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1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP ELECTRONICALLY
Norman B. Blumenthal (State Bar #068687) FILED
2 Kyle R. Nordrehaug (State Bar #205975) Superior Court of California,
County of San Francisco
Aparajit Bhowmik (State Bar #248066)
3 Nicholas J. De Blouw (State Bar #280922) 05/06/2024
Piya Mukherjee (State Bar #274217) Clerk of the Court
BY: AUSTIN LAM
4 piya@bamlawca.com Deputy Clerk
2255 Calle Clara
5 La Jolla, CA 92037
Telephone: (858)551-1223
6 Facsimile: (858) 551-1232
Website: www.bamlawca.com
7
Attorneys for Plaintiff
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SAN FRANCISCOCGC-24-614434
10
SAMUEL GALLAGHER-STEVENS, an individual, Case No. ____________________
11 on behalf of himself and on behalf of all persons CLASS ACTION COMPLAINT FOR:
similarly situated, 1. UNFAIR COMPETITION IN VIOLATION OF
12 CAL. BUS. & PROF. CODE §§ 17200;
2. FAILURE TO PAY MINIMUM WAGES IN
13 VIOLATION OF CAL. LAB. CODE §§ 1194, 1197 &
Plaintiff, 1197.1;
14 3. FAILURE TO PAY OVERTIME WAGES IN
vs. VIOLATION OF CAL. LAB. CODE § 510;
15 4. FAILURE TO PROVIDE REQUIRED MEAL
INDEPENDENT LIVING SYSTEMS, LLC., a PERIODS IN VIOLATION OF CAL. LAB. CODE §§
16 Limited Liability Company; and DOES 1 through 50, 226.7 & 512 AND THE APPLICABLE IWC WAGE
inclusive, ORDER;
17 5. FAILURE TO PROVIDE REQUIRED REST
PERIODS IN VIOLATION OF CAL. LAB. CODE §§
18 226.7 & 512 AND THE APPLICABLE IWC WAGE
Defendants. ORDER;
19 6. FAILURE TO PROVIDE ACCURATE
ITEMIZED STATEMENTS IN VIOLATION OF
20 CAL. LAB. CODE § 226;
7. FAILURE TO REIMBURSE EMPLOYEES FOR
21 REQUIRED EXPENSES IN VIOLATION OF CAL.
LAB. CODE § 2802;
22 8. FAILURE TO PROVIDE WAGES WHEN DUE IN
VIOLATION OF CAL. LAB. CODE §§ 201, 202
23 AND 203;
9. FAILURE TO PAY SICK PAY WAGES IN
24 VIOLATION OF CAL. LAB CODE §§201-203, 233,
246;
25 10. DISCRIMINATION AND RETALIATION IN
VIOLATION OF FEHA; and,
26 11. WRONGFUL TERMINATION IN VIOLATION
OF PUBLIC POLICY.
27 DEMAND FOR A JURY TRIAL
28
1
CLASS ACTION COMPLAINT
1 Samuel Gallagher-Stevens (“PLAINTIFF”), an individual, on behalf of himself and all
2 other similarly situated current and former employees alleges on information and belief, except
3 for his own acts and knowledge which are based on personal knowledge, the following.
4
5 THE PARTIES
6 1. Independent Living Systems, LLC. (“DEFENDANT”) is a limited liability
7 company that at all relevant times mentioned herein conducted and continues to conduct
8 substantial business in California.
9 2. DEFENDANT provides healthcare services in California.
10 3. PLAINTIFF was employed by DEFENDANT in California from May 2, 2023 to
11 March 13, 2024 and was at all times classified by DEFENDANT as a non-exempt employee,
12 paid on an hourly basis, and entitled to the legally required meal and rest periods and payment
13 of minimum and overtime wages due for all time worked.
14 4. PLAINTIFF brings this Class Action on behalf of himself and a California class,
15 defined as all individuals who are or previously were employed by DEFENDANT in California,
16 including any employees staffed with DEFENDANT by a third party, and classified as non-
17 exempt employees (the “CALIFORNIA CLASS”) at any time during the period beginning four
18 (4) years prior to the filing of this Complaint and ending on the date as determined by the Court
19 (the “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim
20 of CALIFORNIA CLASS Members is under five million dollars ($5,000,000.00).
21 5. PLAINTIFF brings this Class Action on behalf of himself and a
22 CALIFORNIA CLASS in order to fully compensate the CALIFORNIA CLASS for their
23 losses incurred during the CALIFORNIA CLASS PERIOD caused by DEFENDANT’s
24 policy and practice which failed to lawfully compensate these employees. DEFENDANT’s
25 policy and practice alleged herein was an unlawful, unfair and deceptive business practice
26 whereby DEFENDANT retained and continues to retain wages due PLAINTIFF and the
27 other members of the CALIFORNIA CLASS. PLAINTIFF and the other members of the
28 CALIFORNIA CLASS seek an injunction enjoining such conduct by DEFENDANT in the
2
CLASS ACTION COMPLAINT
1 future, relief for the named PLAINTIFF and the other members of the CALIFORNIA
2 CLASS who have been economically injured by DEFENDANT’s past and current unlawful
3 conduct, and all other appropriate legal and equitable relief.
4 6. The true names and capacities, whether individual, corporate, subsidiary,
5 partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are
6 presently unknown to PLAINTIFF who therefore sues these Defendants by such fictitious
7 names pursuant to Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this
8 Complaint to allege the true names and capacities of Does 1 through 50, inclusive, when
9 they are ascertained. PLAINTIFF is informed and believes, and based upon that information
10 and belief alleges, that the Defendants named in this Complaint, including DOES 1 through
11 50, inclusive, are responsible in some manner for one or more of the events and happenings
12 that proximately caused the injuries and damages hereinafter alleged.
13 7. The agents, servants and/or employees of the Defendants and each of them
14 acting on behalf of the Defendants acted within the course and scope of his, her or its
15 authority as the agent, servant and/or employee of the Defendants, and personally
16 participated in the conduct alleged herein on behalf of the Defendants with respect to the
17 conduct alleged herein. Consequently, the acts of each Defendant are legally attributable to
18 the other Defendants and all Defendants are jointly and severally liable to PLAINTIFF and
19 the other members of the CALIFORNIA CLASS, for the loss sustained as a proximate result
20 of the conduct of the Defendants’ agents, servants and/or employees.
21
22 THE CONDUCT
23 8. Pursuant to the Industrial Welfare Commission Wage Orders, DEFENDANT
24 was required to pay PLAINTIFF and CALIFORNIA CLASS Members for all their time
25 worked, meaning the time during which an employee is subject to the control of an
26 employer, including all the time the employee is suffered or permitted to work.
27 DEFENDANT requires PLAINTIFF and CALIFORNIA CLASS Members to work without
28 paying them for all the time they are under DEFENDANT’s control. Among other things,
3
CLASS ACTION COMPLAINT
1 DEFENDANT requires PLAINTIFF to work while clocked out during what is supposed to
2 be PLAINTIFF’s off-duty meal break. PLAINTIFF was from time to time interrupted by
3 work assignments while clocked out for what should have been PLAINTIFF’s off-duty meal
4 break. DEFENDANT, as a matter of established company policy and procedure, administers
5 a uniform practice of rounding the actual time worked and recorded by PLAINTIFF and
6 CALIFORNIA CLASS Members, always to the benefit of DEFENDANT, so that during the
7 course of their employment, PLAINTIFF and CALIFORNIA CLASS Members are paid less
8 than they would have been paid had they been paid for actual recorded time rather than
9 “rounded” time. Additionally, DEFENDANT engages in the practice of requiring
10 PLAINTIFF and CALIFORNIA CLASS Members to perform work off the clock in that
11 DEFENDANT, as a condition of employment, required these employees to submit to
12 mandatory temperature checks and symptom questionnaires for COVID-19 screening prior
13 to clocking into DEFENDANT’s timekeeping system for the workday. As a result,
14 PLAINTIFF and other CALIFORNIA CLASS Members forfeit minimum wage, overtime
15 wage compensation, and off-duty meal breaks by working without their time being correctly
16 recorded and without compensation at the applicable rates. DEFENDANT’s policy and
17 practice not to pay PLAINTIFF and other CALIFORNIA CLASS Members for all time
18 worked, is evidenced by DEFENDANT’s business records.
19 9. State and federal law provides that employees must be paid overtime and meal
20 and rest break premiums at one-and-one-half times their “regular rate of pay.” PLAINTIFF
21 and other CALIFORNIA CLASS Members are compensated at an hourly rate plus incentive
22 pay that is tied to specific elements of an employee’s performance.
23 10. The second component of PLAINTIFF’s and other CALIFORNIA CLASS
24 Members’ compensation is DEFENDANT’s non-discretionary incentive program that paid
25 PLAINTIFF and other CALIFORNIA CLASS Members incentive wages based on their
26 performance for DEFENDANT. The non-discretionary incentive program provided all
27 employees paid on an hourly basis with incentive compensation when the employees met the
28 various performance goals set by DEFENDANT. However, when calculating the regular
4
CLASS ACTION COMPLAINT
1 rate of pay in order to pay overtime and meal and rest break premiums to PLAINTIFF and
2 other CALIFORNIA CLASS Members, DEFENDANT failed to include the incentive
3 compensation as part of the employees’ “regular rate of pay” for purposes of calculating
4 overtime pay and meal and rest break premium pay. Management and supervisors described
5 the incentive program to potential and new employees as part of the compensation package.
6 As a matter of law, the incentive compensation received by PLAINTIFF and other
7 CALIFORNIA CLASS Members must be included in the “regular rate of pay.” The failure
8 to do so has resulted in a underpayment of overtime compensation and meal and rest break
9 premiums to PLAINTIFF and other CALIFORNIA CLASS Members by DEFENDANT.
10 11. As a result of their rigorous work schedules, PLAINTIFF and other
11 CALIFORNIA CLASS Members were from time to time unable to take thirty (30) minute
12 off duty meal breaks and were not fully relieved of duty for their meal periods. PLAINTIFF
13 and other CALIFORNIA CLASS Members were required from time to time to perform
14 work as ordered by DEFENDANT for more than five (5) hours during some shifts without
15 receiving a meal break. Further, DEFENDANT from time to time failed to provide
16 PLAINTIFF and CALIFORNIA CLASS Members with a second off-duty meal period for
17 some workdays in which these employees were required by DEFENDANT to work ten (10)
18 hours of work. DEFENDANT also engaged in the practice of rounding the meal period
19 times to avoid paying penalties to PLAINTIFF and other CALIFORNIA CLASS Members.
20 PLAINTIFF and other members of the CALIFORNIA CLASS therefore forfeit meal breaks
21 without additional compensation and in accordance with DEFENDANT’s corporate policy
22 and practice.
23 12. During the CALIFORNIA CLASS PERIOD, PLAINTIFF and other
24 CALIFORNIA CLASS Members were also required from time to time to work in excess of
25 four (4) hours without being provided ten (10) minute rest periods. Further, these employees
26 were denied their first rest periods of at least ten (10) minutes for some shifts worked of at
27 least two (2) to four (4) hours from time to time, a first and second rest period of at least ten
28 (10) minutes for some shifts worked of between six (6) and eight (8) hours from time to
5
CLASS ACTION COMPLAINT
1 time, and a first, second and third rest period of at least ten (10) minutes for some shifts
2 worked of ten (10) hours or more from time to time. PLAINTIFF and other CALIFORNIA
3 CLASS Members were also not provided with one hour wages in lieu thereof. Additionally,
4 the applicable California Wage Order requires employers to provide employees with off-
5 duty rest periods, which the California Supreme Court defined as time during which an
6 employee is relieved from all work related duties and free from employer control. In so
7 doing, the Court held that the requirement under California law that employers authorize and
8 permit all employees to take rest period means that employers must relieve employees of all
9 duties and relinquish control over how employees spend their time which includes control
10 over the locations where employees may take their rest period. Employers cannot impose
11 controls that prohibit an employee from taking a brief walk - five minutes out, five minutes
12 back. Here, DEFENDANT’s policy restricted PLAINTIFF and other CALIFORNIA
13 CLASS Members from unconstrained walks and is unlawful based on DEFENDANT’s rule
14 which states PLAINTIFF and other CALIFORNIA CLASS Members cannot leave the work
15 premises during their rest period.
16 13. During the CALIFORNIA CLASS PERIOD, DEFENDANT failed to
17 accurately record and pay PLAINTIFF and other CALIFORNIA CLASS Members for the
18 actual amount of time these employees worked. Pursuant to the Industrial Welfare
19 Commission Wage Orders, DEFENDANT was required to pay PLAINTIFF and other
20 CALIFORNIA CLASS Members for all time worked, meaning the time during which an
21 employee was subject to the control of an employer, including all the time the employee was
22 permitted or suffered to permit this work. DEFENDANT required these employees to work
23 off the clock without paying them for all the time they were under DEFENDANT’s control.
24 As such, DEFENDANT knew or should have known that PLAINTIFF and the other
25 members of the CALIFORNIA CLASS were under compensated for all time worked. As a
26 result, PLAINTIFF and other CALIFORNIA CLASS Members forfeited time worked by
27 working without their time being accurately recorded and without compensation at the
28 applicable minimum wage and overtime wage rates. To the extent that the time worked off
6
CLASS ACTION COMPLAINT
1 the clock does not qualify for overtime premium payment, DEFENDANT fails to pay
2 minimum wages for the time worked off-the-clock in violation of Cal. Lab. Code §§ 1194,
3 1197, and 1197.1.
4 14. From time to time, DEFENDANT also failed to provide PLAINTIFF and the
5 other members of the CALIFORNIA CLASS with complete and accurate wage statements
6 which failed to show, among other things, the correct gross and net wages earned. Cal. Lab.
7 Code § 226 provides that every employer shall furnish each of his or her employees with an
8 accurate itemized wage statement in writing showing, among other things, gross wages
9 earned and all applicable hourly rates in effect during the pay period and the corresponding
10 amount of time worked at each hourly rate. PLAINTIFF and CALIFORNIA CLASS
11 Members were paid on an hourly basis. As such, the wage statements should reflect all
12 applicable hourly rates during the pay period and the total hours worked, and the applicable
13 pay period in which the wages were earned pursuant to California Labor Code Section
14 226(a). The wage statements DEFENDANT provided to PLAINTIFF and other
15 CALIFORNIA CLASS Members failed to identify such information. More specifically, the
16 wage statements failed to identify the accurate total hours worked each pay period. When
17 the hours shown on the wage statements were added up, they did not equal the actual total
18 hours worked during the pay period in violation of Cal. Lab. Code 226(a)(2). Aside, from
19 the violations listed above in this paragraph, DEFENDANT failed to issue to PLAINTIFF
20 an itemized wage statement that lists all the requirements under California Labor Code 226.
21 As a result, DEFENDANT from time to time provided PLAINTIFF and the other members
22 of the CALIFORNIA CLASS with wage statements which violated Cal. Lab. Code § 226.
23
15. DEFENDANT underpaid sick pay wages to PLAINTIFF and other
24
CALIFORNIA CLASS Members by failing to pay such wages at the regular rate of pay in
25
violation of Cal. Lab. Code Section 246. Specifically, PLAINTIFF and other non-exempt
26
employees earn non-discretionary remuneration. Rather than pay sick pay at the regular rate
27
28
7
CLASS ACTION COMPLAINT
1 of pay, DEFENDANT underpaid sick pay to PLAINTIFF and other CALIFORNIA CLASS
2 Members at their base rates of pay.
3 16. Cal. Lab. Code Section 246(l)(2) requires that paid sick time for nonexempt
4 employees be calculated by dividing the employee’s total wages, not including overtime
5 premium pay, by the employee’s total hours worked in the full pay periods of the prior 90
6 days of employment.
7 17. DEFENDANT violated Cal. Lab. Code Section 246 by failing to pay sick pay
8 at the regular rate of pay. PLAINTIFF and CALIFORNIA CLASS Members routinely
9 earned non-discretionary incentive wages which increased their regular rate of pay.
10 However, when sick pay was paid, it was paid at the base rate of pay for PLAINTIFF and
11 members of the CALIFORNIA CLASS, as opposed to the correct, higher regular rate of pay,
12 as required under Cal. Lab. Code Section 246.
13 18. As a pattern and practice, DEFENDANT regularly failed to pay PLAINTIFF
14 and other members of the CALIFORNIA CLASS their correct wages and accordingly owe
15 waiting time penalties pursuant to Cal. Lab. Code Section 203. Further, PLAINTIFF is
16 informed and believes and based thereon alleges that such failure to pay sick pay at regular
17 rate was willful, such that PLAINTIFF and members of the CALIFORNIA CLASS whose
18 employment has separated are entitled to waiting time penalties pursuant to Cal. Lab. Code
19 Sections 201-203.
20 19. Pursuant to Cal. Lab. Code Section 221, “It shall be unlawful for any employer
21 to collect or receive from an employee any part of wages theretofore paid by said employer
22 to said employee.” DEFENDANT failed to pay all compensation due to PLAINTIFF and
23 other CALIFORNIA LABOR SUB-CLASS Members, made unlawful deductions from
24 compensation payable to PLAINTIFF and CALIFORNIA LABOR SUB-CLASS Members,
25 failed to disclose all aspects of the deductions from compensation payable to PLAINTIFF
26 and CALIFORNIA LABOR SUB-CLASS Members, and thereby failed to pay these
27 employees all wages due at each applicable pay period and upon termination. PLAINTIFF
28
8
CLASS ACTION COMPLAINT
1 and members of the CALIFORNIA LABOR SUB-CLASS seek recovery of all illegal
2 deductions from wages according to proof, related penalties, interest, attorney fees and costs.
3 20. DEFENDANT intentionally and knowingly failed to reimburse and indemnify
4 PLAINTIFF and the other CALIFORNIA CLASS Members for required business expenses
5 incurred by the PLAINTIFF and other CALIFORNIA CLASS Members in direct
6 consequence of discharging their duties on behalf of DEFENDANT. Under California
7 Labor Code Section 2802, employers are required to indemnify employees for all expenses
8 incurred in the course and scope of their employment. Cal. Lab. Code § 2802 expressly
9 states that "an employer shall indemnify his or her employee for all necessary expenditures
10 or losses incurred by the employee in direct consequence of the discharge of his or her
11 duties, or of his or her obedience to the directions of the employer, even though unlawful,
12 unless the employee, at the time of obeying the directions, believed them to be unlawful."
13 21. In the course of their employment PLAINTIFF and other CALIFORNIA
14 CLASS Members as a business expense, were required by DEFENDANT to use their own
15 personal cellular phones as a result of and in furtherance of their job duties as employees for
16 DEFENDANT but are not reimbursed or indemnified by DEFENDANT for the cost
17 associated with the use of their personal cellular phones for DEFENDANT’s benefit.
18 Specifically, PLAINTIFF and other CALIFORNIA CLASS Members were required by
19 DEFENDANT to use their personal cellular phones. As a result, in the course of their
20 employment with DEFENDANT, PLAINTIFF and other members of the CALIFORNIA
21 CLASS incurred unreimbursed business expenses which included, but were not limited to,
22 costs related to the use of their personal cellular phones all on behalf of and for the benefit
23 of DEFENDANT.
24 22. Specifically as to PLAINTIFF, DEFENDANT failed to provide all the legally
25 required off-duty meal and rest breaks to PLAINTIFF as required by the applicable Wage
26 Order and Labor Code and failed to pay PLAINTIFF all minimum and overtime wages due
27 to PLAINTIFF. DEFENDANT did not have a policy or practice which provided timely off-
28 duty meal and rest breaks to PLAINTIFF and also failed to compensate PLAINTIFF for
9
CLASS ACTION COMPLAINT
1 PLAINTIFF’s missed meal and rest breaks. The nature of the work performed by the
2 PLAINTIFF did not prevent PLAINTIFF from being relieved of all of PLAINTIFF’s duties
3 for the legally required off-duty meal periods. As a result, DEFENDANT’s failure to
4 provide PLAINTIFF with the legally required meal periods is evidenced by DEFENDANT’s
5 business records. DEFENDANT also failed to correctly allocate PLAINTIFF’S FSA
6 disbursements in an amount to be determined at trial. The amount in controversy for
7 PLAINTIFF individually does not exceed the sum or value of $75,000.
8
JURISDICTION AND VENUE
9
23. This Court has jurisdiction over this Action pursuant to California Code of
10
Civil Procedure, Section 410.10 and California Business & Professions Code, Section
11
17203. This action is brought as a Class Action on behalf of PLAINTIFF and similarly
12
situated employees of DEFENDANT pursuant to Cal. Code of Civ. Proc. § 382.
13
24. Venue is proper in this Court pursuant to California Code of Civil Procedure,
14
Sections 395 and 395.5, because PLAINTIFF worked in this County for DEFENDANT and
15
DEFENDANT (i) currently maintains and at all relevant times maintained offices and
16
facilities in this County and/or conducts substantial business in this County, and (ii)
17
committed the wrongful conduct herein alleged in this County against members of the
18
CALIFORNIA CLASS.
19
20
THE CALIFORNIA CLASS
21
25. PLAINTIFF brings the First Cause of Action for Unfair, Unlawful and
22
Deceptive Business Practices pursuant to Cal. Bus. & Prof. Code §§ 17200, (the "UCL") as
23
a Class Action, pursuant to Cal. Code of Civ. Proc. § 382, on behalf of a California class,
24
defined as all individuals who are or previously were employed by DEFENDANT in
25
California, including any employees staffed with DEFENDANT by a third party, and
26
classified as non-exempt employees (the “CALIFORNIA CLASS”) at any time during the
27
period beginning four (4) years prior to the filing of this Complaint and ending on the date
28
10
CLASS ACTION COMPLAINT
1 as determined by the Court (the “CALIFORNIA CLASS PERIOD”). The amount in
2 controversy for the aggregate claim of CALIFORNIA CLASS Members is under five
3 million dollars ($5,000,000.00).
4 26. To the extent equitable tolling operates to toll claims by the CALIFORNIA
5 CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted
6 accordingly.
7 27. DEFENDANT, as a matter of company policy, practice and procedure, and in
8 violation of the applicable Labor Code, Industrial Welfare Commission (“IWC”) Wage
9 Order requirements, and the applicable provisions of California law, intentionally,
10 knowingly, and wilfully, engaged in a practice whereby DEFENDANT failed to record all
11 meal and rest breaks missed by PLAINTIFF and other CALIFORNIA CLASS Members,
12 even though DEFENDANT enjoyed the benefit of this work, required employees to perform
13 this work and permits or suffers to permit this work.
14 28. DEFENDANT has the legal burden to establish that each and every
15 CALIFORNIA CLASS Member was paid accurately for all meal and rest breaks missed as
16 required by California laws. The DEFENDANT, however, as a matter of policy and
17 procedure failed to have in place during the CALIFORNIA CLASS PERIOD and still fails
18 to have in place a policy or practice to ensure that each and every CALIFORNIA CLASS
19 Member is paid as required by law. This common business practice is applicable to each
20 and every CALIFORNIA CLASS Member can be adjudicated on a class-wide basis as
21 unlawful, unfair, and/or deceptive under Cal. Business & Professions Code §§ 17200, (the
22 “UCL”) as causation, damages, and reliance are not elements of this claim.
23 29. The CALIFORNIA CLASS, is so numerous that joinder of all CALIFORNIA
24 CLASS Members is impracticable.
25 30. DEFENDANT violated the rights of the CALIFORNIA CLASS under
26 California law by:
27 (a) Committing an act of unfair competition in violation of , Cal. Bus. &
28 Prof. Code §§ 17200, (the "UCL"), by unlawfully, unfairly and/or
11
CLASS ACTION COMPLAINT
1 deceptively having in place company policies, practices and procedures
2 that failed to record and pay PLAINTIFF and the other members of the
3 CALIFORNIA CLASS for all time worked, including minimum wages
4 owed and overtime wages owed for work performed by these
5 employees; and,
6 (b) Committing an act of unfair competition in violation of the UCL, by
7 failing to provide the PLAINTIFF and the other members of the
8 CALIFORNIA CLASS with the legally required meal and rest periods.
9 31. This Class Action meets the statutory prerequisites for the maintenance of a
10 Class Action as set forth in Cal. Code of Civ. Proc. § 382, in that:
11 (a) The persons who comprise the CALIFORNIA CLASS are so numerous
12 that the joinder of all such persons is impracticable and the disposition
13 of their claims as a class will benefit the parties and the Court;
14 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief
15 issues that are raised in this Complaint are common to the
16 CALIFORNIA CLASS will apply to every member of the
17 CALIFORNIA CLASS;
18 (c) The claims of the representative PLAINTIFF are typical of the claims
19 of each member of the CALIFORNIA CLASS. PLAINTIFF, like all
20 the other members of the CALIFORNIA CLASS, was classified as a
21 non-exempt employee paid on an hourly basis who was subjected to the
22 DEFENDANT’s deceptive practice and policy which failed to provide
23 the legally required meal and rest periods to the CALIFORNIA CLASS
24 and thereby underpaid compensation to PLAINTIFF and
25 CALIFORNIA CLASS. PLAINTIFF sustained economic injury as a
26 result of DEFENDANT’s employment practices. PLAINTIFF and the
27 members of the CALIFORNIA CLASS were and are similarly or
28
12
CLASS ACTION COMPLAINT
1 identically harmed by the same unlawful, deceptive and unfair
2 misconduct engaged in by DEFENDANT; and,
3 (d) The representative PLAINTIFF will fairly and adequately represent and
4 protect the interest of the CALIFORNIA CLASS, and has retained
5 counsel who are competent and experienced in Class Action litigation.
6 There are no material conflicts between the claims of the representative
7 PLAINTIFF and the members of the CALIFORNIA CLASS that would
8 make class certification inappropriate. Counsel for the CALIFORNIA
9 CLASS will vigorously assert the claims of all CALIFORNIA CLASS
10 Members.
11 32. In addition to meeting the statutory prerequisites to a Class Action, this action
12 is properly maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, in that:
13 (a) Without class certification and determination of declaratory, injunctive,
14 statutory and other legal questions within the class format, prosecution
15 of separate actions by individual members of the CALIFORNIA
16 CLASS will create the risk of:
17 1) Inconsistent or varying adjudications with respect to individual
18 members of the CALIFORNIA CLASS which would establish
19 incompatible standards of conduct for the parties opposing the
20 CALIFORNIA CLASS; and/or,
21 2) Adjudication with respect to individual members of the
22 CALIFORNIA CLASS which would as a practical matter be
23 dispositive of interests of the other members not party to the
24 adjudication or substantially impair or impede their ability to
25 protect their interests.
26 (b) The parties opposing the CALIFORNIA CLASS have acted or refused
27 to act on grounds generally applicable to the CALIFORNIA CLASS,
28 making appropriate class-wide relief with respect to the CALIFORNIA
13
CLASS ACTION COMPLAINT
1 CLASS as a whole in that DEFENDANT failed to pay all wages due to
2 members of the CALIFORNIA CLASS as required by law;
3 1) With respect to the First Cause of Action, the final relief on
4 behalf of the CALIFORNIA CLASS sought does not relate
5 exclusively to restitution because through this claim
6 PLAINTIFF seeks declaratory relief holding that the
7 DEFENDANT’s policy and practices constitute unfair
8 competition, along with declaratory relief, injunctive relief, and
9 incidental equitable relief as may be necessary to prevent and
10 remedy the conduct declared to constitute unfair competition;
11 (c) Common questions of law and fact exist as to the members of the
12 CALIFORNIA CLASS, with respect to the practices and violations of
13 California law as listed above, and predominate over any question
14 affecting only individual CALIFORNIA CLASS Members, and a Class
15 Action is superior to other available methods for the fair and efficient
16 adjudication of the controversy, including consideration of:
17 1) The interests of the members of the CALIFORNIA CLASS in
18 individually controlling the prosecution or defense of separate
19 actions in that the substantial expense of individual actions will
20 be avoided to recover the relatively small amount of economic
21 losses sustained by the individual CALIFORNIA CLASS
22 Members when compared to the substantial expense and burden
23 of individual prosecution of this litigation;
24 2) Class certification will obviate the need for unduly duplicative
25 litigation that would create the risk of:
26 A. Inconsistent or varying adjudications with respect to
27 individual members of the CALIFORNIA CLASS, which
28
14
CLASS ACTION COMPLAINT
1 would establish incompatible standards of conduct for the
2 DEFENDANT; and/or,
3 B. Adjudications with respect to individual members of the
4 CALIFORNIA CLASS would as a practical matter be
5 dispositive of the interests of the other members not
6 parties to the adjudication or substantially impair or
7 impede their ability to protect their interests;
8 3) In the context of wage litigation because a substantial number of
9 individual CALIFORNIA CLASS Members will avoid asserting
10 their legal rights out of fear of retaliation by DEFENDANT,
11 which may adversely affect an individual’s job with
12 DEFENDANT or with a subsequent employer, the Class Action
13 is the only means to assert their claims through a representative;
14 and,
15 4) A class action is superior to other available methods for the fair
16 and efficient adjudication of this litigation because class
17 treatment will obviate the need for unduly and unnecessary
18 duplicative litigation that is likely to result in the absence of
19 certification of this action pursuant to Cal. Code of Civ. Proc. §
20 382.
21 33. This Court should permit this action to be maintained as a Class Action
22 pursuant to Cal. Code of Civ. Proc. § 382 because:
23 (a) The questions of law and fact common to the CALIFORNIA CLASS
24 predominate over any question affecting only individual CALIFORNIA
25 CLASS Members because the DEFENDANT’s employment practices
26 are applied with respect to the CALIFORNIA CLASS;
27 (b) A Class Action is superior to any other available method for the fair
28 and efficient adjudication of the claims of the members of the
15
CLASS ACTION COMPLAINT
1 CALIFORNIA CLASS because in the context of employment litigation
2 a substantial number of individual CALIFORNIA CLASS Members
3 will avoid asserting their rights individually out of fear of retaliation or
4 adverse impact on their employment;
5 (c) The members of the CALIFORNIA CLASS are so numerous that it is
6 impractical to bring all members of the CALIFORNIA CLASS before
7 the Court;
8 (d) PLAINTIFF, and the other CALIFORNIA CLASS Members, will not
9 be able to obtain effective and economic legal redress unless the action
10 is maintained as a Class Action;
11 (e) There is a community of interest in obtaining appropriate legal and
12 equitable relief for the acts of unfair competition, statutory violations
13 and other improprieties, and in obtaining adequate compensation for
14 the damages and injuries which DEFENDANT’s actions have inflicted
15 upon the CALIFORNIA CLASS;
16 (f) There is a community of interest in ensuring that the combined assets of
17 DEFENDANT are sufficient to adequately compensate the members of
18 the CALIFORNIA CLASS for the injuries sustained;
19 (g) DEFENDANT has acted or refused to act on grounds generally
20 applicable to the CALIFORNIA CLASS, thereby making final class-
21 wide relief appropriate with respect to the CALIFORNIA CLASS as a
22 whole;
23 (h) The members of the CALIFORNIA CLASS are readily ascertainable
24 from the business records of DEFENDANT; and,
25 (i) Class treatment provides manageable judicial treatment calculated to
26 bring a efficient and rapid conclusion to all litigation of all wage and
27 hour related claims arising out of the conduct of DEFENDANT as to
28 the members of the CALIFORNIA CLASS.
16
CLASS ACTION COMPLAINT
1 34. DEFENDANT maintains records from which the Court can ascertain and
2 identify by job title each of DEFENDANT’s employees who have been intentionally
3 subjected to DEFENDANT’s company policy, practices and procedures as herein alleged.
4 PLAINTIFF will seek leave to amend the Complaint to include any additional job titles of
5 similarly situated employees when they have been identified.
6
7 THE CALIFORNIA LABOR SUB-CLASS
8 35. PLAINTIFF further brings the Second, Third, Fourth, Fifth, Sixth, Seventh,
9 Eighth and Ninth causes Action on behalf of a California sub-class, defined as all members
10 of the CALIFORNIA CLASS who are or previously were employed by DEFENDANT in
11 California, including any employees staffed with DEFENDANT by a third party, and
12 classified as non-exempt employees (the “CALIFORNIA LABOR SUB-CLASS”) at any
13 time during the period three (3) years prior to the filing of the complaint and ending on the
14 date as determined by the Court (the “CALIFORNIA LABOR SUB-CLASS PERIOD”)
15 pursuant to Cal. Code of Civ. Proc. § 382. The amount in controversy for the aggregate
16 claim of CALIFORNIA LABOR SUB-CLASS Members is under five million dollars
17 ($5,000,000.00).
18 36. DEFENDANT, in violation of the applicable Labor Code, Industrial Welfare
19 Commission (“IWC”) Wage Order requirements, and the applicable provisions of California
20 law, intentionally, knowingly, and wilfully, engaged in a practice whereby DEFENDANT
21 failed to correctly calculate compensation for the time worked by PLAINTIFF and the other
22 members of the CALIFORNIA LABOR SUB-CLASS and reporting time wages owed to
23 these employees, even though DEFENDANT enjoyed the benefit of this work, required
24 employees to perform this work and permitted or suffered to permit this work.
25 DEFENDANT has denied these CALIFORNIA LABOR SUB-CLASS Members wages to
26 which these employees are entitled in order to unfairly cheat the competition and unlawfully
27 profit. To the extent equitable tolling operates to toll claims by the CALIFORNIA LABOR
28
17
CLASS ACTION COMPLAINT
1 SUB-CLASS against DEFENDANT, the CALIFORNIA LABOR SUB-CLASS PERIOD
2 should be adjusted accordingly.
3 37. DEFENDANT maintains records from which the Court can ascertain and
4 identify by name and job title, each of DEFENDANT’s employees who have been
5 intentionally subjected to DEFENDANT’s company policy, practices and procedures as
6 herein alleged. PLAINTIFF will seek leave to amend the complaint to include any
7 additional job titles of similarly situated employees when they have been identified.
8 38. The CALIFORNIA LABOR SUB-CLASS is so numerous that joinder of all
9 CALIFORNIA LABOR SUB-CLASS Members is impracticable.
10 39. Common questions of law and fact exist as to members of the CALIFORNIA
11 LABOR SUB-CLASS, including, but not limited, to the following:
12 (a) Whether DEFENDANT unlawfully failed to correctly calculate and pay
13 compensation due to members of the CALIFORNIA LABOR SUB-
14 CLASS for missed meal and rest breaks in violation of the California
15 Labor Code and California regulations and the applicable California
16 Wage Order;
17 (b) Whether DEFENDANT failed to provide the PLAINTIFF and the other
18 members of the CALIFORNIA LABOR SUB-CLASS with accurate
19 itemized wage statements;
20 (c) Whether DEFENDANT has engaged in unfair competition by the
21 above-listed conduct;
22 (d) The proper measure of damages and penalties owed to the members of
23 the CALIFORNIA LABOR SUB-CLASS; and,
24 (e) Whether DEFENDANT’s conduct was willful.
25 40. DEFENDANT violated the rights of the CALIFORNIA LABOR SUB-
26 CLASS under California law by:
27 (a) Violating Cal. Lab. Code § 510, by failing to correctly pay the
28 PLAINTIFF and the members of the CALIFORNIA LABOR SUB-
18
CLASS ACTION COMPLAINT
1 CLASS all wages due for overtime worked, for which DEFENDANT is
2 liable pursuant to Cal. Lab. Code § 1194;
3 (b) Violating Cal. Lab. Code §§ 1194, 1197 & 1197.1, by failing to
4 accurately pay PLAINTIFF and the members of the CALIFORNIA
5 LABOR SUB-CLASS the correct minimum wage pay for which
6 DEFENDANT is liable pursuant to Cal. Lab. Code §§ 1194 and 1197;
7 (c) Violating Cal. Lab. Code § 226, by failing to provide PLAINTIFF and
8 the members of the CALIFORNIA LABOR SUB-CLASS with an
9 accurate itemized statement in writing showing the corresponding
10 correct amount of wages earned by the employee;
11 (d) Violating Cal. Lab. Code §§ 226.7 and 512, by failing to provide
12 PLAINTIFF and the other members of the CALIFORNIA LABOR
13 SUB-CLASS with all legally required off-duty, uninterrupted thirty
14 (30) minute meal breaks and the legally required off-duty rest breaks;
15 (e) Violating Cal. Lab. Code §§ 201, 202 and/or 203, which provides that
16 when an employee is discharged or quits from employment, the
17 employer must pay the employee all wages due without abatement, by
18 failing to tender full payment and/or restitution of wages owed or in the
19 manner required by California law to the members of the
20 CALIFORNIA LABOR SUB-CLASS who have terminated their
21 employment; and,
22 (f) Violating Cal. Lab. Code § 2802 by failing to reimburse PLAINTIFF
23 and the CALIFORNIA LABOR SUB-CLASS members with necessary
24 expenses incurred in the discharge of their job duties.
25 41. This Class Action meets the statutory prerequisites for the maintenance of a
26 Class Action as set forth in Cal. Code of Civ. Proc. § 382, in that:
27 (a) The persons who comprise the CALIFORNIA LABOR SUB-CLASS
28 are so numerous that the joinder of all CALIFORNIA LABOR SUB-
19
CLASS ACTION COMPLAINT
1 CLASS Members is impracticable and the disposition of their claims as
2 a class will benefit the parties and the Court;
3 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief
4 issues that are raised in this Complaint are common to the
5 CALIFORNIA LABOR SUB-CLASS and will apply to every member
6 of the CALIFORNIA LABOR SUB-CLASS;
7 (c) The claims of the representative PLAINTIFF are typical of the claims
8 of each member of the CALIFORNIA LABOR SUB-CLASS.
9 PLAINTIFF, like all the other members of the CALIFORNIA LABOR
10 SUB-CLASS, was a non-exempt employee paid on an hourly basis who
11 was subjected to the DEFENDANT’s practice and policy which failed
12 to pay the correct amount of wages due to the CALIFORNIA LABOR
13 SUB-CLASS. PLAINTIFF sustained economic injury as a result of
14 DEFENDANT’s employment practices. PLAINTIFF and the members
15 of the CALIFORNIA LABOR SUB-CLASS were and are similarly or
16 identically harmed by the same unlawful, deceptive, and unfair
17 misconduct engaged in by DEFENDANT; and,
18 (d) The representative PLAINTIFF will fairly and adequately represent and
19 protect the interest of the CALIFORNIA LABOR SUB-CLASS, and
20 has retained counsel who are competent and experienced in Class
21 Action litigation. There are no material conflicts between the claims of
22 the representative PLAINTIFF and the members of the CALIFORNIA
23 LABOR SUB-CLASS that would make class certification
24 inappropriate. Counsel for the CALIFORNIA LABOR SUB-CLASS
25 will vigorously assert the claims of all CALIFORNIA LABOR SUB-
26 CLASS Me
Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP ELECTRONICALLY Norman B. Blumenthal (State Bar #068687) FILED 2 Kyle R. Nordrehaug (State Bar #205975) Superior Court of California, County of San Francisco Aparajit Bhowmik (State Bar #248066) 3 Nicholas J. De Blouw (State Bar #280922) 05/06/2024 Piya Mukherjee (State Bar #274217) Clerk of the Court BY: AUSTIN LAM 4 piya@bamlawca.com Deputy Clerk 2255 Calle Clara 5 La Jolla, CA 92037 Telephone: (858)551-1223 6 Facsimile: (858) 551-1232 Website: www.bamlawca.com 7 Attorneys for Plaintiff 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN FRANCISCOCGC-24-614434 10 SAMUEL GALLAGHER-STEVENS, an individual, Case No. ____________________ 11 on behalf of himself and on behalf of all persons CLASS ACTION COMPLAINT FOR: similarly situated, 1. UNFAIR COMPETITION IN VIOLATION OF 12 CAL. BUS. & PROF. CODE §§ 17200; 2. FAILURE TO PAY MINIMUM WAGES IN 13 VIOLATION OF CAL. LAB. CODE §§ 1194, 1197 & Plaintiff, 1197.1; 14 3. FAILURE TO PAY OVERTIME WAGES IN vs. VIOLATION OF CAL. LAB. CODE § 510; 15 4. FAILURE TO PROVIDE REQUIRED MEAL INDEPENDENT LIVING SYSTEMS, LLC., a PERIODS IN VIOLATION OF CAL. LAB. CODE §§ 16 Limited Liability Company; and DOES 1 through 50, 226.7 & 512 AND THE APPLICABLE IWC WAGE inclusive, ORDER; 17 5. FAILURE TO PROVIDE REQUIRED REST PERIODS IN VIOLATION OF CAL. LAB. CODE §§ 18 226.7 & 512 AND THE APPLICABLE IWC WAGE Defendants. ORDER; 19 6. FAILURE TO PROVIDE ACCURATE ITEMIZED STATEMENTS IN VIOLATION OF 20 CAL. LAB. CODE § 226; 7. FAILURE TO REIMBURSE EMPLOYEES FOR 21 REQUIRED EXPENSES IN VIOLATION OF CAL. LAB. CODE § 2802; 22 8. FAILURE TO PROVIDE WAGES WHEN DUE IN VIOLATION OF CAL. LAB. CODE §§ 201, 202 23 AND 203; 9. FAILURE TO PAY SICK PAY WAGES IN 24 VIOLATION OF CAL. LAB CODE §§201-203, 233, 246; 25 10. DISCRIMINATION AND RETALIATION IN VIOLATION OF FEHA; and, 26 11. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY. 27 DEMAND FOR A JURY TRIAL 28 1 CLASS ACTION COMPLAINT 1 Samuel Gallagher-Stevens (“PLAINTIFF”), an individual, on behalf of himself and all 2 other similarly situated current and former employees alleges on information and belief, except 3 for his own acts and knowledge which are based on personal knowledge, the following. 4 5 THE PARTIES 6 1. Independent Living Systems, LLC. (“DEFENDANT”) is a limited liability 7 company that at all relevant times mentioned herein conducted and continues to conduct 8 substantial business in California. 9 2. DEFENDANT provides healthcare services in California. 10 3. PLAINTIFF was employed by DEFENDANT in California from May 2, 2023 to 11 March 13, 2024 and was at all times classified by DEFENDANT as a non-exempt employee, 12 paid on an hourly basis, and entitled to the legally required meal and rest periods and payment 13 of minimum and overtime wages due for all time worked. 14 4. PLAINTIFF brings this Class Action on behalf of himself and a California class, 15 defined as all individuals who are or previously were employed by DEFENDANT in California, 16 including any employees staffed with DEFENDANT by a third party, and classified as non- 17 exempt employees (the “CALIFORNIA CLASS”) at any time during the period beginning four 18 (4) years prior to the filing of this Complaint and ending on the date as determined by the Court 19 (the “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim 20 of CALIFORNIA CLASS Members is under five million dollars ($5,000,000.00). 21 5. PLAINTIFF brings this Class Action on behalf of himself and a 22 CALIFORNIA CLASS in order to fully compensate the CALIFORNIA CLASS for their 23 losses incurred during the CALIFORNIA CLASS PERIOD caused by DEFENDANT’s 24 policy and practice which failed to lawfully compensate these employees. DEFENDANT’s 25 policy and practice alleged herein was an unlawful, unfair and deceptive business practice 26 whereby DEFENDANT retained and continues to retain wages due PLAINTIFF and the 27 other members of the CALIFORNIA CLASS. PLAINTIFF and the other members of the 28 CALIFORNIA CLASS seek an injunction enjoining such conduct by DEFENDANT in the 2 CLASS ACTION COMPLAINT 1 future, relief for the named PLAINTIFF and the other members of the CALIFORNIA 2 CLASS who have been economically injured by DEFENDANT’s past and current unlawful 3 conduct, and all other appropriate legal and equitable relief. 4 6. The true names and capacities, whether individual, corporate, subsidiary, 5 partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are 6 presently unknown to PLAINTIFF who therefore sues these Defendants by such fictitious 7 names pursuant to Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this 8 Complaint to allege the true names and capacities of Does 1 through 50, inclusive, when 9 they are ascertained. PLAINTIFF is informed and believes, and based upon that information 10 and belief alleges, that the Defendants named in this Complaint, including DOES 1 through 11 50, inclusive, are responsible in some manner for one or more of the events and happenings 12 that proximately caused the injuries and damages hereinafter alleged. 13 7. The agents, servants and/or employees of the Defendants and each of them 14 acting on behalf of the Defendants acted within the course and scope of his, her or its 15 authority as the agent, servant and/or employee of the Defendants, and personally 16 participated in the conduct alleged herein on behalf of the Defendants with respect to the 17 conduct alleged herein. Consequently, the acts of each Defendant are legally attributable to 18 the other Defendants and all Defendants are jointly and severally liable to PLAINTIFF and 19 the other members of the CALIFORNIA CLASS, for the loss sustained as a proximate result 20 of the conduct of the Defendants’ agents, servants and/or employees. 21 22 THE CONDUCT 23 8. Pursuant to the Industrial Welfare Commission Wage Orders, DEFENDANT 24 was required to pay PLAINTIFF and CALIFORNIA CLASS Members for all their time 25 worked, meaning the time during which an employee is subject to the control of an 26 employer, including all the time the employee is suffered or permitted to work. 27 DEFENDANT requires PLAINTIFF and CALIFORNIA CLASS Members to work without 28 paying them for all the time they are under DEFENDANT’s control. Among other things, 3 CLASS ACTION COMPLAINT 1 DEFENDANT requires PLAINTIFF to work while clocked out during what is supposed to 2 be PLAINTIFF’s off-duty meal break. PLAINTIFF was from time to time interrupted by 3 work assignments while clocked out for what should have been PLAINTIFF’s off-duty meal 4 break. DEFENDANT, as a matter of established company policy and procedure, administers 5 a uniform practice of rounding the actual time worked and recorded by PLAINTIFF and 6 CALIFORNIA CLASS Members, always to the benefit of DEFENDANT, so that during the 7 course of their employment, PLAINTIFF and CALIFORNIA CLASS Members are paid less 8 than they would have been paid had they been paid for actual recorded time rather than 9 “rounded” time. Additionally, DEFENDANT engages in the practice of requiring 10 PLAINTIFF and CALIFORNIA CLASS Members to perform work off the clock in that 11 DEFENDANT, as a condition of employment, required these employees to submit to 12 mandatory temperature checks and symptom questionnaires for COVID-19 screening prior 13 to clocking into DEFENDANT’s timekeeping system for the workday. As a result, 14 PLAINTIFF and other CALIFORNIA CLASS Members forfeit minimum wage, overtime 15 wage compensation, and off-duty meal breaks by working without their time being correctly 16 recorded and without compensation at the applicable rates. DEFENDANT’s policy and 17 practice not to pay PLAINTIFF and other CALIFORNIA CLASS Members for all time 18 worked, is evidenced by DEFENDANT’s business records. 19 9. State and federal law provides that employees must be paid overtime and meal 20 and rest break premiums at one-and-one-half times their “regular rate of pay.” PLAINTIFF 21 and other CALIFORNIA CLASS Members are compensated at an hourly rate plus incentive 22 pay that is tied to specific elements of an employee’s performance. 23 10. The second component of PLAINTIFF’s and other CALIFORNIA CLASS 24 Members’ compensation is DEFENDANT’s non-discretionary incentive program that paid 25 PLAINTIFF and other CALIFORNIA CLASS Members incentive wages based on their 26 performance for DEFENDANT. The non-discretionary incentive program provided all 27 employees paid on an hourly basis with incentive compensation when the employees met the 28 various performance goals set by DEFENDANT. However, when calculating the regular 4 CLASS ACTION COMPLAINT 1 rate of pay in order to pay overtime and meal and rest break premiums to PLAINTIFF and 2 other CALIFORNIA CLASS Members, DEFENDANT failed to include the incentive 3 compensation as part of the employees’ “regular rate of pay” for purposes of calculating 4 overtime pay and meal and rest break premium pay. Management and supervisors described 5 the incentive program to potential and new employees as part of the compensation package. 6 As a matter of law, the incentive compensation received by PLAINTIFF and other 7 CALIFORNIA CLASS Members must be included in the “regular rate of pay.” The failure 8 to do so has resulted in a underpayment of overtime compensation and meal and rest break 9 premiums to PLAINTIFF and other CALIFORNIA CLASS Members by DEFENDANT. 10 11. As a result of their rigorous work schedules, PLAINTIFF and other 11 CALIFORNIA CLASS Members were from time to time unable to take thirty (30) minute 12 off duty meal breaks and were not fully relieved of duty for their meal periods. PLAINTIFF 13 and other CALIFORNIA CLASS Members were required from time to time to perform 14 work as ordered by DEFENDANT for more than five (5) hours during some shifts without 15 receiving a meal break. Further, DEFENDANT from time to time failed to provide 16 PLAINTIFF and CALIFORNIA CLASS Members with a second off-duty meal period for 17 some workdays in which these employees were required by DEFENDANT to work ten (10) 18 hours of work. DEFENDANT also engaged in the practice of rounding the meal period 19 times to avoid paying penalties to PLAINTIFF and other CALIFORNIA CLASS Members. 20 PLAINTIFF and other members of the CALIFORNIA CLASS therefore forfeit meal breaks 21 without additional compensation and in accordance with DEFENDANT’s corporate policy 22 and practice. 23 12. During the CALIFORNIA CLASS PERIOD, PLAINTIFF and other 24 CALIFORNIA CLASS Members were also required from time to time to work in excess of 25 four (4) hours without being provided ten (10) minute rest periods. Further, these employees 26 were denied their first rest periods of at least ten (10) minutes for some shifts worked of at 27 least two (2) to four (4) hours from time to time, a first and second rest period of at least ten 28 (10) minutes for some shifts worked of between six (6) and eight (8) hours from time to 5 CLASS ACTION COMPLAINT 1 time, and a first, second and third rest period of at least ten (10) minutes for some shifts 2 worked of ten (10) hours or more from time to time. PLAINTIFF and other CALIFORNIA 3 CLASS Members were also not provided with one hour wages in lieu thereof. Additionally, 4 the applicable California Wage Order requires employers to provide employees with off- 5 duty rest periods, which the California Supreme Court defined as time during which an 6 employee is relieved from all work related duties and free from employer control. In so 7 doing, the Court held that the requirement under California law that employers authorize and 8 permit all employees to take rest period means that employers must relieve employees of all 9 duties and relinquish control over how employees spend their time which includes control 10 over the locations where employees may take their rest period. Employers cannot impose 11 controls that prohibit an employee from taking a brief walk - five minutes out, five minutes 12 back. Here, DEFENDANT’s policy restricted PLAINTIFF and other CALIFORNIA 13 CLASS Members from unconstrained walks and is unlawful based on DEFENDANT’s rule 14 which states PLAINTIFF and other CALIFORNIA CLASS Members cannot leave the work 15 premises during their rest period. 16 13. During the CALIFORNIA CLASS PERIOD, DEFENDANT failed to 17 accurately record and pay PLAINTIFF and other CALIFORNIA CLASS Members for the 18 actual amount of time these employees worked. Pursuant to the Industrial Welfare 19 Commission Wage Orders, DEFENDANT was required to pay PLAINTIFF and other 20 CALIFORNIA CLASS Members for all time worked, meaning the time during which an 21 employee was subject to the control of an employer, including all the time the employee was 22 permitted or suffered to permit this work. DEFENDANT required these employees to work 23 off the clock without paying them for all the time they were under DEFENDANT’s control. 24 As such, DEFENDANT knew or should have known that PLAINTIFF and the other 25 members of the CALIFORNIA CLASS were under compensated for all time worked. As a 26 result, PLAINTIFF and other CALIFORNIA CLASS Members forfeited time worked by 27 working without their time being accurately recorded and without compensation at the 28 applicable minimum wage and overtime wage rates. To the extent that the time worked off 6 CLASS ACTION COMPLAINT 1 the clock does not qualify for overtime premium payment, DEFENDANT fails to pay 2 minimum wages for the time worked off-the-clock in violation of Cal. Lab. Code §§ 1194, 3 1197, and 1197.1. 4 14. From time to time, DEFENDANT also failed to provide PLAINTIFF and the 5 other members of the CALIFORNIA CLASS with complete and accurate wage statements 6 which failed to show, among other things, the correct gross and net wages earned. Cal. Lab. 7 Code § 226 provides that every employer shall furnish each of his or her employees with an 8 accurate itemized wage statement in writing showing, among other things, gross wages 9 earned and all applicable hourly rates in effect during the pay period and the corresponding 10 amount of time worked at each hourly rate. PLAINTIFF and CALIFORNIA CLASS 11 Members were paid on an hourly basis. As such, the wage statements should reflect all 12 applicable hourly rates during the pay period and the total hours worked, and the applicable 13 pay period in which the wages were earned pursuant to California Labor Code Section 14 226(a). The wage statements DEFENDANT provided to PLAINTIFF and other 15 CALIFORNIA CLASS Members failed to identify such information. More specifically, the 16 wage statements failed to identify the accurate total hours worked each pay period. When 17 the hours shown on the wage statements were added up, they did not equal the actual total 18 hours worked during the pay period in violation of Cal. Lab. Code 226(a)(2). Aside, from 19 the violations listed above in this paragraph, DEFENDANT failed to issue to PLAINTIFF 20 an itemized wage statement that lists all the requirements under California Labor Code 226. 21 As a result, DEFENDANT from time to time provided PLAINTIFF and the other members 22 of the CALIFORNIA CLASS with wage statements which violated Cal. Lab. Code § 226. 23 15. DEFENDANT underpaid sick pay wages to PLAINTIFF and other 24 CALIFORNIA CLASS Members by failing to pay such wages at the regular rate of pay in 25 violation of Cal. Lab. Code Section 246. Specifically, PLAINTIFF and other non-exempt 26 employees earn non-discretionary remuneration. Rather than pay sick pay at the regular rate 27 28 7 CLASS ACTION COMPLAINT 1 of pay, DEFENDANT underpaid sick pay to PLAINTIFF and other CALIFORNIA CLASS 2 Members at their base rates of pay. 3 16. Cal. Lab. Code Section 246(l)(2) requires that paid sick time for nonexempt 4 employees be calculated by dividing the employee’s total wages, not including overtime 5 premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 6 days of employment. 7 17. DEFENDANT violated Cal. Lab. Code Section 246 by failing to pay sick pay 8 at the regular rate of pay. PLAINTIFF and CALIFORNIA CLASS Members routinely 9 earned non-discretionary incentive wages which increased their regular rate of pay. 10 However, when sick pay was paid, it was paid at the base rate of pay for PLAINTIFF and 11 members of the CALIFORNIA CLASS, as opposed to the correct, higher regular rate of pay, 12 as required under Cal. Lab. Code Section 246. 13 18. As a pattern and practice, DEFENDANT regularly failed to pay PLAINTIFF 14 and other members of the CALIFORNIA CLASS their correct wages and accordingly owe 15 waiting time penalties pursuant to Cal. Lab. Code Section 203. Further, PLAINTIFF is 16 informed and believes and based thereon alleges that such failure to pay sick pay at regular 17 rate was willful, such that PLAINTIFF and members of the CALIFORNIA CLASS whose 18 employment has separated are entitled to waiting time penalties pursuant to Cal. Lab. Code 19 Sections 201-203. 20 19. Pursuant to Cal. Lab. Code Section 221, “It shall be unlawful for any employer 21 to collect or receive from an employee any part of wages theretofore paid by said employer 22 to said employee.” DEFENDANT failed to pay all compensation due to PLAINTIFF and 23 other CALIFORNIA LABOR SUB-CLASS Members, made unlawful deductions from 24 compensation payable to PLAINTIFF and CALIFORNIA LABOR SUB-CLASS Members, 25 failed to disclose all aspects of the deductions from compensation payable to PLAINTIFF 26 and CALIFORNIA LABOR SUB-CLASS Members, and thereby failed to pay these 27 employees all wages due at each applicable pay period and upon termination. PLAINTIFF 28 8 CLASS ACTION COMPLAINT 1 and members of the CALIFORNIA LABOR SUB-CLASS seek recovery of all illegal 2 deductions from wages according to proof, related penalties, interest, attorney fees and costs. 3 20. DEFENDANT intentionally and knowingly failed to reimburse and indemnify 4 PLAINTIFF and the other CALIFORNIA CLASS Members for required business expenses 5 incurred by the PLAINTIFF and other CALIFORNIA CLASS Members in direct 6 consequence of discharging their duties on behalf of DEFENDANT. Under California 7 Labor Code Section 2802, employers are required to indemnify employees for all expenses 8 incurred in the course and scope of their employment. Cal. Lab. Code § 2802 expressly 9 states that "an employer shall indemnify his or her employee for all necessary expenditures 10 or losses incurred by the employee in direct consequence of the discharge of his or her 11 duties, or of his or her obedience to the directions of the employer, even though unlawful, 12 unless the employee, at the time of obeying the directions, believed them to be unlawful." 13 21. In the course of their employment PLAINTIFF and other CALIFORNIA 14 CLASS Members as a business expense, were required by DEFENDANT to use their own 15 personal cellular phones as a result of and in furtherance of their job duties as employees for 16 DEFENDANT but are not reimbursed or indemnified by DEFENDANT for the cost 17 associated with the use of their personal cellular phones for DEFENDANT’s benefit. 18 Specifically, PLAINTIFF and other CALIFORNIA CLASS Members were required by 19 DEFENDANT to use their personal cellular phones. As a result, in the course of their 20 employment with DEFENDANT, PLAINTIFF and other members of the CALIFORNIA 21 CLASS incurred unreimbursed business expenses which included, but were not limited to, 22 costs related to the use of their personal cellular phones all on behalf of and for the benefit 23 of DEFENDANT. 24 22. Specifically as to PLAINTIFF, DEFENDANT failed to provide all the legally 25 required off-duty meal and rest breaks to PLAINTIFF as required by the applicable Wage 26 Order and Labor Code and failed to pay PLAINTIFF all minimum and overtime wages due 27 to PLAINTIFF. DEFENDANT did not have a policy or practice which provided timely off- 28 duty meal and rest breaks to PLAINTIFF and also failed to compensate PLAINTIFF for 9 CLASS ACTION COMPLAINT 1 PLAINTIFF’s missed meal and rest breaks. The nature of the work performed by the 2 PLAINTIFF did not prevent PLAINTIFF from being relieved of all of PLAINTIFF’s duties 3 for the legally required off-duty meal periods. As a result, DEFENDANT’s failure to 4 provide PLAINTIFF with the legally required meal periods is evidenced by DEFENDANT’s 5 business records. DEFENDANT also failed to correctly allocate PLAINTIFF’S FSA 6 disbursements in an amount to be determined at trial. The amount in controversy for 7 PLAINTIFF individually does not exceed the sum or value of $75,000. 8 JURISDICTION AND VENUE 9 23. This Court has jurisdiction over this Action pursuant to California Code of 10 Civil Procedure, Section 410.10 and California Business & Professions Code, Section 11 17203. This action is brought as a Class Action on behalf of PLAINTIFF and similarly 12 situated employees of DEFENDANT pursuant to Cal. Code of Civ. Proc. § 382. 13 24. Venue is proper in this Court pursuant to California Code of Civil Procedure, 14 Sections 395 and 395.5, because PLAINTIFF worked in this County for DEFENDANT and 15 DEFENDANT (i) currently maintains and at all relevant times maintained offices and 16 facilities in this County and/or conducts substantial business in this County, and (ii) 17 committed the wrongful conduct herein alleged in this County against members of the 18 CALIFORNIA CLASS. 19 20 THE CALIFORNIA CLASS 21 25. PLAINTIFF brings the First Cause of Action for Unfair, Unlawful and 22 Deceptive Business Practices pursuant to Cal. Bus. & Prof. Code §§ 17200, (the "UCL") as 23 a Class Action, pursuant to Cal. Code of Civ. Proc. § 382, on behalf of a California class, 24 defined as all individuals who are or previously were employed by DEFENDANT in 25 California, including any employees staffed with DEFENDANT by a third party, and 26 classified as non-exempt employees (the “CALIFORNIA CLASS”) at any time during the 27 period beginning four (4) years prior to the filing of this Complaint and ending on the date 28 10 CLASS ACTION COMPLAINT 1 as determined by the Court (the “CALIFORNIA CLASS PERIOD”). The amount in 2 controversy for the aggregate claim of CALIFORNIA CLASS Members is under five 3 million dollars ($5,000,000.00). 4 26. To the extent equitable tolling operates to toll claims by the CALIFORNIA 5 CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted 6 accordingly. 7 27. DEFENDANT, as a matter of company policy, practice and procedure, and in 8 violation of the applicable Labor Code, Industrial Welfare Commission (“IWC”) Wage 9 Order requirements, and the applicable provisions of California law, intentionally, 10 knowingly, and wilfully, engaged in a practice whereby DEFENDANT failed to record all 11 meal and rest breaks missed by PLAINTIFF and other CALIFORNIA CLASS Members, 12 even though DEFENDANT enjoyed the benefit of this work, required employees to perform 13 this work and permits or suffers to permit this work. 14 28. DEFENDANT has the legal burden to establish that each and every 15 CALIFORNIA CLASS Member was paid accurately for all meal and rest breaks missed as 16 required by California laws. The DEFENDANT, however, as a matter of policy and 17 procedure failed to have in place during the CALIFORNIA CLASS PERIOD and still fails 18 to have in place a policy or practice to ensure that each and every CALIFORNIA CLASS 19 Member is paid as required by law. This common business practice is applicable to each 20 and every CALIFORNIA CLASS Member can be adjudicated on a class-wide basis as 21 unlawful, unfair, and/or deceptive under Cal. Business & Professions Code §§ 17200, (the 22 “UCL”) as causation, damages, and reliance are not elements of this claim. 23 29. The CALIFORNIA CLASS, is so numerous that joinder of all CALIFORNIA 24 CLASS Members is impracticable. 25 30. DEFENDANT violated the rights of the CALIFORNIA CLASS under 26 California law by: 27 (a) Committing an act of unfair competition in violation of , Cal. Bus. & 28 Prof. Code §§ 17200, (the "UCL"), by unlawfully, unfairly and/or 11 CLASS ACTION COMPLAINT 1 deceptively having in place company policies, practices and procedures 2 that failed to record and pay PLAINTIFF and the other members of the 3 CALIFORNIA CLASS for all time worked, including minimum wages 4 owed and overtime wages owed for work performed by these 5 employees; and, 6 (b) Committing an act of unfair competition in violation of the UCL, by 7 failing to provide the PLAINTIFF and the other members of the 8 CALIFORNIA CLASS with the legally required meal and rest periods. 9 31. This Class Action meets the statutory prerequisites for the maintenance of a 10 Class Action as set forth in Cal. Code of Civ. Proc. § 382, in that: 11 (a) The persons who comprise the CALIFORNIA CLASS are so numerous 12 that the joinder of all such persons is impracticable and the disposition 13 of their claims as a class will benefit the parties and the Court; 14 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief 15 issues that are raised in this Complaint are common to the 16 CALIFORNIA CLASS will apply to every member of the 17 CALIFORNIA CLASS; 18 (c) The claims of the representative PLAINTIFF are typical of the claims 19 of each member of the CALIFORNIA CLASS. PLAINTIFF, like all 20 the other members of the CALIFORNIA CLASS, was classified as a 21 non-exempt employee paid on an hourly basis who was subjected to the 22 DEFENDANT’s deceptive practice and policy which failed to provide 23 the legally required meal and rest periods to the CALIFORNIA CLASS 24 and thereby underpaid compensation to PLAINTIFF and 25 CALIFORNIA CLASS. PLAINTIFF sustained economic injury as a 26 result of DEFENDANT’s employment practices. PLAINTIFF and the 27 members of the CALIFORNIA CLASS were and are similarly or 28 12 CLASS ACTION COMPLAINT 1 identically harmed by the same unlawful, deceptive and unfair 2 misconduct engaged in by DEFENDANT; and, 3 (d) The representative PLAINTIFF will fairly and adequately represent and 4 protect the interest of the CALIFORNIA CLASS, and has retained 5 counsel who are competent and experienced in Class Action litigation. 6 There are no material conflicts between the claims of the representative 7 PLAINTIFF and the members of the CALIFORNIA CLASS that would 8 make class certification inappropriate. Counsel for the CALIFORNIA 9 CLASS will vigorously assert the claims of all CALIFORNIA CLASS 10 Members. 11 32. In addition to meeting the statutory prerequisites to a Class Action, this action 12 is properly maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, in that: 13 (a) Without class certification and determination of declaratory, injunctive, 14 statutory and other legal questions within the class format, prosecution 15 of separate actions by individual members of the CALIFORNIA 16 CLASS will create the risk of: 17 1) Inconsistent or varying adjudications with respect to individual 18 members of the CALIFORNIA CLASS which would establish 19 incompatible standards of conduct for the parties opposing the 20 CALIFORNIA CLASS; and/or, 21 2) Adjudication with respect to individual members of the 22 CALIFORNIA CLASS which would as a practical matter be 23 dispositive of interests of the other members not party to the 24 adjudication or substantially impair or impede their ability to 25 protect their interests. 26 (b) The parties opposing the CALIFORNIA CLASS have acted or refused 27 to act on grounds generally applicable to the CALIFORNIA CLASS, 28 making appropriate class-wide relief with respect to the CALIFORNIA 13 CLASS ACTION COMPLAINT 1 CLASS as a whole in that DEFENDANT failed to pay all wages due to 2 members of the CALIFORNIA CLASS as required by law; 3 1) With respect to the First Cause of Action, the final relief on 4 behalf of the CALIFORNIA CLASS sought does not relate 5 exclusively to restitution because through this claim 6 PLAINTIFF seeks declaratory relief holding that the 7 DEFENDANT’s policy and practices constitute unfair 8 competition, along with declaratory relief, injunctive relief, and 9 incidental equitable relief as may be necessary to prevent and 10 remedy the conduct declared to constitute unfair competition; 11 (c) Common questions of law and fact exist as to the members of the 12 CALIFORNIA CLASS, with respect to the practices and violations of 13 California law as listed above, and predominate over any question 14 affecting only individual CALIFORNIA CLASS Members, and a Class 15 Action is superior to other available methods for the fair and efficient 16 adjudication of the controversy, including consideration of: 17 1) The interests of the members of the CALIFORNIA CLASS in 18 individually controlling the prosecution or defense of separate 19 actions in that the substantial expense of individual actions will 20 be avoided to recover the relatively small amount of economic 21 losses sustained by the individual CALIFORNIA CLASS 22 Members when compared to the substantial expense and burden 23 of individual prosecution of this litigation; 24 2) Class certification will obviate the need for unduly duplicative 25 litigation that would create the risk of: 26 A. Inconsistent or varying adjudications with respect to 27 individual members of the CALIFORNIA CLASS, which 28 14 CLASS ACTION COMPLAINT 1 would establish incompatible standards of conduct for the 2 DEFENDANT; and/or, 3 B. Adjudications with respect to individual members of the 4 CALIFORNIA CLASS would as a practical matter be 5 dispositive of the interests of the other members not 6 parties to the adjudication or substantially impair or 7 impede their ability to protect their interests; 8 3) In the context of wage litigation because a substantial number of 9 individual CALIFORNIA CLASS Members will avoid asserting 10 their legal rights out of fear of retaliation by DEFENDANT, 11 which may adversely affect an individual’s job with 12 DEFENDANT or with a subsequent employer, the Class Action 13 is the only means to assert their claims through a representative; 14 and, 15 4) A class action is superior to other available methods for the fair 16 and efficient adjudication of this litigation because class 17 treatment will obviate the need for unduly and unnecessary 18 duplicative litigation that is likely to result in the absence of 19 certification of this action pursuant to Cal. Code of Civ. Proc. § 20 382. 21 33. This Court should permit this action to be maintained as a Class Action 22 pursuant to Cal. Code of Civ. Proc. § 382 because: 23 (a) The questions of law and fact common to the CALIFORNIA CLASS 24 predominate over any question affecting only individual CALIFORNIA 25 CLASS Members because the DEFENDANT’s employment practices 26 are applied with respect to the CALIFORNIA CLASS; 27 (b) A Class Action is superior to any other available method for the fair 28 and efficient adjudication of the claims of the members of the 15 CLASS ACTION COMPLAINT 1 CALIFORNIA CLASS because in the context of employment litigation 2 a substantial number of individual CALIFORNIA CLASS Members 3 will avoid asserting their rights individually out of fear of retaliation or 4 adverse impact on their employment; 5 (c) The members of the CALIFORNIA CLASS are so numerous that it is 6 impractical to bring all members of the CALIFORNIA CLASS before 7 the Court; 8 (d) PLAINTIFF, and the other CALIFORNIA CLASS Members, will not 9 be able to obtain effective and economic legal redress unless the action 10 is maintained as a Class Action; 11 (e) There is a community of interest in obtaining appropriate legal and 12 equitable relief for the acts of unfair competition, statutory violations 13 and other improprieties, and in obtaining adequate compensation for 14 the damages and injuries which DEFENDANT’s actions have inflicted 15 upon the CALIFORNIA CLASS; 16 (f) There is a community of interest in ensuring that the combined assets of 17 DEFENDANT are sufficient to adequately compensate the members of 18 the CALIFORNIA CLASS for the injuries sustained; 19 (g) DEFENDANT has acted or refused to act on grounds generally 20 applicable to the CALIFORNIA CLASS, thereby making final class- 21 wide relief appropriate with respect to the CALIFORNIA CLASS as a 22 whole; 23 (h) The members of the CALIFORNIA CLASS are readily ascertainable 24 from the business records of DEFENDANT; and, 25 (i) Class treatment provides manageable judicial treatment calculated to 26 bring a efficient and rapid conclusion to all litigation of all wage and 27 hour related claims arising out of the conduct of DEFENDANT as to 28 the members of the CALIFORNIA CLASS. 16 CLASS ACTION COMPLAINT 1 34. DEFENDANT maintains records from which the Court can ascertain and 2 identify by job title each of DEFENDANT’s employees who have been intentionally 3 subjected to DEFENDANT’s company policy, practices and procedures as herein alleged. 4 PLAINTIFF will seek leave to amend the Complaint to include any additional job titles of 5 similarly situated employees when they have been identified. 6 7 THE CALIFORNIA LABOR SUB-CLASS 8 35. PLAINTIFF further brings the Second, Third, Fourth, Fifth, Sixth, Seventh, 9 Eighth and Ninth causes Action on behalf of a California sub-class, defined as all members 10 of the CALIFORNIA CLASS who are or previously were employed by DEFENDANT in 11 California, including any employees staffed with DEFENDANT by a third party, and 12 classified as non-exempt employees (the “CALIFORNIA LABOR SUB-CLASS”) at any 13 time during the period three (3) years prior to the filing of the complaint and ending on the 14 date as determined by the Court (the “CALIFORNIA LABOR SUB-CLASS PERIOD”) 15 pursuant to Cal. Code of Civ. Proc. § 382. The amount in controversy for the aggregate 16 claim of CALIFORNIA LABOR SUB-CLASS Members is under five million dollars 17 ($5,000,000.00). 18 36. DEFENDANT, in violation of the applicable Labor Code, Industrial Welfare 19 Commission (“IWC”) Wage Order requirements, and the applicable provisions of California 20 law, intentionally, knowingly, and wilfully, engaged in a practice whereby DEFENDANT 21 failed to correctly calculate compensation for the time worked by PLAINTIFF and the other 22 members of the CALIFORNIA LABOR SUB-CLASS and reporting time wages owed to 23 these employees, even though DEFENDANT enjoyed the benefit of this work, required 24 employees to perform this work and permitted or suffered to permit this work. 25 DEFENDANT has denied these CALIFORNIA LABOR SUB-CLASS Members wages to 26 which these employees are entitled in order to unfairly cheat the competition and unlawfully 27 profit. To the extent equitable tolling operates to toll claims by the CALIFORNIA LABOR 28 17 CLASS ACTION COMPLAINT 1 SUB-CLASS against DEFENDANT, the CALIFORNIA LABOR SUB-CLASS PERIOD 2 should be adjusted accordingly. 3 37. DEFENDANT maintains records from which the Court can ascertain and 4 identify by name and job title, each of DEFENDANT’s employees who have been 5 intentionally subjected to DEFENDANT’s company policy, practices and procedures as 6 herein alleged. PLAINTIFF will seek leave to amend the complaint to include any 7 additional job titles of similarly situated employees when they have been identified. 8 38. The CALIFORNIA LABOR SUB-CLASS is so numerous that joinder of all 9 CALIFORNIA LABOR SUB-CLASS Members is impracticable. 10 39. Common questions of law and fact exist as to members of the CALIFORNIA 11 LABOR SUB-CLASS, including, but not limited, to the following: 12 (a) Whether DEFENDANT unlawfully failed to correctly calculate and pay 13 compensation due to members of the CALIFORNIA LABOR SUB- 14 CLASS for missed meal and rest breaks in violation of the California 15 Labor Code and California regulations and the applicable California 16 Wage Order; 17 (b) Whether DEFENDANT failed to provide the PLAINTIFF and the other 18 members of the CALIFORNIA LABOR SUB-CLASS with accurate 19 itemized wage statements; 20 (c) Whether DEFENDANT has engaged in unfair competition by the 21 above-listed conduct; 22 (d) The proper measure of damages and penalties owed to the members of 23 the CALIFORNIA LABOR SUB-CLASS; and, 24 (e) Whether DEFENDANT’s conduct was willful. 25 40. DEFENDANT violated the rights of the CALIFORNIA LABOR SUB- 26 CLASS under California law by: 27 (a) Violating Cal. Lab. Code § 510, by failing to correctly pay the 28 PLAINTIFF and the members of the CALIFORNIA LABOR SUB- 18 CLASS ACTION COMPLAINT 1 CLASS all wages due for overtime worked, for which DEFENDANT is 2 liable pursuant to Cal. Lab. Code § 1194; 3 (b) Violating Cal. Lab. Code §§ 1194, 1197 & 1197.1, by failing to 4 accurately pay PLAINTIFF and the members of the CALIFORNIA 5 LABOR SUB-CLASS the correct minimum wage pay for which 6 DEFENDANT is liable pursuant to Cal. Lab. Code §§ 1194 and 1197; 7 (c) Violating Cal. Lab. Code § 226, by failing to provide PLAINTIFF and 8 the members of the CALIFORNIA LABOR SUB-CLASS with an 9 accurate itemized statement in writing showing the corresponding 10 correct amount of wages earned by the employee; 11 (d) Violating Cal. Lab. Code §§ 226.7 and 512, by failing to provide 12 PLAINTIFF and the other members of the CALIFORNIA LABOR 13 SUB-CLASS with all legally required off-duty, uninterrupted thirty 14 (30) minute meal breaks and the legally required off-duty rest breaks; 15 (e) Violating Cal. Lab. Code §§ 201, 202 and/or 203, which provides that 16 when an employee is discharged or quits from employment, the 17 employer must pay the employee all wages due without abatement, by 18 failing to tender full payment and/or restitution of wages owed or in the 19 manner required by California law to the members of the 20 CALIFORNIA LABOR SUB-CLASS who have terminated their 21 employment; and, 22 (f) Violating Cal. Lab. Code § 2802 by failing to reimburse PLAINTIFF 23 and the CALIFORNIA LABOR SUB-CLASS members with necessary 24 expenses incurred in the discharge of their job duties. 25 41. This Class Action meets the statutory prerequisites for the maintenance of a 26 Class Action as set forth in Cal. Code of Civ. Proc. § 382, in that: 27 (a) The persons who comprise the CALIFORNIA LABOR SUB-CLASS 28 are so numerous that the joinder of all CALIFORNIA LABOR SUB- 19 CLASS ACTION COMPLAINT 1 CLASS Members is impracticable and the disposition of their claims as 2 a class will benefit the parties and the Court; 3 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief 4 issues that are raised in this Complaint are common to the 5 CALIFORNIA LABOR SUB-CLASS and will apply to every member 6 of the CALIFORNIA LABOR SUB-CLASS; 7 (c) The claims of the representative PLAINTIFF are typical of the claims 8 of each member of the CALIFORNIA LABOR SUB-CLASS. 9 PLAINTIFF, like all the other members of the CALIFORNIA LABOR 10 SUB-CLASS, was a non-exempt employee paid on an hourly basis who 11 was subjected to the DEFENDANT’s practice and policy which failed 12 to pay the correct amount of wages due to the CALIFORNIA LABOR 13 SUB-CLASS. PLAINTIFF sustained economic injury as a result of 14 DEFENDANT’s employment practices. PLAINTIFF and the members 15 of the CALIFORNIA LABOR SUB-CLASS were and are similarly or 16 identically harmed by the same unlawful, deceptive, and unfair 17 misconduct engaged in by DEFENDANT; and, 18 (d) The representative PLAINTIFF will fairly and adequately represent and 19 protect the interest of the CALIFORNIA LABOR SUB-CLASS, and 20 has retained counsel who are competent and experienced in Class 21 Action litigation. There are no material conflicts between the claims of 22 the representative PLAINTIFF and the members of the CALIFORNIA 23 LABOR SUB-CLASS that would make class certification 24 inappropriate. Counsel for the CALIFORNIA LABOR SUB-CLASS 25 will vigorously assert the claims of all CALIFORNIA LABOR SUB- 26 CLASS Me