Lunger v. Union of Orthodox Jewish Congregations of America (Orthodox Union)
Filing
1
COMPLAINT against Union of Orthodox Jewish Congregations of America (Orthodox Union). (Filing Fee $ 350.00, Receipt Number 465401010140)Document filed by Devorah Lunger.(rdz)
JUDGE COTE
Arnold Pedowitz
pedowitz@pedowitzmeister.com
PEDOWITZ & MEISTER, LLP
1501 Broadway, Suite 800
New York, NY 10036
(212) 403-7321 Phone
(212) 354-6614 Fax
7552
Attorneys for Plaintfffand Proposed Collective Action Members
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------)(
Devorah Lunger, on behalf of herself
and all other similarly situated persons,
Complaint
Plaintiffs,
ECF CASE
V.
Union of Orthodox Jewish Congregations
Of America (Orthodox Union),
(Jury Trial Requested)
Defendant.
-------------------------------------------------------)(
Plaintiff Devorah Lunger ("Plaintiff' or "Lunger"), by and through her
attorneys, brings this action on behalf of herself and all persons similarly situated
and alleges, upon her personal knowledge and/or information and belief against
Defendant, Union of Orthodox Jewish Congregations Of America a/k/a the
Otihodox Union ("Defendant" or "OU"), as follows:
PRELIMINARY STATEMENT
1. Plaintiff brings this action, on behalf of herself and other employees
similarly situated, to remedy violations of the Fair Labor Standards Act, as
amended, 29 U.S.C. § 201 et seq. ("FLSA"). Plaintiff seeks, for herself and
similarly situated employees, declaratory and injunctive relief, unpaid
overtime, liquidated damages, reasonable atton1eys' fees, and all other
appropriate legal and equitable relief, pursuant to 29 U.S.C. §§ 216(b) and
217, and other applicable federal law.
2. Plaintiff also brings this action, individually, to remedy violations of the
California Labor Code §§226, 226.7, 510 and 512, and the California
Business & Professions Code §17200, et seq. Plaintiff seeks declaratory and
injunctive relief, unpaid overtime, unpaid meal breaks, unpaid lunch breaks,
reasonable attorneys' fees and costs, damages for failure to provide itemized
wage statements, restitution for all these violations, and all other appropriate
legal and equitable relief.
PARTIES, JURISDICTION AND VENUE
3. Lunger is a citizen of the State of California.
4. On information and belief, Defendant OU is and at all times material hereto
was a duly organized New York not for profit corporation maintaining its
principal place of business and offices at 11 Broadway, New York, New
York.
The OU is an Internal Revenue Service registered 501(c)(3)
organization.
2
5. NCSY, formerly known as the National Conference of Synagogue Youth, is
the international youth movement of the OU and is operated, funded and
controlled by the OU.
6. At all relevant times, Defendant has been, and continues to be, an
"employer" engaged in interstate "commerce" and/or in the "production of
goods" for "commerce", within the meaning of 29 U.S.C. §203. At all
relevant times, Defendant has employed "employee[sr', including Plaintiff
and each of the FLSA Collective Plaintiffs.
7. This Court has jurisdiction over Plaintiffs federal claims pursuant to 28
U.S.C. §1331 and 29 U.S.C. §216(b).
The Court has jurisdiction over
Plaintiffs state law claims under 28 U.S.C. § 1367 because those claims are
so related to the federal claim that they form part of the same case or
controversy.
8. Venue is proper within this District pursuant to 28 U.S.C. §1391, because
Defendant maintains its principal place of business in, does business in, and
accordingly resides in, this District. Venue is further proper within this
District pursuant to 28 U.S.C. § 1391 because a substantial part of the events
or omissions giving rise to the claims occurred within this District.
FACTS
3
9. The mission of the Orthodox Union is to advance, strengthen, and lead the
Otthodox. Jewish Community, and inspire the greater Jewish community.
The OU provides an array of religious, youth, social action, educational,
public policy and community development services, programs and activities
for the Orthodox Jewish community.
lO.NCSY is the international youth movement of the OU. The Orthodox Union
founded NCSY in 1954 to provide Jewish teens with an opportunity to build
a strong connection to their Jewish roots through inspiration and leadership
skills.
ll .Defendant employs Lunger and others as advisors to groups of NCSY teens,
in Chapter Director or Chapter Advisor positions.
12.Lunger has been employed by Defendant since 2002 m a Chapter
Advisor/Chapter Director position.
13.In this job, at relevant times, Plaintiff regularly worked from fifty to seventy
hours every week.
14.In addition to her "nine-to-five" duties, which included teaching classes,
planning and executing events for the students, meeting with teens on an
individual basis, preparing for and hosting holiday meals, and attending
meetings with co-workers, there were numerous times that Plaintiff had
students at her house on Friday nights and Saturdays, there were meetings
4
and events on Sundays, students and parents called her at all hours of the day
and night, and the job required that she be working virtually (and at times
physically) twenty-four hours a day as a chaperone and leader during trips to
New York, Israel and on weekend retreats (or Shabbatonim) .
15.Lunger was not compensated for overtime at a rate of one and one halftimes
her hourly rate of pay for all of the hours she worked in excess of 40 hours a
week. Lunger was not compensated for overtime at a rate of one and one
half times her hourly rate of pay for all of the hours she worked in excess of
8 hours a day or for work on a seventh consecutive day in one workweek,
nor was she compensated for overtime at a rate of double her hourly rate of
pay for all of the hours she worked in excess of 12 hours a day or for work
over 8 hours on the seventh consecutive day in one workweek.
16.Defendant did not post the required notices setting forth employees' rights
under the applicable overtime laws.
17.Upon information and belief, Defendant employs about 200 Chapter
Directors and Chapter Advisors across the country, most if not all of whom
work similar schedules to Lunger's. After a reasonable opportunity for
further investigation and discovery, Plaintiff will likely have evidentiary
support of this.
5
18. Upon information and belief, Defendant does n.ot pay any Chapter Directors
and Chapter Advisors overtime at a rate of one and one half times their
hourly rate of pay for all of the hours they work in excess of 40 hours a
week.
19. Upon information and belief, Defendant does not keep accurate time records
of the hours its employees work. In or around November 2010, Lunger and
her co-workers were told that the OU wanted them to start using a time
recording system. The system only tracks hours worked Monday through
Friday, even though Defendant is fully aware that its employees regularly
work, and are required to work, on weekends. Prior to this system, no hours
were recorded at all.
20.The pay stubs Lunger receives fail to include her hourly rates, the hours she
works or the number of hours she works at each rate.
2l.Lunger was not given rest breaks or meal breaks during the work day.
22.Upon inf01mation and belief, Defendant knew of, and/or showed reckless
disregard for, the practices by which Plaintiff and other similarly situated
employees of Defendant were not paid overtime premiums. Upon
information and belief, Defendant knew that the nonpayment of overtime
premiums would economically injure Plaintiff and the FLSA Collective
6
Plaintiffs, and that it violated the FLSA and with respect to its California
employees the California Labor Code.
23.Defendant committed the foregoing acts knowingly, intentionally and
willfully against Lunger and the FLSA Collective Plaintiffs.
COLLECTIVE ACTION ALLEGATIONS
24.Lunger b1ings Count I of this Complaint as a collective action pursuant to
the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §216(b), on behalf of
herself and all persons who worked for Defendant as a Chapter Advisor,
Chapter Director, or in a similar capacity (together, "Chapter Directors") at
any time in the past three years. All said persons, including Lunger, are
referred to herein as the "FLSA Collective Plaintiffs".
25.At all relevant times, Lunger and the other FLSA Collective Plaintiffs are
and have been similarly situated, have had substantially similar job
requirements, and are and have been subjected to Defendant's decision,
policy, plan, practice, procedure, routine and rules to willfully fail and refuse
to pay them the legally required overtime premium for all hours worked in
excess of forty (40) hours per workweek. The claims of Lunger herein are
essentially the same as those of the other FLSA Collective Plaintiffs.
26.As a result of Defendant's above-described conduct and FLSA violations,
Lunger and the FLSA Collective Plaintiffs were damaged, failed to receive
7
due and owmg overtime wages, and are owed back wages, liquidated
damages and equitable relief pursuant to the FLSA.
27 .An FLSA collective action will benefit Lunger and other OU employees
who are similarly subjected to Defendant's practice of failing to pay
overtime. Certifying this action as a collective action under the FLSA will
provide other Chapter Directors notice of the action, the opportunity to have
their claims for violations of the FLSA heard, and allow them to opt in to
such an action if they so choose.
28.Count I is properly brought under and maintained as an opt-in collective
action pursuant to 29 U.S.C. 216(b ). The FLSA Collective Plaintiffs are
readily ascertainable. For purpose of notice and other purposes related to this
action, their names and addresses are readily available from Defendant.
Notice can be provided to the FLSA Collective Plaintiffs via first class mail
to the last address known to Defendant.
29. The facts set forth here satisfy the lenient requirements for maintenance of a
collective action under Section 216(b) of the FLSA.
ALLEGATIONS UNDER CALIFORNIA LAW
30.Lunger brings Counts II, III, IV, V and VI of this Complaint pursuant to
California Labor Code §§226, 266.7, 510, 512 and California Business &
Professions Code § 17200, et seq, to recover damages and restitution for
8
unpaid overtime pay, unpaid meal breaks, unpaid rest breaks and for failure
to provide proper itemized wage statements.
FIRST CLAIM FOR RELIEF
(Failure to Pay Overtime Wages- FLSA, Brought by Plaintiff on Behalf of Herself
and the FLSA Collective Plaintiffs)
3l .Plaintiff, on behalf of herself and the FLSA Collective Plaintiffs, realleges
and incorporates by reference all previous paragraphs as if they were set
forth again herein.
32.Throughout the statute of limitations period covered by these claims,
Plaintiff and the FLSA Collective Plaintiffs regularly worked in excess of
forty (40) hours per workweek and continue to do so.
33.At all relevant times, Defendant willfully, regularly, repeatedly and
knowingly failed to pay Plaintiff and the FLSA Collective Plaintiffs the
required overtime rates for hours worked in excess of forty (40) hours per
workweek.
34.Plaintiff, on behalf of herself and the FLSA Collective Plaintiffs, seeks
damages in the amount of unpaid overtime compensation, liquidated
(double) damages as provided by the FLSA for overtime violations,
attorneys' fees and costs, and such other legal and equitable relief as this
Court deems just and proper.
SECOND CL AIM FOR RELIEF
9
(Failure to Pay Overtime Wages- Ca. Labor Code, Brought by Plaintiff, for herself,
individually)
35.Plaintiffrealleges and incorporates by reference all previous paragraphs as if
they were set forth again herein.
36.Throughout the statute of limitations period covered by these claims,
Plaintiff regularly worked:
a. in excess of forty (40) hours in one workweek;
b. in excess of eight (8) hours in one day;
c. on a seventh consecutive day in one workweek;
d. in excess of twelve (12) hours in one day;
e. in excess of eight (8) hours on the seventh consecutive day in one
workweek.
37.At all relevant times, Defendant willfully, regularly, repeatedly and
knowingly failed to pay Plaintiff at a rate of at least one and one half times
her hourly rate of pay, pursuant to California law:
a. for all hours worked in excess of forty (40) hours in one workweek;
b. for all hours worked in excess of eight (8) hours in one day; and
c. for all hours worked on a seventh consecutive day in one workweek.
38.At all relevant times, Defendant willfully, regularly, repeatedly and
knowingly failed to pay Plaintiff at a rate of at least two times her hourly
rate of pay, pursuant to California law:
10
a. for all hours worked in excess of twelve (12) hours in one day; and
b. for all hours worked in excess of eight (8) hours on the seventh
consecutive day in one workweek.
39.As a direct and proximate result of Defendant's unlawful conduct, as set
forth herein, Plaintiff has sustained damages, including loss of earnings, in
an amount to be established at trial.
40.Plaintiff seeks damages in the amount of her unpaid overtime compensation,
interest, costs and attorneys' fees, pursuant to Ca. Labor Code §§51 0 and
1194.
THIRD CLAIM FOR RELIEF
(Failure to Give Meal Breaks - Ca. Labor Code, Brought by Plaintiff, for herself,
individually)
4l .Plaintiff realleges and incorporates by reference all previous paragraphs as if
they were set forth again herein.
42.Throughout the statute of limitations period covered by these claims,
Plaintiff regularly worked in excess of five and ten hours in one workday.
43 .Defendant willfully, regularly, repeatedly and knowingly failed to provide
Plaintiff with the meal breaks required by California law:
. a. In workdays of over five (5) hours, Plaintiff was not given a thirty
(30) minute lunch break.
11
b. In workdays of over ten (1 0) hours, Plaintiff was not given a second
meal period of at least thirty (30) minutes.
44.Plaintiff seeks damages in the amount of one hour of pay for each workday
that a meal break was not provided, pursuant to California Labor Code
Sections 226.7 and 512.
FOURTH CLAI M FOR RELIEF
(Failure to Give Rest Breaks - Ca. Labor Code, Brought by Plaintiff, for herself
individually)
45.Plaintiff, on behalf of herself, realleges and incorporates by reference all
previous paragraphs as if they were set forth again herein.
46.Throughout the statute of limitations period covered by these claims,
Plaintiff regularly worked in excess of four hours in one workday.
47.Defendant willfully, regularly, repeatedly and knowingly failed to provide
Plaintiff with a ten (10) minute rest break for every four (4) hours she
worked.
48.Plaintiff seeks damages in the amount of one hour of pay for each workday
that a rest break was not provided, pursuant to California Labor Code
Section 226.7.
FIFTH CLAI M FOR RELIEF
(Failure to Give Itemized Wage Statements- Ca. Labor Code, Brought by Plaintiff, for
herself, individually)
12
49.Plaintiff, on behalf of herself, realleges and incorporates by reference all
previous paragraphs as if they were set forth again herein.
50.Defendant willfully, regularly, repeatedly and knowingly failed to provide
Plaintiff with itemized wage statements that conformed to the requirements
of California law, in that the pay stubs she received did not include the total
hours she worked in that pay period, all applicable hourly rates in effect
during the pay period (i.e., straight time rate and overtime rate), and the
corresponding number of hours she worked at each hourly rate.
5l.Plaintiff seeks damages for the injury she has suffered as a result of
Defendant's knowing and intentional failure to comply with this law,
pursuant to California Labor Code Section 226.
SIXTH CLAIM FOR RELIEF
(Failure to Provide Overtime Pay, Meal Breaks and Rest Breaks- Business & Professions
Code, Brought by Plaintiff, individually)
52. Plaintiff realleges and incorporates by reference all previous paragraphs as if
they were set forth again herein.
53 .Defendant failed to comply with the California Labor Code provisions
regarding overtime, meal breaks and rest breaks, as provided above.
54.Plaintiff seeks restitution for unpaid overtime, rest breaks and meal breaks,
pursuant to the California Business and Professions Code Section 17200, et
seq.
13
DEMAND FOR TRIAL BY JURY
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff
demands a trial by jury of all issues so triable in this action.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, individually and on behalf of all others similarly
situated, prays that this Court grant judgment in her favor and against Defendant as
follows:
a.
Certifying that this case may be properly. maintained as a collective
action, appointing Lunger as representative of the Collective and
appointing Lunger's counsel as counsel for the Collective;
b.
Finding that Defendant's conduct with respect to Plaintiff and the
Collective violates the FLSA;
c.
Finding that Defendant knowingly and willfully violated the FLSA;
d.
Awarding Plaintiff and other Collective members all unpaid overtime
as set forth above, plus applicable statutory penalties and liquidated
damages;
e.
Finding that Defendant's conduct with respect to Plaintiff violated
applicable California law as set forth above;
f.
Awarding Plaintiff all due and owing overtime pay, compensation for
unpaid meal and rest breaks and for failing to provide itemized wage
statements under state law, and restitution for these violations under
state law, and applicable statutory penalties and interest;
g.
Enjoining Defendant from continuing to perpetrate its abovedescribed practices;
h.
A warding attorneys' fees, costs, and interest; and
14
l.
Dated:
Providing such other and further relief it deems just, including
prospective injunctive relief.
New York, New York
October 25, 2011
Respectfully submitted,
By:-+-+-&..-----------:;.rAtno d H. Pedowitz
1501 Broadway, Suite 800
New York, NY 10036
Tel: (212) 403-7321
Fax: (212) 354-6614
pedowitz@pedowitzmeister.com
Attorneys for Plaintiff and the Collective
15 .
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?