 (Violation of NCWHA – Class Action)   (Violation of FLSA – Collective Action)   12.  At all times hereinafter mentioned, Defendants have been employers within the  meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d).   13.  At all times hereinafter mentioned, Defendants have been a joint employer under  the FLSA.   15.  At all times hereinafter mentioned, Defendants have been an enterprise engaged  in commerce or in the production of goods for commerce within the meaning of Section 3(s)(1)  of the FLSA, 29 U.S.C. § 203(s)(1), in that the enterprise has had employees engaged in  commerce or in the production of goods for commerce, or employees handling, selling, or  otherwise working on goods or materials that have been moved in or produced for commerce by  any person and in that the enterprise has had and has an annual gross volume of sales made or  business done of not less than $500,000 (exclusive of excise taxes at the retail level which are  separately stated).   16.  At all times hereinafter mentioned, Plaintiff has been an employee within the  meaning of Section 3(e) of the FLSA, 29 U.S.C. § 203(e).   17.  At all times hereinafter mentioned, Plaintiff was an individual employee who was  engaged in commerce or in the production of goods for commerce as required by 29 U.S.C. §  207.   18.  At all times hereinafter mentioned, Defendants have been employers within the  meaning of Section 95-25.2(5) of the NCWHA, N.C. Gen. Stat. §§ 95-25.2(5).   19.  At all times hereinafter mentioned, Defendants have been joint employers under  the NCWHA.   20.  At all times hereinafter mentioned, Plaintiff was an employee within the meaning  of Section 95-25.2(4) of the NCWHA, N.C. Gen. Stat. §§ 95-25.2(4).  22.  Manigo and the similarly situated individuals provided services essential to the  fundamental business purpose of Defendants, i.e., cable television services including installation,  maintenance, upgrade and repair.  No prior experience was required for Manigo and the similarly  situated individuals to perform work for the Defendants.  Instead, Defendants provided Manigo  and other similarly situated individuals with on-the-job training at the start and during their  employment.    23.  As installation technicians, Manigo and the similarly situated individuals had no  control over the manner and method by which they were paid.  Manigo and the similarly situated  individuals were paid on a “piece-rate” basis, receiving a specified amount of money for each job  they performed.  Although they regularly worked in excess of forty hours per week, Manigo and  the similarly situated individuals received no overtime pay from Defendants.   24.  As installation technicians, Manigo and the similarly situated individuals worked  solely for Defendants on a full-time and continuing basis.  Manigo and the similarly situated  individuals did not advertise their services to the general public, or work as installation  technicians for anyone other than Defendants.   25.  Although Manigo and the similarly situated individuals were classified by  Defendants as “independent contractors,” they were, in fact, Defendants’ employees under the  FLSA and other relevant laws and regulations.  As a result of this knowing and willful  misclassification, Manigo and the similarly situated individuals were denied overtime pay.    27.  Defendants’ installation technicians routinely work 6 days per week and  approximately 50 to 70 hours weekly.  29.  Defendants employ installation technicians in North Carolina and South Carolina.   30.  Manigo is similarly situated to other current and former installation technicians in  that they share similar titles, job duties, and compensation schemes, including the uniform policy  and practice of failing to pay overtime wages.   31.  Application of the aforementioned policy and practice was not dependent on the  personal circumstances of individual installation technicians, but rather affected Plaintiff and all  putative collective action class members.  Application of this policy or practice does not depend  on the personal circumstances of the Plaintiff or those joining this lawsuit.  Rather, the same  policy or practice that resulted in the failure to pay overtime at the rates required by the FLSA  applied to Plaintiff and all putative collective action class members.  Accordingly, the class is  properly defined as:  All current and former North Carolina and South Carolina installation  technicians employed by Defendants within three years prior to the filing of this  Complaint.   32.  Defendants willfully violated the provisions of the FLSA by failing to pay  installation technicians in compliance with the FLSA.  33.  Plaintiff brings Count II of his Complaint pursuant to Fed. R. Civ. P. 23 on behalf  of herself and the following class: All current and former North Carolina installation  technicians employed by Defendants within two years prior to the filing of this Complaint.   35.  This action under NCWHA, N.C. Gen. Stat. § 95-25.8, is maintainable as a class  action pursuant to Rule 23 for unlawful payroll deductions from the paychecks of Plaintiff and  members of the proposed class.   36.  The proposed class is easily ascertainable.  The number and identity of NCWHA  class members are determinable from Defendants’ payroll records or records over which they  have control.   37.  The proposed class is so numerous that the joinder of all such persons is  impracticable, and the disposition of their claims as a class will benefit the parties and the Court.   While the exact number of class members is unknown to Plaintiff at this time, upon information  and belief, the class is comprised of in excess of 50 individuals.   38.  There is a well-defined commonality of interest in the questions of law and fact  involving and affecting the proposed class in that Plaintiff and all members of the proposed class  have been harmed by Defendants’ failure to pay earned wages and unlawful wage deductions.   The common questions of law and fact include, but are not limited to the following:  (a)  whether Defendants refused to timely pay Plaintiff and members of the proposed  class promised and earned regular and overtime wages for all hours worked on their regular pay  day in violation of NCWHA §§ 95-25.6 and 7; and  (b)   whether Defendants made unlawful deductions from the compensation earned by  Plaintiff and members of the proposed class in violation of NCWHA § 95-25.8.   39.  The damages suffered by the named Plaintiff and the members of the proposed  class arise from the same nucleus of operative facts.   41.  Plaintiff is able to fairly and adequately protect the interests of all members of the  class, and there are no known conflicts of interest between Plaintiff and members of the proposed  class.  Plaintiff has retained counsel who is experienced and competent in both wage and hour  and multi-plaintiff litigation.   42.  A class action is superior to other available means for the fair and efficient  adjudication of this controversy.  Individual joinder of all class members is impracticable.  Class  action treatment will permit a large number of similarly situated persons to prosecute their  common claims in a single forum simultaneously, efficiently, and without the unnecessary  duplication of effort and expense that numerous individual actions engender.  Because the loss,  injuries, and damages suffered by each of the individual class members are modest, the expenses  and burden of individual litigation would make it extremely difficult or impossible for the  individual class members to redress the wrongs done to them.   44.  Plaintiff incorporates by reference paragraphs 1-43 of his Complaint.   45.  Count I arises from Defendants’ violation of the FLSA, for its failure to pay  overtime wages earned by Plaintiff and members of the proposed collective class.   46.  Defendant violated the FLSA by failing to pay Plaintiff and members of the  proposed collective class an overtime premium rate of pay as required by the FLSA for all hours  worked in excess of forty in a workweek.   47.  Defendant’s violation of the FLSA was willful.  48.  Plaintiff incorporates by reference paragraphs 1 through 47 of his Complaint.   50.  Defendants violated N.C. Gen. Stat. §§ 95-25.6 and 7 by failing to pay Plaintiff  and similarly situated employees all promised and earned wage payments on the employees’  regular payday for all hours worked.   51.  Defendants violated N.C. Gen. Stat. § 95-25.8 by making unlawful deductions  from the wages earned by Plaintiff and similarly situated employees.   52.  Defendants’ violation of the NCWHA was willful. 