Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 1 of 17 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ANGEL FLORES, CESAR HERNANDEZ, DEBORAH RIVERA, LAURA LOZOYA and SALLY A. MARTINEZ, Individually and On Behalf of All Others Similarly Situated, Plaintiffs, V. JBM JANITORIAL MAINTENANCE, INC., KRC FLOOR MAINTENANCE, INC., VIRIDIANA GARCIA VIRIDIANA MARTINEZ, RAFAEL V. MARTINEZ and CECIL M. MARTINEX JURY TRIAL DEMANDED Defendants. ORIGINAL COMPLAINT TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Plaintiffs Angel Flores, Cesar Hernandez, Deborah Rivera, Laura Lozoya and Sally A. Martinez (collectively referred to as ?Plaintiffs?) bringing this collective action and lawsuit on behalf of themselves and all other similarly situated employees to recover unpaid regular and overtime wages from Defendants JBM Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 2 of 17 Janitorial Maintenance, Inc., KRC Floor Maintenance, Inc., Viridiana Garcia Viridiana Martinez, Rafael V. Martinez and Cecil M. Martinez (collectively referred to as ?Defendants?). In support thereof, they would respectfully show the Court as follows: I. Nature of Suit 1. Plaintiffs? claims arise under the Fair Labor Standards Act of 1938, 29 U.S.C. 201-219 2. The FLSA was enacted 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 humanitarian goals, the FLSA defines appropriate pay deductions and sets overtime pay, minimum wage, and record keeping requirements for covered employers. 29 U.S.C. 206(a), 207(a), 211(c). 3. Defendants violated the FLSA by employing Plaintiffs and other similarly situated nonexempt employees at a rate below the statutory minimum wage. 29 U.S.C. 206(a)(1). 4. Defendants violated the FLSA by employing Plaintiffs and other similarly situated nonexempt employees ?for a workweek longer than forty hours [but refusing to compensate them] for [their] employment in excess of [forty] hours at a rate not Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 3 of 17 less than one and one-half times the regular rate at which [they are or were] employed.? 29 U.S.C. 207(a)(1). 5. Defendants violated the FLSA by failing to maintain accurate time and pay records for Plaintiffs and other similarly situated nonexempt employees as required by 29 U.S.C. 211(c) and 29 C.F.R. pt. 516. 6. Plaintiffs bring this collective action under 29 U.S.C. 216(b) on behalf of themselves and all other similarly situated employees to recover unpaid overtime wages. II. Jurisdiction 8: Venue 7. The Court has jurisdiction of this action pursuant to 28 U.S.C. 1331 and 29 U.S.C. 216(b) because it arises under the FLSA, a federal statute. 8. Venue is proper in this district and division pursuant to 28 U.S.C. 1391(b)(1), (2) because Defendants reside in the Houston Division of the Southern District of Texas and/or a substantial part of the events or omissions giving rise to Plaintiffs? claims occurred in the Houston Division of the Southern District of Texas. Parties 9. Angel Flores (referred to as ?Flores?) is an individual who resides in Harris County, Texas and who was employed by Defendants during the last three years. Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 4 of 17 10. Cesar Hernandez (referred to as ?Hernandez?) is an individual who resides in Harris County, Texas and who was employed by Defendants during the last three years. 11. Deborah Rivera (referred to as ?Rivera?) is an individual who resides in Harris County, Texas and who was employed by Defendants during the last three years. 12. Laura Lozoya (referred to as ?Lozoya?) is an individual who resides in Harris County, Texas and who was employed by Defendants during the last three years. 13. Sally A. Martinez (referred to as Martinez?) is an individual who resides in Harris County, Texas and who was employed by Defendants during the last three years. 14. Defendants JBM Janitorial Maintenance, Inc. (referred to as is a Texas corporation that is no longer in good standing with the Texas Secretary of State that may be served with process by serving its registered agent: Viridiana Garcia 7002 Hillsboro St. Houston, Texas 77020. Alternatively, if the registered agent of JBM cannot with reasonable diligence be found at the company?s registered of?ce, JBM may be served with process by serving the Texas Secretary of State pursuant to TEX. BUS. ORG. CODE 5.251 and TEX. CIV. PRAC. REM. CODE 17.026. Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 5 of 17 15. KRC Floor Maintenance, Inc. (referred to as is a Texas corporation that may be served with process by serving its registered agent: Rafael Martinez 6101 Lyons Ave. Ste. Houston, Texas 77020. Alternatively, if the registered agent of KRC cannot With reasonable diligence be found at the company?s registered office, KRC may be served With process by serving the Texas Secretary of State pursuant to TEX. BUS. ORG. CODE 5.251 and TEX. CIV. PRAC. 8: REM. CODE 17.026. 16. Viridiana Garcia Viridiana Martinez (referred to as ?Garcia?), is an individual who may be served With process at: 7002 Hillsboro St. Houston, Texas 77020 or Wherever she may be found. Defendant Viridiana Garcia may also be served With process pursuant to TEX. CIV. PRAC. REM. CODE 17.021 by serving an agent or clerk employed at his of?ce or place of business because this action grows out of or is connected with the business he transacts in this state. Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 6 of 17 17. Rafael V. Martinez (referred to as Martinez?), is an individual who may be served with process at: 7002 Hillsboro St. Houston, Texas 77020 or wherever she may be found. Defendant R. Martinez may also be served with process pursuant to TEX. CIV. PRAC. 8: REM. CODE 17.021 by serving an agent or clerk employed at his of?ce or place of business because this action grows out of or is connected with the business he transacts in this state. 18. Cecil M. Martinez (referred to as Martinez?), is an individual who may be served with process at: 7002 Hillsboro St. Houston, Texas 77020 or wherever she may be found. Defendant C. Martinez may also be served with process pursuant to TEX. CIV. PRAC. REM. CODE 17.021 by serving an agent or clerk employed at his office or place of business because this action grows out of or is connected with the business he transacts in this state. 19. Whenever it is alleged that Defendants committed any act or omission, it is meant that the Defendants? officers, directors, vice-principals, agents, servants or employees committed such act or omission and that, at the time such act or omission Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 7 of 17 was committed, it was done with the full authorization, rati?cation or approval of Defendants or was done in the routine and normal course and scope of employment of Defendants? officers, directors, vice?principals, agents, servants or employees. IV. Facts 20. Defendants are a janitorial services company that does business in the territorial jurisdiction of this Court. 21. In 2015, the City of Houston awarded a three-year contract for janitorial services. 22. Under the terms of the contract, was obligated to provide janitorial services (including, personnel, management, supervision, equipment and incidentals) to the various City of Houston Facilities. 23. In or around February of 2015, after the contract was executed, Defendants hired janitors, including Plaintiffs, and assigned them to work at locations throughout the city. 24. Plaintiffs and other janitors continued working for Defendants until approximately November of 2017, when the City of Houston, Texas terminated jBM?s contract following multiple complaints that were filed with the City of Houston?s Office of Inspector General alleging wage theft by JBM. Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 8 of 17 25. Following the City of Houston?s termination of contract, Defendants incorporated KRC, transferred assets to KRC and began operating the janitorial services company under KRC. 26. KRC is liable to Plaintiffs as a successor employer is liable to all plaintiffs as a successor employer because (1) it had notice of the charge/ complaints of wage theft against JBM prior to acquiring the business or assets of (2) IBM may no longer be able to provide relief to Plaintiffs; (3) there has been a substantial continuity of business operations between JBM and (4) KRC uses the same location that was previously used by (5) KRC uses the same or substantially the same work force as (6) KRC uses the same or substantially the same supervisory personnel as (7) the same jobs exist under substantially the same working conditions under KRC as they did under (8) KRC uses the same machinery, equipment, and methods of production as KRC did; and (9) KRC produces the same product/services that was produced by JBM. 27. During Plaintiffs? employment with JBM, they were engaged in commerce or the production of goods for commerce. See, 29 U.S.C. 203(b), 206(a), 207(a). 28. Specifically, Plaintiffs (and those whom they seek to represent) were individually covered by the FLSA because they delivered consumables toilet Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 9 of 17 paper, paper towels, hand soap, etc.) that had been moved in interstate commerce to customers. 29. During Plaintiffs? employment with JBM, the company was an enterprise engaged in commerce because it (1) had employees engaged in commerce or in the production of goods for commerce or had employees handling, selling or otherwise working on goods or materials that had been moved in or produced for commerce by others and (2) had an annual gross volume of sales made or business done of at least $500,000. See, 29 U.S.C. 203(r), 203(5), 206(a), 207(a). 30. Specifically, JBM were an enterprise covered by the FLSA because (1) Plaintiffs (and those whom they seek to represent) handled goods or materials mops, brooms, towels, soap, chemicals, vacuum cleaners, and other cleaning materials, supplies and equipment) that had been manufactured outside of and shipped into Texas (2) the company had an annual gross volume of sales made or business done in excess of $500,000. 31. JBM paid Plaintiffs on an hourly basis. 32. During Plaintiffs? employment with IBM, their regular rates fell below the statutory minimum wage because, among other things, JBM did not pay them for all hours worked. 29 U.S.C. 206(a)(1). 33. For example, JBM did not pay Plaintiffs for travel time between jobsites. Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 10 of 17 34. JBM also docked Plaintiffs? pay by one hour for being only a few minutes late. 35. Additionally, JBM only paid Plaintiffs for the hours they were scheduled to work even if they actually worked and reported more, which was usually the case. 36. During Plaintiffs? employment with JBM, they regularly worked in excess of forty hours per week. 37. JBM knew or reasonably should have known that Plaintiffs worked in excess of forty hours per week. 38. JBM did not pay Plaintiffs overtime ?at a rate not less than one and one- half times the regular rate at which [they were] employed.? 29 U.S.C. 207(a)(1) 39. Instead, JBM only paid Plaintiffs for the number of hours it wanted to pay them regardless of the number of hours they actually worked. In other words, JBM simply refused to pay Plaintiffs for all of their overtime even though it was both worked and accurately reported to the company. 40. JBM knew or reasonably should have known that Plaintiffs were not exempt from the overtime provisions of the FLSA. 41. JBM failed to maintain accurate time and pay records for Plaintiffs and other similarly situated nonexempt employees as required by 29 U.S.C. 211(c) and 29 C.F.R. pt. 516. -10- Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 11 of 17 42. JBM knew or showed a reckless disregard for whether its pay practices violated the FLSA. 43. JBM is liable to Plaintiffs for their unpaid overtime wages, liquidated damages and attorneys? fees and costs pursuant to 29 U.S.C. 216(b). 44. All janitors, lead-janitors and all other nonexempt employees employed by JBM are similarly situated to Plaintiffs because they (1) have similar job duties; (2) are not compensated for all of the hours that they work; (3) their regular rates routinely fell below the statutory minimum wage; (4) regularly work in excess of forty hours per week; (5) are not paid overtime for the hours they worked in excess of forty per week as required by 29 U.S.C. 207(a)(1) and (6) are entitled to recover their unpaid overtime wages, liquidated damages and attorneys? fees and costs from JBM pursuant to 29 U.S.C. 216(b). V. Count One?Failure To Pay the Minimum Wage in Violation of 29 U.S.C. 206(a) 45. Plaintiffs adopt by reference all of the facts set forth above. See, FED. R. P. 10(c). 46. During Plaintiffs? employment with JBM, they were nonexempt employees. -11- Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 12 of 17 47. As nonexempt employees, JBM was legally obligated to pay Plaintiffs at least $7.25 per hour. 29 U.S.C. 48. JBM did not pay Plaintiffs the statutory minimum wage as required by 29 U.S.C. 49. Instead, JBM paid Plaintiffs for fewer hours than they actually worked, which caused their regular rates to fall below the statutory minimum wage. 50. If JBM classi?ed Plaintiffs as exempt from the minimum wage requirements of the FLSA, they were misclassified because no exemption excuses the company?s noncompliance with the minimum wage requirements of the FLSA. 51. JBM knew or showed a reckless disregard for whether its pay practices violated the minimum wage requirements of the FLSA. In other words, JBM willfully violated the minimum wage requirements of the FLSA. VI. Count Two?Failure To Pay Overtime in Violation of 29 U.S.C. 207(a) 52. Plaintiffs adopt by reference all of the facts set forth above. See, Fed. R. Civ. P. 10(c). 53. During Plaintiffs? employment with JBM, they were nonexempt employees. 54. As a nonexempt employee, JBM was legally obligated to pay Plaintiffs ?at a rate not less than one and one-half times the regular rate at which [they were] -12- Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 13 of 17 employed[]? for the hours that they worked over forty in a workweek. 29 U.S.C. 207(a)(1). 55. JBM did not pay Plaintiffs overtime as required by 29 U.S.C. 207(a)(1) for the hours they worked in excess of forty per week. 56. Instead, JBM only paid Plaintiffs for the number of hours it wanted to pay them regardless of the number of hours they actually worked. In other words, JBM simply refused to pay Plaintiffs for all of their overtime even though it was both worked and accurately reported to the company. 57. As a result of these failures, JBM did not pay Plaintiffs overtime ?at a rate not less than one and one?half times the regular rate at which [they were] employed.? 29 U.S.C. 207(a)(1). 58. If JBM classi?ed Plaintiffs as exempt from the overtime requirements of the FLSA, they were misclassified because no exemption excuses the company?s noncompliance with the overtime requirements of the FLSA. 59. JBM knew or showed a reckless disregard for whether its pay practices violated the overtime requirements of the FLSA. In other words, JBM willfully violated the overtime requirements of the FLSA. -13- Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 14 of 17 VI. Count Three? Failure To Maintain Accurate Records in Violation of 29 U.S.C. 211(c) 60. Plaintiffs adopt by reference all of the facts set forth above. See, Fed. R. Civ. P. 10(c). 61. The FLSA requires employers to keep accurate records of hours worked by nonexempt employees. 29 U.S.C. 211(c); 29 C.F.R. pt. 516. 62. In addition to the pay violations of the FLSA described above, JBM also failed to keep proper time records as required by the FLSA. VII. Count Four? Collective Action Allegations 63. Plaintiffs adopt by reference all of the facts set forth above. See, Fed. R. Civ. P. 10(c). 64. On information and belief, other employees have been victimized by violations of the FLSA identified above. 65. These employees are similarly situated to Plaintiffs because, during the relevant time period, they held similar positions, were compensated in a similar manner required to work off-the-clock) and were denied overtime wages at one and one- half times their regular rates for hours worked over forty in a workweek. -14- Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 15 of 17 66. policy or practice of failing to pay overtime compensation is a generally applicable policy or practice and does not depend on the personal circumstances of the putative class members. 67. Since, on information and belief, Plaintiffs? experiences are typical of the experiences of the putative class members, collective action treatment is appropriate. 68. All employees of JBM, regardless of their rates of pay, who were paid at a rate less than one and one?half times the regular rates at which they were employed for the hours that they worked over forty in a workweek are similarly situated. Although the issue of damages may be individual in character, there is no detraction from the common nucleus of liability facts. The Class is therefore properly defined as: All janitors, lead-janitors and all other nonexempt employees employed by JBM at any location in the City of Houston, Texas during the last three years. 69. JBM is liable to Plaintiffs and the members of the putative class for the difference between what it actually paid them and what it was legally obligated to pay them. 70. Because JBM knew or showed a reckless disregard for whether its pay practices violated the FLSA, the JBM owes Plaintiffs and the members of the putative class their unpaid overtime wages for at least the last three years. -15- Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 16 of 17 71. JBM is liable to Plaintiffs and the members of the putative class in an amount equal to their unpaid overtime wages as liquidated damages. 72. JBM is liable to Plaintiffs and the members of the putative class for their reasonable attorneys? fees and costs. 73. Plaintiffs have retained counsel who are well versed in FLSA collective action litigation and who are prepared to litigate this matter vigorously on behalf of them and all other putative class members. Jury Demand 74. Plaintiffs demands a trial by jury. IX. Prayer 75. Plaintiffs prays for the following relief: a. an order allowing this action to proceed as a collective action under 29 U.S.C 216(b); b. judgment awarding Plaintiffs and the members of the putative class all unpaid overtime compensation, liquidated damages, attorneys? fees and costs; c. prejudgment interest at the applicable rate; d. postjudgment interest at the applicable rate; e. incentive awards for any class representative(s); f. all such other and further relief to which Plaintiffs and the members of the putative class may Show themselves to be justly entitled. -16- Case 4:18-cv-01263 Document 1 Filed in TXSD on 04/23/18 Page 17 of 17 Of Counsel: Bridget Davidson State Bar No. 24096858 Federal Id. No. 3005005 Moore Associates 440 Louisiana Street, Suite 675 Houston, Texas 77002 Telephone: (713) 222-6775 Facsimile: (713) 222-6739 -17- Respectfully Submitted?l MOORE ASSOCIATES Mm Me 'ssa Moore I State Bar No. 24013189 Federal Id. No. 25122 Curt Hesse State Bar No. 24065414 Federal Id. No. 968465 Lyric Centre 440 Louisiana Street, Suite 675 Houston, Texas 77002 Telephone: (713) 222-6775 Facsimile: (713) 222?6739 ATTORNEYS FOR PLAINTIFFS