The Percy Program

It is a fight to level the playing field to be able to compete for jobs and careers on the basis of skills and make available apprentice training to all. In 1973 Al Percy launched a class action lawsuit to give workers like him a chance to better their lot in life. It would also ensure the availability of skilled workers to build the infrastructure of the future.

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2 years ago

Attachment 7 EDNY Percy v Employer and Owners 21-cv-01366 Complaint

  • Text
  • Employer
  • Defendants
  • Operator
  • Nursing
  • Minority
  • Intervention
  • Rehabilitation
  • Pageid
  • Brooklyn
  • Benefits
  • Attachment
  • Edny
  • Percy
  • Owners
  • Complaint

Case

Case 1:21-cv-01366-NGG-SJB Case MDL No. 3011 Document 25-7 1 Filed Filed 03/15/21 06/24/21 Page Page 4 of 4 97 of 97 PageID #: 4 Zitter; David Zohler, Owner Operator Defendants, Local 1199 of the Service Employees International Union, Union Defendant, Oriska Insurance Company, Rashbi Management, Inc., Carrier Defendant, Trust Defendant, Oriska Corporation derivatively to the Carrier Defendant and by Subrogation to the Class, Derivative Defendant. --------------------------------------------------------------------------------------------- The Plaintiffs, Donna Hodge, Annette Hall, Karen Grant Williams, Alexi Arias, Albert E. Percy, Percy Jobs and Careers Corporation an IRC 501(c)(3) non-profit, as Class Representative, by their attorney James M. Kernan, ask the indulgence of the reader, as we try to describe the events in which we are even now continuing to be engulfed, for all of the deficiencies by this Complaint that have dared on this pleading to bring forth so great an urgency, state as follows: INTRODUCTION 1. This case is about negligent failure of the Employer Defendants to monitor and supervise the operation of their Employee Income Security Retirement Act (“ERISA”) Plan for the benefit of the employee Class Plaintiff. JURISDICTION 2. Federal question jurisdiction exists in this case based on preemption of Plaintiffs’ claims under the Employee Retirement Income Security Act of 1974, (“ERISA”), 29 U.S.C. § 1001 et seq. (1132(a)). This court has original jurisdiction over ERISA actions and subject matter jurisdiction to entertain this action under 28 U.S.C. §§ 1331 and 1345, 29 U.S.C. § 1132(e), 29 U.S.C. § 1001 et seq. and “prohibited transaction penalty proceedings” (as defined in §2570.2(o) under section 502(i) of the ERISA). To the extent that any claim in the Complaint is not preempted, it forms part of the same case or controversy under 28 U.S.C. § 1367(a). 3. Federal question jurisdiction also exists in this case based upon the Occupational Security Occupational Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. § 651 et seq. 4. Federal question jurisdiction also exists in this case based upon the Civil Rights Act of 1964 as amended in 1991, 42 U.S.C. § 2000 E-2 et seq. 4

Case 1:21-cv-01366-NGG-SJB Case MDL No. 3011 Document 25-7 1 Filed Filed 03/15/21 06/24/21 Page Page 5 of 5 97 of 97 PageID #: 5 DEFINITIONS 5. The five prerequisites for an ERISA welfare benefit plan, program or fund are a: “(1) plan, fund or program, (2) established or maintained, (3) by employers, (4) for purpose of providing for health, statutory disability, workers’ compensation, apprenticeship, training, continuing education, safety to participants or their beneficiaries of the Employers.” 6. The assets of a plan, fund or program under by ERISA, may be used only for two purposes: (1) to pay benefits to participants and beneficiaries, (2) to pay the reasonable expenses of administering their Plan. 7. The Class named herein is the real party in interest with standing to sue under ERISA Section 502(a)(2) for relief under ERISA Section 409, 29 U.S.C. § 1109 and Section 409(a). 8. The Employer Defendants are plan sponsors of their Plan and Program. 9. Trust Defendant Rashbi Management, Inc. is the settlor and administrator of a trust for the Plan and Program. 10. The Class asserts claims for relief for benefits under the Plan and Program. 11. Under ERISA, the Employer Defendants’ Plan is required to be administered “solely in the interest of the participants and beneficiaries” and “for the exclusive purpose of … providing benefits to participants and their beneficiaries.” 29 U.S.C. § 1104(a)(1). 12. The Plan assets must be maintained in a Plan trust to provide payment for benefits, to comply with the Program and ERISA. 13. The Employee Retirement Income Security Act (ERISA), codified at 29 USC§ 1001 et seq., governs "employee welfare funds”, which are defined, 29 USC§1002(1) “as: any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries.” 14. The Program was established and maintained by the Employer Defendants for the purpose of providing benefits for its participants or their beneficiaries, through the purchase of insurance covering health, disability and workers' compensation. 15. Each of the Employer Defendants are plan sponsors (“Plan Sponsors”) under the Program, the employer-sponsored Program governed by ERISA, in which the Class of employees participate. 16. Employer Defendants, as a result of exercising control and management over Fund Assets under 29 U.S.C. 186(c)(5) "employee benefit plans" within the meaning of 29 U.S.C. 1002(37), (1), (2) and (3), the Employer Defendants are fiduciaries under ERISA, as defined in 29 U.S.C. § 1002(1)(a) of ERISA. 5

Alternative Employment Practice Percy Program