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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS __________________________________________ SCOTT O’BRIEN, : on behalf of himself and all other similarly : situated individuals, : : Plaintiffs, : : v. : : : HERB CHAMBERS OF SOMERVILLE CORP : : HERB CHAMBERS OF BRAINTREE II, LLC, : : and : : THE HERB CHAMBERS COMPANIES : : : Defendants. : __________________________________________:

Docket No._____-CV-_______ CLASS ACTION

ORIGINAL CLASS ACTION AND COLLECTIVE ACTION COMPLAINT Plaintiff, Scott O’Brien, by and through his undersigned counsel, hereby files this case on behalf of himself and all other similarly situated individuals either currently or formerly employed by Defendants Herb Chambers Of Somerville Corp (hereafter referred to as “Herb Chambers Somerville”), Herb Chambers Of Braintree, II, LLC (hereafter referred to as “Herb Chambers Braintree”), and The Herb Chambers Companies (hereafter referred to as “Herb Chambers Companies”) at their auto dealership and auto repair facilities in Massachusetts. For their Class Action and Collective Action Complaint against Defendants, Plaintiffs allege, upon information and

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belief, except as to the allegations that pertain to the named Plaintiff and their counsel, which are based upon personal knowledge, as follows:

I.

INTRODUCTION

1.

This is a class action brought pursuant to Federal Rule of Civil Procedure 23 by

Plaintiff O’Brien on behalf of himself and all other similarly situated current and former auto service advisors who work for the Defendant Herb Chambers Companies’ chain of auto dealerships, service centers and collision centers in Massachusetts, including but not limited to Herb Chambers of Somerville Corp and Herb Chambers of Braintree II, LLC. See complete list of Herb Chambers Companies’ locations attached hereto as Exhibit “A”. 2.

The named Plaintiff also brings a collective action against Defendants under

federal law pursuant to the Fair Labor Standards Act (hereafter “FLSA”), 29 U.S.C. § 201, et seq., on behalf of himself and all other similarly situated current and former auto service advisors who work for the Defendant Herb Chambers Companies’ chain of auto dealerships and service centers in Massachusetts, including but not limited to Herb Chambers of Somerville Corp and Herb Chambers of Braintree II, LLC., for unpaid wages and unpaid overtime wages, liquidated damages, costs, attorneys’ fees, and declaratory and injunctive relief. 3.

At all times relevant to this Complaint, Plaintiffs have or had worked for the

Defendant Herb Chambers Companies’ chain of auto dealerships and service centers in Massachusetts, including, but not limited to, Herb Chambers of Somerville Corp and Herb Chambers of Braintree II, LLC.

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4.

During the class period in this case, Defendants have misclassified their auto

service advisors as “exempt” employees exempt from the overtime and minimum wage requirements of the FLSA. Defendants failed to pay Plaintiffs their overtime and/or minimum hourly rate of pay for all hours of work they performed as required by federal and state law. 5.

Moreover, at all times relevant to this case, Defendants failed to provide for a full

thirty (30) minute meal period in which Plaintiffs were fully relieved of all work duties. Despite requiring Plaintiffs to perform work duties during their daily meal breaks, Defendants did not compensate Plaintiffs for any time during their unpaid meal period. II.

JURISDICTION AND VENUE

6.

This Court has jurisdiction over Plaintiffs’ federal claims because they are

brought pursuant to the Fair Labor Standards Act, 29 U.S.C. 216 (b), and because they raise a federal question pursuant to 28 U.S.C. § 1331. This Court has jurisdiction over Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction provision). 7.

Venue is proper in this federal judicial district pursuant to 28 U.S.C. 1391(a) and

(c), because a substantial part of the events or omissions giving rise to these claims occurred within this judicial district, and because Defendants reside in this judicial district in that they regularly conduct business within this judicial district and thus are subject to personal jurisdiction within this judicial district. III.

PARTIES

8.

Plaintiff Scott O’Brien is a former employee at Defendants’ auto repair facility

located in Somerville, Massachusetts, and he was employed by Defendants during the

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relevant class period in this case. Plaintiff O’Brien resided in Massachusetts during his employment with Defendants but now resides in Pennsylvania. 9.

Plaintiffs bring this class action for their state law claims on behalf of themselves

and all other putative class members employed as auto service advisors at Defendants’ auto repair facilities located in Massachusetts (“Class members”). Moreover, the named Plaintiff asserts federal claims under the Fair Labor Standards Act as a collective action pursuant to 29 U.S.C. § 216(b), on behalf of himself and all other similarly situated current and former employees who work as auto service advisors at Defendants’ auto repair facilities located in Massachusetts. 10.

Defendant The Herb Chambers Companies is a group of corporations and limited

liability companies (a list of which is attached as Exhibit “A”) that operate numerous auto dealerships (approximately 50), auto repair facilities (approximately 48) and collision centers (3) in Massachusetts. Defendant The Herb Chambers Companies is engaged in interstate commerce and in the production of goods for commerce throughout the United States. Defendant The Herb Chambers Companies can be served with original service of process through its agent for service, CT Corporation System, 155 Federal Street, Suite 700, Boston, MA 02110. 11.

Defendant Herb Chambers of Somerville Corp is a Massachusetts corporation that

operates one or more auto repair facilities in Massachusetts, and has its principal place of business in Somerville, Massachusetts. Defendant Herb Chambers of Somerville Corp is a corporation engaged in interstate commerce and in the production of goods and services for commerce. Defendant Herb Chambers of Somerville Corp can be served with

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original service of process through its agent for service, CT Corporation System, 155 Federal Street, Suite 700, Boston, MA 02110. 12.

Defendant Herb Chambers of Braintree, II, LLC is a Massachusetts Limited

Liability Company that operates one or more auto repair facilities in Massachusetts, and has its principal place of business in Massachusetts. Defendant Herb Chambers of Braintree, II, LLC is a limited liability company engaged in interstate commerce and in the production of goods and services for commerce. Defendant Herb Chambers of Braintree, II, LLC can be served with original service of process through its agent for service, CT Corporation System, 101 Federal Street, Boston, MA 02110. IV. 13.

CLASS ACTION ALLEGATIONS The Named Plaintiff is an individual who was, within the applicable period of

limitations prior to the commencement of this action, employed by Defendants at their auto and truck repair facility in Somerville, Massachusetts. This matter is maintainable as a class action pursuant to Federal Rule of Civil Procedure 23(a), Rule 23(b)(1)(A) and (B), and Rule 23(b)(3), on behalf of a Class consisting of: all current and former auto service advisors employed by Defendants in Massachusetts from April, 2011 through the time of the entry of Judgment in this matter. 14.

Plaintiffs believe that there are at least 70 present and former auto service advisor

employees in the Class during the relevant Class period of April, 2011 to the present. 15.

Given the number of putative class members, the members of the Class are so

numerous that joinder of all members is impractical. 16.

The Named Plaintiff’s claims are typical of the claims of the Class members

because he was a misclassified auto service advisor, who, like the Class members,

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sustained damages arising out of Defendants’ unlawful compensation system as described in more detail herein. 17.

Plaintiff will fairly and adequately protect the interests of the Class members.

Plaintiff has retained counsel competent and experienced in complex class action and wage and hour litigation. 18.

Common questions of law and fact exist as to all Class members and predominate

over any questions solely affecting individual Class members. Among the questions of law and fact common to Plaintiffs and the Class are: a.

Whether the work performed by Plaintiff and the Class is included in the type of work Defendants employed Plaintiff and the Class to perform;

b.

Whether the work over 40 hours a week performed by Plaintiffs and the Class is compensable under federal law and/or state law;

c.

Whether Defendants have engaged in a pattern and/or practice of improperly classifying auto service advisors as “exempt” employees not eligible for overtime wages;

d.

Whether Defendants have failed to permit full meal and rest periods as required by state or federal law, other applicable regulations, and/or Defendants’ stated policies;

e.

Whether Defendants have failed to properly compensate Plaintiffs and the Class in connection with interruptions to their meal or rest periods;

f.

Whether Defendants have failed to keep true and accurate time records for all hours worked by its employees as required by federal and state law;

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g.

Whether Defendants failed to pay Plaintiffs and the Class for all of the work Defendants required them to perform;

h.

Whether Defendants violated federal and Massachusetts state laws, through its practices of not paying employees overtime for all time worked over 40 hours per week;

i.

The nature and extent of class-wide injury and the measure of damages for the injury.

19.

Class action treatment is superior to the alternatives for the fair and efficient

adjudication of the controversy alleged herein. Such treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the duplication of effort and expense that numerous individual actions would entail. No difficulties are likely to be encountered in the management of this class action that would preclude its maintenance as a class action, and no superior alternative exists for the fair and efficient adjudication of this controversy. The Class is readily identifiable from the Defendants’ own employment records. 20.

Prosecution of separate actions by individual members of the Class would create

the risk of inconsistent or varying adjudications with respect to individual members of the Class that would establish incompatible standards of conduct for Defendants. 21.

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

adjudication of this controversy since joinder of all members is impractical. Furthermore, the amounts at stake for many of the Class members, while substantial, are not great enough to enable them to maintain separate suits against Defendants.

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22.

Without a class action, Defendants will likely retain the benefit of their

wrongdoing and will continue an illegal course of action, which will result in further damages to Plaintiffs and the Class. Plaintiffs envision no difficulty in the management of this action as a class action. V.

COLLECTIVE ACTION ALLEGATIONS

23.

Defendant Herb Chambers Companies owns and operates approximately 48 auto

repair facilities and 3 collision centers in Massachusetts. The complained of unlawful compensation system at issue in this Complaint has affected Defendants’ present and former auto service advisor employees uniformly at these locations. At all times relevant to this Complaint, Defendants have utilized the same compensation system complained about herein. 24.

Defendants do not pay their auto service advisors on an hourly basis and do not

pay their auto service advisors overtime for hours worked over 40 hours per week despite the federal Department of Labor clarifying and reiterating on April 11, 2011 that auto service advisors were “non-exempt” and subject to the minimum wage and overtime provisions of the federal Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. 25.

Plaintiff O’Brien, through his attorneys, notified Defendants in writing that their

overtime payment policies and practices regarding auto service advisors were illegal. Despite receiving actual notice from Plaintiff O’Brien, Defendants did nothing to change these policies and practices and continued to refuse to pay its auto service providers any overtime wages for hours worked over 40 hours per week.

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26.

Plaintiff O’Brien also filed a Complaint with the Fair Labor Division of the

Massachusetts Attorney General’s Office and received a “private right of action letter” dated September 10, 2013. 27.

During their unpaid lunch and other unpaid breaks, Plaintiff and Class members

are required to continue to perform their auto service provider duties. These employees are not paid anything for performing these work activities. 28.

Plaintiff O’Brien and all Class members are similarly situated individuals who

worked at and/or continue to work at Defendants’ auto repair facilities in Massachusetts and who were and/or continue to be deprived of their lawful wages under federal and state law in the same manner. 29.

The facts and circumstances relating to Defendants’ compensation system

pertaining to auto service providers present common questions of law and fact pursuant to Fed.R.Civ.P. 23. 30.

Defendants’ failure to pay Plaintiff and Class members their lawful wages was

and is willful. Defendants knew or should have known that their conduct was unlawful and/or showed reckless disregard for the matter of whether its above-described conduct was prohibited by law. Accordingly, Plaintiffs seek the imposition of a three-year statute of limitations on their Fair Labor Standards Act claims. 31.

Despite its knowledge that Plaintiff and Class members, as described above,

should have been paid overtime for all hours worked over 40 hours per week under both state and federal law, Defendants have refused to fully compensate workers at their auto repair facilities for any overtime work performed.

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V.

CAUSES OF ACTION COUNT I VIOLATION OF THE MASSACHUSETTS WAGE ACT M.G.L. c. 149, §§ 148, et seq. All Plaintiffs v. All Defendants

32.

Plaintiffs re-allege and incorporate the preceding paragraphs as if fully set forth

herein. 33.

Upon information and belief, this statute has a three-year statute of limitations and

thus would include claims from April 2011 to the present time. Plaintiffs further allege that Defendants’ actions were willful, as a further basis for applying at least a three-year statute of limitations. 34.

Defendants are required to compensate employees in the manner prescribed by

The Massachusetts Wage Act, M.G.L. c. 149 §§ 148, et seq., which establishes, inter alia, that a minimum wage must be paid for all work performed. The uncompensated time includes, but is not limited to, hours worked over 40 hours per week as well as work activities performed during unpaid meal breaks. 35.

Defendants are required to compensate employees who perform work at least as

the minimum wage prescribed by The Massachusetts Wage Act, M.G.L. c. 149 §§ 148, et seq. 36.

As a result of Defendants’ unlawful acts, Plaintiffs and other auto service advisors

employed by Defendants have been deprived of compensation in amounts to be determined at trial, and are entitled to recovery of such amounts as treble damages, together with statutory penalties and interest, costs and attorneys’ fees.

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WHEREFORE, Plaintiff O’Brien and all others similarly situated pray for the following relief against Defendants: A. That this Court order an accounting of lost wages for Plaintiffs and permit this action to go forward as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure; B. That this Court declare that Defendants’ wage payment and overtime practices are unlawful; C. That this Court enjoin Defendants from continuing to commit unlawful practices related to wages; and D. That this Court award lost wages, treble damages, lost overtime wages, statutory penalties, interest, costs and attorney’s fees. COUNT II VIOLATION OF THE MASSACHUSETTS OVERTIME LAW M.G.L c. 151 §§ 1A, et seq. All Plaintiffs v. All Defendants 37.

Plaintiffs re-allege and incorporate the preceding paragraphs as if fully set forth

herein. 38.

As previously described, Defendants have failed to pay Plaintiffs their hourly rate

of pay for all hours of work they performed as required by federal law and Massachusetts state law. The uncompensated time includes, but is not limited to, overtime hours worked as well as work activities performed during unpaid meal breaks. 39.

Defendants’ failure to pay Plaintiffs for these activities violates the Massachusetts

Overtime Law, M.G.L. 151 §§ 1A, et seq. Pursuant to the Massachusetts Overtime Law,

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Defendants were and are obligated to pay employees at a rate equal to one and one-half times their normal hourly rate of pay for all time spent performing compensable work in excess of 40 hours per week. 40.

Upon information and belief, this statute has a three-year statute of limitations and

thus would include claims from April 2011 to the present time. Plaintiffs further allege that Defendants’ actions were willful, as a further basis for applying at least a three-year statute of limitations. 41.

As a result of Defendants repeated violations of the Massachusetts Overtime Law,

Plaintiffs and class members have not received overtime wages to which they were entitled under this law. Accordingly, Plaintiffs and others similarly situated are entitled to their unpaid wages, treble damages, penalties, interest, costs and attorneys’ fees. WHEREFORE, Plaintiff O’Brien and all others similarly situated pray for the following relief against Defendants: A. That this Court order an accounting of lost wages for Plaintiffs and permit this action to go forward as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure; B. That this Court enjoin Defendants from continuing to commit unlawful practices related to wages; and C. That this Court award lost wages, lost overtime wages, statutory penalties, interest, costs and attorney’s fees.

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COUNT III VIOLATION OF THE FAIR LABOR STANDARDS ACT 29 U.S.C. § 201 et seq. Plaintiff O’Brien v. Defendants 42.

Plaintiffs re-allege and incorporate the preceding paragraphs as if fully set forth

herein. 43.

Pursuant to the Fair Labor Standards Act, specifically 29 U.S.C. § 207,

Defendants were and are obligated to pay employees at a rate equal to one and one-half times their normal hourly rate of pay for all time spent performing compensable work in excess of 40 hours per week. 44.

Pursuant to the Fair Labor Standards Act, specifically 29 U.S.C. § 216(b),

Defendants, because they failed to pay employees the required amount of overtime at the statutory rate, must reimburse the employees not only for the unpaid overtime wages, but also for liquidated damages in an amount equal to the amount of unpaid overtime wages. 45.

Pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b), Plaintiffs are

entitled to reimbursement of the costs and attorneys’ fees expended if they are successful in prosecuting an action for unpaid overtime wages. WHEREFORE, Plaintiffs pray for the following relief against Defendants: A. That this Court order an accounting of lost wages for Plaintiffs; B. That this Court enjoin Defendants from continuing to commit unlawful practices related to wages; C. That this Court permit this action to go forward as a “collective action” pursuant to 29 U.S.C. § 216(b); and

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D. That this Court award lost overtime wages, liquidated damages, statutory penalties, interest, costs and attorney’s fees. COUNT IV BREACH OF CONTRACT UNDER MASSACHUSETTS STATE LAW All Plaintiffs v. All Defendants 46.

Plaintiffs re-allege and incorporate the preceding paragraphs as if fully set forth

herein. 47.

As previously described, Defendants have failed to pay Plaintiffs their hourly rate

of pay for all hours of work they performed as required by federal law and Massachusetts state law. The uncompensated time includes, but is not limited to, overtime hours worked as well as work activities performed during unpaid meal breaks. 48.

By employing Plaintiffs as auto service advisors, Defendants agreed to pay

Plaintiffs for all hours worked. Thus, an express or implied contract existed between Plaintiffs and Defendants. 49.

Plaintiffs performed their work duties as auto service advisors and performed all

work required of them by Defendants. 50.

Defendants breached its contract with Plaintiffs by refusing to pay them for all

hours worked in performance of their duties as auto service advisors. Plaintiffs and class members have suffered damages because they have not received all wages to which they were entitled under federal and state law. Accordingly, Plaintiffs class members are entitled to their unpaid wages, damages, interest, costs and attorneys’ fees. WHEREFORE, Plaintiff O’Brien and all others similarly situated pray for the following relief against Defendants:

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A. That this Court order an accounting of lost wages for Plaintiffs and permit this action to go forward as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure; B. That this Court enjoin Defendants from continuing to commit unlawful practices related to wages; and C. That this Court award lost wages, lost overtime wages, interest, costs and attorney’s fees.

Respectfully submitted, /s/ Matthew J. Fogelman ___________________________ MATTHEW J. FOGELMAN (BBO #653916) Fogelman & Fogelman LLC 100 Wells Avenue Newton, MA 02459 Phone: (617) 559-1530 Fax: (617) 505-1540 E-Mail: [email protected] BRIAN P. MCCAFFERTY PA Bar # 66257 Kenney & McCafferty PC 1787 Sentry Park West Building 18, Suite 410 Blue Bell, PA 19422 Phone: (215) 367-4333 Facsimile: (215) 367-4335 E-Mail: [email protected] Attorneys for Plaintiffs DATED: May 1, 2014

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