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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Case No. __________
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`LUIS BERTOT,
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`vs.
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`COMCAST CABLE COMMUNICATIONS
`MANAGEMENT, LLC, a Foreign
`Limited Liability Company;
`MARK FLEMING, an individual, jointly
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`Defendants.
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`_______________________________________/
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`Plaintiff,
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`COMPLAINT
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`(OPT-IN PURSUANT TO 29 U.S.C. § 216(B))
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`Plaintiff, Luis Bertot (“Named Plaintiff”), on behalf of himself and all others similarly
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`situated under 29 U.S.C. § 216(b), sues Defendants, Comcast Cable Communications
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`Management, LLC (“Comcast”) and Mark Fleming (“Fleming”) (collectively referred to as
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`“Defendants”), and alleges as follows:
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`1.
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`Named Plaintiff has initiated the instant action to redress violations by Defendants
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`of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”). Named Plaintiff asserts that
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`Defendants failed to pay Named Plaintiff and those similarly situated proper overtime
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`compensation in violation of the FLSA.
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`2.
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`Plaintiff seeks all damages provided for under the FLSA, including attorneys’ fees
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`and costs.
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`PARTIES, JURISDICTION, AND VENUE
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`3.
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`Plaintiff is an individual over the age of 18 and is otherwise sui juris.
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 2 of 12
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`4.
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`5.
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`During the relevant period, Plaintiff was a resident of Miami-Dade County, Florida.
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`Comcast is a business entity which, during the relevant period, was a Foreign
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`Limited Liability Company that conducted business within the Southern District of Florida.
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`6.
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`During the relevant period, Fleming was a Senior Director and then Vice President
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`of Human Resources of Comcast, who conducted business within the Southern District of Florida.
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`7.
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`At all relevant times, Defendants acted through their owners, officers, agents,
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`servants, and employees, each of whom acted within the scope of their employment with
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`Defendants.
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`8.
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`During the relevant period, Defendants were the employer, joint employer, or co-
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`employer for purposes of the FLSA as the term employer is defined by 29 U.S.C. § 203, for Named
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`Plaintiff.
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`9.
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`Jurisdiction is conferred upon this Court by:
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`a)
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`b)
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`c)
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`28 U.S.C. § 1331;
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`28 U.S.C. § 1367; and
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`29 U.S.C. § 216(b), which allows for a claim regarding violations of the
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`FLSA to be brought in any court of competent jurisdiction.
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`10.
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`Venue is proper in the Southern District of Florida because:
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`a)
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`Named Plaintiff is employed in the Southern District of Florida by
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`Defendants;
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`b)
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`During the relevant period, Defendants conducted business within the
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`Southern District of Florida;
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`c)
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`The acts that give rise to the claims by Named Plaintiff occurred in the
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`Southern District of Florida; and
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`2
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 3 of 12
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`d)
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`During the relevant period, Comcast maintained an office for the transaction
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`of its customary business in in the Southern District of Florida.
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`11.
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`During the relevant period, Comcast was an enterprise that engaged in interstate
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`commerce and had annual gross revenue in excess of $500,000.
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`12.
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`During the relevant period, Comcast employed two or more individuals that
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`customarily and regularly sold and/or marketed and/or distributed their services and/or goods
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`and/or services to customers throughout the United States and also provided its services for goods
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`sold and transported across state lines of numerous other states.
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`13.
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`During the relevant period, Comcast obtained and solicited funds from non-Florida
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`sources, accepted funds from non-Florida sources, used telephonic transmissions going over state
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`lines to do business, transmitted funds outside the state of Florida, and otherwise regularly engaged
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`in interstate commerce.
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`14.
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`During the relevant period, Comcast accepted checks, wire transfers, and other
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`forms of payments that were made or processed outside the State of Florida.
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`15.
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`16.
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`During the relevant period, Defendants were “employers” pursuant to the FLSA.
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`During the relevant period, Comcast was an enterprise engaged in commerce as
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`defined in 29 U.S.C. §§ 203(r) and 203(s).
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`17.
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`During the relevant period, Named Plaintiff was an “employee” pursuant to 29
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`U.S.C. § 203(e)(1) of the FLSA, and is an employee of Defendants.
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`18.
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`During the relevant period, Defendants failed to comply with 29 U.S.C. §§ 201-219
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`in that Named Plaintiff and those similarly situated performed services for Defendants and were
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`not paid overtime wages at the rate of time and one-half for all hours worked in excess of 40 hours
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`in each workweek.
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`3
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 4 of 12
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`19.
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`Claims under the FLSA do not have prerequisites or preconditions to filing a
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`lawsuit and therefore, Named Plaintiff has met all prerequisites and preconditions to filing this
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`lawsuit.
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`FLSA COLLECTIVE ACTION ALLEGATIONS
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`20.
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`In addition to bringing this action individually, Named Plaintiff brings this action
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`for violations of the FLSA as a collective action pursuant to 29 U.S.C. § 216(b), on behalf of
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`employees who performed similar functions for Defendants, were subjected to Defendants’
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`unlawful pay practices and policies, and who worked for Defendants at any point in the three years
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`preceding the date the instant action was filed (the members of this putative class are referred to
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`as “Collective Plaintiffs”).
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`21.
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`Named Plaintiff and Collective Plaintiffs worked for Defendants in the Southern
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`District of Florida at some point in the three years preceding the date the instant action was filed.
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`22.
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`Named Plaintiff and Collective Plaintiffs are similarly situated, have substantially
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`similar job duties, have substantially similar pay provisions, and are all subject to Defendants’
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`unlawful policies and practices as discussed herein.
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`23.
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`There are numerous similarly situated current and former employees of Defendants
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`who worked overtime hours during the relevant period without receiving overtime compensation,
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`and who would benefit from the issuance of a Court Supervised Notice of the instant lawsuit and
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`the opportunity to join in the present lawsuit.
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`24.
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`Similarly situated current and former employees are known to Defendants, are
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`readily identifiable by Defendants, and can be located through Defendants’ records.
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`25.
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`Upon information ad belief, Defendants’ pattern and practice of depriving non-
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`exempt Human Resources employees overtime compensation extended to those who are similarly
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`4
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 5 of 12
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`situated to Named Plaintiff.
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`26.
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`Therefore, Named Plaintiff should be permitted to bring this action as a collective
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`action for and on behalf of himself and those similarly situated employees, pursuant to the “opt-
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`in” provisions of the FLSA, 29 U.S.C. § 216(b).
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`FACTUAL ALLEGATIONS
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`Named Plaintiff began working at Comcast on or about May 14, 2018. Named
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`27.
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`Plaintiff is currently employed at Comcast.
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`28.
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`Named Plaintiff was hired by Comcast as a Human Resources Manager 1
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`supporting the Telesales Department, and was paid a salary of approximately $85,000 per year.
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`29.
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`Named Plaintiff’s immediate supervisor was Human Resources Director, Lynn
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`Barrett, who reported to the Vice President of Human Resources, Mark Fleming.
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`30.
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`On or about March 24, 2019, Named Plaintiff was given a new title of Human
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`Resources Manager 2 and his salary increased to approximately $106,593 per year.
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`31.
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`Plaintiff received another salary increase and is currently earning approximately
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`$109,524.22 per year.
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`32.
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`During Named Plaintiff’s employment at Comcast, up to and including March
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`2020, Named Plaintiff regularly worked in excess of 40 hours in a workweek but did not receive
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`time and one half of his regular rate for these overtime hours.
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`33.
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`Although Named Plaintiff’s hours varied, during the relevant period, he generally
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`worked 50-65 hours per week and averaged approximately 17 hours of overtime each workweek.
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`34.
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`Upon information and belief, Collective Plaintiffs also worked approximately the
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`same number of hours per workweek within the three-year statutory period without receiving
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`overtime compensation.
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`5
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 6 of 12
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`35.
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`Defendants had knowledge of Named Plaintiff’s overtime hours and non-exempt
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`employment duties, but purposefully failed to provide him overtime pay in violation of the FLSA.
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`36.
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`Defendants required Named Plaintiff to, among other things, review and respond
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`to emails and text messages in the evening and early morning hours.
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`37.
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`Named Plaintiff’s immediate supervisor, Ms. Barrett, would also call and text
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`Named Plaintiff in the early morning and evening hours and demand immediate responses.
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`38.
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`The hours worked by Plaintiff were also beyond 40 in a workweek because of
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`turnover in the department. For example, in November 2018, the Senior Human Resources
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`Manager was terminated and Named Plaintiff was forced to take on these clerical responsibilities
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`in addition to his own.
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`39.
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`Named Plaintiff was regularly on call and was frequently contacted in the early
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`morning and evening hours by employees or managers with questions via a company issued phone.
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`40. While Defendants classified Named Plaintiff as an exempt employee under the
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`FLSA, he performed primarily, if not exclusively, non-exempt work under the close supervision
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`of Defendants.
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`41.
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`On several occasions, Named Plaintiff complained to Fleming about his
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`compensation and the fact that he was working primarily, if not exclusively, as a non-exempt
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`employee, but was not receiving overtime compensation.
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`42.
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`Upon information and belief, other Human Resources Managers complained to
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`Fleming about their compensation and the fact that they were not receiving overtime compensation
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`even though they were performing primarily non-exempt duties.
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`43.
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`Named Plaintiff’s duties included primarily, if not exclusively, clerical work such
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`as processing documents, maintaining records, listening to employees’ complaints, and supporting
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`6
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 7 of 12
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`his immediate supervisor and Fleming.
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`44.
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`Named Plaintiff was only given tasks that consisted of regular, recurrent, and
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`routine work that did not involve him exercising independent judgment and discretion on matters
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`of significance.
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`45.
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`Named Plaintiff’s primary duties were not management or administrative and
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`Named Plaintiff did not customarily and regularly perform exempt duties under the FLSA.
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`46.
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`Named Plaintiff did not have any authority to set and adjust the rates of pay and
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`hours of work for any employee.
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`47.
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`Named Plaintiff did not have the ability to hire or fire anyone (nor did he hire or
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`fire anyone), and he did not regularly and customarily direct the work of two or more full-time
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`workers.
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`48.
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`During Named Plaintiff’s employment with Defendants, Named Plaintiff never
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`evaluated other employees’ performance for the purpose of recommending promotions or other
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`changes in status.
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`49.
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`50.
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`Named Plaintiff did not have the power or authority to discipline employees.
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`Furthermore, Named Plaintiff’s immediate supervisor, Ms. Barrett, was an extreme
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`micromanager who monitored and oversaw virtually everything that Named Plaintiff did and
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`required Named Plaintiff to seek and to obtain her approval before pursuing any actions or
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`adopting any discipline recommendations from the business unit.
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`51.
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`52.
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`Named Plaintiff did not write or assist with preparing any company policies.
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`If Named Plaintiff received a complaint from a company employee, Named
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`Plaintiff merely took down the information and presented it to Ms. Barrett or Fleming to determine
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`a course of conduct. Meaning, Named Plaintiff had no discretion or autonomy with respect to an
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`7
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 8 of 12
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`employee investigation.
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`53.
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`Therefore, Defendants misclassified Plaintiff as an exempt employee in order to
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`avoid the overtime requirements mandated by the FLSA.
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`54.
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`In the course of employment with Defendants, Named Plaintiff worked the number
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`of hours Defendants required of him, but was not paid time and one half for all hours worked in
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`excess of 40 during a workweek.
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`55.
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`Defendants failed to keep accurate time records for all hours worked by Named
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`Plaintiff and Collective Plaintiffs.
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`56.
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`Defendants failed to pay Plaintiff and Collective Plaintiffs based on the actual
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`number of hours worked and at the proper rate.
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`57.
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`58.
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`Defendants’ FLSA violations were willful and intentional.
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`Named Plaintiff, on behalf of himself and all other similarly-situated employees,
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`consents to the filing of this action and has retained the undersigned legal counsel to prosecute this
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`action on his behalf and has agreed to pay a reasonable fee for legal services.
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`COUNT I
`OVERTIME VIOLATIONS AGAINST COMCAST UNDER THE FLSA
`AS TO NAMED PLAINTIFF AND COLLECTIVE PLAINTIFFS
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`Named Plaintiff and Collective Plaintiffs re-adopt each and every factual allegation
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`59.
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`as stated in paragraphs 1 through 58 above as though fully recited herein.
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`60.
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`Named Plaintiff and Collective Plaintiffs performed non-exempt duties and
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`therefore, were entitled to be paid time and one half their regular rate for all hours worked in excess
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`of 40 in each workweek.
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`61.
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`Named Plaintiff and Collective Plaintiffs regularly worked in excess of 40 hours
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`each workweek; however, Comcast failed to pay the overtime wage required by the FLSA.
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`8
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 9 of 12
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`62.
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`The FLSA required that Comcast pay Named Plaintiff and Collective Plaintiffs time
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`and one half their regular rate for all hours worked in excess of 40 hours per workweek.
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`63.
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`During the relevant period, Comcast failed to comply with 29 U.S.C. §§ 201 – 219
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`and 29 C.F.R. §§ 516 et seq. in that Named Plaintiff and Collective Plaintiffs performed services
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`and worked for Comcast in excess of 40 hours per workweek but no provision was made by
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`Comcast to properly pay Named Plaintiff and Collective Plaintiffs at the rate of time and one half
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`their regular rate for all hours worked in excess of 40 hours per workweek.
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`64.
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`Comcast has attempted to evade the requirements of the FLSA by misclassifying
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`Named Plaintiff and Collective Plaintiffs as exempt employees when in fact, they were non-
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`exempt employee under the FLSA.
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`65.
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`The failure to pay overtime compensation to Named Plaintiff and Collective
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`Plaintiffs was unlawful in that they were not exempt from the overtime provisions of the FLSA
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`pursuant to the provisions of 29 U.S.C. § 213(a), in that they were not bona fide executive,
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`administrative, or professional employees.
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`66.
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`Comcast knew or showed reckless disregard for the provisions of the FLSA
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`concerning the payment of overtime wages and owe Named Plaintiff and Collective Plaintiffs
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`overtime wages.
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`67.
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`Named Plaintiff and Collective Plaintiffs are entitled to recover liquidated damages
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`under the FLSA as a result of Comcast’s intentional and willful violations for up to the three-year
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`statute of limitations afforded by the FLSA.
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`WHEREFORE, Named Plaintiff and Collective Plaintiffs respectfully pray for the
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`following relief against Comcast:
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`9
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 10 of 12
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`A.
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`Adjudge and decree that Comcast violated the FLSA and did so willfully,
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`intentionally, and with reckless disregard;
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`B.
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`Award Named Plaintiff and Collective Plaintiffs actual damages for unpaid
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`overtime compensation;
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`C.
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`D.
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`Award Named Plaintiff and Collective Plaintiffs liquidated damages;
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`Award Named Plaintiff and Collective Plaintiffs the costs of this action, together
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`with reasonable attorneys’ fees;
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`E.
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`F.
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`Award Named Plaintiff and Collective Plaintiffs all recoverable interest; and
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`Grant Named Plaintiff and Collective Plaintiffs such additional relief as the Court
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`deems just and proper under the circumstances.
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`COUNT II
`OVERTIME VIOLATIONS AGAINST FLEMING UNDER THE FLSA
`AS TO NAMED PLAINTIFF AND COLLECTIVE PLAINTIFFS
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`Named Plaintiff and Collective Plaintiffs re-adopt each and every factual allegation
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`68.
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`as stated in paragraphs 1 through 58 above as though fully recited herein.
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`69.
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`During the relevant period, Fleming was a Senior Director and then Vice President
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`of Human Resources of Comcast.
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`70.
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`During the relevant period, Fleming:
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`a)
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`Oversaw and had operational control over the day-to-day activities of
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`Named Plaintiff and Collective Plaintiffs;
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`b)
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`c)
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`Had supervisory authority over Named Plaintiff and Collective Plaintiffs;
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`Had knowledge of the hours worked by Named Plaintiff and Collective
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`Plaintiffs;
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`10
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 11 of 12
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`d)
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`Had knowledge of the work being performed by Named Plaintiff and
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`Collective Plaintiffs;
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`e)
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`Had the authority to make financial and other employment-related
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`decisions, including, but not limited to, those decisions regarding the hiring
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`and firing of employees, assignment of work duties, and payment of wages.
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`f)
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`Received complaints from Named Plaintiff and Collective Plaintiffs
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`concerning their compensation; and
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`g)
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`Was partially or totally responsible for Named Plaintiff and Collective
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`Plaintiffs’ compensation structure.
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`71.
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`Fleming was Named Plaintiff’s and Collective Plaintiffs’ employer, joint employer,
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`or co-employer for purposes of the FLSA, as the term employer is defined by 29 U.S.C. § 203,
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`during the relevant period.
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`72.
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`During their employment with Defendants, Named Plaintiff and Collective
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`Plaintiffs worked overtime hours for which they were not compensated at a rate of time-and-a-half
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`their regularly rate of pay as required by the FLSA.
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`73.
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`Named Plaintiff and Collective Plaintiffs are owed unpaid overtime compensation
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`pursuant to the FLSA for all hours worked in excess of 40 in a workweek.
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`74.
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`Fleming is jointly and severally liable for the unpaid overtime as well as double the
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`overtime amounts owed as liquidated damages under the FLSA as a result of intentional and willful
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`violations of the FLSA.
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`WHEREFORE, Named Plaintiff and Collective Plaintiffs respectfully pray for the
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`following relief against Fleming:
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`11
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`Case 1:20-cv-23766-BB Document 1 Entered on FLSD Docket 09/10/2020 Page 12 of 12
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`A.
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`Adjudge and decree that Fleming violated the FLSA and did so willfully,
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`intentionally, and with reckless disregard;
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`B.
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`Award Named Plaintiff and Collective Plaintiffs actual damages for unpaid
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`overtime compensation;
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`C.
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`D.
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`Award Named Plaintiff and Collective Plaintiffs liquidated damages;
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`Award Named Plaintiff and Collective Plaintiffs the costs of this action, together
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`with reasonable attorneys’ fees;
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`E.
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`F.
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`Award Named Plaintiff and Collective Plaintiffs all recoverable interest; and
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`Grant Named Plaintiff and Collective Plaintiffs such additional relief as the Court
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`deems just and proper under the circumstances.
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`DEMAND FOR JURY TRIAL
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`Named Plaintiff and Collective Plaintiffs hereby demand a jury trial of all issues so triable.
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`Dated: September 10, 2020
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`Respectfully submitted,
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`BT LAW GROUP, PLLC
`3050 Biscayne Blvd., Suite 205
`Miami, Florida 33137
`Tel: (305) 507-8506
`
`
`By: s/ Jason D. Berkowitz
`JASON D. BERKOWITZ, ESQ.
`Florida Bar No. 0055414
`
`jason@btattorneys.com
`ANISLEY TARRAGONA, ESQ.
`Florida Bar No. 51626
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`anisley@btattorneys.com
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`Attorneys for Plaintiff
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`12
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