(By Plaintiffs Mowery and Raisor)  (FLSA Overtime Violations)   (By Plaintiff Smith)  (FLSA Overtime Violations)   (By Named Plaintiff Mowery)  (Missouri Overtime Violations)  107.  Plaintiffs incorporate by reference the foregoing allegations as if fully rewritten  herein.   108.  Plaintiff Mowery brings this claim for violation of Missouri Revised Statute  §290.505, on behalf of herself, the Potential Opt-Ins who may join this case pursuant to 29  21  U.S.C. § 216(b), and all members of the Missouri Class for which certification is sought pursuant  to Fed. R. Civ. P. 23.  109.  At all times relevant, Defendant was an employer covered by Missouri Revised  Statute §290.505.  110.  Defendant violated Missouri Revised Statute §290.505 by failing to pay all  overtime compensation to its hourly workers including Plaintiff Mowery, the Potential Opt-Ins,  and the Missouri Class.  111.  Specifically, among other things, Defendant failed to pay Plaintiff Mowery and  the Missouri Class for all rest breaks and failed to count such time as hours worked. This practice  has resulted in an underpayment of overtime premiums due to Plaintiff Mowery, the Opt-Ins, and  the Missouri Class.   112.  Defendant’s violations of Missouri Revised Statute §290.505 injured Plaintiff  Mowery, the Potential Opt-Ins, and the Missouri Class members in that they did not receive  overtime compensation due to them pursuant to that statute.  113.  Defendant, having violated Missouri Revised Statute §290.505, is liable “for the  full amount of the wage rate and an additional equal amount as liquidated damages, less any  amount actually paid to the employee by the employer and for costs and such reasonable attorney  fees as may be allowed by the court or jury.”  22  (By Named Plaintiff Smith)  (Wisconsin Overtime Violations)  114.  Plaintiff Smith incorporates by reference the foregoing allegations as if fully  rewritten herein.   115.  Plaintiff Smith brings this claim for violation of the Wisconsin overtime  compensation law, Wis. Adm. Code DWD 274.03, on behalf of himself, the Potential Opt-Ins  who may join this case pursuant to 29 U.S.C. § 216(b), and all members of the Wisconsin Class  for which certification is sought pursuant to Fed. R. Civ. P. 23 who were employed by Defendant  through a staffing company.  116.  At all times relevant, Defendant was an employer covered by the Wisconsin  overtime compensation law, Wis. Adm. Code DWD 274.03.  117.  Defendant violated the Wisconsin overtime compensation law, Wis. Adm. Code  DWD 274.03, by failing to pay all overtime compensation to its hourly workers including  Plaintiff Smith, the Potential Opt-Ins, and the Wisconsin Class.  118.  Specifically, among other things, Defendant failed to pay Plaintiff Smith and the  Wisconsin Class for all rest breaks and failed to count such time as hours worked. This practice  has resulted in an underpayment of overtime premiums due to Plaintiff Smith, the Opt-Ins, and  the Wisconsin Class.  119.  Pursuant to Wis. Adm. Code DWD 272.12(2)(c), “[r]est periods of short duration,  running less than 30 minutes…must be counted as hours worked.” Defendant did not count all of  the Wisconsin Class’ rest breaks as hours worked for purposes of determining overtime  compensation eligibility.  23  120.  Defendant’s violations of the Wisconsin overtime compensation law injured  Plaintiff Smith, the Potential Opt-Ins, and the Wisconsin Class members in that they did not  receive overtime compensation due to them pursuant to that statute.  121.  Defendant, having violated the Wisconsin overtime compensation law, is liable  for the underpaid wages, liquidated damages, attorney fees, and costs. Wis. Stat. § 109.03(5).  (By Named Plaintiff Raisor)  (Violations of Ohio Revised Code 4113.15)  101.  Plaintiffs incorporate by reference the foregoing allegations as if fully written  herein.    102.  Plaintiff Raisor brings this claim for violation of Ohio Revised Code 4113.15, on  behalf of herself, and all members of the Ohio Class for which certification is sought pursuant to  Fed. R. Civ. P. 23.  103.  At all times relevant, Defendant was Plaintiff Raisor and the Ohio Class’  employer for purposes of overtime compensation owed.  104.  Defendant violated Ohio Revised Code § 4113.15, by failing to pay all wages  owed, including overtime compensation, to its hourly workers including Plaintiff Raisor and the  Ohio Class within thirty days of their regularly scheduled payday.  105.  The number of hours and minutes actually worked by Plaintiff Raisor and the  Ohio Class is reflected in time-clock records maintained by Defendant.  106.  Ohio Revised Code Ann. § 4113.15 provides that Defendant, having violated §  4113.15, “is liable to the employee in the amount equal to six per cent of the amount of the claim  still unpaid and not in contest or disputed or two hundred dollars, whichever is greater.”  (By Named Plaintiff Raisor)  (Ohio Overtime Violations)   (Joint Employer Collective)   (Wisconsin Class)   20.  At all times relevant, Defendant was an “employer” within the meaning of the  FLSA and Ohio, Missouri, and Wisconsin wage payment and/or wage and hour laws.   21.  At all times relevant, Defendant was a joint-employer of Plaintiff Smith and all  other employees working for Defendant through any staffing company. Specifically, Defendant  directed and controlled the daily work of Defendant Smith and all other putative class members  working for Defendant through any staffing company.   22.  Defendant’s hourly employees include Plaintiffs, the putative collective action  members, the Ohio Class, Missouri Class, and Wisconsin Class.   23.  At all times relevant, Defendant was 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).   24.  On information and belief, Defendant had annual gross volume of sales or  business done of not less than $500,000 during all times relevant.   25.  At all times relevant, Defendant employed two or more employees who engaged  in commerce or the production of goods for commerce. For example, such employees engaged in  business transactions for Defendant across state lines and/or produced goods that Defendant sold  to customers in more than one state.   26.  At all times relevant, Defendant employed two or more employees who handled,  sold, and/or worked on goods or materials that were moved in or produced for commerce by any  person. For example, such employees handled goods or materials that were moved in or  produced for commerce, such as personal protection equipment, computers, computer related  5  devises, telecommunications devices, products sold by Defendant to its customers, and sales  transaction devises or equipment.  Defendant’s Failure to Pay for Compensable Rest Breaks   27.  Plaintiffs, the putative collective action members, the Ohio Class, the Missouri  Class, and the Wisconsin Class are current or former non-exempt hourly employees of  Defendant.   28.  Plaintiffs, the putative collective action members, the Ohio Class, the Missouri  Class, and the Wisconsin Class frequently worked more than forty (40) hours in a single  workweek, entitling them to overtime compensation under the FLSA, Ohio law, Missouri law,  and Wisconsin law.    29.  Plaintiffs, the putative collective action members, the Ohio Class, the Missouri  Class, and the Wisconsin Class were not paid for all the overtime compensation they earned.   30.  Specifically, Defendant has a policy that applies to all hourly employees of not  paying those employees for all rest breaks. That is, while it pays for certain rest break time, it  does not pay for other rest break time during the workday.   31.  Defendant’s failure to pay Plaintiffs, the putative collective action members, the  Ohio Class, the Missouri Class, and the Wisconsin Class for all rest breaks has resulted in them  not being paid all overtime premium owed for all overtime hours worked pursuant to the FLSA,  Ohio law, Missouri law, and Wisconsin Law.     32.  Plaintiffs, the putative collective action members, the Ohio Class, the Missouri  Class, and the Wisconsin Class have each worked a substantial number of uncompensated hours  during the three-year period immediately preceding the filing of this Complaint, which has  resulted in significant unpaid overtime wages.   6   33.  Plaintiffs, the putative collective action members, the Ohio Class, the Missouri  Class, and the Wisconsin Class were regularly scheduled to work 40 hours a week or more.  Thus, by failing to pay Plaintiffs, the putative collective action members, the Ohio Class, the  Missouri Class, and the Wisconsin Class for short rest breaks, Defendant failed to pay Plaintiffs,  the putative collective action members, the Ohio Class, the Missouri Class, and the Wisconsin  Class for all their overtime in most or all of the weeks in which they worked over 40 hours in a  workweek.   34.  Plaintiffs, the putative collective action members, the Ohio Class, the Missouri  Class, and the Wisconsin Class were required to clock-out or were otherwise clocked out for  numerous short breaks during their respective workdays, generally in duration of less than 20  minutes.    35.  Plaintiffs, the Opt-Ins, the Ohio Class, the Missouri Class, and the Wisconsin  Class were generally paid for two short rest breaks in an eight-hour shift. However, unpaid  breaks of 20 minutes or less, other than those two paid breaks, were generally unpaid due to  Defendant’s company-wide practices and policies (the “Unpaid Break Time”).    36.  Plaintiffs are not subject to any arbitration agreement with a class or collective  action waiver.   37.  The putative collective action members, the Ohio Class, the Missouri Class, and  the Wisconsin Class are not subject to any arbitration agreement with a class or collective action  waiver.  45.  Plaintiff Smith incorporates by reference the foregoing allegations as if fully  rewritten herein.    46.  Plaintiff Smith and the putative joint employer collective action members are  current and/or former employees of Defendant.   47.  Plaintiff Smith 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 [herself] or themselves and other employees similarly situated.”    48.  The putative joint employer collective action members who are “similarly  situated” to Plaintiff Smith with respect to Defendant’s FLSA violations consist of:  All present and former hourly employees working through a  staffing company at Defendant’s retail stores, manufacturing  facilities, and distribution centers throughout the United States  during the period measured from three years preceding the  commencement of this action to the present who: (1) did not sign  an arbitration agreement containing a class or collective action  waiver with Defendant; (2) were not paid for breaks in time of less  than 20 minutes during their respective workdays; and, as a result,  (3) were not paid time and one-half their respective regular rates of  9  pay for all hours worked over 40 during each and every seven day  workweek in the relevant time period.   49.  Such persons are “similarly situated” with respect to Defendant’s FLSA violations  in that all were hourly employees of Defendant, all were subjected to and injured by Defendant’s  unlawful practice and/or policy of failing to pay its employees for all hours worked due to unpaid  breaks in time less than 20 minutes during the workday, and all have the same claims against  Defendant for unpaid wages and overtime compensation as well as for liquidated damages,  attorneys’ fees, and costs.   50.  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.”   51.  Plaintiff Smith cannot yet state the exact number of similarly-situated persons,  although it is estimated to be a class consisting of thousands of employees. Such persons are  readily identifiable through the payroll records Defendant has maintained, and was required to  maintain, pursuant to the FLSA and corresponding state laws.  70.  Plaintiff Smith incorporate by reference the foregoing allegations as if fully  rewritten herein.   71.  Plaintiff Smith also brings this case as a class action pursuant to Fed. R. Civ. P. 23  on behalf of himself and other members of a class of persons employed by Menard through a  staffing company who assert claims under the laws of the State of Wisconsin (the “Wisconsin  Class”), defined as:  All present and former hourly employees working through a  staffing company at Defendant’s retail home improvement  stores, manufacturing facilities, and distribution centers in  Wisconsin during the period measured from two years  preceding the commencement of this action to the present  who: (1) took rest breaks and were not paid for such breaks;  and, (2) were not paid an overtime premium for all hours  worked in excess of 40 in any workweek, including time spent  on rest breaks.   72.  The Wisconsin Class is so numerous that joinder of all class members is  impracticable. Plaintiff Smith cannot yet state the exact number of class members but avers,  upon information and belief, that it consists of at least hundreds of people.  The number of class  members as well as their identities are ascertainable from the payroll records Defendant has  maintained, or was required to maintain, pursuant to the FLSA and Wisconsin law.   73.  There are questions of law or fact common to the Wisconsin Class, including but  not limited to:  Whether Defendant failed to pay Plaintiff Smith and other class  members for all hours worked in excess of 40 in a workweek; and,  15  Whether Defendant’s failure to pay Plaintiff Smith and other class  members for rest break time and failure to count such time as hours  worked is lawful.   74.  Plaintiff Smith’s claims are typical of the claims of other members of the  Wisconsin Class.  Plaintiff Smith’s claims arise out of the same uniform course of conduct by  Defendant, and are based on the same legal theories, as the claims of other class members.   75.  Plaintiff Smith will fairly and adequately protect the interests of the Wisconsin  Class.  Plaintiff Smith’s interests are not antagonistic to, but rather are in unison with, the  interests of other class members.  Plaintiff Smith’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 Wisconsin Class in this case.   76.  The questions of law or fact that are common to the Wisconsin Class predominate  over any questions affecting only individual members.  The primary questions that will  determine Defendant’s liability to the class, listed above, are common to the class as a whole,  and predominate over any questions affecting only individual class members.   77.  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. P. 23 will enable the issues to  be adjudicated for all class members with the efficiencies of class litigation.  16  78.  Plaintiffs Mowery and Raisor incorporate by reference the foregoing allegations  as if fully rewritten herein.   79.  Plaintiffs Mowery and Raisor bring this claim for violation of the FLSA’s  overtime provisions on behalf of themselves and the Opt-Ins who have joined or will join this  case pursuant to 29 U.S.C. § 216(b) who were directly employed by Defendant. Plaintiffs  Mowery and Raisor’s written consents to becoming a party to this action pursuant to § 216(b)  will be been filed with this Court. Furthermore, by filing this lawsuit, Plaintiffs Mowery and  Raisor consent to join this FLSA collective action proceeding for unpaid overtime wages.   80.  The FLSA requires that non-exempt employees be paid at a rate of one and one- half times their regular rate for every hour worked in excess of 40 in a workweek.   81.  Defendant failed to pay Plaintiffs Mowery and Raisor overtime compensation for  all hours worked in excess of forty in a workweek.   82.  Instead, Defendant has a companywide policy of failing to pay its employees for  short breaks in time of less than 20 minutes during the workday which routinely resulted in  Plaintiffs working hours for which they were not compensated, including hours in excess of 40 in  a workweek for which they were not paid time and one-half their respective regular rates of pay.    83.  Defendant’s practices resulted in Plaintiffs Mowery and Raisor receiving less  overtime compensation than they were owed.    84.  By engaging in these practices, Defendant willfully violated the FLSA and  regulations thereunder that have the force and effect of law. For example, Defendant knew or  should have known that Plaintiffs Mowery and Raisor worked overtime hours for which they  17  were not paid overtime compensation due to its practice and/or policy of not paying for breaks in  time of less than 20 minutes during the workday.   85.  As a result of Defendant’s violations of the FLSA, Plaintiffs Mowery and Raisor  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 216(b) further provides that  “[t]he court … shall, in addition to any judgment awarded to the plaintiff or Plaintiff, allow a  reasonable attorney's fee to be paid by the defendant, and costs of the action.”  86.  Plaintiff Smith incorporates by reference the foregoing allegations as if fully  rewritten herein.   87.  Plaintiff Smith brings this claim for violation of the FLSA’s overtime provisions  on behalf of himself and the Opt-Ins who have joined or will join this case pursuant to 29 U.S.C.  § 216(b) who were employed by Defendant through a staffing company. Plaintiff Smith’s written  consent to becoming a party to this action pursuant to § 216(b) will be filed with this Court.  Further, by filing this lawsuit, Plaintiff Smith’s consent to join this FLSA collective action  proceeding for unpaid overtime wages.   88.  The FLSA requires that non-exempt employees be paid at a rate of one and one- half times their regular rate for every hour worked in excess of 40 in a workweek.   89.  Defendant failed to pay Plaintiff Smith overtime compensation for all hours  worked in excess of forty in a workweek.  18   90.  Instead, Defendant has a companywide policy of failing to pay its employees for  short breaks in time of less than 20 minutes during the workday which routinely resulted in  Plaintiff Smith working hours for which they were not compensated, including hours in excess of  40 in a workweek for which they were not paid time and one-half their respective regular rates of  pay.    91.  Defendant’s practices resulted in Plaintiff Smith receiving less overtime  compensation than they were owed.    92.  By engaging in these practices, Defendant willfully violated the FLSA and  regulations thereunder that have the force and effect of law. For example, Defendant knew or  should have known that Plaintiff Smith worked overtime hours for which they were not paid  overtime compensation due to its practice and/or policy of not paying for breaks in time of less  than 20 minutes during the workday.   93.  As a result of Defendant’s violations of the FLSA, Plaintiffs 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 216(b) further provides that “[t]he court … shall,  in addition to any judgment awarded to the plaintiff or Plaintiff, allow a reasonable attorney's fee  to be paid by the defendant, and costs of the action.”  94.  Plaintiff Raisor incorporates by reference the foregoing allegations as if fully  rewritten herein.   19   95.  Plaintiff Raisor 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.   96.  At all times relevant, Defendant was an employer covered by the Ohio overtime  compensation statute, Ohio Rev. Code Ann. § 4111.03.   97.  Defendant violated the Ohio overtime compensation statute, Ohio Rev. Code  Ann. § 4111.03, by failing to pay all overtime compensation to its hourly workers including  Plaintiff Raisor, the Potential Opt-Ins, and the Ohio Class.   98.  Specifically, among other things, Defendant failed to pay Plaintiff Raisor and the  Ohio Class for all rest breaks and failed to count such time as hours worked. This practice has  resulted in an underpayment of overtime premiums due to the Plaintiff Raisor, the Opt-Ins, and  the Ohio Class.    99.  Defendant’s violations of Ohio Rev. Code Ann. § 4111.03 injured Plaintiff  Raisor, the Potential Opt-Ins, and the Ohio Class members in that they did not receive overtime  compensation due to them pursuant to that statute.  100.  Ohio Rev. Code Ann. § 4111.10(A) provides that Defendant, 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.”   20  Defendant’s Status as an “Employer”  