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Law360 (June 17, 2020, 6:56 PM EDT ) A former assistant manager at Sherwin-Williams is suing the paint manufacturer in Ohio federal court, alleging the company underpaid workers for overtime by failing to calculate regular bonuses and extra coronavirus pandemic pay into overtime rates.
Washington state resident Christopher Johnson filed his proposed collective action against The Sherwin-Williams Co. on Monday, saying he was an assistant manager for almost 20 years until May and was underpaid for his many overtime hours because his quarterly bonuses weren't factored into this overtime rate. He said the company violated the Fair Labor Standards Act by excluding the regular bonuses from his overtime rate and by excluding bonuses paid to workers since March for working during the pandemic.
Johnson's suit comes a month after Cleveland-based Sherwin-Williams and its California workers moved to settle a similar dispute in California federal court, agreeing the company would pay $3.65 million to end allegations it underpaid and overworked 5,700 store managers, assistant managers and other hourly employees.
"Defendant's conduct and practice has been and is willful, intentional, unreasonable, arbitrary and in bad faith," Johnson said in his suit.
Sherwin-Williams told Law360 on Wednesday that it does not comment on pending litigation.
Johnson's lawyer Josh Sanford of Sanford Law Firm said the Ohio suit differs from the one going through settlement in California because that one relied on California law.
"This lawsuit is for miscalculations of overtime rates," Sanford told Law360 on Wednesday regarding the Ohio case. "We don't know whether and when it might settle."
Johnson claims Sherwin-Williams employees regularly work overtime and that as an assistant manager, he also had to work one or two hours a week "off the clock" in order to meet performance goals and reduce expenses, often as the only worker who could operate a forklift.
"Defendant's failure to compensate plaintiff for his off-the-clock work resulted in additional overtime violations," Johnson said in his suit. "Defendant knew or showed reckless disregard for whether its actions violated the FLSA."
Johnson argues that under the law, nondiscretionary bonuses are included in the regular rate of pay, and therefore Sherwin-Williams violated the FLSA by not including all forms of compensation, such as bonuses, in the regular rate when calculating overtime pay.
Johnson isn't seeking a jury trial but wants compensation for all hourly Sherwin-Williams employees who earned a bonus during any week that they worked over 40 hours in the last three years. He estimates at least 400 workers are in the same position.
Sherwin-Williams should be made to pay eligible staff their unpaid overtime as well as liquidated damages, and cover the cost of the litigation, including attorney fees, Johnson said in his suit.
In the California suit, staff alleged Sherwin-Williams failed to pay for all hours worked as well as proper overtime wages and didn't provide law-mandated meal and rest periods, accurate wage statements or reimbursement for all work-related expenses.
Johnson is represented by Tess Bradford and Josh Sanford of Sanford Law Firm PLLC.
Current counsel information for Sherwin-Williams was not immediately available.
The case is Christopher Johnson v. The Sherwin-Williams Co., case number 1:20-cv-01305, in the U.S. District Court for the Northern District of Ohio.
--Additional reporting by Hannah Albarazi. Editing by Marygrace Murphy.
For a reprint of this article, please contact reprints@law360.com.
