scott a. lucas (sl-6316) steven m. sack (ss-4479) law...

1

Scott A. Lucas (SL-6316) Steven M. Sack (SS-4479) Law Offices of Scott A. Lucas 250 Park Avenue 20th Floor New York, New York 10177 (212) 983-6000 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------X 08cv6120 (LAK) (THK) PRINCE BRELAND, ANNIE COLEMAN and MAXIME DIATTA, individually and on behalf AMENDED of all others similarly situated, COMPLAINT COLLECTIVE AND Plaintiffs, CLASS ACTION -against- GEOFFREY ZAKARIAN, COUNTRY IN NEW YORK, LLC, ADAM BLOCK, 3SIXTY HOSPITALITY, LLC and MOSHE LAX, Defendants. ----------------------------------------------------------X Plaintiffs PRINCE BRELAND, ANNIE COLEMAN and

MAXIME DIATTA, individually, and on behalf of all others similarly

situated, sometimes collectively referred to herein as “Plaintiffs,” by their

attorneys, the Law Offices of Scott A. Lucas, allege as follows for their

Complaint against Defendants GEOFFREY ZAKARIAN, COUNTRY IN

NEW YORK, LLC, ADAM BLOCK, 3SIXTY HOSPITALITY, LLC and

MOSHE LAX, who, by virtue of the common enterprise and joint

Case 1:08-cv-06120-LAK Document 160 Filed 11/19/10 of 46

2

employment relationships alleged herein, are sometimes collectively referred

to herein as “Defendants”.

INTRODUCTION

1. This is a wage and hour action by current and former

“prep” and line cooks on behalf of themselves and a class of similarly

situated “prep” and line cooks against the owners and operators of the

restaurant known as “Country in New York”.

2. Since it opened in 2005, “Country in New York” and its

owners and operators have often failed to pay the restaurant’s “prep” and

line cooks overtime for hours worked in excess of 40 per week, have failed

to pay them minimum wages in a timely manner as required by law, and

have made unlawful deductions from their paychecks.

3. Plaintiffs seek to recover: (A) unpaid overtime,

liquidated damages and attorney’s fees for Defendants’ violations of the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. and New York

Labor Law (“NYLL”) article 19 (§ 650, et seq. and the regulations

promulgated thereunder); (B) liquidated damages and attorney’s fees under

the FLSA for Defendants’ failure to discharge their minimum wage payment

obligations in a timely manner, and (C) damages and/or restitution for


3

Defendants’ unlawful deductions from Plaintiffs’ pay in violation of NYLL

§ 193.

4. Plaintiffs seek compensation for the unpaid overtime and

untimely paid and unpaid minimum wages under the FLSA and NYLL,

liquidated damages under the FLSA, and attorney’s fees, costs and interest

under the FLSA and NYLL.

PROCEDURAL POSTURE OF THE CASE

5. After the Complaint was served, Defendants answered

the Complaint, denying its material allegations.

6. On October 10, 2008, Plaintiffs filed a motion pursuant

to Fed. R. Civ. P. Rule 23 to certify the Wage Action as a class action for a

class consisting of all “prep” and line cook who worked at Country since

September 1, 2005.

7. Plaintiffs’ motion also included a request pursuant to 29

U.S.C. § 216(b) to compel the production of the names and contact

information of putative Class Members.

8. On July 30, 2009, the Court granted Plaintiffs’ motion to

the extent of certifying Plaintiffs’ Second and Fourth Causes of Action as a

class action (except to the extent Plaintiffs’ Fourth Cause of Action


4

challenged allegedly unlawful tax deductions), and certifying Plaintiffs’ First

Cause of Action as a collective action pursuant to 29 U.S.C. § 216(b).

9. The Class Representatives’ initial proposed class

consisted of “all persons who have worked as ‘prep’ and line cooks at

Country in New York between September 2005 and the date of final

judgment in this matter”. The Class Representatives and Class Counsel are

unaware of post-filing wage and hour underpayments at Country. The

definition of the Class should therefore be modified by deleting the phrase

“the date of final judgment in this matter” and substituting it with “July 2,

2008” (the date of the Complaint).

DISPOSITIVE MOTIONS

10. On October 20, 2008, 3Sixty filed a motion to dismiss,

which was denied by order dated June 30, 2009.

11. On November 25, 2008, Defendants filed a motion to

dismiss Plaintiffs’ Third Cause of Action for untimely payment of wages in

violation of the FLSA, which was granted by order dated June 30, 2009.

12. On December 14, 2009, Lax filed a motion to dismiss,

which was denied by order dated January 22, 2010.


5

13. On September 17, 2009, the Court entered an Endorsed

Letter approving as to form, with certain changes, the proposed notice to

class members of their right to participate in the FLSA claims by submitting

“Consent to Sue” forms for filing with the Court.

THE OPT-IN PROCESS

14. On or about October 1, 2009, Country’s then-counsel

provided Class Counsel with what Country represented to be a complete list

of all prep and line cooks who worked for Country since September 1, 2005.

15. On October 14, Class Counsel mailed the court-approved

notices to 160 of the 163 designated class members at their last known

addresses. (Notices were not mailed to the three named plaintiffs, who filed

consents at the inception of this litigation.)

16. A total of 37 consents have been filed with the Court to

date, including the consents filed by the Class Representatives at the

inception of this action.


6

JURISDICTION & VENUE

17. This Court possesses subject matter jurisdiction over

Plaintiffs’ claims alleging violations of the FLSA, 29 U.S.C. § 216(b), 28

U.S.C. § 1331, and 28 U.S.C. § 1337.

18. This Court possesses supplemental jurisdiction under 28

U.S.C. § 1367 over Plaintiffs’ remaining claims.

19. The events and omissions giving rise to the claims set

forth herein occurred in this judicial district.

20. Venue is proper pursuant to, inter alia, 28 U.S.C. § 1391.

THE PARTIES

THE NAMED PLAINTIFFS

21. Plaintiffs are individuals formerly employed by

Defendants as “prep” and line cooks.

22. Plaintiff PRINCE BRELAND is a natural person residing

at 1350 Clay Ave., Bronx, NY 10456.

23. Plaintiff ANNIE COLEMAN is a natural person residing

at 3-19 West Farms Plaza, Apt. 19D, Bronx, NY 10457.

24. Plaintiff MAXIME DIATTA is a natural person residing

at 691 Linden Blvd., Brooklyn, NY 11203.


7

25. The named Plaintiffs’ approximate dates of employment

as “prep” and line cooks with Defendants were as follows:

(a) PRINCE BRELAND (from December 2005 through June

2006, and from September 2006 through October 2006);

(b) ANNIE COLEMAN (from about December 2005

through July 2006); and

(c) MAXIME DIATTA (from about September 2007 to

April 2009).

26. As “prep” and line cooks, Plaintiffs’ duties consisted of

manual work, including, without limitation (A) chopping, cutting, mashing,

cooking and stirring food; (B) bending down and lifting and moving

industrial size pots, pans and trays, which were often filled with foods and

liquids cooked or baked to extremely hot temperatures; and (C) bending

down and lifting and moving industrial size bags and boxes of supplies.

DEFENDANTS

27. Upon information and belief, GEOFFREY ZAKARIAN,

ADAM BLOCK and MOSHE LAX at all times mentioned herein, and

3SIXTY HOSPITALITY, LLC from February or March of 2007 onward,

were agents of COUNTRY IN NEW YORK, LLC, and in doing the things


8

alleged in this Complaint were acting within the course and scope of such

agency.

28. Upon information and belief, at all times mentioned

herein, each Defendant was, in relation to Plaintiffs, an employer or joint

employer of Plaintiffs.

29. Upon information and belief, each of the Defendants has

benefited, either directly or indirectly, from the underpayment and untimely

payment of Plaintiffs as described in greater detail herein.

Geoffrey Zakarian

30. Upon information and belief, Defendant GEOFFREY

ZAKARIAN (hereafter, “ZAKARIAN”) is a resident of the State of New

York.

31. At all times mentioned herein ZAKARIAN, through his

management company, Zakarian Management Group, Inc., of which he was

President and owner, was the operator of COUNTRY.


herein ZAKARIAN, through his management company, was an owner of

COUNTRY.

33. Pursuant to COUNTRY’S Limited Liability Company

Operating Agreement, at all times mentioned herein and subject to


9

COUNTRY’S annual operating budget, ZAKARIAN, through his

management company, had “the sole right and authority to manage the day-

to-day conduct of [COUNTRY’S] operations, and to make all decisions and

to execute and deliver any and all documents, and take any and all actions,

in the ordinary course of [COUNTRY’S] business, without the consent,

approval or vote of [COUNTRY’S] other Manager[s].” (LLC Operating

Agreement, ¶ 7.1(b)).

34. In his capacity as the Operator of COUNTRY,

ZAKARIAN, by his own admission, “obtained direct personal knowledge

regarding Country’s pay practices and procedures.”


herein COUNTRY’S General Manager was under ZAKARIAN’S direct

supervision and authority.


herein ZAKARIAN exercised his direct supervision and authority over

COUNTRY’S General Manager in a manner that left the General Manager

little, if any, room to make any operational decisions that displeased

ZAKARIAN.

37. By way of example, on or about February 8, 2008

ZAKARIAN sent COUNTRY’S then-General Manager an email stating, in


10

pertinent part: “Zakarian Management LLC is the only authorized agent for

Country in New York LLc” (sic), and warning as follows:

Under no circumstances are you to sign any checks or disburse any funds of Country in New York LLC of any kind at any time by any means.

38. By way of further example, on or about February 11,

2008 ZAKARIAN sent COUNTRY’S then-General Manager an email

stating, in pertinent part:

With regard to ordinary operations, the Operating Agreement expressly requires that Zakarian Management Group, Inc., which is the designated ‘operator,’ acting through me, be the ‘sole’ authority and, therefore, you take direction solely from me. I have not given you the authority to implement decisions that emanate from anyone but me.

(emphasis added)

39. By way of further example, on or about May 7, 2008

ZAKARIAN sent COUNTRY’S then-General Manager an email stating, in

pertinent part: “You must run all decisions by me, Period.”


herein, ZAKARIAN benefited from, had actual or constructive knowledge

of, and directed or condoned the wage and hour violations alleged herein.

41. By way of example, ZAKARIAN was frequently present

at the restaurant when the upstairs prep and line cooks started and stopped


11

working, and therefore had knowledge of the extremely long hours they

worked. As Operator and authorizer of written checks to those employees,

ZAKARIAN was therefore aware that those workers were being grossly

underpaid.

42. At all times mentioned herein, ZAKARIAN also knew

about the manner in which COUNTRY enforced its policies and procedures

regarding the payment of overtime and the provision of meals.

43. By way of further example, when a cook named Michael

Hodgkins asked ZAKARIAN when he would receive his unpaid overtime,

ZAKARIAN told him dismissively to “Go peel some asparagus.”

44. By making such an objectively absurd statement

(asparagus is not peeled), ZAKARIAN was not merely ignoring the request

for unpaid overtime, but affirmatively expressly his contempt for workers

who muster the courage to ask the restaurant’s owner and operator for the

overtime that the law entitles them to.

Country In New York, LLC

45. Upon information and belief, “Country In New York,

LLC,” also known as “Country in New York” (hereafter, “COUNTRY”) is,

and since December 17, 2005 has been, a limited liability company


12

organized under and existing under the laws of the State of New York, with

its principal place of business in the State, City and County of New York.

46. Upon information and belief, COUNTRY directed,

controlled, ratified, participated in, condoned, and/or was a moving force

behind the wage and hour violations alleged herein.

Adam Block

47. Upon information and belief, Defendant Adam Block

(hereafter, “BLOCK”) is and was at all times mentioned herein an owner of

COUNTRY.

48. Upon information and belief, BLOCK is and was at all

times mentioned herein a co-manager and/or co-operator of COUNTRY.

49. Upon information and belief, BLOCK benefited from,

had actual or constructive knowledge of, and condoned the wage and hour

violations alleged herein.

Moshe Lax

50. Upon information and belief, Defendant MOSHE LAX

(hereafter, “LAX”) is and was at all times mentioned herein an owner of

COUNTRY.


13

51. Upon information and belief, LAX is and was at all times

mentioned herein a co-manager and/or co-operator of COUNTRY.

52. Upon information and belief, LAX benefited from, had

actual or constructive knowledge of, and condoned the wage and hour

violations alleged herein.

3Sixty Hospitality, LLC

53. Upon information and belief, Defendant 3SIXTY

HOSPITALITY, LLC is a domestic limited liability company with its

principal place of business at 411 West 14th Street in Manhattan.

54. In or about February or March of 2007, ZAKARIAN

held a meeting wherein he told COUNTRY employees, in words or

substance, that COUNTRY was in partnership with a company he referred to

as “360” and that “360” would be helping to manage operations.

55. Upon information and belief, at or about the time

ZAKARIAN made the foregoing announcement, he terminated (or

authorized the termination of) several COUNTRY employees who

performed book-keeping and administrative functions because they would

allegedly be no longer needed.


14

56. Upon information and belief, ZAKARIAN’S reference to

“360” was to a company named “3Sixty Hospitality, LLC” (hereafter,

“3SIXTY HOSPITALITY”).

57. Upon information and belief, 3SIXTY HOSPITALITY is

a “full service” back of house solutions provider that “replaces” the “in-

house bookkeeping, back office management, human resources or inventory

team” of hospitality industry employers, including COUNTRY.

58. Upon information and belief, these back of house

services are integrally related to COUNTRY’s operations, and include:

(A) Payroll Administration (separate and apart from the

routine payroll processing performed by Paychex and

ADP, the companies that have processed COUNTRY’S

payroll)

(B) Variable Labor Cost Analysis

(C) Assistance in meeting regulatory needs

(D) Bookkeeping

(E) Human Resources

(F) Cost of goods sold management

(G) Technology design and implementation


15

59. Upon information and belief, 3SIXTY HOSPITALITY

also provides or purports to provide Fair Labor Standards Act (“FLSA”)

compliance advice and assistance to hospitality industry employers such as

COUNTRY.

60. Upon information and belief, from early 2007 to date,

COUNTRY and 3SIXTY HOSPITALITY have contracted with each other,

by written and/or oral agreement, whereby 3SIXTY HOSPITALITY has

acted directly or indirectly in the interest of COUNTRY in relation to

Plaintiffs.


COUNTRY and 3SIXTY HOSPITALITY have generally met at least twice

a week during most weeks to discuss management and/or operational issues.


3SIXTY HOSPITALITY has managed or co-managed COUNTRY’s

banking.


COUNTRY has permitted 3SIXTY HOSPITALITY to make or strongly

influence decisions concerning when, how often and how much Plaintiffs

should be paid.


16


COUNTRY has permitted 3SIXTY HOSPITALITY to make or strongly

influence decisions about whether Plaintiffs’ right to timely payment for

their labor should be subordinated to COUNTRY’s interest in paying other

creditors.


3SIXTY HOSPITALITY has been among the entities and persons

collectively qualifying as a “joint employer” under the FLSA and NYLL of

those Plaintiffs who worked on the premises of COUNTRY since that time.

66. Upon information and belief, from late winter or early

spring of 2007 to the present, 3SIXTY HOSPITALITY benefited from, had

actual or constructive knowledge of, and directed or condoned the wage and

hour violations alleged herein.

CLASS ACTION ALLEGATIONS

67. The claims in this Complaint arising out of the NYLL are

brought by plaintiff under Rule 23 of the Federal Rules of Civil Procedure,

on behalf of themselves and a class consisting of all persons who have

worked as “prep” and line cooks at Country in New York between


17

September 2005 and the date of final judgment in this matter (the “Rule 23

Class”).

68. The employees in the Rule 23 Class are so numerous that

joinder of all members is impracticable.

69. According to records produced by Defendants, the Rule

23 class consists of 166 persons.

70. Defendants have acted or have failed and/or refused to

act on grounds generally applicable to the Rule 23 Class.

71. Common questions of law and fact exist as to the Rule 23

Class that predominate over questions affecting them individually,

including, inter alia:

(a) whether Defendants violated NYLL article 19 (§§ 650 et

seq.) and its implementing regulations (12 N.Y.C.R.R.

Part 142) and NYLL article 6 (§§ 190, et seq.);

(b) whether Defendants failed to pay Plaintiffs and the Rule

23 Class overtime pay at the rate of 1½ times the regular

rate of pay for hours worked in excess of 40 per week;

(c) whether Defendants periodically failed to pay Plaintiffs

and the Rule 23 Class the applicable minimum wage for

each of the pay periods worked by Plaintiffs;


18

(d) whether Defendants made unlawful deductions from the

pay of Plaintiffs and the Rule 23 Class; and

(e) the nature and extent of the class-wide injury and the

measure of damages for those injuries.

72. The claims of the Plaintiffs are typical of the claims of

the Rule 23 Class they seek to represent. Plaintiffs and the members of the

Rule 23 Class work or have worked for Defendants as “prep” and line cooks

at Country in New York within three years prior to filing. They enjoy the

same statutory rights under the NYLL (A) to be paid at the rate of 1½ times

the regular rate of pay for all hours worked in excess of 40 per week; (B) to

be paid and paid in a timely manner at least the minimum wage for all hours

worked, and (C) to not have unlawful deductions from their paychecks.

73. Plaintiffs and the Rule 23 Class Members have all been

injured in that they have been under-compensated due to Defendants’

common policies, practices, and patterns.

74. Plaintiffs will fairly and adequately represent and protect

the interests of members of the Rule 23 Class.

75. Plaintiffs have retained counsel competent and

experienced in wage and hour litigation.


19

76. There is no conflict between the Plaintiffs and the Rule

23 Class Members.

77. A class action is superior to other available methods for

the fair and efficient adjudication of this dispute. The members of the Rule

23 Class have been damaged and are entitled to recovery as a result of

Defendants’ systemic policies, practices and procedures. Although the

relative damages suffered by the individual class members are not de

minimis, such damages are small compared to the expense and burden of

individual prosecution of this litigation. Individual Plaintiffs lack the

financial resources to conduct a thorough examination of Defendants’ time-

keeping and compensation practices and to vigorously prosecute a lawsuit

against Defendants to recover such damages. In addition, class action

litigation is superior because it will obviate the need for unduly duplicative

litigation that could result in inconsistent judgments about Defendants’

practices.

78. This action is properly maintainable as a class action

under Rule 23(b)(3) of the Federal Rules of Civil Procedure.


20

COLLECTIVE ACTION ALLEGATIONS

79. The claims in this Complaint arising out of the FLSA are

brought by Plaintiffs on behalf of themselves and similarly situated persons

who have worked at Country in New York since its opening in or about

September 2005 who elect to opt-in to this action (the “FLSA Collective”).

80. Defendants are liable under the FLSA for, inter alia,

failing to properly compensate Plaintiffs. According to records produced by

Defendants, there are 166 similarly situated current and former “prep” and

line cooks employed by Defendants who have been underpaid in violation of

the FLSA and who would benefit from the issuance of court-supervised

notice of, and opportunity to join, this lawsuit.

81. Those similarly situated employees are known to

Defendants and are readily identifiable and locatable through Defendants’

records.

82. Pursuant to 29 U.S.C. § 216(b) these similarly situated

employees should be notified of and allowed to opt into this action.

CLASS-WIDE ALLEGATIONS

83. Plaintiffs and the members of the Rule 23 Class and the

FLSA Collective (collectively, the “Class Members”) have been victims of


21

Defendants’ policies and practices which violate the FLSA and NYLL by,

inter alia, willfully (A) failing to pay them at the rate of 1½ times the regular

rate of pay for all hours worked in excess of 40 per week; (B) failing to pay

them and pay them in a timely manner at least the minimum wage for all

hours worked, and (C) taking unlawful deductions from their paychecks.

84. As part of their regular business practice, Defendants

have intentionally, willfully and repeatedly harmed Plaintiffs and the Class

Members by engaging in a pattern, practice and/or policy of violating the

FLSA and NYLL, as set fort in greater detail herein.

FIRST CAUSE OF ACTION

UNPAID OVERTIME UNDER THE FLSA

85. The allegations of paragraphs 1 - 84 of the Complaint are

incorporated herein by reference.

86. Defendants regularly conduct business in the State of

New York, and, at all times mentioned herein, had at least two employees

engaged in commerce.

87. At all times mentioned herein, Plaintiffs regularly

engaged in interstate commerce in connection with their employment,

including, but not limited to: (A) participating in the handling of equipment,


22

food, spices and condiments transported across state lines; and (B)

participating in the rendition of production work for the benefit of out-of-

state patrons and hotel guests.


herein, Defendants’ activities described herein were related and performed

through common control for a common business purpose, and constituted an

enterprise within the meaning of § 3(r) of the FLSA (29 U.S.C. § 203[r]).

89. At all times mentioned herein, Defendants, as a common

enterprise and joint employer, employed employees at COUNTRY’S

premises in handling, selling, or otherwise working on goods and materials,

including, but not limited to, food, alcoholic and other beverages and a wide

range of supplies which had moved in or been produced for commerce by

other persons.


herein, the annual dollar volume of business of Defendants collectively

exceeded $500,000.


herein, the annual dollar volume of business of COUNTRY exceeded

$500,000.


23

92. Plaintiffs were not administrative or executive employees

exempt from the requirements of the FLSA, and were not otherwise exempt.

93. For the first several months of its operation, COUNTRY

hired Plaintiffs to work on a nominal shift basis, with Plaintiffs working as

“prep” and line cooks for breakfast, lunch, or dinner shifts, and receiving a

particular amount per shift.

94. The work required for a given shift often exceeded the

nominal length of the shift.

95. During 2006, Defendants began phasing out its policy of

shift-based pay and replacing it with a nominal hourly wage which, for most

Plaintiffs, was between $8 and $15 per hour.

96. At all material times herein (i.e., both before and after

Defendants’ switched to an hourly wage model), Plaintiffs generally worked

in excess of 40 hours per week, but were often not compensated for their

overtime hours at the rate of 1½ times the regular rate of pay.

97. Defendants have engaged in various time- and record-

keeping manipulations to conceal, diminish or otherwise avoid their lawful

obligations to Plaintiffs. These tactics have included, but are not limited to:

(A) failing to pay Plaintiffs at the rate of 1½ times the regular

rate of pay for hours worked in excess of 40 per week;


24

(B) under-reporting the actual number of hours worked;

(C) issuing paychecks listing inaccurate, frequently changing

and artificially low “hourly” pay rates, particularly in pay

periods when Plaintiffs worked a substantial amount of

overtime;

(D) delaying recognition of some of the hours worked in

given (and usually labor intensive) pay period until the

subsequent pay period, thereby reducing the record of

Plaintiffs’ overtime hours;

(E) failing to include the value of certain benefits (for

example, meals) in Plaintiffs’ regular rate of pay; and

(F) requiring most new hires to “trail” (work for a day or part

of a day, usually about 6-9 hours, alongside other “prep”

and line cooks) at the outset of their employment, and not

paying them for their time spent “trailing”.

98. Upon information and belief, Defendants’ “paper” copies

of the time-keeping records for the Plaintiff class members frequently under-

state the amount of time worked by the Plaintiff class members, especially

from August 2005 through May 2007.


25

99. Upon information and belief, in or about August of 2008,

approximately one month after this lawsuit was filed, Defendants destroyed

or caused to be destroyed the electronically stored time-keeping information.

100. As a result, Plaintiffs have been unable to examine the

electronic “audit trails” that would have revealed the extent of Defendants’

overtime violations in those instances in which the class members were

allowed to punch in and punch out when they started and stopped working.

101. Due to the extent and severity of Defendants’ time- and

record-keeping manipulations, the frequency of the “off-the-clock” work at

issue, and the unavailability of electronically stored information needed to

ascertain the precise quantum of “on the clock” work that was recorded,

Plaintiffs cannot state with precision the total amount of unpaid hours

worked.

102. Upon information and belief, the total damages in this

action exceed $1,000,000.

103. Annexed hereto as Ex. “A” collectively are detailed

spreadsheets reflecting damages estimates for what is believed to be a

representative sampling of the class members in this action.

104. Plaintiffs will submit representative testimony at the trial

in this action sufficient to establish Plaintiffs’ damages and the damages of


26

the other class members with the level of particularity required under the

circumstances.

105. No agreement existed between Plaintiffs and Defendants

with respect to the payment of overtime for hours worked in excess of 40 in

a workweek.


herein Defendants were aware that overtime pay is mandatory for non-

exempt employees who work more than 40 hours per week.

107. Upon information and belief, Defendants’ FLSA

violations were willful.

108. Based upon the foregoing, for violating the FLSA since

“Country in New York” opened in 2005, Defendants are liable in an amount

to be determined at trial, together with liquidated damages, attorney’s fees

and costs.

SECOND CAUSE OF ACTION

UNPAID OVERTIME UNDER NEW YORK LAW

109. Plaintiffs incorporate paragraphs 1 - 108 of the

Complaint by reference as if fully set forth herein.


27

110. Defendants failed to comply with, inter alia, NYLL §

663.1 and § 142-2.2 of Title 12 of the Compilation of Codes Rules &

Regulations Of the State of New York (“NYCRR”), in that Plaintiffs often

worked for Defendants in excess of the maximum hours provided by State

and federal law, but provision was not made by Defendants to pay those

Plaintiffs at the rate of 1½ times the regular rate for the hours worked in

excess of the hours provided for by State and federal law.

111. Based upon the foregoing, Defendants, for violating

NYLL § 663.1 and 12 NYCRR § 142-2.2 are liable in an amount to be

determined at trial, plus statutory attorney’s fees and costs.

25% “penalty” under NYLL § 663.1

112. Upon information and belief, Zakarian and Country’s

non-payment of overtime pay to Plaintiffs was willful.

113. A Defendant who willfully has failed to pay overtime due

and owing prior to November 24, 2009 in accordance with NYLL § 663.1

and 12 NYCRR § 142-2.2 is liable for the payment of an additional sum

equal to 25% of all unpaid overtime under the version of NYLL § 663.1 then

in effect.


28

114. Under New York State law that 25% sum, though

denominated as “liquidated damages,” is a “penalty.” As such, it serves a

separate and fundamentally different purpose than liquidated damages under

the Fair Labor Standards Act, which are compensatory in nature and do not

require any showing of willfulness.

115. Accordingly, for consistently and willfully violating the

above-referenced New York State laws and regulations, Defendants

Geoffrey Zakarian and Country in New York, in addition to their liability for

unpaid overtime and compensatory liquidated damages under federal law,

are liable for the payment of a statutory penalty under NYLL § 663.1 equal

to 25% of all of Plaintiffs’ unpaid overtime, together with reasonable

attorney’s fees and costs.

THIRD CAUSE OF ACTION

VIOLATIONS OF THE FLSA’S PROMPT PAYMENT REQUIREMENT

116. This cause of action was previously dismissed by the

Court. Therefore, without prejudice to Plaintiffs’ right to appeal that

dismissal, and solely to avoid unnecessary confusion, it is not restated

herein.


29

FOURTH CAUSE OF ACTION

VIOLATIONS OF NEW YORK LABOR LAW § 193 117. Plaintiffs incorporate paragraphs 1 – 116 of the

Complaint by reference as if fully set forth herein.

118. NYLL § 193 prohibits employers from making

deductions from the wages of their employees, with certain exceptions not

relevant here.

119. Upon information and belief, Defendants violated NYLL

§ 193 by making actual unlawful deductions from Plaintiffs’ pay for, inter

alia, leftover scraps of meat and other foodstuffs, few if any of which could

have qualified as a bona fide “meal” under applicable regulations.

120. Upon information and belief, Defendants also violated

NYLL § 193 by manipulating the record of Plaintiffs’ hours worked to avoid

paying Plaintiffs for all of their hours worked.

121. Defendants are liable for damages equal to the amounts

unlawfully deducted from Plaintiffs’ pay, with interest.

122. In addition, as “employees” (NYLL § 190[2]) whose

“earnings” or “wages” (NYLL § 190[1]) were unlawfully withheld by their

“employers” (Labor Law § 190[3]), Plaintiffs are entitled to an award of


30

reasonable attorney’s fees under Labor Law § 198 for Defendants’ violations

of NYLL § 193.

25% “penalty” under NYLL § 198.1-a

123. Upon information and belief, Zakarian and Country’s

non-payment of overtime pay to Plaintiffs was willful.

124. A Defendant who has willfully acted in violation of

NYLL § 193 prior to November 24, 2009 is liable under the version of

NYLL § 198.1-a then in effect for the payment of an additional sum equal to

25% of all amounts withheld/deducted in violation of NYLL § 193.

125. Under New York State law that 25% sum, though

denominated as “liquidated damages,” is a “penalty.” As such, it serves a

separate and fundamentally different purpose than liquidated damages under

the Fair Labor Standards Act, which are compensatory in nature and do not

require any showing of willfulness.

126. Accordingly, for consistently and willfully violating

NYLL § 193, Defendants Geoffrey Zakarian and Country in New York, in

addition to their liability for unpaid overtime and compensatory liquidated

damages under federal law, are liable for the payment of a statutory penalty


31

under NYLL § 663.1 equal to 25% of all of Plaintiffs’ unpaid overtime,

together with reasonable attorney’s fees and costs.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, on behalf of themselves, the FLSA

Collective and the Rule 23 Class, respectfully request a judgment:

(A) Awarding Plaintiffs, the FLSA Collective and the

Rule 23 Class damages for unpaid overtime and unlawful deductions from

their pay;

(B) Awarding liquidated damages to Plaintiffs and the

FLSA Collective pursuant to 29 U.S.C. §§ 216 and 260;

(C) Awarding a 25% penalty to Plaintiffs and the Rule

23 Class pursuant to NYLL § 663.1 and 12 NYCRR § 142-2.2 and NYLL §

198.1-a; and

(D) Awarding Plaintiffs, the FLSA Collective and the

Rule 23 Class reasonable attorney’s fees and costs under the FLSA and

NYLL.


32

DEMAND FOR TRIAL BY JURY

Pursuant to Fed. R. Civ. P. Rule 38, Plaintiffs demand a trial by

jury.

Dated: New York, New York June 30, 2010 LAW OFFICES OF SCOTT A. LUCAS By /s/ Scott A. Lucas (SL-6316) Steven M. Sack, Of Counsel (SS-4479) Law Offices of Scott A. Lucas 250 Park Avenue, 20th Floor New York, NY 10177 (212) 983-6000 Attorneys for Plaintiffs


EXHIBIT A

(A Sample of Individual Damages Estimates)


MELISSA FIRPO - Hired to work for $750 per week, with 50 hours per week the alleged estimated work time. Worked at least 96 hours per week on average.

Pay PeriodHours Listed

Purported Reg. Rate

Purported "OT" Rate

Regular rate excluding value of meals

Actual OT Rate if value of meals is excluded from regular rate

Minimum average hours per pay period

Amount of Regular (non-OT) Pay Earned

Amount of OT Earned

Total Gross Pay Received (prior to deductions) Notes

3/20/06 - 4/02/06 143.96 $15.00 $22.50 $15.00 $22.50 192 $1,200.00 $2,520.00 $1,680.234/03/06 - 4/16/06 62.21 $15.00 $22.50 $15.00 $22.50 192 $1,200.00 $2,520.00 $790.174/17/06 - 4/30/06 144 $15.00 $22.50 $15.00 $22.50 192 $1,200.00 $2,520.00 $1,740.645/01/06 - 5/14/06 87 $15.00 $22.50 $15.00 $22.50 192 $1,200.00 $2,520.00 $1,018.675/15/06 - 5/28/06 72 $15.00 $22.50 $15.00 $22.50 96 $600.00 $1,260.00 $870.32

$5,400.00 $11,340.00 $6,100.03

Unpaid Overtime (Reg Pay Earned + OT Earned - Pay Received): $10,639.97FLSA Liquidated Damages: $10,639.9725% Penalty under NYLL 663 for "willfully" violating the law: $2,659.99Unlawful "meal" deductions: $120.0025% Penalty under NYLL 198 for "willfully" violating the law: $30.00

Total estimated damages (without interest or attorney's fees): $24,089.93


ERROL FENNELL - Avg work time = an average of 22 hours more than recorded each pay period.


Purported Reg. Rate

Purported "OT" Rate

Regular rate excluding value of meals


Minimum average hours per pay period


Amount of OT Earned

Total Gross Pay Received (prior to deductions) Notes

9/05/05 - 9/18/05 35 $13.00 $19.50 $15.00 $22.50 46 $600.00 $135.00 $455.009/19/05 - 10/02/05 69.5 $13.00 $19.50 $15.00 $22.50 91.5 $1,200.00 $258.75 $903.5010/03/05 - 10//16/05 73.2 $13.00 $19.50 $15.00 $22.50 95.2 $1,200.00 $342.00 $951.6010/17/05 - 10/30/05 87.22 $13.00 $19.50 $15.00 $22.50 109.22 $1,200.00 $657.45 $1,047.2210/31/05 - 11/13/05 81.35 $13.00 $19.50 $15.00 $22.50 103.35 $1,200.00 $525.38 $1,088.4311/14/05 - 11/27/05 73.93 $13.00 $19.50 $15.00 $22.50 95.93 $1,200.00 $358.43 $970.1311/28/05 - 12/11/05 79.43 $13.00 $19.50 $15.00 $22.50 101.43 $1,200.00 $482.18 $1,046.1112/12/05 - 12/25/05 95.66 $13.00 $19.50 $15.00 $22.50 117.66 $1,200.00 $847.35 $1,345.37

$9,000.00 $3,606.54 $7,807.36

Unpaid Overtime (Reg Pay Earned + OT Earned - Pay Received): $3,606.54FLSA Liquidated Damages: $3,606.5425% Penalty under NYLL 663 for "willfully" violating the law: $901.64Unlawful "meal" deductions: $150.0025% Penalty under NYLL 198 for "willfully" violating the law: $37.50



ANNIE COLEMAN - $90 per 10 hr shift, and $95.50 per 10-hr shift being with PE 4/30/06


Purported Reg. Rate

Purported OT Rate

Amount of Paycheck that Allegedly Represents "Regular" Pay

Amount of Paycheck that Allegedly Represents OT Pay

Actual regular rate based on $90 per hr for nominal 10 hr shift if value of meals is excluded from regular rate


Appx hrs worked: 6 or more shifts per week; avg of 11 hrs per shift


Amount of OT Earned

Total Pay Received

1/23/06 - 2/05/06 53.30 $9.00 $13.50 $360.00 $179.55 $9.00 $13.50 53.30 $400 $179.55 $539.552/06/06 - 2/19/06 126.80 $9.00 $13.50 $720.00 $361.80 $9.00 $13.50 117.00 $800 $499.50 $1,081.802/20/06 - 3/05/06 100.00 $9.00 $13.50 $720.00 $270.00 $9.00 $13.50 117.00 $800 $499.50 $990.003/06/06 - 3/19/06 106.66 $9.00 $13.50 $720.00 $359.91 $9.00 $13.50 117.00 $800 $499.50 $1,079.913/20/06 - 4/02/06 133.40 $6.75 $10.125 $540.00 $540.68 $9.00 $13.50 117.00 $800 $499.50 $1,080.684/03/06 - 4/16/06 105.95 $8.18 $12.27 $654.40 $318.41 $9.00 $13.50 117.00 $800 $499.50 $972.814/17/06 - 4/30/06 100.00 $9.55 $14.325 $764.00 $286.50 $9.55 $14.325 117.00 $800 $530.03 $1,050.505/01/06 - 5/14/06 100.00 $9.55 $14.325 $764.00 $286.50 $9.55 $14.325 117.00 $800 $530.03 $1,050.505/15/06 - 5/28/06 96.32 $9.55 $14.325 $764.00 $233.79 $9.55 $14.325 117.00 $800 $530.03 $997.795/29/06 - 6/11/06 96.32 $9.55 $14.325 $764.00 $233.79 $9.55 $14.325 107.25 $800 $530.03 $997.796/12/06 - 6/25/06 107.31 $9.55 $14.325 $764.00 $391.22 $9.55 $14.325 107.31 $800 $530.03 $1,155.226/26/06 - 7/09/06 66.00 $9.55 $14.33 $630.30 $0.00 $9.55 $14.325 88.00 $713.39 $190.52 $630.00

$9,113 $5,517.70 $11,626.55

Unpaid Overtime (Reg Pay Earned + OT Earned - Pay Received): $3,005.15FLSA Liquidated Damages: $3,005.1525% Penalty under NYLL 663 for "willfully" violating the law: $751.29Unlawful "meal" deductions: $230.0025% Penalty under NYLL 198 for "willfully" violating the law: $57.50




Purported Reg. Rate

Purported "OT" Rate

Actual regular rate if value of meals is excluded from regular rate

Actual "OT" Rate if value of meals is excluded from regular rate



Amount of OT Earned

Total Pay Received

8/22/05 - 9/04/05 28.00 $12.00 $18.00 $12.50 $18.75 84 $336.00 $0.00 $336.009/05/05 - 9/18/05 77.80 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $972.009/19/05 - 10/02/05 75.00 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $937.50

10/03/05 - 10/16/05 127.80 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,896.25

10/17/05 - 10/30/05 96.41 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,248.88

10/31/05 - 11/13/05 111.30 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,536.88

11/14/05 - 11/27/05 116.30 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,680.63

11/28/05 - 12/11/05 116.30 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,680.63

12/12/05 - 12/25/05 108.80 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,540.0012/26/05 - 1/08/06 101.30 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,399.381/09/06 - 1/22/06 101.30 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,399.381/23/06 - 2/05/06 116.30 $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,680.632/06/06 - 2/19/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.772/20/06 - 3/05/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.763/06/06 - 3/19/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.76

3/20/06 - 4/02/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.764/03/06 - 4/16/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.76

4/17/06 - 4/30/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.765/01/06 - 5/14/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.765/15/06 - 5/28/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.775/29/06 - 6/11/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.776/12/06 - 6/25/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.766/26/06 - 7/09/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.767/10/06 - 7/23/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.767/24/06 - 8/06/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.768/07/06 - 8/20/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.768/21/06 - 9/03/06 NA $12.50 $18.75 $12.50 $18.75 84 $1,000.00 $1,650.00 $1,730.76

$26,336.00 $42,900.00 $42,269.59



MICHAEL HODGKINSWorked downstairs from Sept. 1, 2005 to Aug. 31, 2006. $12.50 per hour.



Purported Reg. Rate

Purported OT Rate



Appx hrs worked: six 12-hr work periods per week; five 12-hr work periods per week in June 2006; five 13-hr work periods and one 14-hr work period per week from July 2006 to January 2007; five 13-hr work periods per week from January 2007 to July 2007.


Amount of OT Earned

Total Pay Received Notes

8/22/05 - 9/04/05 56.00 $13.00 $19.50 $13.00 $19.50 72 $520.00 $624.00 $728.009/05/05 - 9/18/05 81.50 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,059.509/19/05 - 10/02/05 94.50 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,322.75

10/03/05 - 10/16/05 90.00 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,235.00

10/17/05 - 10/30/05 98.66 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,334.84

10/31/05 - 11/13/05 98.50 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,400.7511/14/2005 - 11/27/05 105.60 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,539.20

11/28/05 - 12/11/05 112.80 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,679.60

12/12/05 - 12/25/05 112.80 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,679.6012/26/05 - 1/08/06 98.50 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,400.751/09/06 - 1/22/06 105.60 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,539.201/23/06 - 2/05/06 98.50 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,400.752/06/06 - 2/19/06 91.30 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,260.352/20/06 - 3/05/06 98.46 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,399.973/06/06 - 3/19/06 98.46 $13.00 $19.50 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,399.97

3/20/06 - 4/02/06 134.22 $10.57 $15.86 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,705.274/03/06 - 4/16/06 129.66 $12.04 $18.06 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,860.07

4/17/06 - 4/30/06 112.53 $12.04 $18.06 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,550.695/01/06 - 5/14/06 121.08 $12.04 $18.06 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,705.105/15/06 - 5/28/06 121.12 $12.04 $18.06 $13.00 $19.50 144 $1,040.00 $1,248.00 $1,705.825/29/06 - 6/11/06 129.71 $12.04 $18.06 $13.00 $19.50 120 $1,040.00 $780.00 $1,860.976/12/06 - 6/25/06 129.71 $12.04 $18.06 $13.00 $19.50 120 $1,040.00 $780.00 $1,860.076/26/06 - 7/09/06 95.40 $12.04 $18.06 $13.00 $19.50 158 $1,040.00 $1,521.00 $1,241.337/10/06 - 7/23/06 130.00 $12.04 $18.06 $13.00 $19.50 158 $1,040.00 $1,521.00 $1,866.207/24/06 - 8/06/06 129.66 $12.04 $18.06 $13.00 $19.50 158 $1,040.00 $1,521.00 $1,860.078/07/06 - 8/20/06 129.66 $12.04 $18.06 $13.00 $19.50 158 $1,040.00 $1,521.00 $1,860.07

8/21/06 - 9/03/06 64.83 $12.04 $18.06 $13.00 $19.50 79 $1,040.00 $760.50 $930.03assumes vacation was taken 1 week

KONSTANTIN TIHONOVWorked downstairs thru 6/06; then worked upstairs. $13 per shift, with raises to $13.71 and $15. Nominal 10-hr shift; actual 12 hr work period



Purported Reg. Rate

Purported OT Rate





Amount of OT Earned


9/04/06 - 9/17/06 121.08 $12.04 $18.06 $13.00 $19.50 158 $1,040.00 $1,521.00 $1,705.10 excludes vacation pay9/18/06 - 10/01/06 120.04 $13.71 $20.57 $13.71 $20.57 158 $1,096.80 $1,604.07 $1,920.23

10/02/06 - 10/15/06 120.04 $13.71 $20.65 $13.71 $20.57 158 $1,096.80 $1,604.07 $1,920.23

10/16/06 - 10/29/06 120.04 $13.71 $20.65 $13.71 $20.57 158 $1,096.80 $1,604.07 $1,920.23

10/30/06 - 11/12/06 112.25 $13.71 $20.57 $13.71 $20.57 158 $1,096.80 $1,604.07 $1,760.03

11/13/06 - 11/26/06 120.04 $13.71 $20.65 $13.71 $20.57 158 $1,096.80 $1,604.07 $1,920.23

11/27/06 - 12/10/06 120.04 $13.71 $20.65 $13.71 $20.57 158 $1,096.80 $1,604.07 $1,920.23

12/11/06 - 12/24/06 128.02 $13.71 $20.65 $13.71 $20.57 158 $1,096.80 $1,604.07 $2,084.3312/25/06 - 1/07/07 95.03 $13.71 $20.65 $13.71 $20.57 144 $1,096.80 $1,316.16 $1,440.101/08/07 - 1/21/07 124.47 $13.71 $20.65 $13.71 $20.57 130 $1,096.80 $1,028.25 $1,600.021/22/07 - 2/04/07 101.09 $15.00 $22.50 $15.00 $22.50 130 $1,200.00 $1,125.00 $1,681.88 excludes vacation pay2/05/07 - 2/18/07 129.10 $15.00 $22.50 $15.00 $22.50 130 $1,200.00 $1,125.00 $2,304.752/19/07 - 3/04/07 120.72 $15.00 $22.50 $15.00 $22.50 130 $1,200.00 $1,125.00 $2,116.20 excludes vacation pay3/19/07 - 4/01/07 115.04 $15.00 $22.50 $15.00 $22.50 130 $1,200.00 $1,125.00 $1,988.404/02/07 - 4/15/07 123.85 $15.00 $22.50 $15.00 $22.50 130 $1,200.00 $1,125.00 $2,186.63 excludes vacation pay4/16/07 - 4/30/07 114.59 $15.00 $22.50 $15.00 $22.50 130 $1,200.00 $1,125.00 $1,978.285/01/07 - 5/15/07 125.11 $15.00 $22.50 $15.00 $22.50 130 $1,200.00 $1,125.00 $2,126.78

5/16/07 - 5/31/07 126.79 $15.00 $22.50 $15.00 $22.50 130 $1,200.00 $1,125.00 $2,096.33

Of the OT hrs it did record, Ds misclassified at least 8.62 of them as reg hrs, as there are 192.62 "regular" hours listed in May and the max could only be 160 for 5/01-5/28 and 24 for 5/29-5/31

$48,071.20 $56,834.40 $75,055.90

Unpaid Overtime (Reg Pay Earned + OT Earned - Pay Received): $29,849.70FLSA Liquidated Damages: $29,849.7025% Penalty under NYLL 663 for "willfully" violating the law: $7,462.43Unlawful "meal" deductions: $1,044.00



Purported Reg. Rate

Purported OT Rate





Amount of OT Earned


25% Penalty under NYLL 198 for "willfully" violating the law: $261.00



Pay PeriodNumber of days in pay cycle

"Regular" Hours Listed

Avg. # of "Regular" (non-overtime) hours that would fall within pay cycle if the standard 40 hours per 7 days is pro-rated and applied to a 15 or 16 day period, as the case may be

Regular Rate if value of meal is excluded from regular rate

OT Rate if if value of meals is excluded from regular rate Notes

4/01/08 - 4/15/08 15 90.36 85.25 $13.50 $20.25

*Due to Ds' irregular pay cycles, the presumed amount of regular (non-OT) pay earned in a given pay period is estimated by using the following formula: 5.683 (2080 reg hrs per year divided by 366) x # of days in pay cycle. Exception: This formula is not used for pay cycles where less than 40 hours were worked in a given week.

4/16/08 - 4/30/08 15 90.03 85.25 $13.50 $20.255/01/08 - 5/15/08 15 92.55 85.25 $13.50 $20.255/16/08 - 5/31/08 16 87.06 90.93 $13.50 $20.256/01/08 - 6/15/08 15 80.00 85.25 $13.50 $20.256/16/08 - 6/30/08 15 80.00 85.25 $13.50 $20.257/01/08 - 7/15/08 15 91.52 85.25 $13.50 $20.257/16/08 - 7/31/08 16 96.90 90.93 $13.50 $20.25

8/01/08 - 8/15/08 15 79.83 85.25 $13.50 $20.25

*P.Stannard went on vacation starting 8/10 and worked 7 days this period. Overpaid appx 8.5 hrs

8/16/08 - 8/31/08 16 90.93 $13.50 $20.25*PE shorted appx 32.5 hrs this pay period

Misclassified OT hrs as reg hrs between 4/01/08 and 7/31/08: 15.06 hrs x $6.75 x 2 = $101.66Unpaid OT during August 2008: 24 hrs x 20.25 x 2 = $486FLSA Liquidated damages: $587.6625% Penalty under NYLL 663 for "willfully" violating the law: $146.92Unlawful "meal" deductions: $40.0025% Penalty under NYLL 198 for "willfully" violating the law: $10.00


Philip Stannard. $13.50 per hr.


MICHAEL SAADA - Avg work time = at least 11.5 hrs for "AM" work period and at least 13 hrs for "PM" work period. Appx 60% "AM" work and 40% "PM" work. Avg work period was therefore 12.1 hrs


Purported Reg. Rate

Purported "OT" Rate

Assumes $12 regular rate excluding value of meals


Appx 6 shifts (appx 72.6 hrs per week) 80% of the time; Appx 7 shifts (appx 84.7 hrs per week) 20% of the time.


Amount of OT Earned


11/14/2005 - 11/27/05 41.67 $12.00 $18.00 $12.00 $18.00 72.6 $480.00 $586.80 $500.0411/28/05 - 12/11/05 93.3 $12.00 $18.00 $12.00 $18.00 145.2 $960.00 $1,173.60 $1,199.4012/12/05 - 12/25/05 93.3 $12.00 $18.00 $12.00 $18.00 157.3 $960.00 $1,391.40 $1,199.4012/26/05 - 1/08/06 87.8 $12.00 $18.00 $12.00 $18.00 145.2 $960.00 $1,173.60 $1,100.401/09/06 - 1/22/06 82.2 $12.00 $18.00 $12.00 $18.00 145.2 $960.00 $1,173.60 $999.601/23/06 - 2/05/06 87.8 $12.00 $18.00 $12.00 $18.00 157.3 $960.00 $1,391.40 $1,100.402/06/06 - 2/19/06 89.5 $12.00 $18.00 $12.00 $18.00 145.2 $960.00 $1,173.60 $1,131.002/20/06 - 3/05/06 93.4 $13.00 $19.50 $12.00 $18.00 157.3 $960.00 $1,391.40 $1,301.303/06/06 - 3/19/06 97.18 $13.00 $19.50 $12.00 $18.00 145.2 $960.00 $1,173.60 $1,375.01

3/20/06 - 4/02/06 144.04 $8.52 $12.78 $12.00 $18.00 145.2 $960.00 $1,173.60 $1,500.034/03/06 - 4/16/06 124.57 $10.64 $15.96 $12.00 $18.00 157.3 $960.00 $1,391.40 $1,562.53

4/17/06 - 4/30/06 96.32 $10.91 $16.37 $12.00 $18.00 145.2 $960.00 $1,173.60 $1,139.885/01/06 - 5/14/06 103.7 $10.91 $16.37 $12.00 $18.00 157.3 $960.00 $1,391.40 $1,260.665/15/06 - 5/28/06 107.33 $10.91 $16.37 $12.00 $18.00 145.2 $960.00 $1,173.60 $1,320.065/29/06 - 6/11/06 92.7 $10.91 $16.37 $12.00 $18.00 145.2 $960.00 $1,173.60 $1,080.646/12/06 - 6/25/06 111.03 $10.91 $16.37 $12.00 $18.00 157.3 $960.00 $1,391.40 $1,500.616/26/06 - 7/08/06 92.66 $10.91 $16.37 $12.00 $18.00 133.1 $960.00 $955.80 $1,439.98

$15,840.00 $20,453.40 $20,710.94

Unpaid OT: $15,582.46FLSA Liquidated Damages: $15,582.4625% Penalty under NYLL 663 for "willfully" violating the law: $3,895.62Unlawful "meal" deductions: $420.00


25% Penalty under NYLL 198 for "willfully" violating the law: $105.00



Hitomi Higaki - $13 per hr; nominal 10-hr shift; after six weeks a 14-hr work period 6 (and sometimes 7) days per week, and a 16-hr work period once a week


Purported Reg. Rate

Purported OT Rate



Estimated Actual Hours Worked Based on 6-shifts per week (not including the periodic 7th shift per week that Ms. Higaki sometimes worked).



Amount of OT Earned


8/22/05 - 9/04/05 56 $13.00 $19.50 $728.00 $0.00

60 [assumes six 10-hr work periods] $19.50 $520.00 $390.00 $728.00

9/05/05 - 9/18/05 95.5 $13.00 $19.50 $1,241.50 $0.00

120 [assumes 12 10-hr work periods] $19.50 $1,040.00 $780.00 $1,241.50

9/19/05 - 10/02/05 105.5 $13.00 $19.50 $1,040.00 $497.25 120.00 $19.50 $1,040.00 $780.00 $1,537.25

10/03/05 - 10/16/05

D374 shows 80.5 hrs for first week. $13.00 $19.50 $1,423.80 $0.00

144 [assumes 6 10-hr work periods and 6 14-hr work periods] $19.50 $1,040.00 $1,248.00 $1,423.80

10/17/05 - 10/30/05

purported timekeeping records for week 1 [D384] shows 74.22 hrs for five days $13.00 $19.50 $1,423.80 $0.00

168 [assumes 12 14-hr work periods] $19.50 $1,040.00 $1,716.00 $1,423.80

10/31/05 - 11/13/05 none $13.00 $19.50 $1,423.80 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,423.80

11/14/2005 - 11/27/05 none $13.00 $19.50

$1,500.00 [excluding the $76.92 in unspecified additional earnings] $0.00 168.00 $19.50 $1,040.00 $1,716.00

$1.500.00 [plus $76.92 in unspecified additional earnings]


11/28/05 - 12/11/05 none $13.00 $19.50 $1,500.00 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,500.0012/12/05 - 12/25/05 none $13.00 $19.50 $1,500.00 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,500.0012/26/05 - 1/08/06 none $13.00 $19.50 $1,500.00 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,500.001/09/06 - 1/22/06 none $13.00 $19.50 $1,500.00 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,500.001/23/06 - 2/05/06 none $13.00 $19.50 $1,500.00 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,500.002/06/06 - 2/19/06 none $13.00 $19.50 $1,500.00 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,500.002/20/06 - 3/05/06 none $13.00 $19.50 $1,500.00 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,500.003/06/06 - 3/19/06 none $13.00 $19.50 $1,500.00 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,500.003/20/06 - 4/02/06 none $13.00 $19.50 $1,500.00 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,500.004/03/06 - 4/16/06 none $13.00 $19.50 $1,500.00 $0.00 168.00 $19.50 $1,040.00 $1,716.00 $1,500.00

4/17/06 - 4/30/06 none $13.00 $19.50 $1,040.00 $1,716.00 $1,500.00

check accuracy of final row; H.Higaki worked 7 days her last week

$18,200.00 $27,222.00 $24,278.15




PRINCE BRELAND - $120 per nominal 10 hr. shift, with avg 11-hr work period


Purported Reg. Rate

Purported OT Rate



Actual regular rate based on $120 per hr for nominal 10 hr shift if value of meals is excluded from regular rate




Amount of OT Earned


2/20/06 - 3/05/06 57.33 $10.00 $15.00 $400.00 $259.95 $12.00 $18.00 66.00 $480.00 $468.00 $659.953/06/06 - 3/19/06 110.66 $10.00 $15.00 $800.00 $1,259.90 $12.00 $18.00 132.00 $960.00 $936.00 $1,259.90

3/20/06 - 4/02/06 134 $7.50 $11.25 $600.00 $609.98 $12.00 $18.00 132.00 $960.00 $936.00 $1,209.984/03/06 - 4/16/06 112.85 $9.36 $14.04 $748.80 $461.22 $12.00 $18.00 132.00 $960.00 $936.00 $1,210.02

4/17/06 - 4/30/06 92.7 $10.00 $15.00 $800.00 $190.50 $12.00 $18.00 132.00 $960.00 $936.00 $990.505/01/06 - 5/14/06 114.66 $10.00 $15.00 $800.00 $519.90 $12.00 $18.00 132.00 $960.00 $936.00 $1,319.90

5/15/06 - 5/28/06 103.7 $10.00 $15.00 $800.00 $355.50 $12.00 $18.00 154.00 $960.00 $1,334.00 $1,155.50

PB worked 3 double shifts this period, but Country refused to pay

5/29/06 - 6/11/06 116.33 $10.00 $15.00 $800.00 $244.95 $12.00 $18.00 132.00 $960.00 $936.00 $1,044.95$7,200.00 $7,418.00 $8,850.70




scott a. lucas (sl-6316) steven m. sack (ss-4479) law...

Documents