Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 1 of 25 PageID #: 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

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1 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 1 of 25 PageID #: 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION LONNIE SPELLS, individually and on ) behalf of similarly situated persons, ) ) Case No. Plaintiff, ) ) JURY TRIAL DEMANDED v. ) ) COMMUNICATIONS UNLIMITED, INC., CU ) EMPLOYMENT, INC., COMMUNICATIONS ) UNLIMITED OF THE SOUTH, INC., ) COMMUNICATIONS UNLIMITED ) CONTRACTING SERVICES, INC., ) COMMUNICATIONS UNLIMITED ) MARKETING SERVICES, INC., ) BROADBAND INFRASTRUCTURE & ) CONNECTION, LLC & MARTIN C. ROCHA. ) ) Defendants. ) COMPLAINT Plaintiff Lonnie Spells, individually and on behalf of all other similarly situated technicians misclassified by Defendants as independent contractors during times relevant, for their Complaint against Defendants, allege as follows: 1. The Defendant entities are inter-related, commonly-owned and commonlycontrolled businesses that perform cable television and internet installation services in Missouri, Alabama, Georgia, Indiana, Maryland, North Carolina, South Carolina, Tennessee, Texas, Virginia, and Washington DC, including services performed for Charter Communications within the greater St. Louis area.

2 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 2 of 25 PageID #: 2 2. Defendants employ technicians to install cable television and internet services in subscribers homes. Defendants, however, misclassify many of their technicians as independent contractors, and therefore unlawfully deprive those technicians of overtime pay. 3. Plaintiff Lonnie Spells brings this lawsuit as a collective action under the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 201 et seq., and as a class action under the Missouri Minimum Wage Law ( MMWL ), R.S. Mo , et seq., to recover unpaid overtime pay owed to himself and similarly situated technicians misclassified by Defendants as independent contractors. Jurisdiction and Venue 4. The FLSA authorizes court actions by private parties to recover damages for violation of its wage and hour provisions. Jurisdiction over Plaintiff s FLSA claim is based on 29 U.S.C. 216(b) and 28 U.S.C (federal question). 5. Jurisdiction over Plaintiff s MMWL claims is based on R.S. Mo and 28 U.S.C (pendent claims). 6. Venue in this District is proper under 28 U.S.C because Defendants maintain a place of business in this District, Defendants regularly perform cable television and internet installation services within this District, Defendants employed Plaintiff in this District, and a substantial part of the events giving rise to the claim herein occurred in this District. 2

3 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 3 of 25 PageID #: 3 Parties 7. Defendant Communications Unlimited Inc. is a corporation organized under the laws of the State of Delaware and maintains a place of business in Earth City, Missouri, which is located within the Eastern Division of the Eastern District of Missouri and conducts business within this District. 8. Defendant CU Employment, Inc. is a corporation organized under the laws of the State of Alabama and maintains a place of business in Earth City, Missouri, which is located within the Eastern Division of the Eastern District of Missouri and conducts business within this District. 9. Defendant Communications Unlimited of the South, Inc. is a corporation organized under the laws of the State of Alabama. 10. Defendant Communications Unlimited Contracting Services, Inc. is a corporation organized under the laws of the State of Delaware. 11. Defendant Communications Unlimited Marketing Services, Inc. is a corporation organized under the laws of the State of Alabama. 12. Defendant Broadband Infrastructure and Connection, LLC is a limited liability company organized under the laws of the State of Texas. 13. The Defendant entities form a single integrated enterprise as they share (1) some functional interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. 3

4 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 4 of 25 PageID #: Alternatively, Defendants constitute joint employers as they share (1) the power to hire and fire Plaintiff and other technicians, (2) supervision and control of Plaintiff and other technician s work schedule or conditions of employment, (3) determination of the rate and method of payment, and (4) maintenance of employment records. 15. Defendant Martin C. Rocha is individually liable as an employer under the broad definitions provided by the FLSA and MMWL because he owns the Defendant entities, has operational control over the Defendant entities, controls the terms and conditions of Plaintiff s employment, including compensation and pay practices, and has the ability to hire and fire employees. 29 U.S.C. 203(d); R.S. Mo (4). 16. Plaintiff Lonnie Spells resides within the Eastern Division of the Eastern District of Missouri and he worked for Defendants from about April or May 2012 to about September 13, 2014 as a technician misclassified as an independent contractor and assigned to Defendants office located in Earth City, Missouri, which falls within the Eastern Division of the Eastern District of Missouri. Plaintiff Spells Consent to Become a Party Plaintiff under 29 U.S.C. 216(b) is attached hereto as Exhibit 1. General Allegations Defendants Business 17. Defendants perform cable television and internet installation services in Missouri, Alabama, Georgia, Indiana, Maryland, North Carolina, South Carolina, Tennessee, Texas, Virginia, and Washington D.C. 4

5 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 5 of 25 PageID #: To accomplish their business, Defendants employ technicians to install cable and internet services in subscribers homes. 19. Despite the fact that all technicians have the same job duties and are treated similarly by Defendants with respect to most significant terms and conditions of their work, Defendants misclassify many of the technicians as independent contractors. Defendants Control and Treatment of Technicians Misclassified as Independent Contractors 20. Plaintiff and Defendants other technicians misclassified as independent contractors perform services that constitute an integral part of the Defendants business, including performance of Defendants core services of cable television and internet installation. 21. The technicians misclassified as independent contractors perform the same types of duties as Defendants technicians correctly classified as employees, namely cable television and internet installation. 22. Defendants supervise the technicians misclassified as independent contractors, including assigning, instructing, inspecting, approving and disapproving their work. 23. The same supervisors supervised both technicians misclassified as independent contractors and technicians correctly classified as employees. 24. Defendants supervisors inspect, critique and quality control the work of both the technicians misclassified as independent contractors and the technicians correctly classified as employees. 5

6 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 6 of 25 PageID #: Defendants warned both technicians misclassified as independent contractors and the technicians correctly classified as employees: Guys- The owner of our company will be in town today (Monday- Thursday)- I can tell you his main issues. 1- QC s. He will spend most of his day personally going out and QC ing jobs. DO NOT FAIL. He takes this very seriously. 2- Appearance-MUST HAVE VEST ON AND SHIRT TUCKED IN AT ALL TIME- 3-MUST HAVE CONES OUT ALL TIMES. The man takes this stuff very serious. Get in, get your equipment and get out the door. Pass your QC s at 100%. No trash left a customer s house. Fittings tight. No loose grounds. DO NOT be the tech he calls me about asking why I hired. (Emphasis added). 26. Defendants supervisors addressed both the technicians misclassified as independent contractors and the technicians correctly classified as employees regarding problems and/or deficiencies in the quality of their work. 27. Defendants supervisors required both the technicians misclassified as independent contractors and the technicians correctly classified as employees to redo work that those supervisors determined to be problematic and/or substandard. 28. Defendants required both technicians misclassified as independent contractors and technicians correctly classified as employees to achieve specified performance metrics including, but not limited to, metrics measuring on-time arrivals at installation appointments, trouble calls by customers within 7 days of an installation, and repeat trouble calls by customers within 7 days of an installation. Defendants referred to acceptable scores on a performance metric as green and unacceptable scores as red. 6

7 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 7 of 25 PageID #: Defendants instructed both technicians misclassified as independent contractors and the technicians correctly classified as employees regarding performance metrics: 1- PASS 100% 2- RUN/PASS 100% 3-CONTROL A CUSTOMER FOR 7 DAYS 4-SHOW UP ON ALL DAYS SCHEDULED WITH NO EXCUSES 5- BE IN UNIFORM 100% This is what I ask of you guys. Not just today. Not just tomorrow, but every day. I have personally tried to help each and every one of you as much as I can to better your lives. Please help me with these 5 requests. 30. Defendants admonished both technicians misclassified as independent contractors and the technicians correctly classified as employees [g]uys- Look at your numbers for September. Not very good. 31. Defendants further admonished both technicians misclassified as independent contractors and technicians correctly classified as employees: [m]etrics for October so far. Need everyone Green/Green. Make it happen, the owner of the company has his eyes on these metrics. 32. Defendants required both technicians misclassified as independent contractors and the technicians correctly classified as employees to make efforts to prevent customers from calling Charter Communications regarding problems with Defendants work. 33. Defendants instructed technicians misclassified as independent contractors and the technicians correctly classified as employees to take specific actions to reduce 7

8 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 8 of 25 PageID #: 8 the probability of customers directly calling Charter Communications regarding problems including: Make sure EVERY CUSTOMER CALLS YOU, YOUR SUPERVISOR, DISPATCH, OR ANYONE OTHER THAN CHARTER WITHIN A 7 DAY TIME FRAME. I have heard that not home will still count against us. So on this (and please clarify this with Randy) I believe you should check the house box, do what you can and close the job out and PLEASE LEAVE A DOOR TAG ON THE CUSTOMERS DOOR TO CALL YOU IF ANY ISSUES. Again, please clarify this with Randy. (Emphasis in original). 34. Defendants required both the technicians they misclassified as independent contractors and the technicians they correctly classified as employees to attend weekly meetings at which Defendants supervisors addressed work issues involving both the misclassified and correctly classified technicians and Defendants supervisors instructed all of the technicians. 35. Defendants issued Plaintiff a disciplinary action for missing such a weekly meeting. 36. Defendants maintained attendance and reporting standards for both technicians misclassified as independent contractors and the technicians correctly classified as employees. 37. Defendants warned both technicians misclassified as independent contractors and the technicians correctly classified as employees: No Call/No show techs will not be tolerated. There is no excuse not to be in contact with your supervisor on a daily basis so that he knows what's 8

9 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 9 of 25 PageID #: 9 going on. Don't give any supervisor an excuse to want to remove you from the field. Be the best. I can't fight for a no call/no show. 38. Defendants chastised both technicians misclassified as independent contractors and the technicians correctly classified as employees: Guys I have your supervisors copied. Not sure what the issue her is or if any of you understand how important your names not be showing up with the owner of the company attached. Are you not being shown the schedule? What is the issue? It looks as if you are blatantly not showing up for work on a day you are scheduled. 39. On a typical work day, Defendants required both the technicians misclassified as independent contractors and the technicians correctly classified as employees to appear at Defendants workplace every morning prior to beginning their daily installations to perform activities such as reporting work time, reconciling equipment (scanning equipment for Defendants equipment inventory record), attending weekly work and safety meetings, and obtaining supplies needed to perform installations. 40. Defendants instructed both technicians misclassified as independent contractors and the technicians correctly classified as employees to reconcile equipment at Defendants facility, which entails scanning equipment for equipment inventory records. 41. Defendants warned both technicians misclassified as independent contractors and the technicians correctly classified as employees: Team- Because of the amount of guys that we had that did not reconcile equipment as asked, we will be putting new procedures in place. 9

10 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 10 of 25 PageID #: 10 If you choose not to reconcile equipment on the days you are supposed to, you will not be routed. Simple as that. I need everyone to do their part. 42. Defendants further chastised both the technicians misclassified as independent contractors and the technicians correctly classified as employees: Guys- I need an explanation as to why you did not reconcile. Were you not made aware of did you choose not to come in as asked? This was required by Charter. Why would you choose to ignore? 43. Defendants routed the installation appointments of the technicians misclassified as independent contractors and the technicians correctly classified as employees on a daily basis. 44. Defendants routes imposed on both the technicians misclassified as independent contractors and the technicians correctly classified as employees specified time intervals between for technicians to complete installations. 45. Defendants required both technicians misclassified as independent contractors and technicians classified as employees to obtain their respective supervisor s approval for additional time to complete installations if they could not complete such work within Defendants allotted time interval. 46. Defendants required both the technicians misclassified as independent contractors and the technicians correctly classified as employees to comply with 10

11 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 11 of 25 PageID #: 11 instructions reflected in work orders or to obtain their respective supervisor s permission for variances from work orders, such as permission to drill. 47. Defendants technicians misclassified as independent contractors and its technicians correctly classified as employees were not at liberty to refuse particular installation assignments without suffering adverse consequences. 48. Plaintiff refused to perform one installation assignment due to animal feces in the premises, and as a result he was disciplined in the form of subsequent assignment to lesser-paying installations. 49. Plaintiff attempted to refuse other installation assignments due to unsafe conditions, but Defendants supervisor instructed him to complete those installations. 50. Defendants supervisor warned Plaintiff that he would lose his job as a consequence of refusing to perform an installation assignment. 51. Defendants technicians misclassified as independent contractors and its technicians correctly classified as employees wore the same uniform comprised of a grey shirt bearing Defendants logo and identifying Defendants as an Authorized Contractor of Charter, badges stating I am Charter, and work boots. 52. Defendants maintained appearance standards for both technicians misclassified as independent contractors and its technicians correctly classified as employees. 53. Defendants warned both technicians misclassified as independent contractors and technicians correctly classified as employees about their required appearance: 11

12 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 12 of 25 PageID #: 12 Team- It was made clear to me that moving forward the warehouse will not be giving out equipment to techs who are not in uniform. For 99% of you, uniform is never a problem so I don t anticipate this being an issue. The following will be checked every morning. Shoes Must be work boots. Anyone in tennis shoes will be turned away. Uniform shirt Grey Polo w/vest, vest/shirt combo, shirt tucked in Pants No holes in jeans. Period. Khaki/Blue/Black work pants. No holes, Khaki/Blue/Black work shorts. No holes. ID Badge Crimshield ID Badge with a "I AM CHARTER" Lanyard. (if you do not have these, get with Chris Satkowski). 54. Defendants disciplined both their technicians misclassified as independent contractors and the technicians correctly classified as employees through write-ups, lower-paying installations, and removal from installation assignments. 55. The earnings of the technicians misclassified as independent contractors depended on Defendants installation assignments and Defendants pay scale, and not on any entrepreneurial or business skills possessed or exercised by technicians. 56. The technicians misclassified as independent contractors did not have the authority to hire additional employees or other workers to help perform services for Defendants. 57. Defendants trained both the technicians misclassified as independent contractors and the technicians correctly classified as employees. 58. No other training or education is needed to perform the work of technician for Defendants. 12

13 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 13 of 25 PageID #: Defendants supplied the cable and internet devices, such as cable boxes, modems and wiring, that Defendants technicians misclassified as independent contractors needed to perform cable television and internet installations. 60. Both Defendants technicians misclassified as independent contractors and technicians correctly classified as employees were required to use Defendants work forms. 61. Defendants arranged, and paid for, out of town travel by both the technicians misclassified as independent contractors and the technicians correctly classified as employees, and Defendants required all such technicians to comply with those arrangements such as lodging at specified hotels/motels, maintaining hotel/motel room assignments, and complying with hotel/motel check-out times. 62. Defendants instructed both technicians misclassified as independent contractors and technicians correctly classified as employees: Your last day there will be Thursday. You MUST check out of your hotel Friday so they know you have left. Anyone who doesn't do this will be charged for any fee's as a result. Here is the address to check in on Friday. Paul has asked that you guys pull an afternoon route after you check in. 63. Defendants also instructed both technicians misclassified as independent contractors and technicians correctly classified as employees: Here is the address to the hotel to check in Sunday. I also have listed who should be in what room. Finding a room was very hard, so I need everyone to work with me on this one. I asked the manager about making 13

14 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 14 of 25 PageID #: 14 sure you guys have refrigerators. This is the 3rd largest city in MT and a college town. Per Paul, you guys should all finish your Saturday work where you are and then turn your equipment in that day. My advice would be to make sure they sign off that they got the equipment. 64. Defendants required both technicians misclassified as independent contractors and the technicians correctly classified as employees to abide by specified standards of decorum and politeness to customers: I have to have 2 conference calls a week led by our Charter contact to the local St. Louis contract groups. All Contract companies are required to be on this call. It was made very clear to all companies that our Charter contact is going to be pulling people from Charter Business every time that he believes they should be pulled. We can all sit and talk about how fair this might be, but that is an issue I will deal with on my end. What I need all of you to do is FLY UNDER THE RADAR!! I have had to pull at least 6 techs from the field the last 2 weeks. One was because the customer perceived the tech as being rude. Guys, we are in a customer service friendly business. I understand how hard it is to keep your composure day to day with the equipment challenges and headaches that you face. But I need everyone to go in every house with the attitude of making this customer 100% happy. We can t afford to lose any of you for any period of time. We should say yes sir/no sir yes maam/no maam at all times. No arguing with customers. If something is wrong with a customer at a house, step outside and call or text myself or Javier. I need ZERO CALLS FROM CUSTOMERS TO CHARTER FOR ANY REASON. If you break something at a customer s house, make me aware ASAP and lets resolve with customer before it gets to Charter. You work in the best cable area in charter/st. Louis and you work for the best company. Why ruin it for yourself? For all of you guys that came from other local companies, you should especially watch your step he has his eyes on you. 65. Defendants technicians misclassified as independent contractors worked exclusively for Defendants, and did not perform services for any other cable television and internet installation company. 14

15 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 15 of 25 PageID #: Other than secretary of state registrations required by Defendants, the technicians misclassified as independent contractors did not advertise their services or represent themselves to the public or cable and internet providers as independent businessmen. Work Hours 67. Plaintiff and Defendants other technicians misclassified as independent contractors typically worked over 40 hours per week. 68. Plaintiff estimates that he typically worked at least 60 hours per week. No Overtime Pay 69. Defendants did not pay overtime compensation to the technicians misclassified as independent contractors. Technicians Complaints Were Ignored 70. At least some of the technicians, including Plaintiff, complained about being paid as independent contractors rather than being paid as employees, yet Defendants maintained their unlawful pay practices. Net Effect 71. The net effect of Defendants unlawful pay practices is that they willfully fail to pay the federal and Missouri overtime wages for all time worked to their technicians. Defendants thereby enjoy ill-gained profits at the expense of their employees. 15

16 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 16 of 25 PageID #: 16 Timekeeping Failures 72. Defendants failed to keep full and accurate records of the work time spent by technicians misclassified as independent contractors. Class and Collective Action Allegations 73. Plaintiff brings the FLSA claim asserted herein as an opt-in collective action on behalf of all similarly situated technicians who filed a consent to join under 29 U.S.C. 216(b). 74. Plaintiff, individually and on behalf of other similarly situated employees, seeks relief on a collective basis challenging Defendants practices of failing to pay employees federal minimum wage and overtime compensation. 75. Plaintiff and all of Defendants technicians are similarly situated in that: a. They have worked for Defendants as technicians performing Defendants primary business, namely installing cable television and internet services; b. They have been subjected to the same, or at least very similar, control and treatment by Defendants as set forth in detail above; c. They have worked over 40 hours per week during at least some workweeks; d. They have been denied overtime pay for work in excess of 40 hours per week; and e. Defendants failed to keep full and accurate records of their work time. 16

17 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 17 of 25 PageID #: Plaintiff brings the MMWL claim asserted herein as a class action under Fed. R. Civ. P. 23, on behalf of themselves and as the Class Representatives of the following persons (the Class ): All current and former technicians in the State of Missouri considered by Defendants as independent contractors at any time since the date two years preceding the filing of this Complaint. 77. The state law claim, if certified for class-wide treatment, is brought on behalf of all similarly situated persons who do not opt-out of the Class. 78. Plaintiff s state law claim satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of Fed. R. Civ. P The Class satisfies the numerosity standard because it consists of at least one hundred persons who are geographically dispersed and, therefore, joinder of all Class members in a single action is impracticable. 80. Questions of fact and law common to the Class predominate over any questions affecting only individual members. The questions of law and fact common to the Class arising from Defendants actions include, without limitation: a. Whether Defendants misclassified the technicians as independent contractors exempt from the overtime requirement of the MMWL; b. Whether they have worked for Defendants as technicians performing Defendants primary business, namely installing cable television and internet services; 17

18 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 18 of 25 PageID #: 18 c. Whether they have been subjected to the same, or at least very similar, control and treatment by Defendants as set forth in detail above; d. Whether they have worked over 40 hours per week during at least some workweeks; and e. Whether they have been denied overtime pay for work in excess of 40 hours per week. f. Whether Defendants failed to fully and accurately record the hours worked each day and each workweek by Class members as required under R.S. Mo The questions set forth above predominate over any questions affecting only individual persons, and a class action is superior with respect to considerations of consistency, economy, efficiency, fairness, and equity to other available methods for the fair and efficient adjudication of the state law claims. 82. Plaintiff s claims are typical of those of the Class in that: a. Plaintiff and the Class have worked as technicians for Defendants installing cable television and internet services; b. Plaintiff and the Class have been subjected to the same, or at least very similar, control and treatment by Defendants as set forth in detail above; 18

19 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 19 of 25 PageID #: 19 c. Plaintiff and the Class have worked over 40 hours per week during at least some workweeks; d. Plaintiff and the Class have been denied overtime pay for work in excess of 40 hours per week; and e. Defendants failed to keep full and accurate records of each class members work time. 83. A class action is the appropriate method to fairly and efficiently adjudicate this controversy. 84. Plaintiff is an adequate representative of the Class because he is a member of the Class and his interests do not conflict with the interests of the members of the Class he seeks to represent. The interests of the members of the Class will be fairly and adequately protected by Plaintiff and the undersigned counsel, who have extensive experience prosecuting complex wage and hour, employment, and class action litigation. 85. Maintenance of this action as a class action is superior to other available methods for fairly and efficiently adjudicating the controversy as members of the Class have little interest in individually controlling the prosecution of separate class actions, no other litigation is pending over the same controversy, it is desirable to concentrate the litigation in this Court due to the relatively small recoveries per member of the Class, and there are no material difficulties impairing the management of a class action. 19

20 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 20 of 25 PageID #: It would be impracticable and undesirable for each member of the Class who suffered harm to bring a separate action. In addition, the maintenance of separate actions would place a substantial and unnecessary burden on the courts and could result in inconsistent adjudications, while a single class action can determine, with judicial economy, the rights of all Class members. Count I: Violation of the FLSA 87. Plaintiff reasserts and re-alleges the allegations set forth above. 88. At all times material herein, Plaintiff and other similarly situated persons have been entitled to the rights, protections, and benefits provided under the FLSA, 29 U.S.C. 201 et seq. 89. The FLSA regulates, among other things, the payment of overtime wages to employees who are engaged in interstate commerce, or engaged in the production of goods for commerce, or employed in an enterprise engaged in commerce or in the production of goods for commerce. 29 U.S.C. 207(a)(1). 90. Defendants are subject to the overtime pay requirements of the FLSA because they constitute an enterprise engaged in interstate commerce and their technicians are engaged in interstate commerce. 91. During all times relevant to this action, Defendants were the employers of Plaintiff and the technicians within the meaning of the FLSA. 29 U.S.C. 203(d). 20

21 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 21 of 25 PageID #: During all times relevant to this action, Plaintiff and the technicians were Defendants employees within the meaning of the FLSA. 29 U.S.C. 203(e). 93. Section 13 of the FLSA, codified at 29 U.S.C. 213, exempts certain categories of employees from overtime pay obligations. Despite Defendants misclassification of the technicians, none of the FLSA s exemptions apply to Plaintiff or other similarly situated technicians. Id. 94. Pursuant to the FLSA, employees are entitled to be compensated at a rate of not less than one and one-half times the regular rate at which such employees are employed for all work performed in excess of 40 hours in a workweek. 29 U.S.C. 207(a). 95. Defendants violated the FLSA by failing to pay for overtime wages as required by the FLSA. 29 U.S.C. 207(a). 96. Plaintiff and all similarly situated technicians misclassified as independent contractors are victims of a uniform compensation policy. On information and belief, the same unlawful compensation policy has been applied to all Defendants technicians misclassified as independent contractors. 97. Plaintiff and all similarly situated technicians misclassified as independent contractors are entitled to damages equal to the mandated overtime premium pay within the three years preceding the filing of the Complaint, plus periods of equitable tolling, because Defendants acted willfully and knew, or showed reckless disregard for 21

22 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 22 of 25 PageID #: 22 whether their conduct was prohibited by the FLSA, and dissuaded employees from asserting their legal rights by misinforming employees about those rights. 98. Defendants have not acted in good faith or with reasonable grounds to believe that its actions and omissions were not a violation of the FLSA, and as a result thereof, Plaintiff and other similarly situated technicians are entitled to recover an award of liquidated damages in an amount equal to the amount of unpaid overtime pay permitted by 29 U.S.C. 216(b). Alternatively, should the Court find that Defendants are not subject to an award of liquidated damages, Plaintiff and all similarly situated technicians are entitled to an award of prejudgment interest at the applicable legal rate. 99. As a result of the aforesaid willful violations of the FLSA s overtime pay provisions, overtime compensation has been unlawfully withheld by Defendants from Plaintiff and all similarly situated technicians misclassified as independent contractors. Accordingly, Defendant are liable under 29 U.S.C. 216(b), together with an additional amount as liquidated damages, pre- and post-judgment interest, reasonable attorneys fees, and costs of this action. WHEREFORE, on Count I of this Complaint, Plaintiff and all similarly situated technicians demand judgment against Defendants and pray for: (1) compensatory damages; (2) liquidated damages; (3) attorneys fees and costs as allowed by Section 16(b) of the FLSA; (4) pre-judgment and post-judgment interest as provided by law; and (5) such other relief as the Court deems fair and equitable. 22

23 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 23 of 25 PageID #: 23 Count II: Violation of the MMWL 100. Plaintiff reasserts and re-alleges the allegations set forth above At all relevant times herein, Plaintiff and the Class have been entitled to the rights, protections, and benefits provided under the MMWL, R.S. Mo et seq The MMWL regulates, among other things, the payment of overtime wages by employers, subject to limited exemptions not applicable herein. R.S. Mo (3) &(4); R.S. Mo During all times relevant to this action, Defendants were the employer of Plaintiff and the Class within the meaning of the MMWL. R.S. Mo (3) &(4) During all times relevant to this action, Plaintiff and the Class were Defendants employees within the meaning of the MMWL. R.S. Mo (3) The MMWL exempts certain categories of employees from Missouri s overtime wage and other obligations, none of which apply to Plaintiff or the Class. R.S. Mo (3). Despite Defendants misclassification of the technicians, none of the MMWL s exemptions apply to Plaintiff or other similarly situated technicians. Id Pursuant to the MMWL, employees are entitled to be compensated at a rate of not less than one and one-half times the regular rate at which such employees are employed for all work performed in excess of 40 hours in a workweek. R.S. Mo

24 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 24 of 25 PageID #: Defendants, pursuant to their policy and practice, violated the MMWL by refusing and failing to pay Plaintiff and other similarly situated technicians overtime wages required under the MMWL. R.S. Mo Plaintiff and the Class are victims of a uniform and employer-based compensation policy. This uniform policy, in violation of the MMWL, has been applied, and continues to be applied, to all Class members within the time parameters described above Plaintiff and all similarly situated technicians are entitled to damages equal to all unpaid overtime wages due within two years preceding the filing of this Complaint plus periods of equitable tolling along with an additional equal amount as liquidated damages. R.S. Mo Plaintiff and the Class are entitled to an award of pre-judgment and postjudgment interest at the applicable legal rate Defendants are liable under R.S. Mo for Plaintiff s costs and reasonable attorneys fees incurred in this action. WHEREFORE, on Count II of this Complaint, Plaintiff and all similarly situated technicians demand judgment against Defendants and pray for: (1) compensatory damages; (2) liquidated damages; (3) attorneys fees and costs as allowed by R.S. Mo ; (4) pre-judgment and post-judgment interest as provided by law; and (5) such other relief as the Court deems fair and equitable. 24

25 Case: 4:15-cv NCC Doc. #: 1 Filed: 05/11/15 Page: 25 of 25 PageID #: 25 Demand for Jury Trial Plaintiff hereby requests a trial by jury of all issues triable by jury. Dated: May 11, 2015 PAUL McINNES LLP Richard M. Paul III (MO Bar #44233) (pro hac vice forthcoming) Jack D. McInnes (MO Bar #56904) (pro hac vice forthcoming) 601 Walnut, Suite 300 Kansas City, Missouri Telephone: (816) Facsimile: (816) paul@paulmcinnes.com mcinnes@paulmcinnes.com Respectfully submitted, WEINHAUS & POTASHNICK /s Mark Potashnick Mark A. Potashnick (E.D. Mo. Bar # 41315MO) Olive Blvd., Suite 133 St. Louis, Missouri Telephone: (314) Facsimile: (314) markp@wp-attorneys.com ATTORNEYS FOR PLAINTIFF 25