1.5 times the higher average straight time wage rate earned by the employee during the  workweek.    10.  At the end of the day Jim Fischer required all jobsite employees to drive from  their last jobsite for the day back to the Appleton shop.  Once at the shop employees would fill  out their time cards.  Jim Fischer required all jobsite employees to write down on their time cards  the job number and job name for each job that they worked throughout the day, the number of  hours that they worked in each trade for each job, each piece of equipment that they operated  throughout the day, as well as the amount of time spent operating each piece of equipment.    11.  The employees would spend at least 5-10 minutes per day filling out their time  cards, which was primarily for Jim Fischer’s benefit given that accurate time cards permitted Jim  Fischer to accurately keep track of its labor and equipment costs for jobs, to accurately keep  track of the hours worked, work experience, and skills development of each of its employees,  and correctly bill its customers for its services.   12.  In addition to filling out their time cards, Jim Fischer jobsite employees also  sometimes helped unload trucks, and perform other work in the shop, after they returned to the  Appleton shop from their last jobsite for the day.     14.  Jim Fischer also never paid the Plaintiffs for their time spent receiving work  instructions, loading trucks, unloading trucks, and filling out their time cards at the Appleton  shop.    15.  On the other hand, when the Plaintiffs travelled between two jobsites during the  course of their workday, and worked at the second jobsite on the day of travel, the Plaintiffs  received compensation at their regular shop rate.  For each hour that they work for Jim Fischer  the employees would either receive a rate of $0, or would receive at least their regular shop rate.    16.  While Jim Fischer in theory maintained a policy that would deduct 30 minute  lunch breaks unless employees wrote “no lunch” on their time cards, upon information and belief  Jim Fischer would automatically deduct the half hour lunch from the employees’ hours worked,  even if they did write “no lunch” on their time cards.   17.  Jim Fischer frequently performed work on projects where the minimum rate of  compensation for the Plaintiffs was set by the Davis-Bacon Act, State Prevailing Wage Laws, or  equivalent laws.  According to the employee handbook, which by its own terms is not a contract,  and can be revised, supplemented or rescinded at anytime, for prevailing wage projects Jim  Fischer would make an hourly contribution to its employees 401(k) account that equaled the total  fringe benefit rate shown on the prevailing wage determination.     19.  Jim Fischer did not include the 401(k) contributions that it contributed to the  Plaintiffs for their hours worked by prevailing wage projects, when computing their regular rate  to be used in computing their overtime pay.    20.  Jim Fischer would not make any 401(k) contributions to the Plaintiffs for each of  their hours worked on non-prevailing wage projects, or while travelling between projects.  Jim  Fischer therefore claimed a 401(k) contribution credit that is often higher, than if it had divided  its 401(k) contribution during each contribution period by the total number of hours worked by  its employees during said contribution period.   21.  Jim Fischer made contributions to its employees’ 401(k) accounts only during  higher paid prevailing wage hours for the purpose of reducing its liability for employment taxes  and overtime pay, rather than to contribute to its employees’ retirement.     22.  When the Plaintiffs performed overtime work on a non-prevailing wage project,  during a week when they received pay at both their shop rate and at a higher prevailing wage  rate, Jim Fischer would pay to the Plaintiff a rate equal to 1.5 times their shop rate, rather than   23.  During the course of his employment with Jim Fischer, Named Plaintiff Laughlin,  who was not an indentured apprentice, frequently engaged in the work of smoothing and  finishing surfaces of poured concrete.    25.  When Laughlin complained to Jim Fischer that he should have been classified as,  and paid at the higher rate for a cement finisher, Jim Fischer informed Langhlin that his work as  a cement finisher was not sufficiently fast to qualify for cement finisher pay.    26.  Jim Fischer has never obtained authorization from the Wisconsin Department of  Workforce Development to pay Laughlin as a subjourneyperson for his cement finisher work on  prevailing wage projects.     27.  Upon information and belief, Laughlin did not receive the correct prevailing wage  rate as a laborer, even assuming Jim Fischer can claim a credit equal to the full amount of 401(k)  contributions that it made to Laughlin’s account for each hour that he worked on a prevailing  wage project.   28.  Named Plaintiff brings his First Claim for Relief, pursuant to the Fair Labor  Standards Act, on his own behalf and on behalf of all other similarly situated Plaintiffs who was  not paid the correct amount of overtime pay because of Jim Fischer’s uniform policies of (1)  failing to count as hours worked their work in the shop; (2) failing to count as hours worked  travel time that is all in a day’s work, given that the travel would occur right after their trip to the  first jobsite at the beginning of the day, and their trip from the last jobsite back to the Appleton  shop at the end of the day; (3) continuing to deduct lunch breaks when they wrote “no lunch” on  their time cards; and (4) Excluding 401(k) contributions for their hours worked on prevailing  wage projects when computing their overtime pay.    30.  The claims of the Named Plaintiffs are representative of the claims of members of  the FLSA Class in that all members of the class were hourly paid employees of Jim Fischer; and  were deprived of overtime pay as a result of Jim Fischer’s uniform application of its policies  concerning determining its employees’ hours worked and computing their overtime pay.   Brothers who received Non-Elective Contributions and/or pit pay from Wieser Brothers; and  then were subject to Wieser Brothers’ uniform policy of not counting the contributions/pit pay  when calculating their regular rate for calculating overtime pay.   31.   Named Plaintiffs seek to represent a class of all employees of Jim Fischer who  fall within the following class description, pursuant to Rule 23 of the Federal Rules of Civil  Procedure:  All employees of the Defendant who, on or after October 6, 2014, and for all of  their work subject to Chapter 109 of the Wisconsin statutes either (a) was not paid  for all hours worked as a result of Jim Fischer deductions of their travel time,  shop work time, and meal break time; (b) had 401(k) contributions deducted from  the computation of their regular rate for overtime pay; or (c) was paid for non- prevailing wage overtime hours worked at a rate lower than 1.5 times the average  straight time wage rate earned during the workweek.    33.  There are questions of law and fact common to the Wisconsin Unpaid Wage Class  (Rule 23 Class) that predominate over any questions solely affecting individual members of the  class, including, but not limited to:   (a).  Whether the Davis Bacon Profit Sharing Contributions made by Jim Fischer to the  Plaintiffs’ accounts constitute contributions to a bona fide fund, plan, or program;  so that said contributions can be excluded from computing the employees’ rate for  overtime pay;   (b).  Whether under Wisconsin law overtime pay must be calculated using the  Plaintiffs’ regular rate, defined as the average wage rate earned by the Plaintiffs  during the workweek;   (c).  Whether time spent by the Plaintiffs spent working at the shop must both be paid,  and be counted as hours worked;   (d).  Whether time spent by the Plaintiffs travelling to their first jobsite for the day  after working in the shop; and travelling from their last jobsite for the day back to  the shop before working in the shop, must both be paid, and must be counted as  hours worked;   (e)  Whether time spent by the Plaintiffs in lunch breaks that they worked through,  which they reported to Jim Fischer as lunches that they worked through, must  both be paid, and must be counted as hours worked.   (f).  The Appropriate remedy for the Plaintiffs hours worked that Jim Fischer failed to  pay, and/or failed to count as hours worked.    34.  Named Plaintiffs’ claims are typical of those of the Wisconsin Unpaid Wage  Class.  Named Plaintiff, like other Wisconsin Unpaid Wage Class members, were deprived of  straight and overtime pay as a result of Jim Fischer’s application of its uniform policies that  undercounted their hours worked, and used a regular rate to compute their overtime pay lower  than the rate required by law.    36.  A class action is superior to other available methods for the fair and efficient  adjudication of the controversy.  Defendant’s common and uniform policies and practices denied  the Wisconsin Unpaid Wage Class the wages for work performed to which they are entitled. The  damages suffered by the individual Wisconsin Unpaid Wage Class members are small compared  to the expense and burden of individual prosecution of this litigation. In addition, class  certification is superior because it will obviate the need for unduly duplicative litigation that  might result in inconsistent judgments about Defendant’s pay practices.    37.  Class certification of the First Claim for Relief is appropriate under Fed. R. Civ.  P. 23(b)(3), because questions of law and fact common to the Wisconsin Unpaid Wage Class  predominate over any questions affecting only individual members of the Wisconsin Unpaid  Wage Class, and because a class action is superior to other available methods for the fair and  efficient adjudication of this litigation.   Count I.  Overtime Pay Claim Under the Fair Labor Standards Act.    38.  Plaintiffs re-allege, and incorporate by reference, the allegations contained in  paragraphs 1- 37 of the Complaint.   39.  Jim Fischer was required by the FLSA to count as hours worked time spent by the  Plaintiffs loading and unloading trucks, filling out time cards, and receiving work instructions  while at the Appleton shop given that the work was indispensable to Jim Fischer’s operation, and  was pursued primarily for Jim Fischer’s benefit.     41.  The Plaintiffs additionally are entitled to have counted, as hours worked, time that  they spent working through their lunch breaks, which they then reported to Jim Fischer by  writing “no lunch” or equivalent language on their time cards.    42.  The Plaintiffs would have additional overtime hours worked, had Jim Fischer  counted as hours worked time spent by the Plaintiffs performing the work activities described in  paragraphs 39-41 of the Complaint.     43.  401(k) contributions that Jim Fischer contributed on behalf of the Plaintiffs  cannot be excluded from the regular rate computation, given that the contributions were made for  the purpose of reducing Jim Fischer’s liability for employment taxes and overtime pay, rather  than for providing old-age, retirement, or related benefits to the Plaintiffs.    44.  Additionally, Jim Fischer’s 401(k) contributions are not bona fide, and cannot be  excluded from the regular rate computation, given that the amount of contributions is determined  pursuant to a formula that both does not have a minimum required contribution amount per  contribution period, and permits too great a variation between the minimum and maximum  amount to be contributed during each contribution period.    45.  Jim Fischer therefore violated the FLSA when it excluded from the computation  of the Plaintiffs’ regular rate 401(k) contributions that it made to the Plaintiffs accounts for their  hours worked on prevailing wage projects.    9.  Jim Fischer required all of its employees to report to its shop located in Appleton,  Wisconsin each morning.  While at the Appleton shop employees would help load trucks, receive  work instructions, and then ride together to jobsites.    