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OF CALIFORNIA
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SUPERIOR COURT OF THE STATE
D MUNICIPAL COU‘RT OF THE STATE OF CALIFORNIA
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D JUSTICE COURT OF THE STATE OF CALIFORNIA
COUNTYOF
Fresno
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l] L E
AUG Q 3 2038
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JUDICIAL DISTRICT
SUPERIOR COURT 0F CALIFORNIA
COUNTY OF FRESNO
PLAN'nFF By DEPUW
Melanie Padilla I
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Corporation
.
DEFENDANT 1“—
California
,
A Medical Corporation, a
Fargo Meds, COURT NUMBER
1 8 @E Cs U 2 =9 3 5
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,
NOTICE 0F APPEAL
er
WO'CM'364OO‘.
Commissioner in State Case Numb
of the Labor
Decision or award
NONCE OF APPEALljof the Order,
Datedflm—
1'
Fargo meds. a Medical corp-
ned appellant.
and served upon the undersig
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LaborCode Section 98.2.
given and filed pursuant to
,is
July 25, 20!?18
on
cause for hearing
Clerk of the Court set the
d appea|ed and requests that the
l
e
“A" a
Exhibit copyoftheOrder, Decision or Awar on 98.2,andthattheClerk of the Court give Notic
Appellant attached aé Labor Code Secti
d de novo in accordance with Appellant certifies
where it shall be hear theplaces d
liste .
below
before the above—entifled court
, at
's office
the Labor Commissioner as shown below.
of the following parties and
of the new tn'al to each mailed to the Respondent.
of time, date and pla‘he
sewe d upontheLabor Commissioner and a copy has been
of Appeal has been
that a copy of this thice
1
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E NUMBER)
. ADDRESS. TELEPHON
APPELLANT (0R ATTORIilEY) (NAME
James M. Mékasian, A Prof. Corp.
1327 N Stree‘t
Fresno CA 9,3721
I
PHONE NUMBER)
MMISSIONER (ADDRESS AND TELE
OFFICE 0F THE LABORVCO
STATE LABOR COMMISSIONER
770 E. Sha'w Ave. Ste. 222
Fresno, Cf 93710
E NUMBER)
. ADDRESS. TELEPHON
RESPONDENT (OR AfiO/R’NEY) (NAME
Muses Spa
ON‘C
R033 M9
Melanie Pasilla c/o
)e—nr Cg
Qé
_.__
$1 60
.
‘7
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93 65 7
~
‘1-1“ '
-ue am
Inalureo
LC. 98
Stale of Cdifurnla 85 35611
ons
Department of lndusuia! Relati
Enforcement
rds
Division of Labor Standa
—English
NOTICE OF APPEAL
lREV.
DLSE 537 3/83)?
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.STATE 0F CALIFORNIA ForCourt Use Only:
Department ()f Industrial Relations
Labor Commissioner’s‘Qffice
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770 E Shaw Ave, Ste 222
Fresno, CA 93710
Email: laborcdmm.wcafie@dir.ca.gov
Tel: (559) 2'44!-5340 Fax: (559) 248-8415
Plaintiff: l
Court Number:
Melanie Padilla, an Individual
Defendant: I
‘
Fargo Meds, a‘Medical Corporation, a California Corporation -.
Case No.: WC-CM-364004 I
ORDER, DECISION OR AWARD 0F THE LABOR COMMISSIONER
l.The above-eqtitled matter came on for hearing before theLabor Commissioner of the State of California as follows:
DATE: July 5, 2018 . CITY: 770 E Shaw Ave, Ste 222, Fresno, CA 93710
2. IT is ORDERED THAT: Plaintiffrecov'erfrom Defendant;
i Balance Due to Employee(s) Interest Balance Due Line Total
REGULAR WAGES $0.00 $0.00 $0.00
OVERTIME WAGES '
$30.00 ‘
$2.30 $32.30
MEAL PERIOD PREMIUM $170.00 $13.04 $183.04
WAGES I
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REST PERIOD PREMIUM WAGE $0.00 $0.00 $0.00
WAITING TIME PENALTIES $2,100.00 $0.00 $2,100.00
Totals 5
$2,300.00
.
$15.34 $2,315.34
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3. The herein Order, Decision or Award is based upon the Findings of Fact, Legal Analysis and Conclusions attached
hereto and ir}corporated herein by reference.
4.The parties herein are notified and advised that this Order, Decision or Award of the Labor
Commissioner shall
become final and enforceable as a judgment in a court of law unless either or both pafiies exercise n'ght
their to
appeal to thd appropriate court* within ten (10) days of service of this document.
Service of this document can be
accomplisheld either by first class mail or by personal delivery and is effective upon mailing or
at the time of persona]
delivery. If service on the parties is made by mail, the ten (1
0) day appeal pen'od shall be extended by five (5) days.
For parties s'erved outside of California, the period of extension is longer (See Code of
Civil Procedure Section
1013). In casie of appeal, the necessary filing fee'must be paid
by the appellant and appellant must, immediately upon
filing an appeal with the appropriate coun, serve a copy of the appeal request
upon the Labor Commissioner. If an
appeal is file’d by a corporation, a non-lawyer agent ofthe corporation
may file the Notice of Appeal with the
appropriate éourt, but the corporation must be represented in any subsequent
trial by an attorney, licensed to practice
in the State 6f California. Labor Code Section 98.2(c) provides
that if the party seeking review by filing an appeal to
the court is Linsuccessful in such appeal, the court shall determine the
costs and reasonable attomey’s fees incurred by
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the other party to the appeal and assess such amount as a cost upon the
party filing the appeal. An employee‘ is
successful ifthe court awards an amount greater than zero. PLEASE TAKE NOTICE: Labor Code Section 98.2(b)
requires thatias a condition to filing an appeal of an Order, Decision or Award
of th'e Labor Commissioner, the
employer shgll‘first post a bpnd-or undertaking with the court in the amount of the ODA; and the
employer shall
provide written-_notice to the other parties and the Labor Commissioner of the posting of the
undertaking. Labor Code
Section 98.2(b) also requires the undertaking contain other specific conditions for distribution under
the bond. While
this claim is fbefore the Labor Commissioner, you are required to notify the Labor
Commissioner in writing of any
changes in yiour business or persona] address within 10 days after change occurs.
*Superior Court of California, County of Fresno - BF Sisk
Courthouse
1130 O Street2nd Floor
Fresno, CA 93721-2220
WCA 75 -
Awardof the Labor Commissioner
Ordef, Decision or (Rev. 9/1 5)
BEFORE THE LABOR COMMISSIONER
N OF THE STATE OF CALIFORNIA
)
Melanie Pa dilla, )
}
)
mflmmbw
)
Plaintiff, ) CASE NO. CM-364004
)
V. ) ORDER, DECISION OR AWARD
) OF THE LABOR COMMISSIONER
11- Fargo Meds, a Medical corporation a )
12 California bOrporation, )
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. Defendant, )
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BACKGROUND
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21 Plaintiff filed an initial claim with the Labor Commissioner’s office on October 16, 2017. The
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22 complaint iraises the following allegations:
23 1. Regular wages for the period August 7, 2017 to October 6, 2017.
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24 Overtime premium wages for the period August 7, 2017 to OCtober 6,2017.
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Meal period premium wages for the period August 7, 2017 to October 6, 2017.
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26 . Rest period premium wages for the period August 7, 2017 to October 6, 2017.
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Interest pursuant to Labor Code sections 98.1.
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28 6. Penalties pursuant to Labor Code‘ section 203.
29 A 1hearing was conducted in Fresno, California, on July 5, 201 8 before the undersigned Hearing
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3O Officer désignated by the Labor Commissioner to hear this matter.
31 Pléintiff, Melanie Padilla, appeared in pro per. CEO, Gita Khattaie, appeared in pro per on
32 behalf ofiDefendant. Rebecca Santos-Sano and Fahima Hajian appeared as witnesses on behalf of
33 Defendant Due consideration having been given to the testimony, documentary evidence, and
34 argumenth presented, the Labor Commissioner hereby adopts the following Order, Decision or Award.
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(CM-364004)
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FINDINGS OF FACT
Pla‘intiff was employed by Defendant to perform personal services an Aesthetician for the
period Aug!ust 7, 2017 to September 22, 2017, in the County of Fresno, California, under the terms of
an oral agfeement. Plaintiff testified she was promised $10.50 per hour by Defendant and worked an
average ofi‘seven hours per day, two to three days per week while she was employed. Defendant
testified Plaintiff was offered $10. 00 per hour and worked an average of six and a half hours per day,
two days per week while she was employed.
Plalntiff stated Defendant failed to provide her with fullipayment of her earned wages. Plaintiff
10 further statfed her claim for unpaid regular wage arises out of her position Defendant offered her $10.50
11 per hour wihen she was hired, but always paid her at $10. 00 per 'hour. Plaintiff stipulated she is seeking
12 the difference between What she alleges she was promised by Defendant and what she was actually
13 paid. Accordingly, Plaintiff brings a claim for 22 hours of regular wages at $10. 50 per hour, being
14 $231. 00, less $220. 00 previously paid by Defendant, leaving a balance due of $11. 00 for the period
15 August 7, :2017 to October 6, 2017.
16 Plagintiff provided no evidence, documentation, or corroborating witness testimony in support of
17 her positioin she was offered $10.50 an hour by Defendant upon being hired.
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18 Pla‘intiff further stated Defendant failed to provide her with proper payments of overtime
19 premium \ipvages.As such, Plaintiff brings a claim for six hours of overtime premium wages at $15.75
20 per hour (time and one half the regular rate of pay) being $94.50, less $60.00 previously paid by
21 Defendant; leaving a balance claimed due of $34.50 for the period August 7, 2017 to October 2017.
6,
22 Plaintiff tejstified Defendant paid the overtime hours she worked at straight time, failing to provide her
23 with the aiiditional ‘pre'mifim portion oWed. Plaintiff fm‘ther testified she was disciplined by Defendant
24 for recording overtime hours worked on her time cards.
25 Plaintiff also brings a claim for 17 days of meal period premium wages at $10.50 per day, being
26 $178.50 f(‘n'the period August 7, 2017 to October 6, 2017. Plaintiff stated she never received a meal
27 period wtple 'she was employed by Defendant. Plaintiff further stated Defendant did not schedule a
28 time for e‘h‘lployees t0 take meal periods and only told her t6 take a meal period on one occasion, which
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29 she was unable to take due to busmess needs.
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(CM-364ooh) ‘
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In aiddition, Plaintiff brings a claim for 17 days of rest period premium wages at $10.50 per day,
being $17$.50 for the period August 7, 2017 to October 6, 2017. Plaintiff testified she was never
denied a rést period while she was emplbyed and never got in trouble for taking a rest period while she
was employed. Plaintiff stated itwas too busy to always take a rest period.
Plaintiff provided copies of a pay stub and notes she kept of the hours she worked while
employed by Defendant as evidence in support of her claim.
Defendant denied Plaintiff is entitled to recover any additional wages as a result of her
employmeftlt. Defendant testified Plaintiff was not offered $1 0.50 per hour as she claims, but rather was
offered $10.00 per hour. Defendant further testified Plaintiff was paid all wages she earned while she
10 was emploiyed, including all overtime hours she worked while employed.
11 Delfendant stated Plaintiff was allowed to take a meal period when she wanted, but was not
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scheduled time for a meal period.
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13 Defendant further stated Plaintiff was never denied a rest period while she was employed and 1n
14 fact, took regular rest periods.
15 Rebecca Santos-Sano appeared as witnesses on behalf of Defendant. Ms. Santos—Sano testified
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16 Plaintiff had down tine in between clients and was allowed to leave the premises ifshe wished.
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17 Fahima Hajian appeared as a witness on behalf of Defendant. Ms. Hajian testified Plaintiff was
18 offered $1|0.00 per hour by Defendant.
19 Defendant did provide some payroll records for Plaintiff, but failed to keep 0r provide any
20 records ofl the hours Plaintiff worked.
21 Plaintiff testified she last worked October 6, 2017, was discharged by Defendant October 11,
22 2017 and last
;\>vas provided a payment of wages on October l6, 2017. Defendant testified Plaintiff last
23 worked 01:1September 22, 2017, was discharged that same day, and last provided a payment of wages
24 on Octobe;r 4, 2017. It should be noted, the documents provided by Plaintiff as evidence in support of
25 her claim ishow she last worked for Defendant September 22, 2017.
26 As: Plaintiff claims she is owed additional wages at this time, Plairitiff brings. a claim for
27 penalties :pursuant to Labor Code section 203 for 3O days at her amended average daily wage rate of
28 $70.00 ($510.00 x seven hours) totaling $2,100.00.
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(CM—36400l4)
LEGAL ANALYSIS
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Plaintiff’s employment is covered by Industrial Welfare Commission Wage order 4-2001
regulating‘wages, hours and working conditions in the Professional, Technical, Clerical, Mechanical
and Similar Occupations.
Se¢tion 4 of the order, Minimum wages, states in part:
(A? Every employer shall pay to each employee wages not less than .the following: (1) Any
employer iwho employs 26 or more employees shall pay to each employee wages not less than the
following (a) Ten dollars and fifty cents ($10. 50) per hour for all hours worked, effective January 1,
.10 2017; and‘(b) Eleven dollars ($11. 00) per hour for all hours worked, effective January 1, 2018; (2) Any
11 employer ‘who employs 25 or fewer employees shall pay to each employee wages not less than the
12 following (a) Ten dollars ($10. 00) per hour for all hours Worked, effective January 1, 2016 through
13 December! 31, 2017; and (b) Ten dollars and fifty cents ($10. 50) per hour for all hours worked,
14 effective January 1, 2018 Employees treated as employed by a single qualified taxpayer pursuant to
15 Revenue :and Taxation Code section 23626 are treated as employees of that single taXpayer.
16 LEARNERS. Employees during their first 160 hours of employment 1n occupations in which they have
17 no previmils similar or related experience; may be paid not less than 85 percent of the minimum wage
18 rounded to the nearest nickel.
19 (B) Every employer shall pay to each employee, on the established payday for the period
20 involved,‘;not less than the applicable minimum wage for all hours worked 1n the payroll period,
21 whether the remuneration ismeasured by time, piece, commission, or otherwise.
22 Séction 3 of the order, Hours and Days of Work, states in part:
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23‘ (4) Daily Overtime General Provisions (1) The following overtime provisions are applicable
24 to emp10):rees 18 years of age or over and to employees 16 or 17 years of age who are not required by
25 law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such
26 employee‘s shall not be employed more than eight (8) hours in any workday or more that; 4O hours in
27 any workiweek unless the employee receives one and one-half (1 1
./2) times such employee’s regular
28 rate of péy for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a
29 day’s wqfrk. Employment beyond eight (8) hours in any workday or more than six (6) days in any
30 workweeik is permissible under the following conditions: (2) MANDATORY DAY OFF
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(CM-3640(|)4)
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REQUIREIMENT: An employee may work up to a maximum of 72 hours in any workweek after which
‘the emploiee shall have a 24-hour period off duty, except that: (a) In the grape and tree fruitindustry
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the following key personnel: receivers, loaders, fork lift operators, shipping clerks, and maintenance
workers, rhay be exempt from the mandatory day off requirement; and In the
(b) cotton ginning
indus1Iy arid in the tree nut hulling and shelling industry, employees
all shall have the voluntary right to
be exempt! from the mandatory day off provision in this order. Any employee desiring to exempt
himself/hei‘self fiom the mandatory day off provision may exercise that exemption by notifying the
employee’; employer in writing. Any employee who wishes t0 withdraw that exemption may do so by
notifying tile employér‘in writing at least five (5) days in advance of-the desired day off. (This notice
1o provision not intended to be applicable to instances of illness 0r emergencies);
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and (c) In the exercise
11 of any exémption from the mandatory day off provided above or by action of the state labor
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12 commissioLler, (administrative exemptions fiom the mandatory day off are permitted by Labor Code
13 Section 11!98. 3 under certain conditions) no employer shall discriminate against any employee who
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desires to take 24 hours off after 72 hours worked a
1n workweek; and (d) A11 employers who permit
15 any employees to work more than 72 hours 1n a workweek must give each employee a copy of the
16 applicable!provision for exemption, including subparagraph (c) above 1n English and 1n Spanish, and
17 post it at all times in a prominently visible place; and (3) Overtime hours shall be compensated at. (a)
18 One and one—half (11 l2) times the employee’ s regular rate of pay for all hours worked 1n excess of
19 eight (8) hjours up to and including 12 hours in any workday, and for the first eight (8) hours worked on
20 the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee’s regular rate
21 of pay for hll hours worked in excess of 12 hours in any workday and fOr all hours worked in excess of
22 eight (8) hours on the seventh (7th) consecutive day of work in a workweek. The overtime
(c) rate 0f
23 compensation required to be paid to a nonexempt full-time salaried employee shall be computed by
24 using the employee’ s regular hourly salary as one-fortieth (1/40) of the employee" s
weekly salary.
25 Seétion 11 of the order, Meal Periods, states:
26 (Afi No employer shall employ any person for a work period of more than five (5) hours without
27 a meal pefiod of not less than 30 minutes, except that when a work period 0f not more than six (6)
28 hours willicomplete the day’s work the meal period may be waived by mutual consent of the employer
29 and emplolyee. Unless the employee ls relieved of all duty during a 30 minute meal period, the meal
30_ period shall be considered an on duty meal period and counted as time worked. An on duty meal period
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(CM-364004i)
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shall'be peirmitted only when the nature of the work prevents an employee from being relieved of all
duty and véhen by written agreement between the parties an on—the—job paid meal period is agreed to.
The written agreement shall state that the employee may, in writing, revoke the agreement at
any time.
(B)‘ If an employer fails to provide an employee a meal period in accordance with the applicable
provisions of this Order, the employer shall pay the employee one (1) hour of pay at the employee’ s
regular rate of compensation for each work day that the meal period ls not provided.
Secjtion 12 O_f the order, Rest Periods, states:
(A) Every'employer shall authorize and permit all employees to take rest periods, which insofar
as practi‘calble shall be in the middle of each work period. The authorized rest period time shall be
10 based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or
11 major frac’lcion thereof. However, a rest period need not be authorized for employees whose total daily
12 work time less than three
?i's and one-half (31 l2) hours. Authorized rest period time shall be counted as
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13 hours worked for which there shall be no deduction from wages.
14 (B); If an employer fails to provide an employee a rest period in accordance with the applicable
15‘ provisions? of this order, the employer shall pay the employee one hour
(1) of pay at the employee’s
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1s regular raté of compensation for each workday that the rest period is not provided.
17 (C): This section shall not apply to any public transit bus driver covered by a valid collective
1e bargaian agreement if the agreement expressly provides for rest periods for those employees, final
19 and binding arbitration of disputes concerning application of 1ts rest period provisions, premium wage
20 rates for all overtime hours worked, and regular hourly rate of pay of not less than 30 percent more than
21 the State minimum wage rate.
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22 Section 7 of the order, Records, states:
23 (A) Every employer shall keep accurate information with respect to each employee including
24 the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if ,
25 under 18 years, and designation as a minor. (3) Time records showing when the employee begins and
26 ends each; work period. Meal periods, split shift intervals and total daily hours worked shall also be
27 recorded. [Meal periods during which, operations cease and authorized rest periods need not be
28 recorded. §(4) Total wages paid each payroll period, including value of board, lodging, or other
29 compensajtion actually fumished t0 the employee. (5) Total hours worked in the payroll period and
30 applicable rates of pay. This information shall be made readily available to the employee upon
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(CM-36400:4)
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reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation
of the inceptive plan fonnula shall be provided to employees. An accurate production "record shall be
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maintainedi by the employer.
(B)i'Employers of sheepherders shall keep accurate information with respect to sheepherder
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employees; including an itemized statement showing applicable rates of pay for sheepherding and any
applicable !non-sheepherding agricultural or other work, all deductions, dates of period for which paid,
name and sgocial security number (if any) of employee, and name of employer.
(C)‘ Every employer shall semimonthly or at the time of each payment 0f wages fumish each
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employee, {either as a detachable part of the check, drafi, or voucher paying -the
employge’s wages, or
10 separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the
11 period for which the employee is paid; (3) the name of the employee or the employee’s social security
12 number; and (4) the name of the employer, provided all deductions made on written orders of the
13 employee may be aggregated and shown as one item.
14 (D)! Every employer of a sheepherder shall annually notify the sheepherder of his or hers rights
15 and obligajtions under state and federal law.
16 All required records shall be in the English language and in ink or other indelible form,
(E):
17 properly dlated, showing month, day and year, and shall be 'kept on file by the employer for at least
18 ‘three of
yearig at the place employment or at a central location within the State of California. An
19 employee’fs records shall be available for inspection by the employee upon reasonable reQuest.
20 Hejrnandez v. Mendoza, (1988) 199 Cal.App.3d 721, 245, clearly establishes that the testimony
21 of an emfiloyee concerning the number of hours worked is sufficient to satisfy the burden of going
22 forward “frith the evidence. When the employer has kept proper and accurate records, the employee
23 may easil} disCharge the burden by securing production of those records. When the employer’s records
24 are inadecgluate, inaccurate or nonexistent, a more difficult problem arises. The solution is not to
25 penalize, denying recovery, because the employee may not be able to prove the
iby precise _exteritof
26 improperli’y compensated work. Such a result would place a premium on the employer’s failure to
27 conform tEothe employer’s statutory responsibility. It would allow the employer to keep the benefits of
28 the employee’s labors without paying due compensation.
29 The testimony of the parties is contradictory with respect to the established rate of pay. In
30 establishihg the basis of a claim, the burden is on Plaintiff to prove that a certain promise of
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(CM-36400,4)
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compensation was made. Where the employer denies that the claimed rate was promised and Plaintiff
has not prolivided any independent evidence such as witness testimony or documentation
whiéh verifies
the rate, fh:atburden of proof has not been met. Plaintiff testified Defendant offered her $10.50 per
hour, but plrovided no evidence, documentation, or corroborating witness testimony in
support of her
position. D’efendant denied Plaintiff was offered $10.50 per hour, stating Plaintiff was offered $1 0.00
per hour. such, Plaintiff has failed to meet her burden of proOf in this matter and
A:s it isreasonable to
conclude Plaintiff was offered $ 1 0. 00 per hour.
As $131aintiff stipulated her claim for regular wages is entirely based on the higher rate of pay she
“claimed was due, Plaintiff shall take nothing by virtue of her claim for
additional regular wages.
10 In tiheinstant matter, Defendant failed to keep or provide records of the hours, Plaintiff worked
11 or the wages Plaintiff was paid. Accordingly, based on the credible
testimony provided by Plaintiff it is
12 rea‘sonabiegfo conclude Plaintiff was not provided with proper payments of overtime premium
wages
13 while she was employed. Therefore, Plaintiff ls entitled to recover six hours of
overtime premium
14 wages at $15. 00 per hour (time and one half the regular rate ofpay) being $90. 00, less $60.
00
15 previously|paid by Defendant, leaving a balance of $30. 00 d
Preview
1 I I | i _ 1 OF CALIFORNIA I SUPERIOR COURT OF THE STATE D MUNICIPAL COU‘RT OF THE STATE OF CALIFORNIA I D JUSTICE COURT OF THE STATE OF CALIFORNIA COUNTYOF Fresno I l] L E AUG Q 3 2038 . JUDICIAL DISTRICT SUPERIOR COURT 0F CALIFORNIA COUNTY OF FRESNO PLAN'nFF By DEPUW Melanie Padilla I . _ Corporation . DEFENDANT 1“— California , A Medical Corporation, a Fargo Meds, COURT NUMBER 1 8 @E Cs U 2 =9 3 5 i , NOTICE 0F APPEAL er WO'CM'364OO‘. Commissioner in State Case Numb of the Labor Decision or award NONCE OF APPEALljof the Order, Datedflm— 1' Fargo meds. a Medical corp- ned appellant. and served upon the undersig I I LaborCode Section 98.2. given and filed pursuant to ,is July 25, 20!?18 on cause for hearing Clerk of the Court set the d appea|ed and requests that the l e “A" a Exhibit copyoftheOrder, Decision or Awar on 98.2,andthattheClerk of the Court give Notic Appellant attached aé Labor Code Secti d de novo in accordance with Appellant certifies where it shall be hear theplaces d liste . below before the above—entifled court , at 's office the Labor Commissioner as shown below. of the following parties and of the new tn'al to each mailed to the Respondent. of time, date and pla‘he sewe d upontheLabor Commissioner and a copy has been of Appeal has been that a copy of this thice 1 I E NUMBER) . ADDRESS. TELEPHON APPELLANT (0R ATTORIilEY) (NAME James M. Mékasian, A Prof. Corp. 1327 N Stree‘t Fresno CA 9,3721 I PHONE NUMBER) MMISSIONER (ADDRESS AND TELE OFFICE 0F THE LABORVCO STATE LABOR COMMISSIONER 770 E. Sha'w Ave. Ste. 222 Fresno, Cf 93710 E NUMBER) . ADDRESS. TELEPHON RESPONDENT (OR AfiO/R’NEY) (NAME Muses Spa ON‘C R033 M9 Melanie Pasilla c/o )e—nr Cg Qé _.__ $1 60 . ‘7 \ ’ 93 65 7 ~ ‘1-1“ ' -ue am Inalureo LC. 98 Stale of Cdifurnla 85 35611 ons Department of lndusuia! Relati Enforcement rds Division of Labor Standa —English NOTICE OF APPEAL lREV. DLSE 537 3/83)? i .STATE 0F CALIFORNIA ForCourt Use Only: Department ()f Industrial Relations Labor Commissioner’s‘Qffice ' 770 E Shaw Ave, Ste 222 Fresno, CA 93710 Email: laborcdmm.wcafie@dir.ca.gov Tel: (559) 2'44!-5340 Fax: (559) 248-8415 Plaintiff: l Court Number: Melanie Padilla, an Individual Defendant: I ‘ Fargo Meds, a‘Medical Corporation, a California Corporation -. Case No.: WC-CM-364004 I ORDER, DECISION OR AWARD 0F THE LABOR COMMISSIONER l.The above-eqtitled matter came on for hearing before theLabor Commissioner of the State of California as follows: DATE: July 5, 2018 . CITY: 770 E Shaw Ave, Ste 222, Fresno, CA 93710 2. IT is ORDERED THAT: Plaintiffrecov'erfrom Defendant; i Balance Due to Employee(s) Interest Balance Due Line Total REGULAR WAGES $0.00 $0.00 $0.00 OVERTIME WAGES ' $30.00 ‘ $2.30 $32.30 MEAL PERIOD PREMIUM $170.00 $13.04 $183.04 WAGES I . REST PERIOD PREMIUM WAGE $0.00 $0.00 $0.00 WAITING TIME PENALTIES $2,100.00 $0.00 $2,100.00 Totals 5 $2,300.00 . $15.34 $2,315.34 g I . 3. The herein Order, Decision or Award is based upon the Findings of Fact, Legal Analysis and Conclusions attached hereto and ir}corporated herein by reference. 4.The parties herein are notified and advised that this Order, Decision or Award of the Labor Commissioner shall become final and enforceable as a judgment in a court of law unless either or both pafiies exercise n'ght their to appeal to thd appropriate court* within ten (10) days of service of this document. Service of this document can be accomplisheld either by first class mail or by personal delivery and is effective upon mailing or at the time of persona] delivery. If service on the parties is made by mail, the ten (1 0) day appeal pen'od shall be extended by five (5) days. For parties s'erved outside of California, the period of extension is longer (See Code of Civil Procedure Section 1013). In casie of appeal, the necessary filing fee'must be paid by the appellant and appellant must, immediately upon filing an appeal with the appropriate coun, serve a copy of the appeal request upon the Labor Commissioner. If an appeal is file’d by a corporation, a non-lawyer agent ofthe corporation may file the Notice of Appeal with the appropriate éourt, but the corporation must be represented in any subsequent trial by an attorney, licensed to practice in the State 6f California. Labor Code Section 98.2(c) provides that if the party seeking review by filing an appeal to the court is Linsuccessful in such appeal, the court shall determine the costs and reasonable attomey’s fees incurred by ' the other party to the appeal and assess such amount as a cost upon the party filing the appeal. An employee‘ is successful ifthe court awards an amount greater than zero. PLEASE TAKE NOTICE: Labor Code Section 98.2(b) requires thatias a condition to filing an appeal of an Order, Decision or Award of th'e Labor Commissioner, the employer shgll‘first post a bpnd-or undertaking with the court in the amount of the ODA; and the employer shall provide written-_notice to the other parties and the Labor Commissioner of the posting of the undertaking. Labor Code Section 98.2(b) also requires the undertaking contain other specific conditions for distribution under the bond. While this claim is fbefore the Labor Commissioner, you are required to notify the Labor Commissioner in writing of any changes in yiour business or persona] address within 10 days after change occurs. *Superior Court of California, County of Fresno - BF Sisk Courthouse 1130 O Street2nd Floor Fresno, CA 93721-2220 WCA 75 - Awardof the Labor Commissioner Ordef, Decision or (Rev. 9/1 5) BEFORE THE LABOR COMMISSIONER N OF THE STATE OF CALIFORNIA ) Melanie Pa dilla, ) } ) mflmmbw ) Plaintiff, ) CASE NO. CM-364004 ) V. ) ORDER, DECISION OR AWARD ) OF THE LABOR COMMISSIONER 11- Fargo Meds, a Medical corporation a ) 12 California bOrporation, ) 13 l ) 14 > 1 15 ) 16 l . Defendant, ) 17 ‘ ) 18 \ 19 l BACKGROUND 20 i 21 Plaintiff filed an initial claim with the Labor Commissioner’s office on October 16, 2017. The ‘ 22 complaint iraises the following allegations: 23 1. Regular wages for the period August 7, 2017 to October 6, 2017. I ‘ 24 Overtime premium wages for the period August 7, 2017 to OCtober 6,2017. 25 i Meal period premium wages for the period August 7, 2017 to October 6, 2017. m4>s~N 26 . Rest period premium wages for the period August 7, 2017 to October 6, 2017. 27 . g Interest pursuant to Labor Code sections 98.1. 1 z 28 6. Penalties pursuant to Labor Code‘ section 203. 29 A 1hearing was conducted in Fresno, California, on July 5, 201 8 before the undersigned Hearing ' 3O Officer désignated by the Labor Commissioner to hear this matter. 31 Pléintiff, Melanie Padilla, appeared in pro per. CEO, Gita Khattaie, appeared in pro per on 32 behalf ofiDefendant. Rebecca Santos-Sano and Fahima Hajian appeared as witnesses on behalf of 33 Defendant Due consideration having been given to the testimony, documentary evidence, and 34 argumenth presented, the Labor Commissioner hereby adopts the following Order, Decision or Award. 35 1 | 36 . 4 Page 1 I (CM-364004) I FINDINGS OF FACT Pla‘intiff was employed by Defendant to perform personal services an Aesthetician for the period Aug!ust 7, 2017 to September 22, 2017, in the County of Fresno, California, under the terms of an oral agfeement. Plaintiff testified she was promised $10.50 per hour by Defendant and worked an average ofi‘seven hours per day, two to three days per week while she was employed. Defendant testified Plaintiff was offered $10. 00 per hour and worked an average of six and a half hours per day, two days per week while she was employed. Plalntiff stated Defendant failed to provide her with fullipayment of her earned wages. Plaintiff 10 further statfed her claim for unpaid regular wage arises out of her position Defendant offered her $10.50 11 per hour wihen she was hired, but always paid her at $10. 00 per 'hour. Plaintiff stipulated she is seeking 12 the difference between What she alleges she was promised by Defendant and what she was actually 13 paid. Accordingly, Plaintiff brings a claim for 22 hours of regular wages at $10. 50 per hour, being 14 $231. 00, less $220. 00 previously paid by Defendant, leaving a balance due of $11. 00 for the period 15 August 7, :2017 to October 6, 2017. 16 Plagintiff provided no evidence, documentation, or corroborating witness testimony in support of 17 her positioin she was offered $10.50 an hour by Defendant upon being hired. I 18 Pla‘intiff further stated Defendant failed to provide her with proper payments of overtime 19 premium \ipvages.As such, Plaintiff brings a claim for six hours of overtime premium wages at $15.75 20 per hour (time and one half the regular rate of pay) being $94.50, less $60.00 previously paid by 21 Defendant; leaving a balance claimed due of $34.50 for the period August 7, 2017 to October 2017. 6, 22 Plaintiff tejstified Defendant paid the overtime hours she worked at straight time, failing to provide her 23 with the aiiditional ‘pre'mifim portion oWed. Plaintiff fm‘ther testified she was disciplined by Defendant 24 for recording overtime hours worked on her time cards. 25 Plaintiff also brings a claim for 17 days of meal period premium wages at $10.50 per day, being 26 $178.50 f(‘n'the period August 7, 2017 to October 6, 2017. Plaintiff stated she never received a meal 27 period wtple 'she was employed by Defendant. Plaintiff further stated Defendant did not schedule a 28 time for e‘h‘lployees t0 take meal periods and only told her t6 take a meal period on one occasion, which | . 29 she was unable to take due to busmess needs. | i I ! Page 2 (CM-364ooh) ‘ y 1 I | I i | | In aiddition, Plaintiff brings a claim for 17 days of rest period premium wages at $10.50 per day, being $17$.50 for the period August 7, 2017 to October 6, 2017. Plaintiff testified she was never denied a rést period while she was emplbyed and never got in trouble for taking a rest period while she was employed. Plaintiff stated itwas too busy to always take a rest period. Plaintiff provided copies of a pay stub and notes she kept of the hours she worked while employed by Defendant as evidence in support of her claim. Defendant denied Plaintiff is entitled to recover any additional wages as a result of her employmeftlt. Defendant testified Plaintiff was not offered $1 0.50 per hour as she claims, but rather was offered $10.00 per hour. Defendant further testified Plaintiff was paid all wages she earned while she 10 was emploiyed, including all overtime hours she worked while employed. 11 Delfendant stated Plaintiff was allowed to take a meal period when she wanted, but was not 12 - scheduled time for a meal period. :a 13 Defendant further stated Plaintiff was never denied a rest period while she was employed and 1n 14 fact, took regular rest periods. 15 Rebecca Santos-Sano appeared as witnesses on behalf of Defendant. Ms. Santos—Sano testified -i 16 Plaintiff had down tine in between clients and was allowed to leave the premises ifshe wished. 1 17 Fahima Hajian appeared as a witness on behalf of Defendant. Ms. Hajian testified Plaintiff was 18 offered $1|0.00 per hour by Defendant. 19 Defendant did provide some payroll records for Plaintiff, but failed to keep 0r provide any 20 records ofl the hours Plaintiff worked. 21 Plaintiff testified she last worked October 6, 2017, was discharged by Defendant October 11, 22 2017 and last ;\>vas provided a payment of wages on October l6, 2017. Defendant testified Plaintiff last 23 worked 01:1September 22, 2017, was discharged that same day, and last provided a payment of wages 24 on Octobe;r 4, 2017. It should be noted, the documents provided by Plaintiff as evidence in support of 25 her claim ishow she last worked for Defendant September 22, 2017. 26 As: Plaintiff claims she is owed additional wages at this time, Plairitiff brings. a claim for 27 penalties :pursuant to Labor Code section 203 for 3O days at her amended average daily wage rate of 28 $70.00 ($510.00 x seven hours) totaling $2,100.00. 29 30 1 Page 3 (CM—36400l4) LEGAL ANALYSIS ' Plaintiff’s employment is covered by Industrial Welfare Commission Wage order 4-2001 regulating‘wages, hours and working conditions in the Professional, Technical, Clerical, Mechanical and Similar Occupations. Se¢tion 4 of the order, Minimum wages, states in part: (A? Every employer shall pay to each employee wages not less than .the following: (1) Any employer iwho employs 26 or more employees shall pay to each employee wages not less than the following (a) Ten dollars and fifty cents ($10. 50) per hour for all hours worked, effective January 1, .10 2017; and‘(b) Eleven dollars ($11. 00) per hour for all hours worked, effective January 1, 2018; (2) Any 11 employer ‘who employs 25 or fewer employees shall pay to each employee wages not less than the 12 following (a) Ten dollars ($10. 00) per hour for all hours Worked, effective January 1, 2016 through 13 December! 31, 2017; and (b) Ten dollars and fifty cents ($10. 50) per hour for all hours worked, 14 effective January 1, 2018 Employees treated as employed by a single qualified taxpayer pursuant to 15 Revenue :and Taxation Code section 23626 are treated as employees of that single taXpayer. 16 LEARNERS. Employees during their first 160 hours of employment 1n occupations in which they have 17 no previmils similar or related experience; may be paid not less than 85 percent of the minimum wage 18 rounded to the nearest nickel. 19 (B) Every employer shall pay to each employee, on the established payday for the period 20 involved,‘;not less than the applicable minimum wage for all hours worked 1n the payroll period, 21 whether the remuneration ismeasured by time, piece, commission, or otherwise. 22 Séction 3 of the order, Hours and Days of Work, states in part: - 23‘ (4) Daily Overtime General Provisions (1) The following overtime provisions are applicable 24 to emp10):rees 18 years of age or over and to employees 16 or 17 years of age who are not required by 25 law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such 26 employee‘s shall not be employed more than eight (8) hours in any workday or more that; 4O hours in 27 any workiweek unless the employee receives one and one-half (1 1 ./2) times such employee’s regular 28 rate of péy for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a 29 day’s wqfrk. Employment beyond eight (8) hours in any workday or more than six (6) days in any 30 workweeik is permissible under the following conditions: (2) MANDATORY DAY OFF § Page 4 1' (CM-3640(|)4) i 4 l i I REQUIREIMENT: An employee may work up to a maximum of 72 hours in any workweek after which ‘the emploiee shall have a 24-hour period off duty, except that: (a) In the grape and tree fruitindustry | the following key personnel: receivers, loaders, fork lift operators, shipping clerks, and maintenance workers, rhay be exempt from the mandatory day off requirement; and In the (b) cotton ginning indus1Iy arid in the tree nut hulling and shelling industry, employees all shall have the voluntary right to be exempt! from the mandatory day off provision in this order. Any employee desiring to exempt himself/hei‘self fiom the mandatory day off provision may exercise that exemption by notifying the employee’; employer in writing. Any employee who wishes t0 withdraw that exemption may do so by notifying tile employér‘in writing at least five (5) days in advance of-the desired day off. (This notice 1o provision not intended to be applicable to instances of illness 0r emergencies); iis and (c) In the exercise 11 of any exémption from the mandatory day off provided above or by action of the state labor ‘ 12 commissioLler, (administrative exemptions fiom the mandatory day off are permitted by Labor Code 13 Section 11!98. 3 under certain conditions) no employer shall discriminate against any employee who ' 14 - desires to take 24 hours off after 72 hours worked a 1n workweek; and (d) A11 employers who permit 15 any employees to work more than 72 hours 1n a workweek must give each employee a copy of the 16 applicable!provision for exemption, including subparagraph (c) above 1n English and 1n Spanish, and 17 post it at all times in a prominently visible place; and (3) Overtime hours shall be compensated at. (a) 18 One and one—half (11 l2) times the employee’ s regular rate of pay for all hours worked 1n excess of 19 eight (8) hjours up to and including 12 hours in any workday, and for the first eight (8) hours worked on 20 the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee’s regular rate 21 of pay for hll hours worked in excess of 12 hours in any workday and fOr all hours worked in excess of 22 eight (8) hours on the seventh (7th) consecutive day of work in a workweek. The overtime (c) rate 0f 23 compensation required to be paid to a nonexempt full-time salaried employee shall be computed by 24 using the employee’ s regular hourly salary as one-fortieth (1/40) of the employee" s weekly salary. 25 Seétion 11 of the order, Meal Periods, states: 26 (Afi No employer shall employ any person for a work period of more than five (5) hours without 27 a meal pefiod of not less than 30 minutes, except that when a work period 0f not more than six (6) 28 hours willicomplete the day’s work the meal period may be waived by mutual consent of the employer 29 and emplolyee. Unless the employee ls relieved of all duty during a 30 minute meal period, the meal 30_ period shall be considered an on duty meal period and counted as time worked. An on duty meal period i § Page 5 (CM-364004i) i ‘ I shall'be peirmitted only when the nature of the work prevents an employee from being relieved of all duty and véhen by written agreement between the parties an on—the—job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (B)‘ If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this Order, the employer shall pay the employee one (1) hour of pay at the employee’ s regular rate of compensation for each work day that the meal period ls not provided. Secjtion 12 O_f the order, Rest Periods, states: (A) Every'employer shall authorize and permit all employees to take rest periods, which insofar as practi‘calble shall be in the middle of each work period. The authorized rest period time shall be 10 based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or 11 major frac’lcion thereof. However, a rest period need not be authorized for employees whose total daily 12 work time less than three ?i's and one-half (31 l2) hours. Authorized rest period time shall be counted as I 13 hours worked for which there shall be no deduction from wages. 14 (B); If an employer fails to provide an employee a rest period in accordance with the applicable 15‘ provisions? of this order, the employer shall pay the employee one hour (1) of pay at the employee’s l 1s regular raté of compensation for each workday that the rest period is not provided. 17 (C): This section shall not apply to any public transit bus driver covered by a valid collective 1e bargaian agreement if the agreement expressly provides for rest periods for those employees, final 19 and binding arbitration of disputes concerning application of 1ts rest period provisions, premium wage 20 rates for all overtime hours worked, and regular hourly rate of pay of not less than 30 percent more than 21 the State minimum wage rate. l 22 Section 7 of the order, Records, states: 23 (A) Every employer shall keep accurate information with respect to each employee including 24 the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if , 25 under 18 years, and designation as a minor. (3) Time records showing when the employee begins and 26 ends each; work period. Meal periods, split shift intervals and total daily hours worked shall also be 27 recorded. [Meal periods during which, operations cease and authorized rest periods need not be 28 recorded. §(4) Total wages paid each payroll period, including value of board, lodging, or other 29 compensajtion actually fumished t0 the employee. (5) Total hours worked in the payroll period and 30 applicable rates of pay. This information shall be made readily available to the employee upon ! Page 6 (CM-36400:4) I reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the inceptive plan fonnula shall be provided to employees. An accurate production "record shall be #OJN maintainedi by the employer. (B)i'Employers of sheepherders shall keep accurate information with respect to sheepherder OI employees; including an itemized statement showing applicable rates of pay for sheepherding and any applicable !non-sheepherding agricultural or other work, all deductions, dates of period for which paid, name and sgocial security number (if any) of employee, and name of employer. (C)‘ Every employer shall semimonthly or at the time of each payment 0f wages fumish each l ' employee, {either as a detachable part of the check, drafi, or voucher paying -the employge’s wages, or 10 separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the 11 period for which the employee is paid; (3) the name of the employee or the employee’s social security 12 number; and (4) the name of the employer, provided all deductions made on written orders of the 13 employee may be aggregated and shown as one item. 14 (D)! Every employer of a sheepherder shall annually notify the sheepherder of his or hers rights 15 and obligajtions under state and federal law. 16 All required records shall be in the English language and in ink or other indelible form, (E): 17 properly dlated, showing month, day and year, and shall be 'kept on file by the employer for at least 18 ‘three of yearig at the place employment or at a central location within the State of California. An 19 employee’fs records shall be available for inspection by the employee upon reasonable reQuest. 20 Hejrnandez v. Mendoza, (1988) 199 Cal.App.3d 721, 245, clearly establishes that the testimony 21 of an emfiloyee concerning the number of hours worked is sufficient to satisfy the burden of going 22 forward “frith the evidence. When the employer has kept proper and accurate records, the employee 23 may easil} disCharge the burden by securing production of those records. When the employer’s records 24 are inadecgluate, inaccurate or nonexistent, a more difficult problem arises. The solution is not to 25 penalize, denying recovery, because the employee may not be able to prove the iby precise _exteritof 26 improperli’y compensated work. Such a result would place a premium on the employer’s failure to 27 conform tEothe employer’s statutory responsibility. It would allow the employer to keep the benefits of 28 the employee’s labors without paying due compensation. 29 The testimony of the parties is contradictory with respect to the established rate of pay. In 30 establishihg the basis of a claim, the burden is on Plaintiff to prove that a certain promise of g I Page 7 ‘ i (CM-36400,4) I I -! w l compensation was made. Where the employer denies that the claimed rate was promised and Plaintiff has not prolivided any independent evidence such as witness testimony or documentation whiéh verifies the rate, fh:atburden of proof has not been met. Plaintiff testified Defendant offered her $10.50 per hour, but plrovided no evidence, documentation, or corroborating witness testimony in support of her position. D’efendant denied Plaintiff was offered $10.50 per hour, stating Plaintiff was offered $1 0.00 per hour. such, Plaintiff has failed to meet her burden of proOf in this matter and A:s it isreasonable to conclude Plaintiff was offered $ 1 0. 00 per hour. As $131aintiff stipulated her claim for regular wages is entirely based on the higher rate of pay she “claimed was due, Plaintiff shall take nothing by virtue of her claim for additional regular wages. 10 In tiheinstant matter, Defendant failed to keep or provide records of the hours, Plaintiff worked 11 or the wages Plaintiff was paid. Accordingly, based on the credible testimony provided by Plaintiff it is 12 rea‘sonabiegfo conclude Plaintiff was not provided with proper payments of overtime premium wages 13 while she was employed. Therefore, Plaintiff ls entitled to recover six hours of overtime premium 14 wages at $15. 00 per hour (time and one half the regular rate ofpay) being $90. 00, less $60. 00 15 previously|paid by Defendant, leaving a balance of $30. 00 d