,

COLLECTIVE ACTION COMPLAINT

(JURY TRIAL DEMANDED)

Plaintiffs,

VITEL COMMTINICATIONS LLC., andJNET COMMLINICATIONS LLC.,

Defendants.

Plaintiffs Josny Cirene and Dubenson Julien, through their attorneys, make the

allegations contained herein on behalf of themselves and all others similarly situated.

JURISDICTION

1. This Court has original jurisdiction to hear this Complaint and to adjudicate the

claims stated herein under 28 U.S.C. $ 1331, this action being brought under the federal Fair

Labor Standards Act,29 U.S.C. $ 201 et seq. ("FLSA").

2. Venue is proper in the United States District Court, District of New Jersey

pursuant to 28 U.S.C. $ 1391 because Defendants reside in this district, and because a substantialpart of the events giving rise to the claims occurred in this district.

PARTIES

3. Defendant Vitel Comrnunications LLC is a foreign corporation doing business in

numerous locations across the country including New Jersey, Georgia, Michigan, Maryland,Texas, and California. Defendant Vitel Communications LLC is a wholly owned subsidiary of

Defendant JNET Communications LLC. It provides installation, maintainence, and repairservices to Comcast customers. Vitel Communications LLC is an "ernployer" within the
company of 

e

e

da

t Vitel Communications 

C

oug

ts subs

d

a

es, 

J

Communications LLC offers teleservices and customer care to cable and telecommunications

providers such as Comcast. Defendant JNET Communications LLC's executives are involved inthe development and implementation of Defendant Vitel Communications LLC's human

resource policies and payroll practices. Defendant JNET Communications LLC is an"employer" within the meaning of the FLSA, 29 U.S.C. $ 203(d).

5. Plaintiff Josny Cirene is an adult resident of the State of New Jersey. Plaintiff

Cirene worked as a technician for Defendants out of their Union, New Jersey location during the

relevant statutory period. As a technician, Plaintiffls job was to install, selice, repair, ormaintain cable and broadband seruices. Plaintiff Cirene was Defendants' "employee" within themeaning of the FLSA, 29 U.S.C. $ 203(e).

6. Plaintiff Dubenson Julien is an adult resident of the State of New Jersey. Plaintiff

Julien worked as a technician for Defendants out of their Union, New Jersey location during the

relevant statutory period. As a technician, Plaintiffls job was to install, service, repair, or

maintain cable and broadband services. Plaintiff Dubenson was Defendants' "employee" within

the meaning of the FLSA, 29 U.S.C. $ 203(e).

7. As technicians working for Defendants, Plaintiffs Cirene and Julien were paid on

a piece rate basis. Under Defendants' compensation plan, Defendants did not actually pay

Plaintiffs overtime compensation for their overtime hours worked despite providing Plaintiffswith paychecks listing "regular" earnings, "overtime" eamings, and a "disc bonus" (discretionary
p

y

p

,

$ 

(

)

y 

individuals who are currently or have been employed by Defendants as technicians (also knowncable technicians or installers) in any of their locations during the last three years ("the

Collective Class" and "applicable statutory period").

COLLECTIVE ACTION ALLEGATIONS

9. Plaintiffs bring this action on behalf of themselves and other similarly situated

employees as authorized under FLSA $ 16(b), 29 U.S.C. $ 216(b). The written consent forms of

Plaintiffs and other similarly situated employees are attached as Exhibit B. As this case

proceeds, it is likely that other individuals will sign consent forms and join this action as opt-inplaintiffs.

10. During the applicable statutory period, Plaintiffs and the Collective Class worked

as or performed the duties of technicians for Defendants.

1 1. During the applicable statutory period, Plaintiffs and the Collective Class

routinely worked in excess of forty (40) hours per week without receiving overtimecompensation for their overtime hours worked.

12. Defendants paid Plaintiffs and the Collective Class on a piece rate basts.13. As piece rate paid technicians, Plaintiffs and the similarly situated individuals

recevied a determinable amount of money for each type of job or service that he or she

performed at the cable subscriber's property.
p

y, 

p

y

for overtime pay under Defendants' compensation plan because Plaintiffs and those similarly

situated should have been paid additional overtime compensation on top of their piece rate

eamings.

16. Pursuant to 29 U.S.C. $ 778.1 1 1(a), the regular rate of pay of Plaintiffs and those

similarly situated should have been calculated by adding together their total eamings for the

workweek from piece rates and all other sources and then dividing this sum by the number ofhours worked in the week for which such compensation was paid. For their oveúime hoursworked, Plaintiffs and those similarly situated are entitled be paid, in addition to their total

weekly earnings at this regular rate for all hours worked, a sum equivalent to one-half this

regular rate of pay multiplied by the number of hours worked in excess of forty in the week.

17. For example, during the week of June 13,2010 through June 19,2010, Plaintiff

Cirene's total eamings for the workweek from piece rates equaled 8913.23. (!99 Exhibit C). To

determine his regular rate of pay for this week, Defendants should have divided $913.23 by his

total hours worked that workweek and paid additional overtime pay on top of the $913.23 heearned in piece rates. Assuming he worked 14.82 hours of overtime during this workweek,

Plaintiff Cirene is owed approximately 8123.45 in overtime compensation.

18. For example, during the week of June 20, 2010 through June 26,2010, Plaintiff

Cirene's total earnings for the workweek from piece rates equaled $1,395.51. (See Exhibit C).

To determine his regular rate of pay for this week, Defendants should have divided $1,395.51 by
g

p

y

g

pp

of paying "overtims" and a "discretionary bonus," overtime is not in fact being paid. Instead,Defendants' compensation plan is a scheme designed to conceal the fact that Defendants areactually compensating Plaintiffs and the similarly situated employees only what they earned in

piece rates and nothing more. Schemes such as this do not comply with the FLSA. See, e.9.,29 C.F.R. ç 778.502 et seq.

20. Plaintiffs complained to Defendant Vitel Communications LLC about not being

properly compensated for all of their oveftime hours worked.

21. Upon information and belief, other technicians also complained about Vitel

Communications LLC's overtime practices.

22. Upon information and belief, Defendant Vitel Communications LLC has

previously been investigated by the state and/or federal department of labor for its wage and hour

practices.

COUNT I

VIOLATIONS OF THE FAIR LABOR STANDARDS ÄCT

(Overtime Violations)

23. Plaintiffs reallege and incorporate the above paragraphs by reference as if fully set

forth herein.

24. The FLSA, 29 U.S.C. ç 207 , requires covered employers, such as Defendants, to

compensate all non-exempt employees at a rate of not less than one and one-half (1.5) times the

regular rate of pay for work performed in excess of forty (40) hours per workweek.
p

y

y 

, p

, p

or other sources, and the overtime provisions of the FLSA carurot be avoided by setting an

artificially low hourly rate upon which oveftime pay is to be based and making up the additionalcompensation due to employees by other means. 29 C.F.R. $ 778.500(a).

27. Under Defendants' compensation plan, Plaintiffs and the similarly situated

employees are being paid an artificially low regular rate because Defendants are not properly

calculating Plaintiffs'regularrate of pay by taking into consideration all of Plaintiffs' earnings.

See 29 C.F.R. $ 778.500 et seq.

28. Defendants' compensation plan is a "subterfuge," intentionally designed to

conceal the fact that Defendants actually compensate Plaintiffs and the similarly situatedemployees on a piece rate basis, that there is no overtime compensation, no "discretionary

bonus," and that their regular rate of pay is the quotient of piece-rate earnings divided by hours

worked. See 29 C.F.R. ç 778.502 ot seq.

29. Defendants suffered and permitted Plaintiffs and the similarly situated employees

to routinely work more than forty (40) hours per week without overtime compensation.

30. Defendants knew, or showed reckless disregard, that Plaintiffs and the similarly

situated employees perfonned work that required oveftime pay at one and one-half (1.5) times

their regular rate of pay.
p

p

, 

$ 

q

,

specifically $ 207(aXi). As the direct and proximate result of Defendants' unlawful conduct,

Plaintiffs and the Collective Class have suffered and will continue to suffer a loss of income andother damages. Plaintiffs and the Collective Class are entitled to liquidated damages and

attorney's fees and costs incurred in connection with this claim.

33. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA

within the meaning of 29 U.S.C. $ 255(a) as Defendants knew, or showed reckless disregard forthe fact that their compensation practices were in violation of these laws.

PRAYER F'OR RELIEF

WHEREFORE, Plaintiffs, on behalf of themselves and those similarly situated, pray for

judgment against Defendants as follows:

A. Designation of this action as a collective action on behalf of

Plaintiffs and those similarly situated, and prompt issuance of

notice pursuant to 29 U.S.C. $ 216(b) to all those similarly situated

apprising them of the pendency of this action, and permitting themto assert timely FLSA claims in this action by filing individual

consent forms pursuant to 29 U.S.C. $ 216(b);

B. Judgment against Defendants for violation of the overtime

provisions of the FLSA;

C. Judgment that Defendants' actions as described above were

willtul;

D. An award to Plaintiffs and those similarly situated for the amount

of unpaid wages owed, and liquidated damages;

E. An award of prejudgment interest to the extent liquidated damages

are not awarded;
q

y

may deem appropriate and just.

DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs, individually

and on behalf of all others similarly situated, demand a tnal by juty.

Dated: ¡Vay A ,ZOtl SCHALL & BARASCH L.L.C.

s/Patricia A. Barasch

Patricia Barasch, NJ Bar No. (PAB 4660)

Moorestown Office Center

110 Marter Ave., Suite 302

Moorestown, New Jersey 08057Telephone: (856) 9 14-9200Fax: (856) 914-9420Email : pbarasch@schallandbarasch. com

NICHOLS KASTER, PLLPMatthew H. Morgan, MN Bar No. 304657*Rachhana T. Srey, MN Bar No. 340133*4600IDS Center

80 South Eighth Street

Minneapolis, MN 55402Telephone: (612) 256-3200Fax: (612) 215-6870Email: morgan@nka.com

srey@nka.com

* pro hac vice admission forthcoming

ATTORNEYS FOR PLAINTIFFSAND THOSE SIMILARLY SITUATED