1

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Anthony R. Strauss – SBN 72842

Aris E. Karakalos – SBN 240802

STRAUSS LAW GROUP, A Professional Corporation 

121 North Fir Street, Suite F

Ventura, California 93001

Telephone (805) 641.9992

Facsimile (805) 641.9993

ars@strausslawgroup.com

aek@strausslawgroup.com

Attorneys for Plaintiff, Brant E. Kinnsch

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRANT E. KINNSCH, an individual, 

Plaintiff,

v.

ZWICK, USA LP, and DOES 1 through 

100, inclusive,

Defendants.

Case No. 

COMPLAINT FOR:

1) FAILURE TO PAY 

OVERTIME AND 

DOUBLETIME PREMIUM 

WAGES; 

2) PAY STUB VIOLATIONS; 

3) UNFAIR COMPETITION;

4) FAILURE TO TIMELY PAY 

FINAL WAGES; and

5) FLSA VIOLATIONS

DEMAND FOR JURY TRIAL

TO ALL INTERESTED PARTIES HEREIN AND TO THEIR ATTORNEYS 

OF RECORD:

COME NOW, PLAINTIFF Brant E. Kinnsch (“Plaintiff”) and submits the 

following Complaint against ZWICK, USA LP and DOES 1 through 100, inclusive 

(collectively “Defendants”), and each of them as follows.

INTRODUCTION

1. Plaintiff began his employment as a Field Service Engineer at ZWICK, USA

LP (hereinafter “ZWICK”) on or about July 15, 2013. He was hired pursuant to an offer 
2

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

letter dated June 28, 2013 at an annual salary of $65,000 plus various benefits including 

participation in the Company’s bonus program. He resigned his employment effective 

July 1, 2016.

2. While Plaintiff was considered and paid as an exempt employee by ZWICK, 

his job duties did not consist of the exempt work under either Federal or California law. 

As a Field Service Engineer he repaired, maintained and calibrated testing machines that 

had been sold to customers of ZWICK. Testing involved various mechanical 

manipulations or measurements of the equipment including testing compression, bend 

testing, pull testing, pressure testing and similar operations. These tests were established 

protocols for the various items of equipment that he tested. Plaintiff was not involved in 

management or supervision of employees, was not involved in the administration or 

management of the business. Moreover, Plaintiff is not a professional within the meaning 

of the applicable exemptions. None of this work entailed duties that would qualify as 

exempt pursuant to California Wage and Hour law or the Federal Fair Labor Standards 

Act (“FLSA”). 

3. Plaintiff’s typical travel week started at 3:00 or 4:00 AM on Monday when 

he would travel from his home to the away location. Typically it would be 12 to 14 hours 

from portal to portal. Tuesday through Thursday generally involved 10 hour days with 

Friday being the return day. Typically, he would leave from the hotel at the worksite 

around 4:00 AM and would arrive home in Thousand Oaks, California late in the evening. 

These days were also typically 12 to 14 hour days. 

4. Between January 1, 2014 and July 1, 2016, while working in California, 

including travel to and from, Plaintiff worked approximately no less than 343.25 hours 

in excess of 8 in a day or 40 in a week and approximately no less than 34 hours in 

excess of 12 in a day or 8 on a seventh day. In addition to those hours, since September 

15, 2014, while working in the rest of the United States, he worked approximately no 

less than 602 hours of overtime based upon hours in excess of 40 in a week. 

5. Even though Plaintiff was paid a salary, under California law, he is entitled 
3

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to be paid one and one-half times his “regular rate of pay” for hours worked in excess of 

8 up to including twelve hours in a day, double his regular rate of pay for hours worked 

in excess of 12 in a day, one and one-half times his regular rate of pay for the first eight 

hours worked on the seventh day and double the rate for hours worked in excess of 8 on 

the seventh day. This applies to all work in the state of California. (See California Wage 

Order 4-2001section 3 (A) (1).) Under the Fair Labor Standards Act, for all work 

performed outside of California but within the United States, he is entitled to be paid one 

and one-half times his regular rate of pay for all hours worked in excess of 40 in a week. 

(29 USC §207(a).)

6. None of the exemptions from overtime under either California law or the 

FLSA apply to Plaintiff who should have been paid overtime premium pay in accordance 

with California law while in and travelling from and to California and pursuant to Federal 

law for all other work performed within the United States.

7. On or about August 30, 2016, Plaintiff made ZWICK aware of his intent to 

file a civil action against ZWICK for unpaid overtime premium pay under California law 

and the FLSA, and for unpaid double time under California law, liquidated damages 

under the FLSA, penalties pursuant to California Labor Code sections 203 and 226, 

attorneys’ fees, interest and related claims in connection with his employment ZWICK. 

On or about October 10, 2016, Plaintiff and ZWICK entered into a Tolling and Standstill 

Agreement to toll any statutes of limitations to preserve any claim existing as of 

September 15, 2016. 

VENUE AND JURISDICTION

8. Jurisdiction over Plaintiff’s federal claims is based upon (a) Section 16(b) 

of the Fair Labor Standards Act, 29 U.S.C. § 216(b), which authorizes employees to bring 

civil actions in courts of appropriate jurisdiction to recover damages for an employer’s 

failure to pay overtime wages as required by the FLSA; and (b) 29 U.S.C. §§ 1331 and 

1337. 

9. Venue in this district is proper pursuant to 28 U.S.C. § 1391(b). At all times 
4

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

material herein, Defendant ZWICK has been actively conducting business in the State of 

California and within the geographic area encompassing the Northern District of the State 

of California and Plaintiff performed the majority of his work in California for ZWICK 

in that District.

10. Jurisdiction over Plaintiff’s state law claims under the California Labor 

Code and the claim under section 17200 of the California Business and Professions Code 

are based upon this Court’s supplemental jurisdiction under 28 U.S.C. § 1367(a), because 

the state law claims are so related to Plaintiff’ federal claims that they form a part of the 

same case or controversy between Plaintiff and Defendants. 

THE PARTIES

11. At all times herein mentioned, and from approximately the period July 15, 

2013 until July 1, 2016, Plaintiff was an employee of Defendants, working for Defendants 

as a Field Service Engineer in the State of California and throughout the United States.

12. At all times herein mentioned, Plaintiff is informed and believes and, based 

on such information and belief, thereon alleges that Defendant ZWICK is an entity of 

unknown status with its United States headquarters in Kennesaw, Georgia that does 

business in the Central District of California. 

13. At all times material to this action, Defendants have been enterprises 

engaged in commerce or in the production of goods for commerce as defined by section

203(s)(1) of the FLSA, and have had a gross volume of sales exceeding $500,000.

14. At all times material to this action, Defendants have been an “employer” of 

the named Plaintiff, as defined by section 203(d) of the FLSA.

15. The true names and capacities, whether individual, corporate, associate, 

representative or otherwise, of the defendants identified herein as Does 1 through 100, 

inclusive, are unknown to Plaintiff, who therefore sue these defendants by said fictitious 

names. Plaintiff will amend this Complaint to allege the true names and capacities of 

Does 1 through 100 when they have been ascertained. Does 1 through 100 are in some 

manner legally responsible for the wrongs and injuries alleged herein.
5

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

16. Each of the Defendants acted as the agent or employee of the others and each 

acted within the scope of that agency or employment.

FIRST CAUSE OF ACTION

Failure To Pay Overtime And Doubletime Premium Wages

(Against All Defendants)

17. Plaintiff incorporates by reference and re-alleges each and every one of the 

allegations contained in the preceding and foregoing paragraphs of this Complaint as if 

fully set forth herein.

18. California law requires payment of overtime premium pay for all hours 

worked by non-exempt employees in excess of eight in one day or 40 hours in one week 

and for the first eight hours on the seventh-straight day of work in one workweek. Lab. 

Code § 510. It further requires payment of doubletime premium pay for all hours worked 

by non-exempt employees in excess of twelve hours in one day or in excess of eight hours 

on the seventh-straight day of work in a single workweek. Id.

19. Plaintiff regularly worked hours for which he was not paid overtime or 

doubletime premium wages, including for hours he worked in excess of eight in a day, 

40 in a week, and on the seventh straight day of work in a workweek. By way of example, 

Plaintiff regularly worked in excess of eight hours each day due to the nature of the 

business and the fact that he regularly had to travel to perform his job. 

20. Plaintiff seeks such overtime and doubletime premium wages owed to him 

for the three-year period measured backward from September 15, 2016 the date of the 

filing of the initial Complaint in this matter. (In the Unfair Business Practices cause of 

action stated herein, Plaintiff seeks restitution of unpaid overtime and doubletime wages 

due for the four-year period measured backward from September 15, 2016.)

21. The exact amount of overtime and doubletime premium wages owed will 

not be fully ascertained until discovery is completed. 

22. Labor Code section 218.6 states, “[I]n any action brought for the 

nonpayment of wages, the court shall award interest on all due and unpaid wages at the 
6

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

rate of interest specified in subdivision (b) of Section 3289 of the Civil Code, which shall 

accrue from the date that the wages were due and payable as provided in Part 1 

(commencing with Section 200) of Division 2.” Interest is also available under Labor 

Code section 1194. Plaintiff seeks such interest on all overtime and doubletime premium 

wages owed to him and the California Class for the three-year period measured backward 

from the date of the filing of the initial Complaint in this matter.

23. Pursuant to Labor Code section 1194, Plaintiff requests the Court to award 

Plaintiff’s reasonable attorney’s fees and costs incurred in this action. 

SECOND CAUSE OF ACTION

Pay Stub Violations

(Against All Defendants)

24. Plaintiff incorporates by reference and re-alleges each and every one of the 

allegations contained in the preceding and foregoing paragraphs of this Complaint as if 

fully set forth herein.

25. California Labor Code section 226 provides:

Every employer shall, semimonthly or at the time of each 

payment of wages, furnish each of his or her employees, either 

as a detachable part of the check, draft, or voucher paying the 

employee's wages, or separately when wages are paid by 

personal check or cash, an itemized statement in writing showing 

(1) gross wages earned, (2) total hours worked by the employee, 

except for any employee whose compensation is solely based on 

a salary and who is exempt from payment of overtime under 

subdivision (a) of Section 515 or any applicable order of the 

Industrial Welfare Commission, (3) the number of piece-rate 

units earned and any applicable piece rate if the employee is paid 

on a piece-rate basis, (4) all deductions, provided, that all 

deductions made on written orders of the employee may be 
7

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

aggregated and shown as one item, (5) net wages earned, (6) the 

inclusive dates of the period for which the employee is paid, (7) 

the name of the employee and his or her social security number, 

(8) the name and address of the legal entity that is the employer, 

and (9) all applicable hourly rates in effect during the pay period 

and the corresponding number of hours worked at each hourly 

rate by the employee.

26. In this case, Defendants have failed to provide such wage deduction 

statements to Plaintiff in that his wage deduction statements do not include, without 

limitation, his accurate gross wages earned, all overtime/doubletime hours worked, net 

wages earned, or all applicable hourly rates in effect during the pay period, and the 

corresponding number of hours worked at each hourly rate by the employee. Defendants 

have intentionally failed to put the information required by section 226(a) on the 

paycheck stubs. 

27. Pursuant to Labor Code section 226(e), damages are appropriate. At this 

time, Plaintiff believes and alleges that he is owed the maximum allowable penalty under 

section 226(e) because Defendants intentionally failed to provide adequate paycheck 

stubs. However, the exact amount of damages under Labor Code section 226(e) will not 

be fully ascertained until discovery is completed. 

28. Pursuant to Labor Code section 226(e), Plaintiff requests the court to award 

Plaintiff’s reasonable attorney’s fees and costs incurred by Plaintiff in this action.

THIRD CAUSE OF ACTION

Unfair Competition

(Against All Defendants)

29. Plaintiff incorporates by reference and re-alleges each and every one of the 

allegations contained in the preceding and foregoing paragraphs of this Complaint as 

though fully set forth herein.

30. This cause of action is being brought pursuant to California Business and 
8

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Professions Code section 17200 et seq. and California case law including Cortez v. 

Purolator Air Filtration Products Co., 23 Cal.App.4th 163 (2000).

31. It is alleged that Defendants have willfully failed to pay Plaintiff the statemandated overtime and doubletime premium wages and the FLSA-mandated overtime 

premiums for all such hours worked. It is also alleged that Defendants have violated 

California’s expense reimbursement laws. The failure to pay such wages and expenses

under state and federal law constitutes unfair business practices under California Business 

and Professions Code section 17200.

32. As a result of the conduct of Defendants, Defendants profited from breaking 

the law. Plaintiff seeks disgorgement of Defendants’ unlawfully obtained benefits (plus 

interest thereon) for the four-year period measured backward from September 15, 2016.

33. California Business and Professions Code section 17203, under the authority 

of which a restitutionary order may be made, provides: 

Any person who engages, has engaged, or proposes to engage in 

unfair competition may be enjoined in any court of competent 

jurisdiction. The court may make such orders or judgments, 

including the appointment of a receiver, as may be necessary to 

prevent the use of employment by any person of any practice 

which constitutes unfair competition, as defined in this chapter, 

or as may be necessary to restore to any person in interest any 

money or property, real or personal, which may have been 

acquired by means of such unfair competition.

34. As a result of the alleged aforesaid actions, Plaintiff has suffered injury in 

fact and has lost money as a result of such unfair competition.

35. In this case, it is requested that this Court order restitution of all unpaid 

wages found to be owing for the four-year period prior to September 15, 2016, up through 

the present, and issue all other appropriate equitable relief, including without limitation 

an order enjoining Defendants from continuing to treat the California Class as exempt 
9

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

from California’s overtime laws and, instead, to pay Plaintiff and members of the 

California Class overtime premiums for all overtime hours worked. 

FOURTH CAUSE OF ACTION

Failure To Timely Pay Wages At Termination

(Against All Defendants)

36. Plaintiff incorporates by reference and re-alleges each and every one of the 

allegations contained in the preceding and foregoing paragraphs of this Complaint as if 

fully set forth herein.

37. Labor Code section 201 provides, in relevant part, “If an employer 

discharges an employee, the wages earned and unpaid at the time of discharge are due 

and payable immediately.” Lab. Code § 201(a). Labor Code section 202 provides, in 

relevant part, “If an employee not having a written contract for a definite period quits his 

or her employment, his or her wages shall become due and payable not later than 72 hours 

thereafter, unless the employee has given 72 hours previous notice of his or her intention 

to quit, in which case the employee is entitled to his or her wages at the time of quitting.” 

Lab. Code § 202(a). Defendants did not pay immediately all wages earned and unpaid to 

Plaintiff upon his resignation. Defendants have refused and continue to refuse to pay said 

wages.

38. Pursuant to Labor Code section 203, Defendants have willfully failed to pay 

without abatement or reduction, in accordance with Labor Code sections 201 and 202 all 

of the overtime and doubletime wages of the Plaintiff as herein alleged. Defendants are 

aware that they owe the wages claimed by Plaintiff yet Defendants willfully failed to 

make payment. As a result, Plaintiff seeks wages and waiting-time penalties pursuant to 

Labor Code section 203. These penalties consist of up to 30 days of pay for Plaintiff at 

his regular rate of pay. 

39. Plaintiff has been available and ready to receive wages owed to him.

40. Plaintiff has never refused to receive any payment, nor has he been absent 

from their regular places of residence.
10

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

41. Defendants’ failure to pay wages due and owing Plaintiff, as indicated in 

prior paragraphs, was willful; Defendants have knowingly refused to pay any portion of 

the amount due and owning Plaintiff. 

FIFTH CAUSE OF ACTION

FLSA Violations

(Against All Defendants)

42. Plaintiff incorporates by reference and re-alleges each and every one of the 

allegations contained in the preceding and foregoing paragraphs of this Complaint as if 

fully set forth herein, except those paragraphs that are inconsistent with this cause of 

action brought pursuant to the FLSA.

43. The FLSA regulates, among other things, the payment of overtime pay by 

employers whose employees are engaged in 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).

44. At all relevant times, Defendants were an “employer” engaged in interstate 

commerce and/or in the production of goods for commerce, within the meaning of the 

FLSA, 29 U.S.C. § 203. At all relevant times, Plaintiff worked for Defendants.

45. Section 7(a)(1) of the FLSA, 29 U.S.C. § 207(a)(1), requires employers to 

pay non-exempt employees who work longer than forty (40) hours in a workweek one 

and one-half times the employee’s regular rate of pay for the hours worked in the 

workweek in excess of forty (40) hours. Defendants are, and were, subject to this 

requirement to pay Plaintiff one and one-half times his regular rate of pay for all hours 

worked in excess of forty (40) in a workweek. Defendants violated the FLSA by refusing 

to pay Plaintiff overtime as required by law. Defendants regularly worked Plaintiff more 

than 40 hours each workweek, and yet rather than pay overtime premiums, Defendants 

paid Plaintiff on a salary. 

46. Defendants’ violations of the FLSA as alleged herein have been done in a 

willful and bad faith manner such that Plaintiff is entitled to damages equal to the amount 
11

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

of overtime premium pay within the three years preceding September 15, 2016, plus 

periods of equitable tolling. As a result of the aforesaid willful violations of the FLSA, 

overtime compensation has been unlawfully withheld by Defendants from Plaintiff for 

which Defendants are liable under 29 U.S.C. § 216(b), together with an additional equal 

amount as liquidated damages, as well as interest, reasonable attorney’s fees and costs.

47. Plaintiff seeks damages according to proof in the amount of all unpaid 

overtime compensation owed to him, liquidated damages as provided by the FLSA, 29 

U.S.C. § 216(b), interest, and such other legal and equitable relief as the Court deems just 

and proper.

48. Plaintiff seeks recovery of attorney’s fees and costs to be paid by 

Defendants, as provided by the FLSA, 29 U.S.C. § 216(b).

WHEREFORE, Plaintiff, prays for relief under California law, as follows: 

1. For overtime and doubletime premium wages owed under California law 

according to proof;

2. For prejudgment interest pursuant to Labor Code sections 218.6 and 1194 

and Civil Code sections 3288 and 3291 on all amounts claimed;

3. For attorney’s fees and costs pursuant to Labor Code sections 218.5, 226, 

and 1194;

4. For waiting-time penalties under Labor Code section 203;

5. For statutory penalties under Labor Code section 226;

6. For an equitable order, ordering Defendants to pay Plaintiff all wages and 

interest he is owed;

7. For any and all injunctive relief this Court deems necessary pursuant to 

Business and Professions Code section 17203, including an injunction ordering 

Defendants to begin paying overtime premiums to their Field Service Engineers in 

California;

8. For a declaratory judgment declaring that Defendants have willfully and 

wrongfully violated their statutory and legal obligations and deprived Plaintiff of his
12

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

rights, privileges, protections, compensation, benefits, and entitlements under California 

law, as alleged herein;

9. For a complete and accurate accounting of all the compensation to which the 

Plaintiff is entitled;

10. For costs of suit; and

11. For any other and further relief that the Court considers just and proper.

WHEREFORE, Plaintiff prays for relief under the FLSA, as follows: 

12. For judgment that Plaintiff is a non-exempt employee entitled to protection 

under the FLSA;

13. For judgment against Defendants for violation of the overtime provisions of 

the FLSA;

14. For judgment that Defendants’ violations as described above were willful;

15. For an award in an amount equal to Plaintiff unpaid back wages at the 

applicable overtime rate;

16. For an award to Plaintiff for the amount of unpaid wages owed, liquidated 

damages and penalties where provided by law, and interest thereon, subject to proof at 

trial;

17. For an award of reasonable attorney’s fees and costs pursuant to 29 U.S.C. 

§ 216 and/or any other applicable laws;

18. For an award of prejudgment interest to the extent liquidated damages are 

not awarded;

19. For costs of suit; and

20. For such other and further relief, in law or equity, as this Court may deem 

appropriate and just.

///

///

///

///
13

COMPLAINT; DEMAND FOR JURY TRIAL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

REQUEST FOR JURY TRIAL

Plaintiffs hereby requests that this matter be tried by jury.

DATED: January 5, 2017 STRAUSS LAW GROUP,

A Professional Corporation

By:_______/S/_____________________

Anthony Strauss,

Attorneys for Plaintiff Brant E. Kinnsch