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Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 1 of 13 PAGEID #: 1 IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LOUIS VICIEDO, on behalf of himself and all
others similarly situated,
Plaintiff,
COLLECTIVE ACTION
COMPLAINT
-against-
DIGITEK COMPUTER PRODUCTS, INC.,
JURY TRIAL DEMANDED
Defendant.
Plaintiff Louis Viciedo ("Plaintiff"), individually and on behalf of all others similarly situated, upon personal knowledge as to himself, and upon information and belief as to other matters, alleges as follows: NATURE OF THE ACTION
This lawsuit seeks to recover overtime compensation for Plaintiff and his similarly situated co-workers, Account Managers and other salaried salespersons, who work or have worked at Digitek Computer Products, Inc. ("Defendant") nationwide. According to their website, Defendant is "an industry leading wholesale distributor of IT supplies." Defendant's corporate headquarters is located at 44258 Mercure Circle in Dulles, Virginia 20166. Defendant also maintains facilities in Nevada, Illinois, Texas, Pennsylvania, Ohio, California, and the Philippines. Plaintiff worked for Defendant as an Account Manager. Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 2 of 13 PAGEID #: 2 According to Defendant's website, "[e]ach of our customers receives a dedicated account manager to answer questions, locate products to suit their needs, and help them place orders online or via phone, fax or email." However, despite their non-exempt duties, Defendant denied Plaintiff and other Account Managers overtime wages at time and one half their regular hourly rate for hours worked in excess of 40 per workweek. Defendant maintains a policy and practice whereby they deny Account Managers, such as Plaintiff, overtime wages to which they are entitled under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and the Ohio Minimum Fair Wage Standards Act ("OMFWSA"), O.R.C. § 4111.01. Plaintiff brings this action on behalf of himself and similarly situated current and former Account Managers who elect to opt in pursuant to FLSA, 29 U.S.C. § 216(b) to remedy violations of the FLSA wage and hour provisions by Defendant. Plaintiff also brings this action, individually, to remedy Defendant's violations of OMFWSA, O.R.C. § 4111.03. JURISDICTION AND VENUE
This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1337, and jurisdiction over Plaintiff's state law claims pursuant to 13 U.S.C. § 1367. This Court also has jurisdiction over Plaintiff's claims under the FLSA pursuant to 29 U.S.C. § 216(b). This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202. 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 3 of 13 PAGEID #: 3 Venue is proper in the Southern District of Ohio pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claims occurred in this district. THE PARTIES
Plaintiff

Louis Viciedo
Plaintiff is an adult individual who is a resident of Columbus, Ohio. Plaintiff worked for Defendant as an Account Manager at Defendant's Sales Office located in Columbus, Ohio from October 2008 to October 29, 2015. At all times relevant, Plaintiff has been an "employee" of Defendant as that term is defined in the FLSA and the OMFWSA. Plaintiff has given written consent to join this action, a copy of which is attached to this Complaint as Exhibit A. Defendant
Digitek Computer Products, Inc.
Defendant Digitek Computer Products, Inc. ("Digitek") is a foreign for-profit corporation incorporated in the state of Virginia, doing business in the Southern District of Ohio. Digitek is the "employer" of Plaintiff and similarly situated Account Managers as that term is defined by the FLSA and the OMFWSA. "Digitek Computer Products" is the name that appears on paychecks Plaintiff received for work performed for Defendant. Defendant's corporate headquarters is located at 44258 Mercure Circle in Dulles, 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 4 of 13 PAGEID #: 4 Defendant also operates four (4) Distribution Centers, where they keep product to fill orders as they arise. Those four distribution centers are located at: a. 4031 Market Center Drive North, Las Vegas, NV 89030; b. 1131 West Bryn Mawr Ave., Itasca, IL 60143; c. 3901 West Miller Road, Garland, TX 75041; and d. 2404 Gettysburg Road, Suite A, Camp Hill, PA 17011. Finally, Defendant operates three (3) Sales Offices, where Account Managers solicit business and place orders for computer products: a. 8351 North High Street, Suite 205, Columbus, OH 43235; b. 1131 West Bryn Mawr Ave., Itasca, IL 60143; and c. 2421 West 205th Street, Suite D206B, Torrance, CA 90503. Upon information and belief, Defendant also maintains international offices in the Digitek applies the same employment policies, practices, and procedures to all Account Managers at all of its locations, including policies, practices, and procedures relating to payment of overtime wages. At all relevant times, Digitek has maintained control, oversight, and direction over Plaintiff and similarly situated employees, including, but not limited to, hiring, firing, disciplining, timekeeping, payroll, and other practices. At all relevant times, Digitek has been and continues to be an enterprise engaged in "the production of goods for commerce" within the meaning of the phrase as used by the Digitek's gross revenue exceeds $500,000 per year. 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 5 of 13 PAGEID #: 5 COLLECTIVE ACTION ALLEGATIONS
Plaintiff brings the First Cause of Action, an FLSA claim, on behalf of himself and all similarly situated persons who have worked as exempt salespeople for Defendant nationwide, who elect to opt-in to this action (the "FLSA Collective"). At all relevant times, Plaintiff and the FLSA Collective have been similarly situated, have had substantially similar job duties, requirements, and pay provisions, and have been subject to Defendant's decision, policy, plan, practices, procedures, protocols, and rules of willfully refusing to pay Plaintiff and the FLSA Collective overtime wages for hours worked in excess of 40 hours per workweek. Plaintiff's claims are essentially the same as those of the FLSA Collective. All of the work Plaintiff and the FLSA Collective have performed has been assigned by Defendant, and/or Defendant has been aware of all of the work that Plaintiff and the FLSA Collective have performed. As part of its regular business practice, Defendant has intentionally, willfully, and repeatedly engaged in a pattern, practice, and/or policy of violating the FLSA with respect to Plaintiff and the FLSA Collective. This policy and pattern or practice includes, but is not limited a. Willfully failing to pay its employees, including Plaintiff and the FLSA Collective, premium overtime wages for hours they worked in excess of 40 hours per workweek; and b. Willfully misclassifying Plaintiff and members of the FLSA Collective as exempt from the protections of the FLSA. Defendant's unlawful conduct is pursuant to a corporate policy or practice of minimizing labor costs by failing to properly pay Plaintiff and the FLSA Collective. 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 6 of 13 PAGEID #: 6 Defendant is aware or should have been aware that federal law required them to pay non-exempt employees an overtime premium for hours worked over 40 per workweek. Defendant's unlawful conduct has been widespread, repeated, and consistent. Defendant's Employee Handbook states that persons working in "sales positions" are classified as exempt from overtime compensation. Defendant's Employee Handbook acknowledges that persons in "sales positions" work hours that are "often irregular and begin and end outside the normal work day." The First Count is properly brought under and maintained as an opt-in collective action under 29 U.S.C. § 216(b). There are many similarly situated current and former front Account Managers and/or salaried salespeople who have been underpaid in violation of the FLSA who would benefit from the issuance of a court-supervised notice of this lawsuit and the opportunity to join it. This notice should be sent to the FLSA Collective pursuant to 29 U.S.C. § 216(b). The FLSA Collective members are readily identifiable and ascertainable. For the purpose of notice and other purposes related to this action, the FLSA Collective members' names and addresses are readily available from Defendant's records. In recognition of the services Plaintiff has rendered and will continue to render to the FLSA Collective, Plaintiff will request payment of a service award upon resolution of this PLAINTIFF'S FACTUAL ALLEGATIONS
Plaintiff Louis Viciedo worked as an Account Manager for Defendant from October 2008 to October 29, 2015. 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 7 of 13 PAGEID #: 7 Plaintiff's job duties included prospecting his sales accounts, soliciting sales from established customers and potential new customers, providing quotes to customers, placing order for customers, reviewing online orders, and providing support after orders were placed. Plaintiff was required to sell Defendant's items according to guidelines provided by the company. He was not free to alter the price or offer below a pre-determined threshold without consulting with his supervisors. According to Defendant, Plaintiff and other Account Managers' job duties are to ensure that "[e]ach of our customers receives a dedicated account manager to answer questions, locate products to suit their needs, and help them place orders online or via phone, fax or email." Despite Plaintiff's non-exempt duties, during the relevant time period, Defendant compensated Plaintiff as a salaried employee, exempt from the overtime requirements of the From the beginning of Plaintiff's employment until some point in 2012, Plaintiff was paid strictly commissions, at a rate of approximately 20% of monthly gross profit. Being paid only commissions, Plaintiff earned approximately $150,000 per year in 2010, his highest earning year during his employment with Digitek. Throughout the time period relevant to this lawsuit, Defendant has compensated Plaintiff and other Account Managers on a salary plus commission basis. Throughout the relevant time period, Plaintiff's commission percentages have been reduced significantly, ranging from 0.15% to 1.25% of the sale. From the beginning of the statutory period until October 5, 2015, Plaintiff was paid a salary of $80,000 per year, plus commissions, for all hours worked. 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 8 of 13 PAGEID #: 8 From October 5, 2015 to October 29, 2015, Plaintiff was paid a salary of $65,000 per year, plus commissions, for all hours worked. Throughout the relevant time period, Plaintiff's earnings in the form of commissions were significantly less than the earnings he received in the form of his salary. Plaintiff's job duties did not include: a. Hiring; b. Firing; c. Scheduling; and/or d. Disciplining other employees. Plaintiff's primary duties were not directly related to Defendant's or Defendant's customers management or general business operations and did not include the exercise of discretion and independent judgment regarding matters of significance. In that regard, Plaintiff: a. was not involved in planning Defendant's long or short term business b. could not formulate, affect, implement or interpret Defendant's management policies or operating practices; c. did not carry out major assignments that affected Defendant's business d. did not have authority to commit Defendant in matters that have significant financial impact; and e. could not waive or deviate from Defendant's established policies or procedures without prior approval. Plaintiff did not regularly or customarily perform any of the exempt duties or responsibilities of an executive, administrative, or professional employee. Plaintiff is not employed by a "retail or service establishment." Defendant is an "industry leading wholesale distributor." 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 9 of 13 PAGEID #: 9 Plaintiff did not earn more than half of his total earnings in the form of Plaintiff was not customarily and regularly engaged in his job duties away from the employer's place or places of business. Plaintiff worked between 45 and 50 hours per workweek for Defendant, except during weeks when he took time off for vacation or illness. The nature of Defendant's business required that Plaintiff work at whatever time is convenient to Defendant's customers. Plaintiff was to respond to customer questions and requests as soon as possible after it was made. As a result, Plaintiff regularly performed work in the evenings to service accounts. Specifically, Plaintiff worked Monday through Friday for 9-10 hours per day, from 8:00 am to 5:00 or 5:30 pm (including a one hour lunch), then for an additional 1-2 hours in the evening from home. At the direction of Defendant, Plaintiff tracked his own work hours and submitted them to Defendant for recordkeeping. Despite working and reporting more than 40 hours per week, Plaintiff was never paid time and one half his regular hourly rate for hours worked in excess of 40 hours per week. Plaintiff was entitled to time and one half his regularly hourly pay rate for each hour worked in excess of 40 per workweek. Plaintiff's hourly pay rate is determined by combining his salary and commissions earned in a given workweek, and dividing by 40 hours. Plaintiff was laid off on October 29, 2015. 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 10 of 13 PAGEID #: 10 FIRST CAUSE OF ACTION
Failure to pay Overtime in Violation of the FLSA
(On behalf of Plaintiff and the FLSA Collective)
Plaintiff realleges and incorporates by reference all allegations in all preceding Defendant has engaged in a widespread pattern and practice of violating the FLSA, as described in this Collective Action Complaint. Plaintiff has consented, in writing, to be a party to this action, pursuant to 29 U.S.C. § 216(b). At all relevant times, Plaintiff and other similarly situated current and former employees were engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a). The overtime wage provisions set forth in §§ 201 et seq. of the FLSA apply to Defendant is an employer engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a). At all relevant times, Plaintiff and the FLSA Collective were employees within the meaning of 29 U.S.C. §§ 203(e) and 207(a). Defendant has failed to pay Plaintiff and the FLSA Collective the overtime wages to which they are entitled under the FLSA. Specifically, Defendant has failed to pay Plaintiff and the FLSA Collective at a rate of one and one-half times their regular hourly rate for all hours worked in excess of forty in one workweek. 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 11 of 13 PAGEID #: 11 Defendant's violations of the FLSA, as described in this Collective Action Complaint, have been willful and intentional. Defendant has not made a good faith effort to comply with the FLSA with respect to its' compensation of Plaintiff and the FLSA Collective. Because Defendant's violations of the FLSA have been willful, a three year statute of limitations applies, pursuant to 29 U.S.C. § 255. As a result of Defendant's willful violations of the FLSA, Plaintiff and the FLSA Collective have suffered damages by being denied overtime wages as required by 29 U.S.C. §§ 201 et seq., and are therefore entitled to overtime wages, liquidated damages, reasonable attorneys' fees and costs of this action. SECOND CAUSE OF ACTION
Failure to Pay Overtime in Violation of the OMFWSA
(On behalf of Plaintiff)
Plaintiff realleges and incorporates by reference all allegations in all preceding The OMFWSA requires that covered employees receive overtime compensation "not less than one and one-half times" the employee's regularly hourly rate of pay for all hours worked over forty in one workweek. At all relevant times, Plaintiff was a covered employee entitled to the protections of the OMFWSA's provisions. At all relevant times, Defendant was a covered employer within the meaning of Defendant violated the OMFWSA by failing to pay Plaintiff at a rate of one and one-half times his regular hourly rate for all hours worked in excess of forty per workweek. 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 12 of 13 PAGEID #: 12 Plaintiff was not exempt from receiving the OMFWSA's overtime benefits because, inter alia, he was not an "executive," "administrative," "outside sales," or "retail sales" employee, as those terms are defined under the FLSA. See O.R.C. § 4111.03(A); 29 C.F.R. §§ 541, et seq. As a result of Defendant's violations of the OMFWSA, Plaintiff is entitled to recover from Defendant for unpaid overtime wages, damages and/or interest for unreasonably delayed payment of wages, liquidated damages, reasonable attorneys' fees and costs and disbursements of the action, pursuant to the OMFWSA. PRAYER FOR RELIEF
WHEREFORE, Plaintiff, individually and on behalf of all other similarly situated persons, respectfully requests that this Court grant the following relief: That, at the earliest possible time, Plaintiff be allowed to give notice of this collective action, or that the Court issue such notice, to all Account Managers and similarly situated employees who are presently, or have at any time during the preceding three years immediately preceding the filing of this suit, up through and including the date of this Court's issuance of court-supervised notice, worked at Digitek in any of their offices nationwide. Such notice shall inform them that this civil action has been filed, of the nature of the action, and of their right to join this lawsuit if they believe they were denied proper wages; Unpaid overtime pay and an additional and equal amount as liquidated damages pursuant to the FLSA and the supporting U.S. Department of Labor regulations; Liquidated damages pursuant to the OMFWSA; 4832-4296-5035, v. 1 Case: 2:15-cv-03073-JLG-NMK Doc #: 1 Filed: 12/10/15 Page: 13 of 13 PAGEID #: 13 An injunction prohibiting Defendant from engaging in future violations of the FLSA and/or the OMFWSA; Prejudgment and post-judgment interest; Reasonable attorneys' fees and costs and disbursements of the action; and Such other relief as this Court shall deem just and proper. Dated: Columbus, Ohio December 10, 2015 Respectfully submitted, /s/ Robert J. Beggs Robert J. Beggs, Esq. (0002966) Beggs Law Offices Co., LPA
1675 Old Henderson Road Columbus, Ohio 43220 614-457-7800 Office 614-448-9408 Facsimile Andrew Kimble, Esq. (0093172)
Kimble Law, LLC
1675 Old Henderson Road
Columbus, Ohio 43220 614-983-0361 Direct Dial 614-448-9408 Facsimile Counsel for Plaintiff and putative FLSA Collective JURY DEMAND
Plaintiffs hereby demand a jury trial by the maximum persons permitted by law on all issues herein triable to a jury. /s/ Robert J. Beggs ROBERT J. BEGGS, ESQ. (0002966) 4832-4296-5035, v. 1

Source: https://kimblelawoffice.files.wordpress.com/2016/06/filed-complaint.pdf