Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 1 of 19
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-----------------------------------------------------------------X
`NICK GIOULES,
`
`
`
`
` Case No.:
`
`Plaintiff,
`
`
`
`CLASS & COLLECTIVE
`
`ACTION COMPLAINT
`
`
`
`
`-against-
`
`
`ANTIGUA PHARMACY LLC and
`BRENDALIS ANTIGUA,
`
`
`Defendants.
`-----------------------------------------------------------------X
`
`Plaintiff NICK GIOULES (hereinafter, “Plaintiff” or “Mr. Gioules”), by and through
`
`his attorneys, SHALOM LAW, PLLC., files this Complaint against Defendants, ANTIGUA
`
`PHARMACY LLC (hereinafter the “Corporate Defendant” or “the Pharmacy”) and
`
`BRENDALIS ANTIGUA (hereinafter the “Individual Defendant” or “Antigua”), and states
`
`upon information and belief as follows:
`
`INTRODUCTION
`
`1.
`
`Plaintiff brings this action to recover unpaid wages, overtime wages,
`
`liquidated damages, interest (pre- and post-judgment), spread-of-hours compensation, and
`
`reasonable attorneys’ fees and costs under the Fair Labor Standards Act of 1938, as amended
`
`(29 U.S.C. §§ 201, et seq.) (“FLSA”), the wage orders promulgated thereunder by the United
`
`States Department of Labor (“USDOL”) and codified at 29 C.F.R. §§ 500, et seq., and
`
`Articles 6, 7, and 19 of the New York Labor Law and the wage orders promulgated
`
`thereunder by the New York State Department of Labor and codified at 12 N.Y.C.R.R. §§
`
`146, et seq. (“NYLL”).
`
`2.
`
`Upon information and belief, Defendants have willfully and intentionally
`
`committed widespread violations of the FLSA and NYLL.
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 2 of 19
`
`3.
`
`Defendants have done so by engaging in a pattern and practice of failing to
`
`pay its employees, including Plaintiff, overtime compensation for all hours worked in excess
`
`of forty (40) hours for each workweek or the spread-of-hours pay each employee was entitled
`
`to for time worked in excess of ten (10) hours.
`
`4.
`
`On or since September 1, 2019, Plaintiff was hired by Defendants to work at
`
`the Pharmacy.
`
`5.
`
`Plaintiff regularly worked in excess of forty-five (45) hours per week, but
`
`was not compensated properly for the actual number of hours he worked, including for his
`
`overtime hours each week, or for the spread-of- hours pay he was lawfully entitled to
`
`applicable under state and federal laws.
`
`JURISDICTION AND VENUE
`
`6.
`
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 et seq.
`
`(FLSA), and 28 U.S.C. § 1337 (interstate commerce).
`
`7.
`
`This Court has supplemental jurisdiction over the New York State law claims,
`
`conferred by 28 U.S.C. § 1367(a), as such claims are so related in this action within such original
`
`jurisdiction that they form part of the same case or controversy under Article III of the United
`
`States Constitution.
`
`8.
`
`Venue is proper the Southern District of New York pursuant to 28 U.S.C.
`
`§1391(b) because a substantial part of the events or omissions giving rise to the claims
`
`occurred in this District, and because the Pharmacy is located within this District.
`
`THE PARTIES
`
`9.
`
`Plaintiff was and is a resident of Suffolk County, New York at all relevant
`
`times.
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 3 of 19
`
`10.
`
`11.
`
`Plaintiff was hired by the Defendants on September 1, 2019.
`
`The Pharmacy is a limited liability company duly organized under and authorized
`
`to do business under the laws of the State of New York with its principal place of business in
`
`Bronx County, New York.
`
`12.
`
`Upon information and belief, the Individual Defendant resides in Bronx County,
`
`New York and is the sole managing member of the Pharmacy.
`
`13.
`
`During all relevant times herein, the Defendants were Plaintiff’s employer within
`
`the meaning of the FLSA and the NYLL.
`
`NATURE OF THE ACTION
`
`14.
`
`Plaintiff brings this action (a) pursuant to the FLSA and the regulations thereto;
`
`and (b) pursuant to the NYLL (§ 650 et seq.) and the New York Commissioner of Labor’s Wage
`
`Order (the “Wage Orders,”) codified at 12 N.Y.C.R.R. §§ 146, et seq. based upon the following
`
`acts and/or omissions which Defendants committed:
`
`i. Defendants’ failure
`
`to pay proper minimum wage and overtime
`
`compensation required by federal and state law and regulations to Plaintiff, who worked
`
`in excess of forty (40) hours each week;
`
`ii. Defendants’ failure to pay Plaintiff spread-of-hours compensation for every
`
`day he worked in excess of ten (10) hours, as required by NYLL §§ 190, et seq., and §§
`
`650, et seq., and New York State Department of Labor regulations § 146-1.6; and
`
`iii. Defendants’ failure to provide Plaintiff with a wage notice and proper
`
`paystubs as required by NYLL § 195.
`
`15.
`
`Defendants have knowingly and willfully engaged in a policy, pattern, and
`
`practice of violating the FLSA and NYLL, as detailed in this Complaint.
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 4 of 19
`
`STATEMENT OF FACTS
`
`16.
`
`At all times relevant hereto, the Defendants committed the following acts and/or
`
`omissions intentionally and willfully, with knowledge that they have been violating federal and
`
`state laws and Plaintiff has thus been economically injured.
`
`17.
`
`Plaintiff worked for the Defendants from on or about September 1, 2019 through
`
`on or about May 31, 2020.
`
`18.
`
`Plaintiff was hired by Defendants to work as a supervising pharmacist at the
`
`Pharmacy, located at 1961 Southern Boulevard, Bronx, NY 10460-1419.
`
`19.
`
`Immediately after his hiring, Plaintiff began working and worked at least forty-
`
`five (45) hours for every workweek for the Defendants at the Pharmacy.
`
`20.
`
`Defendants knowingly, willfully, and intentionally assigned Plaintiff to work at
`
`least forty-five (45) hours every workweek.
`
`21.
`
`Defendants agreed to pay Plaintiff $55.00 per hour for every hour worked, such
`
`that he understood and expected to receive $2,200.00 for his first forty (40) hours of work
`
`performed and $82.50 for every hour of overtime work in excess of forty (40) hours worked per
`
`week.
`
`22.
`
`However, Defendants only paid Plaintiff $55.00 for every hour worked
`
`regardless of the fact he worked more than forty (40) hours per week for virtually every
`
`workweek he worked for Defendants.
`
`23.
`
`As such, Plaintiff worked hours for which he was not properly compensated
`
`under the law.
`
`24.
`
`Additionally, Defendants never paid Plaintiff the spread-of-hours compensation
`
`he was entitled to for each day that he worked an interval in excess of ten (10) hours.
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 5 of 19
`
`25.
`
`Upon information and belief, the Pharmacy did not maintain records of the hours
`
`Plaintiff worked in direct violation of the law.
`
`26.
`
`At all relevant times during his employment with the Defendants, Plaintiff was
`
`not exempt under federal and state laws requiring employers to pay employees overtime, as
`
`– inter alia – Defendants paid Plaintiff on an hourly basis.
`
`27.
`
`Notwithstanding, at all relevant times, the Defendants knowingly and willfully
`
`failed to pay Plaintiff lawful overtime compensation of one and one-half times (1.5x) his regular
`
`rate of pay for all hours worked over forty (40) in a given workweek.
`
`28.
`
`The Defendants also knowingly and willfully failed to pay Plaintiff the spread-
`
`of-hours compensation he was entitled to for every day he worked in excess of ten (10) hours.
`
`29.
`
`Moreover, the Defendants have willfully disregarded and purposefully evaded
`
`the recordkeeping requirements of the FLSA and NYLL and supporting regulations, by failing
`
`to provide Plaintiff with a time-of-hire wage notice detailing his rate(s) of pay and frequency of
`
`pay, neglecting to give Mr. Gioules any accurate wage statements, and entirely disregarding its
`
`duty to maintain accurate payroll records.
`
`30.
`
`Upon information and belief, the Defendants, by and through their agents and
`
`employees, chose not to maintain adequate and accurate written records of actual hours worked
`
`and true wages earned by Mr. Gioules in order to facilitate their exploitation of his labor.
`
`31.
`
`Upon information and belief, Defendants willfully and intentionally maintained
`
`a pattern and practice of unlawfully failing to appropriately compensate its employees and
`
`actively disregarding record-keeping requirements.
`
`32.
`
`Additionally, as if Defendants had not economically injured Plaintiff enough, the
`
`Defendants required Mr. Gioules to pay for supplies the Defendants needed totaling $10,541.89.
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 6 of 19
`
`33.
`
`Though the Defendants reimbursed Plaintiff $5,527.00 by check, the payment
`
`bounced and Plaintiff incurred a bank fee for the bounced check.
`
`34.
`
`Moreover, it was unlawful for the Defendants to require Plaintiff to pay for the
`
`supplies, and the same amounts to an unlawful deduction from wages.
`
`35.
`
` Defendants also retaliated against Plaintiff for complaining about the bounced
`
`check in the amount of $5,527.00.
`
`36.
`
`37.
`
`After repeatedly demanding payment, Defendants responded by terminating him.
`
`Upon information and belief, it is clear that Defendants have knowingly,
`
`willfully, intentionally, and maliciously committed widespread violations of the FLSA and
`
`NYLL, entitling Mr. Gioules to his full pay, 100% liquidated damages as set forth herein, as
`
`well as attorneys’ fees & costs, and any and all other remedies this Court deems just, equitable,
`
`and proper.
`
` FLSA COLLECTIVE ACTION ALLEGATIONS
`
`Plaintiff brings claims for relief as a collective action pursuant to FLSA Section
`
`38.
`
`16(b), 29 U.S.C. § 216(b), on behalf of all non-exempt employees employed by Defendants on
`
`or after the date that is six (6) years before the filing of the Complaint (“FLSA Collective
`
`Plaintiffs”).
`
`39.
`
`At all relevant times, Plaintiff and FLSA Collective Plaintiffs are and have been
`
`similarly situated, have had substantially similar job requirements and pay provisions, and are
`
`and have been subjected to Defendants’ decisions, policies, plans, programs, practices,
`
`procedures, protocols, routines, and rules, all culminating in a willful failure and refusal to pay
`
`them proper compensation for all hours worked, due to a policy of time shaving. The claims of
`
`Plaintiff stated herein are essentially the same as those of other FLSA Collective Plaintiffs.
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 7 of 19
`
`40.
`
`The claims for relief are properly brought under and maintained as an opt-in
`
`collective action pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b). The FLSA
`
`Collective Plaintiffs are readily ascertainable. For purposes of notice and other purposes related
`
`to this action, their names and addresses are readily available from Defendants. Notice can be
`
`provided to the FLSA Collective Plaintiffs via first class mail to the last address known to
`
`Defendants.
`
`RULE 23 CLASS ALLEGATIONS
`
`41.
`
`Plaintiff brings claims for relief pursuant to Rule 23 of the Federal Rules of Civil
`
`Procedure, on behalf of all non-exempt employees (including but not limited to cooks, bakers,
`
`and drivers) employed by Defendants on or after the date that is six (6) years before the filing
`
`of the Complaint (the “Class” or “Class Members”).
`
`42.
`
`All said persons, including Plaintiff, are referred to herein as the “Class.” The
`
`Class Members are readily ascertainable. The number and identity of the Class Members are
`
`determinable from the records of Defendants. The hours assigned and worked, the position held,
`
`and rates of pay for each Class Member are also determinable from Defendants’ records. For
`
`purposes of notice and other purposes related to this action, their names and addresses are readily
`
`available from Defendants. Notice can be provided by means permissible under Rule 23.
`
`43.
`
`The proposed Class is so numerous that a joinder of all members is impracticable,
`
`and the disposition of their claims as a class will benefit the parties and the Court. Although the
`
`precise number of such persons is unknown, the facts on which the calculation of that number
`
`are presently within the sole control of Defendants, there is no virtually doubt that there are more
`
`than forty (40) members of the Class.
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 8 of 19
`
`44.
`
`Plaintiff’s claims are typical of those claims, which could be alleged by any
`
`member of the Class, and the relief sought is typical of the relief, which would be sought by
`
`each member of the Class in separate actions. All Class Members were subject to the same
`
`corporate practices of Defendants, as alleged herein, of (i) failing to pay wages, including
`
`overtime due to time shaving, (ii) failing to pay them the spread of hours premium for workdays
`
`exceeding ten (10) hours, (iii) failing to provide Class Members with proper wage statements
`
`with every payment of wages, and (iv) failing to properly provide wage notices to Class
`
`Members, at date of hiring and annually, per requirements of the NYLL.
`
`45.
`
`Defendants’ corporate-wide policies and practices affected all Class Members
`
`similarly, and Defendants benefited from the same type of unfair and/or wrongful acts as to each
`
`Class Member. Plaintiff and Class Members sustained similar losses, injuries and damages
`
`arising from the same unlawful policies, practices and procedures.
`
`46.
`
`Plaintiff is able to fairly and adequately protect the interests of the Class and has
`
`no interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced
`
`and competent in both class action litigation and employment litigation and have previously
`
`represented plaintiffs in wage and hour cases.
`
`47.
`
`A class action is superior to other available methods for the fair and efficient
`
`adjudication of the controversy – particularly in the context of the wage and hour litigation where
`
`6 individual class members lack the financial resources to vigorously prosecute a lawsuit against
`
`a corporate defendant. Class action treatment will permit a large number of similarly situated
`
`persons to prosecute common claims in a single forum simultaneously, efficiently, and without
`
`the unnecessary duplication of efforts and expense that numerous individual actions engender.
`
`Because losses, injuries and damages suffered by each of the individual Class members are small
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 9 of 19
`
`in the sense pertinent to a class action analysis, the expenses and burden of individual litigation
`
`would make it extremely difficult or impossible for the individual Class members to redress the
`
`wrongs done to them. On the other hand, important public interests will be served by addressing
`
`the matter as a class action. The adjudication of individual litigation claims would result in a
`
`great expenditure of Court and public resources; however, treating the claims as a class action
`
`would result in a significant saving of these costs. The prosecution of separate actions by
`
`individual members of the Class would create a risk of inconsistent and/or varying adjudications
`
`with respect to the individual members of the Class, establishing incompatible standards of
`
`conduct for Defendants and resulting in the impairment of class members’ rights and the
`
`disposition of their interests through actions to which they were not parties. The issues in this
`
`action can be decided by means of common, class-wide proof. In addition, if appropriate, the
`
`Court can, and is empowered to, fashion methods to efficiently manage this action as a class
`
`action.
`
`48.
`
`Defendants and other employers throughout the state violate the NYLL. Current
`
`employees are often afraid to assert their rights out of fear of direct or indirect retaliation. Former
`
`employees are fearful of bringing claims because doing so can harm their employment, future
`
`employment, and future efforts to secure employment. Class actions provide class members who
`
`are not named in the Complaint a degree of anonymity, which allows for the vindication of their
`
`rights while eliminating or reducing these risks.
`
`49.
`
`There are questions of law and fact common to the Class which predominate over
`
`any questions affecting only individual class members, including:
`
`A. Whether Defendants employed Plaintiff and the Class Members within the meaning of
`
`the NYLL;
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 10 of 19
`
`B. What are and were the policies, practices, programs, procedures, protocols and plans of
`
`Defendants regarding the types of work and labor for which Defendants did not pay
`
`Plaintiff and the Class Members properly;
`
`C. At what common rate, or rates subject to common methods of calculation, were and are
`
`Defendants required to pay Plaintiff and the Class Members for their work;
`
`D. Whether Defendants properly notified Plaintiff and the Class Members of their regular
`
`hourly rate and overtime rate;
`
`E. Whether Defendants improperly paid Plaintiff and the Class Members on a fixed salary
`
`basis, when New York law requires that all non-exempt employees be paid on an hourly
`
`basis;
`
`F. Whether Defendants paid Plaintiff and the Class Members overtime wages at a proper
`
`rate that is at least one-and-one-half times the regular rate of pay;
`
`G. Whether Defendants properly compensated Plaintiff and Class Members for all hours
`
`worked;
`
`H. Whether Defendants caused time shaving by paying Plaintiff and Class Members only for
`
`those hours which they were scheduled to work, rather than for the actual hours that they
`
`worked;
`
`I. Whether Defendants paid Plaintiff and the Class Members the spread of hours premium
`
`for workdays that exceeded ten (10) hours;
`
`J. Whether Defendants provided proper wage statements to Plaintiff and the Class Members
`
`per requirements of the NYLL; and
`
`K. Whether Defendants provided proper wage and hour notices to Plaintiff and the Class
`
`Members per requirements of the NYLL.
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 11 of 19
`
`CAUSES OF ACTION
`
`
` FIRST CLAIM FOR RELIEF
` (FLSA Overtime Wage Violations)
`
`
`
`
`
`50.
`
`Plaintiff repeats and realleges every paragraph above as though fully set
`
`forth herein.
`
`51.
`
`The FLSA provides that no employer engaged in commerce shall employ a
`
`covered employee for a workweek longer than forty (40) hours unless such employee receives
`
`compensation for employment in excess of forty (40) hours at a rate not less than one and one-
`
`half times (1.5x) the regular rate at which he is employed, or one and one-half times (1.5x) the
`
`minimum wage, whichever is greater. 29 U.S.C. § 207(a).
`
`52.
`
`Throughout the statute of limitations period covered by these claims, Plaintiff
`
`regularly worked in excess of forty (40) hours per workweek, but was not compensated at a rate
`
`of one and a half times (1.5x) his hourly pay for each hour worked over forty (40).
`
`53.
`
`At all relevant times hereto, Defendants operated under policies, programs,
`
`practices, procedures, protocols, routines, and rules of knowingly and willfully failing and
`
`refusing to pay Plaintiff at one and a half times his regular rate of pay for all hours he worked
`
`in excess of forty (40) hours per workweek.
`
`54.
`
`Further, at all relevant times hereto, Defendants actively failed to keep accurate
`
`required records of the overtime worked by Plaintiff, both knowingly and willfully, in violation
`
`of the FLSA.
`
`55.
`
`Instead, Defendants paid Plaintiff a flat $55.00 per hour to compensate him for
`
`both the regular and the overtime hours he worked each week.
`
`56.
`
`Defendant knowingly and intentionally disregarded its legal obligations under
`
`the FLSA.
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 12 of 19
`
`57.
`
`Upon information and belief, Defendants’ failure to pay Plaintiff at an accurate
`
`overtime rate in violation of the FLSA was not in good faith.
`
`58.
`
`The FLSA provides that any employer who violates the provisions of 29 U.S.C.
`
`§ 207 as Defendants has shall be liable to the employees affected in the amount of their unpaid
`
`overtime compensation, and in an additional equal amount as liquidated damages. 29 USC §
`
`216(b).
`
`59.
`
`Accordingly, Plaintiff seeks damages in the amount of his respective unpaid
`
`compensation, liquidated damages as provided by the FLSA, attorneys’ fees and costs, and other
`
`such legal and equitable relief as this Court deems just and proper.
`
`SECOND CLAIM FOR RELIEF
`(NYLL Overtime Wage Violations)
`
`60.
`
`Plaintiff repeats and realleges every paragraph above as though fully set forth
`
`herein.
`
`61.
`
`At all relevant times, Plaintiff was employed by Defendants within the
`
`meaning of New York Labor Law §§ 2 and 651.
`
`62.
`
`New York law prohibits an employer from permitting an employee to work
`
`without paying overtime wages of one and a half times (1.5x) of his regular rate for all hours
`
`worked in excess of forty (40) in any workweek.
`
`63.
`
`Throughout the statute of limitations period covered by these claims,
`
`Defendants knowingly, willfully, regularly, and repeatedly failed to pay Plaintiff at the
`
`required overtime rates, one and a half times (1.5x) his regular rate of pay, for all hours
`
`worked in excess of forty (40) per workweek.
`
`64.
`
`Defendants’ violation of the NYLL was not in good faith.
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 13 of 19
`
`65.
`
`As a direct and proximate result of Defendants’ willful and unlawful conduct,
`
`as set forth herein, Plaintiff has sustained damages and seeks recovery for unpaid wages in
`
`an amount to be determined at trial, attorneys’ fees, costs, liquidated damages, and
`
`prejudgment interest as provided by NYLL § 663 and supporting regulations, and such other
`
`legal and equitable relief as this Court deems just and proper.
`
`THIRD CLAIM FOR RELIEF
`(NYLL Failure to Notify)
`
`66.
`
`Plaintiff repeats and realleges every paragraph above as though fully set forth
`
`herein.
`
`67.
`
`Pursuant to §195(1) of the NYLL, within ten business days of Plaintiff’s hiring,
`
`Defendants were obligated to provide him with a notice describing, inter alia, his hourly regular
`
`and overtime rates of pay.
`
`68.
`
`Pursuant to §195(3) of the NYLL, Defendants were obligated to provide Plaintiff
`
`with a wage and pay statement, specifying his regular and overtime rates of pay, hours worked,
`
`and regular pay period.
`
`69.
`
`Defendants willfully and knowingly failed to provide Plaintiff with any accurate
`
`wage notices or paystubs regarding any of the hours Plaintiff worked at the Pharmacy a blatant
`
`violation of §195 of the NYLL.
`
`70.
`
`As a direct and proximate result of Defendants’ willful and unlawful conduct, as
`
`set forth herein, Plaintiff has sustained damages and seeks damages in accordance with §195 of
`
`the NYLL for each week Defendants failed to provide such notice and paystubs, along with
`
`attorneys’ fees, costs and prejudgment interest as provided by NYLL § 198 and supporting
`
`regulations, and such other legal and equitable relief as this Court deems just and proper.
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 14 of 19
`
`FOURTH CLAIM FOR RELIEF
`(NYLL Failure to Keep Records)
`
`71.
`
`Plaintiff re-alleges and incorporates by reference all preceding paragraphs as
`
`though fully set forth herein.
`
`72.
`
`NYCRR § 146-2.1 requires that employers maintain, establish, and preserve an
`
`employee’s weekly payroll records for a period of not less than six years
`
`73.
`
`Defendants did not maintain, establish, or preserve accurate records of
`
`Plaintiff’s weekly pay.
`
`74.
`
`Upon information and belief, Defendants failed to maintain adequate and accurate
`
`written records of the actual hours worked and true wage earned by Plaintiff in order to facilitate
`
`their exploitation of Plaintiff’s labor.
`
`75.
`
`76.
`
`Defendants’ failure to maintain accurate records was not in good faith.
`
`As a result of Defendants’ unlawful conduct, Plaintiff has sustained damages,
`
`including loss of earning, in an amount to be established at trial, liquidated damages,
`
`prejudgment interest, costs and attorneys’ fee, pursuant to the state law.
`
`FIFTH CLAIM FOR RELIEF
`(NYLL Failure to Provide Spread of Hours Compensation)
`
`77.
`
`Plaintiff re-alleges and incorporate by reference all preceding paragraphs as though
`
`fully set forth herein.
`
`78.
`
`The NYLL requires employers to pay an extra hour’s pay for every day that an
`
`employee works an interval in excess of ten hours pursuant to NYLL §§ 190, et seq., and §§650,
`
`et seq., and New York State Department of Labor regulations § 146-1.6.
`
`79.
`
`By completely disregarding Plaintiff’s hours spent working for the Pharmacy past
`
`his off time during his 6 a.m. to 3:30 p.m. shifts, Defendants were willfully and knowingly
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 15 of 19
`
`avoiding paying Plaintiff the spread-of-hours pay he was owed for these shifts.
`
`80.
`
`Thus, Defendants’ failure to pay Plaintiff his due spread-of-hours pay constituted
`
`a willful violation of the NYLL, and was not in good faith.
`
`SIXTH CLAIM FOR RELIEF
`(FLSA Retaliation)
`
`81.
`
`Plaintiff re-alleges and incorporate by reference all preceding paragraphs as though
`
`fully set forth herein.
`
`82.
`
`Section 215(a)(3) of the FLSA prohibits “any person” from retaliating against an
`
`employee because he or she has “filed any complaint or instituted or caused to be instituted any
`
`proceeding under or related to” the rights contained in the FLSA.
`
`83.
`
`Section 216(b) of the FLSA establishes a right of action against “[a]ny employer
`
`who violates the provisions of section 215(a)(3) of this title.” Section 203(d) of the FLSA defines
`
`“employer” as “any person acting directly or indirectly in the interest of an employer in relation
`
`to an employee,” save for labor organizations.
`
`84.
`
`85.
`
`86.
`
`The Corporate Defendant was Plaintiff’s employer.
`
`The Individual Defendant was Plaintiff’s individual employer.
`
`Plaintiff’s complaints regarding the bounced check and repeated demands for
`
`payment constituted a protected activity under the FLSA.
`
`87.
`
`Thus, Defendants’ decision to terminate Plaintiff in response to his demand for
`
`payment constituted retaliation within the meaning of Section 215(a)(3) of the FLSA, as each
`
`action was taken in direct response to Plaintiff’s assertion of workplace rights protected by the
`
`FLSA.
`
`88.
`
` As a direct, foreseeable, and proximate result of Defendants’ actions, Plaintiff has
`
`incurred and continues to incur expenses, including but not limited to attorneys’ fees and costs.
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 16 of 19
`
`89.
`
`Defendants committed the acts alleged maliciously, fraudulently, and oppressively
`
`with the wrongful intent to injure Plaintiff. Defendant acted with an improper and evil motive
`
`amounting to malice and conscious disregard for Plaintiff’s rights. The acts taken toward Plaintiff
`
`were carried out by Defendant acting in deliberate, callous, and intentional manner with a desire
`
`to injure and damage.
`
`90.
`
`Pursuant to Section 216(b) of the FLSA, Plaintiff is entitled to legal and equitable
`
`relief including declaratory relief, compensatory and punitive damages, as well as reasonable
`
`attorneys’ fees and costs.
`
`SEVENTH CLAIM FOR RELIEF
`(NYLL Retaliation)
`
`91. Plaintiff re-alleges and incorporate by reference all preceding paragraphs as though
`
`fully set forth herein.
`
`92. Section 215.1(a) NYLL prohibits any “employer” from retaliating against an
`
`employee because he or she has “made a complaint to his or her employer, or to the commissioner
`
`or his or her authorized representative, or to the attorney general or any other person, that the
`
`employer has engaged in conduct that the employee, reasonably and in good faith, believes
`
`violates any provision of” the NYLL. Section 215.2(a) of the NYLL establishes a right of action
`
`against “any employer or persons alleged to have violated the provisions of this section.”
`
`Section2.6 of the NYLL defines “employer” as “the person employing any such [employee].”
`
`93. The Corporate Defendant was Plaintiff’s employer.
`
`94. The Individual Defendant was Plaintiff’s individual employer.
`
`95. Plaintiff demanding payment for the bounced check constituted a protected activity
`
`under the NYLL.
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 17 of 19
`
`96. Defendants’ actions of terminating him constitutes retaliation within the meaning
`
`of Section 215(1)(a) of the NYLL,, as they were taken in direct response to Plaintiff’s assertion
`
`of workplace rights protected by the NYLL.
`
`97. Plaintiff has duly served notice of this action upon the Attorney General of the State
`
`of New York.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff, on behalf of himself, FLSA Collective Plaintiffs
`
`and Class Members, respectfully requests that this Court grant the following
`
`relief:
`
`A. A declaratory judgment that the practices complained of herein are unlawful
`
`under the FLSA and NYLL;
`
`B. An injunction against Defendants and their officers, agents, successors,
`
`employees, representatives and any and all persons acting in concert with them
`
`as provided by law, from engaging in each of the unlawful practices, policies and
`
`patterns set forth herein;
`
`C. An award of unpaid overtime wages, including due to Defendants’ policy of time
`
`shaving under the FLSA and NYLL;
`
`D. An award of unpaid spread of hours premium due under the NYLL;
`
`E. An award of statutory penalties as a result of Defendants’ failure to comply with
`
`the NYLL wage notice and wage statement requirements;
`
`F. An award of liquidated and/or punitive damages as a result of Defendants’
`
`willful failure to pay proper wage and overtime compensation and retaliation,
`
`pursuant to 29 U.S.C. § 216;
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 18 of 19
`
`G. An award of liquidated and/or punitive damages as a result of Defendants’
`
`willful failure to pay proper wage and overtime compensation, and retaliation,
`
`pursuant to the NYLL;
`
`H. An award of pre-judgment and post-judgment interest, costs and expenses of this
`
`action together with reasonable attorneys’ and expert fees and statutory penalties;
`
`I. Designation of Plaintiff as Representative of the FLSA Collective Plaintiffs;
`
`J. Designation of this action as a class action pursuant to F.R.C.P. 23;
`
`K. Designation of Plaintiff as Representative of the Class; and
`
`L. Such other and further relief as this Court deems just and proper.
`
`DEMAND FOR TRIAL BY JURY
`
`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff
`
`demands a trial by jury on all questions of fact raised by the complaint.
`
`Dated: Forest Hills, New York
`July 27, 2021
`
`SHALOM LAW, PLLC
`
`/s/ Jonathan Shalom
`Jonathan Shalom, Esq.
`105-13 Metropolitan Avenue
`Forest Hills, NY 11375-6737
`(718) 971-9474 (office)
`(718) 865-0943 (facsimile)
`jonathan@shalomlawny.com
`
`Attorneys for Plaintiff
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 19 of 19
`Case 1:21-cv-06400 Document 1 Filed 07/27/21 Page 19 of 19
`
`
`
`
`
`
`
`