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.

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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 ACTION
1. 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 nontipped 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.

PARTIES
8. 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 hourlypaid 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 optin 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 ALLEGATIONS
12. 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 franchiseeowned 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:
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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?
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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 FACTS

30. 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:
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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 Work
38. 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 offthe-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 Work
43. 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 offthe-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 Violation
47. 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

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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 Violation
51. 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 ALLEGATIONS
53.

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;

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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;

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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 optin process provided by 29 U.S.C. 216(b).
PENNSYLVANIA CLASS ACTION ALLEGATIONS
58.

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

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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;

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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;

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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; and
c.

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 similarlysituated 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.

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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 I
Violation 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.

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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-theclock without pay and knowingly failing to ensure that they actually received all wages owed

18

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, FreiPearson & 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;

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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 II
Violation 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.

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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 properlycalculated 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.

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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;

22

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 III
Violation 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.

23

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 properlycalculated 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.

24

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;

25

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 DEMAND
Plaintiffs hereby demand a trial by jury in the above-captioned matter.

Respectfully submitted,
Dated: June 1, 2015

/s/ David J. Cohen

David J. Cohen
KOLMAN ELY, P.C.
414 Hulmeville Avenue
Penndel, PA 19047
(215) 750-3134
26

Jeremiah Frei-Pearson
(pro hac vice forthcoming)
Nadia E. Niazi
(pro hac vice forthcoming)
FINKELSTEIN, BLANKINSHIP, FREIPEARSON & GARBER, LLP
1311 Mamaroneck Avenue, Suite 220
White Plains, N.Y. 10605
(914) 298-3281
Counsel for Plaintiffs and the Putative Collective /
Class Members

27