(Brought Individually and on a Collective Basis Pursuant to 29 U.S.C. § 216(b))  VIOLATION OF THE FAIR LABOR STANDARDS ACT,   29 U.S.C. § 201, et seq.   (Rule 23 Class Action)  Violations of Texas Common Law  FAILURE TO PAY WAGES     1.5 times their regular rate, in violation of the FLSA.  6   18.  Plaintiff’s and other similarly situated call center employees’ primary job duties  include handling incoming calls and providing customer service, among other non-exempt duties.    19.  Plaintiffs and similarly situated call center employees hold titles such as “call  center representatives” and “call center agents,” among others (hereinafter referred to as “call  center employees”).      20.  Throughout Plaintiff’s employment with Defendant, Plaintiff and other call center  employees regularly worked off-the-clock.   21.  In order to perform their jobs, Defendant’s call center employees are required to  boot up their computers, log into various computer programs, among other tasks, before they can  take their handle their first incoming call at the start of their scheduled shifts.    22.  In order to perform their jobs, Defendant’s call center employees are required to  close/shut down all their computer programs and systems after the end of their scheduled shifts.    23.  In order to perform their jobs and meet Defendant’s deadlines, Defendant’s call  center employees are required to perform additional work activities, such as handling paperwork  and attending meetings, outside of their scheduled shifts.   24.  The activities call center employees performed outside of their scheduled shifts  benefited Defendant and were essential to their responsibilities as call center employees.   25.  Defendant required Plaintiff and other call center employees to perform these   activities outside of their scheduled shifts but prohibited call center employees from clocking in  2 See Defendant’s website: https://www.empereon-constar.com/about/who-we-are.html (Last Accessed October 5,  2020).   5  for this time. Defendant’s policy compelled them to perform these activities without clocking in  for it and therefore perform it off-the-clock.   26.  The U.S. Department of Labor recognizes that call center jobs, like those held by  Defendant’s call center employees, are homogenous and it issued Fact Sheet #64 in July 2008 to  alert call center employees to some of the abuses which are prevalent in the industry. One of those  abuses, which is occurring in this case, is an employer’s refusal to pay for work “from the  beginning of the first principal activity of the workday to the end of the last principal activity of  the workday.”  Fact Sheet #64 at p. 2. The Department of Labor’s Fact Sheet #64 specifically  condemns an employer’s non-payment of an employee’s necessary pre-shift activities: “An  example of the first principal activity of the day for agents/specialists/representatives working in  call centers includes starting the computer to download work instructions, computer applications  and work-related emails.” Additionally, the FLSA requires that “[a] daily or weekly record of all  hours worked, including time spent in pre-shift and post-shift job-related activities must be kept.”  Id.   27.  As a result of Defendant’s company-wide policy and practice of requiring Plaintiff  and other call center employees to perform these tasks outside of their scheduled shift hours,  Plaintiff and other call center employees have not been compensated for all hours worked.    28.  As non-exempt employees, Plaintiff and other call center employees were entitled  to full compensation for all overtime hours worked at a rate of 1.5 times their “regular rate” of pay.   29.  Because Plaintiff and other call center employees typically worked at least 40 hours  in a workweek, they were not paid for time spent working in excess of 40 hours in a workweek at   30.  For example, in the pay period of March 30, 2020 through April 12, 2020 Plaintiff  worked over 40 hours in each workweek, as well as additional hours off-the-clock.   31.  Defendant has been aware of its obligation to pay overtime for all hours worked in  excess of forty (40) each week to Plaintiff and other call center employees but has failed to do so.    32.  Defendant knew or could have easily determined how long it took for its call center  employees to complete their start-up, shut down, and additional work tasks outside of their  scheduled shift hours and could have properly compensated call center employees for this work  they performed, but did not.   33.  At all relevant times, Defendant was Plaintiff’s “employer” and Defendant directed  and directly benefited from the work performed by Plaintiff and other call center employees off- the-clock.   34.  At all relevant times, Defendant controlled Plaintiff’s and all other call center  employees’ work schedule, duties, protocols, applications, assignments, and employment  conditions.   35.  Defendant knew or should have known that the time call center employees spent  performing start-up, shut down, and additional work activities outside of their scheduled shifts is  compensable under the FLSA.    36.  At all relevant times, Defendant was able to track the amount of time that Plaintiff  and other call center employees spent in connection with these start-up, shut down, and additional  work activities outside of their scheduled shifts; however, Defendant failed to document, track, or  pay them for such work.    37.  At all relevant times, Defendant’s policies and practices deprived Plaintiff and other  call center employees of wages owed for the start-up, shut down, and additional work activities  7  Plaintiff and other call center employees performed outside of their scheduled shifts, in violation  of the FLSA and Texas common law.   38.  Plaintiff brings this action pursuant to 29 U.S.C. § 216(b) of the FLSA on her own  behalf and on behalf of:  All current and former call center employees who worked for Defendant in any of  their locations in the United States at any time within the three years preceding the  commencement of this action and the date of judgment.  (hereinafter referred to as the “Collective”).  Plaintiff reserves the right to amend this definition  as necessary.   39.  With respect to the claims set forth in this action, a collective action under the FLSA  is appropriate because the employees described above are “similarly situated” to Plaintiff under  29 U.S.C. § 216(b).  The Collective of employees on behalf of whom Plaintiff brings this  collective action are similarly situated because (a) they have been or are employed in the same or  similar positions; (b) they were or are subject to the same or similar unlawful practice, policy, or  plan; and (c) their claims are based upon the same factual and legal theories.   40.  The employment relationships between Defendant and every Collective member  are the same and differ only in name, location, and rate of pay. The key issues – the amount of  uncompensated work time owed to each employee – do not vary substantially from Collective  member to Collective member.   41.  The key legal issues are also the same for every Collective member: time spent  booting up and shutting down their computer, logging in and out of computer programs, and  performing other work tasks essential to their responsibilities as call center employees off-the- clock is compensable under the FLSA.  8   42.  Plaintiff estimates that the Collective, including both current and former employees  over the relevant period, will include at least hundreds of members. The precise number of  Collective members should be readily available from a review of Defendant’s personnel and  payroll records.  43.  Plaintiff brings this action pursuant to Fed R. Civ. P. 23(b)(2) and (b)(3) on her own  behalf and on behalf of:  All current and former call center employees who worked for Defendant in the state  of Texas at any time within the four years preceding the commencement of this  action and the date of judgment. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.004.  (hereinafter referred to as the “Rule 23 Class”). Plaintiff reserves the right to amend  this definition as necessary.    44.  The members of the Rule 23 Class are so numerous that joinder of all Rule 23 Class  members in this case would be impractical. Plaintiff reasonably estimates that there are several  hundred Class members. Rule 23 Class members should be easy to identify from Defendant’s  computer systems and electronic payroll and personnel records.   45.  There is a well-defined community of interest among Rule 23 Class members and  common questions of law and fact predominate in this action over any questions affecting  individual members of the Rule 23 Class. These common legal and factual questions, include, but  are not limited to, the following:  a. Whether Rule 23 Class members worked off-the-clock;  b. Whether Defendant maintained a policy or practice of failing to  pay Rule 23 Class members for work performed off-the-clock;   c. Whether Defendant contractually agreed to pay Rule 23 Class  members for all hours worked;   9  d. Whether Defendant failed to pay Rule 23 Class members for all  hours worked;   e. Whether Defendants’ violations of Texas common law were  willful and/or in good faith.   46.  Plaintiff’s claims are typical of those of the Rule 23 Class in that she and all other  Rule 23 Class members suffered damages as a direct and proximate result of the Defendant’s  common and systemic payroll policies and practices. Plaintiff’s claims arise from the same  policies, practices, promises and course of conduct as all other Rule 23 Class members’ claims and  her legal theories are based on the same legal theories as all other Rule 23 Class members.   47.  Plaintiff will fully and adequately protect the interests of the Rule 23 Class and has  retained counsel who are qualified and experienced in the prosecution of nationwide wage and  hour class actions. Neither Plaintiff nor her counsel has interests that are contrary to, or conflicting  with, the interests of the Rule 23 Class.   48.  A class action is superior to other available methods for the fair and efficient  adjudication of this controversy, because, inter alia, it is economically infeasible for Rule 23 Class  members to prosecute individual actions of their own given the relatively small amount of damages  at stake for each individual along with the fear of reprisal by their employer. Prosecution of this  case as a Rule 23 Class action will also avoid duplicative lawsuits being filed in state and federal  courts throughout the nation.   49.  Defendant’s corporate-wide policies and practices affected all class members  similarly, and Defendant benefited from the same type of unfair and/or wrongful acts as to each  class member. Plaintiffs’ claims arise from the same legal theories as all other class members.  Therefore, this case will be more manageable and efficient as a Rule 23 class action. Plaintiffs and  their counsel know of no unusual difficulties in this case.   10   50.  Since the elements of Rule 23(b)(3) are satisfied in this case, class certification is  appropriate.  Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393; 130 S. Ct.  1431, 1437 (2010) (“[b]y its terms [Rule 23] creates a categorical rule entitling a plaintiff whose  suit meets the specified criteria to pursue his claim as a class action”).   51.  Because Defendant acted and refused to act on grounds that apply generally to the  Rule 23 Class and declaratory relief is appropriate in this case with respect to the Rule 23 Class as  a whole, class certification pursuant to Rule 23(b)(2) is also appropriate.  52.  Plaintiff re-alleges and incorporates all previous paragraphs herein and further  alleges as follows.   53.  At all times relevant to this action, Defendant was an employer under 29 U.S.C. §  203(d) of the FLSA, subject to the provisions of 29 U.S.C. § 201, et seq.   54.    Defendant is engaged in interstate commerce, or in the production of goods for  commerce, as defined by the FLSA.   55.  At all times relevant to this action, Plaintiff and other Collective members were  “employees” of Defendant within the meaning of 29 U.S.C. § 203(e)(1) of the FLSA.   56.   Plaintiff and other Collective members either (1) engaged in commerce; or (2)  engaged in the production of goods for commerce; or (3) were employed in an enterprise engaged  in commerce or in the production of goods for commerce.   57.  At all times relevant to this action, Defendant “suffered or permitted” Plaintiff and  other Collective members to work and thus “employed” them within the meaning of 29 U.S.C. §  203(g) of the FLSA.  11   58.  At all times relevant to this action, Defendant required Plaintiff and other Collective  members to perform start-up, shut down, and additional work activities outside of their scheduled  shifts as described herein, but failed to pay these employees the federally mandated minimum wage  or overtime compensation for such time.   59.  The uncompensated start-up, shut down, and additional work activities performed  by Plaintiff and other Collective members was an essential part of their jobs and these activities  and the time associated with these activities is not de minimis.   60.  In workweeks where Plaintiff and other Collective members worked 40 hours or  more, the uncompensated time should have been paid them at the federally mandated rate of 1.5  times each employee’s regularly hourly wage. 29 U.S.C. § 207.   61.  Defendants’ violations of the FLSA were knowing and willful. Defendant knew or  could have easily determined how long it took for its call center employees to perform these start- up, shut down, and additional work activities outside of their scheduled shifts and Defendant could  have properly compensated Plaintiff and the Collective for such time, but did not.     62.   The FLSA, 29 U.S.C. § 216(b), provides that as a remedy for a violation of the  Act, an employee is entitled to his or her unpaid wages (and unpaid overtime if applicable) plus  an additional equal amount in liquidated damages (double damages), plus costs and reasonable  attorneys’ fees.   63.  Plaintiff re-alleges and incorporates all previous paragraphs herein.    64.  Plaintiff further brings this action pursuant to the equitable theory of quantum  meruit. See Artemis Seafood, Inc. v. Butcher’s Choice, Inc. No. CIV. A. 3:98-0282, 1999 WL  12  608853, at *3 (N.D. Tex. Aug. 11, 1999) (citing Schuchart & Assocs. V. Solo Serve Corp., 1983  WL 1147, at *23 (W.D. Tex. June 29, 1983).    65.  The Texas Common-Law Class Members are entitled to recover their unpaid  “straight time” or “gap time” wages for services rendered on behalf of Defendant. These claims are  independent of Plaintiff’s claims for unpaid overtime wages pursuant to the FLSA, and they are  therefore not preempted by the FLSA. See Carman v. Meritage Homes Corp., 37 F.Supp.3d 860,  867 (S.D. Tex. 2014).   66.  The Texas Common-Law Class Members provided valuable services for  Defendant, at Defendant’s direction and with Defendant’s acquiescence.   67.  Defendant accepted Plaintiff’s and the Texas Common-Law Class Members’  services and benefited from their timely dedication to Defendant’s policies and adherence to  Defendant’s schedule.   68.  Defendant was aware that Plaintiff and the Texas Common-Law Class Members  expected to be compensated for the services they provided to Defendant.   69.  Defendant has therefore been benefited from services rendered by Plaintiff and the  Texas Common-Law Class Members and Plaintiff and the Texas Common-Law Class Members  are entitled to recover pursuant to the equitable theory of quantum meruit.  