throbber
Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 1 of 21
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Case No.: 7:24-cv-02885
`
`CLASS AND COLLECTIVE
`ACTION COMPLAINT
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`CHERYL BURGARD, on behalf of herself and others
`similarly situated,
`
` Plaintiff,
`
`
`
`INTERNATIONAL BUSINESS MACHINES
`CORPORATION,
`
` Defendant.
`
`
`
`v.
`
`Plaintiff Cheryl Burgard (“Plaintiff”), on behalf of herself and others similarly situated,
`
`hereby alleges as follows against Defendant International Business Machines Corporation (“IBM”
`
`or “Defendant”).
`
`NATURE OF THE CLAIMS
`
`1.
`
`IBM is the largest industrial research organization in the world, with annual revenue
`
`exceeding $60 billion.
`
`2.
`
`IBM engages in a common, willful, and deliberate policy and practice of failing to
`
`compensate Plaintiff and other similarly situated Executive Assistants in accordance with the Fair
`
`Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”).
`
`3.
`
`First, IBM engages in a common pattern and practice of denying Executive
`
`Assistants payment for all hours worked, including overtime compensation.
`
`4.
`
`Specifically, IBM retaliates against Executive Assistants for logging their true
`
`hours worked, including by, inter alia, criticizing them for logging overtime, using their overtime
`
`hours as a basis to issue negative performance reviews, withholding incentive compensation, and
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 2 of 21
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`admonishing them for complaining that they are forced to work off the clock or discussing their
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`overtime hours with their colleagues.
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`5.
`
`As a result, Executive Assistants regularly work off the clock, including in the
`
`evenings and on weekends.
`
`6.
`
`IBM has actual or constructive knowledge of such off-the-clock work, yet still fails
`
`to compensate the Executive Assistants for their full hours worked.
`
`7.
`
`Further, IBM engages in a common pattern and practice of requiring Executive
`
`Assistants to work through their unpaid meal breaks.
`
`8.
`
`Finally, as a result of its tactics to force Executive Assistants to work off the clock,
`
`IBM issues its Executive Assistants wage statements that do not reflect their full hours worked
`
`and, thus, are inaccurate and unlawful under the NYLL.
`
`9.
`
`To redress these wrongs, Plaintiff brings claims against Defendant under the FLSA,
`
`as a collective action pursuant to 29 U.S.C. § 216(b) and applicable regulations thereunder, on
`
`behalf of herself and all other similarly situated persons employed by Defendant at any time during
`
`the full statute of limitations period.
`
`10.
`
`Plaintiff also brings claims under the NYLL as a class action, pursuant to Federal
`
`Rule of Civil Procedure (“FRCP”) 23, on behalf of herself and all other similarly situated persons
`
`employed by Defendant at any time during the full statute of limitations period.
`
`JURISDICTION AND VENUE
`
`11.
`
`Pursuant to 28 U.S.C. §§ 1331 and 1343, the Court has subject matter jurisdiction
`
`over this action because it involves federal questions regarding the deprivation of Plaintiff’s rights
`
`under the FLSA.
`
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 3 of 21
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`12.
`
`The Court also has supplemental jurisdiction over Plaintiff’s related claims arising
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`under State and local law pursuant to 28 U.S.C. § 1367.
`
`13.
`
`Venue is proper under 28 U.S.C. § 1391 because Defendant’s principal place of
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`business is located in this District and a substantial portion of the events or omissions giving rise
`
`to this action occurred in this District.
`
`A.
`
`Plaintiff Cheryl Burgard
`
`PARTIES
`
`16.
`
`Plaintiff is a resident of the State of New York and was employed by Defendant
`
`during the full statute of limitations. Plaintiff left IBM’s employ in or around February 2023.
`
`17.
`
`At all relevant times, Plaintiff was an “employee” of Defendant within the meaning
`
`of all applicable statutes and regulations.
`
`B.
`
`Defendant International Business Machines Corporation
`
`18.
`
`Defendant is a domestic business corporation with its principal place of business
`
`located at 1 Orchard Road, Armonk, New York 10504.
`
`19.
`
`At all relevant times, Defendant was an “employer” within the meaning of all
`
`applicable statutes and regulations.
`
`A.
`
`Background
`
`FACTS
`
`32.
`
`IBM is the largest industrial research organization in the world, with annual revenue
`
`exceeding $60 billion.
`
`33.
`
`IBM employs approximately 150 Executive Assistants throughout the State of New
`
`York at any given time.
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`3
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 4 of 21
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`34.
`
`Executive Assistants’ job duties include, inter alia: (i) managing IBM executives’
`
`calendars; (ii) scheduling client meetings; (iii) coordinating IBM executives’ travel; and (iv)
`
`submitting expenses on behalf of IBM executives.
`
`35.
`
`Executive Assistants all report directly to IBM’s Global Administration
`
`department, which is located in Armonk, New York.
`
`Executive Assistants are paid hourly.
`
`Executive Assistants’ typical scheduled workweek spans from Monday through
`
`36.
`
`37.
`
`Friday.
`
`38.
`
`Executive Assistants’ typical workday ostensibly spans from approximately 8:30
`
`a.m. through 5:15 p.m. with a 45-minute unpaid lunch break; however, as detailed below,
`
`Executive Assistants often work before their scheduled shift times, through lunch, after their
`
`scheduled shift times, and on weekends.
`
`B.
`
`Unlawful Wage Practices
`
`39.
`
`Despite its massive corporate wealth, IBM subjects its Executive Assistants to
`
`several common policies and practices that violate the rights of those Executive Assistants under
`
`the FLSA and NYLL.
`
`i.
`
`40.
`
`Failure to Pay Overtime
`
`First, IBM engages in a common pattern and practice of denying Executive
`
`Assistants payment for all hours worked, including overtime.
`
`41. While IBM permits Executive Assistants to log overtime, the Company discourages
`
`and retaliates against Executive Assistants from reporting their true hours worked.
`
`4
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 5 of 21
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`42.
`
`By way of example only, the Company retaliates against Executive Assistants who
`
`log overtime by, inter alia, issuing them poor performance reviews and, in turn, depressing the
`
`bonuses they can earn under IBM’s Growth Driven Profit-Sharing program.
`
`43.
`
`As a result, Executive Assistants do not report their true hours worked, thus
`
`resulting in Executive Assistants being denied payment for all hours worked, including overtime.
`
`IBM has actual or constructive knowledge of Executive Assistants’ hours worked.
`
`Indeed, IBM maintains electronic records of Executive Assistants’ true hours
`
`44.
`
`45.
`
`worked.
`
`46.
`
`For example, Executive Assistants are required to log their hours via electronic
`
`timekeeping software.
`
`47.
`
`IBM also tracks when Executive Assistants arrive at and leave the office via
`
`electronic records of their building badge swipes.
`
`48.
`
`IBM also has records of Executive Assistants’ shift start and end times for days
`
`when Executive Assistants work remotely—e.g., as a result of the COVID-19 pandemic and when
`
`performing weekend or after-hours work.
`
`49.
`
`Specifically, Executive Assistants are required to log into their IBM email and other
`
`accounts via a virtual private network, which creates a record of when they each logged on and
`
`logged off.
`
`50.
`
`Given the nature of their work, which is largely done on the computer, Executive
`
`Assistants’ true hours worked are also reflected through other electronic records, including, inter
`
`alia emails, electronic calendar events, and internal messages.
`
`5
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 6 of 21
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`51.
`
`Additionally, IBM has at various times required Executive Assistants to email their
`
`managers or complete electronic worksheets not just logging their overtime, but explaining why
`
`they felt compelled to work overtime.
`
`52.
`
`IBM’s requirement that Executive Assistants track their time spent on particular
`
`tasks and justify their overtime in writing results in Executive Assistants working an even greater
`
`number of hours, resulting in additional off-the-clock work.
`
`ii.
`
`53.
`
`Meal Breaks
`
`Second, IBM engages in a common pattern and practice of requiring Executive
`
`Assistants to work through their unpaid meal breaks.
`
`54.
`
`Specifically, IBM provides Executive Assistants with a 45-minute, unpaid meal
`
`break each day, which is automatically deducted from Executive Assistants’ paychecks.
`
`55.
`
`However, given their heavy workload, Executive Assistants routinely work through
`
`most or all of their unpaid meal breaks without compensation.
`
`iii.
`
`56.
`
`Inaccurate Wage Statements
`
`The NYLL also requires that employers, including IBM, issue or provide
`
`employees with accurate wage statements with each payment of wages.
`
`57.
`
`IBM has failed to furnish Executive Assistants with accurate wage statements
`
`throughout the statutory period.
`
`58.
`
`Indeed, because IBM requires Executive Assistants to work beyond their scheduled
`
`shift times and through their lunch breaks, their wage statements rarely if ever reflect their actual
`
`hours worked.
`
`59.
`
`As a result of IBM’s failure to provide Executive Assistants with accurate wage
`
`statements with each payment of wages, the Executive Assistants have suffered concrete harm.
`
`6
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 7 of 21
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`60.
`
`Specifically, the Executive Assistants have been prevented from, inter alia: (i)
`
`realizing their true hours worked; (ii) realizing that they were underpaid; and (iii) taking
`
`appropriate action to obtain the payments due to them.
`
`C.
`
`Plaintiff Cheryl Burgard
`
`61.
`
`Plaintiff was employed by IBM during the entire statutory period until her
`
`employment ended in or around February 2023.
`
`62.
`
`Plaintiff’s job duties included, inter alia: (i) managing IBM executives’ calendars;
`
`(ii) scheduling client meetings; (iii) coordinating IBM executives’ travel; and (iv) submitting
`
`expenses on behalf of IBM executives.
`
`63. While Plaintiff served various IBM executives over the course of her employment,
`
`she reported directly to IBM’s Global Administration department.
`
`64.
`
`65.
`
`Plaintiff was paid hourly throughout her employment.
`
`As of the end of her employment in February 2023, IBM compensated Plaintiff at
`
`a rate of approximately $40.16 per hour.
`
`66.
`
`67.
`
`Plaintiff’s scheduled workweek spanned from Monday through Friday.
`
`Plaintiff’s scheduled workday ostensibly spanned from approximately 8:30 a.m.
`
`through 5:15 p.m. with a 45-minute unpaid lunch break; however, as detailed below, Plaintiff often
`
`worked before she arrived at the office, through lunch, after hours, and on weekends.
`
`68.
`
`Plaintiff worked off the clock because IBM made clear that it would not allow her
`
`to log significant overtime without retribution.
`
`69.
`
`On several occasions, managers in Global Administration met with Plaintiff, and
`
`made clear that, if she logged her true hours worked, it could cost Plaintiff her job.
`
`7
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 8 of 21
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`70.
`
`Plaintiff—like other Executive Assistants—complained both to her managers in
`
`Global Administration and to Human Resources about the demands of her role and that
`
`management discouraged her from reporting her actual hours worked.
`
`71.
`
`72.
`
`In response, she was met with more baseless critiques of her performance.
`
`IBM also discouraged Plaintiff from reporting her true hours worked and
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`complaining about nonpayment of her wages by issuing her negative performance reviews which
`
`had direct financial consequences.
`
`73.
`
`The Company’s constant chastising of and retaliation against Plaintiff for working
`
`overtime predictably resulted in her working significant hours beyond her scheduled shift times
`
`and through her lunch breaks each week to avoid being further penalized.
`
`IBM had actual or constructive knowledge of Plaintiff’s hours worked.
`
`IBM maintains electronic records of Plaintiff’s true hours worked.
`
`For example, Plaintiff was required to log her hours via electronic timekeeping
`
`74.
`
`75.
`
`76.
`
`software.
`
`77.
`
`IBM also tracked when Plaintiff arrived at and left the office via electronic records
`
`of her building badge swipes.
`
`78.
`
`IBM also has records of Plaintiff’s shift start and end times for days when Plaintiff
`
`worked remotely—e.g., as a result of the COVID-19 pandemic and when performing weekend or
`
`after-hours work.
`
`79.
`
`Specifically, Plaintiff was required to log into her IBM email and other accounts
`
`via a virtual private network, which created a record of when she logged on and logged off
`
`8
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 9 of 21
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`80.
`
`Given the nature of her work, which was largely done on the computer, Plaintiff’s
`
`true hours worked are also reflected through other electronic records, including, inter alia emails,
`
`electronic calendar events, and internal messages.
`
`81.
`
`Additionally, IBM has at various times required Plaintiff to email her managers or
`
`complete electronic worksheets not just logging her overtime, but explaining why she felt
`
`compelled to work overtime.
`
`82.
`
`Unsurprisingly, this resulted in Plaintiff performing additional off-the-clock work.
`
`83. Moreover, while IBM provided Plaintiff with a 45-minute, unpaid meal break,
`
`Plaintiff consistently worked through at least 30 minutes of her break off the clock.
`
`84.
`
`Time for meal breaks was automatically deducted from Plaintiff’s paychecks, even
`
`though she often spent most or all of her meal break working.
`
`85.
`
`Finally, Plaintiff was never issued accurate wage statements, as the NYLL also
`
`requires.
`
`86.
`
`Indeed, because IBM required Plaintiff to work off the clock, her wage statements
`
`rarely if ever reflect her actual hours worked.
`
`87.
`
`As a result of IBM’s failure to provide Plaintiff with accurate wage statements with
`
`each payment of wages, Plaintiff has suffered concrete harm.
`
`88.
`
`Specifically, for years, Plaintiff was prevented from, inter alia: (i) realizing her true
`
`hours worked; (ii) realizing that she was underpaid and by how much; and (iii) taking appropriate
`
`action to obtain the payments due to her.
`
`
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 10 of 21
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`FLSA COLLECTIVE ACTION ALLEGATIONS
`
`89.
`
`Plaintiff brings her FLSA claims as a collective action on behalf of herself and all
`
`other similarly situated persons who have been employed by Defendant in the State of New York
`
`during the full statute of limitations period (the “FLSA Collective”).
`
`90.
`
`At all relevant times, Plaintiff and the FLSA Collective were similarly situated, had
`
`substantially similar job requirements, were paid in the same manner and under the same common
`
`policies, and were subject to Defendant’s practice of failing to pay overtime.
`
`91.
`
`At all relevant times, Defendant has been fully aware of the duties performed by
`
`Plaintiff and the FLSA Collective, and that those duties were not exempt from the provisions of
`
`the FLSA.
`
`92.
`
`Defendant’s violations of the FLSA have been willful, repeated, knowing,
`
`intentional, and without a good faith basis, and have significantly damaged Plaintiff and the FLSA
`
`Collective.
`
`93.
`
`As a result of its unlawful conduct, Defendant is liable to Plaintiff and the FLSA
`
`Collective for the full amount of their unpaid wages with interest, an equal amount as liquidated
`
`damages, and reasonable attorneys’ fees and costs incurred by Plaintiff and the FLSA Collective.
`
`94. While the exact size of the FLSA Collective is unknown to Plaintiff at this time,
`
`upon information and belief, there are approximately 400 members of the FLSA Collective.
`
`95.
`
`Plaintiff is currently unaware of the identities of the individual members of the
`
`FLSA Collective.
`
`96.
`
`Accordingly, the Court should require Defendant to provide Plaintiff with a list of
`
`all members of the proposed FLSA Collective, along with their last known addresses, telephone
`
`10
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 11 of 21
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`numbers, and email addresses, so Plaintiff may provide the members of the FLSA Collective notice
`
`of this action and an opportunity to make an informed decision about whether to participate.
`
`CLASS ACTION ALLEGATIONS
`
`97.
`
`Plaintiff brings her NYLL claims as a class action under FRCP 23.
`
`A.
`
`Class Definition
`
`98.
`
`Plaintiff seeks to maintain claims, pursuant to FRCP 23, on behalf of herself and a
`
`class of all other Executive Assistants who have been employed by IBM in the State of New York
`
`at any time during the full statute of limitations period (the “Class”).
`
`99.
`
`Plaintiff alleges, on behalf of herself and the Class, that IBM violated the NYLL
`
`by, inter alia: (i) failing to compensate Plaintiff and the Class at one and one-half times their
`
`regular rate of pay for all hours worked in excess of 40 hours in a workweek; (ii) failing to
`
`compensate Plaintiff and the Class for all hours worked at their established regular rates of pay;
`
`(iii) making unlawful deductions from their wages; and (iv) failing to furnish accurate wage
`
`statements.
`
`100. Plaintiff and the Class have standing to seek class-wide relief under the NYLL
`
`because of the adverse effects that IBM’s wage practices have had on them individually and as a
`
`group.
`
`101. The wage practices described herein are part of IBM’s normal course of conduct.
`
`102. Pursuant to FRCP 23, Plaintiff’s NYLL claims may be pursued by all similarly
`
`situated persons who do not opt out of the Class.
`
`B.
`
`Numerosity and Impracticability of Joinder
`
`103. The members of the Class are so numerous that joinder is impracticable.
`
`11
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 12 of 21
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`104. While the exact number of the members of the Class is unknown to Plaintiff at this
`
`time, upon information and belief, there are approximately 600 members of the Class.
`
`105. Therefore, the numerosity requirement of FRCP 23(a) is satisfied.
`
`C.
`
`Common Questions of Law and Fact
`
`106. Common questions of law and fact, the answers to which will meaningfully
`
`advance this litigation, exist as to the Class and predominate over any questions only affecting the
`
`members of the Class individually.
`
`107. The questions of law and fact that are common to Plaintiff and the Class include,
`
`without limitation:
`
`(a) Whether IBM failed to pay Plaintiff and the Class all overtime wages owed
`to them;
`
`(b) Whether IBM failed to pay Plaintiff and the Class for all hours worked at
`their regular rates of pay;
`
`(c) Whether IBM made unlawful deductions from Plaintiff and the Class’
`wages;
`
`(d) Whether IBM failed to furnish accurate wage statements to Plaintiff and the
`Class; and
`
`(e) Whether Plaintiff and the Class are entitled to liquidated damages.
`
`108. Therefore, the common question requirement of FRCP 23(a) is satisfied.
`
`D.
`
`Typicality of Claims and Relief Sought
`
`109. Plaintiff’s claims are typical of the claims of the members of the Class she seeks to
`
`represent.
`
`110. Plaintiff and the Class work or have worked for IBM, and are or were subject to the
`
`same compensation policies and practices.
`
`12
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 13 of 21
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`111. The wage violations suffered by Plaintiff, and the damages resulting therefrom, are
`
`typical of IBM’s treatment of the Executive Assistants who comprise the Class.
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`112. Therefore, the typicality requirement of FRCP 23(a) is satisfied.
`
`E.
`
`Adequacy of Representation
`
`113. Plaintiff will fairly and adequately protect the interests of the Class because
`
`Plaintiff’s interests are coextensive and aligned with those of the members of the Class.
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`114. Plaintiff has no interests adverse to the Class she seeks to represent.
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`115. Plaintiff is willing and able to represent the Class fairly and vigorously.
`
`116. Plaintiff has retained competent counsel who are qualified and experienced in
`
`employment class action litigation and able to meet the demands necessary to litigate a class action
`
`of this size and complexity.
`
`117. The combined interests, experience, and resources of Plaintiff and her counsel to
`
`competently litigate the claims at issue in the instant class action satisfy the adequacy of
`
`representation requirement of FRCP 23(a).
`
`F.
`
`Requirements of Rule 23(b)(3)
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`118. The common issues of fact and law affecting Plaintiff’s claims and those of the
`
`Class—including, without limitation, the common issues identified in the paragraphs above—
`
`predominate over issues affecting only individual claims.
`
`119. A class action is superior to other available means for the fair and efficient
`
`adjudication of Plaintiff’ claims and those of the Class.
`
`120. The cost of proving IBM’s pattern and practice of denying minimum, overtime, and
`
`other wages makes it impractical for the members of the Class to pursue their claims individually.
`
`13
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 14 of 21
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`121. This class action will not be difficult to manage for reasons including, without
`
`limitation, the discrete organizational nature of all members of the Class (they must have worked
`
`for IBM as Executive Assistants in the State of New York during the statutory period), as well as
`
`the common questions of law and fact described herein.
`
`FIRST CAUSE OF ACTION
`VIOLATIONS OF THE FLSA: FAILURE TO PAY OVERTIME
`(On Behalf of Plaintiff and the FLSA Collective)
`
`122. Plaintiff, on behalf of herself and the FLSA Collective, hereby repeats and realleges
`
`the foregoing allegations as if set forth fully herein.
`
`123. During the full statutory period, Plaintiff and the FLSA Collective were protected
`
`by the provisions of the FLSA, 29 U.S.C §§ 201, et seq., and applicable regulations thereunder.
`
`124. The FLSA requires covered employers, including Defendant, to compensate
`
`employees at a rate not less than one and one-half times their regular rate of pay for all hours
`
`worked in excess of 40 hours in a workweek.
`
`125. Plaintiff and the FLSA Collective are not exempt from the requirement that their
`
`employer pay them overtime under the FLSA, and they are entitled to be paid overtime by
`
`Defendant for all hours worked in excess of 40 hours in a workweek during the full statute of
`
`limitations period.
`
`126. Throughout the full statute of limitations period, Defendant has engaged in a policy
`
`and practice of failing to compensate Plaintiff and the FLSA Collective at a rate not less than one
`
`and one-half times their regular rate of pay for time spent performing work in excess of 40 hours
`
`in a workweek.
`
`127. As a result of Defendant’s failure to compensate Plaintiff and the FLSA Collective
`
`at a rate not less than one and one-half times their regular rate of pay for all hours worked in excess
`
`14
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 15 of 21
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`of 40 hours in a workweek, Defendant has violated the FLSA and/or applicable regulations
`
`thereunder.
`
`128. Defendant has acted willfully and deliberately in maintaining an intentional
`
`practice of failing to compensate Plaintiff and the FLSA Collective in accordance with the FLSA
`
`and/or applicable regulations thereunder.
`
`129. Defendant’s violations of the FLSA have significantly damaged Plaintiff and the
`
`FLSA Collective and entitle them to recover damages to the greatest extent permitted by law,
`
`including, inter alia, the total amount of their unpaid wages, an additional equal amount in
`
`liquidated damages, prejudgment interest, and attorneys’ fees and costs.
`
`SECOND CAUSE OF ACTION
`VIOLATIONS OF THE NYLL: FAILURE TO PAY OVERTIME
`(On Behalf of Plaintiff and the Class)
`
`130. Plaintiff, on behalf of herself and the Class, hereby repeats and realleges the
`
`foregoing allegations as if set forth fully herein.
`
`131. During the full statutory period, Plaintiff and the Class were protected by the
`
`provisions of the NYLL, N.Y. Lab. Law §§ 1, et seq., as well as all applicable regulations
`
`thereunder.
`
`132. The NYLL requires covered employers, including Defendant, to compensate
`
`Employees at a rate not less than one and one-half times their regular rate of pay for all hours
`
`worked in excess of 40 hours in a workweek for all hours worked in excess of 40 hours in a
`
`workweek.
`
`133. Plaintiff and the Class are not exempt from the requirement that Defendant pay
`
`them overtime under the NYLL, and they are entitled to be paid overtime by Defendant for all
`
`hours worked in excess of 40 hours in a workweek during the full statute of limitations period.
`
`15
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`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 16 of 21
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`134. Throughout the full statute of limitations period, Defendant has engaged in a policy
`
`and practice of failing to compensate Plaintiff and the Class at a rate not less than one and one-
`
`half times their regular rate of pay for time spent performing work in excess of 40 hours in a
`
`workweek.
`
`135. As a result of Defendant’s failure to compensate Plaintiff and the Class at a rate not
`
`less than one and one-half times their regular rate of pay for all hours worked in excess of 40 hours
`
`in a workweek, Defendant has violated the NYLL and/or applicable regulations thereunder.
`
`136. Defendant has acted willfully and deliberately in maintaining an intentional
`
`practice of failing to compensate Plaintiff and the Class in accordance with the NYLL.
`
`137. Defendant’s violations of the NYLL have significantly damaged Plaintiff and the
`
`Class and entitle them to recover damages to the greatest extent permitted by law, including, inter
`
`alia, the total amount of their unpaid wages, an additional equal amount in liquidated damages,
`
`prejudgment interest, and attorneys’ fees and costs.
`
`THIRD CAUSE OF ACTION
`VIOLATIONS OF THE NYLL: FAILURE TO PAY ALL WAGES OWED
`(On Behalf of Plaintiff and the Class)
`
`138. Plaintiff, on behalf of herself and the Class, hereby repeats and realleges the
`
`foregoing allegations as if set forth fully herein.
`
`139. During the full statutory period, Plaintiff and the Class were protected by the
`
`provisions of the NYLL, N.Y. Lab. Law §§ 1, et seq., as well as all applicable regulations
`
`thereunder.
`
`140. The NYLL requires covered employers, including Defendant, to compensate
`
`Plaintiff and the Class at their established regular rates of pay for all hours worked in a workweek.
`
`16
`
`

`

`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 17 of 21
`
`141. Plaintiff and the Class were not exempt from this requirement and are entitled to be
`
`paid by Defendant at their established regular rates of pay for all hours worked in a workweek,
`
`during the full statute of limitations period.
`
`142. Throughout the full statute of limitations period, Defendant has engaged in a
`
`common policy and practice of failing to pay Plaintiff and the Class at their established regular
`
`rates of pay for all hours worked.
`
`143. As a result of Defendant’s failure to compensate Plaintiff and the Class at their
`
`established regular rates of pay (or one and one-half times their established regular rates) for all
`
`hours worked, Defendant has violated the NYLL and/or applicable regulations thereunder,
`
`including, inter alia, NYLL § 191.
`
`144. Defendant has acted willfully and deliberately in maintaining an intentional
`
`practice of failing to compensate Plaintiff and the Class in accordance with the NYLL.
`
`145. Defendant’s violations of the NYLL have significantly damaged Plaintiff and the
`
`Class and entitle them to recover damages to the greatest extent permitted by law, including, inter
`
`alia, the total amount of their unpaid wages, an additional equal amount in liquidated damages,
`
`prejudgment interest, and attorneys’ fees and costs.
`
`FOURTH CAUSE OF ACTION
`VIOLATIONS OF THE NYLL: DEDUCTIONS FROM WAGES
`(On Behalf of Plaintiff and the Class)
`
`146. Plaintiff, on behalf of herself and the Class, hereby repeats and realleges the
`
`
`
`foregoing allegations as if set forth fully herein.
`
`147. During the full statutory period, Plaintiff and the Class were protected by the
`
`provisions of the NYLL, N.Y. Lab. Law §§ 1, et seq., as well as all applicable regulations
`
`thereunder.
`
`17
`
`

`

`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 18 of 21
`
`148. The NYLL prohibits covered employers, including Defendant, from making
`
`unlawful deductions from employees’ wages.
`
`149. Plaintiff and the Class were not exempt from this protection.
`
`150. Throughout the full statute of limitations period, Defendant has engaged in a
`
`common policy and practice of making unlawful deductions from Plaintiff and the Class’ wages.
`
`151. As a result of Defendant’s unlawful deductions from Plaintiff and the Class’ wages,
`
`Defendant has violated the NYLL and/or applicable regulations thereunder, inter alia, NYLL §
`
`193 and 12 NYCRR 142-2.10.
`
`152. Defendant has acted willfully and deliberately in maintaining an intentional
`
`practice of failing to compensate Plaintiff and the Class in accordance with the NYLL.
`
`153. Defendant’s violations of the NYLL have significantly damaged Plaintiff and the
`
`Class and entitle them to recover damages to the greatest extent permitted by law, including, inter
`
`alia, the total amount of their unpaid wages, an additional equal amount in liquidated damages,
`
`prejudgment interest, and attorneys’ fees and costs.
`
`FIFTH CAUSE OF ACTION
`VIOLATIONS OF THE NYLL: INACCURATE WAGE STATEMENTS
`(On Behalf of Plaintiff and the Class)
`
`154.
`
` Plaintiff, on behalf of herself and the Class, hereby repeats and realleges the
`
`foregoing allegations as if set forth fully herein.
`
`155. During the full statutory period, Plaintiff and the Class were protected by the
`
`provisions of the NYLL, N.Y. Lab. Law §§ 1, et seq., as well as all applicable regulations
`
`thereunder.
`
`156. The NYLL requires covered employers, including Defendant, to “furnish each
`
`employee with a statement with every payment of wages, listing the following: the dates of work
`
`covered by that payment of wages;  name of employee; name of employer; address and phone
`
`18
`
`

`

`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 19 of 21
`
`number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day,
`
`week, salary, piece, commission, or other; gross wages; deductions; allowances, if any, claimed as
`
`part of the minimum wage . . . and net wages.”
`
`157. Plaintiff and the Class were not exempt from the requirement that Defendant
`
`provide them with accurate wage statements.
`
`158. Throughout the full statute of limitations period, Defendant has engaged in a
`
`common policy and practice of unlawfully failing to furnish accurate wage statements to Plaintiff
`
`and the Class.
`
`159. As a result of Defendant’s failure to furnish accurate wage statements to Plaintiff
`
`and the Class, Defendant has violated, inter alia, NYLL § 195.
`
`160. Defendant has acted willfully and deliberately in maintaining an intentional
`
`practice of failing to furnish proper wage statements to Plaintiff and the Class in accordance with
`
`the NYLL.
`
`161. Defendant’s violations of the NYLL have significantly damaged Plaintiff and the
`
`Class and entitle them to recover damages to the greatest extent permitted by law, including, inter
`
`alia, $250 for each workday the violation occurred, not to exceed $5,000, plus attorneys’ fees and
`
`costs.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff, on behalf of herself, the FLSA Collective, and the Class,
`
`respectfully requests that the Court:
`
`A.
`
`Declare that the practices complained of herein are unlawful under applicable
`
`federal and State law;
`
`19
`
`

`

`Case 7:24-cv-02885-PMH Document 1 Filed 04/16/24 Page 20 of 21
`
`B.
`
`Declare this action to be maintainable as a collective action pursuant to 29 U.S.C.
`
`§ 216, and direct Defendant to provide Plaintiff with a list of all members of the FLSA Collective,
`
`including all last known addresses, telephone numbers, and email addresses of each such person,
`
`so Plaintiff can give such persons notice of this action and an opportunity to make an informed
`
`decision about whether to participate in it;
`
`C.
`
`Designate Plaintiff as the representative of the FLSA Collective, and her counsel
`
`of record as class counsel;

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