`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO
`EASTERN DISTRICT
`
`TIMOTHY CARR, on behalf of himself and
`others similarly situated,
`
`
`
`
`
`EVOLUTION HEALTH, LLC,
`
`
`CARE CONNECTION OF CINCINNATI,
`LLC,
`
`INC. DBA GUARDIAN
`OHERBST,
`HEALTHCARE,
`
`AND
`
`GEM CITY HOME CARE, LLC,
`
`
`
`PLAINTIFF’S COLLECTIVE AND CLASS ACTION COMPLAINT FOR VIOLATIONS
`OF THE FAIR LABOR STANDARDS ACT AND OHIO LAW
`
`Plaintiff Timothy Carr (“Named Plaintiff” or “Plaintiff Carr”), individually and on behalf
`
`
`
`
`
`CASE NO. 2:20-cv-6292
`
`
`JUDGE
`
`
`MAGISTRATE JUDGE
`
`
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`Plaintiff,
`
`
`
`v.
`
`
`
`Defendants.
`
`of others similarly situated, files his Complaint against Evolution Health, LLC (“Evolution”), Care
`
`Connection of Cincinnati, LLC (“Care Connection”), OHERBST, Inc dba Guardian Healthcare,
`
`LLC (“Guardian”), and Gem City Home Care, LLC (“Gem City”) (hereinafter collectively referred
`
`to as “Defendants”) for Defendants’ failure to pay employees overtime wages, seeking all available
`
`relief under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201, et seq.; the Ohio
`
`Minimum Fair Wage Standards Act, O.R.C. 4111.03 and 4111.08 (“the Ohio Wage Act”); and the
`
`Ohio Prompt Pay Act (“OPPA”), Ohio Rev. Code § 4113.15 (the Ohio Wage Act and the OPPA
`
`will be referred to collectively as “the Ohio Acts”). The FLSA claim is brought as a collective
`
`
`
`Case: 2:20-cv-06292-EAS-KAJ Doc #: 1 Filed: 12/08/20 Page: 2 of 18 PAGEID #: 2
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`action pursuant to 29 U.S.C. § 216(b). The Ohio Acts claims are brought as a class action pursuant
`
`to Rule 23. The following allegations are based on personal knowledge as to the Named Plaintiff’s
`
`own conduct and are made on information and belief as to the acts of others. Named Plaintiff,
`
`individually and on behalf of others similarly situated, hereby states as follows:
`
`I.
`
`JURISDICTION AND VENUE
`
`1.
`
`2.
`
`This action is brought pursuant to the FLSA, the Ohio Acts, and 28 U.S.C. § 1331.
`
`This Court’s jurisdiction in this matter is also predicated upon 28 U.S.C. § 1367, as
`
`this Complaint raises additional claims pursuant to the laws of Ohio, over which this Court
`
`maintains supplemental subject matter jurisdiction because they form a part of the same case or
`
`controversy.
`
`3.
`
`Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because Defendants
`
`employed Named Plaintiff and others similarly situated in the Southern District of Ohio, a
`
`substantial part of the events or omissions giving rise to the claim occurred in the Southern District
`
`of Ohio, and Defendants conduct substantial business in the Southern District of Ohio.
`
`II.
`
`PARTIES
`
`A. Named Plaintiff
`
`4.
`
`Plaintiff Carr is an individual, United States citizen and a resident of the State of
`
`Ohio, living in the Southern District of Ohio.
`
`5.
`
`Plaintiff Carr was employed by Defendants beginning in or around December 2013
`
`until approximately October 2019.
`
`6.
`
`Plaintiff Carr was employed as an hourly, non-exempt employee of Defendants as
`
`defined in the FLSA and the Ohio Acts. Specifically, Plaintiff Carr was employed as an hourly
`
`occupational therapist, and Plaintiff Carr provided home health therapy services to Defendants’
`
`
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`Page 2 of 18
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`clients. During his employment, Plaintiff Carr worked at least forty (40) or more hours in given
`
`workweeks.
`
`7.
`
`Named Plaintiff brings this action on behalf of himself and those similarly situated
`
`and has given his written consent to bring this action to collect unpaid overtime compensation
`
`under the FLSA. Named Plaintiff’s consent is being filed along with this Complaint pursuant to
`
`29 U.S.C. § 216(b). (Consent to be Party Plaintiff, attached hereto as Exhibit A).
`
`B. Defendant
`
`8.
`
`Defendants are foreign limited liability companies that operate and conduct
`
`business activities throughout the United States. Defendants provide quality home health care,
`
`hospice, and infusion therapy services through various brands throughout the nation.1 Defendants
`
`employ occupational therapists (“OTs”), physical therapists (“PTs”), physical therapy assistants
`
`(“PTAs”), speech therapists (“STs”), registered nurses (“RNs”), state tested nursing assistants
`
`(“STNAs”), licensed practical nurses (“LPNs”), home health aides (“HHAs”), and other direct
`
`care providers (collectively, OTs, PTS, PTAs, STs, RNs, STNAs, LPNs, HHAs, and other in-home
`
`direct care providers will be referred to as “home health employees”) to provide home health care
`
`and therapy services to their clients.
`
`9.
`
`At all relevant times, Defendants have had direct or indirect control and authority
`
`over Named Plaintiff’s and other similarly situated home health employees’ working conditions.
`
`At all relevant times, Defendants exercised that authority and control over Named Plaintiff and
`
`other similarly situated home health employees.
`
`
`
` See https://www.evolution.net/ (last visited Nov. 20, 2020).
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`Page 3 of 18
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` 1
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`10.
`
`At all relevant times, Defendants have had direct or indirect control and authority
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`over matters governing the essential terms and conditions of employment for Named Plaintiff and
`
`other similarly situated home health employees at the facilities where Defendants operated and
`
`Named Plaintiff and other similarly situated home health employees worked. At all relevant times,
`
`Defendants exercised that authority and control over Named Plaintiff and other similarly situated
`
`home health employees.
`
`11.
`
`At all relevant times, Defendants have had the authority to hire and fire employees,
`
`supervise and control the work schedules and work conditions of home health employees,
`
`determine the rate and method of pay, and/or maintain employee records.
`
`12. Upon information and belief, Defendants apply or cause to be applied substantially the
`
`same employment policies, practices, and procedures to all home health employees at all of their
`
`locations, including policies, practices and procedures relating to the payment of wages, overtime,
`
`and timekeeping.
`
`13.
`
`At all relevant times, Defendants suffered or permitted Named Plaintiff and other
`
`similarly situated home health employees to work. The work that Named Plaintiff and other
`
`similarly situated home health employees performed was for Defendants’ benefit.
`
`14.
`
`Although Defendants consist of registered numerous other “entities,”2 these entities
`
`collectively constitute an enterprise or single employer (hereinafter referred to as “single integrated
`
`enterprise”) and are generally referred individually as an “Evolution Health Company.”
`
`Defendants qualify as a single integrated enterprise because they engaged in related activities
`
`
`
` 2
`
` The entities operate under the following names: “Guardian Health Care,” “Gem City Home Care,” “Care Connection
`of Cincinnati,” “Valley Health Home Care,” and “Ascension at Home.” See https://www.evolution.net/ (last visited
`Nov. 20, 2020).
`
`
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`Page 4 of 18
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`performed through unified operations or common control for a common business purpose.
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`Evidence of such enterprise status can be found directly on Evolution’s website, which singles out
`
`each of the previously named entities as being the names under which Evolution operates locally.3
`
`Additionally, the Evolution website does not even differentiate amongst entities when advertising
`
`job opportunities across the several states in which it operates.4
`
`15.
`
`Alternatively, Defendants qualify as joint employers of one another because they
`
`maintain interrelated operations, centralized control of labor relations, common management and
`
`common ownership, and financial control over these entities. Evidence of such joint-employer
`
`status can be found on Evolution’s website5 and on individual entity websites that recognize
`
`Evolution as both a parent company and an affiliated company.6
`
`16.
`
`Defendants each operate as an “employer” for the purposes of the FLSA and the
`
`Ohio Acts. Defendants are a single integrated enterprise and/or joint employers of Named Plaintiff
`
`and all other similarly situated home health employees.
`
`17.
`
`At all times relevant, Defendants were employers of Named Plaintiff and other
`
`similarly situated home health employees as defined in the FLSA and the Ohio Acts.
`
`
`
` 3
`
` See EVOLUTION HEALTH, “About Evolution Health,” https://www.evolution.net/about-us (last visited Nov. 20, 2020)
`(“We operate under the names of our respected local agencies including Ascension at Home, Guardian Healthcare,
`Gem City, Care Connection of Cincinnati and The Valley Home Health Care.”).
`4
`See
`EVOLUTION
`HEALTH,
`“Available
`https://recruiting2.ultipro.com/EVO1001EVH/JobBoard/d34f41e8-349c-4bec-805e-
`999a371a5788/?q=&o=postedDateDesc&w=&wc=&we=&wpst= (last visited Nov. 20, 2020) (listing job category,
`position, and location, but providing no information about particular entity associated with such location). When
`beginning from an individual entity’s website, such as Guardian Healthcare’s website, clicking on the “Apply Here”
`or “Online Job Application” links will redirect the user to the Evolution website as well. See GUARDIAN HEALTHCARE,
`https://www.guardmyhealth.com/Home.aspx (last visited Nov. 20, 2020).
`5 See supra note 3 and accompanying text.
`6 See, e.g., GEM CITY HOME CARE, “Who We Are,” https://gemcityhc.com/who_we_are.php (last visited Nov. 20,
`2020). Named Plaintiff notes that this website is shared with Care Connection. Id. Additionally, Guardian recognizes
`both Gem City and Care Connection as affiliated entities on its website. GUARDIAN HEALTHCARE, “Company Profile,”
`https://www.guardmyhealth.com/Profile.aspx (last visited Nov. 20, 2020).
`
`Opportunities,”
`
`
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`Page 5 of 18
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`18.
`
`Defendants operate, control, enterprise, and employ home health employees
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`engaged in commerce or in the production of goods for commerce or have had employees handling,
`
`selling, or otherwise working on goods or materials that have been moved in or produced for
`
`commerce by any person; additionally, Defendants each have had an annual gross volume of sales
`
`made or business done of not less than $500,000 per year (exclusive of excise taxes at the retail
`
`level).
`
`19.
`
`At all times relevant hereto, Defendants were fully aware of the fact that they were
`
`legally required to comply with the wage and overtime laws of the United States and of the State
`
`of Ohio.
`
`III.
`
`FACTS
`
`20.
`
`Named Plaintiff and Defendants’ other home health employees are either non-
`
`exempt employees or are otherwise not compensated on a salary or fee basis.
`
`21.
`
`Named Plaintiff and Defendants’ other home health employees were not guaranteed
`
`any minimum amount per week. Rather, their compensation is primarily tied to the number of
`
`visits they complete.
`
`22.
`
`Named Plaintiff was employed by Defendants as a PT from approximately
`
`December 2013 to October 2019 in Dublin, Ohio.
`
`23.
`
`Named Plaintiff was hired and employed by Defendants as a PT entitled to overtime
`
`pay.
`
`24.
`
`In reality, Defendants compensated Named Plaintiff and other home health
`
`employees on a hybrid basis. Named Plaintiff’s compensation generally included 1) per-visit fees
`
`that were determined by the type of visit; 2) hourly payments made for certain tasks, such as
`
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`Page 6 of 18
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`meetings and trainings, that were based upon the duration of those tasks; and 3) no pay for work,
`
`such as making calls, traveling, charting, etc., performed outside of time spent in patients’ homes.
`
`25.
`
`Regarding per-visit flat fees, Defendants paid Named Plaintiff and other similarly
`
`situated home health employees, for example, a flat fee for visits to a client’s home, although
`
`depending on the type of visit. For example, Named Plaintiff was paid a fee of $75 for initial
`
`evaluations and $125 for “start of care” evaluations. However, the flat fee was subject to increase
`
`if Named Plaintiff’s and other similarly situated home health employees’ visit lasted longer than
`
`usual or if the distance to the visit was farther than normal.
`
`26.
`
`Regarding hourly payments, Defendants paid Named Plaintiff and other similarly
`
`situated home health employees, for example, on an hourly basis for non-visit time, such as
`
`attending meetings or completing required trainings.
`
`27.
`
`During relevant times, Named Plaintiff worked in excess of forty (40) hours per
`
`week. These work hours included, inter alia, time spent: (i) calling clients and scheduling visits,
`
`(ii) preparing for visits, (iii) communicating with patients/physicians/case managers, (iv) in clients’
`
`houses, (v) traveling between clients, (vi) completing paperwork and charting patient visits and
`
`discharges, (vii) in meetings, and (viii) completing required trainings. Much of the time associated
`
`with these tasks was not recorded or otherwise visible on the paychecks Defendants issued to
`
`Named Plaintiff and others similarly situated.
`
`28.
`
`Defendants had a policy and/or practice of not paying their home health employees
`
`for all time spent completing job activities (i), (ii), (iii), (v), and (vi) above.
`
`29.
`
`Similar to Named Plaintiff, Defendants’ other home health employees often worked
`
`more than forty (40) hours per week.
`
`
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`Page 7 of 18
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`30.
`
`Defendants did not pay Named Plaintiff and other similarly situated home health
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`employees one-and-one-half times their regular rate of pay for all hours worked in excess of forty
`
`(40) in a workweek.
`
`31.
`
`Defendants’ failure to compensate Named Plaintiff and other similarly situated
`
`home health employees, as set forth above, resulted in unpaid overtime.
`
`32.
`
`At all times relevant herein, Named Plaintiff and other similarly situated home
`
`health employees were employees as defined in the FLSA, the Ohio Acts, and Ohio Constitution
`
`Art. 2 § 34a.
`
`33.
`
`Defendants each are and have been an “employer” as that term is defined by the
`
`FLSA, the Ohio Acts, and Ohio Constitution Art. 2 § 34a.
`
`34.
`
`During relevant times, Defendants suffered or permitted Named Plaintiff and those
`
`similarly situated home health employees to work more than forty (40) hours per workweek, while
`
`not compensating them for all such hours worked over forty (40) at a rate of at least one-and-one-
`
`half times their regular rate as a result of Defendants’ policies or practices described above that
`
`affect Named Plaintiff and all other similarly situated employees.
`
`35.
`
`By failing to pay Named Plaintiff and other home health workers an overtime
`
`premium of one-and-one-half times their regular rate of pay for all hours worked over forty (40)
`
`in a workweek, as required by the Sixth Circuit in Elwell v. University Hospitals Home Care
`
`Services,7 Defendants have violated applicable FLSA provisions.
`
`Page 8 of 18
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`
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` 276 F.3d 832 (6th Cir. 2002).
`
` 7
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`36.
`
`Upon information and belief, Defendants, at all times relevant hereto, were fully
`
`aware of the fact that they were legally required to comply with the federal and state wage and
`
`hour laws.
`
`37.
`
`During relevant times, Defendants had knowledge of and acted willfully regarding
`
`its conduct described herein. More specifically, Defendants knew or should have known Named
`
`Plaintiff and other home health workers were working in excess of forty (40) hours in a workweek
`
`because they assigned the work they performed, tracked their performance of this work, and
`
`required them to complete extensive documentation detailing their work when it was completed.
`
`38.
`
`Defendants are in possession and control of necessary documents and information
`
`from which Named Plaintiff would be able to calculate damages and/or they otherwise failed to
`
`keep such records.
`
`IV.
`
`FLSA COLLECTIVE ALLEGATIONS
`
`39.
`
`Named Plaintiff brings his FLSA claims pursuant to 29 U.S.C. § 216(b) as a
`
`representative action on behalf of himself and all other similarly situated employees of the opt-in
`
`class. The FLSA collective consists of the following:
`
`All current and former home health employees of Defendants
`who were paid, in part, on a per-visit basis during the three (3)
`years preceding the filing of this Complaint and continuing
`through the final disposition of this case (“FLSA Collective” or
`“FLSA Collective Members”).
`
`Named Plaintiff and putative FLSA Collective Members were all subject to the
`
`40.
`
`same policies or practices described above, including the (1) same material terms and conditions
`
`of employment; (2) same or substantially similar job duties; (3) common training; (4) same
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`timekeeping policies, practices, and systems; (5) same policies, practices, and systems concerning
`
`
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`Page 9 of 18
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`work hours and the performance of work; and (6) same policies, practices, and system concerning
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`overtime hours and wages.
`
`41.
`
`During some or all of the last three (3) years, Defendants did not compensate
`
`Named Plaintiff and the putative FLSA Collective Members for time spent performing substantial
`
`duties for Defendants’ benefit.
`
`V.
`
`RULE 23 ALLEGATIONS
`
`42.
`
`Named Plaintiff brings his Ohio Wage Act claims pursuant to Fed. R. Civ. P. 23 as
`
`a class action on behalf of himself and all other members of the following class:
`
`All current and former Ohio home health employees of Defendants
`who were paid, in part, on a per-visit basis during the two (2) years
`preceding the filing of this Complaint and continuing through the
`final disposition of this case (“Ohio Rule 23 Class,” “Rule 23
`Class,” or “Ohio Rule 23 Class Members”).
`
`The Ohio Rule 23 Class includes all current or former home health employees
`
`43.
`
`employed by Defendants throughout the State of Ohio as defined above.
`
`44.
`
`The Ohio Rule 23 Class, as defined above, is so numerous that joinder of all
`
`members is impracticable.
`
`45.
`
`Named Plaintiff is a member of the Ohio Rule 23 Class, and his claim for unpaid
`
`wages is typical of the claims of other members of the Rule 23 Class.
`
`46.
`
`Named Plaintiff will fairly and adequately represent the Rule 23 Class and the
`
`interests of all members of the Rule 23 Class.
`
`47.
`
`Named Plaintiff has no interests that are antagonistic to or in conflict with those
`
`interests of the Rule 23 Class that he has undertaken to represent.
`
`48.
`
`Named Plaintiff has retained competent and experienced class action counsel who
`
`can ably represent the interests of the entire Ohio Rule 23 Class.
`
`
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`Page 10 of 18
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`49.
`
`50.
`
`Questions of law and fact are common to the Ohio Rule 23 Class.
`
`Class certification is appropriate under Fed. R. Civ. P. 23(b)(1) because individual
`
`actions would create the risk of inconsistent or varying adjudications that would establish
`
`incompatible standards of conduct for Defendants with respect to their non-exempt employees.
`
`51.
`
`Class certification is appropriate under Fed. R. Civ. P. 23(b)(2), as Defendants acted
`
`or refused to act on grounds generally applicable to the Ohio Rule 23 Class, making appropriate
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`declaratory and injunctive relief with respect to Named Plaintiff and the Ohio Rule 23 Class as a
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`whole.
`
`52.
`
`Class certification is appropriate under Fed. R. Civ. P. 23(b)(3), as the questions of
`
`law and facts common to the Ohio Rule 23 Class predominate over questions affecting individual
`
`members of the Ohio Rule 23 Class and because a class action is superior to other available
`
`methods for the fair and efficient adjudication of this litigation.
`
`53.
`
`Questions of law and fact that are common to the Ohio Rule 23 Class include, but
`
`are not limited to: (a) whether Defendants violated the Ohio Wage Act by failing to pay the Ohio
`
`Rule 23 Class for hours worked in excess of forty (40) hours per workweek because of the policies
`
`and/or practices described herein; (b) whether Defendants kept accurate records of the amount of
`
`time the Ohio Rule 23 Class was working each day; (c) whether Defendants’ violations of the Ohio
`
`Wage Act were knowing and willful; (d) what amount of unpaid and/or withheld compensation,
`
`including overtime compensation, is due to Named Plaintiff and other members of the Ohio Rule
`
`23 Class on account of Defendants’ violations of the Ohio Acts; and (e) what amount of
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`prejudgment interest is due to Ohio Rule 23 Class Members on the overtime or other compensation
`
`that was withheld or not paid to them.
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`
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`Page 11 of 18
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`54.
`
`A class action is superior to individual actions for the fair and efficient adjudication
`
`of Named Plaintiff’s claims and will prevent undue financial, administrative, and procedural
`
`burdens on the parties and the Court. Named Plaintiff and counsel are not aware of any pending
`
`Ohio litigation on behalf of the Ohio Rule 23 Class, as defined herein, or on behalf of any
`
`individual alleging a similar claim. Because the damages sustained by individual members are
`
`modest compared to the costs of individual litigation, it would be impractical for class members
`
`to pursue individual litigation against the Defendants to vindicate their rights. Certification of this
`
`case as a class action will enable the issues to be adjudicated for all class members with the
`
`efficiencies of class litigation.
`
`VI. CAUSES OF ACTION
`
`FIRST CAUSE OF ACTION:
`FLSA – COLLECTIVE ACTION FOR UNPAID OVERTIME
`
`All of the preceding paragraphs are realleged as if fully rewritten herein.
`
`This claim is brought as part of a collective action by Named Plaintiff on behalf of
`
`55.
`
`56.
`
`himself and the FLSA Collective.
`
`57.
`
`The FLSA requires that employees receive overtime compensation for hours
`
`worked in excess of forty (40) per week. 29 U.S.C. § 207(a)(1).
`
`58.
`
`During the three (3) years preceding the filing of this Complaint, Defendants
`
`employed Named Plaintiff and the FLSA Collective Members.
`
`59.
`
`Named Plaintiff and the FLSA Collective Members were paid in part on a per-visit
`
`basis and in part on an hourly basis and worked in non-exempt positions.
`
`
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`Page 12 of 18
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`60.
`
`Named Plaintiff and the FLSA Collective Members regularly worked in excess of
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`forty (40) hours in workweeks or would have worked in excess of forty (40) hours in workweeks
`
`if all of their compensable time worked was recorded and compensated.
`
`61.
`
`Defendants violated the FLSA with respect to Named Plaintiff and the FLSA
`
`Collective Members by failing to pay overtime for all hours worked over forty (40) hours in a
`
`workweek, as more fully described herein.
`
`62.
`
`Named Plaintiff and the FLSA Collective Members were not exempt from
`
`receiving FLSA overtime benefits.
`
`63.
`
`Named Plaintiff and the FLSA Collective Members were not paid on a salary or
`
`fees basis. Moreover, Named Plaintiff and the FLSA Collective Members were not guaranteed a
`
`minimum weekly payment.
`
`64.
`
`Defendants knew or should have known of the overtime payment requirements of
`
`the FLSA. Despite such knowledge, Defendants willfully withheld and failed to pay the overtime
`
`compensation to which Named Plaintiff and the FLSA Collective Members are entitled.
`
`65.
`
`The exact total amount of compensation, including overtime compensation, that
`
`Defendants have failed to pay Named Plaintiff and the FLSA Collective Members is unknown at
`
`this time, as many of the records necessary to make such precise calculations are in the possession
`
`of Defendants or were not otherwise kept by Defendants.
`
`66.
`
`As a direct and proximate result of Defendants’ conduct, Named Plaintiff and the
`
`FLSA Collective Members have suffered and continue to suffer damages. Plaintiff seeks unpaid
`
`overtime and other compensation, liquidated damages, interest and attorneys’ fees, and all other
`
`remedies available, on behalf of themselves and the FLSA Collective Members.
`
`
`
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`Page 13 of 18
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`SECOND CAUSE OF ACTION:
`R.C. 4111.03 — RULE 23 CLASS ACTION FOR UNPAID OVERTIME
`
`67.
`
`All of the preceding paragraphs are realleged as if fully rewritten herein.
`
`68.
`
`This claim is brought under Ohio Law.
`
`69.
`
`Named Plaintiff and the Ohio Rule 23 Class Members have been employed by
`
`Defendants, and Defendants are employers covered by the overtime requirements under Ohio Law.
`
`70.
`
`The Ohio Wage Act requires that employees receive overtime compensation “not
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`less than one and one-half times” (1.5x) the employee’s regular rate of pay for all hours worked
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`over forty (40) in one workweek “in the manner and methods provided in and subject to the
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`exemptions of section 7 and section 13 of the Fair Labor Standards Act of 1937.” See O.R.C.
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`§ 4111.03(A); see also 29 U.S.C. § 207(a)(1).
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`71.
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`Named Plaintiff and the Ohio Rule 23 Class Members worked in excess of the
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`maximum weekly hours permitted under O.R.C. § 4111.03 but were not paid overtime wages for
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`all of such time spent working.
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`72.
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`Defendants’ policies and/or practices of not paying its home health employees for
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`all hours worked over forty (40) hours in a workweek as more fully described herein resulted in
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`unpaid overtime.
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`73.
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`Named Plaintiff and the Ohio Rule 23 Class Members were not exempt from the
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`wage protections of the Ohio Wage Act.
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`74.
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`Defendants’ repeated and knowing failures to pay overtime wages to Named
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`Plaintiff and the Ohio Rule 23 Class members were violations of R.C. § 4111.03, and as such,
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`Defendants willfully withheld and failed to pay the overtime compensation to which Named
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`Plaintiff and the Ohio Rule 23 Class Members were entitled.
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`Page 14 of 18
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`Case: 2:20-cv-06292-EAS-KAJ Doc #: 1 Filed: 12/08/20 Page: 15 of 18 PAGEID #: 15
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`75.
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`For Defendants’ violations of R.C. § 4111.03, by which Named Plaintiff and the
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`Ohio Rule 23 Class Members have suffered and continue to suffer damages, Named Plaintiff seeks
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`unpaid overtime and other compensation, liquidated damages, interest and attorneys’ fees, and all
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`other remedies available, on behalf of himself and the Rule 23 Class Members.
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`THIRD CAUSE OF ACTION:
`R.C. 4113.15 — RULE 23 CLASS ACTION FOR OPPA VIOLATION
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`All of the preceding paragraphs are realleged as if fully rewritten herein.
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`Named Plaintiff and the Ohio Rule 23 Class Members were employed by
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`76.
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`77.
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`Defendants.
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`78.
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`During all relevant times, Defendants were entities covered by the OPPA and
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`Named Plaintiff and the Ohio Rule 23 Class Members have been employed by Defendants within
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`the meaning of the OPPA.
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`79.
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`The OPPA requires Defendants to timely pay Named Plaintiff and the Ohio Rule
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`23 Class Members all wages, including unpaid overtime, in accordance with O.R.C. § 4113.15(A).
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`80.
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`During relevant times, Named Plaintiff and the Ohio Rule 23 Class Members were
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`not paid all wages, including overtime wages at one-and-one-half times their regular rate of pay
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`within thirty (30) days of performing the work. See O.R.C. § 4113.15(B).
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`81.
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`Named Plaintiff and the Ohio Rule 23 Class Members’ unpaid wages remain unpaid
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`for more than thirty (30) days beyond their regularly scheduled payday.
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`82.
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`In violating the OPPA, Defendants acted willfully, without a good faith basis, and
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`with reckless disregard of clearly applicable Ohio law.
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`FOURTH CAUSE OF ACTION:
`RECORDKEEPING VIOLATIONS OF THE OHIO WAGE ACT
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`83.
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`All of the preceding paragraphs are realleged as if fully rewritten herein.
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`Page 15 of 18
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`Case: 2:20-cv-06292-EAS-KAJ Doc #: 1 Filed: 12/08/20 Page: 16 of 18 PAGEID #: 16
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`84.
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`The Ohio Wage Act requires employers to maintain and preserve payroll or
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`other records containing, among other things, the hours worked each workday, and the total
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`hours worked each workweek. See O.R.C. § 4111.08. See also, 29 C.F.R. §§ 516.2 et seq.
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`85. During times material to this complaint, Defendants were covered employer and
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`required to comply with the Ohio Wage Act’s mandates.
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`86. Named Plaintiff and the Ohio Rule 23 Class Members were covered employees
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`entitled to the protection of the Ohio Wage Act.
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`87. During times material to this complaint, Defendants violated the Ohio Wage Act
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`with respect to Named Plaintiff and the Ohio Rule 23 Class Members by failing to properly
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`maintain accurate records of all hours Named Plaintiff and the Rule 23 Class Members worked
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`each workday and within each workweek.
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`88.
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`In violating the Ohio Wage Act, Defendants acted willfully and with reckless
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`disregard of clearly applicable Ohio Wage Act provisions.
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`VII. PRAYER FOR RELIEF
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`
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`WHEREFORE, Named Plaintiff requests judgment against Defendants for an Order:
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`A.
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`B.
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`Certifying the proposed FLSA collective action;
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`Directing prompt issuance of notice pursuant to 29 U.S.C. § 216(b) to the FLSA
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`Collective apprising them of the pendency of this action, and permitting them to timely assert their
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`rights under the FLSA and pursuant to 29 U.S.C. § 216(b);
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`C.
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`D.
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`Certifying the proposed Rule 23 Class under the Ohio Acts;
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`Finding Defendants failed to keep accurate records in accordance with the Ohio
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`Wage Act, and as such, Named Plaintiff, the FLSA Collective Members, and the Ohio Rule 23
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`Class Members are entitled to prove their hours worked with reasonable estimates;
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`Page 16 of 18
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`Case: 2:20-cv-06292-EAS-KAJ Doc #: 1 Filed: 12/08/20 Page: 17 of 18 PAGEID #: 17
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`E.
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`Awarding to Named Plaintiff and the FLSA Collective Members unpaid
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`compensation, including overtime wages, as to be determined at trial together with any liquidated
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`damages allowed by the FLSA;
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`F.
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`Awarding to Named Plaintiff and the Ohio Rule 23 Class Members unpaid
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`compensation, including overtime wages, as to be determined at trial together with any liquidated
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`damages allowed by the Ohio Wage Act;
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`G.
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`Awarding judgment against Defendants for liquidated damages pursuant to the
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`OPPA in the greater amount of $200 per violation or six percent (6%) of all unpaid overtime
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`compensation owed to the Named Plaintiff and the Ohio Rule 23 Class Members during the
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`applicable statutory period;
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`H.
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`Awarding Named Plaintiff, the FLSA Collective Members, and the Ohio Rule 23
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`Class Members costs and disbursements and reasonable allowances for fees of counsel and experts,
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`and reimbursement of expenses;
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`I.
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`Awarding Named Plaintiff, the FLSA Collective Members, and the Ohio Rule 23
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`Class Members such other and further relief as the Court deems just and proper;
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`J.
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`Issuing an injunction prohibiting Defendants from engaging in present, ongoing,
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`and future violations of the FLSA and the Ohio Wage Act;
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`K.
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`Granting Named Plaintiff leave to amend to file additional claims for relief or
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`different causes of action should information become available through investigation and
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`discovery;
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`L.
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`Rendering a judgment against Defendants for all damage, relief, or any other
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`recovery whatsoever;
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`Page 17 of 18
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`Case: 2:20-cv-06292-EAS-KAJ Doc #: 1 Filed: 12/08/20 Page: 18 of 18 PAGEID #: 18
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`M.
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`An Order directing Defendants to pay reasonable attorney’s fees and all costs
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`connected with this action; and
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`N.
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`Such other and further relief as this Court may deem necessary, just, and proper.
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`Respectfully submitted,
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`COFFMAN LEGAL, LLC
`
`
`/s/ Matthew J.P. Coffman
`Matthew J.P. Coffman (0085586)
`Adam C. Gedling (0085256)
`1550 Old Henderson Rd.
`Suite #126
`Columbus, Ohio 43220
`Phone: 614-949-1181
`Fax: 614-386-9964
`Email: mcoffman@mcoffmanlegal.com
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`agedling@mcoffmanlegal.com
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`Attorneys for Named Plaintiff and those similarly
`situated
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`
`
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`JURY DEMAND
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`Named Plaintiff req