Marjorie Mcfarlane v. HNR and Harry

Supreme Court Cases: 14-1094 and 19-1210 indicate that consent must be obtained before filling any case under FLSA

Summons and Complaint

Order on McFarlane

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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MARJORI E MCFARLAN E, VELMA PALMER, and

CLAIRE WILLIAMS,

-against-

Plaintiffs,

Case No.: 17-cv-06350

COMPLAINT

HARRY ‘S NURSES REGISTRY, HARRY’S HOMECARE INC., and HARRY DORVILIEN,

Defendants.

Plaintiffs MARJORIE MCFARLANE, VELMA PALMER, and CLAIRE WILLAIMS individually and on behalf of others similarly situated (collectively “Plaintiffs”), by their attorneys, The Law Offices of Vincent P. White, allege upon knowledge to themselves and upon information and belief as to all other matters, and as against HARRY ‘S NURSES REGISTRY, HARRY’S HOMECARE, INC., and HARRY DORVILIEN individually (collectively “Defendants”), alleging

as follows:

NATURE OF THE ACTION

1. This action is brought pursuant to the Fair Labor Standards Act (“FLSA”), 29

U.S.C. §§ 207 and 216(b), New York Labor Law (“NYLL”) Article 6 §§ 190 et seq, New York Labor Law§ 663, and federal and state regulations on behalf of plaintiffs who furnished labor to Defendants, to recover for unpaid wages, improperly withheld wages, unpaid overtime wages, improper pay stubs, and all of her stat tutor il y required compensation owed to Plaintiffs.

2. 2. Defendants ‘ actions were unlawful and Plaintiffs seek injunctive and declaratory

relief, monetary, compensatory and punitive damages, liquid ated damages, interest, atto rneys’

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fees, costs, and other appropriate legal and equitable relief pursuant to the FLSA and NYLL, and such to her fl1 other relief as this Court deems necessary and proper.

JURISDICTION AND VENUE

@ This Court has jurisdiction over Plaintiff’s federal claims pursuant to the Fair Labor

Standa rds Act, 29 U.S.C. § 201 et seq.

4. The Court h as supplemental jurisdiction over the Plaintiffs related claims arising under state and loca l law pursuant to 28 U.S.C. §1367(a).
5. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because a s ubstantia l part of the events or om i ssions giving rise to this action, inc luding the unlawful emp loyment practices alleged herein, occurred in this district.

THE PARTIES

6. 6. Plainti ff McFarlane resides in the state of New York and began working as a

Licensed Practical Nurse for Defendant from February 2016 to the present.

7. PlaintiffPalmer resides in the state ofNew York and began working as a Licensed

Practical Nurse for Defendant from February 2016 to the present.

8. Plainti ff Williams resides in the State of New York and began working as a

Licensed Practical Nurse for Defendant fi·om Febru are 201 6 to the present.

9. Defe ndant Dorvilien is an individual residing in the State ofNew York, and is an owner of Harry’s Homecare and Harry ‘s Nurses Registry.

10. Defendants Harry’s Homecare and Harry’s Nurses Registry is a domestic business corporation organized and existing under the laws of the State of New York, with its principal place of business at 88-25 163rd Street, Jamaica, New York 11432.

11. At all times relevant to this action, Defendants were “employers” of Plaintiffs within the meaning of the FLSA and NYLL.
12. At all times relevant to this action, Defendant Harry Dorvilien served as owner of Harry’s Homecare and Harry’s Nurses Registry, held supervisory positions over the Plaintiffs, and was in a position of authority to undertake or recommend tangible employment decisions, and/or control the terms and conditions of Plaintiffs ‘ employment, including Plaintiffs’ compensation, with Defendants Harry’s Homecare and Harry’s Nurses Registry.
13. At all times relevant to this action, Plaintiffs were “employees” of Defendants within the meaning of the FLSA and NYLL, entitled to protection.

FACTUAL ALLEGATIONS

Individual Plaintiffs

1. Plaintiffs are employees of Defendants who are employed as Licensed Practical

Nurses.

2. Plaintiffs worked in excess of 40 hours per week, without appropriate wage and overtime compensation for the hours that they worked.
3. Plaintiffs ‘ work duties required neither discretion nor independent judgment.
4. 4. Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiffs appropriately for overtime hours
5. Defendants did not require Plaintiffs to keep track of their time, nor did Defendants

utilize any time tracking device such as punch cards, that accurately reflected actual hours worked.

6. Defendants failed to provide Plaintiffs with notification, in either the form of posted notices or other means, regarding overtime and wages under the FLSA and NYLL.
7. Defendants did not give any notice to Plaintiffs of their rate of pay, employer’s regular payday, and such other information as required by NYLL 195(1).
8. Defendants did not provide Plaintiffs with a statement of wages with each payment of wages, as required by NYLL 195(3).
9. Defe pendants failed to post at the workplace, or otherwise provide to employees, the required postings or notices to employees regarding the applicable wage and hour requirements of the FLSA AND NYLL.
10. Defendants failed to provide Plaintiffs and other employees with wage statement at the time of their payment of wages, containing: the dates of work covered by that payment of wages; the name of the employee; the name of employer; address and phone number of the employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions; allowance, if any, claimed as part of the minimum wage; net wages; the regular ho URL y rate or rates of pay; the overt im e rate or rates of pay; the number of regular hours worked; and the number of overtime hours worked, as required by the NYLL 195(3).

I 1. Defendants failed to provide Plaintiffs and other employees, at the time of hiring and for each subsequent year, a statement containing: the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; the regular payday designated by the employer; the name of the employer; any “doing business as” names used by the employer; the physical address of the employer’s main office or principal place of business, and a mailing address if different; and the telephone number of the employer, as required by NYLL 195(1).

12. Defendants willfully disregarded and purposely evaded recordkeeping requirements of the FLSA and NYLL by failing to maintain accurate and complete timesheets and payor II records.
13. At all times relevant to this Complaint, Defendants maintained a policy and practice of requiring Plaintiffs to work in excess of 40 hours a week without paying them appropriate wages, overtime compensation, or spread of hours pay as required by federal and state law regulations.
14. Defendants engaged in their unlawful conduct pursuant to a corporate policy of minimizing labor costs and denying employees compensation by knowingly violating the FLSA and NYLL.

Plaint

14. Defendants employed Ms. McFar lane as a Licensed Practical Nurse at a rate of

$25.00 an hour. Defendants have employed Ms. McFar lane from February 2016 through the present.

15. 15. Plaintiff McFarlane typically worked three to four days from Sunday through Saturday (from 8 a.m. until 8 p.m. or 8 p.m. to 8 a.m. ). On those weeks that she worked four days per week, she worked in excess of 40 hours. Defendants fail ed to pay Plaintiff McFarlane $25.00 per hour.
16. Ms. McFarlane worked the above-stated schedule on a regular basis each and every week fi·om the beginning of her employment until the present.
17. 17. During Ms. McFarlane’s entire employment tenure, Defendants paid her approximately zero overtime wages, solely paying Ms. McFarlane her pay rate for only forty hours or for straight-time.
18. Defendants intentionally refused to pay Ms. McFarlane overtime wages during her entire employment tenure.
19. Plaintiff McFarlane cannot recall with precision the amount of overtime that remains unpaid. However, the amount of overtime that is owed by Defendants to Plaintiff McFarlane is known to the Defendants and can be determined through an examination of their shift records, payroll records, and computerized timekeeping records.
20. Defendants refused to pay Plaintiff McFarlane her lawfully due to wages after she applied for her vacation time.
21. Defendants failed to provide notification, either in form of posted notices or other means, regarding overtime and wages under the FLSA and NYLL.
22. Defendants failed to provide Ms. McFarlane with notification of her rate of pay, employer’s regular payday, and such other information as required by NYLL 195(1).
23. Defend ants failed to provide Ms. McFarlane with a statement of wages with each payment of wages, as required by NYLL 195(3).
24. Defendants did not require Ms. McFarlane to keep track of her time, nor did

Defendants utilize any time tracking device that accurately reflected her actual hours worked.

25. Accordingly, due to Defendants’ unlawful actions, Ms. McFarlane is owed by Defendants lawful overtime wages for every hour worked over 40 in a workweek, plus all statutory damages associated with these unpaid overtime wages, failure to maintain accurate records, provide notices and wage statements.

Plaintiff Velma Palmer

26. Defendants employed Ms. Palmer as a Licensed Practical Nurse at a rate of$25.00 an hour. Defendants have employed Ms. McFarlane fi·om February 2016 through the present.
27. Ms. Palmer typically worked five to six days from Sunday through Saturday (from

8 a.m. until 8 p.m. or 8 p.m. to 8 a. m.). On those weeks that she worked four or more days per week, she worked in excess of60 hours. Defendants failed to pay Ms. Palmer $25.00 per hour.

28. Ms. Palmer worked the above-stated schedule on a regular basis each and every week from the beginning of her employment until the present.
29. 29. During Ms. Palmer’s entire employment tenure, Defendants paid her approximately zero overtime wages, solely paying Ms. Palmer her pay rate for only forty hours or for straight­
30. Defendants intentionally refused to pay Ms. Palmer overtime wages during her entire employment tenure.

31 . Ms. Palmer cannot recall with precision the amount of overtime that remains unpaid. However, the amount of overtime that is owed by Defendants to Ms. Palmer is known to the Defendants and can be determined through an examination of their shift records, payroll records, and computerized timekeeping records.

32. Defendants refused to pay Ms. Palmer her lawfully due to wages after she applied for her vacation time.
33. Defendants failed to provide notification, either in form of posted notices or other means, regarding overtime and wages under the FLSA and NYLL.
34. Defendants failed to provide Ms. Palmer with notification of her rate of pay, employer’s regular payday, and such other information as required by NYLL 195(1).
35. 35. Defendants failed to provide Ms. Palmer with a statement of wages with each payment of wages, as required by NYLL 195(3).
36. Defendants did not require Ms. Palmer to keep track of her time, nor did Defendants utilize any time tracking device that accurately reflected her actual hours worked.
37. Accordingly, due to Defendants’ unlawful actions, Ms. Palmer is owed by Defendants lawful overtime wages for every hour worked over 40 in a workweek, plus all statutory damages associated with these unpaid overtime wages, failure to maintain accurate records, provide notices and wage statements.

Plaint

38. Defendants employed Ms. Williams as a Licensed Practical Nurse at a rate of

$25.00 an hour. Defendants have employed Ms. Williams from February 2016 through the present.

39. Ms. Williams typically worked five to six days fi·om Sunday through Saturday (from 8 a.m. until 8 p.m. or 8 p.m. to 8 a.m .). On those weeks that she worked four or more days per week, she worked in excess of 48 hours. Defendants failed to pay Ms. Williams $25.00 per hour.
40. 40. Williams worked the above-stated schedule on a regular basis each and every week fi·om the beginning of her employment until the present.
41. During Ms. Williams’ entire employment tenure, Defendants paid her approximately zero overtime wages, solely paying Ms. Palmer her pay rate for only forty hours or for straight-time.
42. Defendants intentionally refused to pay Ms. Williams overtime wages during her entire employment tenure.
43. Ms. Williams cannot recall with precision the amount of ove11ime that remains unpaid. However, the amount of ove11ime that is owed by Defendants to Ms. Williams is known to the Defendants and can be determined through an examination of their shift records, payroll records, and computerized timekeeping records.

44. Defendants refused to pay Ms. Williams her lawfully due wages after she applied for her vacation time.
45. Defendants failed to provide notification, either in form of posted notices or other means, regarding overtime and wages under the FLSA and NYLL.
46. Defendants failed to provide Ms. Williams with notification of her rate of pay, employer’s regular payday, and such other information as required by NYLL 195(1).
47. Defendants failed to provide Ms. Williams with a statement of wages with each payment of wages, as required by NYLL 195(3).
48. Defendants did not require Ms. Williams to keep track of her time, nor did

Defendants utilize any time tracking device that accurately reflected her actual hours worked.

49. Accordingly, due to Defendants’ unlawful actions, Ms. Williams is owed by Defendants lawful overtime wages for every hour worked over 40 in a workweek, plus all statutory damages associated with these unpaid overtime wages, failure to maintain accurate records, provide notices and wage statements.

FffiST CAUSE OF ACTION

(FEDERAL MINIMUM WAGE AND OVERTIME VIOLATIONS)

50. Plaintiffs repeat and reallege all paragraphs above as if idly set forth herein.
51. Defendants willfully and intentionally failed to compensate Plaintiffs the applicable minimum hourly wage and to pay overtime for their hours over forty hours per week in violation of29 U.S.C § 201 et seq.
52. Defendants were Plaintiffs’ emp lo yers within the meaning of the FLSA, 29 U.S.C.

203 (d). Defendants had the power to hire and fire Plaintiffs, controlled the terms and conditions of employment, and determined the rate and method of any compensation in exchange for their employment.

53. Defendants engaged in commerce or in an industry or activity affecting commerce.
54. Defendants constitute an enterprise within the meaning of the FLSA, 29 U.S.C 203 (r-s).
55. In violation of 29 U.S.C. § 206 (a), Defendants failed to pay Plaintiffs at the applicable minimum hourly rate.
56. Defendants willfully failed to pay Plaintiffs at the app li cable minimum hour lyrate within the meaning of29 U .S.C. § 255 (a).
57. Due to Defendants’ violations of the FLSA, Plaintiff is entitled to recover from Defendants, jointly and severally, unpaid wages and unpaid overtime compensation and an equa l amount in the form of liquidated damages, as well as reasonable attorneys’ fees and costs of the action, pursuant to the FLSA, all in an amount to be determined at trial. 29 U.S.C. § 216(b).

SECOND CAUSE OF ACTION AGAINST DEFENDANT

(NEW YORK STATE MINIMUM WAGE AND OVERTIME VIOLATIONS)

58. 58. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth
59. Defendants were Plaintiffs ‘ employers within the meaning of the N.Y. Labor Law

• § 2 and 651. Defendants had the power to hire and fire Plaintiffs, controlled their terms and conditions of employment, and determined the rates and methods of any compensation in exchange for their employment.

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60. Defendants, in violation of N.Y. Labor Law § 652 (1) and the supp01ting regulations of the New York State Department of Labor, failed to pay Plaintiffs the minimum wage.
61. Defendants willfully failed to pay Plaintiffs the minimum wage within the meaning ofNYLL § 663.
62. 62. Defendants, m violation of N.Y. Labor Law 190 et seq., and supporting

regulations of the New York State Department of Labor failed to pay Plaintiffs overtime compensation at rates of one and one-half times the regular rate of pay for each hour worked in excess of 40 hours in a workweek.

63. Defendants willfully failed to pay Plaintiffs overtime compensation, within the meaning of .Y. Labor Law§ 663.
64. 64. Due to Defendants’ violations ofNew York Labor Law, Plaintiffs are entitled to recover from Defendants, jointly and severally, their unpaid minimum wages, unpaid overtime, and liquidated damages and pre-and post-judgment interest, as well as reasonable attorneys ‘ fees and costs of the action, all in an amount to be determined at trial, pursuant to N.Y. Labor Law§

663.

THIRD CAUSE OF ACTION AGAINST DEFENDANT (NEW YORK STATE UNPAID WAGE VIOLATION)

65. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.
66. 66. Defendants intentionally failed to pay Plaintiffs for work in violation N. Labor

Law§ 191.

67. Defendants failed to make a good faith effort to comply with the New York Labor

Law with respect to compensation ofPlaintiffs.

68. Due to Defendants’ violations of New York Labor Law, Plaintiffs are entitled to recover from Defendants, jointly and severally, her unpaid wages, and liquidated damages, as well as reasonable attorneys ‘ fees and costs of action, all in an amount to be determined at trial, pursuant to N.Y. Labor Law§ 198.

FOURTH CAUSE OF ACTION AGAINST DEFENDANT (FEDERAL ANTI-RETALIATION VIOLATION)

69. 69. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth
70. Defendants retaliated against employees in violation of29 U.S.C. § 215(a)(3) upon learning that Plaintiffs planned to file a lawsuit chilling their rights and those of other employees to assert their rights and become witnesses.
71. Plaintiffs are therefore entitled to injunctive relief and such legal relief as may be appropriate and attorneys ‘ fees and costs. 29 U.S.C. § 216(b) and 217.

FIFTH CAUSE OF ACTION AGAINST DEFENDANT (NEW YORK STATE ANTI-RETALIATION VIOLATION)

72. Plaintiffs repeats and reallege every paragraph above, as if fully set forth herein.
73. Defendants retaliated against employees in violation of§ 215(l)(a) of the New

York Labor Law.

74. 74. Plaintiffs are therefore entitled to injunctive relief as well as other appropriate relief and costs and attorneys ‘ fees, pursuant N.Y . Law§ 215(2)(a).

SIXTH CAUSE OF ACTION AGAINST DEFENDANT

(NEW YORK IMPROPER PAY STUBS AND DOCUMENTATION)

75. Plaintiffs repeat and reallege every paragraph above as if fully set forth herein.
76. Pursuant to N.Y. Lab. Law 198-l(d) and 195, an employer is required to provide its employee with a pay stub that accurately reflects the rate of pay, hours worked, and amounts deducted. Plaintiffs paystubs must include: the employee’s rate or rates of pay; the overtime rate of pay; the basis of wage payment (per hour, per week, piece rate, commission); any allowances the employer intends to claim as part of the minimum wage, including tip, meal, and lodging allowances, the regular payday; the employer’s name and any names under which the employer does business; the physical address of the employer’s main office or principal place of business, and if different, the employer’s mailing address; and the employer’s telephone number.
77. Plaintiffs are entitled to $100.00 for every paycheck they received that did not have a proper pay stub, pursuant to N.Y. Lab. Law§ 198-1(d)
78. Plaintiff McFarlane did not receive pay stubs that accurately reflected her hours worked, the wages owed to her, or the amount of deductions that were being taken from her wages from February 2016 to the present.
79. Plaintiff Palmer did not receive pay stubs that accurately reflected her hours worked, the wages owed to her, or the amount of deductions that were being taken from her wages from February 2016 to the present.
80. Plaintiff Williams did not receive pay stubs that accurately reflected her hours worked, the wages owed to her, or the amount of deductions that were being taken from her wages fi·om February 2016 to the present.
81. By the foregoing reasons, Defendants violated N.Y. Lab. Law§§ 198-1(d) and 195 and are liable to the Plaintiff in an amount to be determined at trial, plus interest, and attorneys’ fees, and costs

WHEREFORE, Plaintiffs pray that the Court enter judgment in their favor and against

Defendant, cont ainin g the following relief:

1. A declaratory judgment that the actions, conduct, and practices of Defendant complained of herein violate the laws ofthe United States and the State and City ofNew York;
2. Awarding Plaintiffunpaid minimum wages and overtime compensation due under the FLSA and New York Labor Law;
3. C. Awarding Plaintiff compensation for unpaid wages in violation of the New York

Labor Law;

1. D. Awarding Plaintiff liquidated damages;
2. Awarding Plaintiff pre-judgment and post-judgment interest ;
3. An award of costs that Plaintiffs incurred in this action, as well as Plaintiffs’ reasonably attorneys ‘ fees to the fullest extent permitted by law ; and
4. Such other and further relief as the Court may deem just and proper.

Dated: New York, New York

November 1, 2017

Law Offices of Vincent P. White

Michael P. Hilfert y (MH2205)

Matthew Crawford (MCOSOO)

Attorneys for Complainants

570 Lexington Avenue, 16111 Floor

New York, New York 10022 (646) 380-0038