zirx lawsuit

7/23/2019 Zirx Lawsuit

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COMPLAINT - 1 CONNOR & SARGENT PLLC

999 Third Avenue, Suite 3000

Seattle WA 98104

(206) 654-5050 • FAX (206) 340-8856

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Stephen P. Connor, WSBA No. 14305

Anne-Marie E. Sargent, WSBA No. 27160

CONNOR & SARGENT PLLC


Seattle WA 98104(206) 654-5050

IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CHRISTINA PASCUAL, on her own behalf

and on behalf of a CLASS OF SIMILARLYSITUATED EMPLOYEES OF

DEFENDANT,

Plaintiffs,

v.

ZIRX CONSUMER SERVICES, INC., a

California corporation,

Defendant.

CLASS ACTION

No.

COMPLAINT FOR WAGES

JURY OF TWELVE (12) DEMANDED

Plaintiff Christina Pascual, on her own behalf and on behalf, as representative, of a

CLASS OF SIMILARLY SITUATED EMPLOYEES of Defendant Zirx Consumer Services,

Inc., alleges the following Complaint for violation of the Fair Labor Standards Act, 29 U.S.C.

§ 201 et seq., Washington's Minimum Wage Act, RCW 49.46, and Washington’s Rebate Act,

RCW 49.52.

I. INTRODUCTION

1. Plaintiff, a former employee of Defendant, brings this Complaint on her own

behalf and on behalf of all those similarly situated, challenging Defendant’s practice of

classifying its employees as independent contractors and failing to pay them overtime wages

Case 2:15-cv-01923 Document 1 Filed 12/08/15 of 11





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for their hours worked over 40 in each week in violation of the Fair Labor Standards Act

(FLSA), 29 U.S.C. § 201 et seq., Washington’s Minimum Wage Act, RCW 49.46.130(1), and

Washington’s Wage Rebate Act, RCW 49.52.050.

2.

Upon information and belief, Defendant has employed approximately more

than 100 class members nationwide since its inception in 2014.

3. Accordingly, Plaintiff seeks relief on a class-wide basis, including unpaid

wages, return of wages unlawfully rebated, liquidated damages, attorneys’ fees and costs.

Plaintiff and the Class also seek to enjoin Defendant from continuing violations.

II. PARTIES

4.

Plaintiff Christina Pascual (“Pascual”) resides in Federal Way, Washington,

and worked for Defendant Zirx Consumer Services, Inc. in King County, Washington and

within this Court’s jurisdiction.

5.

Defendant Zirx Consumer Services, Inc. (“Zirx”) is a California corporation

and does business in King County, Washington, and within this Court's jurisdiction.

III. JURISDICTION AND VENUE

6. This action arises under the Fair Labor Standards Act of 1938 (“FLSA”), as

amended, 29 U.S.C. § 201 et seq.

7. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331.

8. Venue for this action properly lies in the Western District of Washington,

pursuant to 28 U.S.C. § 1391(b), because the Defendant does business in this judicial district.

9. This Court has jurisdiction over Plaintiff’s state law claims under the

Washington Minimum Wage Act, RCW 49.46 and Washington’s Wage Rebate Act, RCW

49.52 pursuant to 28 U.S.C. §1367.






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IV. FACTS

Factual Background.

10. Defendant owns and operates valet parking services in Seattle, San Francisco,

Los Angeles, San Diego, Washington, DC, and in Manhattan and Brooklyn in New York

State. Upon information and belief, Defendant intends to add additional business locations in

other states.

11. Plaintiff and the class of similarly situated employees were employed by

Defendant as Agents. In that capacity, they were hired to park cars for Defendant’s customers

at rented lots, return parked cars to customers, and sell additional services such as filling up

the gas tanks, washing the cars, and selling monthly parking services.

12. Defendant has all of its Agents sign Contractor Agreements that improperly

state that the “Agents” are independent contractors as opposed to employees.

13.

Defendant employs more than 100 “Agents” nationwide.

14. Defendant employed approximately thirty to fifty “Agents” in the state of

Washington since its inception in Washington State, which, based on information on

Defendant’s website, is October of 2014.

15. Defendant paid each of its “Agents” an hourly rate, with incentives for parking

and delivering cars, and selling additional services. Defendant does not pay its “Agents” an

overtime rate for their hours worked over forty in a week.

16.

Defendant misclassified its Agents as independent contractors, including based

on the following factors: Agents do not have their own business licenses or tax identification

numbers; Defendant provide training and equipment to Agents; Agents do not have their own

businesses or insurance coverage; Agents provided the very service that Defendant was in

business to provide (parking cars for customers); Agents provide services directly to

Defendant’s customers; Defendant maintains direct authority and control over the Agents’

work; Defendant pays its Agents by the hour; Defendant requires Agents to perform the






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parking services himself or herself; Agents are required to work set shifts as devised by

Defendant; and, at least for a portion of the class period, Agents were required to wear

Defendant’s uniform and follow its dress code policy.

17.

“Agents” regularly work overtime hours for Defendant.

18. Defendant paid “Agents” their regular rate and earned incentives for each hour

of work, but failed to pay the lawful overtime rate for their hours worked over 40 in one work

week.

Facts Pertaining to Plaintiff Christina Pascual

19. Plaintiff Pascual worked for Defendant as a parking Agent from approximately

November 7, 2014 through July 31, 2015. She provided valet parking services to clients in

Seattle on behalf of Defendant.

20. At the start of her employment, Plaintiff earned an hourly rate of $14 per hour

for parking cars while employed with Defendant, with an additional $2 for every car parked or

returned, and $4 additional paid for every service Plaintiff sold.

21. For the first three or four months of Plaintiff’s employment with Defendant,

she regularly worked 50 to 60 hours per week. She was paid the rate of $14 per hour for her

hours worked, including her overtime hours. Defendant did not pay her an overtime rate for

her hours worked over 40 in a week.

22. In approximately January of 2015, Defendant raised the hourly rate of its

Agents to $15 per hour. Beginning in January of 2015, Plaintiff worked less overtime than she

had in the preceding months due to attendance in college, but continued to work some

overtime during this time. Again, Defendant failed to pay her the legal overtime rate for her

overtime hours worked.

23. Defendant misclassified Plaintiff as an independent contractor, including based

on the following factors: Plaintiff did not have her own business licenses or tax identification

numbers; Defendant provided training and equipment to Plaintiff; Plaintiff did not have her






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own businesses or insurance coverage; Plaintiff provided the very service that Defendant was

in business to provide (parking cars for customers); Plaintiff provided services directly to

Defendant’s customers; Defendant maintained direct authority and control over Plaintiff’s

work; Defendant paid Plaintiff an hourly rate; Defendant required Plaintiff to perform the

parking services herself; Plaintiff was required to work set shifts as dictated by Defendant;

and Plaintiff was required to wear Defendant’s uniform in order to work.

24. Plaintiff’s relationship with Defendant was that of employee and employer.

25. Upon information and belief, putative class members worked significant hours

of overtime.

26.

Defendant failed to pay Plaintiff and putative class members the proper

overtime rate for their hours worked over 40 in a week.

27. Putative class members are “employees” for purposes of the FLSA and

Washington’s wage and hour laws.

28. Upon information and belief, Defendant follows uniform practices with respect

to these employment policies and procedures at all locations, including having Agents sign

the same unlawful agreements, and failed to pay similarly situated employees throughout the

state of Washington and nationwide the lawful overtime rate for their overtime hours worked.

V. COLLECTION ACTION ALLEGATIONS

29. Plaintiff realleges the foregoing paragraphs as though fully set forth herein.

30.

Plaintiff brings this action on behalf of himself and all other persons similarly

situated pursuant to Section 16 of the FLSA, as a statutory “opt-in” class action.

31. The class consists of:

All hourly paid individuals who worked for Defendant providing valet parking

services from the commencement of Defendant’s operations through the present.

32. Upon information and belief, Plaintiff believes that the definition of the class

will be further refined following discovery of Defendant’s books and records.






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33. Plaintiff is unable to state the exact number of the class without discovery of

defendant’s books and records but estimates the class to exceed 250 individuals.

34. There are questions of law and fact common to the class that predominate over

any questions affecting individual members only. These factual and legal questions include

the existence and legality of Defendant’s policy with respect to payment of overtime, as well

as the appropriate injunctive relief needed to remedy such illegal policy.

35. Defendant has acted and refused to act on grounds generally applicable to the

class.

36. The claims of the representative Plaintiff are typical of the claims of the class

in that Plaintiff was denied mandatory overtime wages as a result of Defendant’s practices

and policies. This is the predominate issue which pertains to the claims of each and every

class member.

37.

The class action is superior to other available methods for a fair and efficient

adjudication of the controversy.

38. Plaintiff will fairly and adequately protect the interests of the class, as her

interests are in alignment with those of the entire class, i.e., to prove and then eradicate

Defendant’s illegal employment practice of failing to pay lawful overtime wages.

39. Counsel for Plaintiff will adequately protect the interests of the class. Such

counsel is experienced with employment/class litigation and has previously served as class

counsel in employment litigation under Section 16 of the FLSA.

40. Plaintiff and the class she represents have suffered and will continue to suffer

irreparable damage from the illegal policy, practice and custom regarding Defendant’s pay

practices.

41. Defendant has engaged in a continuing violation of the FLSA.






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42. Plaintiff, as well as the individuals she represents, was denied overtime wages

as a result of Defendant’s pay practices. This violation was intended by Defendant and was

willfully done.

43.

Defendant's action in denying overtime wages to Plaintiff was intentional and

constitutes a willful violation of the FLSA.

CLASS ACTION ALLEGATIONS

44. Plaintiff realleges the foregoing paragraphs as though fully set forth herein.

45. Pursuant to CR 23, Plaintiff brings this class action on her own behalf and on

behalf of all employees similarly situated (“Class Members” or “Class”) pursuant to RCW

49.46 and RCW 49.52.

46. Plaintiffs propose the following class definition:

All Agents who worked for Defendant in the State of Washington from the

commencement of its operations in Washington through the present.

47. Numerosity. The class is so numerous and geographically dispersed that

joinder of all members is impracticable. Upon information and belief, Defendant employed

thirty to fifty Agents in Washington during the proposed class period.

48.

Common Questions of Law and Fact. The questions of law are the same for

all of the class members, namely, whether class members were misclassified for purposes of

calculating overtime pay and employment benefits, whether employees were subject to other

wage and hour violations, and Defendant’s failure to pay overtime wages to class members

was willful entitling the class to double damages pursuant to RCW 49.52.070.

49. Representatives’ Claims are Typical of Class. Plaintiff’s claims are typical

of the class, namely, that she worked for Defendant, was misclassified as an “independent

contractor,” and was not paid overtime pay for her overtime hours.

50. Representative Party Will Fairly and Adequately Protect Class. Plaintiff

Pascual will adequately represent and protect the interests of the class because she has






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retained competent and experienced class counsel and none of her interests in the litigation

are antagonistic to the other members of the class.

51. A Class Action is Maintainable. The prosecution of separate actions by

individual members of the class against Defendant on the class-based wage and hour claims

and other state law claims would create the risk of inconsistent or varying adjudications and

incompatible standards of treatment for wage and hour purposes of the employees under

Washington’s laws. Defendant has acted and continues to act in a manner that is generally

applicable to all members of the class making final injunctive relief appropriate prohibiting

continued wage and hour violations. The questions of law and fact common to all members of

the class predominate over questions affecting only individual members of the class because

the members of the class were subjected to the same practices of Defendant, and a class action

is the superior method to adjudicate this controversy. Upon information and belief, there are

no other pending class actions concerning these issues.

VI. CAUSES OF ACTION

52. Plaintiff realleges and incorporates the foregoing paragraphs as though fully

set forth herein.

A. Violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.

53. Defendant failed to pay Plaintiff and similarly situated employees overtime pay

when they worked more than forty hours per week in violation of the Fair Labor Standards

Act, 29 U.S.C. §207(a)(1).

54. Defendant’s violations of the FLSA are willful pursuant to 29 U.S.C. § 255(a).

55. Plaintiff and the Class Members have been damaged by Defendant’s violations

of the FLSA in amounts to be determined at trial.






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B. Violations of Washington’s Minimum Wage Act, RCW 49.46.

56. Defendant failed to pay Plaintiff and similarly situated employees overtime pay

when the employees worked in excess of forty hours per week in violation of Washington’s

Minimum Wage Act, RCW 49.46 et seq.


of Washington’s Minimum Wage Act in amounts to be determined at trial.

C. Violations of Washington’s Wage Rebate Act, RCW 49.52.

58. Defendant’s aforementioned failure to pay Plaintiff and similarly situated

employees overtime rates for their overtime hours is a violation of Washington’s Wage

Rebate Act, RCW 49.52 et seq.


of Washington’s Wage Rebate Act in amounts to be determined at trial.

VII. PRAYER FOR RELIEF

WHEREFORE Plaintiff and the Class of similarly situated employees of

Defendant request the following relief:

A. An order certifying a collective action of all Agents who worked for

Defendant at any of its locations from the commencement of Defendant’s

operations through the present;

B. An order certifying a CR 23 class of all Agents who worked for Defendant

in Washington State from the commencement of Defendant’s operations in

Washington through the present;

C. An order certifying CR 23 classes in other states in which Defendant has

locations;

D. An order appointing Plaintiff as the representative of the Collective Action

and Class;






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E. An order appointing Stephen P. Connor and Anne-Marie E. Sargent of

Connor & Sargent PLLC, as the counsel for the Class;

F. Judgment against Defendant Zirx Consumer Services, Inc. for wages due to

Plaintiff and the classes of all similarly situated employees, including

overtime pay, in an amount to be determined at trial;

G. Judgment against Defendant for exemplary damages for unlawfully and

willfully withholding wages pursuant to the FLSA, 29 USC 216(b) and 29

U.S.C.S. § 255(a), RCW 49.52.070, and the laws of other states;

H. An order permanently enjoining Defendant from continuing its practice of

the aforementioned wage and hour law violations;

I. An award of reasonable attorneys' fees and costs pursuant to the FLSA 29

USC § 216(b), RCW 49.46.090, RCW 49.48.030, RCW 49.52.070, and the

laws of other states;

J.

Pre-judgment interest on all back wages and damages awarded to Plaintiff

and the Class;

K. Damages in the amount of any adverse tax consequences of any award;

L. Allowing Plaintiff to amend its pleadings to conform to the proof at trial;

and

M. For such other relief in law or equity, which the Court finds appropriate,

just or equitable.






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DATED this 7th day of December, 2015.

CONNOR & SARGENT PLLC

By s/Anne-Marie E. SargentAnne-Marie E. Sargent, WSBA No. 27160

Connor & Sargent PLLC


Seattle, WA 98104

Email: [email protected]

Telephone: (206) 654-4011

By s/Stephen P. Connor

Stephen P. Connor, WSBA No. 14305

Connor & Sargent PLLC

999 Third Avenue, Suite 3000Seattle, WA 98104

Email: [email protected]

Telephone: (206) 264-1818

Attorneys for Plaintiff and the Putative Class


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