Former ABRA Employees Amend Complaint, Allege Company Violated 401(k) Protocol

An amended complaint has been filed in the case between ABRA Auto Body and Glass and two former employees, in which the employees are alleging that they were misclassified and therefore were denied overtime pay by the company. The former employees have added allegations that ABRA violated the Employee Retirement Income Security Act (ERISA) to the original complaint, which was filed in July 2007.

In the original complaint, filed by Clayton D. Halunen of Halunen & Associates on behalf of plaintiffs Thomas Hale and Justin Schreckenstein, the plaintiffs alleged that ABRA failed to pay overtime compensation in violation of the Fair Labor and Standards Act (FLSA), but now claim the company also violated ERISA in this alleged action.

Hale and Shreckenstein allege that because the defendant, ABRA, has been "the plan sponsor of a 401(k) plan within the meaning of ERISA … [it has] exercised actual responsibility, authority and/or control with regard to the crediting of compensation under the 401(k) plan." In short, the employees are alleging that had they received proper compensation for the overtime worked, their 401(k) programs also would have reflected these wages.

On October 19, ABRA received a fourth extension for the due date of its response-until December 18. At the time of this request, ABRA noted to the court that it is attempting mediation with the plaintiffs. (CLICK HERE for related story.)

Calls to Halunen have not been returned, and Joseph Sokolowski, who represents ABRA in the case on behalf of Fredrickson & Byron PA, has declined to comment on the case.

CLICK HERE for the full text of the amended complaint.

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