(FLSA Overtime Violations - 29 U.S.C § 207)  Collective Action   (FRCP Rule 23 - Oregon Wage Class Action)   1. There is no conflict between his claims and the Rule 23 Class Members’  claims;   1.  This is a collective and class action suit to recover unpaid overtime brought under the  Fair Labor Standards Act, 29 U.S.C. § 201 et seq. and statutory penalties under Oregon Wage  and Hour Laws, ORS Chapter 652 (“Oregon Wage and Hour Laws”).   1.  On the First Claim, award Plaintiff and Collective Action Members their actual  damages for unpaid overtime in an amount to be determined at trial plus an equal amount as  liquidated damages for failure to pay overtime pursuant to 29 U.S.C. §207, or a penalty under  ORS 652.150, whichever is greater, but not both;   11.  Defendant is subject to the Fair Labor Standards Act (“FLSA”) and Oregon Wage and  Hour Laws (ORS Chapter 652).   12.  Plaintiff Richard Beemer is a resident of Lane County, Oregon.   13.  Plaintiff was hired by Defendant as a Route Sales Representative (“RSR”) at Defendant’s  Eugene, Oregon facility on or around November 29, 2010.  Plaintiff subsequently worked for a  period of time as a District Service Supervisor at the same facility. On or around October 4,  2012, Plaintiff resumed working as an RSR. Defendant currently employs Plaintiff as an RSR at  Defendant’s Eugene, Oregon facility.   14.  Defendant maintains a warehouse in Portland, Oregon, where new and refurbished goods  are stored as inventory for fulfillment of future customer needs. Defendant keeps these goods  within Oregon until ordered by one of Defendant’s customers in Oregon.    15.  Within the three years immediately preceding the filing of this Complaint, the majority of  the work performed by Plaintiff and Defendant’s other Oregon RSRs consists of picking up dirty  uniforms, floor mats and various related items from Defendant’s customers, and delivering clean  uniforms, floor mats, and various related items to those same customers.   17.  As an RSR, Defendant pays Plaintiff and the other Oregon RSRs on a “percentage-of- volume” basis based on the value of the accounts serviced by each RSR, which varies each  workweek. Plaintiff is not paid an hourly rate of pay based on actual hours worked.   18.  Defendant tracks and records the hours worked by RSRs, including the number of  overtime hours worked each week.   19.  Within the three years immediately preceding the filing of this Complaint until on or  around June 2015, Defendant automatically reduced the number of hours worked each day by  Plaintiff and similarly situated RSRs by 30 minutes for a meal break, regardless of whether or  not the RSR was relieved of all duties for 30 continuous minutes.    2.  On the Second Claim, award Plaintiff and Rule 23 Class Members their penalty  wages calculated according to ORS 652.150 for violations of ORS 652.120 and/or ORS 652.140  in amounts to be determined at trial;   2. Plaintiff and the Rule 23 Class Members were subject to the same payroll  practices and company policies, including but not limited to, practices and  policies relating to Defendant’s failure to pay overtime to RSRs;   2. Plaintiff has retained counsel who are skilled and experienced, and who will  vigorously prosecute the litigation;   2.  The FLSA requires employers to pay non-exempt employees overtime at one and one- half times the employee’s regular rate of pay for hours worked over 40 in a workweek.  Plaintiff  alleges that he and others are similarly situated as a result of Defendant’s policy and practice of  classifying its Route Sales Representatives (“RSRs”) as exempt from the overtime compensation  requirements of the FLSA and failing to pay overtime, and by Defendant’s failure to pay all  wages earned when due under Oregon Wage and Hour Laws.   20.  It is Defendant’s policy and practice to classify RSRs as exempt from the overtime pay  requirements of the FLSA and Oregon Wage and Hour Laws and to not pay overtime at one and  one-half times an employee’s regular rate of pay for hours worked over 40 in a workweek.   21.  At all times material to this Complaint, Plaintiff regularly worked and continues to work  hours in excess of forty hours per workweek. Plaintiff’s typical work schedule begins at 5:00  a.m. and continues until Plaintiff has completed his tasks for the day, often between 4:00 p.m.  and 5:00 p.m. five days a week.    22.  For example, during the week of August 24, 2014, Plaintiff worked 55.5 hours, not  including unpaid meal breaks. Plaintiff was not paid overtime. Plaintiff was not paid one half  times his regular rate of pay as overtime compensation for the 15.5 hours worked over 40 during  that workweek.   24.  Within the three years immediately preceding the filing of this Complaint, Defendant  knew or should have known when Plaintiff was working.    25.  Within the three years immediately preceding the filing of this Complaint until on or  around June 2015, Defendant knew or should have known when Plaintiff did not receive a full  30-minute meal break.   26.  Within the three years immediately preceding the filing of this Complaint, Defendant  knew how much it paid each workweek to Plaintiff.   27.  Within the three years immediately preceding the filing of this Complaint until on or  around June 2015, Defendant had knowledge that Plaintiff did not receive 30-minute meal breaks  because Defendant’s supervisors would periodically accompany Plaintiff on his route.    28.  Plaintiff and similarly situated individuals are entitled to be paid compensation for all  hours worked, including overtime hours, under the FLSA.   29.  Within the three years immediately preceding the filing of this Complaint, Defendant  knew when its RSR employees were working more than forty hours in a workweek.    3.   This action seeks compensatory and liquidated damages, attorney fees, taxable costs of  court, pre- and post-judgment interest and penalty wages for Defendant’s willful failure to pay  wages when due, including the correct amount of overtime wages, and other relief pursuant to 29  U.S.C. § 216(b) and Oregon Wage and Hour Laws for Plaintiff and for all others similarly  situated in the course of their employment with Defendant.   3. Plaintiff’s claims are typical of the claims of the Rule 23 Class Members; and,   3. Plaintiff, together with all Rule 23 Class Members, are owed unpaid overtime  as a result of the classification of RSRs as exempt from overtime and failure  to pay overtime;   3.  Award Plaintiff and the FLSA Class and Rule 23 Class Members their reasonable  attorney fees and costs;   30.  At all material times, Defendant did not pay Plaintiff or other similarly situated  individuals overtime pay calculated pursuant to the FLSA, for hours worked in excess of forty  per workweek.    31.  Plaintiff and similarly situated individuals were all subject to the same company policies,  payroll practices, and timekeeping practices of Defendant.   33.  Within the three years immediately preceding the filing of this Complaint, Defendant  failed to comply with 29 U.S.C. §§ 201-209 in that Plaintiff performed services and labor for  Defendant for which Defendant failed to pay the correct amount of overtime when due. Plaintiff  and all similarly situated individuals are entitled to liquidated damages and penalties for  Defendant’s willful failure to pay overtime when due.   34.  Plaintiff has retained the law firm of Leiman & Johnson, LLC to represent him  individually and on behalf of all similarly situated individuals, and has incurred attorney fees and  costs in bringing this action.   35.  Plaintiff re-alleges and incorporates herein by reference, all allegations contained in  paragraphs 1 through 34 above.   36.  Within the three years immediately preceding the filing of this Complaint, Plaintiff  performed duties for the benefit of, and on behalf of, Defendant under employment terms and  conditions set by Defendant.   37.  Within the three years immediately preceding the filing of this Complaint, Defendant was  required to pay Plaintiff and the hereinafter-defined FLSA Class members in accordance with the  overtime provisions of the FLSA.   38.  At all material times, Defendant classified Plaintiff and other similarly situated  individuals as exempt from the overtime provisions of the FLSA.   4.  Plaintiff and all others similarly situated demand a jury trial on all issues that may be  tried to a jury.  4. Plaintiff and his counsel will fairly and adequately protect the interests of the  Rule 23 Class Members.   4. Plaintiff’s claims are based on the same legal and remedial theories as those of  the Rule 23 Class Members and have similar factual circumstances; and   4.  Award Plaintiff and other similarly situated individuals their pre-judgment and  post-judgment interest; and    40.  Plaintiff brings this collective class action under § 216(b) of the FLSA against Defendant  for unpaid overtime compensation, and related penalties and damages on behalf of himself and  the following persons:  All current and former Route Sales Representatives employed by  Defendant UniFirst Corporation in Oregon since July 22, 2012 to  the entry of judgment in this case, who worked over 40 hours in  any workweek and were not paid overtime at a rate of one and one- half times their regular rate of pay for all hours worked over 40 in  a workweek (the “Collective Action Members”).   41.  Plaintiff brings the FLSA claim for unpaid overtime and liquidated damages as an “opt- in” collective action pursuant to 29 USC § 216(b).  The FLSA claims may be pursued by those  Collective Action Members who opt-in to this case pursuant to 29 USC § 216(b).   42.  Plaintiff and other Collective Action Members are similarly situated by Defendant’s  policy of classifying them as exempt from the FLSA overtime provisions and by Defendant’s  failure to pay overtime at one and one-half times the employees’ weekly regular rate of pay.    43.  Plaintiff individually, and on behalf of Collective Action Members, seeks relief on a  collective basis, alleging the FLSA was violated when he and others were not paid the correct  amount of overtime due to them under the FLSA.     44.  The number and identity of the other members of the putative Collective Action class  may be readily determined from the records of Defendant, and potential opt-in Collective Action  Members may be easily and quickly notified of the pendency of this action.  Collective Action  Members may be notified of the pendency of the action by first-class mail, email, physical and  online posting, and other available methods.    46.  Defendant violated §207 of the FLSA when it willfully failed to pay overtime to Plaintiff  and Collective Action Members at one and one-half times their regular rate of pay for all hours  worked over 40 in a workweek during the applicable statutory period.     47.  As a result of Defendant’s failure to pay Plaintiff and Collective Action Members for all  overtime earned, Plaintiff and Collective Action Members have incurred actual damages and are  entitled to liquidated damages or a penalty under ORS 652.150, whichever is greater, but not  both.   48.  Plaintiff’s and the Collective Action Members’ damages are readily ascertainable from  Defendant’s time and payroll records, which are in the custody and control of Defendant.   49.  By reason of said intentional, willful, and unlawful acts of Defendant, Plaintiff and  Collective Action Members have suffered damages and have also incurred costs and reasonable  attorneys’ fees.   5. Plaintiff has suffered the same or similar injury as the Rule 23 Class  Members.  d. Adequacy of Plaintiff’s Representation (Fed. R. Civ. P. 23(a)(4)): Plaintiff will  fairly and adequately represent and protect the interests of the class because:   50.  Plaintiff re-alleges and incorporates herein by reference, all allegations contained in  paragraphs 1 through 49 above.   52.  All Rule 23 Class Members who do not opt-out may pursue their Oregon state law claim  if that claim is certified for class-wide treatment.   53.  Plaintiff’s state law claims satisfy the Fed. R. Civ. P. 23(a) class action prerequisites of  numerosity of members, commonality of questions of law and fact, typicality of class claims, and  fair and adequate representation of class member interests.  a. Numerosity (Fed. R. Civ. P 23(a)(1)): This class action satisfies the numerosity  standards.  Plaintiff is informed and believes, and therefore alleges that there may  be at least twenty-five (25) putative Rule 23 Class Members.  As a result, joinder  of all Rule 23 Class Members in a single action is impracticable.  The precise  number of Rule 23 Class Members and their identities and contact information are  unknown to Plaintiffs but can be easily ascertained from Defendant’s personnel  and payroll records.  Rule 23 Class Members may be notified of the pendency of  the action by first-class mail, email, physical and online posting, and other  available methods.    b. Commonality (Fed. R. Civ. P 23(a)(2)): Questions of law and fact common to all  Rule 23 Class Members predominate over any questions affecting only individual  members.  All Rule 23 Class Members were subject to the same payroll practices  and misclassification that resulted in the failure to pay all wages earned when due  to all Rule 23 Class Members.  c. Typicality (Fed. R. Civ. P. 23(a)(3)):  Plaintiff’s claims are typical of Rule 23  Class Members’ claims because:   55.  The common issues predominate over any questions affecting only individual persons,  and a class action is superior with respect to considerations of consistency, economy, efficiency,  fairness, and equity to other available methods for the fair and efficient adjudication of the  Oregon state law claim.     56.  A class action is the superior procedural vehicle for the fair and efficient adjudication of  the claims asserted herein given that:   a. There is minimal interest of members of this class in individually controlling their  prosecution of claims under Oregon Wage and Hour Laws;  b. Plaintiff is informed and believes, and therefore alleges, that current employees  fear retaliation and job loss if they bring individual claims;   c. It is desirable to concentrate the litigation of these claims in this forum; and   d. There are no unusual difficulties likely to be encountered in the management of  this case as a class action.   57.  The presentation of separate actions by individual Rule 23 Class Members creates the  risk of inconsistent and varying adjudications, and may establish incompatible standards of  conduct for Defendant and/or substantially impair or impede the ability of Rule 23 Class  Members to protect their interests.   58.  In the absence of a class action, Defendant would be unjustly enriched because it would  be able to retain the benefits and fruits of wrongful violations of Oregon Wage and Hour Laws.   6.  Within the three years immediately preceding the filing of this Complaint, Defendant  owned an operation that was an enterprise in interstate commerce or in the production of  interstate commerce as defined by the FLSA, 29 U.S.C. § 203(r) and § 203(s). Based upon  information and belief, the annual gross sales volume of Defendant’s business was in excess of  $500,000 per annum at all times material to this Complaint.     60.  Plaintiff’s and the Rule 23 Class Members’ penalty wages are readily ascertainable from  Defendant’s time and payroll records, which are in the custody and control of Defendant.    61.  At times material and subject to further discovery, Defendant failed to pay Plaintiff and  Rule 23 Class Members for all wages earned when due, as required by ORS 652.120 and/or ORS  652.140.  By failing to pay the correct amount of overtime pay when due, either during  employment or upon termination of employment, Defendant has violated ORS 652.120 and/or  ORS 652.140, and is liable to Plaintiff and each Oregon Wage Class Member for penalty wages  in amounts to be computed according to ORS 652.150.   62.  As a result of Defendant’s willful failure to pay all wages earned when due to Plaintiff  and those Rule 23 Class Members currently employed by Defendant, Defendant has violated  ORS 652.120 and is liable to Plaintiff and those Rule 23 Class Members for penalty wages  calculated according to ORS 652.150 in an amount to be determined at trial, plus pre-judgment  interest in an amount to be determined at trial.   63.  As a result of Defendant’s willful failure to pay Plaintiff and those Rule 23 Class  Members formerly, but no longer, employed by Defendant all wages due within the time allowed  following termination of employment, Defendant has violated ORS 652.140 and is liable to those  Rule 23 Class Members for penalty wages calculated according to ORS 652.150 in an amount to  be determined at trial, plus pre-judgment interest in an amount to be determined at trial.   7.  Within the three years immediately preceding the filing of this Complaint, Defendant  managed, owned and/or operated a uniform rental company, and regularly exercised the  authority to hire and fire employees, and control the finances and operations of such business.   By virtue of such control and authority, Defendant was an employer of Plaintiff, and all others  similarly situated, as such term is defined by the Act.  29 U.S.C. § 201 et. seq.   8.  Defendant directly or indirectly acted in the interest of an employer towards Plaintiff  within the three years immediately preceding the filing of this Complaint, including without  limitation, directly or indirectly controlling all employment terms and conditions of Plaintiff and  all similarly situated current and former employees of Defendant.   9.  Venue is proper in this District Court pursuant to 28 U.S.C. § 1391 because a substantial  part of the events giving rise to this Complaint occurred in the District of Oregon.  Alan J. Leiman (OSB No. 980746)  alan@leimanlaw.com  Drew G. Johnson (OSB No. 114289)  drew@leimanlaw.com  Stacy A. McKerlie (OSB No. 134230)  stacy@leimanlaw.com  COMPLAINT; OREGON WAGE  AND HOUR LAWS  Fair Labor Standards Act 29 USC §  201 et seq.; Oregon Wage and Hour  Laws (ORS Chapter 652)  Defendant has not paid Plaintiff and the Collective Action Members the correct amount of  overtime owed.     INTRODUCTION   PRAYER FOR RELIEF  WHEREFORE, Plaintiff, on behalf of himself, the Collective Action Members, and Rule  23 Class Members respectfully asks the Court to grant the following relief:   conferred on this Court by 28 U.S.C. § 1367 because the state law claims form a part of the same  case or controversy as the federal claims under Article III of the United States Constitution.  