58.  Plaintiffs bring the First Cause of Action, an FLSA overtime claim, on behalf of  themselves and all similarly situated persons who work or have worked as Home Managers and  similar titles for ACS statewide between October 27, 2013, in accordance with the tolling  agreement, and the date of final judgment in this matter, who did not receive overtime  compensation or compensation for all hours worked over 40 in a workweek and who elect to opt  in to this action (the “FLSA Collective”).   59.  ACS is liable under the FLSA for, inter alia, failing to properly compensate  Plaintiffs and other similarly situated Home Managers.   60.  Consistent with ACS’ policy and pattern or practice, Plaintiffs and the FLSA  Collective were not paid proper overtime compensation when they worked more than 40 hours in  a workweek.   61.  Plaintiffs and the FLSA Collective perform or performed substantially the same  primary duties.     62.  All of the work that Plaintiffs and the FLSA Collective have performed has been  assigned by ACS, and/or ACS has been aware of all of the work that Plaintiffs and the FLSA  Collective have performed.   63.  As part of its regular business practice, ACS has intentionally, willfully, and  repeatedly engaged in a pattern, practice, and/or policy of violating the FLSA with respect to  9  Plaintiffs and the FLSA Collective.  This pattern, practice, and/or policy includes, but is not limited  to:  a.  willfully failing to pay Plaintiffs and the FLSA Collective proper overtime  compensation for hours that they worked in excess of 40 hours per  workweek;   b.  willfully misclassifying Plaintiffs and the FLSA collective as exempt from  the protections of the FLSA; and   c.  willfully failing to record all of the time that Plaintiffs and the FLSA  Collective have worked for the benefit of ACS.   64.  ACS is aware or should have been aware that federal law required it to pay  Plaintiffs and the FLSA Collective compensation and/or overtime compensation for hours  worked in excess of 40 per workweek.   65.  Plaintiffs and the FLSA Collective perform or performed the same primary  duties.   66.  ACS’ unlawful conduct has been widespread, repeated, and consistent.   67.  The FLSA Collective consists of many similarly situated current and former  Home Managers who have been underpaid in violation of the FLSA and who would benefit from  the issuance of a court-supervised notice of this lawsuit and the opportunity to join it.  Those  similarly situated employees are known to ACS, are readily identifiable, and can be located  through ACS’ records.  Notice should be sent to the FLSA Collective pursuant to 29 U.S.C.  § 216(b).  68.  Plaintiffs bring the Second Cause of Action, the Indiana WPA claim, under Rule  23 of the Federal Rules of Civil Procedure, on behalf of themselves and a class of all persons  who are or have been employed as Home Managers and similar titles for ACS between October  10  27, 2013, in accordance with the tolling agreement, and the date of final judgment in this matter  (the “Rule 23 Class”).   69.  The members of the Rule 23 Class are so numerous that joinder of all members is  impracticable.   70.  Upon information and belief, the size of the Rule 23 Class is at least 40  individuals.  Although the precise number of such employees is unknown, the facts on which the  calculation of that number depend are currently within the sole control of ACS.    71.  ACS has acted or refused to act on grounds generally applicable to the Rule 23  Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with  respect to the Rule 23 Class as a whole.   72.  Common questions of law and fact exist as to the Rule 23 Class that predominate  over any questions only affecting them individually.  These common questions of law and fact  include, but are not limited to, whether ACS violated the Indiana WPA by failing to pay  members of the Rule 23 Class all wages owed within the time period prescribed by law, and the  nature and extent of the class-wide injury and the measure of damages for those injuries.   73.  The claims of Plaintiffs are typical of the claims of the Rule 23 Class they seek to  represent.     74.  Plaintiffs and the Rule 23 Class enjoy the same statutory rights under the Indiana  WPA, including the right to receive all wages owed within the time period prescribed by law.   Plaintiffs and the Rule 23 Class have all sustained similar types of damages as a result of ACS’s  failure to comply with the Indiana WPA.  Plaintiffs and the Rule 23 Class have all been injured  in that they have not received all wages owed within the time period prescribed by law as a result  of ACS’s common policies, practices, and patterns of conduct.  11   75.  Plaintiffs will fairly and adequately represent and protect the interests of the  members of the Rule 23 Class.  Plaintiffs understand that, as Class Representatives, they assume  a fiduciary responsibility to the class to represent its interests fairly and adequately.  Plaintiffs  recognize that, as Class Representatives, they must represent and consider the interests of the  class just as they would represent and consider their own interests.  Plaintiffs understand that, in  decisions regarding the conduct of the litigation and its possible settlement, they must not favor  their own interests over the interests of the class.  Plaintiffs recognize that any resolution of a  class action must be in the best interest of the class.  Plaintiffs understand that, in order to  provide adequate representation, they must be informed of developments in litigation, cooperate  with class counsel, and testify at a deposition and/or trial.  Plaintiffs have retained counsel  competent and experienced in complex class actions and employment litigation.  There is no  conflict between Plaintiffs and the Rule 23 Class members.   76.  A class action is superior to other available methods for the fair and efficient  adjudication of this litigation.  The members of the Rule 23 Class have been damaged and are  entitled to recovery as a result of ACS’s violations of the Indiana MWA.  The individual  plaintiffs lack the financial resources to conduct a thorough examination of ACS’s timekeeping  and compensation practices and to prosecute vigorously a lawsuit against ACS to recover such  damages.  In addition, class litigation is superior because it will obviate the need for unduly  duplicative litigation that could result in inconsistent judgments about ACS’s practices.   77.  This action is properly maintainable as a class action under Fed. R. Civ. P.  23(b)(3).   12  78.  Plaintiffs and the FLSA Collective and Rule 23 Class have been victims of ACS’  common pattern, practice, and/or policy that violates their rights by denying them wages they are  owed.   79.  Home Managers were uniformly classified as salaried and exempt from the  overtime pay requirements of the FLSA.   80.  Home Managers frequently worked more than 40 hours per workweek.   81.  ACS was aware that Home Managers frequently worked more than 40 hours per  workweek.   82.  ACS did not pay Home Managers overtime compensation when they worked in  excess of 40 hours in a workweek.  Instead, Home Managers received no payment or payment at  a rate less than their regular rate.   83.  Home Managers frequently were required to pick up shifts for hourly employees  or other Home Managers.  Home Managers were paid the rate the missing employee was to be  paid, either another Home Manager’s rate or an hourly employee’s rate.     84.  When Home Managers missed more than a few hours of work, their salaries were  docked in an amount proportional to the work missed.   85.  ACS did not pay Home Managers any wages for the mandatory time spent  working outside of regularly scheduled hours, such as time spent attending mandatory trainings  and meetings, and training other ACS staff.   86.  ACS required Home Managers to transport ACS clients to their medical  appointments.  When these appointments were scheduled outside of their regularly-scheduled  shifts, ACS did not pay any wages for the time Home Managers spent transporting ACS’ clients.  13   87.  ACS subjected Home Managers to ACS’ policy that Home Managers replace any  missing funds from ACS’ clients’ accounts.    88.  ACS did not keep accurate records of all the hours Home Managers worked.     89.  Home Managers’ primary duties were routine, non-exempt tasks including, but  not limited to:  a.  taking patients to appointments,   b.  purchasing groceries,   c.  washing laundry,  d.  housekeeping,  e.  cleaning,  f.  cooking meals,  g.  unskilled nursing care,  h.  assisting patients with personal hygiene,  i.  bathing patients,   j.  shampooing and combing patients’ hair,   k.  brushing teeth,   l.  trimming patients’ nails,   m.  dressing patients, and  n.  providing patients with medication.   90.  Home Managers spent the majority of their time performing the same or similar  tasks as hourly non-exempt employees.     91.  Home Managers’ primary duties did not differ substantially from the duties of  hourly non-exempt employees.    92.  Home Managers’ primary duties did not include:  14  a.  hiring;  b.  firing;  c.  supervising; or  d.  directing the work of other employees.    93.  Home Managers’ primary duties were not directly related to ACS’ management  or general business operations.   94.  Home Managers’ primary duties did not include the exercise of discretion or  independent judgment regarding matters of significance.    95.  Home Managers:  a.  were not involved in planning ACS’ long or short-term business  objectives;  b.  could not formulate, affect, implement or interpret ACS’ management  policies or operating practices;   c.  did not carry out major assignments that affected ACS’ business  operations;   d.  did not have authority to commit ACS in matters that have significant  financial impact; and  e.  could not waive or deviate from ACS’ established policies or procedures  without prior approval.    96.  Home Managers’ primary duties were manual in nature.     97.  The performance of manual duties occupied the majority of Home Managers’  working hours.   98.  Plaintiffs reallege and incorporate by reference all allegations in all preceding  paragraphs.  15   99.  ACS failed to pay Plaintiffs and the FLSA Collective the overtime compensation  to which they are entitled under the FLSA.  100.  ACS has engaged in a widespread pattern, practice, and/or policy of violating the  FLSA, as described in this Collective Action Complaint.   101.  At all relevant times, ACS has been an employer engaged in commerce and/or the  production or sale of goods for commerce within the meaning of 29 U.S.C. §§ 203(b), (d), (r),  and (s).  102.  The overtime wage provisions set forth in the FLSA, 29 U.S.C. §§ 201 et seq.,  and the supporting regulations, apply to ACS and protect Plaintiff and the FLSA Collective.   103.  At all times relevant, Plaintiffs and the FLSA Collective were ACS’ employees  within the meaning of 29 U.S.C. §§ 203(e) and 207(a).   104.  ACS has failed to pay Plaintiffs and the FLSA Collective the overtime wages to  which they are entitled under the FLSA.   105.  ACS has engaged in a policy and/or practice of requiring Plaintiffs and the FLSA  Collective to replace missing funds from ACS’ clients’ accounts.   106.  The cost of replacing the missing funds contributed to Plaintiffs Gallant,  Hasenour and Blankenberger being paid less than the full overtime pay rate, in violation of 29  U.S.C. §§ 201 et. seq. and 29 C.F.R. § 531.35.  107.  ACS’ violations of the FLSA, as described in this Complaint, have been willful  and intentional.  ACS was aware or should have been aware that the practices described in this  Complaint were unlawful.  108.  ACS has not made a good faith effort to comply with the FLSA with respect to its  compensation of Plaintiffs and the FLSA Collective.   16  109.  Because ACS’ violations of the FLSA have been willful, a three-year statute of  limitations applies, pursuant to 29 U.S.C. § 255.   110.  As a result of ACS’ willful violations of the FLSA, Plaintiffs and the FLSA  Collective have suffered damages by being denied overtime compensation in accordance with 29  U.S.C. §§ 201 et seq.   111.  As a result of the unlawful acts of ACS, Plaintiffs and the FLSA Collective have  been deprived of overtime compensation and other wages in amounts to be determined at trial,  and are entitled to recover such amounts, liquidated damages, prejudgment interest, attorneys’  fees, costs and other compensation pursuant to 29 U.S.C. § 216(b), and such other legal and  equitable relief as the Court deems just and proper.   Fair Labor Standards Act–Overtime Wages  (Brought on behalf of Plaintiffs and the FLSA Collective)   Indiana Wage Payment Act – Unpaid Wages  (Brought on behalf of Plaintiffs and the members of the Rule 23 Class)  112.  Plaintiffs reallege and incorporate by reference all allegations in all preceding  paragraphs.  113.  At all times relevant, Plaintiffs and the Rule 23 Class have been employees within  the definition of the definition of the Indiana WPA.    114.  At all times relevant, ACS employed Plaintiffs and the Rule 23 Class within the  definition of the Indiana WPA.  115.  ACS engaged in a widespread pattern, policy, and practice of violating the  Indiana WPA, as detailed in this Complaint.  116.  ACS violated the Indiana WPA, in relevant part, by failing to pay Plaintiffs and  the Rule 23 Class all wages owed within the time period prescribed by the Indiana WPA, Indiana  Code 22-2-5-1.  17  117.  Based on the foregoing, Plaintiffs and the Rule 23 Class are entitled to recover all  unpaid wages, plus double the amount of wages due, plus all attorneys’ fees, costs, and expenses. 