36.  Plaintiff realleges and incorporates by reference all allegations in all preceding  paragraphs.   37.  At all material times, Plaintiff and the Collective Members, in their work for  Defendants, were employed by an enterprise engaged in commerce that had annual gross sales of  at least $500,000.   38.  At all material times, Plaintiff and the Class Action Members, in their work for  Defendants, were employed by an enterprise engaged in commerce that has annual gross volume  of sales made for business in excess of $150,000, exclusive of excise taxes at the retail level  which are separately stated.    39.  Defendants paid Plaintiff and the Collective Members a sub-minimum wage,  ostensibly according to the tip-credit provisions of the FLSA, which allow an employer to pay an  hourly wage less than the statutory minimum wage, provided that the employer complies with  the requirements of the tip-credit provisions of 29 U.S.C. § 203(m).    40.  Defendants paid their tipped employees–including Plaintiff and the Collective  Members–sub-minimum, tip-credit wages without informing them of the tip-credit provisions of  the FLSA, in violation of 29 U.S.C. § 203(m).   41.  Therefore, Defendants did not comply with the requirements of the tip-credit  provisions and thus cannot avail itself of the tip-credit provisions of the FLSA.   42.  Defendants paid their tipped employees–including Plaintiff and the Collective  Members–sub-minimum, tip-credit wages but did not allow them to retain all tips they earned, in  violation of 29 U.S.C. § 203(m).  8   43.  Defendants did not allow Plaintiff and the Collective Members to retain all tips  they earned because they subjected Plaintiff and the Collective Members to their “late fees,”  which were fines Defendants imposed on its tipped employees who arrived late to work.   Specifically, in the event a tipped employee arrived late to work, Defendants would require them  to disgorge twenty dollars ($20) from their tips directly to Defendants.  Such policy and practice  resulted in Defendants retaining tips that their tipped employees earned, in violation of 29 U.S.C.  § 203(m).     44.  Defendants violated the FLSA by paying certain of its employees sub-minimum,  tip-credit wages while making improper deductions from their paychecks which brought their  wages below the applicable minimum wage, in violation of 29 U.S.C. § 206(a).   45.  Therefore, Defendants did not comply with the requirements of the tip-credit  provisions and thus cannot avail itself of the tip-credit provisions of the FLSA.   46.  Specifically, Defendants engaged in the regular policy and practice of requiring  Plaintiff and the Collective Members to reimburse Defendants for breakage, broken dishes,  register shortages, and/or customer walkouts.  Such policy and practice by Defendants resulted in  Plaintiff’s and the Collective Members’ wages below the applicable minimum wage, in violation  of the FLSA, 29 U.S.C. § 206(a).   47.  Defendants regularly required Plaintiff and the Collective Members to work off- the-clock. This was commonly, though not exclusively, required to prevent Plaintiff and the  Collective Members from being clocked in for more than 40 hours in a given workweek.  As a  result, Defendants failed to pay Plaintiff and the Collective Members both minimum wage and  overtime for hours worked.  9   48.  Defendants regularly required Plaintiff and the Class Action Members to work  off-the-clock.  This was commonly, though not exclusively, required to prevent Plaintiff and the  Class Action Members from being clocked in for more than 40 hours in a given workweek.  As a  result, Defendants failed to pay Plaintiff and the Class Action Members both minimum wage and  overtime for hours worked.  49.  Plaintiff realleges and incorporates by reference all allegations in all preceding  paragraphs.   50.  Plaintiff brings the FLSA claims in this action as a collective action under 29  U.S.C. § 216(b).   51.  Plaintiff asserts those claims on behalf of herself, and on behalf of all similarly  situated tipped employees employed by Defendants, who were not paid all compensation  required by the FLSA during the relevant time period as a result of Defendants’ compensation  policies and practices.   52.  Plaintiff seeks to notify the following employees of their rights under 29 U.S.C. §  216(b) to join this action by filing in this Court written notice of their consent to join this action:  All individuals who worked at any time during the past three  years for Defendants who were paid for their work on an  hourly basis according to the tip credit provisions of the FLSA,  (i.e. an hourly rate less than the applicable minimum wage,  excluding tips).   53.  The FLSA provides for a three-year statute of limitations for causes of action  arising out of a willful violation of the Act. 29 U.S.C. § 255.  As alleged above, Plaintiff and  similarly situated employees’ claims arise out of Defendants’ willful violations of the FLSA.   10  Accordingly, the Court should require appropriate notice of this action be given to all tipped  employees employed by Defendants within three years from the filing of this Complaint.   54.  Upon information and belief, Defendants have employed more than 50 tipped  employees during the period relevant to this action.   55.  The identities of these employees, as a group, are known only to Defendants.   Because the numerous members of this collective action are unknown to Plaintiff, joinder of  each member is not practicable.   56.  Because these similarly situated tipped employees are readily identifiable by  Defendants and may be located through their records, they may be readily notified of this action  and allowed to opt into it pursuant to 29 U.S.C. § 216(b), for the purpose of collectively  adjudicating their FLSA claims.   57.  Collective adjudication is appropriate in this case because the tipped employees  whom Plaintiff wishes to notify of this action have been employed in positions similar to  Plaintiff; have performed work similar to Plaintiff; and have been subject to compensation  practices similar to those to which Plaintiff have been subjected, including unlawful payment of  sub-minimum wages for non-tipped work and unlawful application of the FLSA’s tip credit  provisions.  58.  Plaintiff realleges and incorporates by reference all allegations in all preceding  paragraphs.   59.  Plaintiff brings her Ohio wage claims as a Rule 23 class action on behalf of the  following Class Action Members:  11  The Class Action Members are all of Defendants’ current and former  employees who were paid an hourly rate of less than the Ohio  minimum wage on account of their receiving tips, starting three years  before this lawsuit was filed up to the present.   60.  Numerosity.  The number of Class Action Members is believed to be over one  hundred.  This volume makes bringing the claims of each individual Class Action Member  before this Court impracticable.  Likewise, joining each individual Class Action Member as a  plaintiff in this action is impracticable.  Furthermore, the identity of the Class Action Members  will be determined from Defendants’ records, as will the compensation paid to each of them.  As  such, a class action is a reasonable and practical means of resolving these claims.  To require  individual actions would prejudice the Class Action Members and Defendants.   61.  Typicality.  Plaintiff’s claims are typical of the Class Action Members because  like the Class Action Members, Plaintiff was subject to Defendants’ uniform policies and  practices and was compensated in the same manner as the other Class Action Members.   Defendants regularly required Plaintiff and the Class Action Members to work off-the-clock.   This was commonly, though not exclusively, required to prevent Plaintiff and the Class Action  Members from being clocked in for more than 40 hours in a given workweek.  As a result,  Defendants failed to pay Plaintiff and the Class Action Members both minimum wage and  overtime for hours worked.   62.  As a result of such policy and practice by Defendants, Defendants violated the  minimum and overtime wage provisions of Ohio Revised Code. § 4111.01.   63.  Adequacy.  Plaintiff is a representative party who will fairly and adequately  protect the interests of the Class Action Members because it is in her interest to effectively  prosecute the claims in this Complaint in order to obtain the unpaid wages and penalties required  12  under Ohio law.  Plaintiff has retained attorneys who are competent in both class actions and  wage and hour litigation.  Plaintiff does not have any interest that may be contrary to or in  conflict with the claims of the Class Action Members she seeks to represent.   64.  Commonality. Common issues of fact and law predominate over any individual  questions in this matter.  The common issues of fact include, but are not limited to:  a.  Whether Defendants required Plaintiff and the Class Action Members to  perform work off-the-clock;  b.  Whether Defendants failed to pay Plaintiff and the Class Action Members  the minimum wage for all hours worked;   65. Common issues of law include, but are not limited to:  a. Whether Defendants properly paid all minimum wages due and owing to  Plaintiffs and the Class Action Members;  b. Whether Defendants were entitled to impose a tip credit on the wages of  Plaintiffs and the Class Action Members;  c. Whether Plaintiff and the Class Action Members are entitled to compensatory  damages;  d. The proper measure of damages sustained by Plaintiff and the Class Action  Members; and  e. Whether Defendants’ actions were “willful.”   66.  Superiority.  A class action is superior to other available means for the fair and  efficient adjudication of this lawsuit.  Even in the event any of the Class Action Members could  afford to pursue individual litigation against companies the size of Defendants, doing so would  unduly burden the system.  Individual litigation would magnify the delay and expense to all  13  parties and burden the court system with duplicative lawsuits.  Prosecution of separate actions by  individual Class Action Members would create the risk of inconsistent or varying judicial results  and establish incompatible standards of conduct for Defendants.   67.  A class action, by contrast, presents far fewer management difficulties and affords  the benefits of uniform adjudication of the claims, financial economy for the parties, and  comprehensive supervision by a single court and Judge.  By concentrating this litigation in one  forum, judicial economy and parity among the claims of individual Class Members are  promoted.  Additionally, class treatment in this matter will provide for judicial consistency. The  identities of the Class Action Members are readily identifiable from Defendants’ records.   68.  This type of case is well-suited for class action treatment because: (1) Defendants’  practices, policies, and/or procedures were uniform; (2) the burden is on each Defendant to prove  it properly compensated its employees; (3) the burden is on each Defendant to accurately record  hours worked by employees; and (4) the burden is on each Defendant to prove it properly  imposed the tip credit upon its employees.   69.  Ultimately, a class action is a superior forum to resolve the Ohio state law claims  set forth in this Complaint because of the common nucleus of operative facts centered on the  continued failure of Defendants to pay Plaintiff and the Class Action Members according to  applicable Ohio laws.   70.  Nature of Notice to be Proposed.  As to the Rule 23 Class Action Members, it is  contemplated that notice would be issued giving putative class members an opportunity to opt  out of the class if they so desire, i.e. an “opt-out notice.”  Notice of the pendency and resolution  of the action can be provided to the Class Action Members by mail, electronic mail, print,  broadcast, internet, and/or multimedia publication.  14  71.  Plaintiff realleges and incorporates by reference all allegations in all preceding  paragraphs.   72.  Defendants did not inform Plaintiff and the Collective Members of the provisions  of the “tip credit” in 29 U.S.C. § 203(m).    73.  As a result, Defendants were not entitled to take a tip credit against Plaintiff’s and  the Collective Member’s minimum wages.   74.  Defendants failed and/or refused to pay Plaintiff and the Collective Members the  full minimum wage according to the provisions of the FLSA for each and every workweek that  Plaintiff and the Collective Members worked for Defendants, for the duration of their  employment, in violation of 29 U.S.C. § 206(a).   75.  As such, full applicable minimum wage for such time Plaintiff and the Collective  Members worked is owed to Plaintiff and the Collective Members for the entire time they were  employed by Defendants.   76.   Defendants knew that – or acted with reckless disregard as to whether – their  failure to pay Plaintiff and the Collective Member the full minimum wage over the course of  their employment would violate federal law, and Defendants were aware of the FLSA minimum  wage requirements during Plaintiff’s and the Collective Members’ employment. As such,  Defendants’ conduct constitutes a willful violation of the FLSA.    77.  Plaintiff and the Collective Members are therefore entitled to compensation for  the full minimum wage at an hourly rate, to be proven at trial, plus an additional equal amount as  liquidated damages, together with interest, reasonable attorneys’ fees, and costs.  15  WHEREFORE, Plaintiff, Alexandra Bright, on behalf of herself and all other similarly  situated persons, respectfully request that this Court grant relief in Plaintiff’s and the Collective  Members’ favor, and against Defendants for compensation for unpaid minimum wages, plus an  additional equal amount as liquidated damages, prejudgment and post-judgment interest,  reasonable attorneys’ fees, costs, and disbursements of this action, and any additional relief this  Court deems just and proper.  78.  Plaintiff realleges and incorporates by reference all allegations in all preceding  paragraphs.   79.  Defendants did not inform Plaintiff and the Collective Members of the provisions  of the “tip credit” in 29 U.S.C. § 203(m).    80.  As a result, Defendants were not entitled to take a tip credit against Plaintiff’s and  the Collective Member’s minimum wages.   81.  Defendants failed and/or refused to pay Plaintiff and the Collective Members the  full minimum wage according to the provisions of the FLSA for each and every workweek that  Plaintiff and the Collective Members worked for Defendants, for the duration of their  employment, in violation of 29 U.S.C. § 206(a).   82.  As such, full applicable minimum wage for such time Plaintiff and the Collective  Members worked is owed to Plaintiff and the Collective Members for the entire time they were  employed by Defendants.   83.   Defendants knew that – or acted with reckless disregard as to whether – their  failure to pay Plaintiff and the Collective Member the full minimum wage over the course of  their employment would violate federal law, and Defendants were aware of the FLSA minimum  16  wage requirements during Plaintiff’s and the Collective Members’ employment. As such,  Defendants’ conduct constitutes a willful violation of the FLSA.    84.  Plaintiff and the Collective Members are therefore entitled to compensation for  the full minimum wage at an hourly rate, to be proven at trial, plus an additional equal amount as  liquidated damages, together with interest, reasonable attorneys’ fees, and costs.  WHEREFORE, Plaintiff, Alexandra Bright, on behalf of herself and all other similarly  situated persons, respectfully request that this Court grant relief in Plaintiff’s and the Collective  Members’ favor, and against Defendants for compensation for unpaid minimum wages, plus an  additional equal amount as liquidated damages, prejudgment and post-judgment interest,  reasonable attorneys’ fees, costs, and disbursements of this action, and any additional relief this  Court deems just and proper.  85.  Plaintiff realleges and incorporates by reference all allegations in all preceding  paragraphs.   86.  Defendants engaged in the regular policy and practice of requiring Plaintiff and  the Collective Members to reimburse Defendants for breakage, broken dishes, register shortages,  and/or customer walkouts.     87.  Such policy and practice by Defendants resulted in Plaintiff’s and the Collective  Members’ wages below the applicable minimum wage, in violation of the FLSA, 29 U.S.C. §  206(a).   88.  Defendants therefore failed and/or refused to pay Plaintiff and the Collective  Members the full minimum wage according to the provisions of the FLSA for each and every  17  workweek that Plaintiff and the Collective Members worked for Defendants, for the duration of  their employment, in violation of 29 U.S.C. § 206(a).   89.   Defendants knew that – or acted with reckless disregard as to whether – their  failure to pay Plaintiff and the Collective Member the full minimum wage over the course of  their employment would violate federal law, and Defendants were aware of the FLSA minimum  wage requirements during Plaintiff’s and the Collective Members’ employment. As such,  Defendants’ conduct constitutes a willful violation of the FLSA.    90.  Plaintiff and the Collective Members are therefore entitled to compensation for  the full minimum wage at an hourly rate, to be proven at trial, plus an additional equal amount as  liquidated damages, together with interest, reasonable attorneys’ fees, and costs.  WHEREFORE, Plaintiff, Alexandra Bright, on behalf of herself and all other similarly  situated persons, respectfully request that this Court grant relief in Plaintiffs’ and the Collective  Members’ favor, and against Defendants for compensation for unpaid minimum and overtime  wages, plus an additional equal amount as liquidated damages, prejudgment and post-judgment  interest, reasonable attorneys’ fees, costs, and disbursements of this action, and any additional  relief this Court deems just and proper.  91.  Plaintiff realleges and incorporates by reference all allegations in all preceding  paragraphs.   92.  Defendants engaged in the regular practice of requiring Plaintiff and the  Collective Members to perform labor each shift while not clocked in (“off-the-clock”).  This  practice most commonly occurred, though not exclusively, when Plaintiff or the Collective  Members were nearing 40 hours worked in any given workweek. In other words, this practice  18  most commonly occurred to avoid paying Plaintiff and the Collective Members overtime. During  such time, Defendants did not record the time that Plaintiff and the Collective Members worked,  and Defendants did not compensate Plaintiffs and the Collective Members for such time that they  worked.  As such, Defendants’ records of Plaintiff’s time worked, if in existence, understate the  duration of time each workweek that Defendants suffered or permitted Plaintiff and the  Collective Members to work.     93.  By requiring Plaintiff and the Collective Members to work off-the-clock,  Defendants violated both the minimum wage provisions of 29 U.S.C. § 206 and the overtime  provisions of 29 U.S.C. § 207.   94.  Defendants knew that – or acted with reckless disregard as to whether – requiring  Plaintiff and the Collective Members to work off-the-clock, would violate federal law and  Defendants were aware of the FLSA minimum wage and overtime requirements during  Plaintiff’s and the Collective Members’ employment. As such, Defendants’ conduct constitutes a  willful violation of the FLSA.   WHEREFORE, Plaintiff, Alexandra Bright, on behalf of herself and all other similarly  situated persons, respectfully request that this Court grant relief in Plaintiffs’ and the Collective  Members’ favor, and against Defendants for compensation for unpaid minimum and overtime  wages, plus an additional equal amount as liquidated damages, prejudgment and post-judgment  interest, reasonable attorneys’ fees, costs, and disbursements of this action, and any additional  relief this Court deems just and proper.  95.  Plaintiff realleges and incorporates by reference all allegations in all preceding  paragraphs.  19   96.  Defendants engaged in the regular practice of requiring Plaintiff and the Class  Action Members to perform labor each shift while not clocked in (“off-the-clock”).  This  practice most commonly occurred, though not exclusively, when Plaintiff or the Class Action  Members were nearing 40 hours worked in any given workweek.  In other words, this practice  most commonly occurred to avoid paying Plaintiff and the Class Action Members overtime.   During such time, Defendants did not record the time that Plaintiff and the Class Action  Members worked, and Defendants did not compensate Plaintiff and the Class Action Members  for such time that they worked.  As such, Defendants’ records of Plaintiff’s time worked, if in  existence, understate the duration of time each workweek that Defendants suffered or permitted  Plaintiff and the Class Action Members to work.     97.  By requiring Plaintiff and the Class Action Members to work off-the-clock,  Defendants violated both the minimum wage and the overtime provisions of Ohio Revised Code  § 4111.01.   98.  Defendants knew that – or acted with reckless disregard as to whether – requiring  Plaintiff and the Class Action Members to work off-the-clock, would violate federal law and  Defendants were aware of the FLSA minimum wage and overtime requirements during  Plaintiff’s and the Class Action Members’ employment.  As such, Defendants’ conduct  constitutes a willful violation of the FLSA.    WHEREFORE, Plaintiff, Alexandra Bright, on behalf of herself and all other similarly  situated persons, respectfully request that this Court grant relief in Plaintiff’s and the Class  Action Members’ favor, and against Defendants for compensation for unpaid minimum and  overtime wages, plus an additional equal amount as liquidated damages, prejudgment and post- 20  judgment interest, reasonable attorneys’ fees, costs, and disbursements of this action, and any  additional relief this Court deems just and proper.  RESPECTFULLY SUBMITTED this March 12, 2019.  FAILURE TO PROVIDE NOTICE OF TIP CREDIT TO PLAINTIFF   IMPROPER TIP RETENTION   IMPROPER DEDUCTIONS FROM PAYCHECKS   OFF-CLOCK LABOR & TIME SHAVING   OFF-CLOCK LABOR  