Case 5:22-cv-03902-VKD Document 1 Filed 07/01/22 Page 1 of 9
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`Daniel M. Hutchinson (SBN 239458)
`LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
`275 Battery Street, 29th Floor
`San Francisco, CA 94111-3339
`Telephone: 415.956.1000
`Facsimile: 415.956.1008
`dhutchinson@lchb.com
`Rachel Geman (pro hac vice motion forthcoming)
`Jessica Moldovan (pro hac vice motion forthcoming)
`LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
`250 Hudson Street, 8th Floor
`New York, NY 10013-1413
`Telephone: 212.355.9500
`Facsimile: 212.355.9592
`rgeman@lchb.com
`jmoldovan@lchb.com
`Charles J. Stiegler, (SBN 245973)
`STIEGLER LAW FIRM LLC
`318 Harrison Ave., Suite 104
`New Orleans, LA 70124
`Telephone: 504.267.0777
`Facsimile: 504.513.3084
`Charles@StieglerLawFirm.com
`Robert B. Landry III (pro hac vice motion forthcoming)
`ROBERT B. LANDRY III, PLC
`5420 Corporate Boulevard, Suite 204
`Baton Rouge, LA 70808
`Telephone: 225.349.7460
`Facsimile: 225.349.7466
`rlandry@landryfirm.com
`Counsel for Plaintiff and the Proposed FLSA Collective
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`ANTHONY P. FOREMAN, individually,
`and on behalf of all persons similarly
`situated.
`Plaintiff,
`
`vs.
`APPLE, INC.
`
`Defendant.
`
`Case No. 5:22-cv-03902
`COLLECTIVE ACTION COMPLAINT
`AND JURY TRIAL DEMAND
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`COLLECTIVE ACTION COMPLAINT
`AND JURY TRIAL DEMAND
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`Plaintiff Anthony P. Foreman (“Foreman” or “Plaintiff”), individually and on behalf of all
`others similarly situated, brings this action against Apple, Inc. (“Apple” or “Defendant”) and
`alleges as follows:
`
`INTRODUCTION
`1.
`This is a collective action to recover overtime wages owed under federal law
`brought by Foreman, on behalf of all similarly situated former and current employees of Apple,
`who worked as a Solutions Consultant within the past three years (hereinafter referred to as
`“Plaintiffs” or the “FLSA Collective Plaintiffs”).
`2.
`For at least the past three years, Apple has failed to include all statutorily required
`forms of compensation—including commissions earned by Solutions Consultants—in
`determining the regular rate for purposes of calculating overtime pay.
`3.
`In addition, Apple has failed to pay Solutions Consultants for all hours worked.
`Specifically, Apple has engaged in an unlawful pattern or practice of denying earned overtime to
`its Solutions Consultant by requiring them to begin their workday at home via online
`videoconferences, to clock out after these videoconferences were complete, and to then travel to
`their work site location, i.e., next job assignment, without being paid for their time in transit.
`4.
`These practices violate the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et
`seq., and its implementing regulations.
`5.
`On behalf of himself and the FLSA Collective, Plaintiff seeks actual and liquidated
`damages, including but not limited to damages for willful violations of the FLSA, as well as fees
`and costs, for Apple’s violations of the FLSA.
`
`JURISDICTION AND VENUE
`6.
`The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 (federal
`question), 28 U.S.C. § 1337 (actions arising under Acts of Congress regulating commerce) and 29
`U.S.C. § 216(b) (the FLSA).
`7.
`The United States District Court for the Northern District of California has
`personal jurisdiction over Defendant because Defendant has its principal place of business in this
`District and does business in California and in this District.
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`8.
`Venue is proper in this Court because Defendant has its principal place of business
`in Santa Clara County and a substantial part of the events or omissions giving rise to the claims
`asserted herein occurred in this judicial district. See 28 U.S.C. § 1391(b).
`9.
`Plaintiff hereby demands trial by jury.
`
`PARTIES
`10.
`Foreman is an individual of the full age of majority, domiciled in Livingston
`Parish, Louisiana. He began working for Defendant in 2014 and resigned his employment in
`February 2022.
`11.
`Foreman’s consent to file this Complaint is evidenced by his signature on the
`FLSA Consent Form attached as an exhibit hereto.
`12.
`Named a defendant herein is Apple, a California corporation with its principal
`place of business in Cupertino, California. Based on information and belief, Defendant employs
`Solutions Consultants throughout the United States.
`
`FACTUAL ALLEGATIONS
`
`Background
`13.
`Foreman worked for Apple as a “Solutions Consultant” in Baton Rouge,
`Louisiana. Solutions Consultants promote the sales of Apple solutions and products in the Apple
`section of retail store locations. During the times relevant to this lawsuit, Foreman’s work
`location was in a Best Buy retail store in Baton Rouge, where he worked as a liaison between
`Apple and Best Buy (or Best Buy customers).
`14.
`At all material times, Foreman and the other FLSA Collective Plaintiffs were
`“engaged in commerce” within the meaning of § 6 and § 7 of the FLSA, and subject to the
`individual coverage of the FLSA.
`15.
`At all material times, the FLSA Collective Plaintiffs were the “employees” of
`Apple within the meaning of the FLSA.
`16.
`At all material times, Defendant was and is an “enterprise engaged in commerce”
`within the meaning of the FLSA.
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`17.
`Defendant’s annual sales made or business done was in excess of $500,000 during
`all years relevant to this action.
`18.
`Foreman and the other FLSA Collective Plaintiffs were paid on an hourly basis.
`19.
`Foreman and the other FLSA Collective Plaintiffs regularly work forty or more
`hours per week. However, they were not paid overtime for all hours worked over forty in a
`workweek and, when paid overtime, they were not paid at the correct rate.
`
`Overtime Violation – Regular Rate
`20.
`Defendant did not properly calculate Plaintiffs’ regular rate for purposes of
`determining overtime pay for Solutions Consultants, thereby dramatically underpaying them for
`overtime worked.
`21.
`Foreman and the FLSA Collective Plaintiffs were paid on an hourly basis.
`22.
`Foreman and the FLSA Collective Plaintiffs were also separately paid
`commissions.
`23.
`In calculating Foreman’s and Plaintiffs’ regular rate for purposes of determining
`overtime pay, however, Defendant did not incorporate commission payments. As a result, the
`overtime rate was only one and one-half times Plaintiffs’ hourly rate—not the combination of
`Plaintiffs’ hourly rate and commission payments. The overtime rate was therefore lower than it
`should have been.
`
`Overtime Violation – Travel Time
`24.
`Defendant also did not compensate Plaintiff and the other FLSA Collective
`Plaintiffs for time they spent in transit between mandatory work activities.
`25.
`Two or three times a week, Plaintiff’s manager scheduled a videoconference work
`meeting with Foreman and the other Solutions Consultants in his Region (the Region included
`parts of Texas, Louisiana, and stretched into Florida). These work meetings took place early in
`the morning, and the Solutions Consultants attended the meeting while at home.
`26.
`These work meetings constituted an integral and indispensable part of Defendant’s
`business, as the Solutions Consultants discussed new technologies and received mandatory
`instructions and required job information from their supervisors and the Regional Manager.
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`27.
`The time spent on these work meetings, at which attendance was mandatory, was
`more than de minimis.
`28.
`Apple instructed Plaintiff (and all FLSA Collective Plaintiffs) to clock in for these
`meetings, which generally lasted about an hour. However, when the meeting ended, Apple
`instructed Plaintiff and the other FLSA Collective Plaintiffs to clock out before they immediately
`travelled on site to continue their workdays. Only upon arrival at their work sites were Plaintiff
`and the other FLSA Collective Plaintiffs told to clock back in.
`29.
`This policy or practice was temporarily suspended during the coronavirus
`shutdown, due to work-from-home policies in effect at the time. However, in 2021, when the
`work-from-home policies ended, Defendant once again returned to the same practice of requiring
`Solutions Consultants to clock out after the videoconference work meetings and clock back in
`only upon arrival at their work sites, thereby not accounting for the time spent in transit.
`
`COLLECTIVE ACTION ALLEGATIONS
`Plaintiff re-alleges and incorporates by reference all allegations in all preceding
`
`30.
`paragraphs.
`31.
`Foreman brings this case as a collective action under the FLSA to recover unpaid
`overtime compensation, liquidated damages, statutory penalties, attorney’s fees and costs, and all
`other damages owed to him and all similarly situated employees of Defendant. The Collective is
`defined as:
`
`All hourly paid employees of Apple Inc., holding the job title of
`Solutions Consultant, who worked within the three years prior to the
`date of filing of this Complaint.
`32.
`There are numerous members of the FLSA Collective who have been affected by
`Defendant’s improper policies and practices as alleged herein.
`33.
`The precise number of FLSA Collective Plaintiffs can be readily identified and
`located using Defendant’s timesheets, payroll, and personnel records. Given the composition and
`size of the FLSA Collective Plaintiffs, potential opt-in class members may be informed of the
`pendency of this Collective Action by direct mail, text message, and email.
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`Case 5:22-cv-03902-VKD Document 1 Filed 07/01/22 Page 6 of 9
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`34.
`This action is properly maintained as a collective action because Foreman is
`similarly situated to the collective action members, who were subject to the same uniform
`overtime policies, payment practices, and operational procedures. Defendant’s willful policy or
`practice of failing to pay employees proper wages and overtime compensation for all hours
`worked has affected Foreman and similarly situated employees in the same fashion.
`35.
`Defendant applied these unlawful employment and payment policies in the same
`manner to all potential members of the FLSA Collective. Common issues of law and fact
`therefore predominate. Thus, liability and damages can be determined based on common and
`collective-wide evidence. Pursuing this matter as a collective action serves the most expeditious
`use of the Court’s time and resources, as well as avoiding multiple actions on these issues with
`potential for differing or inconsistent judgments.
`36.
`Plaintiff further requests that the Court authorize expedited notice to the FLSA
`Collective Plaintiffs to inform them of the pendency of this action and their right to “opt-in” to
`this lawsuit pursuant to 29 U.S.C. § 216(b), for the purpose of seeking unpaid overtime
`compensation and liquidated damages under the FLSA.
`
`COUNT ONE:
`FAIR LABOR STANDARDS ACT – REGULAR RATE
`
`Plaintiff re-alleges and incorporates by reference all allegations in all preceding
`
`37.
`paragraphs.
`38.
`The FLSA requires that overtime premiums be paid at “a rate not less than one and
`one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. § 207(a).
`39.
`“Regular rate” is defined as including “all remuneration paid to, or on behalf of,
`the employee,” subject to eight discrete statutory exceptions. 29 U.S.C. § 207(e)(1) – (8).
`Commissions “are payments for hours worked and must be included in the regular rate.” See 29
`C.F.R. § 778.117.
`40.
`Defendant calculates overtime for the FLSA Collective Plaintiffs based on their
`base hourly rate, without taking into account commissions and/or other compensation. Such
`commissions and/or other compensation are not included in the statutory exceptions set forth
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`Case 5:22-cv-03902-VKD Document 1 Filed 07/01/22 Page 7 of 9
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`above, and Defendant’s exclusion of those payments from the regular rate results in
`underpayment of overtime.
`41.
`Defendant has failed to properly disclose or apprise the FLSA Collective Plaintiffs
`of their rights under the FLSA.
`42.
`Due to the intentional, willful, and unlawful acts of Defendant, the FLSA
`Collective Plaintiffs suffered lost compensation for time worked over forty (40) hours per week,
`and hereby seek recovery of all such sums plus liquidated damages.
`43.
`Plaintiffs are entitled to an award of reasonable attorney’s fees and costs pursuant
`to 29 U.S.C. §216(b).
`
`COUNT TWO:
`FAIR LABOR STANDARDS ACT – UNPAID OVERTIME
`
`Plaintiff re-alleges and incorporates by reference all allegations in all preceding
`
`44.
`paragraphs.
`45.
`The FLSA requires employers to pay employees who work over forty hours in a
`workweek overtime compensation “not less than one and one-half times the regular rate at which
`he is employed.” 29 U.S.C. § 207(a)(1). “Where an employee is required to report at a meeting
`place to receive instructions or to perform other work there . . . , the travel from the designated
`place to the work place is part of the day’s work, and must be counted as hours worked regardless
`of contract, custom, or practice.” 29 C.F.R. § 785.38.
`46.
`Defendant violated the FLSA by failing to pay Plaintiff and the FLSA Collective
`Plaintiffs the legally mandated hourly overtime premium for all hours worked over forty in a
`workweek.
`47.
`Defendant’s failure to pay federally-mandated overtime is the result of a deliberate
`scheme whereby Defendant sought to avoid or reduce paying overtime by requiring Plaintiff and
`the FLSA Collective Plaintiffs to clock out after completing their mandatory morning
`videoconference work meeting, drive to their work site, and then—and only then—clock back in.
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`Case 5:22-cv-03902-VKD Document 1 Filed 07/01/22 Page 8 of 9
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`48.
`Plaintiff and the FLSA Collective Plaintiffs were, and are, entitled to be paid at the
`statutory rate of one and one-half times Plaintiffs’ regular rate of pay for those hours worked in
`excess of forty (40) hours for each workweek.
`49.
`Defendant’s actions were willful and/or showed reckless disregard for the
`provisions of the FLSA as evidenced by their failure to compensate the FLSA Collective
`Plaintiffs at the statutory rate of one and one-half times Plaintiffs’ regular rate of pay for the hours
`worked in excess of forty (40) hours per workweek when Defendant knew, or should have
`known, such payment was due.
`50.
`Defendant has failed to properly disclose or apprise the FLSA Collective Plaintiffs
`of their rights under the FLSA.
`51.
`Due to the intentional, willful, and unlawful acts of Defendant, the FLSA
`Collective Plaintiffs suffered lost compensation for time worked over forty (40) hours per week,
`and hereby seek recovery of all such sums plus liquidated damages.
`52.
`Plaintiffs are entitled to an award of reasonable attorney’s fees and costs pursuant
`to 29 U.S.C. §216(b).
`
`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff Anthony P. Foreman, on behalf of himself and the FLSA
`Collective Plaintiffs, respectfully prays for judgment against Defendant as follows:
`a.
`Certification as a collective action;
`b.
`Payment of unpaid overtime wages to Foreman and the FLSA Collective
`Action Plaintiffs;
`Liquidated damages to the fullest extent permitted under the law;
`Litigation costs, expenses, and attorney’s fees to the fullest extent
`permitted under the law;
`In the event that Plaintiffs do not recover liquidated damages as allowed,
`then Plaintiffs demand an award of prejudgment interest as a lesser
`alternative to liquidated damages.
`
`c.
`d.
`
`e.
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`Case 5:22-cv-03902-VKD Document 1 Filed 07/01/22 Page 9 of 9
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`Dated: July 1, 2022
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`Respectfully submitted,
`LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
`
`By:
`Daniel M. Hutchinson (SBN 239458)
`LIEFF CABRASER HEIMANN &
`BERNSTEIN, LLP
`275 Battery Street, 29th Floor
`San Francisco, CA 94111-3339
`Telephone: 415.956.1000
`Facsimile: 415.956.1008
`dhutchinson@lchb.com
`
`Rachel Geman (pro hac vice motion forthcoming)
`Jessica Moldovan (pro hac vice motion forthcoming)
`LIEFF CABRASER HEIMANN &
`BERNSTEIN, LLP
`250 Hudson Street, 8th Floor
`New York, NY 10013-1413
`Telephone: 212.355.9500
`Facsimile: 212.355.9592
`rgeman@lchb.com
`jmoldovan@lchb.com
`
`Charles J. Stiegler (SBN 245973)
`STIEGLER LAW FIRM LLC
`318 Harrison Ave., Suite 104
`New Orleans, LA 70124
`Telephone: 504.267.0777
`Facsimile: 504.513.3084
`charles@stieglerlawfirm.com
`
`Robert B. Landry III (pro hac vice motion
`forthcoming)
`ROBERT B. LANDRY III, PLC
`5420 Corporate Blvd., Suite 204
`Baton Rouge, LA 70808
`Telephone: 225.349.7460
`Facsimile: 225.349.7466
`rlandry@landryfirm.com
`
`Counsel for Plaintiff and the Proposed FLSA
`Collective
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`COLLECTIVE ACTION COMPLAINT
`AND JURY TRIAL DEMAND
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