CASE 0:22-cv-00969-JRT-TNL Doc. 1 Filed 04/15/22 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`JAMES FUTRELL and APRIL BROWN,
`each individually and on behalf of all others
`similarly situated,
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`v.
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`CARGILL, INCORPORATED
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`Case No. 22-cv-969
`FLSA Collective Action
`FED. R. CIV. P. 23 Class Action
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`PLAINTIFFS’ ORIGINAL CLASS AND COLLECTIVE ACTION COMPLAINT
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`SUMMARY
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`Like many other companies across the United States, Cargill’s timekeeping and
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`payroll systems were affected by the hack of Kronos in 2021.
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`That hack led to problems in timekeeping and payroll throughout Cargill’s
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`organization.
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`As a result, Cargill’s workers who were not exempt from overtime under federal
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`and state law were not paid for all hours worked and were not paid their proper overtime
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`premium for all overtime hours worked after the onset of the Kronos hack.
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`James Futrell and April Brown are two such Cargill workers.
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`Cargill could have easily implemented a system to accurately record time and
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`properly pay non-exempt hourly and salaried employees until issues related to the hack were
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`resolved.
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`But it didn’t. Instead, Cargill did not pay its non-exempt hourly and salaried
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`employees their full overtime premium for all overtime hours worked, as required by federal
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`law.
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`Cargill pushed the cost of the Kronos hack onto the most economically
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`vulnerable people in its workforce.
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`Cargill made the economic burden of the Kronos hack fall on front-line
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`workers—average Americans—who rely on the full and timely payment of their wages to
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`make ends meet.
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`Cargill’s failure to pay wages, including proper overtime, for all hours worked
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`to its workers across the United States violates the Fair Labor Standards Act (FLSA), 29
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`U.S.C. § 201 et seq.
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` Cargill’s failure to pay wages, including proper overtime, for all hours worked
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`to its workers in Wisconsin also violates Wisconsin’s Wage Payment and Overtime Law, Wis.
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`Stat. §§ 103, 104, 109.01 et seq.
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`Futrell and Brown bring this lawsuit to recover these unpaid overtime wages
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`and other damages owed by Cargill to them and Cargill’s other non-overtime-exempt workers
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`like them, who were the ultimate victims of not just the Kronos hack, but Cargill’s decision
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`to make its own non-exempt employees workers bear the economic burden for the hack.
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`This action seeks to recover the unpaid wages and other damages owed by
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`Cargill to all these workers, along with the penalties, interest, and other remedies provided by
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`federal and Wisconsin law.
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`JURISDICTION & VENUE
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`This Court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331
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`because this action involves a federal question under the FLSA. 29 U.S.C. § 216(b).
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`The Court has supplemental jurisdiction over any state law sub-classes pursuant
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`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 Cargill
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`is headquartered in this District.
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`PARTIES
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`Plaintiff James Futrell is a natural person.
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`Futrell was, at all relevant times, an employee of Cargill.
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`Futrell has worked for Cargill since October 2021.
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`Plaintiff April Brown is a natural person.
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`Brown was, at all relevant times, an employee of Cargill.
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`Brown has worked for Cargill since April 2019.
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`Brown worked for Cargill in Wisconsin.
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`Futrell and Brown represent at least two groups of similarly situated workers
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`for Cargill.
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`Futrell and Brown represent a collective of similarly situated workers under the
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`FLSA pursuant to 29 U.S.C. § 216(b). This “FLSA Collective” is defined as:
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`All current or former non-exempt employees of Cargill (including its
`subsidiaries and alter egos) who worked for Cargill in the United
`States at any time since the onset of the Kronos ransomware attack,
`on or about December 11, 2021, to the present.
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`Brown represents a class of similarly situated workers under Wisconsin law
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`pursuant to Federal Rule of Civil Procedure 23. This “Wisconsin Class” is defined as:
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`All current or former non-exempt employees of Cargill (including its
`subsidiaries and alter egos) who worked for Cargill in Wisconsin at
`any time since the onset of the Kronos ransomware attack, on or
`about December 11, 2021, to the present.
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`Throughout this Complaint, the FLSA Collective and Wisconsin Class
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`members are referred to jointly as the “Similarly Situated Workers.”
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` Defendant Cargill, Incorporated (“Cargill”) is a domestic corporation.
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` Cargill maintains its headquarters and principal place of business in this
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`District.
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` Cargill may be served by service upon its registered agent, United Agent
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`Group, Inc., 5200 Willson Rd., #150, Edina, MN 55424, or by any other method allowed
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`by law.
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` At all relevant times, Cargill exerted operational control over its subsidiaries
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`and alter egos.
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` At all relevant times, Cargill substantially controlled the terms and conditions
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`of employment for workers of its subsidiaries and alter egos.
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` At all relevant times, Cargill had a common control and management of labor
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`relations regarding employees of its subsidiaries and alter egos.
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` Cargill’s subsidiaries and alter egos include, but are not limited to, Cargill
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`Cotton, Cargill Cocoa & Chocolate, Cargill Kitchen Solutions, Cargill Lumber, Cargill Meat,
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`Cargill Ocean Transportation, Diamond Crystal Salt, NatureWorks, Provimi, and Truvia.
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` Cargill employed and/or jointly employed, with its subsidiaries and alter egos,
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`Futrell, Brown, and the Similarly Situated Workers.
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` Cargill and its subsidiaries and alter egos are joint employers for purposes of
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`the FLSA.
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` Cargill and its subsidiaries and alter egos are joint employers for purposes of
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`Wisconsin law.
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`Throughout this Complaint, Cargill and its subsidiaries and alter egos are
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`referred to jointly as “Cargill.”
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`COVERAGE UNDER THE FLSA
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` At all relevant times, Cargill was an employer of Futrell and Brown within the
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`meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d).
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` At all relevant times, Cargill was and is an employer of the FLSA Collective
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`Members within the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d).
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` Cargill was and is part of an enterprise within the meaning of Section 3(r) of
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`the FLSA, 29 U.S.C. § 203(r).
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` During at least the last three years, Cargill has had gross annual sales in excess
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`of $500,000.
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` Cargill was and is part of an enterprise engaged in commerce or in the
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`production of goods for commerce within the meaning of the FLSA, 29 U.S.C. § 203(s)(1).
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` Cargill employs many workers, including Futrell and Brown, who are engaged
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`in commerce or in the production of goods for commerce and/or who handle, sell, or
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`otherwise work on goods or materials that have been moved in or produced for commerce by
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`any person.
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`The goods and materials handled, sold, or otherwise worked on by Futrell,
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`Brown, and other Cargill employees and that have been moved in interstate commerce
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`include, but are not limited to, office equiptment and supplies, food, and beverages.
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` Cargill is a food corporation.
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`FACTS
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` Cargill is the largest privately held corporation in the United States in terms of
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`revenue.
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`Forbes,
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`America’s
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`Largest
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`Private
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`Companies,
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`#1
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`Cargill,
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`https://www.forbes.com/companies/cargill/?list=largest-private-companies&sh=
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`3b1df8871960 (last visited Apr. 15, 2022).
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` Cargill employs more
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`than 150,000 workers. Cargill, About Cargill
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`https://www.cargill.com/about (last visited Apr. 15, 2022).
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` Many of Cargill’s employees are non-exempt hourly and salaried workers.
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`Since at least 2021, Cargill has used timekeeping software and hardware
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`operated and maintained by Kronos.
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` On or about December 11, 2021, Kronos was hacked with ransomware.
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`The Kronos hack interfered with the ability of its customers, including Cargill,
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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, Cargill has failed to keep accurate track of
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`the hours that Futrell, Brown, and the Similarly Situated Workers have worked.
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`Instead, Cargill has used various methods to estimate the number of hours
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`Futrell, Brown, and the Similarly Situated Workers have worked in each pay period.
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`For example, Cargill issued paychecks based on their scheduled hours, or
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`simply duplicated paychecks from pay periods prior to the Kronos hack.
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` As a result of Cargill’s failure to accurately track the acutal hours worked by its
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`employees each week, employees who were non-exempt and worked overtime were in many
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`cases paid less than the hours they worked in the workweek, including overtime hours.
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` Many employees were not even paid all their non-overtime wages for hours
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`worked in certain workweeks.
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`Futrell and Brown are two of the thousands of employees affected by these pay
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`and timekeeping practices.
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`Instead of paying Futrell and Brown for the hours they actually worked
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`(including overtime hours), Cargill simply paid based on estimates of time or pay, or based
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`upon arbitrary considerations other than Futrell and Brown’s actual hours worked and regular
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`pay rates, in multiple workweeks.
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`In some instances, Futrell and Brown were paid portions of the overtime they
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`worked, but the overtime rate was not paid at the proper overtime premium of least 1.5x the
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`agreed rate of pay, including required adjustments for shift differentials and non-discretionary
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`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)
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`the employee’s regular rate, taking into account shift differentials, non-discretionary bonuses,
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`and other factors allowed under the law.
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` Cargill knows it has to pay proper overtime premiums to non-exempt hourly
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`and salaried employees.
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` Cargill knows this because, prior to the Kronos hack, it routinely paid these
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`workers for all overtime hours at the proper overtime rates.
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` Cargill could have instituted any number of methods to accurately track and
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`timely pay its employees for all hours worked.
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`Instead of accurately tracking hours and paying employees their overtime,
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`Cargill decided to arbitrarily pay these employees, without regard to the overtime hours they
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`worked or the regular rates at which they were supposed to be paid.
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`Even to the extent Cargill did pay some overtime to affected employees, Cargill
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`failed to take into account shift differentials and non-discretionary bonuses, such that the
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`overtime premium Cargill did pay, if any, was not the full overtime premium owed under the
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`law based on the employees’ agreed rate of pay.
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`It was feasible for Cargill to have its employees and managers report accurate
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`hours so its workers could be paid the full and correct amounts of money they were owed for
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`the work they did for the company.
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`But it chose not to do that.
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`In other words, Cargill pushed the effects of the Kronos hack onto the backs of
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`its most economically vulnerable workers, making sure that it kept the money it owed to those
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`employees in its own pockets, rather than take steps to make sure its employees were paid on
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`time and in full for the work they did.
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`Futrell and Brown are two of the many Cargill employees who had to shoulder
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`the burden of this decision by Cargill.
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`Futrell was and is a non-exempt hourly employee of Cargill.
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`Futrell regularly works over 40 hours per week for Cargill.
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`Futrell’s normal, pre-Kronos hack hours are reflected in Cargill’s records.
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`Since the Kronos hack, Cargill has not paid Futrell for his actual hours worked
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`each week.
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`Since the hack took place, Cargill has not been accurately recording the hours
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`worked by Futrell and its other workers.
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`Even though Cargill has had Futrell record and submit hours, Cargill has not
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`issued proper payment for all hours worked
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`Even when Cargill has issued payment to Futrell for any overtime, the overtime
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`is not calculated based on Futrell’s regular rates, as required by federal law.
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`Brown was and is a non-exempt hourly employee of Cargill.
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`Brown regularly works over 40 hours per week for Cargill.
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`each week.
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`Brown’s normal, pre-Kronos hack hours are reflected in Cargill’s records.
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`Since the Kronos hack, Cargill has not paid Brown for his actual hours worked
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`Since the hack took place, Cargill has not been accurately recording the hours
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`worked by Brown and its other workers.
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`Even though Cargill has had Brown record and submit hours, Cargill has not
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`issued proper payment for all hours worked
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`Even when Cargill has issued payment to Brown for any overtime, the overtime
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`is not calculated based on Brown’s regular rates, as required by federal and Wisconsin law.
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` Cargill was aware of the overtime requirements of the FLSA.
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` Cargill nonetheless failed to pay the full overtime premium owed to certain non-
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`exempt hourly and salaried employees, such as Futrell and Brown.
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` Cargill’s failure to pay overtime to these non-exempt workers was, and is, a
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`willful violation of the FLSA.
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`The full overtime wages owed to Futrell, Brown, and the Similarly Situated
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`Workers became “unpaid” when the work for Cargill was done—that is, on Futrell, Brown,
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`and the Similarly Situated Workers’ regular paydays. E.g., Martin v. United States, 117 Fed. Cl.
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`611, 618 (2014); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir.1993); Cook v. United States, 855
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`F.2d 848, 851 (Fed. Cir. 1988); Olson v. Superior Pontiac–GMC, Inc., 765 F.2d 1570, 1579 (11th
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`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 Cargill failed to pay Futrell, Brown, and the Similarly Situated
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`Workers in full for their overtime hours by their regular paydays, Cargill became liable for all
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`prejudgment interest, liquidated damages, penalties, and any other damages owed under
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`federal and Wisconsin law.
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`In other words, there is no distinction between late payment and nonpayment
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`of wages under federal law. Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir.1993).
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`Even if Cargill made any untimely payment of unpaid wages due and owing to
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`Futrell or the Similarly Situated Workers, any alleged payment was not supervised by the
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`Department of Labor or any court.
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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
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`(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 Cargill’s acts and omissions resulting in the unpaid wages in
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`the first place.
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`Futrell, Brown, and the Similarly Situtated Workers remain uncompensated for
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`the wages and other damages owed by Cargill under federal and Wisconsin law.
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`COLLECTIVE ACTION ALLEGATIONS
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`Futrell and Brown incorporate all other allegations.
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` Numerous individuals were victimized by Cargill’s patterns, practices, and
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`policies, which are in willful violation of the FLSA.
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`Based on their experiences and tenure with Cargill, Futrell and Brown are
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`aware that Cargill’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
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`all overtime hours worked.
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`These employees are victims of Cargill’s respective unlawful compensation
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`practices and are similarly situated to Futrell and Brown in terms of the pay provisions and
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`employment practices at issue in the collective in this lawsuit.
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`The workers in the FLSA Collective were similarly situated within the meaning
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`of the FLSA.
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` Any differences in job duties do not detract from the fact that these FLSA non-
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`exempt workers were entitled to overtime pay.
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` Cargill’s failure to pay overtime compensation at the rates required by the
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`FLSA result from generally applicable, systematic policies, and practices, which are not
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`dependent on the personal circumstances of the FLSA Collective members.
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` 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).
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`CLASS ACTION ALLEGATIONS
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` Futrell and Brown incorporate all other allegations.
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` The illegal practices Cargill imposed on Brown were likewise imposed on the
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`Wisconsin Class members.
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` Numerous other individuals who worked for Cargill were were not properly
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`compensated for all hours worked, as required by Wisconsin law.
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` The Wisconsin Class is so numerous that joinder of all members of the class is
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`impracticable.
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` Cargill imposed uniform practices and policies on Brown and the Wisconsin
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`Class members regardless of any individualized factors.
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` Based on his experience and tenure with Cargill, as well as coverage of the
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`Kronos hack, Brown is aware that Cargill’s illegal practices were imposed on the Wisconsin
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`Class members.
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` Wisconsin Class members were all not paid proper overtime when they worked
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`in excess of 40 hours per week.
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` Cargill’s failure to pay wages and overtime compensation in accordance with
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`Wisconsin law results from generally applicable, systematic policies, and practices which are
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`not dependent on the personal circumstances of the Wisconsin Class members.
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` Brown’s experiences are therefore typical of the experiences of the Wisconsin
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`Class members.
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` Brown has no interest contrary to, or in conflict with, the members of the
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`Wisconsin Class. Like each member of the proposed class, Brown 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 Wisconsin Class members likely will not obtain
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`redress of their injuries and Cargill will reap the unjust benefits of violating Wisconsin law.
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` Furthermore, even if some of the Wisconsin Class members could afford
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`individual litigation against Cargill, it would be unduly burdensome to the 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 Wisconsin Class
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`members predominate over any questions affecting solely the individual members. Among
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`the common questions of law and fact are:
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`a. Whether the Wisconsin 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; and
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`b. Whether Cargill’s failure to pay overtime at the rates required by law
`violated Wisconsin law.
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` Brown’s claims are typical of the Wisconsin Class members. Brown and the
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`Wisconsin Class members have all sustained damages arising out of Cargill’s illegal and
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`uniform employment policies.
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` Brown 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 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 action treatment.
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`FIRST CAUSE OF ACTION—OVERTIME VIOLATIONS OF THE FLSA
`AS TO FUTRELL, BROWN, AND THE FLSA COLLECTIVE
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` Futrell and Brown incorporate each other allegation.
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` By failing to pay Futrell, Brown, and the FLSA Collective members overtime
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`at 1.5x their regular rates, Cargill violated the FLSA. 29 U.S.C. § 207(a).
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` Cargill owes Futrell, Brown, and the FLSA Collective members overtime for
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`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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` Cargill owes Futrell, Brown, and the FLSA Collective members the difference
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`between the rate actually paid for overtime, if any, and the proper overtime rate.
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` Likewise, Cargill owes Futrell, Brown, and the FLSA Collective members their
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`agreed-upon rates of pay for all hours worked up to and including 40 each week in which they
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`worked over 40 hours in the week, but were not paid in full for all hours.
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` Cargill knowingly, willfully, or in reckless disregard carried out this illegal
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`pattern and practice of failing to pay the FLSA Collective members overtime compensation.
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` Because Cargill knew, or showed reckless disregard for whether, its pay
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`practices violated the FLSA, Cargill owes these wages for at least the past three years.
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` Cargill’s failure to pay overtime compensation to these FLSA Collective
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`members was neither reasonable, nor was the decision not to pay overtime made in good faith.
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` Because Cargill’s decision not to pay overtime was not made in good faith,
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`Cargill also owes Futrell, Brown, and the FLSA Collective members an amount equal to the
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`unpaid overtime wages as liquidated damages.
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` Accordingly, Futrell, Brown, and the FLSA Collective members are entitled to
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`overtime wages under the FLSA in an amount equal to 1.5x their regular rates of pay, plus
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`liquidated damages, attorney’s fees, and costs.
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`SECOND CAUSE OF ACTION—VIOLATIONS OF WISCONSIN WAGE PAYMENT AND
`OVERTIME LAW AS TO BROWN AND THE WISCONSIN CLASS
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` Futrell and Brown incorporate all other allegations.
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` The conduct alleged in this Complaint violates Wisconsin’s Wage Payment and
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`Overtime Law, Wis. Stat. §§ 103, 104, 109.01 et seq.
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` Cargill was and is an “employer” within the meaning of Wis. Stat.
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`§§ 103.001(6), 104.01(3), and 109.01(2).
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` At all relevant times, Cargill employed Brown and the other Wisconsin Class
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`members as “employees” within the meaning of Wis. Stat. §§ 103.001(5), 104.01(2), and
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`109.01(1r).
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` Wis. Stat. § 103.02 and DWD 274.03 require an employer like Cargill to pay
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`overtime to all non-exempt employees.
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` Brown and the other Wisconsin Class members are non-exempt employees who
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`are entitled to be paid overtime for all overtime hours worked.
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` Wis. Stat. § 103.02 and DWD 274.03 requires overtime to be paid at a rate of
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`no less than 1.5x the employee’s regular hourly rate for each hour of working time in excess
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`of 40 each week.
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` Within the applicable limitations period, Cargill had a policy and practice of
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`failing to pay proper overtime to the Wisconsin Class members for their hours worked in
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`excess of 40 hours per week.
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` As a result of Cargill’s failure to pay proper overtime to Brown and the
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`Wisconsin Class members for work performed in excess of 40 hours in a workweek, Cargill
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`violated Wis. Stat. § 103.02 and DWD 274.03.
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` Cargill owes Brown and the Wisconsin Class members the difference between
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`the rate actually paid for overtime, if any, and the proper overtime rate.
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` Likewise, Cargill owes Brown and the Wisconsin members their agreed-upon
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`rates of pay for all hours worked up to and including 40 each week in which they worked over
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`40 hours in the week, but were not paid in full for all hours.
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` Cargill knowingly carried out this illegal pattern and practice of failing to pay
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`the Wisconsin Class members proper overtime compensation.
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`CASE 0:22-cv-00969-JRT-TNL Doc. 1 Filed 04/15/22 Page 16 of 17
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`
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` Cargill also owes Brown and the Wisconsin Class members an additional
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`amount of at least 50% of the unpaid wages as liquidated damages. Wis. Stat. § 109.11(2).
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` Brown and the Wisconsin Class members are entitled to recovery their unpaid
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`wages at 1.5x their regular rates of pay, liquidated damages, attorney’s fees, costs, interest,
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`and all other legal and equitable relief provided by Wisconsin law.
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`Futrell and Brown pray for judgment against Cargill as follows:
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`RELIEF SOUGHT
`
`a.
`
`b.
`
`c.
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`d.
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`e.
`
`f.
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`g.
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`h.
`
`i.
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`j.
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`For an order certifying a collective action for the FLSA claims;
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`For an order certifying a class action for the Wisconsin law claims;
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`For an order finding Cargill liable for violations of federal wage laws
`with respect to Futrell, Brown, and all FLSA Collective members
`covered by this case;
`
`For an order finding Cargill liable for violations of Wisconsin wage laws
`with respect to Brown and all Wisconsin Class members covered by this
`case;
`
`For a judgment awarding all unpaid wages, liquidated damages, and
`penalties under the federal wage laws to Futrell, Brown, and all FLSA
`Collective members covered by this case;
`
`For a judgment awarding all unpaid wages, liquidated damages, and
`penalties under Wisconsin law to Brown and all Wisconsin Class
`members covered by this case;
`
`For an equitable accounting and restitution of wages due to Futrell,
`Brown, and all FLSA Collective and Wisconsin Class members
`members covered by this case;
`
`For a judgment awarding attorneys’ fees to Futrell, Brown, and all
`FLSA Collective and Wisconsin Class members covered by this case;
`
`For a judgment awarding costs of this action to Futrell, Brown, and all
`FLSA Collective and Wisconsin Class members covered by this case;
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`For a judgment awarding pre- and post-judgment interest at the highest
`rates allowed by law to Futrell, Brown, and all FLSA Collective and
`Wisconsin Class members covered by this case; and
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`- 16 -
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`

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`CASE 0:22-cv-00969-JRT-TNL Doc. 1 Filed 04/15/22 Page 17 of 17
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`
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`k.
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`For all such other and further relief as may be necessary and
`appropriate.
`
`Date: April 15, 2022
`
`
`
`
`
`FIEBIGER LAW LLC
`
`Respectfully submitted,
`
`By: _s/Rolf T. Fiebiger____________________
`Rolf T. Fiebiger (#0391138)
`6800 France Ave. S., Ste. 190
`Edina, MN 55435
`phone (612) 888-6084
`rolf@fiebigerlaw.com
`
`Matthew S. Parmet
`TX Bar # 24069719
`(pending admission pro hac vice)
`PARMET PC
`3 Riverway, Ste. 1910
`Houston, TX 77056
`phone 713 999 5228
`matt@parmet.law
`
`Attorneys for Plaintiffs
`
`- 17 -
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`