(FLSA – COLLECTIVE ACTION FOR UNPAID OVERTIME)   (R.C. § 4113.5 – RULE 23 CLASS ACTION FOR VIOLATIONS OF THE OHIO  PROMPT PAY ACT)   (R.C. § 4111.03 – RULE 23 CLASS ACTION FOR UNPAID OVERTIME)   23.  At all times relevant herein, Plaintiff was jointly employed by Defendants as an  inside insurance sales agent.    24.  As an inside insurance sales agent, Plaintiff was an hourly, non-exempt employee  of Defendants as defined in the FLSA and the Ohio Acts.   26.  Plaintiff and other similarly situated employees frequently worked in excess of 40  hours in a workweek.   27.  Plaintiff and other similarly situated employees were compensated on an hourly,  not a salary or fee basis.   28.  Plaintiff and other similarly situated employees received compensation for their  work at an hourly rate for all hours worked, plus a bonus or bonuses based on their performance.   29.  Plaintiff and other similarly situated employees routinely earned additional  remuneration to their hourly compensation because of their performance for additional bonus  payments.   30.  The FLSA and Ohio Wage Act required Defendants to pay overtime  compensation to their employees at the rate of one and one-half times their regular rate for the  hours they worked in excess of forty. 29 U.S.C. § 207; O.R.C. §§ 4111.03, 4111.10.   31.  Defendants did not pay overtime compensation to Plaintiff and/or similarly  situated employees at the time-and-a-half regular rate required. The FLSA and Ohio Wage Act  required Defendants to pay overtime compensation to their hourly employees at one and one-half  times their “regular rate” of pay, and to include in the calculation of their regular rates “all  remunerations for employment paid to, or on behalf of, the employee,” including commissions.  29 U.S.C. § 207(e)(3); 29 C.F.R. 778.117; O.R.C. § 4111.03(A) (incorporating FLSA standards).   33.  At all times relevant herein, the Named Plaintiff was an employee of Defendants  as defined in the FLSA and the Ohio Wage Act.   34.  Defendants are each jointly an “employer” as that term is defined by the FLSA  and the Ohio Wage Act.   35.  Upon information and belief, Defendants, at all times relevant hereto, were fully  aware of the fact that they were legally required to comply with the wage and overtime payment  laws of the United States and of the State of Ohio.    36.  During relevant times, Defendants had knowledge of and acted willfully  regarding their joint conduct described herein.   37.  Defendants are in possession and control of necessary documents and information  from which Plaintiff would be able to precisely calculate damages.   38.  Plaintiff neither primarily performed managerial duties nor supervised two or  more employees. Plaintiff could not hire, fire, or discipline employees.   39.  Plaintiff’s primary job duties did not consist of the exercise of discretion and  independent judgment with respect to matters of significance.   40.  At all times, Plaintiff was employed as a non-exempt hourly employee entitled to  overtime wages for all hours worked in excess of forty (40) in any workweek.    41.  During the relevant time period, Defendants applied the same pay practices and  policies to all hourly, non-exempt inside insurance sales agents, including Plaintiff.   43.  Defendants knew or should have been aware that Plaintiff and other similarly  situated employees worked in excess of forty (40) hours in a workweek and were entitled to be  paid an overtime rate based on the correct regular rate of pay, but they willfully elected not to  fully compensate its employees during all times relevant.   44.  Defendants’ joint failure to fully and properly pay Plaintiff and other similarly  situated employees resulted in unpaid overtime wages.  45.  Named Plaintiff brings his FLSA claims pursuant to 29 U.S.C. § 216(b) as a  representative action on behalf of himself and all other similarly situated employees of the opt-in  class, consisting of:  All current and former hourly, non-exempt inside insurance sales  agents of Defendants, individually or jointly, who received a bonus  or commission payment and worked over 40 hours in any  workweek covered by the bonus or commission payment  beginning three years preceding the filing date of this Complaint  and continuing through the date of final disposition of this case  (the “§216(b) Class” or the “§216(b) Class Members”).   47.  The identity of the putative 216(b) Class Members are known to Defendants and  are readily identifiable through Defendants’ payroll records. These individuals may readily be  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 claims for overtime compensation, liquidated damages,  attorneys' fees and costs under the FLSA.   48.  The net effect of Defendants’ policies and practices is that Defendants jointly and  willfully failed to fully and properly pay Named Plaintiff and §216(b) Class Members overtime  wages. Thus, Defendants jointly enjoyed substantial ill-gained profits at the expense of the  Named Plaintiff and §216(b) Class Members.  B. Fed.R.Civ. P. 23 Class Action for Unpaid Overtime Wages.   49.  All of the preceding paragraphs are realleged as if fully rewritten herein.   50.  Named Plaintiff brings his Ohio Wage Act claims pursuant to Fed.R.Civ.P. 23 as  a class action on behalf of himself and all other similarly situated of the following class,  consisting of:  All current and former hourly, non-exempt inside insurance sales  agents of Defendants, individually or jointly, who received a bonus  or commission payment and worked over 40 hours in any  workweek covered by the bonus or commission payment  beginning three years preceding the filing date of this Complaint  and continuing through the date of final disposition of this case  (the “Ohio Rule 23 Class,” the “Rule 23 Class,” or the “Ohio Rule  23 Class Members”).   52.  The Ohio Rule 23 Class, as defined above, is so numerous that joinder of all  members is impracticable.   53.  Named Plaintiff is a member of the Ohio Rule 23 Class and his claims for unpaid  wages are typical of the claims of other members of the Ohio Rule 23 Class.   54.  Named Plaintiff will fairly and adequately represent the Ohio Rule 23 Class and  the interests of all members of the Ohio Rule 23 Class.   55.  Named Plaintiff has no interests that are antagonistic to or in conflict with those  interests of the Ohio Rule 23 Class that he has undertaken to represent.   56.  Named Plaintiff has retained competent and experienced class action counsel who  can ably represent the interests of the entire Ohio Rule 23 Class.   57.  Questions of law and fact are common to the Ohio Rule 23 Class.   58.  Class certification is appropriate under Fed. R. Civ. P. 23(b)(1) because individual  actions would create the risk of inconsistent or varying adjudications that would establish  incompatible standards of conduct for Defendants with respect to their non-exempt employees.   59.  Class certification is appropriate under Fed. R. Civ. P. 23(b)(2) as Defendants  acted or refused to act on grounds generally applicable to the Ohio Rule 23 Class, making  appropriate declaratory and injunctive relief with respect to Named Plaintiff and the Ohio Rule  23 Class as a whole.   61.  Questions of law and fact that are common to the Ohio Rule 23 Class include, but  are not limited to: (a) whether Defendants violated the Ohio Wage Act by failing to pay the Ohio  Rule 23 Class their correct overtime rate for all hours worked in excess of forty hours per week  as a result of Defendants’ failure to properly calculate the Ohio Rule 23 Class Members’ regular  rate of pay when they received additional remuneration in the form of bonus or commission  payments; (b) whether Defendants kept accurate records of the amount of time the Ohio Rule 23  Class was working each day; (c) whether Defendants’ violations of the Ohio Wage Act were  knowing and willful; (d) what amount of unpaid and/or withheld overtime compensation is due  to the Named Plaintiff and other members of the Ohio Rule 23 Class on account of Defendants'  violations of the Ohio Wage Act; and (e) what amount of prejudgment interest is due to Ohio  Rule 23 Class members on the overtime or other compensation which was withheld or not paid  to them.    63.  All of the preceding paragraphs are realleged as if fully rewritten herein.   64.  This claim is brought as part of a collective action by the Named Plaintiff on  behalf of himself and the §216(b) Class.   65.  During the relevant time period preceding this Complaint, Defendants jointly  employed the Named Plaintiff and the §216(b) Class Members.   66.  Named Plaintiff and the §216(b) Class Members were paid on an hourly basis  when working in non-exempt positions.   67.  Named Plaintiff and the §216(b) Class Members worked in excess of 40 hours in  a workweek.   68.  The FLSA requires that covered employees be compensated for every hour  worked in a workweek.  See 29 U.S.C. § 206(b).   69.  The FLSA requires that non-exempt employees receive overtime compensation of  their regular rate of pay for hours worked in excess of forty (40) per week. See 29 U.S.C.  § 207(a)(1).   70.  Under 29 U.S.C. § 207(e), “regular rate” of pay shall be broadly deemed to  include all remuneration for employment paid to, or on behalf of, the employee like the type of  Named Plaintiff and the Putative Class Members. See 29 U.S.C. § 207(e); see also 29 C.F.R. §  79.  All of the preceding paragraphs are realleged as if fully rewritten herein.   80.  This claim is brought under Ohio Law.    81.  The Named Plaintiff and the Ohio Rule 23 Class Members have been jointly  employed by Defendants, and Defendants are each an employer covered by the overtime  requirements under Ohio law.   82.  Ohio Law requires that employees receive overtime compensation “not less than  one and one-half times” (1.5) the employee’s regular rate of pay for all hours worked over forty  (40) in one workweek, “in the manner and methods provided in and subject to the exemptions of  section 7 and section 13 of the Fair Labor Standards Act of 1937.”  See O.R.C. § 4111.03(A); see  also 29 U.S.C. § 207(a)(1).   83.  The Named Plaintiff and Ohio Rule 23 Class worked in excess of the maximum  weekly hours permitted under O.R.C. § 4111.03, but were not correctly paid their overtime rate  for all hours worked over 40 in a workweek in workweeks covered by bonuses or commissions.   84.  Defendants’ company-wide corporate policy and/or practice of not properly  paying their hourly, non-exempt employees the correct overtime rate for each hour worked over  forty (40) hours in workweeks covered by bonus or commission payments resulted in unpaid  overtime wages for the Named Plaintiff and Ohio Rule 23 Class.   86.  Defendants violated the Ohio Wage Act with respect to Named Plaintiff and the  Ohio Rule 23 Class by, inter alia, failing to compensate them at time-and-one-half times their  correct regular rates for hours worked over forty (40) hours in a workweek because Defendants  did not properly calculate their employees’ overtime rate when they received additional  remuneration in the form of bonus or commission payments.    87.  The Named Plaintiff and the Ohio Rule 23 Class were not exempt from the wage  protections of Ohio law. Indeed, during relevant times, the Named Plaintiff and the Ohio Rule 23  Class Members were not exempt from receiving overtime because, inter alia, they were not  “executive,” “administrative,” “professional,” “outside sales” or “computer” employees, as those  terms are defined under the FLSA.  See O.R.C. § 4111.03(A); see also 29 C.F.R. §§ 541.0, et  seq.   88.  Defendants’ repeated and knowing failure to pay overtime wages to the Named  Plaintiff and those similarly situated Ohioans were violations of R.C. §4111.03, and as such,  Defendants jointly acted willfully.    89.  For Defendants’ violations of R.C. §4111.03, by which the Named Plaintiff and  those similarly situated Ohioans have suffered and continue to suffer damages; the Named  Plaintiff and those similarly situated Ohioans seek unpaid overtime and other compensation,  liquidated damages, interest and attorneys’ fees, and all other remedies available.   90.  All of the preceding paragraphs are realleged as if fully rewritten herein.   92.  During relevant times, Defendants were each an entity covered by the OPPA and  the Named Plaintiff and the Ohio Rule 23 Class Members have been jointly employed by  Defendants within the meaning of the OPPA.    93.  The OPPA requires Defendants to pay Named Plaintiff and Ohio Rule 23 Class  all wages, including unpaid overtime, on or before the first day of each month, for wages earned  by them during the first half of the preceding month ending with the fifteenth day thereof,  and on or before the fifteenth day of each month, for wages earned by them during the last half  of the preceding calendar month. See O.R.C. § 4113.15(A).   94.  During relevant times, Named Plaintiff and the Ohio Rule 23 Class were not paid  all wages, including overtime wages at one and one-half times their regular rate of pay within  thirty (30) days of performing the work. See O.R.C. § 4113.15(B).   95.  The Named Plaintiff and the Ohio Rule 23 Class Members’ unpaid wages remain  unpaid for more than thirty (30) days beyond their regularly scheduled payday.   96.  The Named Plaintiff and the Ohio Rule 23 Class Members have been harmed and  continue to be harmed by such unpaid wages.   97.  In violating the OPPA, Defendants jointly acted willfully, without a good faith  basis and with reckless disregard of clearly applicable Ohio law.  A. 216(b) Collective Action for Unpaid Overtime Wages.  