Friendly's Amended Complaint - Draft of 5-31-15
(00271555.DOCX;1)
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
TISHA REED and NATASHA WALKER, on behalf of themselves and all
others similarly situated, Plaintiffs,v.
FRIENDLYS ICE CREAM, LLC, Defendant.
))))))))))Case No. 1:15-cv-00298
CLASS/COLLECTIVE ACTION
JURY TRIAL DEMANDED
CLASS AND COLLECTIVE ACTION AMENDED COMPLAINT
Tisha Reed and Natasha Walker (Plaintiffs), by and through their
undersigned counsel, hereby make the following allegations against
Friendlys Ice Cream LLC (Defendant or Friendlys) concerning their
acts upon actual knowledge and concerning all other matters upon
information, belief and the investigation of their counsel: NATURE
OF THE ACTION1. Plaintiffs contend that Defendant has violated the
Fair Labor Standards Act of 1938, 29 U.S.C. 201, et seq. (FLSA),
the Pennsylvania Minimum Wage Act of 1968, 43 P.S. 333.101, et seq.
(MWA) and the Pennsylvania Wage Payment and Collection Law, 43 P.S.
260.1, et seq. (WPCL) by: 1) knowingly requiring its Servers to
work off-the-clock during unpaid meal breaks and after their
scheduled shifts without properly tracking this work or paying any
wages for it; and 2) requiring its Servers to spend more than 20%
of their work time each week on non-tipped tasks unrelated to their
duties as a Server for the tipped minimum wage rate of $2.83 per
hour instead of the regular minimum wage rate of $7.25 per hour. 2.
Plaintiffs bring their FLSA claim as a collective action pursuant
to 29 U.S.C. 216(b) for all people employed as Friendlys Servers in
any week during the maximum limitations period. 3. Plaintiffs bring
their MWA and WPCL claims as a class action pursuant to Fed. R.
Civ. P. 23 for all Pennsylvania residents employed as Friendlys
Servers in any week during the maximum limitations period.
JURISDICTION AND VENUE 4. This Court has jurisdiction over this
action under the provisions of the FLSA, 29 U.S.C. 216(b) and 28
U.S.C. 1331. 5. This court has supplemental jurisdiction over
Plaintiffs Pennsylvania state law claims pursuant to 28 U.S.C. 1367
because these claims arise from the same occurrence or transaction
(i.e., Defendants failure to pay wages owed at the proper rate for
all hours worked), and are so related to Plaintiffs FLSA claim as
to form part of the same case or controversy.6. This Court also has
jurisdiction over Plaintiffs Pennsylvania state law claims pursuant
to 28 U.S.C. 1332(d) because the aggregate claims of the class
exceed the sum or value of $5,000,000.00 and there is diversity of
citizenship between the proposed Class members and Defendant.7.
Venue is appropriate in this District pursuant to 28 U.S.C.
1391(b)(2) because Plaintiffs reside in this District, Plaintiffs
worked for Defendant in this District, Plaintiffs suffered the
losses at issue in this District, Defendant violated the laws of
Pennsylvania within this District, Defendant has significant
business contacts within this District, and because actions and
omissions giving rise to Plaintiffs claims occurred within this
District.
PARTIES8. Plaintiff Tisha Reed is an adult citizen of the
Commonwealth of Pennsylvania who resides in York County, PA. From
early 2013 to April 2015, Ms. Reed worked as an hourly-paid Server
at the Friendlys Restaurant located at 445 Steinwehr Avenue in
Gettysburg, PA. During this period, Ms. Reed typically worked
between five and nine shifts per week. Depending on the time of
year, Ms. Reed was typically scheduled to work either a 6-hour
shift or a 12.5-hour shift each day. Ms. Reed is personally
familiar with, and was personally affected by, the policies and
practices described in this Complaint. 9. Plaintiff Natasha Walker
is an adult citizen of the Commonwealth of Pennsylvania who resides
in Adams County, PA. From about October 2012 to March 2015, Ms.
Walker worked as an hourly-paid Server at the Friendlys Restaurant
located at 445 Steinwehr Avenue in Gettysburg, PA. During this
period, Ms. Walker typically worked between five and seven shifts
per week. Depending on the time of year, Ms. Walker was typically
scheduled to work either a 5-hour shift, 6-hour shift or a
12.5-hour shift each day. Ms. Walker is personally familiar with,
and was personally affected by, the policies and practices
described here. 10. Throughout the relevant period, Defendant
knowingly required Plaintiffs to work off-the-clock during their
unpaid meal breaks and after their scheduled shifts without
properly tracking this work or paying them any wages for it.
Throughout the relevant period, although Plaintiffs routinely spent
more than 20% of their work time each week performing non-tipped
tasks unrelated to their duties as a Server (like cleaning the dish
room, sweeping floors, stocking straws and napkins, stocking the
salad bar, filling the soda machine with ice, and rolling flatware
into napkins), Defendant paid them for this work at the tipped
minimum wage of $2.83 per hour instead of the non-tipped minimum
wage of $7.25 per hour. Plaintiffs have both submitted opt-in
consent forms to join this lawsuit. See Exhibit A. 11. Defendant
Friendlys Ice Cream, LLC (Friendlys) is a company with its
corporate headquarters in Wilbraham, MA. At present, there are
about 350 Friendlys restaurants in fifteen states from Maine to
Florida, including about 60 Friendlys locations in Pennsylvania.
Friendlys owns and operates about half of these restaurants,
including the restaurant in Gettysburg, PA where Plaintiffs worked,
and actively oversees and materially contributes to the business
operations in the other restaurants, operated by franchisees. JOINT
EMPLOYMENT ALLEGATIONS12. Throughout the relevant period,
Friendlys, its Corporate-owned stores and its franchisee-owned
stores have been an integrated enterprise with inter-related
operations, systems, policies, practices and labor relations. 13.
Throughout the relevant period, Friendlys has been actively engaged
in the day-to-day operation and management of business operations
at all of its Corporate-owned stores and franchisee-owned stores.
14. All Friendlys restaurants receive active, ongoing support from
Defendant that includes: quality assurance visits, marketing and
advertising services, menu development, point-of-sale materials,
signage and banners, public relations announcements 15. All
Friendlys restaurants are required to use the same approved
products, some of which may only be purchased directly from
Friendlys. 16. All Friendlys restaurants offer breakfast, lunch,
dinner and ice cream service from the same menu and on the same
schedule each day. 17. Managers and staff in all Friendlys
restaurants receive common training, developed and overseen by
Friendlys, with respect to all aspects of the restaurants
operations. 18. All Friendlys restaurants use the same computerized
ordering, timekeeping and payroll systems developed and overseen by
Friendlys.19. All Friendlys restaurants follow the same policies
and procedures, developed and overseen by Friendlys, for assigning
Servers hourly rates, determining Servers work hours, and
calculating Servers compensation.20. Servers in all Friendlys
restaurants are required to follow common policies, systems,
procedures and requirements that have been developed and
promulgated by Friendlys, including policies relating to hiring,
training, hours of work, overtime, timekeeping and compensation.
21. Servers in all Friendlys restaurants perform their jobs in
accordance with policies, systems, procedures and requirements that
Friendlys promulgates and oversees. 22. Servers in all Friendlys
restaurants perform their jobs using materials and systems
Friendlys promulgates and oversees. 23. Servers in all Friendlys
restaurants were supervised in the performance of their work
according to criteria set by Friendlys. 24. At the end of each pay
period, Servers in all Friendlys restaurants receive wages set by
policies, systems, procedures and requirements that Friendlys
controlled. 25. Throughout the relevant period, Friendlys, its
Corporate-owned stores and its franchisee-owned stores, acting in a
joint venture or as joint employers, have formulated, approved,
controlled and engaged in the improper practices described in this
Amended Complaint and, thus, are jointly responsible for these
practices. 26. Friendlys is a joint employer of the Servers in all
Friendlys restaurants because it had the right to: hire and fire
them, set their wages, control the work they performed, direct the
manner in which they performed their work, inspect and supervise
their work, promulgate policies and procedures governing their
employment (including the work, time, compensation and overtime
policies and procedures at issue here), enforce these policies and
procedures, calculate the compensation they received, and pay that
compensation. 27. Indeed, Friendlys website boasts:As a Friendlys
franchisee you can count on: Assistance with site evaluation and
selection Preliminary site planning, design, construction and
development guidance Effective and efficient product purchasing and
distribution programs Quality produced proprietary ice cream and
toppings Marketing, advertising and public relations support
Initial and ongoing, comprehensive training and operational support
What on-going operations support do you offer after the restaurant
opening? The Friendlys Franchise Disclosure Document (FDD) sets
forth the on-going support services provided by Friendlys. They
include an assigned Franchise Business Consultant, quality
assurance visits, marketing and advertising services and many
others.See http://www.friendlys.com/about-friendlys/franchising
(visited May 28, 2015). 28. Throughout the relevant period,
Friendlys, its Corporate-owned stores and its franchisee-owned
stores served as each others agents and worked in concert to
accomplish the actions pled here.29. Throughout the relevant
period, because of its active, ongoing role in the business
operations of its Corporate-owned stores and franchisee-owned
stores, is a joint employer of Plaintiffs and the Class members as
defined by the FLSA, MWA and WPCL and is responsible for the
improper acts and practices described in this Complaint.BACKGROUND
FACTS30. Thousands of Servers work in Friendlys restaurants. Their
primary job duties include: answering questions about the menu,
taking drink and food orders, collecting food and drink orders and
delivering them to diners, and providing customer service to
Friendlys customers. 31. Servers in Friendlys restaurants earn
wages calculated on an hourly basis and, as a term of their
employment, are promised one 30-minute meal break for every shift
of six or more hours. 32. Defendant maintains common,
publically-stated goals for Servers in all Friendlys restaurants
that stress hard work and customer satisfaction, including: When it
comes to our guests, our number one priority is to provide them
with a great experience every time they visit; Year after year, we
strive to be the best Friendlys we can be, because we owe it to our
guests, and to our team; and We are proud to be a place where
family and friends gather to create great memories. And we continue
to work hard every day to make those memories even better, because
thats what Friendlys is all about. See
http://jobs.friendlys.com/about-us/ (visited November 18, 2014).
33. In keeping with these publically-stated goals and its corporate
culture of prioritizing hard work and customer satisfaction,
Defendant maintains policies that provide for progressive
discipline, up to and including termination, for workers who fail
to place the highest priority on excellent customer service. 34. In
keeping with these publically-stated goals and its corporate
culture of prioritizing hard work and customer satisfaction,
Defendant trains and instructs Servers to prioritize their work
over their entitlement to an uninterrupted meal break or their
ability to leave for the day at the end of their scheduled
shift.35. Defendant does not employ specially-assigned relief
workers to ensure that Servers receive an uninterrupted unpaid meal
break or have the ability to leave for the day at the end of their
scheduled shift. 36. Because of the demands of its business
operations, and in keeping with its corporate culture of
prioritizing hard work and customer satisfaction, Defendant
routinely requires Servers to work during unpaid meal breaks and
after the scheduled end of their shift. 37. Although Defendant
routinely requires Servers to work during unpaid meal breaks and
after the scheduled end of their shift, it does not track this work
or pay any wages for it. To the contrary, Defendant maintains
common policies and engages in common practices that ensure that
Servers do not receive any wages for their meal breaks and
post-shift work. Unpaid Meal Break Work38. Throughout the relevant
period, Defendant maintained a policy that promised Plaintiffs and
the Class members one 30-minute unpaid lunch break per shift.
Having made this promise, Defendant was obligated to ensure either
that Plaintiffs and the Class members were completely relieved from
all work-related duties during their unpaid lunch break, or that
Plaintiffs and the Class members accurately tracked and recorded
their shortened lunch breaks and received wages calculated at the
appropriate rate for each shortened break. 39. Because of the
demands of its business operations and its failure to provide
specially-assigned relief workers, Defendant knowingly required
Servers in all Friendlys restaurants to work off-the-clock during
many of their unpaid meal breaks. For example, Plaintiffs typically
performed up to 3 hours of unpaid off-the-clock work during meal
breaks each week. During these unpaid meal breaks, Plaintiffs
continued to wait tables and typically engaged in shift-related
preparation work including but not limited to cleaning the dish
room, sweeping floors, stocking straws and napkins, filling the
soda machine with ice, preparing salad and soups for existing
tables and rolling flatware into napkins. 40. Defendant was able to
avoid tracking these extra hours, or paying its Servers any wages
for them, by requiring Servers in all Friendlys restaurants to
swipe out of its timekeeping system at the beginning of their
scheduled meal break but then return to work as if they were still
on the clock. 41. When Defendants servers needed to perform a task
that required them to be logged-in to Defendants timekeeping system
(such as placing a new order or creating a check) during their
scheduled meal break, they were required to swipe the cards of
other on-the-clock managers and co-workers to authorize the
transaction. 42. Through this common system, Defendant knowingly
prevented its Servers from keeping an accurate, contemporaneous
record of their meal break work and avoid paying them any wages for
this work. Unpaid Post-Shift Work43. Because of the demands of its
business operations and its failure to provide specially-assigned
relief workers, Defendant knowingly required Servers in all
Friendlys restaurants to work off-the-clock after more than half of
their scheduled shifts each week. For example, Plaintiffs typically
performed between 5-10 hours of unpaid off-the-clock post-shift
work each week. During these unpaid post-shift hours, Plaintiffs
typically continued to wait tables and engaged in preparation
related tasks for the next scheduled shift which included cleaning
the restaurant, cleaning the dish room, vacuuming and sweeping
floors, stocking straws and napkins, filling the soda machine with
ice, restocking cups, refilling table condiments and rolling
flatware into napkins. 44. Defendant was able to avoid tracking
these extra hours, or paying its Servers any wages for them, by
requiring Servers in all Friendlys restaurants to swipe out of its
timekeeping system at the scheduled end of every shift but then
return to work as if they were still on the clock . 45. When
Defendants servers needed to perform a task that required them to
be logged-in to Defendants timekeeping system (such as placing a
new order or creating a check) working after their shift had ended,
they were required to swipe the cards of other on-the-clock
managers and co-workers to authorize the transaction. 46. Through
this common system, Defendant knowingly prevented its Servers from
keeping an accurate, contemporaneous record of their post-shift
work and avoid paying them any wages for this work. Minimum Wage
Violation47. During the relevant period, Servers in all Friendlys
restaurants to spend more than 20% of their work time each week on
non-tipped tasks unrelated to their duties as a Server including:
cleaning the dish room, sweeping floors, stocking straws and
napkins, filling the soda machine with ice and rolling flatware
into napkins. 48. Regardless of the fact that more than 20% of
their work time each week was spent on non-tipped tasks, Servers in
all Friendlys restaurants were paid the tipped minimum wage
applicable in their State for all of their scheduled hours. During
the applicable period, this rate ranged from $2.13 (in three
different states) to $4.91 (in Florida). For example, Defendant
paid Plaintiffs, Servers in Pennsylvania, $2.83 per hour for each
of their scheduled hours. 49. Since Defendants Servers were not
eligible to receive any tips while performing these tasks,
Defendant should have paid them at the regular minimum wage rate
for these hours. During the applicable period, this rate ranged
from $7.25 (in five different states) to $8.73 (in Vermont). For
example, Defendant should have paid Plaintiffs, Servers in
Pennsylvania, $7.25 per hour for each of the hours they spent
performing non-tipped tasks. 50. Defendant did not require or allow
Servers in any Friendlys restaurant to track their performance of
non-tipped work and, as a result, was able to pay for all such work
at the tipped minimum wage rate.Overtime Violation51. From April
through November each year, Servers in all Friendlys restaurants
regularly worked more than 40 hours per week. 52. Therefore, during
these months, wages owed to Servers in all Friendlys restaurants
for their unrecorded and/or unpaid time (including post-shift work,
meal break work and non-tipped work) should have been paid at a
time-and-a-half overtime premium rate rather than at a
straight-time rate or not at all. FLSA COLLECTIVE ACTION
ALLEGATIONS53. Plaintiffs brings their FLSA claim as a collective
action pursuant to 29 U.S.C. 216(b) for all people employed as
Friendlys Servers in any week during the maximum limitations
period. 54. Plaintiffs belong to the collective group they seek to
represent, because they:a.Worked as Friendlys Servers during the
relevant period; b.Were regularly required to work off-the-clock
during their 30-minute unpaid meal breaks which resulted in
Plaintiffs typically performing up to 3 hours of unpaid
off-the-clock work each week based upon a five to six day work week
with shifts over six hours each day; c.Were regularly required to
work off-the-clock after the scheduled end of their shifts which
typically resulted in Plaintiffs performing up to 5-10 hours of
unpaid off-the-clock work each week;d.Were regularly paid at the
tipped minimum wage rate for time they spent each week on
non-tipped tasks unrelated to their duties as a Server that made up
more than 20% of their scheduled shifts; e.Were not required to
track their off-the-clock work or their non-tipped work; and f.Did
not receive any wages for their off-the-clock work and received the
tipped minimum wage rate for all of their non-tipped work. 55.
Although Plaintiffs and the collective group members may have
worked in different Friendlys locations in different states, this
action may be properly maintained as a collective action because,
among other things:a. they worked under the same joint employment
scenario;b. they worked under the same material terms and
conditions of employment;c. they were uniformly trained in
Defendants corporate culture of prioritizing hard work and customer
satisfaction and placing the highest priority on excellent customer
service; d. they faced the threat of discipline for failing to
prioritize their work over their ability to take an uninterrupted
meal break or their ability to leave work at the scheduled end of
their shift; e. they faced the threat of discipline for failing to
perform all work that was required of them; f. they were governed
by the same timekeeping policies, practices and systems; g. they
were governed by the same compensation policies, practices and
systems; h. they were governed by the same policies, practices and
systems concerning work hours, meal breaks and the performance of
all work required of them; and i. they were governed by the same
policies, practices and systems concerning overtime hours and
wages. 56. Plaintiffs and the collective group members do not meet
any test for exemption under the FLSA.57. Plaintiffs estimate that
the collective group, including both current and former employees
over the relevant period, will include several thousand members.
The precise number of collective group members should be readily
available from Defendants personnel, scheduling, time and payroll
records, and from input received from the class members as part of
the notice and opt-in process provided by 29 U.S.C. 216(b).
PENNSYLVANIA CLASS ACTION ALLEGATIONS58. Plaintiffs bring their MWA
and WPCL claims as a class action pursuant to Fed. R. Civ. P. 23
for all Pennsylvania residents employed as Friendlys Servers in any
week during the maximum limitations period. 59. Plaintiffs belongs
to the Class they seek to represent, because they:a.are residents
of Pennsylvania; b.worked as Friendlys Servers during the relevant
period; c.Were regularly required to work off-the-clock during
their 30-minute unpaid meal breaks which resulted in Plaintiffs
typically performing up to 3 hours of unpaid off-the-clock work
each week based upon a five to six day work week with shifts over
six hours each day; d.Were regularly required to work off-the-clock
after the scheduled end of their shifts which typically resulted in
Plaintiffs performing up to 5-10 hours of unpaid off-the-clock work
each week;e.were regularly paid at the tipped minimum wage rate for
time they spent each week on non-tipped tasks unrelated to their
duties as a Server that made up more than 20% of their scheduled
shifts; f.were not required to track their off-the-clock work or
their non-tipped work; and g.did not receive any wages for their
off-the-clock work and received the tipped minimum wage rate for
all of their non-tipped work. 60. Plaintiffs state-law claims may
be maintained as a class action because the putative Class members
are so numerous that their joinder would be impracticable. Over the
relevant period, Defendant is believed to have employed at least
several hundred individuals at about 60 Friendlys locations in
Pennsylvania. 61. This action may be properly maintained as a class
action because there are material questions of law or fact common
to the Class, that predominate over any individual issues
including:a. whether Defendant required Plaintiffs and the Class
members to regularly perform off-the-clock meal break work or
post-shift work;b. whether Defendant required Plaintiffs and the
Class members to properly track their meal break or post-shift
work; c. whether Defendant paid Plaintiffs and the Class members
any wages for their meal break work or post-shift work; d. whether
Defendant permitted Plaintiffs and the Class members to perform
non-tipped work for which they were paid the tipped minimum wage
rate; e. whether Defendant violated the MWA by failing to pay
Plaintiffs and the Class members for their meal break or post-shift
work, or by paying the tipped minimum rate for non-tipped work;f.
whether Defendant violated the WPCL by failing to pay Plaintiffs
and the Class members for their meal break or post-shift work, or
by paying a tipped minimum wage rate for non-tipped work; and g.
whether Defendant should be required to pay compensatory damages,
liquidated damages, interest, or attorneys fees and costs for
violating the MWA and/or WPCL. 62. This action may be properly
maintained as a class action because Plaintiffs claims are typical
of the claims belonging to the Class members in that they are
similarly-situated employees who performed similar work under
similar terms, conditions, policies and practices and, as a result,
have been similarly harmed.63. This action may be properly
maintained as a class action because Plaintiffs will fairly and
adequately assert and protect the interests of the Class members as
follows:a.there is no apparent conflict of interest between
Plaintiffs and the Class members;b.Plaintiffs attorneys have
significant experience in the litigation of complex civil and class
action matters in this Court, and will adequately represent the
interests of the Class; andc.Plaintiffs have access to adequate
financial resources to assure that the interests of the Class will
not be harmed because, consistent with the Pennsylvania Rules of
Professional Conduct, Plaintiffs counsel have agreed to advance the
costs and expenses of this litigation contingent upon the outcome
of the case.64. This action may be properly maintained as a class
action because it will provide a fair and efficient method for
adjudication of the issues presented by this controversy as
follows:a. common questions of law or fact predominate over any
questions affecting only individual members, as Plaintiffs seek to
remedy a common legal grievance Defendants failure to pay all wages
owed on behalf of a Class of similarly-situated employees;b. no
difficulties are likely to be encountered in the management of this
litigation as a class action, given that Defendants records will
assist in identifying the members of the Class and verifying the
amount of their claims;c. this forum is particularly appropriate
for adjudicating these claims as this Court has significant
experience with class action litigation; and d. the claims
addressed in this Complaint are not too small to justify the
expenses of class-wide litigation, nor are they likely to be so
substantial as to require the litigation of individual claims. 65.
Allowing Plaintiffs Pennsylvania wage law claims to proceed as a
class action will be superior to requiring individual adjudications
of each Class members claims, since requiring hundreds of hourly
employees to file and litigate individual wage claims would cause
an undue burden on Defendant, the Class members and the Courts.
COUNT IViolation of the FLSA(for the proposed multi-state
collective)
66. Each of the preceding paragraphs is incorporated by
reference as though fully set forth herein. 67. Defendant is an
employer as defined by 29 U.S.C. 203(d).68. Plaintiffs and the
collective group members are employees as defined by 29 U.S.C.
203(e)(1). 69. The wages Defendant paid to Plaintiffs and the
collective group members are wages as defined by 29 U.S.C.
203(m).70. Defendant is an enterprise engaged in commerce or in the
production of goods for commerce within the meaning of 29 U.S.C.
203(s)(1)(A).71. Plaintiffs and the collective group members,
Defendants Servers, are similarly situated individuals within the
meaning of 29 U.S.C. 216(b).72. FLSA Section 207(a)(1) states that
an employee must be paid an overtime premium rate, equal to at
least 1 times the employees regular rate of pay, for all hours
worked in excess of 40 hours per week. 73. 29 U.S.C. 216(b),
expressly allows private plaintiffs to bring collective actions to
enforce an employers failure to comply with its requirements. 74.
Throughout the relevant period, Defendant was obligated to comply
with the FLSAs requirements, Plaintiffs and the collective group
members were covered employees entitled to the FLSAs protections,
and Plaintiffs and the collective group members were not exempt
from receiving wages required by the FLSA for any reason.75.
Defendant violated the FLSA by failing to pay Plaintiffs and the
collective group members the required minimum wage for each hour
they worked. Throughout the relevant period, Defendant has required
Plaintiffs and the collective group members to perform up to two
hours of untipped work per shift, but paid for this work at the
tipped minimum wage rate rather than the regular minimum wage rate
applicable to non-tipped work. 76. Defendant violated the FLSA by
knowingly requiring Plaintiffs and the collective group members to
regularly work as many as 13 off-the-clock hours each week during
unpaid meal breaks and after their scheduled shifts without
properly tracking this work or paying them a properly-calculated
overtime premium wage for each overtime hour they worked. 77.
Defendant violated the FLSA by knowingly requiring Plaintiffs and
the collective group members to work more than 40 hours per week
without paying an overtime premium rate for all hours beyond 40.
78. Plaintiffs and the collective group members have been harmed as
a direct and proximate result of Defendants unlawful conduct,
because they have been deprived of wages owed for work they
performed from which Defendant derived a direct and substantial
benefit. 79. By knowingly failing to ensure that Plaintiffs and the
collective group members maintained accurate contemporaneous time
records, knowingly maintaining a common policy that required them
to clock out of its timekeeping system and then return to work
off-the-clock without pay and knowingly failing to ensure that they
actually received all wages owed for the work they performed,
Defendant acted with reckless disregard of clearly applicable FLSA
provisions. 80. Defendant has no good faith justification or
defense for the conduct detailed above, or for failing to pay
Plaintiffs and the collective group members all wages mandated by
the FLSA.WHEREFORE, Plaintiffs respectfully prays for an Order:a.
Approving this matter to proceed as a collective action; b.
Appointing Kolman Ely, P.C. and Finkelstein, Blankinship,
Frei-Pearson & Garber, LLP to serve as Class Counsel; c.
Requiring Defendant to provide the names and current (or best
known) mailing and e-mail addresses of all members of the
collective group;d. Authorizing Class Counsel to issue a notice
informing the collective group members that this action has been
filed, of the nature of the action, and of their right to opt-in to
this lawsuit; e. Finding that Defendant willfully violated the
applicable provisions of the FLSA by failing to pay all required
wages to Plaintiffs and the collective group members; f. Granting
judgment in favor of Plaintiffs and the collective group members on
Count I;g. Awarding all available compensatory damages in an amount
to be determined; h. Awarding liquidated damages in an amount to be
determined; i. Awarding pre-judgment interest on all compensatory
damages due;j. Awarding a reasonable attorneys fee and
reimbursement of all costs and expenses incurred in litigating this
action; k. Awarding equitable and injunctive relief precluding the
continuation of the policies and practices pled in this Complaint;
l. Awarding any further relief the Court deems just, necessary and
proper; m. Granting leave to add additional plaintiffs by motion,
the filing of written consent forms, or any other method approved
by the Court; and n. Maintaining jurisdiction over this action to
ensure Defendants compliance with the foregoing. COUNT IIViolation
of the Pennsylvania Minimum Wage Act(for the Pennsylvania
Class)
81. The preceding paragraphs are incorporated by reference as
though set forth fully herein.82. The unpaid wages at issue in this
litigation are Wages as defined by MWA 3(d). 83. Defendant is an
Employer as defined in MWA 3(g). 84. Plaintiffs and the Class
members are Employees as defined by MWA 3(h).85. MWA 4(a.1)
requires employers to pay their employees at least the federal
minimum wage rate for all hours worked. 86. MWA 4(c) and the
applicable enabling Regulations found at 34 Pa. Code 231.42 state
that employees shall be paid for all hours worked in excess of 40
hours per week at a rate not less than 1 times their regular rate
of pay. 87. MWA 8 requires employers to keep a true and accurate
record of the hours worked by each employee. 88. MWA 13 expressly
allows private plaintiff to bring a civil action to enforce an
employers failure to comply with the MWAs requirements. 89. MWA 13
expressly provides that an agreement between the employer and
employee to work for less than the required minimum wage is not a
defense to an action seeking to recover unpaid minimum wages. 90.
Throughout the relevant period, Defendant was obligated to comply
with the MWAs requirements, Plaintiffs and the Class members were
covered employees entitled to the MWAs protections, and Plaintiffs
and the Class members were not exempt from receiving wages required
by the MWA for any reason.91. Defendant violated the MWA by failing
to keep a true and accurate record of the non-tipped work
Plaintiffs and the Class members performed. 92. Defendant violated
the MWA by paying Plaintiffs and the Class members at the tipped
minimum wage rate of $2.83 per hour instead of the regular minimum
wage rate of $7.25 per hour for all non-tipped work they performed,
a difference of $4.42 per hour. 93. Defendant violated the MWA by
knowingly requiring Plaintiffs and the Class members to regularly
work as many as 13off-the-clock hours each week during unpaid meal
breaks and after their scheduled shifts without properly tracking
this work or paying them a properly-calculated overtime premium
wage for each overtime hour they worked. 94. Defendant violated the
MWA by knowingly requiring Plaintiffs and the Class members to work
more than 40 hours per workweek without paying an overtime premium
rate for all hours beyond 40 each workweek. 95. Plaintiffs and the
Class members have been harmed as a direct and proximate result of
Defendants unlawful conduct, because they have been deprived of
wages owed for work they performed from which Defendant derived a
direct and substantial benefit. 96. By knowingly failing to ensure
that Plaintiffs and the Class members maintained accurate
contemporaneous time records, knowingly maintaining a common policy
that required them to clock out of its timekeeping system and then
return to work off-the-clock without pay and knowingly failing to
ensure that they actually received all wages owed for the work they
performed, Defendant acted with reckless disregard of clearly
applicable MWA provisions. 97. Defendant has no good faith
justification or defense for the conduct detailed above, or for
failing to pay Plaintiffs and the Class members all wages mandated
by the MWA.WHEREFORE, Plaintiffs respectfully pray for an
Order:a.Certifying this matter to proceed as a class action;
b.Appointing Kolman Ely, P.C. and Finkelstein, Blankinship,
Frei-Pearson & Garber, LLP to serve as Class Counsel;
c.Approving Plaintiffs as adequate Class representatives;
d.Requiring Defendant to provide the names and current (or best
known) mailing and e-mail addresses of all Class
members;e.Authorizing appropriate notice to the Class; f.Finding
that Defendant willfully violated the applicable provisions of the
MWA by failing to pay all required overtime wages to Plaintiffs and
the Class members; g.Granting judgment in favor of Plaintiffs and
the Class Members on Count II;h.Awarding all available compensatory
damages in an amount to be determined; i.Awarding pre-judgment
interest on all compensatory damages due;j.Awarding a reasonable
attorneys fee and reimbursement of all costs and expenses incurred
in litigating this action; k.Awarding equitable and injunctive
relief precluding the continuation of the policies and practices
pled in this Complaint; l. Awarding any further relief the Court
deems just, necessary and proper; m. Maintaining jurisdiction over
this action to ensure Defendants compliance with the foregoing.
COUNT IIIViolation of the Pennsylvania Wage Payment and Collection
Law(for the Pennsylvania Class)
98. The preceding paragraphs are incorporated by reference as
though set forth fully herein.99. Defendant is an Employer as
defined in WPCL 2.1. 100. Plaintiffs are seeking to recover wages
as that term is defined in WPCL 2.1. 101. WPCL 3(a) requires
employers to pay all wages due to their employees on regular
paydays designated in advance. 102. WPCL 7 provides that no
provision of the WPCL can be contravened or set aside by a private
agreement.103. The WPCL gives employees the right to enforce any
legal right to wages due, and its application is not limited only
to claims arising from a written contract. 104. WPCL 9.1 and 10
permit a private plaintiff to institute a class action to recover
any unpaid wages, attorneys fees and litigation costs and
liquidated damages (25% of the total amount of wages due). 105.
Throughout the relevant period, Defendant was obligated to comply
with the WPCLs requirements, Plaintiffs and the Class members were
covered employees entitled to the WPCLs protections and Plaintiffs
and the Class members were not exempt from receiving wages required
by the WPCL for any reason.106. Throughout the relevant period,
Defendant promised Plaintiffs and the Class members that they would
be properly paid for every hour they worked. 107. Defendant
violated the WPCL by paying Plaintiffs and the Class members at the
tipped minimum wage rate of $2.83 per hour instead of the regular
minimum wage rate of $7.25 per hour for all non-tipped work they
performed, a difference of $4.42 per hour. 108. Defendant violated
the WPCL by knowingly requiring Plaintiffs and the Class members to
regularly work as many as 13 off-the-clock hours each week during
unpaid meal breaks and after their scheduled shifts without
properly tracking this work or paying them a properly-calculated
overtime premium wage for each overtime hour they worked. 109.
Defendant violated the WPCL by requiring Plaintiffs and the Class
members to work more than 40 hours per workweek without paying an
overtime premium rate for all hours beyond 40 each workweek. 110.
Plaintiffs and the Class members have been harmed as a direct and
proximate result of Defendants unlawful conduct, because they have
been deprived of wages owed for work they performed from which
Defendant derived a direct and substantial benefit. 111. In failing
to ensure that Plaintiffs and the Class members actually received
the applicable minimum and overtime wages owed, Defendant acted
knowingly and with reckless disregard of clearly applicable WPCL
provisions. 112. Defendant has no good faith justification or
defense for failing to pay Plaintiffs and the Class members all
wages due to them under the WPCL.113. By knowingly maintaining a
common policy that required Plaintiffs and the Class members to
clock out of its timekeeping system and then return to work
off-the-clock without pay and knowingly failing to ensure they
actually received all wages owed for the work they performed,
Defendant acted with reckless disregard of clearly applicable WPCL
provisions. 114. Defendant has no good faith justification or
defense for the conduct detailed above, or for failing to pay
Plaintiffs and the Class members all wages mandated by the
WPCL.WHEREFORE, Plaintiffs respectfully pray for an
Order:a.Certifying this matter to proceed as a class action;
b.Appointing Kolman Ely, P.C. and Finkelstein, Blankinship,
Frei-Pearson & Garber, LLP to serve as Class Counsel;
c.Approving Plaintiffs as adequate Class representatives;
d.Requiring Defendant to provide the names and current (or best
known) mailing and e-mail addresses of all Class
members;e.Authorizing appropriate notice to the Class; f.Finding
that Defendant willfully violated the applicable provisions of the
WPCL by failing to pay all required overtime wages to Plaintiffs
and the Class members; g.Granting judgment in favor of Plaintiffs
and the Class Members on Count III;h.Awarding all available
compensatory damages in an amount to be determined; i.Awarding the
maximum amount of liquidated damages available to Plaintiffs and
the Class members on all compensatory damages due in this action;
j.Awarding a reasonable attorneys fee and reimbursement of all
costs and expenses incurred in litigating this action; k.Awarding
equitable and injunctive relief precluding the continuation of the
policies and practices pled in this Complaint; l. Awarding any
further relief the Court deems just, necessary and proper; m.
Granting leave to add additional plaintiffs by motion, the filing
of written consent forms, or any other method approved by the
Court; and n. Maintaining jurisdiction over this action to ensure
Defendants compliance with the foregoing. JURY DEMANDPlaintiffs
hereby demand a trial by jury in the above-captioned matter.
Respectfully submitted,Dated: June 1, 2015/s/ David J. Cohen David
J. CohenKOLMAN ELY, P.C.414 Hulmeville AvenuePenndel, PA 19047(215)
750-3134
Jeremiah Frei-Pearson(pro hac vice forthcoming)Nadia E.
Niazi(pro hac vice forthcoming)FINKELSTEIN, BLANKINSHIP,
FREI-PEARSON & GARBER, LLP 1311 Mamaroneck Avenue, Suite
220White Plains, N.Y. 10605(914) 298-3281
Counsel for Plaintiffs and the Putative Collective / Class
Members
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