14.  “Capital One is a diversified bank that offers a broad array of financial products and  services to consumers, small businesses and commercial clients.  A Fortune 500  company, Capital One has one of the most widely recognized brands in America.  As  one of the nation’s top 10 largest banks based upon deposits, Capital One serves banking  customers through branch locations primarily in New York, New Jersey, Texas,  Louisiana, Maryland, Virginia, and the District of Columbia.”   See Capital One website:   https://www.capitalone.com/about/who-we-are.   15.  Defendants recently announced that they would exit the mortgage and home equity  business.  See https://www.dallasnews.com/business/economy/2017/11/07/capital-one- shutter-home-loan-division-call-center-plano.   17.  Defendants paid Plaintiff and other Mortgage Loan Officers on a draw against  commission basis. As a result, Defendants recaptured any minimum wage and/or  overtime compensation paid to Plaintiff and other Mortgage Loan Officers which  essentially resulted in Defendants paying them on a commission only basis.   18.  By way of example, Plaintiff began working for Defendants in November 2014.  Defendants did not pay him minimum wages and/or overtime compensation despite the  fact that he routinely worked over eight hours per day and more than 40 hours per week.  Defendants also offset any minimum wage payments to Plaintiff from his commissions.   19.  Defendants did not require Plaintiff and the other Mortgage Loan Officers to utilize any  timekeeping system during this time period.   20.  Defendants subsequently changed Plaintiff and the other Mortgage Loan Officers to  hourly, non-exempt employees whose hourly pay was a draw against their commissions.   21.  Defendants then ostensibly used a timekeeping system for Plaintiff and the other  Mortgage Loan Officers.   22.  Defendants, however, refused to allow Plaintiff and other Mortgage Loan Officers to  record all of their overtime hours such that Defendants failed to pay them all of the  legally required minimum wages and/or overtime compensation.   23.  Defendants also offset any overtime compensation paid to Plaintiff and other Mortgage  Loan Officers from their paid commissions.   24.  Defendants uniformly applied its payment structure to all Mortgage Loan Officers.     26.  For example, while a Mortgage Loan Officer, Plaintiff’s schedule fluctuated from day-to- day.  His regular schedule had her working Mondays through Fridays, generally from 8:30  am until 5:00 pm.  Additionally, Plaintiff worked at least five (5) to six (6) weekend days  every month. Plaintiff also performed additional hours of work each week using his  mobile device to send and receive business-related emails, texts, and/or phone calls. As  such, during this time period, Plaintiff’s regular schedule had him working an average of  at least 60 hours per week.   27.  As further example, for the week beginning June 7, 2015, Plaintiff worked  approximately 65 hours that week as a Mortgage Loan Officer for Defendants  performing duties which included taking loan applications and collecting required  documents for loan processing. Defendants, however, failed to pay him overtime  compensation for his approximately 25 hours of overtime work for that week.   29.  Defendants uniformly denied Plaintiff and other Mortgage Loan Officers minimum wages  and/or overtime pay.   30.  In reality, Plaintiff and other Mortgage Loan Officers are and were non-exempt sales  employees who are and were entitled to minimum wages and /or overtime pay for all  hours worked.   31.  Defendants are/were in the business of selling mortgages.   32.  Plaintiff and the other Mortgage Loan Officers had the same primary duty of selling loan  products.   33.  Plaintiff and other Mortgage Loan Officers are and were non-exempt sales employees  who are and were entitled to minimum wages and/or overtime pay.    34.  Plaintiff and other Mortgage Loan Officers did not customarily and regularly make sales  at their customers’ home or place of business.   35.  Instead, Plaintiff and other Mortgage Loan Officers regularly made sales over the phone,  via the internet, or in person at Defendants’ offices.   36.  Plaintiff and other Mortgage Loan Officers did not regularly supervise the work of two  or more employees.   37.  Plaintiff and other Mortgage Loan Officers did not exercise discretion and independent  judgment as to matters of significance.   39.  Plaintiff and other Mortgage Loan Officers had no advance knowledge in a field of  science or learning which required specialized instruction that was required to perform  the job.   40.  Defendants do not require Plaintiff and other Mortgage Loan Officers to have a college  degree to obtain a Mortgage Loan Officer job.   41.  All Mortgage Loan Officers are similarly situated in that they share common job duties  and descriptions, Defendants treated them as exempt and non-exempt employees at  relevant times, and were all subject to Defendants’ policy and practice that treated them  as commission only employees, and they all performed work without minimum wages  and/or overtime compensation for all hours worked.   42.  Defendants did not keep accurate records of the hours Plaintiff and other Mortgage Loan  Officers worked. Because Defendants did not pay Plaintiff and other Mortgage Loan  Officers for all the hours they worked, including overtime hours, Defendants’ wage  statements did not accurately reflect all hours Plaintiff and other Mortgage Loan Officers  worked.   43.  Defendants did not provide Plaintiff and the other Mortgage Loan Officers with  paychecks and/or accurate paychecks.   44.  Defendants did not pay Plaintiff and other Mortgage Loan Officers for all of their  minimum wages and/or overtime hours. Accordingly, Defendants did not provide  Plaintiff and other Mortgage Loan Officers with all compensation owed to them,  including their unpaid overtime, at the time they separated from the company.   46.  Defendants’ conduct, as set forth in this Complaint, was willful and in bad faith, and has  caused significant damages to Plaintiff and other Mortgage Loan Officers.  FLSA Collective   47.  Plaintiff brings Count I on behalf of himself and other similarly situated employees  as authorized under the FLSA, 29 U.S.C. § 216(b). The similarly situated employees are:  All persons who are, have been, or will be employed by Defendants as “Mortgage Loan  Officers” “Mortgage Loan Originators,” “Senior Mortgage Loan Officers,” and other  individuals who originated loan products with similar job titles within the United   States at any time during the last three years through the entry of judgment in this   case (“FLSA Collective”).  Plaintiff will subgroup the FLSA Collective as necessary for certification and/or  litigation purposes.   48.  Upon information and belief, Defendants paid Plaintiff and the FLSA Collective  essentially on a commission basis because Defendants offset any minimum wage and/or  overtime compensation from their commissions, and suffered and permitted them to  work more than forty hours per week without minimum wages and/or overtime  compensation.   49.  Defendants’ draw against commission pay plan and failure to pay for work hours over  40 per week is a uniform policy, decision, and/or plan that applies to all Mortgage Loan  Officers.   51.  Another former Mortgage Loan Officer has already joined this case and his consent to  join form is attached as an exhibit.   52.  Defendants’ unlawful FLSA conduct has been widespread, repeated. and consistent.   53.  Upon information and belief, Defendants knew that Plaintiff and the FLSA Collective  performed work that required minimum wages and/or overtime pay. Defendants required  them to work long hours and weekends without the proper pay, Plaintiff and/or those  similarly situated complained to Defendants about these practices, and it is common  industry knowledge that loan officers are non-exempt employees who must be paid for  all hours worked. Defendants operated under a scheme to deprive these employees of  overtime compensation by failing to properly compensate them for all hours worked.   54.  Defendants’ conduct, as set forth in this Complaint, was willful and in bad faith, and has  caused significant damages to Plaintiff and the FLSA Collective.   56.  Plaintiff hereby incorporates by reference the foregoing paragraphs of this Complaint  into this count.   57.  The FLSA requires each covered employer such as Defendants to compensate all non-  exempt employees at the applicable minimum wage for all hours worked up to forty  hours per week, and a rate of not less than one and one-half times the regular rate of pay  for work performed in excess of forty hours per work week.   58.  Plaintiff and the FLSA Collective are entitled to be paid minimum wages and/or  overtime compensation for all hours worked.   59.  Defendants, pursuant to their policies and practices, failed and refused to pay minimum  wages and/or overtime premiums to Plaintiff and the FLSA Collective for all of their  hours worked.   60.  Defendants violated the FLSA, 29 U.S.C. § 201 et seq. by failing to compensate Plaintiff  and the FLSA Collective for all minimum wages and/or overtime compensation.   61.  By failing to record, report, and/or preserve accurate records of hours worked by Plaintiff  and the FLSA Collective, Defendants failed to make, keep, and preserve records with  respect to each of their employees sufficient to determine their wages, hours, and other  conditions and practice of employment, in violation of the FLSA, 29 U.S.C. § 201 et seq.   62.  The foregoing conduct, as alleged herein, constitutes a willful violation of the FLSA  within the meaning of 29 U.S.C. § 255(a).   Collective Action under §216(b) of the FAIR LABOR STANDARDS  ACT Minimum Wage and Overtime Claims  