throbber
Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 1 of 12 PAGEID #: 1
`
`MICHAEL L. FRADIN (0091739)
`mike@fradinlaw.com
`LAW OFFICE OF MICHAEL L. FRADIN
`8 N. Court St. Suite 403
`Athens, Ohio 45701
`Telephone: 847/986-5889
`Facsimile: 847/673-1228
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION
`
`SHANNON BARRON,
`
`On behalf of herself and all others
`similarly situated
`
`
`
`v.
`
`CHARTER COMMUNICATIONS,
`LLC
`
`c/o Corporation Service Company
`50 West Broad Street Suite 1330
`Columbus, OH 43215
`
`Defendant,
`
`Plaintiffs,
`
`Case No. ----------
`
`COMPLAINT FOR VIOLATIONS OF:
`
`1. The Fair Labor Standards Act (29
`U.S.C. §§ 201-219);
`2. FRCP 23 Class Action (State-Law
`Claims):
`a. Article II, § 34a of the Ohio
`Constitution
`b. Ohio Revised Code Chapter
`4111: Ohio Minimum Fair Wage
`Standards Act
`c. Ohio Revised Code 2307.60: Civil
`Action For Damages For
`Criminal Act
`
`DEMAND FOR JURY TRIAL
`
`
`
` Judge -------
` Magistrate Judge ------
`
`
`
`
`
`
`
`Now comes Plaintiff, Shannon Barron, by and through her undersigned counsel, Michael
`
`L. Fradin and Hans A. Nilges, and for her Complaint against Defendant, Charter Communications,
`
`LLC states and alleges the following:
`
`
`
`INTRODUCTION
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 2 of 12 PAGEID #: 2
`
`1.
`
`This is a “collective action” instituted by Plaintiff as a result of Defendant’s
`
`practices and policies of not paying its non-exempt employees, including Plaintiff and other
`
`similarly-situated employees, for all hours worked, in violation of the Fair Labor Standards Act
`
`(“FLSA”), 29 U.S.C. §§ 201-219, as well as a “class action” pursuant to Fed. R. Civ. P. 23 to
`
`remedy violations of Article II, § 34A of the Ohio Constitution, the Ohio Minimum Fair Wage
`
`Standards Act (“OMFWSA”), R.C. 4111.03 and R.C. 2307.60.
`
`
`
`JURISDICTION AND VENUE
`
`2.
`
`The Court has jurisdiction over Plaintiff’s FLSA claims pursuant to 28 U.S.C. §
`
`1331 and 29 U.S.C. § 216(b).
`
`3.
`
`The Court has supplemental jurisdiction over Plaintiff’s OMFWSA, Ohio
`
`Constitutional, and R.C. 2307.60 claims pursuant to 28 U.S.C. § 1367 because the claims are so
`
`related to the FLSA claims as to form part of the same case or controversy.
`
`4.
`
`Venue is proper pursuant to 28 U.S.C. § 1391(b) because Defendant conducts
`
`business throughout this District and Division and because a substantial part of the events and
`
`omissions giving rise to the claims occurred in this District and Division.
`
`
`
`5.
`
`At all times relevant herein, Plaintiff has been a citizen of the United States and a
`
`PARTIES
`
`resident of Ohio.
`
`6.
`
`At all times relevant herein, Plaintiff was an employee within the meaning of 29
`
`U.S.C. § 203(e) and R.C. 4111.03(D)(3).
`
`7.
`
`Defendant Charter Communications, LLC is a corporation for profit organized and
`
`existing under the laws of the State of Delaware.
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 3 of 12 PAGEID #: 3
`
`8.
`
`At times relevant herein, Defendant conducted business in Dublin, Ohio as well as
`
`across the Country.
`
`9.
`
`At all times relevant herein, Defendant was an employer within the meaning of 29
`
`U.S.C. § 203(d) and R.C. 4111.03(D)(2).
`
`10. At all times relevant herein, Defendant was an enterprise within the meaning of 29
`
`U.S.C. § 203(r).
`
`11. At all times relevant herein, Defendant was an enterprise engaged in commerce or
`
`in the production of goods for commerce within the meaning of 29 U.S.C. § 203(s)(1).
`
`12. At all times relevant herein, Plaintiff and the putative class members were
`
`employees engaged in commerce or in the production of goods for commerce within the meaning
`
`of 29 U.S.C. §§ 206-207.
`
`13. Plaintiff’s consent is attached as exhibit A. Written consents to join this action as to
`
`Count One, as and when executed by other individual plaintiffs, will be filed pursuant to 29 U.S.C.
`
`§ 216(b).
`
`
`
`FACTUAL ALLEGATIONS
`
`14.
`
`Defendant operates customer service centers throughout the United States that
`
`employ account representatives and compliance representatives and other customer service
`
`representatives (hereinafter “representatives”).
`
`15.
`
`Defendant also employs representatives who work remotely and perform the same
`
`tasks as the call center/customer care representatives who work in the call centers.
`
`16.
`
`Plaintiff was employed by Defendant at their Dublin, Ohio customer service center
`
`from about October, 2008 through about July 30, 2020.
`
`17.
`
`Like other representatives, Plaintiff also often worked from home.
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 4 of 12 PAGEID #: 4
`
`18.
`
`Plaintiff and other similarly-situated employees were employed as customer service
`
`representatives or performed similar tasks as call center/ customer care/account/compliance
`
`representatives.
`
`19.
`
`Plaintiff and other similarly-situated employees are non-exempt employees under
`
`the FLSA.
`
`20.
`
`Plaintiff and other similarly-situated employees are paid an hourly wage.
`
` (Failure to Pay For Time Spent Starting and Logging Into
`Computer Systems, Applications, and Phone System)
`
`Plaintiff and other similarly-situated employees were required by Defendant to
`
`21.
`
`perform unpaid work before clocking in each day, including but not limited to starting and logging
`
`into Defendant’s computer systems, numerous software applications, and phone system.
`
`22.
`
`Defendant arbitrarily failed to count this work performed by Plaintiff and other
`
`similarly-situated employees as “hours worked.”
`
`23.
`
`Plaintiff and other similarly-situated employees performed this unpaid work every
`
`workday, and it constituted a part of their fixed and regular working time.
`
`24.
`
`This unpaid work performed by Plaintiff and other similarly-situated employees
`
`was practically ascertainable to Defendant.
`
`25.
`
`There is no practical administrative difficulty of recording this unpaid work of
`
`Plaintiff’s and other similarly-situated employees. It could be precisely recorded for payroll
`
`purposes simply by allowing them to clock in and be paid before they brought up Defendant’s
`
`computer systems, applications, and phone system.
`
`26.
`
`This unpaid work performed by Plaintiff and other similarly-situated employees
`
`constituted a part of their principal activities, was required by Defendant, and was performed for
`
`Defendant’s benefit.
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 5 of 12 PAGEID #: 5
`
`27. Moreover, this unpaid work is an integral and indispensable part of other principle
`
`activities performed by Plaintiff and other similarly-situated employees. They cannot perform
`
`their work without bringing up Defendant’s computer systems, applications, and phone system.
`
`(Failure to Pay for Time Spent on Post-Shift Calls, Shutting Down Computer Systems,
`Applications, and Phone System)
`
`Plaintiff and other similarly-situated employees were required by Defendant to
`
`28.
`
`perform unpaid work after their shift ended each day including but not limited to shutting down
`
`and logging out of Defendant’s computer systems, numerous software applications, and phone
`
`system.
`
`29.
`
`Defendant arbitrarily failed to count this work performed by Plaintiff and other
`
`similarly-situated employees as “hours worked.”
`
`30.
`
`Plaintiff and other similarly-situated employees performed this unpaid work every
`
`workday, and it constituted a part of their fixed and regular working time.
`
`31.
`
`This unpaid work performed by Plaintiff and other similarly-situated employees
`
`was practically ascertainable to Defendant.
`
`32.
`
`There was no practical administrative difficulty of recording this unpaid work of
`
`Plaintiff and other similarly-situated employees. It could have been precisely recorded for payroll
`
`purposes simply by allowing them to clock out after shutting down Defendant’s computer systems,
`
`applications, and phone system and before and after other meetings and work time.
`
`33.
`
`This unpaid work performed by Plaintiff and other similarly-situated employees
`
`constituted a part of their principal activities, was required by Defendant, and was performed for
`
`Defendant’s benefit.
`
`34. Moreover, this unpaid work was an integral and indispensable part of other
`
`principle activities performed by Plaintiff and other similarly-situated employees.
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 6 of 12 PAGEID #: 6
`
` (Failure to Pay for Time Spent working but not logged into computer systems)
`
`35.
`
`Defendant utilized a timekeeping system such that Plaintiff and similarly situated
`
`employees are not paid for all hours worked.
`
`36.
`
`Plaintiff and similarly situated employees are not compensated for the time spent
`
`not logged into call programs or any other time spent working to log in or out of the computer
`
`systems, applications, and phone system.
`
` (Failure to Pay Overtime Compensation)
`
`37.
`
`As a result of Plaintiff and other similarly-situated employees not being paid for all
`
`hours worked, Plaintiff and other similarly-situated employees were not paid overtime
`
`compensation for all of the hours they worked over 40 each workweek.
`
`
`
`
`
`38.
`
`Defendant knowingly and willfully engaged in the above-mentioned violations of
`
`the FLSA.
`
`(Failure to Keep Accurate Records)
`
`39. Defendant failed to make, keep and preserve records of the unpaid work performed
`
`by Plaintiffs and other similarly-situated employees before clocking in each day.
`
`
`
`COLLECTIVE ACTION ALLEGATIONS
`
`40.
`
`Plaintiff brings Count One of this action on her own behalf pursuant to 29 U.S.C.
`
`§ 216(b), and on behalf of all other persons similarly situated who have been, are being, or will be
`
`adversely affected by Defendant’s unlawful conduct.
`
`41.
`
`The class which Plaintiff seeks to represent and for whom Plaintiff seeks the right
`
`to send “opt-in” notices for purposes of the collective action, and of which Plaintiff is herself a
`
`member, is composed of and defined as follows:
`
`All former and current call center/customer
`care/account/compliance representatives or persons with jobs
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 7 of 12 PAGEID #: 7
`
`performing substantially identical functions and/or duties to call
`center/customer care/account/compliance representatives
`employed by Charter Communications, LLC during the statutory
`period covered by this Complaint.
`
`Plaintiff is unable to state at this time the exact size of the potential class, but upon
`
`42.
`
`information and belief, avers that it consists of more than 100 persons.
`
`43.
`
`This action is maintainable as an “opt-in” collective action pursuant to 29 U.S.C. §
`
`216(b) as to claims for unpaid overtime compensation, liquidated damages, attorneys’ fees and
`
`costs under the FLSA. In addition to Plaintiff, numerous current and former employees are
`
`similarly situated with regard to their wages and claims for unpaid wages and damages. Plaintiff
`
`is representative of those other employees and is acting on behalf of their interests as well as her
`
`own in bringing this action.
`
`44.
`
`These similarly-situated employees are known to Defendant and are readily
`
`identifiable through Defendant’s payroll records. These individuals may readily be notified of this
`
`action, and allowed to opt in pursuant to 29 U.S.C. § 216(b), for the purpose of collectively
`
`adjudicating their claims for unpaid overtime compensation, liquidated damages, attorneys’ fees
`
`and costs under the FLSA.
`
`CLASS ACTION ALLEGATIONS
`
`45.
`
`Plaintiff brings Counts Two and Three of this action pursuant to Fed. R. Civ. P.
`
`23(a) and (b)(3) on behalf of herself and all other members of the class (“the Ohio Class”) defined
`
`as:
`
`
`
`All former and current call center/customer
`care/account/compliance representatives or persons with jobs
`performing substantially identical functions and/or duties to call
`center/customer care/account/compliance representatives employed
`by Charter Communications, LLC in the State of Ohio during the
`statutory period covered by this Complaint.
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 8 of 12 PAGEID #: 8
`
`46.
`
`The Ohio Class is so numerous that joinder of all class members is impracticable.
`
`Plaintiff is unable to state at this time the exact size of the potential Ohio Class, but upon
`
`information and belief, avers that it consists of at least 100 persons.
`
`47.
`
`There are questions of law or fact common to the Ohio Class, including but not
`
`limited to the following:
`
`(a) whether Defendant failed to pay overtime compensation to its
`customer care/call center/account/compliance representatives
`for hours worked in excess of 40 each workweek; and
`
`(b) what amount of monetary relief will compensate Plaintiff and
`other members of the Class for Defendant’s violation of R.C.
`4111.03 and 4111.10 and Article II, § 34A of the Ohio
`Constitution.
`
`48.
`
`The claims of the named Plaintiff is typical of the claims of other members of the
`
`
`
`Ohio Class. Named Plaintiff’s claims arise out of the same uniform course of conduct by
`
`Defendant and are based on the same legal theories as the claims of the other Ohio Class members.
`
`49.
`
`The named Plaintiff will fairly and adequately protect the interests of the Ohio
`
`Class. Her interests are not antagonistic to, but rather are in unison with, the interests of the other
`
`Ohio Class members. The named Plaintiff’s counsel has broad experience in handling class action
`
`wage-and-hour litigation and is fully qualified to prosecute the claims of the Ohio Class in this
`
`case.
`
`50.
`
`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
`
`Defendant’s liability to the Ohio Class, listed above, are common to the class as a whole, and
`
`predominate over any questions affecting only individual class members.
`
`51.
`
`A class action is superior to other available methods for the fair and efficient
`
`adjudication of this controversy. Requiring Ohio Class members to pursue their claims
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 9 of 12 PAGEID #: 9
`
`individually would entail a host of separate suits, with concomitant duplication of costs, attorneys’
`
`fees, and demands on court resources. Many Ohio 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 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
`(Fair Labor Standards Act Violations)
`
`52.
`
`Plaintiff incorporates by reference the foregoing allegations as if fully rewritten
`
`herein.
`
`53.
`
`Defendant’s practice and policy of not paying Plaintiff and other similarly-situated
`
`employees for work performed before clocking in each day violated the FLSA, 29 U.S.C. § 207,
`
`29 CFR § 785.24.
`
`54.
`
`Defendant’s practice and policy of not paying Plaintiff and other similarly-situated
`
`employees for all work performed each day violates the FLSA, 29 U.S.C. § 207, 29 CFR § 785.24.
`
`55.
`
`Defendant’s practice and policy of not paying Plaintiff and other similarly-situated
`
`employees overtime compensation at a rate of one and one-half times their regular rate of pay for
`
`all of the hours they worked over 40 in a workweek violates the FLSA, 29 U.S.C. § 207.
`
`56.
`
`Defendant’s failure to keep records of all of the hours worked each workday and
`
`the total hours worked each workweek by Plaintiff and other similarly-situated employees violates
`
`the FLSA, 29 C.F.R. 516.2(a)(7).
`
`57.
`
`By engaging in the above-mentioned conduct, Defendant willfully, knowingly
`
`and/or recklessly violated the provisions of the FLSA.
`
`58. As a result of Defendant’s practices and policies, Plaintiff and other similarly-
`
`situated employees have been damaged in that they have not received wages due to them pursuant
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 10 of 12 PAGEID #: 10
`
`to the FLSA.
`
`COUNT TWO
`(Violations of Ohio Revised Code 4111.03 and Article II, § 34A of the Ohio Constitution)
`
`Plaintiff incorporates by reference the foregoing allegations as if fully rewritten
`
`59.
`
`herein.
`
`60.
`
`Defendant’s practice and policy of not paying Plaintiff and other similarly-situated
`
`employees for work performed before clocking in each day violated the OMFWSA, R.C. 4111.03
`
`and Article II, § 34A of the Ohio Constitution.
`
`61.
`
`Defendant’s practice and policy of not paying Plaintiff and other similarly-situated
`
`employees for work performed after their shift ended violated the OMFWSA, R.C. 4111.03 and
`
`Article II, § 34A of the Ohio Constitution.
`
`62.
`
`Defendant’s practice and policy of not paying Plaintiff and other similarly-situated
`
`employees for work performed when not logged into Defendant’s computer systems, applications,
`
`and phone system violated the OMFWSA, R.C. 4111.03 and Article II, § 34A of the Ohio
`
`Constitution.
`
`63.
`
`Defendant’s practice and policy of not paying Plaintiff and other similarly-situated
`
`employees overtime compensation at a rate of one and one-half times their regular rate of pay for
`
`all of the hours they worked over 40 in a workweek violated the OMFWSA, R.C. 4111.03 and
`
`Article II, § 34A of the Ohio Constitution
`
`64.
`
`By failing to pay Plaintiff and other similarly-situated employees’ overtime
`
`compensation, Defendant willfully, knowingly and/or recklessly violated the provisions of the
`
`OMFWSA, R.C. 4111.03 and Article II, § 34A of the Ohio Constitution.
`
`Count Three
`Damages Pursuant to O.R.C. § 2307.60
`(On Behalf of Plaintiff and the Rule 23 Class)
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 11 of 12 PAGEID #: 11
`
`
`As a result of Defendant’s practices and policies, Plaintiff and other similarly-
`
`65.
`
`situated employees have been damaged in that they have not received wages due to them pursuant
`
`to the OMFWSA and the Ohio Constitution. Plaintiff restates and incorporate the foregoing
`
`allegations as if fully rewritten herein.
`
`66.
`
`The Fair Labor Standards Act, 29 U.S.C. § 216(a), imposes criminal penalties for
`
`willful violations of the FLSA.
`
`67.
`
`By their acts and omissions described herein, Defendant has willfully violated the
`
`FLSA, and Plaintiff and the Rule 23 Class have been injured as a result.
`
`68.
`
`O.R.C. § 2307.60 permits anyone injured in person or property by a criminal act to
`
`recover damages in a civil action, including exemplary and punitive damages.
`
`69.
`
`As a result of Defendant’s willful violations of the FLSA, Plaintiff and the Rule 23
`
`Class are entitled to compensatory and punitive damages pursuant to O.R.C. § 2307.60.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff, and all those similarly situated, collectively pray that this
`
`
`
`
`Honorable Court:
`
`A.
`
`B.
`
`Issue an order permitting this litigation to proceed as a collective action;
`
`Order prompt notice, pursuant to 29 U.S.C. § 216(b), to all class members that this
`
`litigation is pending and that they have the right to “opt in” to this litigation;
`
`
`
`
`
`C.
`
`D.
`
`Award Plaintiff and the classes she represents actual damages for unpaid wages;
`
`Award Plaintiff and the Rule 23 Class compensatory and punitive damages
`
`pursuant to O.R.C. 2307.60;
`
`
`
`
`
`D.
`
`E.
`
`Award Plaintiff and the classes she represents statutory liquidated damages;
`
`Award Plaintiff and the classes she represents pre- and post-judgment interest at the
`
`

`

`Case: 2:20-cv-04442-MHW-EPD Doc #: 1 Filed: 08/28/20 Page: 12 of 12 PAGEID #: 12
`
`statutory rate;
`
`F.
`
`Award Plaintiff and the classes she represents attorneys’ fees, costs, and
`
`disbursements; and
`
`G.
`
`Award Plaintiff and the classes she represents further and additional relief as this
`
`Court deems just and proper.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
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`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /s/ Michael L. Fradin
` Michael Fradin (0091739)
` 8 N. Court St. Suite 403
`
` Athens, Ohio 45701
`
` P: 847-986-5889
`
` Fax: 847-673-1228
`
` Email: mike@fradinlaw.com
`
`
`
`
` /s/ Hans A. Nilges
`Hans A. Nilges (0076017)
`4580 Stephen Circle, NW
`Suite 201
`Canton, Ohio 44718
`P:(330) 470-4428
`Fax:(330) 754-1430
`Email: hans@ohlaborlaw.com
`
`
`JURY DEMAND
`
`
`
`Plaintiff demands a trial by jury on all eligible claims and issues.
`
`

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