UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT PIERCE DIVISION

CASE NO.: 

JERMAINE NATTOO, on behalf of himself

and all other similarly situated,

Plaintiff,

vs.

TPUSA-FHCS, INC., a Foreign Profit Corporation 

(d/b/a) TELEPERFORMANCE USA

Defendant.

_________________________________/

COLLECTIVE AND CLASS ACTION COMPLAINT 

Plaintiff, Jermaine Nattoo (“Nattoo” or “Plaintiff”), individually and on behalf of all 

similarly situated individuals, by and through his undersigned attorney, hereby brings this 

Collective and Class Action Complaint against Defendant, TPUSA-FHCS, INC, a Foreign Profit 

Corporation (d/b/a TELEPERFORMANCE USA) (“TPUSA” or “Defendant”), and alleges as 

follows:

INTRODUCTION

1. This is a Collective Action brought by Plaintiff, on behalf of himself and those 

similarly situated call center employees who were employed at Defendant’s call centers, to recover

for Defendant’s willful violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et 

seq., and alleged contractual obligations (or unjust enrichment if no contract).

2. Plaintiff, and those similarly situated, were subjected to Defendant’s policy and 

practice of failing to compensate its call center employees for their necessary pre-shift and postCase 2:20-cv-14207-DMM Document 1 Entered on FLSD Docket 06/24/2020 Page 1 of 33
lunch activities, which resulted in the failure to properly compensate them as required under 

applicable federal and state laws.

3. Further, Plaintiff, and those similarly situated, worked more than forty (40) hours 

per workweek without receiving the proper overtime pay for all their overtime hours worked 

because Defendant failed to properly calculate the overtime pay rate to include non-discretionary 

bonuses.

4. Plaintiff seeks a declaration that his rights, the rights of the putative FLSA Class, 

and the rights of the putative Rule 23 Classes were violated, and seeks to recover an award of 

unpaid wages and overtime premiums, liquidated damages, penalties, injunctive and declaratory 

relief, attorneys’ fees and costs, pre and post-judgment interest, and any other remedies to which 

they may be entitled.

5. The U.S. Department of Labor (“DOL”) recognizes that call center jobs, like those 

held by Plaintiff in Defendant’s call center, condemn their employer’s non-payment of an 

employee’s necessary pre-shift and post-shift activities. See DOL Fact Sheet #64, attached hereto 

as Exhibit A.

6. Specifically, the DOL stated:

“hours worked” includes all time an employee must be on duty, or 

on the employer's premises or at any other prescribed place of work,

from the beginning of the first principal activity of the workday to

the end of the last principal activity of the workday An example 

of the first principal activity of the day for 

agents/specialists/representatives working in call centers includes 

starting the computer to download work instructions, computer 

applications, and work-related emails. See id. at 2 (emphasis added). 

Additionally, the FLSA requires that “[a] daily or weekly record of 

all hours worked, including time spent in pre-shift and post-shift 

job-related activities must be kept.” Id.

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JURISTRICTION AND VENUE

7. This Court has subject-matter jurisdiction over Plaintiff’s FLSA claims pursuant to 

28 U.S.C. § 1331 because Plaintiff’s claims arise under the FLSA, 29 U.S.C. §§ 201, et seq.

8. This Court has subject-matter jurisdiction over Plaintiff’s FLSA claim pursuant to 

29 U.S.C. § 216(b), which provides that suits under the FLSA “may be maintained against any 

employer . . . in any Federal or State court of competent jurisdiction.”

9. This Court has supplemental jurisdiction over Plaintiffs’ breach of contract or 

unjust enrichment claims pursuant to 28 U.S.C. § 1367(a) because these claims arise from a 

common set of operative facts and are so related to the claims within this Court’s original 

jurisdiction that they form a part of the same case or controversy.

10. Upon information and belief, Defendant’s annual sales exceed $500,000 and they 

have more than two employees, so the FLSA applies in this case on an enterprise basis. See 29 

U.S.C. § 203(s)(1)(A).

11. Defendant’s employees, including Plaintiff, engage in interstate commerce—

including, but not limited to utilizing telephone lines and Internet—and therefore, they are also 

covered by the FLSA on an individual basis.

12. This Court has personal jurisdiction over Defendant because TPUSA is Registered

with the Florida Department of Corporations to conduct business within Florida, and they continue to 

conduct business within the State of Florida.

13. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendant 

conducts substantial business within this District, and because a substantial portion of the events 

that give rise to the claims pled in this Complaint occurred in this District.

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PARTIES

14. Plaintiff is an individual who currently resides in Orlando, Florida1.

15. Plaintiff was employed by Defendant as an hourly Customer Service 

Representative(“CSR”) and was hired from on or around September 2019 through December 2019, 

in Defendant’s Port St. Lucie, Florida call center.

16. Plaintiff has executed his Consent to Become Party Plaintiff form, which is attached 

hereto, as Exhibit B.

17. Upon information and belief, TPUSA hires call center employees, such as Plaintiff, 

to “be the eyes and ears for our team, fielding customer inquiries and finding innovative ways to 

respond . . . . [while] [h]andl[ing] and carefully respond[ing] to all inbound and outbound customer 

inquiries.” 

18. TPUSA is a foreign profit corporation and is registered with the Florida Department 

of Corporations.

GENERAL ALLEGATIONS

19. Plaintiff was employed by Defendant as an hourly CSR from on or around 

September, 2019, until on or around December 2019, in Defendant’s Port St. Lucie, Florida call 

center.

20. Defendant assigned Plaintiff to answer inbound calls and make outbound customer 

calls for Defendant’s client, UnitedHealthcare.

21. Plaintiff’s primary job duties included, but were not limited to, answering calls 

from customers, answering customer’s questions regarding health insurance copays and benefits, 

1 During Plaintiff’s employment with Defendant, Plaintiff lived in West Palm Beach, Florida and 

worked at Defendant’s Port St. Lucie call center location. 

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as well as billing questions. Plaintiff also took customer complaint calls and grievances as well as

making outgoing calls on behalf of UnitedHealthcare’s customers to schedule doctor’s 

appointments.

22. Plaintiff’s hourly rate of pay was approximately $19.00 per hour. Additionally, 

Defendant’s pay scheme incorporated the ability for Plaintiff to earn non-discretionary bonuses by 

meeting set quotas.

23. At all times relevant to this Action, Plaintiff’s compensation included a nondiscretionary bonus of an additional $2.00 per hour to be applied to all hours Plaintiff worked 

during any week he met his set quotas.

24. At all times relevant to this Action, Plaintiff’s compensation included a nondiscretionary bonus of an additional $5.00 per completed health insurance application submitted 

to Defendant.

25. Upon information and belief, Defendant failed to compensate Plaintiff the 

additional $2.00 per hour to all hours Plaintiff worked during the workweeks he met his set quotas.

26. Upon information and belief, Defendant failed to compensate Plaintiff the 

additional $5.00 per completed application submitted to Defendant.

27. Throughout Plaintiff’s employment with Defendant, he regularly worked at least 

forty (40) hours per workweek.

28. Plaintiff was regularly required to work a substantial amount of time off-the-clock 

as part of his job duties as a call center employee.

29. Plaintiff was never compensated for this time worked off-the-clock.

30. 29 C.F.R. § 553.221 providesthat:

Compensable hours of work generally include all of the time during which

an employee is on duty on the employer’s premises or at a prescribed

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workplace, as well as all other time during which the employee is suffered

or permitted to work for the employer. Such time includes all pre-shift and

post-shift activities which are an integral part of the employee’s principal

activity or which are closely related to the performance of the principal

activity, such as attending roll call, writing up and completing tickets or 

reports, and washing and re-racking firehoses.

31. 29 C.F.R. § 790.8 provides that “[a]mong activities included as an integral part of 

a principal activity are those closely related activities which are indispensable to its performance.”

32. The FLSA subjects “every employer subject to any provisions of the Fair Labor 

Standards Act” to maintain employee records. 29 C.F.R. § 516.1.

33. An employer is mandated to maintain and preserve payroll or other records 

containing, without limitation, the total hours worked by each employee each workday and the 

total hours worked by each employee each workweek. See id. § 516.2.

34. Upon information and belief, Defendant failed to establish, maintain and preserve 

accurate timesheet and payroll records as required by the FLSA.

35. When the employer fails to keep accurate records of the hours worked by its 

employees, the rule in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946) is 

controlling. That rule states:

[w]here the employer’s records are inaccurate or inadequate an employee 

has carried out his burden if he proves that he has in fact performed worked 

for which he was improperly compensated and if he produces sufficient 

evidence to show the amount and extent of that work as a matter of just and

reasonable inference. The burden then shifts to the employer to come forward

with evidence of the precise amount of work performed or with evidence of 

the precise amount of work performed or with evidence to negate the 

reasonableness of the inference to be drawn from the employee’s evidence. If 

the employer fails to produce such evidence, the court may then award 

damages to the employee, even though the result be only approximate.Id.

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36. The Supreme Court set forth this test to avoid placing a premium on an employer’s 

failure to keep proper records in conformity with its statutory duty, thereby allowing the employer 

to reap the benefits of the employees’ labors without proper compensation as required by the 

FLSA. Where damages are awarded pursuant to this test, “[t]he employer cannot be heard to 

complain that the damages lack the exactness and precision of measurement that would be possible 

had he kept records in accordance with the Act.” Id.

A. Pre-Shift and Post-Lunch Off-the-Clock Work.

37. Plaintiff and all other similarly situated current and former hourly Customer Service 

Representatives (“CSRs”) or held any similar positions(ex: Technical Support Agent, Bi-Lingual 

Customer Care Professional, Call Center Representative, Customer Support Specialist, Customer 

Service Agent) were tasked with providing Defendant’s clients with customer service by use of 

Defendant’s telephones, Defendant’s computers, and the programs accessible from Defendant’s

computers.

38. Defendant required Plaintiff and all other similarly situated current and former hourly 

CSRs to arrive at the call center before their scheduled shifts to boot up their computers and launch 

and log into necessary programs, servers, and applications to ensure they were ready to take their first

call at their scheduled shift start. This pre-shift procedure regularly took between ten (10) minutes, 

to thirty (30) minutes, per shift, or even longer if technical issues arise. Only after this pre-shift 

procedure was completed were Plaintiff and all other similarly situated current and former hourly 

CSRs allowed to clock-in to Defendant’s timekeeping system at the scheduled start of their shifts.

39. Defendant required Plaintiff and all other similarly situated current and former hourly 

CSRs to log out of their necessary programs, servers, and applications and shut down their computer 

before taking their unpaid lunch break period.

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40. Defendant required Plaintiff and all other similarly situated current and former hourly 

CSRs to return to their desks before the scheduled end of their unpaid lunch period because Plaintiff 

and all other similarly situated current and former hourly CSRs were required undergo the same boot 

up procedure they followed at the beginning of their shifts. Plaintiff and all other similarly situated 

current and former hourly CSRs were required to return to their desks before the scheduled end of 

their unpaid lunch period to ensure they were ready to take their first call at their scheduled shift start. 

This boot up procedure post-lunch regularly took between ten (10) minutes, to thirty (30) minutes, or

even longer if technical issues arise. Only after this process was completed were Plaintiffs allowed to 

clock-in to Defendant’s timekeeping system and resume working.

41. The pre-shift and post-lunch boot up procedures are integral and indispensable to the 

performance of Plaintiff and all other similarly situated current and former hourly CSRs’ principal 

job duties.

42. In order to perform their jobs as call center employees assisting Defendant’s client via 

computer and telephone, Plaintiff and all other similarly situated current and former hourly CSRs 

needed to boot up their computers and launch and log into necessary programs, servers, and 

applications.

43. The unpaid pre-shift and post-lunch off-the-clock work performed by Plaintiff and 

all other similarly situated current and former hourly CSRs directly benefitsDefendant.

B. Defendant’s Policy and Practice of Off-the-Clock Work 

Defendant’s and Defendant’s Failure to Consider Non-Discretionary 

Bonuses in Calculating Overtime Premium Rates Willfully Violates the

FLSA.

44. At all times relevant, Defendant suffered or permitted Plaintiff and all other 

similarly situated current and former hourly CSRs to routinely perform off-the-clock pre-shift 

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work by not allowing its employees to clock-in until after the pre-shift procedure was complete.

45. At all times relevant, Defendant suffered or permitted Plaintiff and all other 

similarly situated current and former hourly CSRs to routinely perform post-lunch off-the-clock 

work by not allowing its employees to clock-in until after the post-lunch boot up procedure was 

complete.

46. Defendant knew, or should have known, that its employees are required to be paid 

for all compensable time throughout the workweek. See 29 C.F.R. § 553.221; id. at § 790.8; id. at 

§ 785.19(a).

47. Despite this, Defendant failed to compensate Plaintiff and all other similarly 

situated current and former hourly CSRs for their off-the-clock pre-shift or post-lunch 

compensable work performed in any amount.

48. Defendant knew, or should have known, that the FLSA, 29 U.S.C. § 207, required 

them to compensate non-exempt employees who work in excess of forty (40) hours in a workweek 

at a rate of one and one-half (1.5) times their regular rate of pay—including the compensable offthe-clock pre- shift or post-lunch work performed.

49. Despite this, Defendant failed to compensate Plaintiff and all other similarly situated 

current and former hourly CSRs for their off-the-clock pre-shift or post-lunch compensable work 

performed in excess of forty (40) hours in a workweek at one and one-half (1.5) times their regular 

rates of pay.

50. At all times relevant to this Action, Plaintiff’s compensation included a nondiscretionary bonus of an additional $2.00 per hour to be applied to all hours Plaintiff worked 

during any workweek he met his set quotas.

51. At all times relevant to this Action, Plaintiff’s compensation included a nonCase 2:20-cv-14207-DMM Document 1 Entered on FLSD Docket 06/24/2020 Page 9 of 33
discretionary bonus of an additional $5.00 per completed health insurance application submitted 

to Defendant.

52. Upon information and belief, Defendant failed to compensate Plaintiff the 

additional $5.00 per completed application submitted to Defendant.

53. Upon information and belief, Defendant failed to compensate Plaintiff the

additional $2.00 per hour to all hours Plaintiff worked during all the workweeks he met his set 

quota.

54. Further, at all times relevant to this action, Defendant’s pay scheme incorporated 

the ability for all other similarly situated current and former hourly CSRs to earn non-discretionary

bonuses through meeting set quotas.

55. Further, at all times relevant to this action, Defendant’s pay scheme incorporated 

the ability for all other similarly situated current and former hourly CSRs to earn non-discretionary 

bonuses through submitting completed applications.

56. Upon information and belief, Defendant routinely failed to compensate all other 

similarly situated current and former hourly CSRs the promised non-discretionary per hour bonus 

through meeting set quotas.

57. Upon information and belief, Defendant routinely failed to compensate all other 

similarly situated current and former hourly CSRs the promised non-discretionary per hour bonus 

for submitting completed applications.

58. Defendants knew, or should have known, that for purposes of the FLSA that an 

employee’s “regular rate” of pay is determined by adding together the employee’s total 

compensation—which includes the employee’s hour rate and non-discretionary incentive 

payments, such as bonuses and/or commission, and dividing the number by the total number of

Case 2:20-cv-14207-DMM Document 1 Entered on FLSD Docket 06/24/2020 Page 10 of 33
hours worked by the employee during the week in which the compensation was earned. See DOL 

Fact Sheet #56( c ), attached hereto as Exhibit C.

59. Despite this, Defendants suffered and permitted Plaintiff, and others similarly

situated, to work more than forty (40) hours per work week without receiving proper overtime pay 

by failing to include their non-discretionary incentive pay, such as non-discretionary bonuses, in

calculating their regular rate of pay used to pay overtime compensation.

60. In reckless disregard of the FLSA, Defendant adopted and then adhered to its 

policy, plan or practice of employing Plaintiff and all other similarly situated current and former

hourly CSRs to perform pre-shift or post-lunch compensable work off-the-clock. Further, Defendant

adopted and then adhered to its policy, plan or practice of failing to include their non-discretionary 

incentive pay in calculating their regular rate of pay used to pay overtime compensation. This 

illegal policy, plan or practice resulted in Plaintiff and all other similarly situated current and 

former hourly CSRs notbeing paid correctly for all overtime worked.

COLLECTIVE ACTION ALLEGATIONS

61. Plaintiff Jermaine Nattoo, bringsthis action pursuant to the FLSA, 29 U.S.C. § 216(b)

on his own behalf and on behalf of:

All current and former hourly Customer Service Representative or 

other job titles who performed similar job duties who worked for 

TPUSA at any time in the last three (3) years.

(hereinafter referred to as the “FLSA Collective”). Plaintiffs reserve the 

right to amend this definition as necessary.

62. Plaintiff does not bring this action on behalf of any executive, administrative, or 

professional employees exempt from coverage under the FLSA.

63. With respect to the claims set forth in this action, a collective action under the FLSA

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is appropriate because, under 29 U.S.C. § 216(b), the call center employee described is “similarly 

situated” to Plaintiff. The class of employees on behalf of whom Plaintiff bring this collective

action are similarly situated because (a) they have been or are employed in the same or similar 

positions; (b) they were or are subject to the same or similar unlawful practices, policy, or plan 

(namely, Defendant’s practices, policy, or plan of not paying their call center for their pre-shift or 

post-lunch compensable work performed in excess of forty (40) hours per workweek at an overtime 

premium of at least one and one- half (1.5) times their regular rates of pay and Defendant’s practices, 

policy, or plan of failing toinclude their non-discretionary incentive pay in calculating their regular 

rate of pay used to pay overtime compensation); (c) their claims are based upon the same legal 

theories; and (d) the employment relationship between Defendant and every putative FLSA

Collective member is exactly the same, and differs only by name, location, and rate of pay.

64. Plaintiff estimates that the FLSA Collective, including both current and former call 

center employees over the relevant period, will include several thousand members who would 

benefit from the issuance of a court-supervised notice of this action and the opportunity to join it. 

The precise number of collective class members should be readily available from a review of

Defendant’s personnel, scheduling, time and payroll records, and from input received from the 

collective class members as part of the notice and “opt-in” process provided by 29 U.S.C. § 216(b).

65. Plaintiff shares the same interests as the FLSA Collective in that the outcome of 

this action will determine whether they are entitled to unpaid overtime compensation, interest, 

attorneys’ fees and costs owed under the FLSA. Because the facts in this case are similar, if not 

altogether identical, to the factual assessment and legal standards lend themselves to a collective

action.

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RULE 23 CLASS ACTION ALLEGATIONS

66. Plaintiff, Jermaine Nattoo brings this action pursuant to Fed. R. Civ. P. 23 on behalf

of a putative Class defined to include:

All current and former Call Center Agent employees who worked for 

Teleperformance at any time in the last two (2) years.

(hereinafter referred to as the “Nationwide Class”). Plaintiff reserves the right

to amend this definition as necessary.

67. The members of the Nationwide Class are so numerous that joinder of all members

in the case would be impracticable, and the disposition of their claims as a Class will benefit the 

parties and the Court. The precise number of Class members should be readily available from a 

review of Defendant’s personnel and payroll records.

68. There is a well-defined community of interest among Nationwide Class members

and common questions of both law and fact predominate in the action over any questions affecting 

individual members. These common legal and factual questions include, but are not limited to, the

following:

a. Whether Defendant offered to pay Plaintiff and the Nationwide Class certain

rates per hour for each hour worked as call center employees;

b. Whether Plaintiff and the Nationwide Class accepted Defendant’s 

offer by performing the essential functions of the job;

c. Whether Defendant breached the contract by failing to pay Plaintiff and 

the Nationwide Class for each and every hour worked, whether preshift or post- lunch;

d. Whether Defendant breached the contract by failing to pay 

Plaintiff and the Nationwide Class the proper overtime rate, 

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including the promised non- discretionary bonuses, as part of the 

rate calculations; and,

e. Whether Plaintiff and the Nationwide Class were damaged.

69. Plaintiff’s claims are typical of those of the Nationwide Class in that Plaintiff 

Jermaine Nattoo and all other members of the Nationwide Class suffered damages as a direct and 

proximate result of Defendant’s common and systemic payroll policies and practices. Plaintiff’s 

claims arise from Defendant’s same policies, practices, and course of conduct as all other 

Nationwide Class members’ claims and Plaintiff’s legal theories are based on the same legal 

theories as all other Nationwide Class members: whether the Defendant and the Nationwide Class 

members were employed under an oral contract to be paid for each and every hour worked by 

Defendant.

70. Plaintiff Jermaine Nattoo will fully and adequately protect the interests of the 

Nationwide Class. Plaintiff retained national counsel who is qualified and experienced in the 

prosecution of nationwide wage-and-hour class actions. Neither Plaintiff nor his counsel have 

interests that are contrary to, or conflicting with, the interests of the Nationwide Class.

71. A class action is superior to other available methods for the fair and efficient 

adjudication of the controversy, because, inter alia, it is economically infeasible Nationwide Class 

members to prosecute individual actions of their own given the relatively small amount of damages 

at stake for each individual along with the fear of reprisal by their employer. Given the material 

similarity of the Nationwide Class members’ claims, even if each Class member could afford to 

litigate a separate claim, this Court should not countenance or require the filing of thousands of 

identical actions. Individual litigation of the legal and factual issues raised by Defendant’s conduct 

would be inefficient, cause unavoidable delay, a significant duplication of efforts, and an extreme 

waste of resources. Alternatively, proceeding by way of a class action would permit the

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efficient supervision of the putative class’ claims, create significant economies of scale for the 

Court and the parties and result in a binding, uniform adjudication on all issues.

72. This case will be manageable as a class action. This class action can be efficiently 

and effectively managed by sending the same FLSA opt-in notice to all employees similarly 

situated and adding for the Nationwide Class within that group a separate opt-out notice pertaining 

to their rights under the common law. Plaintiff and her counsel know of no unusual difficulties in 

the case and Defendant have payroll systems that will allow the class, wage, and damages issues 

in the case to be resolved with relative ease. Because the elements of Rule 23(b)(3), or in the 

alternative (c)(4), are satisfied in the case, class certification is appropriate. Shady Grove 

Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010) (“[b]y its terms [Rule 23] 

creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue her 

claim as a class action”).

CAUSES OF ACTION

COUNT I-VIOLATION OF THE FLSA

29 U.S.C. § 201, et seq., FAILURE TO PAY OVERTIME WAGES

73. Plaintiff re-alleges and incorporate all previous paragraphs herein and further 

alleges as follows.

74. At all times relevant to this Action, Defendant was an “employer” under the FLSA,

29 U.S.C. § 203(d), subject to the provisions of 29 U.S.C. §§ 201, et seq.

75. Upon information and belief, Defendant’s annual sales exceed $500,000 and they 

have more than two employees, so the FLSA applies in this case on an enterprise basis. See 29 

U.S.C. § 203(s)(1)(A).

76. Defendant is engaged in interstate commerce or in the production of goods for 

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commerce, as defined by the FLSA.

77. At all times relevant to this Action, Plaintiff was an “employee” of Defendant 

within the meaning of the FLSA, 29 U.S.C. § 203(e)(1).

78. Plaintiff were either (1) engaged in commerce; or (2) engaged in the production of 

goods for commerce; or (3) employed in an enterprise engaged in commerce or in the production 

of goods for commerce.

79. Defendant’s employees, including Plaintiff, engage in interstate commerce—

including, but not limited to utilizing telephone lines and Internet—and therefore, they are also 

covered by the FLSA on an individual basis.

80. The position of Customer Service Representative is not exempt from the FLSA.

81. Defendant’s other job titles performing similar Customer Service Representative 

job duties are not exempt from the FLSA.

82. At all times relevant to this Action, Defendant “suffered or permitted” Plaintiff to

work and thus “employed” him within the meaning of the FLSA, 29 U.S.C. § 203(g).

83. The FLSA requires an employer to pay employees the federally mandated overtime 

premium rate of one and a half (1.5) times their regular rate of pay for every hour worked in excess

of forty (40) hours per workweek. See 29 U.S.C. § 207.

84. Upon information and belief, Defendant has corporate policies of not properly paying 

overtime pay for its hourly workers.

85. Defendant violated the FLSA by suffering or permitting Plaintiff and all other

similarly situated current and former hourlyCSRsto routinely performoff-the-clock pre-shift and postlunch work by not allowing its employees to clock-in until after the pre-shift and post-lunch 

procedures were complete.

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86. Defendant violated the FLSA by failing to pay Plaintiffs the federally mandated 

overtime premiums for Plaintiff and all other similarly situated current and former hourly CSRs’ 

off- the-clock hours worked in excess of forty (40) hours per workweek.

87. Defendant violated the FLSA by failing to include non-discretionary incentive pay 

in calculating Plaintiff and all other similarly situated current and former hourly CSRs’ regular 

rate of pay used to pay overtime compensation.

88. Defendant’s violations of the FLSA were knowing and willful.

89. By failing to compensate its hourly workers at a rate not less than one and one-half 

(1.5) times their regular rate of pay for all work performed in excess of forty (40) hours in a

workweek, Defendant has violated the FLSA, 29 U.S.C. § 201, et seq., including 29 U.S.C. §§ 

207(a)(1) and 215(a). All similarly situated call former hourly CSRs or other job titles performing

the same or similar job duties, are victims of a uniform and company-wide enterprise which 

operates to compensate employees at a rate less than the federally mandated overtime wage rate. 

This uniform policy, in violation of the FLSA, has been, and continues to be, applied to former 

hourly call center agents, or other job titles performing the same or similar job duties, who have 

worked or are working for Defendant in the same or similar position as Plaintiff.

90. None of the provisions of the FLSA can be contravened, set aside, abrogated, or 

waived by Plaintiff or the Class.

91. The FLSA, 29 U.S.C. § 216(b), provides that as a remedy for a violation of the Act,

an employee is entitled to his or her unpaid overtime wages plus an additional equal amount in

liquidated damages, costs, and reasonable attorneys’ fees.

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COUNT II

BREACH OF CONTRACT

92. Plaintiff re-alleges and incorporates all previous paragraphs herein and further

alleges as follows:

93. On or around September, 2019, Defendant offered to employ Plaintiff as an hourly 

CSR, offering to compensate Plaintiff at approximately $19.00 per hour, in addition to a nondiscretionary bonus of an additional $2.00 per hour to be applied to all hours Plaintiff worked 

during any workweek he met his set quotas as well a non-discretionary bonus of an additional

$5.00 per completed application submitted to Defendant. 

94. Upon information and belief, Defendant similarly offered to pay the Nationwide 

Class certain rates per hour for each hour worked as a call center employee, in addition to nondiscretionary bonuses. Each Nationwide Class members’ contractual hourly rate is identified in 

paystubs and other records that Defendant prepares as part of their regular business activities.

95. Plaintiff and the Nationwide Class accepted the offer and worked for Defendant as 

CSRs or other job titles performing the same or similar job duties.

96. Plaintiff and the Nationwide Class also accepted the offer by their performance—

i.e., reporting for work and completing the tasks assigned to them.

97. Plaintiff’s work, and the work of the Nationwide Class, required pre-shift and postlunch boot up time.

98. Plaintiff and every other Nationwide Class member performed under their oral 

contract by doing their jobs, in addition to carrying out the pre-shift and post-lunch off-the-clock 

activities that Defendant required.

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99. Upon information and belief, Defendant does not allow its employees to clock in 

to begin being compensated until after the pre-shift and post-lunch boot up procedures are 

complete.

100. Despite being required to complete these pre-shift and post-lunch integral job 

duties, Plaintiff and the Nationwide Class were not compensated at their hourly rate for their work 

performed in workweeks they worked up to 40 hours per workweek.

101. By failing to pay Plaintiff and the Nationwide Class for the pre-shift and post-lunch

boot up time, Defendant breached its contract with Plaintiff and the Class to pay their hourly rate 

for each hour worked.

102. In sum, the facts set forth above establish the following elements and terms of the 

contract:

f. Defendant’s Offer: a set hourly rate for each hour worked as a call center employee;

g. Plaintiff and the Nationwide Class accepted the offer overtly or via 

performance (i.e., each showed up to work and completed the tasks 

assigned to them by Defendant);

h. Defendant breached the contract by not pay Plaintiff and the Nationwide Class

for each hour (or part thereof) worked; and,

i. By failing to pay Plaintiff and the Nationwide Class their hourly rate for each

hour worked, Plaintiff and the Class were damaged in an amount to be proven 

at trial.

103. These claims are appropriate for nationwide class certification under Rules (b)(3)

and/or (c)(4) because the law of contracts is substantially similar throughout the United States.

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104. As a direct and proximate cause of Defendant’s breach, Plaintiff and the 

Nationwide Class were damaged at an amount to be proven at trial.

COUNT III

QUASI-CONTRACTUAL REMEDIES, UNJUST ENRICHMENT

105. Plaintiff re-alleges and incorporates all previous paragraphs herein and further 

alleges as follows:

106. Upon information and belief, Plaintiff’s and every other Nationwide Class

members’ pre-shift and post-lunch boot up time provided valuable work and income for 

Defendant; namely, compensation to Defendant for completing telephone sales and customer 

service activity that directly benefited Defendant.

107. Plaintiff and the Nationwide Class were unable to perform any job function 

without booting up and logging in to their computer and required programs. In short, in order to 

start their work of fielding customer calls precisely at their designated start time, Plaintiff and the 

Nationwide Class worked off-the-clock before their shift began and after ending their unpaid lunch 

break. Without the pre-shift and post-lunch boot-up time, Plaintiff and the Nationwide Class were 

unable to take customer calls at their designated start times. Further, upon information and belief, 

Defendant does not allow their employees to clock in to begin being compensated until after the 

pre-shift and post-lunch boot up procedures are complete.

108. As part of their ongoing employment relationships with Defendant, Plaintiff and 

other Nationwide Class members expected to be paid wages for the time they spent doing their jobs,

including necessary pre-shift and post-lunch boot up activities performed eachshift.

109. By not paying Plaintiff and other Nationwide Class members for the time they spent 

performing necessary pre-shift and post-lunch boot up activities, Defendant has been unjustly

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enriched at the expense of Plaintiff and the Nationwide Classin an amount to be determined at trial.

110. By not paying Plaintiff and other Nationwide Class members for the time they spent 

performing necessary activities, Defendant has also saved itself hundreds-of-thousands of dollars 

in unpaid payroll taxes – taxes that would have otherwise been credited to Plaintiff’s and 

Nationwide Class members’ benefit.

111. It would be unjust and inequitable to allow Defendant to retain the benefit of the 

work performed by Plaintiff and the Nationwide Class without compensation.

112. These claims are appropriate for nationwide class certification under Rules 23(b)(3) 

and/or (c)(4) because the law of unjust enrichment is substantially similar throughout the United 

States.

113. As a direct and proximate cause of Defendant’s unjust enrichment, Plaintiff and the 

Nationwide Class were harmed at an amount to be proven at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of all similarly situated individuals, 

requests the following relief:

a. An Order certifying this case as a collective action in accordance with 

29 U.S.C. § 216(b) with respect to the FLSA claims set forth above;

b. An Order certifying this action as a class action for the Rule 23 Breach

of Contract Nationwide Class (or for the Rule 23 Unjust Enrichment 

Nationwide Class if no contract is found) pursuant to Rule 23 of the 

Federal Rules of Civil Procedure;

c. An Order compelling Defendant to disclose in computer format, or in 

print if no computer readable format is available, the names, addresses, 

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and email addresses of all those individuals who are similarly situated, 

and permitting Plaintiff to send notice of this action to all those 

similarly situated individuals including the publishing of notice in a 

manner that is reasonably calculated to apprise the potential class 

members of their rights under this litigation;

d. An Order designating the Named-Plaintiff to act as the Nationwide 

Class Representatives on behalf of all similarly situated individuals 

for both the FLSA and the Rule 23 Breach of Contract or Unjust 

Enrichment Nationwide Classes;

e. An Order declaring that Defendant willfully violated the FLSA and 

its attendant regulations as set forth above;

f. An Order declaring that Defendant violated its obligations under the FLSA;

g. An Order granting judgment in favor of Plaintiff and against Defendant 

and awarding the amount of unpaid overtime pay calculated at the rate 

of one and one- half (1.5) of Plaintiff’s regular rate multiplied by all 

hours that Plaintiff worked in excess of forty (40) hours per week for 

the past three (3) years for Plaintiff and for the FLSA Class;

h. An Order awarding liquidated damages to Plaintiff, in an amount equal 

to the amount of unpaid overtime found owing to Plaintiff under the

FLSA;

i. An Order granting judgment in favor of Plaintiff and against Defendant 

and awarding the amount of unpaid hourly wages and nondiscretionary bonuses earned by unpaid, in an amount to be proven at

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trial;

j. An Order awarding reasonable attorney fees and costs incurred by

Plaintiffs in filing this Action;

k. An Order awarding pre and post-judgment interest to Plaintiffs on 

these damages; and

l. An Order awarding such further relief as this court deems appropriate.

JURY DEMAND

NOW COME Plaintiff, by and through her Attorneys, and hereby demand a trial by jury 

pursuant to Rule 38 of the Federal Rules of Civil Procedure and the court rules and statutes made

and provided with respect to the above entitled cause.

Dated this 24th day of June 2020

Respectfully submitted, 

/s/ Noah E. Storch___

Noah E. Storch, Esq.

Florida Bar No.: 0085476

RICHARD CELLER LEGAL, P.A.

10368 W. State Road 84, Suite 103

Davie, FL 33324

Telephone: (866) 344-9243

Facsimile: (954) 337-2771

E-mail: noah@floridaovertimelawyer.com

 

Trial Counsel for Plaintiff

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EXHIBIT A

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U.S. Department of Labor 

Wage and Hour Division 

 (Revised July 2008) 

Fact Sheet #64: Call Centers under the Fair Labor Standards Act (FLSA) 

This fact sheet provides general information concerning the application of the FLSA to employees working in 

call centers. 

Characteristics 

A call center is a central customer service operation where agents (often called customer care specialists or 

customer service representatives) handle telephone calls for their company or on behalf of a client. Clients may 

include mail-order catalog houses, telemarketing companies, computer product help desks, banks, financial 

services and insurance groups, transportation and freight handling firms, hotels, and information technology 

(IT) companies. 

Coverage

If the annual dollar volume of a call center’s sales or business is $500,000 or more, and the enterprise has at 

least two employees, all employees of the enterprise are covered by the FLSA on an “enterprise” basis. An 

enterprise may consist of one establishment, or it may be made up of multiple establishments. 

Additionally, the FLSA also provides an “individual employee” basis of coverage. If the gross sales or volume 

of business done does not meet the requisite dollar volume of $500,000 annually, employees may still be 

covered if they individually engage in interstate commerce, the production of goods for interstate commerce, or 

in an occupation closely related and directly essential to such production. Interstate commerce includes such 

activities as transacting business via interstate telephone calls, the Internet or the U.S. Mail (such as handling 

insurance claims), ordering or receiving goods from an out-of-state supplier, or handling the accounting or 

bookkeeping for such activities. 

Requirements 

Covered nonexempt employees are entitled to be paid at least the federal minimum wage as well as overtime at 

time and one-half their regular rate of pay for all hours worked over 40 in a workweek. (This may not apply to 

certain executive, administrative, and professional employees, including computer professionals and outside 

sales, as provided in Regulations 29 CFR 541). 

The FLSA requires employers to keep records of wages, hours, and other items, as specified in the 

recordkeeping regulations. With respect to an employee subject to both minimum wage and overtime

provisions, records must be kept as prescribed by Regulations 29 CFR 516. Records required for exempt 

employees differ from those for non-exempt workers. 

The FLSA also contains youth employment provisions regulating the employment of minors under the age of 18 

in covered work, as well as recordkeeping requirements. Additional information on the youth employment 

provisions is available at www.youthrules.dol.gov. 

 

FS 64

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Typical Problems 

Hours Worked: Covered employees must be paid for all hours worked in a workweek. In general, “hours 

worked” includes all time an employee must be on duty, or on the employer's premises or at any other 

prescribed place of work, from the beginning of the first principal activity of the workday to the end of the last 

principal activity of the workday. Also included is any additional time the employee is allowed (i.e., suffered or 

permitted) to work. An example of the first principal activity of the day for agents/specialists/representatives 

working in call centers includes starting the computer to download work instructions, computer applications, 

and work-related emails. 

Rest and Meal Periods: Rest periods of short duration, usually 20 minutes or less, are common in the industry 

(and promote employee efficiency), and must be counted as hours worked. Bona fide meal periods (typically 30 

minutes or more) generally need not be compensated as work time as long as the employee is relieved from 

duty for the purpose of eating a regular meal. 

Recordkeeping: A daily and weekly record of all hours worked, including time spent in pre-shift and post-shift 

job-related activities, must be kept. 

Overtime: Earnings may be determined on an hourly, salary, commission, or some other basis, but in all such 

cases the overtime pay due must be computed on the basis of the regular hourly rate derived from all such 

earnings. This is calculated by dividing the total pay (except for certain statutory exclusions) in any workweek 

by the total number of hours actually worked. See Regulations 29 CFR 778. 

Salaried Employees: A salary, by itself, does not exempt employees from the minimum wage or from overtime. 

Whether employees are exempt from minimum wage and/or overtime depends on their job duties and 

responsibilities as well as the salary paid. Sometimes, in call centers, salaried employees do not meet all the 

requirements specified by the regulations to be considered as exempt. Regulations 29 CFR 541 contain a 

discussion of the requirements for several exemptions under the FLSA (i.e., executive, administrative, and 

professional employees – including computer professionals, and outside sales persons). 

Where to Obtain Additional Information 

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov

and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-

4USWAGE (1-866-487-9243). 

This publication is for general information and is not to be considered in the same light as official statements of 

position contained in the regulations. 

U.S. Department of Labor

Frances Perkins Building 

200 Constitution Avenue, NW 

Washington, DC 20210

1-866-4-USWAGE

 TTY: 1-866-487-9243

Contact Us

Case 2:20-cv-14207-DMM Document 1 Entered on FLSD Docket 06/24/2020 Page 26 of 33
EXHIBIT B

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EXHIBIT C

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1

U.S. Department of Labor

Wage and Hour Division

(December 2019)

Fact Sheet #56C: Bonuses under the Fair Labor Standards Act (FLSA)

This fact sheet provides general information regarding bonuses and the regular rate of pay under the 

FLSA for non-exempt employees. For information regarding nondiscretionary bonuses and employees 

employed as executive, administrative, professional, or outside sales employees, who are exempt from 

the FLSA’s minimum wage and overtime requirements, see Fact Sheet #17U.

The FLSA requires that most employees in the United States be paid at least the federal minimum wage

for all hours worked and overtime pay at not less than time and one-half the regular rate of pay for all 

hours worked over 40 hours in a workweek. Fact Sheet #22 provides general information about 

determining hours worked. 

The amount of overtime pay due to an employee is based on the employee’s regular rate of pay and the 

number of hours worked in a workweek regardless of whether the employee is paid on a piece rate, day 

rate, commission, or a salary basis. Fact Sheet #23 provides additional information regarding overtime 

pay.

A bonus is a payment made in addition to the employee’s regular earnings. Under the FLSA, all 

compensation for hours worked, services rendered, or performance is included in the regular rate of pay. 

The Act provides an exhaustive list of payments that may be excluded from the regular rate of pay. 

Specifically, 29 U.S.C. §§ 207(e)(1) and (3) contain statutory provisions which address the excludability 

of certain bonuses. Unless specifically noted, payments that are excluded from the regular rate may not 

be credited towards overtime compensation due under the FLSA. Information regarding additional 

exclusions from the regular rate is available in Fact Sheet #56A.

Discretionary Bonuses

Discretionary bonuses are excludable from the regular rate of pay. A bonus is discretionary only if all the 

statutory requirements are met: 

• The employer has the sole discretion, until at or near the end of the period that corresponds to the 

bonus, to determine whether to pay the bonus; 

• The employer has the sole discretion, until at or near the end of the period that corresponds to the 

bonus, to determine the amount of the bonus; and 

• The bonus payment is not made according to any prior contract, agreement, or promise causing an 

employee to expect such payments regularly. 

Examples of some common bonuses that may be excludable discretionary bonuses if they meet the statutory 

requirements include:

• Bonuses for overcoming a challenging or stressful situation;

• Bonuses to employees who made unique or extraordinary efforts not awarded according to preestablished criteria;

• Employee-of-the-month bonuses;

• Severance bonuses; and

Case 2:20-cv-14207-DMM Document 1 Entered on FLSD Docket 06/24/2020 Page 30 of 33
2

• Referral bonuses to employees not primarily engaged in recruiting activities (subject to additional 

criteria).

1

The label assigned to the bonus and the reason for the bonus do not conclusively determine whether the 

bonus is discretionary. While a bonus may be labeled discretionary, if it does not comply with the provisions 

of the statute, then the bonus is not an excludable discretionary bonus. The determination must be made on a 

case-by-case basis depending on the specific circumstances.

A discretionary bonus may not be credited towards overtime compensation due under the FLSA.

Nondiscretionary Bonuses

A nondiscretionary bonus is a bonus that fails to meet the statutory requirements of a discretionary bonus.

Nondiscretionary bonuses are included in the regular rate of pay, unless they qualify as excludable under 

another statutory provision (see below). 

Examples of nondiscretionary bonuses that must be included in the regular rate include:

• Bonuses based on a predetermined formula, such as individual or group production bonuses;

• Bonuses for quality and accuracy of work; 

• Bonuses announced to employees to induce them to work more efficiently; 

• Attendance bonuses; and

• Safety bonuses (i.e., number of days without safety incidents). 

Such bonuses are nondiscretionary because the employees know about and expect the bonus. The 

understanding of how an employee earns one may lead to an expectation to receive the bonus regularly. The 

fact that the employer has the option not to pay the promised bonus does not make the bonus discretionary.

Gifts and payments in the nature of gifts on special occasions

Sums paid as gifts and payments in the nature of gifts made on holidays or on other special occasions as a 

reward for service may be excluded from the regular rate, provided the amounts of the gifts (or payments) 

are not measured by or dependent on hours worked, production, or efficiency. 

 

Certain longevity bonuses are excludable from the regular rate as gifts when given as a reward for service or 

tenure and provided the bonus payments are not made pursuant to a collective bargaining agreement or a city 

ordinance or policy.

2

Sign-on bonuses given to employees with or without clawback provisions may be excluded as gifts or may 

be excluded under 29 U.S.C. § 207(e)(2) as other payments that are not compensation for hours of 

employment, or otherwise tied to quality or quantity of work performed. However, sign-on bonuses paid 

pursuant to a CBA, ordinance, or policy with a clawback provision may not be excluded as a gift and must 

be included in the regular rate.

 1 Referral bonuses may be discretionary, provided the following criteria are met: (1) employee participation is strictly voluntary; 

(2) the employee’s recruitment efforts do not involve significant time; and (3) the activity is limited to after-hours solicitation done 

only among friends, relatives, neighbors and acquaintances as part of the employee’s social affairs.

2 Like all excludable gifts, a longevity or sign-on bonus is an excludable gift only if the bonus payment is not paid pursuant to a 

contract and is not so substantial that it can be assumed that employees consider it a part of the wages for which they work.

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3

Calculating Overtime Pay Based on the Regular Rate

Overtime pay is calculated based only on payments to the employee that are required to be included in the 

regular rate of pay. The following steps can be used to calculate the regular rate of pay and overtime 

compensation due when the employee is paid on an hourly, piece rate, day rate, job rate, commission, or 

salary basis.

Step 1: Total compensation for the week (except the statutory exclusions) ÷ Total hours worked in 

the week = Regular Rate per hour for the week (must be at least the federal minimum wage)

Step 2: Regular Rate x (.5) = Half-time premium for each overtime hour (note the straight time for 

the overtime hours is included in Step 1)

Step 3: Half-time premium pay rate x Overtime hours = Overtime compensation due

Example A: Nondiscretionary bonus

A non-exempt employee is paid $10.00 per hour and receives a $50.00 bonus in a particular week 

that was promised for helping to produce a special order for a customer two weeks earlier than 

previously scheduled. The employee worked 43 hours that week. The following is an example of 

how to compute overtime pay based on the employee’s regular rate: 

$10.00 per hour x 43hours = $430.00 (total compensation for straight time) 

$430.00 + $50.00 (bonus) = $480.00 (total compensation) 

$480.00 ÷ 43 hours = $11.16 (regular rate) 

$11.16 x .5 = $5.58 (half time premium pay rate)

$5.58 x 3 overtime hours = $16.74 (overtime pay due)

$480.00 + $16.74 = $496.74. (total due)

Example B: Shift differential plus nondiscretionary bonus

A non-exempt employee is paid $15.00 per hour plus an evening shift differential of $1.00 per hour 

for all hours worked during an evening shift. The employee worked 45 hours, 30 of which were 

during evening shifts, in a week. The employee also earned a $100.00 bonus that week that was 

promised for helping to produce a special order for a customer two weeks earlier than previously 

scheduled. The following is an example of how to compute overtime pay based on the employee’s 

regular rate:

$15 per hour x 45 hours = $675 (compensation for straight time at $15 hourly rate)

$1.00 x 30 hours = $30 (shift differential for the evening shifts)

$675 + $30 (shift differential) + $100 (bonus) = $805 (total compensation)

$805 ÷ 45 = $17.89 (regular rate)

$17.89 x .5 = $8.95 (half time premium pay rate)

$8.95 x 5 overtime hours = $44.75 (overtime pay due)

$805 + $44.75 = $849.75 (total due)

Example C: Nondiscretionary bonus and an excludable discretionary bonus

A non-exempt employee is paid $10.00 per hour and receives a $50.00 bonus that was promised in a 

particular week for helping to produce a special order for a customer two weeks earlier than 

previously scheduled. The employee also receives a $25.00 on-the-spot bonus that week (because it 

was not preannounced to the employee, it is an excludable discretionary bonus). The employee 

worked 43 hours that week. The following is an example of how to compute overtime pay based on 

the employee’s regular rate: 

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4

$10.00 per hour x 43 hours = $430.00 (total compensation for straight time)

$430.00 + $50.00 (excludes $25.00 discretionary bonus) = $480.00 (total compensation)

$480.00 ÷ 43 hours = $11.16 (regular rate)

$11.16 x .5 = $5.58 (half time premium pay rate)

$5.58 x 3 overtime hours = $16.74 (overtime pay due)

$480.00 + $16.74 +$25.00 (discretionary bonus) = $521.74 (total due)

Where to Obtain Additional Information

For additional information, visit our Wage and Hour Division Website: 

http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 

a.m. to 5 p.m. in your time zone, 1-866- 4USWAGE (1-866-487-9243).

When the state laws differ from the federal FLSA, an employer must comply with the standard most

protective to employees. Links to your state labor department can be found at 

https://www.dol.gov/agencies/whd/state/contacts.

The contents of this document do not have the force and effect of law and are not meant to bind the public in 

any way. This document is intended only to provide clarity to the public regarding existing requirements 

under the law or agency policies.

U.S. Department of Labor

Frances Perkins Building

200 Constitution Avenue, 

NW Washington, DC 20210

1-866-4-USWAGE

TTY: 1-866-487-9243

Contact Us

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