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Plaintiffs,
vs.
COMPLAINT
Plaintiffs, SEAN NALETTE and JAMES CURRAN, individually and on behalf of all
“Defendants”), and for their complaint allege, upon information and belief, except for the
1. Plaintiffs bring this action, on behalf of themselves and other current and
former employees, or others similarly situated, who elect to opt into this action pursuant
to Section 16(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §216(b), alleging
that Defendants have vi ol ated the FLSA, by acti ons, including but not limited to, failing
Case 1:11-cv-01178-PAB Document 1 Filed 05/03/11 USDC Colorado Page 2 of 14
to pay Plaintiffs minimum wage, which wage specifically failed to include “Engaged to
Wait” pay and overtime premium pay calculated at one and one-half-times their regular
rate of pay for al l hours worked over forty (40) duri ng the workweek and fai ling to
situated are entitled to substantial damages, including, inter alia, unpaid wages,
liquidated damages, pre-judgment interest, attorney's fees, and litigation costs and
expenses.
3. This Court has jurisdiction over Plaintiffs' FLSA claims pursuant to 29 U.S.C. 216(b)
5. Venue is proper in this District and in this Division pursuant to 28 U.S.C. 1391(a) and
(c) inasmuch as a substantial part of the events or omissions giving rise to the claims
and 2202.
7. AllactsoromissionsgivingrisetothisdisputetookplaceintheDistrictofColorado.
THE PARTIES
8. Plaintiff, SEAN NALETTE, was, at all relevant times, an adult individual residing in the
D i stri ct of Colorado.
2
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through 4/10/11 on a seasonal basis with each season starting on or about December 1st
10. Plaintiff, SEAN NALETTE, failed to be properly compensated for, among other things,
on call time and worked in excess of forty (40) hours per workweek, without receiving
wages overtime compensation as required by the FLSA. Plaintiff s consent has been
obtained.
11. Plaintiff, JAMES CURRAN, was, at all relevant times, an adult individual residing in the
District of Colorado.
12. Plaintiff, JAMES CURRAN, was employed by Defendants within the last three (3) years
from the filing of this Complaint on a seasonal basis with each season starting on or about
st
December 1 and ending on or about the 2nd Sunday in April, as a ski instructor.
13. Plaintiff, JAMES CURRAN, failed to be properly compensated for, among other things,
on call time and worked in excess of forty (40) hours per workweek, without receiving
wages overtime compensation as required by the FLSA. Plaintiff s consent has been
obtained.
corporations that regularly transact business within the District of Colorado, including but
15. Upon information and belief, Defendants are the employer of Plaintiffs and all others
similarly situated.
3
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16. Defendants have maintained a uniform common policy and practice of, inter alia, and as
set forth in greater detail below of willfully and knowingly not paying compensation for
18. The Defendants failed to keep true records of the hours worked by the Plaintiffs.
20. The Defendants acted with knowledge of facts or a reckless disregard for the facts
22. The Defendants’ failure to pay Plaintiffs the required overtime wages is in violati on of
23. The Defendant’s failure to maintain proper employee records is in violation of the
STATEMENT OF FACTS
24. At all rel evant times, Plaintiffs, and those simi l arly situated, were employed as Ski
25. Plaintiffs were employees of Defendants as more fully alleged herein. Plaintiffs bring
this action on behalf of themselves and on behalf of other, current and former employees
of Defendants similarly situated for unpaid compensation and other relief under the Fair
Labor Standards Act, as amended, 29 U.S.C. §216(b) (the "FLSA" or the "Act").
4
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26. From approximately 12/1/07 through 4/10/11, and for all other times within the prior
three (3) years to the filing of this complaint, on a seasonal basis, with each season
st
starting on or about December 1 and ending on or about the 2nd Sunday in April,
27. Plaintiffs were forced to work without pay and were not paid regular wage for the
28. Plaintiffs were forced to perform the work of a ski instructor and at a rate less than his
30. Plaintiffs were employees subject to the control of the Defendants, required to remain at
the place of employment or very close to the workplace in time and distance, with very
little freedom to use the time as his own, awaiting a decision on a job assignment without
compensation.
31. Pursuant to Defendants' uniform practice and corporate policy, although Defendants
regularly required Plaintiffs and those similarly situated to work more than 40 hours in a
workweek, Plaintiffs and those similarly situated were not paid for any hours they
32. Pursuant to Defendants' uniform practice and corporate policy, although Defendants
regularly required Plaintiffs and those similarly situated to suffer at the on call will of the
Defendants, Plaintiffs and those similarly situated were not paid for any hours they
5
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33. During these uncompensated hours, Plaintiffs and those similarly situated performed
work for the benefit of the Defendants, in the normal course of the Defendants' business
and such work was integrated into the business of the Defendants.
34. Plaintiffs and those similarly situated often worked on call without pay and in excess of
40 hours a week, yet Defendants willfully failed to pay them overtime compensation of
one and one-half times their regul ar rate of pay, or at al l for their on cal l time, in violati on
of the FLSA.
35. Defendants knew that Plaintiffs and those similarly situated performed work that required
36. Defendants' conduct, as alleged herein, was willful and has caused significant damage to
Plaintiffs and those simi l arly situated.
37. Upon information and belief, throughout all relevant time periods, while Defendants
employed Plaintiffs and those similarly situated, Defendants failed to maintain accurate
38. Throughout all relevant time periods, upon information and belief, and during the course
similarly situated, Defendants failed to post or, keep posted, a notice explaining the
39. This cause of action is brought as a collective action to recover from Defendant, unpaid
compensation, a declaratory judgment, liquidated damages, and the costs and reasonable
attorney's fees under the provisions of Title 29 U.S.C. §216(b) on behalf of Plaintiff and
all other current and former employees similarly situated during the material time.
6
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40. The asserted class for this collective action includes all current and former employees
similarly situated to Plaintiffs, who were non-exempt hourly employees who worked for
Defendants during the time period from 3 years prior to the filing of this Complaint.
41. Subject matter jurisdiction is conferred on this Court by Title 28 U.S.C. §1337 and by
Title 29 U.S.C. §216(b). At all times pertinent to this Complaint, Defendants were an
defined by §39(r) and 3(s) of the Act, 29 U.S.C. §203(r) and 203(s). The annual gross
sales volume of the Defendants was in excess of $500, 000.00 per annum. Alternatively,
42. At all times pertinent to this Complaint, Defendant failed to comply with Title 29 U.S.C.
§§201-209 in that Plaintiffs and those employees similarly situated performed services
and labor for Defendants for which Defendants made no provision to pay Plaintiff and the
other employees in the asserted class full and proper, regular and overtime compensation
to which they were lawfully entitled for all of the hours worked in excess of forty (40)
43. Plaintiffs have retained the undersigned counsel to represent them each individually and
on behalf of the asserted class, Plaintiffs are entitled to the recovery of reasonable
44. Plaintiffs, on behalf of themselves and those similarly situated, reallege and incorporate
7
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45. At all relevant times, Defendants have been and conti nue to be employers engaged in
interstate commerce and/or the production of goods for commerce, within the meani ng of
46. At all relevant times, Defendants employed, and/or continue to employ, Plaintiffs and
48. Defendants’ business activities involve those to which the FLSA applies, including that it
49. Plaintiffs, and those simi larly situated, were al so engaged in uti lizi ng instruments of
50. Plaintiffs consent in writing to be a party to this action, pursuant to 29 U.S.C. 216(b).
51. Plaintiffs and those similarly situated regularly were not paid for all time spent in
52. Plaintiffs and those similarly situated regularly worked on call numerous hours each
week but were not paid for all hoursworked in violation of the FLSA.
53. Plaintiffs and those similarly situated were required to report to work at least 15 minutes
early on a daily basis to "assist guests" to be eligible to receive work for the day.
Pursuant to the Defendant's Policy of Mandatory Volunteer Work, employees who did
not provide free guest services 15 minutes before they were supposed to be at work were
denied work.
8
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54. Plaintiffs and those similarly situated not receiving a morning ski lesson were and
are required to wait for the possibi l ity of a l esson l ater in the morning or day. The ti me
for this was between 3.5 and 5 hours with no compensation. Plaintiffs and those
similarly situated engaged to wait by the Defendants were required to make themselves
55. Plaintiffs and those similarly situated regularly were engaged to wait and required to
work “off the clock” or “on –call” each week but were not paid for al l hours worked and
in violation of the FLSA. Pursuant to 29 CFR §785.15 and 785.17, if the employee is
unable to use the time effectively for his own purposes, the employee is engaged to wait
or if the employee is required to remai n on the premises or so close thereto that he cannot
use the time effectively for his own purposes, the employee is working while “on call”.
56. Defendants violated the FLSA by requiring all employees to work without pay as
working.
57. Defendants violated the FLSA by requiring employees to report to work and wait for
extended periods of time for an assignment without pay. Plaintiffs were required to
spend time waiting to respond to the employer's needs or were "engaged to wait"
58. Defendants required and/or knew that off the clockwork was being performed.
59. Defendants caused thesimilarly situated employeesto believe that their present working
9
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Plaintiffs and those similarly situated, at a rate not less than the regular rate of pay for
work performed, Defendants have violated and continue to violate the FLSA, 29 U.S.C.
201 et seq.
61. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the
62. Due to Defendants' FLSA violations, Plaintiffs, on behalf of themselves and those
additional, equal amount as liquidated damages for Defendants' willful violations of the
FLSA and for its unreasonably delayed payment of wages, reasonable attorneys' fees, and
63. Plaintiffs, on behalf of themselves and those similarly situated, reallege and incorporate
64. At all relevant times, Defendants have been and conti nue to be employers engaged in
interstate commerce and/or the production of goods for commerce, within the meani ng of
65. At all relevant times, Defendants employed, and/or continue to employ, Plaintiffs and
66. Upon information and belief, Defendants have had gross revenues in excess of
67. Defendants' business activities involve those to which the FLSA applies, including that it
10
Case 1:11-cv-01178-PAB Document 1 Filed 05/03/11 USDC Colorado Page 11 of 14
68. Plaintiffs, and those similarly situated, were al so engaged in uti lizi ng instruments of
69. Plaintiffs consent in writing to be a party to this action, pursuant to 29 U.S.C. 216(b).
70. Section 207(a) (1) of the FLSA states that an employee must be paid overtime equal to, at
least one and one-half times the employee's regular rate of pay for all hours worked in
excess of 40 hours per week. Pursuant to 29 C.F.R. 778.315, compensation for hours
worked in excess of 40 hours per week may not be considered paid to an employee unless
that employee is compensated for all non-overtime hours worked.
71. Plaintiffs and those similarly situated regularly were not paid for all time spent in
72. Plaintiffs and those simi l arly situated regul arly worked overtime each week but were not
Plaintiffs and those similarly situated, at a rate not less than the regular rate of pay for
work performed, Defendants have violated and continue to violate the FLSA, 29 U.S.C.
201 et seq..
74. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the
75. Due to Defendants' FLSA violations, Plaintiffs, on behalf of themselves and those
similarly situated, are entitled to recover from Defendants, their regular compensation, an
additional, equal amount as liquidated damages for Defendants' willful violations of the
11
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FLSA and for its unreasonably delayed payment of wages, reasonable attorneys' fees, and
costs and disbursements of this action, pursuant to 29 U.S.C. 216(b).
76. Plaintiffs, on behalf of themselves and those similarly situated, reallege and incorporate
interstate commerce and/or the production of goods for commerce, within the meani ng of
78. At all relevant times, Defendants employed, and/or continue to employ, Plaintiffs and
79. Upon information and belief, Defendants have had gross revenues in excess of
80. Defendants’ business activities involve those to which the FLSA applies, including that it
81. Plaintiffs, and those similarly situated, were al so engaged in uti lizi ng instruments of
82. Plaintiffs consent in writing to be a party to this action, pursuant to 29 U.S.C. 216(b).
83. Defendants fail ed to mai ntain proper records, includi ng, but not limited to, timesheets,
time cards, or other documentation which logs the date, time, hours worked, overtime
84. As a result of Defendants' failure to record, report, credit and/or compensate its
employees, including Plaintiffs and those similarly situated, Defendants have failed to
make, keep and preserve records with respect to each of their employees sufficient to
12
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determine the wages, hours and other conditions and practices of employment in
violation of the FLSA, 29 U.S.C. 201, et seq., including 29 U.S.C. 211(c) and
215(a).
85. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the
86. Due to Defendants' FLSA violations, Plaintiffs, on behalf of themselves and those
similarly situated, are entitled to recover from Defendants, their regular compensation, an
additional, equal amount as liquidated damages for Defendants' willful violations of the
FLSA and for its unreasonably delayed payment of wages, reasonable attorneys' fees, and
members of an FLSA class, apprising them of the pendency of this action, permitting them to
assert timely FLSA claims in this action by filing individual Consents to Sue pursuant to 29
U.S.C. 216(b) and appointing Plaintiffs and their counsel to represent those similarly situated
c. An award of unpaid wages for all hours worked as well as overtime compensation
13
Case 1:11-cv-01178-PAB Document 1 Filed 05/03/11 USDC Colorado Page 14 of 14
willful failure to pay for all hours worked as well as overtime compensation pursuant to 29
U.S.C. 216;
f. An award of costs and expenses of this action together with reasonable attorneys'
g. Such other and further relief as this Court deems just and proper.
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial
by jury on all questions of fact raised by the Complaint and on all issues triable under such.
/s/ Jennifer
Robbins, Esq.
JENNIFER ROBBINS, ESQ.
The Robbins Law Firm LLC
Bar No.: 34393
P.O. Box 775767
1041 Lincoln Avenue
Steamboat Springs, CO 80487
Phone: 970-875-0999 Fax: 888-228-5873
Email: Jennifer@robbinslaw-colorado.com
Attorneys for Plaintiffs Local Counsel
14
Ws 44
Cteel:11-cv-01178-PAB Do&MAhttitivEfificlidd1d3/11 USDC Colorado Page 1 of 1
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VI. CAUSE OF ACTION Brier description of cause.
Violation ot FLSA
VII. REQUESTED IN 3 t.lihtic. IF TlilS IS A CLASS AC110ti DEMANDS CHECK YES only it demanded in complaint
COMPLAINT: UNDER F R.C.P '3 .11.1t1 DEMAND: Of Yee 11 NO
sia.
1<•:1"1-..!1. MAO JUDOS
Case 1:11-cv-01178-PAB Document 1-2 Filed-05/03/11 USDC Colorado Page 1 of 1
Division: 1
Receipt Number: C0X837516
Cashier ID: sq
Transaction Date: 05/83/2011
Payer Name: ROBBINS LAW FIRM
CIVIL FILING FEE
For: ROBBINS LAW FIRM
Amount: $350.80
CREDIT CARD
Amt Tendered: $350.80
11-CV-1178