Acosta v. Health Center, Inc. et al

Filing 13

CONSENT JUDGMENT in favor of Plaintiff R. Alexander Acosta and against Defendants Health Center, Inc. and Peggy Pearce jointly and severally, in the amount of $59,071.54, which consists of $29,535.77 owed to call center workers as unpa id wages and $29,535.77 owed to call center workers as liquidated damages. The Court shall retain jurisdiction of this action for the purposes of enforcing compliance with the terms of this Consent Judgment for five years. Signed by Judge James C. Mahan on 11/14/2018. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 1 of 13

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JANET M. HEROLD (CSBN 186419)
Regional Solicitor
MARC A. PILOTIN (CSBN 266369)
Counsel for FLSA
ANDREW SCHULTZ (CSBN 237231)
Office of the Solicitor
United States Department of Labor
90 7th Street, Suite 3-700
San Francisco, California 94103
Direct: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff
United States Department of Labor

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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R. ALEXANDER ACOSTA,
Secretary of Labor,
United States Department of Labor,
Plaintiff,

v.

HEALTH CENTER, INC. AND PEGGY
PEARCE,

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Defendants.

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) Case No. 2:17-cv-2659
)
)
)
)
)
) [Proposed] Consent Judgment
) And Order
)
)
)
)
)
)

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Plaintiff, R. ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor

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(“Plaintiff” or the “Secretary”), and Defendants Health Center Inc. and Peggy Pearce, individually and

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as managing agent for Health Center Inc., have agreed to resolve the matters in controversy in this civil
action, and consent to entry of this judgment (“Consent Judgment” or “Judgment”) in accordance
herewith.

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CONSENT JUDGMENT

Page 1 of 13

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 2 of 13

STATEMENTS BY THE PARTIES

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1.

On October 13, 2017, the Secretary filed a Complaint in this Court alleging that

Defendants violated provisions of Sections 6, 7, 11(c) and 15(a)(2), (3) and (5) of the Fair Labor
Standards Act (“FLSA” or the “Act”), 29 U.S.C. §§ 206, 207, 211(c), 215(a)(2), (3) and (5).
2.

Defendants acknowledge receipt of a copy of the Secretary’s Complaint.

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3.

Defendants agree herein to resolve all allegations of the Secretary’s Complaint.

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4.

Defendants admit that this Court has jurisdiction over the parties and subject matter of

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this civil action and that venue lies in the District Court for the District of Nevada.
5.

Defendants and the Secretary agree to the entry of this Consent Judgment without

contest.
6.

Defendants acknowledge that Defendants and all individuals and entities acting on their

behalf or at their direction have notice of, and understand, the provisions of this Consent Judgment.
7.

Defendants admit that this enterprise is engaged in commerce or in the production of

goods for commerce within the meaning of Section 3(s)(1)(A) of the FLSA, 29 U.S.C. § 203(s)(1)(A).
8.

Defendants admit that they have, as employers under the FLSA, and as a matter of

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economic reality, employed individuals whose primary duty is to make phone calls for Defendants and

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who Defendants erroneously treated as independent contractors.

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9.

Defendants admit that their call center workers worked in excess of 40 hours per week

for Defendants but have not been paid a premium, as required under the FLSA, for these hours.
10.

Defendants admit that by erroneously treating their call center workers as independent

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contractors, Defendants shifted some of their costs as employers onto these workers and, as a result,

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some call center workers earned less than the relevant minimum wage.

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CONSENT JUDGMENT

Page 2 of 13

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 3 of 13

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11.

Defendants admit that they failed to keep and maintain records of the times of day

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worked by their call center workers, the hours worked each day, the hours worked each week, the hour

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worked in excess of 40 hours in a workweek, the total wages paid, and contact information for the call

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center workers.
12.

Defendants admit that, by erroneously treating their call center workers as independent

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contractors, Defendants impeded these workers’ ability to understand the circumstances of their

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employment and thereby impeded them from exercising their rights as employees under the FLSA.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

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13.

On October 13, 2017, the Secretary filed a Complaint in this Court alleging that

Defendants violated provisions of Sections 6, 7, 11(c) and 15(a)(2), (3) and (5) of the FLSA, 29 U.S.C.
§§ 206, 207, 211(c), 215(a)(2), (3) and (5).

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14.

Defendants have received a copy of the Secretary’s Complaint.

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15.

Defendants have withdrawn their defenses to the Secretary’s Complaint.

16.

This Court has jurisdiction over the parties and subject matter of this civil action and

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that venue lies in the District Court for the District of Nevada.
17.

Defendants and the Secretary have agreed to the entry of this Consent Judgment without

contest and to resolve the Secretary’s claims.
18.

Defendants and all individuals and entities acting on their behalf or at their direction

have notice of, and understand, the provisions of this Consent Judgment.
19.

This business is engaged in commerce or in the production of goods for commerce

within the meaning of Section 3(s)(1)(A) of the FLSA, 29 U.S.C. § 203(s)(1)(A).

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CONSENT JUDGMENT

Page 3 of 13

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 4 of 13

20.

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Defendants, as employers under the FLSA and as a matter of economic reality,

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employed individuals whose primary duty is to make phone calls for Defendants and who Defendants

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erroneously treated as independent contractors.

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21.

Defendants’ call center workers worked in excess of 40 hours per week for Defendants

but have not been paid a premium, as required under the FLSA, for these hours.
22.

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By erroneously treating them as independent contractors, Defendants shifted some of

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their costs as employers onto these workers and, as a result, some call center workers earned less than

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the relevant minimum wage.

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23.

center workers, the hours worked each day, the hours worked each week, the hour worked in excess of
40 hours in a workweek, the total wages paid, and contact information for the call center workers.

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Defendants failed to keep and maintain records of the times of day worked by their call

24.

By erroneously treating their call center workers as independent contractors, Defendants

impeded these workers’ ability to understand the circumstances of their employment and thereby
impeded them from exercising their rights as employees under the FLSA.

JUDGMENT

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Therefore, upon the agreement of the parties to this action,

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I.

Injunctive Relief
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that, pursuant to Section 17 of

the FLSA, Defendants Health Center, Inc. and Peggy Pearce, their officers, agents, servants,
employees, successor companies, parties in interest, and all persons and entities acting at their direction

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or in concert or participation with them, are permanently enjoined and restrained from violating the

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provisions of the FLSA, including through any of the following manners:

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CONSENT JUDGMENT

Page 4 of 13

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 5 of 13

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1.

Defendants shall not, contrary to the FLSA, fail to classify any call center workers

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selling health-related products for Defendants as non-exempt employees who shall enjoy all protections

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and safeguards guaranteed under the FLSA, including but not limited to those found in Sections 6, 7,

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11(c), 15(a)(2), 15(a)(3) and 15(a)(5) of the Act.
2.

Defendants shall not, contrary to Sections 6 and 15(a)(2) of the FLSA, pay any of their

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call center workers or other employees who in any workweek are engaged in commerce within the

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meaning of the FLSA wages at a rate less than the applicable minimum wage (currently $8.25 per hour

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in Nevada). Defendants shall not, contrary to Sections 7 and 15(a)(2) of the FLSA, pay any of their call

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center workers or other employees who in any workweek are engaged in commerce within the meaning
of the FLSA, less than one and a half times the particular employee’s regular hourly rate for hours in
excess of 40 hours in a workweek.
3.

Defendants shall not, contrary to Sections 11(c) and 15(a)(5) of the FLSA, fail to make,

keep, and preserve records of their employees and of the wages, hours and other conditions and
practices of employment maintained by them, as prescribed by the regulations issued, and from time to

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time amended, pursuant to Section 11(c) of the FLSA and found in 29 C.F.R. Part 516, including for

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each call center worker, the hours worked each day and each workweek, the call center worker’s

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regular hourly rate of pay, total daily or weekly straight time earnings, overtime rate of pay, total

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premium pay for overtime hours and identification of each deduction made from the call center
worker’s earnings along with a description of the basis/reason and method of calculation of the
deduction.
4.

Defendants shall not, contrary to Section 15(a)(3) of the FLSA, discharge, threaten to

discharge, lay off, reduce the work schedule or wages, intimidate, or in any other manner discriminate
against any employee as a result of this litigation or because the employee has filed any complaint

CONSENT JUDGMENT

Page 5 of 13

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 6 of 13

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under or related to the FLSA or has spoken or provided information to the Secretary’s representatives

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in connection with this litigation or participated in or received a distribution from the proceeds of this

3

action.

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6

5.

Defendants shall not request, solicit, suggest, or coerce, directly, or indirectly, any call

center worker to return or to offer to return to the Defendants or to someone else for the Defendants,

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any money in the form of cash, check, or any other form, for wages previously due or to become due in

8

the future to said employee under the provisions of this judgment, or the FLSA.

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6.

Defendants Health Center Inc. and Peggy Pearce, jointly and severally, shall not

withhold payment of $29,535.77, which constitutes back wages owed to call center workers.
II.

Monetary Provisions
FURTHER, PURSUANT TO THE PARTIES’ AGREEMENT, JUDGMENT IS HEREBY

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ENTERED, pursuant to Section 16(c) of the FLSA, 29 U.S.C. § 216(c), in favor of the Secretary as a

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judgment owed to the United States of America and against Defendants Health Center Inc. and Peggy

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Pearce, jointly and severally, in the amount of $59,071.54, which consists of $29,535.77 owed to call
center workers as unpaid wages and $29,535.77 owed to call center workers as liquidated damages.
7.

Within 30 (thirty) days of the date of the entry of this Consent Judgment, Defendants

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shall deliver the following items in person to the Wage and Hour Division, U.S. Department of Labor,

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333 Las Vegas Blvd S., Suite 5520 Las Vegas, NV 89101, addressed to Higino Ramos, Assistant

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District Director:
a.

A separate check for each call center worker identified in Exhibit A, each of

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which shall be made payable to the order of the particular person and the Wage & Hour

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Division, U.S. Department of Labor, as alternative payees (for example: “Pay to the order

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of ---((Name)) or the Wage & Hour Div., Labor”), and each of which shall be in the amount

CONSENT JUDGMENT

Page 6 of 13

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 7 of 13

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of the liquidated damages due to the call center worker as identified in Exhibit A. The

2

memo line of each check shall state: “HCI – LDs.”

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b.

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A separate payroll check for each call center worker identified in Exhibit A,

each of which shall be made payable to the order of the particular person and the Wage &

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Hour Division, U.S. Department of Labor, as alternative payees (for example: “Pay to the

6
7

order of ---((Name)) or the Wage & Hour Div., Labor”), and each of which shall be in the

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amount of the net back wages due to the employee as identified in Exhibit A. The memo

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line of each check shall state: “HCI – BWs.”

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c.

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Upon receipt of the checks detailed in Subparagraphs b and c above, the

Secretary shall distribute payments to the persons named in Exhibit A, or to their estates if

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13

necessary, in his sole discretion, and any money not so paid within a period of three (3)

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years from the date of its receipt, because of an inability to locate the proper persons or

15

because of their refusal to accept it, shall be deposited in the Treasury of the United States,

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as miscellaneous receipts, pursuant to 29 U.S.C. § 216(c).

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8.

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In the event of default in timely making the payments, the Secretary may move this

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Court for enforcement of this Judgment. Post-judgment interest shall accrue on the monetary portion of

20

this Judgment in accordance with 28 U.S.C. § 1961.

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III.

Miscellaneous Provisions
9.

Within thirty (30) calendar days of the date of entry of this Consent Judgment,

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Defendants shall provide each of their employees with a copy of the “Notice of Rights,” attached as

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Exhibit B, which summarizes the terms of this Consent Judgment and provides guidance from the U.S.

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Department of Labor regarding the rights of employees, including protection from retaliation, under the

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FLSA. Thereafter, Defendants shall provide a copy of Exhibit B to all newly-hired employees before

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CONSENT JUDGMENT

Page 7 of 13

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 8 of 13

1

or by the dates said employee begins performing work for Defendants. This provision shall be in effect

2

for one year.

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10.

Within fourteen (14) calendar days of the date that Defendants sign this Consent

Judgment, Defendants shall post U.S. Department of Labor-approved posters regarding the minimum
wage and overtime provisions of the FLSA, in prominent locations at all of their current and future

7

facilities. Copies of said posters are available for download at

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https://www.dol.gov/whd/regs/compliance/posters/flsa.htm.

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11.

Defendants shall implement and maintain a recordkeeping and timekeeping system to

insure compliance with FLSA. Defendants’ recordkeeping and timekeeping system must be equivalent
to or better than the system Defendants currently have in place, which includes an electronic

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timekeeping system linked to payroll. Defendants shall maintain copies of all employee wage and hour

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records as required by FLSA and make those records available to the Wage and Hour Division upon

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request.

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12.

The resolution of this proceeding with the filing of this Consent Judgment shall not act

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as, or be asserted as, a bar to back wage recovery by any employee not named on Exhibit A, or by any

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employee named on Exhibit A for any period other than October 13, 2014 through February 18, 2017.

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13.

Each party shall bear all fees and other expenses (including court costs and attorney’s

fees) incurred by the party in connection with any stage of this proceeding.

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CONSENT JUDGMENT

Page 8 of 13

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 9 of 13

November 14, 2018.

11/7/2018

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 10 of 13

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2
Exhibit A

3
4
5

Last Name

First Name

BWs Due

LDs Due

6

ALI-RAHMAN

JAMILLAH

$

391.50

$

391.50

$

783.00

ANDERSON

KAREN

$

217.50

$

217.50

$

435.00

APPLEWHITE

MELISSA

$

3,689.26

$

3,689.26

$

7,378.52

BASES

JOHN

$

593.08

$

593.08

$

1,186.16

BEARD

WALTER

$

43.50

$

43.50

$

87.00

BEATTY

WALTER

$

136.46

$

136.46

$

272.92

BELFIORE

MARY

$

93.26

$

93.26

$

186.52

BENSHOOF

$

137.34

$

137.34

$

274.68

BOOTH

ROBERT
MICHAEL
(MAX)

$

43.50

$

43.50

$

87.00

CAHILL

DANIEL

$

998.42

$

998.42

$

1,996.84

13

CAHILL

RINDIA

$

130.50

$

130.50

$

261.00

14

CAMPBELL

JUDITH

$

1,080.79

$

1,080.79

$

2,161.58

CARY

MICHELLE

$

130.50

$

130.50

$

261.00

CASAROTTO

TONI

$

43.50

$

43.50

$

87.00

CLARK

JASON

$

43.50

$

43.50

$

87.00

CLIFFORD

MICHAEL

$

56.25

$

56.25

$

112.50

17

CONSENTINO

JILL

$

87.00

$

87.00

$

174.00

18

CONTRERAS

IRENE

$

174.00

$

174.00

$

348.00

COOK

JEFFREY

$

250.75

$

250.75

$

501.50

19

DAVIS

ANTHONY

$

43.50

$

43.50

$

87.00

20

DAY

ANNA

$

394.35

$

394.35

$

788.70

DENTON

SHAWN

$

402.88

$

402.88

$

805.76

DOE

AARON

$

43.50

$

43.50

$

87.00

DOE

AMIN

$

87.00

$

87.00

$

174.00

DOE

ANGEL

$

87.00

$

87.00

$

174.00

23

DOE

BOB

$

87.00

$

87.00

$

174.00

24

DOE

CHASE

$

348.00

$

348.00

$

696.00

DOE

DAKOTA

$

304.50

$

304.50

$

609.00

25

DOE

DAVID

$

43.50

$

43.50

$

87.00

26

DOE

GENELL

$

43.50

$

43.50

$

87.00

DOE

GINA

$

43.50

$

43.50

$

87.00

DOE

JACKIE

$

87.00

$

87.00

$

174.00

DOE

JAMIE

$

43.50

$

43.50

$

87.00

7
8
9
10
11
12

15
16

21
22

27
28

CONSENT JUDGMENT

Page 10 of 13

Total Due

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 11 of 13

1

DOE

JERMAINE

$

87.00

$

87.00

$

174.00

2

DOE

JEROME

$

130.50

$

130.50

$

261.00

DOE

LEE

$

43.50

$

43.50

$

87.00

DOE

LYNN

$

87.00

$

87.00

$

174.00

DOE

RAY

$

217.50

$

217.50

$

435.00

DOE

ROB

$

87.00

$

87.00

$

174.00

5

DOE

ROCKY

$

87.00

$

87.00

$

174.00

6

DOE

SAUL

$

130.50

$

130.50

$

261.00

DOE

SUSSEX

$

130.50

$

130.50

$

261.00

7

DOE

WILLY

$

304.50

$

304.50

$

609.00

8

DOMEN

LISA

$

52.77

$

52.77

$

105.54

DOMINGUEZ

ANNA

$

174.00

$

174.00

$

348.00

ELFRONT

EDIE

$

126.46

$

126.46

$

252.92

10

ENGLAND

ROBERT

$

43.50

$

43.50

$

87.00

11

ESTRADA

DORINDA

$

132.49

$

132.49

$

264.98

FLINT

KAREES

$

217.50

$

217.50

$

435.00

12

FRUDAKIS

CONSTANCE

$

261.00

$

261.00

$

522.00

13

GARCIA

PATRICIA

$

82.43

$

82.43

$

164.86

GIBBONS

PATRICK

$

43.50

$

43.50

$

87.00

GREEN

CHARLES

$

2,871.61

$

2,871.61

$

5,743.22

GRIFFIN

REGINALD

$

206.25

$

206.25

$

412.50

HENDERSON

PATRICIA

$

872.05

$

872.05

$

1,744.10

16

HILLS

KATHRYN

$

87.00

$

87.00

$

174.00

17

HOLLINS

JANETTE

$

559.70

$

559.70

$

1,119.40

INGRAM

JAMES

$

371.06

$

371.06

$

742.12

18

JOHNSON

DORY

$

116.46

$

116.46

$

232.92

19

JOHNSON

AURORA

$

179.96

$

179.96

$

359.92

JOHNSON

DARCY

$

116.46

$

116.46

$

232.92

KAILI

DENISE

$

377.46

$

377.46

$

754.92

KOHANSKI

$

87.00

$

87.00

$

174.00

KWAK

DAVID
MIN
(JOHNNY)

$

87.00

$

87.00

$

174.00

LAUDERDALE

COLEMAN

$

136.46

$

136.46

$

272.92

LEARY

KRISTAN

$

565.50

$

565.50

$

1,131.00

LEE

JAMES

$

796.84

$

796.84

$

1,593.68

LEE

SHABREL

$

906.74

$

906.74

$

1,813.48

LEWANADOSKI

DAVID

$

861.83

$

861.83

$

1,723.66

26

LYONS

WILLIAM

$

130.50

$

130.50

$

261.00

27

MAC GEORGE

SHARI

$

43.50

$

43.50

$

87.00

MARSHALL

DAPHNE

$

220.10

$

220.10

$

440.20

MCIVER

LAWRENCE

$

42.25

$

42.25

$

84.50

3
4

9

14
15

20
21
22
23
24
25

28

CONSENT JUDGMENT

Page 11 of 13

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 12 of 13

1

MCKAY

REGINA

$

85.34

$

85.34

$

170.68

2

MONET

EBONI

$

598.39

$

598.39

$

1,196.78

MOUZON

$

412.65

$

412.65

$

825.30

$

43.50

$

43.50

$

87.00

3

NAVA

YOLANDA
SUNCERAE
(SUNNY)

4

NOGERA

DEBORAH

$

304.50

$

304.50

$

609.00

ONEAL

GAIL

$

242.92

$

242.92

$

485.84

ORTIS

ANGELA

$

447.53

$

447.53

$

895.06

6

PRUITT

CHARLES

$

126.46

$

126.46

$

252.92

7

RASHADA

RAHIM

$

536.67

$

536.67

$

1,073.34

RIGGS

JUANITA

$

691.70

$

691.70

$

1,383.40

RINGOLD

DIAMOND

$

256.96

$

256.96

$

513.92

ROBINSON

WILLIE

$

854.45

$

854.45

$

1,708.90

ROBINSON

NATWARIAL

$

174.00

$

174.00

$

348.00

ROSS

DAVID

$

43.50

$

43.50

$

87.00

11

SALES

PAUL

$

353.96

$

353.96

$

707.92

12

SMOTHERS

RHONDA

$

390.21

$

390.21

$

780.42

STEELE

CATHERINE

$

217.50

$

217.50

$

435.00

STUART

SHAWN

$

126.46

$

126.46

$

252.92

TROUPE

DEBRA

$

87.00

$

87.00

$

174.00

WILLIAMS

CONNIE

$

126.46

$

126.46

$

252.92

15

WILLIAMS

LONNIE

$

506.89

$

506.89

$

1,013.78

16

WOLFE

MARK

$

130.50

$

130.50

$

261.00

YAZDI

MIKE

$

304.50

$

304.50

$

609.00

TOTAL

$

29,535.77

$

29,535.77

$

59,071.54

5

8
9
10

13
14

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19
20
21
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23
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25
26
27
28

CONSENT JUDGMENT

Page 12 of 13

Case 2:17-cv-02659-JCM-VCF Document 12 Filed 11/09/18 Page 13 of 13

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EXHIBIT B

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LEGAL NOTICE TO ALL EMPLOYEES

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The Fair Labor Standards Act provides that all employees must be
paid a minimum wage for all hours worked. Further, employees must be
paid overtime, at a rate of time and one half their regular rate, for the hours
they work over 40 in a workweek. All employees, whether they are paid
hourly or on a commission basis are entitled to overtime when they work
over 40 hours.
To resolve a lawsuit brought by the Department of Labor, the United

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States District Court entered an Order finding that call center workers in

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this establishment are employees, not independent contractors. The Court’s

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Order forbids PEGGY PEARCE and HEALTH CENTER, INC. from

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violating the minimum wage and overtime requirements of the Fair Labor

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Standards Act. All employees who work in this establishment can help the
employer not to violate the Court’s Order. If you think you are not being
paid in accordance with the law, call the U.S. Department of Labor,
Wage and Hour Division, at [phone] and your name will be kept
confidential.

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CONSENT JUDGMENT

Page 13 of 13