Case 1:17-cv-00470-CL Document 1 Filed 03/23/17 Page 1 of 8 Beth Creighton, OSB #972440 E-mail: 65 S.W. Yamhill Street, Suite 300 Portland, Oregon 97204 Phone: (503 221-1792 - Fax: (503 223-1516 Harold Lichten, MA Bar #549689 (pro hac vice anticipated hlichten@llrlaw.com Olena Savytska, MA Bar #693324 (pro hac vice anticipated osavytska@llrlaw.com LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Phone: (617 994-5800 - Fax: (617 994-5801 David M. Blanchard, MI P#67190 (pro hac vice anticipated blanchard@bwlawonline.com Daniel Tai, MI P#76798 (pro hac vice anticipated tai@bwlawonline.com BLANCHARD & WALKER, PLLC 221 N. Main Street, Suite 300 Ann Arbor, MI 48104 Phone: (734 929-4313 Of Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION JILL KILEY and MARCUS PAYNE, individually and on behalf of all others similarly situated, vs. Plaintiffs, MEDFIRST CONSULTING HEALTHCARE STAFFING, LLC, Civil Action No. COLLECTIVE ACTION COMPLAINT (FLSA 29 U.S.C. 207(a(1 Defendants. PAGE 1 COLLECTIVE ACTION COMPLAINT T. (503 221-1792 F. (503 223-1516
Case 1:17-cv-00470-CL Document 1 Filed 03/23/17 Page 2 of 8 Plaintiffs Jill Kiley and Marcus Payne, through their undersigned counsel, individually and on behalf of all persons similarly situated, file this Collective Action Complaint against Defendant MedFirst Consulting Healthcare Staffing, LLC ( Defendant or MedFirst, seeking all available relief under the Fair Labor Standards Act of 1938, 29 U.S.C. 201, et seq. ( FLSA. 1 Plaintiffs allege that although Defendant classified them and other similarly situated consultants as independent contractors, they were in fact Defendant s employees for purposes of the FLSA and were not paid overtime wages when they worked over forty (40 hours in a week. The following allegations are based on personal knowledge as to Plaintiffs own conduct, and are made on information and belief as to the acts of others. JURISDICTION AND VENUE 1. Jurisdiction over Plaintiffs FLSA claims is proper under 29 U.S.C. 216(b and 28 U.S.C. 1331. 2. Venue in this Court is proper pursuant to 28 U.S.C. 1391 in that a substantial part of the events giving rise to Plaintiff s claims occurred within this Judicial District. PARTIES 3. Plaintiff Jill Kiley is an individual residing in St. Petersburg, Florida. Kiley worked for Defendant as a consultant providing information technology support services to Defendant s clients in Klamath Falls, Oregon between August 2015 and September 2016, in Winston-Salem North Carolina in October 2016, and in Pittsburgh, Pennsylvania from September to December 2014. 4. Plaintiff Marcus Payne is an individual residing in South Euclid, Ohio. Payne worked for Defendant as a consultant providing information technology support services to Defendant s clients in Medford and Klamath Falls, Oregon and Vincennes, Indiana between 2013 and 2016. 1 Plaintiffs also intend to bring claims under Oregon state law, once those claims are perfected. PAGE 2 COLLECTIVE ACTION COMPLAINT T. (503 221-1792 F. (503 223-1516
Case 1:17-cv-00470-CL Document 1 Filed 03/23/17 Page 3 of 8 5. Defendant MedFirst Consulting Healthcare Staffing, LLC ( MedFirst is a corporation providing information technology and educational services for the healthcare industry across the country. MedFirst maintains its corporate headquarters in Birmingham, Alabama. 6. MedFirst is a leading healthcare information technology firm with a network of hundreds of healthcare IT consultants. MedFirst works with health care organizations of all sizes across the United States, partnering them with the most knowledgeable and experienced IT consultants in the industry. 2 7. MedFirst employs individuals engaged in commerce or in the production of goods for commerce and/or handling, selling, or otherwise working on goods or materials that have been moved in or produced in commerce by any person, as required by 29 U.S.C. 206-207. 8. MedFirst s annual gross volume of sales made or business done exceeds $500,000. FACTS 9. As a leading healthcare information technology firm, MedFirst provides healthcare systems implementation support services, such as training and information technology support. MedFirst employs consultants, such as Plaintiffs, who provide such information technology support in the healthcare industry in this judicial district and throughout the United States. 10. MedFirst s financial results are significantly driven by the number of consultants performing information technology support services for MedFirst s customers and the fees that MedFirst charges the customers for these services. 11. From approximately August 2015 to September 2016, Plaintiff Jill Kiley was employed as a consultant by MedFirst in Klamath Falls, Oregon. She also worked in Winston-Salem North Carolina in October 2016, and in Pittsburgh, Pennsylvania from September to December 2014. 2 http://www.medfirst-consulting.com/about.aspx (last visited March 2, 2017. PAGE 3 COLLECTIVE ACTION COMPLAINT T. (503 221-1792 F. (503 223-1516
Case 1:17-cv-00470-CL Document 1 Filed 03/23/17 Page 4 of 8 12. Between April 2013 and March 2016, Plaintiff Marcus Payne has been employed as a consultant by MedFirst in Medford, Oregon, Klamath Falls, Oregon, and Vincennes, Indiana. 13. Plaintiffs bring this lawsuit pursuant to 29 U.S.C. 216(b as a collective action on behalf of herself and the following opt-in litigants ( FLSA Class Members : All individuals who were classified as independent contractors while performing consulting work for MedFirst Consulting Healthcare Staffing, LLC ( MedFirst in the United States from March 23, 2014 to the present. 14. MedFirst improperly, wrongfully and illegally classified Plaintiffs and other consultants as independent contractors, when the economic reality of the position is that of an employee, and MedFirst retains the right of control, and, in fact, actually does control the work of the consultants. 15. Plaintiffs and FLSA Class Members routinely worked in excess of forty (40 hours per workweek but, as a result of this misclassification, MedFirst did not pay them any overtime compensation as required by the FLSA. 16. For example, in most weeks she worked for Defendant, Plaintiff Kiley regularly worked 12 hours a day, 7 days a week, plus on-call time and was only paid a straight hourly rate and only for her billed hours. 17. Plaintiffs and FLSA Class Members qualify as employees for purposes of the FLSA, as further described below. 18. Work performed by Plaintiffs and FLSA Class Members is an integral part of MedFirst s business. MedFirst is in the business of providing information technology services to the healthcare industry. Plaintiffs and FLSA Class Members provide information technology support and training to MedFirst s clients. 19. MedFirst provides training to Plaintiffs and FLSA Class Members, which they use to provide basic information technology support to MedFirst s clients. PAGE 4 COLLECTIVE ACTION COMPLAINT T. (503 221-1792 F. (503 223-1516
Case 1:17-cv-00470-CL Document 1 Filed 03/23/17 Page 5 of 8 20. Plaintiffs and FLSA Class Members are unable to perform services for any other company during their time working for MedFirst due to their schedule. 21. Plaintiffs were required to sign restrictive covenant agreements that prohibited them from working for competitors in the go-live training and consulting industry during and for a year after their last engagement with Defendant. 22. Plaintiffs and FLSA Class Members work for one MedFirst client continuously at a time. For example, Plaintiff Kiley worked at the same hospital in Klamath Falls, Oregon continuously for 13 months. 23. Plaintiffs and FLSA Class Members have little or no authority to refuse or negotiate MedFirst s rules and policies; they must comply or risk discipline and/or termination. 24. MedFirst instructs Plaintiffs and FLSA Class Members on how to do their work and dictates the details of the performance of their jobs. Plaintiffs and FLSA Class Members have no control over what prices to charge MedFirst s clients, or the scheduling of shifts. All negotiations over the cost and details of the work are done directly between MedFirst and the third-party client. MedFirst requires Plaintiffs and FLSA Class Members to perform in accordance with MedFirst s policies, manuals, standard operating procedures and the third-party client requirements, and requires Plaintiffs and FLSA Class Members to work the entire project from inception to conclusion. 25. Plaintiffs and FLSA Class Members have to request MedFirst s approval for time off. MedFirst had final discretion to grant or deny such requests. 26. MedFirst pays Plaintiffs and the FLSA Class Members a fixed hourly rate, which they are not able to negotiate. 27. Plaintiffs and FLSA Class Members usually work approximately twelve (12 hours per day, seven (7 days per week. 28. Although Plaintiffs and FLSA Class Members frequently are required, permitted or encouraged to work more than forty (40 hours per week, they do not receive one and one-half PAGE 5 COLLECTIVE ACTION COMPLAINT T. (503 221-1792 F. (503 223-1516
Case 1:17-cv-00470-CL Document 1 Filed 03/23/17 Page 6 of 8 (1 ½ times their regular rate for hours worked in excess of forty (40 hours per week, as required by the FLSA. 29. Instead, Plaintiffs and FLSA Class Members are paid a straight hourly rate for hours that they worked, regardless of whether they work more than forty hours in a week. 30. Plaintiffs and FLSA Class Members are employed as information technology support for software applications and programs provided by MedFirst. Plaintiff and FLSA Class Members are not working as computer systems analysts, computer programmers, or software engineers as defined in 29 C.F.R. 541.400(a. 31. Plaintiffs and FLSA Class Members duties consist of providing software support to MedFirst s healthcare clients and aiding healthcare staff with the new software. Plaintiff and Class Members duties do not include the application of systems analysis techniques and procedures pursuant to 29 C.F.R. 541.400(b(1. Plaintiffs and FLSA Class Members do not analyze, consult or determine hardware, software programs or any system functional specifications for MedFirst s clients. See id. 32. Plaintiffs and FLSA Class Members did not design, develop, document, analyze, create, test or modify a computer system or program as defined in 29 C.F.R. 541.400(b(2. 33. While Plaintiffs and FLSA Class Members work is highly dependent upon, or facilitated by, the use of computers and computer software programs, they are not primarily engaged in computer systems analysis and programming. U.S. Dep t of Labor, Wage & Hour Div., Fact Sheet #17E: Exemption for Employees in Computer-Related Occupations under the Fair Labor Standards Act (FLSA. Plaintiffs and FLSA Class Members provided software support to MedFirst s clients. 34. Plaintiffs and FLSA Class Members are not paid a minimum guaranteed salary. Instead, Plaintiffs and Class Members are paid hourly and paid only for the time actually billed. /// /// PAGE 6 COLLECTIVE ACTION COMPLAINT T. (503 221-1792 F. (503 223-1516
Case 1:17-cv-00470-CL Document 1 Filed 03/23/17 Page 7 of 8 COUNT I VIOLATION OF THE FLSA (ON BEHALF OF PLAINTIFFS AND THE CLASS 35. All previous paragraphs are incorporated as though fully set forth herein. 36. The FLSA requires that covered employees be compensated for all hours worked in excess of forty (40 hours per week at a rate not less than one and one-half (1 ½ times the regular rate at which he is employed. See 29 U.S.C. 207(a(1. 37. The FLSA defines employer broadly to include any person acting directly or indirectly in the interest of an employer in relation to an employee... 29 U.S.C. 203(d. 38. MedFirst is subject to the wage requirements of the FLSA because MedFirst is an employer under 29 U.S.C. 203(d. 39. At all relevant times, MedFirst was an employer engaged in interstate commerce and/or in the production of goods for commerce, within the meaning of the FLSA, 29 U.S.C. 203. 40. During all relevant times, Plaintiffs and FLSA Class Members were covered employees entitled to the above-described FLSA s protections. See 29 U.S.C. 203(e. 41. Plaintiffs and the FLSA Class are not exempt from the requirements of the FLSA. 42. Plaintiffs and the FLSA Class are entitled to be paid overtime compensation for all hours worked over forty (40 in a workweek pursuant to 29 U.S.C. 207(a(1. 43. MedFirst, pursuant to its policies and practices, failed and refused to pay overtime premiums to Plaintiffs and the FLSA Class for all their overtime hours worked by misclassifying Plaintiffs and the FLSA Class as independent contractors, thereby exempting them from the requirements of the FLSA. 44. MedFirst knowingly failed to compensate Plaintiffs and the FLSA Class at a rate of one and one-half (1 ½ times their regular hourly wage for hours worked in excess of forty PAGE 7 COLLECTIVE ACTION COMPLAINT T. (503 221-1792 F. (503 223-1516
Case 1:17-cv-00470-CL Document 1 Filed 03/23/17 Page 8 of 8 (40 hours per week, in violation of 29 U.S.C. 207(a(1. 45. In violating the FLSA, MedFirst acted willfully and with reckless disregard of clearly applicable FLSA provisions. 46. In violating FLSA, on information and belief, MedFirst did not have any good faith basis to rely on any legal opinion or advice to the contrary. WHEREFORE Plaintiffs request that this Court enter the following relief: a. Certify a collective action pursuant to 29 U.S.C. 216(b and authorize the issuance of notice to similarly-situated consultants; b. Award unpaid overtime compensation; c. Award liquidated damages under the FLSA; d. Award all interest, costs and attorney s fees incurred prosecuting this claim; e. Such other relief as in law or equity may pertain. March 23, 2017 By their attorneys, Respectfully Submitted, JILL KILEY AND MARCUS PAYNE, individually and on behalf of all others similarly situated,. s/ Beth Creighton Beth Creighton, OSB #972440 E-mail: Michael E. Rose, OSB #753221 E-mail: mrose@civilrightspdx.com Harold Lichten, MA Bar #549689 (pro hac vice anticipated hlichten@llrlaw.com Olena Savytska, MA Bar #693324 (pro hac vice anticipated osavytska@llrlaw.com David M. Blanchard, MI P#67190 (pro hac vice anticipated blanchard@bwlawonline.com Daniel Tai, MI P#76798 (pro hac vice anticipated tai@bwlawonline.com PAGE 8 COLLECTIVE ACTION COMPLAINT T. (503 221-1792 F. (503 223-1516
Case 1:17-cv-00470-CL Document 1-1 Filed 03/23/17 Page 1 of 2 CONSENT TO JOIN COLLECTIVE ACTION Pursuant to the Fair Labor Standards Act. 29 U.S. C. 216(b 1. I consent and agree to pursue my claims in a lawsuit arising out of my employment and work for Medfirst Consulting Healthcare Staffing Corporation LLC. 2. During the time I worked for Medfirst, I worked more than forty hours in certain weeks. I have not been paid overtime (time-and-a-half for these hours. 3. I understand that the lawsuit will be brought under the Fair Labor Standards Act, 29 U.S.C. 201, et seq. I hereby consent, agree, and "opt in" to become a plaintiff herein and to be bound by any judgment by the Court or any settlement of this action. I hereby designate Blanchard & Walker PLLC, and additional counsel as the firm may associate with, to represent me for all purposes in this action. l Signature: Ji ll< lletd~ Date: 03-17-17 --~----~---------------------- --------- PrintName: JILL M. KILEY Medflrst Retainer/Consent.. 1 JMK Imtla s: - -
Case 1:17-cv-00470-CL Document 1-1 Filed 03/23/17 Page 2 of 2 CONSENT TO JOIN COLLECTIVE ACTION Pursuant to the Fair Labor Standards Act. 29 U.S.C. 216(b 1. I consent and agree to pursue my claims in a lawsuit arising out of my employment and work for Medfirst Consulting Healthcare Staffing Corporation LLC. 2. During the time I worked for Medfirst, I worked more than forty hours in certain weeks. I have not been paid overtime (time-and-a-half for these hours. 3. I understand that the lawsuit will be brought under the Fair Labor Standards Act, 29 U.S.C. 201, et seq. I hereby consent, agree, and "opt in" to become a plaintiff herein and to be bound by any judgment by the Court or any settlement of this action. I hereby designate Blanchard & Walker PLLC, and additional counsel as the firm may associate with, to represent me for all purposes in this action. Signature: II aa.c4s ;{ ~. -...e D 03/14/2017 Marcus Payne(~ ate: ----~~----~------------------ --------- PrintName: Marcus Payne Signature: Email: jillmkiley@yahoo.com Medfrrst Retainer/Consent I.. MP mhas: 1
JS 44 (Rev. 0 /16 Case 1:17-cv-00470-CL Document 1-2 Filed 03/23/17 Page 1 of 1 CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM. I. (a PLAINTIFFS DEFENDANTS JILL KILEY and MARCUS PAYNE, individually and on behalf of all others similarly situated, (b County of Residence of First Listed Plaintiff Pinellas County, FL (EXCEPT IN U.S. PLAINTIFF CASES MEDFIRST CONSULTING HEALTHCARE STAFFING, LLC, County of Residence of First Listed Defendant Shelby County, AL (IN U.S. PLAINTIFF CASES ONLY NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c Attorneys (Firm Name, Address, and Telephone Number Attorneys (If Known Beth Creighton, OSB #972440,, 65 S.W. Yamhill Street, Suite 300, Portland, Oregon 97204, (503 221-1792 II. BASIS OF JURISDICTION (Place an X in One Box Only III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff (For Diversity Cases Only and One Box for Defendant 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State 2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country IV. NATURE OF SUIT (Place an X in One Box Only CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act 120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a 140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment 150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust & Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking 151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce 152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark 460 Deportation Student Loans 340 Marine Injury Product 470 Racketeer Influenced and (Excludes Veterans 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations 153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff 480 Consumer Credit of Veteran s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923 490 Cable/Sat TV 160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g 850 Securities/Commodities/ 190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI Exchange 195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g 890 Other Statutory Actions 196 Franchise Injury 385 Property Damage 751 Family and Medical 891 Agricultural Acts 362 Personal Injury - Product Liability Leave Act 893 Environmental Matters Medical Malpractice 790 Other Labor Litigation 895 Freedom of Information REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS Act 210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff 896 Arbitration 220 Foreclosure 441 Voting 463 Alien Detainee or Defendant 899 Administrative Procedure 230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS Third Party Act/Review or Appeal of 240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision 245 Tort Product Liability Accommodations 530 General 950 Constitutionality of 290 All Other Real Property 445 Amer. w/disabilities - 535 Death Penalty IMMIGRATION State Statutes Employment Other: 462 Naturalization Application 446 Amer. w/disabilities - 540 Mandamus & Other 465 Other Immigration Other 550 Civil Rights Actions 448 Education 555 Prison Condition 560 Civil Detainee - Conditions of Confinement V. ORIGIN (Place an X in One Box Only 1 Original 2 Removed from Proceeding State Court VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S IF ANY DATE FOR OFFICE USE ONLY 3 Remanded from 4 Reinstated or 5 Transferred from 6 Appellate Court Reopened Another District (specify Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity: FLSA 29 U.S.C. 207(a(1 Brief description of cause: Violation of the FLSA CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P. (See instructions: DEMAND $ 5,000,000.00 JUDGE SIGNATURE OF ATTORNEY OF RECORD 03/23/2017 s/ Beth Creighton Multidistrict Litigation - Transfer 8 Multidistrict Litigation - Direct File CHECK YES only if demanded in complaint: JURY DEMAND: Yes No DOCKET NUMBER RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
Case 1:17-cv-00470-CL Document 1-3 Filed 03/23/17 Page 1 of 1 AO 440 (Rev. 06/12 Summons in a Civil Action JILL KILEY and MARCUS PAYNE, individually and on behalf of all others similarly situated, UNITED STATES DISTRICT COURT for the District District of Oregon of Plaintiff(s v. Civil Action No. MEDFIRST CONSULTING HEALTHCARE STAFFING, LLC, Defendant(s To: (Defendant s name and address SUMMONS IN A CIVIL ACTION MEDFIRST CONSULTING HEALTHCARE STAFFING, LLC,via and through its Registered Agent Brian Smith, 60 Chelsea Corners, Suite 121, Chelsea, AL 35043 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a(2 or (3 you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff s attorney, whose name and address are: Beth Creighton, OSB #972440 E-mail: 65 S.W. Yamhill Street, Suite 300 Portland, Oregon 97204 Phone: (503 221-1792 - Fax: (503 223-1516 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk