throbber
Case 1:22-cv-00659-TWP-MJD Document 1 Filed 04/01/22 Page 1 of 17 PageID #: 1
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
`
`
`BROOKE HARVEY, individually and on
`behalf of all others similarly situated,
`
`v.
`
`COMMUNITY HEALTH NETWORK,
`INC.
`
`
`Case No. 1:22-cv-00659
`FLSA Collective Action
`FED. R. CIV. P. 23 Class Action
`
`
`
`
`
`
`PLAINTIFF’S ORIGINAL CLASS AND COLLECTIVE ACTION COMPLAINT
`
`SUMMARY
`
`
`
`Like many other companies across the United States, Community Health’s
`
`timekeeping and payroll systems were affected by the hack of Kronos in 2021.
`
`
`
`That hack led to problems in timekeeping and payroll throughout Community
`
`Health’s organization.
`
`
`
`As a result, Community Health’s workers who were not exempt from the
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`overtime requirements under federal and state law, were not paid for all hours worked or were
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`not paid their proper overtime premium after the onset of the Kronos hack.
`
`
`
`
`
`Brooke Harvey is one such Community Health worker.
`
`Community Health could have easily implemented a system for recording
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`hours and paying wages to non-exempt employees until issues related to the hack were
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`resolved.
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`
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`But it didn’t. Instead, Community Health used prior pay periods or reduced
`
`payroll estimates to avoid paying wages and proper overtime to these non-exempt hourly and
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`salaried employees.
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`

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`
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`Community Health pushed the cost of the Kronos hack onto the most
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`economically vulnerable people in its workforce.
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`
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`The burden of the Kronos hack was made to fall on front-line workers—average
`
`Americans—who rely on the full and timely paymet of their wages to make ends meet.
`
`
`
`Community Health’s failure to pay wages, including proper overtime, for all
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`hours worked violates the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., the
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`Indiana Minimum Wage Law (IMWL), I.C. § 22-2-2, et seq., and the Indiana Wage Payment
`
`Statute (IWPS), I.C. § 22-2-5, et seq.
`
` Harvey brings this lawsuit to recover these unpaid overtime wages and other
`
`damages owed by Community Health to him and the non-overtime-exempt workers like him,
`
`who were the ultimate victims of not just the Kronos hack, but also Community Health’s
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`decision to make its front line workers bear the economic burden for the hack.
`
`
`
`This action seeks to recover the unpaid wages and other damages owed by
`
`Community Health to all these workers, along with the penalties, interest, and other remedies
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`provided by federal and Indiana law.
`
`JURISDICTION & VENUE
`
`
`
`This Court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331
`
`because this action involves a federal question under the FLSA. 29 U.S.C. § 216(b).
`
`
`
`The Court has supplemental jurisdiction over any state law sub-classes pursuant
`
`to 28 U.S.C. § 1367.
`
`
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(1) because
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`Community Health is headquartered in this District.
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`

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`
`
`Plaintiff Brooke Harvey is a natural person.
`
`PARTIES
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` Harvey has been, at all relevant times, an employee of Community Health.
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` Harvey has worked for Community Health since February 2005.
`
` Harvey’s written consent is attached as Exhibit 1.
`
` Harvey represents at least two groups of similarly situated Community Health
`
`workers.
`
` Harvey represents a collective of similarly situated workers under the FLSA
`
`pursuant to 29 U.S.C. § 216(b). This “FLSA Collective” is defined as:
`
`All current or former hourly and salaried employees of Community
`Health (including any subsidiaries and alter egos) who were non-
`exempt under the FLSA and who worked for Community Health in
`the United States at any time since the onset of the Kronos
`ransomware attack, on or about December 11, 2021, to the present.
`
` Harvey represents a class of similarly situated workers under Indiana law
`
`pursuant to Federal Rule of Civil Procedure 23. This “Indiana Class” is defined as:
`
`All current or former hourly and salaried employees of Community
`Health (including any subsidiaries and alter egos) who were not
`exempt from overtime pay and who worked for Community Health
`in Indiana at any time since the onset of the Kronos ransomware
`attack, on or about December 11, 2021, to the present.
`
`
`
`Together, throughout this Complaint, the FLSA Collective members and
`
`Indiana Class members are referred to as the “Similarly Situated Workers.”
`
` Defendant Community Health Network, Inc. (“Community Health”) is a
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`domestic corporation.
`
` Community Health maintains its headquarters and principal place of business
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`in this District.
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`

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` Community Health may be served by service upon its registered agent, Karen
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`Ann P. Lloyd, 7330 Shadeland Station, Ste. 200, Indianapolis, IN 46256, or by any other
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`method allowed by law.
`
`
`
`The Indiana Business ID of Community Health is 192854A118.
`
` Community Health maintains 216 assumed names in Indiana under which it
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`conducts business.
`
`
`
`Each of Community Health’s 216 assumed names operates under the same
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`Indiana Business ID number.
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`
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`The 216 assumed names under which it conducts business are some, but not all
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`of, Community Health’s “alter egos.”
`
` At all relevant times, Community Health exerted operational control over its
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`subsidiaries and alter egos.
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` At all relevant times, Community Health substantially controlled the terms and
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`conditions of employment for workers of its subsidiaries and alter egos.
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` At all relevant times, Community Health had a common control and
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`management of labor relations regarding employees of its subsidiaries and alter egos.
`
` Community Health employed and/or jointly employed, with its subsidiaries
`
`and alter egos, Harvey and the Similarly Situated Workers.
`
` Community Health and its respective subsidiaries and alter egos are joint
`
`employers for purposes of the FLSA.
`
` Community Health and its respective subsidiaries and alter egos are joint
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`employers for purposes of Indiana law.
`
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`

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`COVERAGE UNDER THE FLSA
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` At all relevant times, Community Health was an employer of Harvey within
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`the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d).
`
` At all relevant times, Community Health was an employer of the FLSA
`
`Collective members within the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d).
`
` At all relevant times, Community Health has been part of an enterprise within
`
`the meaning of Section 3(r) of the FLSA, 29 U.S.C. § 203(r).
`
` During at least the last three years, Community Health has had gross annual
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`sales in excess of $500,000.
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` During at least the last three years, Community Health was and is part of an
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`enterprise engaged in commerce or in the production of goods for commerce within the
`
`meaning of the FLSA, 29 U.S.C. § 203(s)(1).
`
` Community Health employs many workers, including Harvey, who are
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`engaged in commerce or in the production of goods for commerce and/or who handle, sell,
`
`or otherwise work on goods or materials that have been moved in or produced for commerce
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`by any person.
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`
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`The goods and materials handled, sold, or otherwise worked on by Harvey, and
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`other Community Health employees and that have been moved in interstate commerce
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`include, but are not limited to, medical equipment and supplies.
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` Community Health is a healthcare system operating hospitals, health pavilions
`
`FACTS
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`and doctors offices.
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` Community Health also provides healthscare services within workplaces,
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`schools, and homes.
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`

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` Community Health operates more than 200 sites of care and affiliates
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`throughout Central Indiana.
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` Many of Community Health’s employees are paid by the non-overitme-exempt
`
`hourly and salaried workers.
`
`
`
`Since at least 2021, Community Health has used timekeeping software and
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`hardware operated and maintained by Kronos.
`
` On or about December 11, 2021, Kronos was hacked with ransomware.
`
`
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`The Kronos interfered with its clients, including Community Health’s, ability
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`to use Kronos’s software and hardware to track hours and pay employees.
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`
`
`Since the onset of the Kronos hack, Community Health has not kept accurate
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`track of the hours that Harvey and Similarly Situated Workers have worked.
`
`
`
`Instead, Community Health has used various methods to estimate the number
`
`of hours Harvey and Similarly Situated Workers work in each pay period.
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`
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`For example, Community Health issued paychecks based on the workers’
`
`scheduled hours, or simply duplicated paychecks from pay periods prior to the Kronos hack.
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`
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`This means that employees who were non-exempt and who worked overtime
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`were in many cases paid less than the hours they worked in the workweek, including overtime
`
`hours.
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`
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`Even if certain overtime hours were paid, the pay rate would be less than the
`
`full overtime premium.
`
` Many employees were not even paid their non-overtime wages for hours
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`worked before 40 in a workweek.
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` Harvey is one such employee.
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`
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`Instead of paying Harvey for the hours he actually worked (including overtime
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`hours), Community Health simply paid based on estimates of time or pay, or based upon
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`arbitrary calculations and considerations other than Harvey’s actual hours worked and
`
`regular pay rates.
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`
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`In some instances, Harvey was paid portions of overtime hours worked, but the
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`overtime rate was not at the proper overtime premium of at least 1.5x the regular rate of pay,
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`including required adjustments for shift differentials and non-discretionary bonsuses.
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`
`
`In properly calculating and paying overtime to a non-exempt employee, the
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`only metrics that are needed are: (1) the number of hours worked in a day or week, and (2) the
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`employee’s regular rate, taking into account shift differentials, non-discretionary bonuses, and
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`other adjustments required by law.
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` Community Health knows they have to pay proper overtime premiums to non-
`
`exempt hourly and salaried employees.
`
` Community Health knows this because, prior to the Kronos hack, it routinely
`
`paid these workers for all overtime hours at the proper overtime rates.
`
` Community Health knows it has to pay the wages it agreed to pay its employees.
`
` Community Health knows this because, prior to the Kronos hack, it routinely
`
`paid these workers for all hours worked at the rates it agreed to pay them.
`
` Community Health could have instituted any number of methods to accurately
`
`track and timely pay its employees for all hours worked.
`
`
`
`Instead of accurately tracking hours and paying employees wages and overtime,
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`Community Health decided to arbitrarily pay these employees, without regard to the wages
`
`and overtime they were owed.
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`
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`It was feasible for Community Health to have its employees and managers
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`report accurate hours so they could be paid for the work they did for the company.
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`
`
`
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`But they didn’t do that.
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`In other words, Community Health pushed the effects of the Kronos hack onto
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`the backs of their most economically vulnerable workers, making sure that it kept the money
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`owed to those employees in its own pockets, rather than take steps to make sure its employees
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`were paid on time and in full for the work they did.
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` Harvey is one of Community Health’s employees who had to shoulder the
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`burden of this decision by Community Health.
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` Harvey was and is a non-exempt hourly employee of Community Health.
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` Harvey regularly works over 40 hours per week for Community Health.
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` Harvey’s normal, pre-Kronos hack hours are reflected in Community Health’s
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`records.
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` Harvey had contractual agreement with Community Health to pay him for all
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`hours worked.
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` Harvey’s contractual agreement with Community Health required him to be
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`paid for all hours worked at an amount equal to his regular rate for hours up to 40 in a
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`workweek, and at an overtime premium of no less than 1.5x his regular rate of pay for hours
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`over 40 in a workweek.
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`
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`Since the Kronos hack, Community Health has not paid Harvey for him actual
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`hours worked each week.
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`
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`Since the hack took place, Community Health has not been accurately
`
`recording the hours worked by Harvey and its other workers.
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`
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`Since the Kronos hack, Community Health has not paid Holdbert and its other
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`workers pursuant to its contractual agreement with them.
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`
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`Even though Community Health has had Harvey record and submit him hours,
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`Community Health have not issued proper payment for all hours worked.
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`
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`Even when Community Health has issued payment to Harvey for any overtime,
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`the overtime is not calculated based on Harvey’s regular rates, as required by federal and
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`Indiana law.
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` Community Health was aware of the overtime requirements of the FLSA.
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` Community Health nonetheless failed to pay the full overtime premium owed
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`to certain non-exempt hourly and salaried employees, such as Harvey.
`
` Community Health’s failure to pay overtime to these non-exempt workers was,
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`and is, a willful violation of the FLSA.
`
`
`
`The full overtime wages owed to Harvey and the Similarly Situated Workers
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`became “unpaid” when the work for Community Health was done—that is, on Harvey and
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`the Similarly Situated Workers’ regular paydays. E.g., Martin v. United States, 117 Fed. Cl. 611,
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`618 (2014); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir.1993); Cook v. United States, 855 F.2d
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`848, 851 (Fed. Cir. 1988); Olson v. Superior Pontiac–GMC, Inc., 765 F.2d 1570, 1579 (11th
`
`Cir.1985), modified, 776 F.2d 265 (11th Cir.1985); Atlantic Co. v. Broughton, 146 F.2d 480, 482
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`(5th Cir.1944); Birbalas v. Cuneo Printing Indus., 140 F.2d 826, 828 (7th Cir.1944).
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` At the time Community Health failed to pay Harvey and the Similarly Situated
`
`Workers in full for their overtime hours by their regular paydays, Community Health became
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`liable for all prejudgment interest, liquidated damages, penalties, and any other damages owed
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`under federal law.
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`
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`In other words, there is no distinction between late payment and nonpayment
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`of wages under the law. Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir.1993).
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`
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`Even if Community Health made any untimely payment of unpaid wages due
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`and owing to Harvey or the Similarly Situated Workers, any alleged payment was not
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`supervised by the Department of Labor or any court.
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`
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`The untimely payment of overtime wages, in itself, does not resolve a claim for
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`unpaid wages under the law. See, e.g., Seminiano v. Xyris Enterp., Inc., 602 Fed.Appx. 682, 683
`
`(9th Cir. 2015); Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1352-54 (11th Cir. 1982).
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` Nor does the untimely payment of wages, if any, compensate workers for the
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`damages they incurred due to Community Health’s acts and omissions resulting in the unpaid
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`wages in the first place.
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` Harvey and the Similarly Situtated Workers remain uncompensated for the
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`wages and other damages owed by Community Health under federal and Indiana law.
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`COLLECTIVE ACTION ALLEGATIONS
`
` Harvey incorporates all other allegations.
`
` Numerous individuals were victimized by Community Health’s patterns,
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`practices, and policies, which are in willful violation of the FLSA.
`
`
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`Based on him experiences and tenure with Community Health, Harvey is aware
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`that Community Health’s illegal practices were imposed on the FLSA Collective.
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`
`
`The FLSA Collective members were not paid their full overtime premiums for
`
`all overtime hours worked.
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`- 10 -
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`

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`
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`These employees are victims of Community Health’s unlawful compensation
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`practices and are similarly situated to Harvey in terms of the pay provisions and employment
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`practices at issue in this lawsuit.
`
`
`
`The workers in the FLSA Collective were similarly situated within the meaning
`
`of the FLSA.
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` Any differences in job duties do not detract from the fact that these FLSA non-
`
`exempt workers were entitled to overtime pay.
`
` Community Health’s failure to pay overtime compensation at the rates required
`
`by the FLSA result from generally applicable, systematic policies, and practices, which are
`
`not dependent on the personal circumstances of the FLSA Collective members.
`
`
`
`The FLSA Collective should be notified of this action and given the chance to
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`join pursuant to 29 U.S.C. § 216(b).
`
`CLASS ACTION ALLEGATIONS
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` Harvey incorporates all other allegations.
`
` The illegal practices Community Health imposed on Harvey were likewise
`
`imposed on the Indiana Class members.
`
` Numerous other individuals who worked for Community Health were were not
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`properly compensated for all hours worked, as required by Indiana law.
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` The Indiana Class is so numerous that joinder of all members of the class is
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`impracticable.
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` Community Health imposed uniform practices and policies on Harvey and the
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`Indiana Class members regardless of any individualized factors.
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`- 11 -
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` Based on him experience and tenure with Community Health, as well as
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`coverage of the Kronos hack, Harvey is aware that Community Health’s illegal practices were
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`imposed on the Indiana Class members.
`
`
`
`Indiana Class members were all not paid proper overtime when they worked in
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`excess of 40 hours per week.
`
`
`
`Indiana Class members were all not paid their contractually agreed wages.
`
` Community Health’s failure to pay wages and overtime compensation in
`
`accordance with Indiana law results from generally applicable, systematic policies, and
`
`practices which are not dependent on the personal circumstances of the Indiana Class
`
`members.
`
` Community Health’s failure to pay contractually agreed wages and overtime
`
`compensation results from generally applicable, systematic policies, and practices which are
`
`not dependent on the personal circumstances of the Indiana Class members.
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` Harvey’s experiences are therefore typical of the experiences of the Indiana
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`Class members.
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` Harvey has no interest contrary to, or in conflict with, the members of the
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`Indiana Class. Like each member of the proposed class, Harvey has an interest in obtaining
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`the unpaid wages and other damages owed under the law.
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` A class action, such as this one, is superior to other available means for fair and
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`efficient adjudication of the lawsuit.
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` Absent this action, many Indiana Class members likely will not obtain redress
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`of their injuries and Community Health will reap the unjust benefits of violating Indiana law.
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` Furthermore, even if some of the Indiana Class members could afford
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`individual litigation against Community Health, it would be unduly burdensome to the
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`judicial system.
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` Concentrating the litigation in one forum will promote judicial economy and
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`parity among the claims of individual members of the classes and provide for judicial
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`consistency.
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` The questions of law and fact common to each of the Indiana Class members
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`predominate over any questions affecting solely the individual members. Among the common
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`questions of law and fact are:
`
`a. Whether the Indiana Class members were not paid overtime at 1.5 times
`their regular rate of pay for hours worked in excess of 40 in a workweek;
`
`b. Whether Community Health’s failure to pay overtime at the rates
`required by law violated the Indiana Minimum Wage Act.
`
` Harvey’s claims are typical of the Indiana Class members. Harvey and the
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`Indiana Class members have all sustained damages arising out of Community Health’s illegal
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`and uniform employment policies.
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` Harvey knows of no difficulty that will be encountered in the management of
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`this litigation that would preclude its ability to go forward as a class or collective action.
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` Although the issue of damages may be somewhat individual in character, there
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`is no detraction from the common nucleus of liability facts. Therefore, this issue does not
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`preclude class or collective action treatment.
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`FIRST CAUSE OF ACTION—VIOLATIONS OF THE FLSA
`
` Harvey incorporates each other allegation.
`
` By failing to pay Harvey and the FLSA Collective members overtime at 1.5
`
`times their regular rates, Community Health violated the FLSA. 29 U.S.C. § 207(a).
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`- 13 -
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` Community Health owe Harvey and the FLSA Collective members overtime
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`for all hours worked in excess of 40 in a workweek, at a rate of at least 1.5 times their regular
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`rates of pay.
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` Community Health owe Harvey and the FLSA Collective members the
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`difference between the rate actually paid for overtime, if any, and the proper overtime rate.
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` Community Health knowingly, willfully, or in reckless disregard carried out this
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`illegal pattern and practice of failing to pay the FLSA Collective members overtime
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`compensation.
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` Because Community Health knew, or showed reckless disregard for whether,
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`their pay practices violated the FLSA, Community Health owe these wages for at least the
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`past three years.
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` Community Health’s failure to pay overtime compensation to these FLSA
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`Collective members was neither reasonable, nor was the decision not to pay overtime made
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`in good faith.
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` Because Community Health’s decision not to pay overtime was not made in
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`good faith, Community Health also owes Harvey and the FLSA Collective members an
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`amount equal to the unpaid overtime wages as liquidated damages.
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` Accordingly, Harvey and the FLSA Collective members are entitled to overtime
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`wages under the FLSA in an amount equal to 1.5 times their regular rates of pay, plus
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`liquidated damages, attorney’s fees, and costs.
`
`SECOND CAUSE OF ACTION—VIOLATIONS OF THE IMWL
`
` Harvey incorporates all other allegations.
`
` The conduct alleged in this Complaint violates the IMWL, I.C. § 22-2-2, et seq.
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` Community Health was and is an “employer” within the meaning of the
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`IMWL.
`
` At all relevant times, Community Health employed Harvey and the other
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`Indiana Class members as “employees” within the meaning of the IMWL.
`
` At all relevant times, Community Health employed two or more employees
`
`each week.
`
` The IMWL requires an employer like Community Health to pay overtime to
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`all non-exempt employees.
`
` Harvey and the other Indiana Class members are non-exempt employees who
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`are entitled to be paid overtime for all overtime hours worked at a rate of no less than 1.5x
`
`their regular rate.
`
` Within the applicable limitations period, Community Health had a policy and
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`practice of failing to pay proper overtime to the Indiana Class members for their hours worked
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`in excess of 40 hours per week.
`
` As a result of Community Health’s failure to pay proper overtime to Harvey
`
`and the Indiana Class members for work performed in excess of 40 hours in a workweek,
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`Community Health violated the IMWL.
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` Harvey and the Indiana Class members are entitled to overtime wages under
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`the IMWL in an amount equal to 1.5x their regular rates of pay, attorneys’ fees, costs,
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`liquidated damages, and all other legal and equitable relief provided under the IMWL.
`
`THIRD CAUSE OF ACTION—VIOLATIONS OF THE IWPS
`
` Harvey incorporates all other allegations.
`
` The conduct alleged in this Complaint violates the IWPS, I.C. § 22-2-5, et seq.
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`- 15 -
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` Community Health was and is an “employer” within the meaning of the IWPS.
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` At all relevant times, Community Health employed Harvey and the other
`
`Indiana Class members as “employees” within the meaning of the IWPS.
`
` The IMWL requires an employer like Community Health to pay overtime to
`
`all non-exempt employees.
`
` Community Health failed to pay earned wages to Harvey and the Indiana Class
`
`members within 10 business days.
`
` Community Health had a policy and practice of failing make timely payemnts
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`to the Harvey and the Indiana Class members.
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` Community Health did not act in good faith in failing to pay earned wages to
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`Harvey and the Indiana Class members and in violating the IWPS.
`
` As a result of Community Health’s failure to pay earned wages to Harvey and
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`the Indiana Class members within the time required by the IWPS, Community Health
`
`violated the IWPS.
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` Harvey and the Indiana Class members are entitled to recover all wages due to
`
`them, liquidated damages in an amount equal to 2x of the wages due to them, attorneys’ fees,
`
`costs, and all other legal and equitable relief provided under the IWPS.
`
`Harvey prays for judgment against Community Health as follows:
`
`RELIEF SOUGHT
`
`a.
`
`b.
`
`c.
`
`For an order certifying a collective action for the FLSA claims;
`
`For an order certifying a class action for the Indiana law claims;
`
`For an order finding Community Health liable for violations of state
`and federal wage laws with respect to Harvey and all FLSA Collective
`and Indiana Class members covered by this case;
`
`- 16 -
`
`

`

`Case 1:22-cv-00659-TWP-MJD Document 1 Filed 04/01/22 Page 17 of 17 PageID #: 17
`
`d.
`
`e.
`
`f.
`
`g.
`
`h.
`
`i.
`
`j.
`
`For a judgment awarding all unpaid wages, liquidated damages, and
`penalties to Harvey and all FLSA Collective members covered by this
`case;
`
`For a judgment awarding all unpaid wages, liquidated damages, and
`penalties, to Harvey and all Indiana Class members covered by this case;
`
`For an equitable accounting and restitution of wages due to Harvey and
`all FLSA Collective and Indiana Class members members covered by
`this case;
`
`For a judgment awarding costs of this action to Harvey and all FLSA
`Collective and Indiana Class members covered by this case;
`
`For a judgment awarding attorneys’ fees to Harvey and all FLSA
`Collective and Indiana Class members covered by this case;
`
`For a judgment awarding pre- and post-judgment interest at the highest
`rates allowed by law to Harvey and all FLSA Collective and Indiana
`Class members covered by this case; and
`
`For all such other and further relief as may be necessary and
`appropriate.
`
`Respectfully submitted,
`
`/s/ Matthew S. Parmet
`By: ___________________________
`Matthew S. Parmet
`TX Bar # 24069719
`PARMET PC
`3 Riverway, Ste. 1910
`Houston, TX 77056
`phone 713 999 5228
`matt@parmet.law
`
`Attorneys for Plaintiff
`
`- 17 -
`
`

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