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PHILLIPS DAYES

LAW FIRM

A Professional Corporation

3101 North Central Avenue, Suite 1500

Phoenix, Arizona 85012

TREY DAYES, No. 020805

SEAN DAVIS, No. 030754

PRESTON FLOOD, No. 032764

(602) 288-1610 ext. 301

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Jaime Vidal; Brandon Warmelink; and 

Cory Rodriquez

 Plaintiff,

 vs.

Concrete Finishing, Inc., an Arizona 

corporation,

 Defendant,

Case No.: ________________________

COMPLAINT

Plaintiffs Jaime Vidal, Brandon Warmelink and Cory Rodriquez, for their

Complaint against Defendant, allege as follows:

NATURE OF THE CASE

1. The Fair Labor Standards Act is designed to eliminate “labor conditions 

detrimental to the maintenance of the minimum standard of living necessary for health, 

efficiency and general well-being of workers.” 29 U.S.C. § 202(a). To achieve its goals, 

the FLSA sets minimum wage and overtime pay requirements for covered employers. See 

29 U.S.C. §§ 206(a), 207(a).

Case 2:18-cv-00422-JAT Document 1 Filed 02/06/18 Page 1 of 10
Complaint Page 2

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2. Employers must compensate employees for all work that employers permit 

employees to perform. See 29 C.F.R. § 785.11. In such cases, it is the responsibility of 

employers’ management to ensure that work is not performed if management does not 

desire for such work to be performed. See 29 C.F.R. § 785.13. Employers may not accept 

the benefits of employees performing work without compensating the employees for their 

work. Id.

3. Plaintiffs bring this action against Defendant for unlawful failure to pay 

overtime wages in direct violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et 

seq. (“FLSA”).

4. Defendant had a consistent policy and practice of requiring its employees to 

work well in excess of forty (40) hours per week without paying them time and a half for 

hours worked over forty (40) hours per week.

5. Plaintiffs seek to recover unpaid overtime compensation and an equal amount 

of liquidated damages, including interest thereon, statutory penalties, attorneys’ fees, and 

costs pursuant to 29 U.S.C. § 216(b).

JURISDICTION AND VENUE

6. This Court has jurisdiction over the subject matter and the parties hereto 

pursuant to 29 U.S.C. § 216(b), and 28 U.S.C. § 1331.

7. Venue is proper under 28 U.S.C. § 1391(b) because all of the events or 

omissions giving rise to this matter occurred in this District.

8. The named Defendant, by virtue of their own acts and omissions or by virtue 

of the acts and omissions committed by one or more of their agents, employees or 

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representatives, as described herein, have conducted business or caused events to occur 

within the District of Arizona and, more particularly, within Maricopa County, Arizona, 

as more particularly described herein so as to give rise to both subject matter and 

personal jurisdiction of this Court.

PARTIES

9. At all times material hereto, Plaintiffs were residents of Maricopa County, 

Arizona.

10. At all times material hereto Defendant Concrete Finishing, Inc., is an Arizona 

corporation with a domestic address located in Maricopa County.

FACTUAL BACKGROUND

11. At all relevant times, Plaintiffs were “employees” of Defendant.

12. The provisions set forth in 29 U.S.C. § 207 of the FLSA apply to Defendant.

13. At all relevant times, each of Defendant was and continues to be an 

“employer” as defined in 29 U.S.C. § 203(d).

14. Defendant should be deemed an “employer” for purposes of the FLSA 

including, without limitation, 29 U.S.C. § 216.

15. At all times material to this action, each of Defendant was and continues to 

be an “enterprise engaged in commerce or in the production of goods for commerce” as 

defined by 29 U.S.C. § 203(s)(1).

16. Plaintiffs engaged in commerce or in the production of goods for commerce 

and are therefore individually covered under the FLSA pursuant to 29 U.S.C. §§206(a), 

207(a)(1), 212(c).

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17. On information and belief, at all relevant times, the annual gross revenue of 

Defendant exceeded, and continues to exceed, $500,000.00.

18. Defendant Concrete Finishing, Inc., specializes in high-end decorative 

concrete hardscapes, golf course concrete cart paths, cart path renovations and clubhouse 

hardscapes.

19. Defendant hired Plaintiff Jaime Vidal in May 2016 as a concrete finisher.

20. Defendant compensated Plaintiff Vidal with an hourly rate of $57.27 per 

hour worked.

21. Plaintiff Vidal’s job duties were to finishing laying out concrete after it had 

been poured.

22. Plaintiff Vidal worked an average of 65 hours per week during his 

employment with Defendant. 

23. Defendant hired Plaintiff Brandon Warmelink in October 2016 as a

carpenter’s apprentice.

24. Defendant compensated Plaintiff Vidal with an hourly rate of $51.34 per 

hour worked.

25. Plaintiff Warmelink’s job duties were to set forms, strip out forms and stakes, 

and occasionally pour and finish concrete.

26. Plaintiff Warmelink worked an average of 65 hours per week during his 

employment with Defendant. 

27. Defendant hired Plaintiff Cory Rodriquez in May 2016 as a concrete finisher.

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28. Defendant compensated Plaintiff Rodriquez with an hourly rate of $44.90 per 

hour worked.

29. Plaintiff Rodriquez’s job duties were to finishing laying out concrete after it 

had been poured.

30. Plaintiff Rodriquez worked an average of 65 hours per week during his 

employment with Defendant. 

31. Plaintiffs were non-exempt employees. 

32. Plaintiffs could not hire or fire employees.

33. Plaintiffs had no authority to exercise significant independent judgment on 

issues that affect the whole company when carrying out his job responsibilities.

34. Defendant managed, supervised, and directed all aspects of Plaintiffs’ job 

duties and responsibilities.

35. Plaintiffs’ primary duty was not the performance of work directly related to 

the management or general business operations of Defendant.

36. Plaintiffs’ primary duty was not the performance of work requiring advanced 

knowledge in a field of science or learning that was acquired by a prolonged course of 

specialized intellectual instruction. 

37. Defendant did not pay Plaintiffs for hours worked over 40 hours in a week.

38. Defendant did not pay Plaintiffs overtime. 

39. Plaintiffs were not commissioned employees. 

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40. Plaintiffs have retained the law firm of Phillips Dayes Law Firm PC to 

prosecute their claims against Defendant on their behalf and have agreed to pay 

reasonable costs and attorney’s fees in the prosecution of this matter.

COUNT ONE

OVERTIME VIOLATION—29 U.S.C. § 207

41. Plaintiffs incorporate and adopt the preceding paragraphs as if fully set forth 

herein.

42. While employed by Defendant, Plaintiffs worked multiple hours of overtime 

per week.

43. Plaintiffs were non-exempt employees.

44. Defendant has intentionally and willfully failed and refused to pay Plaintiffs

overtime according to the provisions of the FLSA.

45. On information and belief, Defendant further engaged in a widespread 

pattern and practice of violating the provisions of the FLSA by failing to pay Plaintiffs in 

accordance with 29 U.S.C. § 207.

46. As the direct and proximate result of Defendant’s violations of the FLSA, 

Plaintiffs have suffered damages by failing to receive compensation in accordance with 

29 U.S.C. § 207.

47. Pursuant to 29 U.S.C. § 216, Defendant is liable to Plaintiffs for an amount 

equal to one and one-half times their regular pay rate for each hour of overtime worked 

per week.

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48. In addition to the amount of unpaid wages owed to Plaintiffs, they are also 

entitled to recover an additional equal amount as liquidated damages pursuant to 29 

U.S.C. § 216(b).

49. On information and belief, Defendant’s conduct in failing to properly 

compensate Plaintiffs, in violation of the FLSA, was willful.

50. Defendant has not made a good faith effort to comply with the FLSA.

Plaintiffs have been required to bring this action to recover his overtime compensation, 

and his statutory liquidated damages, and as the direct and foreseeable result of 

Defendant’s conduct, Plaintiffs have incurred costs and attorneys’ fees.

WHEREFORE, Plaintiffs respectfully request that judgment be entered in their

favor against Defendants:

a. Awarding Plaintiffs overtime compensation in the amount due for all of 

his time worked in excess of forty (40) hours per week at a pay rate 

equal to one and one-half times Plaintiff’s regular rate of pay while at 

work for Defendant, in an amount proved at trial;

b. Awarding Plaintiffs liquidated damages in an amount equal to the 

overtime award;

c. Awarding Plaintiffs reasonable attorneys’ fees, costs, and expenses of 

the litigation pursuant to 29 U.S.C. § 216(b);

d. Awarding Plaintiffs pre-judgment interest, at the highest legal rate, on 

all amounts awarded under subsections (a) and (b) above from the date 

of the payment due for that pay period until paid in full;

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e. Awarding Plaintiffs post-judgment interest, at the highest legal rate, on 

all awards from the date of such award until paid in full; and

f. For such other and further relief as the Court deems just and proper.

COUNT TWO

DECLARATORY JUDGMENT

51. Plaintiffs incorporate and adopt the preceding paragraphs as if fully set forth 

herein.

52. Plaintiffs and Defendant have an overtime compensation dispute pending.

53. The Court has jurisdiction to hear Plaintiffs’ request for declaratory relief 

pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02.

54. Plaintiffs are entitled to declarations, and requests that the Court make 

declarations as to the following matters and as to other matters deemed appropriate by the 

Court:

a. Defendant employed Plaintiffs.

b. Defendant is engaged in an enterprise covered by the overtime provisions 

of the FLSA.

c. Plaintiffs are individually covered by the overtime provisions of the FLSA.

d. Plaintiffs were not an exempt employee pursuant to the FLSA.

e. Defendant failed and refused to make payments of overtime compensation 

to Plaintiffs, in violation of the provisions of the FLSA.

f. Defendant’s failures to pay overtime compensation to Plaintiffs were 

willful.

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g. Plaintiffs are entitled to damages in the amount of overtime compensation 

not paid by Defendant at the rate of one and one-half times Plaintiffs’

regular rate of pay.

h. Plaintiffs are entitled to an equal amount as liquidated damages.

i. Plaintiffs are entitled to recover his costs and a reasonable attorney’s fee 

incurred in prosecuting his claim.

55. It is in the public interest to have these declarations of rights recorded as 

Plaintiffs’ declaratory judgment action serves the useful purposes of clarifying and 

settling the legal relations at issue, preventing future harm, and promoting the remedial 

purposes of the FLSA.

56. The declaratory judgment action further terminates and affords relief from 

uncertainty, insecurity, and controversy giving rise to the proceeding.

WHEREFORE, Plaintiffs respectfully requests that judgment be entered in their

favor against Defendant:

a. Declaring, pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 

2201–02, that the acts and practices complained of herein are in 

violation of the overtime and wage provisions of the FLSA;

b. Awarding Plaintiffs their reasonable attorney’s fees and the costs and 

expenses of the litigation pursuant to the FLSA; and

c. For such other and further relief as the Court deems just and proper

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Dated: February 6, 2018 Respectfully submitted,

PHILLIPS DAYES LAW FIRM PC

By: /s/ Sean C. Davis

Trey Dayes

Sean C. Davis

Preston Flood

Attorneys for Plaintiff

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