(FLSA Overtime Violations - 29 U.S.C § 207; Collective Action)   (Failure to Pay Wages When Due –  Violation of Oregon Wage and Hour Laws)   16.  Defendants’ Retail Merchandisers perform a variety of tasks related to the management  of in-store displays in retail stores on behalf of Defendants’ clients.  Merchandiser duties include,  but are not limited to, building or reconfiguring product displays, maintaining product displays,  taking product inventory, and re-stocking displays.   17.  Defendants’ Retail Merchandisers receive daily work assignments, track work activities,  and report work progress through emails and an electronic call reporting system used to generate  an electronic record known as a “Call Report” using a wireless tablet device provided by  Defendants.   18.  Defendants’ Retail Merchandisers begin their workday at home by downloading work  emails and new Call Reports before traveling to the first retail location to complete specific tasks  and assignments.     19.  Call Reports contain specific tasks and assignments to be completed by Retail  Merchandisers.  The Call Report application contains a time-tracking feature that starts when the  electronic record is opened and the “start” button is pushed and stops when all of the tasks on the  Call Report have been completed or when the Retail Merchandiser ends the Call Report by  pressing the “complete” button.  In this way, each Call Report contains an accurate record of the  actual number hours worked by the Retail Merchandiser on a specific Call Report.     20.  Retail Merchandisers are paid a set hourly rate of pay of for each hour worked.   22.  Retail Merchandisers complete Call Reports any time they are completing a work  assignment.  Defendants’ employees review the Call Reports for accuracy and completeness.     23.  Retail Merchandiser job performance is evaluated based on timeliness, accuracy, and  completeness of Call Reports.    24.  Call Reports are an integral component of Defendants’ business operations.     25.  Defendants share data generated by Call Reports with their clients to demonstrate  performance.   26.  Defendants compensate Retail Merchandisers based on the number of hours shown on the  Atlas time record submitted by the Retail Merchandisers not based on the actual number of hours  worked by the Retail Merchandiser.    27.  Defendants disregard the number of hours worked as reflected on Call Reports when  computing Retail Merchandiser pay.    28.  Defendants’ employee handbook requires that Retail Merchandisers must use “good faith  efforts” to avoid overtime, and further requires Retail Merchandisers to seek pre-approval 48  hours in advance of working any hours additional to those scheduled.  Retail Merchandisers who  report working over 40 hours in a workweek on their Atlas time record without prior  authorization are subject to discipline. As a result, Plaintiff and other Retail Merchandisers are  deterred from reporting actual hours worked on their Atlas time records in weeks during which  they worked more than 40 hours because of fears about discipline and job loss.    30.  Plaintiff alleges that in weeks in which the time recording function of the electronic Call  Reports show a Retail Merchandiser working more than 40 hours in a workweek, the Retail  Merchandiser accrued and was owed overtime compensation even if the employee submitted an  Atlas time record with no overtime hours reported.   31.  Defendants’ time recording policies and practices result in the denial of overtime pay at  one and one-half times the Retail Merchandiser’s regular rate of pay.    32.  During her employment, Defendants did not pay Plaintiff and other Retail Merchandisers  the correct amount of overtime earned because Defendants ignored the actual hours worked as  shown by the time keeping record of the electronic Call Report record maintained by  Defendants.   33.  Plaintiff alleges she was underpaid each time she worked more than 40 hours in a  workweek and was not paid any additional compensation at one and one-half times her regular  rate of pay.     34.  For example, during the week of January 24 to 30, 2016 according to Plaintiff’s Call  Reports she spent 43 hours and 6 minutes working on assigned tasks for Defendants, however  she was only paid for 40 hours that week, with no additional compensation paid for the overtime  hours worked.    35.  Accordingly, Defendants owe Plaintiff unpaid overtime, liquidated damages, and penalty  wages under the FLSA and Oregon Wage and Hour laws.   37.  At all times material to this Complaint, Defendants acted, directly or indirectly, in the  interest of an employer with respect to Plaintiff and all others similarly situated.   38.  Defendants are subject to the FLSA, 29 U.S.C. § 201 et seq. and Oregon Wage and Hour  Laws, ORS Chapters 652 and 653.    39.  At all material times, Defendants have been joint employers within the meaning of 3(d)  of the FLSA, 29 U.S.C. § 203(d) and 29 C.F.R. § 791.2. Defendants directly or indirectly acted  in the interest of an employer toward the Plaintiff at all material times, including, without  limitation, directly or indirectly controlling all employment terms and conditions of Plaintiff.   40.  At all material times, Defendants have been enterprises within the meaning of 29 U.S.C.  § 203(r).    41.  At all material times, Defendants have been enterprises in commerce or in the production  of goods for commerce within the meaning of 29 U.S.C. § 203(s)(1) because they had employees  engaged in commerce. Based upon information and belief, the annual gross sales volume of  Defendants was in excess of $500,000 per annum at all times material hereto.  Alternatively,  Plaintiff and the similarly situated employees worked in interstate commerce so as to fall within  the protections of the FLSA.   42.  At all material times, Plaintiff was an individual employee who was engaged in  commerce or in the production of goods for commerce as required by 29 U.S.C. §§ 206-207.   44.  Plaintiff re-alleges and incorporates herein by reference, all allegations contained in  paragraphs 1 through 43 above.   45.  At all material times, Plaintiff performed duties for the benefit of, and on behalf of  Defendants, under employment terms and conditions set by Defendants.   46.  At all material times, Defendants were required to pay Plaintiff and the FLSA Class  members in accordance with the overtime provisions of the FLSA.   47.  At all material times, Defendants failed to pay overtime to Plaintiff and the FLSA class  even when the time keeping record of the electronic Call Report record showed more than 40  hours worked by a Retail Merchandiser on assigned tasks during a workweek.   48.  At all material times, Defendants failed to pay Plaintiff and other similarly situated Retail  Merchandisers the correct amount of overtime pay because Defendants failed to compute  overtime pay based the actual hours worked.   49.  Plaintiff brings this collective class action under § 216(b) of the FLSA and against  Defendants for unpaid overtime compensation, and related penalties and damages on behalf of  herself and FLSA Class.   50.  Plaintiff brings this FLSA claim for unpaid overtime and liquidated damages as an “opt- in” collective action pursuant to 29 U.S.C. § 216(b).  The FLSA claims may be pursued by those  FLSA Class members who opt-in to this case pursuant to 29 U.S.C. § 216(b).   52.  The number and identity of the other members of the putative FLSA Class may be readily  determined from the records of Defendants, and potential opt-in FLSA Class members may be  easily and quickly notified of the pendency of this action.     53.  Defendants have not paid Plaintiff and FLSA Class members the correct amount of  overtime pay for weeks in which they worked in excess of 40 hours in violation of 29 U.S.C. §  207.   54.  Plaintiff and similarly situated FLSA Class members have not been paid all of the  overtime wages owed to them by Defendants.   55.  Records of all hours worked including the time keeping record of the electronic Call  Reports and all compensation paid to Plaintiff and similarly situated FLSA Class members are in  the possession and control of Defendants.   56.  At all material times hereto, Defendants failed to comply with 29 U.S.C. §§ 201-209 in  that Plaintiff and others performed services and provided labor for Defendants for which  Defendants failed to pay the correct amount of overtime based on an accurate record of actual  hours worked as required by the FLSA.    58.  Defendants violated §207 of the FLSA when they willfully failed to pay overtime to  Plaintiff and FLSA Class members at one and one-half times their regular rate of pay for all  hours worked over 40 in a workweek during the applicable statutory period.     59.  Defendants’ failure to pay Plaintiff and FLSA Class members all overtime earned at one  and one-half times their regular rate of pay resulted from Defendants’ willful act of knowingly  adopting a compensation policy that failed to pay Retail Merchandisers for all hours worked  when computing an employee’s weekly overtime. Defendants’ policy thus violated the FLSA  and resulted in the underpayment of overtime pay to Plaintiff and each FLSA Class Member.   Plaintiff and the FLSA Class members are entitled to liquidated damages for Defendants’ willful  failure to pay the correct amount of overtime.   60.  As joint employers, Defendants are jointly and severally liable to Plaintiff and the FLSA  Class for the FLSA violations alleged herein.    61.  By reason of said intentional, willful, and unlawful acts of Defendants, Plaintiff and  FLSA Class members have suffered damages and have also incurred costs and reasonable  attorneys’ fees.   62.  On behalf of herself and other similarly situated Retail Merchandisers who were  employed by Defendants in Oregon, Plaintiff re-alleges and incorporates herein by reference, all  allegations contained in paragraphs 1 through 43 above.   64.  Plaintiff and similarly situated current and former employees are owed wages that were  earned but not paid when due, whether during employment or upon termination.     65.  The wages earned but not paid include, but are not limited to, the underpayment of  overtime resulting from Defendants’ failure to pay for all hours worked when computing the  overtime wages earned by Plaintiff and those similarly situated employees.   66.  Records of hours worked and wages and other compensation paid to Plaintiff and others  are in possession and control of Defendants.   67.  Defendants’ records show that Defendants failed to pay all wages earned when due to  Plaintiff and similarly situated current and former employees.   68.  Plaintiff brings a class action pursuant to Fed. R. Civ. P. 23(b)(3) on behalf of herself and  the following class of persons:  All current and former hourly non-exempt Retail Merchandisers  employed by Defendants in Oregon within the three years  preceding the filing of this Complaint who were not paid all  overtime compensation owed when due (the “Oregon Wage  Class”).   69.  As a result of Defendants’ willful failure to pay Plaintiff and the Oregon Wage Class all  wages when due, Defendants are liable to Plaintiff and each member of Oregon Wage Class for a  penalty to be computed in accordance with ORS 652.150.   71.  All members of the Oregon Wage Class who do not opt out may pursue the Oregon state  law claim if that claim is certified for class-wide treatment.   72.  Plaintiff’s state law claim satisfies the Fed. R. Civ. P. 23(a) class action prerequisites of  numerosity of members, commonality of questions of law and fact, typicality of class claims, and  fair and adequate representation of class member interests.   73.  Numerosity (Fed. R. Civ. P 23(a)(1)): The Oregon Wage Class satisfies the numerosity  standards.  The Oregon Wage Class is believed to be in excess of 50 people.  As a result, joinder  of all Oregon Wage Class members in a single action is impracticable.  The precise number of  Oregon Wage Class members and their identities and contact information are unknown to  Plaintiff but can be easily ascertained from Defendants’ payroll records.  Oregon Wage Class  members may be notified of the pendency of the action by first-class mail.     74.  Commonality (Fed. R. Civ. P 23(a)(2)): Questions of law and fact common to the  Oregon Wage Class predominate over any questions affecting only individual members.  All  Oregon Wage Class members were subject to the same payroll practices that resulted in the  failure to pay wages when due. All Oregon Wage Class members received paychecks, but did  not receive all overtime compensation earned when due. Thus, all Oregon Wage Class Members  have been paid incorrectly in the same manner, and all Oregon Wage Class members are owed  additional compensation.     76.  Common questions of law exist regarding: (a) whether Defendants paid overtime wages  when due in accordance with Oregon Wage and Hour Law, ORS Chapters 652; (b) whether such  actions were willful and (c) whether former employees are owed penalties under ORS 652.   77.  The common issues predominate over any questions affecting only individual persons,  and a class action is superior with respect to considerations of consistency, economy, efficiency,  fairness, and equity to other available methods for the fair and efficient adjudication of the  Oregon state law claims.     78.  Typicality (Fed. R. Civ. P. 23(a)(3)):  Plaintiff’s claim is typical of Oregon Wage Class  members’ claims because:  a. Defendants employed Plaintiff in the same or similar positions as the Oregon  Wage Class members;  b. Plaintiff and the Oregon Wage Class members were subject to the same payroll  policies and were affected in the same manner by those policies;  c. Plaintiff, together with all of the Oregon Wage Class members, did not receive all  wages when due;  d. Plaintiff, together with all of the Oregon Wage Class members, is owed a penalty  computed according to ORS 652.150;  e. Plaintiff’s claim is based on the same legal and remedial theories as those of the  Oregon Wage Class and have similar factual circumstances; and  f. Plaintiff has suffered the same or similar injury, as did members of the Oregon  Wage Class.   80.  A class action is the superior procedural vehicle for the fair and efficient adjudication of  the claims asserted herein given that:   a. There is minimal interest of members of the Oregon Wage Class in individually  controlling their prosecution of claims under Oregon Wage and Hour Laws;  b. It is desirable to concentrate the litigation of these claims in this forum; and   c. There are no unusual difficulties likely to be encountered in the management of  this case as a class action.   81.  The presentation of separate actions by individual Oregon Wage Class members creates  the risk of inconsistent and varying adjudications, and may establish incompatible standards of  conduct for Defendants and/or substantially impair or impede the ability of Oregon Wage Class  members to protect their interests.   82.  In the absence of a class action, Defendants would be unjustly enriched because they  would be able to retain the benefits and fruits of wrongful violations of Oregon Wage and Hour  Laws.   COMPLAINT; OREGON WAGE  AND HOUR LAWS  Fair Labor Standards Act 29 U.S.C. §  201 et seq.; Oregon Wage and Hour  Laws (ORS Chapter 652) 