FLSA Collective Action Complaint — Charlotte Dukes v. ERTC Express, LLC (Middle District of Florida)
Summary
An FLSA collective action complaint and jury demand filed March 8, 2024, by Charlotte Dukes against ERTC Express, LLC and John Souza in the U.S. District Court for the Middle District of Florida, Case 8:24-cv-00618-TPB-NHA. It alleges that the defendants classified inside sales representatives selling Employee Retention Tax Credit services, including account executives and sales development representatives, as salaried exempt employees and willfully failed to pay overtime. Dukes worked as a Senior Account Executive from June 2022 until December 18, 2023, with breaks, and alleges a set Monday-to-Friday schedule plus required Saturdays. The complaint seeks overtime pay, an equal sum in liquidated damages, an injunction under 29 U.S.C. § 217 and fees. Mitchell L. Feldman of Feldman Legal Group signs /s/.
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“FLSA Collective Action Complaint — Charlotte Dukes v. ERTC Express, LLC (Middle District of Florida).”
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Case 8:24-cv-00618-TPB-NHA Document 1 Filed 03/08/24 Page 1 of 18 PageID 1
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLOTTE DUKES, Individually and
on behalf of all others similarly situated,
Plaintiff,
Case No:
Collective Action
v.
ERTC EXPRESS, LLC and
JOHN SOUZA
Defendants.
____________________________________.
FLSA COLLECTIVE ACTION COMPLAINT
AND DEMAND FOR JURY TRIAL
Plaintiff CHARLOTTE DUKES, individually, and on behalf of all others
similarly situated who consent to their inclusion in a collective action, sues
Defendants ERTC EXPRESS, LLC (“ERTC”) and JOHN SOUZA (“Souza”)
(hereinafter collectively “Defendants”) for violations of 29 U.S.C. 201 et seq. of the
Fair Labor Standards Act (the "FLSA"), and states as follows:
INTRODUCTION
1. Defendants have willfully FAILED to pay overtime wages to all Inside
Sales Representatives (ISR) working under the job titles of: Account Executives,
Senior Account Executives (collectively, “Account Executives”), Sales
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Development Representatives or Business Development Representatives, or Sales
Consultants (collectively “Inside Sales Representatives” or “ISR”).
2. All members of the putative class or collective group were and are
classified as salaried exempt employees by Defendants, and thus willfully excluded
from being paid overtime premiums by Defendants.
3. Defendants represent that they operate its business from five offices:
1) Tampa, FL, 2) New York, NY, 3) Nashville, TN, 4) Atlanta, GA, and 5) Los
Angeles, CA with ISR working either at the office, remotely, or a combination of
the two, and reporting to 1 or the other offices from where it employed similarly
situated ISR, all working under similar compensation plans, performing similar if
not identical job responsibilities, and all suffering from the same, common unlawful
pay practices pursuant to a de facto policy and scheme to avoid overtime wages and
save millions of dollars in labor costs.
4. Defendants created and maintained a scheme to avoid paying overtime
wages to all its ISR, and thus keeping millions of dollars of wages owed to 300 or
more employees by misrepresenting to its employees that they were exempt under
the FLSA.
5. Plaintiff herein commences this legal action against Defendants for
willful violations of the federal wage and hour overtime pay laws and related
regulations on behalf of all similarly situated current and former ISR of Defendants
who worked anytime in the preceding three (3) years to the present.
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6. Plaintiff and the class of similarly situated employees were unlawfully
not compensated a premium for all hours worked over forty (40) in each and every
workweek by a scheme and plan of Defendants to evade the overtime wage laws and
save many millions of dollars in labor costs to the detriment and harm of Plaintiff
and all other ISR.
7. Defendants willfully failed to pay Plaintiff, and all similarly situated
persons in accordance with the Fair Labor Standards Act (FLSA). Specifically,
Plaintiff, and similarly situated employees were not paid all overtime compensation
due for all hours they worked in excess of forty (40) hours per week.
8. Plaintiff, and the class of similarly situated employees, did not and
currently do not perform work that meets the definition of any exemption under the
FLSA, and the Defendants’ pay practices were not only clearly unlawful, but
UNFAIR as well.
9. The allegations in this pleading are made without any admission that,
as to any particular allegation, Plaintiff bears the burden of pleading, proof, or
persuasion. Plaintiff reserves all rights to plead in the alternative.
JURISDICTION AND VENUE
10. This Court has subject matter jurisdiction over this action pursuant to
28 U.S.C. §1331 since this action involves a federal question under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 216(b).
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11. This Court is empowered to issue a declaratory judgment under 28
U.S.C.§§ 2201 and 2202.
12. This Court has general jurisdiction over Defendants for the claims of
all those similarly situated from across the U.S. and for non-resident opt in plaintiffs
since the Defendants’ principal office is within this district.
13. Venue is proper to this Court pursuant to 28 U.S.C. Sec. 1391(b)
because the damages occurred within this district.
THE PARTIES
14. Plaintiff CHARLOTTE DUKES is a citizen and resident of Florida.
15. Plaintiff worked for Defendants as a Senior Account Executive from
June 2022 to September 2022, then from October 2022 to August 2023, and lastly
from October 2023 until December 18, 2023.
16. Plaintiff worked at Defendants’ office that was originally located on
Florida Avenue, Tampa, FL. In or about October 2022 Plaintiff began working at
5404 Cypress Center Dr. Suite 375, Tampa, FL 33609 when Defendants moved their
office to this location.
17. At certain times in her employment, Plaintiff was allowed to work
remotely from her home and did so.
18. The primary job duties of an Account Executive or a Senior Account
Executive, such as Plaintiff, were to make business to business calls to sell
Defendants’ ERTC or Employee Retention Tax Credit services to other businesses.
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Plaintiff was thus an inside sales representative (ISR). Plaintiff and Account
Executives would call business based on leads provided by Defendants or would call
businesses based on appointments that were set up by Defendants’ Sales
Development Representatives or Business Development Representatives.
19. The primary job duties of Sales Development Representatives or
Business Development Representatives was to contact the leads provided by
Defendants to set up an ap pointment for Defendants’ Account Executives to call in
an attempt to sell Defendants’ services. Additionally, Sales Development
Representatives or Business Development Representatives were not restricted from
the sales themselves.
20. The ISR over some or all of the relevant FLSA 3-year statute of
limitations period preceding the filing of this complaint were classified as salaried
and exempt employees under the FLSA and not paid any premium for overtime
hours, and who did not report or clock in and out all their work hours.
21. At all times material, Plaintiff and those similarly situated were
employees of Defendants during the term of their employment as contemplated by
29 U.S.C. § 203.
22. Plaintiff was paid a base salary and was eligible for and did receive non-
discretionary sales commissions or bonus as did all other Account Executives and
ISR.
DEFENDANTS
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23. Defendant ERTC EXPRESS, LLC is a Foreign Limited Liability
Company with a principal place of business located at 5404 CYPRESS CENTER
DRIVE SUITE 375, TAMPA, FL 33609.
24. Defendant ERTC may be served through its Registered Agent for
service of process at URS AGENTS, LLC, 3458 LAKESHORE DRIVE,
TALLAHASSEE, FL 32312.
25. As stated by Defendant ERTC on its website 1, “We help business
owners like you navigate the complex filing process to receive the highest amount
you legally qualify for from the Employee Retention Tax Credit Program, so you
can build, grow, and scale your business.”
26. Defendant Souza is the Manager of Defendant ERTC EXPRESS, LLC.
Defendant Souza is also the co-founder and CEO of Defendant ERTC EXPRESS
LLC2.
27. Upon information and belief, Souza engaged in day-to-day operational
control of the business of Defendant ERTC.
28. As an officer, manager, and/or owner of Defendant ERTC, Defendant
Souza is an employer within the meaning of the FLSA. See In re Van Diepen, P.A.,
236 Fed. Appx. 498, 12 Wage & Hour Cas. 2d (BNA) 1358 (11th Cir. 2007)
(allowing individual liability).
1 https://ertc.com/about-us/ (accessed Mar. 6, 2024)
2 https://johnsouza.com/about/ (accessed Mar. 6, 2024)
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29. Defendant Souza directed and controlled the day-to-day work of
Plaintiff and the class of similarly situated and is jointly responsible for the
compensation plans and unlawful pay practices complained of herein. Thus, Souza
is an employer within the meaning of the FLSA. See In re Van Diepen, P.A., 236
Fed. Appx. 498, 12 Wage & Hour Cas. 2d (BNA) 1358 (11th Cir. 2007) (allowing
individual liability).
30. Defendant Souza is a resident of Florida.
31. Defendant ERTC is an “Employer” within the definition of the FLSA
Section 203 and has revenues exceeding $500,000 annually in all applicable time
periods, is involved in interstate commerce and has employed 50 or more employees
at any given time during the preceding 3 years to the present day.
32. Alternatively, Plaintiff engaged in interstate business soliciting
businesses across state lines and to which transactions occur red and monies were
paid and recovered across state lines.
33. The overtime wage provisions set forth in FLSA §207 apply to
Defendants, as they combined engage in interstate commerce making business to
business (b2b) calls soliciting to sell Defendants’ Employee Retention Tax Credit
(ERTC) services to other businesses.
34. Indeed, at all relevant times, Defendants engaged in interstate
commerce and/or in the production of goods for commerce within the meaning of
FLSA § 203.
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35. Thus, Defendants had a duty to have investigated, studied, audited, and
assessed its pay practices and its federal and state law duties and obligations and
determine if it was in compliance and the failure to do so subjects it to the payment
of liquidated damages and a three (3) year statute of limitations for FLSA violations.
FACTUAL AND COLLECTIVE ACTION ALLEGATIONS
36. This collective action arises from a longstanding and continuing
wrongful scheme by Defendants to willfully refuse to pay overtime wages to a large
class of employees, persons working as Account Executives or Senior Account
Executives, Sales Development Representatives or Business Development
Representatives or under various other job titles, who Defendants know or should
have known, were misclassified and should have been paid overtime premiums
throughout the preceding 3 years.
37. Plaintiff brings this suit individually, and on behalf of all similarly
situated persons composed of the following Class members:
All salaried employees working as Account Executives, Senior
Account Executives, Sales Development or Business Development
Representatives, or other persons working as Inside sales
Representatives (ISR) under any other job titles, who are currently
or were previously employed anywhere in the U.S. with ERTC
EXPRESS, LLC within the past three years preceding the filing of
this lawsuit to the present.
38. Plaintiff is able to protect and represent the Collective or putative class,
and is willing, able, and consents to doing so.
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39. Plaintiff routinely worked more than forty (40) hours in workweeks
throughout the term of her employment with Defendants and without being paid all
overtime compensation due for all these overtime hours.
40. Upon information and belief, at any given time, Defendants employed
approximately 50 Account Executives, such that with turnover, the class of Account
Executives is 200 or more, and 100 or more for Sales Development Representatives
or Business Development Representatives.
41. Generally, Defendants did not provide a means for salaried ISR to
report, record, or clock their work hours or meal breaks. Instead, Account Executives
and other ISR were encouraged to work as many hours to make as many sales as
possible, hit performance metrics or sales goals.
42. However, for approximately a 30-day period in the fall of 2022, ISR
were required to clock in and out using an app on their computers or smartphones.
Outside of this brief period, ISR did not record or report their work hours.
43. Defendants mandated Plaintiff and the class of similarly situated to
work a corporate set schedule of Monday through Friday, 9 am to 6 pm, with a one-
hour lunch break.
44. Defendants also required Plaintiff and the class of similarly situated to
work on the last Saturday of each month from approximately 9 am to 5 pm with a
one-hour lunch break.
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45. Further, if an Account Executive did not make 10 sales in a week, he or
she would be required to work on the following Saturday, regardless if it was the last
Saturday of the month or not.
46. Plaintiff regularly worked during most or all of this permitted one hour
lunch break, and without an uninterrupted Bona Fide meal break as defined in the
FLSA.
47. Additionally, Defendants frequently brought in lunch for its ISR to
encourage the ISR to work through and during their lunch breaks.
48. Plaintiff alleges for herself and on behalf of the putative class who elect
to opt-in to this action, that they are entitled to unpaid wages from Defendants for
overtime work for which they did not receive all overtime compensation as required
by the FLSA, plus an equal sum in liquidated damages.
49. Upon information and belief, all Account Executives were paid under
a common pay or compensation plan of a base salary plus the opportunity to earn a
commission based on sales made. Sales Development Representatives or Business
Development Representatives are believed to have a different commission or bonus
plan, in addition to a base salary.
50. Beginning in February 2023, Account Executives were also eligible to
receive a bonus of $2,500 if they remained with the company for 90 days.
51. All ISR working under the various job titles also performed their job
duties in a uniform, similar manner; and all were supervised and managed according
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to the same national standards and uniform policies and procedures set by the
Defendants and applicable to all offices and to all Account Executive working
remotely.
52. All ISR within this defined putative class or collective group were
treated and classified by Defendants as exempt employees, and whose primary duty
was selling Defendants’ services by soliciting other businesses through telephone
and email communications.
53. ISF were purposefully and willfully misled by Defendants to believe
they were lawfully classified as exempt from overtime pay but never justified or
explained the basis or why.
54. Defendants maintained a companywide policy throughout the relevant
three (3) year class period of willfully refusing to pay overtime wages for all
overtime hours worked for ISR despite clear knowledge ISR worked and continue
to work overtime hours which are unreported.
55. Defendants knew that ISR were routinely working more than 40 hours
per week as Defendants encouraged ISR to work through some or all of their meal
breaks and required ISR to work six days a week at least once per month.
56. The actual job duties performed by the proposed putative class of ISR
do not satisfy the elements of any exemptions within FLSA §213, as all perform
routine jobs whose primary job duty was sales.
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57. Plaintiff, as well as the members of the putative class of similarly
situated persons routinely worked through part or all of their lunch breaks and
worked prior to or after the set and standardized nine (9) hour daily shift times.
58. Plaintiffs, and all other similarly situated employees are currently or
have previously been covered under FLSA §207.
59. Pursuant to FLSA §207, Defendants, as the employer of Plaintiff and
other similarly situated ISR, was and is required to pay premium pay, meaning
overtime wages, for hours worked in excess of forty (40) hours per week.
60. Defendants were fully aware that ISR were working more than 8 hours
in a day and more than 40 hours in a week in attempts to sell Defendants’ services
to other businesses.
61. Defendants do not presently and have not throughout the relevant three
(3) year class period, except for a brief 30-day period in the fall of 2022, properly
clocked, tracked, or recorded the actual working hours of each ISR.
62. All ISR followed corporate policies and procedures applicable to all
their offices and to all remotely employed ISR wherever they lived and worked from
throughout the U.S.
63. In their sales calls, Account Executives and Sales Development
Representatives or Business Development Representatives were required to follow
a sales script that was created by Defendants.
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64. All Account Executives, Sales Development Representatives or
Business Development Representatives respectively were trained to perform their
job duties and expected to perform their job duties in similar manners throughout
the U.S.
COUNT I
VIOLATIONS OF FLSA §207 AND DECLARATORY ACTION
PURSUANT TO 28 U.S.C. SECTIONS 2201 and 2202
65. Plaintiff alleges and incorporates by reference the foregoing paragraphs
of this Complaint and fully restates and realleges all facts and claims herein as if
fully stated.
66. Defendants willfully and intentionally engaged in a common company
pattern and practice of violating the provisions of the FLSA by failing to pay
Plaintiff, all Account Executives and all other persons working as inside sales
representatives (ISR) under various job titles, the required overtime premiums for
wages for all hours worked over 40 in each and every workweek.
67. Plaintiff, and all other persons working as Account Executives or other
persons performing similar inside sales representative work under various other job
titles (ISR), routinely worked more than 40 hours during their workweeks, and
without being paid a premium for the overtime hours incurred.
68. Defendants knew that Plaintiff, Account Executives and all others
working as ISR routinely worked more than 40 hours each week to compete and
handle their job duties and responsibilities, but willfully misclassified them as a
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group as exempt from overtime pay and without regard to any individualized job
duties analysis.
69. Defendants had a duty and obligation under the FLSA, and as per CFR
part 516, to contemporaneously track and record all work hours of non -exempt
employees, including Account Executives and ISR working under any job titles.
70. As Defendants failed to institute any actual time tracking system or time
clock for employees to log in and out their ACTUAL work times, ISR can meet their
burden here by estimating their work hours as per the U.S. Supreme Court decision,
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946).
71. Defendants’ conduct and actions classifying all Plaintiff, all Account
Executives and any other persons working as ISR as exempt from overtime pay
under the FLSA was a willful violation of Section 207 of the FLSA, and further lacks
any good faith basis under the FLSA as inside sales representatives (ISR) such as
the Account Executives and ISR here are generally considered to be non-exempt by
DOL regulations and from court decisions interpreting the FLSA.
72. Defendants knew or should have known that Account Executives and
all persons working as ISR did not and do not meet the definition of any exemption
under the FLSA and are part of “production” who cannot or should not be classified
as exempt employees under the FLSA.
73. Defendants willfully and with reckless disregard for the requirements
of the FLSA and its regulations, failed to pay Plaintiff and the Putative Class
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comprised of all current and former similarly situated ISR a premium or overtime
wages for all work hours over (40) hours in one or more work weeks as mandated
by FLSA §207.
74. Defendants classified all ISR as exempt from overtime pay without any
individualized job analysis such that they are all subjected to the same or common
unlawful pay practice, and that they are all similarly situated for the purposes of
pursuing their claims collectively as per Section 216(b) of the FLSA.
75. Defendants do not have a good faith basis for these described unlawful
pay practices, such that Plaintiff and each and every member of the putative class is
entitled to be paid an equal sum in overtime wages owed at rates of one and one-half
times their respective regular rates of pay as liquidated damages. See Johnson v. Big
Lots Stores, Inc., 604 F.Supp.2d 903 at 925 (E.D. La. 2009).
76. As a result of Defendants’ willful violations of the FLSA, Plaintiff and
the putative class have suffered economic damages by Defendants’ failure to pay
overtime compensation in accordance with FLSA §207.
77. Due to Defendants’ willful violations of the FLSA, a three-year statute
of limitations applies to the FLSA violations pursuant to 29 U.S.C. §255(a).
78. As per the FLSA, Defendants have the burden to prove Plaintiff and all
others similarly situated were not entitled to overtime pay during the preceding 3
years because of some exemption and Plaintiff and all others who elect to opt into
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this action and assert their rights under the FLSA are not required to prove they are
legally entitled to these wages.
79. Further, since Defendants did not track and record the work hours of
ISR, the burden shifts to Defendants to prove the precise hours worked by the
Plaintiff and the proposed class, or the court or jury can award wages based upon the
estimates by the Plaintiff and the proposed class.
80. As a result of Defendants’ unlawful acts and pay practices described
herein, Plaintiff and the putative class of all other similarly situated ISR have been
deprived of overtime compensation in amounts to be determined at trial; and are
entitled to recovery of such amounts, liquidated damages in an amount equal to the
overtime wages due, prejudgment interest, attorneys' fees, costs and other
compensation pursuant to 29 U.S.C. §216(b), as well as injunctive relief pursuant to
29 U.S.C. §217.
WHEREFORE, Plaintiff CHARLOTTE DUKES, individually, and on
behalf of all other similarly situated past and present Account Executives and Senior
Account Executives, Sales Development or Business Development Representations,
Sales Consultants and all ISR and any others similarly situated seeks the following
relief:
a. Designate Plaintiff CHARLOTTE DUKES as Representative of
the FLSA Collective Class;
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b. That the Court find and declare Defendants willfully violated the
overtime compensation provisions of the FLSA;
c. That the Court find and declare Defendants’ violations of the
FLSA overtime laws were and are willful and lacking a good
faith basis for complying with the state and federal overtime
laws;
d. That the Court enjoin Defendants, under 29 U.S.C. § 217, from
withholding future payments of overtime compensation owed to
members of the FLSA Class;
e. That the Court award to Plaintiff DUKES and the FLSA Class,
comprised of all similarly situated employees, overtime
compensation at the lawful and applicable overtime and premium
rates of pay, including the value of all compensation earned for
bonuses/commission, for previous hours worked in excess of
forty (40) for any given week during the past three years AND
liquidated damages of an equal amount of the overtime
compensation, in addition to penalties and interest on said award
pursuant to FLSA §216 and all other related economic losses;
f. That the Court award Plaintiff DUKES and the plaintiffs who opt
into this action recovery of their reasonable attorneys' fees, costs,
and expenses of litigation pursuant to FLSA § 216;
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g. That the Court finds Defendants willfully, and with a lack of
good faith, violated the overtime provisions of the FLSA,
including the time tracking requirements for non-exempt
employees;
h. That the Court apply a three (3) year statute of limitations to the
FLSA claims; and
i. That the Court award any other legal and equitable relief as this
Court may deem fair, just or appropriate.
DEMAND FOR JURY TRIAL
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff
demands a trial by jury on all questions of fact raised by this Complaint.
Respectfully submitted March 8, 2024.
/s/Mitchell L. Feldman
Mitchell L. Feldman, Esq
Florida Bar No.: 0080349
FELDMAN LEGAL GROUP
12610 Race Track Road, Suite 225
Tampa, FL 33625
Tele: (813) 639-9366
Fax: (813) 639-9376
mfeldman@flandgatrialattorneys.com
Lead Counsel for Plaintiff and the class of
similarly situated
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