55.  Plaintiff brings this action on behalf of himself and all similarly situated current  and former drivers, namely, all other individuals who have performed courier and/or delivery  services for the Defendants and/or their parent organizations, successors and assigns within  Massachusetts, and who were not paid proper wages and had improper deductions made from  their wages.  Plaintiff’s proposed class meets all of the requirements of Rule 23 of the Federal  Rules of Civil Procedure.   56.  Plaintiff brings his First, Second, and Third Causes of Action, or in the  alternative, and assuming but not conceding same, his Fourth, Fifth and Sixth Causes of Action,  on his own behalf and as a class action, pursuant to Fed. R. Civ. P. 23 (a), on behalf of the  following class of persons:   All  delivery drivers who are currently or have been employed by Defendants as  independent contractors in Massachusetts at any time during the 3 years prior to  the filing of this Complaint to the entry of the judgment in the case (hereinafter  referred to as the “Massachusetts Class” and the “Massachusetts Class Period,”  respectively.)    57.  The persons in the Massachusetts Class are so numerous that joinder of all  members is impracticable.  Although, the precise number of such persons is unknown, and facts  8  on which the calculation of that number can be based on presently within the sole control of  Defendants.     58.  Upon information and belief, the size of the Massachusetts Class is at least 60  individuals.     59.  The First, Second, Third Causes of Action, or in the alternative, and assuming but  not conceding same, his Fourth, Fifth, and Sixth Causes of Action, are properly maintainable as a  class action under Fed. R. Civ. Pro. 23(b)(3).  There are questions of law and fact common to the  Massachusetts Class that predominate over any questions solely affecting individual members of  the Massachusetts Class, including but not limited to:  a. whether the Massachusetts Class Representative and the Massachusetts Class  were Defendants’ employees under M.G.L. c. 149, § 148B, or alternatively, but  not conceding same, pursuant to N.Y. Lab. Law § 862-b;   b. whether Defendants made unlawful deductions from the Massachusetts Class  Representative and the Massachusetts Class pay; and   c. the nature and extent of Massachusetts Class-wide injury and the appropriate  measure of damages sustained by the Massachusetts Class Representative and the  Massachusetts Class for unlawful deductions.    60.  The Massachusetts Class Representative fairly and adequately protects the  interests of the Massachusetts Class and has no interests antagonistic to the class.  The named  Plaintiff is represented by attorneys who are experienced and competent in both class litigation  and employment litigation.     61.  A class action is superior to other available methods for the fair and efficient  adjudication of this litigation – particularly in the context of wage litigation like the present action,  where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in  federal court against a corporate defendant.  The members of the Massachusetts Class have been  damaged and are entitled to recovery as a result of Defendants’ common and uniform policies,  9  practices, and procedures.  Although the relative damages suffered by individual members of the  Massachusetts Class are not de minimis, such damages are small compared to the expense and  burden of individual prosecution of this litigation.  In addition, class treatment is superior because  it will obviate the need for unduly duplicative litigation that might result in inconsistent judgments  about Defendants’ practices.    62.  The Massachusetts Class Representative and the Massachusetts Class have been  equally affected by the Defendants’ failure to pay proper wages.  Moreover, members of the  Massachusetts Class still employed by Defendants may be reluctant to raise individual claims for  fear of retaliation.     63.  Defendants have acted or refused to act on grounds generally applicable to the  Massachusetts Class, thereby making appropriate final injunctive relief or corresponding  declaratory relief with respect to the class was a whole.   64.  Plaintiff’s claims are typical of those of the Massachusetts Class.  Plaintiff and the  other Massachusetts Class members were subjected to the Defendants’ policies, practices,  programs, procedures, protocols and plans alleged herein concerning the failure to pay proper  wages.  Plaintiff’s job duties are typical of those of the class members.  65.  Plaintiff and similarly situated drivers (“Class Members”) have been victims of  Defendants’ unlawful policy of making deductions from Plaintiff’s and Class Members’ pay.     66.  Defendants failed to furnish Plaintiff and Class Members with an accurate  statement of, inter alia, wages, hours worked, rates paid as required by the NYLL.     67.  As part of its regular business practice, Defendants intentionally, willfully, and  repeatedly engaged in a pattern, practice, and/or policy that violates the Massachusetts statutory  10  and common law, alternatively, and assuming but not conceding same, violates the NYLL.   Defendants’ policy and pattern or practice includes but is not limited to:   a. willfully making improper deductions from Plaintiff’s and Class Members’  pay; and  b. willfully failing to keep payroll records as required by the NYLL.     68.  Defendants’ failure to properly pay Plaintiff and Class Members their proper wages  was willful, intentional and in bad faith.     69.  Defendants’ unlawful conduct has been widespread, repeated, and consistent.    70.  Krishna Mansingh was employed by Defendants from in or about September 2013  through in or about March 2015.     71.  Krishna Mansingh was an employee of Defendants, working under their direct  supervision.     72.  Although Krishna Mansingh was classified by the Defendants as an independent  contractor, he was the Defendants’ employee under G.L. c. 149, § 148B, and in the alternative,  and assuming but not conceding same, under N.Y. Lab. Law §§ 190(2) and 862-b.     73.  Defendants made unlawful wage deductions from Krishna Mansingh’s wages for  reasons that include, but are not limited to: workers’ compensation insurance, liability insurance,  other job related insurance, damage or problems with any delivery, uniforms, and truck lease  payments.    74.  Defendants unlawfully received kick-backs from Krishna Mansingh’s previously  agreed upon wage.     11   75.  Defendants made a statement, representation or understanding to Krishna  Mansingh that failure to provide a kick-back will result in Krishna Mansingh’s termination.    76.  Defendants failed to furnish Krishna Mansingh with a wage notice containing his  rate of pay and basis thereof, hourly rates of pay and overtime rates of pay, the designated pay day,  the name of the employer, the employer’s address and telephone number, and any other material  and necessary information.    77.  Defendants failed to furnish Krishna Mansingh with an accurate statement of wages  listing hours worked, rates paid, gross wages, allowances, and deductions taken, and net wages  paid.     78.  Upon information and belief, Defendants did not keep accurate records of hours  worked by Krishna Mansingh.    79.  Although Plaintiff and the similarly situated drivers were classified as independent  contractors of Eletto and IWA, both Eletto and Macy’s retained the right to control and did control  nearly every aspect of the delivery drivers’ work.  Such control includes, but is not limited to, the  following:  a.  Eletto required Plaintiff and similarly situated drivers to use helpers whom  Defendants must approve to assist them in making deliveries.  Eletto has  required Plaintiff and similarly situated drivers terminate certain helpers;  b.  Plaintiff and similarly situated drivers were required to report to the Dedham  warehouse by 5:00 a.m. each work day, at which time, Defendants provided  Plaintiff and other similarly situated drivers with manifests listing the deliveries  to be made that day;   c.  Defendants issued manifests to Plaintiff and similarly situated drivers to  determine what goods were delivered, where the deliveries were to be made, and  the timeframes within which deliveries were to be made. Plaintiff and similarly  situated drivers have no control with respect to the number of deliveries made,  12  the order in which deliveries are made, or the time frames within which  deliveries must be made;   d.  Plaintiff and similarly situated drivers then loaded their trucks with the  merchandise to be delivered that day.  They were required to leave the Dedham  warehouse by a certain time each day.  If they did not, they could be subjected to  “fines” or otherwise disciplined by Defendants;  e.  Plaintiff and similarly situated drivers did not negotiate with retail customers  regarding the rates charged for their services, and they did not contract with the  customers independent of Defendants;  f.  Macy’s trained Plaintiff and similarly situated drivers how to make deliveries  and interact with retail customers.  Before leaving the Dedham warehouse,  Plaintiff and other similarly situated drivers were required to meet with a Macy’s  general manager to obtain gate passes to allow them to leave the premises.   During these meetings, Macy’s typically required Plaintiff and similarly situated  drivers to “role-play” deliveries;    g.  Plaintiff and similarly situated drivers must comply with Macy’s grooming  standards.  Macy’s evaluated Plaintiff and similarly situated drivers’ appearances  and required they alter their appearances if deemed unsatisfactory;  h.  Plaintiff and similarly situated drivers were required to wear uniforms with the  Macy’s logo and specific colored shoes during deliveries.  If deliveries were  being made for Bloomingdale’s merchandise, a uniform bearing the  Bloomingdale’s logo had to be worn;   i.  Plaintiff and similarly situated drivers deliveries were monitored by Macy’s and  Eletto.  Plaintiff and similarly situated drivers were required to be in contact with  Eletto dispatchers regarding the status of deliveries throughout the day and carry  Macy’s issued tablets with apps that were used to keep Macy’s and Eletto  informed of their progress.  For each delivery stop, Plaintiff and similarly  situated drivers were required to advise Eletto when they arrived and left a  delivery.  If drivers encountered any problems with a delivery, they were  required to communicate with Eletto for instructions.  The tablet also included a  GPS system, which Eletto and Macy’s used to track Plaintiff and similarly  situated drivers;  j.  Plaintiff and similarly situated drivers were required to get signatures from  customers when deliveries were made; and   k.  Defendants evaluated Plaintiff’s and similarly situated drivers’ performance and  graded them accordingly, using performance matrices.    80.  Plaintiff and similarly situated drivers were paid a per stop rate for deliveries.  13   81.  Plaintiff and similarly situated drivers were required to pay for their own workers’  compensation insurance, liability insurance and other job related insurance. These amounts were  deducted from Plaintiff’s weekly settlement statements by Eletto.  In addition, Eletto required all  drivers, including Plaintiff, to place monies into an escrow account purportedly to cover damage  claims made by third parties.     82.  Defendants deducted costs of any damage from Plaintiff’s and similarly situated  drivers’ compensation if Defendants determine that a delivery was unsatisfactory (e.g. damaged  goods, damage to customer property).     83.  Macy’s and Eletto advertise on their websites that the delivery of merchandise as a  major business component.  Macy’s specifically touts its “white glove treatment” delivery  services.   84.  Plaintiff provided transportation of commercial goods for Defendants.     85.  Plaintiff and similarly situated drivers performed services that are not outside the  usual course of Defendants’ business and are integral to Defendants’ business.     86.  Plaintiff and similarly situated drivers are not customarily engaged in an  independently established trade, occupation, profession or business.  Plaintiff and similarly  situated drivers could not engage in an independent business given the full-time nature of their  work for Defendants and Defendants’ logos on their trucks.  Plaintiff and similarly situated drivers  are dependent upon Defendants for their work and are unable to offer delivery services to other  companies.  88.  Plaintiff realleges and incorporates by reference herein all allegations in all  preceding paragraphs.   89.  Pursuant to M.G.L. c. 149, § 148B, Defendants were the joint employers of Plaintiff  and the Massachusetts Class.     90.  Defendants violated M.G.L. c. 149, § 148 by requiring that Plaintiff and the  Massachusetts Class be subject to deductions from their compensation checks for any alleged  damage or problem with any delivery, as well as to deductions for insurance, uniforms, and truck  lease payments.     91.  Plaintiff asserts these claims under M.G.L. c. 149, § 150.  92.  Plaintiff realleges and incorporates by reference herein all allegations in all  preceding paragraphs.   93.  Defendants unjustly enriched themselves to the detriment of Plaintiff and the  Massachusetts Class members by taking unlawful deductions from the wages of Plaintiff and the  Massachusetts Class, in violation of the common law of Massachusetts, or, in the alternative, in  violation of the common law of New York.   15  94.  Plaintiff realleges and incorporates by reference herein all allegations in all  preceding paragraphs.   95.  Plaintiff and the Massachusetts Class members have been deprived by Defendants  of the fair value of their services, as described above, and are, therefore, entitled to recover in  quantum meruit, the value of their services pursuant to the common law of Massachusetts, or, in  the alternative, pursuant to the common law of New York.  96.  Plaintiff realleges and incorporates by reference herein all allegations in all  preceding paragraphs.   97.  Alternatively to the First Cause of Action, assuming but not conceding that the  ICA’s New York choice of law provision is enforceable, Plaintiff and similarly situated drivers  were employees of Defendants pursuant to N.Y. Lab. Law §§ 190(2) and 862-b.     98.  Assuming but not conceding that the ICA’s New York choice of law provision is  enforceable, Defendants knowingly, willfully, and intentionally violated N.Y. Lab. Law § 193 by   requiring that Plaintiff and the Massachusetts Class be subject to deductions from their  compensation checks for any alleged damage or problem with any delivery, as well as to  deductions for insurance, uniforms, and truck lease payments.    16  99.  Plaintiff realleges and incorporates by reference herein all allegations in all  preceding paragraphs.  100.  Assuming but not conceding that the ICA’s New York choice of law provision is  enforceable, Plaintiff and similarly situated drivers were employees of Defendants, pursuant to  N.Y. Lab. Law § 190(2) and 862-b.    101.  Assuming but not conceding that the ICA’s New York choice of law provision is  enforceable, Defendants violated N.Y. Lab. Law § 198-b by requiring that Plaintiff and the  Massachusetts Class be subject to deductions from their compensation checks for any alleged  damage or problem with any delivery, as well as to deductions for insurance, uniforms, and truck  lease payments.    In the Alternative, NYLL – Unlawful Wage Deductions  (Brought on behalf of Plaintiff and the Massachusetts Class)   In the Alternative, NYLL – Illegal Kick-Back of Wages  (Brought on behalf of Plaintiff and the Massachusetts Class)   In the Alternative, NYLL – Notice and Record-Keeping Requirement Violation  (Brought on behalf of Plaintiff and the Massachusetts Class)  102.  Plaintiff realleges and incorporates by reference herein all allegations in all  preceding paragraphs.  103.  Assuming but not conceding that the ICA’s New York choice of law provision is  enforceable, Defendants failed to supply Plaintiff and similarly situated drivers with a notice as  required by N.Y. Lab. Law § 195, in English or in the language identified by Plaintiff as his  primary language, containing Plaintiff’s rate or rates of pay and basis thereof, whether paid by  the hour, shift, day, week, salary, piece, commission, or other; hourly rate or rates of pay and  overtime rate or rates of pay if applicable; the regular pay day designated by the employer in  accordance with N.Y. Lab. Law § 191; the name of the employer; any “doing business as” names  17  used by the employer; the physical address of the employer's main office or principal place of  business, and a mailing address if different; the telephone number of the employer; plus such  other information as the commissioner deems material and necessary.  104.  Assuming but not conceding that the ICA’s New York choice of law provision is  enforceable, Defendants failed to supply Plaintiff and similarly situated drivers with an accurate  statement of wages as required by N.Y. Lab. Law § 195, containing the dates of work covered by  that payment of wages; name of employee; name of employer; address and phone number of  employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week,  salary, piece, commission, or other; gross wages; hourly rate or rates of pay and overtime rate or  rates of pay if applicable; the number of hours worked, including overtime hours worked if  applicable; deductions; and net wages.  105.  Assuming but not conceding that the ICA’s New York choice of law provision is  enforceable, due to Defendants’ violations of N.Y. Lab. Law § 195, Plaintiff and similarly  situated drivers are entitled to damages of $50 for each workweek that Defendants failed to  provide a wage notice, or a total of $2,500 per class member, and damages of $100 for each  workweek that Defendants failed to provide accurate wage statements, or a total of $2,500 per  class member, as provided for by N.Y. Lab. Law § 198, reasonable attorneys’ fees, costs, and  injunctive and declaratory relief.  18  Massachusetts Common Law – Quantum Meruit  (Brought on behalf of Plaintiff and the Massachusetts Class)   Massachusetts Common Law – Unjust Enrichment  (Brought on behalf of Plaintiff and the Massachusetts Class)   Massachusetts General Law – Unlawful Wage Deductions  (Brought on behalf of Plaintiff and the Massachusetts Class)  