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Cases

Salisbury v. TransCare Corporation: In this class and collective action, the complaint alleges that TransCare Corporation failed to pay its paratransit drivers for all hours worked, including overtime, in violation of the Fair Labor Standards Act and New York Labor Law. Specifically, the complaint alleges that TransCare does not pay its drivers time between picking up their vehicle and pickup of their first passenger, for waiting time between passengers, and for time between dropping off their last passenger and dropping off their vehicle. On October 14, 2015, the court granted final approval of the parties' $250,000 class action settlement. Click here to read the complaint.

Tubiak v. The Nielsen Company (US) LLC: On July 1, 2015, Gardy & Notis, with co-counsel, commenced a nationwide collective action under the Fair Labor Standards Act against The Nielsen Company (US), LLC and Nielsen Holdings, N.V. The complaint alleges that Nielsen did not pay its employees with the title of Field Trainer (also known as Market Quality Specialist) for all of their hours worked, including overtime. Nielsen requires the Field Trainers to work from home offices, rather than Nielsen's offices. Although they performed work for Nielsen at the start of the day in their home offices, Nielsen deducted the first half hour of "drive time" to their first appointment and considered that drive to be non-compensable commuting time. Nielsen also deducted the first half hour of "drive time" from their last appointment to their home office, even though the Field Trainers performed work for Nielsen at the end of the day in their home offices. The plaintiff contends that Nielsen should have paid the Field Trainers for all of their drive time because that drive time was part of their work day and was not commute time. Click here to read the complaint.

Tiko v. Parade Enterprises, LLC: This class and collective action is brough on behalf of assistant managers at Burger King restaurants owned by Parade Enterprises, LLC. Parade is the largest Burger King franchisee in the state of New Jersey, with over 45 restaurants. The complaint alleges that Parade misclassifies the assistant managers as exempt from the overtime requirements of the Fair Labor Standards Act and the New Jersey Wage & Hour Laws.

Under both sets of laws, in order for a manager to be exempt from overtime requirements, the manager must be (1) compensated on a "salary basis" of $455 or more per week; (2) the employee's primary duty must be management; (3) the employee must customarily and regularly direct the work of two or more other full time employees; and (4) the employee must be able to hire or fire employees, or the employee's suggestions about hiring and firing must be given "particular weight." Simply stated, being paid on a "salary basis" means that an employee is paid a fixed weekly amount that does not vary based on the quantity or quality of the employee's work. If the employee's duties and pay structure do not meet the above test, the employee is not exempt from overtime and should be paid overtime premiums (1.5 times their hourly rate) for hours worked above 40 in a work week.

The complaint alleges that the assistant managers are Parade's Burger King restaurants are misclassified as exempt from the overtime laws. Specifically, the complaint alleges that the assistant managers are not paid on a "salary basis" because their pay is docked if they take sick days, or if their restaurant closes due to bad weather, among other things. Also, the complaint alleges that the assistant managers do not have the power to hire or fire employees, and their suggestions about hiring and firing are not given any weight. Click here to read the complaint.

Rode v. The Nielsen Company: In this nationwide Fair Labor Standards Act collective action, the complaint alleges that the ratings giant Nielsen unlawfully denies overtime pay to employees who work as Field Services Representatives. Rather than work at Nielsen's office, the Field Reps work from "home offices." The Field Reps start their work day at home, performing administrative tasks, contacting customers, and performing other tasks that are solely for Nielsen's benefit. After finishing their morning work at home, the Field Reps then travel to customers' homes to perform installation and maintenance work on the equipment that helps Nielsen track what consumers are watching on TV. Although the Field Reps already began their workday at home, Nielsen deducts up to a half-hour of "commute" time from the the Field Reps' pay for travel to their first appointment of the day. This time deduction is unlawful: although an employee is not paid for his or her commute to work, the Field Reps here are not commuting "to" work, they are commuting as a part of their job. Their work day began at home before they traveled to their first appointment. At the end of the day, Nielsen also unlawfully deducts travel time from the Field Reps' last appointments to their homes. Again, this deduction is unlawful because the Field Reps are not traveling "from" work, rather they are traveling to their home offices and will perform more work for Nielsen when they arrive at their home offices. Generally, Nielsen will deduct up to one hour of pay per day from the Field Reps' pay (one half-hour travel time to the first appointment and one-half hour travel time after the last appointment). As a result, Field Reps are deemed to have worked fewer hours than they actually did; a Field Rep's overtime pay may be reduced by up to five hours per week as a result of Nielsen's unlawful deduction of travel time.

Noriega v. Wolfgang Puck Catering and Events, LLC. The complaint in this class action alleges that the defendants--a well-known catering company and its parent--violated the New York Labor Law by adding a "service charge" to customers' bills for special events and not paying that service charge to their employees. Under New York Labor Law Section 196-d, and the governing Hospitality Industry Wage Order, a charge for "service" is presumed to be a gratuity and must be paid over to employees. Although the defendants knew of this requirement, they continued to add a service charge as high as 22% to their customers' bills and never paid any of that money to their employees.

Wlodarski v. Dr. Marco A. Garcia, MD, PC. We are currently representing a former doctor's office employee in an individual (non-class action) case. In that case, the plaintiff alleges that she was required to work more than 40 hours a week and was not paid at overtime rates of one and one half times her hourly pay. The plaintiff also alleges a violation of the statute commonly known as COBRA, because her employer--a doctor--did not permit her to continue her health insurance after she resigned from her position. As a result, the plaintiff received bills for thousands of dollars in medical procedures that had been pre-approved by her health insurance company before the doctore canceled her health insurance. For the first week of her employment, the plaintiff was required to work for free because she was in "training." This case was resolved by a confidential settlement.

We also handle certain non-employment class actions. Among those cases:

Dabaghian v. eMusic.com, Inc. In this consumer class action, the complaint alleges that eMusic, a seller of online music, sold download cards that promised a fixed number of songs for a set price (for instance, 30 songs for $15, or about 50 cents per song) and did not allow its customers to download all of the songs that were promised. Instead, eMusic changed its pricing system and charged as much as 89 cents per download beginning in November, 2010--while it continued to sell cards that promised a fixed number of songs. As a result, a consumer who purchased a card advertising 30 songs for $15 would not be able to download anywhere near the 30 songs promised. The case settled for a value of over $434,000, which was distributed to class members as song credits.

Venables v. Davis, et al. In this class and shareholder derivative litigation, the complaint alleges that Keith Davis, the founder, president, chief executive officer, controlling shareholder, and sole member of the board of directors of the Pear Tree Group, engaged in oppressive conduct toward a group of senior citizen, minority shareholders. After implying that the Golden Pear Cafe, a well-known chain of Hamptons cafes which are owned and operated by the Pear Tree Group, would go public and open cafes across the country, Davis and the Pear Tree Group collected "investments" from the plaintiffs. Those investments were used solely for the benefit of the Pear Tree Group and, almost 20 years after investing, the plaintiffs have not seen a dime of return while the company thrives and holds their money. In a recent decision, the court denied in part the defendants' motion to dismiss the complaint. Click here to read the complaint; click here to read the decision on the motion to dismiss.

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