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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

Civil Action No. ________________________

JHON SARMIENTO, Individually and 

on behalf of all others similary situated,

Plaintiff,

vs.

SCHEAR CONSTRUCTION, LLC, a 

Florida Limited Liability Company, 

Defendant.

/

JURY TRIAL DEMANDED

COLLECTIVE ACTION PURSUANT TO 

29 U.S.C. 216(b)

CLASS ACTION PURSUANT TO 

FED.R.CIV.P. 23(b) 

COLLECTIVE/CLASS ACTION COMPLAINT 

Plaintiff, JHON SARMINETO (“Plaintiff” or “SARMIENTO”) brings this action 

individually and on behalf of all others similarly situated (hereinafter “Plaintiff and the Putative 

Class Members” or “Plaintiff and the FLSA Collective Members”), who worked for SCHEAR 

CONSTRUCTION, LLC (“Defendant” or “SCHEAR”), at any time during the last three years

through the final disposition of this matter, to recover compensation, liquidated damages, and 

attorneys’ fees and costs pursuant to the provisions of Sections 207 and 216(b) of the Fair Labor 

Standards Act of 1938, as amended 29 U.S.C. § 216(b), and the Virgin Islands Fair Labor 

Standards Act (“Virgin Islands FLSA”), 24 V.C.I. §1 et. seq. 

Plaintiff’s FLSA claims are asserted as a collective action under Section 16(b) of the 

FLSA while his Virgin Islands FLSA claims are asserted as a class action under Federal Rule of 

Civil Procedure 23(b)(3).

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I.

OVERVIEW

1. Defendant provides construction services throughout the United States and its 

territories, including following natural disasters such as hurricanes and tornados.

2. Defendant has worked on projects in Florida, New York, and the Virgin Islands, 

among other in recent years. 

3. Due to the emergency nature of the work it contracts to do for local, state and 

federal governments, as well as private companies, Defendant demands that its employees, like 

Plaintiff work exorbitant hours, sometimes 70 or more hours in a workweek.

4. Defendant failed to pay Plaintiff and those similarly situated the legally-mandated 

one and one-half times their regular hourly rate for every hour that was worked over eight (8) in 

a day and/or forty (40) in a given workweek and/or for their six or more consecutive days.

5. This lawsuit includes both a collective action pursuant to the Fair Labor Standards 

Act (“FLSA”), 29 U.S.C. §§ 201–19, and a class action pursuant to the laws of the Virgin 

Islands, and Federal Rule of Civil Procedure 23, to recover unpaid wages, unpaid overtime 

wages, and other applicable interest, penalties, costs and fees.

6. Plaintiff and the Putative Class Members are those similarly situated laborers who 

have worked for Defendant, within the relevant statutes of limitations through the final 

disposition of this matter, and have not been paid for the correct amount of overtime in violation 

of the FLSA and the Virgin Islands FLSA.

7. Specifically, Defendant has enforced a uniform company-wide policy wherein it

does not pay overtime premiums as required by law. Rather, all laborers in the defined classes 

are paid hourly, with straight time overtime rather than time and one half for overtime hours. 

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8. Pursuant to its common “no overtime” pay scheme, Defendant failed to pay 

Plaintiff and the Putative Class Members one and one-half times their regular hourly rate for 

each hour worked over 8 in a day or 40 in a week or when they worked six or more consecutive 

days. 

9. Defendant’s company-wide policy has caused Plaintiff and the Putative Class

Members to have hours worked that were not properly compensated.

10. Although Plaintiff and the Putative Class Members have routinely worked hours 

for which the FLSA and Virgin Islands FLSA require payment of overtime premiums, Plaintiff

and the Putative Class Members have not been paid overtime of at least one and one-half their 

regular rates for all hours worked for such hours.

11. Defendant has knowingly and deliberately failed to compensate Plaintiff and the 

Putative Class Members the proper amount of overtime on a routine and regular basis in the last 

three years.

12. Plaintiff and the Putative Class Members seek to recover all unpaid overtime, 

liquidated damages, and other damages owed under the FLSA as a collective action pursuant to 

29 U.S.C. § 216(b), and to recover all damages owed under the Virgin Islands FLSA, as a class 

action pursuant to Federal Rule of Civil Procedure 23.

13. Plaintiff prays that all similarly situated workers (FLSA Collective Members) be 

notified of the pendency of this action to apprise them of their rights and provide them an 

opportunity to opt-in to this lawsuit. 

14. Plaintiff also prays that the Virgin Islands Rule 23 class be certified as defined 

herein, and that Plaintiff Sarmiento designated herein be named as Class Representative for the 

Virgin Islands FLSA class.

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II.

THE PARTIES

15. Plaintiff was employed by Defendant in the Virgin Islands during the relevant 

time period as a laborer.

16. Plaintiff did not receive the correct amount of overtime compensation for all 

hours worked in excess of eight (8) hours per day or forty (40) hours per workweek or when he 

worked six or more consecutive days.

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17. The FLSA Collective Members are those current and former laborer employees

who were employed by Defendant at any time during the last three years through the final 

disposition of this matter, and have been subjected to the same illegal pay system under which 

Plaintiff worked i.e. straight-time pay for overtime rather than time and one half.

18. The Virgin Islands FLSA Class Members are current and former laborer 

employees who were employed by Defendant in the Virgin Islands at any time from the three 

years prior to the filing of this Complaint through the final disposition of this matter, and have 

been subjected to the same illegal pay system under which Plaintiff worked and was paid, 

namely Defendant’s straight-time overtime scheme.

19. Defendant SCHEAR is a Florida limited liability company, with its principal 

address located in Oakland Park, Florida. 

20. Defendant simultaneously serves customers throughout the United States, with 

work operations in multiple states and/or territories at any given time.

21. Defendant had gross annual revenues in excess of $500,000.00 per annum in all 

years relevant to the instant claims.

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 The written consent of Jhon Sarmiento is attached as EXHIBIT A.

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22. Defendant is a covered employer under the FLSA and acted as such in relation to 

Plaintiff and the Putative Class Members.

23. The unlawful acts alleged in this Complaint were committed by Defendant and/or 

Defendant’s officers, partners, agents, employees, or representatives, while actively engaged in 

the management of Defendant’s business or affairs and with the authorization of the Defendant.

III.

JURISDICTION & VENUE

26. This Court has federal question jurisdiction over the FLSA claims pursuant to 28 

U.S.C. § 1331 as this is an action arising under 29 U.S.C. §§ 201–19.

27. This Court has supplemental jurisdiction over the Virgin Islands FLSA claims

pursuant to 28 U.S.C. § 1367.

28. Defendant is subject to the general jurisdiction of this Court with regard to all 

claims herein, because it is a Florida company and maintains its principal place of business 

within this District.

29. At all times relevant hereto, Plaintiff was a citizen of the State of Florida.

30. A significant portion of the acts and omissions complained of occurred within this 

District, because they arose from Defendant’s decision and failure to pay legally mandated 

overtime to its workers as complained of herein.

31. Thus, Defendant is subject to the specific jurisdiction of this Court with regard to 

all claims herein.

32. Venue is proper in this District because Defendant’s maintain their principal place 

of business in this District and the acts and omissions complained of herein occurred in this 

District.

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IV.

ADDITIONAL FACTS

33. From May 2019 until December 2019, Plaintiff was employed by Defendant as a 

laborer in the Virgin Islands.

34. Throughout the time Plaintiff was employed by Defendant, Defendant paid 

Plaintiff and those similarly situated “straight time” or their regular hourly rates, without 

overtime premiums, when they worked in excess of 8 hours per day and/or 40 hours per week

and/or worked six or more consecutive days.

35. Upon information and belief, regardless of the location of the job/contracts on 

which Defendant employed laborers within the relevant time periods, Defendant paid all laborers 

under the same scheme, namely it paid laborers either day rates only or paid them solely their 

regular hourly rates (“straight time”), without overtime premiums when they worked in excess of 

40 hours per week, in excess of 8 hours per day, or when they worked six or more consecutive 

days.

36. Plaintiff and the putative class members have not been properly compensated for 

all the hours they worked for Defendant as a result of Defendant’s corporate policy and practice 

of whereby it fails to pay legally-mandated overtime compensation.

37. Defendant has maintained these illegal corporate policies for at least 10 years and 

has been repeatedly sued regarding the same FLSA violations alleged here. See, e.g., Eagle v. 

Schear Construction, LLC, et al., 2:2013cv00797, D.E. 1 (M.D. Fla. Nov. 13, 2013); Perales v. 

Schear Construction, LLC2, et al., 2:2009cv00669, D.E. 1 (M.D. Fla. Oct. 8, 2009).

38. Defendant has settled each of the prior lawsuits, but has persisted in willfully and 

flagrantly violating the FLSA nonetheless.

 2 It appears Defendant was incorrectly sued as “Schear Corporation,” in that case, but the publicly available information 

makes clear the lawsuit arose from the plaintiffs’ employment with this Defendant.

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39. As a result of Defendant’s corporate policy Plaintiff and the putative class 

members were not properly compensated for all hours worked, including all worked in excess of

eight (8) per day or forty (40) in a workweek, or when the worked six or more workdays within a 

workweek, as required by the FLSA and Virgin Islands FLSA.

40. Defendant has employed other individuals who perform(ed) the same or similar 

job duties under the same pay provisions as Plaintiff.

41. Defendant is aware of its obligation to pay overtime for all hours worked and the 

proper amount of overtime for all hours worked in excess of eight (8) per day and forty (40) each 

week to Plaintiff and the putative class members, but has failed to do so.

42. Because Defendant did not pay Plaintiff and the putative class members time and 

a half for all hours worked in excess of eight (8) per day and/or forty (40) in a workweek and/or 

when he worked six or more consecutive days, Defendant’s pay policies and practices violate the 

FLSA as well as the Virgin Islands FLSA. 

C. COLLECTIVE ACTION ALLEGATIONS

43. All previous paragraphs are incorporated as though fully set forth herein.

44. Pursuant to 29 U.S.C. § 216(b), this is a collective action filed on behalf of all of 

Defendant’s hourly-paid employees hired to perform work anywhere in the United States or its 

territories within the last three years, who have been similarly situated to Plaintiff with regard to 

the manner in which they were paid.

45. Other similarly situated employees of Defendant have been victimized by 

Defendant’s patterns, practices, and policies, which are in willful violation of the FLSA.

46. The FLSA Collective Members are defined as:

ALL HOURLY PAID LABORER EMPLOYEES WHO WERE 

EMPLOYED BY SCHEAR, AT ANY TIME FROM JUNE 26, 2017 

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THROUGH THE FINAL DISPOSITION OF THIS MATTER ANYWHERE 

IN THE UNITED STATES OR ITS TERRITORIES. (“FLSA Collective 

Members”).

47. Defendant’s failure to pay Plaintiff and the FLSA Collective Members overtime 

compensation at the rates required by the FLSA, results from generally applicable policies and 

practices of Defendant—applicable to all hourly paid employees—and does not depend on the 

personal circumstances of Plaintiff or the FLSA Collective Members.

48. Plaintiff’s experiences are typical of the experiences of the FLSA Collective 

Members.

49. All of the FLSA Collective Members—regardless of their specific job titles, 

precise job requirements, rates of pay, or job locations—are entitled to be paid proper overtime 

premiums for all hours worked in excess of forty (40) hours per workweek. 

50. Although the amount of damages may be individual in character, there is no 

detraction from the common nucleus of liability facts.

51. Absent a collective action, many members of the proposed FLSA collective likely 

will not obtain redress of their injuries and Defendant will retain the proceeds of its violations.

52. Moreover, individual litigation would be unduly burdensome to the judicial 

system. Concentrating the litigation in one forum will promote judicial economy and parity 

among the claims of the individual members of the classes and provide for judicial consistency.

53. Accordingly, the FLSA collective of similarly situated plaintiffs should be 

conditionally certified as defined as in Paragraph 46 and notice should be promptly sent. 

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D. CLASS ACTION ALLEGATIONS

VIRGIN ISLANDS FLSA CLASS

54. Plaintiff brings his Virgin Islands FLSA Claims as class action pursuant to 

Federal Rule of Civil Procedure 23 on behalf of all similarly situated individuals employed by 

the Defendant in the Virgin Islands since June 2017.

55. Class action treatment of Plaintiff and the Virgin Island FLSA Class Members’ 

claims is appropriate because, as alleged below, all of Federal Rule of Civil Procedure 23’s class 

action requisites are satisfied.

56. The number of Virgin Islands FLSA Class Members is so numerous that joinder 

of all class members is impracticable.

57. Plaintiff is a member of the Virgin Islands FLSA Class, his claims are typical of 

the claims of the other Virgin Islands FLSA Class Members, and he has no interests that are 

antagonistic to or in conflict with the interests of the other Virgin Islands FLSA Class Members.

58. Plaintiff and his counsel will fairly and adequately represent the Virgin Islands 

FLSA Class Members and their interests.

59. Class certification is appropriate under Federal Rule of Civil Procedure 23(b)(3) 

because common questions of law and fact predominate over questions affecting only individual 

class members and because a class action is superior to other available methods for the fair and 

efficient adjudication of this litigation. Specifically, some of the questions of law common to the 

Class that predominate over individual questions affecting solely individual members, include, 

but are not limited to the following:

a. Whether paying “straight time” with no overtime premium compensation 

violates Virgin Islands FLSA Law; 

b. Whether Defendant violated Virgin Islands FLSA law by failing to pay 

overtime wages to the Plaintiff and Virgin Islands FLSA Class Members;

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c. Whether Plaintiff and the Virgin Islands FLSA Class Members are entitled 

to overtime pay; 

d. Whether Defendant made and maintained accurate records of all time 

worked by Plaintiff and the Virgin Islands FLSA Class Members;

e. Whether Plaintiff and the Virgin Islands FLSA Class Members are entitled 

to liquidated damages and/or prejudgment interest.

60. Accordingly, the Virgin Islands FLSA Class should be certified as:

ALL HOURLY PAID EMPLOYEES WHO WERE EMPLOYED BY 

SCHEAR IN THE VIRGIN ISLANDS, AT ANY TIME FROM JUNE 2017 

THROUGH THE FINAL DISPOSITION OF THIS MATTER. (“Virgin 

Islands FLSA Class” or “Virgin Islands FLSA Class Members”).

CAUSES OF ACTION

COUNT ONE

(Collective Action Alleging FLSA Violations)

61. Defendant violated provisions of Sections 7 and 15 of the FLSA, 29 U.S.C. 

§§ 207 and 215(a)(2), by employing individuals in an enterprise engaged in commerce or in the 

production of goods for commerce within the meaning of the FLSA for workweeks longer than 

forty (40) hours without compensating such non-exempt employees for all of the hours they 

worked in excess of forty (40) hours per week at rates at least one and one-half times the regular 

rates for which they were employed.

62. Defendant knowingly, willfully, and with reckless disregard carried out its illegal 

pattern of failing to pay Plaintiff and other similarly situated employees the proper amount of 

overtime compensation for all hours worked over forty each week. 29 U.S.C. § 255(a).

63. Defendant knew or should have known its pay practices were in violation of the 

FLSA, and was specifically placed on notice of the illegality of its practices by virtue of at least 

two prior similar lawsuits.

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64. Defendant is comprised of sophisticated parties and is a sophisticated employer, 

and therefore knew (or should have known) its pay policies were in violation of the FLSA.

65. Defendant’s violations of the FLSA were committed in reckless disregard of its

obligations thereunder and its obligations under the various contracts under which it performed 

the subject work.

66. Plaintiff and the FLSA Collective Members, on the other hand, are (and were) 

unsophisticated employees who trusted Defendant to pay them according to the law.

67. Accordingly, Plaintiff and the FLSA Collective Members are entitled to be paid 

overtime wages for all hours worked in excess of forty (40) hours per workweek pursuant to the 

FLSA in an amount equal to one-and-a-half times their regular rate of pay, plus liquidated 

damages, attorneys’ fees and costs. 

COUNT TWO

(Virgin Islands FLSA Class Action)

68. Claimant hereby incorporates and realleges the allegations contained in 

paragraphs 1 through 42 and 54 through 60, above.

69. Sarmiento, on behalf of himself and the Virgin Islands FLSA

Class, further brings this action pursuant to Fed. R. Civ. P. 23(b)(3) for back wages, interest and 

treble damages under 24 V.C.I. §1 et. seq. 

70. Defendant violated 24 V.C.I. §20(a)(2) by failing to pay Plaintiff and those 

similarly situated one and one-half times his regular rate of pay for hours worked in excess of 

forty during each workweek.

71. Defendant violated 24 V.C.I. §20(a)(3) by failing to pay Plaintiff and those 

similarly situated one and one-half times his regular rate of pay for hours worked in excess of 

eight during each workday.

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72. Defendant violated 24 V.C.I. §20(a)(1) by failing to by failing to pay Plaintiff and 

those similarly situated one and one-half times his regular rate of pay when he worked more than 

5 consecutive days.

73. Defendant’s violations of the Virgin Islands FLSA were repeated, willful and 

intentional.

74. Plaintiff has been damaged by said violations of the Virgin Islands FLSA.

75. Pursuant to Plaintiff and the Virgin Islands FLSA Class for their unpaid overtime

compensation, plus their attorneys' fees and costs.

RELIEF SOUGHT

76. Plaintiff respectfully prays for judgment against Defendant as follows:

a. For an Order certifying the FLSA Collective and social security numbers 

of all putative collective action members;

b. For an Order approving the form and content of a notice to be sent to all 

putative FLSA Collective Members advising them of the pendency of this litigation and of their 

rights with respect thereto;

c. For an Order pursuant to section 16(b) of the FLSA finding the Defendant

liable for unpaid back wages due to Plaintiff (and those FLSA Collective Members who have 

joined in the suit), civil penalties, and for liquidated damages equal in amount to the unpaid 

compensation found due to Plaintiff (and those FLSA Collective Members who have joined in 

the suit);

d. For an Order certifying the Virgin Islands FLSA Class pursuant to 

F.R.C.P. 23, designating Plaintiff as the Class Representative of the Virgin Islands FLSA Class, 

and designating undersigned counsel as Class Counsel;

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e. For a Declaratory Judgment that the practices complained of herein are 

unlawful under the FLSA and the Virgin Islands FLSA;

f. For an Injunction against the Defendant and their officers, partners, 

agents, successors, employees, representatives and any and all persons in concert with it, as 

provided by law, from engaging in each of the unlawful practices, policies and patterns set forth 

herein;

g. For an Order pursuant to Virgin Islands FLSA wage laws awarding the 

Plaintiff and the Virgin Islands FLSA Class all damages allowed by law;

h. For an Order awarding the costs and expenses of this action;

i. For an Order awarding attorneys’ fees; 

j. For an Order awarding pre-judgment and post-judgment interest at the 

highest rates allowed by law; 

k. For an Order awarding Plaintiff a service award as permitted by law;

l. For an Order compelling the accounting of the books and records of the 

Defendant, at Defendant’s expense; and

m. For an Order granting such other and further relief as may be necessary 

and appropriate.

Date: June 25, 2020 Respectfully submitted,

By: /s/ Andrew R. Frisch

Andrew R. Frisch, Esq. 

 MORGAN & MORGAN, P.A.

8151 Peters Road, Suite 4000

Plantation, FL 33324

Telephone: (954) WORKERS

Facsimile: (954) 327-3013

Email: afrisch@forthepeople.com

Attorneys for Plaintiff and the Putative Collective and Class 

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