Preview
1 D.LAW, INC. 6/20/2024
Emil Davtyan (SBN 299363)
2 Emil@d.law
David Yeremian (SBN 226337)
3 d.yeremian@d.law
Natalie Haritoonian (SBN 324318)
4 n.haritoonian@d.law
Jonas Agle (SBN 352712)
5 j.agle@d.law
880 E Broadway
6 Glendale, CA 91205
Telephone: (818) 962-6465
7 Fax: (818) 962-6469
8 Attorneys for Plaintiff PATRICIA ANDERSON,
on behalf of herself and others similarly situated
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF BUTTE
12 PATRICIA ANDERSON, an individual on Case No.: 24CV02070
behalf of herself and all others similarly
13 situated, CLASS ACTION
14 Plaintiff, Assigned for All Purposes To:
Hon.
15 vs. Dept.:
16 ARBOR POST ACUTE LLC, a California CLASS ACTION COMPLAINT FOR:
limited liability company; PROVIDENCE
17 GROUP, INC., a California corporation; and 1. Failure to Pay Minimum Wages;
DOES 1 through 50, inclusive, 2. Failure to Pay Wages and Overtime Under
18 Labor Code § 510;
Defendants. 3. Meal Period Liability Under Labor Code §
19 226.7;
4. Rest-Break Liability Under Labor Code
20 § 226.7;
5. Violation of Labor Code § 226(a);
21 6. Violation of Labor Code § 203;
7. Violation of Labor Code § 204;
22 8. Failure to Pay Wages Due, Negotiable and
Payable in Cash on Demand (Labor Code §§
23 212 and 213);
9. Failure to Keep Required Payroll Records
24 under Labor Code §§ 1174 and 1174.5;
10. Failure to Reimburse Necessary Business
25 Expenses § 2802; and
11. Violation of Business & Professions Code
26 § 17200 et seq.
27 DEMAND FOR JURY TRIAL
28
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CLASS ACTION COMPLAINT
1 INTRODUCTION
2 1. Plaintiff PATRICIA ANDERSON (“Plaintiff”) brings this action on behalf of
3 herself and the Class Members who are defined as “all current and former employees within the
4 State of California who, at any time from four (4) years prior to the filing of this lawsuit, are or
5 were employed as non-exempt hourly employees by Defendants ARBOR POST ACUTE, LLC, a
6 California limited liability company; PROVIDENCE GROUP, INC.; a California corporation; and
7 DOES 1 through 50” (all defendants being collectively referred to herein as “Defendants”).
8 2. Plaintiff alleges that Defendants, and each of them, violated various provisions of
9 the California Labor Code, relevant orders of the Industrial Welfare Commission (IWC), and the
10 California Business & Professions Code, and seeks redress for these violations.
11 3. Upon information and belief, Plaintiff was employed by Defendants and (1) shared
12 similar job duties and responsibilities; (2) was subjected to the same policies and practices; and (3)
13 endured similar violations at the hands of Defendants as the other Class Members who served in
14 similar and related positions.
15 THE PARTIES
16 A. The Plaintiff
17 4. Plaintiff PATRICIA ANDERSON resides in California, during the time period
18 relevant to this Complaint, was employed by Defendants as a non-exempt hourly employee within
19 the State of California.
20 B. The Defendants
21 5. Defendant ARBOR POST ACUTE, LLC is a California limited liability company
22 with its principal offices in Chico, California and is registered with the California Secretary of
23 State. Defendant ARBOR POST ACUTE, LLC has been the employer listed on the wage
24 statements and employment records issued to Plaintiff during the relevant time period that Plaintiff
25 was employed with Defendants. ARBOR POST ACUTE, LLC employs Plaintiff and the Class
26 Members in California, including at Defendants’ offices and facilities in Chico, California, and
27 throughout California, and conducts business throughout California.
28 6. Defendant PROVIDENCE GROUP, INC. is a California corporation and is
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CLASS ACTION COMPLAINT
1 registered with the California Secretary of State. PROVIDENCE GROUP, INC. employs Plaintiff
2 and the Class Members in California, including at Defendants’ offices and facilities in Chico,
3 California, and throughout California, and conducts business throughout California.
4 7. The true names and capacities, whether individual, corporate, associate, or
5 whatever else, of the Defendants sued herein as Does 1 through 50, inclusive, are currently
6 unknown to Plaintiff, who therefore sue these Defendants by such fictitious names under Code of
7 Civil Procedure § 474. Plaintiff is informed and believes and thereon alleges that Defendants
8 designated herein as Does 1 through 50, inclusive, and each of them, are legally responsible in
9 some manner for the unlawful acts referred to herein. Plaintiff will seek leave of court to amend
10 this Complaint to reflect the true names and capacities of the Defendants designated herein as
11 Does 1 through 50 when their identities become known.
12 8. Plaintiff is informed and believes and thereon alleges that each Defendant acted in
13 all respects pertinent to this action as the agent of the other Defendants, that Defendants carried
14 out a joint scheme, business plan, or policy in all respects pertinent hereto, and that the acts of
15 each Defendant are legally attributable to the other Defendants. Furthermore, Defendants acted in
16 all respects as the employers or joint employers of Class Members. Defendants, and each of them,
17 exercised control over the wages, hours or working conditions of Class Members, or suffered or
18 permitted Class Members to work, or engaged, thereby creating a common law employment
19 relationship, with Class Members. Therefore, Defendants, and each of them, employed or jointly
20 employed Class Members.
21 9. Whenever and wherever reference is made in this Complaint to any act by a
22 defendant or defendants, such allegations and references shall also be deemed to mean the acts and
23 failures to act of each defendant acting individually, jointly, and severally.
24 10. Whenever and wherever reference is made to individuals who are not named as a
25 Defendant in this Complaint but were agents, servants, employees and/or supervisors of
26 Defendants, such individuals at all relevant times acted on behalf of Defendants within the scope
27 of their employment.
28 ///
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CLASS ACTION COMPLAINT
1 JURISDICTION AND VENUE
2 11. This Court has jurisdiction over this Action pursuant to California Code of Civil
3 Procedure § 410.10 and California Business & Professions Code § 17203. This Action is brought
4 as a Class Action on behalf of similarly situated Class Members of Defendants pursuant to
5 California Code of Civil Procedure § 382. Venue as to Defendants is also proper in this judicial
6 district pursuant to California Code of Civil Procedure § 395 et seq. Upon information and belief,
7 the obligations and liabilities giving rise to this lawsuit occurred in part in Butte County.
8 Defendants maintain and operate facilities in Butte County and employs Plaintiff and other Class
9 Members in Butte County, while doing business throughout California.
10 FACTUAL BACKGROUND
11 12. Class Members consistently worked at Defendants behest without being paid all
12 wages due. Class Members were either not paid by Defendants for all hours worked or were not
13 paid at the appropriate minimum, regular and overtime rates. Plaintiff also contends that
14 Defendants failed to pay Class Members all wages due and owing, including by requiring off the
15 clock work, unlawfully rounding to their detriment, failing to provide meal and rest breaks, failing
16 to furnish accurate wage statements, failing to timely pay wages including final wages, failure to
17 pay wages due, negotiable and payable in cash on demand, failing to maintain accurate records,
18 and failing to reimburse necessary business expenses all in violation of various provisions of the
19 California Labor Code and applicable Wage Orders.
20 13. During the course of Class Members’ employment with Defendants, they were not
21 paid all wages they were owed, including for all work performed resulting in off the clock work.
22 Defendants required Class Members to perform pre-shift and post-shift off the clock work. For
23 instance, before being able to clock in, Class Members were required to wait in line for COVID-19
24 screening checks, which involved having their temperatures taken and filling out symptom
25 questionnaires. Additionally, before being able to clock in, Class Members were required to put on
26 their protective gear which consisted of masks and gowns in. Moreover, Class Members were
27 required to wait in line to approach the timekeeping system which took several minutes resulting
28 in further off the clock work. Moreover, Defendants instructed Class Members to clock out and
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CLASS ACTION COMPLAINT
1 continue working after the end of their scheduled shifts to take phone calls or continue working
2 from home. Furthermore, Defendants frequently contacted Class Members on their personal cell
3 phones with work demands outside of scheduled work hours, and Class Members were not
4 compensated for this time. Defendants also required Class Members to work through portions of
5 their scheduled meal periods, but their time was automatically deducted resulting in further off the
6 clock work.
7 14. Moreover, Defendants had a consistent policy and practice of unlawfully rounding
8 hours worked to the detriment of the Class Members. Rather than paying Class Members for all
9 hours and minutes they actually worked, Defendants followed a uniform policy and practice of
10 rounding all time entries to the nearest quarter-hour or half-hour (i.e. to the nearest 15-minute or
11 30-minute time increment), and generally did so to the detriment of the Class Members, and
12 Plaintiff contend this policy is not neutral and resulted, over time, to the detriment of the Class
13 Members by systematically under-compensating them. Rather than reflecting the actual hours
14 worked by Class Members, the time entries were rounded and reduced to reflect the scheduled
15 work time rather than the actual hours worked. These unlawfully rounded time entries were
16 inputted into Defendants’ payroll system from which wage statements and payroll checks were
17 created.
18 15. By implementing policies, programs, practices, procedures and protocols which
19 resulted in off the clock work and unlawful rounding, Defendants’ willful actions resulted in the
20 systematic underpayment of wages to Class Members, including underpayment of overtime pay to
21 Class Members over the relevant time period. For example, the above described off the clock work
22 addressed above caused Plaintiff to begin receiving overtime pay later than they should have.
23 16. As a result of the above described requirements to work off the clock and unlawful
24 rounding by Defendants, and the other wage violations they endured at Defendants’ hands, Class
25 Members were not properly paid all wages earned and all wages owed to them by Defendants,
26 including when working more than eight (8) hours in any given day and/or more than forty (40)
27 hours in any given week.
28 17. As a result of Defendants’ unlawful policies and practices, Class Members incurred
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CLASS ACTION COMPLAINT
1 overtime hours worked for which they were not adequately and completely compensated, in
2 addition to the hours they were required to work off the clock. To the extent applicable,
3 Defendants also failed to pay Class Members at an overtime rate of 1.5 times the regular rate for
4 the first eight hours of the seventh consecutive work day in a week and overtime payments at the
5 rate of 2 times the regular rate for hours worked over eight (8) on the seventh consecutive work
6 day, as required under the Labor Code and applicable IWC Wage Orders.
7 18. Therefore, from at least four (4) years prior to the filing of this lawsuit and
8 continuing to the present, Defendants had a consistent policy or practice of failing to pay Class
9 Members for all hours worked, and failing to pay minimum wages for all time worked, as required
10 by California law. Defendants thus failed to pay Class Members at least minimum wages for all
11 the time they worked for Defendants in violation of the Labor Code and applicable IWC Wage
12 Orders as the actual times when Class Members were under the control and direction of
13 Defendants was under reported in the hours reflected on the timekeeping records. Furthermore,
14 Defendants’ willful actions resulted in the systematic underpayment of wages to Class Members,
15 including underpayment of overtime pay to Class Members over a period of time.
16 19. Therefore, from at least four (4) years prior to the filing of this lawsuit and
17 continuing to the present, Defendants had a consistent policy or practice of failing to pay Class
18 Members for all hours worked. Also, from at least four (4) years prior to the filing of this lawsuit
19 and continuing to the present, Defendants also had a consistent policy or practice of failing to pay
20 Class Members their true and correct overtime compensation at premium overtime rates for all
21 hours worked in excess of eight (8) hours a day and/or forty (40) hours a week, and double-time
22 rates for all hours worked in excess of twelve (12) hours a day, in violation of Labor Code § 510
23 and the corresponding sections of IWC Wage Orders.
24 20. Additionally, Defendants failed to provide all the legally required unpaid, off-duty
25 meal periods and all the legally required paid, off-duty rest periods to Class Members, as required
26 by the applicable Wage Order and Labor Code. Class Members were required to perform work as
27 ordered by Defendants for more than five (5) hours during a shift but were often required to do so
28 without receiving a lawful and timely meal break. In addition to untimely meal periods,
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CLASS ACTION COMPLAINT
1 Defendants also required Class Members to respond to work demands. Defendants placed their
2 needs over Class Members lawful meal and rest breaks and this resulted in Class Members often
3 having to work through their scheduled meal and/or rest breaks, or otherwise taking shortened
4 ones, because the demands of the job would not avail them the opportunity to take a lawfully
5 uninterrupted and off duty meal and/or rest break.
6 21. On the occasions when Class Members worked over 10 hours in a shift, Defendants
7 also failed to provide them with a second, uninterrupted, timely and duty-free meal period. As a
8 result, Defendants’ failure to provide Class Members with all legally required off-duty, unpaid
9 meal periods and all the legally required off-duty, paid rest periods is and will be evidenced by
10 Defendants’ business records, or lack thereof. Defendants also failed to pay Class Members
11 “premium pay,” i.e. one hour of wages at each Class Member’s effective hourly rate of pay, for
12 each meal period or rest break that Defendants failed to provide or deficiently provided.
13 22. Therefore, for at least four years prior to the filing of this action and through to the
14 present, Defendants have regularly required Class Members to work shifts in excess of five (5)
15 hours without providing them with uninterrupted meal periods of not less than thirty (30) minutes,
16 and shifts in excess of (10) hours without providing them with second meal periods of not less
17 than thirty minutes; nor did Defendants pay Class Members “premium pay,” i.e. one hour of
18 wages at each Class Member’s effective hourly rate of pay, for each meal period that Defendants
19 failed to provide or deficiently provided.
20 23. Meal period violations thus occurred in one or more of the following manners:
21 (a) Class Members were not provided full thirty-minute duty free meal periods
22 for work days in excess of five (5) hours and were not compensated one (1)
23 hour’s wages in lieu thereof, all in violation of, among others, Labor Code
24 §§ 226.7, 512, and the applicable Industrial Welfare Commission Wage
25 Order(s);
26 (b) Class Members were not provided second full thirty-minute duty free meal
27 periods for work days in excess of ten (10) hours;
28 (c) Class Members were required to work through at least part of their daily
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CLASS ACTION COMPLAINT
1 meal period(s);
2 (d) Meal periods were provided after five (5) hours of continuous work during
3 a shift; and
4 (e) Class Members were restricted in their ability to take a full thirty-minute
5 meal period.
6 24. Class Members were also not authorized and permitted to take lawful rest periods,
7 were systematically required by Defendants to work through or during breaks and were not
8 provided with one (1) hour’s wages in lieu thereof. Class Members were restricted in their ability
9 to take their full ten (10) minutes net rest time or were otherwise not provided with duty-free rest
10 periods. Therefore, from at least four years prior to the filing of this lawsuit and continuing to the
11 present, Defendants have consistently failed to provide Class Members with paid rest breaks of not
12 less than ten minutes for every work period of four or more consecutive hours; or major fraction
13 thereof, nor did Defendant pay Class Members premium pay for each day on which requisite rest
14 breaks were not provided or were deficiently provided.
15 25. Rest period violations therefore arose in one or more of the following manners:
16 (a) Class Members were required to work without being provided a minimum
17 ten (10) minute rest period for every four (4) hours or major fraction
18 thereof worked and were not compensated one (1) hour of pay at their
19 regular rate of compensation for each workday that a rest period was not
20 provided;
21 (b) Class Members were not authorized and permitted to take timely rest
22 periods for every four hours worked, or major fraction thereof; and
23 (c) Class Members were required to remain on-duty during rest periods or
24 otherwise had their rest periods interrupted by work demands.
25 26. Defendants also consistently failed to issue accurate itemized wage statements as
26 required by Labor Code § 226(a). Specifically, the wage statements given to Class Members failed
27 to accurately account for unpaid wages and overtime because Defendants had unlawfully rounded
28 time entries to the detriment of the Class Members and their actual hours worked were under-
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CLASS ACTION COMPLAINT
1 reported due to off the clock work. Additionally, the wage statements given to Class Members
2 failed to accurately account for premium pay for deficiently provided meal periods and rest
3 breaks.
4 27. From at least four (4) years prior to filing this lawsuit and continuing to the present,
5 Defendants have thus also had a consistent policy of failing to pay all wages owed to Class
6 Members at the time of their termination of within seventy-two (72) hours of their resignation, as
7 required by California wage-and-hour laws. Specifically, Plaintiff and Class Members were not
8 paid all regular and overtime wages because Defendants failed to pay for all hours worked by
9 requiring off the clock work and unlawfully rounding time entries to the detriment of Class
10 Members. Additionally, Defendants failed to pay premium wages owed for unprovided meal
11 periods and rest periods, as further detailed in this Complaint. Defendants’ failure to pay said
12 wages within the required time was willful within the meaning of Labor Code § 203.
13 28. Additionally, from at least four (4) years prior to the filing of this lawsuit and
14 continuing to the present, Defendants have regularly required Class Members to incur business
15 expenses in the course of performing their required job duties for Defendants including for cell
16 phone expenses and home internet. Upon information and belief, Class Members incurred similar
17 costs. These expenses incurred by Class Members were necessary and required of them in
18 performing their assigned job duties, but Defendants failed to reimburse Class Members for all
19 such necessary expenditures, thus entitling them to reimbursement according to proof as required
20 under Labor Code § 2802 and the applicable provisions of the IWC Wage Orders.
21 29. Defendants failed to pay Plaintiff and Class Members with an order, check, draft,
22 note, memorandum, or other acknowledgment of indebtedness that was payable on demand,
23 without discount at some established place of business in the state. Defendants' issued pay cards to
24 Plaintiff and Class Members for wages earned. These pay cards were useable for a fee and did not
25 have a provision for use and payment in California at no cost to the employee. Therefore,
26 Defendants' failed to provide Plaintiff and Class Members with checks, drafts, notes or other
27 acknowledgements of indebtedness that were payable on demand without discount as required by
28 Labor Code § 212, which required Plaintiff and Class Members to incur fees to use, was not fully
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CLASS ACTION COMPLAINT
1 cashable, and not usable at all financial institutions.
2 30. In light of the foregoing, Plaintiff and Class Members bring this action pursuant to,
3 inter alia, Labor Code §§ 201, 202, 203, 204, 210, 212, 213, 226, 226.3, 226.7, 248, 510, 512,
4 558, 558.1, 1174, 1174.5, 1182.12, 1185, 1194, 1194.2, 1197, 1198, 1199, 2802 and California
5 Code of Regulations, Title 8, section 11000 et seq.
6 31. Furthermore, pursuant to Business and Professions Code §§ 17200-17208, Plaintiff
7 and the Class Members seek injunctive relief, restitution, and disgorgement of all benefits
8 Defendants have enjoyed from their violations of Labor Code and the other unfair, unlawful, or
9 fraudulent practices alleged in this Complaint.
10 CLASS ALLEGATIONS
11 32. Plaintiff seeks to represent the Subclasses composed of and defined as follows:
12 a. Subclass 1. Minimum Wages Subclass. All Class Members who were not
13 compensated for all hours worked for Defendants at the applicable minimum wage.
14 b. Subclass 2. Wages and Overtime Subclass. All Class Members who were not
15 compensated for all hours worked for Defendants at the required rates of pay, including for all
16 hours worked in excess of eight in a day and/or forty in a week.
17 c. Subclass 3. Meal Period Subclass. All Class Members who were subject to
18 Defendants’ policy and/or practice of failing to provide unpaid 30-minute uninterrupted and duty-
19 free meal periods or one hour of pay at the Class Member’s regular rate of pay in lieu thereof.
20 d. Subclass 4. Rest Break Subclass. All Class Members who were subject to
21 Defendants’ policy and/or practice of failing to authorize and permit Class Members to take
22 uninterrupted, duty-free, 10-minute rest periods for every four hours worked, or major fraction
23 thereof, and failing to pay one hour of pay at the Class Member’s regular rate of pay in lieu
24 thereof.
25 e. Subclass 5. Wage Statement Subclass. All Class Members who, within the
26 applicable limitations period, were not provided with accurate itemized wage statements.
27 f. Subclass 6. Termination Pay Subclass. All Class Members who, within the
28 applicable limitations period, either voluntarily or involuntarily separated from their employment
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CLASS ACTION COMPLAINT
1 and were subject to Defendants’ policy and/or practice of failing to timely pay wages upon
2 termination.
3 g. Subclass 7: Failure to Timely Pay Wages Twice Monthly Subclass. All Class
4 Members who were subject to Defendants’ policy and practice of not timely paying all wages
5 earned when they were due and payable at least twice monthly.
6 h. Subclass 8. Payroll Records Subclass. All Class members who were subject to
7 Defendants’ policy and/or practice of failing to keep accurate time and wage records as required
8 by California wage-and-hour laws.
9 i. Subclass 9. Pay Card Subclass. All persons employed by Defendants in California
10 who were paid by pay card (or similar means) at any time during the relevant time period.
11 j. Subclass 10. Expense Reimbursement Subclass. All Class Members who incurred
12 necessary and reasonable expenses in connection with performing their job duties for Defendant
13 and who were subject to a policy and/or practice under which such expenses were not reimbursed.
14 k. Subclass 11. UCL Subclass. All Class Members who are owed restitution as a
15 result of Defendants’ business acts and practices, to the extent such acts and practices are found to
16 be unlawful, deceptive, and/or unfair.
17 33. Plaintiff reserves the right under California Rule of Court 3.765 to amend or
18 modify the class description with greater particularity or further division into subclasses or
19 limitation to particular issues. To the extent equitable tolling operates to toll claims by the Class
20 against Defendants, the Class Period should be adjusted accordingly.
21 34. Defendants, as a matter of company policy, practice and procedure, and in violation
22 of the applicable Labor Code, Industrial Welfare Commission (“IWC”) Wage Order requirements,
23 and the applicable provisions of California law, intentionally, knowingly, and willfully, engaged
24 in a practice whereby Defendants failed to correctly calculate compensation for the time worked
25 by Class Members, even though Defendants enjoyed the benefit of this work, required Class
26 Members to perform this work and permitted or suffered to permit this work. Defendants have
27 uniformly denied these Class Members wages to which these employees are entitled and failed to
28 provide meal periods or authorize and permit rest periods, in order to unfairly cheat the
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CLASS ACTION COMPLAINT
1 competition and unlawfully profit.
2 35. This action has been brought and may properly be maintained as a class action
3 under the provisions of Code of Civil Procedure § 382 because there is a well-defined community
4 of interest in litigation and proposed class is easily ascertainable.
5 A. Numerosity
6 36. The potential members of the class as defined are so numerous that joinder of all
7 the member of the class is impracticable. While the precise number of class member has not been
8 determined at this time, Plaintiff is informed and believes that Defendants employ or, during the
9 time period relevant to this lawsuit, hundreds of employees who satisfy the Class definition within
10 the State of California.
11 37. Accounting for employee turnover during the relevant time period increases this
12 number substantially. Plaintiff alleges that Defendants’ employment records will provide
13 information as to the number and location of all Class Members.
14 B. Commonality
15 38. There are questions of law and fact common to the Class that predominates over
16 any questions affecting only individual Class Members. These common questions of law and fact
17 include:
18 a. Whether Defendants failed to pay Class Members minimum wages;
19 b. Whether Defendants failed to pay Class Members wages for all hours worked;
20 c. Whether Defendants failed to pay Class Members overtime as required under Labor
21 Code § 510;
22 d. Whether Defendants violated Labor Code §§ 226.7 and 512, and the applicable
23 IWC Wage Orders, by failing to provide Class Members with requisite meal
24 periods or premium pay in lieu thereof;
25 e. Whether Defendants violated Labor Code §§ 226.7, and the applicable IWC Wage
26 Orders, by failing to authorize and permit Class Members to take requisite rest
27 breaks or provide premium pay in lieu thereof;
28 f. Whether Defendants violated Labor Code § 226(a) by providing Class Members
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CLASS ACTION COMPLAINT
1 with inaccurate wage statements;
2 g. Whether Defendants violated Labor Code §§ 201, 202, and 203 by failing to pay
3 wages and compensation due and owing at the time of termination of employment;
4 h. Whether Defendants’ conduct was willful;
5 i. Whether Defendants violated Labor Code § 226 and § 1174 and the IWC Wage
6 Orders by failing to maintain accurate records of Class Members’ earned wages and
7 work periods;
8 j. Whether Defendants violated Labor Code § 1194 by failing to compensate all Class
9 Members during the relevant time period for all hours worked, whether regular or
10 overtime;
11 k. Whether Defendants violated Labor Code § 204 by failing to timely pay wages;
12 l. Whether Defendants failed to pay wages due, negotiable and payable in cash on
13 demand;
14 m. Whether Defendants violated Labor Code § 2802 by failing to reimburse all
15 necessary business expenses Defendants required them to incur in performing their
16 job duties;
17 n. Whether Defendants violated Business and Professions Code § 17200 et seq.; and
18 o. Whether Class Members are entitled to equitable relief pursuant to Business and
19 Professions Code § 17200 et seq.
20 C. Typicality
21 39. The claims of the named plaintiff is typical of those of Class Members. The Class
22 Members all sustained injuries and damages arising out of and caused by Defendants’ common
23 course of conduct in violation of statutes, as well as regulations that have the force and effect of
24 law, as alleged herein.
25 D. Adequacy of Representation
26 40. Plaintiff will fairly and adequately represent and protect the interest of the Class
27 Members. Counsel who represents Class Members are experienced and competent in litigating
28 employment class actions.
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CLASS ACTION COMPLAINT
1 E. Superiority of Class Action
2 41. A class action is superior to other available means for the fair and efficient
3 adjudication of this controversy. Individual joinder of all Class Members is not practicable, and
4 questions of law and fact common to all Class Members predominate over any questions affecting
5 only individual Class Members. Each Class Member has been damaged and is entitled to recovery
6 by reason of Defendants’ illegal policies or practices of failing to compensate Class Members
7 properly.
8 42. As to the issues raised in this case, a class action is superior to all other methods for
9 the fair and efficient adjudication of this controversy, as joinder of all Class Members is
10 impracticable and many legal and factual questions to be adjudicated apply uniformly to all Class
11 Members. Further, as the economic or other loss suffered by vast numbers of Class Members may
12 be relatively small, the expense and burden of individual actions makes it difficult for the Class
13 Members to individually redress the wrongs they have suffered. Moreover, in the event
14 disgorgement is ordered, a class action is the only mechanism that will permit the employment of
15 a fluid fund recovery to ensure that equity is achieved. There will be relatively little difficulty in
16 managing this case as a class action, and proceeding on a class-wide basis will permit Class
17 Members to vindicate their rights for violations they endured which they would otherwise be
18 foreclosed from receiving in a multiplicity of individual lawsuits that would be cost prohibitive to
19 them.
20 43. Class action treatment will allow those persons similarly situated to litigate their
21 claims in the manner that is most efficient and economical for the parties and the judicial system.
22 Plaintiff is unaware of any difficulties in managing this case that should preclude class treatment.
23 Plaintiff contemplates the eventual issuance of notice to the proposed Class Members that would
24 set forth the subject and nature of the instant action. The Defendants’ own business records can be
25 utilized for assistance in the preparation and issuance of the contemplated notices. To the extent
26 that any further notice is required additional media and/or mailings can be used.
27 44. Defendants, as prospective and actual employers of the Class Members, had a
28 special fiduciary duty to disclose to prospective Class Members the true facts surrounding
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CLASS ACTION COMPLAINT
1 Defendants’ pay practices, policies and working conditions imposed upon Class Members as well
2 as the effect of any alleged arbitration agreements that may have been forced upon them. In
3 addition, Defendants knew they possessed special knowledge about pay practices and policies,
4 most notably intentionally refusing to pay for all hours actually worked which should have been
5 recorded in Defendants’ pay records and the consequence of the alleged arbitration agreements
6 and policies and practices on Class Members.
7 45. Class Members did not discover the fact that they were entitled to all pay under the
8 Labor Code until shortly before the filing of this lawsuit nor was there ever any discussion about
9 Plaintiff’s and the Class’ wavier of their Constitutional rights of trial by jury, right to collectively
10 organize and oppose unlawful pay practices under California law as well as obtain injunctive relief
11 preventing such practices from continuing. As a result, the applicable statutes of limitation were
12 tolled until such time as Plaintiff and the Class Members discovered their claims.
13 FIRST CAUSE OF ACTION
14 FAILURE TO PAY MINIMUM WAGES
15 (Against All Defendants)
16 46. Plaintiff re-alleges and incorporate all preceding paragraphs, as though set forth in
17 full herein.
18 47. Defendants failed to pay Class Members minimum wages for all hours worked.
19 Defendants had a consistent policy of misstating Class Members’ time records and failing to pay
20 Class Members for all hours worked. Class Members would work hours and not receive wages,
21 including as alleged above in connection with off the clock work and unlawful rounding of hours.
22 Defendants, and each of them, have intentionally and improperly changed, adjusted and/or
23 modified the hours of Class Members, which resulted in off the clock work and underpayment of
24 all wages owed to Class Members over a period of time, while benefiting Defendants. During the
25 relevant time period, Defendants thus regularly failed to pay minimum wages to Class Members,
26 to their detriment. Additionally, Defendants had a consistent policy of failing to pay Class
27 Members for hours worked during alleged meal and rest periods for which Class Members were
28 consistently denied, as also addressed herein. Defendants’ uniform pattern of unlawful wage and
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CLASS ACTION COMPLAINT
1 hour practices manifested, without limitation, applicable to the Class as a whole, as a result of
2 implementing a uniform policy and practice that denied accurate compensation to Class Members
3 as to minimum wage pay.
4 48. In California, employees must be paid at least the then applicable state minimum
5 wage for all hours worked. (IWC Wage Order MW-2014). Additionally, pursuant to California
6 Labor Code § 204, other applicable laws and regulations, and public policy, an employer must
7 timely pay its employees for all hours worked. Defendants failed to do so.
8 49. California Labor Code § 1197, entitled “Pay of Less Than Minimum Wage” states:
9 “The minimum wage for employees fixed by the commission is the minimum wage to be paid to
10 employees, and the payment of a less wage than the minimum so fixed is unlawful.”
11 50. The applicable minimum wages fixed by the commission for work during the
12 relevant period is found in Paragraph 4(A)-4(D) of the IWC Wage Orders.
13 51. The minimum wage provisions of California Labor Code are enforceable by private
14 civil action pursuant to Labor Code § 1194(a) which states: “Notwithstanding any agreement to
15 work for a lesser wage, any employee receiving less than the legal minimum wage or the legal
16 overtime compensation applicable to the employee is entitled to recover in a civil action the
17 unpaid balance of the full amount of this minimum wage or overtime compensation, including
18 interest thereon, reasonable attorney’s fees and costs of suit.”
19 52. As described in California Labor Code §§ 1185 and 1194.2, any action for wages
20 incorporates the applicable Wage Order of the California Industrial Welfare Commission. Also,
21 California Labor Code §§ 1194, 1197, 1197.1 and those Industrial Welfare Commission Wage
22 Orders entitle non-exempt employees to an amount equal to or greater than the minimum wage for
23 all hours worked. All hours must be paid at the statutory or agreed rate and no part of this rate may
24 be used as a credit against a minimum wage obligation.
25 53. In committing these violations of the California Labor Code, Defendants
26 inaccurately recorded, or required Class Members to input times that did not reflect their actual
27 hours worked, or calculated the correct time worked and consequently underpaid the actual time
28 worked by Class Members. Defendants acted in an illegal attempt to avoid the payment of all
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CLASS ACTION COMPLAINT
1 earned wages, and other benefits in violation of the California Labor Code, the Industrial Welfare
2 Commission requirements and other applicable laws and regulations. As a result of these
3 violations, Defendant also failed to timely pay all wages earned in accordance with California
4 Labor Code § 1194.
5 54. California Labor Code § 1194.2 also provides for the following remedies: “In any
6 action under Section 1194 . . . to recover wages because of the payment of a wage less than the
7 minimum wages fixed by an order of the commission, an employee shall be entitled to recover
8 liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon.”
9 55. In addition to restitution for all unpaid wages, pursuant to California Labor Code §
10 1197.1, Class Members are entitled to recover a penalty of $100.00 for the initial failure to timely
11 pay each employee minimum wages, and $250.00 for each subsequent failure to pay each
12 employee minimum wages.
13 56. Pursuant to California Labor Code § 1194.2, Class Members are further entitled to
14 recover liquidated damages in an amount equal to wages unlawfully unpaid and interest thereon.
15 57. Defendants have the ability to pay minimum wages for all time worked and have
16 willfully refused to pay such wages with the intent to secure for Defendants a discount upon this
17 indebtedness with the intent to annoy, harass, oppress, hinder, delay, or defraud Class Members.
18 58. Wherefore, Class Members are entitled to recover the unpaid minimum wages
19 (including double minimum wages), liquidated damages in an amount equal to the minimum
20 wages unlawfully unpaid, interest thereon and reasonable attorney’s fees and costs of suit pursuant
21 to California Labor Code § 1194(a). Plaintiff and the other members of the Class further request
22 recovery of all unpaid wages, according to proof, interest, statutory costs, as well as the
23 assessment of any statutory penalties against Defendants, in a sum as provided by the California
24 Labor Code, including § 558, and/or other applicable statutes.
25 SECOND CAUSE OF ACTION
26 FAILURE TO PAY WAGES AND OVERTIME UNDER LABOR CODE § 510
27 (Against All Defendants)
28 59. Plaintiff re-alleges and incorporates all preceding paragraphs, as though set forth in
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CLASS ACTION COMPLAINT
1 full herein.
2 60. California Labor Code § 1194 provides that “any employee receiving less than the
3 legal minimum wage or the legal overtime compensation applicable to the employee is entitled to
4 recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime
5 compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” The action
6 may be maintained directly against the employer in an employee’s name without first filing a
7 claim with the Division of Labor Standards and Enforcement.
8 61. By their conduct, as set forth herein, Defendants violated California Labor Code §
9 510 (and the relevant orders of the Industrial Welfare Commission) by failing to pay Class
10 Members: (a) time and one-half their regular hourly rates for hours worked in excess of eight (8)
11 hours in a workday or in excess of forty (40) hours in any workweek or for the first eight (8) hours
12 worked on the seventh day of work in any one workweek; or (b) twice their regular rate of pay for
13 hours worked in excess of twelve (12) hours in any one (1) day or for hours worked in excess of
14 eight (8) hours on any seventh day of work in a workweek.
15 62. Defendants had a consistent policy of not paying Class Members wages for all
16 hours worked, including by requiring off the clock work and by unlawfully rounding down actual
17 hours worked as addressed above. Defendants, and each of them, have intentionally and
18 improperly rounded, changed, adjusted and/or modified certain employees’ hours, including
19 Plaintiff’s, in order to avoid paying Class Members all earned and owed straight time and
20 overtime wages and other benefits, in violation of the California Labor Code, the California Code
21 of Regulations and the IWC Wage Orders and guidelines set forth by the Division of Labor
22 Standards and Enforcement. Defendants have also violated these provisions by requiring Class
23 Members to work through portions of their meal period. Therefore, Class Members were not
24 properly compensated, nor were they paid overtime rates for hours worked in excess of eight hours
25 in a given day, and/or forty hours in a given week. Based on information and belief, Defendants
26 did not make available to Class Members a reasonable protocol for correcting time records when
27 Class Members worked overtime hours or to fix incorrect time entries or those that Defendants
28 unlawfully rounded to the Class Members’ detriment.
- 18 -
CLASS ACTION COMPLAINT
1 63. Defendants’ failure to pay Class Members the unpaid balance of regular wages
2 owed and overtime compensation, as required by California law, violates the provisions of Labor
3 Code §§ 510 and 1198, and is therefore unlawful.
4 64. Additionally, Labor Code § 558(a) provides “any employer or other person acting
5 on behalf of an employer who violates, or causes to be violated, a section of this chapter or any
6 provisions regulating hours and days of work in any order of the IWC shall be subject to a civil
7 penalty as follows: (1) For any violation, fifty dollars ($50) for each underpaid employee for each
8 pay period for which the employee was underpaid in addition to an amount sufficient to recover
9 underpaid wages. (2) For each subsequent violation, one hundred dollars ($100) for each
10 underpaid employee for each pay period for which the employee was underpaid in addition to an
11 amount sufficient to recover underpaid wages. (3) Wages recovered pursuant to this section shall
12 be paid to the affected employee.” Labor Code § 558(c) states, “the civil penalties provided for in
13 this section are in addition to any other civil or criminal penalty provided by law.” Defendants
14 have violated provisions of the Labor Code regulating hours and days of work as well as the IWC
15 Wage Orders. Accordingly, Plaintiff and the Class Members seek the remedies set forth in Labor
16 Code § 558.
17 65. Defendants’ failure to pay compensation in a timely fashion also constituted a
18 violation of California Labor Code § 204, which requires that all wages shall be paid
19 semimonthly. From four (4) years prior to the filing of this lawsuit to the present, in direct
20 violation of that provision of the California Labor Code, Defendants have failed to pay all wages
21 and overtime compensation earned by Class Members. Each such failure t
Preview
1 D.LAW, INC. 6/20/2024 Emil Davtyan (SBN 299363) 2 Emil@d.law David Yeremian (SBN 226337) 3 d.yeremian@d.law Natalie Haritoonian (SBN 324318) 4 n.haritoonian@d.law Jonas Agle (SBN 352712) 5 j.agle@d.law 880 E Broadway 6 Glendale, CA 91205 Telephone: (818) 962-6465 7 Fax: (818) 962-6469 8 Attorneys for Plaintiff PATRICIA ANDERSON, on behalf of herself and others similarly situated 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF BUTTE 12 PATRICIA ANDERSON, an individual on Case No.: 24CV02070 behalf of herself and all others similarly 13 situated, CLASS ACTION 14 Plaintiff, Assigned for All Purposes To: Hon. 15 vs. Dept.: 16 ARBOR POST ACUTE LLC, a California CLASS ACTION COMPLAINT FOR: limited liability company; PROVIDENCE 17 GROUP, INC., a California corporation; and 1. Failure to Pay Minimum Wages; DOES 1 through 50, inclusive, 2. Failure to Pay Wages and Overtime Under 18 Labor Code § 510; Defendants. 3. Meal Period Liability Under Labor Code § 19 226.7; 4. Rest-Break Liability Under Labor Code 20 § 226.7; 5. Violation of Labor Code § 226(a); 21 6. Violation of Labor Code § 203; 7. Violation of Labor Code § 204; 22 8. Failure to Pay Wages Due, Negotiable and Payable in Cash on Demand (Labor Code §§ 23 212 and 213); 9. Failure to Keep Required Payroll Records 24 under Labor Code §§ 1174 and 1174.5; 10. Failure to Reimburse Necessary Business 25 Expenses § 2802; and 11. Violation of Business & Professions Code 26 § 17200 et seq. 27 DEMAND FOR JURY TRIAL 28 -1- CLASS ACTION COMPLAINT 1 INTRODUCTION 2 1. Plaintiff PATRICIA ANDERSON (“Plaintiff”) brings this action on behalf of 3 herself and the Class Members who are defined as “all current and former employees within the 4 State of California who, at any time from four (4) years prior to the filing of this lawsuit, are or 5 were employed as non-exempt hourly employees by Defendants ARBOR POST ACUTE, LLC, a 6 California limited liability company; PROVIDENCE GROUP, INC.; a California corporation; and 7 DOES 1 through 50” (all defendants being collectively referred to herein as “Defendants”). 8 2. Plaintiff alleges that Defendants, and each of them, violated various provisions of 9 the California Labor Code, relevant orders of the Industrial Welfare Commission (IWC), and the 10 California Business & Professions Code, and seeks redress for these violations. 11 3. Upon information and belief, Plaintiff was employed by Defendants and (1) shared 12 similar job duties and responsibilities; (2) was subjected to the same policies and practices; and (3) 13 endured similar violations at the hands of Defendants as the other Class Members who served in 14 similar and related positions. 15 THE PARTIES 16 A. The Plaintiff 17 4. Plaintiff PATRICIA ANDERSON resides in California, during the time period 18 relevant to this Complaint, was employed by Defendants as a non-exempt hourly employee within 19 the State of California. 20 B. The Defendants 21 5. Defendant ARBOR POST ACUTE, LLC is a California limited liability company 22 with its principal offices in Chico, California and is registered with the California Secretary of 23 State. Defendant ARBOR POST ACUTE, LLC has been the employer listed on the wage 24 statements and employment records issued to Plaintiff during the relevant time period that Plaintiff 25 was employed with Defendants. ARBOR POST ACUTE, LLC employs Plaintiff and the Class 26 Members in California, including at Defendants’ offices and facilities in Chico, California, and 27 throughout California, and conducts business throughout California. 28 6. Defendant PROVIDENCE GROUP, INC. is a California corporation and is -2- CLASS ACTION COMPLAINT 1 registered with the California Secretary of State. PROVIDENCE GROUP, INC. employs Plaintiff 2 and the Class Members in California, including at Defendants’ offices and facilities in Chico, 3 California, and throughout California, and conducts business throughout California. 4 7. The true names and capacities, whether individual, corporate, associate, or 5 whatever else, of the Defendants sued herein as Does 1 through 50, inclusive, are currently 6 unknown to Plaintiff, who therefore sue these Defendants by such fictitious names under Code of 7 Civil Procedure § 474. Plaintiff is informed and believes and thereon alleges that Defendants 8 designated herein as Does 1 through 50, inclusive, and each of them, are legally responsible in 9 some manner for the unlawful acts referred to herein. Plaintiff will seek leave of court to amend 10 this Complaint to reflect the true names and capacities of the Defendants designated herein as 11 Does 1 through 50 when their identities become known. 12 8. Plaintiff is informed and believes and thereon alleges that each Defendant acted in 13 all respects pertinent to this action as the agent of the other Defendants, that Defendants carried 14 out a joint scheme, business plan, or policy in all respects pertinent hereto, and that the acts of 15 each Defendant are legally attributable to the other Defendants. Furthermore, Defendants acted in 16 all respects as the employers or joint employers of Class Members. Defendants, and each of them, 17 exercised control over the wages, hours or working conditions of Class Members, or suffered or 18 permitted Class Members to work, or engaged, thereby creating a common law employment 19 relationship, with Class Members. Therefore, Defendants, and each of them, employed or jointly 20 employed Class Members. 21 9. Whenever and wherever reference is made in this Complaint to any act by a 22 defendant or defendants, such allegations and references shall also be deemed to mean the acts and 23 failures to act of each defendant acting individually, jointly, and severally. 24 10. Whenever and wherever reference is made to individuals who are not named as a 25 Defendant in this Complaint but were agents, servants, employees and/or supervisors of 26 Defendants, such individuals at all relevant times acted on behalf of Defendants within the scope 27 of their employment. 28 /// -3- CLASS ACTION COMPLAINT 1 JURISDICTION AND VENUE 2 11. This Court has jurisdiction over this Action pursuant to California Code of Civil 3 Procedure § 410.10 and California Business & Professions Code § 17203. This Action is brought 4 as a Class Action on behalf of similarly situated Class Members of Defendants pursuant to 5 California Code of Civil Procedure § 382. Venue as to Defendants is also proper in this judicial 6 district pursuant to California Code of Civil Procedure § 395 et seq. Upon information and belief, 7 the obligations and liabilities giving rise to this lawsuit occurred in part in Butte County. 8 Defendants maintain and operate facilities in Butte County and employs Plaintiff and other Class 9 Members in Butte County, while doing business throughout California. 10 FACTUAL BACKGROUND 11 12. Class Members consistently worked at Defendants behest without being paid all 12 wages due. Class Members were either not paid by Defendants for all hours worked or were not 13 paid at the appropriate minimum, regular and overtime rates. Plaintiff also contends that 14 Defendants failed to pay Class Members all wages due and owing, including by requiring off the 15 clock work, unlawfully rounding to their detriment, failing to provide meal and rest breaks, failing 16 to furnish accurate wage statements, failing to timely pay wages including final wages, failure to 17 pay wages due, negotiable and payable in cash on demand, failing to maintain accurate records, 18 and failing to reimburse necessary business expenses all in violation of various provisions of the 19 California Labor Code and applicable Wage Orders. 20 13. During the course of Class Members’ employment with Defendants, they were not 21 paid all wages they were owed, including for all work performed resulting in off the clock work. 22 Defendants required Class Members to perform pre-shift and post-shift off the clock work. For 23 instance, before being able to clock in, Class Members were required to wait in line for COVID-19 24 screening checks, which involved having their temperatures taken and filling out symptom 25 questionnaires. Additionally, before being able to clock in, Class Members were required to put on 26 their protective gear which consisted of masks and gowns in. Moreover, Class Members were 27 required to wait in line to approach the timekeeping system which took several minutes resulting 28 in further off the clock work. Moreover, Defendants instructed Class Members to clock out and -4- CLASS ACTION COMPLAINT 1 continue working after the end of their scheduled shifts to take phone calls or continue working 2 from home. Furthermore, Defendants frequently contacted Class Members on their personal cell 3 phones with work demands outside of scheduled work hours, and Class Members were not 4 compensated for this time. Defendants also required Class Members to work through portions of 5 their scheduled meal periods, but their time was automatically deducted resulting in further off the 6 clock work. 7 14. Moreover, Defendants had a consistent policy and practice of unlawfully rounding 8 hours worked to the detriment of the Class Members. Rather than paying Class Members for all 9 hours and minutes they actually worked, Defendants followed a uniform policy and practice of 10 rounding all time entries to the nearest quarter-hour or half-hour (i.e. to the nearest 15-minute or 11 30-minute time increment), and generally did so to the detriment of the Class Members, and 12 Plaintiff contend this policy is not neutral and resulted, over time, to the detriment of the Class 13 Members by systematically under-compensating them. Rather than reflecting the actual hours 14 worked by Class Members, the time entries were rounded and reduced to reflect the scheduled 15 work time rather than the actual hours worked. These unlawfully rounded time entries were 16 inputted into Defendants’ payroll system from which wage statements and payroll checks were 17 created. 18 15. By implementing policies, programs, practices, procedures and protocols which 19 resulted in off the clock work and unlawful rounding, Defendants’ willful actions resulted in the 20 systematic underpayment of wages to Class Members, including underpayment of overtime pay to 21 Class Members over the relevant time period. For example, the above described off the clock work 22 addressed above caused Plaintiff to begin receiving overtime pay later than they should have. 23 16. As a result of the above described requirements to work off the clock and unlawful 24 rounding by Defendants, and the other wage violations they endured at Defendants’ hands, Class 25 Members were not properly paid all wages earned and all wages owed to them by Defendants, 26 including when working more than eight (8) hours in any given day and/or more than forty (40) 27 hours in any given week. 28 17. As a result of Defendants’ unlawful policies and practices, Class Members incurred -5- CLASS ACTION COMPLAINT 1 overtime hours worked for which they were not adequately and completely compensated, in 2 addition to the hours they were required to work off the clock. To the extent applicable, 3 Defendants also failed to pay Class Members at an overtime rate of 1.5 times the regular rate for 4 the first eight hours of the seventh consecutive work day in a week and overtime payments at the 5 rate of 2 times the regular rate for hours worked over eight (8) on the seventh consecutive work 6 day, as required under the Labor Code and applicable IWC Wage Orders. 7 18. Therefore, from at least four (4) years prior to the filing of this lawsuit and 8 continuing to the present, Defendants had a consistent policy or practice of failing to pay Class 9 Members for all hours worked, and failing to pay minimum wages for all time worked, as required 10 by California law. Defendants thus failed to pay Class Members at least minimum wages for all 11 the time they worked for Defendants in violation of the Labor Code and applicable IWC Wage 12 Orders as the actual times when Class Members were under the control and direction of 13 Defendants was under reported in the hours reflected on the timekeeping records. Furthermore, 14 Defendants’ willful actions resulted in the systematic underpayment of wages to Class Members, 15 including underpayment of overtime pay to Class Members over a period of time. 16 19. Therefore, from at least four (4) years prior to the filing of this lawsuit and 17 continuing to the present, Defendants had a consistent policy or practice of failing to pay Class 18 Members for all hours worked. Also, from at least four (4) years prior to the filing of this lawsuit 19 and continuing to the present, Defendants also had a consistent policy or practice of failing to pay 20 Class Members their true and correct overtime compensation at premium overtime rates for all 21 hours worked in excess of eight (8) hours a day and/or forty (40) hours a week, and double-time 22 rates for all hours worked in excess of twelve (12) hours a day, in violation of Labor Code § 510 23 and the corresponding sections of IWC Wage Orders. 24 20. Additionally, Defendants failed to provide all the legally required unpaid, off-duty 25 meal periods and all the legally required paid, off-duty rest periods to Class Members, as required 26 by the applicable Wage Order and Labor Code. Class Members were required to perform work as 27 ordered by Defendants for more than five (5) hours during a shift but were often required to do so 28 without receiving a lawful and timely meal break. In addition to untimely meal periods, -6- CLASS ACTION COMPLAINT 1 Defendants also required Class Members to respond to work demands. Defendants placed their 2 needs over Class Members lawful meal and rest breaks and this resulted in Class Members often 3 having to work through their scheduled meal and/or rest breaks, or otherwise taking shortened 4 ones, because the demands of the job would not avail them the opportunity to take a lawfully 5 uninterrupted and off duty meal and/or rest break. 6 21. On the occasions when Class Members worked over 10 hours in a shift, Defendants 7 also failed to provide them with a second, uninterrupted, timely and duty-free meal period. As a 8 result, Defendants’ failure to provide Class Members with all legally required off-duty, unpaid 9 meal periods and all the legally required off-duty, paid rest periods is and will be evidenced by 10 Defendants’ business records, or lack thereof. Defendants also failed to pay Class Members 11 “premium pay,” i.e. one hour of wages at each Class Member’s effective hourly rate of pay, for 12 each meal period or rest break that Defendants failed to provide or deficiently provided. 13 22. Therefore, for at least four years prior to the filing of this action and through to the 14 present, Defendants have regularly required Class Members to work shifts in excess of five (5) 15 hours without providing them with uninterrupted meal periods of not less than thirty (30) minutes, 16 and shifts in excess of (10) hours without providing them with second meal periods of not less 17 than thirty minutes; nor did Defendants pay Class Members “premium pay,” i.e. one hour of 18 wages at each Class Member’s effective hourly rate of pay, for each meal period that Defendants 19 failed to provide or deficiently provided. 20 23. Meal period violations thus occurred in one or more of the following manners: 21 (a) Class Members were not provided full thirty-minute duty free meal periods 22 for work days in excess of five (5) hours and were not compensated one (1) 23 hour’s wages in lieu thereof, all in violation of, among others, Labor Code 24 §§ 226.7, 512, and the applicable Industrial Welfare Commission Wage 25 Order(s); 26 (b) Class Members were not provided second full thirty-minute duty free meal 27 periods for work days in excess of ten (10) hours; 28 (c) Class Members were required to work through at least part of their daily -7- CLASS ACTION COMPLAINT 1 meal period(s); 2 (d) Meal periods were provided after five (5) hours of continuous work during 3 a shift; and 4 (e) Class Members were restricted in their ability to take a full thirty-minute 5 meal period. 6 24. Class Members were also not authorized and permitted to take lawful rest periods, 7 were systematically required by Defendants to work through or during breaks and were not 8 provided with one (1) hour’s wages in lieu thereof. Class Members were restricted in their ability 9 to take their full ten (10) minutes net rest time or were otherwise not provided with duty-free rest 10 periods. Therefore, from at least four years prior to the filing of this lawsuit and continuing to the 11 present, Defendants have consistently failed to provide Class Members with paid rest breaks of not 12 less than ten minutes for every work period of four or more consecutive hours; or major fraction 13 thereof, nor did Defendant pay Class Members premium pay for each day on which requisite rest 14 breaks were not provided or were deficiently provided. 15 25. Rest period violations therefore arose in one or more of the following manners: 16 (a) Class Members were required to work without being provided a minimum 17 ten (10) minute rest period for every four (4) hours or major fraction 18 thereof worked and were not compensated one (1) hour of pay at their 19 regular rate of compensation for each workday that a rest period was not 20 provided; 21 (b) Class Members were not authorized and permitted to take timely rest 22 periods for every four hours worked, or major fraction thereof; and 23 (c) Class Members were required to remain on-duty during rest periods or 24 otherwise had their rest periods interrupted by work demands. 25 26. Defendants also consistently failed to issue accurate itemized wage statements as 26 required by Labor Code § 226(a). Specifically, the wage statements given to Class Members failed 27 to accurately account for unpaid wages and overtime because Defendants had unlawfully rounded 28 time entries to the detriment of the Class Members and their actual hours worked were under- -8- CLASS ACTION COMPLAINT 1 reported due to off the clock work. Additionally, the wage statements given to Class Members 2 failed to accurately account for premium pay for deficiently provided meal periods and rest 3 breaks. 4 27. From at least four (4) years prior to filing this lawsuit and continuing to the present, 5 Defendants have thus also had a consistent policy of failing to pay all wages owed to Class 6 Members at the time of their termination of within seventy-two (72) hours of their resignation, as 7 required by California wage-and-hour laws. Specifically, Plaintiff and Class Members were not 8 paid all regular and overtime wages because Defendants failed to pay for all hours worked by 9 requiring off the clock work and unlawfully rounding time entries to the detriment of Class 10 Members. Additionally, Defendants failed to pay premium wages owed for unprovided meal 11 periods and rest periods, as further detailed in this Complaint. Defendants’ failure to pay said 12 wages within the required time was willful within the meaning of Labor Code § 203. 13 28. Additionally, from at least four (4) years prior to the filing of this lawsuit and 14 continuing to the present, Defendants have regularly required Class Members to incur business 15 expenses in the course of performing their required job duties for Defendants including for cell 16 phone expenses and home internet. Upon information and belief, Class Members incurred similar 17 costs. These expenses incurred by Class Members were necessary and required of them in 18 performing their assigned job duties, but Defendants failed to reimburse Class Members for all 19 such necessary expenditures, thus entitling them to reimbursement according to proof as required 20 under Labor Code § 2802 and the applicable provisions of the IWC Wage Orders. 21 29. Defendants failed to pay Plaintiff and Class Members with an order, check, draft, 22 note, memorandum, or other acknowledgment of indebtedness that was payable on demand, 23 without discount at some established place of business in the state. Defendants' issued pay cards to 24 Plaintiff and Class Members for wages earned. These pay cards were useable for a fee and did not 25 have a provision for use and payment in California at no cost to the employee. Therefore, 26 Defendants' failed to provide Plaintiff and Class Members with checks, drafts, notes or other 27 acknowledgements of indebtedness that were payable on demand without discount as required by 28 Labor Code § 212, which required Plaintiff and Class Members to incur fees to use, was not fully -9- CLASS ACTION COMPLAINT 1 cashable, and not usable at all financial institutions. 2 30. In light of the foregoing, Plaintiff and Class Members bring this action pursuant to, 3 inter alia, Labor Code §§ 201, 202, 203, 204, 210, 212, 213, 226, 226.3, 226.7, 248, 510, 512, 4 558, 558.1, 1174, 1174.5, 1182.12, 1185, 1194, 1194.2, 1197, 1198, 1199, 2802 and California 5 Code of Regulations, Title 8, section 11000 et seq. 6 31. Furthermore, pursuant to Business and Professions Code §§ 17200-17208, Plaintiff 7 and the Class Members seek injunctive relief, restitution, and disgorgement of all benefits 8 Defendants have enjoyed from their violations of Labor Code and the other unfair, unlawful, or 9 fraudulent practices alleged in this Complaint. 10 CLASS ALLEGATIONS 11 32. Plaintiff seeks to represent the Subclasses composed of and defined as follows: 12 a. Subclass 1. Minimum Wages Subclass. All Class Members who were not 13 compensated for all hours worked for Defendants at the applicable minimum wage. 14 b. Subclass 2. Wages and Overtime Subclass. All Class Members who were not 15 compensated for all hours worked for Defendants at the required rates of pay, including for all 16 hours worked in excess of eight in a day and/or forty in a week. 17 c. Subclass 3. Meal Period Subclass. All Class Members who were subject to 18 Defendants’ policy and/or practice of failing to provide unpaid 30-minute uninterrupted and duty- 19 free meal periods or one hour of pay at the Class Member’s regular rate of pay in lieu thereof. 20 d. Subclass 4. Rest Break Subclass. All Class Members who were subject to 21 Defendants’ policy and/or practice of failing to authorize and permit Class Members to take 22 uninterrupted, duty-free, 10-minute rest periods for every four hours worked, or major fraction 23 thereof, and failing to pay one hour of pay at the Class Member’s regular rate of pay in lieu 24 thereof. 25 e. Subclass 5. Wage Statement Subclass. All Class Members who, within the 26 applicable limitations period, were not provided with accurate itemized wage statements. 27 f. Subclass 6. Termination Pay Subclass. All Class Members who, within the 28 applicable limitations period, either voluntarily or involuntarily separated from their employment - 10 - CLASS ACTION COMPLAINT 1 and were subject to Defendants’ policy and/or practice of failing to timely pay wages upon 2 termination. 3 g. Subclass 7: Failure to Timely Pay Wages Twice Monthly Subclass. All Class 4 Members who were subject to Defendants’ policy and practice of not timely paying all wages 5 earned when they were due and payable at least twice monthly. 6 h. Subclass 8. Payroll Records Subclass. All Class members who were subject to 7 Defendants’ policy and/or practice of failing to keep accurate time and wage records as required 8 by California wage-and-hour laws. 9 i. Subclass 9. Pay Card Subclass. All persons employed by Defendants in California 10 who were paid by pay card (or similar means) at any time during the relevant time period. 11 j. Subclass 10. Expense Reimbursement Subclass. All Class Members who incurred 12 necessary and reasonable expenses in connection with performing their job duties for Defendant 13 and who were subject to a policy and/or practice under which such expenses were not reimbursed. 14 k. Subclass 11. UCL Subclass. All Class Members who are owed restitution as a 15 result of Defendants’ business acts and practices, to the extent such acts and practices are found to 16 be unlawful, deceptive, and/or unfair. 17 33. Plaintiff reserves the right under California Rule of Court 3.765 to amend or 18 modify the class description with greater particularity or further division into subclasses or 19 limitation to particular issues. To the extent equitable tolling operates to toll claims by the Class 20 against Defendants, the Class Period should be adjusted accordingly. 21 34. Defendants, as a matter of company policy, practice and procedure, and in violation 22 of the applicable Labor Code, Industrial Welfare Commission (“IWC”) Wage Order requirements, 23 and the applicable provisions of California law, intentionally, knowingly, and willfully, engaged 24 in a practice whereby Defendants failed to correctly calculate compensation for the time worked 25 by Class Members, even though Defendants enjoyed the benefit of this work, required Class 26 Members to perform this work and permitted or suffered to permit this work. Defendants have 27 uniformly denied these Class Members wages to which these employees are entitled and failed to 28 provide meal periods or authorize and permit rest periods, in order to unfairly cheat the - 11 - CLASS ACTION COMPLAINT 1 competition and unlawfully profit. 2 35. This action has been brought and may properly be maintained as a class action 3 under the provisions of Code of Civil Procedure § 382 because there is a well-defined community 4 of interest in litigation and proposed class is easily ascertainable. 5 A. Numerosity 6 36. The potential members of the class as defined are so numerous that joinder of all 7 the member of the class is impracticable. While the precise number of class member has not been 8 determined at this time, Plaintiff is informed and believes that Defendants employ or, during the 9 time period relevant to this lawsuit, hundreds of employees who satisfy the Class definition within 10 the State of California. 11 37. Accounting for employee turnover during the relevant time period increases this 12 number substantially. Plaintiff alleges that Defendants’ employment records will provide 13 information as to the number and location of all Class Members. 14 B. Commonality 15 38. There are questions of law and fact common to the Class that predominates over 16 any questions affecting only individual Class Members. These common questions of law and fact 17 include: 18 a. Whether Defendants failed to pay Class Members minimum wages; 19 b. Whether Defendants failed to pay Class Members wages for all hours worked; 20 c. Whether Defendants failed to pay Class Members overtime as required under Labor 21 Code § 510; 22 d. Whether Defendants violated Labor Code §§ 226.7 and 512, and the applicable 23 IWC Wage Orders, by failing to provide Class Members with requisite meal 24 periods or premium pay in lieu thereof; 25 e. Whether Defendants violated Labor Code §§ 226.7, and the applicable IWC Wage 26 Orders, by failing to authorize and permit Class Members to take requisite rest 27 breaks or provide premium pay in lieu thereof; 28 f. Whether Defendants violated Labor Code § 226(a) by providing Class Members - 12 - CLASS ACTION COMPLAINT 1 with inaccurate wage statements; 2 g. Whether Defendants violated Labor Code §§ 201, 202, and 203 by failing to pay 3 wages and compensation due and owing at the time of termination of employment; 4 h. Whether Defendants’ conduct was willful; 5 i. Whether Defendants violated Labor Code § 226 and § 1174 and the IWC Wage 6 Orders by failing to maintain accurate records of Class Members’ earned wages and 7 work periods; 8 j. Whether Defendants violated Labor Code § 1194 by failing to compensate all Class 9 Members during the relevant time period for all hours worked, whether regular or 10 overtime; 11 k. Whether Defendants violated Labor Code § 204 by failing to timely pay wages; 12 l. Whether Defendants failed to pay wages due, negotiable and payable in cash on 13 demand; 14 m. Whether Defendants violated Labor Code § 2802 by failing to reimburse all 15 necessary business expenses Defendants required them to incur in performing their 16 job duties; 17 n. Whether Defendants violated Business and Professions Code § 17200 et seq.; and 18 o. Whether Class Members are entitled to equitable relief pursuant to Business and 19 Professions Code § 17200 et seq. 20 C. Typicality 21 39. The claims of the named plaintiff is typical of those of Class Members. The Class 22 Members all sustained injuries and damages arising out of and caused by Defendants’ common 23 course of conduct in violation of statutes, as well as regulations that have the force and effect of 24 law, as alleged herein. 25 D. Adequacy of Representation 26 40. Plaintiff will fairly and adequately represent and protect the interest of the Class 27 Members. Counsel who represents Class Members are experienced and competent in litigating 28 employment class actions. - 13 - CLASS ACTION COMPLAINT 1 E. Superiority of Class Action 2 41. A class action is superior to other available means for the fair and efficient 3 adjudication of this controversy. Individual joinder of all Class Members is not practicable, and 4 questions of law and fact common to all Class Members predominate over any questions affecting 5 only individual Class Members. Each Class Member has been damaged and is entitled to recovery 6 by reason of Defendants’ illegal policies or practices of failing to compensate Class Members 7 properly. 8 42. As to the issues raised in this case, a class action is superior to all other methods for 9 the fair and efficient adjudication of this controversy, as joinder of all Class Members is 10 impracticable and many legal and factual questions to be adjudicated apply uniformly to all Class 11 Members. Further, as the economic or other loss suffered by vast numbers of Class Members may 12 be relatively small, the expense and burden of individual actions makes it difficult for the Class 13 Members to individually redress the wrongs they have suffered. Moreover, in the event 14 disgorgement is ordered, a class action is the only mechanism that will permit the employment of 15 a fluid fund recovery to ensure that equity is achieved. There will be relatively little difficulty in 16 managing this case as a class action, and proceeding on a class-wide basis will permit Class 17 Members to vindicate their rights for violations they endured which they would otherwise be 18 foreclosed from receiving in a multiplicity of individual lawsuits that would be cost prohibitive to 19 them. 20 43. Class action treatment will allow those persons similarly situated to litigate their 21 claims in the manner that is most efficient and economical for the parties and the judicial system. 22 Plaintiff is unaware of any difficulties in managing this case that should preclude class treatment. 23 Plaintiff contemplates the eventual issuance of notice to the proposed Class Members that would 24 set forth the subject and nature of the instant action. The Defendants’ own business records can be 25 utilized for assistance in the preparation and issuance of the contemplated notices. To the extent 26 that any further notice is required additional media and/or mailings can be used. 27 44. Defendants, as prospective and actual employers of the Class Members, had a 28 special fiduciary duty to disclose to prospective Class Members the true facts surrounding - 14 - CLASS ACTION COMPLAINT 1 Defendants’ pay practices, policies and working conditions imposed upon Class Members as well 2 as the effect of any alleged arbitration agreements that may have been forced upon them. In 3 addition, Defendants knew they possessed special knowledge about pay practices and policies, 4 most notably intentionally refusing to pay for all hours actually worked which should have been 5 recorded in Defendants’ pay records and the consequence of the alleged arbitration agreements 6 and policies and practices on Class Members. 7 45. Class Members did not discover the fact that they were entitled to all pay under the 8 Labor Code until shortly before the filing of this lawsuit nor was there ever any discussion about 9 Plaintiff’s and the Class’ wavier of their Constitutional rights of trial by jury, right to collectively 10 organize and oppose unlawful pay practices under California law as well as obtain injunctive relief 11 preventing such practices from continuing. As a result, the applicable statutes of limitation were 12 tolled until such time as Plaintiff and the Class Members discovered their claims. 13 FIRST CAUSE OF ACTION 14 FAILURE TO PAY MINIMUM WAGES 15 (Against All Defendants) 16 46. Plaintiff re-alleges and incorporate all preceding paragraphs, as though set forth in 17 full herein. 18 47. Defendants failed to pay Class Members minimum wages for all hours worked. 19 Defendants had a consistent policy of misstating Class Members’ time records and failing to pay 20 Class Members for all hours worked. Class Members would work hours and not receive wages, 21 including as alleged above in connection with off the clock work and unlawful rounding of hours. 22 Defendants, and each of them, have intentionally and improperly changed, adjusted and/or 23 modified the hours of Class Members, which resulted in off the clock work and underpayment of 24 all wages owed to Class Members over a period of time, while benefiting Defendants. During the 25 relevant time period, Defendants thus regularly failed to pay minimum wages to Class Members, 26 to their detriment. Additionally, Defendants had a consistent policy of failing to pay Class 27 Members for hours worked during alleged meal and rest periods for which Class Members were 28 consistently denied, as also addressed herein. Defendants’ uniform pattern of unlawful wage and - 15 - CLASS ACTION COMPLAINT 1 hour practices manifested, without limitation, applicable to the Class as a whole, as a result of 2 implementing a uniform policy and practice that denied accurate compensation to Class Members 3 as to minimum wage pay. 4 48. In California, employees must be paid at least the then applicable state minimum 5 wage for all hours worked. (IWC Wage Order MW-2014). Additionally, pursuant to California 6 Labor Code § 204, other applicable laws and regulations, and public policy, an employer must 7 timely pay its employees for all hours worked. Defendants failed to do so. 8 49. California Labor Code § 1197, entitled “Pay of Less Than Minimum Wage” states: 9 “The minimum wage for employees fixed by the commission is the minimum wage to be paid to 10 employees, and the payment of a less wage than the minimum so fixed is unlawful.” 11 50. The applicable minimum wages fixed by the commission for work during the 12 relevant period is found in Paragraph 4(A)-4(D) of the IWC Wage Orders. 13 51. The minimum wage provisions of California Labor Code are enforceable by private 14 civil action pursuant to Labor Code § 1194(a) which states: “Notwithstanding any agreement to 15 work for a lesser wage, any employee receiving less than the legal minimum wage or the legal 16 overtime compensation applicable to the employee is entitled to recover in a civil action the 17 unpaid balance of the full amount of this minimum wage or overtime compensation, including 18 interest thereon, reasonable attorney’s fees and costs of suit.” 19 52. As described in California Labor Code §§ 1185 and 1194.2, any action for wages 20 incorporates the applicable Wage Order of the California Industrial Welfare Commission. Also, 21 California Labor Code §§ 1194, 1197, 1197.1 and those Industrial Welfare Commission Wage 22 Orders entitle non-exempt employees to an amount equal to or greater than the minimum wage for 23 all hours worked. All hours must be paid at the statutory or agreed rate and no part of this rate may 24 be used as a credit against a minimum wage obligation. 25 53. In committing these violations of the California Labor Code, Defendants 26 inaccurately recorded, or required Class Members to input times that did not reflect their actual 27 hours worked, or calculated the correct time worked and consequently underpaid the actual time 28 worked by Class Members. Defendants acted in an illegal attempt to avoid the payment of all - 16 - CLASS ACTION COMPLAINT 1 earned wages, and other benefits in violation of the California Labor Code, the Industrial Welfare 2 Commission requirements and other applicable laws and regulations. As a result of these 3 violations, Defendant also failed to timely pay all wages earned in accordance with California 4 Labor Code § 1194. 5 54. California Labor Code § 1194.2 also provides for the following remedies: “In any 6 action under Section 1194 . . . to recover wages because of the payment of a wage less than the 7 minimum wages fixed by an order of the commission, an employee shall be entitled to recover 8 liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon.” 9 55. In addition to restitution for all unpaid wages, pursuant to California Labor Code § 10 1197.1, Class Members are entitled to recover a penalty of $100.00 for the initial failure to timely 11 pay each employee minimum wages, and $250.00 for each subsequent failure to pay each 12 employee minimum wages. 13 56. Pursuant to California Labor Code § 1194.2, Class Members are further entitled to 14 recover liquidated damages in an amount equal to wages unlawfully unpaid and interest thereon. 15 57. Defendants have the ability to pay minimum wages for all time worked and have 16 willfully refused to pay such wages with the intent to secure for Defendants a discount upon this 17 indebtedness with the intent to annoy, harass, oppress, hinder, delay, or defraud Class Members. 18 58. Wherefore, Class Members are entitled to recover the unpaid minimum wages 19 (including double minimum wages), liquidated damages in an amount equal to the minimum 20 wages unlawfully unpaid, interest thereon and reasonable attorney’s fees and costs of suit pursuant 21 to California Labor Code § 1194(a). Plaintiff and the other members of the Class further request 22 recovery of all unpaid wages, according to proof, interest, statutory costs, as well as the 23 assessment of any statutory penalties against Defendants, in a sum as provided by the California 24 Labor Code, including § 558, and/or other applicable statutes. 25 SECOND CAUSE OF ACTION 26 FAILURE TO PAY WAGES AND OVERTIME UNDER LABOR CODE § 510 27 (Against All Defendants) 28 59. Plaintiff re-alleges and incorporates all preceding paragraphs, as though set forth in - 17 - CLASS ACTION COMPLAINT 1 full herein. 2 60. California Labor Code § 1194 provides that “any employee receiving less than the 3 legal minimum wage or the legal overtime compensation applicable to the employee is entitled to 4 recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime 5 compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” The action 6 may be maintained directly against the employer in an employee’s name without first filing a 7 claim with the Division of Labor Standards and Enforcement. 8 61. By their conduct, as set forth herein, Defendants violated California Labor Code § 9 510 (and the relevant orders of the Industrial Welfare Commission) by failing to pay Class 10 Members: (a) time and one-half their regular hourly rates for hours worked in excess of eight (8) 11 hours in a workday or in excess of forty (40) hours in any workweek or for the first eight (8) hours 12 worked on the seventh day of work in any one workweek; or (b) twice their regular rate of pay for 13 hours worked in excess of twelve (12) hours in any one (1) day or for hours worked in excess of 14 eight (8) hours on any seventh day of work in a workweek. 15 62. Defendants had a consistent policy of not paying Class Members wages for all 16 hours worked, including by requiring off the clock work and by unlawfully rounding down actual 17 hours worked as addressed above. Defendants, and each of them, have intentionally and 18 improperly rounded, changed, adjusted and/or modified certain employees’ hours, including 19 Plaintiff’s, in order to avoid paying Class Members all earned and owed straight time and 20 overtime wages and other benefits, in violation of the California Labor Code, the California Code 21 of Regulations and the IWC Wage Orders and guidelines set forth by the Division of Labor 22 Standards and Enforcement. Defendants have also violated these provisions by requiring Class 23 Members to work through portions of their meal period. Therefore, Class Members were not 24 properly compensated, nor were they paid overtime rates for hours worked in excess of eight hours 25 in a given day, and/or forty hours in a given week. Based on information and belief, Defendants 26 did not make available to Class Members a reasonable protocol for correcting time records when 27 Class Members worked overtime hours or to fix incorrect time entries or those that Defendants 28 unlawfully rounded to the Class Members’ detriment. - 18 - CLASS ACTION COMPLAINT 1 63. Defendants’ failure to pay Class Members the unpaid balance of regular wages 2 owed and overtime compensation, as required by California law, violates the provisions of Labor 3 Code §§ 510 and 1198, and is therefore unlawful. 4 64. Additionally, Labor Code § 558(a) provides “any employer or other person acting 5 on behalf of an employer who violates, or causes to be violated, a section of this chapter or any 6 provisions regulating hours and days of work in any order of the IWC shall be subject to a civil 7 penalty as follows: (1) For any violation, fifty dollars ($50) for each underpaid employee for each 8 pay period for which the employee was underpaid in addition to an amount sufficient to recover 9 underpaid wages. (2) For each subsequent violation, one hundred dollars ($100) for each 10 underpaid employee for each pay period for which the employee was underpaid in addition to an 11 amount sufficient to recover underpaid wages. (3) Wages recovered pursuant to this section shall 12 be paid to the affected employee.” Labor Code § 558(c) states, “the civil penalties provided for in 13 this section are in addition to any other civil or criminal penalty provided by law.” Defendants 14 have violated provisions of the Labor Code regulating hours and days of work as well as the IWC 15 Wage Orders. Accordingly, Plaintiff and the Class Members seek the remedies set forth in Labor 16 Code § 558. 17 65. Defendants’ failure to pay compensation in a timely fashion also constituted a 18 violation of California Labor Code § 204, which requires that all wages shall be paid 19 semimonthly. From four (4) years prior to the filing of this lawsuit to the present, in direct 20 violation of that provision of the California Labor Code, Defendants have failed to pay all wages 21 and overtime compensation earned by Class Members. Each such failure t