Wegat et al v. Prosteam Carpet Care LLC et al

Filing 25

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Dismiss [Doc. No. 21] is DENIED. 21 Signed by District Judge Henry Edward Autrey on 7/31/18. (CLA)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOSH WEGAT, et al.
Plaintiffs,
vs.
PROSTEAM CARPERT CARE LLC ,
et al.,
Defendants.

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No. 4:16-cv-1931 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss, [Doc. No.
21]. Plaintiffs have filed opposition to the motion. For the reasons set forth below,
the Motion to Dismiss is denied.
Facts and Background
Plaintiffs’ First Amended Complaint alleges that: Plaintiffs are carpet
cleaning technicians who bring this action on behalf of themselves and a similarly
situated class of plaintiffs against their employers. Plaintiffs contend that even
though they are classified as “independent contractors,” they are, in reality,
employees of the LLC and the individual defendants. Plaintiffs allege that
Defendants have violated the Fair Labor Standards Act, 29 U.S.C. § 216(b), et seq.
(“FLSA”) and the Missouri Minimum Wage Law, § 290.500 RSMo, et seq.
(“MMWL”). Defendants’ Motion to Dismiss Plaintiffs’ Complaint was granted

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and the Court allowed Plaintiffs to amend. In their First Amended Complaint,
Plaintiffs again allege that Defendants are engaged in the business of residential and
commercial cleaning of flooring and upholstery, with a specific focus on carpet
cleaning. Defendants employ technicians to perform cleaning services for
Defendants’ customers. Plaintiffs have performed work for Defendants as
technicians.
Plaintiffs further allege that although Defendants have classified Plaintiffs as
“independent contractors,” Plaintiffs were in reality employees of Defendants. The
hours worked by Plaintiffs and those similarly situated were not recorded by
Defendants; expenses for travel and related work expenses were not fully
reimbursed; and overtime pay was not paid for all hours worked in a workweek in
excess of forty (40) hours per workweek. By failing to record, report, and/or
preserve accurate records of hours worked by Plaintiffs and other similarly situated
employees, Defendants have failed to make, keep, and preserve records with
respect to each of their workers/employees sufficient to determine their employee
wages, hours, and other conditions and practices of employment, in violation of the
FLSA, 29 U.S.C. § 201, et seq.
Plaintiffs and those similarly situated regularly worked long hours per day
and per workweek in order to complete jobs assigned to them by Defendants.

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Plaintiffs and other similarly situated employees worked in excess of forty (40)
hours per week on a regular basis.
At the time of being hired by Defendants, Plaintiffs had no previous
experience working in Defendants’ industry. Plaintiffs and other similarly situated
workers were required by Defendants to undergo initial training by doing a “ridealong” with an experienced technician for multiple days, and Defendants provided
no pay for this required initial training. After their initial training, Plaintiffs and
other similarly situated workers received ongoing training/instruction from
Defendants as to how to perform their job.
Per Defendants’ policy and practice, if a customer’s carpet has to be recleaned, the technician originally assigned to that job either has to return to the
customer’s location and re-clean the carpet for no additional pay, or Defendants
send another technician to do the re-clean job and pay that other technician a fee,
and then the fee is deducted from the paycheck of the original technician.
Plaintiffs and other similarly situated technicians were required by
Defendants to take Defendants’ company vehicles and other equipment to a third
party shop for repairs and wait for the vehicles to be repaired, and they were not
compensated for that work time.
Plaintiffs and other similarly situated technicians were required by
Defendants to visit potential customer locations to “bid” jobs. Plaintiffs and other
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similarly situated technicians were not compensated for that work time. Plaintiffs
and other similarly situated technicians were required by Defendants to attend
mandatory sales meetings, and they were not compensated for that work time.
In addition to failing and refusing to pay overtime pay for time spent
working on assigned cleaning jobs, Plaintiffs and other similarly situated
employees were not compensated at all for time they spent on other work related
tasks, such as travel time, time in meetings/training, time spent performing
preparatory tasks at Defendants’ shop at the beginning of the work day, time spent
performing tasks at Defendants’ shop at the end of the work day, time spent
obtaining repairs on Defendants’ equipment, time spent at potential customer
locations for job bids, etc.
As a result of being misclassified unlawfully as independent contractors,
Plaintiffs and other similarly situated employees were denied overtime pay
unlawfully, in violation of the FLSA. The deliberate failure of Defendants to pay
Plaintiffs and those similarly situated their earned wages and overtime
compensation violates the FLSA. The net effect of the policies and/or practices
maintained and administered by Defendants, instituted and approved by company
managers, is that Defendants willfully failed to pay wages owed and willfully
failed to keep accurate time records to save payroll costs. Defendants thus enjoyed
ill-gained profits at the expense of its workers.
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The First Amended Complaint adds the following allegations:
More specifically, Plaintiffs and other similarly situated technicians
were scheduled to work Monday through Friday, and often were scheduled
to work Saturdays as well.
On work days, technicians typically were required to appear at
Defendants’ business location between 7:00 AM and 7:30 AM.
For each work day, technicians typically were given job assignments
that fell into four distinct “appointment blocks”: 8:00 AM to 10:00 AM,
10:00 AM to 1:00 PM, 1:00 PM to 4:00 PM, and 4:00 PM to 7:00 PM. Often
technicians would be directed to complete multiple jobs in a single
appointment block.
Defendants required their technicians to arrive at the first job
assignment of the day by 8:00 AM.
Plaintiffs routinely returned to Defendant’s business location after
completing the last assignment, well after 5:00 PM, and there were
occasions when they returned to Defendant’s business location as late as
9:00 or 10:00 PM.
As a consequence of the above-described work schedule and the
duties/job requirements of Defendants’ technicians set forth herein, Plaintiffs
routinely worked 55 to 60 hours a week, and sometimes more depending on
the amount of jobs assignment received per week and the amount of time
required to complete each job. Defendants’ other technicians similarly
worked well over forty hours per work week on a regular basis. Plaintiffs
and other similarly situated technicians were not provided overtime
compensation for the overtime hours that they worked.
Plaintiff Wegat worked more than 40 hours per week – without
receiving overtime pay – in multiple work weeks, including but not
necessarily limited to the following: the workweeks ending on October 17,
2015; October 24, 2015; October 31, 2015; November 14, 2015; and/or June
18, 2016. Plaintiff Puglisi worked more than 40 hours per week – without
receiving overtime pay – in multiple work weeks, including but not
necessarily limited to the following: the workweeks ending on November
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15, 2014; November 22, 2014; March 14, 2015; May 9, 2015; June 13,
2015; and/or June 11, 2016.
Plaintiffs allege Defendants actions violate both the FLSA and the MMWL.
Motion to Dismiss Standard
Under the Federal Rules, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). The rules require a “‘showing,’ rather than a blanket assertion, of
entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3.
(2007) (quoting Fed. R. Civ. P. 8(a)(2)). “Specific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting
Twombly, 550 U.S. at 555). In order to survive a motion to dismiss under Fed. R.
Civ. P. 12(b)(6), the plaintiff's obligation to provide the grounds for his entitlement
to relief necessitates that the complaint contain “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
The factual allegations of a complaint are assumed true and construed in
favor of the plaintiff, “even if it strikes a savvy judge that actual proof of those
facts is improbable and ‘that a recovery is very remote and unlikely.’ ” Id. at 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “[O]n the assumption that
all the allegations in the complaint are true (even if doubtful in fact),” the
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allegations in the complaint must “raise a right to relief above the speculative
level.” Id. at 555-56. In other words, the complaint must plead “enough facts to
state a claim for relief that is plausible on its face.” Id. at 547. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that the plausibility standard
does not require a probability, but asks for more than a sheer possibility that a
defendant has acted unlawfully.)
Twombly is based on the principles that (1) the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal
conclusions and (2) only a complaint that states a plausible claim for relief survives
a motion to dismiss. Id. at 678-79. Determining whether a complaint states a
plausible claim for relief is “a context-specific task” that requires the court “to
draw on its judicial experience and common sense.” Id. at 679. Accordingly, under
Twombly, a court considering a motion to dismiss may begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth. Id. Although legal conclusions “can provide the framework of
a complaint, they must be supported by factual allegations.” Id. When there are
well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief. Id.
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Thus, the court must find “enough factual matter (taken as true) to suggest” that
“discovery will reveal evidence” of the elements of the claim. Twombly, 550 U.S.
at 556; Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005) (explaining that
something beyond a faint hope that the discovery process might lead eventually to
some plausible cause of action must be alleged).
When the allegations in a complaint, however true, could not raise a claim of
entitlement to relief, the complaint should be dismissed for failure to state a claim
under Fed. R. Civ. P. 12(b)(6). Twombly, 550 U.S. at 558; Iqbal, 556 U.S. at 679.
Discussion
With regard to Plaintiffs’ overtime claims under the FLSA and MMWL,
Defendants again argue that Plaintiffs have failed to set forth sufficient facts to
establish a plausible claim. Defendants previously suggested that Plaintiffs should
specify at least one workweek in which they worked in excess of 40 hours and
were not paid overtime. In support, Defendants cited Landers v. Quality
Commc’ns, Inc., 771 F.3d 638, 644–46 (9th Cir. 2014) (holding plaintiff “must
allege that she worked more than forty hours in a given workweek without being
compensated for the hours worked in excess of forty during that week”).
Plaintiffs have now identified specific weeks for which overtime was improperly
withheld. Plaintiffs also offer specific facts regarding how the policies looked in
practice, for example, requiring technicians to appear at business locations between
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7:00 AM and 7:30 PM; the different work blocks which would require technicians
to work overtime; requiring technicians to arrive at the first assignment by 8:00
AM; Plaintiffs routinely completing the last assignment well after 5:00 PM. These
new allegations, combined with the previous allegations that Defendants failed to
keep records of the times worked in order to avoid overtime pay, sufficiently allege
enough facts to avoid dismissal. Plaintiffs allege that employees worked over 40
hours in one or more work weeks and were not properly compensated overtime.
Plaintiff alleges reasons why overtime was not properly calculated, Plaintiff has
plausibly stated weeks in which employees would have worked more than 40 hours
that week and not been properly compensated, e.g. weeks where more than 40
hours were worked by an employee by working at more than one location. The
Court finds these allegations are sufficient.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [Doc. No.
21] is DENIED.
Dated this 31st day of July, 2018.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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