15.  Omnicare is a pharmacy that sells and delivers prescription medications and  medical devices to nursing homes, medical facilities, and homes across the United  States. These items are only available by delivery; thus delivery is an integral part  of Omnicare’s business.    16.  Omnicare holds a competitive bidding process for provision of delivery  services in specific regions of the United States. As part of this process, Omnicare  develops the routes delivery drivers must run in a particular region and includes  them in its requests for proposal.    17.  The lowest bidder receives all Omnicare’s delivery work in that particular  state or region.    18.  As a result of the bidding process, Omnicare selected Act Fast Delivery of  Kentucky to deliver Omnicare products to customers in Kentucky.   19.  Act Fast entered into an agreement with Omnicare to deliver Omnicare  products to customers throughout Kentucky.  Omnicare is Act Fast’s largest  customer.   20.  Omnicare operates three regional distribution centers located in Lexington,  Ashland, and Beattyville, Kentucky. Act Fast provides delivery services for these  distribution centers.   21.  Act Fast hires drivers to deliver Omnicare products in Kentucky. While  nominally working for Act Fast, these drivers make deliveries on behalf of  Case: 5:18-cv-00142-REW-MAS   Doc #: 1   Filed: 02/19/18   Page: 4 of 13 - Page ID#: 4 5  Omnicare from Omnicare facilities to Omnicare customers when and where  Omnicare directs them to do so and in the manner Omnicare requires.    22.  Plaintiffs and members of the putative class (collectively, Drivers) use their  personal vehicles to make deliveries for Defendants’ benefit.   23.  Upon information and belief, Defendants employ more than 100 individuals  as Drivers based in Kentucky.   24.  Drivers make regularly scheduled deliveries to Omnicare’s customers  travelling routes set by Omnicare. After completion of the route, Omnicare requires  Drivers to return to their assigned regional distribution center to return Omnicare’s  boxes, bags, totes, and paperwork.    25.  Defendants pay Drivers a flat, predetermined rate for each route. When  calculated as an hourly rate, these flat rates result in a sub-minimum wage to  Drivers.    26.  Drivers also make stat runs, which are individual deliveries from Omnicare  facilities to Omnicare customers made on an expedited, emergency, and ad hoc  basis. Drivers are required to be on-call on regular schedules to make such stat  runs. Omnicare directs when and where Drivers make stat runs. Defendants  typically pay Drivers approximately 70 cents per mile one way for stat deliveries,  although some short stat runs are paid on a flat fee basis.  Defendants calculate the  mileage for stat runs, which is often less than the actual number of miles driven.    27.  At some times relevant to this Complaint, Defendants also employed  dispatchers who assigned Omnicare’s stat run orders to Drivers.  Defendants  Case: 5:18-cv-00142-REW-MAS   Doc #: 1   Filed: 02/19/18   Page: 5 of 13 - Page ID#: 5 6  required Dispatchers to perform delivery services as Drivers, even while  dispatching other Drivers. Some Dispatchers not only assigned stat runs in the  relevant Kentucky area, but also for Act Fast affiliates in Texas.   28.  Drivers routinely work in excess of 40 hours per week, but are not paid at the  overtime rate for these hours.   29.  Defendants misclassified Drivers as independent contractors as a part of a  fraudulent scheme to avoid their wage payment obligations under Kentucky’s wage  and hour laws.    30.  The employer–employee relationship between Defendants and Drivers is  evidenced by the following:   a. Defendants require Drivers to follow specific routes to deliver products  and specify the exact time to drive those routes.   b. Defendants control the method Drivers used to electronically report their  deliveries at each stop and mandate compliance with that method.   Defendants additionally require Drivers to complete specific paperwork at  each stop.  c. Defendants do not permit Drivers to negotiate a fee for their services.  d. Defendants issue Drivers a daily work schedule with the Driver’s  scheduled routes for the day. Defendants do not permit Drivers to reject  these assignments or any stat runs assigned to them.  e. Defendants require Drivers to wear a uniform imprinted with Act Fast’s  logo.  Case: 5:18-cv-00142-REW-MAS   Doc #: 1   Filed: 02/19/18   Page: 6 of 13 - Page ID#: 6 7  f. Defendants require Drivers to sign a non-compete agreement, prohibiting  them from working for any competitors.  g. Defendants’ application materials refer to Drivers as Employee[s] and to  Act Fast as Employer.  h. Defendants require Drivers to fill out a USCIS Form I-9 to verify their  employment eligibility, which is only required for employees.   31.  As employees, Drivers are not exempt from overtime or minimum wage  requirements as set forth in KRS 337, et seq. or the FLSA, 29 U.S.C. § 201, et seq.   32.  Act Fast and Omnicare are joint employers of the Drivers as evidenced by,  but not limited to, the following:   a. As set forth previously, Omnicare directs, controls, and supervises the  way that Drivers perform their work. This level of control is expressly  contemplated in the contract between Omnicare and Act Fast.   b. Due to the level of control Omnicare exercises over the Drivers, it knows  or should know that Act Fast is unlawfully underpaying the Drivers and  misclassifying them as independent contractors, all on Omnicare’s behalf.   c. Upon information and belief, Omnicare is Act Fast’s only customer in the  Ashland and Beattyville areas and is Act Fast’s largest customer in the  Lexington area, representing nearly all deliveries in that area.  Thus, if  Omnicare were to stop using Act Fast in Kentucky, Act Fast would go out  of business, as has happened in other states and regions when Omnicare  stopped contracting with Act Fast.  Case: 5:18-cv-00142-REW-MAS   Doc #: 1   Filed: 02/19/18   Page: 7 of 13 - Page ID#: 7 8   33.  In the course of using their own vehicles for Defendants’ benefit, Drivers  incur various necessary and required costs, including but not limited to gasoline,  vehicle parts and fluids, automobile repair and maintenance services, insurance,  and depreciation. Drivers incur vehicle rental fees when their own vehicles are  unusable, as they are not permitted to reject routes or stat runs. Collectively, all  such costs are referred to herein as Vehicle Costs.    34.  Defendants do not reimburse Drivers for Vehicle Costs.    35.  In addition, Defendants require Drivers to provide kickbacks to Defendants  in the form of unreimbursed Vehicle Costs. Because of Defendants’ failure to  account for these kickbacks, Drivers’ wages are not paid free and clear as required  by law.    36.  This underpayment is further compounded by Defendants’ unlawful  deductions from Drivers’ wages, including but not limited to deductions for payroll  processing fees and data transfer fees (collectively, Unlawful Deductions).    37.  Defendants also unlawfully charge Drivers for expenses solely for  Defendants’ benefit. These expenses include, but are not limited to, uniforms and  employment screening fees (collectively, Unlawful Expenses).    38.  Defendants also unlawfully fail to withhold income taxes, payroll taxes, FICA  taxes, and other required payments (collectively, Required Deductions) for the  Drivers’ benefit.    39.  Thus, at all relevant times, Defendants:  Case: 5:18-cv-00142-REW-MAS   Doc #: 1   Filed: 02/19/18   Page: 8 of 13 - Page ID#: 8 9  a. Failed to pay the minimum wages for all hours worked (including wait  time, on call time, and all other hours worked but not counted);  b. Failed to pay at least 1.5 times the regular or minimum wage rate for  hours worked in excess of 40 per week (including wait time, on-call time,  and all other hours worked but not counted);  c. Failed to reimburse for Vehicle Costs and other such kickbacks such that  Drivers were paid below legal minimums;  d. Withheld the Unlawful Deductions such that Drivers were paid below  legal minimums;   e. Charged the Unlawful Expenses such that Drivers were paid below legal  minimums; and   f. Failed to make Required Deductions.   40.  Upon information and belief, the class includes more than 100 individuals.   Although too numerous to join individually, the class members are identifiable  through employment records.    41.  There are common questions of law and fact to the class.  Each class member  was subject to Defendants’ common scheme of systematic underpayment and lack of  reimbursement of kickbacks during the relevant period. While Drivers were paid  different amounts for different routes, all such routes underpaid each Driver as a  result of this common scheme.  Case: 5:18-cv-00142-REW-MAS   Doc #: 1   Filed: 02/19/18   Page: 9 of 13 - Page ID#: 9 10   42.  Further, as described above, all class members were subject to the same  Unlawful Deductions, Unlawful Expenses, and lack of Required Deductions  pursuant to Defendants’ standard Driver payment policy.    43.  Further, as described above, all class members were subject to Defendants’  control rendering them employees of both, not independent contractors.    44.  The claims of the representative party, Davis, are typical of the class  members.  Davis was subject to the same common scheme regarding underpayment,  failure to reimburse kickbacks, Unlawful Deductions, Unlawful Expenses and lack  of Required Deductions as the members of the class.  As such, his claims are  identical to the class.    45.  The representative party will fairly and adequately represent the interests of  the parties.  Plaintiff Davis has agreed to serve as class representative if a class is  certified and accepts his obligation to act in the best interest of the class.    46.  The proposed Class is also appropriate because questions of law or fact  common to Class members predominate over any questions affecting only individual  members. Further, proceeding as a class is superior to other available methods of  fair and efficient adjudication of the controversy.  Questions of law and fact  predominate as every Class member was subject to identical efforts by Defendants’  to impose their unlawful wage practices upon them.  Further, absent treatment as a  class, Class members would be required to file individual lawsuits throughout the  Commonwealth to vindicate their rights under KRS 337, et seq. and 29 U.S.C. § 201,  et seq.  Case: 5:18-cv-00142-REW-MAS   Doc #: 1   Filed: 02/19/18   Page: 10 of 13 - Page ID#: 10 11   47.  As alleged herein, the proposed Class is also appropriate because Defendants  have acted or refused to act on grounds that apply generally to the Class, so that  final declaratory and/or injunctive relief is appropriate respecting the Class as a  whole.    48.  As such, pursuant to Fed. R. Civ. P. 23, the Class is properly defined as  follows (the “Class”):  All current and former delivery drivers or dispatchers  classified as independent contractors who were based at a  Kentucky distribution center and performed work for  Defendants from November 15, 2012 to the day the Court  authorizes notice.   49.  Defendants’ conduct as set forth in this Complaint violates Kentucky and  federal minimum wage and overtime requirements, including but not limited to  KRS 337.275, 337.285, 29 U.S.C. § 206, and 29 U.S.C. § 207.   50.  Pursuant to KRS 337.385 and 29 U.S.C. § 216, each and every member of the  Class is entitled to recover all unpaid minimum wages, overtime wages, Vehicle  Costs and other kickbacks, Unlawful Deductions, and Unlawful Expenses, as well  as unpaid Payroll Deductions.    51.  Additionally, pursuant to KRS 337.385 and 29 U.S.C. § 216, each and every  member of the Class is entitled to recover liquidated damages in an amount equal  to their unpaid wages damages as well as all attorney’s fees, costs, and other  expenses associated with bringing this action. Each and every member of the Class  is also entitled to pre- and post-judgment interest on all monetary awards.  Case: 5:18-cv-00142-REW-MAS   Doc #: 1   Filed: 02/19/18   Page: 11 of 13 - Page ID#: 11 12  52.  Defendants’ conduct as set forth in this Complaint violates KRS 337.060,  Kentucky’s statutory prohibition on payroll deductions.   53.  Pursuant to KRS 337.385, each and every member of the Class defined above  is entitled to recover liquidated damages in an amount equal to these unlawful  deductions as well as all attorney’s fees, costs, and other expenses associated with  bringing this action. Each and every member of the Class is also entitled to pre- and  post-judgment interest on all monetary awards.  54.  Defendants were unjustly enriched by the shifting of a portion of the cost of  doing business onto Drivers. Such costs include, but are not limited to, Drivers’  Vehicle Costs and other kickbacks, Unlawful Deductions, and Unlawful Expenses.   55.  Each and every member of the Class is entitled to restitution for all of  Defendants’ costs or fees that have been levied upon them, including but not limited  to the Unlawful Deductions and Unlawful Expenses. Each and every member of the  Class is also entitled to pre- and post-judgment interest on all monetary awards. 