Randall B. Aiman-Smith (SBN 124599) AIMAN-SMITH & … · Abercrombie’s unique marketing strategy,...

Collective and Class Action Complaint Bojorquez, et al. v. Abercrombie & Fitch Co., et al. Case No.

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Randall B. Aiman-Smith (SBN 124599) Reed W.L. Marcy (SBN 191531) Hallie Von Rock (SBN 233152) Carey A. James (SBN 269270) AIMAN-SMITH & MARCY 7677 Oakport Street, Suite 1150 Oakland, California 94621 Telephone: 510.562.6800 Fax: 510.562.6830 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ALMA BOJORQUEZ, JAKE VALLANTE, MATTHEW ALLAN, and C’ENDAN CLAIBORNE, individually and on behalf of all others similarly situated,

Plaintiffs,

v. ABERCROMBIE & FITCH CO., ABERCROMBIE & FITCH STORES, INC., and DOES 1-10, inclusive,

Defendants.

Case No. COLLECTIVE AND CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF DEMAND FOR JURY TRIAL

Case: 2:16-cv-00551-MHW-TPK Doc #: 1 Filed: 12/15/15 Page: 1 of 37 PAGEID #: 1


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COLLECTIVE AND CLASS ACTION COMPLAINT

Plaintiffs, on behalf of themselves and all others similarly situated, are informed and believe

and thereupon allege the following:

I. INTRODUCTION

1. Defendants Abercrombie & Fitch Co. and Abercrombie & Fitch Stores, Inc. (together,

“Abercrombie”) own and operate retail stores, throughout the United States and internationally, under

the brand names Abercrombie & Fitch, Hollister, Abercrombie Kids, and Gilly Hicks. Abercrombie is

a specialty retailer selling clothing and accessories, primarily to children, teenagers, and young adults.

Abercrombie operates approximately 799 retail stores in the United States, including approximately 31

stores in Massachusetts, 70 stores in Florida, and 113 stores in California.

2. Plaintiffs bring these claims for Abercrombie’s violations of the federal Fair Labor

Standards Act (“FLSA”) and the laws of Massachusetts, Florida, and California. As explained more

fully below, Abercrombie violates the FLSA and the laws of Massachusetts and Florida by compelling

its employees to purchase Abercrombie clothing, resulting in failure to pay the minimum wage,

recapture of paid wages, unlawful deductions from wages, and unreimbursed expenditures for

employee uniforms. Abercrombie further violates these laws by requiring its employees to purchase

Abercrombie footwear or footwear from specific third parties designated by Abercrombie.

Abercrombie violates California law by placing employees on a “call-in” schedule without payment of

the minimum wage or reporting time pay.

3. Plaintiff Alma Bojorquez brings a collective action claim under § 216(b) of the FLSA,

and plaintiffs Jake Vallante, Matthew Allan, and C’endan Claiborne bring class action claims, for

respective violations of state law, under Federal Rule of Civil Procedure 23.

4. Abercrombie’s unlawful conduct as described herein was and is willful, knowing, and

intentional.

/ / /

/ / /

/ / /

/ / /



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II. NATURE OF CLAIMS

A. Clothing and Footwear Claims

5. By common policy, Abercrombie requires its employees to purchase and wear

Abercrombie clothing with their own funds and without reimbursement. These purchases are

compelled solely for Abercrombie’s benefit, specifically, to generate revenue and to fulfil

Abercrombie’s unique marketing strategy, which depends on employee dress and appearance as the

company’s sole means of advertising. Abercrombie pays the vast majority of non-exempt employees

minimum wage or at an hourly rate slightly above the legal minimum. By forcing these employees to

purchase Abercrombie clothing, Abercrombie pushes their wages below the legal minimum, recaptures

paid wages (i.e., receives wage “kick-backs”), takes unlawful deductions from wages, and requires the

unreimbursed purchase of uniforms.

6. These forced purchases violate the FLSA by pushing employees’ wages below the legal

minimum established by 29 U.S.C. § 206(a), thereby violating that statute as well as 29 U.S.C. §

203(m) and 29 C.F.R. §§ 531.3(d), 531.32(c), and 531.35.

7. Likewise, these purchases violate the laws of Massachusetts. Specifically, these

purchases: recapture wages paid to employees, thereby evading the requirement that all wages be paid

promptly, fully, and unconditionally, in violation of the Massachusetts Wage Act, M.G. L. c. 149, §§

148 and 150; constitute impermissible deductions from the Massachusetts minimum wage, in violation

of the Massachusetts Minimum Wage Act, M.G.L. c. 151, §§ 1 and 2, and 454 Mass. Code Regs. §§

27.05(1) and 27.05(5); and require the unreimbursed purchase of uniforms in violation of 454 Mass.

Code Regs. § 27.05(4)(c).

8. Likewise, these purchases violate the laws of Florida. Specifically, these purchases

result in payment of less than the minimum wage by requiring employees to make unreimbursed, out-

of-pocket expenditures for the benefit of the employer, in violation of Art. X, § 24(a) of the

Constitution of the State of Florida and the Florida Minimum Wage Act, Fla. Stat. § 448.110.

9. Abercrombie also requires its employees to purchase Abercrombie footwear, or specific

footwear from specific third parties designated by Abercrombie. These purchases are compelled to

generate revenue for Abercrombie, and/or require an employee uniform within the meaning of the



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FLSA and 454 Mass. Code Regs. § 27.02. Accordingly, Abercrombie’s footwear purchase

requirements constitute further violations of the federal and state laws identified in ¶¶ 6-8, above.

B. California Reporting Time and Minimum Wages Claims

10. By common policy, Abercrombie schedules many or all of its California store

employees for “call-in” shifts. Employees scheduled for such shifts must report to their store one hour

before their scheduled start time by calling the store, waiting for a manager to become available, and

receiving instruction on whether they are required to travel to the store to work the scheduled shift.

These calls last from two to ten minutes or more – time for which the employee is paid nothing.

Further, those employees who are instructed not to come into the store to perform further work are not

paid reporting time pay as required by law. Accordingly, Abercrombie’s call-in policy violates Cal.

Lab. Code §§ 200-204, 226, 1174, et seq., 1182.11, 1182.12, 1194(a), and 1197; I.W.C. Wage Order

No. 7, §§ 4 and 5; and Bus. & Prof. Code § 17200, et seq.

III. STUCTURE OF CLAIMS

11. Plaintiff Alma Bojorquez (the “FLSA Named Plaintiff”) brings a collective action claim

under § 216(b) of the FLSA against Abercrombie for unpaid minimum wage compensation and related

damages on behalf of herself and all other similarly situated non-exempt, hourly, non-management

employees working in Abercrombie stores nationwide from three years prior to the filing of this action

through the trial date.

12. Plaintiff Jake Vallante (the “Massachusetts Class Representative”) brings a class action

under Federal Rule of Civil Procedure 23, for Abercrombie’s violations of Massachusetts law, on

behalf of all persons employed by Abercrombie in Massachusetts as non-exempt, hourly, non-

management employees at any time from three years prior to the filing of this action through the trial

date.

13. Plaintiff Matthew Allan (the “Florida Class Representative”) brings a class action

under Federal Rule of Civil Procedure 23, for Abercrombie’s violations of Florida law, on behalf of all

persons employed by Abercrombie in Florida as non-exempt, hourly, non-management employees at

any time from five years prior to the filing of this action through the trial date.

/ / /



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14. Plaintiff C’endan Claiborne (the “California Class Representative”) brings a class action

under Federal Rule of Civil Procedure 23, for Abercrombie’s violations of California law, on behalf of

all persons employed by Abercrombie in California as non-exempt, hourly employees at any time from

four years prior to the filing of this action through the trial date, and who were scheduled to work at

least one call-in shift.

15. As used herein, “Plaintiffs” means all plaintiffs identified in ¶¶ 11-14, above.

IV. PARTIES

16. Defendant Abercrombie & Fitch Co. is a Delaware corporation with its principal place

of business in Ohio. Abercrombie & Fitch Co. does substantial business in this judicial district and

nationwide.

17. Defendant Abercrombie & Fitch Stores, Inc. is an Ohio corporation with its principal

place of business in Ohio. Abercrombie & Fitch Stores, Inc. does substantial business in this judicial

district and nationwide.

18. Plaintiff Alma Bojorquez, the FLSA Named Representative, is a resident of Rosemead,

California. Ms. Bojorquez has been employed by Abercrombie as a non-exempt retail sales associate

in California from December 2012 through the present. Ms. Bojorquez has worked at the following

Abercrombie stores: Gilly Hicks, Santa Anita Mall, Arcadia, CA, and Abercrombie & Fitch, Santa

Anita Mall, Arcadia, CA.

19. Attached hereto as Exhibit A is a true and correct copy of Ms. Bojorquez’s consent to

become a party plaintiff pursuant to 29 U.S.C. § 216(b).

20. Plaintiff Jake Vallante, the Massachusetts Class Representative, is a resident of Lowell,

Massachusetts. Mr. Vallante was employed by Abercrombie as a non-exempt retail sales associate in

Massachusetts, Florida, and New Hampshire from approximately 2011 through 2013. Mr. Vallante

worked at the following Abercrombie stores: Abercrombie & Fitch, Northshore Mall, Peabody, MA;

Hollister, Northshore Mall, Peabody, MA; Abercrombie Kids, Northshore Mall, Peabody, MA;

Hollister, Burlington Mall, Burlington, MA; Abercrombie Kids, Burlington Mall, Burlington, MA;

Abercrombie & Fitch, Pheasant Lane, Nashua, NH; and Abercrombie & Fitch, Mall at Millenia,

Orlando, FL.



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21. Mr. Vallante complied with the requirements of M.G. L. c. 149, § 150 by filing a

complaint with the Massachusetts Attorney General before filing this suit. Mr. Vallante filed his

complaint with the Massachusetts Attorney General on October 1, 2015, and Massachusetts Assistant

Attorney General Bruce Trager sent Mr. Vallante an Authorization for Immediate Private Suit on

November 4, 2015.

22. Plaintiff Matthew Allan, the Florida Class Representative, is a resident of Orlando,

Florida. Mr. Allan was employed by Abercrombie as a non-exempt retail sales associate in Florida

from approximately August 2008 through August 2013. Mr. Allan worked at the following

Abercrombie stores: Hollister, Seminole Towne Center, Sanford, FL, and Abercrombie & Fitch, Mall

at Millenia, Orlando, FL.

23. Mr. Allan complied with the requirements of Fla. Stat. § 448.110(6) by notifying

Abercrombie, in writing, of his intent to initiate this action. The notice sent to Abercrombie by Mr.

Allan identified the minimum wage to which Mr. Allan claims entitlement, the estimated work dates

and hours for which payment is sought, and the total amount of unpaid wages through the date of the

notice. Abercrombie received this notice on November 20, 2015. Attached hereto as Exhibit B is a

true and correct copy of the United States Postal Service receipt confirmation for Mr. Allan’s letter.

Mr. Allan waited (more than) fifteen days after Abercrombie’s receipt of this notice, but Abercrombie

failed to pay the total amount of unpaid wages due Mr. Allan or to otherwise resolve the claim to the

satisfaction of Mr. Allan. Accordingly, Mr. Allan now brings this claim for unpaid minimum wages.

24. Plaintiff C’endan Claiborne, the California Class Representative, is a resident of Los

Angeles, California. Mr. Claiborne was employed by Abercrombie as a non-exempt retail sales

associate in California from approximately September 2014 through November 2014. Mr. Claiborne

worked at the Abercrombie & Fitch store at the Third Street Promenade in Santa Monica, CA.

25. Plaintiffs are ignorant of the true names or capacities of defendants named herein as

Does 1 through 10, inclusive, and therefore sue these defendants by these fictitious names. When the

names and capacities of these defendants are ascertained, Plaintiffs will amend this complaint

accordingly. Each of the defendants named herein or designated as a Doe is liable or in some manner

legally responsible for the events alleged herein.



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V. VENUE AND JURISDICTION

26. This Court has original federal question jurisdiction under 28 U.S.C. § 1331 for the

claims brought under the FLSA, 29 U.S.C. § 201, et seq.

27. This Court has supplemental jurisdiction under 28 U.S.C § 1367 for all claims asserted

under the laws of Massachusetts, Florida, and California (the “State Law Claims”) because these

claims are part of the same case and controversy as the FLSA claims; the federal and State Law Claims

derive from a common nucleus of operative fact; the State Law Claims will not substantially dominate

over the FLSA claims; and exercising supplemental jurisdiction will be in the interests of judicial

economy, convenience, fairness, and comity.

28. Independently, this Court has original jurisdiction for the State Law Claims pursuant to

the Class Action Fairness Act, 28 U.S.C. § 1332, in that the estimated damages involved in the State

Law Claims will exceed $5,000,000 and the parties to this action are residents of different states.

29. The United States District Court for the Central District of California has personal

jurisdiction because Abercrombie conducts substantial business within this District.

30. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because Abercrombie has

offices, conducts substantial business, and can be found in the Central District of California, and the

causes of action set forth herein have arisen and occurred in part in the Central District of California.

Venue is further proper under 29 U.S.C. § 1132(e)(2) because Abercrombie has substantial business

contacts within the state of California.

VI. FACTUAL ALLEGATIONS

A. FLSA, Massachusetts, and Florida Clothing and Footwear Claims

31. Abercrombie is a specialty retailer selling clothing and accessories, primarily to

children, teenagers, and young adults. Abercrombie owns and operates retail stores, throughout the

United States and internationally, under the brand names Abercrombie & Fitch, Hollister, Abercrombie

Kids, and Gilly Hicks. Abercrombie operates approximately 799 retail stores in the United States,

including approximately 113 stores in California, 31 stores in Massachusetts, and 70 stores in Florida.

/ / /

/ / /



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32. Abercrombie employs and has employed Plaintiffs as non-exempt hourly employees in

Abercrombie stores throughout the United States, including in California, Massachusetts, and Florida.

33. Abercrombie pays each new non-exempt, hourly employee minimum wage, and the

vast majority of such employees are paid minimum wage and/or an hourly rate slightly above the legal

minimum for the duration of their employment.

34. The bulk of Abercrombie’s non-exempt employees are classified as either “models” or

“impact” associates. Models serve customers on the salesfloor. Impact associates are responsible for

inventory and stocking tasks, but spend substantial time on the salesfloor arranging merchandise and

helping customers. The term “model” is also used by Abercrombie as a short-hand for any employee

working in a store.

35. Abercrombie does little or no traditional advertising. Instead, it relies on employee

appearance and dress as its primary marketing tool. As Abercrombie acknowledged in another suit:

“Abercrombie’s primary method of advertising its products is through the in-store experience … most

importantly the store associates who are called Models. Abercrombie’s Models are its primary

marketing tool and a Model’s primary job is to represent the Abercrombie brand to customers.”

36. For this strategy to work, Abercrombie must ensure that its employees wear

Abercrombie clothing at all times. Accordingly, Abercrombie maintains a uniform policy compelling

employees to purchase and wear Abercrombie clothing, and this policy is implemented and enforced

by carefully-orchestrated, top-down, uniform practices.

37. All Abercrombie employees must adhere to Abercrombie’s dress code, known as the

“Look Policy,” which is contained in Abercrombie’s Store Associate Handbook. The Look Policy

requires that all employees “represent the brand”; wear clothing that reflects “what a customer would

expect to see when they think about the brand”; wear clothing in the same “style” and “fit” as

Abercrombie clothing; and wear clothing consistent with Abercrombie’s “current fashion season and

colors.” Abercrombie’s current seasons and colors are detailed in “Style Guides” or “AAA” booklets

that are disseminated four to eight times a year and contain pictures of specific articles of Abercrombie

clothing called “AAAs.” Accordingly, the Look Policy requires that employees wear clothing that is

not only similar to Abercrombie clothing generally, but to a select, frequently-changing subset of



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highly distinctive Abercrombie items. Further, the Look Policy prohibits clothing “that has an obvious

label, name, logo, or identifiable trademark (i.e., pocket stitching) of a competitor.” By these

provisions, the Look Policy excludes all non-Abercrombie clothing as acceptable workwear. The

message is clear: Wear Abercrombie clothing or you will not work.

38. This requirement is central to Abercrombie’s business model. As Abercrombie

explained in a recent brief filed with the United States Supreme Court: “Abercrombie does little or no

advertising and the strength of its brand is based on adherence to the Look Policy.”

39. Director of stores Chad Moorefield testified on behalf of the company pursuant to

F.R.C.P. 30(b)(6) as follows:

Q. What are the model’s tasks with respect to representing the brand? A. That they would come in and follow our Look Policy … They would wear our merchandise that’s representative of that season, or merchandise close to that season ….We believe that in our core values that people that aren’t wearing our merchandise, when you come into a store, then you’re not representing the brand; therefore you’re representing other brands.

Mr. Moorefield also testified: “The main part of their job is that they’re advertising in our stores.

So when a customer comes in, they represent our clothing first and foremost.”

40. Similarly, human resources employee Bob Nava recounted instructing a store employee

requesting a religious accommodation to the Look Policy as follows: “I explained the business strategy

of having associates in the model position and how they market our clothing …. I explained how

important her job as a model was to the business and marketing our products.”

41. Similarly, associate legal counsel Ryan Kirk recounted instructing a store employee

requesting a religious accommodation as follows: “Discussed that as [name redacted] is currently

employed as a model, that position is the representative of the brand and as like any job in Modeling

part of that is to showcase the clothes and style of the brand and a Model can’t have anything covering

clothing they are supposed to showcase …. Asked again then if was any chance she could wear the

Hijab like we want for the Model position (i.e., would only cover top of head … and that way it

doesn’t cover any clothing in front so customers can see she is representing the brand/clothing.” Mr.

Kirk described the “requirements of show-casing the clothes as the primary function” of the model

position.



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42. By the same mechanisms described above, Abercrombie also requires its employees to

purchase and wear Abercrombie footwear, specifically, flip-flops, or other specific footwear for the

employer’s benefit. The Look Policy requires employees to wear rubber flip flops “in current style

colors,” leather flip flops, “lo-top canvas Converse” in specific colors, or “lo-top slip-on Vans” in

specific colors. Accordingly, employees must purchase and wear Abercrombie flip-flops, or shoes of a

distinctive design, in specific colors, made by third parties designated by Abercrombie. All such

footwear, whether purchased from Abercrombie or not, is part of a uniform as that term is defined by

the FLSA and Massachusetts law.

B. California Reporting Time and Minimum Wage Claims

43. By common policy, Abercrombie schedules many or all of its California store

employees for “call-in” shifts. These shifts, which are displayed on each store’s employee schedule,

require employees to call their store one hour before the start of each call-in shift for which they are

scheduled. When placing such calls, employees must speak with a manager, who then determines

whether the employee must physically come in to the store for the length of the scheduled call-in shift.

These calls take anywhere from two to ten minutes or more. Call-in shifts are mandatory, and those

employees failing to call at the required time are subject to discipline – just as if they had missed a

regular shift – up to and including termination. Failing to report as required for two call-in shifts “is

considered abandoning your job” and may result in termination.

44. Employees may be scheduled for several call-in shifts each week. Abercrombie’s call-

in shift policy imposes severe restrictions on employee’s lives. Employees must make themselves

available for set periods, for Abercrombie’s benefit and convenience, without any reciprocal promise

that they will be allowed to work during that period. Employees are thus forced to forego other

employment and income; forced to forgo the ability to schedule any personal activities such as medical

appointments, school activities, or child care; are geographically tethered to within an hour’s drive of

their store’s location; forced to pay the costs of any child care they schedule to cover their shifts in

advance, or to arrange child care on the spot with the risk of discipline if they miss or are late for their

shift as a result; and are precluding from earning a living wage because their wages fluctuate wildly

and may drop to zero if they are not called in in a given week. In short, employees’ lives are tailored



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to fit Abercrombie’s needs – an encumbrance for which Abercrombie pays nothing – all while

Abercrombie reabsorbs those wages it does pay with forced clothing purchases.

C. Facts Related to Willfulness of Violations

45. The violations of law described herein were and are knowing, intentional, and willful.

Abercrombie compels its employees to purchase its clothing by systematic, calculated, and company-

wide policy, implemented by, inter alia, drafting and enforcing marketing strategies and job definitions

which require employees to market and wear Abercrombie clothing. Abercrombie’s call-in policy is

an immutable, uniform, and company-wide policy. Abercrombie is advised by sophisticated and

informed legal counsel and human resources professionals who were, or should have been, aware of

the minimum wage, wage payment, uniform, reporting time pay, and other requirements of the FLSA

and state law. Abercrombie therefore acted in knowing violation of the law.

46. Abercrombie has been put on notice of the unlawfulness of its forced clothing purchases

by numerous lawsuits, including: Division of Labor Standards Enforcement, Department of Industrial

Relations, State of California v. Abercrombie & Fitch Stores, Inc., et al., Orange County Superior

Court Case No. 03-CC-08249; Gualano, et al. v. Abercrombie & Fitch, United States District Court for

the Western District of Pennsylvania Case No. 03-0356; and Brown, et al. v. Abercrombie & Fitch Co.,

et al., United States District Court for the Central District of California Case No. 2:14-cv-01242.

47. Further, in April 2015, the Attorney General of New York informed Abercrombie (and

12 other major retailers) that its call-in practices likely violate New York law, stating:

Our office has received reports that a growing number of employers, particularly in the retail industry, require their hourly workers to work what are sometimes known as ‘on call shifts’ – that is, requiring their employees to call in to work just a few hours in advance, or the night before, to determine whether the worker needs to appear for work that day or the next …. If the employee is told that his or her services are not needed, the employee will receive no pay for that day … For many workers, that is too little time to make arrangements for family needs, let alone to find an alternative source of income to compensate for the lost pay.

Abercrombie subsequently announced that it will, in time, discontinue its on-call practices. Still,

despite California reporting time pay requirements nearly identical to those of New York,

Abercrombie’s call-in practices continue unabated in California.



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48. The result of Abercrombie’s unlawful policies is that Abercrombie willfully fails to pay

minimum wage compensation, recaptures paid wages, takes unlawful deductions from wages, requires

the unreimbursed purchase of employee uniforms, fails to pay employees reporting time pay, issues

inaccurate wage statements, and fails to pay all compensation due at the cessation of employment. The

fruit of these unlawful practices is millions of dollars annually in ill-gained profits at the expense of

employees, as evidenced, inter alia, by internal review and analysis of the enormous revenue generated

by employee clothing sales.

VII. LEGAL ALLEGATIONS

A. Clothing and Footwear Claims

1. The Fair Labor Standards Act

49. The FLSA requires employers to pay all non-exempt employees at least the minimum

wage for all hours worked. 29 U.S.C. § 206(a). The FLSA’s implementing regulations prohibit the

recapture of wages by the employer for the employer’s benefit, or “kick-backs.” Specifically, 29

C.F.R. § 531.35 provides, in pertinent part: “‘wages’ cannot be considered to have been paid by the

employer and received by the employee unless they are paid finally and unconditionally or ‘free and

clear.’ The wage requirements of the Act will not be met where the employee ‘kicks-back’ directly or

indirectly to the employer or to another person for the employer’s benefit the whole or part of the wage

delivered to the employee.” Likewise, the cost of furnishing goods or services to employees –

“facilities” – may not be deducted from wages if those facilities are “primarily for the benefit or

convenience of the employer.” 29 C.F.R. §§ 531.3(d)(1), 531.32(c).

50. Here, Abercrombie’s forced purchases of company clothing and footwear, and footwear

from specific third-parties, are solely for Abercrombie’s benefit. First, the purchases of Abercrombie

clothing and footwear are compelled for the purpose of generating revenue for Abercrombie. Second,

the clothing and footwear purchased by employees, whether made by Abercrombie or not, constitutes a

uniform, which is always for the employer’s benefit. 29 C.F.R. § 531.3(d)(2).

51. Clothing is a uniform where an employer prescribes a “specific type and style of

clothing to be work at work,” e.g., clothing of a “specific or distinctive style, color, or quality.” U.S.

Dep’t of Labor, Field Operations Handbook § 30c12(f). Clothing is not a uniform where, inter alia,



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the employer prescribes a “general type of ordinary basic street clothing.” Id. (emphasis added). Here,

Abercrombie requires that employees wear Abercrombie clothing and footwear, and/or footwear in

specific colors made by specific third-parties identified by Abercrombie. Such clothing and footwear

is, by definition, of a specific and distinctive type, style, and color. Likewise, the clothing prescribed

by Abercrombie is not a “general type” of ordinary clothing, but rather is of a specific brand –

Abercrombie itself; and the footwear prescribed by Abercrombie is also of a specific brand or brands.

52. By forcing employees to purchases its clothing, Abercrombie violates the FLSA,

including 29 U.S.C. § 206(a) and 29 C.F.R. §§ 531.3(d), 531.32(c), and 531.35.

53. Abercrombie’s footwear requirements, as described above, violate these same

provisions of federal law.

54. Accordingly, pursuant 29 U.S.C § 216(b), the FLSA Named Representative seeks

damages, liquidated (double) damages, injunction, attorneys’ fees, and costs on behalf of herself and

all others similarly situated.

2. Massachusetts Law

55. The Massachusetts Wage Act (“MWA”), M.G. L. c. 149, § 148, requires the timely

payment of wages. An employer may not circumvent this requirement by “special contract or by any

other means.” Id. An employer violates the MWA by deducting from, withholding, or recapturing an

employee’s earned wages. See, id.; Camara v. Attorney General, 458 Mass. 756, 760 (2011); Awuah

v. Coverall North Am., 460 Mass. 484, 493 (2011). By requiring employees to return a portion of their

wages by purchasing company clothing, Abercrombie violates the MWA. This recapture of wages, or

“chargeback,” “operate[s] to require employees to buy their jobs,” in violation of Massachusetts public

policy. See, Awuah, 460 Mass. at 493, 497-98, citing 29 C.F.R. § 531.35 and quoting Adams v.

Tanner, 244 U.S. 590, 604 (1917) (Brandeis, J., dissenting) (“paying for the privilege of going to work,

and paying more the more urgently the job is needed, not only keeps people unnecessarily

unemployed, but seems foreign to the spirit of American freedom and opportunity”), and 497 n. 23

(discussing “the potentially exploitative nature of payments by an employee to an employer for the

purpose of securing employment”).

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56. Further, the Massachusetts Minimum Wage Act (“MMWA”), M.G.L. c. 151, §§ 1 and

2, requires that employers pay all employees at least the minimum wage. An employer violates the

MMWA by making unauthorized deductions from the minimum wage. 454 C.M.R. § 27.05(1). An

employer may not make “indirect deductions” from the minimum wage, that is, “an employer may not

separately charge or bill an employee for fees or amounts not allowed as deductions.” 454 C.M.R. §

27.05(5). By requiring employees to purchase its clothing, Abercrombie makes improper deductions

from the minimum wage in violation of the MMWA.

57. Lastly, Massachusetts law requires employers to reimburse employees for the purchase

of work uniforms. 454 CMR 27.05(4)(c). “Uniform” is defined as “special apparel, including

footwear, which is worn by an employee as a condition of employment,” which condition is presumed

if such apparel is “of similar design, color, or material, or it forms part of the decorative pattern of the

establishment to distinguish a person as an employee of the place of work.” 454 CMR 27.02. By

requiring its employees to purchase and wear its clothing, Abercrombie improperly compels

unreimbursed uniform purchases.

58. Abercrombie’s footwear requirements, as described above, violate these same

provisions of Massachusetts law.

59. Accordingly, pursuant to M.G. L. c. 149, § 150; M.G. L. c. 151, § 20; F.R.C.P. 23; and

other applicable law, the Massachusetts Class Representative seeks damages, liquidated (treble)

damages, injunction, attorneys’ fees, and costs on behalf of himself and all others similarly situated.

3. Florida Law

60. Florida’s Constitution and the Florida Minimum Wage Act (“FMWA”) require

employers to pay all employees at least the minimum wage. Art. X, § 24(a) Fla. Const.; Fla. Stat. §

448.110. The FMWA requires employers to reimburse employees for expenses benefitting the

employer so that employee wages do not fall below the legal minimum after accounting for

employment-related expenses (“kick-backs”). By requiring its employees to purchase Abercrombie

clothing and footwear, Abercrombie violates Florida’s minimum wage laws.

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61. Accordingly, pursuant to Article 10, § 24(e) of the Florida Constitution; Fla. Stat. §

448.110(6)(a) and (c); F.R.C.P. 23; and other applicable law, the Florida Class Representative seeks

damages, liquidated (double) damages, injunction, attorneys’ fees, and costs on behalf of himself and

all others similarly situated.

B. California Reporting Time and Minimum Wage Claims

62. California law requires that employers pay all employees at least minimum wage for all

hours worked. Cal. Lab. Code §§ 204, 1194(a), 1197. By requiring employees scheduled for call-in

shifts to call Abercrombie, without compensation, to receive instruction on whether to perform further

work, Abercrombie fails to pay minimum wage for all hours worked. Further, California law requires

that employers pay employees who report to work, but are not then permitted to work a shift, wages for

half of the unworked shift or for two hours, whichever is more. I.W.C. Wage Order No. 7, § 5(A).

Abercrombie pays nothing to employees scheduled for call-in shifts who, after calling their store to

report, are not instructed to perform further work that day. Accordingly, Abercrombie fails to pay

reporting time pay as required by California law. By willfully failing to pay minimum wage and

reporting time pay as described above, Abercrombie also fails to provide accurate wage statements and

to pay all wages due upon cessation of employment, as required by Cal. Lab. Code §§ 201, 202, and

226; and engages in unfair and unlawful business practices, in violation of Cal. Bus. & Prof. Code §

17200, et seq.

63. Accordingly, pursuant to Cal. Lab. Code §§ 203, 204, 218, 218.6, 226(e), 1194, 1194.2,

and 1197.1; Cal. Bus. & Prof. Code § 17200, et seq.; Cal. Civ. Code § 1021.5; FRCP 23; and other

applicable law, the California Class Representative seeks damages, liquidated (double) damages,

restitution, injunction, attorneys’ fees, and costs on behalf of himself and all others similarly situated.

VIII. COLLECTIVE ACTION ALLEGATIONS

64. The FLSA Named Plaintiff brings cause of action one (the “FLSA Claim”), as a

nationwide “opt-in” collective action pursuant to 29 U.S.C. § 216(b), on behalf of herself and the

following class (the “FLSA Class”):

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All persons employed in the United States as non-exempt, hourly, non-management employees at Abercrombie & Fitch, Abercrombie Kids, Hollister and/or Gilly Hicks stores at any time from three years prior to the filing of this action through the trial date (the “FLSA Collective Action Period”).

65. The FLSA Claim may be pursued by those who opt-in to this case, pursuant to 29

U.S.C. § 216(b).

66. The FLSA Named Plaintiff, individually and on behalf of other similarly situated

employees, seeks relief on a collective basis challenging Abercrombie’s forced clothing and footwear

purchases, which result in wage kick-backs and improper deductions from wages for Abercrombie’s

benefit, thereby pushing the wages of the FLSA Class below the legal minimum.

67. The number and identity of other plaintiffs yet to opt-in and consent to be party

plaintiffs may be determined from Abercrombie’s records, and potential class members may easily and

quickly be notified of the pendency of this action.

IX. CLASS ACTION ALLEGATIONS

68. The claims raised by the Massachusetts, Florida, and California Class Representatives

are properly maintainable on a class action basis under FRCP 23(a), (b)(2), and (b)(3).

A. Class Action Requisites (Local Rule 23-2.2)

1. Class Definitions

a. The Massachusetts Rule 23 Class

69. The Massachusetts Class Representative brings causes of action two through four as a

class action pursuant to FRCP 23(b)(3) on behalf of himself and the following class (the

“Massachusetts Rule 23 Class”):

All persons employed in Massachusetts as non-exempt, hourly, non-management employees at Abercrombie & Fitch, Abercrombie Kids, Hollister, and/or Gilly Hicks stores at any time from three years prior to the filing of this action through the trial date (the “Massachusetts Class Period”).

b. The Florida Rule 23 Class

70. The Florida Class Representative brings causes of action five and six as a class action

pursuant to FRCP 23(b)(3) on behalf of himself and the following class (the “Florida Rule 23 Class”):

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All persons employed in Florida as non-exempt, hourly, non-management employees at Abercrombie & Fitch, Abercrombie Kids, Hollister, and/or Gilly Hicks stores at any time from five years prior to the filing of this action through the trial date (the “Florida Class Period”).

c. The California Rule 23 Class

71. The California Class Representative brings causes of action seven through eleven as a

class action pursuant to FRCP 23(b)(3) on behalf of himself and the following class (the “California

Rule 23 Class”)

All persons employed in California as non-exempt, hourly employees at Abercrombie & Fitch, Abercrombie Kids, Hollister, and/or Gilly Hicks stores any time from four years prior to the filing of this action through the trial date (the “California Class Period”), and who were scheduled to work at least one call-in shift (as shown by Abercrombie’s records). 2. Propriety of Certification Under FRCP 23(a)

a. Numerosity

72. The members of the Massachusetts, Florida, and California Rule 23 Classes are so

numerous that joinder of all members is impractible. The exact number is currently unknown to

Plaintiffs, but each of these classes likely includes between 15,000 and 65,000 members.

b. Adequacy

73. The Massachusetts, Florida, and California Class Representatives (collectively, the

“Class Representatives”) will fairly and adequately protect the interests of their respective classes. The

Class Representatives have retained competent and capable attorneys who are experienced trial

lawyers with significant experience in complex and class action litigation, including employment

litigation. Class counsel has been litigating a similar case against Abercrombie in this District,1 now

certified as a class action on behalf of approximately 62,000 Abercrombie employees in California,2

for more than two years. The Class Representatives and their counsel are committed to prosecuting

1 Alexander Brown, et al. v. Abercrombie & Fitch Co, et al., U.S. District Court for the Central District of California, Case No. 2:14-cv-01242-JGB-VBK. 2 Id., Doc No. 108.



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this action vigorously on behalf of the various classes and have the financial resources to do so.

Neither the Class Representatives nor their counsel have interests that are contrary to or that conflict

with those of the proposed classes.

c. Commonality

74. There are numerous questions of law and fact common to the Massachusetts, Florida,

and California Rule 23 Classes. These questions include, but are not limited to, the following: (1)

whether Abercrombie, as a matter of uniform policy, requires employees to purchase Abercrombie

clothing and/or footwear; (2) whether Abercrombie, as a matter of uniform policy, requires employees

to purchase distinctive footwear from third-parties designated by Abercrombie; (3) whether

Abercrombie’s policies related to employee clothing purchases and/or employee dress violate the

minimum wage, wage payment, and wage deduction laws of Massachusetts and Florida; (4) whether

the clothing and/or footwear required by Abercrombie constitutes a uniform under the laws of

Massachusetts; and, if so, whether members of the Massachusetts Rule 23 Classes are entitled to

reimbursement for the purchase of such uniforms; (5) whether Abercrombie, as a matter of uniform

policy, schedules California employees for call-in shifts; (6) whether Abercrombie’s call-in practices

result in failure to pay members of the California Rule 23 Class minimum wage and reporting time

pay; (7) whether Abercrombie fails to provide members of the California Rule 23 Class accurate,

itemized wage statements in accordance with California law; (8) whether Abercrombie fails to pay

members of the California Rule 23 Class all wages due at the cessation of employment in accordance

with California law; (9) whether Abercrombie’s call-in practices are unlawful and/or unfair under Cal.

Bus. & Prof. Code § 17200, et seq.; (10) the proper formula for calculating wages, damages, waiting

time and other statutory penalties owed to class members; (11) whether Abercrombie will, unless

enjoined, continue the practices alleged herein; and (12) the terms and conditions of any injunction to

be issued against Abercrombie.

d. Typicality

75. The claims of each Class Representative are typical of the claims of their respective

classes. The Class Representatives and all members of their respective classes were subjected to the

same policies and procedures. Likewise, the Class Representatives’ claims arise out of Abercrombie’s



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common course of conduct, and are based on the same legal and remedial theories as the claims of the

members of their respective classes.

3. Propriety of Certification Under FRCP 23(b)(2)

76. Class certification of the respective classes is appropriate under FRCP 23(b)(2) because

Abercrombie has acted and/or refused to act on grounds generally applicable to the respective classes,

making appropriate declaratory and injunctive relief with respect to Plaintiffs and the class as a whole.

The class members are entitled to injunctive relief to end Abercrombie’s common, uniform, and unfair

policies and practices as described herein.

4. Propriety of Certification Under FRCP 23(b)(3)

a. Predominance

77. Questions of law and fact common to class members predominate over any questions

affecting only individual members. Adjudication of these common issues in a single action has

important and desirable advantages of judicial economy. Moreover, there are no unusual difficulties

likely to be encountered in the management of this case as a class action.

b. Superiority

78. The class action mechanism is superior to any alternatives that might exist for the fair

and efficient adjudication of these claims. Prosecution of this case as a class action will permit a large

number of injured parties to pursue their common claims in a single forum, at the same time, which

will promote efficiency, prevent duplication of evidence and efforts, and preserve judicial resources

and the resources of the parties. A class action will avoid potentially inconsistent results in numerous

individual trials or other judicial actions. Further, class treatment is the only realistic means by which

Plaintiffs and the proposed class members – almost all of whom are young (16 to 22 years old) and

without substantial resources – can effectively litigate against a large, well-represented corporate

defendant like Abercrombie. In the absence of a class action, Abercrombie will be unjustly enriched

by the retention of the fruits and benefits of its unlawful conduct. A multiplicity of repetitive

individual actions would also place an enormous burden on the courts.

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5. Nature of Notice

79. Upon certification of the claims of the Massachusetts, Florida, and California Rule 23

Classes, Plaintiffs will submit to the Court proposed notices to class members in conformity with

FRCP 23(c)(2). The proposed notices to class members will be the best practicable, and will clearly

and concisely state in plain, easily understood language: (1) the nature of the action; (2) the definition

of the classes certified; (3) the class claims and issues; (4) that a class member may enter an

appearance through an attorney if the member so desires; (5) that the Court will exclude from the

classes any member who requests exclusion; (6) the time and manner for requesting exclusion; and (7)

the binding effect of a class judgment on members under FRCP 23(c)(3).

X. CAUSES OF ACTION

FIRST CAUSE OF ACTION Violation of Fair Labor Standards Act

(29 U.S.C. §§ 206(a), 216(b); 29 C.F.R. §§ 531.3(d)(1), 531.32(c), 531.35) Brought by the FLSA Named Plaintiff on Behalf of Herself and All Others Similarly Situated

80. Plaintiffs incorporate by reference all preceding paragraphs as though fully set forth

herein.

81. At all times material herein, the FLSA Named Plaintiff and each member of the FLSA

Class has been entitled to the rights, protections, and benefits provided under the FLSA, 29 U.S.C. §

201, et seq.

82. The FLSA requires, among other things, the payment of minimum wages to employees

engaged in commerce, engaged in the production of goods for commerce, or employed in an enterprise

engaged in commerce or in the production of goods for commerce. 29 U.S.C. § 206(a).

83. Abercrombie is subject to the minimum wage requirements of the FLSA because

Abercrombie and its employees are engaged in commerce and/or in the production of goods for

commerce.

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84. Abercrombie violates the FLSA by failing to pay the FLSA Named Plaintiff and each

member of the FLSA Class the legal minimum wage. These violations arise from forced clothing

purchases, as described herein, which constitute wage kick-backs and unreimbursed expenditures for

Abercrombie’s benefit, including for uniforms, in violation of 29 U.S.C. § 206(a) and 29 C.F.R. §§

531.3(d), 531.32(c), and 531.35.

85. The FLSA exempts certain categories of employees from the minimum wage

requirements of the Act. 29 U.S.C. § 213. None of these exemptions applies to the FLSA Named

Plaintiff, nor to any member of the FLSA Class.

86. The FLSA Named Plaintiff and all members of the FLSA Class are victims of

Abercrombie’s uniform policies and practices as described herein. Abercrombie applies these uniform

policies and practices to all store employees, including the FLSA Named Plaintiff and each member of

the FLSA Class.

87. The FLSA Named Plaintiff and each member of the FLSA Class are entitled to damages

equal to their unpaid minimum wages within the three years preceding the filing of this complaint

because Abercrombie acted willfully and knew, or showed reckless disregard of whether, its conduct

was prohibited by the FLSA.

88. Abercrombie has acted neither in good faith nor with reasonable grounds to believe that

its actions complied with the FLSA. Accordingly, the FLSA Named Plaintiff and the FLSA Class are

entitled to recover liquidated damages pursuant to 29 U.S.C. § 216(b). Alternatively, should the Court

find that Abercrombie acted in good faith, the FLSA Named Plaintiff and the FLSA Class are entitled

to an award of pre-judgment interest at the applicable legal rate.

89. As a result of Abercrombie’s willful violations of the FLSA as described herein,

minimum wage compensation has been unlawfully withheld from the FLSA Named Plaintiff and the

FLSA Class. Abercrombie is therefore is liable for compensatory damages pursuant to 29 U.S.C. §

216(b), together with an additional amount as liquidated damages, pre-judgment and post-judgment

interest, reasonable attorneys’ fees, costs of this action, injunction, and such other legal and equitable

relief as the Court deems just and proper.

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SECOND CAUSE OF ACTION Violation of the Massachusetts Wage Act

(M.G.L. c. 149, §§ 148, 150) Brought by the Massachusetts Class Representative on Behalf of Himself and All Other

Similarly Situated


herein.

91. The Massachusetts Wage Act (“MWA”), M.G. L. c. 149, § 148, requires the timely,

unconditional payment of wages and prohibits deductions from, or the recapture of, employee wages.

92. Abercrombie violated (and continues to violate) the MWA by requiring the

Massachusetts Class Representative and each member of the Massachusetts Rule 23 Class to return a

portion of their wages by purchasing company clothing and footwear, as alleged herein.

93. As a direct and proximate result of Abercrombie’s violations of the MWA, the

Massachusetts Class Representative and each member of the Massachusetts Rule 23 Class has been

injured and has sustained damages, including lost compensation, in an amount to be proved at trial.

94. Accordingly, pursuant to M.G. L. c. 149, § 150 and F.R.C.P. 23, the Massachusetts

Class Representative seeks damages, liquidated (treble) damages, injunction, attorneys’ fees, and costs

on behalf of himself and all others similarly situated.

THIRD CAUSE OF ACTION Violations of the Massachusetts Minimum Wage Act (M.G.L. c. 151, §§ 1, 2, and 20; 454 C.M.R. § 27.05)

Brought by the Massachusetts Class Representative on Behalf of Himself and All Other Similarly Situated


herein.

96. The Massachusetts Minimum Wage Act (“MMWA”), M.G.L. c. 151, §§ 1 and 2,

requires that employers pay all employees at least the minimum wage.

97. An employer violates the MMWA by making unauthorized deductions from the

minimum wage. 454 C.M.R. § 27.05(1).

98. An employer may not make “indirect deductions” from the minimum wage, that is, “an

employer may not separately charge or bill an employee for fees or amounts not allowed as

deductions.” 454 C.M.R. § 27.05(5).



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99. Abercrombie violated (and continues to violate) the MMWA and 454 C.M.R. § 27.05

by requiring the Massachusetts Class Representative and each member of the Massachusetts Rule 23

Class to purchase its clothing and footwear, as alleged herein.

100. As a direct and proximate result of Abercrombie’s violations of the MWA and 454

C.M.R. § 27.05, the Massachusetts Class Representative and each member of the Massachusetts Rule

23 Class has been injured and has sustained damages, including lost compensation, in an amount to be

proved at trial.

101. Accordingly, pursuant to M.G. L. c. 151, § 20 and F.R.C.P. 23, the Massachusetts Class

Representative seeks damages, liquidated (treble) damages, injunction, attorneys’ fees, and costs on

behalf of himself and all others similarly situated.

FOURTH CAUSE OF ACTION Unreimbursed Uniform Purchases (Massachusetts)

(M.G.L. c. 149, §§ 148, 150; 4 M.G.L. c. 151, §§ 1, 2, and 20; 54 CMR 27.05) Brought by the Massachusetts Class Representative on Behalf of Himself and All Other

Similarly Situated


herein.

103. The clothing and footwear required by Abercrombie constitutes a uniform as that term

is defined by Massachusetts law. Massachusetts law requires employers to reimburse employees for

the purchase of work uniforms. 454 CMR 27.05(4)(c).

104. Abercrombie violated (and continues to violate) this law by requiring the Massachusetts

Class Representative and each member of the Massachusetts Rule 23 Class to purchase and wear its

clothing and footwear, as alleged herein.

105. As a direct and proximate result of Abercrombie’s requirement that employees purchase

and wear uniforms without reimbursement, the Massachusetts Class Representative and each member

of the Massachusetts Rule 23 Class has been injured and has sustained damages, including lost

compensation, in an amount to be proved at trial.

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106. Accordingly, pursuant to M.G. L. c. 149, § 150; M.G.L. c. 151, § 20; 454 CMR

27.05(4)(c); F.R.C.P. 23; and other applicable law, the Massachusetts Class Representative seeks

damages, liquidated (treble) damages, injunction, attorneys’ fees, and costs on behalf of himself and all

others similarly situated.

FIFTH CAUSE OF ACTION Failure to Pay Minimum Wage (Florida)

(Florida Constitution, Art. X, § 24(a) Florida; Fla. Stat. § 448.110, et seq.) Brought by the Florida Class Representative on Behalf of Himself and All Other Similarly

Situated


herein.

108. Florida’s Constitution and the Florida Minimum Wage Act (“FMWA”) require

employers to pay all employees at least the minimum wage. Art. X, § 24(a) Fla. Const.; Fla. Stat. §

448.110. The FMWA requires employers to reimburse employees for expenses benefitting the

employer so that employee wages do not fall below the legal minimum after accounting for

employment-related expenses.

109. Abercrombie systematically and willfully violated (and continues to violate) Florida’s

minimum wage laws by requiring the Florida Class Representative and each member of the Florida

Rule 23 Class to purchase and/or purchase and wear Abercrombie clothing and footwear, as alleged

herein.

110. As a direct and proximate result of Abercrombie’s violations of the Florida Constitution

and the FMWA, the Florida Class Representative and each member of the Florida Rule 23 Class has

been injured and has sustained damages, including lost compensation, in an amount to be proved at

trial.

111. Accordingly, pursuant to Article 10, § 24(e) of the Florida Constitution; Fla. Stat. §

448.110(6)(a) and (c); and F.R.C.P. 23, the Florida Class Representative seeks damages, liquidated

(double) damages, injunction, attorneys’ fees, and costs on behalf of himself and all others similarly

situated.

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SIXTH CAUSE OF ACTION Unjust Enrichment (Florida)

Brought by the Florida Class Representative on Behalf of Himself and All Other Similarly Situated


herein.

113. The Florida Class Representative and each member of the Florida Rule 23 Class has

conferred benefits on Abercrombie by purchasing Abercrombie clothing and footwear, at their own

expense, at the insistence of Abercrombie, in order to generate revenue for Abercrombie and/or to

fulfil Abercrombie’s marketing strategy. Said plaintiffs were thus compelled to forfeit money solely

for Abercrombie’s benefit – to boost the company’s bottom line and to serve as walking billboards for

Abercrombie, thus shifting Abercrombie’s advertising costs onto plaintiffs’ backs.

114. Abercrombie thus knowingly and willingly obtained monetary benefits to which it was

not entitled from the Florida Class Representative and each member of the Florida Rule 23 Class.

115. Under the circumstances described herein, it is inequitable for Abercrombie to retain

this monetary benefit at the expenses of said plaintiffs.

116. By engaging in the conduct alleged herein, Abercrombie has been unjustly enriched at

the expense of the Florida Class Representative and each member of the Florida Rule 23 Class, and is

required, in equity and good conscience, to compensate said plaintiffs for harm suffered as a result of

its actions.

117. As a direct and proximate result of Abercrombie’s unjust enrichment, The Florida Class

Representative and each member of the Florida Rule 23 Class has suffered injury and is entitled to

reimbursement, restitution, and disgorgement by Abercrombie of the benefit conferred by said

plaintiffs.

SEVENTH CAUSE OF ACTION Failure to Pay Minimum Wage (California)

(Cal Lab. Code §§ 204, 218, 218.6, 1182.11, 1182.12, 1194, 1194.2, 1197, and 1197.1; I.W.C. Wage Order No. 7, § 4)

Brought by the California Class Representative on Behalf of Himself and All Other Similarly Situated


herein.



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119. California law requires that employers pay all employees at least minimum wage for all

hours worked. Cal. Lab. Code §§ 204, 1182.11, 1182.12, 1194(a), 1197; I.W.C. Wage Order No. 7, §

4.

120. Abercrombie violated (and continues to violate) these provisions of California law by

requiring the California Class Representative and each member of the California Rule 23 Class to call

Abercrombie, without compensation, to receive instruction on whether to perform further work, as

alleged herein.

121. As a direct and proximate result of Abercrombie’s failure to pay at least the minimum

wage for all hours worked, the California Class Representative and each member of the California

Rule 23 Class has been injured and has sustained damages, including lost compensation, in an amount

to be proved at trial.

122. Accordingly, pursuant to Cal. Lab. Code §§ 204, 218, 218.6, 1194(a), 1194.2, and

1197.1; Cal. Civ. Code § 1021.5; FRCP 23; and other applicable law, the California Class

Representative seeks damages, liquidated (double) damages, penalties, injunction, attorneys’ fees, and

costs on behalf of himself and all others similarly situated.

EIGHTH CAUSE OF ACTION Failure to Pay Reporting Time Pay (California)

(Cal. Lab. Code §§ 204, 218, 218.6, and 558; I.W.C. Wage Order No. 7, § 5) Brought by the California Class Representative on Behalf of Himself and All Other Similarly

Situated


herein.

124. California law requires that employers pay employees who report to work, but are not

then permitted to work a shift, wages for half of the unworked shift or for two hours, whichever is

more. I.W.C. Wage Order No. 7, § 5(A).

125. Abercrombie violated (and continues to violate) this provision of California law by

failing to pay the California Class Representative and each member of the California Rule 23 Class

reporting time pay, as alleged herein.

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126. As a direct and proximate result of Abercrombie’s failure to pay reporting time pay, the

California Class Representative and each member of the California Rule 23 Class has been injured and

has sustained damages, including lost compensation, in an amount to be proved at trial.

127. Accordingly, pursuant to Cal. Lab. Code §§ 204, 218, 218.6, and 558; Cal. Civ. Code §

1021.5; FRCP 23; and other applicable law, the California Class Representative seeks damages,

penalties, injunction, attorneys’ fees, and costs on behalf of himself and all others similarly situated.

NINTH CAUSE OF ACTION Failure to Furnish Accurate Wage Statements (California)

(Cal. Lab. Code § 226 and 226.3) Brought by the California Class Representative on Behalf of Himself and All Other Similarly

Situated


herein.

129. California Law requires employers to furnish each employee, at the time of payment of

wages, accurate, itemized wage statements displaying, among other things, gross and net wages earned

by the employee, hours worked by the employee, all applicable hourly rates, and the hours worked by

the employee at each hourly rate. Cal. Lab. Code § 226(a).

130. As alleged herein, Abercrombie fails to pay the California Class Representative and

each member of the California Rule 23 Class: (1) at least the minimum wage for all hours worked, and

(2) reporting time pay.

131. Because Abercrombie fails to make such payments, the wage statements provided to the

California Class Representative and each member of the California Rule 23 Class do not record time

spent by employees reporting to work (i.e., calling the store, waiting for a manger to become available,

and waiting for the manager to make a determination as to whether the employee will work a shift that

day); the wages earned for such work; or unpaid reporting time pay owed pursuant to I.W.C. Wage

Order No. 7, § 5.

132. Accordingly, the wage statements provided to the California Class Representative and

each member of the California Rule 23 Class do not accurately reflect gross and net wages earned,

total hours worked, all applicable hourly rates, and the hours worked at each hourly rate.

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133. Abercrombie fails to provide accurate and complete information to the California Class

Representative and each member of the California Rule 23 Class by omitting gross and net wages

earned, total hours worked, all applicable hourly rates, and the hours worked at each hourly rate from

wage statements.

134. As alleged herein, Abercrombie’s failure to provide accurate, itemized wage statements

was and is knowing and intentional.

135. As a direct and proximate result of Abercrombie’s failure to provide the California

Class Representative and each member of the California Rule 23 Class with accurate, itemized wage

statements, said plaintiffs have suffered injury and damage to their statutorily-protected rights, and

have been injured because they were denied both their legal right to receive, and their protected interest

in receiving, accurate, itemized wage statements.

136. Accordingly, the California Class Representative and each member of the California

Rule 23 Class is entitled to recover penalties and damages pursuant to California Labor Code § 226(e),

in addition to costs and attorneys’ fees as provided by California law.

TENTH CAUSE OF ACTION Failure to Pay all Wages Due Upon Termination or Resignation of Employment (California)

(Cal. Lab. Code §§ 200-203) Brought by the California Class Representative on Behalf of Himself

and All Other Similarly Situated


herein.

138. California law requires employers to pay employees all wages due upon termination of

employment within prescribed time periods. Cal. Lab. Code §§ 201 and 202.

139. An employer who fails to timely pay such wages must continue to pay the employee’s

wages until back wages are paid in full, or an action is commenced, up to a maximum of 30 days’

wages. Cal. Lab. Code § 203.

140. As alleged herein, Abercrombie fails to pay the California Class Representative and

each member of the California Rule 23 Class: (1) at least the minimum wage for all hours worked, and

(2) reporting time pay.

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141. These wages are not paid at the termination of employment as required by California

Labor Code §§ 201 and 202.

142. Accordingly, Abercrombie failed (and continues to fail) to pay the California Class

Representative, and each member of the California Rule 23 Class whose employment has or will be

terminated, all wages due as required by California law.

143. As alleged herein, Abercrombie’s failure to provide all wages due upon termination was

and is willful, knowing, and intentional.

144. As a direct and proximate result of Abercrombie’s failure to pay the California Class

Representative and the California Rule 23 Class all wages due at termination of employment, said

plaintiffs have been injured, and their statutory rights have been violated.

145. Accordingly, every member of the California Rule 23 Class, including the California

Class Representative, whose employment has or will be terminated at any time prior to entry of

judgment in this case is entitled to payment of 30 days’ wages under California Labor Code § 203 and

additionally to interest, costs, and attorneys’ fees.

ELEVENTH CAUSE OF ACTION Restitution – Unfair Business Practices (California)

(Cal. Bus. & Prof. Code § 17200, et seq.) Brought by the California Class Representative on Behalf of Himself and

All Other Similarly Situated


herein.

147. Each violation of California law by Abercrombie as alleged herein constitutes a separate

and distinct unfair and unlawful business practice in violation of California Business & Professions

Code § 17200, et seq.

148. By its violations of California law and unlawful and unfair business practices as alleged

herein, Abercrombie has improperly obtained money and property from the California Class

Representative and each member of the California Rule 23 Class.

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149. As a direct and proximate result of Abercrombie’s violations of California law and

unlawful and unfair business practices as alleged herein, the California Class Representative and each

member of the California Rule 23 Class has been injured in fact and has lost money and property in an

amount to be proved at trial.

150. The California Class Representative and each member of the California Rule 23 Class is

entitled to restitution of all amounts which Abercrombie was obligated to provide to them but failed to

provide due to the unfair and unlawful practices alleged herein, and additionally to interest, costs, and

attorneys’ fees according to law.

TWELFTH CAUSE OF ACTION Injunction – Unfair Business Practices (California)

(Cal. Bus. & Prof. Code § 17200, et seq.) Brought by the California Class Representative on Behalf of Himself and

All Other Similarly Situated


herein.

152. Each violation of California law by Abercrombie as alleged herein constitutes a separate

and distinct unfair and unlawful business practice in violation of California Business & Professions

Code § 17200, et seq.

153. The California Class Representative and each member of the California Rule 23 Class

has been harmed by Abercrombie’s unlawful and unfair practices as alleged herein.

154. Abercrombie continues to engage in the unlawful and unfair practices alleged herein,

and will continue to do so unless enjoined by this Court.

155. Accordingly, the California Class Representative and the California Rule 23 Class are

entitled to, and therefore request, an injunction of this Court requiring that Abercrombie permanently

cease and desist from engaging in the violations of California law alleged herein.

156. Said Plaintiffs further request that this Court make such orders as are necessary to

monitor Abercrombie’s compliance with said injunction.

157. The California Class Representative and the California Rule 23 Class are further

entitled to costs and attorneys’ fees for pursuing the injunction requested herein.

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XI. PRAYER FOR RELIEF

158. WHEREFORE, the FLSA Named Plaintiff, on behalf of herself and all members of the

FLSA Class, prays for relief as follows:

a. Designation of this action as a collective action on behalf of the proposed FLSA

Class, and prompt issuance of notice to all class members apprising them of the pendency of this action

and their right to join pursuant to 29 U.S.C. § 216(b);

b. A declaration that Abercrombie is financially responsible for sending notice to

all members of the FLSA Class;

c. Designation of Aiman-Smith & Marcy as the attorneys representing the putative

collective action plaintiffs;

d. Declaratory judgment that the practices complained of herein are unlawful under

the FLSA;

e. An award of unpaid minimum wages and liquidated damages to be paid by

Abercrombie to the FLSA Class;

f. Costs and expenses of this action, including reasonable expert and attorneys’

fees;

g. Pre-judgment and post-judgment interest, as provided by law;

h. Injunction; and

i. Any and all further legal and equitable relief deemed necessary, just, and proper

by this Court.

159. And WHEREFORE, the Massachusetts, Florida, and California Class Representatives,

on behalf of themselves and all members of the Massachusetts, Florida, and California Rule 23

Classes, pray for relief as follows:

a. Certification of this action as a class action pursuant to FRCP 23;

b. Designation of the Massachusetts, Florida, and California Class Representatives

as representatives of their respective Rule 23 Classes;

c. That Abercrombie, at its own expense, be ordered to provide full and adequate

notice as required in class actions to all members of the Rule 23 Classes;


Case: 2:16-cv-00551-MHW-TPK Doc #: 1-1 Filed: 12/15/15 Page: 1 of 3 PAGEID #: 38

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