25.  Plaintiff, Monica Aniszewski, is a resident of the State of Illinois.   MAWKS CORPORATE FACTS   26.  Defendant MAWKS EDEWEISS, LTD., d/b/a Edeweiss Restaurant (Hereinafter  referred to as “Mawks”), is a corporation or business which does business in  Illinois.   27.  Mawks operates a large restaurant in Norridge Illinois.    28.  Defendant employs a staff of some full-time employees and a larger number of  part time employees.    29.  Matthew Kosch and Walter Kosch are owners and/or operators of Mawks.  30. Plaintiff brings state wage law claims, pursuant to the Illinois Minimum Wage Law  820 ILCS 105/1 and the Illinois Wage Payment and Collection Act 820 ILCS 115/1 et  seq., as individual and class action.  The Class is defined as all current, former and  future employees of Mawks paid an hourly wage less than minimum wage and/or not  paid overtime or not paid the proper rate of overtime pay for all hours over forty per  week via off-the-clock work time or had improper deductions/reductions taken from  their wages and/or members of the tip pool, for which Defendants did not follow the  tip pool regulations.    31. Plaintiff’s IMWL Class includes claims for all owed wages due for three (3) years  prior to the filling of this complaint and until an judgment is entered in this case (the  “Class” and “Class Period,” respectively) (hereinafter, “Plaintiff” or “Plaintiffs”  refers to both Named Plaintiffs and the Class).    32. Plaintiff’s IWPCA Class includes claims for all owed wages due for five (5) years  and/or ten (10) years prior to the filling of this complaint and until an judgment is  entered in this case (the “Class” and “Class Period,” respectively) (hereinafter,  “Plaintiff” or “Plaintiffs” refers to both Named Plaintiffs and the Class).    33.  Excluded from the Class are Mawks legal representatives, officers, directors,  assigns, and successors, or any individual who has, or who at any time during the  Class period has had, a controlling interest in Mawks; the Judge to whom this case is  assigned and any member of the Judge’s immediate family; and all persons who will  submit timely and otherwise proper request for exclusion from the Class.  7   34.  Numerosity: The persons in the Class identified above are geographically diverse  and so numerous that joinder of all members is impracticable.  Although the precise  number of such persons is unknown, the facts on which the calculation of that number  are presently within the sole control of Defendants.  Upon information and belief, there  are hundreds of members of the Class based upon the fact that during the Class Period.  The numerosity is also demonstrated by the MAWKS having a work force of 7-12  waitstaff employees at any one time and due to the high “turnover” of these positions  the number of potential class members is increased substantially. It is estimated that  there are at least 100 persons in the IMWL Class and 300 for the IWPCA Class.   35.    Commonality: There are numerous questions of law and fact common to the  Class that predominate over any questions affecting only individual members.  The  questions of law and fact common to this Class that predominate over any question  solely affecting individual members of the Class, including but are not limited to:  a. whether the Defendants employed Plaintiff and the Class within the meaning  of the IMWL and IWPCA.   b. what proof of hours worked is sufficient where employers fail in their duty to  maintain time records   c. whether the Plaintiff and the Class were paid overtime wages pursuant to the  overtime provisions of the IMWL and IWPCA  d. whether Defendant’s engaged in a continuing policy, pattern or practice of  failing to pay all overtime wages at the proper rate of pay which includes all  compensation;  8  e. whether Defendant took unconsented deductions from the wages/hours/tips of  the Class.   36.  Typicality:   The claims of Representative Plaintiff are typical of the Class.     37.   Adequacy: Representative Plaintiff will fairly and adequately represent the  interests of the Class.     38.  Superiority:  A class action is superior to other available methods for their fair  and efficient adjudication of the controversy – particularly in the context of wage  and hour litigation, where individual Plaintiff lack the financial resources to  vigorously prosecute separate lawsuits in Court against a corporate Defendant like  Mawks.     39.  The Defendant has acted or refused to act on grounds generally applicable to the  class, thereby making appropriate final injunctive relief or corresponding  declaratory relief with respect to the class as a whole.   40.  A class action is superior to other available methods for the fair and efficient  adjudication of the controversy – particularly in the context of this litigation  where no individual employee can justify the commitment of the large financial  resources to vigorously prosecute a lawsuit in Federal Court against the corporate  Defendant.   41.  The Defendant has acted or has refused to act on grounds generally applicable to  the Class, thereby making appropriate final injunctive relief or corresponding  declaratory relief with respect to the class as a whole.  9   42.  IMWL and IWPCA violation claims are brought and maintained as a class for all  IMWL/ IWPCA claims asserted by the Plaintiff.   43.  The Defendant has acted or refused to act on grounds generally applicable to the  class, thereby making appropriate final injunctive relief or corresponding  declaratory relief with respect to the class as a whole.   44.  A class action is superior to other available methods for the fair and efficient  adjudication of the controversy – particularly in the context of this litigation  where no individual employee can justify the commitment of the large financial  resources to vigorously prosecute a lawsuit in against the corporate Defendant.   45.  The Defendant has acted or has refused to act on grounds generally applicable to  the Class, thereby making appropriate final injunctive relief or corresponding  declaratory relief with respect to the class as a whole.   46.  IWPCA violation claims are brought and maintained as a class action pursuant to  Illinois Code of Civil Procedure 735 ILCS 5/2-801-806, for all IWPCA and other  Illinois wage laws asserted by the Plaintiff.  B. The FLSA Collective Action   47.  Plaintiff brings claims for relief for violation of the FLSA as a collective action  pursuant to Section 16(b) of the FLSA (29 U.S.C. § 216(b)), on behalf of all  employees of MAWKS who were, are, or will be employed by MAWKS during  the period of three (3) years prior to the date of commencement of this action  through the date of judgment in this action, who were:  a. Had deductions taken from overtime wages.  10  b. Worked off the clock via the punch-out and keep working policy and  procedure which reduced or failed to pay for all overtime wages.  c. Who were not compensated at one-and-one-half times the regular rate of pay  for all work performed in excess of forty (40) hours per work week and/or  who were not compensated at the federal minimum wage rate of $7.25 per  hour, via the above named policy and procedures.   48.  FLSA violation claims are brought and maintained as an “opt-in” collective action  pursuant to § 16(b) of FLSA, 29 U.S.C. § 216(b), for all FLSA claims asserted by  the Plaintiff, since the FLSA claims of the Plaintiff are similar to the FLSA claims  of all server employees employed by Mawks.   49.  Defendant is liable for improperly compensating Plaintiff and FLSA Collective  under the FLSA, and as such notice should be sent to the FLSA Collective. There  are numerous similarly situated current and former employees of MAWKS who  have been denied proper payment of the overtime wages. These current, former  and future employees would benefit from the issuance of a court supervised notice  of the present lawsuit and the opportunity to join in the present lawsuit. The  similarly situated employees are known to Defendant and are readily identifiable  through Defendant’s records.  50.  Plaintiff was employed by MAWKS as an employee of the Defendant and  Plaintiff   who work beyond forty hours, but for which Defendants failed to pay  overtime at the proper and correct rate of pay.   A.  MAWKS policies and procedures and Compensation Practices fail to pay  proper overtime rate of pay and/or Minimum Wage and/or take tips which  are wages of Plaintiff and Class/Collective  11   A.  Class Allegations under IMWL and IWPCA  6   Defendants.  )  CLASS AND COLLECTIVE ACTION COMPLAINT  NOW COMES the Plaintiff, Monica Aniszewski, individually and on behalf of all others  similarly situated, as class representatives, by and through her undersigned counsel of record,  upon personal knowledge as to those allegations in which she so possesses and upon information  and belief as to all other matters, pursuant to §216(b) of the Fair Labor Standards Act  (hereinafter “FLSA”), the Illinois Minimum Wage Law 820 ILCS 105/1 et seq (hereinafter  “IMWL” ) Illinois Wage Payment and Collection Act 820 ILCS 115/1 et seq. (West 2002))  (hereinafter “IWPCA” ) and brings this cause of action against Defendant MAWKS  EDEWEISS, LTD., d/b/a Edeweiss Restaurant (Hereinafter referred to as “Mawks”), and against  2  Defendant Matthew Kosch and Walter Kosch as individuals under FLSA and Illinois Wage Laws and in so doing states the following:  Individual and Class Action Against Defendant  Under Illinois Wage Payment and Collection Act “IWPCA”  115.  Plaintiff realleges and incorporate by reference all the preceding paragraphs, as if  fully set forth herein.  116.  Plaintiff was employed by Mawks.  117.  It is and was at all relevant times, a policy of MAWKS to take, without  Agreement wages, tips and/or work time.  118.  The Defendants unlawful conduct was and is not inadvertent, de minimis, isolated  or sporadic, but widespread, repeated and part of a pattern and practice of conduct  affecting all Defendants’ employees.  119.  Further that Defendant’s forced Plaintiff and Class to work “off-the-clock”.  120.  Plaintiff brings her claims for relief pursuant to the IWPCA as a class action for  all employees who were, are, or will be employed by Defendants during the  period of date five years (for oral contracts) and/or ten years (for written  contracts) prior to the filing of this complaint of this action through the date of  20  judgment in this action, failed to pay all Agreed Wages via a policy of MAWKS  to take, without Agreement wages, tips and work time from the class.  121.  IWPCA violation claims are brought and maintained as a class action pursuant to  Illinois Code of Civil Procedure 735 ILCS 5/2-801-806, for all IWPCA claims  asserted by the Plaintiff.  122.  This cause of action arises out of employment contracts or agreements; written  and/or oral.  123.  The named Plaintiffs were employed by Defendant.  124.  The Defendants unlawful conduct was and is not inadvertent, de minimis, isolated  or sporadic, but widespread, repeated and part of a pattern and practice of conduct  affecting all Defendants’ employees.  125.  Upon information and belief, all class employees of the Defendant had the same  policies imposed upon its employees.  126.  Plaintiffs are or were under the control and direction of the owner of the  Defendant and/or his agents during the period of the Plaintiff employment under  their contracts of service and in fact.   127.  Plaintiffs were not an independent contractors, rather were employees of the  Defendant by oral agreement and/or written contract.   128.  Plaintiffs employment were in the usual course of business for which such service  is performed.   129.  Plaintiffs do not possess a proprietary interest in the Defendant.  130.  The Defendant is an “employer” under the terms of the IWPCA section 2.  21  131.  In accordance with IWPCA, an employer is also defined as: “any officer of a  corporation or agents of an employer who knowingly permit such employer to  violate the provisions of this Act shall be deemed to be the employers of the  employees of the corporation”.  132.  Individual Defendant Matthew Kosch and Walter Kosch are named as an  employers, as they knowingly permitted violations of the IWPCA.  Individual and Class Action Against Defendant  Under the Illinois Minimum Wage Law “IMWL”  107.  Plaintiff  realleges and incorporate by reference all the preceding paragraphs, as if  fully set forth herein.  108.  Plaintiffs are or were employee of the Defendant pursuant to the IMWL.  109.  Plaintiffs are or were employed by MAWKS as an employee.  110.  It is and was at all relevant times, a policy of MAWKS to pay its employees at an  overtime rate of pay and/or minimum wage pursuit to the Defendants’ improper  deduction policy and procedures and/or off-the-clock work, and/or Tip rate  violations.  111.  It is a policy, procedure and job requirement of Defendant MAWKS its  employees to pay its employees at an overtime rate of pay which does not include  the added compensation earned as commissions or earned bonuses  19  112.  The Defendants unlawful conduct was and is not inadvertent, de minimis, isolated  or sporadic, but widespread, repeated and part of a pattern and practice of conduct  affecting most if not all of the Defendant’s employees.  113.  As a result of the foregoing, Plaintiffs and members of the Class have been  damaged in an amount to be determined at trial.  114.  Illinois law contains a three-year statute of limitations regardless of whether the  violation was willful. 820 ILCS 105/12(a).  On Behalf of Plaintiff and All Opt-In Employees  Against Defendant Mawks   As a Collective Action  (FLSA Claims, 29 U.S.C. § 201 et seq.)  133.  Plaintiff realleges and incorporates by reference all the preceding paragraphs, as if  fully set forth herein.  134.  The Collective claims include all plead claims found in this complaint which fall  within the coverage of FLSA.  135.  The Collective claims include all employees which Defendant has failed to pay at  an overtime rate of pay which does not include the off the clock time and/or  reduces the rate of pay by deductions.  136.  At all relevant times, Defendant MAWKS has been, and continues to be, an  “employer” engaged in interstate commerce and/or in the production of goods for  commerce within the meaning of the FLSA, 29 U.S.C. § 203.  At all relevant  times, Defendants has employed, and continues to employ, “employee[s],”  including the Plaintiffs, and each of the members of the FLSA Opt-Ins, that have  been, and continue to be, engaged in interstate “commerce” within the meaning of  the FLSA, 29 U.S.C. § 203.  At all relevant times, Defendants has had gross  22  operating revenues in excess of Five Hundred Thousand and no/100 Dollars  ($500,000.00).  137.  At all relevant times, Defendants has engaged, and continue to engage, in a willful  policy, pattern, or practice of requiring their employees, including the Plaintiffs  and members of the prospective FLSA Class, to work in excess of forty (40)  hours per week without compensating such employees to pay its employees at an  overtime rate of pay which does not include the added compensation earned as  commissions or earned bonuses.  138.  At all relevant times, the work performed by retail employees including the  Plaintiffs and prospective FLSA Opt-Ins, employed at Defendant were, and  continue to be, required or permitted by Defendants, for the benefit of  Defendants, directly related to such employees’ principal employment with  Defendants, and as an integral and indispensable part of such employees’  employment of Defendants.  139.  As a result of the Defendant willful failure to record or compensate its employees  – including Plaintiff  and members of the prospective FLSA Class – employed by  Defendant for all hours worked, Defendant has violated, and continues to violate,  the maximum hours provision of the FLSA, 29 U.S.C. § 207(a)(1), and § 215(a).  140.  As a result of the Defendant’s willful failure to record, report, credit, and/or  compensate its employees employed by Defendant, including the Plaintiffs and  members of the prospective FLSA Class, Defendant has failed to make, keep and  preserve records with respect to each of their employees sufficient to determine  23  the wages, hours and other conditions and practices of employment in violation of  the FLSA, including 29 U.S.C. §§211(c) and §§ 215(a).  141.  The foregoing conduct, as alleged, violated the FLSA, 29 U.S.C. §§ 201 et seq.  142.  Plaintiffs, on behalf of herself and all FLSA Opt-Ins, seek damages in the amount  of their respective unpaid compensation, plus liquidated damages, as provided by  the FLSA, 29 U.S.C. § 216(b), and such other legal and equitable relief as the  Court deems just and proper.  143.  Plaintiffs, on behalf of herself  and all FLSA Opt-Ins, seek recovery of attorneys’  fees and costs of action to be paid by Defendant, as provided by the FLSA, 29  U.S.C. § 216(b).  144.  Plaintiff has consented to be a party to this action, pursuant to 29 U.S.C. § 216(b).  145.  At all times relevant to this action, Plaintiff and all FLSA Opt-Ins were employed  by Defendant within the meaning of the FLSA.  146.  At all times relevant to this action, Plaintiffs and all FLSA Opt-Ins were engaged  in commerce and/or the production of goods for commerce and/or Defendant  were an enterprise engaged in commerce or in the production of goods for  commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a).  147.  Due to Defendant’s FLSA violations, Plaintiff  and all FLSA Opt-Ins are entitled  to recover from Defendant their unpaid compensation, an additional equal amount  as liquidated damages, additional liquidated damages for unreasonably delayed  payment of wages, reasonable attorneys’ fees, and costs of the action, pursuant to  29 U.S.C. § 216(b)§ 6 of the Fair Labor Standards Act, 29 U.S.C.A. § 206, 9 FCA  title 29, § 206, provides that every employer shall pay to each of his employees  24  who is engaged in interstate or foreign commerce or in the production of goods  for such commerce, wages at specified hourly rates.   148.  Individual Defendant Matthew Kosch and Walter Kosch are named as an  employers, as they knowingly permitted violations of the FLSA 