IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION AMENDED COMPLAINT

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1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION LISA ADAMS, individually, and on behalf of a class of others similarly situated, Plaintiff, v. HY-VEE, INC., Defendant. Case No. 4:11-CV DW COLLECTIVE AND CLASS ACTION JURY TRIAL REQUESTED AMENDED COMPLAINT Plaintiff Lisa Adams, individually and on behalf of all others similarly situated, by and through her counsel, for her Amended Complaint against Hy-Vee, Inc. (hereinafter Hy-Vee" or "Defendant ) hereby states and alleges as follows: 1. Hy-Vee is one of the largest supermarket chains in the country. Hy-Vee s policy and practice is to deny wages and overtime pay to department managers working in its grocery stores. Its failure to pay employees their earned wages and overtime compensation violates the federal Fair Labor Standards Act ( FLSA ) as well as the Missouri Minimum Wage Law ( MMWL ) and Missouri s common law equitable principles of unjust enrichment. 2. Plaintiff previously worked as a produce department manager in Hy-Vee stores in Kansas City and Columbia, Missouri. This lawsuit is brought in three counts. First, as a nationwide collective action pursuant to 29 U.S.C. 216(b) of the Fair Labor Standards Act. Second as a Rule 23 class action under the MMWL on behalf of Plaintiff and all other similarly situated workers employed by Hy-Vee in the State of Missouri. And third, as a 1

2 claim for unjust enrichment on behalf of Plaintiff and all other similarly situated workers employed by Hy-Vee in the State of Missouri pursuant to Fed. R. Civ. P. 23. JURISDICTION AND VENUE 3. The FLSA authorizes court actions by private parties to recover damages for violation of the FLSA s wage and hour provisions. Jurisdiction over Plaintiff s FLSA claim is based upon 29 U.S.C. 216(b) and 28 U.S.C The Class Action Fairness Act requires plaintiffs to pursue certain state law class claims in the United States District Court. Plaintiff's Rule 23 claims for violations of the MMWL and for unjust enrichment have a value in excess of $5,000,000. And the parties to this suit are minimally diverse. Accordingly, jurisdiction over Plaintiff's MMWL and unjust enrichments claims is based upon 28 U.S.C. 1332(d). 5. Venue in this district is proper pursuant to 28 U.S.C. 1391(b) and (c), because a substantial part of the events giving rise to this claim occurred in the Western District of Missouri. PARTIES 6. Plaintiff Lisa Adams is a resident of the State of Missouri. She was employed by Hy-Vee from 2001 to Ms. Adams worked as a trainee produce department manager at a Kansas City store located near the intersection of Barry Road and Interstate 29 from approximately April 2008 to March She worked as a produce department manager at a Columbia store located at 25 Conley Road in Columbia, Missouri from approximately March 2010 to January Defendant Hy-Vee, Inc. is an Iowa corporation with its principal place of business in West Des Moines, Iowa. Hy-Vee does business in the State of Missouri. The Missouri 2

3 registered agent for Hy-Vee is CT Corporation System located at 120 South Central Avenue, Clayton, MO GENERAL ALLEGATIONS 8. Hy-Vee operates stores in Missouri and nationwide. 9. Each of Hy-Vee s stores has a number of departments, including: Bakery, Camera/Video, Catering, Chinese, Customer Service, Dairy, Floral, Frozen, General Merchandise, Health & Beauty Care, Health Market, Kitchen, Meat, New York Deli, Produce, Seafood, Service Meat, and Wine and Spirits. 10. Hy-Vee classifies trainee department managers as salaried, non-exempt employees. 11. Trainee department managers routinely work more than 40 hours per week. In fact, they typically work between hours per week. These long hours are required by their job duties, which include: stocking, cleaning, scheduling, invoicing, inventory, ordering, projections, plan-o-grams, signage, and price-changes. 12. Despite their classification, Hy-Vee fails to pay trainee department managers for work done beyond 45 hours in a given workweek, let alone a premium for such work. 13. Hy-Vee classifies is department managers as exempt from the FLSA, though the wage statements issued to Plaintiff during her tenure as a department manager reflect pay calculated based on hours worked (albeit less hours than actually worked by Plaintiff). 14. Like trainees, department managers routinely work more than 40 hours per week. In fact, they typically work between hours per week. These long hours are required by their job duties, which include: stocking, cleaning, scheduling, invoicing, inventory, ordering, projections, plan-o-grams, signage, and price-changes. 3

4 15. Hy-Vee fails to pay its department managers a premium for work performed over 40 hours in a given work week. 16. Regardless of how department managers are classified, the managerial decisionmaking within each store is performed by the three levels of store management above the department managers. 17. Hy-Vee also fails to record the actual time spent working by its trainee department managers and its department managers (hereinafter collectively referred to as Plaintiffs ), even though it could easily and accurately keep track of their time, like it does for hourly employees. 18. Hy-Vee followed the above-described policies and practices with respect to department managers in both the Kansas City and Columbia stores at which Plaintiff worked. Upon information and belief, Hy-Vee adhered to the same policies and practices with respect to Plaintiffs at all of its stores because Hy-Vee s corporate office established company-wide policies regarding personnel, payroll and time-keeping. 19. Hy-Vee fails to pay overtime compensation to Plaintiffs and fails to keep accurate time records in order to save payroll costs. 20. Hy-Vee knows that the number of hours required for Plaintiffs to complete their work is more than the hours being compensated. Hy-Vee also knows that Plaintiffs are required to be in-store more than the hours being compensated. And Hy-Vee knows that it has an obligation to record and track the time worked by Plaintiffs in order to properly pay for overtime, but fails to do so. Thus, Hy-Vee enjoys ill-gained profits at the expense of its employees. 4

5 21. Hy-Vee has fostered a culture in which store directors, who are in charge of Plaintiffs and all other store employees, are incentivized to work their employees long hours without pay since store directors compensation is based on their stores profits. COLLECTIVE AND CLASS ALLEGATIONS 22. Plaintiff brings Count I, the FLSA claim, as an opt-in collective action pursuant to 29 U.S.C. 216(b) on behalf of herself and of the following two classes of persons: All trainee department managers employed by Hy-Vee who were classified as salaried, non-exempt and who worked in stores nationwide in the last three years. and All department managers employed by Hy-Vee who were classified as exempt and who worked in stores nationwide in the last three years. 23. The FLSA claim may be pursued by those who opt-in to this case, pursuant to 29 U.S.C. 216(b). 24. Plaintiff, individually and on behalf of other similarly situated employees, seeks relief on a collective basis challenging Defendant s above-described FLSA violations. The number and identity of other plaintiffs yet to opt-in and consent to be party plaintiffs may be determined from the records of Defendant, and potential class members may easily and quickly be notified of the pendency of this action 25. Plaintiff brings Count II, the MMWL claim, as a Rule 23 class action on behalf of herself and of the following two classes of persons: All trainee department managers employed by Hy-Vee who were classified as salaried, non-exempt and who worked in stores within the State of Missouri in the last two years. and All department managers employed by Hy-Vee who were classified as exempt and who worked in stores within the State of Missouri in the last two years. 5

6 26. Plaintiff brings Count III, the unjust enrichment/quantum meruit claim, as a Rule 23 class action on behalf of herself and of the following persons: All trainee department managers employed by Hy-Vee who were classified as salaried, non-exempt and who worked in stores within the State of Missouri in the last five years. and All department managers employed by Hy-Vee who were classified as exempt and who worked in stores within the State of Missouri in the last five years. 27. Hy-Vee does employ three levels of in-store management above the department managers at issue in this case. Those employees are the subject of Chapman v. Hy-Vee, Inc., Case No., 5:10-cv HFS. The classes herein are not intended to include the class of managers at issue in Chapman. 28. Plaintiff s MMWL and unjust enrichment/quantum meruit claims satisfy the numerosity, commonality, typicality, adequacy, and superiority requirements of a class action pursuant to Rule These classes are believed to number in the hundreds if not thousands of persons. As a result, joinder of all class members in a single action is impracticable. Class members may be informed of the pendency of this class action through regular mail, , and through in-store and internet posting. 30. There are questions of fact and law common to the Rule 23 classes that, under Missouri state law, predominate over any questions affecting only individual members. The questions of law and fact common to the classes arising from Hy-Vee s actions include, without limitation, the following: 6

7 a. Whether Hy-Vee violated Missouri law when it failed to pay Plaintiffs for all hours worked; b. Whether Hy-Vee had policies and practices of failing to track the time worked by its salaried non-exempt trainee department managers; and c. Whether Hy-Vee was unjustly enriched by virtue of its policies and practices with respect to Plaintiffs pay. 31. The questions set forth above predominate over any questions affecting only individual persons, and a class action is superior with respect to considerations of consistency, economy, efficiency, fairness, and equity to other available methods for the fair and efficient adjudication of the state law claims. 32. Plaintiff s claims under Missouri state law are typical of those of the classes in that class members have been employed in the same or similar positions as Plaintiff and were subject to the same or similar unlawful practices as Plaintiff. 33. A class action is the appropriate method for the fair and efficient adjudication of the Missouri claims. Hy-Vee has acted or refused to act on grounds generally applicable to the classes. The presentation of separate actions by individual class members could create a risk of inconsistent and varying adjudications, establish incompatible standards of conduct for Hy-Vee, and/or substantially impair or impede the ability of class members to protect their interests. 34. Plaintiff is an adequate representative of the Missouri classes because she is a member of each of the classes and her interests do not conflict with the interests of the members of those classes she seeks to represent. The interests of the members of the classes will be fairly and adequately protected by Plaintiff and her undersigned counsel. Plaintiff s 7

8 counsel are experienced in the litigation of civil matters, including the prosecution of complex wage and hour, employment, and class action cases. 35. 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 of the classes who suffered harm to bring a separate action. In addition, the maintenance of separate actions would place a substantial and unnecessary burden on the courts and could result in inconsistent adjudications, while a single class action can determine, with judicial economy, the rights of all class members. COUNT I Violation of the Fair Labor Standards Act of 1938 (Brought Against Hy-Vee by Plaintiff Individually and on Behalf of All Others Similarly Situated) 36. Plaintiff re-alleges the allegations set forth above. 37. At all times material herein, Plaintiff has been entitled to the rights, protections, and benefits provided under the FLSA, 29 U.S.C. 201, et seq. 38. The FLSA regulates, among other things, the payment of overtime pay by employers whose employees are engaged in interstate commerce, or engaged in the production of goods for commerce, or employed in an enterprise engaged in commerce or in the production of goods for commerce. 29 U.S.C. 207(a)(1). 39. Defendant is subject to the overtime pay requirements of the FLSA because it is an enterprise engaged in interstate commerce and its employees are engaged in commerce. 40. Defendant violated the FLSA by failing to pay for overtime. In the course of perpetrating these unlawful practices, Defendant has also failed to keep accurate records of all hours worked by its employees. 8

9 41. Section 13 of the FLSA, codified at 29 U.S.C. 213, exempts certain categories of employees from overtime pay obligations. None of the FLSA exemptions apply to Plaintiffs. 42. Plaintiff and all similarly situated employees are victims of nationwide compensation policies. These policies, in violation of the FLSA, have been applied to Plaintiffs in Defendant's stores in Columbia, Missouri and Kansas City, Missouri. Upon information and belief, Defendant is applying the same unlawful compensation policies to Plaintiffs in its other stores located nationwide. 43. Plaintiff and all similarly situated employees are entitled to damages equal to the mandated overtime premium pay within the three years preceding the filing of this Complaint, plus periods of equitable tolling, because Defendant acted willfully and knew, or showed reckless disregard of whether their conduct was prohibited by the FLSA. 44. Defendant has acted neither in good faith nor with reasonable grounds to believe that its actions and omissions were not a violation of the FLSA, and as a result thereof, Plaintiff and other similarly situated employees are entitled to recover an award of liquidated damages in an amount equal to the amount of unpaid overtime pay described pursuant to Section 16(b) of the FLSA, codified at 29 U.S.C. 216(b). Alternatively, should the Court find Defendant did not act willfully in failing to pay overtime pay, Plaintiff and all similarly situated employees are entitled to an award of prejudgment interest at the applicable legal rate. 45. As a result of the aforesaid violations of the FLSA s overtime pay provisions, overtime compensation has been unlawfully withheld by Defendant from Plaintiff and all similarly situated employees. Accordingly, Defendant is liable pursuant to 29 U.S.C. 216(b), together with an additional amount as liquidated damages, pre-judgment 9

10 and post-judgment interest, reasonable attorneys fees, and costs of this action. WHEREFORE, Plaintiff and all similarly situated employees demand judgment against Defendant and pray this Court: a. Issue notice to all similarly situated employees of Defendant informing them of their right to file consents to join the FLSA portion of this action; b. Award Plaintiff and all similarly situated employees compensatory and liquidated damages under 29 U.S.C. 216(b); c. Award Plaintiff and all similarly situated employees pre-judgment and postjudgment interest as provided by law; d. Award Plaintiff and all similarly situated employees attorneys fees and costs as allowed by Section 216(b) of the FLSA; and e. Award Plaintiff and all similarly situated employees such other relief as the Court deems fair and equitable. COUNT II Violation of the Missouri Minimum Wage Law (Brought Against Hy-Vee by Plaintiff Individually and on Behalf of All Others Similarly Situated) 46. Plaintiff re-alleges the allegations set forth above. 47. Plaintiff and all similarly situated employees are victims of company-wide compensation policies. These policies, in violation of the MMWL, have been applied to Plaintiffs in Defendant's stores in Columbia, Missouri and Kansas City, Missouri. Upon information and belief, Defendant is applying the same unlawful compensation policies to Plaintiffs in its other stores located in the State of Missouri. 10

11 48. Hy-Vee violated Missouri law, in relevant part, by failing to pay overtime owed to Plaintiff and similarly situated employees as required by Mo. Rev. Stat and Further, Plaintiff and similarly situated employees are entitled to recover liquidated damages in an amount equal to their compensatory damages, attorneys fees, and costs, pursuant to Mo. Rev. Stat WHEREFORE, Plaintiff and all similarly situated employees demand judgment against Hy-Vee and prays this Court: a. Certify the state law claim set forth in Count II above as a class action pursuant to Fed. R. Civ. P. 23; b. Award Plaintiff and all similarly situated employees compensatory and liquidated damages under and Mo. Rev. Stat ; c. Award Plaintiff and all similarly situated employees pre- and post-judgment interest as provided by law; d. Award Plaintiff and all similarly situated employees attorneys fees and costs as allowed by Mo. Rev. Stat ; and e. Award Plaintiff and all similarly situated employees such other relief as the Court deems fair and equitable. COUNT III Unjust Enrichment / Quantum Meruit (Brought Against Hy-Vee by Plaintiff Individually and on Behalf of All Others Similarly Situated) 50. Plaintiff re-alleges the allegations set forth above. 51. Hy-Vee benefited from the unpaid work performed by Plaintiffs. 11

12 52. Hy-Vee was aware that it was receiving the benefit of this unpaid work at the time the work was being performed and accepted and retained that benefit without paying fair compensation for the same. 53. Hy-Vee s acceptance and retention of the benefit of the department managers unpaid labor was inequitable and resulted in Hy-Vee being unjustly enriched. WHEREFORE, Plaintiff and all similarly situated employees demand judgment against Hy-Vee and prays this Court: a. Certify the state law claim set forth in Count III above as a class action pursuant to Fed. R. Civ. P. 23; b. Order Hy-Vee to disgorge the value of its ill-gained benefits to Plaintiff and all similarly situated employees; c. Award Plaintiff and all similarly situated employees pre- and post-judgment interest as provided by law; and d. Award Plaintiff and all similarly situated employees such other relief as the Court deems fair and equitable. 12

13 DEMAND FOR JURY TRIAL Plaintiffs hereby request a trial by jury of all issues so triable. Dated: June 8, 2011 Respectfully submitted, LEAR WERTS LLP Michele L. Hornish, Mo. Bar No hornish@learwerts.com 203 N. LaSalle St., Ste Chicago, IL Telephone: Facsimile: Bradford B. Lear, Mo. Bar No lear@learwerts.com Todd C. Werts, Mo. Bar No werts@learwerts.com 2003 W. Broadway, Ste. 107 Columbia, MO Telephone: Facsimile: ATTORNEYS FOR PLAINTIFFS 13