lamour v uber complaint c1

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 1 of 12 Gerald F. Richman Richman Greer, P.A. ...

0 downloads 119 Views 6MB Size
Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 1 of 12

Gerald F. Richman Richman Greer, P.A. Attorneys for Plaintiff One Clearlake Center, Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401

Tel; (561) 803-3500 Fax; (561) 820-1608 Email: [email protected] 7 8

9 10 11

Stephen J. Schultz Slovak Baron Empey Murphy Attorneys for Plaintiff 2240 Fifth Avenue San Diego, CA 92101

16

Fax: 305,356.5720 Email: TSchultzQLSRCF.corn

14

17 18

19

20

LLP

(Tel,): 619.501.4540

15

13

k Pinkney

Email: [email protected] corn Thomas G, Schultz LSRCF Law, PLLC Attorneys for Plaintiff 1111 Brickell Ave. 02200 Miami, FL 33131 Phone: 305.760.8544

12

corn

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION JEAN EDNER LAMOUR, Case No.: AN INDIVIDUAL,

21

vs.

COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED

UBER TECHNOLOGIES, INC.,

JURY TRIAL DEMAND

Plaintiff, 22

23

24 25

A DELAWARE CORPORATION, 26

27

Defendant. 1

COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 2 of 12

INTRODUCTION

1. 4

This case is brought on behalf of Plaintiff Jean Edner Lamour and all

similarly situated individuals

drivers nationwide.

who have worked as Uber Technologies, Inc. ("Uber")

Uber is a car service that provides drivers who can be hailed and

dispatched through a mobile phone application.

9 10

As set forth below, Uber drivers must

pay for the cost of their vehicles and all expenses related thereto, including insurance, fuel and many other costs and expenses.

2.

Plaintiff brings this action on his own behalf, and on behalf of other

12 I3

similarly situated Uber drivers, for violation of the Fair Labor Standards Act ("FLSA")

29 U.S.C, sections 201-262. 15

II.

PARTIES

16 17 18

3,

Plaintiff Jean Edner Lamour is a resident of Miami, Florida, and began

working for Uber in late 2013. Plaintiff consents in writing to be a party to this action

19

pursuant to 29 U,S,C. 216(b), and his consent appears on pages 11 of this Complaint. 21

4.

Plaintiff brings this action on his own behalf and on behalf of all other

22

23 24 25

similarly situated, namely all other individuals

who have worked as Uber Black, Uber

SUV, or UberX drivers nationwide.

5.

Defendant Uber is a corporation incorporated in the State of Delaware

26 27 28

with its principal place of business located in San Francisco. At all relevant times, 2 COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 3 of 12

Defendant has been and continues to be an employer engaged in interstate commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. sections 3

4 5

206(a) and 207(a). In addition, at all relevant times, Defendant has had and continues to have yearly gross revenues in excess of $500,000.

6

III,

6.

8

9 10

IURISDICTION AND VENUE

28 U.S.C. section 1331. In addition, this Court has jurisdiction over this action pursuant

to 29 U.S.C. section 216(b).

7. 12

This Court has subject matter jurisdiction over this complaint pursuant to

Venue is proper in this district pursuant to 28 U.S.C. section 1391 because

Defendant maintains offices, has agents, transacts business, and is found in this district.

13

Defendant also receives substantial compensation from such transactions and business activity in this judicial district. 16 17

IV.

STATEMENT OF FACTS 8.

Uber provides car service in cities throughout

the United States via an on-

19

demand dispatch system. 20 21

22

9.

Uber offers customers the ability to hail a car service driver on a mobile

phone application.

23

24

10.

Uber's website has advertised that "Uber is your on-demand private

driver." 26 27 3

COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 4 of 12

11.

Uber has classified its drivers as independent

contractors. Uber insists

that it is nothing more than a computer technology company that has developed an 3

electronic application that is simply 5

7

with rider customers.

"a lead generation platform" for

connecting Uber

However, Uber drivers are employees within the meaning of the

FLSA. They are required to follow detailed requirements

imposed on them by Uber

and they are graded or rated by riders, and are subject to termination,

based on their

9

failure to adhere to these requirements

(such as rules regarding their conduct with

10 11

12

customers, the cleanliness of their vehicles, their timeliness in picking up rider customers and taking them to their destinations,

and what they are allowed to say to

13

customers.) 15

12.

In addition, Uber is in the business of providing vehicle service to rider

16 17

customers, and that is the service that Uber drivers provide. The drivers'ervices

are

fully integrated into Uber's business and, without the drivers, Uber's business would

not exist. 20 21

22

13.

However, based on their misclassification

as independent

contractors,

Uber drivers are required to bear many of the expenses of their employer, including

23

24 25

expenses for their vehicles, gas, and other expenses.

14.

Uber drivers do not need to possess special skills to perform their work,

26 27 28

4 COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 5 of 12

15.

Uber unilaterally

determines drivers'ompensation

method of payment

and specifications, and standards for their vehicles. 3

16, 5

By these actions, Uber has "suffered or permitted" the drivers to work for

Uber, thereby requiring that the drives be treated as employees under FLSA, 29 U,S.C.

section 203(g).

V.

COLLECTIVE ACTION ALLEGATIONS 17,

Pursuant to 29 U.S.C. sections 206, 207, and 216(b), Plaintiff brings this

10

action as a collective action under the FLSA on behalf of the following: 12 13

14

All persons who worked for Uber as UberX, Uber Black or Uber SUV drivers ("Collective Action Members" ) within the United States within the applicable statute(s) of limitations and through the entry of judgment in this case (the

"Collective Action Period".)

15

16 17

18,

A collective action is appropriate

in this circumstance because Plaintiff

and the Collective Action Members are similarly situated, in that they were all subjected

18

9

to Defendant's illegal policies of failing to pay not less than minimum wage for all hours worked and failing to pay overtime premiums for work performed in excess of

21

forty (40) hours each week, As a result of this policy, Plaintiff and the Collective Action 22 23

24

minimum

Members did not receive the legally-required

wage and overtime premium

payments for all hours worked in excess of forty (40) hours per week.

25

26 27 28

5

COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 6 of 12

19.

By failing to pay or reimburse the Plaintiff and Collective Action Members

2

expenses for vehicles, gasoline, insurance and all other expenses, either actual expenses 3

4 5

or those specified by the Internal Revenue Service, whichever is higher, Plaintiff and Collective Action Members have failed in many workweeks to be compensated

6 7

minimum

wage and overtime for all hours worked in excess of forty (40) hours in the

workweek "free and clear" of driver expenses as required by 29 C.F.R. section 531.35,

10

among other authorities, 20,

12

Plaintiff and the Collective Action Members have the same job duties and

are paid pursuant to the same corporate payment structure.

13

VI.

FIRST CAUSE OF ACTION, FAIR LABOR STANDARDS ACT —UNPAID MINIMUM WAGE (On Behalf of Plaintiff and Collective Action Members)

15

16

17

21.

Plaintiff, on behalf of himself and the Collective Action Members, repeats

and re-alleges each and every allegation of the preceding paragraphs

with the same

18

9 20

force and effect as though fully set forth herein,

22.

By failing to pay minimum wage for all hours worked, Defendant has

21

violated and continues to violate the FLSA, 29 U.S.C. sections 206(a) and 215(a)(2). 22 23

24

23.

The foregoing conduct, as alleged, constitutes willful violation of the

FLSA within the meaning of 29 U.S.C. section 255(a).

25

26 27 6 COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 7 of 12

24.

Defendant's failure to pay minimum wages for all hours worked caused

Plaintiff and the Collective Action Members to suffer loss of wages and interest thereon. 3

4 5

Therefore, Plaintiff and Collective Action Members are entitled to recover from

Defendant their full unpaid minimum wages, damages for unreasonably

delayed

6

7

payment of wages, liquidated damages in the amount equal to the unpaid wages,

reasonable attorneys'ees,

10 11

12 13

14

and costs and disbursements

of the action pursuant to 29

U.S.C. section 216(b).

VII.

SECOND CAUSE OF ACTION, FAIR LABOR STANDARDS ACT —UNPAID OVERTIME (On behalf of Plaintiff and Collective Action Members) 25.

Plaintiff, on behalf of himself and the Collective Action Members,

repeats and re-alleges each and every allegation of the preceding paragraphs with the

15

same force and effect as though fully set forth herein. 17

26.

By failing to pay overtime at a rate not less than one and one-half (1 1/2)

18

9

times the regular rate of pay for work performed in excess of forty (40) hours per

workweek, Defendant has violated and continues to violate FLSA 29 U.S.C. sections

207(a)(1) and 215(a)(2). 22 23 24

27,

The foregoing conduct, as alleged, constitutes a willful violation of the

FLSA within the meaning of 29 U.S.C. section 255(a).

25

26

28.

Defendant's failure to pay overtime caused Plaintiff and the Collective

27 28

7 COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 8 of 12

Action Members to suffer loss of wages and interest thereon. Therefore, Plaintiff and the Collective Action Members are entitled to recover from Defendant their unpaid 3

overtime premium compensation, 5

damages for unreasonably

delaying payment

of wages, liquidated damages in the amount equal to the unpaid overtime wages,

6 7

reasonable attorneys'ees,

and costs and disbursements

of the action pursuant to

29 U.S.C. section 216(b). 9

PRAYER FOR RELIEF 10

Wherefore, Plaintiff, on behalf of himself and all other Collective Action 12

Members, respectfully requests that this Court grant the following relief:

13

14

a.

15

Designation of this action as a collective action on behalf of the Plaintiff and Collective Action Members and ordering the prompt issuance of

16

notice pursuant to 29 US.C, section 216(b) to all similarly situated

17

employees, apprising them of the pendency to this action, permitting

18

19

them to assert timely FLSA claims in this action by filing individual

20

consents to sue pursuant to 29 U.S.C. section 216(b) and appointing

21 22

Plaintiff and his counsel to represent the Collective Action Members;

23

24 25

26

b.

Equitable tolling of the statute of limitations from the date of the filing of this Complaint until the expiration of the deadline for filing consent

to sue forms under 29 U.S.C. section 216(b);

27 8

COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 9 of 12

c.

An award of compensatory

pay minimum

wage and overtime compensation

and the supporting

d.

damages as a result of Defendant's failure to

regulations;

An award of liquidated

damages and/or punitive damages in the amount

of the unpaid minimum

and overtime wages as a result of Defendant's

willful failure to pay minimum

wage and overtime compensation

pursuant to the FLSA and the supporting

10

e.

pursuant to the FLSA

regulations;

An award of costs and expenses of this action together with reasonable

12

attorneys'ees

and expert fees; and

13

14

f.

Such other and further relief as this Court deems just and proper.

15

DEMAND FOR TRIAL BY lURY

16 17 18

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands

a trial by jury.

Dated: zo 21

22

J f

V

~, f



2016

RICHMAN GREER, P.A. Attorneys for Plaintiff One Clearlake Center, Suite 1504 250 Australian Avenue South West Palm Beach, Florida 33401

Tel: (561) 803-3500

23 24 25

26 27 28

GERALD F. RICHMAN [email protected] Florida Bar No.; 066432 ADAM M. MYRON 9 COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 10 of 12

[email protected] Florida Bar No.: 0895121 JOSH L. SPOONT I spoontQrichmangreer.corn Florida Bar No.: 53263 and

Stephen J. Schultz Slovak Baron Empey Murphy & Pinkney LLP Attorneys for Plaintiff 2240 Fifth Avenue San Diego, CA 92101

(Tel.): 619.501.4540 Email: [email protected] 10

12 13

14 15

16

Thomas G. Schultz LSRCF Law, PLLC Attorneys for Plaintiff 1111 Brickell Ave. 02200 Miami, FL 33131 Phone: 305.760.8544

Fax: 305.356.5720 Email: [email protected]

17

18 19

20 21 22 23

25

26 27 28

10 COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 11 of 12

UNITED STATES 13ISTRICT COURT SOUTI-IERN DISTRICT OP FLORIDA MIAMI DIVISION

Case No,:

COLLECTIVE ACTION COMPLAINT PQR VIOLATION OP PAIR LABOR STANDARDS ACT, AS AMENDED

PlaiDtlH,

UBER TECHNOLOGIES, 10

INC„

~um'RIAL DPMAND

A DELAWARE CORPORATION,

12

CONSENT TO BKCOMK PARTY Pl AINTIFF By my signature

below, I hereby consent to be a party plaintiff in the above-styled

lawsuit for claims under the Fair Labor Standards Act. I also authorize the tiling and prosecutior. 16

17 18

of the above-styled Fair Labor under the penalty

of penury,

~')

Act action in my name and on my behalf. I declare.

that the signature below is

of the person

named in this consent fora:,

C,gÃ

JEAN EDNER LA

22

Standards

OUI&

Date: April 22, 2016

11

COLLECTIVE ACTION COMPLAINT POR VIOLATION OF PAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAL DEMAND

Case 1:16-cv-21449-JEM Document 1 Entered on FLSD Docket 04/22/2016 Page 12 of 12

UNITED STATES DISTRIC1'OURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

Case No..

JL'AN EDNL'ie LAMOUR,

AN INDIVIDUAL,

vs.

COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED

UBER TECHNOLOGIES, INC.,

JURY TRIAL DEMAND

Plaintiff,

6

g

1o

A DELAWARE CORPORATION,

Defendant. 12

CONSENT TO BECOME PARTY PLAINTIFF

13 14

By my signature

below, I hereby consent to be a patty plaintiff in the above-styled

lawsuit for claims under the Pair Labor Standards Act,

of the above-styled Fair Labor under the penalty

of perjury,

Standards

1

also authorize the filing and prosecution

Act action in my name and on my behalf,

that the signature below is

of the person

declare,

named in this consent form.

18

JEAN EDNER LA%OUR

22

1

Date: April 22, 2016

23

25

26 27 11

COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF FAIR LABOR STANDARDS ACT, AS AMENDED AND JURY TRIAI DEMAND