Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 1 

Jon M. Egan, OSB 002467 

Jegan@eganlegalteam.com 

Jon M. Egan, PC 

547 Fifth Street 

Lake Oswego, OR 97034-3009 

Telephone: (503) 697-3427 

Fax: (866) 311-5629 

Attorney for Plaintiffs 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

JESSICA GESSELE, ASHLEY ORTIZ, 

NICOLE GESSELE, TRICIA TETRAULT, 

and CHRISTINA MAULDIN, both on 

behalf of themselves individually and, in 

addition, on behalf of the other similarly 

situated employees, 

Plaintiffs, 

vs.

JACK IN THE BOX INC., 

Defendant. 

Case No. 3:14-cv-01092-BR 

Declaration of Jon M. Egan in support 

of plaintiffs’ motion to certify Rule 

23(b)(3) Classes 

I, Jon M. Egan, hereby declare and say: 

1. I am the attorney for Plaintiffs in the above-captioned case. All statements herein 

are made of my own personal knowledge, and I am competent to testify thereto. 

2. Attached hereto as Exhibit 1 is a true and correct copy of the relevant excerpts 

from Jack in the Box’s responses to Plaintiffs’ Requests for Admission. 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 2 

Workers’ Benefit Fund 

3. Attached hereto as Exhibit 2 is a true and correct copy of the relevant excerpts 

from the February 14, 2012 deposition of Paul Barnard, former Senior Payroll 

Analyst for Jack in the Box. 

4. Attached hereto as Exhibit 3 is a true and correct copy of the relevant excerpts 

from the February 9, 2012 deposition of Sylvia DeChandt, former Director of 

Payroll Services for Jack in the Box. 

5. Attached hereto as Exhibit 4 is a true and correct copy of the relevant excerpts 

from the February 10, 2012 and February 16, 2012 deposition sessions of Barbara 

Klusek, then-current Payroll Manager at Jack in the Box and 30(b)(6) designee. 

6. Attached hereto as Exhibit 5 is a true and correct copy of the relevant excerpts 

from the February 8, 2012 and February 16, 2012 deposition sessions of Wendy 

Sanderlin, then-current Director of Payroll and Accounting Systems at Jack in 

the Box and 30(b)(6) designee. 

7. Attached hereto as Exhibit 6 is a true and correct copy of Bates page JITB 104123, 

a letter dated February 8, 2012 and received by me from the Oregon Department 

of Consumer and Business Services in response to inquiries regarding Jack in the 

Box’s Workers’ Benefit Fund payment history and the notice process that DCBS 

undergoes to inform the public and employment tax payers of each year’s new 

rates. 

8. Attached hereto as Exhibit 7 is a true and correct copy of Bates pages JITB 

104124–JITB 104125, a sample annual notice that DCBS sends out containing the 

following year’s Workers’ Benefit Fund assessment rate. This document was 

obtained from Jack in the Box in discovery. 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 3 

9. Attached hereto as Exhibit 8 is a true and correct copy of an authenticating 

subpoena from BSI’s custodian of records, as well as excerpts from the 

documents produced by BSI, showing the notices that were sent to Jack in the 

Box of the new Workers’ Benefit Fund rates. 

10. Attached hereto as Exhibit 9 is a true and correct copy of Bates page JITB 

127004, a sample from the redacted spreadsheets produced by Jack in the Box 

covering Oregon employees. Exhibit 9 has two pay periods highlighted, each with 

a box drawn around it. In the first box, we see both a shoe deduction (“SFC”) and 

a wrongful Workers’ Benefit Fund overdeduction (“WC-OR”) in a week in which 

the employee worked overtime. In the second box, we see both a shoe deduction 

and a wrongful Workers’ Benefit Fund overdeduction in a week in which (even 

using Jack in the Box’s own hours worked total, without accounting for any 

unpaid breaks) the employee made less than minimum wage due to the 

deductions. 

Shoes 

11. Attached hereto as Exhibit 10 is a true and correct copy of the relevant excerpts 

from the January 30, 2012 deposition of Donna Basham, a then-current District 

Manager with Northwest Group (a Jack in the Box franchisee that owns multiple 

restaurants in Oregon), who was previously a corporate employee of Jack in the 

Box at various times in the positions of Assistant Manager, Restaurant Manager, 

Associate Area Coach and Area Coach. 

12. Attached hereto as Exhibit 11 is a true and correct copy of the relevant excerpts 

from the February 6, 2012 deposition of Gene James, then-current Director of 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 4 

Asset Protection for Jack in the Box and 30(b)(6) designee. 

13. Attached hereto as Exhibit 12 is a true and correct copy of the relevant excerpts 

from the February 8, 2012 deposition of Shelly Mosteller, then-current 

Merchandising Manager for Jack in the Box and 30(b)(6) designee. 

14. Attached hereto as Exhibit 13 is a true and correct copy of the relevant excerpts 

from the February 7, 2012 deposition of Susan Pettijohn, then-current HR 

Project Manager for Jack in the Box and 30(b)(6) designee. 

15. Attached hereto as Exhibit 14 is a true and correct copy of the relevant excerpts 

from the February 10, 2012 deposition of Leanne Tellez, then-current Payroll 

Representative 2 at Jack in the Box and 30(b)(6) designee. 

16. Attached hereto as Exhibit 15 is a true and correct copy of the relevant excerpts 

from the January 31, 2012 deposition of Jeffrey Tennant, then-current Area 

Coach for Jack in the Box and 30(b)(6) designee. 

17. Attached hereto as Exhibit 16 is a true and correct copy of Bates page JITB 

100218, the shoe policy that preceded Jack in the Box’s 2002 Safety Symposium. 

18. Attached hereto as Exhibit 17 is a true and correct copy of Bates page JITB 

100257, Jack in the Box’s HACCP food safety inspection form that incorporates 

the Uniform, Appearance and Grooming standards. 

19. Attached hereto as Exhibit 18 is a true and correct copy of Bates pages JITB 

101789 and JITB 103402, which deal with the incorporation of the slip-resistant 

shoe requirement into the restaurant’s QFC food safety inspection. The difficultto-read line reads “SLIP-RESISTANT FOOTWEAR WORN (6 points)”. 

20. Attached hereto as Exhibit 19 is a true and correct copy of Bates pages JITB 

101811 and 101815, the Managing Safety course for Managers describing a 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 5 

fictional accident by an employee and asking the management trainee whether he 

was wearing Shoes for Crews. 

21. Attached hereto as Exhibit 20 is a true and correct copy of the Restaurant 

Manager’s Incident Report of Employee Injury, Bates page JITB 101924, the 

standard injury report for managers to fill out after any injury, which specifically 

asks whether the injured person was wearing Shoes for Crews. 

22. Attached hereto as Exhibit 21 is a true and correct copy of Bates pages JITB 

102668 and JITB 102672, excerpts from the Food Safety Computer-Based 

Training module, which instructs employees to check their uniforms in the 

mirror as part of food safety. 

23. Attached hereto as Exhibit 22 is a true and correct copy of Bates pages JITB 

102731–JITB 102733 and JITB 102743–JITB 102745, Safety and Security video 

scripts from 2005 and 2009, wherein the voiceover says “approved shoes” and 

the picture on the screen is of Shoes for Crews. 

24. Attached hereto as Exhibit 23 is a true and correct copy of Bates pages JITB 

102837, JITB 102937 and JITB 102989, the sections of Jack in the Box’s Crew 

On-Boarding CBT scripts from 2004, 2005 and 2011. Each of these scripts tells 

the employee, “You’re responsible for providing your own shoes. You must wear 

company-approved, slip-resistant footwear.” It does NOT tell them that they have 

the option of wearing company-provided slip-on shoe guards instead of buying 

their own shoes. 

25. Attached hereto as Exhibit 24 is a true and correct copy of Bates pages JITB 

103413–JITB 103414, excerpts from the 2002 Safety Program presentation. They 

show the advantages and disadvantages of Shoes for Crews and the main 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 6 

competitor they were considering as an alternative shoe provider. A disadvantage 

of the competitor was that it does not provide a $2 “rebate,” and listed directly 

under that disadvantage was the fact that its shoes are on average $2 per pair 

cheaper than Shoes for Crews. The advantages of Shoes for Crews were that it 

offers the medical payment indemnity program and the $2 rebate. 

26. Attached hereto as Exhibit 25 is a true and correct copy of the authenticating 

Declaration from Shoes for Crews’s records custodian (stating that there is no 

written contract or agreement containing the $2-per-pair “rebate” terms), as well 

as the accompanying documents laying out the terms of the indemnity agreement 

(only shoes purchased through payroll deduction qualify; the slip-on shoe guards 

are excluded) and breaking down the over $1,000,000 in “rebates” paid to Jack 

in the Box since 2003. 

27. Attached hereto as Exhibit 26 is a true and correct copy of the relevant excerpts 

from the February 7, 2012 deposition of Susan Burtchett, then-current Manager 

of Restaurant Systems for Jack in the Box and 30(b)(6) designee. 

28. Attached hereto as Exhibit 27 is a true and correct copy of the relevant excerpts 

from the February 13, 2012 deposition of Dianne Evans, then-current Senior 

Business Systems Analyst and 30(b)(6) designee. 

29. Attached hereto as Exhibit 28 is a true and correct copy of the relevant excerpts 

from the February 6, 2012 deposition of Shelly Rohlfs, then-current People and 

Organizational Effectiveness Manager for Jack in the Box and 30(b)(6) designee. 

Franchise Transfer 

30. Attached hereto as Exhibit 29 is a true and correct copy of the December 6, 2013 

Declaration of then-Jack in the Box in-house counsel James Stubblefield, Dkt. 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 7 

243 in the Gessele I case, 3:10-cv-0961-BR, laying out the dates that the various 

groups of Oregon stores were transferred to franchisee operation. 

Unpaid Breaks 

31. Attached hereto as Exhibit 30 is a true and correct copy of sample On-Duty Meal 

Policy agreements agreed to by Plaintiffs. 

32. Attached hereto as Exhibit 31 is a true and correct copy of Bates page JITB 

102524–JITB 102525, an activity from the Timekeeping section of the Labor 

Management portion of the Assistant Manager Training Program Workbook, 

which asks the trainee, “What is the policy for punching in/out for breaks,” and 

JITB 102631, the suggested answer, “Employees must clock out and in for meal 

breaks if they are totally relived [sic] of duty during the meal break. If meal 

breaks are interrupted by calls to duty, then entire meal break must be counted as 

hours worked.” 

33. Attached hereto as Exhibit 32 is a true and correct copy of excerpts from Jack in 

the Box’s payroll department manual produced in discovery, identifying 

“Franchised” as one of the reasons for termination of an employee, and also that 

“meal breaks are 24 min. or greater in the state WA and 20 min. or greater in all 

other states. All other breaks are rest breaks which are paid.” 

34. Attached hereto as Exhibit 33 is a true and correct copy of Bates page 129043, the 

sections of the Kronos Timekeeping CBT scripts that reads, “Employees must 

clock out and in for meal breaks if they are totally relieved of duty during the 

meal break. If meal breaks are interrupted by calls to duty, the entire meal break 

must be counted as hours worked.” 

35. Attached hereto as Exhibit 34 are true and correct copies of various versions of 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 8 

Jack in the Box’s CBT requirements for different levels of employees, showing 

that employees and managers are required to learn Jack in the Box’s timekeeping 

policies. Pages 2–7 were marked “Confidential” by Jack in the Box, but they are 

taken from publicly available Franchise Disclosure Documents (FDDs) and 

therefore not covered by the Stipulated Protective Order on file [Dkt. 43 at ¶ 

9(a)]. 

36. Attached hereto as Exhibit 35 is a true and correct copy of excerpts from Jack in 

the Box’s Franchise Disclosure Document and attached exhibits, showing that 

each store is required to use Jack in the Box’s timekeeping software. Like the 

FDD excerpts in Exhibit 34, the pages of Exhibit 35 were marked “Confidential” 

by Jack in the Box, but they are taken from publicly available Franchise 

Disclosure Documents (FDDs) and therefore not covered by the Stipulated 

Protective Order on file [Dkt. 43 at ¶ 9(a)]. 

37. Attached hereto as Exhibit 36 is a true and correct copy of an image captured 

from Jack in the Box’s electronic CBT program, electronic file name 

UpdatingTimecards_UpdateTimecardDemo3.swf, showing a sample image from 

the Kronos back-office screen. 

38. Attached hereto as Exhibit 37 is a true and correct copy of a page produced by 

Jack in the Box in discovery, showing the time punches and pay information for 

plaintiff Tricia Tetrault (f/k/a Tricia Cortes Cruz) for the pay period ending 

October 15, 2006. 

39. Attached hereto as Exhibit 38 is a true and correct copy of Bates Page JITB 

103204, Jack in the Box’s timekeeping policy poster regarding clock-ins and 

clock-outs under the Kronos timekeeping system. 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 9 

40. Attached hereto as Exhibit 39 is a true and correct copy of excerpts from Jack in 

the box’s deposition of plaintiff Christina Mauldin (f/k/a Christina Luchau). 

41. Attached hereto as Exhibit 40 is a true and correct copy of an excerpt from Jack 

in the Box’s Jack’s Timekeeping Manager Training Participant’s Guide, showing 

their responsibility to daily review the employees’ time punches for long breaks 

and short meal periods. 

42. Attached hereto as Exhibit 41 is a true and correct copy of an excerpt from Jack in 

the Box’s CBT class, regarding the manager override requirement to clock back in 

early from meal periods in the new Jack’s Timekeeping system. 

43. Attached hereto as Exhibit 42 is a true and correct copy of the quiz from the 

Jack’s Timekeeping CBT regarding the override requirement for employees to 

clock back in early from meal periods. 

44. Attached hereto as Exhibit 43 is a true and correct copy of excerpts from Jack in 

the Box’s discovery production laying out the descriptions of the time codes in the 

new Jack’s Timekeeping system; the graphic on page 3 is a true and correct 

screen print from the Jack’sTimekeepingOverview_Terminology.swf CBT file. 

45. Attached hereto as Exhibit 44 is a true and correct PDF copy of an excerpt from a 

Jack in the Box internal training PowerPoint presentation regarding the new 

Jack’s Timekeeping system, showing how managers access the Jack’s 

Timekeeping software. 

46. Attached hereto as Exhibit 45 is a true and correct PDF copy of another excerpt 

from a Jack in the Box internal training PowerPoint presentation regarding the 

new Jack’s Timekeeping system, showing how managers access the Jack’s 

Timekeeping software. 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 10 

47. Attached hereto as Exhibit 46 is a true and correct PDF copy of an excerpt from 

another Jack in the Box internal training PowerPoint presentation regarding the 

new Jack’s Timekeeping system, produced in discovery as electronic file “Jack’s 

Timekeeping -Payroll Guide.pptx”. 

48. Attached hereto as Exhibit 47 is a true and correct PDF copy of the electronic 

spreadsheet produced by Jack in the Box in discovery, file name “20101217 Pay 

rule summary with calc group explanations.xlsx”, which explains the break and 

meal calculation rules for the different Calc Groups, as well as which employees 

each Calc Group represents. 

49. Attached hereto as Exhibit 48 is a true and correct copy of excerpts from Jack in 

the Box training materials, which shows the time code breakdown for a 35-

minute rest period, and contains a 9-minute meal period for the training 

managers to practice entering (Bates Pages JITB 109592 and JITB 109611). 

50. The indications on pages 28–29 of the Memorandum of how many employees 

were paid late on the transfer dates for franchised stores are summaries created 

by my office, summarizing voluminous records produced by Jack in the Box in 

discovery; they incorporate transfer dates from Mr. Stubblefield’s Declaration 

(Exhibit 29 hereto), the identification of which stores were transferred on which 

dates produced by Jack in the Box in discovery as JITB2 000779, as well as the 

thousands of pages of redacted payroll spreadsheets (a sample of which is 

included as Exhibit 9 hereto). 

51. The tables in the Memorandum showing which plaintiffs had which deductions 

or unpaid breaks in which pay periods were created by my office to summarize 

voluminous records produced by Jack in the Box in discovery. They incorporate 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 11 

information from discovery produced in Gessele I as well as discovery produced 

in Gessele II. By definition, Jack in the Box already has all of the documents from 

which these summaries were prepared and can check the summaries against 

those original documents if it wishes. 

52. Attached hereto as Exhibit 49 is the August 1, 2011 Declaration of BOLI Wage 

and Hour Division Administrator Christine Hammond Dec, confirming that the 

June 2010 changes to O.A.R. 839-020-0050 were intended to clarify, not change, 

BOLI’s long-held interpretation that meal periods must be paid unless they are at 

least 30 minutes long. 

Adequacy of Representation 

53. I am the former Head Page of the United States Senate and a graduate of Yale 

University and the University of Texas School of Law. I am admitted in Oregon 

state court as well as the United States District Court for the District of Oregon 

and the United States Court of Appeals for the Ninth Circuit. I specialize in wage 

and hour collective and class action cases and have extensive experience in this 

area. I regularly field wage and hour questions from my colleagues in the Bar, and 

they refer me wage and hour cases on a regular basis. I am a member of the 

national Wage and Hour Clearinghouse (an invitation-only professional 

association open only to attorneys who exclusively practice wage-and-hour law 

on behalf of plaintiffs); the Low-Wage Workers Legal Network; the Employment 

Law Section of the Oregon Trial Lawyers Association; the Wage and Hour and 

Class and Collective Sections of the National Employment Lawyers Association; 

the Employment and Litigation Sections of the Oregon State Bar Association; and 

the Rule 23, Class Actions and Derivative Suits, Employment and Labor 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 12 

Relations, and Employment Law Committees of the Litigation Section of the 

American Bar Association. I have also spoken at events, edited pamphlets, been 

the subject of local and national media coverage regarding wage-and-hour cases, 

and provided pro bono legal advice and assistance on wage and hour issues to 

nonprofit organizations such as the Portland Restaurant Workers Association. 

While working as an associate attorney at the law firm of Bailey Pinney & 

Associates LLC, I was employed exclusively for wage and hour individual and 

collective and class action cases, including acting as one of the counsel of record 

in McElmurry et al. v. US Bank N.A., USDC No. 3:04-cv-00642-HA. Since 

leaving Bailey Pinney, I have been lead counsel on the following wage and hour 

collective and class action cases: Cooper v. Thomason et al., USDC No. 3:06-cv01018-KI; Nielsen v. American Home Mortgage Corp., USDC No. 6:06-cv-01161-

AA; Richins v. Jack Fabel et al., Multnomah County Case No. 0708-08879; 

Jackson v. Plew et al., Multnomah County Case No. 0712-15516, USDC No. 3:08-

cv-00099-BR (after removal); Rother et al. v. Lupenko et al., USDC No. 3:08-cv161-MO / Ninth Circuit No. 11-35922 (first appeal) / Ninth Circuit No. 14-35771 

(second appeal); Cumbie v. Woody Woo, Inc. et al., USDC No. 3:08-cv-504-PK, 

Ninth Circuit No. 08-35718; Lopes et al. v. Bush Gardens of Oregon, Inc. et al., 

USDC No. 3:08-cv-1492-HU; Di Giovanni et al. v. Alu, Inc. et al., USDC No. 

3:09-cv-314-PK; Norris et al. v. Butler Investments, Inc. et al., USDC No. 3:09-

cv-339-AC; Jones et al. v. Columbia Helicopters, Inc., USDC No. 3:09-cv-691-

PK; Perillo et al. v. Conklin et al., USDC No. 3:10-cv-359-ST; Weir et al. v. Jolie 

et al., USDC No. 3:10-cv-898-HA; Fredrickson et al. v. Starbucks Corporation, 

Multnomah County No. 1212-15734 / USDC No. 3:13-cv-29-HU / Ninth Cir. No. 
Dec. of Jon M. Egan in Support of Plaintiffs’ Motion to Certify Page 13 

13-36067; Chastain et al. v. Cam et al., USDC No. 3:13-cv-1802-SI; Allison et al. 

v. Dolich et al., USDC No. 3:14-cv-01005-AC (federal case) / Multnomah County 

No. 14CV07294 / USDC No. 3:14-cv-1179-AC (on removal, then remanded) / 

NLRB Nos. 19-CA-131696 and 19-CA-132787; Safaty v. Columbia Medical Clinic, 

P.C. et al., Multnomah County No. 14CV09397; Wright v. Special Logistics 

Portland LLC et al., USDC no. 3:15-cv-02058-SB; Duffard v. Vibrant Table 

Catering and Events, Inc., Multnomah County No. 16CV15430; Rodgers v. 

Canby Post No. 122, The American Legion, USDC No. 3:16-cv-02381-PK; 

Brinkmann v. ABM Onsite Services – West, Inc., USDC No. 3:17-cv-00275-BR / 

Multnomah County No. 17CV06683; Wesphal v. Ed’s Mufflers Unlimited, Inc., 

USDC No. 3:17-cv-00299-YY / Multnomah County No. 17CV07802; Astle v. Dave 

& Buster’s Management Corporation, Inc., Multnomah County No. 17CV08556, 

as well as numerous individual wage and hour cases. 

DATED this 1st day of March, 2017 

I HEREBY DECLARE THAT THE ABOVE STATEMENT IS TRUE TO THE BEST OF 

MY KNOWLEDGE AND BELIEF, AND THAT I UNDERSTAND IT IS MADE FOR USE 

AS EVIDENCE IN COURT AND IS SUBJECT TO PENALTY FOR PERJURY. 

JON M. EGAN, P.C. 

/s/ Jon M. Egan 

 

Jon M. Egan, OSB #002467 

(503) 697-3427