Sullivan v. 10 Washington Ave. Food Inc. d/b/a Sandwich Express, and Brian Lew, individually Case No.: 19-cv-00245(JFB)(AKT)

Judge grants Conditional Certification of Collective Action in the Eastern District of New York

Sullivan v. 10 Washington Ave. Food Inc. d/b/a Sandwich Express, and Brian Lew, individually Case No.: 19-cv-00245(JFB)(AKT)

On January 11, 201, Plaintiff Mr. Sullivan, on behalf of himself and those similarly situated, filed a collective action lawsuit against 10 Washington Ave. Food Inc. d/b/a Sandwich Express (“Sandwich Express”), and Brian Lew (“Lew”), individually, (together, where appropriate as “Defendants”), alleging debilitating violations of the Fair Labor Standards Act (“FLSA”), the New York Labor Law (“NYLL”), and the New York Comp. Codes, Rules, and Regulations (“NYCCRR”), including the failure of Defendants to compensate Plaintiff for overtime provisions. The factual allegations of the case are as follows:

• Defendant Sandwich Express is a corporation that operates a popular delicatessen located in Plainview, New York, which also provides catering services;
• Defendant Lew was and is the owner and day-to-day manager and overseer of Defendant Sandwich Express, and was and is ultimately responsible for all matters with respect to determining employees’ rates and methods of pay, hours worked, and duties performed;
• Defendant Lew had and exercised the power to hire and fire and approve all personnel decisions with respect to Defendant Sandwich Express’s employees, including Plaintiff.
• On or about July 15, 2018, Defendant Lew hired Plaintiff, and Lew subsequently terminated Plaintiff’s employment on October 14, 2018;
• Throughout his employment, Plaintiff’s primary duties consisted of assisting Defendants’ customers at the counter by taking customers’ orders, making sandwiches, and cashing customers out, as well as, at Defendant Lew’s direction, setting up on location for catering jobs and making deliveries, as needed;
• Defendants required Plaintiff to work, and Plaintiff did work, six days per week, from Monday through Friday, 7:00 a.m. to 4:00 p.m., and on Saturday he worked from 7:00 a.m. to 2:00 p.m.

Defendants willfully failed to pay Plaintiff, an hourly employee, all of the wages lawfully due to him under the FLSA and the NYLL. Defendants did not pay Plaintiff at least at the New York statutory minimum wage for all hours worked, nor did Defendants pay Plaintiff at the applicable overtime rate of at least one and one-half times the minimum wage rate for all hours that Plaintiff worked over forty during this week. Moreover, throughout Plaintiff’s employment, Defendants collected and retained all the gratuities that customers left for Plaintiff on credit card transactions. Indeed, most of the deliveries that Plaintiff made on Defendants’ behalf were for orders placed by customers utilizing third-party websites and mobile applications including, but not limited to, Grubhub, Seamless, and Doordash. These third-party websites and mobile applications allow customers to place orders, pay for their orders with a credit card, and tip the delivery personnel. Further, these websites recommend to customers and often automatically include a default tip of twenty percent of the customer’s order. Defendants did not distribute any of the gratuities received from customers intended for Plaintiff, and instead retained these gratuities for their own use.

Certification of Collective Action

In this case, pursuant to the request of the Plaintiff, the Judge reviewed claims that the Plaintiff brought forward alleging that there are additional workers in the same “class” (performing the same or similar duties) whose rights have been violated. After reviewing the facts of this case, on April 11, 2019, District Judge Joseph Bianco granted “conditional certification” allowing the case to proceed as a collective action enabling any current and former employees who were not paid properly to join the lawsuit and seek redress for Defendants’ failure to compensate them in accordance with the law.

If you or a person you know worked for the Defendants named in the lawsuit during the time period of July 12, 2014 – present or has information that may be relevant to this case, contact Borrelli & Associates, P.L.L.C. as soon as possible through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com or any of our phone numbers: (516) 248-5550, (516) ABOGADO, and (212) 679-5000.

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