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Class Action & Impact Litigation"New York's Outten & Golden is famed in the market for its successful advice on class actions. Discrimination claims, and wage and hour issues form just a portion of the cases it undertakes against corporate giants like MetLife and Wal-Mart." " ‘Really in its prime’, New York headquartered Outten & Golden LLP is routinely praised for its work and has recovered over $100m in back wages, injunctive relief as well as other beneficial remedies on behalf of workers. It is acting as co-counsel alongside Lieff Cabraser Heimann & Bernstein, LLP in a gender discrimination class action against Goldman Sachs filed in September 2010. Plaintiffs in the case allege that Goldman Sachs engaged in a systemic practice of gender discrimination against female employers up to managing director level. The case is currently pending before the US District Court for the Southern District of New York. The firm has also recently filed discrimination cases against other high-profile employers such as Morgan Stanley, Goldman Sachs and Smith Barney. It is also involved in a series of overtime and wage-and-hour class actions. Chair of the class action practice group Adam Klein is highly recommended, and focuses his practice on employment discrimination and wage-and-hour claims. " Class action and impact litigation are potent tools for curbing employer abuses from economic exploitation to gender-based glass ceilings. Through our class-based litigation efforts, we have obtained well in excess of $100,000,000 in back wages, together with substantial injunctive relief and other benefits on behalf of tens of thousands of workers throughout the United States. Currently, we are actively working on systemic discrimination class actmagions against major employers – such as Smith Barney and Morgan Stanley – as well as litigating nationwide overtime class actions in courts in New York and California. Just Filed
Employment Discrimination Class Actions
Wage and Hour Class Actions
Just FiledAlliance Bernstein Entry-Level Associate Portfolio Managers Misclassification LawsuitOutten & Golden LLP, along with co-counsel, the Law Offices of Gregory R. Fidlon, P.C. of Atlanta, Georgia, represents a group of AllianceBernstein associate portfolio managers. AllianceBernstein is a global investment management firm providing investment services to clients. The Plaintiffs brought this case as a collective action under the FLSA and a class action under the New York Labor Law on behalf of themselves and other current and former APMs. Plaintiffs allege that AllianceBernstein associate portfolio managers ware misclassified as exempt from the overtime pay requirements of the FLSA and New York Labor Law and seek unpaid overtime back pay, liquidated damages, attorneys’ fees and other relief. The Plaintiffs allege that at AllianceBernstein, the associate portfolio manager position is an entry-level position with a standard job description that does not vary from office to office or department to department within the company. AllianceBernstein employs APMs in three portfolio management groups (“PMGs”): institutional equity, fixed income, and private client. The primary job of all AllianceBernstein associate portfolio managers is entering trade orders, which are clerical, data entry functions that involve minimal, if any, discretion or independent judgment. AllianceBernstein associate portfolio managers in all three sub-groups perform the same job duties and operate under the same reporting structure and deadlines. AllianceBernstein associate portfolio managers have no managerial job duties—they do not manage or supervise anyone, nor do they have authority to make operational decisions but must stay within AllianceBernstein's set parameters. AllianceBernstein associate portfolio managers have little or no direct contact with clients and do not recommend investment options; AllianceBernstein's research department and the client’s financial advisor perform those tasks. On July 20, 2011, Plaintiffs filed a motion for conditional certification of a collective action, asking the Court to require AllianceBernstein to provide them with contact information for all AllianceBernstein associate portfolio managers who worked at AllianceBernstein during the past three years and to authorize them to send them notice. In response, Defendants argued that the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes (“Dukes”) precluded a collective action. Plaintiffs responded that Dukes, an employment discrimination class action not an misclassification overtime lawsuit, has nothing to do with whether a collective action is appropriate in this case. The Plaintiffs here, unlike the plaintiffs in Dukes, challenge a specific, company-wide misclassification policy that applies to all AllianceBernstein associate portfolio managers in the same way - misclassifying AllianceBernstein associate portfolio managers as exempt from the overtime protections of the FLSA and the New York Labor Law. AllianceBernstein's primary defense (the FLSA's administrative exemption) also unites all class members because it turns on a common legal issue - whether the AllianceBernstein associate portfolio managers' primary duty is administrative work or production work. Plaintiffs argued that it is production work under Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 531-34 (2d Cir. 2009), and is perfect for collective adjudication. On August 24, 2011, the Court agreed with Plaintiffs that the case should be certified as a an FLSA collective action and granted Plaintiffs' motion. Notice was mailed to all APMs within the relevant period on October 19, 2011. Please email Justin M. Swartz (jms@outtengolden.com) or Rachel Bien (rmb@outtengolden.com, or call (212) 245-1000 for more information. Artisanal and Terrence BrennanOn June 17, 2010, Outten & Golden LLP filed a putative class and collective action lawsuit against Terrence Brennan and his Artisanal restaurant claiming violations of federal and state wage and hours laws. The complaint alleges that Mr. Brennan and Artisanal engaged in improper tip-sharing practices by distributing portions of employees’ tips to non-tip eligible employees. Please email Justin M. Swartz (jms@outtengolden.com), Rachel Bien (rmb@outtengolden.com) or Juno Turner (jturner@outtengolden.com), or call (212) 245-1000 for more information. Bank of America and Merrill Lynch Gender DiscriminationOutten & Golden LLP and our co-counsel, Lieff Cabraser Heimann & Bernstein, LLP, represent three financial advisors who filed a national class action lawsuit on March 30, 2010 in federal court in Brooklyn. The suit charges that Bank of America and Merrill Lynch, which merged in late 2008 to form the nation’s largest bank and brokerage firm, engaged in sex discrimination against female stock brokers. The Plaintiffs seek to represent a class consisting of all female Financial Advisors employed by Bank of America or Merrill Lynch during the relevant period. If certified, the lawsuit would be the largest gender discrimination class action on behalf of female brokers. The case, Calibuso, et al. v. Bank of America Corp., et al., No. 10 Civ. 1413, in the U.S. District Court for the Eastern District of New York, charges that Bank of America and Merrill Lynch have engaged in a pattern and practice of gender discrimination against female financial advisors with respect to business opportunities, compensation, professional support, and other terms and conditions of employment. The women allege that Merrill Lynch, a wholly owned subsidiary of Bank of America, discriminates against female Financial Advisors in account distributions; partnership opportunities; upfront money, pay-out rate, and other benefits in its compensation plan; as well as in other opportunities for brokers to increase their income. The complaint alleges violations of Title VII of the Civil Rights Act of 1964 and New York and Florida anti-discrimination laws. People interested in the lawsuit may provide information by visiting: www.bofagenderlawsuit.com, or calling 1-888-886-9359 to leave a message for plaintiffs’ counsel. They can also contact Adam T. Klein or Cara Greene at (212) 245-1000 for more information. Bovis Lend LeaseA federal lawsuit alleges that Bovis Lend Lease, Inc. and Bovis Lend Lease LMB, Inc., managers of many of New York City's famous construction projects, including the Mets' Citi Field and the 9/11 Memorial at Ground Zero, did not pay workers overtime wages in violation of the federal Fair Labor Standards Act (FLSA), the New York Labor Law (NYLL), and the New Jersey Wage and Hour Law (NJWHL). Renee Sewell, a former employee from Hoboken, N.J. who worked at Bovis' work sites in New York City and New Jersey, filed suit on Thursday in New York federal court on behalf of herself and other similarly situated employees. The Complaint alleges that Bovis misclassified Ms. Sewell and other similarly situated employees as exempt from the overtime requirements of the FLSA, NYLL, and NJWHL, and failed to pay them overtime for the hours they worked over 40 during many workweeks. Attorneys Adam T. Klein, Justin M. Swartz, Jack A. Raisner, and Rachel M. Bien, of Outten & Golden LLP in New York, represent Ms. Sewell. They will seek to have the lawsuit certified as a class action that includes similarly situated Assistant Project Managers, Project Engineers, and other salaried employees below the level of "Project Manager" with different titles who performed similar duties to Ms. Sewell.  Return to Top BP Oil Spill Support WorkersOn February 17, 2010, Outten & Golden LLP, along with co-counsel Burr & Smith LLP and Barrios, Kingsdorf, & Casteix LLP, filed a class action lawsuit against British Petroleum (“BP”) and BP sub-contractor The Response Group LLC. The plaintiffs are current and former oil spill response workers who were assigned to do cleanup work along the Gulf Coast following the April 20, 2010 oil spill. The lawsuit alleges that BP and The Response Group violated the Fair Labor Standards Act by misclassifying the plaintiffs and other workers as independent contractors, denying them overtime compensation, requiring them to sign unlawful employment contracts, and denying them other employment benefits. The lawsuit further alleges that the defendants took unlawful retaliatory actions against two plaintiffs after they raised concerns over their pay and retained counsel to explore their claims. The plaintiffs seek back pay, front pay, liquidated damages, punitive damages, and attorneys’ fees. Individuals who were hired by The Response Group to work for BP on the oil spill response may be eligible to be part of the lawsuit. Outten & Golden LLP, along with attorneys from Burr & Smith LLP and Barrios, Kingsdorf, & Casteix LLP, are currently investigating reports of similar practices by employers hired by BP to retain oil spill response workers. Please email Justin Swartz, Molly Brooks, or Dana Sussman or call (212) 245-1000 for more information. Chris Cannon; Altamarea Group, LLC; and ALTO 53, LLC - Tip Misappropriation, Minimum Wage, Spread of Hours, Uniform ViolationsOn August 31, 2010, Outten & Golden LLP filed a class and collective action complaint against Chris Cannon, Altamarea Group, LLC, and Alto 53, LLC. The lawsuit seeks to recover misappropriated tips, minimum wages, spread-of-hours pay, and uniform-related expenses for hourly food service workers, including assistants (servers), captains, bussers, and runners, who work or worked at Alto, an upscale Italian restaurant, located at 11 East 53rd Street in New York City. Alto, along with several other restaurants, including Marea and Convivio, are owned and/or operated by restaurateur Chris Cannon and chef Michael White. Since 2006, when Cannon asked White to take over the kitchens of Alto and Convivio (then called L’Impero), the two have swiftly built an empire of high-end Italian restaurants that will soon expand to include two new restaurants, Osteria Morini and Ai Fiori. In addition to earning critical acclaim, including glowing reviews in the New York Times, the complaint alleges that Cannon’s and White’s restaurants have earned them millions. Marea, which opened in 2009, reportedly grossed $13.5 million in its first year, notwithstanding the recession. The lawsuit alleges that, despite their great success, which Cannon and White achieved on the backs of their waitstaff, they required their waitstaff to share their hard-earned tips with tip ineligible workers, including the General Manager of Alto, that they unlawfully took a tip credit and paid less than the full minimum wage, that they denied their waitstaff spread-of-hours pay, and that they required them to purchase and launder required uniforms. Please email Justin M. Swartz (jms@outtengolden.com) or Rachel Bien (rmb@outtengolden.com, or call (212) 245-1000 for more information. Cipriani Tips, Minimum Wages, and Overtime WagesOn December 21, 2009, Outten & Golden LLP filed a class action lawsuit against Cipriani event, catering and restaurant enterprises. The plaintiffs are current and former servers who worked at Cipriani events at Cipriani 42nd Street, Cipriani Wall Street, Cipriani 23rd Street, and the Rainbow Room. The lawsuit alleges that Cipriani withheld from workers mandatory tips or “service charges” collected from customers who were contracting with the restaurant for private parties and functions. The plaintiffs also allege that Cipriani failed to pay workers the minimum wage, required employees to work off the clock without pay, shaved time worked from plaintiffs’ time records, and paid them for fewer hours than they worked. Plaintiffs allege that Cipriani failed to pay plaintiffs call-in pay when they reported to work and were sent home. Finally, plaintiffs allege that Cipriani failed to pay for the purchase and maintenance of their required uniforms. Servers who worked for Cipriani staffing agencies Exquisite Staffing, CBI Personnel, and CTI Staffing, Inc. may be eligible to be part of the lawsuit. Outten & Golden LLP is currently investigating reports of similar practices at other New York City restaurants. Please email Justin M. Swartz or Molly A. Brooks or call (212) 245-1000 for more information. Deloitte & ToucheA consolidated lawsuit, In Re Deloitte & Touche LLP Overtime Litigation, No. 1:11-cv-02461-RMB-THK, alleges that Deloitte & Touche LLP (“Deloitte”) violated federal and state labor laws by enforcing a policy of classifying all of their unlicensed audit team members as “exempt” from the overtime protections of the Fair Labor Standards Act (FLSA) and New York Labor Law, and fails to pay them overtime for the many hours they work in excess of forty in a workweek. to deprive its Auditors of earned overtime wages. The lawsuit seeks to recover unpaid overtime compensation for current and former unlicensed audit team members: Audit Assistants, Audit Senior Assistants, Audit In-Charge and Audit Seniors (also known as Staff 1, Staff 2, or Senior 1, Senior 2). The employees are represented by Outten & Golden LLP, Folkenflik McGerity, The Wynne Law Firm, Hoffman and Lazear, and other firms. Defendant Deloitte & Touche LLP is one of the largest professional service firms in the world and one of the “Big Four” accounting firms in the United States. Deloitte currently maintains numerous offices throughout the United States, employing over 50,000 supervised staff and approximately 16,000 administrative staff. Deloitte’s services include issuing opinions to clients on their financial statements. In order to avoid paying unlicensed audit team members overtime premiums for hours they worked in excess of 40 in a workweek, Deloitte has uniformly misclassified these employees as exempt from the overtime protections of the FLSA federal and New York Labor Laws. Unlicensed audit team members perform their duties under the close supervision of more senior certified Deloitte employees (i.e. Certified Public Accountants) and exercise little, or no, independent judgment and discretion as required by accountant licensing laws, professional regulations, and Deloitte’s internal audit rules. Unlicensed audit team members perform rudimentary tasks such as: looking at underlying financial documents, such as invoices, comparing the numbers on the documents to be sure they match the numbers on the company’s financial records, and adding the numbers to be sure that the “totals” on the company’s books have been accurately added. Unlicensed audit team members also spend time doing “administrative” work, which is simply ministerial work: photocopying, stuffing envelopes, printing, hole punching, addressing envelopes, filling-out forms, filing, keeping track of papers, following up on missing items, and organizing. On December 16, 2011, the Judge presiding over In Re Deloitte & Touche LLP Overtime Litigation issued an order conditionally certifying a nationwide collective of Deloitte Audit Assistants, Audit Senior Assistants, Audit In-Charge and Audit Seniors (also known as Staff 1, Staff 2, or Senior 1, Senior 2) under the federal Fair Labor Standards Act (FLSA) and authorizing the plaintiffs to send notice to all potential members of the FLSA collective to inform them of their right to join the lawsuit and attempt to recover unpaid overtime compensation under the FLSA. In conditionally certifying the class, the Judge found the Audit Class Members are “(1) similarly situated with respect to their job requirements, (2) similarly situated with regard to their pay provisions, and (3) classified as exempt pursuant to a common Deloitte policy or scheme.” Accordingly, the Judge held that the “propriety of the [exempt] classification may be determined on a collective basis.” In support of this finding, the Judge determined that Audit Class Members at Deloitte “each perform non-exempt clerical work to assist Certified Public Accounts . . . in the performance of audits and they each received training on how to complete an audit using [the Company’s] audit methodology and procedures.” Further, Deloitte’s Audit Assistants share in “their inability to exercise independent judgment and discretion with respect to matters of significance” and are “uniformly limit[ed]” by accounting licensing laws and professional rules from doing anything more than “assisting [the Company’s] CPAs in providing public accountancy services.” Finally, Deloitte has a common policy of classifying “all Audit Class Members as exempt from FLSA’s overtime protections . . . without making any person-by-person exemption determination.” The defendant is Deloitte & Touche LLP. The case is In Re Deloitte & Touche LLP Overtime Litigation, No. 1:11-cv-02461-RMB-THK, U.S. District Court, Southern District of New York, Case No. 11 CIV 02461 (RMB)(THK). Please email Justin M. Swartz (jms@outtengolden.com) or Ossai Miazad(omiazad@outtengolden.com) or call (212) 245-1000 for more information or go to our Deloitte overtime lawsuit website. Fox SearchlightOutten & Golden filed a class action lawsuit in New York federal court against Fox Searchlight, the specialty and independent film division of Twentieth Century Fox Film Corporation. Fox Searchlight is accused of failing to pay any wages at all to unpaid interns who perform the work of production assistants, bookkeepers, secretaries and janitors on films produced and co-produced by Fox Searchlight. According to the complaint, these workers are owed the applicable minimum wage rate for all hours worked, overtime for the hours that they work over 40 in a workweek, spread of hours pay on days on which they work more than 10 hours, and reimbursement for the use of their personal cell phones and laptop computers on film production work. Fox Searchlight’s practices with respect to unpaid interns allegedly violate the federal Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). We will seek to have the lawsuit certified as a class action to recover unpaid wages and other damages for all unpaid interns who have worked on films produced by Fox Searchlight between September 28, 2005 and the date of final judgment in this matter. The case is “Eric Glatt and Alexander Footman, et al., v. Fox Searchlight Pictures, Inc.,” Case No. 11 Civ. 6784 in the U.S. District Court, Southern District of New York. Please email Elizabeth Wagoner or call 212-245-1000 for more information. Goldman Sachs Gender DiscriminationOn September 15, 2010, Outten & Golden LLP, together with our co-counsel Lieff, Cabraser, Heimann & Bernstein, LLP, filed a class action complaint in New York district court against Goldman Sachs on behalf of three highly credentialed women. The lawsuit accuses Goldman Sachs, a leading global investment banking, securities and investment management firm, of engaging in a pattern and practice of gender discrimination against its female associates, vice presidents, and managing directors. The women allege violations of federal and city laws, including Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law. The case is pending before United States District Court Judge Leonard Sand. According to the complaint, the “violations of [Goldman Sachs’] female employees’ rights are systemic, are based upon company-wide policies and practices, and are the result of unchecked gender bias that pervades Goldman Sachs’ corporate culture. They have not been isolated or exceptional incidents, but rather the regular and predictable result of Goldman Sachs’ company-wide policies and practices.” Please visit www.goldmangendercase.com or call 1-800-998-3469 for more information. Mama Mexico RestaurantsOutten & Golden LLP, along with co-counsel Fitapelli & Schaffer, LLP, represent workers from three Mama Mexico restaurants in New York and New Jersey in claims that the restaurants violated federal and state wage and hour laws by withholding minimum wages, overtime compensation and misappropriating employee tips. The workers bring class action and collective action claims under the Fair Labor Standards Act (FLSA), the New York Labor Law (NYLL) and the New Jersey Wage and Hour Law (NJWL). The lawsuit seeks to recover minimum wages, overtime compensation, misappropriated tips, and other wages for servers, bussers, runners, bartenders, and other hourly food service workers who have worked at the Mama Mexico restaurants at 2672 Broadway and 214 East 49th Street in New York City and in Englewood Cliffs, New Jersey. It also includes individual claims for retaliation, pregnancy discrimination, hostile work environment, and assault and battery. According to the Restaurants’ website, Defendant Juan Rojas Campos, the founder and CEO of the Mama Mexico Restaurants, emigrated to the United States to fulfill his “American dream,” working as a “cleaning boy, bus boy, waiter and bartender.” Years later, Mr. Rojas Campos now owns and operates three “five star” Mama Mexico Restaurants in and around New York City. The website includes photographs of Mr. Rojas Campos with high-profile New Yorkers including former governor George Pataki and Donald Trump. New York City Mayor Mike Bloomberg touts Mr. Rojas Campos’ endorsement on his campaign website. According to Mayor Bloomberg’s website, Mr. Rojas Campos “settled in New York City in 1980, [and] worked his way up through the restaurant industry. He began as a dishwasher and made his way up to waiter. Eventually, he became general manager of numerous Mexican restaurants throughout New York City. After years in the industry, Rojas Campos decided to open his own restaurant and currently owns two locations in New York City.” Mayor Bloomberg said that Mr. Campos “exemplif[ies] the American dream.” Unfortunately, however, the workers allege that Mr. Rojas Campos seems to have forgotten his humble beginnings and the struggles of low-wage restaurant workers trying to make ends meet and that his success and that of his Mama Mexico Restaurants has come on the backs of his hourly food service workers. Mr. Rojas Campos and the other Defendants – individuals and entities that own, operate, and/or manage the Restaurants – have denied their workers minimum wages and overtime pay for the many hours they worked and, in some cases, failed to pay these workers any wages at all, they allege. Defendants also misappropriated customer tips – the Plaintiffs’ principal source of income – by requiring them to pool their tips with workers who are not entitled to tips under the law, the workers claim. Please email Justin M. Swartz (jms@outtengolden.com)or Rachel Bien (rmb@outtengolden.com) or call (212) 245-1000 for more information. Mario Batali, Joseph Bastianisch, Babbo Ristorante e Enoteca, Bar Jamon, Casa Mono, Del Posto, Esca, Lupa, Otto Enoteca Pizzeria, and Tarry Lodge – Tip Misappropriation, Minimum Wage, Overtime, Spread of HoursOn July 29, 2010, Outten & Golden LLP and their co-counsel, Joseph, Herzfeld, Hester & Kirschenbaum, filed an amended class and collective action complaint against Mario Batali and Joseph Bastianich. Mr. Batali and Mr. Bastianich own a restaurant empire that includes Babbo Ristorante e Enoteca, Bar Jamon, Casa Mono, Del Posto, Esca, Lupa, Otto Enoteca Pizzeria, and Tarry Lodge. The lawsuit seeks to recover minimum wages, overtime, misappropriated tips, and spread-of-hours pay for Plaintiffs and their similarly situated co-workers – hourly food service workers who work or worked at the critically acclaimed New York restaurants owned by Mr. Batali and Mr. Bastianich. The amended complaint alleges, among other things, that Mr. Batali, Mr. Bastianich, and their restaurants unlawfully confiscated a portion of their workers’ tips in order to supplement their own profits. Specifically, it alleges, at the end of every shift, instead of distributing customers’ credit card tips to the workers who earned them as the law requires, Mr. Batali, Mr. Bastianich, and their restaurants took from the tip pool an amount equal to approximately 4% or 4.5% of the restaurants’ wine sales (and sometimes other beverage sales) for the night and put it in their own pockets. On May 9, 2011, the judge overseeing the case, known as Capsolas v. Pasta Resources, No. 10 Civ. 5595, conditionally approved Plaintiffs to proceed as a collective under the Fair Labor Standards Act. The judge authorized Plaintiffs to send notice about the case to other current and former workers at Babbo, Bar Jamon, Casa Mono, Del Posto, Esca, Lupa, Otto, and Tarry Lodge, so that other workers may join the case. Please email Justin M. Swartz (jms@outtengolden.com), Rachel Bien (rmb@outtengolden.com) or Sonia Lin (slin@outtengolden.com, or call (212) 245-1000 for more information. MetroPlus HealthPlanOutten & Golden LLP filed a class action lawsuit against MetroPlus HealthPlan, Inc., a not-for-profit prepaid health services organization that competes with private for-profit and not-for-profit companies to enroll low-income New Yorkers in its health insurance products. The complaint alleges that MetroPlus violated federal and state overtime laws by failing to pay overtime for hours worked over forty in a week. The plaintiffs, are current and former Marketing Representatives who regularly worked long hours, often well into the night after a full day’s work, identifying, potential enrollees, and collecting and verifying documents from enrollees demonstrating their Medicaid eligibility. The case, “Drayton et al. v. MetroPlus Health Plan, Inc. et al. (No. 10-9686)," was brought in the district court for the Southern District of New York before District Court Judge Jed S. Rakoff. On August 9, 2011, the Court endorsed the parties' settlement agreement which settled the case on behalf of 44 plaintiffs for $492,198.00. We are now preparing to file a second lawsuit on behalf of marketing representatives who did not join the first case. Please email Justin M. Swartz (jms@outtengolden.com) or Melissa Pierre-Louis(mpierrelouis@outtengolden.com) or call (212) 245-1000 for more information. Penthouse Executive Club Dancers - Tip Misappropriation, Unlawful House Fees, and Minimum Wage and Overtime CaseOn February 11, 2010, Outten & Golden LLP and the Sex Workers Project of the Urban Justice Center filed a class action lawsuit against the Penthouse Executive Club and its owners Robert Gans and Mark Yackow on behalf of entertainers (dancers) who have worked at the club between February 11, 2006 and the present. The lawsuit alleges that the Penthouse Executive Club regularly deprived entertainers of their rights under federal and New York State wage and hour laws, including their right to be paid proper minimum wages, their right to be paid proper overtime compensation, their right to keep customer gratuities they earn, their right to be reimbursed for uniform expenses, and their right to work without paying “house fees.” The lawsuit seeks to recover on behalf of Penthouse Executive Club entertainers all of the wages they have earned, all of their confiscated tips, and all of the fees they were forced to pay, as federal and state law require. Outten & Golden LLP and the Sex Workers Project of the Urban Justice Center are currently investigating reports of similar practices at other New York City adult nightclubs. Outten & Golden LLP currently represents more than 70 dancers who worked at Scores in Diaz v. Scores Holding Co., No. 07 Civ. 8718 (S.D.N.Y.) As outlined in the Penthouse Executive Club complaint, the Penthouse Executive Club and other clubs in the adult entertainment industry, in New York City and across the country, frequently classify exotic dancers as independent contractors and disregard their basic wage and hour and other employment rights. These entertainers work in an unorganized industry characterized by wide disparities in bargaining power between workers and club owners. As a result, clubs like the Penthouse Executive Club are well positioned to take advantage of exotic dancers and deny them their rights as workers. The Complaint explains that, over the years, entertainers at adult clubs like the Penthouse Executive Club have made some strides by winning recognition as employees and otherwise protecting their workplace rights, including in cases prosecuted by the United States Department of Labor. See, e.g., Reich v. Circle C Invs., 998 F.2d 324, 326-29 (5th Cir. 1993) (upholding trial court’s determination that adult club dancers are employees within the meaning of the Fair Labor Standards Act); Diaz v. Scores Holding Co., No. 07 Civ. 8718, 2008 U.S. Dist. LEXIS 38248, at *6 (S.D.N.Y. May 9, 2008) (conditionally certifying Fair Labor Standards Act collective of entertainers and other workers at New York City adult night club and authorizing notice to putative members of the collective); Whiting v. W & R Corp., No. 2:03-0509, 2005 U.S. Dist. LEXIS 34008, at *6-9 (S.D. W. Va. Apr. 18, 2005) (denying defendant’s motion for summary judgment in wage and hour case brought by dancer at exotic dance club); Harrell v. Diamond A Entm’t, Inc., 992 F. Supp. 1343, 1347–54 (M.D. Fla. 1997) (holding that dancer at adult night club was employee for purposes of the Fair Labor Standards Act); Reich v. Priba Corp., 890 F. Supp. 586, 594 (N.D. Tex. 1995) (after bench trial, finding dancers at adult night club were employees for purposes of the Fair Labor Standards Act in case brought by the Department of Labor); Donovan v. Tavern Talent & Placements, Inc., Civ. No. 84-F-401, 1986 U.S. Dist. LEXIS 30955, at *6–7 (D. Colo. Jan. 8, 1986) (holding that night club operators employed dancers and violated their rights as tipped employees); Chaves v. King Arthur's Lounge, Inc., No. 07-2505, 2009 Mass. Super. LEXIS 298, at *19-20 (Mass. Super. Ct. July 30, 2009) (holding defendant bar/lounge misclassified exotic dancers as independent contractors under Massachusetts law); Smith v. Tyad, Inc., 209 P.3d 228, 231-34 (Mont. 2009) (upholding state wage enforcement agency’s finding that exotic dancers are employees and upholding agency’s authority to deem deduction of “stage fees” unlawful requiring reimbursement). See also Carrie Benson Fischer, Employee Rights in Sex Work: The Struggle for Dancers' Rights as Employees, 14 Law & Ineq. J. 521 (June 1996). Nevertheless, the adult entertainment industry in New York City and elsewhere remains largely out of compliance with basic worker protection statutes. The Penthouse Executive Club, a leader in the industry, is no exception. It regularly deprives entertainers of their rights under federal and New York State wage and hour laws, including their right to be paid proper minimum wages, their right to be paid proper overtime compensation, their right to keep customer gratuities they earn, their right to be reimbursed for uniform expenses, and their right to work without paying “house fees.” For more information, please email Justin Swartz (jms@outtengolden.com), Mariko Hirose(mhirose@outtengolden.com), or Elizabeth Wagoner (ewagoner@outtengolden.com), or call (212) 245-1000. PricewaterhouseCoopersA lawsuit filed on August 16, 2011 alleges that PricewaterhouseCoopers LLP (“PwC”) violated the New York labor laws by enforcing a nationwide policy to deprive its Unlicensed Associates of earned overtime wages according to Outten & Golden LLP. The lawsuit seeks to recover unpaid overtime compensation for Unlicensed Associates who have worked for PwC. The employees are represented by Outten & Golden LLP, Kessler, Topaz, Meltzer & Check LLP, Law Office of Steven Elster, and Markun Zusman, which will seek to have the lawsuit certified as a class action. Defendant PwC is an international audit, tax, and advisory firm with offices in 154 countries and more than 160,000 employees worldwide. PwC generated $26.6 billion in revenues during fiscal year 2010. In order to avoid paying Unlicensed Associates overtime premiums for hours they worked in excess of 40 in a workweek, PwC has uniformly misclassified Unlicensed Associates as exempt from the overtime protections of the New York Labor Laws. Unlicensed Associates perform their duties under the close supervision of more senior PwC employees and exercise little, or no, independent judgment and discretion. Plaintiff Vincent Commisso worked for PwC’s Assurance line of service as an Associate, an entry-level job that does not require a license as a Certified Public Accountant, requires no advanced level training, and primarily involves performance of routine tasks such as data entry, basic document review, counting, comparing data among client documents and records, photocopying, and organizing. Mr. Commisso regularly worked more than 40 hours per week, but Defendant classified Mr. Commisso as exempt and failed to pay him the overtime premium that he was entitled to receive under the New York Labor Laws. The defendant is PricewaterhouseCoopers LLP. The case is "Commisso, et al. v. PricewaterhouseCoopers LLP," U.S. District Court, Southern District of New York, Case No. 11 CIV 5713 (NRB). Please email Justin M. Swartz (jms@outtengolden.com) or Ossai Miazad(omiazad@outtengolden.com) or call (212) 245-1000 for more information. Washington Mutual (WaMu) Overtime Class ActionOutten & Golden LLP has filed a nationwide class action lawsuit against Washington Mutual Bank ("WaMu") alleging that WaMu failed to pay its underwriters overtime pay as required by the federal Fair Labor Standards Act (FLSA) and NY state law. The case is called Aber-Shukofsky et al. v. JPMorgan Chases & Co et al., No. 10 Civ. 00226, and it is pending in the U.S. District Court for the Eastern District of New York. The plaintiffs are former underwriters who allege that they were deliberately misclassified as FSLA exempt so that WaMu could avoid paying them overtime compensation as required by law. The plaintiffs worked well in excess of 40 hours a week and received no overtime pay. Underwriters from California, Illinois, New York, and Washington have already joined the lawsuit. Please email Jack A. Raisner (jar@outtengolden.com) or Lauren Schwartzreich (les@outtengolden.com) or call (212) 245-1000 for more information. Employment Discrimination Class ActionsBellevue Hospital and New York City Health and Hospitals Corporation - Race Discrimination Based on Results of Criminal Background CheckOn January 23, 2009, O&G’s client filed a class-wide race discrimination charge with the Equal Employment Opportunity Commission against Bellevue Hospital and New York City Health and Hospitals Corporation alleging that HHC/Bellevue discriminates against African-American and Hispanic job applicants by illegally using criminal history reports in making hiring decisions. The charge alleges that O&G’s client interviewed for a clerical job at Bellevue/HHC, Bellevue/HHC offered her the job, but later revoked the offer of employment because she did not meet its “background requirements.” A blanket ban on hiring formerly incarcerated individuals has a disparate impact on African Americans and Hispanics because a disproportionate percentage of ex-offenders are racial minorities. An employer may not use hiring criteria that have a disparate impact on racial minorities unless it can show that those criteria are “job related” and “consistent with business necessity.” New York City and State laws also prohibit employers from discriminating against job applicants on account of their criminal convictions unless there is a “direct relationship” between the conviction and the job at issue. O&G is currently investigating similar claims at major retail chains and companies. Please contact Justin M. Swartz (jms@outtengolden.com) or Ossai Miazad (omiazad@outtengolden.com) for more information or to discuss similar matters. Driver Solutions - Race Discrimination Based on Results of Criminal Background CheckOn April 30, 2010, Outten & Golden filed a class action lawsuit against Driver Solutions, a company that provides training and placement for over-the-road truck drivers, alleging that Driver Solutions discriminates against African-American and Latino job applicants by illegally using criminal history reports in making hiring decisions. The charge alleges that, by rejecting applicants for employment based on their criminal record, Driver Solutions violated Title VII of the Civil Rights Act of 1964 and engaged in a policy or pattern and practice of discrimination against African-American job applicants. A corporate policy that bans hiring formerly incarcerated individuals has a disparate impact on African Americans and Hispanics because a disproportionate number of ex-offenders are racial minorities. An employer may not use hiring criteria that have a disparate impact on racial minorities unless it can show that those criteria are “job related” and “consistent with business necessity.” O&G is co-counsel in this matter with Community Legal Services, Inc. Please contact Rachel Bien(rmb@outtengolden.com) for more information or to discuss similar matters. Easterling v. State of Connecticut Department of CorrectionOn May 30, 2008, Outten & Golden and Public Citizen Litigation Group filed a sex discrimination class action on behalf of Cherie Easterling, and all other women denied a position as a Correction Officer with the Connecticut Department of Correction because they failed the 1.5 mile run aspect of the application process. The lawsuit seeks declaratory, injunctive, and additional equitable monetary relief under Title VII of the Civil Rights Act of 1964 on behalf of approximately 125 women. The complaint alleges that the use of the 1.5 mile run test disproportionately excluded women from obtaining the Correction Officer position and was not supported by business necessity. The Court granted class certification on January 4, 2010, and shortly thereafter, on May 5, 2011,found the Department’s use of the 1.5 mile run test had a discriminatory disparate impact on female applicants in violation of Title VII. Subsequent to the Court’s determination that the Department was liable, the Department filed a motion seeking to decertify the class on July 14, 2011, which the Court denied on November 22, 2011. However, the Court adjusted its previous class certification order to provide for a bifurcated proceeding under Rule 23(b)(2)-(b)(3), (c)(4), in which the determination of liability and relief would be litigated separately. As a result of these decisions, any woman who applied for a Correction Officer position with the Connecticut Department of Correction between 2004-2006, who failed only the 1.5 mile portion of the physical fitness test, is currently presumptively entitled to an award of their lost wages and the value of lost benefits. The recovery period for back pay potentially extends from the date they would have been appointed to the Correction Officer position (absent the 1.5 mile test) to the entry of final judgment, which is not anticipated prior to 2013. Each class member may be entitled to as much as hundreds of thousands of dollars in lost wages (including lost overtime pay), with a reduction for any wages they have actually earned in employment since their application. Class members may also be entitled to front pay or priority hiring with retroactive seniority. Plaintiffs’ counsel will be sending class notice for the relief phase of the class to all class members on January 17, 2012 (notice was not required by the Court for the previous liability phase of the litigation). The purpose of this notice is to inform class members of the status of the recently bifurcated relief phase of the proceeding, as well as to permit any class members who do not wish to obtain their lost wages and additional relief to opt-out. Outten & Golden and Public Citizen Litigation Group will represent any class members who do not opt-out, and their fees and costs will be paid by the Department because of the Court’s finding of liability. Plaintiffs are currently engaged in discovery concerning the total amount of class damages and additional relief for the class. Class members or members of the public who have questions or seek more information about the case should contact Cyrus Dugger(cdugger@outtengolden.com) or call 212-245-1000. Gristede’s Supermarkets Gender DiscriminationNEW YORK, October 24, 2006 /PRNewswire/ - Gristede’s Operating Corp., which owns Gristede’s supermarkets, faces allegations by former employees that the grocery store chain violated civil rights laws by segregating women into lower-paying jobs and failing to promote them to management positions, according to the New York law firm representing the former employees. In a case filed Monday in New York federal court, the named plaintiffs – Vanessa Hill and Margaret Anderson, both of the Bronx – allege violations of Title VII of the Civil Rights Act, the New York State Human Rights Law, and the New York City Human Rights Law. Both women worked as part-time cashiers at Gristede’s in Manhattan. Hill worked for Gristede’s from February 1999 to January 2004, and Anderson worked there from November 2004 to December 2004. The law firm of Outten & Golden LLP will seek to have the case certified as a class action that includes current and former female employees of Gristede’s. According to the Complaint, Gristede’s steers female job applicants into cashier and bookkeeper positions, while steering male applicants into clerk positions. The Complaint alleges that Gristede’s offers the clerks more opportunities for extra hours, full-time work, and promotion to management than it offers to cashiers and bookkeepers. Attorney Piper Hoffman, of Outten & Golden, said, “We allege that the discrimination has been company-wide and pervasive. We believe the evidence will show that Gristede’s intentionally segregates women into positions that pay less and keeps them out of management.” Hoffman estimates that the lawsuit could include more than 3,000 women. The case is “Hill v. Gristede’s Operating Corp.” (No. 06 CV 10197) (LTS) in the U.S. District Court for the Southern District of New York. Please email Adam T. Klein atk@outtengolden.com, Justin M. Swartz jms@outtengolden.com , Lewis Steel ls@outtengolden.com or Cara Greene ceg@outtengolden.com or call (212) 245-1000 for more information. Madison Square Garden - Race Discrimination Based on Results of Criminal Background CheckOn August 14, 2008, O&G’s client filed a class-wide race discrimination charge with the Equal Employment Opportunity Commission against Madison Square Garden alleging that MSG discriminates against African-American job applicants by illegally using criminal history reports in making hiring decisions. The charge alleges that, by revoking an offer of employment to O&G’s client, MSG violated Title VII of the Civil Rights Act of 1964 and engaged in a policy or pattern and practice of discrimination against African-American job applicants. A corporate policy that bans hiring formerly incarcerated individuals has a disparate impact on African Americans and Hispanics because a disproportionate number of ex-offenders are racial minorities. An employer may not use hiring criteria that have a disparate impact on racial minorities unless it can show that those criteria are “job related” and “consistent with business necessity.” New York City and State laws also prohibit employers from discriminating against job applicants on account of their criminal convictions unless there is a “direct relationship” between the conviction and the job at issue. O&G is currently investigating similar claims major retail chains and companies. O&G is co-counsel in this matter with Manhattan Legal Services. Morgan Stanley Race DiscriminationOutten & Golden LLP and our co-lead counsel, Lieff Cabraser Heimann & Bernstein, LLP, and Altshuler Berzon LLP, represent a former Financial Advisor at Morgan Stanley DW, Inc. in a national class action race discrimination lawsuit filed in federal court in San Francisco. The case charges that Morgan Stanley’s retail brokerage arm engaged in a pattern and practice of race discrimination against its African American and Latino Financial Advisors and Financial Advisor Registered Trainees in compensation by favoring African American and Latino Financial Advisors and Registered Trainees in the distribution of business opportunities, accounts and other terms and conditions of employment throughout the company. A proposed settlement has been filed with the Court that provides for a class fund and substantial injunctive relief. Please email Adam T. Klein (atk@outtengolden.com) or Justin Swartz (jms@outtengolden.com) or call (212) 245-1000 for more information. Smith Barney Gender DiscriminationOutten & Golden LLP represents four female financial consultants who filed a national class action lawsuit on March 31, 2005 in federal court in San Francisco. The lawsuit charges sex discrimination at Smith Barney, the retail brokerage arm of Citigroup, which is the nation's largest financial institution. Our co-counsel on this case are Lieff, Cabraser, Heimann & Bernstein, LLP of San Francisco and Mehri & Skalet, PLLC, of Washington, DC. The lawsuit, Fassbender Amochaev v. Citigroup Global Markets Inc., dba Smith Barney, alleges that Smith Barney has engaged in a pattern and practice of gender discrimination against its female financial consultants in account distribution, compensation, and other terms and conditions of employment throughout the company. The women allege violations of Title VII of the Civil Rights Act of 1964 and California law. The complaint charges that, among other things, Smith Barney discriminates against women in the account distribution process, routinely assigning smaller and less valuable accounts to female brokers, including those who outperform their male counterparts; fails to provide women with the same level of sales and administrative support as it provides to men; and maintains a corporate culture hostile to female professionals. People interested in the lawsuit should visit www.genderlawsuitagainstsmithbarney.com, where they can submit information, or call 1-800-642-8330 to leave a message for plaintiffs' counsel. They can also contact Adam T. Klein or Justin M. Swartz at (212) 245-1000 for more information. Media coverage of this case:
Wage and Hour Class Actions230 Fifth Avenue Tips, Minimum Wages, and Overtime WagesOn September 8, 2008, Outten & Golden filed a class action lawsuit against 230 Fifth Avenue, an upscale restaurant, bar, and party venue that has the distinction of being New York City’s largest rooftop bar. The plaintiffs allege that 230 Fifth Avenue withheld from workers mandatory tips or “service charges” collected from customers who were contracting with the restaurant for private parties and functions. The plaintiffs also allege that 230 Fifth Avenue failed to pay workers the minimum wage as well as overtime compensation for all hours worked over 40 per week, required employees to work off the clock without pay, and failed to keep accurate records of all hours employees worked. Servers, runners, bussers, bartenders, barbacks, and cocktail waitresses who worked at 230 Fifth Avenue may be eligible to be part of the lawsuit. Outten & Golden LLP is currently investigating reports of similar practices at other New York City restaurants. Please email Justin M. Swartz (jms@outtengolden.com or call (212) 245-1000 for more information. A&P Class ActionFoster et al v. Food Emporium We serve as co-lead plaintiffs' counsel with Lieff, Cabraser, Heimann & Bernstein, LLP, in a lawsuit against the Great Atlantic & Pacific Tea Company (A&P) alleging that a class of hourly-rate employees within the New York Metropolitan area have not received proper compensation for all hours worked (off-the-clock) or overtime premium pay for all hours worked in excess of 40 in a work week, in violation of the Fair Labor Standards Act (FLSA). A settlement has been approved by the court that provides for a total payment of $3,110,000. Lamarca et al v. A&P On June 24, 2004, Outten & Golden LLP filed a second class action lawsuit against the Great Atlantic & Pacific Tea Company, Inc., which operates A&P, The Food Emporium, and Waldbaum's. The plaintiffs, former employees of the supermarkets, charge that the chains fail to pay employees overtime wages and delete hours actually worked from time records in violation of New York labor law. The case covers all hourly full-time employees who were employed by A&P, The Food Emporium, and Waldbaum's in the State of New York from June 24, 1998, to the present. Allstate Insurance Company No-Fault Claims Adjusters Misclassification Overtime LawsuitOutten & Golden LLP represents two Allstate no-fault claims adjusters in a class action and collective action lawsuit against the nation’s largest publicly-held personal insurance company. The plaintiffs, who allege that Allstate violated overtime laws, seek to represent a nationwide Fair Labor Standards Act (FLSA) collective of no-fault claims adjusters and a New York State-wide class of no-fault claims adjusters who worked overtime in New York. Allstate has over $133 billion in assets and earned more than $26 billion in 2010. It is an international company with offices in the U.S. and Canada, with more than 14,000 agents and representatives. The lawsuit alleges that Allstate improperly denies its no-fault claims adjusters overtime pay they are entitled to under State and Federal law by misclassifying them as exempt from the overtime protections of the FLSA and the New York Labor Law. Allstate no-fault claims adjusters spend well over 40 hours a week performing their primary duty - paying no-fault insurance claims by telephone. Their work is closely supervised and highly regulated by state insurance law and by Allstate’s own policies, which do not permit them to negotiate the settlement of claims or to determine fault. In addition to their class action overtime claims, the Plaintiffs both allege that Allstate retaliated against them for questioning Allstate’s policy of misclassifying them as exempt and denying them overtime wages, and for filing this lawsuit. Both Plaintiffs worked for the company for over ten years. The defendant is Allstate Insurance Company. The case is “Perez, et al. v. Allstate Insurance Company,” U.S. District Court, Eastern District of New York, Case No. 11 Civ. 1812. Attorney Contacts: Justin Swartz (jms@outtengolden.com), Ossai Miazad (om@outtengolden.com), and Michael J. Scimone (mscimone@outtengolden.com), Outten & Golden LLP, New York, 212-245-1000. American Home Mortgage Loan Officers Unpaid OvertimeOutten & Golden, has filed a nationwide class action lawsuit against American Home Mortgage alleging that loan officers were not paid overtime pay and minimum wage as required by the federal Fair Labor Standards Act (FLSA) and the state laws of California, New York, Illinois, Wisconsin, Washington, Colorado and New Jersey. The case is called, “Abrams et al. v. American Home Mortgage. et al” (No. C07-03252) and is pending in U.S. District Court for Northern California, San Francisco. The loan officers allege that they were paid on a commission-only basis for originating mortgage loan that they submitted to the company for processing. They worked in excess of 40 hours a week for which they received no extra compensation, and sometimes no compensation at all. Amerigroup Facilitated Enrollers (Marketing Representatives) Misclassification Overtime LawsuitAlong with Morgan & Morgan PA, Outten & Golden LLP represents a group of Amerigroup facilitated enrollers (marketing representatives) who enroll low-income New Yorkers in Medicaid and other free health insurance programs in a class action and collective action overtime lawsuit. They seek to recover unpaid overtime wages from Amerigroup Corp. and Amergroup New York, LLC (“Amerigroup”), a national health insurance company that they allege misclassified them under the Fair Labor Standards Act (FLSA) and the New York Labor Law. The Plaintiffs, Amerigroup facilitated enrollers whom Amerigroup classifies as outside salespeople, are denied overtime pay for the many overtime hours they work each week. They are prohibited by state and local law from engaging in aggressive sales practices or door-to-door solicitation. Instead, they are stationed at pre-approved marketing sites in low-income neighborhoods, where they educate people about free and low-cost insurance options. Most applicants are never required to pay anything for this insurance; Amerigroup is paid directly by New York State for each Medicaid enrollment. The Plaintiffs allege that they worked many overtime hours, well in excess of 40 hours per week, in order to attempt to meet aggressive enrollment quotas imposed on them by Amerigroup. Although they were limited in their ability to approach potential applicants, they were required to work at scheduled marketing locations every week, visit applicants’ homes to collect documents at the end of the work day, and assist applicants in completing Medicaid applications. The defendants are Amergroup Corp. and Amerigroup, New York LLC. The case is “Toure, et al. v. Amergroup Corp.,” U.S. District Court, Eastern District of New York, Case No. 10 Civ. 5391. Attorney Contacts: Rachel Bien(rmb@outtengolden.com)and Michael J. Scimone (mscimone@outtengolden.com), Outten & Golden LLP, New York, 212-245-1000. Bimmy'sOn August 3, 2010, Outten & Golden and Make the Road New York filed a class action wage and hour lawsuit in the Federal District Court for the Eastern District of New York against Bimmy’s, one of New York City’s largest wholesalers of “premium” sandwiches, wraps, salads, and other pre-packaged food items, and its owner Elliot Fread. The plaintiffs, representing a class of workers who prepare food for the company in factories in New York City, allege that Bimmy’s and Mr. Fread failed to pay the applicable minimum wage rate for all hours worked; failed to pay proper overtime compensation to employees who worked more than 40 hours in a work week; failed to reimburse workers for the cost of purchasing and laundering required uniforms; and failed to pay workers “spread of hours pay” for days on which they worked more than ten hours. The legal team will seek to have the lawsuit certified as a class action to recover unpaid wages and other damages for hourly workers employed by the defendants between June 3, 2004 and the date of final judgment in this matter. The case is ongoing. Please email Rachel Bien (rmb@outtengolden.com)or Elizabeth Wagoner(ewagonerb@outtengolden.com) or call (212) 245-1000 for more information. Bobby Flay RestaurantsOn January 16, 2009, Outten & Golden filed a class action wage and hour lawsuit in the Federal District Court for the Southern District of New York against Bold Food, LLC, the company that operates celebrity chef Bobby Flay’s restaurants – Bar Americain in New York, Mesa Grill NYC in New York, Mesa Grill Las Vegas in Las Vegas, Nev., and Bobby Flay Steak at the Borgata Hotel in Atlantic City, N.J., and formerly owned and/or operated Bolo in New York. The plaintiffs allege that Mr. Flay’s company violated the wage and hour laws by engaging in improper tip-pooling practices; failing to properly distribute the “mandatory gratuities” it charged its private party customers; redistributing portions of employees’ tips to non-tip eligible employees; failing to pay proper overtime compensation to employees who worked more than 40 hours in a work week; failing to reimburse workers for the cost of purchasing and laundering required uniforms; and failing to pay workers “spread of hour pay” for days on which they worked more than ten hours. The complaint also charges that Bar Americain suspended one named plaintiff, Patrick deMunecas, in retaliation for raising concerns with management about the restaurants’ tip policies. Please email Justin M. Swartz (jms@outtengolden.com) or Rachel Bien (rmb@outtengolden.com) or call (212) 245-1000 for more information. Boston MarketOutten & Golden LLP, the Hayber Law Firm LLC, and Klafter Olsen & Lesser LLP represent a group of former assistant general managers who worked for the Boston Market restaurant chain in a class and collective action lawsuit alleging that Boston Market misclassified assistant general managers as exempt from federal and state overtime pay requirements and failed to pay them overtime wages. According to the complaint, the plaintiffs and other assistant general managers regularly worked over 50 hours per week without receiving overtime compensation. The plaintiffs have asked the court to certify a nationwide collective of assistant general managers, with the exception of managers in California. The case is “Alli, et al. v. Boston Market Corporation,” No. 10 Civ. 4, in the United States District Court for the District of Connecticut. Please email Justin M. Swartz (jms@outtengolden.com) or Jennifer Liu(jliu@outtengolden.com) or call (212) 245-1000 for more information. ClientLogic Call Center Overtime Class ActionMore than 175 current and former ClientLogic call center workers have joined a federal lawsuit against ClientLogic alleging overtime violations. O&G has been contacted by more than 200 current and former ClientLogic call center workers from its call center facilities in Buffalo, NY; Lake City, FL; Kingstree, SC; and Starkville, MS; Huntington, WV and Las Vegas, NV. In May 2005, two workers from ClientLogic’s Buffalo, NY call center filed a class action lawsuit alleging that they were required to perform work outside their scheduled shifts, for ClientLogic's benefit, without being paid regular pay or overtime pay. In investigating the claims against ClientLogic and other companies that run call centers, including TeleTech, JP Morgan Chase, GEICO, and HSBC, O&G has found this requirement to be a common practice in the call center industry. This violates the Fair Labor Standards Act (FLSA) and the New York State Labor Law which require ClientLogic to pay its hourly workers time and a half for all hours that they work beyond forty hours in a workweek - including time that they work outside of their scheduled shifts. The case, Hens v. ClientLogic Operating Corporation, No. 05 CV 0381, in the U.S. District Court for the Western District of New York, seeks to force ClientLogic to pay thousands of employees the wages that they earned. The workers are seeking class action status. ClientLogic's call center customers include Sony, Microsoft and DirectTV. ClientLogic runs call centers in Buffalo, NY; Kenmore, NY; Tonawanda, NY; Andalusia, AL; Hamilton, AL; Winfield, AL; Milford, DE.; Lake City, FL.; Bogalusa, LA.; Starkville, MS; Las Vegas, NV.; Bloomfield, NJ; Clifton, NJ; Fairlawn, NJ; Weehawken, NJ; Albuquerque, NM; Asheville, NC; Columbus, OH; Bartlesville, OK; Norman, OK; Kingstree, SC; Nashville, TN; Oak Ridge, TN; Dallas, TX; Port Arthur, TX; and Huntington, WV. Please contact Justin M. Swartz (jms@outtengolden.com) or Cara Greene (ceg@outtengolden.com for more information. Return to Top Constantin Control Associates Class ActionO&G represents former Constantin Control Associates employees who filed a class action lawsuit in federal court seeking unpaid overtime and related remedies. The suit alleges that Constantin Control Associates has avoided paying overtime wages by misclassifying certain employees as hourly "consultants" in violation of the federal Fair Labor Standards Act and New York's Labor Law. The employees contend that they were placed into clerical positions at various financial institutions such as J.P. Morgan Chase, Bank of New York, Trust/Deutsche Bank, Rabobank, and ABN-AMRO while only receiving payment at their straight hourly rate for hours worked in excess of 40 in the work week. Return to Top Donna Karan Garment Workers' Class ActionWe serve as co-lead plaintiffs' counsel with the Asian American Legal Defense and Education Fund (AALDEF) in a lawsuit against Donna Karan alleging that a class of garment workers were forced to work seven days a week, 12 hours a day, sewing high-priced clothing for Donna Karan at a unionized factory in New York's fashion district and that they did not receive minimum wage & overtime pay in violation of the Fair Labor Standards Act (FLSA) and the New York State Labor Law. The case is now settled. Duane ReadeO&G represents Kelvin Damassia, who filed a class action lawsuit against Duane Reade, Inc. for overtime violations in its drug stores throughout New York State. The suit, which was filed in federal court in New York, charges that the drug store chain, the largest in the New York metropolitan area, has engaged in a pattern of denying overtime to many of its employees by improperly categorizing them as exempt from the overtime requirements of the Fair Labor Standards Act and New York State Labor Law. Return to Top Duane Reade -- Overtime WagesOn January 7. 2011, Outten & Golden filed a class action lawsuit against Duane Reade, the ubiquitous New York drug store with hundreds of locations throughout the state. The plaintiffs allege that Duane Reade failed to pay Assistant Store Managers overtime compensation for all hours worked over 40 per week, while requiring them to work at least 55 hours each week. Assistant Store Managers who worked at Duane Reade since 2009 may be eligible to be part of the lawsuit. On January 27, 2012, the judge overseeing the case granted Plaintiffs' motion for conditional certification, allowing FLSA notice to issue to all individuals who worked as Duane Reade assistant store managers during the past three years and informing them that they may joint the collective action lawsuit and protect their right to be paid overtime wages under the FLSA. Please contact Adam T. Klein(atk@outtengolden.com) for more information.” Eddington SecurityOn January 26, 2009, Outten & Golden LLP and The Ottinger Firm, PC filed an amended class action complaint in the United States District Court for the Southern District of New York on behalf of security guards who worked for Eddington Security, Inc., Mark Eddington, and Bovis Lend Lease LMB, Inc. The plaintiff worked for defendants at 130 Liberty Street, the former Deutsche Bank Building site that was destroyed in the attacks of September 11. He alleged that the defendants failed to pay him and other security guards overtime pay, spread of hours pay, and reimbursements for mandatory uniform maintenance and license fees, and that they also made unlawful deductions from their pay for uniforms and licenses. A class-wide settlement has been reached with all defendants in the total amount of $1.0 million. The settlement is awaiting final approval by the court. Please email Justin M. Swartz (jms@outtengolden.com) or Jennifer Liu(jliu@outtengolden.com) or call (212) 245-1000 for more information. E*TradeOn July 16, 2010, Outten & Golden LLP and the Shavitz Law Group, P.A. filed an amended collective action complaint in the United States District Court for the Southern District of New York on behalf of relationship managers who work in E*TRADE call centers and branches. The plaintiffs allege that E*TRADE misclassified them as exempt from federal overtime pay requirements and failed to pay them overtime wages. Please email Justin M. Swartz (jms@outtengolden.com) or Jennifer Liu(jliu@outtengolden.com) or call (212) 245-1000 for more information. Food Bazaar Minimum Wage and Overtime CaseNine workers have filed suit for egregious violations of Federal and New York Labor laws at the Food Bazaar Supermarket in the Bushwick neighborhood of Brooklyn. The suit, filed yesterday in the United States District Court for the Eastern District of New York, asks the court to award them more than $1.5 million in damages resulting from unpaid minimum wages and overtime compensation. The nine workers, employed as grocery baggers, received no wages despite work schedules that exceeded fifty to sixty hours per week. Although they received tips from customers, the workers’ earnings from tips fell well below the required minimum wage. Under both New York and Federal law, the supermarket was required to pay the full minimum wage plus additional overtime pay for work weeks that exceeded forty hours. Dinora Aybar, one of the nine plaintiffs and who worked at the supermarket for more than seven years, said, “They took advantage of our fears and made us compete with one another for crumbs. We worked there because this supermarket is in our community; we helped their business and they rewarded us for our hard work by firing us after not paying us for so many years.” “The complaint alleges that, in addition to bagging groceries, Plaintiffs were required to fill in for cashiers, clean the check-out aisles, and restock unwanted grocery items—all at the direction of the Defendants,” explained Linda Neilan, an attorney with Outten & Golden LLP, who together with the Urban Justice Center represents the Plaintiffs. According to David Colodny, an attorney with the Urban Justice Center, “The law is very clear that when an employer suffers or permits someone to work, the employer has to pay that person for the work.” Added Cara Greene, another Outten & Golden LLP attorney, “The federal and state labor laws were enacted to address situations exactly like this.” The Bushwick Food Bazaar Supermarket is located at 454 Wyckoff Avenue, and is owned and operated by Bogopa, Inc. and Bogopa Service Corp. The Chief Executive Officer of both companies is Hwee Ill An. Bogopa Service Corp. is the parent company of eleven supermarkets in Brooklyn, Queens, the Bronx, and New Jersey, doing business under the trade names Food Bazaar and Food Dimensions. The Plaintiffs are represented by Outten & Golden LLP and the Urban Justice Center. Please email Cara E. Greene (ceg@outtengolden.com) or call (212) 245-1000 for more information. GEICO Class ActionTillman et al. v. GEICO is a class action lawsuit filed on July 25, 2003, in New York State Supreme Court in Nassau County. Outten & Golden has joined with two of Texas' top plaintiffs' law firms, Edwards & George and Bruckner Burch, to represent the plaintiffs. The plaintiffs have brought the case under New York State law on behalf of all telephone-dedicated hourly employees who have been, or will be, employed by GEICO in its Woodbury, New York, facility at any time after July 25, 1997, through the date of final disposition of the action, who worked as telephone-dedicated employees in the Sales, Service, Direct Handling, or Claims Department. Those positions include: Sales Counselor, Sales Associate, Sales Representative, Liability Examiner, Direct Handler, Claims Representative, Liability Representative, Insurance Counselor, and Customer Service Representative. The case seeks recovery of unpaid wages and overtime premium pay for telephone-dedicated employees who had to work before and after their scheduled telephone shifts without pay. A settlement has been reached that provides for substantial monetary relief to the class. The terms of the settlement were approved by the court in late 2004, and the case is now closed. Gristede'sO&G represents current and former Gristede's grocery store employees in New York who filed a class action lawsuit in federal court seeking unpaid overtime and related remedies. The suit alleges that Gristede's has avoided paying overtime wages by misclassifying co-managers and night managers as exempt from the overtime requirements of the Fair Labor Standards Act and New York's Labor Law. The suit also alleges that Gristede's failed to pay other employees for all hours worked. The Complaint was recently amended to add a fraud claim based on allegations in the complaint that Gristede's systematically cheated workers out of millions of dollars in earned wages by falsifying payroll records. The Amended Complaint also added claims against the owner of Gristede's, John Catsimatidis, and two senior managers. On September 29, 2006, Judge Crotty certified this case as a class and collective action. In deciding the motion for class certification in favor of the plaintiffs, the Court observed that “Given Gristede’s practice of treating co-managers and department managers as hourly workers, it is irrelevant that some individual plaintiffs or others similarly situated may have assumed duties that would otherwise make them exempt under the regulations. . . . Gristede’s clearly sought to treat workers as “hourly” for some purposes (i.e., docking them for hours not worked during the workweek), but “salaried” for other purposes (i.e., not paying them overtime for hours worked in excess of the workweek). The Court also noted that: “Here, the two provisions at issue expressly require that executive and administrative employees be paid a salary. Such salaried compensation, by definition, cannot be the hourly wages Gristede’s admitted company policy dictates. Since Plaintiffs have adduced convincing evidence that Gristede’s acknowledged company policy treated co-managers and department managers as hourly employees, Defendants cannot defeat commonality by pointing to individualized exemption determinations on the basis of duties.” According to published sources, Gristede's, a leading New York City supermarket chain, is a subsidiary of the Red Apple Group. Another subsidiary of the Red Apple Group is United Refining, which processes 65,000 barrels of oil a day, distributes fuel to its 372 Country Fair/Red Apple gas stations/convenience stores in New York, Pennsylvania, and Ohio. The Red Apple Group also has real estate, aircraft leasing, and newspaper operations. Gristede's, A&P, and Duane Reade Deliverymen Class ActionWe serve as co-lead plaintiffs' counsel with the National Employment Law Project (NELP) in a class action lawsuit against Gristedes, the Great Atlantic & Pacific Tea Company (A&P), Duane Reade, and two labor agents alleging that a class of deliverymen have worked six or seven days a week, 10 to 12 hours a day, delivering groceries for sub-minimum wages in violation of the Fair Labor Standards Act (FLSA) and the New York State Labor Law. The Attorney General of the State of New York has also filed a lawsuit against A&P and is investigating these practices against the other defendants. A class-wide settlement has been reached with four defendants in the total amount of $8.1 million plus additional job-related benefits. HealthFirst Marketing Representatives Overtime LitigationOutten & Golden LLP filed a class action lawsuit against HealthFirst, Inc., an HMO that provides Medicaid and other free health insurance programs to low-income New Yorkers, alleging that the company violated federal and state overtime laws by failing to pay overtime for hours worked over forty in a week. The plaintiffs, whom HealthFirst claims are exempt outside salespeople, are current and former Marketing Representatives who regularly worked well over forty hours per week identifying Medicaid-eligible individuals at various locations throughout New York City and Long Island and helping them sign-up for free health insurance programs. The case is called “Willix et al. v. HealthFirst, Inc. et al.” (No. 07-1143), and is currently pending in the district court for the Eastern District of New York before District Court Judge Eric N. Vitaliano and Magistrate Judge Ramon E. Reyes, Jr. Please contact Justin M. Swartz (jms@outtengolden.com) or Rachel Bien (rmb@outtengolden.com) for more information. Home Depot Overtime Class ActionO&G represents a former computer room supervisor and a former bookkeeper at Home Depot's Flushing, New York store, in a suit for unpaid regular and overtime wages for all current and former Flushing store workers dating back to July, 1999. The case, Hernandez v. Home Depot, has been filed in the U.S. District Court for the Eastern District of New York in Brooklyn and seeks to force Home Depot to pay hundreds employees the regular and overtime wages that they earned. The workers are seeking class action status. These former Home Depot workers allege that, in violation of the Fair Labor Standards Act and New York wage and hour law, a Flushing Home Depot store manager pressured them to alter payroll records and shave overtime hours from other Home Depot workers store-wide, with the intent to reduce labor costs and thereby boost the manager's perceived performance. One of the plaintiffs, Dora Hernandez, alleges that Home Depot terminated her for complaining about this practice. The Flushing Home Depot store was at one point the largest-grossing store in the home improvement superstore's chain. O&G is currently investigating the extent and impact of this alleged hour-shaving scheme, which is estimated to have affected hundreds of Home Depot workers. Please contact Jack Raisner (jar@outtengolden.com) for more information. HSBC Call Center Overtime Class ActionO&G represents two former HSBC call center workers from HSBC's call center facilities in Buffalo, NY and Depew, NY in a lawsuit alleging that HSBC denied them and their coworkers overtime pay required by federal Fair Labor Standards Act ("FLSA") and New York state wage and hour laws. Our clients, James Stefaniak and Keith Panaccione, in their Class Action Complaint, allege that they were required to perform work outside their scheduled shifts, for HSBC's benefit, without compensation, and without the overtime premium that the wage and hour laws require employers to pay for hours worked in excess of 40 hours in a workweek. Based on O&G's investigations into similar overtime practices at other call centers, it appears that HSBC is part of a larger industry trend -- requiring low-paid call center workers to work outside of their scheduled shifts without compensation or overtime pay. O&G's clients have filed class action lawsuits against several other companies that run call centers, including TeleTech, JP Morgan Chase, GEICO, and ClientLogic for similar practices that would violate the Fair Labor Standards Act and state wage and hour laws. O&G is currently investigating similar practices at other call centers in the Buffalo, NY area and nationwide, including an Adelphia call center in the Buffalo, NY area. The case, James Stefaniak and Keith Panaccione v. HSBC Bank USA Inc., No. 05 CV 6528 in the U.S. District Court for the Southern District of New York, seeks to force HSBC to pay thousands of employees the wages that they earned. The workers are seeking class action status. HSBC runs call centers in Buffalo, N.Y.; Depew, N.Y.; Chesapeake, Va.; Wood Dale, Ill.; Las Vegas, Nev.; and other locations. JP Morgan Chase Class ActionsCustomer Service and Call Center Workers O&G represents current and former J.P. Morgan Chase customer service employees in New York who filed a class action lawsuit in state court seeking unpaid overtime and related remedies. The suit alleges that J.P. Morgan Chase has avoided paying overtime wages by misclassifying certain employees under New York's Labor Law. The employees contend that their jobs entail routine customer service functions for which J.P. Morgan Chase properly had paid them time-and-a-half overtime in the past. But after J.P. Morgan promoted them into re-titled positions, it stopped paying them overtime, although their functions remained the same. The claimants' job titles include client service officer, account officer, and assistant treasurer. According to Adam Klein, a lawyer with Outten & Golden LLP, one of the firms representing the employees: "There's been a lot of renaming of positions at J.P. Morgan, given the recent mergers. Along the way, the company has been converting positions from overtime-paying jobs, to exempt ones. The problem is that the employees are doing the same work as before. Employers are not relieved from their overtime obligations by 'promoting' employees into fancier-sounding positions that are different in name only." The lawsuit also alleges that J.P. Morgan Chase requires its telephone-dedicated employees to work prior to and after their scheduled telephone shifts without pay in call centers located in New York State. Call Center Workers O&G represents a former J.P. Morgan Chase & Co. call center worker in Texas who filed a collective action lawsuit in federal court pursuant to the federal Fair Labor Standards Act. Outten & Golden has teamed up with two of Texas' top plaintiffs' law firms, Edwards & George and Bruckner Burch, to represent plaintiffs who worked in Texas, Florida, Arizona, Delaware, and several other states. The suit alleges that J.P. Morgan Chase requires its telephone-dedicated employees to work prior to and after their scheduled telephone shifts without pay in call centers located in numerous states. The case seeks recovery of unpaid wages and overtime premium pay for telephone-dedicated employees, who had to work before and after their scheduled telephone shifts without pay. KPMG - Nationwide Advisory AssociatesA federal lawsuit alleges that KPMG LLP, the tax, audit, and advisory firm with 87 offices nationwide and 23,000 employees in the United States, did not pay its first and second year advisory associates overtime wages in violation of the federal Fair Labor Standards Act and the New York Labor Law. Michelle Trawinski, a former advisory associate who worked at KPMG’s office in New York City, filed suit on May 3, 2011 in New York federal court on behalf of herself and other similarly situated employees. The Complaint alleges that KPMG misclassified Ms. Trawinski and other similarly situated employees, whose main job responsibilities included such routine tasks as inputting data in templates, photocopying, data entry, and other administrative duties, as exempt from the overtime requires of the FLSA and NYLL, and failed to pay them overtime for the hours they worked over 40; Ms. Trawinski asserts that she frequently worked up to 60 hours per week. Attorneys Justin M. Swartz, Rachel M. Bien, and Dana Sussman, of Outten & Golden LLP, and Joe Fitapelli, Brian Schaffer, and Eric J. Gitig of Fitapelli & Schaffer, LLP represent Ms. Trawinski. They will seek to have the lawsuit certified as a class and collective action that includes similarly situated Advisory Associates. The case is Michelle Trawinski v. KPMG LLP, Case No. 11 Civ. 2978 in the U.S. District Court, Southern District of New York. Please email Dana Sussman(dsussman@outtengolden.com) or call (212) 245-1000 for more information. KPMG - Nationwide Audit AssociatesOn April 25, 2011, Outten & Golden LLP, along with their co-counsel Shavitz Law Group, P.A., filed a class action amended complaint in New York district court against KPMG LLP on behalf of two former audit associates. The lawsuit alleges that KPMG, the audit, tax, and advisory firm with 87 offices nationwide and more than 23,000 employees in the United States, and affiliated with KPMG International, that has combined revenues of over $20 billion in 2009 and 2010, deliberated misclassified first and second year audit associates as exempt from federal and state overtime requirements so that KPMG could avoid paying them overtime compensation as required by law. The plaintiffs worked well in excess of 40 hours per week and received no overtime pay. Individuals from Texas, Florida, Nebraska, and Washington have already joined the lawsuit. The lawsuit seeks to recover unpaid overtime pay (back wages) for Deloitte Audit Assistants and Seniors for all the hours they worked over 40 each week, liquidated damages, and other relief. KPMG has claimed that Audit Associates are “administrators" or "professionals" who are not entitled to overtime compensation. The lawsuit claims that this is a misclassification and that KPMG Audit Associates are not really “administrators" or "professionals" under the FLSA overtime provisions because they perform mostly routine low-level audit tasks such with many levels of supervision such as conducting basic reviews of client documents and financial records, conducting inventory counts, photocopying client documents and records, and entering data into Excel spreadsheets. The Plaintiffs also claim that they spent most of their time comparing numbers in financial statements with numbers in other documents, updating statements from previous years (also called “rolling forward”), entering data from documents into spreadsheets or templates and comparing and matching numbers, documenting work done during an audit, and performing clerical tasks. In depositions and declarations, Plaintiffs testified that they were required to raise problems with a senior employee, that the hierarchy of positions, the partner sign-off and the final, managerial review of work-papers . . . is consistent from engagement to engagement, that their duties include testing work (matching numbers with client’s supporting documentation), control testing and walk-throughs, reviewing work papers, testing and matching numbers, matching ending balances to the totals, deleting last year’s information and inserting current year’s information, data entry and matching numbers, filling in blanks on form letters for partners, matching numbers with the support documents that clients provide, testing, documenting, and observing procedures, documenting what clients show them, photocopying, stuffing, hole punching, and filing, assembling binders, organizing documents, ordering food. They were required to discuss any significant issues with supervisors, raise questions with managers, read over documentation to make sure it is clear and that references to other documents check out, and match ending balances to totals. On October 7, 2011, the Magistrate Judge presiding over the case issued an order denying KPMG’s request for permission to destroy thousands of KPMG Audit Associates’ computer hard drives. The Plaintiffs opposed KPMG’s motion because they believed that KPMG Audit Associates’ computer hard drives are likely to contain information valuable to determining whether KPMG misclassified its Audit Associates as exempt from the FLSA’s overtime protections and useful in determining how many overtime hours KPMG Audit Associates worked. Click here for a copy of the Magistrate Judge’s order. On January 3, 2012, the Judge presiding over the case, Pippins, et al. v. KPMG LLP, issued an order conditionally certifying a nationwide collective of KPMG Audit Associates under the federal Fair Labor Standards Act (FLSA) and authorizing the plaintiffs to send notice to all potential members of the FLSA collective to inform them of their right to join the lawsuit and attempt to recover unpaid overtime pay under the FLSA. Click here for a copy of the Court’s certification order. Attorneys Justin M. Swartz, Rachel M. Bien, and Dana Sussman, of Outten & Golden LLP, and Greg Shavitz, Keith Stern, and Hal B. Andersen of Shavitz Law Group, P.A. represent the Plaintiffs. The case is Pippins, et al. v. KPMG LLP, Case No. 11 Civ. 0377 in the U.S. District Court, Southern District of New York. For more information, please access the KPMG class action website. Please email Justin M. Swartz (jms@outtengolden.com), Rachel Bien(rmb@outtengolden.com), or Dana Sussman(dsussman@outtengolden.com) or call (212) 245-1000 for more information. KPMG - New Jersey Audit AssociatesOn June 23, 2011, Outten & Golden LLP, along with co-counsel Green Savits & Lenzo, LLC and Shavitz Law Group, P.A., filed a class action complaint in Superior Court of New Jersey, Essex County, on behalf of a former Audit Associate against KPMG LLP, the audit, tax, and advisory firm with 87 offices nationwide and more than 23,000 employees in the United States. KPMG LLP is the U.S.-member firm of KPMG International, which works in 144 countries and had combined revenues of over $20 billion in 2009. The lawsuit alleges that KPMG uniformly misclassified Audit Associates, an entry-level position that requires no advanced level training, as exempt from New Jersey overtime protections to avoid paying Audit Associates overtime. Audit Associates perform routine tasks under the close supervision of more senior KPMG employees and exercise little to no independent judgment and discretion. Plaintiff Edward Lambert, a former Audit Associate, seeks to represent a class of current and former Audit Associates in New Jersey. Please email Dana Sussman(dsussman@outtengolden.com) or call (212) 245-1000 for more information. Nationwide IBM Tech Worker Overtime Pay Class ActionOn January 24, 2006, current and former IBM technical support employees filed a class action lawsuit against IBM alleging it failed to pay overtime wages in violation of federal and state labor laws. The suit, entitled Rosenberg et al. v. IBM, was filed in federal court in San Francisco. The complaint charges that IBM illegally treats its employees who install, maintain or support computer software or equipment as "exempt" under federal and state labor laws so it does not have to pay them overtime. The proposed classes in the class action include current and former IBM technical support workers with the primary duties of installing, maintaining, or supporting computer software and/or hardware for IBM who were not paid for their overtime work because IBM wrongly classified these employees as exempt. The plaintiffs asked the federal court to order IBM to pay technical employees for the overtime they have worked in the past, and to start paying overtime to employees who are eligible for it. The plaintiffs were represented by Outten & Golden LLP along with a several other firms nationwide. Please visit the case website at www.overtimepaylawsuitagainstibm.com, email Justin M. Swartz (jms@outtengolden.com) or call toll free (877) 468-8836 for more information. New York Apple Tours Class ActionWe serve as co-lead plaintiffs' counsel in a lawsuit against New York Apple Tours alleging that a class of drivers and tour guides did not receive overtime premium pay for hours worked in excess of 40 in a work week in violation of the Fair Labor Standards Act (FLSA) and other wage and hour violations of the New York State Labor Law. The court certified this as a class action under both Federal and State Law. The case is now settled. We are investigating a number of potential employment discrimination class actions and class-based wage and hour claims. Please contact Adam T. Klein for further information. New York Sports Club Class ActionOn February 24, 2005, O&G filed a New York Supreme Court class action lawsuit against Town Sports International, Inc., the owner of the New York Sports Club, Boston Sports Club, Philadelphia Sports Club, and Washington Sports Club health and fitness clubs alleging that New York Sports Club has failed to pay its New York-based personal trainers and assistant fitness managers for all of the time that they worked and failed to pay them overtime compensation to which they are entitled under the New York Labor Law. PrecisionSettlement Agreement in Junes Santos v. Precision Pharma Services, Inc. and V.I. Technologies, Inc., 05/02446 (Suffolk Cty) Outten & Golden LLP has reached a preliminary settlement on behalf of a class of technicians and mechanics employed by V.I. Technologies, Inc. between January 26, 1999 and August 14, 2001 (“class period). Class members are entitled to recover unpaid overtime premiums from V. I. Technologies during the class period. Class members should receive notice of the amount of their claim by March 14, 2006. The settlement agreement with V.I. Technologies is available here. Shelly’s New York / Fireman Hospitality Group Withheld Tips, Minimum Wages, and Overtime CaseOutten & Golden LLP and our co-counsel, the Asian American Legal Defense & Education Fund, represent a group of workers from Shelly's Prime Steak, Stone Crab & Oyster Bar, an upscale restaurant in Midtown Manhattan, in a lawsuit charging that Shelly’s, and its parent company, Fireman Hospitality Group, misappropriated tips, failed to pay overtime, and paid workers less than the minimum wage. Servers, runners, bussers, and bartenders who have worked at Shelly’s between June 7, 2000 and the present may be eligible to be part of the lawsuit. The four named plaintiffs in the suit are members of the Restaurant Opportunities Center in New York (ROC-NY), an organization that fights for New York restaurant worker's rights. Outten & Golden LLP is currently investigating reports of similar practices at other restaurants in the Fireman Hospitality Group, and at other New York City restaurants. More than 50 current and former employees of the Redeye Grill, another Fireman Hospitality Group restaurant, filed a federal lawsuit in January 2006 alleging similar violations of the Fair Labor Standards Act and the New York Labor Law. Plaintiffs in the Redeye Grill lawsuit are also members of ROC- NY. Please email Justin M. Swartz (jms@outtengolden.com) or call (212) 245-1000 for more information. ScoresOn October 9, 2007, Outten & Golden LLP and Bruckner Burch PLLC filed a class action lawsuit against Scores Holding Company, Inc., the owner and operator of the Scores adult entertainment club in New York City. The lawsuit alleged that Scores confiscated part of its workers’ tips and failed to pay them proper minimum wages and overtime compensation. On May 9, 2008, Judge Berman granted the plaintiffs’ request to conditionally certify a collective of dancers, bartenders, and servers at the New York City adult night club and authorized that notice be sent to the members of the collective. More than 80 workers joined the action. Please email Justin M. Swartz (jms@outtengolden.com) or Jennifer Liu(jliu@outtengolden.com) or call (212) 245-1000 for more information. Strip House Restaurant New YorkOn April 29, 2009, Outten & Golden LLP and Fitapelli & Schaffer, LLP filed an amended class and collective action lawsuit in the United States District Court for the Southern District of New York against The Glazier Group Inc.; T-Bone Restaurant, LLC a/k/a Strip House New York; Peter H. Glazier; Penny Glazier; and Mathew Glazier for violations of federal and state wage and hours laws. The violations include: engaging in improper tip-pooling practices; redistributing portions of employees’ tips to non-tip eligible employees; failing to pay proper overtime compensation to employees who worked more than 40 hours in a work week; failing to reimburse workers for the cost of purchasing and laundering required uniforms; and failing to pay workers the required minimum amount of call-in pay for all days on which they report for duty. The plaintiffs, former Strip House servers, are represented by Outten & Golden LLP and Fitapelli & Schaffer, LLP. Please email Justin M. Swartz (jms@outtengolden.com) or Jennifer Liu(jliu@outtengolden.com) or call (212) 245-1000 for more information. SunTrust Mortgage Underwriters Overtime MisclassificationAlong with our co-counsel, Nichols Kaster, LLP in San Francisco, California, Outten & Golden LLP represents a group of SunTrust mortgage underwriters in their claims that SunTrust misclassified them as exempt from the overtime protections of the Fair Labor Standards Act (FLSA) and the California Labor Code, and California’s Unfair Competition Law. Plaintiffs filed their class and collective action complaint in the U.S. District Court for the Northern District of California on April 8, 2010. On November 17, 2010, Plaintiffs filed a motion asking the Court to conditionally certify a FLSA collective and to allow them to send notice to SunTrust mortgage underwriters nationwide that they can join the case and attempt to recover their unpaid overtime wages. Plaintiffs argued that all SunTrust mortgage underwriters performed the same primary duties - to review mortgage loan applications to ensure that they conformed to various detailed policies and guidelines. They did not determine which loan products the company offered and they were not involved in developing underwriting guidelines. Additionally, they were evaluated in part based on productivity and had to complete a certain number of files per day. SunTrust Mortgage underwriters did not create credit policy. They are reviewed, compared and contrasted to other mortgage underwriters on a production-based metric. Their performance was subject to review by quality control auditors. Under Davis v. J.P. Morgan Chase & Co., 587 F.3d 529 (2d Cir. 2009), Plaintiffs argued, they are all misclassified as exempt workers and entitled to unpaid overtime wages. On February 18, 2011, the Court granted Plaintiffs' motion for conditional certification of a nationwide FLSA collective of SunTrust mortgage underwriters, holding that "[a]t this initial stage, plaintiffs’ evidence is sufficient to support their allegations that they are similarly situated with respect to their FLSA claim." The Court relied on the declarations of five employees who attested that their primary job duty was to review mortgage loan applications based on companywide guidelines and SunTrust's company-wide job description: “Underwriting is responsible for processes, procedures and controls to ensure strict adherence to underwriting credit policy and does not engage in credit policy overrides or the creation of credit policy.” The Court ordered notice to be sent to Notice shall be sent "to prospective class members consisting of: all persons employed by SunTrust in the United States as a Mortgage Underwriter 1, Mortgage Underwriter 2, or Mortgage Underwriter 3 at any time between three years prior to the date of this Order and July 11, 2010." Notice was sent to SunTrust mortgage underwriters nationwide on March 11, 2011. The parties are currently involved in discovery. Please email Justin M. Swartz (jms@outtengolden.com) or Rachel Bien (rmb@outtengolden.com, or call (212) 245-1000 for more information. TeleTech/Verizon WirelessO&G represents call center workers in a collective/class action arbitration against TeleTech before the American Arbitration Association pursuant to the federal Fair Labor Standards Act, the New York Labor Law, and other state laws. Outten & Golden LLP has teamed up with the Kansas City, Missouri, law firm of Stueve Siegel Hanson Woody LLP to represent plaintiffs who work in call centers located in New York, Kansas, Virginia, and other locations. The arbitration demand, initially on behalf of some 900 workers, alleges that TeleTech requires its telephone-dedicated employees to work prior to and after their scheduled telephone shifts without pay. The case seeks recovery of unpaid wages and overtime premium pay for telephone-dedicated employees, who had to work before and after their scheduled telephone shifts without pay. Tyson Foods Meat Processing Plant Workers Unpaid Overtime ActionOutten & Golden, along with co-counsel Stueve Siegel Hanson Woody LLP, has filed a class action lawsuit against Tyson Foods alleging that employees in Tyson’s Garden City, Kansas meat processing plant did not receive wages and overtime pay as required by the federal Fair Labor Standards Act (FLSA) and Kansas state law. The case is called, “Garcia et al. v. Tyson Foods Inc. et al” (No. 06-2198-JWL) and is pending in U.S. District Court in Kansas City, Kansas. The workers allege that they were not paid for work duties including donning and doffing required work uniforms, putting on safety equipment (work pants; safety jump suits; safety boots; hair nets; face nets; hard hats; aprons; belts, holsters and knives; and hand and arm protection), and walking to and from the changing area, work areas, and break areas. More than 800 workers have joined the case as opt-in plaintiffs. On February 16, 2007, the Judge presiding over our case denied Tyson’s request to dismiss the case. This decision clears the way for our clients to request that the case proceed as a class action. The Judge’s decision cites the United States Supreme Court’s 2005 decision holding that any activity that is “integral and indispensable” to a “principal activity” performed by workers is compensable under the Fair Labor Standards Act. Please email Justin M. Swartz jms@outtengolden.com or call (212) 245-1000 for more information. United Rentals Operations Managers Misclassification Overtime LawsuitOn January 15, 2010, Outten & Golden LLP and their co-counsel, the Hayber Law Firm, LLC, filed a Fair Labor Standards Act (FLSA) collective action lawsuit against United Rentals, the largest equipment rental company in the world, with over 500 branch locations throughout the United States, on behalf of operations managers who were not paid overtime compensation. Plaintiffs allege that United Rentals misclassifies its operations managers, who spend almost all of their work time performing inside sales and other non-managerial work, as exempt from the FLSA’s overtime protections and fails to pay them any overtime compensation for hours they work in excess of 40 in a workweek. On September 23, 2010, the Judge overseeing the case, Aros v. United Rentals Inc., et. al, No. 3:10- CV-73, in the U.S. District Court for the District of Connecticut, granted Plaintiff’s request that the case proceed as a collective under the FLSA. The judge authorized Plaintiffs to send notice about the case to other current and former United Rentals operations managers nationwide, so that other United Rentals operations managers could find out about the case and decide whether to join it. On April 25, 2011, the Judge granted Plaintiff’s request to add one additional named plaintiff and to add class action claims for unpaid overtime and missed rest and meal breaks under several California state laws including California Unfair Competition Law, California Business & Professional Code §17200 et seq. (“UCL”), the California Labor Code and related regulations, California Labor Code §§ 201, 202, 203, 218.5, 226, 226.7, 510, 512, 1174, 1174.5, and 1194, and California Wage Order No. 4. Please email Justin M. Swartz jms@outtengolden.com, Molly A. Brooks mbrooks@outtengolden.com, or Melissa Pierre-Louis mpierrelouis@outtengolden.com, or call (212) 245-1000 for more information. UPS Supervisor/Specialist Overtime Pay Class ActionCurrent and former United Parcel Service (NYSE:UPS) human resources department employees allege in a federal lawsuit that the company violated federal and New York state labor laws by misclassifying employees as exempt from federal overtime requirements, according to the law firm representing the employees. Joseph Dorfman, of Amenia, N.Y., and Maryann Barone, of West Babylon, N.Y., allege in a lawsuit filed Feb. 16 that current and former employees at New York state facilities, including supervisors, part-time supervisors, specialists and part-time specialists, were misclassified by UPS as salaried employees exempt from the overtime requirements of the federal Fair Labor Standards Act (“FLSA”). The law firm of Outten & Golden LLP, of New York, represents Mr. Dorfman and Ms. Barone, and will seek to have the case certified as a class action that includes current or former misclassified supervisor/specialist employees of UPS in the state of New York. According to the Complaint, Mr. Dorfman, who has been employed by UPS since 2000, worked at the company’s Maspeth, N.Y., facility, and Ms. Barone, who worked for the company for about five years until 2005, was employed at UPS human resources department facilities in New York, Connecticut and New Jersey. Jack A. Raisner, an attorney at Outten & Golden’s New York office, said, “We allege that UPS committed over a period of several years widespread violations of the FLSA by misclassifying New York employees in supervisor/specialist positions as exempt. We also allege that UPS reclassified certain employees as non-exempt early in or about January 2005, but has not paid them for overtime worked during several years prior to the filing of this suit.” The case is “Joseph Dorfman and Maryann Barone v. United Parcel Service” (No. 06 CV 00703) in the U.S. District Court for the Eastern District of New York. Please contact Jack Raisner by e-mail (jar@outtengolden.com) or phone (212) 245-1000 for more information. Wal-Mart Class ActionWe serve as co-lead plaintiffs' counsel in a putative wage and hour class action lawsuit against Wal-Mart alleging that a class of approximately 80,000 hourly employees in New York have not received proper compensation for all hours worked, including hours worked off-the-clock, or proper overtime premium pay in violation of the New York State Labor Law. The trial court denied class certification and the appellate court affirmed the decision. Recently, Wal-Mart agreed to settle numerous wage and hour cases across the country, including the New York case. Washington Mutual Loan Consultants, Loan Officers, and Loan Originators Overtime Pay CaseNEW YORK, June 6 /PRNewswire/ - Washington Mutual Inc. (NYSE:WM) faces allegations by former employees in New York, California and Illinois that the company violated labor laws by failing to pay overtime wages and the federal minimum wage of $5.15 per hour worked, according to two law firms representing the former employees. In a case filed Monday in New York federal court, the named plaintiffs - Dewone Westerfield, of Grand Rapids, Mich., Charlotte Machado of Trussville, Ala, and Patricia Kemesies, of East Islip, N.Y., allege violations of the federal Fair Labor Standards Act (“FLSA”) and various state labor laws. The law firms of Nichols Kaster & Anderson, PLLP, of Minneapolis, Minn., and Outten & Golden LLP, of New York, will seek to have the case certified as a collective action that includes current or former home loan consultants (also referred to as loan officers and loan originators) who worked for Washington Mutual nationwide. Ms. Kemesies worked as a home loan consultant at a Washington Mutual center in Hauppauge, N.Y. Ms. Machado worked for the company in Modesto, Calif. Mr. Westerfield worked for the company at a Chicago office. According to the Complaint, the Washington Mutual home loan consultants regularly work hours in excess of 40 per week and have not received overtime compensation for all hours worked. If the loans they handle are not approved, the consultants may receive no pay for the long hours they work, and this practice violates the minimum wage law, according to the law firms. Attorney Paul J. Lukas, of Nichols Kaster & Anderson, said, “We allege that the unlawful conduct has been widespread, repeated and consistent. We believe that Washington Mutual has willfully committed widespread violations of the FLSA, and that the company knew that these employees and others performed work that required overtime pay and minimum wages.” Attorney Jack A. Raisner, of Outten & Golden said, “The law does not allow employers to avoid paying overtime compensation to people who handle mortgages and loans on a strictly commission basis. Paying them less than minimum wage when their commissions dip is particularly harsh given the long hours these people work.” The case is “Westerfield v. Washington Mutual Inc.,” (No. 06 Civ 2817 CBA) in the U.S. District Court for the Eastern District of New York. Attorney Contacts: Jack Raisner For links to other legal resources, click on www.outtengolden.com/resources/links
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