UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY ) CRAIG WILLIAMS, JOHN WILLIAMS ) AND FRED BERRY on behalf of ) themselves and all others similarly situated, ) ) Plaintiffs, ) Case No. ) v. ) ) KING BEE DELIVERY, LLC AND ) BEE LINE COURIER SERVICE, INC., ) ) Defendants. ) ) COLLECTIVE ACTION COMPLAINT I. INTRODUCTION 1. This is a class and collective action brought by Craig Williams, John Williams, and Fred Berry on behalf of current and former delivery drivers of Defendants King Bee Delivery, LLC and Bee Line Courier Service, Inc. 2. Defendants unlawfully misclassify their delivery drivers as independent contractors instead of as employees. In doing so, Defendants have violated the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 207 and K.R.S. 337.285 by failing to pay overtime. Additionally, Defendants have violated K.R.S. 337.060 by making deductions from their drivers pay for administrative fees and equipment Defendants require the delivery drivers to use. 3. Accordingly, the above-named Plaintiffs bring this action on behalf of themselves and on behalf of a class of similarly situated persons ( the Class members ) who have worked as

delivery drivers for King Bee and Bee Line in Kentucky, and neighboring states, for statutory and common law violations that stem from this misclassification. II. JURISDICTION AND VENUE 4. The jurisdiction of this Court is invoked pursuant to federal question jurisdiction under 28 U.S.C. 1332, in that this case arises under a federal law of the United States. 5. This Court has supplemental jurisdiction over Plaintiffs Kentucky state law claims pursuant to 28 U.S.C. 1367 because these claims are so related to Plaintiffs claims under the FLSA that they form part of the same controversy. 6. Venue in the Eastern District of Kentucky is proper pursuant to 28 U.S.C. 1391(b) because a substantial part of the unlawful conduct described herein occurred within Lexington, Kentucky. II. THE PARTIES 7. Plaintiff Craig Williams is an adult resident of Lexington, Kentucky. From approximately 2009 to December 2, 2014, Plaintiff Williams worked for Defendants in the State of Kentucky as a delivery driver out of their facility in Lexington, Kentucky. 8. Plaintiff John Williams is an adult resident of Lexington, Kentucky. Since approximately April 2013, Plaintiff Williams has worked for Defendants in the State of Kentucky as a delivery driver out of their facility in Lexington, Kentucky. 9. Fred Berry is an adult resident of Lexington, Kentucky. From approximately June 2014 to June 2015, Plaintiff Berry worked as a delivery driver out of the Defendants facility in Lexington, Kentucky. 10. The above-named plaintiffs bring this action on behalf of a class of similarlysituated individuals, namely, all other persons who have worked for Defendants as delivery 2

drivers in Kentucky, and who have either been classified as independent contractors or have not been paid or otherwise properly accorded treatment as employees. 11. Defendant King Bee Delivery, LLC ( King Bee ) is a Kentucky corporation, with its headquarters located in Louisville, Kentucky. Process may be served on its registered agent, FBT, LLC located at 400 West Market Street, 32 nd Floor, Louisville, KY 40232. King Bee makes deliveries out several warehouses, including a warehouse in Lexington, Kentucky. 12. Bee Line Courier Service, Inc. ( Bee Line ) is a Kentucky corporation which has its principal place of business located at 5613 Fern Valley Road, Louisville, Kentucky 40228. Process may be served on its registered agent, FBT, LLC located at 400 West Market Street, 32 nd Floor, Louisville, KY 40232. On information and belief, Bee Line owns or controls King Bee s operation in Kentucky and the neighboring states. III. STATEMENT OF FACTS 13. Defendants are in the business of providing delivery services for a wide range of businesses. Among these, Defendants deliver pharmaceuticals to stores and hospitals in Kentucky, Ohio, and Indiana. In order to carry out this central function, Defendants purports to contract with individuals such as the named Plaintiffs, to load and drive delivery trucks and to deliver retail merchandise to customers businesses. 14. Plaintiffs and the Class members have performed delivery services for Defendants. In order to receive such work, Defendants required Plaintiffs to sign an agreement which stated that Plaintiffs were independent contractors. 15. Although Defendants have classified Plaintiffs and the Class members as independent contractors, the behavioral and financial control manifested over the drivers by 3

Defendants demonstrates that they are Defendants employees. Such control includes, but is not limited to the following matters: a. Plaintiffs and the Class members, were and have been required to report to a facility maintained by the Defendants in Lexington, Kentucky by 4:30 a.m., five days a week, to unload and sort the shipment of pharmaceuticals and other merchandise sent to the Lexington hub by Defendants. b. Plaintiffs and the Class members are and have been provided with delivery manifests that were developed by Defendants and which instructed Plaintiffs and the Class members as to whom deliveries must be made to, the locations of those deliveries, and when those deliveries had to be made by including time windows for deliveries. c. Defendants require and have required Plaintiffs and the Class members to make deliveries by a time specified by the Defendants. d. Plaintiffs and the Class members are and have been required to wear uniforms when making deliveries for Defendants. e. Defendants monitor the loading of the Plaintiffs and the Class members vehicles each morning. f. Plaintiffs and the Class members are and have been required to carry GPS scanners to log their deliveries throughout the day. Defendants keep and have kept track of Plaintiffs and the Class members progress throughout the day and contact and have contacted Plaintiffs and the class members during the day if they were falling behind schedule. 4

16. Pursuant to Defendants treatment of Plaintiffs and the Class members as independent contractors, Defendants have deducted and continue to deduct certain expenses directly from the compensation it pays, including deductions for administrative costs, uniforms, GPS scanners, and customer loss and damage claims, and compel Plaintiffs and the Class members to incur certain expenses which would normally be borne by an employer, such as for fuel costs, vehicle insurance costs, worker s compensation costs, vehicle maintenance costs, costs for equipment, such as dollies. 17. Whenever Defendants determine, in their sole discretion, that a delivery has been made in a manner it deems to be unsatisfactory (e.g., damaged goods, damage to customer property), Defendants retain the right to deduct the costs of such damage from the pay checks of its drivers. 18. Defendants retain the exclusive right to change delivery charges and prices at any time. 19. Defendants retain the right to terminate the Plaintiffs and the Class members without cause at any time. 20. Plaintiffs and the Class members are and have been required to arrive for work at 4:30 a.m. to sort through and unload shipments of pharmaceuticals or other products and load it into the delivery vans for the day s deliveries. 21. Plaintiffs and the Class members work and/or have worked consistently from approximately 4:30 a.m. to 1:00 p.m., five days a week, making deliveries and making returns to the Defendants warehouse. 22. In addition to making deliveries, starting approximately in August 2013, Plaintiff Craig Williams had the added responsibility of keeping track of the daily progress of the other 5

delivery drivers, compiling a damaged goods report, responding to calls from the Defendants headquarters in Louisville, respond to customer complaints, and otherwise help other delivery drivers complete their deliveries. 23. Given these added responsibilities, Plaintiff Craig Williams generally worked from 4:30 a.m. to 7:00 p.m. five days a week. 24. Plaintiffs and Class members are and have been paid a fixed amount per delivery route assigned regardless of how many hours they work. As a result of Defendants practices, Plaintiffs have not and do not currently receive overtime pay when they work more than 40 hours per week. IV. FACTS RELATED TO FIRING OF PLAINTIFF CRAIG WILLIAMS 25. In mid-november 2014, Plaintiff Craig Williams spoke to Rusty Quill, an operations manager for the Defendants in Lexington, Kentucky and complained about Defendants practice of classifying him and the other drivers as independent contractors as well as the deductions made from their pay made by Defendants and Defendants failure to pay overtime compensation. 26. Williams showed Quill a pamphlet from Kentucky Jobs for Justice outlining the rights of workers in Kentucky. Quill took the pamphlet and mailed it to Defendants headquarters in Louisville, Kentucky. 27. Approximately two weeks later, on December 2, 2014, Williams spoke with Quill and another operations manager for Defendants, Jay Baumert, by telephone. Williams complained to Baumert about being misclassified as an independent contractor. Williams told Baumert that Defendants would have to follow the wage laws and treat him like an employee, or that Williams would contact a government agency to complain about the Defendants practices. 6

28. Approximately 10 minutes later, Williams received a phone call from Norman Louis Seger, the owner of King Bee and Bee Line. Seger told Williams that he was terminated for his complaints. CLASS AND COLLECTIVE ACTION ALLEGATIONS 29. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 28 supra. 30. The named Plaintiffs bring this action individually and on behalf of a class of individuals similarly situated. The class of individuals similarly situated encompasses all individuals who, like the Plaintiffs, have performed or currently perform delivery services for the Defendants as delivery drivers within the State of Kentucky. The Class meets all the prerequisites of Fed. R. Civ. P. 23. At least 40 drivers have performed delivery services for the Defendants in Kentucky during the applicable statutory period. The Plaintiffs and the Class members claims related to their misclassification are not only typical of the claims of putative class members, they are identical. Common issues, such as whether the Defendants policy of classifying drivers as independent contractors rather than employees, predominate over any individualized issues. Plaintiffs and their counsel, who have been class counsel in many similar cases, will adequately represent the putative class, and a class action is the superior method of trying these claims. 31. The Defendants have acted on grounds relating to all of their delivery drivers. Thus, common questions of law or fact predominate over any individual issues and therefore a class action is superior to individual adjudications. Furthermore, class adjudication is superior because separate actions would create a risk of inconsistent adjudication regarding the legality of the Defendants treatment of all of its delivery drivers. 7

32. The named Plaintiffs also meet the requirements for a collective action under the Fair Labor Standards Act, 29 U.S.C. 216(b), and will request the court to grant conditional certification and to order notices to potential opt-in individuals who have performed deliveries for the Defendants and who were classified as independent contractors. 33. Potential opt-in members of the collective action are similarly situated to the Plaintiffs. They all hold or have held the same job position and have or have had substantially similar job requirements and pay provisions. They are or have been subject to the same common practices, policies, and plans of the Defendants, including the Defendants misclassification of their drivers as independent contractors and failure to pay any overtime compensation. COUNT I Kentucky Wage Payment Law(Unlawful Deductions) 34. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 33 supra. 35. At all times relevant to this action, Plaintiffs and the Class members were employees of Defendants within the meaning of KRS 337.010 (1)(e). 36. At all times relevant to this action, Defendants were Plaintiffs and the Class members employers within the meaning of KRS 337.010(1)(d). 37. The actions of Defendants as set forth above violate the Kentucky Wage Payment Law, K.R.S. 337.060, by making unlawful deductions from Plaintiffs and the Class members pay. 38. Defendants have characterized Plaintiffs and the class members as independent contractors although the nature and the character of their job duties and Defendants control over the conditions of their employment qualify them as joint employees of Defendants as these terms are defined by KRS 337.010 and 803 KAR 1:005. 8

39. Plaintiffs seek reimbursement for all deductions taken by Defendants from their pay. COUNT II Fair Labor Standards Act 40. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 39 supra. 41. The actions of Defendants as set forth above are in violation of the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 207, for their failure to pay Plaintiffs and the Class members at the overtime rate for all hours worked in excess of 40 per workweek. 42. Defendant King Bee is an employer for the purposes of the FLSA, 29 U.S.C. 203(s), because it has annual gross sales or business of at least $500,000 and has employees engaged in interstate commerce. 43. Defendant Bee Line is an employer for the purposes of the FLSA, 29 U.S.C. 203(s), because it has annual gross sales or business of at least $500,000 and has employees engaged in interstate commerce. 44. Plaintiffs assert that Defendants suffer or permit Plaintiffs and the Class members to work for them as delivery drivers and that under the economic realities test, those drivers are and have been misclassified by the Defendants as independent contractors. 45. Plaintiffs and the Class members regularly work or worked well more than 40 hours per workweek. 46. The Defendants do not pay and have not paid the Plaintiffs and the Class members the overtime rate for all hours worked over 40 per workweek. 47. Defendants, therefore, engaged and continue to engage in willful violations of the FLSA, since Defendants conduct demonstrates that either they know and have known that their 9

conduct violated the FLSA or showed reckless disregard for whether its actions complied with the FLSA. COUNT III Kentucky Wage Payment Law (Overtime Violation) 48. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 47 supra. 49. At all times relevant to this action, Plaintiffs and the Class members were employees of Defendants within the meaning of KRS 337.010 (1)(e). 50. At all times relevant to this action, Defendants were Plaintiffs and the Class members employers within the meaning of KRS 337.010(1)(d). 51. KRS 337.285 requires all employers to compensate their employees, with certain exceptions, at a rate of not less than one and one-half (1 ½) the hourly rate which they are regularly paid for all hours worked in excess of forty (40) hours in a work week. 52. Plaintiffs and the Class members are not contained in any of the groups of employees excluded from the provisions of KRS 337.285. 53. Defendants jointly failed and continue to fail to pay Plaintiffs and the Class members or all hours Plaintiffs and the Class members worked in excess of forty (40) hours in one work week. at a rate of not less than one and one-half (1 ½) the hourly wage at which they were regularly 54. Defendants jointly violated KRS 337.285 by not properly compensating Plaintiffs and the Class members for all hours worked in excess of forty (40) hours in one work. 55. As a result of Defendants joint violations of KRS 337.285, Plaintiffs are entitled to recover unpaid overtime wages dating five (5) years back, KRS 413.120 (2), plus an additional 10

equal amount in liquidated damages, reasonable attorneys fees, and costs of this action, pursuant to KRS 337.385. COUNT IV FLSA Retaliation Claim (On behalf of Craig Williams) 56. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 55 supra. 57. At all times relevant to this action, Plaintiff Craig Williams was an employee of Defendants within the meaning of 29 U.S.C. 203(e)(1). 58. At all times relevant to this action, Defendants jointly employed Plaintiff Craig Williams within the meaning of 29 U.S.C. 203(g). 59. Defendants jointly and unlawfully discriminated against Plaintiff Craig Williams pursuant to 29 U.S.C. 215(a)(3) when they terminated his employment on or around December 2, 2014 after he complained to them about their misclassification of him as an independent contractor and their violation of the FLSA and advised them that he would file a complaint with a government agency in response to Defendants practices. employment. 60. Defendants jointly, knowingly, and willfully violated the FLSA by terminating his COUNT V Discrimination for Engaging in Activity Protected by KRS 337 (On Behalf of Craig Williams) 61. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 60. 62. At all times relevant to this action, Plaintiff Craig Williams was an employee of Defendants within the meaning of KRS 337.010 (1)(e). 11

63. At all times relevant to this action, Defendants jointly employed Plaintiff Craig William s within the meaning of KRS 337.010 (1)(d). 64. Defendants jointly and unlawfully discriminated against Plaintiff Craig Williams pursuant to KRS 337.990(9) when they terminated him after he complained to Defendants about their misclassification of him as an independent contractor and consequential non-payment of overtime. 65. Defendants jointly, knowingly and willfully violated KRS 337 by terminating Plaintiff s employment. 66. Defendants termination of Plaintiff Craig Williams employment resulted in both pecuniary and legal injury to Plaintiff. COUNT VI Wrongful Discharge in Violation of Public Policy (Plaintiff Craig Williams) 67. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 66. 68. At all times relevant to this action, Plaintiff Craig Williams was an employee of Defendants within the meaning of KRS 337.010 (1)(e). 69. At all times relevant to this action, Defendants jointly employed Plaintiff Craig William s within the meaning of KRS 337.010 (1)(d). 70. During November of 2014, Plaintiff Craig Williams complained to Defendants about various employment practices of Defendants, including the unlawful classification of him as an independent contractor, deductions taken by Defendants from him and the other Class members paychecks, and their failure to properly compensate him and the other Class members for work performed in excess of forty (40) hours a week. 12

71. Defendants practice of deducting employment related costs, including administrative costs, uniforms, GPS scanners, and customer loss and damage claims, from the wages of Plaintiffs and the Class members, violated KRS 337.060. 72. Defendant s failure to compensate Plaintiffs and the Class Members at a rate of not less than one and a half ( 1 ½) times their regular rate violated both KRS 337.285 and 29 U.S.C. 207. 73. Defendants termination of Plaintiff Craig Williams was contrary to the fundamental and well-defined public policy as evidenced by the FLSA and KRS 337. 74. As a result of Defendants actions, Plaintiff Craig Williams is entitled to relief pursuant to KRS 446.070 in the form of additional damages, notwithstanding any separate or individual penalty otherwise imposed. JURY DEMAND Plaintiffs request a trial by jury on all of their claims. PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray that this Court enter the following relief: 1. Permission for Plaintiffs to notify fellow workers of their right to opt-in to this action to pursue a claim under the FLSA, pursuant to 29 U.S.C. 216(b); 2. Permission to pursue their Kentucky claims as a class action pursuant to Fed. R. Civ. P. 23; 3. Restitution for all deductions taken from the Plaintiffs and the Class pay; 4. Award back pay equal to the amount of all unpaid overtime for five (5) years preceding the filing of this complaint to the present, plus an additional equal amount in 13

liquidated damages, according to the applicable statute of limitations (KRS 413.120(2)) for violations of KRS 337.385; 5. Award liquidated damages equal to the amount of unlawful deductions and unpaid back wages, pursuant to federal and state law; 6, Award consequential and punitive damages for the Defendants unlawful termination of Craig Williams in violation of 29 U.S.C. 215(a)(3) and KRS 337.990(9); 7. Award attorney s fees and costs pursuant to 29 U.S.C. 216(b) and KRS 337.385; 8. For an order pursuant to KRS 337.990 assessing a civil penalty of up to $1,000 but not less than $100 for each of Defendants unlawful deductions from Plaintiffs and the Class members wages; 9. For an order pursuant to KRS 337.990 assessing a civil penalty of up to $1,000 but not less than $100 for each of Defendants failure to pay Plaintiffs and the Class members their overtime wages at the rate of one and one half (1 ½) their regular rate of pay; and 10. Any other relief to which the Plaintiffs and the Class members may be entitled. DATED: October 14, 2015 Respectfully Submitted, CRAIG WILLIAMS, JOHN WILLIAMS, and FRED BERRY, et al., individually and on behalf of all others similarly situated, By their attorneys, /s/ Trent R. Taylor Trent Taylor (Kentucky Bar No. 94828) Barkan, Meizlish, LLP 250 E. Broad St.,10th floor Columbus Ohio 43215 14

Harold L. Lichten (pro hac vice forthcoming) Benjamin J. Weber (pro hac vice forthcoming) 729 Boylston Street, Suite 2000 Boston, MA 02116 (617) 994 5800 hlichten@llrlaw.com bweber@llrlaw.com 15