NGV'09 130I - oregonlivemedia.oregonlive.com/business_impact/other/ACS Lawsuit.pdf · Case...

J. Dana Pinney, OSB 753088E-Mail: [email protected]. E. Bud Bailey, OSB 871577E-Mail: [email protected] A. Moore, OSB 040922E-Mail: [email protected] D. Cousineau, OSB 011637E-Mail: [email protected], Pinney & Associates, LLC1498 SE Tech Center Place, Suite 290Vancouver, WA 98683Tele: (360) 567-2551Fax: (360) 567-3331

Attorneys For Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CLASS ACTION COMPLAINT

JURy TRIAL DEMANDED

1. Failure to Pay Wages;2. Failure to Pay Overtime Wages(Oregon State and Federal FLSAClaims); and3. Failure to Timely Pay Wages atTennination.

LAURI BELL, ANGELA HAYES, MARYHENDERSON AND JULIA ROSENSTEIN,individually and on behalf ofall otherssimilarly situated,

Plaintiffs,

v.

AFFILIATED COMPUTER SERVICES,INC., a Delaware corporation, ACSCOMMERCIAL SOLUTIONS, INC., aNevada corporation, LIVEBRIDGE, INC., anOregon corporation, and DOEs 1 -10,

Defendants.

NGV'09 130 I AA

Plaintiffs, individually and on behalfofall others similarly situated Oregon call center

employees (hereinafter "call center employees"), bring this class action complaint against

Defendants, Affiliated Computer Services, Inc., ACS Commercial Solutions, Inc, Livebridge,

Inc., and DOEs 1 - 10, (collectively hereafter 4'Defendants"). Plaintiffs allege the allegation for

each Plaintiff upon that Plaintiff's personal knowledge. Plaintiffs allege all other allegations

upon information and belief.

Page 1 - Class Action Complaint

BAILEY PINNEY & ASSOCIATES LLC

Attorneys at Law

1498 SE Tech Center Place, Suite 290 • Vancouver, Washington 98683

(360) 567-2551 • Fax (360) 567-3331

Case 6:09-cv-01307-AA Document 1 Filed 11/06/09 Page 1 of 16 Page ID#: 1

INTRODUCTION

1. Defendants contract with other businesses for purposes ofproviding telephone customer

support for the other businesses products and/or services. Defendants employ individuals at its

call center facilities in Oregon to take calls from customers of those other businesses.

Defendants failed to pay all wages and overtime wages to their call center employees in

accordance with Oregon State law and the Fair Labor Standards Act ("FLSA"). Defendants

requires call center employees to log into Defendants' computer systems in order to clock-in and

clock-out for payroll purposes. If a work station or telephone headset are not available or if the

call center employee's passwords into the computer system are not working, then call center

employees cannot clock-in. Call center employees have to search for a work station or headset or

wait for another department to reset the passwords, which is time not recorded. Defendants'

manual time correction fonns do not capture all work time. Defendants make available the

potential for call center employees to earn bonuses. However, Defendants do not pay all bonuses

earned. Defendants also do not properly calculate the overtime rate ofpay because Defendants

do not include non-discretionary bonuses in that calculation. Defendants' deliberate failure to

pay call center employees their earned wages and overtime wages violates Oregon State law and

the Fair Labor Standards Act ("FLSA").

PARTIES

2. Defendant Affiliated Computer Services, Inc. ("ACS") is a Delaware corporation doing

business in Oregon. ACS has its principal place ofbusiness in Dallas, Texas, with annual sales

ofover $6.2 billion.

3. Defendant ACS Commercial Solutions, Inc. ("ACS Commercial") is a Nevada

corporation doing business in Oregon with its principal place of business in Sandy, Utah. ACS

Commercial is a subsidiary of ACS.

4. Defendant Livebridge, Inc. ("Livebridge") is an Oregon corporation doing business in

Oregon. Livebridge is a subsidiary ofACS and was bought by ACS in 2005.

Page 2-

5. The true names and capacities of Defendants DOEs 1 through 10 are presently

Class Action Complaint

BAlL.EY PINNEY & ASSOCIATES LLC

Attorneys at Law

1498 SE Tech Center Place, Suite 290 • Vancouver, Washington 98683(360) 567-2551 • Fax (360) 567-3331


unknown to Plaintiffs. Plaintiffs intend to amend this complaint to insert the true names of

DOEs 1 through 10 when they have been ascertained.

6. At all material times, Plaintiffs and call center employees were or are employed by

Defendants in the State ofOregon. Defendants are subject to the wage and hour provisions of

the FLSA and Oregon State wage and hour laws.

7. Defendants employed PlaintiffLauri BeU from approximately February 2008 to August

2008 as an hourly employee. Plaintiff Bell was employed by Defendants at its call center at the

Lake Road location in Portland, Oregon. During PlaintiffBeU's employment, Defendants did not

pay Plaintiff Bell all earned wages and overtime wages. Defendants terminated Plaintiff Bell's

employment on or about August 5, 2008. All of PlaintiffBell's wages, overtime wages and fmal

wages were due on the business day following the end ofher employment, August 6, 2008.

Defendants willfully did not pay all ofPlaintiffBell's wages on August 6, 2008.

8. Defendants employed PlaintiffAngela Hayes from approximately February of2008 to

August 2008 as an hourly employee. Plaintiff Hayes was employed by Defendants at its call

center at the Lake Road location in Portland, Oregon. During PlaintiffHayes' employment,

Defendants did not pay Plaintiff Hayes all earned wages and overtime wages. Defendants

terminated Plaintiff Hayes' employment on or about August 29, 2008. All ofPlaintiff Hayes'

wages, overtime wages and final wages were due on the business day following the end of her

employment, September 2,2008. Defendants willfully did not pay all ofPlaintiff Hayes' wages

on September 2, 2008.

9. Defendants employed PlaintiffMary Henderson from approximately January of2006 to

April 2008 as an hourly employee. PlaintiffHenderson was employed by Defendants at its call

center at 181 51 and Sandy in Gresham, Oregon. During PlaintiffHenderson's employment,

Defendants did not pay Plaintiff Hayes all earned wages. Plaintiff Henderson gave not less than

48 hours notice, excluding Saturday, Sundays and holidays, ofher intent to quit her employment

with Defendants. Plaintiff Henderson's employment ended on or about April 25, 2008. All of

Plaintiff Henderson wages and final wages were due on her last day ofemployment. Defendants

Page 3- Class Action Complaint


Attomeys at Law1498 se Tech Center Place, Suite 290 • Vancouver, Washington 98683

(360) 567-2551 • Fax (360) 567-3331


willfully did not pay all ofPlaintiff Henderson's wages on April 25, 2008.

10. Defendants employed Plaintiff Julia Rosenstein from approximately February 2006 to

July 18, 2008. Plaintiff Rosenstein was employed by Defendants at its call center at 181 st and

Sandy in Gresham, Oregon. During Plaintiff Rosenstein's employment, Defendants did not pay

Plaintiff Rosenstein all earned wages. Defendants tenninated Plaintiff Rosenstein's employment

on or about July 18, 2008. All ofPlaintiff Rosenstein's wages, overtime wages and final wages

were due on the business day following the end ofher employment, July 21, 2008. Defendants

willfully did not pay all ofPlaintiff Rosenstein's wages on July 21,2008.

11. At the time ofthe filing of this complaint, Plaintiffs Bell and Rosenstein reside in and are

citizens ofWashington State; and Plaintiffs Hayes and Henderson reside in and are citizens of

Oregon State.

12. Plaintiffs, individually and on behalf ofall other similarly situated call center employees,

seek unpaid wages, unpaid overtime wages, penalty wages, liquidated damages, interest, costs,

and attorney fees.

JURISDICTION AND VENUE

13. Federal Question: This Court has subject matter jurisdiction under 28 U.S.C. § 216(b) of

the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") and under federal question

jurisdictionpursuantto 28 U.S.C. §1331.

14. Class Action Fairness Act: Plaintiffs allege on information and belief, that this Court has

subject matter jurisdiction over all claims under the Class Action Fairness Act, 28 U.S.C. §

1332(d)(2), because this is pled as a class action, the amount in controversy exceeds $5,000,000

exclusive of interest and costs and because the alleged class exceed 100 members. Further

diversity ofcitizenship exists between the named Plaintiffs and Defendants.

15. This Court has supplemental jurisdiction over Plaintiffs' state law claims set forth in this

Complaint pursuant to 28 U.S.C. §1367(a). Both the federal and state claims alleged herein

arose from a common nucleus ofoperative facts. The state actions are so related to the federal

claims that they form part of the same case or controversy, and the actions would ordinarily be



Attorneys at Law1498 SE Tech Center Place, Suite 290 • Vancouver, Washington 98683

(360) 567-2551 • Fax (360) 567-3331


expected to be tried in one judicial proceeding.

16. Venue is proper in the District ofOregon under 28 U.S.C. § 1391(b) and (c), as the

employment practices alleged is brought on behalf of Oregon employees, and were committed in

Oregon where Defendants do business.

FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS

17. Defendants employed Plaintiffs and all others similarly situated in call centers in Oregon

State. Defendants paid Plaintiffs and call center employees on an hourly or per call basis.

Plaintiffs and call center employees were able to earn bonus or incentive pay. Defendants'

regular paydays are on every other Friday.

18. Defendants had a common business practice that violated the FLSA and Oregon law by

failing to record and track all regular and overtime hours Plaintiffs and call center employees

worked. Defendants kept track ofeach employee's hours worked based on when the employee

logged into Defendants' computer system(s). The time at which call center employees logged-in

and logged-out determined how many hours the employee would be paid for. There were no

time clocks in the work areas for recording and tracking work time. Defendants regularly

suffered and permitted Plaintiffs and call center employees to work uncompensated and off-the

clock while employees were not logged-in to Defendants computer system(s), including but not

limited to:

a. No Work StationlHeadset: When there were more call center employees

scheduled to work than there were work stations or headsets available, the call

center employees were required to search for a work station or headset. Ifafter

five minutes the call center employee was unable to find a work station or headset,

the call center employee was required to find a supervisor to help locate a work

station or headset. Because the call center employees were not logged into the

computer system while searching for a work station or headset, the call center

employees were not compensated for that time.

b. Logging In: To begin taking phone calls, Defendants required call center



Attorneys at Law1498 SE Tech Center Place. Suite 290· Vancouver, Washington 98683

(360) 567-2551 • Fax (360) 567-3331


employee to first log into Windows with the employee's user name and password

and then log into the phone system. Defendants' practice was not to pay call

center employees \intil they were logged into the phone system.

c. Password Resetting: Defendants required that each call center employee have

their own unique set ofpassword(s) for Defendants' computer systems. When

call center employee's computer password(s) for Defendants' computer systems

needed to be reset, the call center employee could not be logged-in to the

computer system which tracked the hours the employee worked. Ifcall center

employees were not immediately sent home, and instead the call center employees

would have to wait for the password(s) to be reset by another department.

Defendants' practice was to not pay call center employees for time spent waiting

for the passwords to be reset.


not having a mechanism for capturing and paying all regular and overtime hours Plaintiffs and

call center employees worked. Defendants could have easily done this by using time clocks at

entrances to the call center employees work areas.

20. Defendants created a correction form to allow employees to record when they had to

search for a work station for more than five minutes or for when passwords had to be reset.

However, Defendants regularly failed to provide Plaintiffs and all call center employees with

access to the time correction fonn. Plaintiffs and call center employees were required to get

supervisor's approval for all time corrections for more than five minutes. Defendants regularly

failed to make its supervisors available to approve and/or enter correction fonns. Defendants'

supervisors regularly failed to record all time Plaintiffs and call center employees worked while

not logged into Defendants' computer systems. Defendants did not direct Plaintiffs and call

center employees to use a correction form to record time logging into the computer system. As a

result, Defendants have not paid for all of Plaintiffs and call center employees' work time.

Plaintiffs and call center employees were not able to directly access their time records in


BAILEY PINNEY & ASSOCIATES Ll.C


(360) 567-2551 • Fax (360) 567-3331


Defendants' computer systems to correct for work time that the computer system did not record.

21. Defendants are aware that its call center employees were not able to record all time

worked. Defendants have failed to implement the necessary policies or practices to ensure that

call center employees are fully paid all wages and overtime wages. Defendants did not have a

clock-in I clock-out system outside of the computer system to record or track hours worked by

employees.


failing to include earned bonuses or its value in calculating call center employees' overtime rate

ofpay, even though the bonuses are non-discretionary. This failure to account for bonus

compensation results in systematic under-calculation and underpayment ofcall center employees'

overtime compensation.

23. Defendants also had a common business practice that violated the FLSA and Oregon law

by failing to adhere to its own policies related to bonuses. Defendants regularly created quotas,

incentives and promotions for call center employees to encourage them to make additional sales

and work longer hours. However, after the employees satisfy the requirements to attain the

bonus compensation, Defendants retroactively changed the quotas, incentives and promotions

thereby denying call center employees their rightfully earned compensation. This resulted in

Defendants failing to pay earned wages and overtime wages. This also resulted in Defendants

failure to properly calculate Plaintiffs Bell and Rosenstein and call center employees overtime

rate ofpay.

24. Defendants had a common business practice that violated Oregon law by failing to pay all

wages on payday. In determining what amount and when to pay wages and overtime wages to

Plaintiffs and call center employees, Defendants were free agents and determined their own

actions. Defendants were not responsible to or coerced by any other person, entity or authority.

Defendants intended to pay Plaintiffs' and call center employees' wages and overtime wages in

the amount paid by Defendants on the date paid. Because Plaintiffs and call center employees

worked and unable to record that time in Defendants computer systems and were not paid at the




(360) 567-2551 • Fax (360) 567-3331


proper overtime tate ofpay~ Plaintiffs and other similarly situated have wages and/or overtime

wages still due.

25. Defendants had a common business practice that violated Oregon law by failing to pay

Plaintiffs~ and call center employees~ wages when due at the end ofeach employee's

employment as required by Oregon law. Defendants knew when Plaintiffs' and call center

employees' employment with Defendants ended. In paying wages at the end ofemployment,

Defendants willfully did not pay Plaintiffs and call center employees for all hours and overtime

hours worked. Defendants required Plaintiffs and call center employees to be paid their final

wages by debit card regardless ofwhether the employee had agreed to be paid by such terms.

Defendants' practices resulted in Plaintiffs and call center employees not receiving all final

wages when those final wages were due. As a result Plaintiffs and call center employees are due

penalty wages for each day those final wages remain unpaid up to a maximum of30 days.

26. Because ofDefendants~ common business practice that violated the FLSA and Oregon

law, Plaintiffs' and call center employees' wages remained unpaid for more than 48 hours after

they became due and because Plaintiffs have had to retain legal counsel to pursue their claims

against Defendants, Plaintiffs are entitled to recover their costs~ including reasonable attorney

fees, pursuant to 29 U.S.C. § 216(b), ORS §§ 652.200(2) and 653.055(4).

COLLECTIVE AND CLASS ACTION ALLEGATIONS

27. Plaintiffs bring the FLSA claim for unpaid overtime and liquidated damages as an "opt-

in" collective action pursuant to 29 U.S.C. § 216(b). The FLSA claims may be pursued by those

who opt-in to this case, pursuant to 29 U.S.C. § 216(b).

28. Plaintiffs~ individually and on behalf ofall other similarly situated employees~ seek relief

on a collective basis challenging~ among other FLSA violations, Defendants' practice of failing

to accurately record all hours worked and failing to pay employees for all hours worked~

including overtime compensation. Plaintiffs and call center employees are similarly situated

based on Defendants' practices as alleged in paragraphs 17-23. The number and identity of other

plaintiffs yet to opt-in and consent to be party plaintiffs may be determined from the records of



Attorneys at Law

1498 SE Tech center Place, Suite 290· Vancouver, Washington 98683(360) 567-2551 • Fax (360) 567-3331


Defendants, and potential party plaintiffs may easily and quickly be notified of the pendency of

this action.

29. Plaintiffs bring the Oregon State unpaid wages, overtime wages, failure to pay wages at

termination claims as a class action pursuant to Fed. R. Civ. P. 23 on behalf of themselves and as

the Class Representatives of the following persons:

all current and former call center employees who have worked for Defendants inOregon at any time during the last six years through and including the present datethrough adjudication.

30. The Oregon State law claims, if certified for class wide treatment, may be pursued by all

similarly-situated persons who do not opt-out of the class.

31. Plaintiffs' Oregon State law claims satisfy the numerosity, commonality, typicality,

adequacyands superiority requirements ofa class action pursuant to Fed. R. Civ. P. 23.

32. Numerosity of the Class (Fed. R. Civ. P. 23(a)(1)): The class satisfies the numerosity

standards. The class is believed to exceed 1,000 persons and may increase based on the turnover

rate of employees during applicable statute of limitations. As a result, joinder ofall class

members in a single action is impracticable. The precise number of class members and their

addresses is unknown to the Plaintiffs, but their identities and addresses can be ascertained from

Defendants' employment and payroll records. Class members may be notified ofthe pendency of

this action by first-class mail.

33. Commonality (Fed. R. Civ. P. 23(a)(2)): There are questions of fact and law common to

the class that predominate over any questions affecting only individual members. The questions

oflawand fact common to the class arising from Defendants' actions include, without

limitations, the following:

A. Whether Defendants failed to pay Plaintiffs and call center employees all wages

based on the practices alleged in paragraphs 17-26;

B. Whether Defendants failed to properly calculate overtime rates ofpay for

Plaintiffs and call center employees;

C. Whether Defendants had a policy and practice of failing to record and compensate



Attorneys at law1498 SE Tech Center Place. Suite 290 • Vancouver, Washington 98683

(360) 567-2551 • Fax (360) 567-3331


employees for all time worked;

D. Whether Defendants changed the bonus and incentive programs after bonuses had

been earned, which resulted in Defendants' failure to pay all wages and overtime

wages;

E. Whether Defendants failed to track and maintain what bonuses had been earned;

F. Whether Defendants had a practice of failing to pay all final wages when due and

required by ORS § 652.140;

G. Whether Defendants' conduct in failing to pay all wages was willful; and

H. Which remedies are available for the violations of federal and state wage and hour

violations.

34. The questions set forth above predominate over any questions affecting only individual

persons, and a class action is superior with respect to considerations ofconsistency, economy,

efficiency, fairness, and equity to other available methods for the fair and efficient adjudication

of the Oregon State claims.

35. Typicality (Fed. R Civ. P. 23(a)(3»: Plaintiffs' claims are typical ofclass members'

claims because Defendants employed Plaintiffs in the same or similar positions and Plaintiffs and

call center employees were subject to the policies and practices alleged in paragraphs 17-26.

Plaintiffs' claims are typical of class members' claims in that:

A. At least one named Plaintiff was affected by at least one of the violations

described above;

B. Plaintiffs' claims stem from the same practices and/or courses ofconduct that

form the basis of the claims;

C. Plaintiffs' claims are based upon the same legal and remedial theories as those of

the class and involve similar factual circumstances; and

D. Plaintiffs' injuries are similar to the injuries which class members have suffered.

36. Adequacy ofPlaintiffs' Representation (Fed. R. Civ. P. 23(a)(4»: The named Plaintiffs

will fairly and adequately represent and protect the interests



Attorneys at law1498 SE Tech Center Place, Suite 290 • Vancouver, Washington 98683

(360) 567-2551 • Fax (360) 567·3331


ofthe class because:

A. There is no conflict between their claims and those ofother class members;

B. Plaintiffs have retained counsel who are skilled and experienced in wage and hour

cases and in class actions and who will vigorously prosecute the litigation;

C. Plaintiffs' claims are typical ofthe claims ofclass members; and

D. The interests of the class members will be fairly and adequately protected by

Plaintiffs and their counsel.

37. Injunction (Fed. R. Civ. P. 23(b)(2»: A class action is the appropriate method for the fair

and efficient adjudication ofthis controversy. Defendants have acted or refused to act on

grounds generally applicable to the class, thereby making final injunctive reliefor corresponding

declaratory relief appropriate with the respect to the Class as a whole. The presentation of

separate actions by individual class members could create a risk of inconsistent and varying

adjudications. establish incompatible standards ofconduct for Defendants, and/or substantially

impair or impede the ability of class members to protect their interests.

38. Superiority (Fed. R. Civ. P. 23(b)(3»: A class action is superior to other available means

for the fair and efficient adjudication of the claims ofPlaintiffs and class members. Each class

member's damage amount may be relatively small. especially given the burden and expense of

individual prosecution of the complex and extensive litigation necessitated by Defendants'

conduct. Moreover. even if class members could afford individual litigation, the court system

could not. Individualized litigation presents a potential for inconsistent or contradictory

judgments and increases the potential for delay and expense for all parties. A class action will

present far fewer management difficulties and will provide the benefits of a single adjudication,

economy of scale, and comprehensive supervision by a single court. Plaintiffs' claims are

appropriate for certification under Fed. R. Civ. P. 23(b)(3).

39. Maintenance of this action as a class action is a fair and efficient method for adjudication

of this controversy. It would be impracticable and undesirable for each member ofthe class who

suffered harm to bring a separate action. In addition, the maintenance ofseparate actions would


BAILEY PINNEY &ASSOCIATES LLC

Attorneys at law1498 SE Tech Center Place, Suite 290 • Vancouver, Washington 98683

(360) 567-2551 • Fax (360) 567-3331


place a substantial and unnecessary burden on the courts and could result in inconsistent

adjudications, while a single class action can detennine, with judicial economy, the rights of all

class members.

FIRST CLAIM FOR RELIEF

(Oregon State Unpaid Wages)

40. Plaintiffs incorporate the allegations contained in all preceding paragraphs as though fully

set forth herein.

41. At all material times, Plaintiffs and call center employees have been entitled to the rights,

protections and benefits provided under Oregon State wage and hour laws.

42. As the employer, Defendants are required to maintain and preserve records for the hours

worked by each employee for each workday and the total hours worked each for workweek; and

the total straight time earnings for each employee for hours worked for each workweek, exclusive

ofovertime hours. Defendants are required to maintain a regular payday at which date all

employees shall be paid the wages due and owing them. "Wages" are compensation due to an

employee by reason ofemployment, which includes non-discretionary bonuses.

43. As detailed above in paragraphs 17-26, Defendants failed to pay Plaintiffs and call center

employees for all hours worked, which resulted in and continues to result wages remaining due.

44. Defendants allowed, suffered and permitted Plaintiffs and call center employees to

perform work for the benefit of Defendants and earn bonuses for which Defendants did not pay

Plaintiffs and call center employees.

45. Any employer who pays an employee less than the wages to which the employee is

entitled, is liable to the employee for civil penalties as provided in DRS § 652.150. See ORS §§

653.055 and 653.010(10).

46. Defendants chose to pay Plaintiffs and call center employees based on when the

employees logged-into the computer system(s). Defendants could have had Plaintiffs and call

center employees use a time clock that was not tied to logging into Defendants' computer

system(s). Defendants knew when it had more employees working than computer stations or




(360) 567·2551 • Fax (360) 567-3331


headsets available. Defendants knew it had employees working while employee's passwords had

to be reset. Defendants knew they were not paying its Oregon call center employees, including

Plaintiffs, for all hours and overtime hours earned and did so deliberately and willfully.

47. In determining when and what amounts to pay Plaintiffs and others similarly situated,

Defendants were free agents and determined their own actions. Defendants knew Plaintiffs and

call center employees worked for the benefit ofDefendants and were not receiving pay for all

hours worked.

48. Defendants were capable ofpaying all wages earned on payday.

49. Defendants' conduct was willful in failing to pay all wages to Plaintiffs and others

similarly situated.

50. As a result, Plaintiffs individually and on behalf ofall call center employees seek as

damages, wages and penalty wages in amounts to be determined, pre-judgment and post

judgment interest; plus attorney fees, and costs, pursuant to ORS §§ 653.055 and 652.200(2).

SECOND CLAIM FOR RELIEF

(Oregon State and FLSA Unpaid Overtime Wages)


set forth herein.

52. At all material times, Plaintiffs and call center employees have been entitled to the rights,

protections, and benefits provided under Oregon State overtime laws and the FLSA.

53. As the employer, Defendants are required to maintain and preserve records of the total

amount ofovertime earnings for each employee for hours worked over 40 hours each workweek.

54. Plaintiffs Bell, Hayes and Rosenstein and call center employees worked more than 40

hours in a work week for Defendants. Defendants are required to compensate its employees for

all hours worked and all hours over 40 hours worked in a work week at the premium or overtime

rate of 1-1/2 times their regular rate ofpay.

55. Plaintiffs Bell and Rosenstein and call center employees worked more than 40 hours and

earned bonuses in a single work week. Bonus pay must be included in calculating the proper rate



Attorneys at Law1498 SE Tech Center PlaCEt. Suite 290 • Vancouver, Washington 98683

(360) 567-2551 • Fax (360) 567-3331


ofpay for overtime wages. Defendants failed to proper calculate the overtime rate ofpay for

Plaintiffs Bell and Rosenstein and call center employees by not accounting for bonuses earned in

the same workweek. Defendants were capable ofproperly calculating the overtime rate ofpay to

include bonuses earned.

56. Defendants failed to pay overtime wages and premium wages to Plaintiffs Bell, Hayes

and Rosenstein and call center employees as required by Federal and Oregon State law because

ofDefendants' conduct alleged in paragraphs 17-26.

57. As a result, Plaintiffs Bell, Hayes and Rosenstein and all call center employees are

entitled to unpaid overtime wages pursuant to Federal and Oregon State law.

58. In detennining what and when to pay overtime wages, Defendants were free agents. and

determined their own actions. Defendants were capable properly calculating the overtime rate of

pay and paying all overtime wages earned on payday. Defendants' conduct in failing to pay

overtime wages as alleged herein was willful.

59. Plaintiffs Bell, Hayes and Rosenstein and call center employees seek damages in the form

oftheir unpaid Oregon State overtime wages and FLSA liquidated damages in amounts to be

determined at trial, 30 days ofpenalty wages pursuant to ORS §§ 653.055 and 652.150, pre

judgment and post-judgment interest on all damages amounts; plus costs and attorney fees under

the FLSA and ORS § 652.200.

THIRD CLAIM FOR RELIEF

(Oregon State Late Payment of Wages at Termination)


set forth herein.

61. Oregon law requires that employers pay an employee's [mal wages at a specific time after

employment ends. For those employees whose employment with Defendants was terminated by

Defendants or by mutual agreement, all of the employee's wages were due on the next business

day. For those employees who gave not less than 48 hours notice, excluding Saturdays, Sundays,

and holidays, Defendants were required to pay all wages immediately at the end of that


BAILEY PINNEY &ASSOCIATES LLC

Attorneys at Law1498 SE Tech Center Place, Suite 290' Vancouver, Washington 98683

(360) 567-2551 • Fax (36G) 567-3331


employee's employment. For those employees who did not give at least 48 hours notice,

excluding Saturdays, Sundays and holidays, Defendants were required to pay all wages within

five (5) business days or the next regularly scheduled payday, whichever occurs first.

62. Defendants were required to timely pay all final wages to Plaintiffs and call center

employees at the end ofemployment. Defendants knew Oregon's laws regarding the timely

payment of all final wages at termination. Defendants failed to pay Plaintiffs and all call center

employees all [mal wages when due.

63. Defendants knew Plaintiffs' and call center employees' employment with Defendants had

ended.

64. Defendants were required to know the hours worked by all its employees.

65. In determining what amounts to pay and when to pay Plaintiffs' and call center

employees' wages at termination, Defendants were free agents and determined their own actions.

Defendants were capable of timely paying all wages to Plaintiffs and call center employees at

termination. Defendants' failure to timely pay all fmal wages to Plaintiffs and call center

employees was willful.

66. Because Defendants' willfully failed to timely pay all wages at termination as required by

ORS § 652.140, Plaintiffs and all call center employees are entitled to a maximum of 30 days of

continuing penalty wages pursuant to ORS § 652.150.

67. Plaintiffs and call center employees seek penalty wages for Defendants' failure to timely

pay all wages at termination in amounts to be determined at trial, but not exceeding 30 days, pre

judgment and postiudgment interest, attorney fees, and costs and disbursements pursuant to

ORS §§ 652.140, 652.150 and 652.200.

PRAYER FOR RELIEF

68. WHEREFORE, Plaintiffs, individually and on behalf ofall class members, demand

judgment against Defendants as follows:

1. For all unpaid wages and penalty wages pursuant to Oregon State laws in amounts

to be determined at trial;


BAILEY PINNEY & ASSOCIATES u.cAttorneys at Law

1498 SI: Tech Center Place, Suite 290 • Vancouver. Washington 98683(360) 567-2551 • Fax (360) 567·3331


2. For overtime wages and liquidated damages lIDder the FLSA in amolIDts to be

detennined at trial;

3. For overtime wages and penalty wages pursuant to Oregon State laws in amolIDts

to be detennined at trial;

4. For up to a maximum of 30 days ofpenalty wages for Defendants' failure to

timely pay all wages at tennination pursuant to Oregon State law;

5. For pre-judgment and post-judgment interest at the respective rates;

6. For costs or disbursements, and for attorney fees pursuant to the FLSA and ORS §

652.200; and

7. For such further or alternative reliefin favor of Plaintiffs and all class members as

the Court deems appropriate.

69. Plaintiffs hereby demand a jury trial on all issues triable by jury.

DATED: 1/ /5/01Tl SB 871577

B 753088KAREN A. MO , OSB 040922SHARON D. COUSINEAU, OSB 011637Bailey, Pinney & Associates, LLC1498 SE Tech Center Place. Suite 290Vancouver, WA 98683(360) 567-2551Attorneys for Plaintiffs

Page 16· Class Action Complaint

BAILEY PINNEY & ASSOCIATeS LLC

Attorneys at Law1498 SE Tech Center Place, Suite 290' Vancouver, Washington 98683

(360) 567-2551 • Fax (360) 567·3331


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