Case 7:22-cv-00802 Document 1 Filed 01/31/22 Page 1 of 20
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`SCOTT & WINTERS LAW FIRM, LLC
`Joseph F. Scott (Ohio - 0029780)
`(Application for Admission Pro Hac Vice forthcoming)
`Ryan A. Winters (Ohio - 0086917)
`(Application for Admission Pro Hac Vice forthcoming)
`Kevin M. McDermott II (Ohio - 0090455)
`(Application for Admission Pro Hac Vice forthcoming)
`The Caxton Building
`812 Huron Rd. E., Suite 490
`Cleveland, OH 44115
`P: (216) 912-2221 | F: (216) 350-6313
`jscott@ohiowagelawyers.com
`rwinters@ohiowagelawyers.com
`kmcdermott@ohiowagelawyers.com
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`EMANUELE STEVENS, individually and
`on behalf of all others similarly situated,
`
`
`Plaintiff,
`
`
`
`v.
`
`CASE NO.
`
`PLAINTIFF’S ORIGINAL FED. R.
`CIV. P. 23 CLASS AND FLSA
`COLLECTIVE ACTION
`COMPLAINT
`
`Jury Trial Demanded
`
`
`
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`)
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`)
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`Plaintiff Emanuele Stevens, by and through counsel, for his Class and Collective Action
`
`
`PEPSICO INC., BOTTLING GROUP, LLC,
`and CB MANUFACTURING COMPANY,
`INC.
`
`
`
`Defendants.
`
`
`
`Complaint against Defendants PepsiCo Inc., Bottling Group, LLC, and CB Manufacturing
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`Company, Inc. (hereinafter also collectively referred to as “Defendants”), states and alleges the
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`following:
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`INTRODUCTION
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`1.
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`The Fair Labor Standards Act of 1938, as amended (the “FLSA”), 29 U.S.C. §
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`201, et seq. is a broadly remedial and humanitarian statute designed to correct “labor conditions
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`detrimental to the maintenance of the minimum standard of living necessary for health,
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`Case 7:22-cv-00802 Document 1 Filed 01/31/22 Page 2 of 20
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`efficiency, and general well-being of workers[,]” 29 U.S.C. § 202(a), as well as “to protect all
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`covered workers from substandard wages and oppressive working hours.” Barrentine v. Ark Best
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`Freight Sys. Inc., 450 U.S. 728, 739 (1981). The FLSA required Defendants to pay all non-
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`exempt employees at least one and one-half times their regular rate of pay for all hours worked
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`in excess of forty (40) hours each workweek. 29 U.S.C. § 207. Ohio law, O.R.C. Chapter 4111,
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`and other state laws further required the payment of overtime compensation.
`
`2.
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`Upon information and belief, in or about mid-December 2021, Defendants’
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`payroll provider, Ultimate Kronos Group (“Kronos”), was subject to a purported cybersecurity
`
`incident.1
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`3.
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`The FLSA and Ohio law required Defendants to maintain accurate and complete
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`records of employees’ time worked and amounts paid. 29 U.S.C. § 211(c); 29 C.F.R. §§ 516.2,
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`516.5, 516.6, 516.7 (“[e]ach employer shall keep the records required by this part safe and
`
`accessible at the place or places of employment, or at one or more established central
`
`recordkeeping offices where such records are customarily maintained”) (emphasis added); O.R.C
`
`§§ 4111.08, 4111.14(F); Ohio Const. Art. II, § 34a. For example, federal regulations require
`
`employers to make and keep payroll records showing information and data such as the
`
`employee’s name, occupation, time of day and day of week which the workweek begins, regular
`
`hourly rate of pay for any week in which overtime compensation is due, hours worked each
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`workday and total hours worked each workweek, total daily or weekly straight time earnings,
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`total premium pay for overtime hours, total wages paid each pay period and date of payment and
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`pay period covered by the payment. 29 C.F.R. § 516.2. To the extent that Defendants maintained
`
`
`1 See https://www.usatoday.com/story/tech/2021/12/13/kronos-ransomware-attack-2021/6501274001/ (last accessed
`Jan. 28, 2022).
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`the records at a central recordkeeping office, other than in the place or places of employment,
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`these records were required to be available within 72 hours. See 29 C.F.R. § 516.7
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`4.
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`By failing to keep accurate records of hours worked, notwithstanding Defendants’
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`enumerated obligations under the FLSA, Ohio law, and other state laws, Defendants have not
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`recorded or paid all overtime hours worked to their hourly non-exempt employees, including
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`Plaintiff and other members of the FLSA Collective and Ohio Class, in violation of the FLSA
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`and Ohio law since approximately mid-December, 2021, after the outset of the Kronos
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`cybersecurity incident.
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`5.
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`Plaintiff brings this case to challenge the policies and practices of Defendants that
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`violate the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, as well as the statutes of
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`the State of Ohio.
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`6.
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`Plaintiff brings this case as a nationwide FLSA “collective action” pursuant to 29
`
`U.S.C. § 216(b), which provides that “[a]n action to recover the liability” prescribed by the
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`FLSA “may be maintained against any employer … by any one or more employees for and in
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`behalf of himself or themselves and other employees similarly situated” (the “FLSA
`
`Collective”).
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`7.
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`Plaintiff also brings this case as a class action under Fed. R. Civ. P. 23 on behalf
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`of himself and other members of a class of persons who assert factually-related claims under the
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`wage-and-hour statutes of the State of Ohio (the “Ohio Class”).
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`8.
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`Plaintiff and other members of the FLSA Collective and Ohio Class now seek to
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`exercise their rights to unlawfully unpaid overtime wages and additional statutory liquidated
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`damages in this matter, in addition to prejudgment interest, costs and attorneys’ fees incurred in
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`prosecuting this action, and such further relief as the Court deems equitable and just.
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`JURISDICTION AND VENUE
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`9.
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`This Court has jurisdiction over Plaintiff’s FLSA claims pursuant to 28 U.S.C. §
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`1331 and 29 U.S.C. § 216(b).
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`10.
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`This Court has supplemental jurisdiction over Plaintiff’s claims under the statutes
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`of the State of Ohio because those claims are so related to the FLSA claims as to form part of the
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`same case or controversy.
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`11.
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`Venue is proper in this judicial district and division pursuant to 28 U.S.C. §
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`1391(b) because one or more of the Defendants reside in this district and division.
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`PARTIES
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`Plaintiff Emanuele Stevens is an individual and a resident of Lake County, Ohio.
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`Defendant PepsiCo Inc. is a North Carolina for-profit corporation with its
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`12.
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`13.
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`principal executive office address at 700 Anderson Hill Road, Purchase, New York, 10577.
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`According to records maintained by the New York Department of State, Division of
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`Corporations, Defendant PepsiCo Inc.’s agent for service of process is C T Corporation System,
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`28 Liberty St., New York, NY, 10005.
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`14.
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`Defendant Bottling Group, LLC is a Delaware for-profit limited liability
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`company. According to records maintained by the New York Department of State, Division of
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`Corporations, Defendant Bottling Group, LLC’s agent for service of process is C T Corporation
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`System, 28 Liberty St., New York, NY, 10005.
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`15.
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`Defendant CB Manufacturing Company, Inc. is a Delaware for-profit corporation.
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`According to records maintained by the New York Department of State, Division of
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`Corporations, Defendant CB Manufacturing Company, Inc.’s agent for service of process is C T
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`Corporation System, 28 Liberty St., New York, NY, 10005.
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`Case 7:22-cv-00802 Document 1 Filed 01/31/22 Page 5 of 20
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`FACTUAL ALLEGATIONS
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`Defendants’ Business and Defendants’ Statuses as Employers
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`16.
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`Defendant PepsiCo Inc. is a multinational firm whose “products are [used] by
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`consumers more than one billion times a day in more than 200 countries and territories around
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`the world.”2 PepsiCo generated $70 billion in net revenue in 2020, and owns and distributes
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`brands such as “Lays, Doritos, Cheetos, Gatorade, Pepsi-Cola, Mountain Dew, Quaker, and
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`SodaStream… including many iconic brands that generate more than $1 billion each in estimated
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`annual retail sales.”3 PepsiCo Inc. is made up of several divisions, including PepsiCo Beverages
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`North America, Frito-Lay North America, and Quaker Foods North America.
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`17.
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`Defendant PepsiCo Inc. is an “employer” of Plaintiff and other members of the
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`FLSA Collective and Ohio Class within the meaning of the FLSA, 29 U.S.C. § 203(d), and Ohio
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`law.
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`18.
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`Defendant Bottling Group, LLC, “doing business as Pepsi Beverages Company,
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`manufactures, distributes, and sells non alcoholic beverages. The Company offers soft drink,
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`bottled water, energy drink, and fruit juices. Pepsi Beverages serves clients globally.” 4 Upon
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`information and belief, Defendant Bottling Group, LLC is a wholly owned subsidiary or
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`affiliated company of Defendant PepsiCo Inc. Defendant Bottling Group, LLC has issued payroll
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`to non-exempt hourly employees, including Plaintiff and other members of the FLSA Collective
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`and Ohio Class, during the relevant time period.
`
`19.
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`Defendant Bottling Group, LLC is an “employer” of Plaintiff and other members
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`of the FLSA Collective and Ohio Class within the meaning of the FLSA, 29 U.S.C. § 203(d), and
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`Ohio law.
`
`
`2 https://www.pepsico.com/about/about-the-company (last accessed Jan. 28, 2022.)
`3 Id.
`4 https://www.bloomberg.com/profile/company/3687397Z:US (last accessed Jan. 28, 2022.)
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`5
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`20.
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`Upon information and belief, Defendant CB Manufacturing Company, Inc. is a
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`wholly owned subsidiary or affiliated company of Defendant PepsiCo Inc. Defendant CB
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`Manufacturing Company, Inc. has issued payroll to non-exempt hourly employees, including
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`Plaintiff and other members of the FLSA Collective and Ohio Class, during the relevant time
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`period.
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`21.
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`Defendant CB Manufacturing Company, Inc. is an “employer” of Plaintiff and
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`other members of the FLSA Collective and Ohio Class within the meaning of the FLSA, 29
`
`U.S.C. § 203(d), and Ohio law.
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`22.
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`Defendants utilize non-exempt hourly employees, including Plaintiff and other
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`members of the FLSA Collective and Ohio Class, in furtherance of their business purposes.
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`23.
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`At all times relevant, Defendants were an enterprise within the meaning of 29
`
`U.S.C. § 203(r).
`
`24.
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`At all times relevant, Defendants were an enterprise engaged in commerce or in
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`the production of goods for commerce within the meaning of 29 U.S.C. § 203(s)(1).
`
`25.
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`Defendants operate and control an enterprise engaged in commerce, with annual
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`gross volume of business exceeding $500,000.00.
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`26.
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`Defendants were each employers of Plaintiff and other members of the FLSA
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`Collective and Ohio Class as each Defendant exercised the power to hire or fire employees;
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`supervised and controlled the employees’ work or conditions of employment; determined
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`employees’ rates and methods of payment; and maintained or were required to maintain records,
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`including employment records.
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`Defendants’ Statuses as a “Single Employer” and “Single Enterprise”
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`Case 7:22-cv-00802 Document 1 Filed 01/31/22 Page 7 of 20
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`27.
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`At all times relevant, Defendants were an enterprise within the meaning of 29
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`U.S.C. § 203(r). That is, Defendants perform related activities through unified operation and
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`common control for a common business purpose; namely, the provision of Pepsi and related
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`brands’ products throughout the United States and internationally. Defendants were individually
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`and jointly “employers” within the meaning of the FLSA and Ohio law.
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`28.
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`At all times relevant, Plaintiff and other members of the FLSA Collective and
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`Ohio Class were “employees” of Defendants.
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`29.
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`Defendants are engaged in related activities, i.e. all activities which are necessary
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`to the operation and maintenance of Defendants’ business.
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`30.
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`Defendants share common management.
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`31.
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`32.
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`33.
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`Defendants provide the same or similar array of products and services.
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`Upon information and belief, Defendants share common ownership.
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`Upon information and belief, Defendants share operational control over
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`significant aspects of the day-to-day functions of Plaintiff and other members of the FLSA
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`Collective and Ohio Class, including supervising and controlling schedules and conditions of
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`employment.
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`34.
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`Likewise, upon information and belief, Defendants shared authority to hire, fire
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`and discipline employees, including Plaintiff and other members of the FLSA Collective and
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`Ohio Class.
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`35.
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`Upon information and belief, Defendants shared authority to set rates and
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`methods of compensation of employees, including Plaintiff and other members of the FLSA
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`Collective and Ohio Class.
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`36.
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`Defendants shared control and maintenance of employment records.
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`37.
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`Defendants have shared and mutually benefitted from the work and services
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`performed by Plaintiff and other members of the FLSA Collective and Ohio Class.
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`38.
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`Defendants have not acted entirely independently of each other and have not been
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`completely disassociated with respect to Plaintiff and other members of the FLSA Collective and
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`Ohio Class.
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`39.
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`Defendants acted directly or indirectly in the interest of each other in relation to
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`Plaintiff and other members of the FLSA Collective and Ohio Class.
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`40.
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`Defendants constitute a unified operation because they have organized the
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`performance of their related activities so that they are an organized business system which is an
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`economic unit directed to the accomplishment of a common business purpose.
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`41.
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`Defendants provide the same services and products to customers by using a set
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`formula when conducting business.
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`42.
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`Part of that set formula is the deprivation of overtime compensation to their
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`employees as outlined in this Complaint.
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`Plaintiff’s, the FLSA Collective’s, and Ohio Class’s
`Non-Exempt Employment Statuses with Defendants
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`Plaintiff Emanuele Stevens has been employed by Defendants from
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`43.
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`approximately October 2021 to the present as a machine operator. Defendants classify and pay
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`Plaintiff, as well as other members of the FLSA Collective and Ohio Class, as a nonexempt
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`hourly employee.
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`44.
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`At all times relevant, Plaintiff and other members of the FLSA Collective and
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`Ohio Class were employees within the meaning of 29 U.S.C. § 203(e) and O.R.C. §§ 4111.01, et
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`seq.
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`45.
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` At all times relevant, Plaintiff and other members of the FLSA Collective and
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`Ohio Class were employees engaged in commerce or in the production of goods for commerce
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`within the meaning of 29 U.S.C. § 207.
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`Defendants’ Failure to Pay Overtime Compensation
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`46.
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`The FLSA and Ohio law required Defendants to pay overtime compensation to
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`their employees at the rate of one and one-half times their regular rate of pay for the hours they
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`worked in excess of forty (40). 29 U.S.C. § 207; O.R.C. §§ 4111.03, 4111.10.
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`47.
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`Plaintiff Emanuele Stevens and other members of the FLSA Collective and the
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`Ohio Class frequently worked more than forty (40) hours in a single workweek.
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`48.
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`Defendants consistently failed to pay Plaintiff and other members of the FLSA
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`Collective and the Ohio Class for all hours, including overtime hours, worked. 29 U.S.C. § 207.
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`49.
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`Instead of compensating Plaintiff Emanuele Stevens and other members of the
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`FLSA Collective and the Ohio Class at one and one-half times their regular hourly rates for
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`hours more than forty (40) hours per workweek, Defendants paid Plaintiff and other members of
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`the FLSA Collective and the Ohio Class less than one and one-half times their regular hourly
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`rates for hours more than forty (40) hours per workweek.
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`50.
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`Defendants shortchanged their hourly employees and failed to pay overtime
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`compensation through unlawful practices that do not calculate weekly overtime at one and one-
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`half times their regular hourly rates for hours more than forty (40) hours per workweek.
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`51.
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`Defendants’ unlawful time payment policies as highlighted above denied Plaintiff
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`and other members of the FLSA Collective and the Ohio Class compensable overtime hours and
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`compensation they were entitled to be paid. Had Defendants kept accurate timekeeping and
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`payroll records in compliance with the FLSA and Department of Labor regulations, including but
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`not limited to by maintaining the records in a manner that was “safe and accessible at the place
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`or places of employment, or at one or more established central recordkeeping offices where
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`such records are customarily maintained,” 29 C.F.R. § 516.7 (emphasis added), Plaintiff and
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`other members of the FLSA Collective and the Ohio Class would have been compensated for
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`additional overtime hours for which they were not paid.
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`52.
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`As a direct and proximate result of Defendants’ failure to keep accurate
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`timekeeping and payroll records in compliance with the FLSA and Department of Labor
`
`regulations, including but not limited to by maintaining the records in a manner that was “safe
`
`and accessible at the place or places of employment, or at one or more established central
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`recordkeeping offices where such records are customarily maintained,” 29 C.F.R. § 516.7,
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`Defendants have not been paying overtime compensation to all non-exempt employees at at least
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`one and one-half times their regular rate of pay for all hours worked in excess of forty (40) hours
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`each workweek. 29 U.S.C. § 207. Instead, upon information and belief, Defendants have been
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`calculating and paying wages by averaging the hours worked in the weeks prior to the mid-
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`December 2021 Kronos purported cybersecurity incident. While Emanuele Stevens, for example,
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`and other members of the FLSA Collective and Ohio Class, worked significant amounts of
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`overtime hours during the holiday season of December, 2021 and beyond, their actual overtime
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`hours have not been paid at at least one and one-half times their regular rate of pay as
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`specifically enumerated by the FLSA.
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`53. While Plaintiff and other members of the FLSA Collective and the Ohio Class
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`frequently worked more than forty (40) hours in a single workweek, since approximately mid-
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`December, 2021, Defendants have consistently failed to pay Plaintiff and other members of the
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`FLSA Collective and the Ohio Class for all hours worked, including overtime hours. 29 U.S.C. §
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`207.
`
`54.
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`Defendants’ illegal overtime compensation pay practices, including the decision
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`to calculate overtime wages based on a formula that does not consider actual overtime worked,
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`were the result of systematic and company-wide policies originating at the management level.
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`55.
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`Defendants’ failure to compensate Plaintiff and other members of the FLSA
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`Collective and the Ohio Class for hours worked more than forty (40) hours per week at “one and
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`one-half times” the employees’ “regular rate[s]” of pay constitutes a knowing and willful
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`violation of the FLSA, 29 U.S.C. § 207 and corresponding Ohio law.
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`Defendants’ Record Keeping Violations
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`56.
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`The FLSA and Ohio law required Defendants to maintain accurate and complete
`
`records of employees’ time worked and amounts paid. 29 U.S.C. § 211(c); 29 C.F.R. §§ 516.2,
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`516.5, 516.6, 516.7; O.R.C §§ 4111.08, 4111.14(F); Ohio Const. Art. II, § 34a. For example,
`
`federal regulations require employers to make and keep payroll records showing information and
`
`data such as the employee’s name, occupation, time of day and day of week which the workweek
`
`begins, regular hourly rate of pay for any week in which overtime compensation is due, hours
`
`worked each workday and total hours worked each workweek, total daily or weekly straight time
`
`earnings, total premium pay for overtime hours, total wages paid each pay period and date of
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`payment and pay period covered by the payment. 29 C.F.R. § 516.2.
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`57.
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`Department of Labor regulations specifically required Defendants to maintain the
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`records in a manner that was “safe and accessible at the place or places of employment, or at one
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`or more established central recordkeeping offices where such records are customarily
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`maintained.” 29 C.F.R. § 516.7. To the extent that Defendants maintained the records at a central
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`recordkeeping office, other than in the place or places of employment, these records were
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`required to be available within 72 hours. Id. Ohio law also provides that employers “shall
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`maintain a record of the name, address, occupation, pay rate, hours worked for each day worked
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`and each amount paid an employee for a period of not less than three years following the last
`
`date the employee was employed.” Ohio Const. Art. II, § 34a.
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`58.
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`Defendants failed to keep accurate records of hours worked. Thus, Defendants did
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`not record or pay all hours worked in violation of the FLSA and Ohio law.
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`The Willfulness of Defendants’ Violations
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`59.
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`Defendants knew that Plaintiff and other members of the FLSA Collective and
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`Ohio Class were entitled to overtime compensation under federal and state law or acted in
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`reckless disregard for whether they were so entitled.
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`60.
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`Defendants’ executive, calculated decision to pay wages by averaging the hours
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`worked in the weeks prior to the mid-December 2021 Kronos purported cybersecurity incident, a
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`policy and practice that inherently does not consider Plaintiff’s and other members of the FLSA
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`Collective’s and Ohio Class’s actual overtime hours worked, and pay for the actual overtime
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`worked at one and one-half times their regular rate of pay, constitutes a knowing and willful
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`violation of the FLSA and state law.
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`61.
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`In addition, by denying Plaintiff and other members of the FLSA Collective and
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`Ohio Class overtime compensation as required by the FLSA and Ohio law, Defendants’ acts
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`were not based upon good faith. Through legal counsel as well as industry experience and
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`custom, Defendants possessed ample access to the regulations and statutory provisions requiring
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`the proper and prompt payment of overtime compensation under Ohio and federal laws recited in
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`this Complaint, but either failed to seek out such information and guidance or did seek out the
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`information and guidance but failed to adhere to the principles of compliance as required.
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`Defendants therefore knew about the overtime compensation requirements of the FLSA and
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`Ohio law or acted in reckless disregard as to Defendants’ obligations under the FLSA and Ohio
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`law.
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`62.
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`The above payroll practices resulted in knowing and willful overtime violations of
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`the FLSA, 29 U.S.C. §§ 201-219; and O.R.C. Chapter 4111.
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`COLLECTIVE ACTION ALLEGATIONS
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`63.
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`Plaintiff incorporates by reference the foregoing allegations as if fully rewritten
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`herein.
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`64.
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`Plaintiff brings this case as an FLSA “collective action” pursuant to 29 U.S.C. §
`
`216(b), which provides that “[a]n action to recover the liability” prescribed by the FLSA “may
`
`be maintained against any employer … by any one or more employees for and in behalf of
`
`himself or themselves and other employees similarly situated.”
`
`65.
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`Plaintiff brings this case on behalf of an FLSA collective group of employees of
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`Defendants (referred to herein as the “FLSA Collective”).
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`66.
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`The Potential Opt-Ins who are “similarly situated” to Plaintiff with respect to
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`Defendants’ FLSA violations as to the FLSA Collective consist of:
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`All current and former hourly employees of Defendants in the United States
`from December 1, 2021 to the present who were (1) paid on an hourly basis,
`and (2) were not paid overtime compensation in the amount of one and one-
`half times the employee’s regular rate of pay for all hours worked over forty
`(40) in any workweek.
`
`
`
`67.
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`Such persons are “similarly situated” with respect to Defendants’ FLSA violations
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`in that all were non-exempt employees of Defendants, all were subjected to and injured by
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`Defendants’ unlawful practice of failing to pay overtime compensation for all hours worked in
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`excess of forty (40) per workweek, and all have the same claims against Defendants for unpaid
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`overtime compensation as well as for liquidated damages, attorneys’ fees, and costs.
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`68.
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`Conditional certification of this case as a collective action pursuant to 29 U.S.C. §
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`216(b) is proper and necessary so that such persons may be sent a Court-authorized notice
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`informing them of the pendency of this action and giving them the opportunity to “opt in.”
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`69.
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`Plaintiff cannot yet state the exact number of similarly-situated persons but avers,
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`upon information and belief, that the FLSA Collective consists of over ten thousand (10,000)
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`persons. Such persons are readily identifiable through the payroll records Defendants have
`
`maintained, and were required to maintain, pursuant to the FLSA.
`
`CLASS ACTION ALLEGATIONS
`
`Plaintiff incorporates by reference the foregoing allegations as if fully rewritten
`
`70.
`
`herein.
`
`71.
`
`Plaintiff also brings this case as a class action pursuant to Fed. R. Civ. P. 23 on
`
`behalf of himself and other members of a class of persons who assert claims under the laws of
`
`the State of Ohio (the “Ohio Class”), defined as:
`
`All current and former hourly employees of Defendants in Ohio from
`December 1, 2021 to the present who were (1) paid on an hourly basis, and
`(2) were not paid overtime compensation in the amount of one and one-half
`times the employee’s regular rate of pay for all hours worked over forty (40)
`in any workweek.
`
`
`
`72.
`
`The Ohio Class is so numerous that joinder of all class members is impracticable.
`
`Plaintiff cannot yet state the exact number of class members but avers, upon information and
`
`belief, that they consist of several thousand persons. The number of class members, as well as
`
`their identities, are ascertainable from the payroll and personnel records Defendants have
`
`maintained, and were required to maintain, pursuant to the FLSA and Ohio law. 29 U.S.C. §
`
`
`
`14
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`

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`Case 7:22-cv-00802 Document 1 Filed 01/31/22 Page 15 of 20
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`211(c); 29 C.F.R. §§ 516.2, 516.5, 516.6, 516.7; O.R.C §§ 4111.08, 4111.14(F); Ohio Const.
`
`Art. II, § 34a.
`
`73.
`
`There are questions of law or fact common to the Ohio Class, including but not
`
`limited to:
`
`Whether Defendants’ conduct as described above violates Ohio law governing
`payment of overtime compensation;
`
`Whether Defendants denied employees overtime compensation under Ohio law
`where, among other things, employees were not paid wages for their overtime
`hours worked; and
`
`What amount of monetary relief will compensate Plaintiff and other members of
`the Ohio Class for Defendants’ violations of O.R.C. §§ 4111.03 and 4111.10.
`
`74.
`
`Plaintiff’s claims are typical of the claims of other members of the Ohio Class.
`
`
`
`
`
`Plaintiff’s claims arise out of the same uniform course of conduct by Defendants, and are based
`
`on the same legal theories, as the claims of other class members.
`
`75.
`
`Plaintiff will fairly and adequately protect the interests of the Ohio Class.
`
`Plaintiff’s interests are not antagonistic to, but rather are in unison with, the interests of other
`
`class members. Plaintiff’s counsel have broad experience in handling class action litigation,
`
`including wage-and-hour litigation, and are fully qualified to prosecute the claims of the Ohio
`
`Class in this case.
`
`76.
`
`The questions of law or fact that are common to the Ohio Class predominate over
`
`any questions affecting only individual members. The primary questions that will determine
`
`Defendants’ liability to the class, listed above, are common to the class as a whole, and
`
`predominate over any questions affecting only individual class members.
`
`77.
`
`A class action is superior to other available methods for the fair and efficient
`
`adjudication of this controversy. Requiring class members to pursue their claims individually
`
`
`
`15
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`

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`Case 7:22-cv-00802 Document 1 Filed 01/31/22 Page 16 of 20
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`would entail a host of separate suits, with concomitant duplication of costs, attorneys’ fees, and
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`demands on court resources. Many class members’ claims are sufficiently small that they would
`
`be reluctant to incur the substantial cost, expense, and risk of pursuing their claims individually.
`
`Certification of this case as a class action pursuant to Fed. R. Civ. P. 23 will enable the issues to
`
`be adjudicated for all class members with the efficiencies of class litigation.
`
`COUNT ONE
`(FLSA Overtime Violations)
`
`Plaintiff incorporates by reference the foregoing allegations as if fully rewritten
`
`78.
`
`herein.
`
`79.
`
`Plaintiff brings this claim for violation of the FLSA’s overtime provisions on
`
`behalf of himself and members of the FLSA Collective who may join this case pursuant to 29
`
`U.S.C. § 216(b).
`
`80.
`
`The FLSA requires that “non-exempt” employees receive overtime compensation
`
`of “not less than one and one-half times” the employees’ “regular rate” of pay. 29 U.S.C. §
`
`207(a)(1).
`
`81.
`
`Plaintiff and other members of the FLSA Collective should have been paid
`
`overtime wages in the amount of 150% of their “regular rate” for all hours worked in excess of
`
`forty (40) hours per workweek.
`
`82.
`
`Defendants did not pay overtime compensation to Plaintiff and other members of
`
`the FLSA Collective at the rate of one and one-half times their regular rate for all of their
`
`overtime hours.
`
`83.
`
`Defendants knowingly, willfully, and/or in reckless disregard carried out an
`
`illegal pattern and practice of failing to pay Plaintiff and other members of the FLSA Collective
`
`overtime compensation. Defendants’ deliberate failure to pay overtime compensation to Plaintiff
`
`
`
`16
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`

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`Case 7:22-cv-00802 Document 1 Filed 01/31/22 Page 17 of 20
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`and other members of the FLSA Collective was neither reasonable, nor was the decision not to
`
`pay overtime made in good faith. By engaging in these practices, Defendants willfully violated
`
`the FLSA and regulations thereunder that have the force of law.
`
`84.
`
`As a result of Defendants’ violations of the FLSA, Plaintiff and other members of
`
`the FLSA Collective were injured in that they did not receive wages due to them pursuant to the
`
`FLSA. 29 U.S.C. § 216(b) entitles Plaintiff and other members of the FLSA Collective to an
`
`award of “unpaid overtime compensation” as well as “an additional equal amount as liquidated
`
`damages.” 29 U.S.C. § 216(b) further provides that “[t]he court … shall, in addition to any
`
`judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the
`
`defendant, and costs of the action.”
`
`COUNT TWO
`(Ohio Overtime Violations)
`
`85.
`
`Plaintiff incorporates by reference the foregoing allegations as if fully rewritten
`
`herein.
`
`86.
`
`Plaintiff brings this claim for violation of the Ohio overtime compensation statute,
`
`O.R.C. § 4111.03, on behalf of himself and other members of the FLSA Collective and Ohio
`
`Class.
`
`87.
`
`At all times relevant, Defendants were employers covered by the Ohio overtime
`
`compensation statute, O.R.C. § 4111.03.
`
`88.
`
`Defendants’ failure to compensate overtime hours worked violated the Ohio
`
`overtime compensation requirements set forth in O.R.C. § 4111.03.
`
`89.
`
`These violations of Ohio law injured Plaintiff and other members of the FLSA
`
`Collective and Ohio Class in that they did not receive wages due to them pursuant to that statute.
`
`
`
`17
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`

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`Case 7:22-cv-00802 Document 1 Filed 01/31/22 Page 18 of 20
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`90.
`
`Having injured Plaintiff and other members of the FLSA Collective and the Ohio
`
`Class, Defendants are “liable to the employee[s] affected for the full amount of the overtime
`
`wage rate, less any amount actually paid to the employee[s] and for costs and reasonable
`
`attorney’s fees as may be allowed by the court” under Ohio law. O.R.C. § 4111.10.
`
`[Plaintiff’s Prayer for Relief follows on the next page.]
`
`
`
`
`
`
`
`
`
`18
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`

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`Case 7:22-cv-00802 Document 1 Filed 01/31/22 Page 19 of 20
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`
`
`WHEREFORE, Plaintiff prays that this Honorable Court:
`
`PRAYER FOR RELIEF
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`Con