Yousif v. The Venetian Casino Resort, LLC et al

Filing 97

ORDER granting 96 Stipulation to File Fourth Amended Complaint. The Clerk is directed to file the Fourth Amended Complaint, attached hereto as Exhibit A. Signed by Judge Richard F. Boulware, II on 7/11/2018. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
7

THIERMAN BUCK, LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email: [e-mail]; www.thiermanbuck.comt

8

THIERMAN BUCK, LLP
Mark R. Thierman, Nev. Bar No. 8285
Joshua D. Buck, Nev. Bar No. 12187
Leah L. Jones, Nev. Bar No. 13161
7287 Lakeside Drive
Reno, Nevada 89511
Tel. [phone]
Fax. [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs Mustafa Yousif and
Sharone Walker on behalf of themselves and
all others similarly situated

9
10

UNITED STATES DISTRICT COURT

11

DISTRICT OF NEVADA

12
13
14

17
18
19
20
21
22
23
24
25
26
27
28

STIPULATION AND ORDER TO FILE
PLAINTIFFS’ PROPOSED FOURTH
AMENDED COMPLAINT

Plaintiffs,

15
16

Case No.: 2:16-cv-02941-RFB-NJK

MUSTAFA YOUSIF and SHARONE
WALKER on behalf of themselves and all
others similarly situated,

vs.
THE VENETIAN CASINO RESORT, LLC;
LAS VEGAS SANDS, CORP. and DOES 1
through 50, inclusive,
Defendants.
Plaintiffs MUSTAFA YOUSIF and SHARONE WALKER (“Plaintiffs”), by and
through their counsel of record THIERMAN BUCK, LLP, and Defendants VENETIAN
CASINO RESORT, LLC; LAS VEGAS SANDS, CORP., by and through their counsel of record
OGLETREE, DEAKINS, NASH, SMOAK, & STEWART, P.C., hereby stipulate and agree that
Plaintiffs may file with the Court, without further motion, the Proposed Fourth Amended
Complaint, a copy of which is attached hereto as Exhibit A.
At the hearing held on May 24, 2018 the Court granted in part and denied in part
Defendant’s Motion to Dismiss Plaintiffs’ Second Amended Complaint and instructed Plaintiffs
-1-

STIPULATION AND ORDER TO FILE PLAINTIFFS’ PROPOSED
FOURTH AMENDED COMPLAINT

to file a Third Amended Complaint . (ECF No. 83.) On May 29, 2018, Plaintiffs filed their

2

Third Amended Complaint (ECF No. 84); on June 12, 2018 Defendants filed their Motion to

3

Dismiss Plaintiffs’ Third Amended Complaint. (ECF No. 88). After reviewing and meeting and

4

conferring with Defendants regarding the same, Plaintiffs now seek to amend their complaint

5

for a fourth time by further narrowing Plaintiffs’ claims and removing allegations that are not

6

supported by the evidence.

7

///

8
THIERMAN BUCK, LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email: [e-mail]; www.thiermanbuck.comt

1

///

9

///

10

///

11

///

12

///

13

///

14

///

15

///

16

///

17

///

18

///

19

//

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
-2-

STIPULATION AND ORDER TO FILE PLAINTIFFS’ PROPOSED
FOURTH AMENDED COMPLAINT

1

By agreeing to Plaintiffs filing the Proposed Fourth Amended Complaint, Defendants

2

are not agreeing to the merits of any claim, the factual allegations in the Fourth Amended

3

Complaint, or waiving any defenses they may assert.

4
5

The Parties further stipulate and agree that Defendants have twenty-one (21) days from
the date the Fourth Amended Complaint is filed to respond accordingly.

6
7

Dated this 6th day of July 2018.

Dated this 6th day of July 2018.

THIERMAN BUCK, LLP

OGLTREE, DEAKINS, NASH, SMOAK, &
STEWART, P.C.

/s/Leah L. Jones
Mark R. Thierman, Esq., Bar No. 8285
Joshua D. Buck, Esq., Bar No. 12187
Leah L. Jones, Esq., Bar No. 13161
7287 Lakeside Drive
Reno, Nevada 89511

/s/Dana B. Salmonson
__________
Anthony L. Martin, Esq., Bar No. 8177
Dana B. Salmonson, Esq., Bar. No. 11180
Wells Fargo Tower, Suite 1500
3800 Howard Hughes Parkway
Las Vegas, NV 89169

THIERMAN BUCK, LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email: [e-mail]; www.thiermanbuck.comt

8
9
10
11
12
13
14
15
16

Attorneys for Plaintiffs Mustafa Yousif and
Sharone Walker on behalf of themselves and
All others similarly situated

17

Patrick F. Hulla (admitted pro hac vice)
4520 Main Street, Ste. 400
Kansas City, MO 64111
Attorneys for Defendants Venetian Casino
Resort, LLC and Las Vegas Sands Corp.

18
19
20

ORDER

21
22

IT IS SO ORDERED.

23

July 11, 2018.
DATED: ______________________________
The Clerk is directed to file the Fourth Amended Complaint, attached hereto as
Exhbit A.

24
25
26
27

RICHARD F. BOULWARE, II
United States District Judge

28
-3-

STIPULATION AND ORDER TO FILE PLAINTIFFS’ PROPOSED
FOURTH AMENDED COMPLAINT

1
2
3

Exhibit List
Exhibit A

Plaintiffs’ Proposed Fourth Amended Complaint

4
5
6
7

THIERMAN BUCK, LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email: [e-mail]; www.thiermanbuck.comt

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-

STIPULATION AND ORDER TO FILE PLAINTIFFS’ PROPOSED
FOURTH AMENDED COMPLAINT

EXHIBIT A

EXHIBIT A

1
2
3
4
5
6
7

THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

8

Mark R. Thierman, Nev. Bar No. 8285
Joshua D. Buck, Nev. Bar No. 12187
Leah L. Jones, Nev. Bar No. 13161
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, Nevada 89511
Tel. [phone]
Fax. [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs Mustafa Yousif and
Sharone Walker on behalf of themselves and
all others similarly situated

9

UNITED STATES DISTRICT COURT

10

FOR THE DISTRICT OF NEVADA

11
12
13

MUSTAFA YOUSIF and SHARONE
WALKER on behalf of themselves and all
others similarly situated,

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiffs,
vs.
LAS VEGAS SANDS, CORP.; THE
VENETIAN CASINO RESORT, LLC; and
DOES 1 through 50, inclusive,
Defendants.

Case No.: 2:16-cv-02941-RFB-NJK
FOURTH AMENDED COMPLAINT
COLLECTIVE AND CLASS ACTION
COMPLAINT
1) Failure to Pay Overtime in Violation of
29 U.S.C. § 207;
2) Failure to Compensate for All Hours
Worked in Violation of NRS 608.140 and
608.016;
3) Failure to Pay Overtime in Violation of
NRS 608.140 and 608.018;
4) Failure to Timely Pay All Wages Due and
Owing in Violation of NRS 608.140 and
608.020-050; and
5) Violation of the Fair Credit Reporting
Act, 15 U.S.C. §§ 1681, et seq.
JURY TRIAL DEMANDED

COMES NOW Plaintiffs MUSTAFA YOUSIF and SHARONE WALKER, on behalf
of themselves and all others similarly situated and alleges the following:
All allegations in the Complaint are based upon information and belief except for those
allegations that pertain to the Plaintiffs named herein and their counsel. Each allegation in the

-1FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

Complaint either has evidentiary support or is likely to have evidentiary support after a

2

reasonable opportunity for further investigation and discovery.
JURISDICTION AND VENUE

3
4

1.

This Court has original jurisdiction over the federal claims alleged herein

pursuant to the Fair Labor Standards Act (“FLSA”) 29 U.S.C. § 216(b) which states: “An action

6

to recover the liability prescribed in either of the preceding sentences may be maintained against

7

any employer (including a public agency) in any Federal or State court of competent jurisdiction

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

5

by any one or more employees for and in behalf of himself or themselves and other employees

9

similarly situated.” Plaintiffs have filed with this court consents to join this action.

10

2.

This Court also has jurisdiction over the federal claims alleged under the Fair

11

Credit and Reporting Act (“FCRA”), 15 U.S.C. § 1681p which states: “An action to enforce

12

any liability created under [the FCRA] may be brought in any appropriate United States district

13

court, without regard to the amount in controversy, or in any other court of competent

14

jurisdiction” within the earlier of “2 years after the date of discovery by the plaintiff or the

15

violation that is the basis for such liability” or “5 years after the date on which the violation that

16

is the basis for such liability occurs.”

17

3.

This Court has supplemental jurisdiction over the state law claims alleged herein

18

pursuant to 28 U.S.C. § 1367 because the state law claims alleged herein all arise out of the

19

same transaction and occurrence, i.e. the failure to properly pay all wages due—and there is no

20

conflict between the procedures applicable to the FLSA and State law claims. Integrity Staffing

21

Solutions, Inc., 2013 U.S. App. LEXIS 7397 (9th Cir. Nev. Apr. 12, 2013) (“In sum, we agree

22

with the other circuits to consider the issue that the fact that Rule 23 class actions use an opt-

23

out mechanism while FLSA collective actions use an Opt-in mechanism does not create a

24

conflict warranting dismissal of the state law claims.”)

25

4.

In addition, this Court has jurisdiction over the Nevada statutory claims alleged

26

herein because the Parties seeking to recover unpaid wages have a private right of action

27

pursuant to Nevada Revised Statute (“NRS”) sections 608.050 and 608.140, among others. See

28
-2FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

e.g., Neville v. Eighth Judicial District Court in & for Cty. of Clark, Case No. 70696, 133 Nev.

2

Adv. Op. 95, 2017 WL 6273614, at *4 (Dec. 7, 2017).
5.

3

Venue is proper in this Court because one or more of the Defendants named

4

herein maintains a principal place of business or otherwise is found in the judicial district the

5

acts complained of herein occurred in Clark County, Nevada.
PARTIES

6
6.

7

Plaintiff MUSTAFA YOUSIF, (hereinafter “Plaintiff” or “YOUSIF”) is a natural

THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

8

person who is and was a resident of the State of Nevada and had been employed by Defendants

9

as a non-exempt hourly employee from on or about September 22, 2014 to on or about

10

September 7, 2016.
7.

11

Plaintiff SHARONE WALKER, (hereinafter “Plaintiff” or “WALKER”) is a

12

natural person who is and was a resident of the State of Nevada and had been employed by

13

Defendants as a non-exempt hourly employee from on or about August 2015 to September 19,

14

2017.

15

8.

Defendant LAS VEGAS SANDS, CORPORATION is a Nevada limited-

16

liability company with its principal place of business at 3355 Las Vegas Boulevard South, Las

17

Vegas, Nevada. Defendant owns and operates the Venetian and the Palazzo luxury hotels in

18

Las Vegas, Nevada.

19

9.

Defendant THE VENETIAN CASINO RESORT, LLC is a luxury hotel and

20

casino complex located on the Las Vegas Strip, Nevada and, upon information and belief, is

21

part of a larger complex, operated as one hotel comprising the adjoining Palazzo and the Sands

22

Convention Center. The VENETIAN and The PALAZZO are operated as one hotel by the

23

LAS VEGAS SANDS, CORP, with its principal place of business at 3355 Las Vegas

24

Boulevard South, Las Vegas, Nevada.

25

10.

Defendants LAS VEGAS SANDS CORP. and THE VENETIAN CASINO

26

RESORT are collectively referred to throughout this complaint as “Defendants” or

27

“Venetian/Palazzo.”

28
-3FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

11.

1

Defendants, and each of them, are employers under the FLSA and are engaged in

2

commerce for the purposes of the FLSA, 29 U.S.C.§ 201 et. seq. Defendants, and each of them,

3

are employers under the provisions of Nevada Revised Statutes Chapter 608.

4

relations purposes, Defendants are each and together constitute the employer and/or joint

5

employer of Plaintiffs and all Plaintiff class members (hereinafter referred to as “Class

6

Members”).
12.

7

For labor

The identity of DOES 1-50 is unknown at this time and this Complaint will be

THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

8

amended at such time when the identities are known to Plaintiffs. Plaintiffs are informed and

9

believe that each of Defendants sued herein as DOE is responsible in some manner for the acts,

10

omissions, or representations alleged herein and any reference to “Defendant,” “Defendants,”

11

or “Venetian/Palazzo” herein shall mean “Defendants and each of them.”
FACTUAL ALLEGATIONS

12
13.

13

Plaintiffs were employed by Defendants as non-exempt hourly paid

14

housekeepers at the Venetian/Palazzo. At the time of separation of employment Plaintiff

15

Yousif was making about $17.44 per hour. At the time of separation of employment Plaintiff

16

Walker was making about $17.44 per hour.
14.

17

Plaintiffs were scheduled for, and regularly worked, five (5) shifts per week, at

18

least eight (8) hours per shift, forty (40) hours per workweek, and worked hours over eight (8)

19

in a day and/or over forty (40) in a workweek. Upon information and belief, all other persons

20

employed as housekeepers by Defendants were scheduled for and regularly worked the same or

21

similar schedules.

22

15.

Plaintiff YOUSIF’s usual schedule required him to work Thursday through

23

Monday with Tuesday and Wednesday off. His schedule varied between a swing shift start

24

time and a 9:00 a.m. start time on the weekend. He was always scheduled for the weekends.
16.

25

Plaintiff WALKER’s usual schedule required her to work Thursday through

26

Monday with Tuesday and Wednesday off. She was always scheduled for the weekends and

27

was unable to take a lunch break due to volume of rooms to be cleaned during busy periods.

28

///
-4FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

DEFENDANTS’ PRE-SHIFT WORK REQUIREMENTS

1
17.

2

Defendants required Plaintiffs and all employees who worked as housekeepers

3

to engage in pre-shift work activities off the clock and without compensation each and every

4

single shift worked. Housekeepers were required to fill their carts with cleaning supplies and

5

linens prior to clocking in for their regularly scheduled shift.
18.

6

Employees could not complete their job duties without filling their carts and

were not allowed to start their shifts unless and until their carts were filled with supplies needed

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

7

to complete their job duties.

9

compensation. Based on Plaintiffs’ knowledge and belief all employees who were similarly

10

These tasks were completed off the clock and without

employed as housekeepers followed the same policy and procedure mandated by Defendants.
19.

11

Plaintiffs first principal work activity took place approximately fifteen (15) to

12

twenty-five (25) minutes prior to their regular scheduled shift, when Plaintiffs and all

13

housekeepers were required to enter through the employee entrance at the Venetian and review

14

a large white board outside of the Housekeeping office in order for them to receive their

15

floor/room/station assignments for the day. This information was not available to employees

16

until the day of their shift at the board, at the housekeeping office, and on the property.
20.

17

Once a housekeeper knows what floor and rooms they are assigned to clean they

18

go to that floor and the corresponding station to retrieve their cleaning carts and then fill those

19

cleaning carts with items required to complete their daily work duties.
21.

20

In addition to linens (sheets, pillow cases, duvets), which housekeepers had to

21

collect and fold themselves prior to loading their carts, housekeepers had to collect soap

22

products (shampoo, conditioner, soap bars, bathroom items), towels, toilet tissue, tissue,

23

magazines, laundry bags, extra note pads and pens, as well as a safety bag for hazardous

24

material disposal and place them on their cleaning carts.
22.

25
26

///

27

///

28

Housekeepers are required to fill up their carts each and every shift worked.

///
-5FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

DEFENDANTS’ POST-SHIFT WORK REQUIREMENTS

1
2

23.

Plaintiffs and housekeepers are assigned a certain number of rooms to complete

3

during their shifts. If a housekeeper was unable to finish their allotted rooms during their shift

4

they were instructed to clock out and then finish cleaning their assigned rooms off the clock

5

and without compensation.

6
7

THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

8

24.

Extracting unpaid work from Plaintiffs and all other housekeepers was achieved

by having employees perform work without being logged in to the timekeeping system.
25.

Plaintiff YOUSIF was paid $17.44 per hour. Thus, because Defendants’

9

required Mr. Yousif to work about 25 minutes of uncompensated work time each and every

10

shift worked, he is owed 2.05 hours or more of overtime; i.e., 25 minutes per day at five days

11

per week is equal to 125 minutes or two hours and five minutes. At the required one and one-

12

half times his regular hourly rate of pay of $26.16 multiplied by 2.05 hours of overtime he is

13

owed $53.63 per workweek worked.

14

26.

Plaintiff WALKER was paid $17.44 per hour.

Thus, because Defendants’

15

required Ms. WALKER to work about 25 minutes of uncompensated work time each and every

16

shift worked, she is owed 2.05 hours or more of overtime; i.e., 25 minutes per day at five days

17

per week is equal to 125 minutes or two hours and five minutes. At the required one and one-

18

half times her regular hourly rate of pay of $26.16 multiplied by 2.05 hours of overtime she is

19

owed $53.63 per workweek worked.

20
21

DEFENDANTS’ CREDIT CHECK/EMPLOYMENT APPLICATION POLICY
27.

The FCRA defines a “consumer report” as follows: [A]ny written, oral, or other

22

communication of any information by a consumer reporting agency bearing on a consumer’s

23

credit worthiness, credit standing, credit capacity, character, general reputation, personal

24

characteristics, or mode of living which is used or expected to be used or collected in whole or

25

in part for the purpose of serving as a factor in establishing the consumer’s eligibility for—(A)

26

credit or insurance to be used primarily for personal, family, or household purposes; (B)

27

employment purposes; or (C) any other purpose authorized under section 1681b of this title.

28

28.

Defendants conducted background and credit checks on Plaintiffs.

-6FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1
2
3

29.

Defendants use the information in background and credit reports to make

employment related decisions for Plaintiffs and prospective and current employees.
30.

Defendants failed to comply with federal mandates for obtaining and using

4

background and credit reports to make employment related decision for prospective and current

5

employees.

6

31.

Under the FCRA, an employer or prospective employer cannot “procure, or

cause a consumer report to be procured, for employment purposes with respect to any

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

7

consumer, unless … a clear and conspicuous disclosure has been made in writing to the

9

consumer at any time before the report is procured or cause to be procured, in a document that

10

consists solely of the disclosure, that a consumer report may be obtained for employment

11

purposes.” 15 U.S.C. § 1681b(b)(2)(A)(i) (emphasis added).

12

32.

Defendants routinely violated the FCRA and its core protections by procuring

13

background and credit reports on employees and job applicants without providing a “stand

14

alone” disclosure that a background and credit report would be procured. Instead, Defendants

15

willfully included extraneous information such as a “release of liability” in an effort to shield

16

itself from unlawful acts. See, e.g., Harris v. Home depot U.S.A., Inc., 2015 WL 4270313, at *1

17

(N.D. Cal. June 20, 2015) (citing Letter from William Haynes, Attorney, Div. of Credit

18

Practices, Fed. Trade Comm’n, to Richard W. Hauxwell, CEO, Accufax Div. (June 12, 1998));

19

see also Reardon v. ClosetMaid Corp., 2013 WL 6231606, at *9 (W.D. Pa. Dec. 2, 2013)

20

(“[The] inclusion of a release provision in the Authorization Form … facially violates section

21

1681b(b)(2)(A)(i).”).

22

33.

Plaintiffs and all prospective and current employees were required to sign

23

defective background and credit report authorizations prior to being hired. The background and

24

credit report authorizations did not contain a single separate disclosure. Instead, Defendants

25

provided Plaintiffs with a 15+ page document that consisted of multiple authorizations to

26

conduct a background check and multiple releases of liability from obtaining the background

27

report including (1) a “Global Payment Card Data Security Policy” and (2) the “External

28

Candidate Job Applicant Profile” which included an “Application Agreement” stating that “It is
-7FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

my understanding that my employment at The Company is dependent upon … the security

2

background check that is required.” Additional authorizations were also required, consisting

3

of:

4

a.

“Civil Name Check Background Waiver Authorization for Release of
Information” which states in relevant part: “I hereby release from liability and

6

promises to hold harmless under any and all causes of legal action, the State of

7

Nevada, its officer(s), agents(s), and/or employees(s) who conducted my

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

5

criminal history records search and provided information to the requestor for

9

any statement(s), omission(s), or infringement(s) upon my current legal rights. I

10

further release and hold harmless and covenant not to sue any persons, firms,

11

institutions, or agencies providing such information …”;

12

b.

“Authorization For Release Of Information” which states in relevant part: “I

13

hereby authorize The Company to conduct an employment background check,

14

and authorize and request all person, organizations and other entities to furnish

15

information requested below to The Company. I release and forever discharge

16

The Company and the below named employer and their agents or employees

17

from any and all causes of action, suits, debts, judgments, executions, claims,

18

and demands whatsoever, known or unknown, suspected or not suspected, in

19

law or equity for complying with this request, or furnishing or utilizing any

20

information supplied in response to this request;” and

21

c.

“Employment Center Reference Release” which states in relevant part: “I hereby

22

authorize The Venetian to conduct an employment background check, and

23

authorize and request all persons, organizations and other entities to furnish the

24

information requested below to the Venetian. I release and forever discharge the

25

Venetian and the below-named employer and their agents or employees from

26

any and all causes of actions, suits, debts, judgments, executions, claims, and

27

demands whatsoever, known or unknown, suspected or not suspected, in law or

28
-8FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

equity for complying with this request, or furnishing or utilizing any information

2

supplied in response to the request.”
34.

3
4

Upon information and belief, Defendants require all prospective and current

employees and to sign such releases.
35.

5

Defendants have willfully and systematically violated 15 U.S.C. §

1681(b)(2)(A)(i) by procuring consumer reports on Plaintiffs and other putative class members

7

for employment purposes, without first making proper disclosures in the format required by the

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

6

FCRA.
36.

9

Based on Defendants’ conduct, Plaintiffs assert FCRA claims on behalf of

10

themselves and the class defined below. On behalf of themselves and the class, Plaintiffs seek

11

statutory damages, punitive damages, attorney’s fees, litigation costs, and all other available

12

relief.
COLLECTIVE AND CLASS ACTION ALLEGATIONS

13
14
15
16

37.

Plaintiffs reallege and incorporate by reference all the paragraphs above in the

Complaint as though fully set forth herein.
38.

Plaintiffs bring the action on behalf of themselves and all other similarly situated

17

and typical housekeepers employed in Nevada as both a collective action under the FLSA and a

18

true class action under Nevada law.

19

39.

The FLSA CLASS is defined as follows: All current and former non-exempt

20

employees who were employed as housekeepers by Defendants during the relevant time

21

period.

22

40.

With regard to the conditional certification mechanism under the FLSA,

23

Plaintiffs are similarly situated to those that they seek to represent for the following reasons,

24

among others:

25

A.

Defendants employed Plaintiffs as hourly-paid employees who did

26

not receive overtime premium pay at one and one-half times the regular hourly

27

rate of pay for all hours worked over forty (40) hours in a workweek.

28
-9FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

B.

1

Plaintiffs’ situation is similar to those they seek to represent

2

because Defendants failed to pay Plaintiffs and all other FLSA CLASS Members

3

for all time they were required to work, including time spent performing pre-shift

4

and post-shift activities without compensation but with the knowledge

5

acquiescence and/or approval (tactic as well as expressed) of Defendants’

6

managers and agents.
C.

7

Common questions exist as to: 1) Whether the time spent by

THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

8

Plaintiffs and all other FLSA CLASS Members engaged in pre-shift and post-shift

9

activities is compensable under federal law; and 2) Whether Defendants failed to

10

pay Plaintiffs and FLSA CLASS Members one and one-half times their regular

11

hourly rate for all hours worked in excess of 40 hours a week.
D.

12

Upon information and belief, Defendants employ, and have

13

employed, in excess of 1000 FLSA CLASS Members within the applicable statute

14

of limitations.
E.

15

Plaintiffs have signed Consent to Sue forms which have been filed

16

with the Court. Consent to sue forms are not required for state law claims under

17

Rule 23 of the Nevada Rules of Civil Procedure.

18

41.

The NEVADA CLASS is defined as follows: All current and former non-

19

exempt hourly paid employees employed as housekeepers by Defendants during the

20

relevant time period. The NEVADA CLASS is further divided into the following sub-class:
A.

21

WAGES DUE AND OWING SUB-CLASS: All members of the

22

NEVADA CLASS who, at any time during the Class Period, were

23

terminated or otherwise separated from employment.

24

42.

The FCRA CLASS is defined as follows: Any person whom Defendants

25

procured a background report for employment purposes in the period beginning 5 years

26

prior to the filing of the Complaint up to an including the date of judgment.

27
28

43.

Rule 23 treatment is appropriate for the NEVADA CLASS and the WAGES

DUE and OWING SUB-CLASS, and the FCRA CLASS for the following reasons:
- 10 FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

A.

The NEVADA and WAGES DUE AND OWING, and FCRA

CLASSES are Sufficiently Numerous. Upon information and belief, Defendants

3

employ, and has employed, in excess of 1,000 NEVADA CLASS and WAGES

4

DUE AND OWING SUB-CLASS and FCRA CLASS Members within the

5

applicable statute of limitations. Because Defendants are legally obligated to

6

keep accurate payroll and employment records, Plaintiffs allege that Defendants’

7

records will establish the identity and ascertainably of members of the NEVADA

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

2

CLASS and the WAGES DUE AND OWING SUB-CLASS as well as their

9

numerosity.

10

B.

Plaintiffs’ Claims are Typical to Those of Fellow Class and Sub-

11

Class Members. Each NEVADA CLASS and WAGES DUE AND OWING

12

SUB-CLASS, and FCRA CLASS Member is and was subject to the same

13

practices, plans, and/or policies as Plaintiffs, as follows: 1) Defendants required

14

Plaintiffs and all NEVADA CLASS Members to engage in pre-shift and post-shift

15

activities without compensation; and 2) As a result of working employees without

16

compensation off the clock, Defendants failed to pay Plaintiffs and WAGES DUE

17

AND OWING SUB-CLASS Members all wages due and owing at the time of

18

their termination or separation from employment; and 3) Plaintiffs and all FCRA

19

CLASS Members were required to sign defective background and credit report

20

authorizations prior to being hired.

21

C.

Common Questions of Law and Fact Exist. Common questions of

22

law and fact exist and predominate as to Plaintiffs and the NEVADA CLASS and

23

WAGES DUE AND OWING SUB-CLASS, and FCRA CLASS, including,

24

without limitation the following: 1) Whether Plaintiffs and all other NEVADA

25

CLASS Members were compensated for “all time worked by the employee at the

26

direction of the employer, including time worked by the employee that is outside

27

the scheduled hours of work of the employee” pursuant to the Nevada

28

Administrative Code (“NAC”) 608.115(1), and NRS 608.016; and 2) Whether
- 11 FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

Defendants delayed final payment to Plaintiffs and all separated class Members in

2

violation of NRS 608.020-050; 3); and Whether Defendants violated the FCRA

3

by procuring such background reports without a FCRA-compliant disclosure.).

4

D.

Plaintiffs Are Adequate Representatives of the Classes. Plaintiffs

will fairly and adequately represent the interests of the NEVADA CLASS and

6

WAGES DUE AND OWING SUB-CLASS, and FCRA CLASS because

7

Plaintiffs are members of each of the CLASSES, they have issues of law and fact

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

5

in common with all members of the CLASSES, and they do not have any interests

9

antagonistic to the members of any of the CLASSES. Plaintiffs and Counsel are

10

aware of their fiduciary responsibilities to Members of each of the CLASSES and

11

are determined to discharge those duties diligently and vigorously by seeking the

12

maximum possible recovery for the all of the classes as a group.

13

E.

Class Issues Predominate and a Class Action Is A Superior

14

Mechanism to Hundreds Of Individual Actions. Class issues predominate, and a

15

class action is superior to other available means for the fair and efficient

16

adjudication of this controversy, since individual joinder of all members of the

17

Classes is impractical. Class action treatment will permit a large number of

18

similarly situated persons to prosecute their common claims in a single forum

19

simultaneously, efficiently, and without unnecessary duplication of effort and

20

expense. Furthermore, the expenses and burden of individualized litigation would

21

make it difficult or impossible for individual members of the Classes to redress

22

the wrongs done to them, while and important public interest will be served by

23

addressing the matter as a class action.

24

present the potential for inconsistent or contradictory judgments.

Individualized litigation would also

25

FIRST CAUSE OF ACTION

26

Failure to Pay Overtime Wages in Violation of the FLSA, 29 U.S.C. § 207

27

(On Behalf of Plaintiffs and all members of the FLSA CLASS)

28
- 12 FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

44.

1
2

Plaintiffs reallege and incorporate by reference all the paragraphs above in the

Complaint as though fully set forth herein.
45.

3

29 U.S.C. Section 207(a)(1) provides as follows: “Except as otherwise provided

in the section, no employer shall employ any of his employees who in any workweek is

5

engaged in commerce or in the production of goods for commerce, or is employed in an

6

enterprise engaged in commerce or in the production of goods for commerce, for a workweek

7

longer than forty hours unless such employee receives compensation for his employment in

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

4

excess of the hours above specified at a rate not less than one and one-half times the regular

9

rate at which he is employed.”
46.

10

By failing to compensate Plaintiffs and FLSA CLASS Members for time spent

11

engaging in pre-shift and post-shift activities, Defendants failed to pay Plaintiffs and FLSA

12

CLASS Members overtime for all hours worked in excess of forty (40) hours in a week in

13

violation of 29 U.S.C. Section 207(a)(1).
47.

14

Wherefore, Plaintiffs demand for themselves and for all others similarly

15

situated, that Defendants pay Plaintiffs and FLSA CLASS Members one and one-half times

16

their regular hourly rate of pay for all hours worked in excess of forty (40) hours a week during

17

the relevant time period together with liquidated damages, attorneys’ fees, costs, and interest as

18

provided by law.

19

SECOND CAUSE OF ACTION

20

Failure to Pay Wages for All Hours Worked in Violation of NRS 608.140 and 608.016

21

(On Behalf of Plaintiffs and all members of the NEVADA CLASS)
48.

22
23

the Complaint as though fully set forth herein.
49.

26
27

NRS 608.140 provides that an employee has a private right of action for unpaid

50.

24
25

Plaintiffs reallege and incorporate by the reference all the paragraphs above in

NRS 608.016 states, “An employer shall pay to the employee wages for each

wages.

hour the employee works.” Hours worked means anytime the employer exercises “control or

28
- 13 FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

custody” over an employee. See NRS 608.011 (defining an “employer” as “every person

2

having control or custody . . . of any employee.”).
51.

3

Pursuant to the Nevada Administrative Code, hours worked includes “all time

4

worked by the employee at the direction of the employer, including time worked by the

5

employee that is outside the scheduled hours of work of the employee.” NAC 608.115(1).
52.

6

By failing to compensate Plaintiffs and NEVADA CLASS Members for the

time spent engaging in the pre-shift and post-shift activities identified above, Defendants failed

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

7

to pay Plaintiffs and NEVADA CLASS Members for all hours worked in violation of NRS

9

608.140 and 608.016.
53.

10

Wherefore, Plaintiffs demand for themselves and for all NEVADA CLASS

11

Members payment by Defendants, at their hourly rate of pay for all wages due for the times

12

worked each shift but not paid, during the relevant time period together with attorneys’ fees,

13

costs, and interest as provided by law.

14

THIRD CAUSE OF ACTION

15

Failure to Pay Overtime Wages in Violation of NRS 608.140 and 608.018

16

(On Behalf of Plaintiffs and all members of the NEVADA CLASS)
54.

17
18

this Complaint as though fully set forth herein.
55.

21

NRS 608.140 provides that an employee has a private right of action for unpaid

56.

19
20

NRS 608.018(2) provides as follows:

wages.

22

An employer shall pay 1 1/2 times an employee’s regular wage
rate whenever an employee who receives compensation for
employment at a rate not less than 1 1/2 times the minimum rate
prescribed pursuant to NRS 608.250 works more than 40 hours in
any scheduled week of work

23
24
25
26
27

Plaintiffs reallege and incorporate by this reference all the paragraphs above in

57.

By failing to compensate Plaintiffs and NEVADA CLASS Members for the pre-

shift and post-shift activities identified above, Defendants failed to pay a weekly premium

28
- 14 FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

overtime rate of time and one half their regular rate for all members of the Class who worked in

2

excess of forty (40) hours in a week in violation of NRS 608.140 and 608.018.
58.

3

Wherefore, Plaintiffs demand for themselves and for NEVADA CLASS

4

Members that Defendants pay Plaintiffs and NEVADA CLASS Members one and one-half

5

times their regular hourly rate of pay for all hours worked in excess of forty (40) hours a

6

workweek during the relevant time period alleged herein together with attorneys’ fees, costs,

7

and interest as provided by law.

THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

8

FOURTH CAUSE OF ACTION

9

Failure to Timely Pay All Wages Due and Owing Upon Termination Pursuant to NRS

10

608.140 and 608.020-.050

11

(On Behalf of Plaintiffs and the WAGES DUE AND OWING SUB-CLASS)
59.

12
13

Complaint as though fully set forth herein.
60.

16

NRS 608.140 provides that an employee has a private right of action for unpaid

61.

14
15

Plaintiffs reallege and incorporates by reference all the paragraphs above in the

NRS 608.020 provides that “[w]henever an employer discharges an employee,

wages.

17

the wages and compensation earned and unpaid at the time of such discharge shall become due

18

and payable immediately.”

19

62.

NRS 608.040(1)(a-b), in relevant part, imposes a penalty on an employer who

20

fails to pay a discharged or quitting employee: “Within 3 days after the wages or compensation

21

of a discharged employee becomes due; or on the day the wages or compensation is due to an

22

employee who resigns or quits, the wages or compensation of the employee continues at the

23

same rate from the day the employee resigned, quit, or was discharged until paid for 30-days,

24

whichever is less.”

25

63.

NRS 608.050 grants an “employee lien” to each discharged or laid-off employee

26

for the purpose of collecting the wages or compensation owed to them “in the sum agreed upon

27

in the contract of employment for each day the employer is in default, until the employee is

28
- 15 FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

paid in full, without rendering any service therefor; but the employee shall cease to draw such

2

wages or salary 30 days after such default.”

3

64.

By failing to pay Plaintiffs and all members of the WAGES DUE AND OWING

4

SUB-CLASS for all hours worked in violation of state and federal law, at the correct legal rate,

5

Defendants have failed to timely remit all wages due and owing to Plaintiff and all members of

6

the WAGES DUE AND OWING SUB-CLASS.

7

THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

8
9

65.

Despite demand, Defendants willfully refuses and continues to refuse to pay

Plaintiffs and all WAGES DUE AND OWING SUB-CLASS Members.
66.

Wherefore, Plaintiffs demand for themselves and all members of the WAGES

10

DUE AND OWING SUB-CLASS thirty (30) days wages under NRS 608.140 and 608.040, and

11

an additional thirty (30) days wages under NRS 608.140 and 608.050, together with attorneys’

12

fees, costs, and interest as provided by law.

13

FIFTH CAUSE OF ACTION

14

Procuring Consumer Reports without First Making Proper Disclosures

15

15 U.S.C. § 1681b(b)(2)(A)(i)

16

(On Behalf of Plaintiffs and the FCRA CLASS)

17
18
19

67.

Plaintiffs reallege and incorporate by this reference all the paragraphs above in

this Complaint as though fully set forth herein.
68.

The FCRA defines a “consumer report” as follows: [A]ny written, oral, or other

20

communication of any information by a consumer reporting agency bearing on a consumer’s

21

credit worthiness, credit standing, credit capacity, character, general reputation, personal

22

characteristics, or mode of living which is used or expected to be used or collected in whole or

23

in part for the purpose of serving as a factor in establishing the consumer’s eligibility for—(A)

24

credit or insurance to be used primarily for personal, family, or household purposes; (B)

25

employment purposes; or (C) any other purpose authorized under section 1681b of this title.

26

69.

Under the FCRA, an employer or prospective employer cannot “procure, or

27

cause a consumer report to be procured, for employment purposes with respect to any

28

consumer, unless . . . a clear and conspicuous disclosure has been made in writing to the
- 16 FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

consumer at any time before the report is procured or caused to be procured, in a document

2

that consists solely of the disclosure, that a consumer report may be obtained for employment

3

purposes.” 15 U.S.C. § 1681b(b)(2)(A)(i) (emphasis added).

4

70.

Defendants violated the FCRA and its core protections by procuring background

5

and credit reports on employees and job applicants without providing a “stand alone”

6

disclosure that a background and credit report would be procured.

7

71.

Plaintiffs and the FCRA Class have suffered harm through Defendants deficient

THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

8

background checks in the form of an invasion of privacy and informational injury, as well as an

9

unlawful release of liability.

10

72.

The foregoing violations were willful.

Defendants acted in deliberate or

11

reckless disregard of its obligations and the rights of Plaintiffs and other class members under

12

15 U.S.C. § 1681b(b)(2)(A)(i). Defendants’ willful conduct is reflected by, inter alia, the

13

following:

14

(a) The FCRA was enacted in 1970; Defendants has had over 40 years to

15

become compliant;

16

(b) Defendants’ conduct is inconsistent with the FTC’s longstanding

17

regulatory guidance, judicial interpretation, and the plain language of the

18

statute;

19

(c) Defendants knew or had reason to know that its conduct violated the

20

FCRA;

21

(e) Defendants repeatedly and routinely uses the disclosure it used with

22

Plaintiffs to procure consumer reports;

23

(f) Defendants’ inclusion of the policy agreement clearly implies

24

awareness by Defendants that they could be held liable for improperly

25

procuring a consumer report;

26

(g) Despite the pellucid statutory text and there being a depth of guidance,

27

Defendants’ systematically procured consumer reports without first

28

disclosing in writing to the consumer in a document that consists solely of
- 17 FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

the disclosure, that a consumer report may be obtained for employment

2

purposes; and

3

(h) By adopting such a policy, Defendants voluntarily ran a risk of

4

violating the law substantially greater than the risk associated with a

5

reading that was merely careless.

6

73.

Plaintiffs and the members of the FCRA Class are entitled to statutory damages

of not less than $100 and not more than $1,000 for each and every one of these violations,

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

7

pursuant to 15 U.S.C. § 1681n(a)(1)(A).

9
10
11

74.

Plaintiffs and the members of the FCRA Class are entitled to such amount of

punitive damages as the Court may allow pursuant to 15 U.S.C. § 1681n(a)(2).
75.

Plaintiffs and the members of the FCRA Class are further entitled to recover

12

their costs and attorneys’ fees, pursuant to 15 U.S.C. § 1681n(a)(3).

13

JURY TRIAL DEMANDED

14

Plaintiffs hereby demand a jury trial pursuant to Federal Rule of Civil Procedure 38.
PRAYER FOR RELIEF

15
16
17
18

Wherefore Plaintiffs, individually and on behalf of all Class Members alleged herein,
pray for relief as follows:
1.

notice to all FLSA CLASS members so they may participate in the lawsuit;

19
20

For an order conditionally certifying the action under the FLSA and providing

2.

For an order certifying the action as a traditional class action under Federal Rule

21

of Civil Procedure Rule 23 on behalf of all members of the NEVADA CLASS

22

and the WAGES DUE AND OWING SUB-CLASS, and the FCRA CLASS;

23

3.

counsel as Class Counsel for the Classes;

24
25

4.

For damages according to proof for overtime compensation under federal law for
all hours worked over 40 per week;

26
27

For an order appointing Plaintiffs as the Representatives of the Classes and their

5.

For liquidated damages pursuant to 29 U.S. C. § 216(b);

28
- 18 FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

1

6.

and 608.016 for all hours worked;

2
3

For damages according to proof for regular hourly rate pay under NRS 608.140

7.

For damages according to proof for overtime compensation at the applicable rate

4

under NRS 608.140 and 608.018 for all hours worked for overtime premium pay

5

of one and one-half times their regular rate for all hours worked in excess of 40

6

hours per week;
8.

For waiting time penalties pursuant to NRS 608.140 and 608.040-.050;

8
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NV 89511
[phone] Fax [phone]
Email [e-mail] www.thiermanbuck.com

7

9.

For statutory and punitive damages as provided by the FCRA;

9

10.

For interest as provided by law at the maximum legal rate;

10

11.

For reasonable attorneys’ fees authorized by statute;

11

12.

For costs of suit incurred herein;

12

13.

For pre-judgment and post-judgment interest, as provided by law; and

13

14.

For such other and further relief as the Court may deem just and proper.

14
15
16
17

DATED: July 5, 2018

Respectfully Submitted,
THIERMAN BUCK LLP

19

/s/Joshua D. Buck
Mark R. Thierman
Joshua D. Buck
Leah L. Jones

20

Attorneys for Plaintiffs

18

21
22
23
24
25
26
27
28
- 19 FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT