 (Violation of NCWHA – Class Action)   (Violation of FLSA – Collective Action)   10.  At all times hereinafter mentioned, Defendant has been an enterprise engaged in  commerce or in the production of goods for commerce within the meaning of Section 3(s)(1) of  the FLSA, 29 U.S.C. § 203(s)(1), in that the enterprise has had employees engaged in commerce  or in the production of goods for commerce, or employees handling, selling, or otherwise  working on goods or materials that have been moved in or produced for commerce by any person  and in that the enterprise has had and has an annual gross volume of sales made or business done  of not less than $500,000 (exclusive of excise taxes at the retail level which are separately  stated).   11.  At all times hereinafter mentioned, Plaintiff has been an employee within the  meaning of Section 3(e) of the FLSA, 29 U.S.C. § 203(e).   12.  At all times hereinafter mentioned, 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. §  207.   13.  At all times hereinafter mentioned, Defendant has been an employer within the  meaning of Section 95-25.2(5) of the NCWHA, N.C. Gen. Stat. §§ 95-25.2(5).   15.  ABNC is a beer and non-alcoholic beverage distributer with a distribution  location in North Carolina.     16.  In or about February 2016, ABNC hired Nix in the position of Warehouse Picker.     17.  Nix worked in this position until on or about August 6, 2019, when his  employment with ABNC terminated.   18.  ABNC pays its warehouse employees an hourly rate, plus a performance bonus  each paycheck based on the employee’s production.     19.  During his tenure with ABNC, Nix regularly worked in excess of 40 hours in a  workweek including, but not limited to, the weeks of July 16, 2019 through July 31, 2019 and  August 1, 2019 through August 15, 2019. For each pay period in which Nix worked overtime  hours, ABNC consistently failed to pay Nix all of his earned overtime wages.     20.  In addition to Nix, other ABNC’s warehouse employees have worked in excess of  40 hours per week during one or more workweeks during the 3 year period preceding the filing  of this Complaint and have not been paid all overtime compensation due and owing to them.   21.  At all times during the 3 year period preceding the filing of this Complaint,  ABNC paid Nix an overtime rate equivalent to 1.5x Nix’s hourly payrate.   22.  At all times during the 3 year period preceding the filing of this Complaint,  ABNC did not include the additional compensation paid to Nix pursuant to the production bonus  payment in its calculation of Nix’s regular rate of pay, as required by the FLSA.   24.  At all times during the 3 year period preceding the filing of this Complaint,  ABNC did not include the additional compensation paid to warehouse workers pursuant to the  production bonus payment in its calculation of regular rates of pay for warehouse workers.   25.  At all times during the 3 year period preceding the filing of this Complaint,  ABNC provided a 40-minute meal period, plus two 10-minute breaks each workshift for Nix and  other warehouse workers.   26.  ABNC required Nix and other warehouse workers to clock out and clock in at the  beginning and end of each 40-minute meal periods and each 10-minute break.   27.  ABNC did not compensate Nix or other warehouse workers for the time spent on  all breaks less than 20-minutes in length.   28.  Nix and other similarly situated warehouse workers routinely worked 5 days per  week and approximately 45 to 60 hours weekly.  29.  Plaintiff brings Count I of his Complaint pursuant to the collective action  provisions of the FLSA, 29 U.S.C. § 201 et. seq.   30.  Defendant employs warehouse employees in North Carolina.   32.  Application of the aforementioned policies and practices are not dependent on the  personal circumstances of individual warehouse workers, but rather affected Plaintiff and all  putative collective action class members.  Application of these policies or practices does not  depend on the personal circumstances of the Plaintiff or those joining this lawsuit.  Rather, the  same policies or practices that resulted in the failure to pay overtime at the rates required by the  FLSA applied to Plaintiff and all putative collective action class members.  Accordingly, the  class is properly defined as:  All current and former North Carolina warehouse employees  employed by Defendant within three years prior to the filing of this Complaint.   33.  Defendant willfully violated the provisions of the FLSA by failing to pay all  current and former North Carolina warehouse employees employed by Defendant within three  years prior to the filing of this Complaint in compliance with the FLSA.  34.  Plaintiff brings Count II of his Complaint pursuant to Fed. R. Civ. P. 23 on behalf  of himself and the following class: All current and former North Carolina warehouse  employees employed by Defendant within two years prior to the filing of this Complaint.   35.  This action under NCWHA, N.C. Gen. Stat. §§ 95-25.6 and 95-25.7, is  maintainable as a class action pursuant to Rule 23 for failure to pay promised and earned wages  for all hours worked by Plaintiff and members of the proposed class.   36.  The proposed class is easily ascertainable.  The number and identity of NCWHA  class members are determinable from Defendant’s payroll records or records over which it has  control.   38.  There is a well-defined commonality of interest in the questions of law and fact  involving and affecting the proposed class in that Plaintiff and all members of the proposed class  have been harmed by Defendant’s failure to pay earned wages.  The common questions of law  and fact include, but are not limited to the following:  (a)    whether Defendant maintained a policy and practice of refusing to pay  Plaintiff and the members of the proposed class for breaks of 20 minutes or  less;  (b)   whether Defendant maintained a policy and practice of failing to pay all  hours worked by Plaintiff and the members of the proposed class;    (c)   whether Defendant failed to timely pay Plaintiff and members of the  proposed class promised and earned regular wages for all hours worked on  their regular pay days; and  (d)    whether the policies and practices described above violate NCWHA §§  95-25.6 and 95-25.7.   39.  The damages suffered by the named Plaintiff and the members of the proposed  class arise from the same nucleus of operative facts.   41.  Plaintiff is able to fairly and adequately protect the interests of all members of the  class, and there are no known conflicts of interest between Plaintiff and members of the proposed  class.  Plaintiff has retained counsel who is experienced and competent in both wage and hour  and multi-plaintiff litigation.   42.  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 impracticable.  Class  action treatment will permit a large number of similarly situated persons to prosecute their  common claims in a single forum simultaneously, efficiently, and without the unnecessary  duplication of effort and expense that numerous individual actions engender.  Because the loss,  injuries, and damages suffered by each of the individual class members are modest, the expenses  and burden of individual litigation would make it extremely difficult or impossible for the  individual class members to redress the wrongs done to them.   44.  Plaintiff incorporates by reference paragraphs 1 through 43 of his Complaint.   45.  Count I arises from Defendant’s violation of the FLSA, for its failure to pay all  overtime wages earned by Plaintiff and members of the proposed collective class.   46.  Defendant also violated the FLSA by failing to pay Plaintiff and members of the  proposed collective class the correct overtime premium rate of pay as required by the FLSA for  all hours worked in excess of forty in a workweek.   47.  Defendant’s violation of the FLSA was willful.  48.  Plaintiff incorporates by reference paragraphs 1 through 47 of his Complaint.   49.  Count II arises from Defendant’s policy and practice of suffering or permitting  Plaintiff and similarly situated employees to work without timely paying promised and earned  wages for all hours worked in violation of N.C. Gen. Stat. §§ 95-25.6 and 95-25.7.   50.  Defendant violated N.C. Gen. Stat. §§ 95-25.6 and 95-25.7 by failing to pay  Plaintiff and similarly situated employees all promised and earned wage payments on the  employees’ regular payday for all hours worked.   51.  Defendant’s violation of the NCWHA was willful.  8.  At all times hereinafter mentioned, Defendant has been an employer within the  meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d).   9.  At all times hereinafter mentioned, Defendant has been an enterprise within the  meaning of Section 3(r) of the FLSA 29 U.S.C. § 203(r).  