Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
Page 1 of 25
Page ID#: 1
Carl Post, OSB No. 06105
[email protected]
LAW OFFICES OF DANIEL SNYDER
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
Telephone: (503) 241-3617
Facsimile: (503) 241-2249
Debra Brewer Hayes, Of Counsel
[email protected]
Charles Clinton Hunter
[email protected]
REICH & BINSTOCK, LLP
4265 San Felipe, Suite 1000
Houston, TX 77027
(713) 622-7271 Tel.
(713) 623-8724 Fax
Of Attorneys for the plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
SHANNON BARNHART, on behalf of
herself and ALL OTHERS SIMILARLY
SITUATED,
Plaintiff,
vs.
FASTAX INCORPORATED dba
JACKSON HEWITT TAX SERVICE
#0975,
Defendant.
PAGE 1 –COMPLAINT
Civil Action No.
CLASS ACTION
COMPLAINT FOR WAGE
AND HOUR DAMAGES
AND
DEMAND FOR JURY
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
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Page ID#: 2
COMES NOW the Plaintiff, SHANNON BARNHART, for herself and for all
others similarly situated, and for cause of action against the above-named defendant,
alleges as follows:
NATURE OF THE ACTION
I.
1.1
This action is brought to obtain equitable and monetary relief for
violations of the Minimum Wage Laws of the state of Oregon and the Fair Labor
Standards Act of the United States, and for violations of the other rights, obligations,
privileges and benefits owed to Ms. Barnhart under the laws of Oregon and of the
United States by defendant Fastax Incorporated dba Jackson Hewitt Tax Service #0975.
1.2
This action challenges Fastax’s denial to Ms. Barnhart of the rights,
obligations, privileges and benefits owed to her as an employee, including without
limitation the right to be paid at least the minimum hourly wage for every hour she
worked for Fastax, as well as overtime. This lawsuit concerns Ms. Barnhart’s
employment as a Seasonal Licensed Tax Professional for Fastax in its Salem,
Oregon, office from December 2012 through January 2013, as well as Fastax’s
employment of Class Members in the same or similar jobs during the Class Period.
II.
2.1
PARTIES
Plaintiff SHANNON BARNHART is an individual who is a resident
of Salem, Oregon.
2.2
Fastax FASTAX INCORPORATED dba JACKSON HEWITT TAX
SERVICE #0975, is an Oregon corporation with its principal place of business
PAGE 2 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
Page 3 of 25
located at 3771 Commercial Street SE, Salem, Oregon 97302.
Page ID#: 3
Fastax may be
served via certified mail through its owner and registered agent, Calvin Phillips,
4676 Commercial Street SE, PMB 373, Salem, Oregon 97302.
2.3
The Court has jurisdiction over the fair labor standards act violations
alleged below pursuant to 28 U.S.C.A. § 1337.
2.4
The Court may exercise supplemental jurisdiction over the state
claims set forth herein under 28 U.S.C.A. § 1367(a).
2.5
Venue is proper in this district under 28 U.S.C.A. § 1391(a) because a
substantial part of the events or omissions giving rise to this claim occurred in
this district and because Fastax maintains an office in Salem, Oregon, and was
subject to personal jurisdiction in this district at the time the action was commenced.
III.
3.1
FACTUAL ALLEGATIONS
Records on file with the Oregon Secretary of State indicate that Fastax
has operated as an Oregon corporation since May 1999. At the time of the contract that
is the subject of this dispute, Fastax was (and still is) a franchisee of Jackson Hewitt,
Inc., the national income tax preparation service.
3.2
On its current website, Jackson-Hewitt, Inc., states that it “has more than
25 years in the tax prep business and [that its] Tax Pro training is second to none.”
Jackson-Hewitt advertises on its website for workers to “[j]oin our team and you’ll
enjoy comprehensive training [and] free Continuing Education credits as long as you
work with us….” Jackson-Hewitt also claims on its website that it has “more than 6,500
PAGE 3 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
Page 4 of 25
Page ID#: 4
franchised and company-owned locations throughout the United States including
locations in Walmart stores nationwide, and Sears’s stores in the United States and
Puerto Rico….” On information and belief, Ms. Barnhart alleges that this website
contained similar content about Jackson-Hewitt, Inc., in 2012 and during the Class
Period.
3.3
Information currently available from the Oregon Board of Tax
Practitioners lists the following information for “Fastax:”
License
Number
Filter
B14129
B14130
B14131
B14132
B15189
B15190
License
Type
Filter
Business
Business
Business
Business
Business
Business
3.4
Status
Filter
Active
Active
Active
Active
Active
Active
Name
Filter
Fastax, Inc dba Jackson Hewitt Tax Service #0975
Fastax, Inc dba Jackson Hewitt Tax Service #0975
Fastax, Inc dba Jackson Hewitt Tax Service #0975
Fastax, Inc dba Jackson Hewitt Tax Service #0975
Fastax, Inc dba Jackson Hewitt Tax Service #0975
Fastax, Inc dba Jackson Hewitt Tax Service #0975
Address
Filter
3771 Commercial St SE
3832 River Rd N
289 E Ellendale #402
3965 Rich Dr
1940 Turner Rd SE
3025 Lancaster Dr NE
City State Zip Code
Filter Filter Filter
Salem
Keizer
Dallas
Salem
Salem
Salem
OR
OR
OR
OR
OR
OR
97302
97305
97338
97305
97302
97305
License
Expiration
Date
Filter
05/31/2014
05/31/2014
05/31/2014
05/31/2014
05/31/2014
05/31/2014
Additional information currently available from the Oregon Board of Tax
Practitioners shows that Fastax will offer tax training at its Commercial Street location
for tax year 2014 through Christina Phillips and PFS Tax School, the latter of which is
indicated to be a private firm licensed as a vocational school by the Oregon Department
of Education. PFS Tax School is not registered as a business name with the Oregon
Secretary of State.
3.5
Information obtained from the Oregon Department of Education is:
1) that PFS Tax School has been licensed by the Department as a private
career school since 1994 to provide educational services from its sole licensed
location on 3965 Rich Drive, Salem, Oregon 97305;
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Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
Page 5 of 25
Page ID#: 5
2) Jackson Hewitt, Inc. is also licensed by the Department as a private
career school to provide educational services from several licensed locations in
Oregon, but not in Salem, Oregon; and
3) Fastax has never been licensed by the Department as a private career
school and, accordingly, is unauthorized to offer tax classes or to collect tuition
for them now and during the Class Period.
3.6
Information published by the Oregon Board of Tax Practitioners indicates
that on September 26, 2013, the Board voted unanimously to issue a Notice of Intent to
Impose Discipline and Right to Hearing to Calvin Phillips, the owner of Fastax, for two
violations of state laws and Board regulations that required him to notify the Board
within 15 business days of any change in status of its Resident Consultants.
3.7
Fastax employed or employs Ms. Barnhart and Class Members as
Seasonal Licensed Tax Professionals in its Oregon offices. This lawsuit is brought
because Fastax has attempted to avoid the Minimum Wage Laws of Oregon by failing
to compensate Ms. Barnhart and Class Members for time they were required to spend in
Tax Pro Training and other required training sessions despite its contractual and legal
obligations to do so.
3.8
Ms. Barnhart and the Class Members also sue Fastax for the return of
monies improperly charged them by Fastax for training sessions.
3.9
Finally, Ms. Barnhart and the Class Members sue for damage Fastax
caused to their credit by improper and unlawful collection efforts.
PAGE 5 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
3.10
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As current or former employees of Fastax, Ms. Barnhart and Class
Members were entitled to compensation for the each and every hour that they spent in
the employ of Fastax including time spent in mandatory training sessions and in
completing the PEP problems described below.
3.11
On information and belief, Jackson-Hewitt, Inc., requires its franchised
and corporate-owned offices to use standardized employment forms like the ones
executed by Ms. Barnhart on August 30, 2012, to perform work for Fastax during the
2013 tax season. Ms. Barnhart is informed and believes that the fourteen pages of
employment contracts, forms, and applications she executed for Fastax have not
changed substantially during the Class Period and that each Class Member executed
these same forms or substantially similar forms. Ms. Barnhart attaches copies of the
documents she executed as a condition of employment by Fastax as exhibits to this
Complaint and, by this reference, incorporates them into the Complaint as if fully set
forth herein.
3.12
The Employment Agreement signed by Ms. Barnhart to work for Fastax
is attached as Exhibit A. The Employment Agreement states the term of Ms. Barnhart’s
employment with Fastax as the “Tax Season,” which is defined as extending “from date
contract is signed through Wednesday, April 17, 2013….” Employment Agreement ¶1.
The Employment Agreement states that Ms. Barnhart was “hired to provide outstanding
customer service and tax preparation.” Id. ¶2.
3.13
The Employment Agreement describes Ms. Barnhart’s specific duties at
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Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
Page 7 of 25
Page ID#: 7
Fastax’s office to include “required training,” id., and “mandatory trainings throughout
December and early January.” Id. ¶3. Specifically, the Employment Agreement states
the following about training:
3. MANDATORY TRAINING: There will be mandatory trainings
throughout December and early January. You are required to attend
and as such, these trainings will be paid at the Hourly Base Rate.
Many modules will be available at different times so as not to seriously
impact or interfere with your holiday schedule. It is your responsibility
to make arrangements to attend all necessary trainings.
Id. (emphasis added). The Employment Agreement further defines the “Hourly Base
Rate” as starting at “the Oregon minimum wage.” Id. ¶7a.
3.14
In the Employment Agreement, Fastax promised increases to this base
pay. For example, “[s]taff who successfully complete the annual ‘PEP Problems’ … are
eligible for a $1.50/hr maximum KSA Adjustment to be paid as additional hourly wage
when earned.” Id. ¶7bi.
These increases were to be earned in “three incremental
consecutive levels (A, B, and C); 10 problems (A Level) for $0.25/hr, 20 problems (B
level) for $0.75/hr and the whole 30 (C Level) for $1.50/hr.” Id. The PEP problems were
completed during normal business hours at Fastax and concerned topics or issues
directly related to Ms. Barnhart’s and the Class Members jobs at Fastax as seasonal
licensed tax professionals.
3.15
Additionally, an employee who was currently an Oregon Licensed Tax
Consultant was eligible to receive an extra $1.50 per hour wage. Id. ¶7bii.
3.16
First year tax preparers, like Ms. Barnhart, were guaranteed a minimum
PAGE 7 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
Page 8 of 25
Page ID#: 8
hourly wage of $12.00 (inclusive of bonuses) if certain conditions were met. Id. ¶7c.
3.17
Along with the Employment Agreement, Ms. Barnhart also executed on
August 30, 2012, an IRS Form W-4 (Exhibit B), a Form I-9 (with proof of citizenship)
(Exhibit C), a background check release form (Exhibit D), an Application for
Employment (Exhibit E), and an Employee Availability for Tax Season 2013 form.
(Exhibit F.)
3.18
The Employment Agreement that Ms. Barnhart signed with Fastax on
August 30, 2012, states that employment commenced immediately. Nonetheless, Fastax
also required Ms. Barnhart simultaneously to execute a “Pre-Employment Agreement
for Tax School 2012.” (Exhibit G.) The “Pre-Employment Agreement” required Ms.
Barnhart to pay a “non-refundable” $100 books and course materials fee and also to
guarantee payment of a $499 tuition fee to take the Jackson Basic Income Tax Course,
for which Ms. Barnhart was required to post her credit card information as security. Per
the Pre-Employment Agreement, Fastax would “waive” the $499 “tuition” if Ms.
Barnhart completed the course by a certain date and complied with other stated “tenets.”
3.19
One such “tenet” was a requirement that Ms. Barnhart complete the
Jackson Hewitt Basis Income Tax Course by December 8, 2012. Ms. Barnhart complied
with this tenet and passed the Oregon tax preparer licensing exam by that date. See
Letter to Ms. Barnhart from Oregon State Board of Tax Practitioners (Exhibit H).
3.20
Another “tenet” Ms. Barnhart met was that she timely entered into an
employment “situation” with Fastax for the 2013 tax season. Indeed, after Ms. Barnhart
PAGE 8 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
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Page ID#: 9
passed the State licensing exam, she was assigned employee number “232” and told to
start working the PEP problems. Ms. Barnhart worked for Fastax on December 18,
2012 (noon to 4:00 pm), December 19, 2012 (noon to 3:00 pm), and December 20, 2012
(noon to 8:30 pm). Ms. Barnhart also worked for Fastax on December 22, 2012 (1:00
pm to 5:00 pm), on December 26, 2012 (3:00 pm to 8:30 pm), and on December 27,
2012 (10:00 am to noon). During these hours, Ms. Barnhart completed at least 10 PEP
problems and, thus, was entitled to an increase of her hourly wage of at least 25 cents.
3.21
After signing the employment agreement in August 2013, Ms. Barnhart
went through four months of training at Fastax. She then took the state exam and passed
it at Chemeketa College in Salem, Oregon, in December of 2012.
3.22
After the New Year, Ms. Barnhart became ill and unable to work for a
brief period, after which Fastax terminated Ms. Barnhart for alleged breach of the
Employment Agreement. Fastax failed to pay Ms. Barnhart for any of the hours that she
had trained and worked, much less pay her additional hourly wages based on her
completion of PEP problems.
The General Manager of Fastax explained to Ms.
Barnhart that her work was all “volunteer” work; however, in no sense was Ms.
Barnhart’s work voluntary or gratuitous.
3.23
By letter mailed in late January 2013 (Exhibit I) (“collection letter”),
Fastax informed Ms. Barnhart that she was in breach of the Pre-Employment Agreement
and demanded that Ms. Barnhart pay the “waived” tax school fee of $499.
3.24
In its collection letter, Fastax also threatened to charge Ms. Barnhart’s
PAGE 9 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
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Page ID#: 10
credit card for the course fee and to refer her to collections if the credit card charge was
declined.
3.25
Additionally, Fastax enclosed with the collection letter a copy of the Pre-
Employment Agreement in which Fastax threatens to “remove” her licensure as a
licensed tax preparer for Ms. Barnhart’s alleged failure to “honor” the agreement.
3.26
The collection letter was sent to Ms. Barnhart by Fastax, not by a private
career school authorized to charge and collect tuition. Ms. Barnhart is informed and
believes that Fastax has sent similar demand letters to Class Members during the Class
Period and has used the collection letter to improperly and unlawfully collected monies
from the Class.
3.27
Ms. Barnhart next received a collections notice dated February 19, 2013,
from Merchants Credit Bureau of Salem adding an unlawful “interest” charge for
$15.61. (Exhibit J.) The Bureau wrote to collect a debt allegedly owed to “Jackson
Hewitt Tax Service,” not to a private career school authorized to charge and collect
tuition. Ms. Barnhart is informed and believes that Fastax has caused similar collection
letters to be sent improperly and unlawfully to Class Members during the Class Period.
Ms. Barnhart contends that Fastax’s collection efforts have damaged her credit and the
credit of Class Members.
3.28
At all relevant times, Fastax was and is an employer subject to the
Oregon state a n d f e d e r a l labor laws. Fastax has refused and otherwise fails to
comply with Oregon state and federal minimum wage laws in respect to Ms. Barnhart
PAGE 10 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
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Page ID#: 11
and the Class.
3.29
The practices complained of herein are routine practices of Fastax and
Plaintiff is aware of others like her who have suffered as a result to the practices in the
same manner that she has suffered.
IV.
COLLECTIVE AND CLASS ACTION ALLEGATIONS
FLSA COLLECTIVE ACTION ALLEGATIONS
4.1.
Ms. Barnhart seeks to represent all natural persons who did not receive
the Oregon minimum wage for training time during the three years before the filing of
the Complaint through the date of the filing period and who were not paid in
accordance with the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 206 (“Collective
Action”).
4.2.
Ms. Barnhart and the Collective-Action Members were not timely
paid the wages owing to them.
4.3.
Ms. Barnhart is similarly situated with the members of the Collective
Action in that:
(a) Ms. Barnhart and the members of the Collective Action were
employed by Fastax as seasonal licensed tax professionals;
(b) Ms. Barnhart and the members of the Collective Action were not
timely compensated their minimum wages or overtime compensation;
(c) Fastax knowingly and willfully violated provisions of the FLSA, by
not paying Ms. Barnhart and the members of the Collective Action their
PAGE 11 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
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Page ID#: 12
minimum wages and overtime compensation when due; and
(d) Because of the Fastax’s policy and practice of withholding
compensation for all t r a i n i n g hours worked, including minimum wages, Ms.
Barnhart and the members of the Collective Action have been similarly
damaged in that they have not received timely payment of their minimum
wages and overtime compensation.
4.4.
This action is maintainable as an “opt-in” collective action pursuant to
29 U.S.C. § 216(b) as to claims for liquidated damages, costs and attorneys' fees under
the FLSA.
4.5.
All members of the Collective Action during the relevant time period
should be given notice and be allowed to give their consent in writing, i.e., “opt in” to
the Collective Action pursuant to 29 U.S.C. § 216(b).
CLASS ACTION ALLEGATIONS
4.6.
This action is also brought as a class action under rule 23 of the Federal
Rules of Civil Procedure. Fastax’s conduct has been systematic and continuous and
has affected and continues to affect large numbers of Fastax’ s employees’ pay. Ms.
Barnhart brings this class action to secure redress for Fastax’s uniform and common
practice of failing to pay its seasonal licensed tax professionals equivalent minimum
wages. Fastax’ s obligations and conduct have been uniform throughout the Class
Period.
PAGE 12 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
4.7.
4.8.
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Ms. Barnhart seeks certification of the following opt-out class:
•
All persons in the state of Oregon who are
or have been employed by Fastax as
seasonal licensed tax professionals during the
Class Period.
•
The Class Period runs for six years from the
filing of this Complaint.
•
Excluded from the Class are Plaintiff's
counsel and the assigned Judge and the
Judge’s family.
The proposed Class is so numerous as to make it impractical to bring
all Class Members before the Court.
4.9.
The named Plaintiff is typical of members of the class. She was an
employee of Fastax during the Class Period who worked as a seasonal licensed tax
professional. She did not receive pay from Fastax for her work equivalent to the
minimum wage established in Oregon at the time of her employment. She was not
paid for her attendance at mandatory training and orientation sessions.
4.10.
There are numerous and substantial questions of law and fact common
to all of the Members of the Class that predominate over any individual issues.
Included within the common questions of law and fact are:
a.
Whether Fastax failed to pay Ms. Barnhart and the
Members of the Class equivalent to the Oregon minimum
wage during the class period;
b.
Whether Fastax failed to pay Ms. Barnhart and the
Members of the Class overtime to which they were entitled;
c.
Whether Fastax failed to pay Ms. Barnhart and the
Members of the Class for their attendance at mandatory
PAGE 13 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
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Filed 03/25/14
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Page ID#: 14
training and orientation sessions;
4.11.
d.
Whether Fastax wrongly charged Ms. Barnhart and
Members of the Class for course materials and tuition for
training seminars provided them as Fastax’s employees;
e.
Whether the above constitute violations of Oregon wage
laws;
f.
Whether the Fastax’s conduct was willful and/or intentional;
g.
Whether
conduct;
h.
Whether Ms. Barnhart and the Members of the Class
have sustained damages and the proper measure of those
damages;
i.
Whether Ms. Barnhart and Class Members have suffered
and will continue to suffer irreparable harm from false
reports filed against them by Fastax with debt collectors
and credit bureaus.
Fastax has
been unjustly enriched by i t s
Ms. Barnhart has no interests adverse to the interests of other Members
of the Class and will fairly and adequately protect the interests of the Class.
4.12.
Ms. Barnhart has retained counsel experienced and competent in the
prosecution of class actions and complex litigation.
4.13.
A class action is superior to other available methods for the fair and
efficient adjudication of this controversy. Absent a class action, Fastax’ s refusal
during the Class Period to pay the equivalent minimum wage and overtime to its
employees and to pay for mandatory training and orientation, the Class Members
will be unable to obtain the relief to which they are entitled.
4.14.
Most individual Members of the Class have little interest in or ability to
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Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
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Filed 03/25/14
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prosecute an individual action due to the complexity of the issues involved in this
litigation and the relatively small damages suffered by each Member of the Class.
4.15.
This action will allow an orderly and expeditious administration of
class claims. Economies of time, effort and expense will be fostered, and
uniformity of decisions will be ensured.
4.16.
This action should present no difficulty that would impede its
management by the Court as a class action and is the best available means by which
Ms. Barnhart and the Members of the Class can seek redress for the harms caused to
them by Fastax.
V.
CAUSES OF ACTION
COUNT I: STATE MINIMUM WAGE LAW VIOLATIONS
5.1
Ms. Barnhart incorporates all preceding paragraphs as though fully set
5.2
As an “employer” or as a “person employing labor” within the
forth herein.
meaning of the Minimum Wage Laws of Oregon, Fastax is obligated under the law to
pay wages to Ms. Barnhart and Class Members based upon the number of hours
they work and to take only those deductions and withholdings from wages that are
required or authorized by law.
5.3
Fastax willfully breached its legal obligations to Ms. Barnhart and Class
Members by engaging in the conduct more specifically described in the paragraphs
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Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
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above in not paying them as required by law and in taking deductions from their pay
not authorized by law.
5.4
Fastax has no justification for its past and continuing failure and refusal
to pay minimum wages and for its unlawful deductions from the pay of its employees.
5.5
Fastax's conduct constitutes willful violations of the minimum wage
laws of Oregon.
5.6
As a direct and proximate consequence of the foregoing, Ms. Barnhart
and the Members of the Class were damaged by receiving less pay than they were
entitled to receive under the Oregon minimum wage statutes and they are entitled
to recover damages, applicable civil penalties, interest, and attorney fees and costs.
COUNT II: FLSA VIOLATIONS
6.1
Ms. Barnhart incorporates all preceding paragraphs as though fully set
forth herein.
6.2
Ms. Barnhart also brings a collective action pursuant to 29 U.S.C.A. § 216
to recover damages for Fastax’s violations of federal minimum wage laws set forth in 29
U.S.C.A. § 206 and federal maximum hours laws set forth in 29 U.S.C.A. § 207 under
the Fair labor Standards Act (“FLSA”).
6.3
Ms. Barnhart’s state and federal claims involve a single wrong and
substantially the same facts. The claims, therefore, are not separate and independent.
Moreover, severing the state claims and requiring parallel proceedings in state and
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Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
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federal court would waste judicial and party resources. If the FLSA collective action
and the state law class action were severed from each other, numerous practical
difficulties would result. First, discovery in the two cases would be largely
duplicative and uncoordinated. Second, a ruling in one case could have a preclusive
effect in the other. Alternatively, the two courts could make conflicting rulings
regarding discovery, relevance, privilege, or other procedural or substantive matters.
Keeping these claims in a single forum will avoid needless litigation expenses and
promote judicial economy.
6.4
Ms. Barnhart and Class Members are “employees” within the broad
definition of that term under the FLSA. As evident from the facts recited above,
Fastax has a large degree of control which it exercises over its seasonal licensed tax
professionals. The employment of seasonal licensed tax professionals by Fastax takes
place predominately on the premises of Fastax. Fastax has the power to hire, fire or
modify the employment of its seasonal licensed tax professionals. Fastax controls the
daily activities of its seasonal licensed tax professionals and monitors their
performance. Fastax enters into written agreements for employment with its seasonal
licensed tax professionals.
6.5
Fastax has engaged and continues to engage in a centralized, widespread
pattern and practice of FLSA violations and intentional schemes designed to
undermine and avoid the minimum wage and overtime pay provisions of the FLSA
on a systemic, corporate-wide basis.
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Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
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There are numerous other similarly situated employees and former
6.6
employees of the Fastax who have been deprived of rights protected by the
FLSA. Ms. Barnhart’s claims against Fastax are typical of the claims of potential
class members, as all are victims of a company-wide policy of improper payment
practices and pay deductions.
6.7
Any employer who violates the provisions of section 206 or section 207
shall be liable to the employee or employees affected in the amount of their unpaid
minimum wages, or their unpaid overtime compensation, as the case may be, and in
an additional equal amount as liquidated damages. 29 U.S.C.A. § 216.
6.8
Ms. Barnhart’s work for Fastax constitutes engagement in commerce
or in production of goods for commerce, or employment in an enterprise so engaged.
6.9
Ms. Barnhart and Class Members each worked or work in excess of
40 hours in a work week in Fastax’s employ for which Fastax fails to pay such
overtime compensation due Ms. Barnhart.
6.10
Fastax failed and fails to pay Ms. Barnhart the statutory minimum
hourly wage of Oregon.
6.11
The amounts due for overtime compensation or minimum wages, or
both, are presently unknown by Ms. Barnhart, but such information is within
exclusive custody control of Fastax.
6.12
Ms. Barnhart hereby requests a determination and award of overtime
compensation or minimum wages, or both, liquidated damages, reasonable attorney’s
PAGE 18 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
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Page 19 of 25
Page ID#: 19
fees, and costs.
6.13
Ms. Barnhart attaches to this Complaint her written consent to become
Plaintiff in a collective action.
COUNT III: BREACH OF CONTRACT
7.1
Ms. Barnhart incorporates all preceding paragraphs as though fully set
7.2
Implicit in every contract is a term that it complies with the law.
forth herein.
Implicit in employment contracts between Fastax and Ms. Barnhart and the Class
Members is that the employees would be paid lawful wages and that only lawful
deductions would be taken from their paychecks.
7.3
Ms. Barnhart and Class members performed, tendered performances, or
were excused from performing their contractual obligations under their employment
contracts with Fastax.
7.4
Fastax breached its contracts with Ms. Barnhart and Class Members
as described above by not paying them as required by law and by taking deductions
from their pay or otherwise unlawfully charging them for training.
7.5
Fastax’s breach of its employment contracts with Ms. Barnhart and
Class Members caused injury to Ms. Barnhart and the Class Members.
COUNT IV: UNJUST ENRICHMENT
8.1
Ms. Barnhart incorporates all preceding paragraphs as though fully set
PAGE 19 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
Page 20 of 25
Page ID#: 20
forth at length herein.
8.2
By the acts alleged herein, Fastax has received benefits from Ms.
Barnhart and Class Members under circumstances that make it unjust for Fastax to
retain those benefits.
8.3
Specifically, Ms. Barnhart and Class Members worked for Fastax
without being paid an equivalent minimum hourly wage. Ms. Barnhart and Class
Members were required to attend mandatory training and orientation sessions without
pay and required to perform other employment without pay. Fastax took
unauthorized deductions from Ms. Barnhart’s and Class Members’ pay and/or
unlawfully charged them for course materials and tuition for on-the-job training classes.
8.4
At the same time, Fastax retained benefits resulting from its refusal to
pay lawful wages to Ms. Barnhart and Class Members and from its unlawful
deductions from their pay.
8.5
Therefore, Fastax is liable to pay wages due and owing to Ms.
Barnhart and members of the Class and to repay them the deductions unlawfully
taken from their pay and for the amount they were wrongly and unlawfully charged for
training materials and classes.
COUNT V: DEFAMATION
9.1
Ms. Barnhart incorporates all preceding paragraphs as though fully set
forth at length herein.
PAGE 20 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
9.2
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Fastax published false information about the creditworthiness of Ms.
Barnhart to Merchant’s Credit Bureau of Salem who, on information and belief,
republished the false information to merchants in the Salem, Oregon, community. On
information and belief, Fastax similarly published false information about the
creditworthiness of the Members of the Class.
9.3
Publication of the false information damaged the reputations of Ms.
Barnhart and Class Members and lowered their standing in the Salem, Oregon,
community and elsewhere.
9.4
The false statements published by Fastax are defamatory because they
tended to diminish the esteem, respect, goodwill or confidence in which Ms. Barnhart
and the Class Members are held or to excite adverse, derogatory or unpleasant feelings
or opinions against them.
9.5
Ms. Barnhart and Class Members suffered pecuniary losses as a result of
the publication of false information about their creditworthiness by Fastax.
COUNT VI: UNLAWFUL TRADE PRACTICES ACT VIOLATIONS
10.1
Ms. Barnhart incorporates all preceding paragraphs as though fully set
forth herein.
10.2
Fastax committed violations of the Oregon Unlawful Trade Practice Act
by employing unconscionable tactics in connection with selling, renting or disposing of
real estate, goods or services, or collecting or enforcing an obligation.
PAGE 21 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
10.3
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Specifically, but without limitation:
• Fastax sold educational services to Ms. Barnhart and Class Members
without a license, when a license was required;
• Fastax contracted for personal services of Ms. Barnhart and Class
Members by promising to pay for their training time to become licensed
tax preparers without any intention to do so;
• To collect “waived” tuition, Fastax used threats that it would cause the
licenses of Ms. Barnhart and Class Members to be revoked for
“untrustworthiness” under ORS 673.700 and ORS 673.705, when that
remedy does not exist for their failure to honor the Fastax Employment
Agreement;
• To collect “waived” tuition, Fastax used threats that it would seek to
collect attorney fees from Ms. Barnhart and Class Members when attorney
fees are not available in a suit to enforce an illegal contract.
10.4
As a result of these unconscionable tactics of Fastax, Ms. Barnhart and
Class Members suffered ascertainable losses.
COUNT VII: INJUNCTION
11.1 Ms. Barnhart incorporates all preceding paragraphs as though fully set
forth herein.
11.2 Fastax reported false debts to debt collection agencies and credit bureaus
PAGE 22 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
Document 1
Filed 03/25/14
Page 23 of 25
Page ID#: 23
naming Ms. Barnhart and Class Members as debtors.
11.3 Fastax’s false reports caused Ms. Barnhart and Class Members to receive
unwarranted collection notices and other debt collection attempts.
11.4 Fastax’s false reports irreparably harmed Ms. Barnhart and Class
Members because they have adversely impacted the credit ratings of Ms. Barnhart and
Class Members.
11.5 Unless, Fastax is enjoined to correct the false reports it filed with
collection agencies and credit bureaus and to cease and desist in filing false reports,
Ms. Barnhart and Class Members will continue to be harmed in ways that cannot be
compensated with monetary damages.
11.6 Ms. Barnhart and Class Members have no adequate remedy at law.
11.7 Accordingly, Ms. Barnhart asks the Court to issue preliminary and
permanent injunctions that require Fastax affirmatively to correct the false information
that it has disseminated about Ms. Barnhart and Class Members and to cease and desist
from dissemination false debt information about them in the future.
VI.
12.1
DEMAND FOR JURY
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Ms.
Barnhart demands trial by jury.
PAGE 23 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
VII.
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PRAYER FOR RELIEF
WHEREFORE, Ms. Barnhart prays for the following relief:
1.
For an Order declaring that this action may be maintained as class action
pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for an
Order certifying this case as a class action and appointing Ms. Barnhart
as representatives of the Class;
2.
For judgment against the Fastax for Ms. Barnhart’s damages suffered as
a result of the conduct alleged herein, to include liquidated damages,
statutory damages, multiple damages, interest and pre-judgment interest;
3.
For temporary restraining orders, preliminary injunctions and permanent
injunctions as prayed for above;
4.
For a judgment against the Fastax for Ms. Barnhart’s reasonable
attorneys' fees and costs;
5.
For a judgment against the Fastax for exemplary damages and for civil
penalties and interest as allowed by the minimum wage and overtime
laws of Oregon;
6.
For an order and judgment awarding to the named Plaintiff an
appropriate incentive award for bringing this suit; and
PAGE 24 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249
Case 6:14-cv-00482-MC
7.
Document 1
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Page 25 of 25
Page ID#: 25
Such other and further relief as the Court deems just and equitable.
DATED this 25th day of March, 2014.
Respectfully submitted,
REICH & BINSTOCK, LLP
s/ Debra Brewer Hayes
Debra Brewer Hayes, Of Counsel
Charles Clinton Hunter
REICH & BINSTOCK, LLP
4265 San Felipe, Suite 1000
Houston, TX 77027
(713) 622-7271 Tel.
(713) 623-8724 Fax
[email protected]
[email protected]
/s/ Carl Post
Carl Post, OSB No. 06105
LAW OFFICES OF DANIEL SNYDER
1000 S.W. Broadway, Suite 2400
Portland, OR 97205
Telephone : (503) 241-3617
Facsimile: (503) 241-2249
[email protected]
[email protected]
Attorneys for Plaintiff
PAGE 25 –COMPLAINT
Law Offices of Daniel Snyder
Attorneys At Law
1000 S.W. Broadway, Suite 2400
Portland, Oregon 97205
(503) 241-3617 Fax (503) 241-2249