STATE OF MINNESOTA
FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN DISTRICT COURT
Eduardo Rios, Rodolfo Gutierrez, ) Case Type: Class Action/Contract
Evelia Mendoza, Jennifer Brickweg, )
Marsha Winter, John Ivy, and Penny Ivy, )
Court File No:
)
Plaintiffs, )
)
vs. ) COMPLAINT
)
Jennie-O Turkey Store, Inc. )
a Minnesota corporation, )
)
Defendant. )
TO: DEFENDANT,
JENNIE-O TURKEY STORE, INC., A MINNESOTA CORPORATION AND ITS ATTORNEYS.
COMPLAINT AT LAW
CLASS ACTION
Plaintiffs, by their
undersigned attorneys, and for their Class Action Complaint against Defendant
JENNIE-O TURKEY STORE, INC., a Minnesota corporation (hereinafter “Defendant”),
allege upon information and belief, except as to the allegations that pertain
to the Plaintiffs themselves, which are based upon personal knowledge, as
follows:
1.
Plaintiffs, Eduardo Rios, Rodolfo Gutierrez, Evelia Mendoza,
Jennifer Brickweg, Marsha Winter, John Ivy, and Penny Ivy, bring this action
against Defendant for engaging in practices which deny its Minnesota employees
payment for compensable work. As a
result of the practices, Defendant hired Plaintiffs as hourly employees, but
denies them compensation for certain work time. Defendant excludes from
compensable work certain activities including but not limited to the
following: donning and doffing of required safety and sanitation
equipment and attire (hereafter collectively referred to as “donning and
doffing” or “don and doff”) and washing of hands, and the cleaning, exchange or
repair of tools and equipment.
Defendant further excludes from compensable work that time employees are
expected to wait and be on-call to perform assigned tasks. By engaging in
these practices, Defendant has violated Minnesota common and statutory laws as
described below.
2.
Venue is proper in Hennepin County because this Court is a
court of competent jurisdiction within the meaning of Minnesota Statute
§ 177.27. Pursuant to Minnesota
Statute § 542.09, venue is also proper in Hennepin County because
Defendant does substantial business throughout Minnesota and has its registered
agent and registered office in Hennepin County.
3.
This Court has personal jurisdiction over Defendant.
Defendant owns and operates businesses throughout Minnesota and has obtained
the benefits of Minnesota laws.
4.
This Court has jurisdiction over the subject matter.
Plaintiffs assert claims arising out of Minnesota law. The claims of the
Plaintiffs and the Class are individual claims for violation of Minnesota laws
described herein.
5.
Plaintiff Eduardo Rios (hereafter Rios) has worked for the
Defendant since June of 1996 until the present as an hourly employee.
Rios works in Plant number 4 in Willmar, Minnesota, as a line
employee processing turkeys. Rios has not been paid for all
compensable work and has been denied full meal and rest breaks.
6.
Plaintiff Rodolfo Gutierrez (hereafter Gutierrez) has worked
for the Defendant since 1998 until the present as an hourly employee.
Gutierrez works in Plant number 4 in Willmar, Minnesota, as a line
employee processing turkeys. Gutierrez has not been paid for all
compensable work and has been denied full meal and rest breaks.
7.
Plaintiff Evelia Mendoza (hereafter Mendoza) worked for
Defendant from December 17, 2002 until June 16, 2003 as an hourly employee.
Mendoza worked in Plant number 4 in Willmar, Minnesota, as a line
employee processing turkeys. Mendoza
has not been paid for all compensable work and has been denied full meal and
rest breaks.
8.
Plaintiff Jennifer Brickweg (hereafter Brickweg) has worked
for Defendant since April 2, 1997 until the present as an hourly line employee
in Melrose, Minnesota. Brickweg has not been paid for all compensable
work and has been denied full meal and rest breaks.
9.
Plaintiff Marsha Winter (hereafter Winter) has worked for
Defendant since August, 1996 until the present as an hourly line employee in
Melrose, Minnesota. Winter has not been paid for all compensable
work and has been denied full meal and rest breaks.
10.
Plaintiff John Ivy (hereafter Mr. Ivy) has worked for
Defendant from 1999 to 2002 as an
hourly line employee in Willmar, Minnesota and from September, 2003
until the end of December, 2003 as an hourly line employee in Montevideo,
Minnesota. Mr. Ivy has not been paid
for all compensable work and has been denied full meal and rest breaks.
11.
Plaintiff Penny Ivy (hereafter Ms. Ivy) has worked for the
Defendant since August, 2003 until the present as an hourly line employee in
Montevideo, Minnesota. Ms. Ivy has not
been paid for all compensable work and has been denied full meal and rest
breaks.
12.
Defendant is a Minnesota Corporation with headquarters in
Willmar, Minnesota. Defendant is an industry leader turkey processor in
the United States. Defendant operates seven plants for processing, boning and
value-added processing throughout Minnesota.
13.
Defendant’s acts or omissions occurred in Minnesota and were
authorized, ordered or done by its officers, agents, employees, or
representatives, while actively engaged in the management of Defendant’s
business.
CLASS ACTION ALLEGATIONS
14.
Plaintiffs bring this Class action pursuant to Minn. R. Civ.
P. 23.01, on behalf of a Class consisting of all current and former hourly
employees of Defendant in Minnesota who are line employees processing turkeys
who have performed unpaid compensable work through the date judgment is entered
in this action (hereinafter the “Class”).
15.
Plaintiffs believe that thousands of current and former hourly
employees of Defendant make up the Class. Class members are so numerous
that joinder is impractical.
16.
Plaintiffs’ claims are typical of the Class members’ claims
because each is or was an hourly employee who sustained damages arising out of
Defendant’s practice of having employees perform compensable work without
receiving compensation and performing compensable work during rest periods
and/or meal breaks without receiving proper compensation.
17.
Plaintiffs will fairly and adequately protect the interests of
the Class members. Plaintiffs have retained counsel competent and
experienced in complex litigation.
18.
Common issues of law and fact relating to the Class as a whole
predominate over issues applied only to the individual Class members. Among
the questions of law and fact common to the Plaintiffs and the Class as a whole
are:
a.
Whether Defendant engaged in a practice of requiring
Plaintiffs and the Class to perform compensable work without proper
compensation;
b.
Whether Defendant engaged in the practice of requiring
Plaintiffs and the Class to engage in compensable work during rest breaks or
meal breaks required by the terms of their employment agreements;
c.
Whether Defendant engaged in the practice of requiring
Plaintiffs and the Class to engage in compensable work during meal breaks
required by Minnesota Statute § 177.254, Subd. 1. and Minnesota Rules
5200.0120, Subp. 4.;
d.
Whether Defendant engaged in the practice of requiring
Plaintiffs and the Class to engage in compensable work during rest breaks
required by the terms of their employment agreements;
e.
Whether Defendant engaged in the practice of requiring
Plaintiffs and the Class to engage in compensable work during rest breaks
required by Minnesota Statute §
177.253, Subd. 1. and Minnesota Rules 5200.0120, Subp. 1.;
f.
Whether Defendant accurately recorded and retained accurate
records of Plaintiffs’ compensable work and that of the Class as required by
Minnesota Statute § 177.30.
g.
Whether Defendant compensated Plaintiffs and the Class for
work Defendant required them to perform;
h.
Whether the compensable work performed by the Plaintiffs is
included in the type of compensable work performed by the Class;
i.
Whether Defendant violated the terms of its employment
agreements with Plaintiffs and the Class by failing to pay for all overtime
hours;
j.
Whether the nature of damages suffered by Plaintiffs is common
to the Class.
19.
Class treatment provides a superior means for fair and
effective management of the dispute between the parties. A Class action
will permit a large number of similarly situated hourly employees to pursue
their common law claims against Defendant in a single forum, simultaneously,
effectively, and without the duplication of effort and expense that numerous
individual actions would entail. No difficulties are likely to be
encountered in the management of the Class action that would preclude its
maintenance as a Class action, and no superior alternative treatment exists for
the fair and efficient management of this controversy. The Class is
readily identifiable from Defendant’s business records.
20.
Prosecution of separate actions by individual Class members
could result in inconsistent adjudications of identical claims making it
impossible for Defendant to discern an acceptable standard of conduct.
21.
Class treatment is the superior method for assuring the fair
and efficient management of their claims since joinder of all Class members is
impractical. Further, the amount of money at stake for many Class members
is not great enough for them to maintain separate actions against Defendant.
22.
Absent Class treatment, Defendant will retain the benefit of
its wrongdoing and remain free to continue its practices resulting in further
damage to Plaintiffs and the Class as a whole.
23.
There will be no difficulty in the management of this action
as a Class action.
24.
Plaintiffs re-allege and incorporate by reference each and
every allegation set forth in the preceding paragraphs.
25.
Defendant hired Plaintiffs and the Class as employees at a
fixed hourly wage rate. At the time of hiring, Defendant provided the
Plaintiffs and Class with a schedule of hourly pay and an Employee Handbook
setting forth the terms of their employment. Defendant had the Plaintiffs
and the Class sign an acknowledgment of receipt of the Employee Handbook to
indicate their understanding of the terms of employment. The provisions
of the Employee Handbook as well as Defendant’s policy and statements regarding
the payment of hourly wages are clear and definite terms and conditions of
employment offered and accepted by the Plaintiffs and the Class herein.
26.
The promised hourly wage rate is based upon the employee’s
length of service. Each year during the month of May, a meeting is held for
all hourly employees during which notices are distributed setting forth the new
hourly rate. The new hourly rate takes effect on or about June 1. A copy of the 2002 wage schedule is attached
as Exhibit A.
27.
The Employee Handbook states that the Plaintiffs and the Class
receive compensation at one-and-one-half times the hourly rate of pay for work
performed in excess of eight (8) hours in a day or in excess of 40 hours in a
week.
28.
Defendant, on a weekly basis, pays its hourly employees and
gives them a written statement accompanying each payment identifying
Defendant’s ongoing intention to pay overtime.
29.
What constitutes hours worked in Minnesota is defined in
Minnesota Rule § 5200.0120, Subp. 1., which provides:
§5200.0120, Subp. 1.
Hours worked include training time, call time, cleaning
time, waiting time, or any other time when the employee must be either on the
premises of the employers or involved in the performance of duties in
connection with his or her employment or must remain on the premises until work
is prepared or available.
30.
Employees are also required to record time worked.
The Employee Handbook states:
To assure full credit for your work, make sure that you
have clocked in at the start of work and clocked out at the end of your work
period.
31.
As required by Defendant, Plaintiffs don their safety
equipment prior to starting their standard work time. Likewise, subsequent to the end of their scheduled workday,
Plaintiffs are required to doff.
32.
As required by United States Department of Agriculture (USDA)
and Occupational Safety and Health Administration (OSHA) safety and sanitation
regulations and Defendant’s policies, Plaintiffs and the Class are required to
wear any combinations of the following safety and sanitation equipment: belly
guard, arm guard, mesh apron, rubber apron, cotton gloves, rubber gloves, mesh
gloves, earplugs, eye safety glasses, hardhat helmet, boots, wet suit, goggles,
white coat, pants, and hairnet.
33.
Defendant does not treat donning and doffing as compensable
work.
34.
As required by USDA and OSHA safety and sanitation regulations
and Defendant’s policies, Plaintiffs and the Class are to wash their hands
frequently, clean equipment and containers before using and, clean, exchange or
repair tools and equipment when necessary.
35.
Defendant does not treat washing of hands and the cleaning,
exchange or repair of tools and equipment as compensable work.
36.
Plaintiffs have earned and hold a vested interest in wages for
all compensable work performed to the present time.
37.
Defendant’s failure to pay for all compensable work is a
breach of the terms of the employment agreements with Plaintiffs and the Class.
38.
Defendant is liable to Plaintiffs and the Class for damages
they incurred as a result of Defendant’s failure to pay for compensable work in
accordance with the terms of the employment agreements.
(Violation of Minnesota Statute § 177.25)
39.
Plaintiffs re-allege and incorporate by reference each and
every allegation set forth in the preceding paragraphs.
40.
Throughout the relevant time period, Defendant was an employer
within the meaning of Minnesota Statute §177.23, Subd. 6, and subject to the
requirements of Minnesota Statute §177.25 which provides in pertinent part:
No employer may employ an employee for a workweek longer
than 48 hours in a workweek at a rate of at least 1 1/2 times the regular rate
at which the employee is employed.
41.
Plaintiffs and the Class are employees within the meaning of
Minnesota Statute §177.23, Subd. 7, and are entitled to the protections of Minnesota
Statute §177.25 and Minnesota Rule §5200.0120, Subp. 1.
42.
When donning and doffing time, sanitation and repair time is
included as compensable work, Plaintiffs and the Class have worked workweeks
which are longer than 48 hours.
43.
Defendant has willfully violated the above provisions by
excluding these hours worked and not paying 1 1/2 times the rate of hourly pay
for compensable work in excess of 48 hours.
44.
Defendant is liable to Plaintiffs and the Class for
compensatory and liquidated damages, plus costs, disbursements, witness fees,
and attorneys’ fees pursuant to Minnesota Statute §177.27.
45.
Plaintiffs re-allege and incorporate by reference each and
every allegation set forth in the preceding paragraphs.
46.
Defendant promises its employees, at the time employment
applications are made and when employees are hired and in its Employee Handbook
that a thirty-minute meal break is provided as part of the terms of employment.
47.
After the unpaid thirty minute meal break starts, Plaintiffs
and the Class are required to doff before entering the lunchroom.
48.
Before the unpaid thirty-minute meal break ends, Plaintiffs
and the Class are required to don before going back on the line.
49.
Requiring Plaintiffs and the Class to partially doff and don
within their unpaid thirty-minute meal break deprives the Plaintiffs and the
Class of a full thirty-minute meal break.
50.
Defendant breached the terms of the employment agreements by
failing to provide Plaintiffs and the Class with full 30 minute meal breaks.
51.
Defendant is liable to Plaintiffs and the Class for damages
incurred because of its failure to provide full 30 minute meal breaks.
52.
Plaintiffs re-allege and incorporate by reference each and
every allegation set forth in the preceding paragraphs.
53.
Throughout the relevant time period, Defendant was an employer
within the meaning of Minnesota Statute §177.23, Subd. 6, and subject to the
requirements of Minnesota Statute §177.254 and Minnesota Rule §5200.0120, which
provide:
§177.254.
Mandatory Meal Break.
Subdivision 1. Meal break. An employer
must permit each employee who is working for eight or more consecutive hours
sufficient time to eat a meal.
§5200.0120.
Hours Worked.
Subpart 4. Meals. Bona fide meal periods are
not hours worked. Bona fide meal periods do not include rest periods such
as coffee breaks or time for snacks. The employee must be completely
relieved of duty for the purpose of eating regular meals. Thirty minutes
or more is ordinarily long enough for a bona fide meal. A shorter period
may be adequate under special circumstances. The employee is not
completely relieved from duty if required to perform any duties, whether active
or inactive, while eating. It is not necessary that the employee be
permitted to leave the premises, if the employee is otherwise completely free
from duties during the meal period. If the meal period is frequently
interrupted by calls to duty, the employee is not relieved of all duties and
the meal period must be considered as hours worked.
54.
Plaintiffs and the Class are employees within the
meaning of Minnesota Statute §177.23, Subd. 7, and are entitled to the
protections of Minnesota Statute §177.254, Subd. 1 and Minnesota Rule
§5200.0120, Subd 4.
55.
Defendant has willfully violated these provisions by failing
to permit a full meal break.
56.
Plaintiffs and the Class were damaged by Defendant’s conduct.
57.
Defendant is liable to Plaintiffs and the Class for
compensatory and liquidated damages, plus costs, disbursements, witness and
attorneys’ fees, pursuant to Minnesota Statute §177.27.
(Breach of Contract, Failure to Provide Rest Breaks)
58.
Plaintiffs re-allege and incorporate by reference each and
every allegation set forth in preceding paragraphs.
59.
Defendant promises its employees both at the time the
employment applications are made and when the employees are hired and in its
Employee Handbook that two 15-minute rest breaks per eight (8) hours of work
are provided as part of the terms of employment.
60.
Plaintiffs and the Class are required to partially doff and
don after the rest break starts and before the rest break ends.
61.
Due to the partial don and doff, the Plaintiffs and the Class’
are deprived of the full 15-minute rest breaks.
62.
Defendant breached the terms of employment regarding rest
breaks by failing to provide Plaintiffs and the Class such rest breaks.
63.
Defendant is liable to Plaintiffs and the Class for damages
incurred because of its failure to provide the full 15-minute rest breaks.
SIXTH CAUSE OF ACTION
(Violation of Minnesota Statute §177.253
and Minnesota Rule §5200.0120)
64.
Plaintiffs re-allege and incorporate by reference each and
every allegation set
forth in
preceding paragraphs.
65.
Throughout the relevant time period, Defendant was the
employer within the meaning of Minnesota Statute §177.23, Subd. 6, and subject
to the requirements of Minnesota
Statute §177.253, Subd. 1 and Minnesota Rule
§5200.0120, Subp. 1, which provide:
§177.253,
Subd. 1.
Rest breaks. An employer must allow each
employee adequate time from work within each four consecutive hours of work to
utilize the nearest convenient restroom.
§5200.0120,
Subp. 1.
Rest periods of less than 20 minutes may not be deducted
from total hours worked.
66.
Plaintiffs and the Class are employees within the
meaning of Minnesota Statute §177.23, Subd. 7, and are entitled to the
protections of Minnesota Statute §177.253.
67.
Defendant has willfully violated these provisions by failing
to provide the required rest breaks.
68.
Plaintiffs and the Class have been damaged by Defendant’s
conduct.
69.
Defendant is liable to Plaintiffs and the Class for
compensation and liquidated damages, plus costs, disbursements, witness and
attorneys’ fees pursuant to Minnesota Statute §177.27.
70.
Plaintiffs re-allege and incorporate by reference each and
every allegation set forth in the preceding paragraphs.
71.
Defendant has failed to compensate Plaintiffs and the Class
for all compensable work which was performed for the benefit of Defendant, and
Defendant has accepted the benefit of the work for which compensation was not
paid.
72.
Defendant is liable to fully compensate Plaintiffs and the
Class for all compensable work. On the date the wages were due and
payable by Defendant to the Class, the unpaid wages became the property of the
Plaintiffs and Class members and they have a right to their possession.
By failing to pay wages due to Plaintiffs and Class members, Defendant obtained
a benefit by wrongfully obtaining and holding wages due to Plaintiffs and the
Class.
73.
Defendant knew of and appreciated the benefit conferred upon
them by their retention of Plaintiffs’ and Class members’ property.
74.
It would be inequitable for Defendant to continue to retain
the property of Plaintiffs and the Class, and the Plaintiffs and Class are
entitled to the relief set forth hereafter.
75.
Plaintiffs re-allege and incorporate by reference each and
every allegation set forth in the preceding paragraphs.
76.
Because Plaintiffs and the Class members performed compensable
work without receiving full compensation, Defendant enjoyed reduced overhead
and realized additional profits for its processing operations to the detriment
of Plaintiffs and Class members. For Defendant to retain the benefits
would be contrary to fundamental principles of justice, equity and good
conscience.
77.
Defendant is liable to Plaintiffs and the Class in an amount
equal to the benefits Defendant unjustly retained.
WHEREFORE,
Plaintiffs, on behalf of themselves and the Class members, pray for judgment in
their favor and against Defendant as follows:
1.
Certifying that this lawsuit may proceed and be maintained as
a class action;
2.
Ordering Defendant to pay all back wages and overtime pay lost
as a result of Defendant ’s conduct;
3.
Ordering Defendant to pay liquidated damages;
4.
Ordering Defendant to pay prejudgment interest;
5.
Ordering Defendant to pay post-judgment interest;
6.
Ordering Defendant to pay reasonable attorneys’ fees;
7.
Ordering Defendant to pay costs, disbursements and expert
witness fees; and
8.
Imposing statutory penalties upon Defendant pursuant to
Minnesota Statutes §177.27, Subds. 7 and 8.
Dated: December 31, 2003 LINDQUIST & VENNUM p.l.l.p.
By: __________________________________
Robert J. Hennessey (#44118)
By: __________________________________
Daniel J. Sheran (#100183)
By: __________________________________
Thomas F. Pursell (#012168x)
4200 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
(612) 371-3211)
ANDERSON, LARSON, HANSON AND SAUNDERS
By: __________________________________
Rodney C. Hanson (#0167599)
By: __________________________________
Antonio Tejeda (#0325326)
331 Southwest Third Street
Willmar, MN 56201
320-235-4313
Attorneys for
PlaintiffS
ACKNOWLEDGMENT
The party to this pleading by its attorney
acknowledges that sanctions may be imposed pursuant to Minn. Stat. § 549.211.
______________________________
Robert
J. Hennessey
______________________________
Daniel
J. Sheran
______________________________
Thomas
F. Pursell
______________________________
Rodney
C. Hanson
______________________________
Antonio
Tejeda