Roadside Assistance Unpaid Overtime Class Action Complaint Filed

Our overtime pay attorneys recently filed a Complaint in the U.S. District Court of Kentucky involving the class action roadside assistance unpaid overtime lawsuit we are handling.

The claim is filed against the roadside assistance companies these employees were employed at – Jack Rabbit Services, LLC, a Kentucky limited liability company, and Jack Rabbit USA, LLC, a Florida limited liability company. It alleges that both companies intentionally misclassified its workers as independent contractors in order to avoid paying overtime and minimum wage. In addition, the wages of many roadside assistance employees were reduced due to unlawful deductions.

Below you will find the Complaint. The unpaid overtime lawsuit is currently pending in court.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

RICHARD ROSS, individually and on

behalf of all others similarly situated, Case No.

Plaintiff, Hon.

JACK RABBIT SERVICES, LLC,

a Kentucky limited liability company;

JACK RABBIT USA, LLC, a Florida

limited liability company; jointly and severally,

Defendants.

_____________________________________________________________________________/

COLLECTIVE AND CLASS ACTION COMPLAINT

AND DEMAND FOR JURY

Plaintiff, Richard Ross, on behalf of himself and all others similarly situated, by and through his undersigned counsel, for his Collective and Class Action Complaint against Defendants, alleges as follows.

INTRODUCTION

This case concerns Defendant roadside assistance companies (providing the following services: tire changing, jump starts, fuel delivery, lockout services), Jack Rabbit Services, LLC (hereinafter “Jack Rabbit Services”) and Jack Rabbit USA, LLC (hereinafter “Jack Rabbit USA”) (hereinafter collectively referred to as “Defendants”), who intentionally misclassify Plaintiff and all other members of the putative Class as independent contractors. Pursuant to this intentional misclassification, Defendants willfully refuse to pay a minimum wage; willfully refuse to pay overtime; and reduce employee wages through unlawful deductions.

Plaintiff, Richard Ross, on behalf of himself and other similarly situated roadside assistance technicians currently or formerly employed by Defendants (hereinafter “Plaintiff” or “Ross”), contend that Defendants violated the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. (“FLSA”) by: (1) misclassifying roadside assistance technicians as independent contractors; (2) failing to pay roadside assistance technicians the minimum wage in violation of FLSA; (3) knowingly suffering and permitting Plaintiff and the putative Class members to work in excess of 40 hours during a workweek without paying overtime compensation at a rate of one-and-one half times their regular rate; (4) improperly reducing pay to Class members through unlawful deductions; and (5) adopting and implementing employment policies which violate the FLSA.

During the past three years, Defendants provided roadside assistance services to customers in at least 50 markets in multiple states across the United States including, but not limited to, locations in: Alabama, Arkansas, California, Florida, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, New York, Ohio, South Carolina, Texas, Virginia and West Virginia. The unlawful employment policies and pay practices that Defendants implemented across these locations are uniform, just as they would be at any chain restaurant.

Plaintiff brings this collective and class action seeking damages, back pay, restitution, liquidated damages, declaratory relief, civil penalties, prejudgment interest, reasonable attorneys’ fees and costs, and any and all other relief that the Court deems just, reasonable, and equitable under the circumstances.

JURISDICTION & VENUE

1. This Court has subject-matter jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. § 1331 because the claims raise a federal question under 29 U.S.C. § 201, et seq.
2. This Court has jurisdiction over this FLSA collective action pursuant to 29 U.S.C. § 216(b), which provides that suit under the FLSA “may be maintained against any employer . . . in any Federal or State court of competent jurisdiction.”
3. Defendants’ annual sales exceed $500,000, and Defendants employ more than two persons, so the FLSA applies in this case on an enterprise basis. Defendants’ employees engage in interstate commerce; therefore, they are also covered by the FLSA on an individual basis.
4. This Court has supplemental jurisdiction over Plaintiff’s state law claim pursuant to 28 U.S.C. § 1367 because it arises under the same facts as his federal claims.
5. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because the actions and omissions giving rise to the claims pled in this Complaint substantially occurred in this District.

THE PARTIES

Plaintiff is a resident of Pass Christian, Harrison County, Mississippi. At all relevant times, Plaintiff was an employee of Defendants, as defined in 29 U.S.C. §201 et seq. and, working as an roadside assistance technician in Defendants’ Biloxi-Gulfport, Mississippi coverage area from July 2013 through November 2013. Plaintiff has executed his consent to join form, attached hereto as Exhibit A.
Like other Class members, Plaintiff was injured as follows: (1) he was misclassified as an independent contractor; (2) as a result, he was not paid the wages (including overtime) to which he was entitled as an employee; and (3) his pay was reduced by way of unlawful deductions, as described more fully below.
Upon information and belief, Defendant Jack Rabbit Services, LLC, is a Kentucky limited liability company with its principal place of business located in Louisville, Kentucky.
Upon information and belief, Defendant Jack Rabbit USA, LLC, is a Florida limited liability company with its principal place of business located in Pensacola, Florida.
Defendants provide roadside assistance to customers including the following services: tire changing, jump starts, fuel delivery, lockout services.
According to Jack Rabbit USA’s promotional materials, Defendants serve 50 locations across the United States including, but not limited to, locations in: Alabama, Arkansas, California, Florida, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, New York, Ohio, South Carolina, Texas, Virginia and West Virginia. (Exhibit B).
Defendants were directly involved in the decision to misclassify roadside assistance technicians as independent contractors rather than employees and to perpetuate and maintain this unlawful classification system.
Defendants made the decision to misclassify roadside assistance technicians as independent contractors in order to evade their statutory obligations under the wage and hour laws and to pad their profits.
Defendants are joint employers of all potential Class members and, as such, are jointly and severally liable for any violations of the wage and hour laws set forth in this Complaint.
Defendants conspired to commit the following unlawful acts: (1) misclassify roadside assistance technicians as independent contractors; (2) fail to pay roadside assistance technicians the minimum wage in violation of FLSA; (3) knowingly suffer and permit Plaintiff and the putative class members to work in excess of 40 hours during a workweek without paying overtime compensation at a rate of one-and- one-half times their regular rate; (4) improperly reduce pay to Class members through unlawful deductions; and (5) adopt and implement employment policies which violate the FLSA. These unlawful agreements and practices between Defendants were part of an overall corporate strategy to maximize revenues and profits and to violate Class members’ statutory rights.
Defendants knew or should have known the business model they developed and implemented was unlawful under applicable laws. Nonetheless, Defendants continued to willfully engage in the violations described herein.
At all relevant times, Defendants owned and operated a business engaged in interstate commerce utilizing goods moved in interstate commerce as defined in 29 U.S.C. § 203(s).
Defendants constitute an “enterprise” within the meaning of 29 U.S.C. § 203(r)(1), because they perform related activities through common control for a common business purpose.
At all relevant times, Plaintiff and the members of the Class were engaged in commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a).

FACTUAL ALLEGATIONS

Defendants provide roadside assistance to customers including the following services: tire changing, jump starts, fuel delivery, lockout services.
According to Jack Rabbit USA’s promotional materials, Defendants serve 50 locations across the United States including, but not limited to locations in: Alabama, Arkansas, California, Florida, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, New York, Ohio, South Carolina, Texas, Virginia and West Virginia. (Exhibit B).
As a matter of common policy and practice, Defendants misclassify all of their roadside assistance technicians.
Consistent with this common policy and practice, Plaintiff and others similarly situated have been intentionally misclassified by Defendants as independent contractors.
As a result of Defendants’ common misclassification policy, Defendants have not paid a minimum wage or overtime pay to Plaintiff and others similarly situated.
Specifically, Defendants required Plaintiff and others similarly situated to sign illegal and void “Independent Contractor Agreements” pursuant to which Plaintiff and others similarly situated were not paid an hourly wage equal to the applicable minimum wage, were not paid overtime compensation at a rate of one and-one-half times their regular rate, and were subject to improper pay reductions through “damage” deductions.
Pursuant to Plaintiff’s Independent Contractor Agreement (a copy of which is attached as Exhibit C), Plaintiff and others similarly situated were paid only the following amounts: $13.00 for service jobs/runs within Plaintiff’s standard geographic coverage area; $6.00 for “gone on arrival jobs;” and $13.00 “plus $1.00 per mile for each mile traveled” for service jobs/runs located outside Plaintiff’s standard geographic coverage area. (Id. at ¶ 9).
Additionally, under the Independent Contractor Agreement, Plaintiff and others similarly situated were held “solely responsible for all damages/injuries caused by him the customer or his/her vehicle while performing service ….” (Id. at ¶ 11).
Pursuant to Defendants’ policies, Plaintiff and others similarly situated routinely suffered improper pay deductions to account for: (1) alleged damage to customer vehicles; (2) alleged mileage miscalculations; and (3) alleged insurer refusal to pay mileage invoices exceeding certain distances.
Plaintiff and others similarly situated had no control over these improper deductions.
Defendants required Plaintiff and others similarly situated to be on call twenty-four hours per day, seven days per week.
In addition to “on call” time, Plaintiff and others similarly situated routinely worked in excess of 70 hours per week.
The FLSA applied to Plaintiff and the members of the Class at all times during which they worked for Defendants. No exceptions to the FLSA apply to Plaintiff and the Class.
Upon information and belief, Defendants employed hundreds of roadside assistance technicians throughout the relevant time period without paying a minimum wage or overtime pay, subjecting them to improper and unlawful pay deductions, and denying them the rights and benefits due an employee.
At all relevant times, Defendants directly or indirectly exercised significant control over the wages, hours, and working conditions of Plaintiff and similarly situated members of the putative Class.
At all relevant times, the employment terms, conditions, and policies that applied to Plaintiff were the same as those applied to other putative Class members who also worked as roadside assistance technicians for Defendants.
Plaintiff and members of the putative Class incurred financial loss, injury, and damage as a result of Defendants’ business practice of misclassifying them as independent contractors, failing to pay them a minimum wage and overtime pay, and subjecting them to improper and unlawful pay deductions
Because Defendants failed to pay their employees proper wages, the putative Class members’ income consisted solely of the following amounts: $13.00 for service jobs/runs within Plaintiff’s standard geographic coverage area; $6.00 for “gone on arrival jobs;” and $13.00 “plus $1.00 per mile for each mile traveled” for service jobs/runs located outside Plaintiff’s standard geographic coverage area.
Defendants’ misclassification of Plaintiff and other putative Class members as independent contractors was specifically intended to enhance Defendants’ profit margins at the expense of the Class as follows: (1) failing to pay roadside assistance technicians the minimum wage in violation of FLSA; (2) knowingly suffering and permitting Plaintiff and the putative class members to work in excess of 40 hours during a workweek without paying overtime compensation at a rate of one and one-half times their regular rate; (3) improperly reducing pay to Class members through unlawful deductions; and (5) adopting and implementing employment policies which violate the FLSA.
Defendants’ misclassification of Plaintiff and those similarly situated was willful.
Defendants knew or should have known that it was improper to classify Plaintiff and putative Class members as independent contractors.
Workers in the putative Class cannot “elect” to be treated as employees or independent contractors under threat of adverse treatment. Nor can workers in the Class agree to be paid less than the minimum wage. Despite this, Defendants unfairly, unlawfully, fraudulently, and unconscionably attempt to coerce workers in the Class to waive their statutory rights and elect to be treated as independent contractors.
Any contract which attempts to have workers in the putative Class waive, limit, or abridge their statutory rights to be treated as an employee under the FLSA or other applicable wage and hour laws is void, unenforceable, unconscionable, and contrary to public policy.
The determining factor as to whether Plaintiff and those similarly situated are employees or independent contractors under FLSA is not the workers’ election, subjective intent, or any contract. Rather, the test for determining whether an individual is an “employee” under the FLSA is the economic reality test. See Rutherford Food Corp. v. McComb, 331 U.S. 722, 727 (1947). Under the economic reality test, employee status turns on whether the individual is, as a matter of economic reality, in business for herself and truly independent or, rather, is economically dependent upon finding employment in others.
Under the applicable test, courts utilize the following factors to determine economic dependence and employment status: (1) the degree of control exercised by the alleged employer; (2) the relative investments of the alleged employer and employee; (3) the degree to which the employee’s opportunity for profit and loss is determined by the employer; (4) the skill and initiative required in performing the job; (5) the permanency of the relationship; and (6) the degree to which the alleged employee’s tasks are integral to the employer’s business.
The totality of circumstances surrounding the employment relationship between Defendants and the putative Class members establishes economic dependence by the Class on Defendants and employee status. Here, Plaintiff and all other Class members are not in business for themselves and truly independent, but rather are economically dependent upon finding employment with Defendants. The Class members are not engaged in occupations or businesses distinct from that of Defendants. To the contrary, the Class members are the basis for Defendants’ business. Defendants obtain the customers who seek out roadside assistance, and Defendants provide the workers who conduct the roadside assistance on behalf of Defendants. Defendants retain pervasive control over the business operation as a whole, and the Class.

a. Degree of Control Exercised by Defendants

Plaintiff and the other members of the putative Class do not exert control over any meaningful part of Defendants’ business operation and do not stand as a separate economic entity from Defendants. Defendants exercise control over all aspects of the working relationship with Plaintiff and the other Class members.
Plaintiff and Class members’ economic status is inextricably linked to conditions over which Defendants have complete control, including without limitation advertising and promotion, business and financial relationships with customers, business and financial relationship with insurers, and customer volume.
Defendants exercise the following significant control over the work conditions of Plaintiff and others similarly situated:
1. Defendants require Plaintiff and Class members to be on call twenty-four hours per day, seven days per week;
As a result of “on call” time, Defendants require Plaintiff and Class members to routinely work in excess of 70 hours per week;
Defendants require Plaintiff and Class members to begin traveling to each service job/run within five minutes of receiving the assignment;
Defendants pay Plaintiff and Class members only the following amounts: $13.00 for service jobs/runs within Plaintiff’s standard geographic coverage area; $6.00 for “gone on arrival jobs;” and $13.00 “plus $1.00 per mile for each mile traveled” for service jobs/runs located outside Plaintiff’s standard geographic coverage area. (Exhibit C at ¶ 9);
Defendants hold Plaintiff and Class members “solely responsible for all damages/injuries caused by him the customer or his/her vehicle while performing service ….” (Id. at ¶ 11);
Defendants subject Plaintiff and Class members to improper pay deductions to account for: 1) alleged damage to customer vehicles; 2) alleged mileage miscalculations; and 3) alleged insurer refusal to pay mileage invoices exceeding certain distances;
Defendants direct Plaintiff and Class members with respect to which service jobs/runs to perform and what types of service to provide;
Defendants require Plaintiff and Class members to undergo and obtain extensive roadside assistance training, education, and continuing education. (Id. at ¶ 3);
Defendants require Plaintiff and Class members to wear Defendants’ uniform. (Id. at ¶ 4);
Defendants require Plaintiff and Class members to maintain signage on their vehicles that bore Defendants’ name and logo. (Id. at ¶ 5);
Defendants require Plaintiff and Class members to use forms and invoices Defendants provided;
Defendants determined the tools and equipment Plaintiff and Class members have to use rather than allowing Plaintiff and Class members to use their own judgment;
Requiring Plaintiff and Class members to maintain and distribute Defendants’ business cards:

Requiring Plaintiff and Class members to deliver to Defendants all invoices and customer service reports within seven days of each service job/run. (Id. at ¶ 15);
Prohibiting Plaintiff and Class members from performing any work or services for “any other roadside assistance provider” during the time they worked for Defendants. (Id. at ¶ 17); and
Requiring Plaintiff and Class members to submit to Defendants’ background, criminal, traffic, and credit screening. (Id. at ¶ 2).
b. Facts Establishing No Skill or Initiative of a Person in Business for Herself
Plaintiff, like all Class members, does not exercise the skill and initiative of a person in business for himself.
Plaintiff and Class members are not required to have any specialized or unusual skills to perform their job. The skills utilized in performing roadside assistance are commensurate with those exercised by ordinary people.
Plaintiff, like all other Class members, does not have the opportunity to exercise the business skills and initiative necessary to elevate his status to that of an independent contractor: he owns no enterprise, nor does he maintain a separate business structure or facility.
Class members have no control over customers, nor do they actively participate in any efforts to increase Defendants’ customer base or profit, or to improve business in any capacity.
Defendants do not permit Plaintiff or other Class members to hire or subcontract other qualified individuals to provide additional roadside assistance to customers, thereby increasing their revenue, as an independent contractor in business for himself would have the authority to do.

c. Facts Establishing Relative Investment

Plaintiff and Class members’ relative investment is minor when compared to the investment made by Defendants.
Plaintiff and Class members make no financial investment in Defendants’ facilities, advertising, maintenance, staffing, and contractual relationships. All capital investment and risk belongs to Defendants.
Plaintiff and Class members investment is limited to fuel and amounts paid to Defendants for signage, uniforms and tools. Absent Defendants’ investment and provision of the business, the dancers would not earn anything.

d. Facts Establishing Opportunity for Profit and Loss

Defendants manage all aspects of the business operation, including without limitation attracting investors, establishing business and customer relationships, maintaining the premises, establishing the hours of operation, coordinating advertising, and hiring and controlling the staff. Defendants provide all necessary capital to open and operate the business.
Neither Plaintiff nor Class members have responsibility for any aspect of Defendants’ ongoing business risk.
1. e. Facts Establishing Permanency
2. Plaintiff worked for Defendants as a roadside assistance technician in Defendants’ Biloxi-Gulfport, Mississippi coverage area from July 2013 through November 2013. Upon information and belief, certain Class members have also worked for Defendant for a significant or greater period of time.

f. Facts Establishing Class Members Are an Integral Part of Employer’s Business

Plaintiff and Class members are critical to Defendants’ success. Defendants’ operation is wholly dependent on the roadside assistance services Class members provide for customers.
The primary “product” or “good” Defendants are in business to sell consists of roadside assistance services provided by members of the Class.
Members of the Class, like Plaintiff, are economically dependent on Defendants and subject to significant control by Defendants.

g. Facts Establishing That Defendants’ Acts Were Willful

All actions and agreements by Defendants described herein were willful and intentional, and they were not the result of mistake or inadvertence.
Defendants were aware that the FLSA applies to their business at all relevant times and that, under the economic realities test applicable to determining employment status under those laws, Plaintiff and Class members were misclassified as independent contractors.
Roadside assistance technicians working under conditions similar to those employed with Defendants have been determined to be employees––not independent contractors—in other FLSA cases.
Despite this notice of their violations, and in an effort to enhance Defendants’ profits, Defendants continued to intentionally misclassify roadside assistance technicians like Plaintiff and similarly situated Class members, failed to pay them minimum wage in violation of FLSA, knowingly suffered and permitted them to work in excess of 40 hours during a workweek without paying overtime compensation at a rate of one and one-half times their regular rate, and improperly reduced their pay through unlawful deductions. Such conduct was intentional, unlawful, fraudulent, deceptive, unfair, and contrary to public policy.

INJURY AND DAMAGE

Plaintiff and all Class members suffered harm, injury, and damage, including financial loss, as a result of Defendants’ conduct complained of herein.
Plaintiff and the Class members were entitled a minimum wage and overtime pay for their work performed for Defendants. Further, Defendants were not allowed to make improper and unlawful deductions from Plaintiff’s and Class members’ pay. By failing to pay Plaintiff and the Class members a minimum wage and overtime pay and interfering with their right to retain all of their earnings, Defendants injured Plaintiff and the Class members and caused them financial loss, harm, injury, and damage.

COLLECTIVE ACTION ALLEGATIONS

69. Plaintiff brings Counts I and II of this action pursuant to 29 U.S.C. § 216(b) of the FLSA on his own behalf and on behalf of all similarly situated current and former workers of Defendants who were subject to Defendants’ illegal misclassification scheme at any time during the last three years.
70. Excluded from the Class are all of Defendants’ executives, administrators, professional employees, and outside sales persons.
71. A collective action under the FLSA is appropriate because, under 29 U.S.C. § 216(b), the workers described as parties to the Complaint are “similarly situated” to the named Plaintiff.
72. The workers Plaintiff seeks to represent in this case include:

All roadside assistance technicians who worked for Defendants and were misclassified by Defendants as independent contractors at any time in the past three years.

73. The putative Class members are similarly situated to the named Plaintiff because they worked in the same or similar positions, were subjected to the same unlawful practices, policies or plans, and their claims are based upon the same factual and legal theories.

74. The working relationships between Defendants and every putative Class member are exactly the same and differ only in name and location. The key legal issue in the collective action––whether Defendants’ classification policy and practice violates the FLSA––does not vary substantially from Class member to Class member.

75. Plaintiff estimates the Class, including both current and former workers over the relevant three-year period, will include over 1,000 members. The precise number of Class members should be readily discernible from a review of Defendants’ records.

CLASS ACTION ALLEGATIONS

Plaintiff brings Count III of this action as a class action pursuant to Federal Rule of Civil Procedure 23.
All requirements of Federal Rule of Civil Procedure 23 are satisfied to maintain a class action. The Class to be certified against Defendants is defined as follows:

All roadside assistance technicians who worked for Defendants and were misclassified by Defendants as independent contractors at any time in the past three years.

The individuals in the Class are so numerous that joinder of all members is impracticable. While the exact number of Class members has not been determined at this time, upon information and belief, Defendants have employed in excess of 1,000 Class members during the relevant time period. Plaintiff and members of the Rule 23 Class have been equally affected by Defendants’ violations of law.
There are questions of law and fact common to the Class that predominate over any questions affecting individual members, including, but not limited to:
1. Whether Defendants violated the rights of Plaintiff and the Class by routinely subjecting them to improper pay deductions to account for: 1) alleged damage to customer vehicles; 2) alleged mileage miscalculations; and 3) alleged insurer refusal to pay mileage invoices exceeding certain distances;
The amount of damages, restitution, and/or other relief (including all applicable civil penalties, liquidated damages, and equitable relief available to which Plaintiff and the Class members are entitled); and
Whether Defendants should be enjoined from such violations in the future.
Plaintiff’s claims are typical of those of the Class. Plaintiff, like other members of the Class, was subjected to Defendants’ policies and willful practices of improper pay deductions to account for: (1) alleged damage to customer vehicles; (2) alleged mileage miscalculations; and (3) alleged insurer refusal to pay mileage invoices exceeding certain distances. Plaintiff and members of the Rule 23 Class have sustained similar injuries as a result of the Defendants’ actions.
Plaintiff is an adequate representative of the Class. Plaintiff retained counsel experienced in complex wage and hour cases and collective/class action litigation.
Plaintiff is a member of the Class. Given Plaintiff’s injury and loss, Plaintiff is committed to the prosecution of this action for the benefit of the Class.
Plaintiff has no interest that would cause him to act adversely to the best interests of the class action litigation. This action is maintainable as a class action because the prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual members of the Class, which would establish incompatible standards of conduct for Defendants.
This action is maintainable as a class action because questions of law and fact common to the Class predominate over any questions affecting only individual members of the Class and because a class action is superior to other methods for the fair and efficient adjudication of this action.
The Class Representative intends to send notice to all members of the Rule 23 Class to the extent required by the Federal Rules of Civil Procedure.

COUNT I – VIOLATION OF THE FLSA

(Failure to Pay Statutory Minimum Wages)

(Against all Defendants)

Plaintiff hereby incorporates all of the preceding paragraphs.
This claim arises out of Defendants’ willful violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., for failure to pay Plaintiff and members of the putative Class the minimum wage to which they were entitled.
At all times relevant to this action, Defendants were “employers” under the FLSA, 29 U.S.C. § 203(d), subject to the provisions of 29 U.S.C. § 201, et seq.
At all times relevant to this action, Plaintiff and the Class members were “employees” of Defendants within the meaning of the FLSA, 29 U.S.C. § 203(e)(1).
At relevant times, all Defendants jointly employed Plaintiff and all similarly situated Class members within the meaning of the FLSA.
At all relevant times, Defendants have been engaged in interstate commerce and/or the production of goods for commerce, within the meaning of the FLSA, 29 U.S.C. § 201.
The minimum wage provisions of the FLSA, 29 U.S.C. § 201, et seq., apply to Defendants and protect Plaintiff and members of the putative Class.
Plaintiff has consented in writing to be a part of this action, pursuant to 29 U.S.C. § 216(b). As this case proceeds, it is likely that other individuals will sign consent forms and join as “opt-in” plaintiffs.
Pursuant to 29 U.S.C. § 206, Plaintiff and the Class were entitled to be compensated at the rate of $7.25 per hour beginning July 24, 2010.
Defendants failed to pay Plaintiff and Class members the minimum wage set forth in 29 U.S.C. § 206.
Defendants failed to pay Class members a minimum wage throughout the relevant time period because Defendants intentionally misclassified them as independent contractors.
Based on the foregoing, Plaintiff and the Class members are entitled to the full statutory minimum wage set forth in 29 U.S.C. § 206 for all periods in which Plaintiff worked for Defendants, along with all applicable penalties, liquidated damages, and other relief.
Defendants’ conduct in misclassifying Plaintiff and Class members as independent contractors was intentional and willful and done to avoid paying minimum wages and the other benefits that Plaintiff and Class members were legally entitled to receive as employees.
Plaintiff, on behalf of himself and the Class, seeks damages in the amount of their respective unpaid wages, liquidated damages as provided by 29 U.S.C. § 216(b), interest, and such other legal and equitable relief as the Court deems proper.
Plaintiff, on behalf of himself and the Class, seeks recovery of attorney fees and costs incurred in enforcing her rights pursuant to 29 U.S.C. § 216(b).
In pertinent part, 29 U.S.C. § 211(c) provides as follows:

Every employer subject to any provision of this chapter or of any order issued under this chapter shall make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order as necessary or appropriate for the enforcement of the provisions of this chapter or the regulations or orders thereunder.

Under 29 C.F.R. §§ 516.2 and 825.500, every employer must maintain and preserve payroll or other records containing, without limitation, the total hours worked by each employee each workday and total hours worked by each employee each workweek.
To the extent Defendants failed to maintain all records required by the aforementioned statutes and regulations, and failed to furnish Plaintiff and the Class comprehensive statements showing the hours that they worked during the relevant time period, Defendants also violated the aforementioned laws causing Plaintiff and the Class damages.
When the employer fails to keep accurate records of the hours worked by its employees, the rule in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687–88 (1946), superseded by statute on other grounds, is controlling. That rule states,

[W]here the employer’s records are inaccurate or inadequate . . . an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

The Supreme Court set forth this test to avoid incentivizing an employer’s failure to keep proper records in conformity with its statutory duty, which would enable the employer to reap the benefits of the employees’ labors without paying the proper compensation required by the FLSA. Where damages are awarded pursuant to this test, “[t]he employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with . . . the Act.” Id.
Based on the foregoing, Plaintiff and the Class seek unpaid minimum wages at the required legal rate for all working hours during the relevant time period, back pay, restitution, damages, reimbursement of any improper pay deductions, liquidated damages, prejudgment interest calculated at the highest legal rate, attorneys’ fees and costs, and all other costs, penalties, and other relief allowed by law.

COUNT II – VIOLATION OF THE FLSA

(Failure to Pay Overtime Wages)

(Against all Defendants)

Plaintiff hereby incorporates all of the preceding paragraphs by reference as if fully set forth herein.
This claim arises out of Defendants’ willful violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., for failure to pay Plaintiff and members of the Class the federally mandated overtime premium rate of one and a half times their regular rate of pay for every hour worked in excess of forty (40) hours per workweek, 29 U.S.C. § 207, to which they were entitled.
At all times relevant to this action, Defendants were “employers” under the FLSA, 29 U.S.C. § 203(d), subject to the provisions of 29 U.S.C. § 201, et seq.
At all times relevant to this action, Plaintiff and the Class members were “employees” of Defendants within the meaning of the FLSA, 29 U.S.C. § 203(e)(1).
At relevant times, all Defendants jointly employed Plaintiff and all similarly situated Class members within the meaning of the FLSA.
Defendants engaged in interstate commerce or in the production of goods for commerce, as defined by the FLSA.
Plaintiff and the Class members either (1) engaged in commerce; or (2) engaged in the production of goods for commerce; or (3) employed in an enterprise engaged in commerce or in the production of goods for commerce.
The position of roadside assistance technician is not exempt from the FLSA.
At all times relevant to this action, Defendants “suffered or permitted” Plaintiffs and the Class members to work and thus “employed” them within the meaning of the FLSA, 29 U.S.C. § 203(g).
The FLSA requires an employer to pay employees the federally mandated overtime premium rate of one and one-half times their regular rate of pay for every hour worked in excess of forty (40) hours per workweek. 29 U.S.C. § 207.
29 U.S.C. § 207(a)(2)(c) provides in pertinent part:

No employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce . . . for a workweek longer than forty hours . . . unless such employee receives compensation for his employment in excess of the hours above specified at a rate of not less than one and one-half times the regular rate at which he is employed.

Defendants violated the FLSA by failing to pay Plaintiff and the Class members the federally mandated overtime premium for all hours worked in excess of forty (40) hours per workweek.
Upon information and belief, Defendants have corporate policies of evading overtime pay for its workers including its roadside assistance technicians.
Defendants’ violations of the FLSA were knowing and willful.
By failing to compensate their roadside assistance technicians at a rate not less than one and one-half times their regular rate of pay for work performed in excess of forty hours in a workweek, Defendants violated the FLSA, 29 U.S.C. § 201, et seq., including 29 U.S.C. §§ 207(a)(1) and 215(a). All similarly situated employees are victims of a uniform and company-wide enterprise which operates to compensate employees at a rate less than the federally mandated overtime wage rate. This uniform policy, in violation of the FLSA, has been, and continues to be, applied to all employees who have worked or are working for Defendants in the same or similar position as Plaintiff.
The FLSA, 29 U.S.C. 216(b), provides that as a remedy for a violation of the Act, an employee is entitled to his or her unpaid overtime wages plus an additional equal amount in liquidated damages, costs, and reasonable attorneys’ fees.
As a result of the foregoing conduct, Plaintiff seeks on behalf of himself and all members of the Class unpaid overtime wages at the required legal rate for all working hours during the relevant time period, all other damages, attorneys’ fees and costs, restitution, liquidated damages, penalties, injunctive relief, interest calculated at the highest legal rate, and all other relief allowed by law.

COUNT III – UNJUST ENRICHMENT/QUANTUM MERUIT

(Improper and Unlawful Pay Deductions)

(Against All Defendants)

Plaintiff hereby incorporates all of the preceding paragraphs by reference as if fully set forth herein.
Plaintiff and Class members provided valuable labor to Defendants that inured to Defendants’ benefit and for which they were not compensated.
Through their work for Defendants, Plaintiff and Class members provided a material benefit to Defendants.
Defendants received and accepted the above-referenced services and enjoyed the benefits therefrom.
Pursuant to Defendants’ policies, Plaintiff and others similarly situated routinely suffered improper pay deductions to account for: (1) alleged damage to customer vehicles; (2) alleged mileage miscalculations; and (3) alleged insurer refusal to pay mileage invoices exceeding certain distances.
Defendants instituted these policies so that they could retain the material benefit of the work performed by Plaintiff and Class members without providing them appropriate compensation.
Defendants were unjustly enriched by the retention of monies that should have been paid to Plaintiff and Class members in exchange for their services but were, instead, improperly and unlawfully deducted from the pay of Plaintiff and the Class members as a result of Defendants’ illegal policies.
As result of Defendants’ unjust enrichment, Plaintiff and the Class members did not receive fair compensation for the work they performed and Defendants were unjustly enriched in an amount to be determined.

RELIEF REQUESTED

WHEREFORE, Plaintiff requests the following relief:

a. Certifying this case as a collective action in accordance with 29 U.S.C. § 216(b) with respect to the FLSA claims set forth above;
b. Declaring that Defendants willfully violated their obligations under the FLSA and its attendant regulations as set forth above;
c. Certifying this matter to proceed as a class action;
d. Designating Sommers Schwartz, P.C. and Johnson Becker, PLLC as Lead Counsel for Plaintiff and the Class members on their Collective Action and Rule 23 Class Action claims;
e. Awarding Plaintiff and the Class members all available compensatory damages and punitive damages, including, inter alia, all unpaid wages owed under applicable law;
f. Granting judgment in favor of Plaintiff and the Class members and against Defendant and awarding the lost overtime compensation calculated at the rate of one and one-half (1.5) of Plaintiff and Class members’ regular rate multiplied by all hours that Plaintiff and Class members worked in excess of forty (40) hours per week for the past three years;
g. Awarding liquidated damages to Plaintiff and Class members in an amount equal to the amount of unpaid overtime found owing to them;
h. Awarding reasonable attorney fees and costs incurred by Plaintiff in filing this action;
i. Awarding pre- and post-judgment interest to Plaintiff on these damages; and
j. Such further relief as this court deems appropriate.

JURY DEMAND

Plaintiff reserves his right to and hereby requests a trial by jury.

Dated: January 16, 2014

Lawrence L. Jones

JONES HOWARD, PLC

Marion E. Taylor Building

312 South Fourth St., Sixth Floor

Louisville, Kentucky 40202

(502) 882-6000

larry@jonesward.com

Local Counsel for Plaintiff

Jason J. Thompson

(Pending Admission Pro Hac Vice)

MI Bar No. P47184

Kevin J. Stoops

(Pending Admission Pro Hac Vice)

MI Bar No. P64371

Jesse L. Young

(Pending Admission Pro Hac Vice)

MI Bar No. P72614

SOMMERS SCHWARTZ, P.C.

One Towne Square, Suite 1700

Southfield, Michigan 48076

248-355-0300

jthompson@sommerspc.com

kstoops@sommerspc.com
jyoung@sommerspc.com

Timothy J. Becker

(Pending Admission Pro Hac Vice)

MN Bar No. 256663

Jacob R. Rusch

(Pending Admission Pro Hac Vice)

MN Bar No. 391892

JOHNSON BECKER, PLLC

33 South Sixth Street, Suite 4530

Minneapolis, Minnesota 55402

Telephone: (612) 436-1800

Facsimile: (612) 436-1801

tbecker@johnsonbecker.com

jrusch@johnsonbecker.com

Trial Counsel for Plaintiff

Complaint Filed For Roadside Assistance Unpaid Overtime Class Action

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