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James X. Bormes (pro hac vice admission pending) 

LAW OFFICE OF JAMES X. BORMES, P.C. 

Illinois State Bar No. 620268 

8 South Michigan Avenue 

Suite 2600 

Chicago, Illinois 60603 

(312) 201-0575 

jxbormes@bormeslaw.com 

LEAD ATTORNEY IN CHARGE FOR 

PLAINTIFF AND CLASS MEMBERS 

Thomas M. Ryan (pro hac vice admission pending) 

LAW OFFICE OF THOMAS M. RYAN, P.C. 

Illinois State Bar No. 6273422

35 East Wacker Drive 

Suite 650 

Chicago, Illinois 60601 

(312) 726-3400 

Tom@tomryanlaw.com 

Attorney for Plaintiff 

LOCAL COUNSEL: 

Michelle R. Matheson #019568 

MATHESON & MATHESON, P.L.C. 

15300 North 90th Street 

Suite 550 

Scottsdale, Arizona 85260 

(480) 889-8951 

mmatheson@mathesonlegal.com 

Attorney for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

DAVID COLON, individually and 

on behalf of all others similarly situated, 

 Plaintiff, 

 v. 

BANK OF AMERICA, N.A., 

 Defendant. 

No.: 

COLLECTIVE ACTION COMPLAINT

(JURY TRIAL REQUESTED)

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Plaintiff, David Colon, individually and on behalf of all other persons similarly 

situated, known and unknown, through his attorneys, complains against Defendant Bank 

of America, N.A. (“Defendant” or “Bank of America”), as follows: 

NATURE OF PLAINTIFF’S CLAIMS 

1. This lawsuit arises under the Fair Labor Standards Act, 29 U.S.C. § 201 

et seq. (“FLSA”), for Defendant’s failure to pay Plaintiff and other similarly situated 

persons all overtime pay for all time worked in excess of forty (40) hours per week. 

2. Defendant employs the telephone-based workers who are the putative class 

members in this lawsuit. 

3. Defendant knowingly required and/or permitted Plaintiff, who worked as 

a telephone-dedicated employee in the position of Senior Customer Service Specialist 

and other similarly situated telephone-dedicated employees to perform unpaid work 

before and after the start and end times of their shifts, including but not limited to 

booting up computers, initializing several software programs, reading company issued 

emails and instructions, and completing customer service calls. 

4. In addition, Defendant was aware that Plaintiff and those similarly situated 

to him also performed work for Defendant on their break periods, including meal breaks, for 

which they were not paid. The work that Plaintiff and similarly situated employees 

performed during break periods includes, but is not limited to, completing customer 

orders, finishing customer service calls, logging back into the phone system, re-booting 

their computers and initializing software programs. 

5. The amount of uncompensated time Plaintiff and those similarly situated 

to him spend or have spent on these required and unpaid work activities averages 

approximately fifteen to twenty minutes per day per person. 

6. Defendant’s conduct violates the FLSA, which requires non-exempt 

employees to be compensated for their overtime work at a rate of one and one-half times 

their regular rate of pay. See 29 U.S.C. § 207(a). 

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7. Plaintiff brings his FLSA overtime claims as a collective action pursuant to 

29 U.S.C. § 216(b) on behalf of telephone-dedicated employees who worked for Defendant 

throughout the country at call centers owned by Defendant. 

JURISDICTION AND VENUE

8. This Court has original jurisdiction over Plaintiff’s FLSA claims in this 

action under 29 U.S.C. § 1331 and 29 U.S.C. § 216(b). 

9. Venue is proper in this Court as the illegal conduct alleged herein occurred 

in this district. 

THE PARTIES

10. Plaintiff David Colon is an individual who Defendant employed from 

approximately January 2013 to approximately August 2013 as an hourly, non-exempt 

Senior Customer Service Specialist who was placed to work in a call center operated by 

Defendant located at 2727 S. 48th Street, in Tempe, Arizona. Plaintiff Colon resides in 

and is domiciled within this judicial district. 

11. Defendant is a banking and financial services company and operates 

telephone call centers on 48th Street in Tempe, Arizona and, upon information and belief, 

elsewhere, where telephone-dedicated hourly employees handle phone calls regarding 

banking and investment services. 

12. Defendant is a North Carolina corporation. Defendant may be served at CT 

Corporation, System, 3800 North Central Avenue, Suite 460, Phoenix, Arizona, 

Defendant’s registered agent in Arizona. 

13. Aerotek, Inc. (“Aerotek”) is a staffing agency that provided telephone 

dedicated-employees, including Plaintiff, to Defendant. Aerotek issued paychecks to 

Plaintiff. 

14. Defendant employed Plaintiff and other similarly situated persons as 

“employees,” as that term is defined by Section 3(e) of the FLSA, 29 U.S.C. § 203(e). 

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15. At all material times, Defendant has been an enterprise in commerce or in 

the production of goods for commerce within the meaning of 3(s)(1) of the FLSA 

because it has had employees engaged in commerce. 29 U.S.C. § 203(s)(1). 

16. Furthermore, Defendant has had, and continues to have, an annual gross 

business volume in excess of $500,000. 

17. At all relevant times, Defendant was an “employer” of Plaintiff and other 

similarly situated persons, as that term is defined by Section 203(d) of the FLSA, 29 

U.S.C. § 203(d). 

18. At all material times, Plaintiff and FLSA Class Members were individual 

employees who engaged in commerce or in the production of goods for commerce as 

required by 29 USC § 206-207. 

19. Further, at all material times, Defendant has operated as a “single 

enterprise” within the meaning of 3(r)(1) of the FLSA. 29 U.S.C. § 203(r)(1). That is, 

Defendant performs related activities through unified operation and common control for a 

common business purpose. See Brennan v. Arnheim and Neely, Inc., 410 U.S. 512, 515 

(1973); Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 914–15 (9th Cir. 2003). 

FACTUAL ALLEGATIONS

A. Defendant’s Practice of Requiring and/or Permitting Telephone-Based 

Hourly Employees to Work Before the Start of Their Scheduled Shift 

Time

20. Defendant operates and has operated “call centers” in Arizona and across 

the nation where telephone-dedicated employees similar to Plaintiff handle phone calls 

regarding banking and investment services offered by Defendant to its customers. 

21. Defendant and Aerotek have an agreement to share the services of Plaintiff 

and similarly situated telephone-based employees. 

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22. Prior to starting work on the call center floor, Plaintiff and other similarly 

situated telephone-based employees were and are interviewed by employees and 

managers of Defendant and Aerotek. 

23. Defendant had the power to hire and fire Plaintiff and other persons 

similarly situated. 

24. At the Bank of America call center where Plaintiff Colon worked, both 

Bank of America and Aerotek had managers on the floor of the call center during the 

workday, managing the work activities of the Plaintiff and other similarly situated 

persons. 

25. Defendant does not allow telephone-based employees to use its phones and 

computers for any personal use. Additionally, Defendant generally prohibits and does 

not allow telephone-based employees to use their own personal cell phones on the call 

center floor. Under Defendant’s policies and practices, telephone-based employees are 

required to store their personal cell phones during the work day and can generally only 

use them on breaks and off the call center floor. 

26. At the Bank of America call center where Plaintiff worked, Defendant’s 

managers on the call center floor could and did regularly see with their own eyes that 

Plaintiff and similarly situated telephone-based employees arrived at their work stations 

before the start of their scheduled shift time, logged into Defendant’s computers, and 

began working on their computers prior to the start of their scheduled shift time. 

27. Despite seeing and knowing that Plaintiff and similarly situated telephonebased employees performed work at their work stations prior to their scheduled shift time 

start, Defendant and its managers on the floor of the call center did not make any effort to 

stop or otherwise disallow this pre-shift work and instead allowed and permitted it to 

happen. 

28. Defendant possesses, controls and/or has access to information and 

electronic data that shows the times Plaintiff and similarly situated telephone-based 

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employees logged into their computers each day and the time they logged into their 

telephone systems. 

29. By possessing, controlling and/or accessing this information, Defendant 

knew that Plaintiff and similarly situated telephone-based employees worked prior to the 

start of their scheduled shift time. 

30. Despite having this information and knowing that Plaintiff and similarly 

situated telephone-based employees logged into their computers, initialized necessary 

software programs, and read company issued emails and instructions prior to the start of 

their scheduled shift time, Defendant did not make any effort to stop or otherwise 

disallow this pre-shift work and instead allowed and permitted it to happen. 

31. Defendant knowingly required and/or permitted Plaintiff and those similarly 

situated to him to perform unpaid work before and after the start and end times of their 

shifts, including but not limited to booting up computers, initializing several software 

programs, and reading company issued emails and instructions prior to the start of their 

scheduled shift time, and completing customer service calls, closing down the software 

programs, and logging off the system after the end of their scheduled shift times. 

32. In addition, by having managers on the call center floor and having access 

to the electronic data, among other things, Defendant was aware that Plaintiff and those 

similarly situated to him also performed work for Defendant on their break periods, for 

which they were not paid. The work that Plaintiff and similarly situated employees 

performed during break periods includes, but is not limited to, completing customer 

orders, finishing customer service calls, logging back into the phone system, re-booting 

their computers and initializing software programs. 

33. The amount of uncompensated time Plaintiff and those similarly situated 

to him spend or have spent on these required and unpaid work activities averages 

approximately fifteen to twenty minutes per day per person. 

34. Defendant monitored and directed the work activities of Plaintiff and other 

similarly situated persons, including the unpaid work at issue. 

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B. Defendant Knew of and Assented to the Pre-Shift Work

35. Defendant’s policy and practice permits and/or requires telephone-based 

employees to be logged into their phones by the employee’s scheduled start time. 

36. In order to be logged into Defendant’s telephone systems, Defendant 

required and/or permitted Plaintiff and similarly situated telephone-based employees to 

arrive at their work station prior to their scheduled shift time and boot up computers, 

initialize several software programs, and read company emails and instructions. 

37. Defendant’s policy and practice disciplines telephone-based employees if 

they are not logged into their phones and ready to handle calls by the start of their 

scheduled shift time. 

38. This policy and practice of Defendant results in telephone-based 

employees, including the Plaintiff, to boot up their computers, initialize several software 

programs and/or read company emails and instructions prior to their start of their 

scheduled shift time. 

39. As set forth herein, via their policies and practices and through their own 

telephone and computer systems, Defendant knew and was aware that the telephonebased employees performed work prior to the start of their scheduled shift. 

40. Defendant did not instruct Plaintiff and similarly situated telephone-based 

employees to not log into their computers or telephone, or to not read company emails 

prior to the start of their scheduled shift time. Rather, Defendant required, permitted 

and/or allowed Plaintiff and the putative class members to work prior to their scheduled 

shift time. 

41. By knowing of, permitting and/or requiring Plaintiff and similarly situated 

telephone-based employees to log into their computers, initialize their various software 

programs and/or read company email and instructions prior to the start of their scheduled 

shift time, Defendant assented to them performing this work. 

 

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C. Defendant’s Failure to Pay Overtime Wages to Its Telephone-Based 

Hourly Employees 

42. Defendant determined the rate of pay for Plaintiff other similarly situated 

persons. 

43. Defendant’s managers reviewed and approved the time records of Plaintiff 

and other similarly situated persons prior to them receiving their paychecks. 

44. Defendant supervised and controlled the work schedule of Plaintiff and 

other similarly situated persons. 

45. Defendant was involved in determining the actual amount of compensation 

paid to Plaintiff and other similarly situated persons. 

46. Plaintiff and those employees similarly situated are individuals who were, 

or are, employed by Defendant in customer service, sales, and similar positions at 

Defendant’s call centers who were not paid for some or all of their work activities prior to 

the beginning of their shifts, during meal and rest breaks, or after the end of their shifts. 

47. Plaintiff and the other employees are similarly situated to one another 

because their duties consisted primarily of providing services related to handling phone calls 

regarding banking and investment services offered by Defendant to its customers while 

working in Defendant’s call centers. Plaintiff and others similarly situated all shared 

similar policies, job titles, job descriptions, training, job duties and compensation, among 

other things. 

48. Plaintiff and the other employees are also similar because Defendant did 

not pay them for all time they actually worked. Defendant knowingly required Plaintiff and 

the similarly situated individuals to perform unpaid work before and after their scheduled 

shifts, including but not limited to booting-up computers, initializing several software 

programs, reading company emails and instructions, and completing customer service 

calls. Additionally, Defendant was aware that Plaintiff and those similarly situated to 

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him also performed work for Defendant on their break periods, for which they were not 

paid. 

49. The net effect of Defendant’s policies and practices, instituted and 

approved by company managers, is that Defendant willfully failed to pay regular and 

overtime compensation to Plaintiff and others similarly situated, and willfully failed to 

keep accurate time records to save payroll costs. Defendant thus enjoyed ill-gained 

profits at the expense of its hourly employees. 

50. Plaintiff and others similarly situated at times work or worked in excess of 

forty hours per week for Defendant in a given workweek. 

51. Defendant’s policy and practice of requiring and/or permitting its 

employees, including Plaintiff and other non-exempt, hourly employees, to perform work 

without pay for such work performed, violates Section 6 of the FLSA, 29 U.S.C. § 206. 

52. Defendant’s policy and practice of requiring its employees to perform work 

without pay in many instances has caused and continues to cause Plaintiff and certain 

other similarly situated hourly employees to work in excess of forty hours per week, 

without being properly compensated at a wage of 1.5 times their respective hourly rate 

for such work performed, as required by Section 7 of the FLSA, 29 U.S.C. § 207. 

53. Defendant’s failure to compensate its non-exempt, hourly call center 

employees with the full amount of the applicable regular wage or overtime wage has 

caused Plaintiff and other similarly situated non-exempt call center employees to suffer 

harm. 

54. Defendant’s non-exempt, call center hourly employees are entitled to 

compensation for all time they worked without pay in any given workweek. 

COLLECTIVE ACTION ALLEGATIONS

55. Plaintiff brings Count I of this Complaint as a collective action on behalf of 

himself and all other current and former hourly employees of Defendant who Defendant 

required to perform the work described herein without pay at any time during the three 

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years prior to the commencement of the action to present at call centers owned by Bank 

of America. 

56. Plaintiff has actual knowledge that FLSA Class Members have also been 

denied overtime pay for hours worked over forty hours per workweek. That is, Plaintiff 

worked with other telephone dedicated employees who worked at the Bank of America 

call center. As such, he has first-hand personal knowledge that the same pay violations 

occurred to other class members. Furthermore, other telephone dedicated employees at 

Defendant’s call centers have shared with him similar pay violation experiences as those 

described in this complaint. 

57. Other employees similarly situated to Plaintiff work or have worked at 

Defendant’s call centers, but were not paid overtime at the rate of one and one-half their 

regular rate when those hours exceeded forty hours per workweek. 

58. Although Defendant permitted and/or required the FLSA Class Members to 

work in excess of forty hours per workweek, Defendant has denied them full 

compensation for their hours worked over forty. Defendant has also denied them full 

compensation at the federally mandated minimum wage rate. 

59. FLSA Class Members perform or have performed the same or similar work 

as Plaintiff. 

60. FLSA Class Members regularly work or have worked in excess of forty 

hours during a workweek. 

61. FLSA Class Members are not exempt from receiving overtime pay at the 

federally mandated wage rate under the FLSA. 

62. As such, FLSA Class Members are similar to Plaintiff in terms of job 

duties, pay structure, and the denial of overtime and wages. 

63. Defendant’s failure to pay overtime compensation wage rate required by 

the FLSA results from generally applicable policies or practices, and does not depend on 

the personal circumstances of the FLSA Class Members. 

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64. The experiences of Plaintiff, with respect to his pay, are typical of the 

experiences of the FLSA Class Members. 

65. The specific job titles or precise job responsibilities of each FLSA Class 

Member does not prevent collective treatment. 

66. All FLSA Class Members, irrespective of their particular job requirements, 

are entitled to overtime compensation for hours worked in excess of forty during a 

workweek. 

67. Although the exact amount of damages may vary among FLSA Class 

Members, the damages for the FLSA Class Members can be easily calculated by a simple 

formula. The claims of all FLSA Class Members arise from a common nucleus of facts. 

Liability is based on a systematic course of wrongful conduct by Defendant that caused 

harm to all FLSA Class Members. 

68. As such, Plaintiff brings his FLSA overtime as a collective action on behalf 

of the following class, and Plaintiff’s Counsel seek to send notice of this lawsuit to the 

following described persons: 

All persons who worked for Defendant as telephone 

dedicated employees, however titled, who were compensated, 

in part or in full, on an hourly basis at Defendant’s call 

centers at any time between January 7, 2013 and the present 

who did not receive the full amount of overtime wages earned 

and owed to them. 

69. There are questions of law or fact common to the employees described in 

paragraph 68. 

70. Plaintiff is similarly situated to the employees described in paragraph 68, as 

Plaintiff’s claims are typical of the claims of those persons. 

71. Plaintiff’s claims or defenses are typical of the claims or defenses of the 

persons described in paragraph 68. 

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72. This is not a collusive or friendly action. Plaintiff has retained counsel 

experienced in complex employment litigation, and Plaintiff and his counsel will fairly 

and adequately protect the interests of the persons described in paragraph 68. 

73. A collective action is the most appropriate method for the fair and efficient 

resolution of the matters alleged in Count I. 

74. At all relevant times, Defendant employed Plaintiff and the persons 

described in paragraph 68. 

75. At all relevant times, Defendant paid Plaintiff and the persons described in 

paragraph 68 to work. 

76. At all relevant times, Defendant has been an “employer” of Plaintiff and the 

persons described in paragraph 68, as the term “employer” is defined by Section 3(d) of 

the FLSA, 29 U.S.C. § 203(d). 

77. At all relevant times, Plaintiff and the persons described in paragraph 68 

have been “employees” of Defendant as defined by Section 3(e) of the FLSA, 29 U.S.C. 

§ 203(e). 

COUNT I – FLSA

(Failure to Pay Overtime Wages) 

78. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 77 

as paragraph 78 of this Count I. 

79. Plaintiff, individually and on behalf and the members of the class 

described in paragraph 68, asserts claims for unpaid overtime pursuant to the FLSA. 

80. At any and all times relevant hereto, Defendant was an “enterprise engaged 

in commerce” within the meaning of Section 3(s) of the FLSA, 29 U.S.C. § 203(s). 

81. At any and all times relevant hereto, Defendant was an “employer” of the 

Plaintiff and the members of the class described in paragraph 68 within the meaning of 

Section 3(d) of the FLSA, 29 U.S.C. § 203(d). 

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82. At any and all times relevant hereto, Plaintiff and the members of the 

class described in paragraph 68 were “employees” of Defendant as defined by Section 

3(e) of the FLSA, 29 U.S.C. § 203(e). 

83. Plaintiff and the members of the class described in paragraph 68 were not 

paid for all time worked in excess of 40 hours in a week during the applicable statutory 

time period, in violation of the maximum hours provisions of the FLSA, 29 U.S.C. § 207. 

84. At all times relevant hereto, Defendant’s failure to pay Plaintiff and the 

members of the class described in paragraph 68 premium pay for all time worked over 40 

hours in a week was willful in that, among other things: 

a. Defendant knew that the FLSA required it to pay time and one-half 

for all time worked over 40 hours in a week; 

b. Defendant failed to maintain true and accurate time records; and 

c. Defendant encouraged Plaintiff and other similarly situated 

employees to not record all time worked. 

85. As a direct and proximate result thereof, Plaintiff and the members of the 

class described in paragraph 68 are due unpaid back wages and liquidated damages, 

pursuant to 29 U.S.C. § 216. 

DAMAGES SOUGHT 

86. Plaintiff and the FLSA Class Members are entitled to recover compensation 

for the hours they worked for which they were not paid at the federally mandated 

overtime wage rate. 

87. Plaintiff and the FLSA Class Members are also entitled to an amount equal 

to all of their unpaid wages as liquidated damages. 29 U.S.C. § 216(b). 

88. Plaintiff and FLSA Class Members are entitled to recover their attorneys’ 

fees and costs as required by the FLSA. 29 U.S.C. § 216(b). 

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WHEREFORE, Plaintiff, individually and on behalf of all others similarly 

situated, by and through his attorneys, demands judgment against Defendant and in favor 

of Plaintiff and all others similarly situated, for a sum that will properly, adequately and 

completely compensate them for the nature, extent and duration of their damages, the 

costs of this action and as follows: 

A. Conditionally certify the class described in paragraph 68, and grant 

Plaintiff’s counsel leave to send notice of this lawsuit to the members of the 

class and allow them the opportunity to opt-in as party plaintiffs pursuant to 

Section 16 of the FLSA, 29 U.S.C. § 216; 

B. Declare and find that the Defendant committed one or more of the 

following acts: 

i. Violated provisions of the FLSA for Plaintiff and all persons who optin as party plaintiffs; and 

ii. Willfully violated provisions of the FLSA for Plaintiff and all 

persons who opt-in as party plaintiffs. 

C. Award compensatory damages, including all wages and overtime pay 

owed, in an amount according to proof; 

D. Award liquidated damages on all wages and overtime compensation due to 

Plaintiff and all persons who opt-in as party plaintiffs; 

E. Award all costs and reasonable attorneys’ fees incurred prosecuting this 

claim; 

F. Grant leave to amend to add claims under applicable state and federal laws 

to conform with the proofs at trial; 

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G. Grant leave to add additional plaintiffs by motion or any other method 

approved by the Court to conform with the proofs at trial; and 

H. Grant such further relief as the Court deems just and equitable. 

 DATED this 7th day of January 2016. 

LAW OFFICE OF JAMES X. BORMES, P.C.

 s/ James X. Bormes 

(pro hac vice admission pending) 

James X. Bormes 

LAW OFFICE OF JAMES X. BORMES, P.C. 

Illinois State Bar No. 620268 

8 South Michigan Avenue 

Suite 2600 

Chicago, Illinois 60603 

(312) 201-0575 

jxbormes@bormeslaw.com 

Thomas M. Ryan 

(pro hac vice admission pending) 

LAW OFFICE OF THOMAS M. RYAN, P.C. 

Illinois State Bar No. 6273422 

35 East Wacker Drive 

Suite 650 

Chicago, Illinois 60601 

(312) 726-3400 

tom@tomryanlaw.com 

LOCAL COUNSEL: 

Michelle R. Matheson #019568 

Matheson & Matheson, P.L.C. 

15300 North 90th Street 

Suite 550 

Scottsdale, Arizona 85260 

(480) 889-8951 

mmatheson@mathesonlegal.com 

Attorney for Plaintiff 

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