Eurest

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

______________________________________________________________________________

Victor Pacheco, William Wissbaum, Case No. 14-CV-366 PJS/TNL and Victor Garcia,

Plaintiffs,

vs. FIRST AMENDED COMPLAINT

Compass Group PLC; Compass

Group USA, Inc. d/b/a Eurest Dining Services; and Kimco Facilities Services Corporation;

Defendants.

____________________________________

Plaintiffs Victor Pacheco, William Wissbaum, and Victor Garcia bring the

following action for violations of the Fair Labor Standards Act, the Minnesota

Fair Labor Standards Act, and other common law claims. Plaintiff states the

following against Defendants:

JURISDICTION AND VENUE

1. This action arises under the Fair Labor Standards Act, 29 U.S.C.

201 et seq. (FLSA). Therefore the Court has original jurisdiction to hear this

Complaint and to adjudicate the claims stated herein pursuant to 28 U.S.C.

1331. The Court also has supplemental jurisdiction pursuant to 28 U.S.C.

1367 over Plaintiffs state law claims.

2. Venue is proper because the unlawful practices described herein

have been committed in the District of Minnesota and many of the employment

records relevant to these practices are, on information and belief, maintained

and administered at Defendants offices in the District of Minnesota.

CASE 0:14-cv-00366-PJS-TNL Document 7 Filed 03/11/14 Page 1 of 12

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PARTIES

3. Defendant Compass Group USA, Inc. d/b/a Eurest Dining

Services and Defendant Kimco Facilities Services Corporation are Minnesota

entities. The Minnesota Secretary of State business records database lists the

nameholder of the assumed name Eurest Dining Services as Compass Group

USA, Inc. According to the Minnesota Secretary of State business records

database, Compass Group USA, Inc. has the same registered office address and

registered agent as Kimco Facilities Services Corporation. On information and

belief, Defendant Kimco Facilities Services Corporation is a wholly-owned

subsidiary of Compass Group USA, Inc. d/b/a Eurest Dining Services, which is

a wholly-owned subsidiary of Defendant Compass Group PLC. Defendants

registered office address in the State of Minnesota is 100 S. 5th Street #1075,

Minneapolis, Minnesota 55402.

4. Plaintiffs are individuals who are or were employed by Defendants

in Minnesota. Victor Pacheco has been employed by Defendants since

approximately 2005. William Wissbaum was employed by Defendants from

approximately December 2012 to April 2013. Victor Garcia was employed by

Defendants from approximately 2006 until January 2014. Plaintiffs reside and

have resided in Minnesota at all times relevant to this action.

FACTUAL ALLEGATIONS

5. Plaintiffs are employed, or have been employed within the past

year, by Defendants, who operate a company that cleans retail stores (e.g.,

Verizon and Kohls).


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6. Plaintiffs worked for Defendants as Field Supervisors, meaning

they traveled from one retail store to another.

7. The office where Plaintiffs attended mandatory but unpaid work

meetings and picked up supplies from Defendants was located at 7340 Ohms

Lane in Edina, MN at all times relevant to this action.

8. Plaintiffs were compensated as hourly, non-salaried employees.

9. Defendants agreed to pay Plaintiff Pacheco $13.00 per hour for his

work as a Field Supervisor. Defendants agreed to pay Plaintiff Garcia $13.25

for his work as a Field Supervisor. Defendants agreed to pay Plaintiff

Wissbaum $10.00 per hour for his work for Defendants.

10. These agreements constituted valid, enforceable contracts.

11. Defendants required Plaintiffs to record their hours in retail stores

Defendants cleaned by logging into a time system.

12. During their time as Field Supervisors for Defendants, Plaintiffs

spent approximately 70 hours per week logged in at retail stores.

13. Defendants failed to pay Plaintiffs one and one-half times their

regular rates of pay for all the overtime hours Plaintiffs worked.

14. For the past two years or more, Defendants also failed to pay

Plaintiffs for the time they spent traveling between one retail store Defendants

cleaned and another.

15. Defendants also failed to reimburse Plaintiffs for travel expenses

they (a) incurred in the course of employment, and (b) did not incur traveling

between their residences and the first or last principal activity.


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16. The amount of uncompensated time Plaintiffs spent on unpaid

work activities amounted to up to 35 hours per week per Plaintiff.

17. These unpaid work activities were required by, and solely for the

benefit of, Defendants.

18. The task of recording the time Plaintiffs spent on these unpaid

work activities did not pose a significant administrative burden to Defendants.

19. Plaintiffs were paid based on when they were logged into

Defendants time system, which excluded work performed before or after official

hours or time they spent traveling between retail stores Defendants clean.

20. Defendants also failed to reimburse Plaintiffs for business or work-

related expenses.

21. Within approximately two weeks after Plaintiffs served a draft of

their Complaint on Defendants, which occurred on or about November 26,

2013, Defendants stopped scheduling Plaintiff Garcia for work.

22. Defendants subsequently counted absences against Plaintiff Garcia

even though he was not scheduled to work for Defendants.

23. On January 14, 2014, Defendants terminated Plaintiff Garcias

employment based on these alleged absences.

24. There is a causal connection between Plaintiff Garcias protected

activity in asserting legal claims against Defendants and Defendants

termination of Plaintiff Garcias employment.


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COUNT I VIOLATION OF THE MINNESOTA FAIR LABOR STANDARDS ACT MINIMUM

WAGE REQUIREMENT Plaintiff William Wissbaum against Defendants

25. Plaintiffs re-allege and incorporate all of the above paragraphs as

though fully stated herein.

26. The Minnesota FLSA, Minn. Stat. 177.24, requires employers to

pay minimum wages for all hours worked. The Minnesota FLSA, Minn. Stat.

177.27, makes employers who violate 177.24 liable to the affected employees

in the amount of unpaid wages, costs, attorney fees, and other appropriate

relief under the law.

27. Defendants are the employers and Plaintiffs are the employees

for purposes of the Minnesota FLSA.

28. Defendants violated the Minnesota FLSA by regularly and

repeatedly failing to properly compensate Plaintiff Wissbaum for his time spent

on the work activities described in this Complaint.

29. During his time as one of Defendants employees, Plaintiff

Wissbaum spent approximately 70 hours per week logged in at retail stores,

but he was only paid approximately $350.00 per week, resulting in an hourly

wage of $5.00 or less, which is less than the applicable minimum wage.

30. Defendants knew, or showed reckless disregard for, the fact that

they violated the Minnesota FLSA by failing to properly pay Plaintiff Wissbaum

for the work activities described in this Complaint.

31. These violations occurred within the statutory period prescribed by

Minn. Stat. 541.07.


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COUNT II VIOLATION OF THE MINNESOTA FAIR LABOR STANDARDS ACT

OVERTIME PAY REQUIREMENT Plaintiffs Pacheco, Wissbaum, and Garcia against Defendants



33. The Minnesota FLSA, Minn. Stat. 177.25, requires employers to

pay overtime for all hours worked in excess of 48 per week. Section 177.27

makes employers who violate section 177.25 liable to the affected employees in

the amount of unpaid wages, costs, attorney fees, and other appropriate relief

under the law.

34. Defendants are the employers and Plaintiffs are the employees

for purposes of the Minnesota FLSA.

35. Defendants are subject to the overtime pay requirements of the

MFLSA.

36. The MFLSA exempts certain categories of employees from overtime

pay obligations.

37. None of the MFLSA exemptions apply to Plaintiffs.

38. Defendants violated the Minnesota FLSA by regularly and

repeatedly failing to properly compensate Plaintiffs for the time they spent on

the work activities described in this Complaint.

39. During their time as Field Supervisors for Defendants, Plaintiffs

spent approximately 70 hours per week logged in at retail stores, but

Defendants did not pay overtime for all the hours Plaintiffs worked in excess of

48 per week.


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they violated the Minnesota FLSA by failing to properly pay Plaintiffs for the

work activities described in this Complaint.


Minn. Stat. 541.07.

42. Alternatively, should the Court find Defendants did not act willfully

in failing to pay overtime, Plaintiffs are entitled to an award of prejudgment

interest at the applicable legal rate.

COUNT III

VIOLATION OF THE MINNESOTA FAIR LABOR STANDARDS ACT RECORDKEEPING REQUIREMENT

Plaintiffs Pacheco, Wissbaum, and Garcia against Defendants

43. Plaintiffs re-allege the foregoing paragraphs of the Complaint as


44. Minn. Stat. 177.30 requires employers subject to the Minnesota

FLSA to make and keep a record of the hours worked each day and each work

week by their employees. Employers who violate this section may be subject to

a fine of $1,000.00 per violation and may also be subject to the penalties listed

under Minn. Stat. 177.32, subd. 1.

45. Defendants violated Minn. Stat. 177.30 by failing to make and

keep accurate records of the time Plaintiffs spent working at or traveling

between retail stores Defendants clean.

46. Plaintiffs suffered as a result of Defendants violations of Minn.

Stat. 177.30.


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COUNT IV BREACH OF CONTRACT




48. Defendants entered into an employment contract, express or

implied, with Plaintiffs, under which Plaintiffs were to be paid for the work

performed for the benefit of Defendants.

49. Defendants agreed to pay Plaintiffs an hourly wage equal to

$10.00, $13.00, or $13.25, depending on the Plaintiff.

50. Defendants breached this contract by failing to pay Plaintiffs for

time they spent performing work before or after official hours or traveling

between retail stores Defendants clean.

51. As a result, Plaintiffs suffered economic damages.

COUNT V UNJUST ENRICHMENT / QUANTUM MERUIT




53. The performance of the activities described in this Complaint

conveyed and continues to convey a benefit to Defendants, which Defendants

knowingly received.

54. Defendants are not entitled to this benefit, and retaining it without

paying for it would be unjust to Plaintiffs.


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55. Consequently, Plaintiffs are entitled to recover the reasonable value

of the benefit conveyed to Defendants by the performance of the activities

described in this Complaint.

56. With respect to Defendants failure to reimburse Plaintiffs for their

business or work-related expenses, Plaintiffs incurred expenses while

performing their employment duties and Defendants failed to reimburse

Plaintiffs for such work-related expenses.

57. Plaintiffs therefore incurred work-related expenses for which

Defendants should have reimbursed Plaintiffs.

COUNT VI VIOLATION OF THE FAIR LABOR STANDARDS ACT




59. Plaintiffs have given their consent to become parties to this lawsuit

against Defendants as required by 29 U.S.C. 216(b). (See Exhibit A.)

60. Plaintiffs are employed, or have been employed during the past

year, by Defendants in an enterprise engaged in commerce as that phrase is

used in 206 and 207 of the FLSA, 29 U.S.C. 206-07.

61. Defendants are subject to the overtime pay requirements of the

FLSA.

62. The FLSA exempts certain categories of employees from overtime

pay obligations.

63. None of the FLSA exemptions apply to Plaintiffs.


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64. The FLSA, 29 U.S.C. 206, requires employers to pay employees a

minimum wage for all hours worked. Section 207 further requires employers

to pay employees one and one-half times their regular rate of compensation for

all hours worked over 40 hours per workweek.

65. Section 216(b) of the FLSA makes employers who violate 206

and 207 liable to the affected employees in the amount of the employees

unpaid wages, liquidated damages, costs, and attorneys fees.

66. Defendants violated the minimum wage and overtime pay

requirements of the FLSA by regularly and repeatedly failing to properly

compensate Plaintiffs, as alleged above, for their time spent on the work

activities described in this Complaint.


they violated the FLSA by failing to properly pay Plaintiffs minimum wages or

overtime pay for the work activities described in this Complaint.


29 U.S.C. 255(a).

69. Alternatively, should the Court find Defendants did not act willfully

in failing to pay overtime, Plaintiffs are entitled to an award of prejudgment

interest at the applicable legal rate.

70. Plaintiffs suffered damages as a result of Defendants violations of

the FLSA.


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COUNT VII VIOLATION OF THE FLSA RETALIATION

Plaintiff Garcia against Defendants

71. Plaintiffs restate the preceding paragraphs as though fully

incorporated herein.

72. Plaintiff Garcia engaged in activity protected under the FLSA. 29

U.S.C. 215(a)(3).

73. Defendants took adverse action against Plaintiff Garcia.

74. There is a causal connection between Plaintiff Garcias protected

activity and Defendants adverse action against Plaintiff Garcia.

75. Plaintiff Garcia suffered harm and damages as a result of

Defendants retaliatory conduct.

JURY DEMAND

1. Plaintiffs demand a jury trial.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs request relief as follows:

1. Judgment against Defendants for an amount equal to Plaintiffs

unpaid wages at the applicable wage rate;

2. An equal amount to the unpaid wages as liquidated damages;

3. An award of prejudgment interest (to the extent liquidated

damages are not awarded);

4. All legal and equitable relief available under the Minnesota FLSA,

Minn. Stat. 177.21 et seq.;

5. Compensatory damages;


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6. The reasonable value of the services performed for, or the benefit

conveyed to, Defendants as described in this Complaint;

7. Costs and attorneys fees to the extent allowed by law;

8. Grant Plaintiffs all other statutory relief to which they are entitled;

9. Grant Plaintiff leave to amend the Complaint if the Court finds this

pleading deficient in any way; and

10. Such further relief as the Court deems equitable and just.

Dated: March 11, 2014 s/ Tim M. Phillips

Tim M. Phillips (#390907) [email protected] Joshua R. Williams (#389118)

[email protected] 3249 Hennepin Avenue S, Suite 216 Minneapolis, Minnesota 55408

(612) 486-5540 (612) 605-1944 Facsimile

ATTORNEYS FOR PLAINTIFFS


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