Case 1:15-cv RP Document 1 Filed 11/16/15 Page 1 of 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

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1 Case 1:15-cv RP Document 1 Filed 11/16/15 Page 1 of 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION Nina Louden and Johanna Condley, on behalf of themselves and all other similarly situated individuals, CIVIL ACTION: 1:15-cv Plaintiffs, v. COMPLAINT Open Mortgage, LLC, Defendant. COLLECTIVE ACTION COMPLAINT Plaintiffs Nina Louden and Johanna Condley ( Plaintiffs ), on behalf of themselves and all others similarly situated, by and through their attorneys, Nichols Kaster, PLLP, bring this action against Open Mortgage, LLC ( Defendant ), for damages and other relief relating to violations of the Fair Labor Standards Act. JURISDICTION AND VENUE 1. This Court has original jurisdiction to hear this Complaint and to adjudicate the claims stated herein under 28 U.S.C. 1331, this action being brought under the Fair Labor Standards Act, 29 U.S.C. 201 et seq. ( FLSA ). 2. Venue is proper in the United States District Court for the Western District of Texas pursuant to 28 U.S.C because a substantial part of the events or omissions giving rise to the claims occurred in this district. Austin, Texas. PARTIES 3. Defendant is a Texas corporation with its corporate headquarters located in 1

2 Case 1:15-cv RP Document 1 Filed 11/16/15 Page 2 of 7 4. According to its website, Defendant is a mortgage banker providing a wide variety of mortgage programs, including conventional mortgages, refinance, FHA loans, USDA loans, VA loans, 203K loans, and reverse mortgages. Defendant provides loan origination, processing, and underwriting services at its 15 branches in several states throughout the United States, including Texas. Some of Defendant s employees provide these services remotely from their homes. 5. At all relevant times, Defendant has been an employer engaged in interstate commerce and/or the production of goods for commerce, within the meaning of the FLSA, 29 U.S.C. 203(d). Specifically, Defendant provides its services in multiple states across the country. Defendant s gross annual sales made or business done have been in excess of $500, at all relevant times. 6. Plaintiff Nina Louden is an adult resident of the State of Texas. Defendant employed Plaintiff Louden as a mortgage loan processor from approximately January 2013 to September Plaintiff Johanna Condley is an adult resident of the state of Oklahoma. Defendant employed Plaintiff Condley as a mortgage loan processor from approximately April 2014 to August During their employment with Defendant, Plaintiffs worked remotely from their homes. 9. At all relevant times, Plaintiffs were Defendant s employees within the meaning of the FLSA, 29 U.S.C COLLECTIVE ACTION FACTUAL ALLEGATIONS 2

3 Case 1:15-cv RP Document 1 Filed 11/16/15 Page 3 of Plaintiffs bring this action on behalf of themselves and all other similarly situated individuals pursuant to 29 U.S.C. 216(b). Plaintiffs and the similarly situated individuals worked as mortgage loan processors, reverse mortgage loan processors, or in other positions with similar titles or job duties (collectively processors ) for Defendant. The proposed FLSA Collective class is defined as follows: All persons who worked as mortgage loan processors, reverse mortgage loan processors, or in other positions with similar titles or job duties, for Defendant at any time from three years prior to the filing of this Complaint through the entry of judgment (the FLSA Collective ). 11. Plaintiffs have consented in writing to be a part of this action pursuant to 29 U.S.C. 216(b). Plaintiffs signed consent forms are attached as Exhibit A. In addition, one other individual has consented in writing to be a part of this action. Her signed consent form is attached as Exhibit B. As this case proceeds, it is likely that other individuals will file consent forms and join as opt-in plaintiffs. 12. Defendant paid Plaintiffs and the FLSA Collective a base salary and productionbased bonuses, with no overtime pay. 13. As processors, Plaintiffs and the FLSA Collective are or were employed by Defendant within the meaning of the FLSA. Defendant improperly classified them as exempt from the FLSA s overtime pay requirements. 14. Defendant required Plaintiffs and the FLSA Collective to routinely work over forty (40) hours in a workweek; however, Defendant did not compensate them with overtime pay for the overtime hours they worked. 15. Further, to perform their job duties, Plaintiffs logged into various computer software programs. This log-in information and time and date stamps from these programs, along with Plaintiffs communications (via and an electronic system Plaintiffs used to send 3

4 Case 1:15-cv RP Document 1 Filed 11/16/15 Page 4 of 7 instant messages) with their supervisors, and/or managers from other departments (e.g. underwriting, closing) should show the excessive number of hours Plaintiffs worked. 16. Defendant s loan production requirements required Plaintiffs and those similarly situated to close a specific number of loan files within a specific amount of time, and Defendant frequently reminded them that they were required to meet these production deadlines. As a result, Plaintiffs and the FLSA Collective regularly worked over 40 hours each week to meet their quotas. 17. Defendant failed to make, keep, and preserve records of hours worked by Plaintiffs and the FLSA Collective sufficient to determine their wages and hours worked throughout the entire statutory time period. 18. Defendant uniformly misrepresented to Plaintiffs and the FLSA Collective that they were exempt employees, and therefore ineligible to receive overtime pay. In reality, Plaintiffs and the FLSA Collective are, and were, non-exempt employees who are, and were, entitled to overtime pay. 19. Defendant was aware, or should have been aware, that Plaintiffs and the FLSA Collective performed non-exempt work that required payment of overtime compensation. For example, Plaintiffs communicated to their supervisors in conference calls, s, and/or instant messages that they believed the workload and production quotas to be too high to complete all of their work within a standard 40 hour workweek. In addition, Plaintiff Louden contacted Defendant s Human Resources department and questioned why Defendant did not pay processors overtime. In response, Defendant s Human Resources department advised Plaintiff Louden that Defendant did not pay processors overtime because Defendant paid them per-file production bonuses, in addition to the base salary. 4

5 Case 1:15-cv RP Document 1 Filed 11/16/15 Page 5 of Defendant s conduct constitutes a willful violation of the FLSA within the meaning of 29 U.S.C Defendant is liable under the FLSA for failing to properly compensate Plaintiffs and the FLSA Collective. 22. Notice of this action should be sent to the FLSA Collective. There are numerous similarly situated current and former employees of Defendant who have been denied appropriate compensation in violation of the FLSA who would benefit from the issuance of a Court supervised notice of the present lawsuit and the opportunity to join the present lawsuit. Those similarly situated employees are known to Defendant and are readily identifiable through Defendant s records. CAUSES OF ACTION COUNT I VIOLATION OF THE FAIR LABOR STANDARDS ACT FAILURE TO PAY OVERTIME (on behalf of Plaintiffs and the FLSA Collective) 23. Plaintiffs allege and incorporate by reference the allegations in the preceding paragraphs. 24. The FLSA, 29 U.S.C. 207, requires employers to pay all non-exempt employees one and one-half times the regular rate of pay for all hours worked over forty (40) per workweek. 25. Plaintiffs and the FLSA Collective are entitled to FLSA overtime compensation for all hours worked in excess of forty (40). 26. Defendant suffered and permitted Plaintiffs and the FLSA Collective to routinely work more than forty (40) hours per week without overtime compensation. 27. By failing to pay overtime compensation, Defendant violated the FLSA. 5

6 Case 1:15-cv RP Document 1 Filed 11/16/15 Page 6 of By failing to record, report, and/or preserve all records of hours worked by Plaintiffs and the FLSA Collective during the entire statutory period, Defendant failed to make, keep, and preserve all records with respect to each of its employees sufficient to determine their wages, hours, and other conditions of employment, in violation of the FLSA, 29 U.S.C. 255(a). 29. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA, within the meaning of 29 U.S.C. 255(a). 30. As a direct and proximate result of Defendant s unlawful conduct, Plaintiffs and FLSA Collective have suffered and will continue to suffer a loss of income and other damages. Plaintiffs and FLSA Collective are entitled to liquidated damages and attorneys fees and costs incurred in connection with this claim. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf of themselves all others similarly situated, pray for relief as follows: A. Designation of this action as a collective action on behalf of Plaintiffs and those similarly situated and prompt issuance of notice pursuant to 29 U.S.C. 216(b) to all those similarly situated apprising them of the pendency of this action, and permitting them to assert timely FLSA claims in this action by filing individual consent forms pursuant to 29 U.S.C. 216(b); B. Judgment that Plaintiffs and those similarly situated are nonexempt employees entitled to protection under the FLSA; C. Judgment against Defendant for violation of the overtime provisions of the FLSA; D. Judgment that Defendant s violations as described above were willful; E. An award in an amount equal to Plaintiffs and those similarly situated s unpaid back wages at the applicable overtime rate; 6

7 Case 1:15-cv RP Document 1 Filed 11/16/15 Page 7 of 7 F. An award to Plaintiffs and those similarly situated for liquidated damages and civil penalties where provided by law; G. An award of reasonable attorneys fees and costs pursuant to 29 U.S.C. 216 and/or other applicable laws; H. An award of prejudgment interest and post-judgment interest as provided by law; I. Leave to add additional plaintiffs by motion, the filing of written consent forms, or any other method approved by the Court; and J. For such other and further relief, in law or equity, as this Court may deem appropriate and just. DATED this 16th day of November, 2015 NICHOLS KASTER, PLLP s/ Paul J. Lukas Paul J. Lukas, MN Bar No X Reena I Desai, MN Bar No * 4600 IDS Center, 80 South 8th Street Minneapolis, MN Telephone: (612) Facsimile: (612) lukas@nka.com rdesai@nka.com *pro hac vice application forthcoming ATTORNEYS FOR PLAINTIFFS AND THE PUTATIVE FLSA COLLECTIVE CLASS 7