12.  Homeland Vinyl is a business that manufactures, fabricates, and markets vinyl  fencing, rail, and deck products.  Homeland Vinyl sells its products throughout the United States,  including in New Jersey.     13.  Plaintiff and members of the Class and Collective provide support for Homeland  Vinyl’s manufacturing operations.  Among other tasks, Plaintiff and Class and Collective members  are responsible for setting up and operating machine equipment, monitoring machine operations,  loading raw materials, and checking the quality of finished products.   14.  Plaintiff and members of the Class and Collective are classified as non-exempt, and  compensated with hourly wages.  Plaintiff earns approximately $14.25 per hour.  Plaintiff also  earns a fifty cent shift differential pay when his shifts are scheduled outside normal business hours.    15.  Based on information and belief, none of Defendant’s hourly employees, including  Class and Collective members, are part of a union, and the terms of their employment are not  governed by a collective bargaining agreement.   16.  Plaintiff and Class and Collective members are typically scheduled to work twelve- hour shifts.  Homeland Vinyl creates bi-weekly schedules in which Plaintiff and members of the  Class and Collective work three days one week, and four days the next week. Thus, Plaintiff and  members of the Class and Collective work alternating weekly schedules of at least 36 hours, and  48 hours, respectively.    5   17.  For compensation purposes, Homeland Vinyl averages Plaintiff and Class and  Collective members’ weekly hours on a bi-weekly basis, and calculates their total pay at a rate of  42 hours per week. Thus, Plaintiff and members of the Class and Collective receive four hours of  overtime pay every two weeks.  But because Plaintiff and Class and Collective members work  alternating weeks of 36 and 48 hours, respectively, this bi-weekly averaging policy deprives  Plaintiff and Class and Collective members of four hours of overtime every two weeks.   18.  When computing Plaintiff and Class and Collective members’ regular rate of pay  for overtime purposes, Homeland Vinyl does not account for shift differential pay, as required by  the FLSA and New Jersey Wage Law.  Consequently, hourly employees of Homeland Vinyl who  receive overtime compensation are not compensated at one and one-half times their regular rate of  pay for each hour of overtime worked.    19.  Compensation provided to Plaintiff and Class and Collective members is not paid  finally, unconditionally, free and clear of deductions and/or kickbacks.  Plaintiff and Class and  Collective members are required to pay for and provide their own mechanics tools in performing  their routine duties for Homeland Vinyl.  Such tool-related expenses incurred by Plaintiff and the  Class and Collective include but are not limited to tool cabinets, socket sets  (standard and metric,  as well as different sizes), breaker bars of different sizes, ratchets of different sizes, wrench sets  (metric and standard, large and regular sized), nut drivers (standard and metric), adjustable wrench  sets, screwdriver sets, Hex key sets (standard and metric as well as different sizes), Allen keys  (standard and metric, as well as different sizes), torque wrenches in different sizes, spray bottles,  hammers, sledge hammers, crow and pry bars, rubber mallets, and tap and dye sets.    20.  Plaintiff, specifically, spent approximately $500 - $700 for tools used in performing  his various job duties. Some of these costs were incurred during weeks in which Plaintiff worked  6  in excess of 40 hours. Because Plaintiff and Class and Collective members routinely work in excess  of 40 hours in a week, and because Homeland Vinyl does not compensate Plaintiff and Class and  Collective members for these necessarily incurred business expenses – expenses incurred solely  for Homeland Vinyl’s benefit – these costs cut into the overtime wages required to be paid to  Plaintiff and Class and Collective members.    21.  Homeland Vinyl requires Plaintiff and Class and Collective members to perform  substantial work off-the-clock and without compensation.  Homeland Vinyl instructs hourly  employees to arrive for their work shifts fifteen minutes early to relieve outgoing hourly employees  and receive work briefing by managers. Homeland Vinyl instructs hourly employees to clock in  only after these briefings are completed, which often takes more than fifteen minutes.  Homeland  Vinyl does not permit hourly employees to clock in before their scheduled work shift begins.  Whenever Plaintiff and Class and Collective members attempt to correctly clock in or out to  account for this additional work time, Homeland Vinyl unilaterally alters these time entries to  excise these pre and post shift activities.  In total, Plaintiff and Class and Collective members  typically work one and one-half to two hours off-the-clock per week.     22.  Furthermore, Homeland Vinyl instructs hourly employees to complete all tasks on  the manufacturing floor, regardless of when their scheduled work shift ends.  In order to perform  these tasks as required, Plaintiff and Class and Collective members often stay more than fifteen  minutes after the conclusion of their scheduled work shift in order to complete their work.   However, Homeland Vinyl regularly edits hourly employees’ timesheets to reflect that they  clocked out at the end of their scheduled shift.  Thus, work performed by hourly employees during  these periods goes uncompensated.     23.  As a result of Homeland Vinyl’s timekeeping policies, Plaintiff and the Class and  7  Collective members are not paid for all hours worked, and are paid at their regular rate or at the  applicable overtime rates.   24.  Plaintiff is informed, believes, and thereon alleges that Homeland Vinyl’s policies  and practices as alleged herein have at all relevant times been similar for non-exempt, hourly  employees, regardless of the location within the United States, including in New Jersey.    25.  Homeland Vinyl’s unlawful conduct has been widespread, repeated, and consistent  throughout its work locations in the United States, including in New Jersey.  Homeland Vinyl  knew or should have known that its policies and practices have been unlawful and unfair.     26.  Homeland Vinyl’s conduct is willful, carried out in bad faith, and causes significant  damages to non-exempt, hourly employees in an amount to be determined at trial. Homeland Vinyl  had no reasonable basis to believe that it was complying with the FLSA and New Jersey laws.   Rather, Homeland Vinyl either knew or acted with reckless disregard of clearly applicable FLSA  and New Jersey regulations regarding the computation of overtime, demonstrated by, inter alia:  a. At all relevant times, Homeland Vinyl maintained payroll records reflecting  the fact that Plaintiff and members of the Class and Collective regularly  worked alternating weeks of 36 and 48 hours, respectively;   b. At all relevant times, Homeland Vinyl maintained payroll records reflecting  the fact that Plaintiff and members of the Class and Collective were  consistently compensated for 42 hours per week, all at the regular rate;   c. At all relevant times, New Jersey wage and hour laws, as well as the FLSA,  expressly prohibited Homeland Vinyl’s bi-weekly overtime averaging. See 29  C.F.R. § 778.104 (“The Act takes a single workweek as its standard and does  not permit averaging of hours over 2 or more weeks. Thus, if an employee  8  works 30 hours one week and 50 hours the next, he must receive overtime  compensation for the overtime hours worked beyond the applicable maximum  in the second week, even though the average number of hours worked in the 2  weeks is 40”); N.J.A.C. 12:56-6.2(a) (“Overtime and minimum wage pay shall  be computed on the basis of each workweek standing alone”) and N.J.A.C.  12:56-6.2(b) (“Hours shall not be averaged over two or more workweeks”);   d. Homeland Vinyl required Plaintiff and members of the Class and Collective  to furnish their own tools to carry out Homeland Vinyl’s daily operations, and  Homeland Vinyl had no reasonable basis to believe this job requirement was  anything other than an unlawful deduction and/or kickback under the FLSA.   27.  Plaintiff brings the First Count (the FLSA claim) as an “opt-in” collective action  pursuant to 29 U.S.C. § 216(b) on behalf of the proposed collective of similarly situated  individuals defined as:   All current and former non-exempt, hourly employees of Homeland Vinyl who  worked at one of Homeland Vinyl’s production facilities in the United States, at  any time beginning three years before the filing of this Complaint until the  resolution of this action.      28.  Plaintiff, individually and on behalf of other similarly situated persons defined  above, seek relief on a collective basis challenging Defendant’s policies and practices of failing to  properly pay Plaintiff for all hours worked, including overtime compensation, as well as  Defendant’s failure to record all hours worked. The number and identity of other similarly situated  persons yet to opt-in and consent to be party-plaintiffs may be determined from the records of  Defendant, and potential opt-ins may be easily and quickly notified of the pendency of this action.   9   29.  Plaintiff’s claims for violations of the FLSA may be brought and maintained as an  “opt-in” collective action pursuant to Section 216(b) of the FLSA because Plaintiff’s FLSA claims  are similar to the claims of the Collective members.   30.  The Collective members are similarly situated, as they have substantially similar  job duties and requirements and are subject to a common policy, practice and/or plan that  unlawfully minimizes overtime and minimum wage compensation due through, inter alia, bi- weekly hour-averaging and requirements to perform off-the-clock work without compensation.    31.  Plaintiff is representative of the Collective members and is acting on behalf of their  interests, as well as Plaintiff’s own interests, in bringing this action.   32.  Plaintiff will fairly and adequately represent and protect the interests of Collective  members.  Plaintiff has retained counsel competent and experienced in employment class action  and collective action litigation.   33.  The similarly situated Collective members are known to Homeland Vinyl, are  readily identifiable, and may be located through Homeland Vinyl’s records.  These similarly  situated employees may readily be notified of this action, and allowed to “opt-in” to this case  pursuant to 29 U.S.C. § 216(b) for the purpose of collectively adjudicating their claims for unpaid  wages, liquidated damages (or, alternatively, interest), and attorney’s fees and costs under the  34.  Plaintiff brings the Second and Third Counts (the New Jersey state law claims) as  an “opt-out” class action pursuant to Federal Rule of Civil Procedure 23.  The New Jersey Class  is defined as:   All current and former non-exempt, hourly employees of Homeland Vinyl who  worked at one of Homeland Vinyl’s production facilities in New Jersey, during the  10  time period two years prior to the filing of this Complaint until the resolution of  this action.    35.  Numerosity:  The potential members of the Class as defined are so numerous that  joinder of all the members of the Class is impracticable.  On information and belief, Plaintiff  estimates the class exceeds several hundred class members.    36.  Existence and Predominance of Common Questions:  There are questions of  law and fact common to Plaintiff and the Class that predominate over any questions affecting  only individual members of the Class.  These common questions of law and fact include, but are  not limited to:  a.  Whether Homeland Vinyl failed to compensate Class members for all hours  worked in violation of the NJSWHL;  b.  Whether Homeland Vinyl failed to compensate Class members with at least  minimum wage for all compensable work time in violation of the NJSWHL;  c.  Whether Homeland Vinyl failed to properly compensate Class members with  wages at a rate of not less than one and one-half the employee’s regularly hourly  wage for each hour or working time in excess of 40 hours in any week in violation  of the NJSWHL;   d.  The proper formula for calculating restitution, damages and penalties owed to  Plaintiff and the Class as alleged herein.   37.  Typicality:  Plaintiff’s claims are typical of the claims of the Class.  Homeland  Vinyl’s common course of conduct in violation of law as alleged herein has caused Plaintiff and  Class members to sustain the same or similar injuries and damages.  Plaintiff’s claims are thereby  representative of and co-extensive with the claims of the Class.   38.  Adequacy of Representation:  Plaintiff is a member of the Class, does not have  any conflicts of interest with other Class members, and will prosecute the case vigorously on behalf  of the Class.  Counsel representing Plaintiff is competent and experienced in litigating large  employment class actions, including wage and hour classes.  Plaintiff will fairly and adequately  represent and protect the interests of the Class members.  11   39.  Superiority of Class Action:  A class action is superior to other available means  for the fair and efficient adjudication of this controversy.  Individual joinder of all Class members  is not practicable, and questions of law and fact common to the Class predominate over any  questions affecting only individual members of the Class. The injury suffered by each Class  member, while meaningful on an individual basis, is not of such magnitude as to make the  prosecution of individual actions against Defendant economically feasible.  Individualized  litigation increases the delay and expense to all Parties and the Court.  By contrast, class action  treatment will allow these similarly situated persons to litigate their claims in a manner that is most  efficient and economical for the parties and the judicial system.    40.  In the alternative, the Class may be certified because the prosecution of separate  actions by the individual members of the Class would create the risk of inconsistent or varying  adjudication with respect to individual members of the Class and, in turn, would establish  incompatible standards of conduct for Defendant.     41.  Class treatment will allow those similarly situated persons to litigate their claims in  the manner most efficient and economical for the Parties and the judicial system.     42.  Plaintiff knows of no difficulty that would be encountered in the management of  this litigation that would preclude its maintenance as a class action.    43.  Plaintiff re-alleges and incorporates the foregoing paragraphs as though fully set  forth herein.   44.  The FLSA requires that covered employees receive compensation for all hours  worked and overtime compensation not less than one and one-half times the regular rate of pay for  all hours worked in excess of forty hours in a work week.  29 U.S.C. § 207(a)(1).    12   45.  At all times material herein, Plaintiff and the Collective are covered employees  entitled to the rights, protections, and benefits provided under the FLSA. 29 U.S.C. §§ 203(e) and  207(a).   46.  Homeland Vinyl is a covered employer required to comply with the FLSA’s  mandates.     47.  Homeland Vinyl has violated the FLSA with respect to Plaintiff and the Collective,  by, inter alia, failing to compensate Plaintiff and the Collective for all hours worked, failing to pay  the legally mandated overtime premium for such work and/or minimum wage, and failing to  provide compensation that is unconditional, free, and clear of deductions and/or kickbacks as,  described hereinabove.    48.  Homeland Vinyl has also violated the FLSA by failing to keep required, accurate  records of all hours worked by Plaintiff and the Collective.  29 U.S.C. § 211(c).     49.  Plaintiff and the Collective are victims of a uniform and company-wide  compensation policy. This uniform policy, in violation of the FLSA, has been applied to current  and former non-exempt, hourly employees of Homeland Vinyl, working throughout the United  States.    50.   Plaintiff and the Collective are entitled to damages equal to the mandated pay,  including straight time and overtime premium pay within the three years preceding the filing of  the complaint, because Homeland Vinyl has acted willfully and knew or showed reckless disregard  for whether the alleged conduct was prohibited by the FLSA.   51.  Homeland Vinyl has acted neither in good faith nor with reasonable grounds to  believe that its actions and omissions were not a violation of the FLSA, and as a result thereof,  Plaintiff and the Collective are entitled to recover an award of liquidated damages in an amount  13  equal to the amount of unpaid overtime pay and/or prejudgment interest at the applicable rate.  29  U.S.C. § 216(b).   52.  Plaintiff and Class members are entitled to all of the unpaid wages, plus an  additional equal amount as liquidated damages, court costs, attorneys’ fees and expenses they  expend in successfully bringing this action to recover their unpaid wages, and any other relief  deemed appropriate by the Court.   53.  Wherefore, Plaintiff and the Collective request relief as hereinafter provided.   54.  Plaintiff re-alleges and incorporates the foregoing paragraphs as though fully set  forth herein.   55.  Homeland Vinyl does not compensate Plaintiff and Class members with a rate of  not less than one and one-half the employee’s regularly hourly wage for each hour or working  time in excess of 40 hours in any week.  Homeland Vinyl aggregates hours worked by hourly  employees worked over a two week period to minimize overtime pay.  This is a per se violation  of New Jersey law. See N.J.A.C. 12:56-6.2(a) (“Overtime and minimum wage pay shall be  computed on the basis of each workweek standing alone”) and N.J.A.C. 12:56-6.2(b) (“Hours  shall not be averaged over two or more workweeks.”)    56.  Homeland Vinyl does not account for shift differential pay when determining  what the overtime rate should be for Plaintiff and Class members.      57.   NJSWHL § 34:11-56a(4) provides that work performed in excess of 40 hours in a  given week must be compensated at a rate of no less than one and one-half times the regular rate  of pay for an employee.     58.  New Jersey Administrative Code 12:56-6.1 provides as follows:    14  For each hour of working time in excess of 40 hours in any week … every employer  shall pay to each of his or her employees, wages at a rate of not less than 1 1/2 times  such employee's regular hourly wage.   59.  For the purposes of calculating overtime premiums, New Jersey Administrative  Code 12:56-6.5(b) provides that an employee’s hourly rate should be determined as follows:    The regular hourly wage of an employee is determined by dividing his or her total  remuneration for employment, exclusive of overtime premium pay, in any  workweek, by the total number of hours worked in that workweek for which such  compensation was paid.   60.  Wages are defined in NJSWHL § 34:11-56a(1) as:     any moneys due an employee from an employer for services rendered or made  available by the employee to the employer as a result of their employment  relationship including commissions, bonus and piecework compensation and  including any gratuities received by an employee for services rendered for an  employer or a customer of an employer and the fair value of any food or lodgings  supplied by an employer to an employee.  All such wages are subject to New Jersey’s overtime requirements, including those set  forth above.   61.  Homeland Vinyl regularly requires Plaintiff and Class members to work in excess  of forty hours per week, but does not compensate them at an overtime rate for this work.   Furthermore, Homeland Vinyl regularly does not account for differential pay when calculating the  overtime rate of hourly employees.   62.  Plaintiff and Class members have worked overtime hours for Homeland Vinyl  without being paid overtime premiums in violation of the NJSWHL, and other applicable law.   63.  Homeland Vinyl has knowingly and willfully refused to perform its obligation to  compensate Plaintiff and the Class members for all premium wages for overtime work.  As a  proximate result of the aforementioned violations, Homeland Vinyl has damaged Plaintiff and the  Class members in amounts to be determined according to proof at time of trial.   15   64.  Homeland Vinyl is liable to Plaintiff and the Class alleged herein for the unpaid  overtime and civil penalties, with interest thereon.  Furthermore, Plaintiff is entitled to an award  of attorneys’ fees and costs pursuant to NJSWHL § 34:11-56a25, and New Jersey Administrative  Code 12:56-1.5 and 12:56-5.3(a).     65.  Wherefore, Plaintiff and the Class request relief as hereinafter provided.  66.  Plaintiff re-alleges and incorporates the foregoing paragraphs as though fully set  forth herein.   67.  The New Jersey Wage Payment Law, N.J.S.A. 34:11-4.3, provides that when an  employee is discharged or terminates employment for any reason, the employer must pay the  employee all wages due not later than the regular payday for the pay period during which the  employee's termination, suspension or cessation of employment took place.   68.  Members of the New Jersey Class have terminated their employment with the  defendant and the defendant has not tendered payment and/or restitution of wages owed or in the  manner required by New Jersey law to them and have thereby caused such members of the New  Jersey Class to suffer damages.   69.  Therefore, Plaintiff and class members demand appropriate penalties for  defendant's failure to timely pay wages on behalf of himself and all other similarly situated persons  within six years of the filing of this Complaint until date of entry of judgment.   Failure to Pay Overtime Wages (N.J.S.A. 34:11-56a et seq.)  (Against Defendant – on Behalf of the Class)   Penalties for Violation of N.J.S.A. 34: 11-4.3  (Against Defendant – on Behalf of the Class)   Violation of the Fair Labor Standards Act (29 U.S.C. §§ 201, et seq.)   (Against Defendant – on Behalf of the Collective)  