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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RACHEL HUDSON, JOSE OVALLE JR., and SUZANNE POCKRUS, individually and on behalf of similarly situated individuals, Plaintiffs, -v SILBERMAN ENTERPRISES, INC., d/b/a APARTMENTWIZ and PHILLIP SILBERMAN, Defendants.

Civil No. 3:11-cv-1991 ECF

PLAINTIFFS ORIGINAL COMPLAINT COLLECTIVE ACTION

TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE: NOW COME Rachel Hudson, Jose Ovalle Jr., and Suzanne Pockrus, individually and on behalf of similarly situated individuals, and file this, their Plaintiffs Original Complaint Collective Action. I. SUMMARY 1. Plaintiffs seek unpaid overtime and minimum wages under the Fair Plaintiffs, and similarly situated employees, worked for

Labor Standards Act.

Defendants as apartment locators (Locators). Defendants classified Locators as independent contractors. However, under the Fifth Circuits economic realities

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test, Locators are unquestionably employees not independent contractors for FLSA purposes. 2. Defendants paid Locators solely by commission. Defendants failed to In weeks where a

pay Locators overtime when they worked over forty hours.

Locator had commissions less than the minimum wages, Defendants also violated the federal minimum wage requirements. 3. For these reasons, Plaintiffs seek, on behalf of themselves and those

similarly situated, unpaid wages, liquidated damages, attorney fees, and all other relief permitted. II. JURISDICTION AND VENUE 4. This Court has original jurisdiction to hear this complaint and to

adjudicate the claims stated herein under 28 U.S.C. 1331, this action being brought under the Federal Fair Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA). Venue is proper because a substantial part of the events or omissions giving rise to the claim occurred in this District, and Defendants are subject to personal jurisdiction in Texas. III. PARTIES 5. Defendant Silberman Enterprises, Inc. (SE) is a corporation.

Silberman Enterprises, Inc. is an employer within the meaning of FLSA, 29 U.S.C. 203(d), an enterprise within the meaning of FLSA, 29 U.S.C. 203(r), and engaged in commerce within the meaning of FLSA, 29 U.S.C. 203(s)(1).

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6.

Defendant Phillip Silberman (Silberman) is an owner and operator of

Silberman Enterprises, Inc. during the applicable statute of limitations. Silberman was an employer within the meaning of FLSA, 29 U.S.C. 203(d). 7. Plaintiff Rachel Hudson (Hudson) is a resident of Texas and worked

as a locator based out of Defendants office in Dallas County, Texas. Hudson has been engaged in commerce as required by the FLSA, 29 U.S.C. 206-07. Hudsons consent form is attached as part of Exhibit A. 8. Plaintiff Jose Ovalle Jr. (Ovalle) is a resident of Texas and worked as

a locator based out of Defendants office in Dallas County, Texas. Ovalle has been engaged in commerce as required by the FLSA, 29 U.S.C. 206-07. Ovalles consent form is attached as part of Exhibit A. 9. Plaintiff Suzanne Pockrus (Pockrus) is a resident of Texas and

worked as a locator based out of Defendants office in Dallas County, Texas. Pockrus has been engaged in commerce as required by the FLSA, 29 U.S.C. 206-07. Pockrus consent form is attached as part of Exhibit A. 10. Plaintiffs bring this action on behalf of themselves and other similarly

situated employees pursuant to 29 U.S.C. 216(b). Plaintiffs and the similarly situated employees are individuals who were, or are, employed by Defendants as locators in the past three years. The putative class has been engaged in commerce as required by the FLSA, 29 U.S.C. 206-07.

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IV. FACTUAL ALLEGATIONS 11. Defendants are in the business of matching renters with apartments

with vacancies. 12. The Defendants make money by charging landlords a percentage of the

customers rent. 13. The Defendants operate multiple offices throughout the state of Texas,

and possibly additional offices outside of Texas. 14. These offices are brick and mortar offices, which have regular hours

that are set by the Defendants. 15. The locators worked for the Defendants and would discuss rental-

housing needs with potential customers who were found and provided by the Defendants. 16. The Customers did not, and do not, pay anything to the Plaintiffs for

their services. 17. Locators would follow a script provided by the Defendants and

interview the customers, asking them questions to enter into a computer database. 18. The Locators would then use the information to determine which

apartments would fit the customers needs by entering the information into a database. 19. Locators then provided the customers with the rental information via

phone or email.

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20.

Locators were required to work during certain set hours. During those

hours the Locators were expected to physically be in Defendants physical office. If the Locators were making poor commissions, they would be required to work extra hours during the weekend. 21. Locators were hired, fired, and disciplined by the Defendants.

Locators did not have the power to hire new employees. 22. The Defendants also maintained written guidelines telling the locators

how to perform their jobs, and trained the locators in how to follow these guidelines. 23. The Defendants determined how the locators were to be paid and

implemented the method of paying locators by commission only and making those payments at regular intervals twice a month. 24. The locators were required to subscribe to and use a specific third

party database of prospective apartments called smartlocating.com. 25. The Defendants controlled all the advertising and marketing of the

business and the locators were simply provided with the customers that the Defendants marketing and advertising brought in. 26. After the Locators had provided the information to the customers they

would follow up with the customers to see if the customers used the information and found an apartment. 27. The Locators were instructed when to follow up with the customers by

the Defendants software which kept up with all of Defendants clients.

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28. performed. 29.

The locators were paid on a commission basis for the work they

Locators were paid fifty percent of the fee paid to Defendants by the

landlord for a successful referral, and never by the hour. 30. Locators routinely worked in excess of forty hours per week, but were

never paid an overtime rate of one-and-one-half times their regular rate of pay for each hour worked over forty in a workweek. 31. Furthermore, where locators were paid no commission or a low

commission, the locators were denied pay at the minimum hourly rate required by the FLSA. 32. These practices violate the provisions of the Federal Fair Labor

Standards Act, 29 U.S.C. 201 et seq. As a result of these unlawful practices, Plaintiffs and the similarly situated employees suffered a loss of wages. 33. Defendants showed reckless disregard for the fact that their failure to

pay their locators appropriate overtime compensation and/or minimum wages was in violation of the law. 34. All conditions precedent to the filing of this suit have been satisfied. V. JURY DEMAND 35. Plaintiffs, individually and on behalf of the putative class, exercises

the right to a jury.

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VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs individually, and on behalf of all employees similarly situated who join in this action, demand: A. Issuance of notice as soon as possible to all locators who were employed by Defendants during any portion of the three years immediately preceding the filing of this action. Generally, this notice should inform them that this action has been filed, describe the nature of the action, and explain their right to opt into this lawsuit if they were not paid correctly for hours worked as locators during any portion of the statutory period; B. Judgment against Defendants for an amount equal to Plaintiffs and the class unpaid back wages at the applicable overtime rate for each hour worked over forty; C. Judgment against Defendants for an amount equal to Plaintiffs and the class unpaid back wages at the applicable regular rate for each hour worked under forty; D. Judgment against Defendants that their violations of the FLSA were willful; E. F. An equal amount to the wage damages as liquidated damages; To the extent that liquidated damages are not awarded, an award of prejudgment interest;

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G.

All costs incurred and reasonable attorneys fees for prosecuting these claims;

H.

Leave to add additional Plaintiffs by motion, the filing of written consent forms, or any other method approved by the Court;

I. J.

Leave to amend to add claims under applicable state laws; and For such further relief as the Court deems just and equitable. Respectfully submitted, /s/ Robert J. Wiley Robert J. Wiley Texas Bar No. 24013750 Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization Caitlin S. Connors Texas Bar No. 24064124 Justin G. Manchester Texas Bar No. 24070207 ROB WILEY, P.C. 1825 Market Center Blvd., Suite 385 Dallas, Texas 75207 Telephone: (214) 528-6500 Facsimile: (214) 528-6511 cconnors@robwiley.com ATTORNEYS FOR PLAINTIFF

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