(DECLARATORY JUDGMENT, ARIZ.REV. STAT. § 12-1831, ET SEQ.)   (RESTITUTION/UNJUST ENRICHMENT)   (VIOLATION OF FLSA, 29 U.S.C. § 201 ET SEQ. – MINIMUM WAGE)   (VIOLATIONS OF ARIZONA WAGE LAWS, ARIZ. REV. STAT. § 23-351 ET  SEQ.)   (VIOLATION OF FAIR LABOR STANDARDS ACT (FLSA), 29 U.S.C. § 201 ET  SEQ. – OVERTIME)   1.  The employer is required or empowered to do so by state or federal law.   11.  In Arizona, OnTrac utilizes more than two hundred delivery drivers, like  Plaintiff, to deliver packages from OnTrac’s distribution center, located at 4400 E.  Elwood Street in Phoenix, Arizona, to residential and business customers throughout  Arizona.   12.  OnTrac subcontracts with Regional Service Providers (RSPs), who contract  with the drivers to provide delivery services to or on behalf of OnTrac’s customers.   RSPs obtain an exclusive right from OnTrac to operate within a specific area by  purchasing that right from OnTrac.  These service areas are established by OnTrac using  zip codes.  An RSP that purchases a service area from OnTrac is responsible for  delivering all of the packages to OnTrac’s customers within the zip code that corresponds  to the service area.  Upon information and belief, most RSPs are responsible for thirty or  more service areas. Upon information and belief, the RSPs lack their own, physical  offices and, instead, operate entirely out of OnTrac’s distribution center.    13.  RSPs enter into agreements with drivers, like Plaintiff, for the drivers to  deliver the packages from the OnTrac distribution center to the OnTrac customers in a  particular RSP service area.  Although the agreements between drivers and the RSPs state  that the drivers are hired by the RSPs as independent contractors, the economic reality of  the arrangement is that the drivers are actually employees of OnTrac.  Upon information  and belief, OnTrac mandates as a condition of its agreements with RSPs, that RSPs  contract with drivers as independent contractors, as opposed to employees.     14.  RSPs are used as intermediaries but OnTrac controls and supervises the  delivery process.  As alleged in more detail below, OnTrac exercises near-total control  over the manner in which drivers perform package delivery services.     16.  Drivers are compensated on a per address basis, meaning they receive a flat  rate for every address to which they deliver one or more packages.  Drivers only receive  payment for a delivery if OnTrac deems that the delivery has been completed.        17.  OnTrac has the power to terminate any driver for any reason by instructing  an RSP to end its relationship with a driver.  If OnTrac terminates a driver, OnTrac  prohibits the driver from being rehired by a different RSP.  Additionally, OnTrac can, for  any reason, prevent an RSP from hiring a driver in the first place.     18.  Though the drivers’ contracts with RSPs state that drivers are permitted to  work simultaneously for multiple RSPs and/or for delivery companies other than OnTrac,  in practice, OnTrac forbids drivers from working simultaneously for more than one RSP  or for another delivery company.  OnTrac enforces this policy by terminating or  suspending or threatening to terminate or suspend drivers who work simultaneously for  more than one RSP or for another delivery company.     19.  Additionally, though drivers’ contracts with RSPs permit the drivers to hire  others to share or cover their routes, in practice, OnTrac forbids drivers from  subcontracting with other additional drivers to deliver packages for them or assist in the  delivery process.  OnTrac enforces this policy by terminating or suspending or  threatening to terminate or suspend drivers who attempt to subcontract with additional  drivers to share or cover their routes.         2.  The employer has prior written authorization from the employee. An  employer shall not withhold wages under a written authorization from the  employee past the date specified by the employee in a written revocation of  the authorization, unless the withholding is to resolve a debt or obligation  to the employer or a court orders otherwise.   21.  Drivers are not expressly required by their contracts with RSPs to wear an  OnTrac uniform.  Instead, they are provided with a choice between (a) purchasing and  wearing an OnTrac shirt and hat in exchange for OnTrac paying the driver a nominal  clothing fee (approximately $5.00 per day) or (b) not wearing OnTrac clothing.  In  practice, however, OnTrac terminates or suspends and has terminated and suspended  drivers for failing to comply with verbal uniform requirements, which consists of  requiring drivers to wear an OnTrac shirt and hat, black shoes, and beige pants.   22.  OnTrac specifies the type of vehicle that the drivers are permitted to use.   Drivers cannot use any other type of vehicle to deliver packages.  OnTrac has the  discretion to terminate or suspend and, on information and belief, has terminated and  suspended drivers for using an unapproved vehicle to deliver packages.  Drivers who  provide their own vehicles must pay for gas, maintenance, and all other expenses  necessary to operate the vehicles.        23.  As a condition of becoming a driver, OnTrac requires that all drivers  maintain certain levels of commercial insurance coverage and that drivers name OnTrac  as an additional insured on the policy.   24.  All drivers must have a special scanner in order to perform deliveries for  OnTrac.  Upon information and belief, RSPs lease the scanners from OnTrac.  Upon  information and belief, OnTrac deducts from each drivers’ bi-weekly paycheck an  amount of money labeled as a “courier fee.”  Upon information and belief, this courier  fee includes, among other things, a charge to the drivers for use of the OnTrac scanners.   Upon information and belief, the “courier fee” ranges from approximately $45 to $75  every two weeks, depending on how much money a driver earns during the same pay  period.          26.  Sometimes, when drivers arrive at the OnTrac distribution center at the  time specified by OnTrac, they are informed by OnTrac that there are no packages for  them to deliver.  OnTrac and its processing of packages is solely responsible for these  delays in the readiness of packages for delivery.  When these delays occur, OnTrac  requires that the drivers wait at the distribution center until the packages are ready to be  delivered.  Sometimes, drivers must wait many hours before they are assigned a route.   OnTrac has the discretion to terminate or suspend and, on information and belief, has  terminated and suspended drivers for refusing to wait at the distribution center until they  are assigned a delivery route or packages for delivery.          27.  After they are assigned a route, the drivers are required by OnTrac to load  their vehicles with the packages for delivery.  The packages for each route are pre-sorted  by OnTrac on palettes.  Once drivers finish loading their vehicle, they proceed to the  OnTrac office (located within the distribution center), where OnTrac staff provide the  drivers with a delivery manifest prepared by OnTrac.  The delivery manifest sets forth the  drivers’ name and OnTrac ID number, all deliveries for which the driver is responsible  that day, and the time frame within which each package must be delivered.   29.  In addition, OnTrac adds and cancels deliveries from a driver’s manifest  after the driver has left the distribution center.  When deliveries are added to the manifest,  the drivers have no choice but to accept and complete these additional deliveries, which  require the driver to return to the distribution center or some other location to pick up the  package.  OnTrac has the discretion to terminate or suspend and, on information and  belief, has terminated and suspended drivers for failing to deliver packages added to the  drivers’ manifest after departing the distribution center to begin their deliveries.  When  deliveries are cancelled, the drivers do not receive any compensation for those packages  they are transporting.   3.  There is a reasonable good faith dispute as to the amount of wages due,  including the amount of any counterclaim or any claim of debt,  reimbursement, recoupment or set-off asserted by the employer against the  employee.   30.  OnTrac also instructs drivers to pick up packages for delivery from  customers within the drivers’ delivery areas.   OnTrac has the discretion to terminate or  suspend and, on information and belief, has terminated and suspended drivers for failing  to pick up packages as instructed by the OnTrac dispatchers.   32.  OnTrac has the discretion to terminate or suspend and, on information and  belief, has terminated and suspended drivers for failing to deliver packages within the  time window set forth in the delivery manifests prepared and provided by OnTrac to  drivers.      33.  OnTrac requires that all drivers “clear” their route before they are free to  stop working for the day.  A route is not considered “cleared” unless (a) all packages on  the drivers’ manifest have been deemed delivered or undeliverable and, if applicable, (b)  any undeliverable packages have been returned to the OnTrac distribution center and  unloaded by the driver and (c) any packages picked up during the day have been  delivered to the OnTrac distribution center and unloaded by the driver.     34.  OnTrac, not the RSPs, determines whether the drivers’ route has been  cleared.  If OnTrac determines that the route has not been cleared, OnTrac requires  drivers to remedy whatever issue is preventing the route from being cleared.  OnTrac has  the discretion to terminate or suspend and, on information and belief, has terminated and  suspended drivers for failing to clear their routes or failing to remedy issues that have  prevented the route from being cleared.     35.  By way of example, on a number of occasions, Plaintiff Ziglar called  OnTrac to clear his route after delivering all of the packages that he had loaded into his  van.  He was informed by OnTrac that he still had one or more packages to deliver and  that his route was not clear.  Even though the packages had not been included on Plaintiff  Ziglar’s palette in the morning (and therefore had not been loaded into his truck), OnTrac  required Plaintiff Ziglar to return to the distribution center, locate and load the packages,  and return to the field to deliver them.     37.  Though the length of each driver’s day can vary, drivers typically work  more than 8 hours per day from the time they arrive at the OnTrac distribution center  until OnTrac confirms their route is clear.  Upon information and belief, drivers often  work 12 or more hours from the time they arrive at the OnTrac distribution center until  OnTrac confirms their route is clear.     38.  Drivers, including Plaintiff, typically work more than 40 hours per week  while providing services for OnTrac.  However, drivers are never provided with time and  one-half their regular rate of pay for hours worked greater than 40 hours in a work week.   Plaintiff Ziglar frequently worked 6 or 7 days in a week for 8 or more hours per day.   Consequently, he worked more than 40 hours in one week delivering packages for  OnTrac.  However, he only was paid his ordinary per delivery rate and was never paid  any overtime pay.   39.  Drivers, including Plaintiff, frequently are not paid for all hours worked at  an hourly rate at or in excess of the minimum wage rates established by the FLSA, 29  U.S.C. § 206, and its implementing regulations, and the Arizona Minimum Wage Statute,  Ariz. Rev. Stat. § 23-363, and its implementing regulations.  In many weeks, the payment  that the drivers, including Plaintiff, receive for performing delivery services, divided by  the number of hours the drivers had performed those services has resulted and will  continue to result in an hourly rate of pay below the relevant federal and Arizona  minimum wages.     41.  Plaintiff brings this action as a class action pursuant to Federal Rule of  Civil Procedure 23, on behalf of all drivers who delivered packages for Defendant in  Arizona and have been designated as “independent contractors” during or at any time  following the 12-month period preceding the filing of this complaint.      42.  Plaintiff and other class members have uniformly been misclassified as  independent contractors.     43.  The members of the class are so numerous that joinder of all class members  is impracticable.   45.  The named Plaintiff is a member of the class, who suffered damages as a  result of Defendant’s conduct and actions alleged herein.    46.  The named Plaintiff’s claims are typical of the claims of the class, and the  named Plaintiff has the same interests as the other members of the class.    47.  The named Plaintiff will fairly and adequately represent and protect the  interests of the class.  The named Plaintiff has retained able counsel experienced in class  action litigation.  The interests of the named Plaintiff are coincident with, and not  antagonistic to, the interests of the other class members.   48.  The questions of law and fact common to the members of the class  predominate over any questions affecting only individual members, including legal and  factual issues relating to liability and damages.   49.  A class action is superior to other available methods for the fair and  efficient adjudication of this controversy because joinder of all class members is  impractical.  Moreover, since the damages suffered by individual members of the class  may be relatively small, the expense and burden of individual litigation makes it  practically impossible for members of the class individually to redress the wrongs done to  them.  The class is readily definable and prosecution of this action as a class action will  eliminate the possibility of repetitive litigation.  There will be no difficulty in the  management of this action as a class action.     51.  Plaintiff is similarly situated to all other drivers who delivered packages for  OnTrac, and there is a group of similarly situated employees who were subject to  OnTrac’s common policies and who are entitled to notice of this action under 29 U.S.C §  216(b).    52.  Plaintiff realleges and incorporates by reference all allegations in all  paragraphs as if fully set forth herein.   53.  The FLSA, 29 U.S.C. § 207(a)(2) provides in relevant part:  no employer shall employ any of his employees who in any workweek is  engaged in commerce or in the production of goods for commerce, or is  employed in an enterprise engaged in commerce or in the production of  goods for commerce, for a workweek longer than forty hours unless such  employee receives compensation for his employment in excess of the hours  above specified at a rate not less than one and one-half times the regular  rate at which he is employed.   54.  Plaintiff and Class Members are entitled to be paid one and one-half times  their regular rate of pay for all hours worked in excess of forty hours in a regular  workweek.     55.  By the acts and omissions complained of above, including, inter alia, by  failing to pay overtime wages for work in excess of 40 hours per week, Defendant has  violated the FLSA.     56.  Defendant’s violations of the FLSA were willful and accordingly, a three- year statute of limitations applies, pursuant to 29 U.S.C. § 255.     58.  Defendant has intentionally, willfully and repeatedly engaged in a pattern,  practice and/or policy of violating the FLSA.   59.  Plaintiff and Class Members have been harmed and suffered damages by  being denied overtime pay in accordance with the FLSA, plus incurred costs and  reasonable attorneys’ fees.   60.  As a result of Defendant’s unlawful and willful acts and violations of the  FLSA, Plaintiff and Class Members have been damaged and pursuant to 29 U.S.C. §  216(b) are entitled to recovery of overtime wages, liquidated damages in an amount equal  to the wages they are owed as unpaid overtime, prejudgment interest, attorneys’ fees,  costs and other compensation, declaratory and injunctive relief.  61.  Plaintiff realleges and incorporates by reference all allegations in all  paragraphs as if fully set forth herein.   62.  The FLSA, 29 U.S.C. § 206 provides in relevant part:  Every employer shall pay to each of his employees who in any workweek is  engaged in commerce or in the production of goods for commerce, or is  employed in an enterprise engaged in commerce or in the production of  goods for commerce, wages at the following rates:  (1) except as otherwise provided in this section, not less than--  (A) $5.85 an hour, beginning on the 60th day after May 25, 2007;  (B) $6.55 an hour, beginning 12 months after that 60th day; and  (C) $7.25 an hour, beginning 24 months after that 60th day;   63.  Plaintiff and Class Members are entitled to be paid in an amount at least  equal to the applicable minimum wage.     64.  By the acts and omissions complained of above, including, inter alia, by  failing to pay minimum wages, Defendant has violated the FLSA.     66.  Each improperly paid Plaintiff and Class Member, who performed or  continues to perform services for Defendant for any time during the three years preceding  this lawsuit, is entitled to notification of the pendency of this action and of his/her right to  consent to becoming a party to this action.  Notice should be sent to all Class Members,  as defined above, pursuant to 29 U.S.C. § 216(b).     67.  Defendant has intentionally, willfully and repeatedly engaged in a pattern,  practice and/or policy of violating the FLSA.   68.  Plaintiff and Class Members have been harmed and suffered damages by  being denied minimum wages in accordance with the FLSA, plus incurred costs and  reasonable attorneys’ fees.   69.  As a result of Defendant’s unlawful acts and violations of the FLSA,  Plaintiff and Class Members have been damaged and pursuant to 29 U.S.C. § 216(b) are  entitled to recovery of minimum wages, liquidated damages in an amount equal to the  minimum wages they are owed, prejudgment interest, attorneys’ fees, costs and other  compensation, declaratory and injunctive relief.  70.  Plaintiff realleges and incorporates by reference all allegations in all  paragraphs as if fully set forth herein.   72.  Ariz. Rev. Stat. § 23-352 provides in relevant part:  No employer may withhold or divert any portion of an employee's wages  unless one of the following applies:   73.  Ariz. Rev. Stat. § 23-363 provides, in relevant part:    A.  Employers shall pay employees no less than the minimum wage, which shall  be six dollars and seventy-five cents ($6.75) an hour beginning January 1, 2007.  B.  The minimum wage shall be increased shall be increased on January 1, 2008  and on January 1 of successive years by the increase in the cost of living. …   74.  Ariz. Rev. Stat. § 23-355(A) provides in relevant part:  if an employer, in violation of this chapter, fails to pay wages due any  employee, the employee may recover in a civil action against an employer  or former employer an amount that is treble the amount of the unpaid  wages.   75.  The Arizona minimum hourly wage in 2015 was $8.05 per hour and  currently remains at $8.05 per hour for 2016.     76.  By virtue of the acts and omissions alleged herein, including failing to pay  all wages due to Plaintiff and Class Members, including minimum wages and overtime  wages and by improperly deducting portions of Plaintiff’s and Class Members’ wages  without authorization, Defendant has violated Arizona’s Wage Laws.   78.  Plaintiff realleges and incorporates by reference all allegations in all  paragraphs as if fully set forth herein.     79.  Defendant has been unjustly enriched by the work performed by Plaintiff  and Class Members without payment of the lawfully earned compensation for the work  they have performed.   80.  Defendant has been unjustly enriched by the charge-backs and deductions  made from the Plaintiff and Class Members pay.   81.  Plaintiff is entitled to restitution and/or damages in quantum meruit for the  value of Defendant’s unconscionable contracts conferred upon Defendant together with  any profit thereon and prejudgment interest.   82.  Plaintiff is entitled to restitution for all of Defendant’s costs or fees that  have been levied upon Plaintiff and Class Members, including charge-backs, weekly  deductions, fuel expenses, vehicle maintenance, check processing fees, insurance fees,  courier fees, and electronic device fees together with any profit thereon and prejudgment  interest.    83.  Plaintiff realleges and incorporates by reference all allegations in all  paragraphs as if fully set forth herein.   84.  Ariz. Rev. Stat. §12-1831 provides:  Courts of record within their respective jurisdictions shall have power to declare  rights, status, and other legal relations whether or not further relief is or could be  claimed. No action or proceeding shall be open to objection on the ground that a  declaratory judgment or decree is prayed for. The declaration may be either  affirmative or negative in form and effect; and such declarations shall have the  force and effect of a final judgment or decree.   86.  By virtue of the acts and omissions alleged herein and their status as  employees, Plaintiff and Class Members are entitled to a determination of the rights and  benefits of their employment including, but not limited to, payment by the Defendant of  the employer portion of federal and state taxes and mandatory coverages including  workers’ compensation coverage, rights to protections and benefits under all federal and  state laws applicable to employees and to all benefits and coverages under all benefit  plans and coverages made available to OnTrac employees together with all other  appropriate equitable, injunctive and make whole relief.    