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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DOUGLAS CANAS, and )

VANESSA MESCHINO on behalf of )

themselves and all other plaintiffs similarly )

situated, )

Plaintiffs, )

)

v. ) Case No.: 20-CV-4937

)

SMITHFIELD PACKAGED )

MEATS CORP. ) Honorable Judge Robert Blakey

)

)

)

)

Defendant. )

AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT

NOW COMES Plaintiff Douglas Canas (“Canas”) and Plaintiff Vanessa Meschino

(“Vanessa”) (collectively “Plaintiffs”) on behalf of themselves and all other plaintiffs similarly

situated, by and through their attorneys, and for their Class and Collective Action Complaint

against Defendant Smithfield Packaged Meats Corp. (“Smithfield”) states as follows: 

Nature of the Action

1. The COVID-19 Pandemic has caused great risk and alarm to factory workers

throughout the United States and, in particular, to Defendant Smithfield’s employees. The BBC

recently referred to Smithfield as having “America’s biggest outbreak” of COVID-19.1 The

Kane County Health Department took the unusual step of shutting down a Smithfield facility as

a result of the COVID-19 outbreak.2 In South Dakota, it was reported that Smithfield infections

1 https://www.bbc.com/news/world-us-canada-52311877

2 https://www.chicagotribune.com/suburbs/aurora-beacon-news/ct-abn-smithfield-foods-covid-19-complaints-st20200716-juh2l5rmgfeqdjuxgqdozqtczi-story.html

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accounted for 55% of the COVID-19 infection rate in the entire state.

3

 And, during the first half

of 2020, there were alarming reports on NBC News of a Smithfield employee passing from

COVID-19.4 As a result of the allegedly unsafe working conditions, Smithfield employees filed

a highly-publicized lawsuit over workplace conditions.5 

2. Despite these dangerous work conditions, Smithfield still needed its workers to show

up to work at itsslaughterhouses and distribution centers because it is an enormous pork producer. 

As a result, during the Pandemic, it promised its workforce a $5 per hour “Responsibility Bonus”

to show up to work. This bonus was well-deserved: these workers were literally risking their

lives by potentially contracting COVID-19.

3. The law required that when Smithfield’s workers received the Responsibility Bonus,

their overtime rate (the so called “regular rate”) would also take this payment into account. 

However, Defendant did not factor the Responsibility Bonus into the overtime rate and, therefore,

substantially underpaid its workforce when they worked overtime. 

4. As a result, this civil action is brought by the above-named plaintiffs who brings this

class and collective action claim for overtime wages under the Fair Labor Standards Act, 29

U.S.C. § 201 et seq. (“FLSA”) pursuant to 29 U.S.C. § 216(b) and under the Illinois Minimum

Wage Law (“IMWL”), 820 ILCS § 105/1 et seq pursuant to Fed. R. Civ. Pro 23.

Parties

5. Plaintiffs worked as a hourly employees for Defendant at its Bolingbrook, Illinois

location.

3 https://www.bbc.com/news/world-us-canada-52311877

4 https://www.nbcnews.com/news/us-news/woman-heartbroken-smithfield-foods-response-grandfather-s-deathcoronavirus-n1202576

5 https://abcnews.go.com/US/smithfield-foods-employee-sues-working-conditions-amidcoronavirus/story?id=70334480

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6. Defendant Smithfield is a Delaware corporation headquartered at 200 Commerce

St. Smithfield, Virginia 23430. Smithfield is “a global food company with farms, facilities and

offices in the United States, Europe and Mexico.

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” This includes over 40 production plants, 6

distribution centers, 5 corporate offices, 20 Direct Store Delivery locations, and 16

slaughterhouses located in the United States.

7. Defendant is an enterprise engaged in commerce or in the production of goods for

commerce within the meaning of Section 203(s)(1)(A) of the FLSA.

8. During the last three years, Defendant’s annual gross volume of sales made or

business done has exceeded $500,000, exclusive of excise tax.

9. Defendant is the Plaintiffs’ “employer” as that term is defined by the FLSA. 29

U.S.C. § 203(d).

10. Defendant is the Plaintiffs’ “employer” as defined by the IMWL. 820 ILCS

105/3(c)

11. Plaintiffs were Defendant’s “employee” as that term is defined by the FLSA. 29

U.S.C. §203(e)(1)

12. Plaintiffs were Defendant’s “employee” as that term is defined by the IMWL. 820

ILCS 105/3(d)

Jurisdiction and Venue

13. Subject matter jurisdiction is conferred on this Court by Title 28 U.S.C. § 1337 and

by 29 U.S.C. § 216(b).

14. Venue is proper in this Judicial District as all of the events arising out of this case

arose in this Judicial District.

6 https://www.smithfieldfoods.com/about-smithfield/our-operations last visited August 17, 2020.

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Factual Allegations

15. Plaintiffs worked for Smithfield within the past three years.

16. To incentivize employees to work during the Covid-19 pandemic, Smithfield paid

Plaintiffs and other employees an additional premium rate per hour called “Responsibility

Bonus”. 

17. For instance, Plaintiffs received additional “Responsibility Bonus” of $5.00 per

hour for each non-overtime hour worked. By example: when Canas worked approximately 40

hours he would receive $200 (40 hours * $5 per hour), but during the work week of 7/6/2020-

7/12/2020 he worked 35.8 hours and received $179.40 (35.8 hours* $5.00 per hour).

18. Smithfield stated in an April 24, 2020 press release “During this pandemic, we’ve

added “Responsibility Bonus” premiumsto supplement [employee] base rates by more than $3.00

per hour on average.”7 

19. The “Responsibility Bonus” is given to “all of our production and distribution

center team members” Id.

20. In this same press release Smithfield claims that under its wage policies: “Overtime

wage rates are paid at one and one-half times base wage rates” Id.

21. However, the FLSA and IMWL require overtime wages of one and one-half times

employee’s “regular rate” of pay, not “base pay”, for all overtime hours.

22. The “Responsibility Bonus” should have been included when calculating Plaintiffs’

and other employees’ regular rate of pay when determining overtime compensation.

7 https://www.smithfieldfoods.com/press-room/company-news/smithfield-foods-addresses-misinformation-as-itconfronts-covid-19 last visited August, 17, 2020.

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23. The regular rate is computed by dividing an employee’s total compensation in the

workweek by the total hour worked in the workweek and the regular rate includes all

renumeration for employment paid to, or on behalf of, the employee.

24. Smithfield fails to include the “Responsibility Bonus” when calculating Plaintiffs’

and other employee’s overtime rates.

25. This failure results in Plaintiffs and others similarly situated being deprived of their

full overtime wages.

26. By way of example:

(a) During the pay period of 6/15/2020-6/21/2020 Canas’ base rate of pay

was $19.50 per hour. Canas worked 2.45 hours of overtime and received $200 in

“Responsibility Bonus”. However, his overtime rate was only $29.25 ($19.50 per

hour * 1.5). The overtime rate should have been $36.32 because the regular rate is

$24.21 per hour.8 This resulted in an underpayment of approximately $17.32;

(b) During the pay period of 6/22/2020-6/28/2020 Canas’ base rate of pay

was $19.50 per hour. He worked 8.35 hours of overtime and received $200 in

“Responsibility Bonus”. However, his overtime rate was only $29.25 and not

$35.459. This resulted in an underpayment of approximately $51.77.

27. Plaintiffs performed their job responsibilities for Defendant in the State of Illinois.

28. Other similarly situated employees have been employed by the Defendant and have

not been paid the required overtime wages at one and one-half times their regular rate of pay.

8 The total compensation is $1,027.78: (($19.50 per hour * 42.45 hours)+$200). Thus, the regular rate is $24.21

($1,027.78 / 42.45 hours); and the overtime rate is actually $36.32 (1.5 * $24.21).

9 The total compensation is $1,142.83: (($19.50 per hour * 48.35 hours)+$200). Thus, the regular rate is $23.64

($1,142.83/ 48.35 hours); and the overtime rate is actually $35.46 (1.5 * $23.64).

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29. The named Plaintiffs, and similarly situated employees, were not exempt from the

overtime provisions of the FLSA.

CLASS AND COLLECTIVE ACTION ALLEGATIONS

30. Plaintiffs seek to maintain this suit as a nationwide Collective pursuant to 29 U.S.C.

§216(b) and as a Class pursuant to Fed. R. Civ. Pro. 23 on behalf of himself and all other nonexempt employees who were not fully compensated for overtime hours worked.

31. Plaintiffs and other similarly situated current and former employees in the asserted

class regularly worked over 40 hours per week but were not fully paid their overtime hours at one

and one-half times their regular rate of pay.

32. Plaintiffs and asserted members of the Collective and Class are similarly situated

because, inter alia, they all were not paid the required overtime rate of one and one-half times

their regular rate of pay for all work in excess of 40 hours per week and had such rights

undermined and neglected by Defendant’s unlawful practices and policies

33. Defendant has encouraged, permitted, and required the Class and Collective to

work without required overtime compensation of one and one-half times the regular rate of pay.

34. Defendant has known that Plaintiffs and other members of the Class and Collective

have been deprived of required overtime compensation. Nonetheless, Defendant has operated

under a scheme to deny the Plaintiffs and the Class and Collective the required compensation of

one and one-half time their regular rate of pay for work in excess of 40 hours.

35. There are estimated to be thousands of other current and former employees within

the asserted class for this action during the material time who are similarly situated to Plaintiffs.

With such numbers of similar claims for unpaid compensation, a class action is superior

procedure for adjudicating such claims. Plaintiffs request that the Court authorize and supervise

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notice to the members of the asserted classes so that all claims may be resolved efficiently in a

single proceeding.

36. The records, if any, should be in the custody or control of Defendant concerning

the members of the asserted class, the number of hours actually worked by Plaintiffs and all other

similarly situated employees, and the compensation actually paid, or not paid, to such employees.

37. Plaintiffs will fairly and adequately protect the interests of each proposed class

member and has retained counsel that is experienced in class actions and employment litigation. 

Plaintiffs have no interest that is contrary to, or in conflict with, members of the class.

COUNT I - FAIR LABOR STANDARDS ACT

(Plaintiffs Individually and on Behalf of All

Similarly Situated Employees Pursuant to 29 U.S.C. §216)

38. The Plaintiffs re-allege and incorporates by reference paragraphs 1-37.

39. Under the FLSA, Plaintiffs and the Collective were entitled to be paid at the

overtime rate by Defendant for each hour worked in excess of 40 hours each work week at one

and one-half times their regular rate of pay.

40. The proper overtime rate is computed by multiplying 1.5 times an employee’s

regular hourly rate.

41. Defendant failed to compensate the Collective at the proper overtime rate for all the

work they performed in excess of 40 hours per week in violation of the FLSA. 

42. Upon information and belief, Defendant’s practices were not based upon

Defendant’s review of any policy or publication of the United States Department of Labor and

therefore was willful and deliberate.

43. Due to Defendant’s violations of the FLSA, the FLSA Class is entitled to recover

from Defendant their unpaid compensation, liquidated damages, reasonable attorney’s fees, and

the costs of this action, pursuant to 29 U.S.C.§216(b).

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WHEREFORE, the Plaintiffs requests the following relief, individually and on behalf of

similarly situated employees:

A. A declaratory judgement that Defendant violated the overtime wage provision of

the FLSA as to the Plaintiffs and similarly situated employees;

B. A declaratory judgment that Defendant’s violations of the FLSA was willful;

B. Unpaid overtime compensation;

B. An additional amount equal as liquidated damages;

C. Prejudgment interest;

D. Reasonable attorneys’ fees, and costs and disbursements of this action, pursuant to

29 U.S.C. § 216(b); and

E. Such other and further relief as this Court deems appropriate and just.

COUNT II - ILLINOIS MINIMUM WAGE LAW

(Plaintiffs Individually and on Behalf of All

Similarly Situated Employees Pursuant to Fed. R. Civ. Pro 23)

44. Plaintiffs hereby allege and incorporate Paragraph 1 through 43 of this Complaint,

as is fully set forth herein.

45. This count arises from Defendant’s violation of the overtime compensation

provisions of the IMWL, 820 ILCS § 105/1 et seq.

46. Under the IMWL, Defendant was and remains obligated to compensate Plaintiffs,

and similarly situated employees, for all hours worked in excess of 40 hours in any individual

work week. Overtime compensation must be paid at a rate of not less than one and one-half times

the regular rate of pay.

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47. Plaintiffs were regularly permitted, encouraged and/or required to work in excess

of 40 hours per week but was not compensated at the required one and one-half times his regular

rate for such overtime work.

48. By failing to pay overtime compensation due to Plaintiffs, Defendants willfully,

knowingly and/or recklessly violated the IMWL which requires overtime compensation of one

and one-half times the regular rate to be paid.

49. As a result of Defendant’s policy and practice of withholding overtime

compensation, Plaintiffs and similarly situated employees have been damaged in that they have

not received wages due to them pursuant to the IMWL.

WHEREFORE, Plaintiffs request the following relief individually and on behalf of

similarly situated employees:

A. A Declaratory Judgement that Defendant violated the minimum wage provisions of

the IMWL as to the Plaintiffs and similarly situated employees;

B. A declaratory judgement that Defendant’s violations of the IMWL were willful;

C. Unpaid overtime compensation;

D. A judgment of punitive damages, including treble damages and statutory interest of

5% per month, as provided by IMWL;

E. A judgement of reasonable attorney’s fees and costs incurred in filing this action;

and

F. Such other and further relief as this Court deems appropriate and just.

DEMAND FOR JURY TRIAL

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Plaintiffs demand a trial by jury on all questions of fact raised by this Complaint, including

FLSA claims.

Dated: September 8, 2020 Respectfully Submitted,

By: /s/ John Kunze

One of the Attorneys for the Plaintiffs

David J. Fish

John Kunze

THE FISH LAW FIRM P.C.

200 E 5

th Ave Suite 123

Naperville, IL 60563

(630)355-7590

www.fishlawfirm.com

docketing@fishlawfirm.com

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