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 40 of 4097 of PageID 97 #: 40 diversions had personal significance to the Prohibited Transaction Defendants who were allowed by the Employer Defendants to divert the Plan assets. Intervention Pg. 9 Par 7. 143. The Employer Defendants breached their fiduciary duties under ERISA by failing to make or arrange for payment of benefits to the Class, by failure to maintain plan assets in a fiduciary capacity, by failing to have adequate policies and procedures in place to monitor the operation of their Plan, by negligently and with malicious ulterior motives described herein, the Employer Defendants by cover of Muller, diverted, converted and did hide Plan assets rather than place them in trust protection as required by the Program and ERISA. Intervention Pg. 79 Par 152. 144. Evidence shows that the negligent management of Plan assets cover the period from 2010 to the present, although the Employer Defendants were sponsoring the Plan as far back as 2002, which ancient records prior to 2016 have yet to be uncovered because the Employer Defendants neglected to file the required Internal Revenue Code 5500 Returns until some of the Employer Defendants filed partial 5500 Returns beginning at the end of 2016, but even then neglecting to report the full extent of Plan assets that were accumulated in Plan bank accounts. By the negligent management of the Plan assets away from their intended purpose of providing benefits to the employee Class, they were ensnared in prohibited transactions under ERISA, transactions neglected to be identified in the IRC 5500 Returns. 145. Even though the Employer Defendants accrued and expensed funding for the benefits, the funds never made it to trust to be held by the Trustee Plaintiff. The benefits were to improve the skills of members of the Class Plaintiffs through apprentice training and continuing education, health, disability, Worker's Compensation, disability benefits, health benefits, as selected by each Employer Defendant for its Plan, selected from the benefits available under a Program approved by the State in 1994, for the purpose of investing in the welfare of employees of Employer Defendants, to provide skills for opportunities, but now even more important for safety of the well-trained employee, the persons they work or care for, and the general public, the funding was for the welfare benefit of the employee Class Plaintiffs for investment in their welfare by investing in the employees. Numerosity 146. The real Parties in Interest are the Class of employees of the Employer Defendants. Intervention Pg. 98 Par 202. 147. The number of members of the Class are essentially unenumerable but are not indeterminate. The members of the Class can be identified by payroll records, 940 and 941 reports to the Internal Revenue Service, and NYS 45 Reports to the State of New York filed by the Employer Defendants. Intervention Pg. 98 Par 203. 148. There are two subclasses to the Class: Intervention Pg. 98 Par 204. 40

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 41 of 4197 of PageID 97 #: 41 149. First- the sub-class of the Class being all employees injured on the job while working for the Employer Defendants. Intervention Pg. 98 Par 204. 150. Second- the sub-class of the Class being “black or Spanish-surnamed persons who are capable of performing, or capable of learning to perform” in skilled occupations (herein the “Percy Sub-Class”) entitled to apprentice training and continuing education in safety and skills. Intervention Pg. 99 Par 204. 151. Both sub-classes are united in interest with the Class. Intervention Pg. 99 Par 205. 152. The Class Defendant of Employees replaces the redacted names of persons listed as Defendant Employees in the motion to intervene, to protect the confidentiality of the individuals by proceeding as a Class of Employees entitled to benefits. Donna Hodge, Annette Hall, Karen Grant Williams and Alexi Arias are the class representatives of the Defendant Class. Intervention Pg. 99 Par 206. Common Issues of Law and Fact 153. There is a commonality of the members of the Class as participants in a welfare plan sponsored by the Employer Defendants, for health, disability and workers’ compensation, apprenticeship, training, continuing education, safety benefits. Intervention Pg. 99 Par 207. 154. The Employer Defendants failed to have policies and procedures in place to provide common sense control of the use of Plan assets; it was and is as though no one was monitoring the use of Plan assets to assure they benefit the Class of employees working for the Employer Defendants for whom the Plan assets were paid as represented by the Employer Defendants in cost reports, tax returns and financial statements. Detailed in this Complaint are the tens of millions of dollars represented to provide benefits to the employee Class, instead were diverted and converted to prohibited transactions in violation of ERISA and embezzled. 155. The complacency and bureaucracy of the State Department of Health aided and abetted the current disaster caused by unpreparedness by failing to regulate the Employer Defendants as the responsible parties, licensed and authorized by the State, failing to use a commonsense approach to monitor the Employer Defendants businesses, the State Officer Defendants receiving Reports oblivious to misrepresentations, Cost Reports which accrue monies to be expensed for benefits on of Medicaid and Medicare payments to Employer Defendants, benefits that expected a level of investment to improve the welfare of the employee Class, instead payment of funds into Plan assets diverted away from benefits to the personal gain of the Employer Defendants, Owner Operator Defendants and the Prohibited Transaction Defendants. 156. The issues of law and fact determining the claims of the Class, that the actions of the Defendant Employers named in this action and related actions, have caused, are causing, and will continue to cause serious, permanent and irreparable economic and social injury 41

Alternative Employment Practice Percy Program