A former ASI Ltd. employee who filed suit against the company for allegations related to the Worker Adjustment and Retraining Notification (WARN) Act has amended the complaint to expand the suit to include two related companies, S & S Racing LLC and Winton Development LLC.
Shepherd and other members of the class are seeking unpaid wages and benefits for 60 calendar days, claiming that they were terminated as part of or as a result of a plant closing or mass layoff at ASI’s facility in Whitestown, Ind. The plaintiffs claim that they were not given 60 days’ advance notice and that ASI, S & S and Winton Development shared common owners, common officers and/or directors, had a dependency of operations and shared a unity of personnel policies.
“Therefore, all the defendants were the ‘employer’ of the plaintiff and the other similarly situated former employees under the WARN Act’s ‘single employer’ provision,” writes counsel for Shepherd. “As such, the defendants are jointly and severally liable under the WARN Act for the failure to provide the plaintiff and the other similarly situated former employees at least 60 days’ advance written notice of termination, as required by the WARN Act.”
Shepherd claims that on December 22, 2011, all three companies, acting as a single employer, ordered the termination of his and others’ employment—totaling approximately 232 to 249 employees as part of the plant closure.
Shepherd further alleges that on May 4 “ASI admitted to [the] court that no written notice was issued prior to the plant closing.”
“Defendants failed to pay the plaintiff and the other similarly situated employees their respective wages, salary, commissions, bonuses, accrued holiday pay and accrued vacation for sixty (60) days following their respective terminations and failed to make 401(k) contributions and provide them with health insurance coverage and other employee benefits,” continues the amended complaint.
With regard to the joint ownership of the companies, Shepherd alleges that Ken Smith and his wife, Cheryl, owned ASI, along with S & S and Winton; Ken Smith is alleged to have served as president of all three organizations and that they all had a dependency on one another’s operations. Likewise, Shepherd says that all three companies borrowed money from ASI’s top creditor—PNC Bank—and that each loan was cross-collateralized by the companies, so that if one company defaulted on a loan, they all did.
According to the complaint, S & S, a NASCAR craftsman truck company, provided a marketing platform for ASI and the company’s logo appeared on at least one of the company’s trucks; likewise, Shepherd claims ASI contributed approximately $400,000 of funding to S & S, “in spite of ASI’s own cash flow problems.’
Finally, the complaint alleges that all three companies ordered the plant closing/mass layoff when ASI closed in December 2011, leading to the alleged violation of the WARN Act.
The plaintiffs are seeking unpaid wages, accrued holiday pay, accrued vacation pay, accrued sick leave pay and “benefits which would have been paid for a period of 60 calendar days after the date of the [class] members’ terminations.”
Shepherd filed the original complaint last spring.