I have blogged about many off-the-clock cases; they can be troublesome to defend, especially in the absence of accurate time records.  Another example has emerged.  Three former employees of a 7-Eleven store have filed a proposed class action alleging the franchise unlawfully withheld overtime pay for hours beyond forty (40) and then retaliated against them by firing them when they complained.  The case is entitled Lopez et al. v. 7-Eleven Inc. et al., and was filed in state court in New Jersey.

The named plaintiffs contend there is a class of ninety (90) potential class members, located at other stores as well as the initial one (in Princeton, NJ).  The plaintiffs seek to go after the 7-Eleven stores either independently owned and operated, or directly owned and controlled, by the Texas corporation, within the same market.

The plaintiffs allege they performed numerous tasks, were paid $6-$6.50 an hour and were “paid in cash, and paid irregularly.”  Two of these workers claim they were terminated in retaliation for complaining to management at the end of December.  The third worker was fired after the lawyer representing the two plaintiffs (Roger Martindell, Esq.) communicated with the store regarding the workers’ claims.

The defendants include four store operators — Alpesh Patel, Nick Patel, Jenny Patel and Sanjiv Josh; the store is operated through a company controlled by Alpesh Patel and supposedly generated annual sales in excess of $250,000.  The plaintiffs in their eleven-count Complaint also allege claims of breach of contract, unjust enrichment and violation of public policy, and seek restitution, punitive damages and statutory penalties.

The Takeaway

This case is complicated because the time records of hours worked might not be accurate or even existent.  That potential problem pales to the retaliation charges, which would be very serious.  On the other hand, when suing a single franchised store like this, the plaintiff (and the lawyer) must be careful not to overreach.  What good does it do anyone to win a huge verdict at a jury trial (2-3 years from now) when there might well be an inability to collect on the judgment.  With that said, the deeper pocket is the huge corporate entity in Texas—if sufficient connections between the single store and that corporation exist, they might be a joint or single employer.  Then the landscape changes.

I know Roger Martindell; I have had cases with him and he is a savvy guy.  He will know this.  As far as the Complaint, however, a number of the Counts are preempted by wage hour law (such as the common law claims) and there is no ability for a private litigant to seek or secure “penalties.”  Only the NJ Department of Labor can do that.