Professional Documents
Culture Documents
Laura Revercomb
(845) 331-6615
Ext. 1008
9 Main Street Kingston, New York 12401 T: (845) 331-6615 F: (845) 331-6617
Jeremy McLean
Bar Roll No.: 519432
Worker Justice Center of New York
1187 Culver Road
Rochester, New York 14609
Tel: (585) 325-3050
Fax: (585) 325-7614
jmclean@wjcny.org
Attorneys for Plaintiff Rufino Muoz Gonzalez
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RUFINO MUOZ GONZALEZ,
Plaintiff,
v.
COMPLAINT
Defendants.
Plaintiff Rufino Muoz Gonzalez (herein Plaintiff), by and through undersigned counsel,
brings this Complaint and in support thereof states as follows:
NATURE OF THE ACTION
1.
This action is brought by Plaintiff for (i) unpaid overtime and untimely payment
of wages under the Fair Labor Standard Act (FLSA), and (ii) unpaid wages, unpaid overtime,
spread of hours compensation and violations of notice requirements under New York Labor Law
(NYLL).
2.
state wage laws by failing to pay Plaintiff overtime wages for the majority of hours worked in
excess of forty (40) hours in a workweek, failing to pay spread of hours wages and by
systematically engaging in wage statement and notice violations.
JURISDICTION AND VENUE
3.
Jurisdiction is conferred upon this Court by 28 U.S.C. 1331, this action arising
under the laws of the United States, by 28 U.S.C. 1337, this action arising under the Acts of
Congress regulating commerce, and by 29 U.S.C. 216(b) of the FLSA.
4.
This Court has supplemental jurisdiction over the state claims raised by virtue of
28 U.S.C. 1367, and Plaintiffs state law claims involve the same case or controversy as
Plaintiffs federal law claims.
5.
Deisings Bakery & Pastry Shop, Inc. (herein Corporate Defendant) resides in this District and a
substantial part of the events or omissions giving rise to the claim occurred in this District.
PARTIES
6.
7.
8.
9.
principal executive office located at 109-115 North Front Street, Kingston, New York 12401.
10.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Eric Deising was an owner and corporate executive of Corporate Defendant.
11.
Upon information and belief, Defendant Eric Deising lives in Ulster County,
New York.
12.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Eric Deising had the authority to, and did in fact, exercise active, operational control
over all aspects of the day-to-day functions of Corporate Defendant.
13.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to actively managing,
supervising, and directing business operations.
14.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to the power to establish
the terms and conditions of employment of its employees, including Plaintiff.
15.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to the power to hire and
fire its employees, including Plaintiff.
16.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to control over employee
work schedules, including Plaintiff's work schedule.
17.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to the ability to determine
the rate and method of employee payment, including the rate and method of payment for
Plaintiff.
18.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to maintaining the entity
and its employment records, including Plaintiff's records.
19.
At all times relevant to this Complaint, Defendant Eric Deising acted directly
and indirectly in Corporate Defendant's interest in relation to its employees, including Plaintiff.
20.
Upon information and belief, Defendant Norman Deising lives in Ulster County,
New York.
21.
Upon information and belief, and at all times relevant to this Complaint,
Upon information and belief, and at all times relevant to this Complaint,
Defendant Norman Deising had the authority to, and did in fact, exercise active, operational
control over all aspects of the day-to-day functions of Corporate Defendant.
23.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Norman Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to actively managing,
supervising, and directing business operations.
24.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Norman Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to the power to establish
the terms and conditions of employment of its employees, including Plaintiff.
25.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Norman Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to the power to hire and
fire its employees, including Plaintiff.
26.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Norman Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to control over employee
work schedules, including Plaintiff's work schedule.
27.
Upon information and belief, and at all times relevant to this Complaint,
Defendant Norman Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to maintaining the entity
and its employment records, including Plaintiff's records.
28.
At all times relevant to this Complaint, Defendant Norman Deising acted directly
and indirectly in Corporate Defendant's interest in relation to its employees, including Plaintiff.
29.
Upon information and belief, for all times relevant to this action, Defendants
have constituted an enterprise engaged in commerce, and in operating their business, have
performed related activities through unified operation or common control for a common business
purpose.
30.
Upon information or belief, for all times relevant to this action, Defendants have
employed two (2) or more individuals, including Plaintiff, handling, selling, or otherwise
working on goods or materials that have been moved in or produced for commerce including
food products, kitchen appliances, silverware and general dcor.
31.
sales made or business done was not less than $500,000 in each of the past three (3) fiscal years.
FACTS
32.
At all times relevant to this Complaint, Plaintiffs job duties and responsibilities
for Defendants included but were not limited to preparing and decorating cakes and baked goods.
Plaintiff was also tasked with general cleaning duties, including mopping, washing dishes, and
cleaning the kitchen area.
34.
At all times relevant to this Complaint, Plaintiff would arrive at work at 4:00am
on Tuesday, Wednesday, Thursday, Friday and Saturday and would leave work between
12:00pm and 4:00pm depending on verbal instructions from Defendants.
36.
At all times relevant to this Complaint, Plaintiff would arrive at work at 3:00am
on Sunday and would leave work between 9:00am and 4:00pm depending on verbal instructions
from Defendants.
37.
At all times relevant to this Complaint, Plaintiff's spread of hours worked was six
(6) to twelve (12) hours per day, Tuesday through Sunday, totaling approximately thirty-eight
(38) to sixty (60) hours each week.
38.
At all times relevant to this Complaint, Plaintiff was not provided with breaks to
39.
At no time between his date of hire (1989) and February 2016 was Plaintiff
compensated with an additional hour at the then-prevailing minimum wage when his spread of
hours exceeded ten (10) hours per work day.
40.
At all times relevant to this Complaint, Plaintiff's work hours were increased
beyond ten (10) hours per work day during, and for the two (2) weeks preceding, each of the
following holidays and other community events: New Year's day, Valentine's Day, Easter,
Mother's Day, graduation (college and high school), summer wedding season, 4th of July,
Halloween, Thanksgiving and Christmas.
41.
employees, including Plaintiff, to record work hours on two separate punch cards, one card for
work hours up to forty (40) and one card to document overtime hours.
42.
document work hours up to forty (40) in or about 2011 or 2012, but continued to use a punch
card system and cash payment for overtime hours.
43.
Upon information and belief, and at all times relevant to this Complaint,
Defendants paid employees, including Plaintiff, separately and in cash at his regular hourly rate
for any and all work time recorded by way of the overtime punch card.
44.
Upon information and belief, and at all times relevant to this Complaint,
Defendants would periodically reprimand employees for entering overtime hours into the
computerized system and instruct them to use the overtime punch card machine only.
45.
records were reduced by Defendants resulting in time records which did not accurately reflect
hours worked by employees, including hours worked by Plaintiff.
46.
($18.75) per hour for a small portion of the hours he worked over forty (40) in a workweek.
47.
($18.75) per hour for a small portion of the hours he worked over forty (40) in a workweek.
48.
cents ($18.75) per hour for a small portion of the hours he worked over forty (40) in a workweek.
49.
In early February 2012, Defendants paid Plaintiff eighteen dollars ($18.00) per
hour for a small portion of the hours he worked over forty (40) in a workweek.
50.
five cents ($18.75) per hour for a small portion of the hours he worked over forty (40) in a
workweek.
51.
nineteen dollars and eighty-seven cents ($19.87) per hour for a small portion of the hours he
worked over forty (40) in a workweek.
52.
Upon information and belief, Plaintiff used an unknown amount of paid sick
days, paid vacation days and paid holiday days from 2010-2016.
53.
In 2013 or 2014, Plaintiff did not work for Corporate Defendant for
In 2015, Plaintiff did not work for Corporate Defendant for approximately nine
compensated at the rate of time-and-one-half the regular hourly rates for a majority of hours
worked in excess of forty (40) hours in a workweek.
56.
Plaintiff was not provided, at any time during his employment with Defendants,
including at Plaintiff's date of hire, proper notice stating his regular hourly rate and overtime rate
of pay.
57.
Plaintiff was not provided, at any time during his employment with Defendants,
Plaintiff was not provided, at any time during his employment with Defendants,
a true and accurate statement of payment of wages, listing gross wages, deductions and net
wages.
59.
Upon information and belief, Plaintiff was not provided, at any time during his
employment with the Defendants, with information including but not limited to rate of pay
notices or wage statements in his primary language or otherwise.
FIRST CAUSE OF ACTION
(Fair Labor Standards Act Payment of Wages)
60.
Plaintiff repeats and reiterates each and every allegation contained in the
Defendants failed to pay overtime wages as required by the Fair Labor Standards
Defendants failure to pay the required overtime wage was willful within the
meaning of 20 U.S.C. 255 as Defendants knew or showed reckless disregard for the issue of
whether Defendants conduct was prohibited under the FLSA.
63.
Defendants Failure to comply with the FLSA caused Plaintiff to suffer loss of
wages.
SECOND CAUSE OF ACTION
(New York Labor Law Payment of Wages)
64.
Plaintiff repeats and reiterates each and every allegation contained in the
Defendants failure to pay the required wages as set forth herein was willful
Defendants failure to comply with New York wage and hour protections caused
Plaintiff repeats and reiterates each and every allegation contained in the
at the then-prevailing minimum wage when his spread of hours exceeded ten (10) hours in any
given day.
70.
Wage Order Part 146 of Title 12 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (12 NYCRR 146).
71.
Defendant's failure to comply with New York wage and hour protections caused
Plaintiff repeats and reiterates each and every allegation contained in the
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73.
At no time did Defendants furnish Plaintiff with proper written pay notice at the
At no time did Defendants furnish Plaintiff with a proper written pay notice
reflecting Plaintiff's regular rate of pay, or any changes to Plaintiff's rate of pay, in violation of
NYLL 195(1).
75.
Defendants' failure to furnish Plaintiff with proper pay notices and wage
statements in accordance with New York Labor Law 195, entitles Plaintiff to recover damages
under New York Law 198.
WHEREFORE, Plaintiff requests this Court enter an Order:
i.
Granting judgment to Plaintiff on his FLSA claims and awarding Plaintiff his
Granting judgment to Plaintiff on his New York Labor Law claims and awarding
unpaid overtime wages, spread of hours compensation, damages for inadequate pay notice and
statutory liquidated damages, as well as other damages allowed under New York law;
iii.
iv.
Awarding Plaintiff his costs and reasonable attorneys fees and costs; and
v.
Granting such further relief as the Court deems just and proper.
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