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`v.
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`EMMANUEL JEAN-FRANCOIS, ALICIA )
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`JOHNSON, and WANDA KING,
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`individually and on behalf of all others
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`similarly situated;
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NORTH CAROLINA
`SOUTHERN DIVISION
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` Civil No. 7:22-cv-00063
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`COLLECTIVE ACTION COMPLAINT
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`Plaintiff(s),
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`SMITHFIELD FOODS, INC.,
`SMITHFIELD PACKAGED MEATS,
`CORP., SMITHFIELD FRESH MEATS
`CORP., and SMITHFIELD
`DISTRIBUTION, LLC.
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`Defendants.
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`Plaintiffs, Emmanuel Jean-Francois (“Jean-Francois”), Alicia Johnson (“Johnson”), and
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`Wanda King (“King”) (together “Plaintiffs”), by and through counsel, individually and on behalf
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`of all persons similarly situated, file this Collective Action Complaint against Defendants
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`Smithfield Foods, Inc., Smithfield Packaged Meats, Corp., Smithfield Fresh Meats Corp., and
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`Smithfield Distribution, LLC (together “Defendants”), seeking all available relief under the Fair
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`Labor Standards Act of 1938, 29 U.S.C. § 201, et. seq. (“FLSA”).
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`NATURE OF ACTION
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`
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`In response to the COVID-19 pandemic, Defendants paid Plaintiffs and other similarly
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`situated employees a $5 per hour “Responsibility Bonus” for each regular hour worked, up to 40
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`hours in a workweek. In calculating overtime earned by Plaintiffs and other similarly situated
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`Case 7:22-cv-00063-D Document 1 Filed 04/19/22 Page 1 of 10
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`employees, Defendants failed to include the $5 per hour Responsibility Bonus in each
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`employee’s regular rate of pay. Plaintiffs allege that Defendants violated the FLSA by failing to
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`calculate their correct overtime rates of pay, and therefore failing to pay all overtime
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`compensation due to Plaintiffs and those similarly situated. Plaintiffs bring their claims for
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`unpaid overtime compensation on behalf of themselves and others similarly situated as an opt-in
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`collective action pursuant to the FLSA.
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`PARTIES
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`1.
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`Jean-Francois is an adult individual who is a resident of Goldsboro, North
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`Carolina. Jean-Francois worked for Defendants during the three-year period preceding the filing
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`of this Complaint.
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`2.
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`Johnson is an adult individual who is a resident of Lumberton, North Carolina.
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`Johnson worked for Defendants during the three-year period preceding the filing of this
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`Complaint. Johnson’s Consent to Become a Party Plaintiff form is attached hereto as Exhibit 1.
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`3.
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`King is an adult individual who is a resident of Bladenboro, North Carolina. King
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`worked for Defendants during the three-year period preceding the filing of this Complaint.
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`King’s Consent to Become a Party Plaintiff form is attached hereto as Exhibit 2.
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`4.
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`Smithfield Foods, Inc. is a corporation organized and existing under the laws of
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`the State of Virginia with its principal office at 200 Commerce Street, Smithfield, Virgina.
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`5.
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`Smithfield Packaged Meats Corp. is a corporation organized and existing under
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`the laws of the State of Delaware and licensed to conduct business in the State of North Carolina
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`with its principal office at 200 Commerce Street, Smithfield, Virgina.
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`Case 7:22-cv-00063-D Document 1 Filed 04/19/22 Page 2 of 10
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`6.
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`Smithfield Fresh Meats Corp. is a corporation organized and existing under the
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`laws of the State of Delaware and licensed to conduct business in the State of North Carolina
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`with its principal office at 200 Commerce Street, Smithfield, Virgina.
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`7.
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`Smithfield Distribution, LLC is a limited liability company organized and existing
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`under the laws of the State of Delaware and licensed to conduct business in the State of North
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`Carolina with its principal office at 200 Commerce Street, Smithfield, Virgina.
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`JURISDICTION AND VENUE
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`8.
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`This Court has original federal question jurisdiction under 28 U.S.C. § 1331 for
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`the claims brought under the FLSA, 29 U.S.C. § 201 et. seq.
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`9.
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`This Court has personal jurisdiction because Defendants conduct business in
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`Sampson County and Bladen County, which are located within this judicial district.
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`10.
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`Venue is proper in this judicial district because the unlawful acts alleged herein
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`occurred in Sampson County, North Carolina and Bladen County County, North Carolina.
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`COVERAGE ALLEGATIONS
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`11.
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`At all times hereinafter mentioned, Defendants have been employers within the
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`meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d).
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`12.
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`At all times hereinafter mentioned, Defendants have been an enterprise within the
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`meaning of Section 3(r) of the FLSA 29 U.S.C. § 203(r).
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`13.
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`At all times hereinafter mentioned, Defendants have been an enterprise engaged
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`in commerce or in the production of goods for commerce within the meaning of Section 3(s)(1)
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`of the FLSA, 29 U.S.C. § 203(s)(1), in that the enterprise has had employees engaged in
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`commerce or in the production of goods for commerce, or employees handling, selling, or
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`otherwise working on goods or materials that have been moved in or produced for commerce by
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`Case 7:22-cv-00063-D Document 1 Filed 04/19/22 Page 3 of 10
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`any person and in that the enterprise has had and has an annual gross volume of sales made or
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`business done of not less than $500,000 (exclusive of excise taxes at the retail level which are
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`separately stated).
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`14.
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`At all times hereinafter mentioned, Plaintiffs have been employees within the
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`meaning of Section 3(e) of the FLSA, 29 U.S.C. § 203(e).
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`15.
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`At all times hereinafter mentioned, Plaintiffs were individual employees who
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`were engaged in commerce or in the production of goods for commerce as required by 29 U.S.C.
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`§ 207.
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`16.
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`Upon information and belief, Smithfield Foods, Inc. is the owner and operator of
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`Smithfield Packaged Meats, Corp., Smithfield Fresh Meats Corp., and Smithfield Distribution,
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`LLC.
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`17.
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`Defendants are a joint employer and/or single enterprise within the meaning of 29
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`U.S.C. §§ 203(e) and 207(b), as they have an interrelation of operations, common business
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`purpose and activities, common management, common control of labor relations, common
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`financial control, and common ownership.
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`PLAINTIFFS’ FACTUAL ALLEGATIONS
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`18.
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`Defendants are pork producers and food-processing companies based in
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`Smithfield, Virginia.
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`19.
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`Defendants operate pork processing, packaging, and distribution plants in various
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`cities in North Carolina.
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`20.
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`Smithfield Foods, Inc. and Smithfield Fresh Meats Corp. employed Plaintiff Jean-
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`Francois as an hourly employee between November 2013 and October 2021.
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`Case 7:22-cv-00063-D Document 1 Filed 04/19/22 Page 4 of 10
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`21.
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`Smithfield Foods, Inc. and Smithfield Packaged Meats Corp., employed Plaintiff
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`Johnson as an hourly employee beginning in March 2017 and she is still currently employed with
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`Smithfield.
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`22.
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`Smithfield Foods, Inc. and Smithfield Fresh Meats Corp. employed Plaintiff King
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`as an hourly employee beginning in November 2006 and she is still currently employed with
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`Smithfield.
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`23.
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`24.
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`25.
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`26.
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`Jean-Francois worked at Defendants’ facility in Clinton, North Carolina.
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`Johnson worked at Defendants’ facility in Wilson, North Carolina.
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`King worked at Defendants’ facility in Tar Heel, North Carolina
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`Defendants employed other similarly situated employees at their pork processing,
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`packaging, and distribution plants throughout North Carolina.
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`27.
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`To incentivize its North Carolina hourly employees to work during the COVID-
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`19 pandemic, Smithfield paid Plaintiffs and other similarly situated employees a bonus of $5 per
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`hour for all regular hours worked up to and including forty in a workweek. Defendants called
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`the $5 per hour payment a “Responsibility Bonus.”
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`28.
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`Defendants paid the Responsibility Bonus to all hourly employees who worked at
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`Defendants’ North Carolina pork processing, packaging, and distribution plants during the period
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`April 1, 2020 to October 31, 2020.
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`29.
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`Plaintiffs and similarly situated employees are not exempt from the overtime
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`provisions of the FLSA.
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`30.
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`The FLSA requires that overtime wages for hourly employees be calculated by
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`multiplying an employee’s “regular rate” of pay times 1.5. For workweeks when Plaintiffs and
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`Case 7:22-cv-00063-D Document 1 Filed 04/19/22 Page 5 of 10
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`other similarly situated employees worked in excess of forty hours, Defendants should have
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`included the Responsibility Bonus payments in the “regular rate” of pay calculation.
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`31.
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`Defendants did not include the “Responsibility Bonus” in the “regular rate”
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`calculation. As a result, Defendants failed to pay Plaintiffs and other similarly situtated
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`employees at the correct overtime rates for all hours worked in excess of forty, thus significantly
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`underpaying the amount of overtime due to Plaintiffs and other similarly situated employees.
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`32.
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`By way of example: During the pay period July 13, 2020 to July 19, 2020
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`Plaintiff Jean-Francois’ hourly rate was $17.50 per hour. Jean-Francois was paid a $200
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`Responsibility Bonus for this pay period. Jean-Francois worked 25.48 hours of overtime and
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`was paid an overtime premium of $668.85, which was calculated by multiplying 25.48 hours
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`times $26.25 per hour ($17.50 per hour x 1.5). Defendants should have included the $200
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`Responsibility Bonus in the regular rate calculation, which would have resulted in Jean-Francois’
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`overtime rate being $30.83 per hour. Jean-Francois should have been paid an overtime premim
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`of $785.55. Defendants’ failure to include the Responsibility Bonus in Jean-Francois’ regular
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`rate of pay resulted in an underpayment of $116.70 for this pay period.
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`33.
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`By way of example, Plaintiff Johnson worked more than forty hours during the
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`pay periods July 27, 2020 to August 2, 2020 and September 14, 2020 to September 20, 2020.
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`Defendants paid Johnson a Responsibility Bonus for the regular hours she worked during each of
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`these pay periods, but did not include the Responsibility Bonus in the regular rate calculation.
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`Defendants’ failure to include the Responsibility Bonus in Johnson’s regular rate of pay resulted
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`in an underpayment of overtime for these pay periods.
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`34.
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`By way of example, Plaintiff King worked more than forty hours during the pay
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`period October 5, 2020 to October 11, 2020. Defendants paid King a Responsibility Bonus for
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`Case 7:22-cv-00063-D Document 1 Filed 04/19/22 Page 6 of 10
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`the regular hours she worked during this pay period, but did not include the Responsibility Bonus
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`in the regular rate calculation. Defendants’ failure to include the Responsibility Bonus in King’s
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`regular rate of pay resulted in an underpayment of overtime for this pay period.
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`35.
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`Defendants failed to include the Responsibility Bonus in its calculation of regular
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`rates of pay for overtime worked by Plaintiffs and similarly situated employees during the entire
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`duration Defendants paid the Responsibility Bonus.
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`36.
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`Defendants knew or should have known that the Responsibility Bonus paid to
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`Plaintiffs and other similarly situated employees should have been included in the regular rate
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`calculation. Defendants benefited economically by not paying the additional overtime owed to
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`Plaintiffs and other similarly situated employees.
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`COLLECTIVE ACTION ALLEGATIONS
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`37.
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`Plaintiffs bring their Complaint pursuant to the collective action provisions of the
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`FLSA, 29 U.S.C. § 201 et. seq.
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`38.
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`Defendants employ other hourly employees at their pork processing, packaging,
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`and distribution plants throughout North Carolina who were not paid all earned overtime
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`compensation due to Defendants’ failure to include the Responsibility Bonus in the regular rate
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`calculation. Plaintiffs estimate the number of similarly situated employees exceeds 1000.
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`39.
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`Plaintiffs are similarly situated to other current and former hourly pork
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`processing, packaging, and distribution employees in that they were subject to the identical
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`compensation scheme, i.e. Defendants’ uniform policy and practice of paying the Responsibility
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`Bonus to hourly employees, but failing to include the Responsibility Bonus in the calculation of
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`the appropriate regular rate of pay required under the FLSA.
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`Case 7:22-cv-00063-D Document 1 Filed 04/19/22 Page 7 of 10
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`40.
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`Application of the aforementioned policies and practices are not dependent on the
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`personal circumstances of employees, but rather affected Plaintiffs and all putative collective
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`action members. Application of these policies or practices does not depend on the personal
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`circumstances of the Plaintiffs or those joining this lawsuit. Rather, the same policy and practice
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`that resulted in the failure to pay overtime at the rates required by the FLSA applied to Plaintiffs
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`and all putative collective action class members. Accordingly, the class is properly defined as:
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`All current and former hourly employees employed by Defendants at their North Carolina
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`pork processing, packaging, and distribution plants between April 1, 2020 and October 31,
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`2020.
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`41.
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`Defendants willfully violated the provisions of the FLSA by failing to pay
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`Plaintiffs and all current and former North Carolina pork processing, packaging, and distribution
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`employees employed by Defendants in compliance with the FLSA regarding the calculation of
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`overtime during the period Defendants paid the Responsibility Bonus.
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`(Violation of FLSA – Collective Action)
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`Plaintiffs incorporate by reference paragraphs 1 through 41 of their Complaint.
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`Defendants violated the FLSA by failing to pay Plaintiffs and members of the
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`42.
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`43.
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`proposed collective class the correct overtime premium rate of pay as required by the FLSA for
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`all hours worked in excess of forty in a workweek.
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`44.
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`Defendants’ violation of the FLSA was willful.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs respectfully request that the Court award the following relief:
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`a)
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`An Order pursuant to Section 16(b) of the FLSA finding Defendants liable for
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`unpaid overtime wages due to Plaintiffs (and those who have joined in the suit) and for
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`Case 7:22-cv-00063-D Document 1 Filed 04/19/22 Page 8 of 10
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`liquidated damages equal in amount to the unpaid compensation found due to Plaintiffs
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`(and those who have joined in the suit);
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`b)
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`c)
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`d)
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`An Order awarding the costs of this action;
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`An Order awarding reasonable attorneys’ fees;
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`A Declaration and finding by the Court that Defendants willfully violated
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`provisions of the FLSA by failing to comply with the overtime requirements of the
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`FLSA;
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`e)
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`An Order awarding pre-judgment and post-judgment interest at the highest rates
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`allowed by law; and
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`f)
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`An Order granting such other and further relief as may be necessary and
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`appropriate.
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`9
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`Respectfully submitted,
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`
`/s/ Philip J. Gibbons, Jr.
`Philip J. Gibbons, Jr., NCSB #50276
`Corey M. Stanton, NCSB #56255
`GIBBONS LAW GROUP, PLLC
`14045 Ballantyne Corporate Place, Ste. 325
`Charlotte, NC 28277
`Telephone: (704) 612-0038
`Email: phil@gibbonslg.com
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` corey@gibbonslg.com
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`
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`David J. Fish
`John C. Kunze
`(to be admitted pro hac vice)
`FISH POTTER BOLAÑOS, P.C.
`200 E. 5th Avenue, Suite 123
`Naperville, IL 60563
`Telephone: (312) 861-1800
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`Case 7:22-cv-00063-D Document 1 Filed 04/19/22 Page 9 of 10
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`Email: dfish@fishlawfirm.com
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`kunze@fishlawfirm.com
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`Attorneys for Plaintiffs
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`Case 7:22-cv-00063-D Document 1 Filed 04/19/22 Page 10 of 10
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