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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
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`JEREMY GUSLOFF,
`individually and on behalf of
`all those similarly situated,
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`Plaintiff,
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`Case No. 21-cv-662
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`v.
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`QUINCY BIOSCIENCE HOLDING COMPANY, INC.
`726 Heartland Trail, Suite 300
`Madison, Wisconsin 53717
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`Defendant.
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`COLLECTIVE AND CLASS ACTION COMPLAINT
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`PRELIMINARY STATEMENT
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`1.
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`This is a collective and class action brought by Individual and
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`Representative Plaintiff, Jeremy Gusloff (“Plaintiff”), on his own behalf and on behalf
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`of the proposed classes identified below. Plaintiff and the putative class members,
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`during the three years preceding this lawsuit, were employed as sales representatives
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`by Defendant, Quincy Bioscience Holding Company, Inc. In this role, Plaintiff and
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`the putative class members made sales over the phone. Plaintiff and the putative
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`class members were paid an hourly wage and were also eligible for nondiscretionary
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`commissions and bonuses based on their sales. Plaintiff and the putative class
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`members were paid overtime wages when they worked in excess of 40 hours in a
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`workweek. However, Defendant failed to properly calculate the regular rate of pay
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`Case: 3:21-cv-00662 Document #: 1 Filed: 10/19/21 Page 2 of 10
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`when determining overtime wages. Specifically, Defendant failed to include
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`commission payments in its computation of the regular rate for overtime pay to
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`Plaintiff and the putative class members. As a result, Plaintiff and the putative class
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`members were regularly denied earned overtime wages. Plaintiff, on behalf of himself
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`and the putative classes, alleges that this conduct violates the Fair Labor Standards
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`Act (“FLSA”), 29 U.S.C. § 201 et seq. and the Wisconsin Wage Payment and Collection
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`Act, Wis. Stat. § 109.01 et seq.
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`JURISDICTION AND VENUE
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`2.
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`The Court has original jurisdiction over this action under 28 U.S.C.
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`§ 1331 because Plaintiff asserts claims under the FLSA, 29 U.S.C. § 201 et seq. The
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`Court has supplemental jurisdiction over Plaintiff’s state-law claims pursuant to
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`28 U.S.C. § 1367.
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`3.
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`Venue is proper in the Western District of Wisconsin under 28 U.S.C.
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`§ 1391 because Defendant resides in this district and because a substantial part of
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`the events or omissions giving rise to Plaintiff’s claims occurred in this district.
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`PARTIES
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`4.
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`Plaintiff, Jeremy Gusloff, is an adult resident of Ridgeway, Wisconsin.
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`Gusloff was employed as a sales representative by Defendant within the past three
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`years. Gusloff’s signed consent form is filed as Exhibit A to this Complaint and is
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`incorporated herein by reference.
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`5.
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`Defendant, Quincy Bioscience Holding Company, Inc., is a domestic
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`business corporation. Its principal office address is located at 726 Heartland Trail,
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`Case: 3:21-cv-00662 Document #: 1 Filed: 10/19/21 Page 3 of 10
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`Suite 300, Madison, Wisconsin. Its registered agent for service is Anthony J. Cords
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`at 726 Heartland Trail, Suite 300, Madison, Wisconsin.
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`6.
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`Defendant is an enterprise engaged in commerce within the meaning of
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`29 U.S.C. § 203(s)(1). Defendant is an employer within the meaning of 29 U.S.C.
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`§ 203(d), Wis. Stat. § 103.001(6), and Wis. Stat. § 109.01(2).
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`FACTUAL ALLEGATIONS
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`7.
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`Throughout the three years preceding the filing of this lawsuit, Plaintiff
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`and the putative class members (the “Sales Representatives”) are or were employed
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`by Defendant as sales representatives.
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`8.
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`Throughout the three-year period preceding the filing of this lawsuit,
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`Plaintiff and the Sales Representatives were classified by Defendant as non-exempt
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`from overtime wages.
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`9.
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`Throughout the three-year period preceding the filing of this lawsuit,
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`Plaintiff and the Sales Representatives were paid an hourly wage for their work.
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`10. Throughout the three-year period preceding the filing of this Complaint,
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`Plaintiff and the Sales Representatives were eligible to earn commissions and
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`bonuses.
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`11. Defendant calculated the amounts of these commissions and bonuses
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`based on Plaintiff’s and the Sales Representatives’ sales using standard formulas that
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`Defendant made known to Plaintiff and the Sales Representatives.
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`12. Defendant promised in advance to pay these commissions and bonuses
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`to Plaintiff and the Sales Representatives as an incentive to increase their sales.
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`Case: 3:21-cv-00662 Document #: 1 Filed: 10/19/21 Page 4 of 10
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`13. Throughout the three-year period preceding the filing of this Complaint,
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`Plaintiff and the Sales Representatives were paid overtime wages when they worked
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`in excess of 40 hours in a workweek.
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`14. Upon information and belief, Defendant failed to include commissions
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`or bonuses earned by Plaintiff and the Sales Representatives when calculating the
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`overtime premium due for hours worked in excess of 40 in a workweek, instead
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`calculating the overtime rate as one and one-half times the hourly rate of pay and
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`depriving Plaintiff and the Sales Representatives of all earned overtime wages.
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`15. Plaintiff brings this action on behalf of himself and on behalf of all other
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`similarly-situated employees pursuant to 29 U.S.C. § 216(b). The Collective Class of
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`similarly-situated employees is defined as:
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`All persons who have been or are currently employed by
`Quincy Bioscience Holding Company, Inc., as sales
`representatives
`in the United States who received
`commission or bonus payments and who worked more than
`40 hours per workweek at any time from three years prior
`to the commencement of this action to the present and
`ongoing.
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`16. Plaintiff brings this action on behalf of himself and on behalf of all other
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`similarly-situated employees pursuant to Fed. R. Civ. P. 23. The Wisconsin Overtime
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`Class is defined as:
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`All persons who have been or are currently employed by
`Quincy Bioscience Holding Company, Inc., as sales
`representatives in Wisconsin who received commission or
`bonus payments and who worked more than 40 hours per
`workweek at any time from two years prior to the
`commencement of this action to the present and ongoing.
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`Case: 3:21-cv-00662 Document #: 1 Filed: 10/19/21 Page 5 of 10
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`CLASS ALLEGATIONS
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`17. Plaintiff brings the Second Claim for Relief on his own behalf and on
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`behalf of the Wisconsin Overtime Class, as defined in paragraph 14, supra, pursuant
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`to Rule 23(a) and (b) of the Federal Rules of Civil Procedure.
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`18. The persons in the Wisconsin Overtime Class are so numerous that
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`joinder of all members is impracticable. Although the precise number of such persons
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`is unknown, upon information and belief, Defendant has employed more than 40
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`Sales Representatives within the two years preceding the filing of this Complaint.
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`19. There are questions of law and fact common to the Wisconsin Overtime
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`Class that are capable of class-wide resolution and predominate over any questions
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`solely affecting individual members of the class, including but not limited to:
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`a. Whether Defendant excluded commissions and/or
`bonus payments when calculating the regular rate of
`pay for Plaintiff and the members of the putative class;
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`b. Whether Defendant’s exclusion of commission and/or
`bonus payments when calculating the regular rate of
`pay for Plaintiff and the members of the putative class
`was dilatory or otherwise unjust; and
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`c. The proper measure of damages sustained by Plaintiff
`and the members of the putative class.
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`20. Plaintiff’s claims are typical of those of the Wisconsin Overtime Class.
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`Plaintiff, like other putative members of the Wisconsin Overtime Class, was subjected
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`to Defendant’s illegal pay policies and practices of excluding commissions and/or
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`bonuses from the regular rate of pay when calculating overtime wages for hours
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`worked in excess of 40 in a workweek.
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`Case: 3:21-cv-00662 Document #: 1 Filed: 10/19/21 Page 6 of 10
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`21. Plaintiff will fairly and adequately protect the interests of the putative
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`Wisconsin Overtime Class and has retained counsel experienced in complex wage and
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`hour litigation.
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`22. A class action is superior to other available methods for the fair and
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`efficient adjudication of the controversy, particularly in the context of wage and hour
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`litigation where individual plaintiffs lack the financial resources to vigorously
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`prosecute separate lawsuits in federal court against a large corporate defendant and
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`where individual plaintiffs may have relatively small claims.
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`23. Class certification of the Second Claim for Relief is appropriate under
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`Fed. R. Civ. P. 23(b)(3) because questions of law and fact common to the Wisconsin
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`Overtime Class predominate over any questions affecting only individual members of
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`the classes, and because a class action is superior to other available methods for the
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`fair and efficient adjudication of this litigation. Defendant’s common and uniform
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`policies and practices denied the Wisconsin Overtime Class wages for work performed
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`to which they are entitled. The damages suffered by the individual members of these
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`classes are small compared to the expense and burden of individual prosecution of
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`this litigation. In addition, combining all members subject to Defendant’s uniform
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`illegal policies in a single suit best serves the interests of judicial efficiency. Finally,
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`class certification is superior because it will obviate the need for unduly duplicative
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`litigation that might result in inconsistent judgments about Defendant’s pay
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`practices.
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`Case: 3:21-cv-00662 Document #: 1 Filed: 10/19/21 Page 7 of 10
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`24. Plaintiff intends to send notice to all members of the Wisconsin
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`Overtime Class to the extent required by Fed. R. Civ. P. 23.
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`FIRST CLAIM FOR RELIEF
`FAILURE TO PAY OVERTIME COMPENSATION
`IN VIOLATION OF THE FLSA
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`25. Plaintiff, individually and on behalf of the Collective Class, alleges and
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`incorporates by reference the allegations in the preceding paragraphs.
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`26. Plaintiff and the members of the Collective Class are or have been
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`employees of Quincy Bioscience Holding Company, Inc., within the meaning of 29
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`U.S.C. § 203(e).
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`27. The FLSA requires each covered employer to compensate all non-exempt
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`employees at a rate of not less than one and one-half times their regular rate of pay
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`for hours worked in excess of 40 in a workweek.
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`28. Per 29 C.F.R. § 778.117, commissions are payments for hours worked
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`and must be included in the regular rate.
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`29. During the applicable statute of limitations, Plaintiff and the members
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`of the Collective Class performed work in excess of 40 hours in a workweek but were
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`not paid one and one-half times their regular rate of pay for all overtime hours worked
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`because Defendant failed to include commission and/or bonus payments when
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`calculating the regular rate of pay.
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`30. These practices violate the FLSA, including but not limited to 29 U.S.C.
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`§ 207.
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`Case: 3:21-cv-00662 Document #: 1 Filed: 10/19/21 Page 8 of 10
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`31. Because of these violations, Plaintiff and the members of the Collective
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`Class have suffered a wage loss.
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`32. Upon information and belief, Defendant knew or showed reckless
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`disregard for the fact that it failed to pay Plaintiff and the members of the Collective
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`Class overtime wage compensation in violation of the FLSA.
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`SECOND CLAIM FOR RELIEF
`FAILURE TO PAY OVERTIME WAGES
`IN VIOLATION OF WISCONSIN LAW
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`33. Plaintiff, individually and on behalf of the Wisconsin Overtime Class,
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`re-alleges and incorporates by reference the allegations in the preceding paragraphs.
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`34. The foregoing conduct, as alleged, violates Wis. Stat. § 103.03, Wis. Stat.
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`§ 109.03, and Wis. Admin. Code § DWD 274.03.
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`35. At all relevant times, Quincy Bioscience Holding Company, Inc., has
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`been, and continues to be, an employer within the meaning of Wis. Stat. § 103.001
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`and Wis. Stat. § 109.01(2).
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`36. At all relevant times, Plaintiff and the members of the putative
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`Wisconsin Overtime Class are or have been employees of Defendant within the
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`meaning of Wis. Stat. § 103.001(5) and Wis. Stat. § 109.01(1r).
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`37. Wis. Stat. § 103.02 and Wis. Admin. Code § DWD 274.03 require an
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`employer to pay overtime compensation at one and one-half times the regular rate of
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`pay to all non-exempt employees for hours worked in excess of 40 in a workweek.
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`38. During the applicable statute of limitations, Defendant had a policy and
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`practice of failing to pay overtime wages at one and one-half times the regular rate of
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`Case: 3:21-cv-00662 Document #: 1 Filed: 10/19/21 Page 9 of 10
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`pay to Plaintiff and the members of the Wisconsin Overtime Class for all hours
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`worked in excess of 40 in a workweek by failing to include earned commissions and/or
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`bonuses in calculating the regular rate.
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`39. As a result of Defendant’s failure to pay all overtime wages earned and
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`due to Plaintiff and the members of the putative Wisconsin Overtime Class,
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`Defendant has violated, and continues to violate, Wis. Stat. § 103.02, Wis. Stat.
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`§ 109.03, and Wis. Admin. Code § DWD 274.03.
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`40. Upon information and belief, Defendant’s failure to pay Plaintiff and the
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`members of the putative Wisconsin Overtime Class all earned overtime wages was
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`dilatory and unjust.
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`REQUEST FOR RELIEF
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`WHEREFORE, Plaintiff, on his behalf and on behalf of all members of the
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`Collective Class and the Wisconsin Overtime Class, requests the following relief:
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`A.
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`An order designating this action as a collective action on behalf of the
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`Collective Class and directing issuance of notice pursuant to 29 U.S.C. § 216(b) to all
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`similarly-situated individuals;
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`B.
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`An order certifying this action as a class action on behalf of the proposed
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`Wisconsin Overtime Class pursuant to Fed. R. Civ. P. 23;
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`C.
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`An order designating Jeremy Gusloff as the Named Plaintiff and the
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`representative of the Wisconsin Overtime Class;
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`D.
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`Leave to add additional plaintiffs by motion, the filing of written consent
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`forms, or any other method approved by the Court;
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`Case: 3:21-cv-00662 Document #: 1 Filed: 10/19/21 Page 10 of 10
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`E.
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`An order finding that Defendant violated the FLSA and Wisconsin wage
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`and hour law;
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`An order finding that these violations were willful;
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`G.
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`An order finding that these violations were dilatory and unjust;
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`H.
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`Judgment against Defendant in the amount equal to the Named
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`Plaintiff’s and the Collective Class’s and Wisconsin Overtime Class’s unpaid back
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`wages;
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`I.
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`An award in the amount of all liquidated damages and penalties as
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`provided under 29 U.S.C. § 216(b) and Wis. Stat. § 109.11;
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`J.
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`An award of reasonable attorney’s fees and costs under 29 U.S.C.
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`§ 216(b) and Wis. Stat. § 109.03(6);
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`K.
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`Such further relief as the Court deems just and equitable.
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`Dated this 19th day of October, 2021.
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`HAWKS QUINDEL, S.C.
`Attorneys for the Plaintiff
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`By: /s/David C. Zoeller
`David C. Zoeller, State Bar No. 1052017
`Email: dzoeller@hq-law.com
`Aaron J. Bibb, State Bar No. 1104662
`Email: abibb@hq-law.com
`Post Office Box 2155
`Madison, Wisconsin 53701-2155
`Telephone: (608) 257-0040
`Facsimile: (608) 256-0236
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