 Defendants’ Sta tus As an “Employer”    (FLSA Overtime Violations)   (Ohio Overtime Violations)   (Ohio Class)   11.  At all times relevant, Defendant Family First Caregivers, LLC (“Defendant  Family First”) was an “employer” within the meaning of the FLSA, 29 U.S.C. § 203(d), and  corresponding provisions of Ohio law including the Ohio overtime compensation statute,  Ohio Rev. Code Ann. § 4111.03.   12.  At all times relevant, Defendant Jim Nowak was an “employer” within the  meaning of the FLSA, 29 U.S.C. § 203(d), and corresponding provisions of Ohio law  including the Ohio overtime compensation statute, Ohio Rev. Code Ann. § 4111.03.   13.  During all times material to this Complaint, Defendant Nowak had  significant ownership interest in Defendant Family First.   14.  During all times material to this Complaint, Defendant Nowak had  significant operational control of all or at least significant aspects of the day-to-day  operations of Defendant Family First.   15.  During all times material to this Complaint, Defendant Nowak personally  made decisions wi th regards to significant aspects of the day-to-day functions of  Defendant Family First.   16.  During all times material to this Complaint, Defendant Nowak, in addition  to Defendant Family First, had the authority to hire and fire employees, including Plaintiff.   17.  During all times material to this Complaint, Defendant Nowak, in addition  to Defendant Family First, was responsible for maintaining employment records.   18.  During all times material to this Complaint, Defendant Nowak, in addition  to Defendant, Family First, determined the rate and method of Plaintiff’s wages.  4   19.  During all times material to this Complaint, Defendant Family First  functioned largely for the profit of Defendant Nowak.   20.  Defendants’ non-exempt employees included Plaintiff, the Potential Opt- Ins  who may join this case pursuant to 29 U.S.C. § 216(b), and all members of the Ohio Class.  At all times relevant, Defendants were an enterprise within the meaning of 29 U.S.C. §  203(r), and an enterprise engaged in commerce or in the production of goods for commerce  within the meaning of 29 U.S.C. § 203(s)(1).  Non-Exempt Employees’    21.  Plaintiff, the Potential Opt-Ins who may join this case pursuant to 29  U.S.C. § 216(b), and all members of the Ohio Class are current or former non-exempt  employees of Defendants who were paid on an hourly basis and not paid overtime  compensation for all hours worked in excess of forty (40) in one workweek.   22.  Plaintiff, the Potential Opt-Ins who may join this case pursuant to 29  U.S.C. § 216(b), and the members of the Ohio Class frequently worked more than forty  (40) hours in a single workweek, many times in excess of ten per day, entitling them to  overtime compensation under the FLSA and Ohio wage-and-hour statutes.   Defendants’ Failure to Pay Overtime Compensation   23.  The FLSA, and Ohio law required Defendants to pay overtime compensation  to its Home Health Aids.   24.  Defendants unlawfully failed to pay overtime compensation to its Home  Health Aids.   25.  Defendants knew, or showed reckless disregard for whether, Plaintiff, the  Potential Opt-Ins, and the Ohio Class was entitled to overtime pay under state and/or federal  5  law.  26.  Plaintiff incorporates by reference the foregoing allegations as if fully  rewritten herein.   27.  Plaintiff brings this case as an FLSA “collective action” pursuant to 29  U.S.C. § 216(b), which provides that “[a]n action to recover the liability “prescribed by the  FLSA “may be maintained against any employer … by any one or more employees for and  in behalf of himself or themselves and other employees similarly situated.”     28.  The Potential Opt-Ins who are “similarly situated” to Plaintiff with respect to  Defendants’ FLSA violations consist of:  All present and former Home Health Aids employed by Defendants  during the period three years preceding the commencement of this  action to the present who were not paid overtime compensation for  all hours worked in excess of forty (40) in one workweek.   29.  Such persons are “similarly situated” with respect to Defendants’ FLSA  violations in that all were non-exempt employees of Defendants, all were subjected to and  injured by Defendants’ unlawful practice of failing to pay overtime compensation for hours  worked in excess of forty (40) in one, and all have the same claims against Defendants for  unpaid overtime compensation as well as for liquidated damages, attorneys’ fees, and costs.   30.  Conditional certification of this case as a collective action pursuant to 29   U.S.C. § 216(b) is proper and necessary so that such persons may be sent a Court-  authorized notice informing them of the pendency of this action and giving them the  opportunity to “opt in.”   31.  Plaintiff cannot yet state the exact number of similarly-situated persons but  6  avers, upon information and belief, that they consist of over 40 persons. Such persons  are readily identifiable through the payroll records Defendants has maintained, and was  required to maintain, pursuant to the FLSA and Ohio law. 29 U.S.C. § 211(c) & 29 C.F.R. §  215.2; Ohio Const. art. II, § 34a.  32.  Plaintiff incorporates by reference the foregoing allegations as if fully  rewritten herein.   33.  Plaintiff also brings this case as a class action pursuant to Fed. R. Civ. P. 23 on  behalf of themselves and other members of a class of persons who assert claims under  the laws of the State of Ohio (the “Ohio Class”), defined as:  All present and former Home Health Aids employed by Defendants  during the period t w o  years preceding the commencement of this  action to the present who were not paid overtime compensation for  all hours worked in excess of forty (40) in one workweek.   34.  The Ohio Class is so numerous that joinder of all class members is  impracticable. Plaintiff cannot yet state the exact number of class members but aver, upon  information and belief that it consists of over 40 persons. The number of class members  as well as their identities are ascertainable from the payroll records Defendants has  maintained, and was required to maintain, pursuant to the FLSA and Ohio law. 29 U.S.C. §  211(c) & 29 C.F.R. § 215.2; Ohio Const. art. II, § 34a.   35.  There are questions of law or fact common to the Ohio Class, including but  not limited to:  Whether Defendants failed to pay Plaintiff and other class  members all overtime pay due to them?  7  Whether Defendants’ failure to pay Plaintiff and other class  members overtime pay due to them in violation of the FLSA  and Ohio law was willful?  Whether Defendants kept adequate records of the hours worked  by Plaintiff and the other class members?   36.  Plaintiff’s claims are typical of the claims of other members of the Ohio  Class. Plaintiff’s claims arise out of the same uniform course of conduct by Defendants, and  are based on the same legal theories, as the claims of other class members.   37.  Plaintiff will fairly and adequately protect the interests of the Ohio Class.  Plaintiff’s interests are not antagonistic to, but rather are in unison with, the interests of other  class members. Plaintiff’s counsel has broad experience in handling class action litigation,  including wage-and-hour litigation, and is fully qualified to prosecute the claims of the  Ohio Class in this case.   38.  The questions of law or fact that are common to the Ohio Class  predominate over any questions affecting only individual members. The primary questions  that will determine Defendants’ liability to the class, listed above, are common to the class  as a whole, and predominate over any questions affecting only individual class members.   39.  A class action is superior to other available methods for the fair and  efficient adjudication of this controversy. Requiring class members to pursue their claims  individually would entail a host of separate suits, with concomitant duplication of costs,  attorneys’ fees, and demands on court resources. Many class members’ claims are sufficiently  small that they would be reluctant to incur the substantial cost, expense, and risk of pursuing  their claims individually. Certification of this case as a class action pursuant to Fed. R. Civ.  8  P. 23 will enable the issues to be adjudicated for all class members with the efficiencies  of class litigation.  40.  Plaintiff incorporates by reference the foregoing allegations as if fully  rewritten herein.   41.  Plaintiff brings this claim for violation of the FLSA’s overtime provisions on  behalf of herself and the Potential Opt-Ins who may join this case pursuant to 29 § 216(b).   Plaintiff’s written consent to becoming a party to this action pursuant to § 216(b) has been  filed with the Court.   42.  The FLSA requires that Defendants’ Home Health Aids receive overtime  compensation for all hours worked in excess of forty (40) in a workweek.   43.  Plaintiff and the Potential Opt-Ins should have been paid overtime  compensation at the rate of one-half times their “regular rate” for all hours worked in excess  of forty hours per workweek.   44.  Defendants failed to pay the overtime compensation to Plaintiff and the  Potential Opt-Ins.   45.  By engaging in that practice, Defendants willfully violated the FLSA and  regulations thereunder that have the force and effect of law.   46.  As a result of Defendants’ violations of the FLSA, Plaintiff and the Potential  Opt-Ins were injured in that they did not receive overtime compensation due to them  pursuant to the FLSA. 29 U.S.C. § 216(b) entitles them to an award of “unpaid overtime  compensation” as well as “an additional equal amount as liquidated damages.” Section  9  216(b) further provides that “[t]he court … shall, in addition to any judgment awarded to the  plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the Defendants, and  costs of the action.”  47.  Plaintiff incorporates by reference the foregoing allegations as if fully  rewritten herein.   48.  Plaintiff brings this claim for violation of the Ohio overtime compensation  statute, Ohio Rev. Code Ann. § 4111.03, on behalf of herself, the Potential Opt-Ins who may  join this case pursuant to 29 U.S.C. § 216(b), and all members of the Ohio Class for which  certification is sought pursuant to Fed. R. Civ. P. 23.   49.  At all times relevant, Defendants was an employer covered by the Ohio  overtime compensation statute, Ohio Rev. Code Ann. § 4111.03.   50.  Defendants violated the Ohio overtime compensation statute, Ohio Rev.  Code Ann. § 4111.03, by failing to pay overtime compensation to its Home Health Aids.   51.  Defendants’ violations of Ohio Rev. Code Ann. § 4111.03 injured Plaintiff, the  Potential Opt-Ins, and the Ohio Class members in that they did not receive overtime  compensation due to them pursuant to that statute.   52.  Ohio Rev. Code Ann. § 4111.10(A) provides that Defendants, having violated  § 4111.03, is “liable to the employee[s] affected for the full amount of the overtime wage  rate, less any amount actually paid to the employee[s] by the employer, and for costs and  reasonable attorney’s fees as may be allowed by the court.”  and  JIM NOWAK,  Defendants.  )  )  )  )  )  )  )  )  )  )  )  )  ) 