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Dante Hurtado, et al v. Prime Comms Retail, LLC

U.S.D.C. (W.D. Tex.) No. 5:20-cv-627

Original Complaint—Collective Action

IN THE UNITED STATES DISTRICT COURT

WESTER DISTRICT OF TEXAS

SAN ANTONIO DIVISION

DANTE HURTADO, Each Individually and 

on Behalf of All Others Similarly Situated

PLAINTIFF

vs. No. 5:20-cv-627

PRIME COMMS RETAIL, LLC DEFENDANT

ORIGINAL COMPLAINT—COLLECTIVE ACTION

COMES NOW Plaintiff Dante Hurtado (“Plaintiff”), individually and on behalf of all 

others similarly situated, by and through his attorney Josh Sanford of Sanford Law Firm, 

PLLC, and for his Original Complaint—Collective Action against Defendant Prime Comms 

Retail, LLC (“Defendant”), and in support thereof he does hereby state and allege as 

follows:

I. PRELIMINARY STATEMENTS

1. This is a collective action brought by Plaintiff, individually and on behalf of 

all other similarly situated hourly-paid workers employed by Defendant at any time within 

a three-year period preceding the filing of this Complaint. 

2. Plaintiff brings this action under the Fair Labor Standards Act, 29 U.S.C. § 

201, et seq. (“FLSA”), for declaratory judgment, monetary damages, liquidated damages, 

prejudgment interest, and costs, including reasonable attorneys’ fees, as a result of 

Defendant’s failure to pay Plaintiff and other hourly-paid workers lawful overtime 

compensation for hours worked in excess of forty (40) hours per week. 

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Dante Hurtado, et al v. Prime Comms Retail, LLC

U.S.D.C. (W.D. Tex.) No. 5:20-cv-627

Original Complaint—Collective Action

3. Upon information and belief, for at least three (3) years prior to the filing of 

this Complaint, Defendant has willfully and intentionally committed violations of the FLSA 

as described, infra.

II. JURISDICTION AND VENUE

4. The United States District Court for the Western District of Texas has subject 

matter jurisdiction over this suit under the provisions of 28 U.S.C. § 1331 because this 

suit raises federal questions under the FLSA.

5. The acts complained of herein were committed and had their principal effect 

within the San Antonio Division of the Western District of Texas; therefore, venue is proper 

within this District pursuant to 28 U.S.C. § 1391.

6. Defendant does business in this District and a substantial part of the events 

alleged herein occurred in this District.

7. The witnesses to the wage violations herein reside in this District. 

8. The records and other documents related to the payroll practices that

Plaintiff challenges are located in this District.

III. THE PARTIES

9. Plaintiff is a resident and citizen of Kendall County. 

10. Defendant is a foreign, limited liability company registered to do business in 

Texas. 

11. Defendant’s registered agent for service is Capitol Corporate Services, Inc., 

206 East 9th Street, Suite 1300, Austin, Texas 78701.

12. Defendant maintains a website at https://www.primecomms.com/.

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Dante Hurtado, et al v. Prime Comms Retail, LLC

U.S.D.C. (W.D. Tex.) No. 5:20-cv-627

Original Complaint—Collective Action

IV. FACTUAL ALLEGATIONS

13. Plaintiff repeats and re-alleges all the preceding paragraphs of this 

Complaint as if fully set forth in this section.

14. Defendant is an “employer” within the meanings set forth in the FLSA, and 

was, at all times relevant to the allegations in this Complaint, Plaintiff’s employer, as well 

as the employer of the members of the collective.

15. Defendant is an authorized retailer for AT&T.

16. Defendant has locations throughout the United States, including Texas.

17. Defendant employs two or more individuals who engage in interstate 

commerce or business transactions, or who produce goods to be transported or sold in 

interstate commerce, or who handle, sell, or otherwise work with goods or materials that 

have been moved in or produced for interstate commerce.

18. Defendant’s annual gross volume of sales made or business done is not 

less than $500,000.00 (exclusive of excise taxes at the retail level that are separately 

stated) for each of the three years preceding the filing of this Complaint.

19. Plaintiff was employed by Defendant within the three (3) years preceding 

the filing of this Original Complaint.

20. Specifically, Plaintiff was employed by Defendant from May of 2018 until 

May of 2020 as a retail sales consultant.

21. As a retail sales consultant, Plaintiff was paid an hourly rate and 

commissions. 

22. At all material times herein, Plaintiff has been entitled to the rights, 

protection and benefits provided under the FLSA.

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Dante Hurtado, et al v. Prime Comms Retail, LLC

U.S.D.C. (W.D. Tex.) No. 5:20-cv-627

Original Complaint—Collective Action

23. At all relevant times herein, Defendant directly hired Plaintiff and similarly 

situated employees to work in its stores, paid them wages and benefits, controlled their

work schedules, duties, protocols, applications, assignments and employment conditions, 

and kept at least some records regarding their employment.

24. Plaintiff and similarly situated hourly-paid workers received commissions as 

part of their regular pay from Defendant.

25. Plaintiff and similarly situated hourly-paid workers regularly worked in 

excess of forty (40) hours per week throughout their tenure with Defendant.

26. Defendant paid Plaintiff and similarly situated hourly-paid workers 1.5x their 

base hourly rate for each hour they worked over forty (40) in a workweek.

27. Defendant did not include the commissions that were paid to Plaintiff and 

similarly situated hourly-paid workers in their regular rates when calculating their overtime 

pay.

28. Section 778.117 of Title 29 of the Code of Federal Regulations states that 

commissions “are payments for hours worked and must be included in the regular rate,”

regardless of the basis for them or their frequency.

29. Defendant violated the FLSA by not including the commissions paid to

Plaintiff and similarly situated hourly-paid workers in their regular rate when calculating 

their overtime pay.

30. Defendant failed to pay Plaintiff and all others similarly situated a sufficient 

overtime premium for all hours worked over forty each week. 

31. Defendant’s pay practices were the same for all hourly workers who 

received commissions. 

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Dante Hurtado, et al v. Prime Comms Retail, LLC

U.S.D.C. (W.D. Tex.) No. 5:20-cv-627

Original Complaint—Collective Action

32. Upon information and belief, the pay practices that violate the FLSA alleged

herein were the same at all of Defendant’s facilities because the policy was a centralized 

human resources policy implemented uniformly from the corporate headquarters.

33. Plaintiff was often directed to clock out for his break but to continue working.

34. Because Plaintiff was required to work through his break, Plaintiff worked 

approximately two to four hours off the clock each week. 

35. Defendant knew or showed reckless disregard for whether the way it paid 

Plaintiff and other hourly-paid workers violated the FLSA. 

V. REPRESENTATIVE ACTION ALLEGATIONS

36. Plaintiff repeats and re-alleges all the preceding paragraphs of this 

Complaint as if fully set forth in this section.

37. Plaintiff brings this claim for relief for violation of the FLSA as a collective 

action pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b).

38. Plaintiff brings his FLSA claim on behalf of all hourly-paid workers employed 

by Defendant at any time within the applicable statute of limitations period, who were 

classified by Defendant as non-exempt from the overtime requirements of the FLSA and 

who are entitled to payment of the following types of damages:

A. Payment for all hours worked, including payment of a lawful overtime 

premium for all hours worked for Defendant in excess of forty (40) hours in a workweek; 

B. Liquidated damages; and

C. Attorneys’ fees and costs.

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Dante Hurtado, et al v. Prime Comms Retail, LLC

U.S.D.C. (W.D. Tex.) No. 5:20-cv-627

Original Complaint—Collective Action

39. The relevant time period dates back three years from the date on which 

Plaintiff’s Original Complaint—Collective Action was filed and continues forward through 

the date of judgment pursuant to 29 U.S.C. § 255(a).

40. The members of the proposed FLSA Collective are similarly situated in that 

they share these traits:

A. They were classified by Defendant as non-exempt from the overtime 

requirements of the FLSA;

B. They were paid hourly rates;

C. They received commissions;

D. They worked over forty hours in at least one week in which they earned 

commission;

E. They were subject to Defendant’s common policy of improperly calculating 

overtime pay for hours worked over forty (40) per work week; and

F. They had the same or substantially similar job duties and pay provisions.

41. Plaintiff is unable to state the exact number of the potential members of the 

FLSA Collective but believes that the group exceeds five hundred (500) persons.

42. Defendant can readily identify the members of the Section 16(b) Collective. 

The names, physical addresses, electronic mailing addresses and phone numbers of the 

FLSA collective action plaintiffs are available from Defendant, and a Court-approved 

Notice should be provided to the FLSA collective action plaintiffs via first class mail, email 

and text message to their last known physical and electronic mailing addresses and cell 

phone numbers as soon as possible, together with other documents and information 

descriptive of Plaintiff’s FLSA claim.

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Dante Hurtado, et al v. Prime Comms Retail, LLC

U.S.D.C. (W.D. Tex.) No. 5:20-cv-627

Original Complaint—Collective Action

VI. FIRST CLAIM FOR RELIEF

(Individual Claim for Violation of the FLSA)

43. Plaintiff repeats and re-alleges all the preceding paragraphs of this 

Complaint as if fully set forth in this section.

44. 29 U.S.C. § 207 requires employers to pay employees one and one-half

(1.5) times the employee’s regular rate for all hours that the employee works in excess of 

forty (40) per week. 29 U.S.C.S. § 207.

45. Defendant classified Plaintiff as non-exempt from the requirements of the 

FLSA.

46. Defendant violated Section 778.117 of Title 29 of the CFR by not including 

commissions paid to Plaintiff in his regular rates when calculating his overtime pay.

47. Defendant failed to pay Plaintiff an overtime rate of one and one-half times 

their regular rate for all hours worked in excess of forty hours per week. 

48. Defendant failed to pay Plaintiff for all hours worked. 

49. Defendant’s conduct and practice, as described above, has been and is 

willful, intentional, unreasonable, arbitrary and in bad faith.

50. By reason of the unlawful acts alleged herein, Defendant is liable to Plaintiff 

for monetary damages, liquidated damages and costs, including reasonable attorney’s 

fees provided by the FLSA for all violations which occurred within the three (3) years 

preceding the filing of Plaintiff’s initial complaint, plus periods of equitable tolling. 

51. Defendant has not acted in good faith nor with reasonable grounds to 

believe its actions and omissions were not a violation of the FLSA, and, as a result thereof, 

Plaintiff is entitled to recover an award of liquidated damages in an amount equal to the 

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Dante Hurtado, et al v. Prime Comms Retail, LLC

U.S.D.C. (W.D. Tex.) No. 5:20-cv-627

Original Complaint—Collective Action

amount of unpaid overtime premium pay described above pursuant to Section 16(b) of 

the FLSA, 29 U.S.C. § 216(b).

52. Alternatively, should the Court find that Defendant acted in good faith in 

failing to pay Plaintiff as provided by the FLSA, Plaintiff is entitled to an award of 

prejudgment interest at the applicable legal rate.

VII. SECOND CLAIM FOR RELIEF

(Collective Action Claim for Violation of FLSA)

53. Plaintiff repeats and re-alleges all the preceding paragraphs of this 

Complaint as if fully set forth in this section.

54. Plaintiff brings this collective action claim on behalf of all hourly-paid 

workers employed by Defendant to recover monetary damages owed by Defendant to 

Plaintiff and members of the putative collective for all the overtime compensation for all 

the hours they worked in excess of forty (40) each week. 

55. Plaintiff brings this action on behalf of himself individually and on behalf of

all other similarly situated employees, former and present, who were and/or are affected 

by Defendant’s willful and intentional violation of the FLSA. 

56. 29 U.S.C. § 207 requires employers to pay employees one and one-half 

(1.5) times the employee’s regular rate for all hours that the employee works in excess of 

forty (40) per week. 29 U.S.C.S. § 207.

57. Defendant violated Section 778.117 of Title 29 of the CFR by not including 

all forms of compensation, such as commissions paid to Plaintiff and those similarly 

situated, in their regular rate when calculating their overtime pay.

58. In the past three years, Defendant has employed at least five hundred (500)

hourly-paid workers who also received commission as part of their pay. 

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Dante Hurtado, et al v. Prime Comms Retail, LLC

U.S.D.C. (W.D. Tex.) No. 5:20-cv-627

Original Complaint—Collective Action

59. Like Plaintiff, these hourly-paid employees regularly worked more than forty 

(40) hours in a week. 

60. Defendant failed to pay Plaintiff and the others an overtime rate of one and 

one-half times their regular rate for all hours worked in excess of forty hours per week. 

61. Because these employees are similarly situated to Plaintiff, and are owed 

overtime for the same reasons, the opt-in class may be properly defined as: 

All hourly employees in the past three years who earned 

a commission in connection with work performed in any 

week in which they worked over forty hours.

62. Defendant’s conduct and practice, as described above, has been and is 

willful, intentional, unreasonable, arbitrary and in bad faith.

63. By reason of the unlawful acts alleged in this Complaint, Defendant is liable 

to Plaintiff and all those similarly situated for, and Plaintiff and all those similarly situated

seek, unpaid overtime wages, liquidated damages, and costs, including reasonable 

attorney’s fees as provided by the FLSA.

64. Alternatively, should the Court find that Defendant acted in good faith in 

failing to pay Plaintiff and all those similarly situated as provided by the FLSA, Plaintiff

and the others are entitled to prejudgment interest at the applicable legal rate.

VIII. PRAYER FOR RELIEF

WHEREFORE, premises considered, Plaintiff Dante Hurtado respectfully prays

that Defendant be summoned to appear and to answer herein as follows:

A. That Defendant be required to account to Plaintiff, the collective members 

and the Court for all of the hours worked by Plaintiff and the collective members and all 

monies paid to them;

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Dante Hurtado, et al v. Prime Comms Retail, LLC

U.S.D.C. (W.D. Tex.) No. 5:20-cv-627

Original Complaint—Collective Action

B. A declaratory judgment that Defendant’s practices violate the FLSA, 29 

U.S.C. § 201, et seq., and attendant regulations at 29 C.F.R. § 516, et seq.;

C. Certification of, and proper notice to, together with an opportunity to 

participate in the litigation, all qualifying current and former employees;

D. Judgment for damages for all unpaid overtime compensation under the 

FLSA, 29 U.S.C. § 201, et seq., and attendant regulations at 29 C.F.R. § 516, et seq.;

E. Judgment for liquidated damages pursuant to the FLSA, 29 US.C. § 201, et 

seq., and attendant regulations at 29 C.F.R. § 516, et seq., in an amount equal to all 

unpaid overtime compensation owed to Plaintiff and members of the collective during the 

applicable statutory period;

F. An order directing Defendant to pay Plaintiff and members of the collective 

interest, reasonable attorney’s fees and all costs connected with this action; and

G. Such other and further relief as this Court may deem just and proper.

Respectfully submitted,

DANTE HURTADO, Individually 

and on Behalf of All Others 

Similarly Situated, PLAINTIFF

SANFORD LAW FIRM, PLLC

One Financial Center

650 South Shackleford, Suite 411

Little Rock, Arkansas 72211

Telephone: (501) 221-0088

/s/ Josh Sanford _______

Josh Sanford

Tex. Bar No. 24077858

josh@sanfordlawfirm.com

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