(FLSA Violations Prior To January Of 2018)   (Plaintiff John Kreischer’s Employment With Defendants)  120.  Wastebuilt Defendants employed Kreischer as a Piece Rate Employee from December of  2013 through December 31, 2017.  121.  Kreischer left his employment with Wastebuilt Defendants in or around May or June of  2016, but returned to working for Wastebuilt Defendants in or around November of 2016.  122.  Kreischer was employed by New Galfab Defendants from January 1, 2018 through April  of 2018.  123.  The terms, conditions and circumstances of Kreischer’s employment remained the same  when his employment switched from Wastebuilt Defendants’ control to New Galfab  Defendants’ control.  124.  Kreischer was not required to fill out any new employment forms or tax documents when  he switched from being employed by Wastebuilt Defendants to New Galfab Defendants.  125.  Kreischer was never laid-off or unemployed during the switch from Wastebuilt Defendants  to New Galfab Defendants.  126.  Kreischer performed the same job duties he had performed while employed by New Galfab  Defendants as he had while employed by Wastebuilt Defendants.  18  127.  At all times referenced herein, Kreischer was not exempt from the overtime requirements  of the FLSA.  128.  At all times referenced herein, Kreischer was paid a piece rate for all time he spent  manufacturing Defendants’ products, and an hourly rate for time he was not producing  products but nonetheless required to work.  129.  At all times referenced herein, Kreischer regularly worked in excess of (40) hours per  workweek, but never received one and one-half times his regular rate of pay for any hours  worked over (40) in a workweek the entire time he was employed by Wastebuilt Defendants.  130.  Kreischer continued to work in excess of 40 hours per week after becoming employed by  New Galfab Defendants.  131.  New Galfab Defendants did not pay the correct overtime to Kreischer and did not pay  Kreischer for all overtime worked.  (Plaintiff Henry Epps’ Employment With Defendants)  132.  Wastebuilt Defendants employed Epps as a Piece Rate Employee from approximately May  8, 2017 through December 31, 2017.  133.  Beginning on or around January 1, 2018, Epps became employed by New Galfab  Defendants.  134.  The terms, conditions and circumstances of Epps employment remained the same when his  employment switched from Wastebuilt Defendants’ control to New Galfab Defendants’  control.  135.  Epps did not have to apply for employment with New Galfab Defendants.  136.  Epps was not required to fill out any new employment forms or tax documents when he  switched from being employed by Wastebuilt Defendants to New Galfab Defendants.  19  137.  Epps was never laid-off or unemployed during the switch from Wastebuilt Defendants to  New Galfab Defendants.  138.  Epps performs the same job duties for New Galfab Defendants as he did while employed  by Wastebuilt Defendants.  139.  Epps had the same manager after his employment transitioned from Wastebuilt Defendants  to New Galfab Defendants.  140.  At all times referenced herein, Epps was not exempt from the overtime requirements of the  221.  Plaintiffs restate each and every prior paragraph of this Complaint, as if it were fully  restated herein.   28  222.  During all times material to this Complaint, Plaintiffs and the FLSA Class Members were  not exempt from receiving minimum wage or overtime under the FLSA because, inter alia,  they were not “executive,” “computer,” “administrative,” or “professional” employees, as  those terms are defined under the FLSA. See 29 C.F.R. §§ 541.0, et seq.  223.  During all times material to this Complaint, Defendants violated the FLSA with respect to  the Plaintiffs and the FLSA Class Members by, inter alia, failing to compensate them at time- and-one-half their regular rates of pay for any hours worked in excess of forty (40) hours per  workweek.  224.  During all times material to this complaint, Defendants knew that Plaintiffs and the FLSA  Class Members are not exempt from the minimum wage and overtime obligations imposed by  the FLSA. Defendants also knew that they were required to pay Plaintiffs and the FLSA Class  Members at least the applicable minimum wage, plus overtime compensation at a rate of one  and one-half their respective regular rates for hours worked in excess of forty (40) hours per  workweek. Despite such knowledge, Defendants willfully withheld and failed to pay the  minimum wage and overtime compensation to which Plaintiffs and the FLSA Class Members  are entitled.  225.  In violating the FLSA, Defendants acted willfully, without a good faith basis and in  reckless disregard of clearly applicable FLSA provisions.  226.  As a direct and proximate cause of Defendants’ conduct, pursuant to 29 U.S.C. § 216(b),  Defendants are liable to Plaintiffs and those similarly-situated for the full amount of the  required minimum wage rate, an additional equal amount as liquidated damages as well as  costs and reasonable attorney fees.   55. At all times referenced herein, Wastebuilt Defendants were in the business of manufacturing  and selling products commonly used in the waste and recycling industry, such as dumpsters,  hoist, compactors, and containers.   56. Between January of 2013 and approximately September of 2017, Wastebuilt Defendants  employed hundreds of laborers paid on a piece rate at Galfab’s Indiana Plant and Phoenix Plant  to build the products sold by Wastebuilt Defendants (“Piece Rate Employees”).  10   57. Plaintiffs and those similarly-situated are and/or were Piece Rate Employees during the  applicable statute of limitations period, through the present.   58. Piece Rate Employees generally worked a nine-and-a-half-hour day, with half an hour  automatically deducted for lunch, five days a week.   59. Thus, Piece Rate Employees regularly worked a scheduled 45-hour workweek (“Scheduled  Hours”).   60. At times during the applicable statute of limitations period, Piece Rate Employees would be  called upon to work beyond their Scheduled Hours when necessary, to include working late,  coming in early, and working on Saturdays.   61. Piece Rate Employees reported their time via a time punch.   62. At all times referenced herein, Piece Rate Employees were paid a piece rate for the products  they built.   63. At times, Piece Rate Employees would run out of parts or supplies, the shop would be slow,  or need cleaning; Piece Rate Employees would be paid an hourly rate for this work when it  needed to be performed (“Non-Production Work”).   64. Piece Rate Employees were also paid hourly when they attended mandatory safety meetings  or other meetings.   65. Piece Rate Employees submitted “time slips” for each product they built; for example, if a  Piece Rate Employee spent six-hours building a dumpster, two of which were spent waiting  on parts, the Piece Rate Employee would report four hours of production time and two hours  of Non-Production Time on the time slip they submitted.  11   66. At all times relevant to the Complaint, Wastebuilt Defendants would balk if a Piece Rate  Employee reported too much Non-Production Time and would threaten these employees with  discipline if they did not alter their time slips to reduce said Non-Production Time.   67. Wastebuilt Defendants pressured Piece Rate Employees to reduce the Non-Production Time  reported in order to reduce labor costs.   68. At all times referenced herein prior to January of 2018, Wastebuilt Defendants did not pay  Piece Rate Employees overtime – at all – for time worked over 40 hours in a workweek.   69. Rather than paying Piece Rate Employees overtime, Wastebuilt Defendants simply paid these  employees their applicable piece rate or hourly Non-Production Work rate for time worked  over 40 hours in a week.   70. Samples of Plaintiffs’ paystubs illustrating these practices are attached hereto as Exhibits H, I,  and J.   71. For example, during the week of August 12, 2017, Plaintiff John Kreischer worked nearly 60  hours; however, Kreischer was only paid $12.50 per hour for “hourly work” and $1,431.00 for  piece rate work (Exhibit H).    72. Kreischer was not paid overtime despite the fact that he worked more than 40 hours during the  week of August 12, 2017.   73. During the time period between November 5, 2017 and November 18, 2017, Plaintiff Henry  Epps worked more than 80 hours; however, Epps was only paid his piece rate ($1,275.20) and  $12.50 per hour for a total of 4.5 hours (Exhibit I).   74. Epps was not paid overtime despite the fact that he worked more than 40 hours per week during  both weeks of the November 5, 2017 - November 18, 2017 time period.  12   75. During the time period between December 3, 2017 and December 16, 2017, Plaintiff Curley  Conley worked more than 80 hours; however, Conley was only paid his piece rate ($1,118.14)  and $12.50 per hour for a total of 20 hours (Exhibit J).   76. Conley was not paid overtime despite the fact that he worked more than 40 hours per week  during both weeks of the December 3, 2017 - December 16, 2017 time period.   77. Plaintiffs regularly complained to management for Wastebuilt Defendants about not being paid  overtime.   78. For example, in or around fall of 2014, Kreischer complained to Scheiner about not being paid  overtime; Scheiner responded by scolding Kreischer, telling Kreischer that Kreischer was not  “an expert” on the legal requirements for overtime, and by telling Kreischer that if he was not  satisfied with how he was being paid, he could “walk out the door.”   79. In or around June of 2016, Kreischer left his employment with Wastebuilt Defendants.   80. Kreischer became employed by Wastebuilt Defendants again in or around November of 2016.    81. Upon returning to Galfab, Kreischer again asked Scheiner if Wastebuilt Defendants planned  to start paying overtime; Scheiner responded by telling Kreischer it was none of his business.   82. In early 2017, Kreischer was discussing OSHA and time sheets with his direct supervisor, Curt  Mustard, when Kreischer mentioned that OSHA regulations could be found online by using  the popular Google search engine.   83. During Kreischer’s conversation with Mustard, the subject of the FLSA and overtime came  up, and Kreischer pointed out that Piece Rate Employees are entitled to overtime.   84. Kreischer backed up his claim that Piece Rate Employees are entitled to overtime by showing  Mustard a legal blog he found using Google concerning the subject.   85. Subsequently, Mustard called Scheiner over to discuss what Kreischer had found on Google.  13   86. In response to being confronted with Kreischer’s Google research, Scheiner angrily told  Kreischer that Kreischer was not a lawyer and did not know what he was talking about.   87. Yenna complained to his direct supervisor, Brian Thomas and Wastebuilt Defendants’ human  resources department about not being paid overtime, but nothing was done.   88. On one or more occasions, Epps questioned his pay to members of Wastebuilt Defendants’  management, specifically complaining about the lack of overtime pay.   89.  Wastebuilt Defendants management’ responded to Epps’ complaints by assuring him that he  was, in fact, being paid overtime, and that he just did not see it in his checks because of the  method in which Wastebuilt Defendants were allegedly calculating Epps’ overtime pay.   90. A true and accurate copy of Epps’ paystubs from May of 2017 through December of 2017 pay  stubs are attached hereto as Exhibit K.   91. A review of Epps 2017 paystubs demonstrates that Wastebuilt Defendants misled Epps and  that Epps was never actually paid overtime in 2017.   92. Wastebuilt Defendants intentionally misled Epps in order to avoid paying overtime.   93. Throughout 2015, 2016, and 2017, Wastebuilt Defendants occasionally held “piece rate  meetings” with its Piece Rate Employees.   94. Scheiner would typically attend the piece rate meetings.   95. During several piece rate meetings that occurred in 2016 and 2017, several Piece Rate  Employees questioned why they were not paid overtime.   96. During a safety meeting that occurred in or around October of 2017, a member of Wastebuilt  Defendants’ management (name unknown) responded to the ongoing overtime complaints of  Piece Work Employees by stating that Wastebuilt Defendants were not going to pay “piece  14  rate and a half,” it was never going to happen, that is the way it is and that Piece Work  Employees should just accept it.   97. Wastebuilt Defendants’ unlawful pay practices, as described in paragraphs 53 - 94 above,  continued until January of 2018.   98. Despite their knowledge of their obligations under the FLSA to pay employees the proper wage  for all hours worked, to include overtime, Wastebuilt Defendants and Scheiner willfully and  recklessly refused to pay Plaintiffs and those similarly-situated overtime.    99. Wastebuilt Defendants and Scheiner’s violations of the FLSA were knowingly and willfully  committed with the intended purpose of reducing Wastebuilt Defendants’ labor cost as much  as possible.  100.  Wastebuilt Defendants and Scheiner lack a good faith or reasonable justification for having  failed to pay Plaintiffs or those similarly-situated overtime for all time worked in excess of  forty hours per week.  (Ongoing FLSA Violations Since January of 2018).  101.  During a meeting with Piece Rate Employees that occurred In or around January of 2018,  Scheiner acknowledged that Piece Rate Employees were entitled to overtime, and that going  forward, New Galfab Defendants would pay overtime.  102.  When a Piece Rate Employee asked if Scheiner’s announcement meant that Piece Rate  Employees would receive unpaid overtime as “back wages,” Scheiner stated that Galfab would  not pay “back wages.”  103.  Subsequently, New Galfab Defendants began paying Piece Rate Employees and those  similarly-situated “overtime” for hours worked over 40 a week.  15  104.  Despite now purporting to pay overtime wages, New Galfab Defendants continued to  violate the FLSA by failing to properly calculate or pay overtime to Piece Rate Employees.  105.  Since January of 2018, New Galfab Defendants have improperly calculated the overtime  rate paid to Piece Rate Employees solely on the hourly rate Plaintiffs and those similarly- situated are paid to perform Non-Production Work, rather than on the actual regular rate of  pay. See, e.g., 29 C.F.R. §§ 778.109, 778.111.  106.  Since January of 2018, New Galfab Defendants have improperly included only the time  spent performing piece rate work, rather than all hours worked, when calculating the number  of hours of overtime to which Piece Rate Employees are entitled.  107.  Thus, New Galfab Defendants’ current process for paying overtime is to exclude time spent  performing Non-Production Work from the calculation of hours worked, while arbitrarily  using the Non-Production Work hourly rate as the regular rate for the purposes of calculating  the overtime rate.  108.  At the time New Galfab Defendants implemented the overtime policies described in  Paragraphs 99 - 105 above, they were aware of their overtime obligations and prior complaints  by Piece Rate Employees regarding overtime pay.  109.  New Galfab Defendants and Scheiner willfully and recklessly violated the FLSA and  continue to violate the FLSA despite the many complaints the have received from Piece Rate  Employees and despite clearly applicable FLSA regulations.  110.  The FLSA violations of New Galfab Defendants and Scheiner were committed without  good faith and/or were unreasonable.  16  GALFAB DEFENDANTS  111.  Upon information and belief, several members of Wastebuilt Defendants’ management,  including Scheiner, were involved in and/or participated in the organization and formation of  New Galfab Defendants.  112.  Scheiner and several other members of the former Wastebuilt Defendants’ management  were aware of the overtime complaints of Piece Rate Employees, to include those of Plaintiffs  Kreischer, Yenna, and Epps, at the time involved in and/or participated in the organization and  formation of New Galfab Defendants.  113.  At the time they were organized and formed, New Galfab Defendants were aware of  Wastebuilt Defendants’ obligations under the FLSA to Plaintiffs and those similarly-situated;  they were also aware that Wastebuilt Defendants had violated the FLSA.  114.  There has been a substantial continuation of Galfab’s business under the New Galfab  Defendants.  115.  New Galfab Defendants retained the management of Wastebuilt Defendants, including  Scheiner.  116.  New Galfab Defendants retained and use the same equipment Wastebuilt Defendants used  to manufacture the same products Wastebuilt Defendants manufactured under the same name,  “Galfab.”  117.  New Galfab Defendants manufacture the same products Wastebuilt Defendants  manufactured at the same Winamac and Phoenix plants Wastebuilt Defendants used to  manufacture these products.  17  118.  New Galfab Defendants retained all of the Piece Rate Employees who were employed by  Wastebuilt Defendants as of the date of the transition, who continued to perform the same job  duties for New Galfab Defendants as they did for Wastebuilt Defendants.  119.  Upon information and belief, Galfab Acquisitions, LLC is no longer in existence and is  unable to provide adequate relief to Plaintiffs and those similarly-situated.  