Case 5:15-cv-00226-GLS-ATB Document 1 Filed 02/26/15 Page 1 of 14

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------THOMAS E. PEREZ, Secretary of Labor,
United States Department of Labor,

:
COMPLAINT
:
: Civil Action No.5:15-cv-226 (GLS/ATB)

Plaintiff,
v.

: 15-cvALLIANCE PROPERTY SERVICES, INC.;

ALLIANCE PROPERTY SERVICES, PA, INC.;
SECURE ASSETS FIRST, INC.; IMPERIAL
PROPERTY SERVICES, INC.; and MICHAEL
MCCAFFREY, Individually and as Owner,

:
:
:

Defendants.
-----------------------------------------------------------------

Plaintiff, THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor

(the Secretary), by and through undersigned counsel, brings this action under Section 16(c)
and Section 17 of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201, et seq.)
(the Act or the FLSA), alleging that defendants violated Sections 6, 7, 11(c), 15(a)(2),
15(a)(3), and 15(a)(5) of the Act to recover back wages, liquidated damages, compensatory
damages, punitive damages, and to enjoin acts and practices which violate the provisions of the
FLSA, and to obtain other appropriate relief.
JURISDICTION AND VENUE
1.

Jurisdiction over this action is properly conferred upon this Court by Section 17

of the FLSA, 29 U.S.C. 217, and 28 U.S.C. 1331 and 1345.

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2.

Venue is proper in the United States District Court for the Northern District of

New York because a substantial part of the events or omissions giving rise to the claims herein
occurred in this District.
FACTUAL ALLEGATIONS
The Parties
3.

Plaintiff, THOMAS E. PEREZ, Secretary of Labor, United States Department of

Labor, is vested with authority to file suit to restrain violations of the FLSA and recover back
wages and liquidated damages and is the proper plaintiff for this action.
4.

Defendant

ALLIANCE

PROPERTY

SERVICES,

INC.

(ALLIANCE

PROPERTY SERVICES) is, upon information and belief, a corporation organized under the
laws of the State of New York having its principal office and place of business at 151 Northern
Concourse, Syracuse, NY 13212, within the jurisdiction of this court, where it is engaged in the
business of property preservation and inspection services for foreclosed properties in New York,
Pennsylvania, Massachusetts, and Connecticut.
5.

Defendant ALLIANCE PROPERTY SERVICES, PA, INC. (ALLIANCE

PROPERTY SERVICES, PA) is, upon information and belief, a corporation organized under
the laws of the State of Pennsylvania, having its principal office and place of business at 151
Northern Concourse, Syracuse, NY 13212, within the jurisdiction of this court, where it is
engaged in the business of property preservation and inspection services for foreclosed properties
in Pennsylvania.
6.

Defendant SECURE ASSETS FIRST, INC. (SECURE ASSETS FIRST) is,

upon information and belief, a corporation organized under the laws of the State of New York
having its principal office and place of business at 151 Northern Concourse, Syracuse, NY
13212, within the jurisdiction of this court, where it is engaged in the business of property
2

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preservation and inspection services for foreclosed properties in New York, Pennsylvania,
Massachusetts, and Connecticut.
7.

Defendant

IMPERIAL

PROPERTY

SERVICES,

INC.

(IMPERIAL

PROPERTY SERVICES) is, upon information and belief, a corporation organized under the
laws of the State of New York having its principal office and place of business at 151 Northern
Concourse, Syracuse, NY 13212, within the jurisdiction of this court, where it is engaged in the
business of property preservation and inspection services for foreclosed properties in New York,
Pennsylvania, Massachusetts, and Connecticut.
8.

The defendant businesses referenced in paragraphs 4 through 7 above

(collectively the corporate defendants) have regulated the employment of all persons employed
by them, acted directly and indirectly in the companies interest in relation to the employees, and
thus are employers of the employees within the meaning of Section 3(d) of the Act.
9.

Defendant MICHAEL MCCAFFREY is, upon information and belief, the

President and owner of defendants ALLIANCE PROPERTY SERVICES, ALLIANCE

PROPERTY SERVICES, PA, SECURE ASSETS FIRST, and IMPERIAL PROPERTY
SERVICES, and is in active control and management of all the corporate defendants. Defendant
MICHAEL MCCAFFREY has authority to and does hire, fire, supervise, set the hours and
compensation of employees, and otherwise acted directly and indirectly in the interest of all of
the corporate defendants in relation to employees. He is thus an employer of the employees
within the meaning of Section 3(d) of the Act. Defendant MICHAEL MCCAFFREY resides in
Onondaga County, New York, within the jurisdiction of this Court.

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Defendants Are an Enterprise Engaged in Commerce

10.

The business activities of Defendants, as described herein, are related and

performed through common control for a common business purpose and constitute an enterprise
within the meaning of Section 3(r) of the Act.
11.

Defendants are engaged in preserving and maintaining foreclosed properties

across New York and other neighboring states.

Field employees of Defendants primarily

changed locks, mowed lawns, winterized homes, and did light construction work on the
foreclosed properties. Field employees of Defendants performed the same work for each of the
corporate defendants.
12.

Field employees of Defendants often received paychecks from two of the

corporate defendants in the same pay period without performing separate work for each
corporate defendant.
13.

The corporate defendants have common and centralized operational management

and ownership by individual defendant Michael McCaffrey, who, upon information and belief, is
the president and owner of all corporate defendants.
14.

Defendants have employed employees listed in Exhibit A in and about their

places of business in the activities of an enterprise engaged in commerce or in the production of

goods for commerce, including employees handling, selling, or otherwise working on goods or
materials that have been moved in or produced for commerce. These goods include but are not
limited to locks, lawn mowers, generators, compressors, and light construction materials. Upon
information and belief, the enterprise has had an annual gross volume of sales made or business
done in an amount not less than $500,000 (and for at least one year, in excess of $6 million) for
the period covered by this Complaint. Therefore, the employees are employed in an enterprise

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engaged in commerce or in the production of goods for commerce within the meaning of Section
3(s)(1)(A) of the Act.
Defendants Pay and Recordkeeping Practices
15.

At all relevant times prior to approximately May 2013, Defendants field

employees typically worked an average of over 60 hours per week and were not paid overtime at
one and one-half their regular rate for hours over 40.
16.

At all relevant times between approximately May 2013 and April 2014,

Defendants field employees that were hired prior to May 2013 typically worked an average of
over 60 hours per week and were not paid overtime at one and one-half their regular rate for
hours over 40.
17.

At all relevant times prior to approximately April 2014, Defendants paid many

field employees by two checks for bi-weekly pay periods in which the employees worked in
excess of 80 hours: a payroll check from ALLIANCE PROPERTY SERVICES or IMPERIAL
PROPERTY SERVICES for the first 80 hours of work that pay period, paid at the employees
regular hourly rates; and a separate check drawn from SECURE ASSETS FIRST or ALLIANCE
PROPERTY SERVICES, PA for hours worked in excess of 80 that pay period, also paid at the
employees regular hourly rates.
18.

Employees did the same work and reported to the same supervisors regardless of

which corporate defendant issued the paycheck.

19.

At all relevant times prior to approximately April 2014, Defendants paid at least

eight field employees in cash at the employees regular hourly rates for hours worked in excess
of 80 hours each bi-weekly pay period. Defendants attempted to conceal the cash payments by

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failing to keep any records of cash payments or the number of hours employees were paid in
cash.
20.

At all relevant times prior to approximately April 2014, Defendants paid at least

one employee off the payroll with one check for all hours worked whereby the employee was
paid the same regular hourly rate for his first 80 hours of work each bi-weekly pay period as for
the hours worked in excess of 80 that pay period.
21.

At all relevant times prior to approximately April 2014, Defendants did not pay

most field employees one and one half times their regular rate of pay when they worked in
excess of 40 hours per week but rather paid their regular rate for all hours worked.
22.

At all relevant times prior to approximately April 2014, Defendants paid at least

one field employee a set salary per week regardless of the number of hours worked Monday
through Friday of the week.
23.

As a result of receiving a set salary for all hours worked Monday through Friday

of the week, Defendants did not pay this field employee one and one half times his regular rate
of pay when he worked in excess of 40 hours per week.
24.

At all relevant times prior to approximately April 2014, Defendants

automatically deducted a half-hour for lunch every day even though some field employees did
not take a lunch break.
25.

At all relevant times prior to approximately April 2014, Defendants did not pay

some field employees for all their hours worked because employees were not authorized to work
beyond a set number of daily hours even though Defendants knew field employees were working
these hours.

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26.

Defendants failed to pay some field employees any wages for their final one or

two weeks of work.

27.

As a result of not receiving any wages for their final one or two weeks of work,

Defendants did not pay some field employees at least the applicable statutory minimum rate
prescribed in Section 6 of the Act, 29 U.S.C. 206(a).
28.

As a result of not receiving any wages for their final one or two weeks of work,

Defendants did not pay some field employees one and one-half their regular rate of pay as
prescribed in Section 7 of the Act, 29 U.S.C. 207(a).
29.

Prior to approximately January 2013, Defendants did not maintain accurate

records of their employees daily or weekly hours. Defendants did not create or maintain
adequate and accurate records of the times that their employees started and stopped work each
day, or the total regular and overtime hours that their employees worked each week. Instead,
Defendants payroll records showed that most field employees worked 80 hours every two-week
pay period, regardless of the actual number of hours that they worked.
Defendants Retaliation
30.

In or about April 2012, the Wage and Hour Division of the U.S. Department of

Labor (WHD) began an investigation into the employment practices of Defendants under the
Act.
31.

On or about September 5, 2013, WHD investigators held an initial conference

with Defendants at their office to discuss Defendants payroll, timekeeping, and employment
practices.
32.

As part of its investigation, WHD investigators spoke to employees of Defendants

prior to the September 5, 2013 initial conference.

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33.

Upon information and belief, Defendants were aware that employees had spoken

to WHD investigators.
34.

On or about September 16, 2013, Defendants discharged an employee, Jack Scott,

for the stated reason that he spoke to the Department of Labor.

FIRST CAUSE OF ACTION
Violation of Sections 6(a) and 15(a)(2) of the FLSA, Failure to Pay Minimum Wage
35.

The Secretary incorporates by reference and re-alleges the allegations in

paragraphs 1 to 34 of the Complaint.

36.

Defendants willfully have violated the provisions of sections 6 and 15(a)(2) of the

Act by paying at least four of their employees employed in an enterprise engaged in commerce
or in the production of goods for commerce at rates less than the applicable statutory minimum
wage prescribed in section 6 of the Act, specifically by failing to pay employees any wages for
their final week of work.
37.

Therefore, Defendants are liable for any unpaid minimum wages and an equal

amount in liquidated damages under section 16(c) of the Act or, in the event liquidated damages
are not awarded, unpaid minimum wages and prejudgment interest on said unpaid minimum
wages under section 17 of the Act.
SECOND CAUSE OF ACTION
Violation of Sections 7(a) and 15(a)(2) of the FLSA, Failure to Pay Overtime
38.

The Secretary incorporates by reference and re-alleges the allegations in

paragraphs 1 to 37 of the Complaint.

39.

Defendants in many workweeks willfully have violated the provisions of sections

7 and 15(a)(2) of the Act by employing their employees in an enterprise engaged in commerce or
in the production of goods for commerce, for workweeks longer than those prescribed in section

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7 of the Act without compensating the field employees for their employment in excess of the
prescribed hours at rates not less than one and one-half times the regular rates at which they were
employed. Many field employees of Defendants regularly worked in excess of 60 hours each
workweek. Defendants compensated field employees at regular hourly rates for all hours that
employees worked in a workweek. Defendants did not pay any additional premiums of one and
one-half employees regular rates for hours worked by most field employees in excess of 40 in a
workweek.
40.

Therefore, Defendants are liable for unpaid overtime compensation and an equal

amount in liquidated damages under section 16(c) of the Act or, in the event liquidated damages
are not awarded, unpaid overtime compensation and prejudgment interest on said unpaid
overtime compensation under section 17 of the Act.
41.

As described herein, Defendants actions have been willful. For example,

Defendants attempted to simulate compliance by paying field employees for their hours worked
in excess of 40 in a workweek via paycheck from separate companies or in cash. Defendants
willfully have violated the Act since at least February 26, 2012.
THIRD CAUSE OF ACTION
Violation of Sections 11(c) and 15(a)(5) of the FLSA
42.

The Secretary incorporates by reference and re-alleges the allegations in

paragraphs 1 to 41 of the Complaint.

43.

Defendants willfully have violated the provisions of sections 11(c) and 15(a)(5) of

the Act, in that Defendants failed to make, keep, and preserve adequate and accurate records of
their employees and of the wages, hours, and other conditions of employment which they
maintained as prescribed by the Regulations issued and found at 29 C.F.R. Part 516; more

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specifically, Defendants failed to keep adequate and accurate records of many of their
employees actual daily and weekly hours of work, and total weekly overtime payments.
FOURTH CAUSE OF ACTION
Violation of Section 15(a)(3) of the FLSA
44.

The Secretary incorporates by reference and re-alleges the allegations in

paragraphs 1 to 43 of the Complaint.

45.

Defendants violated the provisions of Section 15(a)(3) of the Act by discharging

an employee because he filed any complaint or instituted or caused to be instituted any

proceeding under or related to this Act, or testified or was about to testify in this proceeding.
46.

Therefore, Defendants are liable for back wages lost and an equal amount of

liquidated damages, compensatory damages, punitive damages and other equitable relief as
might be appropriate under Sections 16 and 17 of the Act.

WHEREFORE, cause having been shown, Plaintiff respectfully prays for judgment
against Defendants providing the following relief:
1.

An injunction issued pursuant to Section 17 of the Act permanently restraining

Defendants, their officers, agents, servants, employees, and those persons in active concern or
participation with Defendants, from violating the provisions of Sections 6, 7, 11(c), 15(a)(2),
15(a)(3), and 15(a)(5)of the Act;
2.

An order pursuant to Section 16(c) of the Act finding Defendants liable for unpaid

minimum wage and overtime compensation found due Defendants employees listed on the
attached Exhibit A and an equal amount of liquidated damages (additional minimum wage and
overtime compensation and liquidated damages may be owed to certain employees presently
unknown to Plaintiff for the period covered by this Complaint); or
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3.

In the event liquidated damages are not awarded, for an injunction issued pursuant

to Section 17 of the Act restraining Defendants, their officers, agents, employees, and those
persons in active concert or participation with Defendants, from withholding the amount of
unpaid minimum wage and overtime compensation found due Defendants employees and
prejudgment interest computed at the underpayment rate established by the Secretary of Treasury
pursuant to 26 U.S.C. 6621;
4.

An order compelling Defendants to reimburse the Secretary for the costs

of this action;
5.

An order granting such other relief as the Court may deem necessary or

appropriate;
6.

An order pursuant to Section 17 of the Act reinstating the employee

discharged in violation of the provisions of Section 15(a)(3) of the Act; and

7.

An order pursuant to Section 17 of the Act for back wages lost, an equal

amount of liquidated damages, punitive damages and all other appropriate legal or
equitable relief as may be necessary and appropriate for violations of Section 15(a)(3) of
the Act.

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DATED:

February 26, 2015

New York, New York
s/ M. Patricia Smith
M. PATRICIA SMITH
Solicitor of Labor

s/ Jeffrey S. Rogoff
JEFFREY S. ROGOFF
Regional Solicitor

s/ James R. Wong
JAMES R. WONG
James R. Wong Bar No: 517992
Trial Attorney
U.S. Department of Labor,
Attorneys for Plaintiff Secretary of Labor
U.S. Department of Labor
Office of the Regional Solicitor
201 Varick Street, Room 983
New York, NY 10014
(646) 264-3646
(646) 264-3660 (fax)
wong.james.r@dol.gov
NY-SOL-ECF@dol.gov
Secretary of Labor, Plaintiff

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