104.  Plaintiff realleges and incorporates all allegations contained in the foregoing  paragraphs.  105.  Defendant received money from its customers and their agents for the work  performed by the Plaintiff and Class Members during the pre- and post-shift periods, while  Defendant failed to pay Plaintiff and Class Members for such work.    106.  Defendant holds money that in equity and good conscience belongs to Plaintiff and  Class Members due to its failure to pay Plaintiff and Class Members for all hours worked.  107.  Plaintiff realleges and incorporates all allegations contained in the foregoing  paragraphs.  108.  Defendant has been unjustly enriched at the expense of the Plaintiff and Class  Members by failing to pay for work performed by Plaintiff and Class Members during the pre- and  post-shift periods.  18  109.  Defendant knowingly and/or intentionally accepted the benefit of the work  performed by Plaintiff and the Class Members, despite its policy and practice of failing to pay  Plaintiff and Class Members for such work.  In particular, Defendant received the benefit of the  labor and services provided to Defendant’s customers by the Plaintiff and Class Members.  110.  Such wrongful conduct demonstrates bad faith and undue advantage on the part of  Defendant.    111.  It would be unjust and inequitable for Defendant to retain the benefit of the unpaid  work performed by Plaintiff and Class Members.  23.  Defendant operates a restaurant in Livingston, Texas known as The Catfish King.    24.  Plaintiff Key has worked for Defendant as a server from approximately June of  2011 as a waitress.   25.  Defendant pays Plaintiff and its other waitstaff a tip credit reduced minimum wage  of $2.13 an hour.  That is, Defendant pays its waitstaff a cash wage of $2.13 an hour and then  claims a tip credit of $5.12 an hour to make up the difference between the $2.13 an hour cash wage  and the federally mandated minimum wage of $7.25 an hour.   26.  However, Defendant did not pay its waitstaff for all the hours they really work.   27.  Instead, Defendant requires its waitstaff to perform a significant amount of work  off the clock before and after the restaurant opens.  This work includes cleaning, setting up or  taking down the salad bar, and performing other restaurant side work.  Defendant schedules its  waitstaff to perform this work before and after the restaurant closes.  However, Defendant did not  pay its waitstaff any compensation for this work, at either the federal minimum wage or the tip  credit reduced minimum wage, despite the fact that this work is integral to the restaurant’s  operations.     28.  In approximately October of 2020, Defendant began paying its waitstaff the  minimum wage for the pre and post shift work but has made no effort to pay its employees the  wages it denied them prior to this date.   6   29.  FLSA/Rule 23 Class Members were employed by Defendant and performed work  similar to Plaintiff.   30.  Plaintiff and Class Members performed their jobs under Defendant’s supervision,  and using materials and technology approved and supplied by Defendants.   31.  Plaintiff and FLSA/Rule 23 Class Members were required to follow and abide by  common work, time, pay, and overtime policies and procedures in the performance of their jobs.   32.  At the end of each pay period, Plaintiff and Class Members received wages from  Defendant that were determined by common systems and methods that Defendant selected and  controlled.   33.  Defendant paid Plaintiff an hourly rate.   34.  Defendant paid FLSA and Rule 23 Class Members an hourly rate.    35.  Plaintiff worked more than forty hours in at least one workweek during the three  years before this Complaint was filed.   36.  Each Class Member worked more than forty hours in at least one workweek during  the three years before this Complaint was filed.   37.  When Plaintiff and Class Members worked more than forty hours in a workweek,  Defendant did not pay them one and one-half times their regular hourly rate because Defendant  did not pay them for all the hours they actually worked due to Defendant’s policy of treating pre  and post shift work as non-compensable time.    38.  When Plaintiff and Class Members worked fewer than forty hours in a workweek,  Defendant did not pay them their agreed hourly rate for the pre and post shift periods during which  Plaintiff and Class Members performed work duties. Throughout the relevant period, Defendant  expected and required Plaintiff and Class Members to be available to work before and after their  shifts.  This time constitute compensable time under the state law because (1) Defendant breached  7  an agreement with Plaintiff and Rule 23 Class Members by not paying them the agreed hourly rate  for all hours worked, or (2) Defendant received and accepted the value of Plaintiff’s and Class  Members’ unpaid work with reasonable notice that Plaintiff and Class Members expected to be  paid for all hours worked, or (3) Defendant has been unjustly enriched by receiving the benefit of  Plaintiff’s unpaid work.     39.  Defendant has employed at least 40 people meeting the definition of FLSA and  Rule 23 Class Members in this Complaint during the three year period before this lawsuit was  filed.   40.  Defendant classified Plaintiff as non-exempt from overtime pay.   41.  Defendant classifies all FLSA and Rule 23 Class Members as defined in this  Complaint as non-exempt from overtime pay.   42.  Defendant’s method of paying Plaintiff and Class Members was willful, and was  not based on a good faith and reasonable belief that its conduct complied with the FLSA.      43.  Plaintiff brings this complaint as a collective action pursuant to 29 U.S.C. § 216(b)  on behalf of himself and all persons who were, are, or will be employed by Defendant as non- exempt, hourly waitstaff, or in substantially similar positions, within three (3) years from the  commencement of this action.  Defendant has not compensated these employees for all their  compensable time as described above.     44.  Per 29 U.S.C. § 216(b), this action may be brought as an “opt-in” collective action  for the claims asserted by Plaintiff because their claims are similar to the claims possessed by Class  Members.   45.  Plaintiff has actual knowledge that Class Members have been denied compensation  for time worked.  In addition, Plaintiff has actual knowledge that Class Members have also been  8  denied overtime pay for this work and would therefore likely join this collective action if provided  a notice of their rights to do so together with a clear statement that doing so would not result in  termination or other forms of retaliation by Defendant.     46.  Plaintiff is similarly situated to Class Members.  Like Plaintiff, Defendant subjected  Class Members to its common practice, policy, or plan of refusing to pay overtime for all work  performed, in clear violation of the FLSA.    47.  Other employees similarly situated to Plaintiff work, or have worked, for Defendant  but were not paid the minimum wage for all the hours they worked.   48.  Other employees similarly situated to Plaintiff work, or have worked, for Defendant  but were not paid overtime at the rate of one and one-half times their regular hourly rate when  those hours exceeded forty per workweek because Defendant did not pay them for all the hours  they worked.     49.  Although Defendant permitted and/or required Class Members to work in excess  of forty (40) hours per workweek, Defendant has denied them full compensation for their hours  worked over forty (40).   50.  Class Members perform or have performed the same or similar work as Plaintiff.   51.  Defendant’s failure to pay the minimum wage or overtime compensation required  by the FLSA results from generally applicable policies or practices and does not depend on the  personal circumstances of Class Members.   52.  Although Plaintiff and Class Members may have different job titles, this action may  be properly maintained as a collective action on behalf of the defined class because, throughout  the relevant period:   a. Defendant maintained common scheduling systems and policies with respect to  Plaintiff and Class Members, controlled the scheduling systems and policies  9  implemented throughout their facilities and retained authority to review and revise or  approve the schedules assigned to Plaintiff and Class Members;  b. Defendant maintained common timekeeping systems and policies with respect to  Plaintiff and Class Members;  c. Defendant maintained common payroll systems and policies with respect to Plaintiff  and Class Members, controlled the payroll systems and policies applied to Plaintiff and  Class Members and set the pay rate assigned to Plaintiff and Class Members; and  d. Defendant controlled the scheduling policies and practices at issue in the litigation and  had the ability to deprive Plaintiff and Class Members of wages owed for work they  performed.   53.    The specific job titles or precise job responsibilities of each Class Member do not  prevent collective treatment.   54.   Class Members, irrespective of their particular job requirements, are entitled to the  minimum wage for all hours worked and overtime compensation for hours worked in excess of  forty during a workweek.   55.   Although the exact amount of damages may vary among Class Members, the  damages for Class Members can be easily calculated, summed, and allocated based on a simple  formula.     56.  Plaintiff’s and Class Members’ claims arise from a common nucleus of operative  facts; namely, the continued and willful failure of Defendant to comply with its obligation to  legally compensate its employees.  Liability is based on a systematic course of wrongful conduct  by Defendant that caused harm to all Class Members.  Defendant had a plan, policy or practice of  not paying Plaintiff and Class Members for all the hours they worked.    57.   As such, the class of similarly situated Plaintiff is properly defined as follows:   10  Waitstaff employed by Defendant at any time during the three- year period prior to filing this complaint to the present.   58.  Plaintiff estimates that the Class, including both current and former employees over  the relevant period, will include more than 50 people.  The precise number of Class Members  should be readily available from Defendant’s personnel, scheduling, time and payroll records, and  from input received from Class Members as part of the notice and “opt-in” process provided by 29  U.S.C. § 216(b).  The names and addresses of the Class Members of the collective action are  discoverable from Defendant.  Given the composition and size of the Class, notice will be provided  to these individuals via First Class Mail, text messages, e-mail, and other modes of notice similar  to those customarily used in representative actions.  59.  Plaintiff incorporates all allegations contained in the foregoing paragraphs.    60.  Plaintiff and Class Members, Defendant’s employees, are similarly situated  individuals within the meaning of the FLSA, 29 U.S.C. § 216(b).   61.  The FLSA requires each covered employer to compensate all non-exempt  employees at a rate of not less than one and one-half times their regular hourly rate for all hours  worked in excess of forty hours per week.   62.  Throughout the relevant period, Defendant expected and required Plaintiff and  Class Members to be available to work before and after their shifts.  In certain weeks, this extra  time resulted in the non-payment of overtime because Defendant did not treat this time as  compensable time.   11   63.  Plaintiff and Class Members have been harmed as a direct and proximate result of  Defendant’s unlawful conduct because they have been deprived of wages owed for work they  performed and from which Defendant derived a direct and substantial benefit.   64.  Defendant’s failure to pay overtime to Plaintiff and Class Members, in violation of  the FLSA, was willful and not based on a good faith belief that its conduct did not violate the  FLSA.  The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the  meaning of 29 U.S.C. § 255(a).  65.  Plaintiff incorporates all allegations contained in the foregoing paragraphs.    66.  Plaintiff and Class Members, Defendant’s employees, are similarly situated  individuals within the meaning of the FLSA, 29 U.S.C. § 216(b).   67.  The FLSA requires each covered employer to compensate all non-exempt  employees at a rate of not less than $7.25 per hour for every hour worked.   68.  Throughout the relevant period, Defendant expected and required Plaintiff and  Class Members to be available to work before and after their shifts.  Defendant did not pay Plaintiff  and the Class Members for this time resulting in them receiving less than the minimum wage.    69.  Plaintiff and Class Members have been harmed as a direct and proximate result of  Defendant’s unlawful conduct because they have been deprived of wages owed for work they  performed and from which Defendant derived a direct and substantial benefit.   70.  Defendant’s failure to pay the minimum wage to Plaintiff and Class Members, in  violation of the FLSA, was willful and not based on a good faith belief that its conduct did not  violate the FLSA.  The foregoing conduct, as alleged, constitutes a willful violation of the FLSA  within the meaning of 29 U.S.C. § 255(a).  12  71.  Plaintiff incorporates all allegations contained in the foregoing paragraphs.   72.  Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiff, individually  and on behalf of all other similarly situated employees, pursue state-law claims for breach of  contract, quantum meruit, money had and received, and unjust enrichment against Defendant.   73.  Plaintiff seeks certification of the following class pursuant to Rule 23 of the Federal  Rules of Civil Procedure:  Waitstaff employed by Defendant at any time during the four years  before this Complaint was filed to the present, who that worked an  opening or closing shift in weeks where the total time worked was forty  hours or less.   74.  Plaintiff, individually and on behalf of other similarly situated employees, seeks  relief on a class basis challenging Defendant’s practice of failing to pay for pre and post shift work,  thereby requiring unpaid work and failing to pay Plaintiff and other similarly situated employees  their agreed rate of pay or the reasonable value of the services they rendered for all hours worked  in non-overtime workweeks (weeks where the total number of hours worked was 40 hours or less).   By definition this period excludes weeks where FLSA applies due to more than 40 hours total  being worked.    75.  Throughout the relevant period, whether through an agreement, handbook, and/or  policy, Defendant promised to provide Plaintiff and Class Members for the entirety of the time  they worked.   76.  Throughout the relevant period, Defendant routinely knowingly allowed Plaintiff  and Class Members to perform work before and after their shifts.    77.  Throughout the relevant period, Defendant knew that Plaintiff and Class Members  regularly performed work because Defendant’s agents regularly encouraged, instructed, suffered  13  and permitted Plaintiff and Class Members to perform this work and observed this work being  performed on a regular basis.    78.  Throughout the relevant period, Defendant knew that Plaintiff and Class Members  regularly performed pre- and post-shift work because Plaintiff and Class Members routinely  engaged in this work on Defendant’s premises, in plain sight, and at their managers’ request.   79.  As a result, throughout the relevant period, Defendant knew that Plaintiff and Class  Members were not being properly compensated for all of their work.   80.  Regardless, during the relevant period, Defendant failed to pay Plaintiff and Class  Members for the valuable services provided during their workdays or prohibit Plaintiff and the  Class Members from performing unpaid work. On the contrary, Defendant specifically authorized  work to be done during these pre- and post-shift periods and received the benefit of such work.   81.  Defendant maintained common work, time, pay, and scheduling policies and  procedures at issue during the relevant period.  As a result, Plaintiff and Class Members are  similarly situated regardless of their job title and have been regularly deprived of pay owed for  work they performed in workweeks where Plaintiff and the Class Members worked forty hours or  less.   82.  As a result of its improper conduct, Defendant has retained money that it should  have paid to Plaintiff and Class Members for their compensable work. By retaining this money,  Defendant has received an inequitable windfall through, inter alia, reduced labor and operations  costs and enhanced profit margins.   83.  Plaintiff’s state-law claims against Defendant for breach of contract, quantum  meruit, money had and received, and unjust enrichment against Defendant all satisfy the  numerosity, commonality, typicality, adequacy, and superiority requirements of a class action.  14   84.  Numerosity. The class satisfies the numerosity standard as it is believed to number  over 50 class members.  Consequently, joinder of all class members in a single action is  impracticable.  The data required to calculate the size of the class is within the sole control of  Defendant.     85.  Commonality. There are common questions of law and fact common to the class  that predominate over any questions affecting individual members.  The questions of law and fact  common to the class arising from Defendant’s actions include, without limitation, the following:  a. Whether Defendant had a policy and practice of requiring pre- and post-shift  work;  b. Whether Plaintiff and Class Members performed work during unpaid pre- and  post-shift periods;  c. Whether Defendant directed, required, requested, and/or permitted Plaintiff and  Class Members to work during their pre- and post-shift periods;   d. Whether Defendant knew or should have known that Plaintiff and Class  Members were not compensated for work performed during their pre- and post- shift periods  e. Whether agreements existed between Plaintiff and Class Members concerning  payment for work performed pre- and post-shift periods, and whether  Defendant breached such agreements;  f. Whether valuable services were rendered to Defendant by the Plaintiff and  Class Members during unpaid pre- and post-shift times, and whether Defendant  accepted the benefit of Plaintiff’s and Class Members’ unpaid services;   g. Whether Defendant was unjustly enriched by Plaintiff’s and Class Members’  unpaid work;  15  h. The proper measure of damages, including whether the reasonable value of such  services can be based on the agreed hourly rate of pay.   86.  Typicality. Plaintiff’s claims are typical of those of the class because Plaintiff’s  claims arise from the same course of conduct and legal theories as the claims of the prospective  class members.  Like the Class Members, the Plaintiff worked as a driver for Defendant during the  relevant time period. Like the Class Members, the Plaintiff was subject to the identical company- wide policy related to the automatic deduction in pay.  The other facts outlined above likewise  apply equally to both the Plaintiff and the Class Members.    87.  Adequacy. Plaintiff is an adequate representative of the class because his interests  do not conflict with the interests of the class members he seeks to represent.  The interests of the  members of the class will be fairly and adequately protected by the Plaintiff and the undersigned  counsel, who has experience in employment and class action lawsuits.   88.  Superiority. A class action is superior to other available means for the fair and  efficient adjudication of this lawsuit.  Even if the event any member of the Class could afford to  pursue individual litigation against a company the size of Defendant, doing so would unduly  burden the court system.  Individual litigation of 50 or more claims would magnify the delay and  expense to all parties and flood the court system with duplicative lawsuits. Prosecution of separate  actions by individual members of the Class would create risk of inconsistent and varying judicial  results and establish incompatible standards of conduct for Defendant. A single class action can  determine the rights of all class members in conformity with the interest of efficiency and judicial  economy.  89.  Plaintiff realleges and incorporates all allegations contained in the foregoing  paragraphs.  16   90.  A valid and enforceable agreement existed between Plaintiff and Defendant, and  Class Members and Defendant, the terms and conditions of which include, but are not limited to,  an agreement by Plaintiff and Class Members to perform services for Defendant, and for Defendant  to pay Plaintiff and Class Members at an agreed hourly rate for all time in which they performed  compensable work.   91.  Plaintiff and Class Members duly performed under the agreement at Defendant’s  direction and for its benefit.    92.  Defendant failed and refused to perform its obligations under the agreement by  failing to pay for pre- and post-shift periods when Plaintiff and Class Members performed work  during such periods, thereby failing to compensate Plaintiff and Class Members for all time worked  on behalf of Defendant.   93.  Plaintiff and Class Members are entitled to recover damages from these breaches  for the last four years.   94.  Plaintiff and Class Members are entitled to attorney’s fees for such breach of  contract.  95.  Plaintiff realleges and incorporates all allegations contained in the foregoing  paragraphs.  This claim is plead in the alternative to the breach of contract claim.    96.  Plaintiff and Class Members performed valuable services for Defendant during  their pre- and post-shift periods.     97.  These services had a reasonable value no less than the agreed hourly rate.   98.  Defendant accepted and retained the benefit of Plaintiff’s and Class Members’  performance of these valuable services.  17   99.  No contract exists between Plaintiff and Defendant, and Class Members and  Defendant, regarding the provision of services during unpaid pre- and post-shift periods.  100.  Defendant had reasonable notice and/or knowledge that Plaintiff and Class  Members expected to be compensated for services rendered for the Defendant.  101.  Defendant failed to pay Plaintiff and Class Members the reasonable value of the  services performed during unpaid pre- and post-shift periods.  102.  Plaintiff and Class Members are entitled to recover damages under this claim for  the last four years.  103.  Plaintiff and Class Members are entitled to attorney’s fees and costs under this  claim.   FAILURE TO PAY THE MINIMUM WAGE   (COLLECTIVE ACTION)   FAILURE TO PAY OVERTIME COMPENSATION   (COLLECTIVE ACTION)  