COMMONWEAL TH OF MASSACHUSETTS

SUFFOLK, SS

CORT SZAFARZ, on behalf of himself and all others similarly situated,

Plaintiff, v.

UNITED PARCEL SERVICE, INC.,

Defendant.

SUPERIOR COURT Civil Action No.

CLASS ACTION COMPLAINT

JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT

CORT SZAF ARZ ("Plaintiff'), brings this action against UNITED PARCEL SERVICE,

INC. ("UPS" or "Defendant") on behalf of himself and others similarly situated, and alleges as

follows:

INTRODUCTION

1. Massachusetts law requires employers to pay employees "Reporting Pay."

Specifically, "[w]hen an employee who is scheduled to work three or more hours reports for duty

at the time set by the employer, and that employee is not provided with the expected hours of

work, the employee shall be paid for at least three hours on such day at no less than the basic

minimum wage." 454 C.M.R. 27.04(1).

2. At all times pertinent, UPS did not pay its employees "Reporting Pay." UPS did

not pay its employees for three hours of work when they reported to work, but were not provided

with their expected hours of work.

3. Plaintiff Cort Szafarz worked as a part-time package handler for UPS from

September 2014 to May 2015.

4. Mr. Szafarz was repeatedly scheduled to work three or more hours, reported to

work, and then was not paid for three hours of work when his shift was canceled or shortened.

5. This is a class action arising out of Defendant's practice of denying Plaintiff and

the Class Reporting Pay as required by Massachusetts law.

PARTIES

6. Plaintiff Cort Szafarz is a resident of Massachusetts presently residing in North

Andover, Massachusetts. He was employed by Defendant UPS from September 2014 to May

2015 at the UPS facility located at 119 Drum Hill Road, Chelmsford, Massachusetts.

7. Defendant, United Parcel Service, Inc., is a Delaware corporation which is

headquartered in Atlanta, Georgia, and which maintains a regular place of business in Suffolk

County.

VENUE & JURISDICTION

8. This Court has subject matter jurisdiction over this action pursuant to M.G.L. c.

212, § 3.

9. This Court has personal jurisdiction over UPS because the Defendant has

sufficient minimum contacts with Massachusetts so as not to offend traditional notions of fair

play and substantial justice. The Defendant has purposefully availed itself of the forum through

the creation of shipping facilities in Massachusetts, the hiring of Massachusetts employees, the

delivery of packages in Massachusetts, and the marketing of its services to Massachusetts

residents.

10. Venue is appropriate in this district under M.G.L. c. 223, § 1 because Defendant

has a usual place of business in this county.

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GENERAL FACTUAL ALLEGATIONS

11. Defendant UPS is in the business of picking up and delivering packages to its

customers throughout the Commonwealth of Massachusetts and nationally. UPS operates several

shipping facilities in Massachusetts, which function as hubs for packages to be loaded and

shipped throughout the state.

12. During the relevant time period, UPS acted as an employer of Mr. Szafarz and the

Class subject to the Massachusetts wage and hour laws, and the administrative regulations

promulgated pursuant to those laws.

13. UPS was required to compensate Plaintiff and the Class in accordance with the

requirements imposed on employers by the Commonwealth of Massachusetts.

14. Massachusetts law requires that "[w]hen an employee who is scheduled to work

three or more hours reports for duty at the time set by the employer, and that employee is not

provided with the expected hours of work, the employee shall be paid for at least three hours on

such day at no less than the basic minimum wage." 454 C.M.R. 27.04(1).

15. Mr. Szafarz was employed by Defendant UPS as a part-time package handler

from September 2014 to May 2015, in the Chelmsford, Massachusetts shipping facility.

16. As a package handler, Mr. Szafarz' s job consisted oflifting, loading, and sliding

heavy packages.

17. Mr. Szafarz was hired for the evening shift, which ran from 6pm - 11 pm, Monday

-Friday. He was required to report to work each day at his scheduled time.

18. When he started, Mr. Szafarz was paid $10/hour. Beginning in January 2015, Mr.

Szafarz' s pay increased to $10 .1 O/hour.

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19. Additionally, during a portion of Mr. Szafarz's employment, Mr. Szafarz was

paid an additional weekly bonus if he reported to work on time for each of his scheduled shifts.

20. Although Mr. Szafarz was scheduled to work each weekday for more than three

hours, and was required to report to work each day at his scheduled time, Mr. Szafarz's shifts

were often canceled or shortened. On such days, he was either not paid at all or only paid for a

fraction of the time that he was scheduled to work. He was not paid for at least three hours of

work, as required by Massachusetts law.

21. Mr. Szafarz reported to work, but was sent home before completing his shift (and

was not paid for at least three hours of work) approximately 1-2 times per week throughout the

duration of his employment at UPS.

22. Roughly a month after he began work, Mr. Szafarz complained to UPS Human

Resources about the UPS policy and practice of not paying its employees for at least three hours

of work when they report to work for their scheduled shifts. Mr. Szafarz informed UPS that he

believed such a policy and practice was illegal in Massachusetts. In response, UPS told Mr.

Szafarz "that's just the way we do it here."

23. UPS frequently schedules its workers for shifts of three or more hours, requires its

employees to report for duty at their scheduled time, and then does not pay its employees for at

least three hours on the days that employees report to work, but their shifts are shortened or

canceled.

24. Pursuant to the requirements of M.G.L. c. 149, § 150, Mr. Szafarz received a right

to sue letter from the Attorney General's Office allowing him to proceed with this Complaint,

attached hereto as Exhibit A.

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CLASS ACTION ALLEGATIONS

25. Mr. Szafarz brings this action on behalf of himself and a class of similarly

situated employees of UPS, pursuant to Mass. Civ. P. Rule 23, and M.G.L. c. 149, § 150. The

Class he seeks to represent is similarly situated because they are employed by UPS and are or

were subjected to the same payment practice.

26. The proposed Class is defined as follows:

All individuals who: (1) are or have been previously employed by United Parcel Service, Inc. in Massachusetts during the relevant statute of limitations period; (2) are or were classified by Defendant as hourly employees; (3) were scheduled by Defendant to work a shift of three or more hours; ( 4) reported for duty for that shift; ( 5) were not provided with the scheduled hours of work for that shift; and (6) were not paid for at least three hours of work for that shift at the basic minimum wage.

27. Excluded from the Class are the Defendant, its parent companies, subsidiaries,

and affiliates; any co-conspirators; federal government entities and instrumentalities of the

federal government; states and its subdivisions, agencies, and instrumentalities; and any judicial

officer presiding over this matter and his or her staff.

28. Membership of the Class is so numerous that joinder of all members is

impracticable. The Class is comprised of at least hundreds of UPS employees throughout

Massachusetts. The Class, however, is readily identifiable from information and records in the

possession, custody, or control of Defendant.

29. The claims of Mr. Szafarz are typical of the Class. UPS engaged in a uniform

course of conduct wherein UPS would schedule its hourly employees to work for three or more

hours, its employees would report to work, and then UPS would not pay its employees Reporting

Pay when their shifts were cancelled or shortened. UPS scheduled Mr. Szafarz to work in the

same manner as the Class, and UPS determined Mr. Szafarz's wages - which did not include

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Reporting Pay- in the same manner as the Class. Accordingly, Mr. Szafarz and the Class were

harmed by UPS' s unlawful conduct in the same manner.

30. Mr. Szafarz 's claims and those of the Class involve common questions oflaw

and fact, including: 1) whether UPS had a policy and practice of scheduling its employees to

work for three or more hours, requiring its employees to report for work, and then not paying its

employees for three hours of work when their shifts were shortened or canceled; 2) whether this

policy and practice violated Massachusetts wage laws; 3) whether Mr. Szafarz and the Class are

entitled to damages and/or restitution; and 4) whether Mr. Szafarz and the Class are entitled to

injunctive relief.

31. These common questions predominate over any questions affecting only

individual Class members.

32. Mr. Szafarz will fairly and adequately protect the interests of the Class because he

has no interests antagonistic to, or in conflict with, the Class he seeks to represent. Furthermore,

Mr. Szafarz has retained counsel experienced and competent in class action litigation.

33. Class action treatment is a superior method for the fair and efficient adjudication

of this controversy, in that, among other things, 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 unnecessary duplication of evidence, effort, expense, or the

possibility of inconsistent or contradictory judgments that numerous individual actions would

engender.

34. Mr. Szafarz knows of no difficulty to be encountered in the maintenance of this

action that would preclude its maintenance as a class action.

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FIRST CAUSE OF ACTION

Violation of Massachusetts Minimum Fair Wage Law Failure to Pay Minimum Wage

M.G.L. c. 151, § 1

35. Mr. Szafarz incorporates by reference each and every preceding paragraph as if

fully restated herein.

36. M.G.L. c. 151, § 1 requires employers to pay employees at least $10.00 per hour. 1

37. The regulations promulgated under M.G.L. c. 151, § 1, provide that an employee

must be paid Reporting Pay. 454 C.M.R. 27.04(1). "When an employee who is scheduled to

work three or more hours reports for duty at the time set by the employer, and that employee is

not provided with the expected hours of work, the employee shall be paid for at least three hours

on such day at no less than the basic minimum wage." Id.

38. Defendant violated and continues to violate the Massachusetts Minimum Fair

Wage Law by requiring Mr. Szafarz and the Class to report to work as scheduled, and then

sending them home early before they have completed three hours of work. On these occasions,

Defendant did not and does not pay Mr. Szafarz and the Class for at least three hours of work.

39. Defendant's failure to pay Mr. Szafarz and the Class Reporting Pay pursuant to

454 C.M.R. 27.04(1) amounts to a failure to pay Mr. Szafarz and the Class the minimum wage of

$10.00 per hour as mandated under M.G.L. c. 151, § 1, and as such, is unlawful.

40. Mr. Szafarz and the Class are entitled to recover their lost wages for each

scheduled or regular shift exceeding three hours for which they reported for work but were sent

home without being permitted to work for at least three hours, and without being paid for at least

three hours of work. M.G.L. c. 151, § 20.

1 This new minimum wage went into effect January 1, 2016. For purposes of this Complaint, the change is immaterial. Mr. Szafarz and the Class were not paid at the statutorily-required minimum wage for the duration of the class period.

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41. In addition, Mr. Szafarz and the Class are entitled to treble damages under M.G.L.

c. 151, § 20.

42. Mr. Szafarz and the Class are further entitled to injunctive relief. This Court

should issue an injunction requiring UPS to pay its employees Reporting Pay in compliance with

454 C.M.R. 27.04(1).

SECOND CAUSE OF ACTION

Violation of the Massachusetts Wage Act Failure to Pay For All Hours Worked

M.G.L. c. 149, §§ 148, 150

43. Mr. Szafarz incorporates by reference each and every preceding paragraph as if

fully restated herein.

44. The Massachusetts Wage Act requires employers to pay employees for all hours

worked. M.G.L. c. 149, §§ 148, 150.

45. 454 C.M.R. 27.04 defines "hours worked" to include reporting time. Specifically,

454 C.M.R. 27.04(1) states that, "When an employee who is scheduled to work three or more

hours reports for duty at the time set by the employer, and that employee is not provided with the

expected hours of work, the employee shall be paid for at least three hours on such day at no less

than the basic minimum wage."

46. UPS violated and continues to violate the Massachusetts Wage Act by requiring

Mr. Szafarz and the Class to report to work as scheduled but sending them home early without

completing three hours of work. On these occasions, UPS did not and does not pay Mr. Szafarz

and the Class for at least three hours of work.

47. Defendant's failure to pay Mr. Szafarz and the Class Reporting Pay pursuant to

454 C.M.R. 27.04(1) amounts to a failure to pay Mr. Szafarz and the Class the wages earned by

them as mandated under M.G.L. c. 149, § 148, and as such, is unlawful.

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48. Mr. Szafarz and the Class are entitled to recover their lost wages for each

scheduled or regular shift exceeding three hours for which they reported for work but were sent

home without being permitted to work for at least three hours, and without being paid for at least

three hours of work. M.G.L. c. 149, § 150.

49. In addition, Mr. Szafarz and the Class are entitled to treble damages under Mass.

Gen. Law ch. 149 § 150.

50. Mr. Szafarz and the Class are further entitled to injunctive relief. M.G.L. c. 149, §

150. This Court should issue an injunction requiring UPS to pay its employees Reporting Pay in

compliance with 454 C.M.R. 27.04(1).

THIRD CAUSE OF ACTION

Unjust Enrichment

51. Mr. Szafarz incorporates by reference each and every preceding paragraph as if

fully restated herein.

52. Defendant was unjustly enriched by requiring Mr. Szafarz and the Class to report

to work ready for duty for their scheduled shifts and failing to pay them wages due for those

shifts as required by Massachusetts law.

53. Retention of these benefits would be unjust and inequitable under the

circumstances.

54. Defendant should be required to pay Mr. Szafarz and the Class restitution, in an

amount to be determined by the Court.

55. Mr. Szafarz and the Class are further entitled to injunctive relief.

PRAYER FOR RELIEF

WHEREFORE, Mr. Szafarz respectfully requests that this Court grant him the following

relief:

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A. Certify this case as a class action, designate Mr. Szafarz as class representative,

and designate the undersigned attorneys as Class Counsel;

B. Issue a declaratory judgment and an injunction declaring UPS's practice of failing

to pay employees Reporting Pay to be unlawful and enjoin UPS from continuing to engage in

this practice;

C. Monetary damages;

D. Treble damages, interest, reasonable attorneys' fees and costs as authorized by

M.G.L. c. 151, § 20 and c. 149, § 150;

E. Equitable damages for the Defendant's unjust enrichment;

F. Such other relief as the Court deems just and equitable.

PLAINTIFF DEMANDS A JURY TRIAL ON ALL ISSUES SO TRIABLE.

Dated: June 29, 2016

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Eli e y (BBQ No. 549632) John ddy (BBO No. 424240) BAILEY & GLASSER LLP 99 High Street, Suite 304 Boston, MA 02110 (617) 439-6730 (617) 951-3954facsimile eryan@baileyglasser.com jroddy@baileyglasser.com

Sandra H. Kinney BAILEY & GLASSER LLP 209 Capitol Street Charleston, WV 25301 (304) 345-6555 (304) 342-11 lOfacsimile skinney@baileyglasser.com

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Andrea Gold Sophia Goren TYCKO & ZA V AREEI LLP 1828 L Street, N.W., Suite 1000 Washington, D.C. 20036 (202) 973-0900 (202) 973-0950 facsimile agold@tzlegal.com sgoren@tzlegal.com

EXHIBIT A

THE COMMONWEALTH Of MASSACHUSETTS

OFFICE OF THE ATTORNEY GENERAL 0Ni::: ASHRUlrfON PLACE

BOSTON, MASSACHUSETTS 02108

MAURA HEALEY ATIORN~:y Gl;Nt;KAI.

TEL; ((i 17) 727-2200 WWW.ln!l~S-1:!'-W/3.!\ll

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·~ . . : ·.· ............ , I• ·~ ,', .'.,: • J:.' ·. ·, " .

Mr. Cort Szafarz 119 Blueberry Hill Lane North Andover, MA 01845

RE: United Parcel Service J~: , ,:' ' ' •'I ' " ' ' ' - , '• · .. ·~~:.v,~· ,f:., .~ : •' .. !

Dear Cort Szafan::

June 8, 2016

·. .~.. _, ... ··· .. ·

Thank you for Mtttacting the Office of the Attorney General's Fair Labor Division. The Fair Labor Division of the Attorney General's Offio" receives and review~ thousands of complaints each year and must make difficult decisions regarding which cases it will pursue. If the Office determines that it will not pursue a particular case, it may issue a "private right of action" to the employee-complainant. This ''private right of action" gives the employee the ability to pursue the case privately through the court system.

This letter is the "private right of action" letter for your case. We have carefully reviewed your complaint, a.od we are authorizing you to pursue this matter through a civil lawsuit. This is not a determination oftbe merits of your case. It does mean, however, that this Office will not be taking any further action on your complaint.

The private right of action arises under Massachusetts General Laws Chapter 149, § lSO, and Chapter 151, §§ 1B and 20. It permits employees who bdieve they are victlms of c.ertain violatfons of the state wage laws, to sue in civil court Wl their own behalf and on behalf of other tJimilarly situated employees. If you prevail in court, you are entitled to obtain triple ~es for ;my loss of wages and other benefits, injunctive relief (tor example, the court can order the employer to change its employment practices), as well as the costs of litigation i!fld reasonable attorneys' fees.

You should also be aware that strict time restrictions, called-the statute of limitations, apply to the filing of claims under the Mas.sachusetts wage laws- You can recover damages only for the two or three year time period prior to

.. . . . . . · · the dat~ that you file a case .in.court,.de_pe;oding on the type of olaim you are bringing. Therefore, you should ·. :, ·:. (~ •.. :· . ·• ··det~ll_t~ ;~hat:~.tatute of~Jimi~~~ applies to your claims as. it may be important .to file quickly to avoid the

possibility th11.t p1:11t or all of your claims w-e no lougi;;r within th1> relevant.time period.

fQt fu~ \nfonnation about the Massachusetts Wage and Hour laws, and exercising your "private right of action" .• including a list of attomey referral services, please visit the Attorney General's website at www,mass_gov/ago/pra and select workplace rights.

Sincerely, Fair Labor Division 617-727-3465

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WHAT HOES IT MEAN TQ RECEIVE A :'PRIVATE RlGRT QF ACTION' FROM 'THE FAIR LABOR DIVISION?

The "private right of action" perinits employees who believe they are victims of certain violations of the state wage l11w~ 1n ,~ue in civil court on their own behalf and on behalf of other similarly situated employees. If an eroployee wins his or her case, they are entitled to obtain, the costs of litigation and reasonable attorneys' fees , trip1~ damages for any loss of wages and other benefits and injunctive relief (an order from the court requiring a party to do or not do something, such as reqoiril'lg the employer to modify its employment practices). Depending on the amount of damages (wages owed), employees should file in Small Claims Court, District Court, or Superior Court.

Small Claims Court: The small claims court is designed to provide a simple, informal and inexpensive procedure for re$Olving easer:; where the plaintiff (the person bringing the case) is seeking $7,000 or less. You may bring a small daim only in the court tbr the area where either you or your employer lives or has a place of b1,1slness or employment. For more information; ( 617) 788~88 l 0 or http://www.rnass.gov/courts/e-0urtsruidj udgesJcourts/districtcourt/i;ma llclaims. htm I

" '._! .I' ~.; ... l!~· ;~ }'._'· ... .. • • o • · .~· :' •.' .'t ' • ' - \ • ', •' .. • ', ', ' ,' ,.•,o

District Court: The District Court judges nu1,ke decisions in cases where the pfnintiff is not likely to recover more · than $25,000 in montltiu-y damages. For more information: (617) 788-8810 or hllp ://www.mQss.gov/co ll.T't$/couf1,<iandjudges/sowts/djstrictcourt/ind0x.h.tm 1

Superior Court: The Superior Court decides cases where the plaintiff is $eeking more than $25,000 in monetary damages, or oases involvi11g labor dispu-tes where the plaintiff is socking injunctive relief. For more information: (617) 188-8130 or httn:l/www .ir~s.govlcourt.c;/courtsand lydges/courts/su,periorcou.rt/index .htm I

If you choose to pursue your "private right of action", you may do so on your own or with the assistance of a private attorney. If you n~d help finding an attorney, you may wish to consult with a local bar association or legal services office. The following are two resource$ you may contact for such assistance.

Private l.4lwyer Referral Services- Mass Bar Association Lawyer Refeml Service (617) 654-0400, (800) 392-6164, TTY: (617) 338-0585, www.massbnr.org/lawhelp

Free Legal Representation for Low-loco me Individuals- Legal Advocacy and Resource Center (LARC) ( 611) 603-1700, (800) 342-5297, www.larcma.org

You should also be aWllre that strict time restriction$ apply to claims under the Massachusetts wage laws. You can recover damages only for the two or three year time period prior to the date that you file a case in court. Therefore, depending on your case and type of claims, it may be· importllnt to move quickly to avoid the possibility that part or all of your claims are no lon~er within the relevant time period.

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