Contact:

Laura Revercomb
(845) 331-6615
Ext. 1008

FOR IMMEDIATE RELEASE

May 23, 2016
Worker Justice Center of New York Files Wage Theft Lawsuit
Against Deising's Bakery on Behalf of Former Employee
Kingston, NY Through his attorneys at the Worker Justice Center of New York (WJCNY),
Rufino Muoz Gonzalez filed a lawsuit in the United States District Court for the Northern
District of New York to recover unpaid overtime wages from his former employer, Deising's
Bakery & Pastry Shop, Inc. In the complaint, Mr. Muoz alleges that Deising's violated the Fair
Labor Standards Act ("FLSA") and New York Labor Law ("NYLL") by failing to pay him the
legally required overtime wage and committing other statutory violations.
Mr. Muoz claims he regularly worked more than 40 hours per week during his employment
with Deisings. While there, his employer allegedly kept two separate time records for Mr.
Muoz. The first recorded Mr. Muoz's hours each week up to 40 hours. The employer logged
any additional hours in a second record and paid Mr. Muoz for those hours off the books, in
cash, and at his regular rate of pay. Mr. Muoz was not paid the legally required overtime wage
of one-and-one-half times his regular rate of pay for any hours reported on the second time
record.
Mr. Muoz worked for Deisings for nearly 30 years until he was fired in February of 2016. He
states, I worked there for many years. I was a very loyal employee and they fired me like it was
nothing. Im doing this because too many workers stay silent and I want the community to know
what is happening.
WJCNY has a long record of victories in lawsuits brought by low-wage workers against New
York employers. In addition to the business, the lawsuit names Eric Deising and Norman Deising
as individual defendants. Mr. Muoz seeks damages for violations of the FLSA and NYLL,
including unpaid overtime wage compensation, liquidated damages, prejudgment interest,
attorneys' fees, and costs. Jeremy McLean, lead attorney on the case, states we are confident in
the merits of our clients case and hope his courageous action will encourage other workers
facing similar injustice to come forward about labor law violations.
WJCNY pursues justice for those denied human rights with a focus on agricultural and other
low-wage workers, through legal representation, community empowerment and advocacy for
institutional change. Additional information about WJCNY is available at www.wjcny.org.

9 Main Street Kingston, New York 12401 T: (845) 331-6615 F: (845) 331-6617

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 1 of 12

Jeremy McLean
Bar Roll No.: 519432
Worker Justice Center of New York
1187 Culver Road
Rochester, New York 14609
Tel: (585) 325-3050
Fax: (585) 325-7614
jmclean@wjcny.org
Attorneys for Plaintiff Rufino Muoz Gonzalez
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RUFINO MUOZ GONZALEZ,
Plaintiff,
v.

COMPLAINT

DEISINGS BAKERY & PASTRY SHOP, INC.; ERIC

DEISING in his individual capacity; and NORMAN
DEISING in his individual capacity,

Civil Action No. 1:16-CV-0482 (DNH/ATB)

Electronically Filed

Defendants.

Plaintiff Rufino Muoz Gonzalez (herein Plaintiff), by and through undersigned counsel,
brings this Complaint and in support thereof states as follows:
NATURE OF THE ACTION
1.

This action is brought by Plaintiff for (i) unpaid overtime and untimely payment

of wages under the Fair Labor Standard Act (FLSA), and (ii) unpaid wages, unpaid overtime,
spread of hours compensation and violations of notice requirements under New York Labor Law
(NYLL).
2.

Throughout Plaintiffs employment, Defendants willfully violated federal and

state wage laws by failing to pay Plaintiff overtime wages for the majority of hours worked in

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 2 of 12

excess of forty (40) hours in a workweek, failing to pay spread of hours wages and by
systematically engaging in wage statement and notice violations.
JURISDICTION AND VENUE
3.

Jurisdiction is conferred upon this Court by 28 U.S.C. 1331, this action arising

under the laws of the United States, by 28 U.S.C. 1337, this action arising under the Acts of
Congress regulating commerce, and by 29 U.S.C. 216(b) of the FLSA.
4.

This Court has supplemental jurisdiction over the state claims raised by virtue of

28 U.S.C. 1367, and Plaintiffs state law claims involve the same case or controversy as
Plaintiffs federal law claims.
5.

Venue is proper in this District pursuant to 28 U.S.C. 1391(b), as Defendant

Deisings Bakery & Pastry Shop, Inc. (herein Corporate Defendant) resides in this District and a
substantial part of the events or omissions giving rise to the claim occurred in this District.
PARTIES
6.

Plaintiff is a former employee of Corporate Defendant.

7.

Plaintiff's primary language is Spanish.

8.

Plaintiff resides in Ulster County, New York.

9.

Corporate Defendant is a New York domestic business corporation with its

principal executive office located at 109-115 North Front Street, Kingston, New York 12401.
10.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Eric Deising was an owner and corporate executive of Corporate Defendant.
11.

Upon information and belief, Defendant Eric Deising lives in Ulster County,

New York.

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 3 of 12

12.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Eric Deising had the authority to, and did in fact, exercise active, operational control
over all aspects of the day-to-day functions of Corporate Defendant.
13.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to actively managing,
supervising, and directing business operations.
14.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to the power to establish
the terms and conditions of employment of its employees, including Plaintiff.
15.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to the power to hire and
fire its employees, including Plaintiff.
16.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to control over employee
work schedules, including Plaintiff's work schedule.
17.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to the ability to determine

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 4 of 12

the rate and method of employee payment, including the rate and method of payment for
Plaintiff.
18.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Eric Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to maintaining the entity
and its employment records, including Plaintiff's records.
19.

At all times relevant to this Complaint, Defendant Eric Deising acted directly

and indirectly in Corporate Defendant's interest in relation to its employees, including Plaintiff.
20.

Upon information and belief, Defendant Norman Deising lives in Ulster County,

New York.
21.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Norman Deising was an owner of Corporate Defendant.

22.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Norman Deising had the authority to, and did in fact, exercise active, operational
control over all aspects of the day-to-day functions of Corporate Defendant.
23.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Norman Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to actively managing,
supervising, and directing business operations.
24.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Norman Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to the power to establish
the terms and conditions of employment of its employees, including Plaintiff.

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 5 of 12

25.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Norman Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to the power to hire and
fire its employees, including Plaintiff.
26.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Norman Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to control over employee
work schedules, including Plaintiff's work schedule.
27.

Upon information and belief, and at all times relevant to this Complaint,

Defendant Norman Deising had the authority to, and did in fact, exercise active control over
Corporate Defendant's operational enterprise, including but not limited to maintaining the entity
and its employment records, including Plaintiff's records.
28.

At all times relevant to this Complaint, Defendant Norman Deising acted directly

and indirectly in Corporate Defendant's interest in relation to its employees, including Plaintiff.
29.

Upon information and belief, for all times relevant to this action, Defendants

have constituted an enterprise engaged in commerce, and in operating their business, have
performed related activities through unified operation or common control for a common business
purpose.
30.

Upon information or belief, for all times relevant to this action, Defendants have

employed two (2) or more individuals, including Plaintiff, handling, selling, or otherwise
working on goods or materials that have been moved in or produced for commerce including
food products, kitchen appliances, silverware and general dcor.

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 6 of 12

31.

Upon information and belief, Corporate Defendant's annual gross volume of

sales made or business done was not less than $500,000 in each of the past three (3) fiscal years.
FACTS
32.

Plaintiff was employed by Defendants for approximately twenty-seven (27)

years from 1989 through February 13, 2016.

33.

At all times relevant to this Complaint, Plaintiffs job duties and responsibilities

for Defendants included but were not limited to preparing and decorating cakes and baked goods.
Plaintiff was also tasked with general cleaning duties, including mopping, washing dishes, and
cleaning the kitchen area.
34.

At all times relevant to this Complaint, Plaintiff worked Tuesday, Wednesday,

Thursday, Friday, Saturday and Sunday.

35.

At all times relevant to this Complaint, Plaintiff would arrive at work at 4:00am

on Tuesday, Wednesday, Thursday, Friday and Saturday and would leave work between
12:00pm and 4:00pm depending on verbal instructions from Defendants.
36.

At all times relevant to this Complaint, Plaintiff would arrive at work at 3:00am

on Sunday and would leave work between 9:00am and 4:00pm depending on verbal instructions
from Defendants.
37.

At all times relevant to this Complaint, Plaintiff's spread of hours worked was six

(6) to twelve (12) hours per day, Tuesday through Sunday, totaling approximately thirty-eight
(38) to sixty (60) hours each week.
38.

At all times relevant to this Complaint, Plaintiff was not provided with breaks to

eat or rest during the span of his work day.

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 7 of 12

39.

At no time between his date of hire (1989) and February 2016 was Plaintiff

compensated with an additional hour at the then-prevailing minimum wage when his spread of
hours exceeded ten (10) hours per work day.
40.

At all times relevant to this Complaint, Plaintiff's work hours were increased

beyond ten (10) hours per work day during, and for the two (2) weeks preceding, each of the
following holidays and other community events: New Year's day, Valentine's Day, Easter,
Mother's Day, graduation (college and high school), summer wedding season, 4th of July,
Halloween, Thanksgiving and Christmas.
41.

Upon information and belief, prior to 2011 or 2012, Defendants instructed

employees, including Plaintiff, to record work hours on two separate punch cards, one card for
work hours up to forty (40) and one card to document overtime hours.
42.

Upon information and belief, Defendants began using a computerized system to

document work hours up to forty (40) in or about 2011 or 2012, but continued to use a punch
card system and cash payment for overtime hours.
43.

Upon information and belief, and at all times relevant to this Complaint,

Defendants paid employees, including Plaintiff, separately and in cash at his regular hourly rate
for any and all work time recorded by way of the overtime punch card.
44.

Upon information and belief, and at all times relevant to this Complaint,

Defendants would periodically reprimand employees for entering overtime hours into the
computerized system and instruct them to use the overtime punch card machine only.
45.

Upon information and belief, Corporate Defendant's official employee time

records were reduced by Defendants resulting in time records which did not accurately reflect
hours worked by employees, including hours worked by Plaintiff.

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 8 of 12

46.

In 2010, Defendants paid Plaintiff eighteen dollars and seventy-five cents

($18.75) per hour for a small portion of the hours he worked over forty (40) in a workweek.
47.

In 2011, Defendants paid Plaintiff eighteen dollars and seventy-five cents

($18.75) per hour for a small portion of the hours he worked over forty (40) in a workweek.
48.

In January 2012, Defendants paid Plaintiff eighteen dollars and seventy-five

cents ($18.75) per hour for a small portion of the hours he worked over forty (40) in a workweek.
49.

In early February 2012, Defendants paid Plaintiff eighteen dollars ($18.00) per

hour for a small portion of the hours he worked over forty (40) in a workweek.
50.

In mid-February 2012, Defendants paid Plaintiff eighteen dollars and seventy-

five cents ($18.75) per hour for a small portion of the hours he worked over forty (40) in a
workweek.
51.

From mid-February 2012 to mid-February 2016, Defendants paid Plaintiff

nineteen dollars and eighty-seven cents ($19.87) per hour for a small portion of the hours he
worked over forty (40) in a workweek.
52.

Upon information and belief, Plaintiff used an unknown amount of paid sick

days, paid vacation days and paid holiday days from 2010-2016.
53.

In 2013 or 2014, Plaintiff did not work for Corporate Defendant for

approximately eight (8) weeks due to health reasons.

54.

In 2015, Plaintiff did not work for Corporate Defendant for approximately nine

(9) weeks due to health reasons.

55.

Throughout Plaintiffs employment with the Defendants, Plaintiff was not

compensated at the rate of time-and-one-half the regular hourly rates for a majority of hours
worked in excess of forty (40) hours in a workweek.

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 9 of 12

56.

Plaintiff was not provided, at any time during his employment with Defendants,

including at Plaintiff's date of hire, proper notice stating his regular hourly rate and overtime rate
of pay.
57.

Plaintiff was not provided, at any time during his employment with Defendants,

with paystubs accurately indicating hours worked, including overtime hours.

58.

Plaintiff was not provided, at any time during his employment with Defendants,

a true and accurate statement of payment of wages, listing gross wages, deductions and net
wages.
59.

Upon information and belief, Plaintiff was not provided, at any time during his

employment with the Defendants, with information including but not limited to rate of pay
notices or wage statements in his primary language or otherwise.
FIRST CAUSE OF ACTION
(Fair Labor Standards Act Payment of Wages)
60.

Plaintiff repeats and reiterates each and every allegation contained in the

preceding paragraphs as if set forth herein.

61.

Defendants failed to pay overtime wages as required by the Fair Labor Standards

Act, 29 U.S.C. 201 et. seq. and its implementing regulations.

62.

Defendants failure to pay the required overtime wage was willful within the

meaning of 20 U.S.C. 255 as Defendants knew or showed reckless disregard for the issue of
whether Defendants conduct was prohibited under the FLSA.
63.

Defendants Failure to comply with the FLSA caused Plaintiff to suffer loss of

wages.
SECOND CAUSE OF ACTION
(New York Labor Law Payment of Wages)

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 10 of 12

64.

Plaintiff repeats and reiterates each and every allegation contained in the

preceding paragraphs as if set forth herein.

65.

Defendants failed to pay Plaintiff for overtime wages in violation of NYLL

Article 19 and its implementing regulations.

66.

Defendants failure to pay the required wages as set forth herein was willful

within the meaning of NYLL.

67.

Defendants failure to comply with New York wage and hour protections caused

Plaintiff to suffer loss of wages and interest thereon.

THIRD CAUSE OF ACTION
(New York Labor Law Spread of Hours)
68.

Plaintiff repeats and reiterates each and every allegation contained in the

preceding paragraphs as if set forth herein.

69.

At no time did Defendants compensate Plaintiff at the mandatory additional hour

at the then-prevailing minimum wage when his spread of hours exceeded ten (10) hours in any
given day.
70.

Defendant's failure to pay spread of hours is in violation of Hospitality Industry

Wage Order Part 146 of Title 12 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (12 NYCRR 146).
71.

Defendant's failure to comply with New York wage and hour protections caused

Plaintiff to suffer loss of wages and interest thereon.

FOURTH CAUSE OF ACTION
(New York Labor Law Notice and Wage Statement Violations)
72.

Plaintiff repeats and reiterates each and every allegation contained in the

preceding paragraphs as if set forth herein.

10

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 11 of 12

73.

At no time did Defendants furnish Plaintiff with proper written pay notice at the

time of hire and when required annually in violation of NYLL 195(1).

74.

At no time did Defendants furnish Plaintiff with a proper written pay notice

reflecting Plaintiff's regular rate of pay, or any changes to Plaintiff's rate of pay, in violation of
NYLL 195(1).
75.

At no time did Defendants furnish Plaintiff with proper wage statements in

violation of NYLL 195(3).

76.

Defendants' failure to furnish Plaintiff with proper pay notices and wage

statements in accordance with New York Labor Law 195, entitles Plaintiff to recover damages
under New York Law 198.
WHEREFORE, Plaintiff requests this Court enter an Order:
i.

Granting judgment to Plaintiff on his FLSA claims and awarding Plaintiff his

unpaid overtime wages, and statutory liquidated damages;

ii.

Granting judgment to Plaintiff on his New York Labor Law claims and awarding

unpaid overtime wages, spread of hours compensation, damages for inadequate pay notice and
statutory liquidated damages, as well as other damages allowed under New York law;
iii.

Awarding Plaintiff prejudgment and post-judgment interest as allowed by law;

iv.

Awarding Plaintiff his costs and reasonable attorneys fees and costs; and

v.

Granting such further relief as the Court deems just and proper.

11

Case 1:16-cv-00482-DNH-ATB Document 5 Filed 04/29/16 Page 12 of 12

Dated: Rochester, New York

April 23, 2016
s/Jeremy McLean
Jeremy McLean
Bar Roll No. 519432
Worker Justice Center of New York
1187 Culver Road
Rochester, New York 14609
Tel: (585) 325-3050
Fax: (585) 325-7614
jmclean@wjcny.org
Attorneys for Plaintiff Rufino Muoz Gonzalez

12