(Individual Claims for Violation of FLSA  Against all Defendants   (Individual Claims for Violation of IMWL)  Against all Defendants   21  (Collective Action Claim for Violation of FLSA by Plaintiff and all  those similarly situated class members)  Against all Defendants   26 U.S.C.A. § 7434  27  Civil damages for fraudulent filing of  information return  Against ISA Experts  As  a Class and Individual Claim  112.Plaintiff realleges and incorporate by reference  all the preceding paragraphs, as if fully set  forth herein.  113.This count arises from the Defendants’  violation of 26 U.S.C.A. § 7434.   114.Defendants misclassify all its employees as  “Independent Contractors”.  115.From Plaintiff’s hire date to the end of his  employment Defendants reported Plaintiff’s  earnings to the Internal Revenue Service on  Internal Revenue Service but it failed to  include payments as wages.    116.Defendants’ willfully lied to the government in  filing the false documents identified herein.    117.Defendants’ benefited by doing so.  For  example, Defendants paid less in Social  Security contributions, paid less for workers  compensation  insurance,  paid  less  in  Department  of  Employment  Security  payments, and saved money elsewhere due to  the Non-Payroll Payments.    28  118.This also resulted in a loss to Plaintiff as he has  been deprived of these benefits, including but  not limited to the benefit of the social security  contribution that should have been made on  their behalf.   119.26 U.S.C.A. § 7434 provides that: “If any  person willfully files a fraudulent information  return with respect to payments purported to be  made to any other person, such other person  may bring a civil action for damages against  the person so filing such return.”   120.26 U.S.C.A. § 7434(b) allows for damages of  $5,000 per violation along with reasonable  attorney fees.   WHEREFORE, Plaintiff prays for a judgment against  Defendants seek a judgment for all amounts available  pursuant to 26 U.S.C.A. § 7434, including statutory  damages, prejudgment interest, and attorney fees and such  other relief that is available under the law. Plaintiff also  Prays that, at the earliest possible time, the Plaintiff be  allowed to give notice of this class actions, or that the  Court issue such notice, to all persons who are presently,  or have at any time during the six  years immediately  preceding the filing of this suit, up through and including  29  the date of this Court’s issuance of Court-supervised  notice, as alleged herein this complaint.  Such notice shall  inform them that this civil action has been filed, of the  nature of the action, and of their right to “opt out” of this  lawsuit.  44. Plaintiff alleges that in his last week of work, in February of 2019, he was  paid no wages for his last 62 hours of work, and as an employee of  Defendant was owed wages: minimum wages. Plaintiff was paid no  wages, thus Defendants are liable for minimum wage violations for  Plaintiff’s last two weeks of work in February of 2019.   10   45. In the two weeks of January 10 to January 23, 2019 Plaintiff worked 86.80  hours, thus should have been paid 6.80 hours of overtime, at an overtime  rate, but he was paid straight time for these overtime hours. Thus is owed   46. Plaintiff’s rate of pay was $15.00 per hour, thus his half time rate would be  $7.50 per hour, thus for this one week Plaintiff is owed $51.00 in  overtime pay.   47. Likewise in the weeks of December 13-26, 2018 Plaintiff worked 16.80  hours of overtime, and thus is owed overtime for these two weeks of  work.   48. Plaintiff was initially hired at $12.25 per hour, then increased to $12.25 per  hour as a floor manager, and a training rate fifty cents more when  training an employee.  49. All actions by Defendant were willful and not the result of mistake or  inadvertence.   50. Plaintiff had no control over his work environment whatsoever.   51. Defendants set the rules and had complete control over the venue, and Plaintiff  had to obey these rules or risk everything, including loss of his job. This is  the very hallmark of the economic dependence and control of an employer- employee relationship.  11   52. Despite being on notice of its violations, Defendant chose to continue to  misclassify Plaintiff and other members of the proposed collective class  and withhold all wages to them in effort to enhance their profits.   53. Defendants knew that persons such as Plaintiff and class were employees that  should be paid under the law, and has simply chosen not to pay them.   54. Evaluation of proper classification is a multiple part test, which the  Defendants have not properly applied to Plaintiff in determination of  their status, rather Defendants simply assumed incorrectly that the  Plaintiff and other employees were independent contractors, simply  because the Defendants declared them to be.   55. The test for Employee/contractor is found in a US DOL Fact Sheet #13:  Am I an Employee?: Employment Relationship Under the Fair Labor  Standards Act (FLSA) (revised May 2014).   56. The elements of this test demonstrate that Plaintiff and the class are not  properly classified. The elements are as follows:  1) the extent to which the work performed is an integral part of the employer’s  business.  2) Whether the worker’s managerial skills affect his or her opportunity for profit and  loss.   3) The relative investments in facilities and equipment by the worker and the employer  4) The worker’s skill and initiative.  5) The permanency of the worker’s relationship with the employer.  6) The nature and degree of control by the employer  12   57. Almost none of these factors are in Defendants’ favor as alleged as follows:  1) the extent to which the work performed is an integral part of the employer’s  business.  The work of the Plaintiffs and Class is integral part of the employers’ business. ASI’s  business is making calls to set up appointments for real estate sales and/or services  and the Plaintiff and the class’s work is solely related to that business: the Plaintiffs  and class made the calls to set up the appointments which are the key of the  Defendants’ business model.  2) Whether the worker’s managerial skills affect his or her opportunity for profit and  loss.   For the Plaintiff and Class there was no opportunity for profit or loss, the Plaintiff  and class were paid the same baseline pay, however none of the pay was classified  as wages. While Plaintiff and class might have been able to earn commissions or  bonuses, they did not have the opportunity to have a loss, thus showing they were  not independent contractors.   3) The relative investments in facilities and equipment by the worker and the  employer  Here Plaintiff and class made/make no investment other than their time and  efforts, while Defendant has made large investments.   4) The worker’s skill and initiative.  a. Here the Plaintiff and class “skills” were simply salesmanship, no  specialized skill or initiative was required. Further Defendants provide  strict sales scripts that employees are to follow.   b. Defendants forced employees to strict adhorance, a review of one persons  calls reads:  13  Feedback: Great job at adhering to the script and asking 3 questions.  Just don't forget to identify yourself to the caller. Also, ask about  additional realtor needs on every call. Try to match the callers pace, if  they sound elderly, or southern, slow down and confirm they  understood what you are saying. Keep up the great work, overall great  calls!  5) The permanency of the worker’s relationship with the employer.  a. While some members of the class were short time workers, many worked  for years.   b. Plaintiff himself worked for Defendants for eight months.  6) The nature and degree of control by the employer  a. Here Defendants have excreted strong and consistent control of employees,  including: requiring particular hours of work and scheduling hours of work.  b. Employees would be given a strike if they didn't dial what they were  assigned.  c. Strong element of control is found in the Defendants policy and procedures  which reads:  Proper notice will be given before any time off is approved that is not pre written on  your monthly calendar. The need for a shorter day, full day off, multiple days off  needs to be requested per the 3 strike guidelines. If you are running late for your  shift, immediate notice needs to be given to the Manager, preferred is 2 hour notice /  58. Plaintiff brings state wage law claims, pursuant to the Illinois Minimum  Wage Law 820 ILCS 105/1., as individual and class action.  The Class  is defined as all current, former and future employees of ISA employed  as employees of the Defendant who were classified as “independent  contractors” by Defendant thus depriving Plaintiffs’ of wages overtime  wages, and minimum wages not paid. These include claims for all owed  14  wages due for three (3) years prior to the filling of this complaint and  until an judgment is entered in this case (the “Class” and “Class Period,”  respectively) (hereinafter, “Plaintiffs” or “Plaintiffs” refers to both  Named Plaintiffs and the Class).   59. Excluded from the Class are ISA legal representatives, officers, directors,  assigns, and successors, or any individual who has, or who at any time  during the Class period has had, a controlling interest in ISA; the Judge  to whom this case is assigned and any member of the Judge’s immediate  family; and all persons who will submit timely and otherwise proper  request for exclusion from the Class.   6.80 hours of half time rate.   60. Numerosity: The persons in the Class identified above are geographically  diverse and so numerous that joinder of all members is impracticable.   Although the precise number of such persons is unknown, the facts on  which the calculation of that number are presently within the sole control  of Defendants.  Upon information and belief, there are hundreds of  members of the Class based upon the fact that during the Class Period,  ISA operated two locations and all call center persons were classified as  independent contractors. The numerosity is also demonstrated by the  ISA having a work force of 40 call center persons (as per Individual  Defendant statements). Plaintiff worked for Defendants and due to the  high “turnover” of these positions the number of potential class members  is increased substantially. It is estimated that there are at least 100 sales  persons in the class.  15   61. Commonality: There are numerous questions of law and fact common to  the Class that predominate over any questions affecting only individual  members.  The questions of law and fact common to this Class that  predominate over any question solely affecting individual members of  the Class, including but are not limited to:   62. whether the Defendants employed Plaintiffs and the Class within the  meaning of the IMWL;  a) whether Defendant misclassified those employees as “independent contractors”  b) Whether Defendant paid the class minimum wages and/or over time wages;   c) what proof of hours worked is sufficient where employers fail in their duty to  maintain time records   d) whether the Plaintiff and the Class were paid overtime wages pursuant to the  overtime provisions of the IMWL  e) whether Defendants’ engaged in a continuing policy, pattern or practice of failing  to pay all owed wages, overtime wages and minimum wages due to the  misclassification of the Individual Plaintiffs and Class Members;   63.  Typicality:   The claims of Representative Plaintiff is typical of the  Class.     64.   Adequacy: Representative Plaintiff will fairly and adequately  represent the interests of the Class.     65.  Superiority:  A class action is superior to other available methods for  their fair and efficient adjudication of the controversy – particularly in  the context of wage and hour litigation, where individual Plaintiff lack  16  the financial resources to vigorously prosecute separate lawsuits in Court  against a corporate Defendant like ISA.     66.  The Defendants have acted or refused to act on grounds generally  applicable to the class, thereby making appropriate final injunctive relief  or corresponding declaratory relief with respect to the class as a whole.   67.  A class action is superior to other available methods for the fair and  efficient adjudication of the controversy – particularly in the context of  this litigation where no individual employee can justify the commitment  of the large financial resources to vigorously prosecute a lawsuit in  Federal Court against the corporate Defendant.   68.  IMWL violation claims are brought and maintained as a class for all  IMWL claims asserted by the Plaintiff.  bB. The FLSA Collective Action   69.  Plaintiff brings claims for relief for violation of the FLSA as a collective  action pursuant to Section 16(b) of the FLSA (29 U.S.C. § 216(b)), on  behalf of all employees of ISA who were, are, or will be employed by  ISA during the period of three (3) years prior to the date of  commencement of this action through the date of judgment in this action,  who were not compensated at one-and-one-half times the regular rate of  pay for all work performed in excess of forty (40) hours per work week  and or for minimum wages owed for all hours worked.  17   70.  FLSA violation claims are brought and maintained as an “opt-in”  collective action pursuant to § 16(b) of FLSA, 29 U.S.C. § 216(b), for  all FLSA claims asserted by the Plaintiff, since the FLSA claims of the  Plaintiff is similar to the FLSA claims of all call persons employed by  83.  Plaintiff repeats and re-alleges all the preceding paragraphs of this  Complaint above, as if fully set forth herein.   83.  Defendant's conduct and practice, as described above, were/are willful,  intentional, unreasonable, arbitrary and in bad faith.  84 By reason of the unlawful acts alleged herein, Defendant is liable to Plaintiffs  and similarly situated members of the class for monetary damages, liquidated  damages and costs, including reasonable attorney's fees provided by the FLSA.  85 Plaintiff names the individual Defendant as alleged elsewhere in this  complaint, incorporated herein  84.  Defendants intentionally failed to pay Plaintiff overtime wages as required  under the FLSA.   85.  Defendants’ conduct and practices, as described above, were willful,  intentional, unreasonable, arbitrary and in bad faith.  20   86.  By reason of the unlawful acts alleged herein, Defendant is liable to  Plaintiffs for monetary damages, liquidated damages and costs,  including reasonable attorney's fees provided by the FLSA for all  violations which occurred beginning at least three (3) years preceding the  filing of Plaintiffs initial complaint, plus periods of equitable tolling.   87.  Plaintiff names the individual Defendant as alleged elsewhere in this  complaint, incorporated herein.   88.  Plaintiff repeats and re-alleges all the preceding paragraphs of the  Complaint above, as if fully set forth herein.   89.  Defendants intentionally failed to pay Plaintiffs overtime wages as  required under the IMWL and failed to pay a final checks, thus also violated  the minimum wage requirements of the IMWL.   90.  Defendants’ conduct and practice, as described above, are and/or were  willful, intentional, unreasonable, arbitrary and in bad faith.   91.  By reason of the unlawful acts alleged herein, Defendant is liable to  Plaintiffs for monetary damages, liquidated damages, prejudgment  interest, civil penalties and costs, including reasonable attorney's fees  provided by the IMWL.   92.  Plaintiff names the individual Defendant as alleged elsewhere in this  complaint, incorporated herein.  93.  Plaintiff repeats and re-alleges all the preceding paragraphs of the  Complaint above, as if fully set forth herein.   94.  Defendants intentionally failed to pay Plaintiff and all other call persons  overtime wages required under the FLSA.   Defendants.  )  CLASS AND COLLECTIVE ACTION COMPLAINT  NOW COMES the Plaintiff, Servando Reynoso, individually and on behalf of all others  similarly situated, as class representative, by and through his undersigned counsel of  record, upon personal knowledge as to those allegations in which he so possesses and  upon information and belief as to all other matters, pursuant to §216(b) of the Fair Labor  Standards Act (hereinafter “FLSA”), the Illinois Minimum Wage Law 820 ILCS 105/1  et seq (hereinafter “IMWL” ), The Illinois Wage Payment and Collection Act (IWPCA)  and brings this cause of action against Defendant LGS INC, D/B/A ISA Experts (ISA).,  (hereinafter “ISA” or Defendant), and Aleto Sarno, individually as an “Employer”  under the FLSA, IMWL and IWPCA, and against ISA pursuant to 26 U.S.C.A. § 7434  2  (fraudulent filing of a false information return) for the filing of false tax documents and  in so doing states the following:  IWPCA CLAIMS  Individual claims for Plaintiff   24  And Class Claims for all Misclassified Employees  For Wages Owed, Last Paychecks not paid, and  penalties  Against all Defendants  105. Plaintiff hereby re-alleges and incorporates by  reference the preceding paragraphs as if they  were set forth again herein.  106. Plaintiff also presents individual and Class claims  under the Illinois Wage Payment and Collection Act  MISCLASSIFICATION  