IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS DIVISION

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1 ELECTRONICALLY FILED 2013-Jun-12 13:38:37 60CV IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS DIVISION DARLENE OKEKE, DEBRA JACKSON, RITA CULBERSON, PATRICIA BURTON, SANDRA STEWART, LINDA HOPKINS, AND PEGGY JOHNSON, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED PLAINTIFFS V. CASE NO., _ ARKANSAS DEPARTMENT OF VETERAN AFFAIRS, d/b/a as ARKANSAS VETERANS HOME AND FAYETTEVILLE VETERANS HOME DEFENDANT CLASS ACTION COMPLAINT Come now the Plaintiffs, Darlene Okeke, Debra Jackson, Rita Culberson, Patricia Burton, Sandra Stewart, Linda Hopkins, and Peggy Johnson (hereinafter collectively referred to as "Plaintiffs"), by and through their attorneys, Holleman & Associates, P.A. and for their Class Action Complaint against the Defendant, Arkansas Department ofveteran Affairs d/b/a Arkansas Veterans Home and Fayetteville Veterans Home, state and allege as follows: I. INTRODUCTION This is a class action for wages owed. Plaintiffs are Licensed Practical Nurses (LPNs) and Certified Nursing Assistants (CNAs) employed at Defendant's intermediate care facilities operated under supervision of the Arkansas Department of Veteran Affairs. All Plaintiffs were paid by the hour. Plaintiffs frequently worked off the clock and were not compensated for this time. Plaintiffs were provided with compensatory time offfor some overtime hours worked. The compensatory time off was recorded at a straight time and Plaintiffs were frequently denied their request to use their

2 compensatory time off. Plaintiffs were also not provided with compensatory time offor paid in cash for all overtime hours worked. Plaintiffs were required to attend mandatory meetings at least two (2) times per month, and were not paid for this time. Plaintiffs had to work through their lunches on regular basis, yet, 30 minutes were automatically deducted from their hours worked. Defendant's policies violate Arkansas law. Any compensatory time off must be paid at the rate of time and a half, and employees must actually be able to use this time or be compensated for hours worked. Defendant must pay their employees for all hours they worked, including time worked off the clock or during their lunches. Plaintiffs were not relieved from duty during their lunch time and were not able to use this time effectively for their own purposes. Plaintiffs bring this claim on behalf of themselves and all hourly employees of Defendant for wages owed, liquidated damages, and attorneys' fees and costs under the Arkansas Minimum Wage Act ("AMWA"), common law unjust enrichment, and promissory estoppel. II. JURISDICTIONAL STATEMENT I. Plaintiff Darlene Okeke is a resident and citizen of Pulaski County, Arkansas. At all times relevant to this Complaint, she was employed by Defendant as an LPN, and was classified as an hourly employee. 2. PlaintiffDebra Ann Jackson is a resident and citizen ofjefferson County, Arkansas. At all times relevant to this Complaint, she was employed by Defendant as an LPN, and was classified as an hourly employee. 3. PlaintiffRita Culberson is a resident and citizen ofpulaski County, Arkansas. At all times relevant to this Complaint, she was employed by Defendant as an LPN, and was classified as an hourly employee. 2

3 4. Plaintiff Patricia Burton is a resident and citizen of Jefferson County, Arkansas. At all times relevant to this Complaint, she was employed by Defendant as a CNA, and was classified as an hourly employee. 5. PlaintiffSandra Stewart is a resident and citizen ofpulaski County, Arkansas. At all times relevant to this Complaint, she was employed by Defendant as an LPN, and was classified as an hourly employee. 6. Plaintiff Linda Hopkins is a resident and citizen of Jefferson County, Arkansas. At all times relevant to this Complaint, she was employed by Defendant as an RN, and was classified as an hourly employee. 7. Plaintiff Peggy Johnson is a resident and citizen of Pulaski County, Arkansas. At all times relevant to this Complaint, she was employed by Defendant as an LPl'1, and was classified as an hourly employee. 8. During the time relevant to this Complaint, Arkansas Department ofveteran Affairs (hereinafter "ADVA") operated intermediate care facilities located in Little Rock and Fayetteville, Arkansas, such as Arkansas Veterans Home and Fayetteville Veterans Home. 9. Arkansas Veterans Home and Fayetteville Veterans Home are/were divisions of the Arkansas Department of Veteran Affairs and not separate entities. 10. ADV A may be served with service of process through its director, Alicia (Cissy) Rucker, at her place of employment located at 2200 Fort Roots Drive, North Little Rock, Arkansas ADVA is a "state agency" as defined in Ark. Code Ann At all times relevant to this Complaint, ADVA was an "employer" of the Named 3

4 Plaintiffs and members of the putative class, as defined by Ark. Code Ann (4). 13. The acts and events giving rise to this action occurred within Pulaski County, Arkansas. 14. This Court has jurisdiction over the parties and subject matter pursuant to this Court's jurisdiction over the claims under the Arkansas Minimum Wage Act, Ark. Code Ann , et seq., such jurisdiction granted by Ark. Code Ann This Court also has jurisdiction over Plaintiffs' claims for unjust enrichment and promissory estoppel. 15. Venue is proper in this Court in that events giving rise to this claim occurred in Pulaski County, Arkansas, Defendant is located in Pulaski County, Arkansas, and Plaintiffs Okeke, Culberson, Stewart, and Johnson are all residents and citizens of Pulaski County, Arkansas. 16. At all times material herein, Plaintiffs have been entitled to the rights, protection and benefits provided under the Arkansas Minimum Wage Act, Ark. Code Ann , et seq. III. FACTUAL ALLEGATIONS 17. At all times relevant to this Complaint, ADVA operated and supervised intermediate care facilities located in Little Rock and Fayetteville. 18. Plaintiffs were paid by the hour. 19. Plaintiffs were employed as LPNs, CNAs, and RN. Their primary job duties were nursing, and taking care of the patients of the facility. 20. Plaintiffs frequently worked overtime during their employment with ADVA. 21. Plaintiffs earned compensatory time off in lieu of overtime. 22. The compensatory time offwas provided at the straight rate. For example, if Plaintiff 4

5 worked one hour of overtime, he/she would earn one hour of compensatory time off. 23. Plaintiffs were not provided with compensatory time off for all overtime hours worked. 24. Plaintiffs were not allowed to use compensatory time off for all overtime hours worked. 25. Plaintiffs were frequently denied their request to use their earned compensatory time off. 26. Defendant had a policy of automatically deducting 30 minutes from Plaintiffs' hours worked for their lunch, regardless of whether Plaintiffs actually took their lunch. 27. Plaintiffs frequently had to work through their lunch due to understaffing and business of the facility and were not paid for this time. 28. Plaintiffs had to work off the clock to complete their job duties. For example, Plaintiffs had to come to work early or leave late to finish their every day job tasks. Plaintiffs, however, were required to clock in and clock out at the beginning and at the end of their scheduled shifts. 29. Plaintiffs were required to attend mandatory in-service meetings. These meeting were conducted offthe clock, and Plaintiffs were not paid for their time in the meetings. 30. When Plaintiffs came in late, they were docked 15 minutes of pay, even when they were only I or 2 minutes late. 31. Plaintiffs were not allowed to report all hours worked during their employment with Defendant. 32. Plaintiffs were not compensated for all hours worked during their employment with 5

6 Defendant. 33. Plaintiffs frequently complained to Defendant about the above referenced violations but nothing was done as a result of these complaints. 34. The unlawful policy offailing to compensate Plaintiffs for all hours worked followed by ADV A has been in place for a period in excess of three (3) years. This policy is continuing and ongoing. 35. Defendant has been notified on previous occasions as to the violations of the Arkansas Minimum Wage Act, Ark. Code Ann , et seq. It has taken no action, despite demands and notice. The Defendant's actions are willful and are taken with knowledge that its acts violate the Arkansas Minimum Wage Act. IV. CLASS ACTION ALLEGATIONS 36. Plaintiffs incorporate by reference preceding paragraphs as ifthey were fully set forth herein. 37. Upon information and belief, Defendant failed to compensate Plaintiffs for all hours worked, including but not limited to hours worked off the clock and hours worked during lunch breaks during the weeks when no overtime was worked by Plaintiffs. Plaintiffs seek compensation for this straight time under theories of unjust enrichment and promissory estoppel. 38. Plaintiffs bring this action for violations ofthe AMWA, and under theories ofunjust enrichment and promissory estoppel as a class action under Rule 23 of the Arkansas Rules a/civil Procedure. 39. Members of the putative Class are so numerous that joinder of all such members is impracticable. The exact size ofthe putative class is unknown, but may be determined from records 6

7 maintained by Defendant. Upon information and belief, approximately 200 or more persons were employed by Defendant as hourly, nonexempt employees. An unknown number of former employees are also included as putative class members. 40. The Class consists of all present and former hourly employees of Defendant who worked hours that they were not paid for Defendant, from June 12, 2010, to the present and date of trial. 41. There are common questions of law and fact applicable to the putative Class. Common questions of law and fact include, but are not limited to: a. whether Defendant failed to compensate Plaintiffs for all hours worked, including overtime; b. whether Defendant failed to provide Plaintiffs with compensatory time at a rate ofnot less than one and one-half(l 1/2) hours for each hour of overtime; c. whether Defendant failed to compensate Plaintiffs for hours worked off the clock, including attending mandatory meetings; d. whether Defendant failed to compensate Plaintiffs for hours worked through lunch; e. whether injunctive relief is available to force Defendant into compliance with the Arkansas Minimum Wage Act; f. whether Defendant has acted willfully or in good faith; g. whether Named Plaintiffs and members of the putative class are entitled to liquidated damages, penalties and attorney's fees and costs; h. whether Defendant has complied with their record-keeping obligations under the AMWA; i. whether Defendant has been unjustly enriched at the expense of Named Plaintiffs and members of the putative class; and 7

8 J. whether Defendant made a promise to Plaintiffs to pay them for all hours worked, whether Plaintiffs relied on Defendant's promise when performing their work, and whether Defendant breached its promise to pay Plaintiffs for all hours worked. 42. Named Plaintiffs are typical ofthe putative class. Like other putative class members, they are and have been subjected to Defendant's common policy and practice of not paying its hourly, non-exempt employees for all compensable work to which they were entitled under Arkansas law. 43. Named Plaintiffs will fairly and adequately protect the interest ofthe putative class. They have no conflicts with the putative class and have suffered the exact same injury. Their counsel possesses the requisite resources and experience in class-action litigation. 44. The questions oflaw and fact common to the Named Plaintiffs and members of the putative class predominate over any questions affecting only individual class members, and a class action is superior to other available methods for the fair and efficient adjudication of this controversy. V. PLAINTIFFS' FIRST CLAIM FOR RELIEF (Violations of the Arkansas Minimum Wage Act) 45. Plaintiffs re-allege and incorporate by reference paragraphs above as ifthey were set forth again herein. 46. Plaintiffs bring their claim for reliefpursuant Ark. Code Ann (e)( 1),which states as follows: (e) (l) An employee may bring an action for equitable and monetary relief against an employer, including the State ofarkansas or a political subdivision of the state, ifthe employer pays the employee less than 8

9 Emphasis Added. the minimum wages, including overtime wages, to which the employee is entitled under or by virtue of this subchapter. 47. At all relevant times, Defendant has been Plaintiffs' "employer" within the meaning of Ark. Code Ann (4). 48. At all relevant times, Plaintiffs have been Defendant's "employees" within the meaning of Ark. Code Ann (3), without exemption or exception. 49. Ark. Code Ann (a) states as follows: Except as otherwise provided in this section and and , no employer shall employ any of his or her employees for a work week longer than forty (40) hours unless the employee receives compensation for his or her employment in excess of the hours above specified at a rate not less than one and one-half (1 1/2) times the regular rate of pay at which he or she is employed. 50. Ark. Code Ann l(t) states as follows: in lieu of overtime compensation, the State of Arkansas and any political subdivision of the state may award compensatory time offat a rate of not less than one and one-half (1 1/2) hours for each hour of employment for which overtime compensation is required. 51. Plaintiffs are entitled to compensation for all hours worked in excess of 40 per week at a rate not less than one and one-half (1 1/2) times their regular rate of pay. Any compensatory time offowed to Plaintiffs should be compensated at a rate of not less than one and one-half (1 1/2) hours for each hour worked. 9

10 52. At all relevant times, Defendant, pursuant to its policies and practices, failed and refused to compensate Plaintiffs for work performed at the rate required by Ark. Code Ann Defendant violated and continues to violate the Arkansas State law by failing to pay Plaintiffs for all hours actually worked at the rate prescribed therein. 54. Plaintiffs have sustained substantial damages as a result ofthe Defendant's violations of the Arkansas State law. 55. Defendant's violations entitle Plaintiffs to liquidated damages pursuant to Ark. Code Ann (a)(2) in the form ofdouble the compensatory damages set forth in Ark. Code Ann (a)(l)(B)(i). 56. Plaintiffs are entitled to an award ofattorneys' fees and court costs pursuant to Ark. Code Ann (a)( I )(B)(ii). forth herein. VI. PLAINTIFFS' SECOND CLAIM FOR RELIEF (Unjust Enrichment) 57. The preceding paragraphs are incorporated by reference as ifthe same were fully set 58. At all time relevant to this Complaint, Plaintiffs and members of the putative Class provided services to Defendant by working overtime hours, working through their lunch breaks, and working without compensation before and after their official scheduled shift. 59. Defendant has received the benefits of Plaintiffs' work. 60. At all relevant times, named Plaintiffs and members ofthe putative Class reasonably expected to be paid the value of such services by Defendant. Defendant accepted benefits of 10

11 Plaintiffs' work. 61. At all relevant times, Defendant was aware that Plaintiffs and members ofthe putative Class were providing such services with the expectation of being paid and accepted the services. 62. By accepting said services and failing to pay for them, Defendant was unjustly enriched at the expense ofnamed Plaintiffs and members ofthe putative Class. Defendant greatly benefitted from receiving said services and it would be unfair, unjust, and inequitable to allow Defendant to retain those benefits. 63. Named Plaintiffs and members of the putative Class are entitled to recover from Defendant damages resulting from the common policy and practice ofnot paying them for all hours worked. forth herein. VII. PLAINTIFFS' THIRD CLAIM FOR RELIEF (Promissory Estoppel) 64. The preceding paragraphs are incorporated by reference as ifthe same were fully set 65. Defendant made a promise to Plaintiffs and other putative class members that they would be paid for all hours of work. Defendant has expected Plaintiffs and other class members to complete their job duties every day, work overtime, work through their lunch, and work before and after their scheduled shift. 65. By continuing to working overtime, working through their lunch breaks and working without compensation before and after their scheduled shifts, Plaintiffs and other putative class members acted in reasonable reliance on the Defendant's promise to their detriment. 11

12 66. Defendant received benefit of Plaintiffs' work without proper compensation. Plaintiffs suffered detriment and injustice can be avoided only by enforcement of Defendant's promises. VIII. DEMAND FOR JURY TRIAL 67. Plaintiffs demand a trial by jury upon all issues herein. IX. PRAYER FOR RELIEF WHEREFORE, Named Plaintiffs, on behalf of themselves and all members of the putative class, respectfully request this Court: 1. Certify this action as a class action pursuant to Rule 23, with the class defined as: All hourly, nonexempt employees who were, are, or will be employed by Defendant at Arkansas Veterans Home and Fayetteville Veterans Home at any time within the three years prior to the filing of this Complaint through the date of the final disposition of this action. 2. Designate the Named Plaintiffs as representatives of the Class; 3. Designate Holleman & Associates, P.A. as class counsel. 4. Enter a declaratory judgment that the practices complained of herein are unlawful under Arkansas law; 5. Enter a permanent injunction restraining and prevent Defendant from withholding the compensation that is due to their employees, from retaliating against any of them for taking part in this action, and from further violating their rights under the Arkansas Minimum Wage Act; 6. Enter an Order for complete and accurate accounting ofall the compensation to which Named Plaintiffs and members of the putative class are entitled; 7. Award Named Plaintiffs and putative class members compensatory damages 12

13 in an amount equal to the unpaid back wages at the applicable overtime rates from a period from three (3) years prior to this lawsuit through the date of trial; 8. Award Named Plaintiffs and putative class members liquidated damages in an amount equal to their compensatory damages; 9. Award Named Plaintiffs all recoverable costs, expenses, and attorney's fees incurred in prosecuting this action, together with all applicable interest, and 10. Grant Plaintiffs all such further reliefas the Court deems justand appropriate. Jo. Holleman - AR Bar #91056 jholleman@johnholleman.net Maryna O. Jackson - AR Bar # maryna@johnholleman.net Timothy A. Steadman - AR Bar # tim@johnholleman.net Paige Breech - AR Bar # paige@johnhollema.net HOLLEMAN & ASSOCIATES, P.A West Second Street Little Rock, Arkansas Tel Fax