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Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
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`PAUL MEDRANO, on his own behalf and )
`on behalf of all others similarly situated, )
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`Plaintiff,
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`v.
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`FLOWERS FOODS, INC., and
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`FLOWERS BAKING CO. OF EL PASO, LLC )
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`Defendants.
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`COLLECTIVE ACTION COMPLAINT AND JURY TRIAL DEMAND
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`Plaintiff Paul Medrano (“Plaintiff”), on behalf of himself and other similarly situated
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`individuals, by and through his undersigned attorneys, brings this collective action lawsuit
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`against Defendants Flowers Foods, Inc. (“Flowers Foods”) and Flowers Baking Co. of El
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`Paso, LLC (“Flowers El Paso” and collectively with Flowers Foods, “Defendants”), seeking
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`all available relief under the Federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et
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`seq. and the New Mexico Minimum Wage Act (“NMMWA”), NMSA 1978, §§ 50-4-1 et seq.
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`Plaintiff’s claims under the FLSA are being asserted as a collective action pursuant to
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`Section 16(b), 29 U.S.C. § 216(b). Plaintiff’s claims under the NMMWA are being asserted
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`as a collective action pursuant to NMSA 1978, § 50-4-26(D). The following allegations are
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`based on personal knowledge as to Plaintiff’s own conduct and are made on information
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`and belief as to the acts of others.
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`

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`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 2 of 14
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`PARTIES, JURISDICTION AND VENUE
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`Plaintiff is an individual residing in Bernalillo County, New Mexico.
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`Plaintiff is an employee covered by the FLSA and the NMMWA.
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`Upon information and belief, Flowers Foods is a Georgia corporate entity
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`1.
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`2.
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`3.
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`doing business in New Mexico.
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`4.
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`Upon information and belief, Flowers El Paso is a Texas corporate entity
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`doing business in New Mexico.
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`5.
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`Flowers Foods and Flowers El Paso are employers covered by the FLSA and
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`the NMMWA.
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`6.
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`At all times relevant to this Complaint, Plaintiff was employed by Defendants
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`to work in Bernalillo County, New Mexico.
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`7.
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`This Court has jurisdiction over the claims asserted in this action pursuant to
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`28 U.S.C. § 1331, federal question jurisdiction, and 28 U.S.C. § 1367, supplemental
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`jurisdiction, for the claims brought under the NMMWA.
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`FACTUAL ALLEGATIONS RELEVANT TO ALL CLAIMS
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`8.
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`Flowers Foods is “one of the largest producers of packaged bakery foods in
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`the United States” and operates more than 40 bakeries nationwide. Familiar brands owned
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`and produced by Flowers Foods include Nature’s Own, Wonder, Ms. Freshly’s, and
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`Tastycake.
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`9.
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`According to its own website, in 2014, Flowers Foods had sales of $3.7
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`billion.
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`2
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`

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`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 3 of 14
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`10.
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`Defendant Flowers El Paso is a wholly owned subsidiary of Flowers Foods
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`that operates a bakery and warehouses in Bernalillo County. Flowers Foods, by and
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`through its subsidiaries such as Defendant Flowers El Paso, ships bakery and snack
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`products to warehouses, from which distributors, such as Plaintiff and the others similarly
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`situated, pick up and distribute the products to the Defendants’ retail customers at the time
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`and place specified by the Defendants.
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`11.
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`Distributors hired by Flowers El Paso are integrated into Flowers Foods’
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`existing network of operations. The work performed by Plaintiff and others similarly
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`situated simultaneously benefited or benefits both Flowers Foods and any of its
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`subsidiaries, including Flowers El Paso. Plaintiff and the others similarly situated were
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`hired for the purpose of ultimately distributing products for Flowers Foods.
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`12.
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`In approximately 2003, Plaintiff was hired by Flowers El Paso as a distributor
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`servicing retail outlets in the Albuquerque area. Plaintiff was employed by the Defendants
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`for more than a decade, until approximately August of 2015.
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`13.
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`In an effort to perpetuate a scheme that would deny Plaintiff and others
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`similarly situated the rights and benefits provided under the FLSA and the NMMWA,
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`Defendants require all potential distributors to “purchase” a predetermined territory in
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`support of the Defendants’ efforts to classify the distributors as independent contractors.
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`As part of that scheme, Plaintiff and others similarly situated were required to enter into a
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`“Distributor Agreement” with Flowers El Paso. The Distributor Agreement had no specific
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`end date and could be terminated by either party at any time with limited notice.
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`3
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`

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`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 4 of 14
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`14.
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`Flowers Foods markets its bakery and snack products to retailers and other
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`grocery stores and merchants. Flowers Foods negotiates with the retailers to set virtually
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`all material terms of the relationship with such retailers, including but not limited to (a)
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`wholesale and retail prices for products, (b) service and delivery agreements, (c) shelf
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`space to display products, (d) product selection, (e) promotional pricing for products, (f)
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`the right to display promotional materials, and (g) print advertisements in retailers’
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`newspaper ads.
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`15.
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`During the entirety of his employment, Defendants required Plaintiff to
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`service specified retail accounts, instructed him on which days he was required to deliver
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`baked goods to those accounts, and controlled virtually all other aspects of his interaction
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`with those retail accounts.
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`16.
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`Plaintiff was required to accept Defendants’ conditions of employment and
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`strictly follow their instructions, including adherence to the pricing, policies, and
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`procedures negotiated between Flowers Foods and its retail customers. Otherwise,
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`Plaintiff would face termination.
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`17.
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`The job as a distributor performed by Plaintiff and the others similarly
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`situated does not require specialized skills.
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`18.
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`Plaintiff was not permitted to determine his own schedule or the manner in
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`which he worked.
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`19.
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`Defendants exercised such control over Plaintiff that when Plaintiff was
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`attending the funeral of his own wife, Ruth Medrano, a manager from Flowers called him
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`on his cell phone and demanded that he return to work immediately.
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`4
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`

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`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 5 of 14
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`20.
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`Larry Baldwin, the regional president of Flowers El Paso, later referred to
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`this incident as evidence of how dedicated Plaintiff was to his work, recalling the incident
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`in which he had worked even on the day of his own wife’s funeral.
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`21.
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`As a “distributor,” Plaintiff was required to purchase, insure, fuel, and
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`maintain his own delivery vehicle. However, he was given no choice with regard to the
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`selection of insurance, but rather simply had a deduction for insurance taken out of his bi-
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`weekly paychecks.
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`22.
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`Defendants use the Distributor Agreement contracts to shift certain costs
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`onto its employees. Under the contract, Plaintiff was required to pay all maintenance and
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`fuel cost for what amounted to a company vehicle and warehouse rent. However,
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`Defendants provided Plaintiff with computer equipment, administrative support,
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`advertisements, promotional materials, bakery
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`trays, market advice, strategic
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`development, and other business necessities to its employees.
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`23.
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`The Distributor Agreement required Defendants to “preserve and develop
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`the quality and marketability” of its products. However, Defendants regularly and
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`consistently provided Plaintiff with product that was moldy, stale, or marred by rodent bite
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`marks, or all three. On many occasions, Plaintiff was charged for the inedible and
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`unsanitary product with which he had been provided, and he was forced to absorb the cost
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`of the unusable product.
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`24.
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`For the entirety of his employment with Defendants, Plaintiff’s delivery
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`schedule typically required Plaintiff to arrive at the factory by 4:30 a.m., and frequently
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`resulted in his arriving home with his daily deliveries completed around 8:00 p.m.
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`5
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`

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`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 6 of 14
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`25.
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`Plaintiff was typically required to work 7 days a week.
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`26.
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`Plaintiff and other distributors consistently worked in excess of 40 hours
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`every week of the year. Plaintiff often worked eighty, one hundred, or even more hours on
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`a weekly basis.
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`27.
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`Plaintiff’s manager, David Baxly, often made racially charged jokes about the
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`extremely long hours worked by Plaintiff and other similarly situated employees, stating
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`that Plaintiff and others were “working like Mexicans” or “working like niggers.”
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`28.
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`Each year, Flowers El Paso issued Plaintiff a W-2 form identifying the wages
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`he had been paid that year.
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`29.
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`Defendants paid Plaintiff through a complex calculation based on product
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`sold through the various retail outlets, with deductions for product that was delivered but
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`not sold. These deductions were in addition to various other deductions, including the
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`deduction for insurance on Plaintiff’s own vehicle. Plaintiff never received overtime
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`compensation for any hours worked by him in excess of 40 hours in a single work week.
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`Upon information and belief, Defendants never paid overtime compensation to any
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`Distributors similarly situated to Plaintiff regardless of the number of hours worked.
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`30.
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`Defendants represented to Plaintiffs and other distributors that they would
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`have the opportunity to run their businesses independently, have discretion to use their
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`business judgment, and have the ability to manage their businesses to increase
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`profitability. Contrary to these representations, Defendants denied Plaintiff and other
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`distributors benefits of ownership, or of any opportunities for profit. Instead, Defendants
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`maintained all business judgment and management over the distributors’ business,
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`6
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`

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`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 7 of 14
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`including, but not limited to, the following: (a) controlling wholesale pricing, (b)
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`negotiating retail pricing, (c) retaining the rights to establish all sales and promotions, (d)
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`retaining the rights to change orders placed by distributors, (e) requiring distributors to
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`pay for product they did not order, (f) requiring distributors to load the product onto their
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`trucks, deliver it to stores, maintain the product in the store, remove the product from the
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`store, and return it to the warehouse for credit, (g) billing distributors who did not attempt
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`to distribute the extra product for the full wholesale price of that product, (h) maintaining
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`the right to discipline distributors, up to and including termination, for reasons including
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`hiring others to run their routes, taking time off work, or for refusing a specific order to
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`deliver a product to a particular store at a particular time, (i) retaining the right to handle
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`customer complaints against a distributor, (j) retaining the ability to withhold pay for
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`certain specified expenses, and (k) retaining the right to unilaterally vary the standards,
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`guidelines, and operating procedures.
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`31.
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`After Defendants negotiated the sale of the Flowers products with major
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`retailers, including Wal-Mart, Target, and other grocery stores, Plaintiff and others
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`similarly situated delivered the product to store locations that were predetermined, and
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`Plaintiff and the others similarly situated had no discretion as to what products to
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`distribute to a particular store, whether to run sales or promotions, how frequently to
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`service stores, or any other similar discretion that would allow Plaintiff and the others
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`similarly situated to increase the profitability of their work. The result was that the ability
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`of Plaintiff and the others similarly situated to earn income was tied directly to the sale and
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`promotion of products outside their control.
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`7
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`

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`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 8 of 14
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`32.
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`Defendants required Plaintiff and all distributors to process all transactions
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`through a handheld computer provided to them by Defendants. The handheld computer
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`controlled the product prices, maintained the customer information, and monitored
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`business performance.
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`33.
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`Defendants intentionally mischaracterized Plaintiff and the others similarly
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`situated as independent contractors in order to deprive Plaintiff and the others similarly
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`situated of substantial rights and benefits of employment.
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`34.
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`Defendants did not pay Plaintiff or others similarly situated on the basis of
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`hours worked, and did not pay them one and a half times a set wage for hours in excess of
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`forty worked in a single week.
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`35.
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`All employees similarly situated to Plaintiff were required to sign contracts
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`similar to plaintiff’s contract, asserting that they were “independent contractors,” despite
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`Defendants’ pervasive control over the means and manner of the Plaintiff’s and other
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`distributors’ work. On the basis of these contract, and because they were misclassified as
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`independent contractors, Plaintiff and the others similarly situated were or are denied the
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`rights and benefits of employment, including but not limited to, overtime wages.
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`COLLECTIVE ACTION ALLEGATIONS
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`36.
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`Plaintiff brings Count I of this Complaint as a collective action, alleging
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`violations of the FLSA on behalf of himself and all other similarly situated individuals who
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`worked as distributors for Flowers Foods or Flowers El Paso in the State of New Mexico
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`under a “Distributor Agreement” or a similar written contract, and who worked for
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`Defendants during the period commencing three years prior to the filing of this Complaint
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`
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`8
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`

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`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 9 of 14
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`through the trial of this action. Count I may be brought and maintained as an “opt-in”
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`collective action pursuant to 29 U.S.C. § 216(b) because Plaintiff’s claims are similar to the
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`claims of current and former “independent contractors” who worked for Defendants. The
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`employees similarly situated to Plaintiff are known to Defendants and are readily
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`identifiable through Defendants’ payroll records.
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`37.
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`Plaintiff brings Counts II of this case as a collective action pursuant to NMSA
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`1978, § 50-4-26(D), on behalf of himself and on behalf of all similarly situated employees
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`currently and formerly employed by Flowers. The NMMWA provides a three year statute
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`of limitations for all claims brought under the NMMWA, and also provides that employees
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`may recover all wages owed, regardless of the date of the violation of the NMMWA, where
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`the employer engaged in a continuing course of conduct in violating the NMMWA.
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`38.
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`Plaintiff and the others similarly situated are or were employed by
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`Defendants, had substantially similar job requirements, pay provisions, and are subject to
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`Defendants’ common practice, policy, or plan of controlling their daily job functions.
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`39.
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`Defendants regularly permitted and required Plaintiff and the others
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`similarly situated to work more than 40 hours per week without overtime compensation.
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`40.
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`Upon information and belief, Defendants knew that Plaintiff and the others
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`similarly situated performed work that required overtime pay.
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`41.
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`Defendants have operated under a scheme to deprive Plaintiff and the others
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`similarly situated of overtime compensation by failing to properly compensate them for all
`
`time worked.
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`
`
`9
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`

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`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 10 of 14
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`42.
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`Defendants’ conduct, as set forth herein, was willful and has caused
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`significant damages to Plaintiff and the others similarly situated.
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`43.
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`Plaintiff and all other delivery drivers classified by Defendants as
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`independent contractors but treated as employees and with wages recorded on W2 forms
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`in New Mexico employed by Defendants are or were subject to Defendants’ refusal to pay
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`overtime wages.
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`44.
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`Defendants’ conduct described herein is part of a continuing course of
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`conduct.
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`COUNT I: VIOLATION OF THE FLSA, 29 U.S.C. §§ 201 et seq.
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`45.
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`All previous paragraphs are here incorporated as though fully set forth
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`herein.
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`46.
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`Section 207(a)(1) of the FLSA provides, in pertinent part:
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`Except as otherwise provided in this section, no employer shall employ any
`of his employees who in any workweek is engaged in commerce or in the
`production of goods for commerce, or is employed in an enterprise engaged
`in commerce or in the production of goods for commerce, for a workweek
`longer than forty hours unless such employee receives compensation for his
`employment in excess of the hours above specified at a rate not less than one
`and one-half times the regular rate at which he is employed.
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`There are no FLSA exemptions applicable to Plaintiff or to other members of
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`47.
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`the federal collective action.
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`48.
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`For purposes of the FLSA, the employment practices of Defendants were and
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`are uniform in all respects material to the claims asserted in this Complaint.
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`49.
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`Plaintiff and the others similarly situated regularly worked more than 40
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`hours per week but did not receive overtime pay.
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`
`
`10
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`

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`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 11 of 14
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`50.
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`At all relevant times, Defendants have had gross operating revenues in excess
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`of $500,000.
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`51.
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`In committing the wrongful acts in violation of the FLSA, Defendants acted
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`willfully, in that they knowingly, deliberately, and intentionally failed to pay overtime
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`premium wages to Plaintiff and others similarly situated.
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`52.
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`As a result of Defendants’ failure to pay overtime premium wages, Plaintiff
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`and the others similarly situated were damaged in an amount to be proven at trial.
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`53.
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`Plaintiff demands that he and the others similarly situated be paid overtime
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`compensation as required by the FLSA for every hour of overtime worked in any work
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`week for which they were not compensated, plus interest, damages, penalties, and
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`attorneys’ fees as provided by law.
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`COUNT II: VIOLATION OF NMMWA, NMSA 1978. § 50-4-22
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`54.
`
`All previous paragraphs are here incorporated as though fully set forth
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`herein.
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`55.
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`Plaintiff and those similarly situated are or were “employees” as that term is
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`defined by the NMMWA.
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`56.
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`Defendants are “employers” as that term is defined by the NMMWA.
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`57.
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`The NMMWA entitles employees to overtime compensation at not less than
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`“one and one-half times the employee’s regular hourly rate of pay for all hours worked in
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`excess of forty hours.” NMSA 1978, § 50-4-22.
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`
`
`11
`
`

`

`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 12 of 14
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`58.
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`Defendants violated the NMMWA by failing to pay Plaintiff and the collective
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`class members any compensation, including overtime compensation, for hours worked
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`over 40 per week.
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`59.
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`Plaintiff’s position as a distributor does not meet the standards for
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`exemption under the NMMWA.
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`60.
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`Plaintiff and those similarly situated have been damaged in an amount equal
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`to their unpaid overtime wages.
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`61.
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`Defendants, through their policies and practices described above, willfully
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`violated the NMMWA, including but not limited to by failing to pay Plaintiff and others
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`similarly situated their earned wages for all hours worked and by failing to pay Plaintiff
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`and others similarly situated overtime pay for all hours worked in excess of forty hours.
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`62.
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`Plaintiff and others similarly situated are entitled to treble damages plus
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`statutory interest, reasonable attorneys’ fees, and other appropriate injunctive relief.
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`Jury Demand
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`63.
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`Plaintiff and others similarly situated demand a jury on all issues to be tried
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`in this matter.
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`WHEREFORE, Plaintiff, on behalf of himself and other members of the collective class,
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`seeks the following relief against Defendants:
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`A.
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`Designation of this action as a collective action on behalf of Plaintiff and
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`those similarly situated, and prompt issuance of notice pursuant to 29 U.S.C. § 216(b) and
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`pursuant to the NMMWA to all those similarly situated apprising them of the pendency of
`
`
`
`12
`
`

`

`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 13 of 14
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`this action and permitting them to assert timely claims in this action by filing individual
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`consent forms;
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`B.
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`Judgment that Plaintiff and those similarly situated are non-exempt
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`employees entitled to protection under the FLSA;
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`C.
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`Judgment for violation of the overtime provisions of the FLSA and the
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`NMMWA;
`
`D.
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`Judgment that Defendants’ violations of the FLSA and the NMMWA were
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`willful, not in good faith, and not based on reasonable grounds;
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`E.
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`Judgment that Defendants compensate Plaintiff and the other members of the
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`collective class for the reasonable value of the benefits Plaintiff and the other members of
`
`the collective class provided to Defendants.
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`F.
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`Pursuant to the FLSA, that Plaintiff and the other members of the collective
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`class be:
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`i. Awarded unpaid overtime wages at overtime rates for all overtime work as
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`described in this Complaint;
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`ii. Awarded liquidated damages, attorneys’ fees and costs;
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`iii. Awarded punitive damages in an amount to be determined at trial; and
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`iv. Awarded any such other and further relief as the Court deems just and
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`proper.
`
`G.
`
`Pursuant to the NMMWA, that Plaintiff and the other members of the
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`collective class be:
`
`i. Awarded unpaid overtime wages plus treble damages;
`
`
`
`13
`
`

`

`Case 1:16-cv-00350-JCH-KK Document 1 Filed 04/27/16 Page 14 of 14
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`ii. Awarded lost wages and liquidated damages;
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`iii. Awarded pre- and post-judgment interest as permitted by law;
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`iv. Awarded costs and reasonable attorneys’ fees pursuant to NMSA 1978, § 50-
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`4-26(E);
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`v. Awarded equitable relief in the form of payment for state and federal income
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`tax consequences for receiving unpaid wages covering more than one
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`calendar year; and
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`vi. Awarded any such other and further relief as the Court deems just and
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`proper.
`
`Respectfully Submitted,
`
`JONES, SNEAD, WERTHEIM
` & CLIFFORD, P.A.
`
`By:
`
`
`
`/s/ Jenny F. Kaufman
`JERRY TODD WERTHEIM
`SAMUEL C. WOLF
`JENNY F. KAUFMAN
`1800 Old Pecos Trail
`Post Office Box 2228
`Santa Fe, New Mexico 87504
`Tel. (505) 982-0011
`Fax. (505) 989-6288
`
`
`
`
`
`
`
`14
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`

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