IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jill Fox 

562 Westphal Avenue 

Columbus, Ohio 43213

 

 Plaintiff,

v.

Surge Staffing, LLC 

1110 Morse Road 

Columbus, Ohio 43229

-and 

Surgeforce, LLC

dba Surgeforce Group 

1110 Morse Road 

Columbus, Ohio 43229

 

Defendants.

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Civil Action No. 2:18-cv-22

JUDGE 

MAGISTRATE JUDGE

Jury Demand Endorsed Hereon

COMPLAINT

NOW COMES Plaintiff Jill Fox (“Plaintiff”) for her complaint against Defendants Surge 

Staffing, LLC (“Defendant Surge Staffing”) and Surgeforce, LLC (“Defendant Surgeforce”) 

(collectively, “Defendants”), hereby states as follows:

I. JURISDICTION AND VENUE

1. This action is brought pursuant to the Fair Labor Standards Act (“FLSA”), 29 

U.S.C. §201, et seq., the Ohio Minimum Fair Wage Standards Act, R.C. Chapter 4111 (“the Ohio 

Wage Act”), the Ohio Prompt Pay Act, R.C. § 4113.15 (“OPPA”), and 28 U.S.C. §1331. 

2. This Court’s jurisdiction in this matter is also predicated upon 28 U.S.C. §1367 as 

this Complaint raises additional claims pursuant to the laws of Ohio, over which this Court 

maintains supplemental subject matter jurisdiction. 

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3. Venue is proper in this forum pursuant to 28 U.S.C. §1391, because Plaintiff 

entered into an employment relationship with Defendants in the Southern District of Ohio and 

Defendants have jointly done substantial business in the Southern District of Ohio and have their

headquarters in the Southern District of Ohio. 

II. NATURE OF THIS ACTION 

4. This lawsuit seeks to recover overtime compensation for Plaintiff who was jointly

employed as an employee relations specialist for Defendants at all times relevant here pursuant to 

the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq.

5. At all times relevant herein, Plaintiff was jointly employed by Defendants as an 

employee relations specialist from approximately May of 2017 until October of 2017.

6. Defendants jointly own and operate a temporary employment and/or staffing 

company in Columbus, Ohio. 

7. At all times relevant here, Defendants jointly employed Plaintiff to this suit as an 

employee relations specialist to perform non-exempt duties for Defendants at their corporate 

office. 

8. At all times relevant here, Defendants jointly misclassified Plaintiff as exempt from 

federal and state overtime provisions and/or otherwise failed to pay her any overtime wages as 

required. 

9. Instead, Defendants jointly paid Plaintiff a “salary” only if she worked at least forty 

(40) hours in a workweek. However, Plaintiff’s “salary” was not a predetermined amount as it was 

subject to reduction because of variations in quality or quantity of work performed. Defendants

tracked all of Plaintiff’s hours worked, but they subtracted Plaintiff’s hours worked when she 

worked in excess of forty (40) hours in a workweek. Defendants did not pay Plaintiff a “salary” if

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she worked less than forty (40) hours per week; rather, Defendants paid her for only those hours 

worked at her regular hourly rate of pay. 

10. At all times relevant here, Defendants jointly did not pay Plaintiff one and one-half 

times her regular hourly rate for hours worked over (40) hours per week. 

11. Plaintiff’s primary duties do not fall under any of the exemptions under federal or 

state overtime laws. 

12. Defendants regularly jointly required Plaintiff to work in excess of forty (40) hours 

per week. However, Defendants jointly failed to pay Plaintiff one and one-half times her regular 

hourly rates for these hours worked over forty (40) in a workweek. 

13. By the conduct described in this Complaint, Defendants have jointly violated the 

FLSA by failing to pay Plaintiff overtime wages she earned and to which she is entitled by law by

misclassifying her as exempt when she was non-exempt. 

III. PARTIES

a. Plaintiff Fox

14. Plaintiff Jill Fox (“Plaintiff” or “Plaintiff Fox”) is a resident of the State of Ohio.

15. Plaintiff started working for Defendants as an employee relations specialist in or 

around May of 2017. 

16. When she began working as an employee relations specialist, Plaintiff was jointly 

misclassified by Defendants as exempt from overtime pay. 

17. Plaintiff is a covered employee within the meaning of the FLSA. 

18. Plaintiff’s pay rate was $17.79 per hour. Plaintiff regularly worked over 40 hours 

per week. 

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b. Defendants

19. Defendant Surge Staffing, LLC (“Defendant Surge Staffing”) is a foreign limited 

liability company registered under the laws of Alabama with its principal place of business in the 

Southern District of Ohio. Defendant Surge Staffing jointly operates jointly owns and operates a 

temporary employment and/or staffing company with its headquarters located at 1110 Morse Road, 

Columbus, Ohio, 43229. 

20. Defendant Surgeforce, LLC (“Defendant Surgeforce”) dba Surgeforce Group is a 

domestic limited liability company with its principal place of business in the Southern District of 

Ohio. Defendant Surgeforce jointly operates jointly owns and operates a temporary employment 

and/or staffing company with its headquarters located at 1110 Morse Road, Columbus, Ohio, 

43229. 

21. Defendants jointly are and have been an “employer” as that term is defined by the 

FLSA, the Ohio Acts, and Ohio Constitution Art. 2 §34a.

22. During relevant times, Defendants jointly maintained control, oversight, and 

direction over Plaintiff, including the promulgation and enforcement of policies affecting the 

payment of wages, including overtime compensation.

23. During relevant times, Defendants have mutually benefitted from the work 

performed by Plaintiff. 

24. During relevant times, Defendants did not act independently of each other and have 

not been completely disassociated with respect to the work of Plaintiff. 

25. During relevant times, Defendants shared the services of Plaintiff.

26. During relevant times, Defendants acted directly or indirectly in the interest of each 

other in relation to Plaintiff.

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27. During relevant times, Defendants are and have been jointly involved in the 

operational decisions of each other.

28. During relevant times, Defendants have been jointly involved in the employment 

decisions of each other, including, but not limited to decisions about their wage and hour policies 

and practices that affected Plaintiff.

29. Upon information and belief, Defendants jointly operate and control an enterprise 

and employ employees engaged in commerce or in the production of goods for commerce, or have

had employees handling, selling, or otherwise working on goods or materials that have been moved 

in or produced for commerce by any person; and Defendants have had an annual gross volume of 

sales made or business done of not less than $500,000 per year (exclusive of excise taxes at the 

retail level).

30. During relevant times, Defendants suffered and permitted Plaintiff to work more 

than forty (40) hours per workweek, while not compensating her for all such hours worked over 

forty (40) at a rate of at least one and one-half times her regular rate of pay. 

31. Upon information and belief, Defendants, at all times relevant hereto, were fully 

aware of the fact that they were legally required to comply with the wage and overtime payment 

laws of the United States and of the State of Ohio as well as record keeping laws of the State of 

Ohio. 

32. During relevant times, Defendants had knowledge of and acted willfully in regard

to their conduct described herein.

33. Defendants are in possession and control of necessary documents and information 

from which Plaintiff would be able to precisely calculate damages.

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IV. FACTUAL BACKGROUND

34. As part of their regular business practice, Defendants jointly have intentionally, 

willfully, and repeatedly engaged in a pattern, practice, and/or policy of violating the FLSA with 

respect to Plaintiff. This policy and pattern or practice includes, but is not limited to:

a. willfully failing to pay Plaintiff overtime wages for hours that she worked in 

excess of 40 hours per workweek; and/or

b. willfully misclassifying Plaintiff as exempt from the protections of the FLSA. 

35. Throughout her employment with Defendants as an employee relations specialist, 

Plaintiff consistently worked more than 40 hours per week.

36. Throughout her employment with Defendants as an employee relations specialist, 

Plaintiff primary duties were non-exempt. Plaintiff was responsible for answering phones, putting 

together new hire packets, and assisting Brenda Tayim, Defendants’ HR Manager, as directed.

37. Plaintiff was not paid on a salary or fee basis.

38. Plaintiff’s primary duty was not management. 

39. Plaintiff did not have the discretion or authority to make any decisions with respect 

to matters of significance and was required to follow the policies, practices, and procedures jointly 

set by Defendants. 

40. Plaintiff was not exempt from receiving FLSA overtime benefits because, inter 

alia, she was not an “executive,” “administrative,” or “professional” employee, as those terms are 

defined under the FLSA. See 29 C.F.R. §§ 541.0, et seq.

41. Plaintiff was not exempt from receiving FLSA overtime benefits because, inter 

alia, she was not “learned professional” employees, as that term is defined under the FLSA. See 

29 CFR § 541.301. 

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42. Defendants were aware that Plaintiff worked more than 40 hours per workweek

during this time, yet Defendants failed to pay her any overtime compensation for any of the hours 

worked over 40 in a workweek.

V. CAUSES OF ACTION 

FIRST CAUSE OF ACTION

FLSA –UNPAID OVERTIME

43. All of the preceding paragraphs are realleged as if fully rewritten herein.

44. Defendants have jointly violated the FLSA as described in this Complaint.

45. At all relevant times, Plaintiff was engaged in commerce and/or the production of 

goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a). 

46. The overtime wage provisions set forth in §§ 201 et seq. of the FLSA apply to 

Defendants. 

47. Defendants are each an employer engaged in commerce and/or the production of 

goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a).

48. At all times relevant, Plaintiff was an employee of each Defendant within the 

meaning of 29 U.S.C. §§ 203(e) and 207(a).

49. At all relevant times, the job duties of Plaintiff primarily consisted of non-exempt 

duties.

50. Plaintiff was not paid on a salary or fee basis.

51. Defendants have jointly failed to pay Plaintiff the overtime wages to which she was 

entitled under the FLSA because she was misclassified as an exempt employee. 

52. Plaintiff routinely worked in excess of forty (40) hours per week.

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53. Plaintiff should have been paid the overtime premium for hours worked in excess 

of forty (40) hours per week but was not. 

54. Defendants’ violations of the FLSA, as described in this Complaint, have been 

willful and intentional. Defendants have failed to make a good faith effort to comply with the 

FLSA with respect to their compensation of Plaintiff. 

55. Defendants’ joint violations of the FLSA were willful.

56. As a result of Defendants’ willful and joint violations of the FLSA, Plaintiff has 

suffered damages by being denied overtime wages in accordance with 29 U.S.C. §§ 201, et seq. 

57. As a result of the unlawful acts of Defendants, Plaintiff has been deprived of 

overtime compensation and other wages in amounts to be determined at trial, and are entitled to 

recovery of such amounts, liquidated damages, prejudgment interest, attorneys’ fees, costs and 

other compensation pursuant to 29 U.S.C. § 216(b). 

SECOND CAUSE OF ACTION

R.C. 4111.03 – UNPAID OVERTIME

58. All of the preceding paragraphs are realleged as if fully rewritten herein

59. This claim is brought under Ohio Law.

60. The Ohio Wage Act requires that covered employees be compensated for every 

hour worked in a workweek. See R.C. §§ 4111 et seq., See also, 29 U.S.C §206(b)

61. The Ohio Wage Act requires that employees receive overtime compensation “not 

less than one and one-half times” the employee’s regular rate of pay for all hours worked over 40 

in one workweek, “in the manner and methods provided in and subject to the exemptions of section 

7 and section 13 of the "Fair Labor Standards Act of 1938. See R. C. § 4111.03 (A), See also, 29 

U.S.C. § 207 (a)(1). 

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62. Plaintiff was a covered employee entitled to the Ohio Wage Act’s protections

63. Plaintiff was not exempt from receiving Ohio Wage Act overtime benefits because 

Plaintiff was not an exempt “executive,” “administrative,” or “professional” employee, as those 

terms are defined under the FLSA. See R.C. 4111.03(A), See also 29 C.F.R. §§ 541.0, et seq.

64. Plaintiff was not exempt from receiving FLSA overtime benefits because, inter 

alia, Plaintiff was not a “learned professional” employee, as that term is defined under the FLSA. 

See 29 CFR §541.301. 

65. Defendants are each a covered employer required to comply with the Ohio Wage 

Act’s mandates. 

66. Defendants jointly violated the Ohio Wage Act with respect to Plaintiff by failing 

to compensate her at the rate of one and one-half times her regular rate of pay for all hours worked 

in excess of forty (40) hours in a workweek. 

67. In violating the Ohio Wage Act, Defendants jointly acted willfully and with 

reckless disregard of clearly applicable Ohio Wage Act provisions.

68. For Defendants’ violations of the Ohio Wage Act, Plaintiff has suffered damages.

Plaintiff seeks unpaid overtime and other compensation, liquidated damages, interest and 

attorneys’ fees, and all other remedies available. 

THIRD CAUSE OF ACTION

R.C. 4113.15 —OPPA VIOLATION

69. All of the preceding paragraphs are realleged as if fully rewritten herein.

70. During relevant times, Defendants were jointly covered by the OPPA and Plaintiff

was jointly employed by Defendants within the meaning of the OPPA.

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71. The OPPA requires Defendants to pay Plaintiff all wages, including unpaid 

overtime, on or before the first day of each month, for wages earned by her during the first half 

of the preceding month ending with the fifteenth day thereof, and on or before the fifteenth day 

of each month, for wages earned by her during the last half of the preceding calendar month. See 

R.C. § 4113.15(A).

72. During relevant times, Plaintiff was not paid all wages, including overtime wages 

at one and one-half times her regular rate within thirty (30) days of performing the work. See R.C. 

§ 4113.15(B). 

73. Plaintiff’s unpaid wages remain unpaid for more than thirty (30) days beyond her 

regularly scheduled payday.

74. In violating the OPPA, Defendants acted willfully, without a good faith basis and 

with reckless disregard of clearly applicable Ohio law, and their actions entitle Plaintiff to 

liquidated damages in the amount of six percent of the amount of the unpaid overtime 

compensation owed or two hundred dollars, whichever is greater.

VI. PRAYER FOR RELIEF 

WHEREFORE, the Plaintiff requests judgment against the Defendants for an Order: 

A. Finding that Defendants have failed to keep accurate records in accordance with 

the FLSA and Ohio law, Plaintiff is entitled to prove her hours worked with reasonable estimates;

B. Awarding Plaintiff unpaid compensation, including overtime wages as to be 

determined at trial together with any liquidated damages allowed by the FLSA;

C. Awarding Plaintiff unpaid compensation, including overtime wages as to be 

determined at trial together with any liquidated damages allowed by Ohio Law;

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D. Awarding Plaintiff costs and disbursements and reasonable allowances for fees of 

counsel and experts, and reimbursement of expenses;

E. Awarding Plaintiff such other and further relief as the Court deems just and proper;

F. Issuing an injunction prohibiting Defendants from engaging in present, ongoing 

and future violations of the FLSA and Ohio Law;

G. Granting Plaintiff leave to amend to file additional claims for relief or different 

causes of action should information become available through investigation and discovery; and 

H. Rendering a judgment against Defendants for all damage, relief, or any other 

recovery whatsoever.

Respectfully submitted,

/s/ Matthew J.P. Coffman

Matthew J.P. Coffman (0085586)

COFFMAN LEGAL, LLC

1457 S. High St. 

Columbus, Ohio 43207

Phone: 614-949-1181

Fax: 614-386-9964

Email: mcoffman@mcoffmanlegal.com

Peter Contreras (0087530)

CONTRERAS LAW, LLC

PO Box 215

Amlin, Ohio 43002

Phone: 614-787-4878

Fax: 614-923-7369

Email: peter.contreras@contrerasfirm.com

Attorneys for Plaintiff

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JURY DEMAND

Plaintiff requests a trial by a jury of eight (8) persons.

/s/ Matthew J.P. Coffman

Matthew J.P. Coffman 

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