hourly rate is willful within the meaning of 29 U.S.C. § 255(a).
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`125.
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`Plaintiffs (and the FLSA Class members) were damaged in an amount to be
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`determined at trial.
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`SECOND CAUSE OF ACTION
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`VIOLATION OF THE OVERTIME PROVISIONS OF THE FLSA
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`126.
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`127.
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`Plaintiffs repeat and reallege all paragraphs above as though fully set forth herein.
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`Defendants, in violation of 29 U.S.C. § 207(a)(1), failed to pay Plaintiffs (and the
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`FLSA Class members) overtime compensation at a rate of one and one-half times the regular rate of
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`pay for each hour worked in excess of forty hours in a work week.
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`128.
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`Defendants’ failure to pay Plaintiffs (and the FLSA Class members), overtime
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`compensation was willful within the meaning of 29 U.S.C. § 255(a).
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`129.
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`Plaintiffs (and the FLSA Class members) were damaged in an amount to be
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`determined at trial.
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`THIRD CAUSE OF ACTION
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`VIOLATION OF THE NEW YORK MINIMUM WAGE ACT
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`130.
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`131.
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`Plaintiffs repeat and reallege all paragraphs above as though fully set forth herein.
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`At all times relevant to this action, Defendants were Plaintiffs’ employers within the
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`meaning of the N.Y. Lab. Law §§ 2 and 651. Defendants had the power to hire and fire Plaintiffs,
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`controlled the terms and conditions of their employment, and determined the rates and methods of
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`any compensation in exchange for their employment.
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`132.
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`Defendants, in violation of NYLL § 652(1) and the supporting regulations of the New
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`York State Department of Labor, paid Plaintiffs less than the minimum wage.
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`133.
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`Defendants’ failure to pay Plaintiffs the minimum wage is willful within the meaning
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`of N.Y. Lab. Law § 663.
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`134.
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`Plaintiffs were damaged in an amount to be determined at trial.
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`FOURTH CAUSE OF ACTION
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`VIOLATION OF THE OVERTIME PROVISIONS
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`OF THE NEW YORK STATE LABOR LAW
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`135.
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`136.
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`Plaintiffs repeat and reallege all paragraphs above as though fully set forth herein.
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`Defendants, in violation of N.Y. Lab. Law § 190 et seq., and supporting regulations
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`of the New York State Department of Labor, failed to pay Plaintiffs overtime compensation at rates
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`of one and one-half times the regular rate of pay for each hour worked in excess of forty hours in a
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`work week.
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`137.
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`Defendants’ failure to pay Plaintiffs overtime compensation is willful within the
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`meaning of N.Y. Lab. Law § 663.
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`138.
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`Plaintiffs were damaged in an amount to be determined at trial.
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`FIFTH CAUSE OF ACTION
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`VIOLATION OF THE SPREAD OF HOURS WAGE ORDER
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`OF THE NEW YORK COMMISSIONER OF LABOR
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`139.
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`140.
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`Plaintiffs repeat and reallege all paragraphs above as though fully set forth herein.
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`Defendants failed to pay Plaintiffs one additional hour’s pay at the basic minimum
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`wage rate before allowances for each day Plaintiffs’ spread of hours has exceeded ten hours in
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`violation of NYLL §§ 650 et seq. and 12 N.Y.C.R.R. §§ 146-1.6.
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`Case 1:21-cv-00970-VSB Do