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1 Shaun Setareh (SBN 204514)
shaun(^setarehlaw.com
2 William M. Pao (SBN 219846) FILEO/Ef^OORSEO
william@setarehlaw.com
3 Jose Maria D. Patino, Jr. (SBN 270194)
Jose@setarehlaw.com MAY - 7 2020
4 SETAREH LAW GROUP
315 South Beverly Drive, Suite 315 By:. H. PEIVIELTON
5 Beverly Hills, Califomia 90212 Deputy Clerk
Telephone (310) 888-7771
6 Facsimile (310)888-0109
7 Attomeys for Plaintiff
TOMAS R. ARANA
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SACRAMENTO
11 COMPLEX CrVIL LITIGATION
12
13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persons CU-OE-GDS
14 similarly situated,
Assigned For All Purposes to the Honorable
15 Plaintiff, David de Alba, Department 41
V.
16 DECLARATION OF WILLIAM M. PAO
HEALTH NET OF CALIFORNIA, INC., a IN SUPPORT OF PLAINTIFF
17 Califomia Corporation; and Does 1 through OPPOSITION TO MOTION TO STRIKE
50, inclusive, TOMAS R. ARANA'S REPRESENTATIVE
18 PAGA CLAIMS
Defendants.
19 Date: April 3, 2020 BY FAX
Time: 1:30 p.m.
20 TOMAS R. ARANA, on behalf of himself, all Courtroom: Department 41
others similarly situated.
21 Original Complaint Filed: April 5,2017
Plaintiff, FAC Filed: June 29, 2017
22 Consolidated Complaint Filed: Dec. 21, 2017
23
HEALTH NET OF CALIFORNIA, INC., a
24 Califomia corporation; and DOES 1-50,
inclusive,
25
Defendants.
26
27
28
DECLARATION OF WILLIAM M. PAO IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATTVE PAGA CLAIMS
1 DECLARATION OF WILLIAM M. PAD
2 I,,WilliarnM. Pao, .declare as follovvs: -
3 L I aril an attomey duly licensed to practice law in m Califoiniai arn a member ofthe bar of;
4 this Court and an attomey of record for Plaintiff. Except for those matters stated on inform^on arid
5 belief, vyhich I am infonned and believe to be tme and cprrecti I have personal knowledge of all mattersX
6 set fdrtii heteiii, If called as a wdtaess, I could and
7 2~. Ttds PjxlaratiOn is submitted ih .
8. Tomas R. :Arana'5 Representative PAGA Claims. ^ -
9 3; AttacKted as Exhibit 1 is a tme arid correct copy of Plaintiffs; May 9i 20l7PAGA'Notice;
10 to was uploaded to the LATO
•w 4: Attached as Exhibtt 2 is a tme arid conrect copy of Plaintiff^^^^ 1
12 Notice that was uploaded to^^^ LWDA and mailed to Defendant Health Net 6f California, Inc. '
13 I declare urider.penalty of perjury, under the laws of the State of .Califomia, that the foregoirig is
14 true and Qorrecti ^ ' .
15 Executed this 16th day of April 2020, at Los Angeles, California. ' '
16
17;
18 William M. Pao
19;
:20
21
22:
23-
24.
26'
27
28
PLAINTIFFIS OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTIONTO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
EXHIBIT 1
9454 WILSHIRE BLVI)
S E T A W E H BEVERLY HUXS.CA 90212
TEL: (310) 888-7771
FAX: (310)888-0109
LAW GROUP
WWW.SETAREHLAW.COM
*SENT VIA ONLINE SUBMISSION AND CERTIFIED MAIL*
May 9, 2017
PAGA Administrator
Califomia Labor and Workforce Pevelppment Agency
1515 Clay Street, Suite 801
Oakland, Caiiforhia 94612
Heahh Net, Inc.
C T Corporalion Systern
818 West 7th Street, Suite 930
Los Angeles, California 90017-
Re: Arana v. Rbalth Net-, Inc.
To Whom It May Concern:
Pursuant to the Labor Code Private Attorheys.Qerie Act pifi2004. Labor Code section 2698, i?/
seq., Tomas R. Arana ("^Arana") provides notice;on>Bhai^^^^ on behalf Of all
sirhilarly situated, current arid tbririer eiriployeesfin Ca^^^^ of
Health Net, Inc. ("Health :l>jet!'):.alleged violations of Labor Code/sectiOns 201,202, 203, 204,
223, 226(a),,226.7, 510, 512y 558, 1 j 94,. 1197, 11,97.1, 1198, arid 1199.
Araha is ah individual who was employed by Health Net in an hourly ppsitionras a Customer
SeFviceparf:
Rest Periods:
(A) Every erriployei" shall aiithbrize and pennit all employees to take rest
periods, which irisbfaf as practicable shall be iri.the iriiddle ofieach wprk
period. The authorized rest period tim(S;shall be based Oh=the total hours
wPrked.daily at the ratopften (10) rriirKutes net jest'tirne per four (4) hours
or major fraction thereof. However, ,a rest ,period need not be'authorized
Labor and Workforce Development Agency / Health Net, Inc.
May9,20l7Page6of 18
for employees whose total daily vyork tihie isless than three land oriCrhalf
(3 1/2) hours. Authorized rest period time shall be counted as hours
worked fOr which there shall be ho deduction from wages.
(B) If an employer fails to provide an erriployee a restperiod iri accordance
with the applicable provisions of this Order, the eniployer shall pay the
employee one (I) hour of pay atthe employee's regular rate of
compensation for each work day-that the rest period is not provided^
In addition, Labor Code § 226:7 states:
:Ca) Nb employer shal I' require any employee to work during any, meal pr rest
peripd mandated by an appiicabie order of -the Industrial Welfare
Commission.
(b) If an employerTalils to provide an eniployee a meal period or rest period in
accordance with an applicable order of .the lridustrial Welfare
Coriimission, the employer shall-pay the erriployee one additional hour of
pay at the employee's regular rate of compensation for each-work day that
the meal or rest period isriotprovided.
Asa result of being improperly claissified as exempt, Arana and the aggrieved employees were
not'provided all pf ,their rest breaks to which they were entitled:
FleailthNet's%ritten policies failed to advise Arana and the aggrieved eniployees of their legal
rights to take i-est periods iri accordance with GaHfprnia law. As a result of these policies and
practices, ,Heaith;Net failed to provide Araria^arid .the aggrieved ernployees with,.n.etres^
of at leas.t;teniniinutes for each four hour Work period. Or hiajbr portion thereof, arid! hayejfm^^
to pay -them. premium wages at their regular rates pf pay prt wbi-kdays they failed to provide tliem
,with required,rest periods. Health Net's policies and,practices lack adequate safeguards tb ensure
th.at!employees are relieved of their duties for all required rest periods and'.are paiit additiorial
wages;when rest periPds are nPt provided.,
A'ccordingiy, Arana now seeks civil penalties for these Labor Code .yiolatiOhS; that Health Net
has corhmitted against him and aggrieved einployees as?follows:
1., Tor alljinitial violation's of Labor Code § 204,, $100:00 for each ^aggrieved employee-per
,pay period for each yiqlation,(penalties,set;,by Labor
2; For all subsequent viblations of Labor Code § 204, •$200' 00 for:each\aggrieyed ernployee,
plus 25% of the amouiit unlawfully withheld fi'om each'aggrieveci eiriplbyee, per pay
peripd for eachzviolatipn (penalties set by.Labor Cod
Labor and Workforce Development Agency / Health Net, Inc.
May9,2017Page7of 18
3. For all initial violations,'of Labor Code § 223 that are deemed to be neither willfiil nor
interitional, $ 100.00 for each aggrieved employee per pay period for each violation
(penalties setby Labor Code § 225-5);
4.. For all initial violatibris of Labor Code § 223 that are deemed to be either willfiil or
intentional, $200.00 for each aggrieved employee, plus 25% of the amountunlawfully
withheld from,each aggrieved, einployee, per pay period for each violation (penalties set
by Labor Code § 225.5);
5: FOraif subsecjuerit violations of Labor Code § 223, regardless of whether the initial,
violation,of Labor Code § 223 is deernied to be either willful or intentional,;$200;00 for
each aggrieved employee, plus 25% of the: amount uriiawfully withheld froiri^each
aggrieved employee, per pay period fbr .each violation (perialties set by Labor Code §
225.5);
6. For all iriitial VioliatiOns of Labor .Code §§ 226.7 and 1198, $ 100:00 fpr each aggrieved
employee per pay peribd'fbr:,each viblation (penalties set by Labor Code § 2699(f)(2));
and
7. For aill subsequent violations of Labor Code § § 226.7 and 1198, $2OO;0O .for each
aggrieved employee per pay period for each violation (penalties set by Labor Code §
2699(0(2)).
Failures to Pay Hourly and Overtime Wages
(Lab. Code §§ 204,223,510, 1 i94,1197, arid 1198)
Labor Code §. 204 provides tiiat; all wages (except as provided fpr -under Labpr Code § § 201-
202) eamed by ariy persori,iri ^tiy eiriployirient become due and payable twice during each
.cal.en.dar month, on.days designated in advance by the emplbyer as the^regular.paydays, except
thaf wages earned jfor labor in exces_s of the'nornial work periodishallibepaidrhb later tliari:the
payday for thejriext'regular payroll,periPd.
Labor Code § .223 .states,
Where any statute or contract requires an emplbyer to maintain the designated
wage'scale, it:shail be unlawfiil to secretly pay a lower wage while:purp.orting to:
jpay;the wage, designated ;byi statute of by contract.
InTeleyant parti'Sectipn 2 of the'Wage Order states,
"Hours wpi'ked"^rrieans the:time during which an employee/Js subject to the'
:cOntro.l of an eniplOyei;, ahd includes all the time the efripl()yeea's suffered or
perrnitted to work, whether orriot,requiredtp do so.
Labor and Workforce Development Agency / Heajth Net, Inc.
May9,2017Page86f 18
In relevant part; S.ecfion 4 of the Wage. Order states,
(A) Every ;employer shall pay to each emplpyee wages npt less than seven dollars
and fifty-cents ($7.5JO) per hour for all houi's worked, effective January 1, 2007,
and,not,less tbari eight dollars ($8.O0) per hour for all.hOiirs worked, effective
Janiiary 1> 2p08[.]
(B) Every-eriiplbyer-shall pay "to-each ernployee, on the .established payday for the
period irivolved,>ribt less than .the applicableLiriinimum wage for all hpurs worked
ih,the payroll period, whether;the'remuneratiori is nieasiired by time,,piece,
cpmrnission; or otherwise.
in relevant part. Labor (Code § 1194:stateSj
(a).,Nptwithstanding:ariy agreement to work for a: lesser .wage, any employee
receiving less than the legal rninirnUrri wage.or the legal Overtime compensation
applicable to .the ernployee,is entitled to recpver in a civil action the unpaid
balance of" thc/fiill "arriourit of this iriinimum wage or overtime compensatibn,
including interest thereon, reasonable" attomey's fees, arid costs of suit.
In relevant part. Labor Code § 1197 states,.
The miniriiiiiri Wage fof employees fixed by the commission is the minimum wage
to be paid to employees, and the paymerit ofa less wage than the miriimum so
fixedjs unlawfii):.
In releyarit part,; LaborCbde §, 1198 states,
The emplpjanentof any employee;... under xonditibns of labor prohibited by the
[Wage-Order] js unlawful-;
In relevant partj/Sectibri 3 ofthe Wage Order'states,
(A)-Paily Oyertime - General Provisions
( I ) ,TheTollowirig bvertinie prbvisibris,are applicablie to'employees 18 years of
age or^byer ahd tofemployees \ 6?or, 17 year^ bf age who are not required by law to
attend school, andiare'.riO Otherwise prohibited„by law from engaging in the
subject wprk. Such employees shall not be ernployed m_ore than ei^^t (8) hours in
ariy wbfkdayoi^m^bre than 40 hours;in any workweek;uri!ess'the employee
receives orie and brie-half (1 Vi) times such ehiplbyee'stegularTate of pay for all
hours.: worked over 4Q hours in the wOrkweek. E i ^ t (8);ihoufis of labor constitutes
a day's worH.vEmpjpyment beypndl eight (S) hours in;any wo/kday or more thari
six (6) days in-any workweek is permissible provided the employee:is
coriiperisated for silch overtime at.'riot: less than:
Labor and Workforce Development Agency / Health Net, Inc.
May9,20r7Page9of 18
(a) One and one-half (1 '/2).times the employee's regular rate of pay for all hours
worked in excess of eight (8) hours iip to and including 12 hours in ariy workday,
arid fof the first eight (8) hours worked on the seventh (7"') consecutive day of
wOrk in a workweek; arid
(b) Ppuble the ernplpyee's regular rale;pf pay for all hoiirs worked in excess of 12
hours in any workday and for all hours worked in excess of eight (8) hours on the
seventh (7th) consecutive day pf wprk?in a workvyeek.
In conjunction, these provisions Of the Labor Coide requifeierriprbyefs to pay rion-exempt
emplpyees no I ess than their agreed-upPn or, statutorily hiandated wage;rates for all houi^s
wbi-ked, including hours.spent working "oftrthe-clock"' (before punching in or after punching out
on a tinie clock) Wheri tlie employer knows pr reasonably should know that ernployees are
Working during those hours. Mdhllion v. Royal Packing Co., 22 Gai.4th.5755 585 (2000).
Payment For All Hours Worked:
As a result of beirig imprbperly misclassified as exempt;. Arana and the agpieved employees
were not paid,for all hoUi-s worked:
Overtime and Double Time
As a,result of beirig improperly miscla'ssified as exempt, Arana and the aggrieved emplpyees
were not paid overtime coiriperisatioh fbr all bveitiirie, hoiirs worked. Moreover, Afaiia and the
aggrieved employees were npt paid^double time,;cpriipensation.for all double tirrie. worked.
Afaria arid the aggrieved employees would wprk.ten or more hours each day and were not paid,
bvertime:or double tirne corripensatibri.
Regular Rate of Pay
The regular rate of pay under Galifomia! law includes "all rernujieratipn,;fpr em^
.On behaTi;pf,.the emplPyeer O.L. 20^^^^^^
iriclude% but is not limited, to^ commiSsibns andrion-di'scfetioriarybbriuses. See. e:g.,.
Himiington Memorial Hosp. v. Superior Cqur^t, 13j. Gal,,App.4th :893, 904^-65,(2005)!
In relevant part,. Labor Code § 1198 states,,
Theemployrnent of any ernployee,under.conditions of labor prohibited by the
,[Wage'Order];is rinlawfiil.
At all relevant times. Health Net.violated the.above-refefericed Labbr'Cbde sectioris by failing to
pay Arana and the aggrieved employees for all hpuris worked, .includirig,-,butjribt limited to,
overtime hburs. While emplbyed' jby Health,Net; Arana^andiaggrieyed employees, received
hourly wages and other remunefatiori, including, but nbtnecessarily limijted to, non-discretionary
Labor and Workforce Deyelopment Agency/ Health Net, Inc.
May9,2017Page lO of 18
bonuses and/or other apiplicable remuneration that mustbe included when calculating their
regular rates of pay. However, Health Net corisisteritly failed to include all applicable forfns of
remuneration including, but not limited to, non-discrefionary bonuses, when calculatirig their
regular rates of pay.
:Specifica}ly,, Araha received periodic bonuses for the completion of certain projects., These
bonuses were paid .tp him by Health Net ,arid should have been included iri determining his
regular rate:of pay. However, Health Net.has failed to include suchbcinus payments ih,
deterrriiriirig his regular rate of pay when paying prerniurn wages for rn'issed m.eal andrest
periods arid overtime coriipensatibri.
Meal Periods
As a result of its failures to proxdde meal periods jn accordarice: With Califorriia law and to
accurately record the starting and stopping tirnes of all work periods, Companyfailed to'
compensate Arana arid the aggrieved erriployees with all hourly and pyertirne .wage.S/fpr .time
spent working during unpaid meal periods.
Off-the-Clock
During the applicable limitations period, Arana and the aggrieved employees.had to work.bff-
the-clock because they were nOt paid forall hours worked including,,butriotlifnitedtb,.
the company failingito pay them for time spent waiting to clock in during the regular co.urse of
business.
Specifically, Arana and the aggrieved employees were required fo bbOt up'theirWriipU
b'eginning of each shift; log in with, tiieir credentials, wait.fpr the computer to'finish bbptin^ up,
arid bVerituallly start the prbgram that would allow them tp;elpck-in.for,the day. Jhis prpces.s
could take anywhere ifromfifteen(15) minutes to thifty.(30):rriiriutes daily .-;time which was not
:paid by Health Net.
'In addition, Araria arid the aggrieved emplpyees were directed^^ inaccurately
record all, hours worked. Specifically,.'Health Net directed its ernplpyees tp utilize a.rounding;
ipra'etice that rourids time to theriexthour. Foi- example,, if an erilplbyee is scheduled tp work at;^
-9:QQ a:m. an.d :arriyes fo wbrk late at 9:1,0 a.m., ,that emplOyee..is..rei9uired"tP rburid;tirrie tb tlie.
next;hour - whi.ch would be 10:00 a:m. even though that employee wpUld be working frbm 9,:-l 6
tavm. through-16:00 a.m;
Accordingly, time spent working b-y Arana arid the.aggrieyei.eiriplbyees^wereriot accuriateiy
recorded and tliey were not paid for all actual hours worked.
Accordingly; Araria now^seeks civil perialties forthese Labbf-Godievviblations that Health Net
has cornniitted.against'him ,and..aggrieyed ernployees as foliows:-
Labor and Workforce Development Agency/ Health Net, Inc.
May 9, 2017Page 11 of f8
1. For all initial violations of Labor Code § 204, $100.00 for each aggrieved employee per
pay period for each violatiori (penalties set by Labor Code § 210);
2. : For all subsequent violations of Labor Code § 204, $200.00 for each aggrieved employee,
plus 25% ofthe amountunlawfully withheld from each aggrieved ernployee, pei^ pay
period for each violation (penialties set by Labor Code § 210);
3 . For all initial yiolations of Labor Code § "223 that are deemed to be neither willful nor
intentional, Sl pO.pp for each aggrieved employ^^ per pay period for each violation
(perialties set by Labor Code § 225.5);
4. For.all iriitial violatibris pf LabOr Code § 223 that are deiemed to be either willfiil Or
intentipnai, f$2pp,.0p for each aggrieved.employee^ plus 25% of the amount unlawfiilly
witlilield-from each aggrieved employee, per pay period for each violation (penalties set
by Labor Code §:225.5);;
5. For ;all- subsequent yiolations; pf Labpr Code § 223, jegardless.of vyhether the initial
yiplatibn of Labpr Gpde § 223 is deemed to be either wiflful or intentional, $200.00 for
each, aggrieved employee, plus 25% of the amount unlawfully withheld frorri each
.aggrieved eiriplbyee, per pay period for each violation (perialties set by Labor Code §
;225.5,);
6. Fprial| iriitialyiplations pfLabor Code § 5 fO, $50.00 fpr each aggrieved employee per
pay period for each vibiafion (penalties set by Labor Code § 558(a)( l)-(2));
7: For all subsequent viblations of Labor Code § 510^ $1 OO.pO for each aggrieved ,empioyee
(per pay peripd fpr,each yiplatiop (penalties.set by Labor Code § 558(a)(;i)-(2));',
8: Forall ihitiai yiblatibris of Labor Code §§ 1194 ahd 1198, $l60;00 fbreach aggrieved
.ernployee perpay period fbr each Viblation (perialties set by Labor Code § 2699(f)(2));
9;^ iFpr .all'Subsequerit.violations^of Labor Code §§ l,194;and 1-198, $2p0:p0 for each
aggrieved eriiployee perpay period for each violation (penalties set by Labor Cbde>§'
2699(f)(2));;
TO^^For alliinitial . Violations of Labor Code § 1197 dieemed to be'inteiitional ,; $ lOp.OO for each
aggrieved ieriiployee perjpay, period for each violation (perialties set by Labor Cbdie g;
T19^.1.)i.and
1,1 .'For all'subse<]uent yiolations. of Labor Code § 1197; regardless of whether the initial
violation is deemed to; be interitional, $250:00 for each aggrieved employee per pay
period for each violatiori (perialties set by Labor Code 1197.T(a)(I )-(2)).
Failure .to Pav Premium. Waiges at the Regular Ratte of Pay
(Lab/Gode §§^23, 226.7,,512, a^^
Labor and Workforce Dievelopment Agency / Health Net, Inc.
May 9, 2017Page 12 of 18
Labor Code §= 223 states,-
Where.any,statute or contract requires an employer to maintain the designated
wagei scale, it shall be unlawfiil to secretly pay a lowei' wajge while purporting to
pay the wage;desigriated by statute, or by .contract.
In.relevant part,!Labor Gode:§ .5'l2 states:
An; employer •may,hbt ern'plpy an eiriployee'for a-Wbrk period of more than five
hours per day without providirig the .einployee with a meal period of not less thari
30 iriiriutes, except tfiat if the tPtal work period per ;day of the employee is no
more than six hours;, the.meal period may be waiyed by mutual cpnsent of bpth
the employer and employee:-An ernployer may not; employ an employee for a
work period of more thairi fO houfsbf Labbf Code Sectibri 223 that are deemed to be;neither willful
nor:intentional, SiOQ.OG'^fbr ,eabh.aggrieved,emplb.yee;per'pay pe^
(penalties set by Labor Code Section 225.5);
2) For all iriitial viblatioris bf Labor Cocle.S.e^^^ 223 that are deemed to be either willfiiLof
intentional, iS200.00 for each aggfieyedleiriployee, plus 25%:otthe"ampunf unlawfully
withheld frorii each^aggrieved emplbyee, :per pay periodTbr'each violation (penalties set
by Labor Code Section>225.5);
'3). Fbf all subsequent? viblations Of Labor CbdeiSection 223i regardless;;bf whether the initial
violation of Mbpr Gode'Siecfion 223 is deemed to be'either willfuTpr'iritentipnal, $200:00
fpr each aggrieved employee,;plus 25% pfithe anipuntunlawfully.withheld from each
aggrieved ernployee, per pay peribd for each violatibri.(penalties>set:by" Labbr Code
Sectiori 225.5);
Labor and Workforce.Development Agericy / Health Net, Inc.
May 9,2017Page 14 of 18
4) For all initial violations Of Labor Code Section 226.7, $ 100.00 for each aiggrieved
employee per pay period for each violation (penalties set by Labor Code Section
.2699(0(2));
5) Fbr'all subsequent violations of Labor Code Secbon 226:7, $200:00 for each aggrieved
employee per pay period for each violation (penalties set by Labor Code Section
2699(0(2));
6) FOr:ail initial violations of Labor Code. Section 512^ $5P:0() for^each'aggrieved employee
per pay period for each violation (penalties set by Labor iCpde Section 558(a)(l )-(2));,
7) Fbr ail subseqiieriti viblations of Laboi- Code Section 512, $100:00 foi" each aggrieved
employee per pay'period, for each violation (penalties set^.by;Section 558(a)( 1 )-(2));
8) ForfaU initial violations of Labor Code Sectipn 1198, $ 100.00 for each aggrieved
employee per. pay period for each violation (penalties setby Labor Code Section
2699(0(2))j:arid
=9) Fbr all subsequent violations of Labor Code Section 1198,,$200.00 for each aggrieved
employee per payperiod for each violation (penalties set by Labor Code Sectibn.
2699(0(2)):
FAILURE TO PROVIDE.ACCURATE WRITTEN WAGE STATEMENTS
Labor Code § .226(a) requires an.employe provide andemployee, either semiiribrithly or at"the
tirne of each wagepaytnenti with an accuratearid iteiriized .written'wage;sfatement tha shows:'
1,. Gross wages eamed;
i. ,N,o,t paid for aU .OT hours and hpurs wprked , accordingly gross wages were
not provided
ii. All applicable rneal/rest ,break premiums not paid and sp^grpss wages earned
riot accurate
iii;. Time was rounded in unfair and unneutral manner therefore gross wages.npi
accurate
2. TotaLhoursnyorked by the employee, exceptvfor any.erriplbyee whose
cOfnpensatiori is solely baised on a salary arid whb is exempt from paymerit of
bVertiririe'.urider subdivision (ia) of Section, 515 or:any:applicable order:of the
Iridustriaf Welfare Commission;
i:, Total hours worked failed tb reflect all Hourly and Overtime hours worked'
ii., Time was rounded in unfair and unneutral nianrier-tW total hours
worked not reflected
Labor and Workforce Development Agericy / Health Net, Inc.
May9,2017Page 15of 18
.3. The number of piece fate units eamed and any applicable piece fate if the
employee is paiid;ori a piece-rate basis;
4. All deductions, provided that all deductions made on written orders of the
eniplpyee rnay be.aggregated and shown as one item;
5. Net wages earned,
i:, Nbt paid fpr all hourly and pyertime hours worked, accordingly riet, wages
were iricoffect.
it Time;was rounded in unfair and unneutral manner therefore net wages not
acciifateiy reflected
iii. .A;PpIicable:meal and rest break premiums not paid therefore.net wages.,npt
accUraitely reflected
6. The inclusive dates^ofthe^period for which the emplbyee is paid,
7. The hafne of the employee and his or her social security number, except that by
January 1, 2008, only tfie. last four digits of his or her social security nuniber or .an
employeeJidentificatipn number other tlian a social security nurnberrii'aybe
shown on the iterriized statement;
8. The namethe-:clbck'' wbrk.d^^
abpve, by,failing.tO pay.;efriplOyees'r^
fa'irt^^.Health'^Netvhas faileditb provide Arana arid the,aggfi'eved eriiployees with writfen:'wage;
statements thatlcbmply with the requirements of Labor Cbde § ,226(a): The wage,staifements:of
Araria'andjthe aggrieved employees'have not/accurately reflected theirapplicable ,rates pf pay^
hours worked, and tlieiampurits bf theirnet and gross wages.
.Accbfdingly. Arana nOW seeks civil penalties for !Health Net;S:Viblations of Labor Code(§
226(a) as follows:, "
1. Fbr-all; violatibnsibf LabbrCbde; §; 226(a actiorifiled,inaccbfdance.-with the
pfbcediires set forth in Labbr Code § 26993 results in ari initial cita&^ .OrJits:e.quiyalentj
$250.00 for each employee for each violation (Labor Code § 226.3); or
Labor and Workforce Developmerit Agency / Health Net, Inc.
May 9,2017Page 16 of 18
2. For all violations of Labor Code § 226(a) if a civil action filed in accordance With'tlVe,
procedures set forth in Labpr Code § 2699,3 results in a subsequent citation or its
equivalent, $l.OO0.0Q for each employee for each violation (Labor Code § 226.3).
LATE OR INCOMPLETE FINAL WAGES FOLLOWING SEPARATION OF EMPLOYMENT
Labor Code § 201, requires;an:employer to pay all earned and unpaid wages to a discharged
employee iminediately at the time of discharge.
Labor Code § 202 feqiiifes ari ernployer to pay'all earned and unpaid Wages tp'an emplbyee who
quits after giving at;;least 72 hoiirs-notice all earned and. unpaid wages at the time of.quittirig.
Labor Code § 202 requires an. employer to; pay all earned and unpaid'wages tb an employee who
quits afterless thari 72-hours-notice all eafned arid unpaid wages withiri 72 hours of giving notice
bfqUittirig.
Labor Code §, 203 prpvides that an employee's wages shall coritiriue as a penalty from when.they
first became due at the same'rate until,paid for up;to.30 days when an eriiployer 'willfiilly fails tb
timely pay all carried arid .unpaid wages in accbrdahee with Labor Code section 20l or 202.
By failing to timely.furnish;Ara_nC£uid aggrieved employees with any final paycheck and/orwith
final,paychecks that include,all eamed and unpaid wages, inicluding, but notriecessarilylimited
to, ail earned arid unpaid hourly, bYerti'rrie, and/br preriiium wages, Health Net has violated Labor
code §§ 201 and 202.
Accordiiigly;,Arana npwseekspiyil penalties fbrHealth Net's yiolations of LaborCode §§201,
202, and 203 as follows;.
1. For all initial Viblatibrisiof ;Labbr Code §§ 201, 202, and 203^ $1 OO.Op fpr each aggrieved,
emplpyee per pay peribd,=for each violation (Labor Code § 2699(0(2)); and
2. For all subsequent viblatioris of Labof Code §§, 201,202,;and 203, $2()0.00 for each
aggrieved ernployee per,;pay period for each yiolatipn (Labor Code § 2699(0(2));^
Under Galifomia Labpr'Code i§ 2'56;;the Labor Commissioriier shall impose a ciVil perialty in an
.amount not exceeding30 days:' pay as Waitirigttime;urider the terrris of Section 203. Health Net
willfully fai led. to timely fu'rriish' Afana arid aggri'eved iemplpyees with any final paycheck timely,
arid/or Withfinal;paychebks that ihclude all eamed and unpaid; wages, including, but npt;
riecessarily limited to, alii eairied and unpaid^houriy, overtime, and/Or premiuiri Wages; Health
Net has violated Labor Codie §.§ 201 202,;and 203. Accbfdingly, the aggrieved eriiployees,seek
to recover tiie wagesjaridcpehaltieslof Sectiori'256.;^0 aggrieved
eriiployees. Cal. Lab. Codie §§ 2699; 2699:.3, iand 2699.5.
Labor and Workforce Development Agericy / Health Net, Inc.
May9, 2bl7Page 17of 18
Arana is an individual who was employed by Health Net in ah hourly positioh within the past
year. At all relevant times. Health Net employed persons, conducted business in, and engaged in
illegal labor and payroll practices and policies in .Galifomia.
VIOLATIONS OF LABOR CODE S558
Afaria is an individual who was employed by Health Net in an hourly position,;during all
relevant times. At all relevant times, HeaUh Net jointly employed.persons, conducted business
in; and engaged-in illegal labor and payroll practices, and pohcies in Califoriiia.
Under Califomia Labor Code § 558, any persori acting bri behalf of an eriiployer who violates or
causes to be violated a provision of the Labor Code regulating hours apd days of work in any
Order of the Industrial Welfare Commission shall be subject to civil penahies and be ordered to
pay all unpaid wages; Health Net failed to prpvide the aggrieved employees.irieal arid/or rest
breaks, minimum and overtime wages, and other Wage violations. Accordirigly, the ajggrieved-
employees seekto recoVer the wages and penalties of Section 558 ori behalf bf herself and other
aggrieved employees. Gal. Lab. Code §§ 2699, 2695.3, and 2699:5,
VIOLATIONS OF LABOR CODE §1199
Labor Code § 1199 sfates:
Every employer or other person acting either individually bf as ari pfficer,,agerit; or employee of
another persori is guilty of a misdemeanor and is piiriishable by a fine of not less than one
hundred dollars ($100) or by iriiprjsonrnent forribt'lessthan 30 days, or by both, who does any pf
the-followirig:
(a) Reqiiires or causes any eiriployee tb work for longer hours thari
those fixed, or undef;cbnditibris of labor prohibited by ari Order of
the commission.-
(b) Pays of causes to be paid to any emplbyee; a wage less'than the
iriiniirium;fixed by an order of the cbmmissiOri.
i(c) Violates or refiises or neglects to comply with;any. prpyision
of thi,s,,chapler or.any-qrd#,or ni^l ,of thetcpnimission:
By'failing tb'tiiriely fufriisil Araha arid ag^ieved;ernplbyees with unpaid wages,:including;.buf
riot.rieceissarily'limited to, all earned and unpaid hourly^ overtime, and yacatipn w,ages:and/or
premium wages ait tlie regular rate of pay,;HealthtNet's criminial conduct has vipla^ted Labor
qod.e§1199.;
Labor and Workforce Development Agency / Health Net, Inc;
May9,26i7Pagel8bf 18
1. For all jnitial.yiplatipns of Labor Code § 1199 can find an.employer liable for a misderneanor
and is punishable by afirieof $100.00 or by imprisonment for nof less than 30;days of by
bbth.(LaborCode§ 1199)
VIOLATIONS OF LABOR CODE §256
Arana is ari iridividudl who was eriiplbyed by Health Net in an;hburiy positipriwithin the past
year. At alLrelevant times, Health Net employed persons, conducted biisiriess iri, and engaged iri
illegal labpr^and payroll,practices and policies;iri Callifomia.
Under Califpmia Labor Code § 256, .tfie. Labor Commissioner shall impose a; civil penalty in an
afriouritribtiexceedingiO diays' pay as waiting time under the terms of S.ectiori 203. Health Net
willfuily failed, to timeLy fiimish Arana and aggrieyed emplpyees with anyifirial paycheick tirriely,
arid/or with final paychecks that include all eamed and unpaid wages, including, but not
inecessarily limited to, all earned and Unpaid hourly,pVertiriie, vacation, and/pr prerniurn wages-
and/orvacatibri pay, Health Net has violated Labbr Code §§ 201,202, and; 203. Accprdingly, the
aggrieved'erii^plpyees seek t recover the wages and penalties of Section 256 ori behalf of herself
arid otheriaggrieved employees. Gal. Lab: Gpde:§§ 2699,2699:3, arid 2699.5.
CONCLUSION
Aisriotedabove, this letter constitutes:the required nptjce under the Labor Cbde PriVate-
Attbrrieys General Act of 20p4;,Insofar as this letter is difiected toward HealthNet . please be;
advised that Arana will seek both reasonable: attonieys' fees arid costs;urider Labor Code §
2699(g)(1) in a civil actiori should,the LWDA decline to pUrsue this matter:
Siribefely,
Shauri Setareh, Esq/ "''
EXHIBIT 2
9454 -WILSHIRE BLVD
S E X A R H H BEVERLY HILLS, CA 90212
TEL: (310) 888-7771
LAW GROUP FAX: (3,0)88^1.09
WWW.SETAREHLAW.COM
*SENT VIA ONLINE SUBiVliSSiON AND CERTIFIED MAIL*
July 12, 2017
PAGA Administrator
Califorriia Labor and Workforce Deyeloprnent Agency
1515 Clay Street, Suite 801
Oakland, Califomia 94612
Heahh Net of California, Inc.
C:T Corporation System
818 West 7th Street. Suite 930
Los Angeles, California 90017
Re: Arana y. HNGA ofCalifoirnia, Ihc.
To Whom .lt iVlay-Cbricefri:
Pursuantto the Labor'Gode Pnvate Attomeys General Act bf 2004..Labor Code section 269.i8, et
sc^;, Tomas R. Arana ("Ar£ma") prpvides not^ of himself and on behalf of all
sifnilarly situated current arid.ffpriner employees in California ("aggrieved ernpioyees''),pf
Health Net of California; Inc. (''I^NCA") alleged viblations of Labor Code sections 201, 202,
203, 204; 223, 226(a);;226.7, 510, 512, 558, 1194, 1197, i;i 97:;i ,, 1198, and 1199.
. Aranaiis; an incii vidua! , who'was .employed^ hourly position as a Customer Service
Representative frbm ap^fbximately. February 25, to approximately Noverhber 15,2015,
when he was promotj^d to an Analyst, a salaried .exeriipt position, Araria and.the;,aggriev«l
eniplbyees=were;nbt;paid at the proper fates set'by'the Divisibn?bf Labpr Standards Enfprceriierit.
At all.relevant times, HNGA emp!pyed|^persOris; conducted arid engaged in illegal
labor and payroirpractices and-po^^^ Galifomia:
Arana and aggrieved elriployees;are "iemploye^^
iapplicable Wblfare Cpmrnission'Orde eriiployees" within the
meariirig of Labor Cbde section' 2699(c): At all relieyanttimes, Arana arid aggrieved icrriployees
have b;een,rion-exempteriiplbyees entitled to'^the.fiin prptectipns of both the Labof Code arid the
Wage Order.,
As- set forth below, HNGA failed to comply with the Labor Code sections as described herein
below. Accordingly, Araria now seeks civil penaihies for H N C A ' S alleged violations ofthe
Labor Code.
Labor and Workforce Development Agency / Health Net of Califomia. Inc.
July 12, 2017
Page 2 of 17
Failure to Provide Meal Periods
(Lab. Code §§ 204, 223, 226.7,512 and 1198)
Labor Code section 204 provides that all wages (except as proyided fPr under Labor Code
sections 201-202) earned by any person.in ariy emplOyrifierit becorne due and payable t'wice
during each calendar month, on days designated in advarice by the,employer as the regular
paydays, except that wages earned for labor in excess of fhe normal work; period shall be paid no,
later thari the payday for the next regular payroll period..
Labor Code section 223 states:
Wliere any statute or contract requires an ernployer to maintaiiri the desigiiated
wage scale„it shall be unlawfiil to secretly pay a loWer wage while puipbrting to
pay the wage designated by statute or by contract.
In relevant part, Section 2 of the'Wage Order.states:
"Hours workied" means the time during which an.employee is subject to the
control of an employer, and iricludes all the time the employee is suffered or
perrnitted tp work, whether or not required to do so.
In relevant part. Labor Gbde, section 1198;states:
The employment of any employee . under coriditipris of labor prohibited bythe.
[Wage.Order] is unlawfiiL,
In relevant part; Labor Code sectibn 512 states;
Aricemployer may not ernploy an eiriplbyeie fbr a .wofk,peripd\of:^
hburs per day without; prpyidirig fhe ernployee widi a meallperiod of^^^^ less-than
30 minutes, except that if the total wprHiperiod per day Of theieriiplpyee is np
mprerthari six hoiirs, tlie rrieal period inay be waiyed by mutual corisent bf both
the ernployer and; em ployee. An ehiplbyer inay-hot em^^ emplpyee fpr a
work-period of more than. lOhours per'day .witlibiit pfbvidirigtheemployee witli a
.second meal period of not less t.han^304minutes, exceptthat ifthe total, hburs'
worked is no more than 12 hours, tiie.second rneaLperipd rnay be waiyeid by
:mutual consent of the employer arid tiie emplbyeepnly ifthefirsferneal.period, was
?ribt waivecl.
In: relevant part,..Section f l of the Wage.Order states:
Meal Periods:
(A) No employer .shal I employ aiiy person fpr a work peribd of mpre than sfive
(5) hours without .a ineaLperiod of not less; than 30 miriutes, except that
when a work period ofriotriiorethan six (6) hpurst:wi}l complete the day's
work the meal peripd may be .waived by miitual consent of the employer
Labor and Workforce Development Agency/Health Net of Califomia, Inc.
July 12, 2017
Page 3 of 17
and the eiriplbyee. Unless the employee is relieved of all duty during a 3.0
minute meal period, the meal period shall be considered an "bn duty" meal
period and counted as time worked. An "on duty"riiealperiod shall be
perrnitted,only when the nature of the work prevents an employee from
being relieved of all duty and when 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 erriplbyer fails to provide an employee a meal-period in accordance
with the applicable provisions of this order, the eriiployer shall pay the
employee one; (1.) hour of pay at the employee's regular fate of
cbriipensation ;for each workday that the meal period is not provided.
Irijaddition, LaborCode sectiori 226.7 states;
(a) No employer shall require any employee to work during any meal or rest
peribd mandated by an applicable order of the Industrial -Welfare
Comfnissibri.
(b) If an employer fails to provide an employee a meal peribd.or rest period in
accordance with.ari applicable order of the Industrial Welfare
Gbinririission, the employer shall pay the employee one additional hour of
pay af the employee's regular rate of coriiipensation for each work day that;
the meal or rest period isriotproyided.
HNCA's: writteri policies failed tp adyiseArana arid the aggrieved employees bf their-le^^^
:tb take meal-periods in,accordance witli Califorriia law. iSpeicificaHy, HN.CA did riot pfovide its
rionrexempt employees with an uriintermpted rneal period of at least thirty (30);miriiites ancJ did
not'prOvide its non-exempt employees with an opportunity to tiake ari :uninfemipfed meal peribd
of^at;least thirty ,(;30)sdue ,to the excessive Worklbad.imposed on Araria arid tEe'aggrieved'
employees.
.Furthefmore,.,as a result:ofbeing;iriisclassified as .exempt, Araria and the aggrieved^ernployees.
wereriotIpfbvidiedall offheir:rneal breaks to which they were entitled. Mbrebver, HNGA failed
to. keep.accurate.record.bf all hours worked,,iricluding meal periods. Further; rAraria/andfthe
aggrieved employees were riot told to clock in or oiit for meal peribdsyiripr were thfey told to keep
tracklbf whether pr nof they took ariiealperibd. Due to the workload and pressure to get their
work.done,.Afaria,and the.;aggrieved employees were: frequently fecjjuii-ed'tb Work thro,ugh':their
meaLperiods. Due; to this policy and/or practiicei Afaria and the aggrieved ieriiplbyees were
foiitinely denjed uninterrupted, duty-free meal periods of at least,thirty (30)riiinuteswhile
eriipibyed by HNGA.
.In addition, wlien Arana and the aggrieved .eriiplOyees were not timely provided with a rneal
peripd, Hl)ieA failed, to pay them legally required premiiim wages. "These failiifes result, in part,
ffbrri pblicies,and;pra.ctices:that lack adequate safeguards to ensure that employees are relieved of
all duty fbfriiealperiods and. are paid additional wages wheri meal periods are not provided.
Labor and Workforce Development Agency / Health Net of Califomia, Inc.
July 12,2017
Page 4 of 17
Arana and the iaggrieved empioyees were not subject to valid on-duty meal period agreements
with HNGA. California law fequifes thatriiealperiod waivers be documented.in a written
agreement that is voluntarily signed by both the employee and employer. The written agreement
riiust state that the employee may, in writing, revoke the agreement at any time. 8 Cal. Code
Regs. § i 1046(11). Arana and the aggrieyed employees did not execute lawful meal, period
wajvers in:accordance with Califoriiia law.
Accordingly; Arana now seeksvci vii penalities for these Labor Code viblations that HNGA has
cornmitted ajgairist him and aggrieved employees as follows:
1. Fpr all initial violatibris of Labor Code section 204, $100.00 for each aggrieved erifiplpyee,
per pay period for eadh viblation (penalties set by Labor Code § 210);
2. For iali subsequent violations of Labor Code §' 204, $200.00 for each aggrieved einployee,
plus 25% bf.the ainburit unlawfiilly withheld from each aggrieved emplpyiee, per pay
peripd for each violatiori (penalties;set by Labor Code § 210).
3. For all initial violations pf Labor Code § 223 that are deemed to be neither willfijl nor
interitional, $100.00 for each aggrieved ernployee per pay period for each violatiori
(penalties set by Labor Code § 225.5);
4. For all initial, violations of LaborCodei§ 223 that afe deemed tO;be either willful or
intentional,.$200.p0 for each aggrieved ernployee, plus 25% ofthe ariiburit unlawfully
withheldifrbiri each aggrieved emplpyee, per pay period for each violation (perialties set'
by Labor Code § 225.5);
5. For all subsequent yiolations pf Labor C^^ § 223, regafdless of whether the initial
Viblatibn of Labor Code §-223 is deemed to be either willful or intentional, $200:00 for
each aggnevedf^empilbyee.'pius 25% bf the, amount unlawfiilly withheld ffoiriieach
aggrieved employee, per pay period for each violatibn (penalties set'by. Labor Gode §.
225:5);
6. For ail iriitial yiplatiohs of Labor Code §§ 226.7 and 1198, $ 100:00 foreiaeh aggrieved
employeeiper pay period for eadh violation (perialties set by Labor Code §:2699i(0(2));
7. For all subsequent yiplatipns of Labor Code §§ 226.7 and 1198,.$2pp.p0 for each
aggrieved employee per pay period for each violation (perialties set ijy Latior Code §
i699(f)(m
8. For^all initial violations of.Labor (Cbde,§ 512, $50.00ifbr each aggrieved employeeiper
pay peripd for each viplatipn ( Labor Code .§ 558(a)(l )-;(2)); and
9. Fori^ll ;Subseqtieht;viOlatibri"s of Labor Code § 512;;$ 100.00 for eachiaggrieVed employee
per pay period for each violiatiori.(Labor Code § 558(a)(l )-(2)).
Failure to Provide Rest Periods
(Lab. Code §§ 204, 223, 226.7, and 1198)
Labor and Workforce Development Agency / Health Net of Califomia, Inc.
July 12,2017
Page 5 of 17
Labor Code § 204 provides that all wages (except as provided for under Labor Code §§ 201-
202) eamed by any persori in any employment'become due and payable twice.during each
calendar month, on days designated in advance by the employer as the regular paydays, except
that wages earned for labor in excess of the nonrial work period shall be paid no later than the
payday fof the next regular payroll period-
Labor Code § 223 states.
Where any statute or contract requires an emplbyer tp maintain the designated
wage scale, it shall be unlawfiil.tp secretly pay a Ibvviep wage while purporting to
pay the wage designated by statute or by contract.
In relevant part^ Section 2 pf the Wage Order states,
"Hours: worked" means'thetime duririg which an eriiplbyee is subject to the
control bf ari eriiplbyer,-'and 'includes;alf the time, the.employee is suffered or
permitted.to work, wlietheror not required to do so.
Iri relevant part; Labor Code § 1198 states.
The employment bf any employee .. . under cpriditionspf labor prohibited by the
[Wage Order] is unlawfiil.
Sectibn 12 ofthe Wage.Order provides,; in relevant part:
Rest Periods:
(A) Every emplpyer shall: authorize and permit all-eriiployees to take rest
periods, whichnnspfar as;practicable shiall be in .theriiiddleof each work
period, the authorized,rest peripd ^Um^ shall be based bn.the tbtal hours
worked daily at.the;rate;ofteri,(:l:0).minutes;net rest tiine.per four (4) hours
orniajor ffacfion therebf However, a rest peribd need npt be iauthori'zed
for eriiployeesiwhose total daily worlc;tinie is less thian three,and one-half
(3 1/2) hours. Authorized rest period time shall be cbiirited as hoiirs
worked fof which tliefie shall, be-no deductiori from,vvages.
(B) ' If ari employer fails to provide an employee;a rest peribd in accordance
with; the .applicabl§;proyisions pf this Order, the employer shall pay the
eriiployee;bri^:(;T) hour of payiat the;emplb regular fatie bf
compensation for each wbrk :day;thaf tho rest p.eribd.,is;not provided.
In addition, Labof Code § 226:7 states:
(a) No employer shall reqiiire.ariy^eiriployee to
Preview
1 Shaun Setareh (SBN 204514) shaun(^setarehlaw.com 2 William M. Pao (SBN 219846) FILEO/Ef^OORSEO william@setarehlaw.com 3 Jose Maria D. Patino, Jr. (SBN 270194) Jose@setarehlaw.com MAY - 7 2020 4 SETAREH LAW GROUP 315 South Beverly Drive, Suite 315 By:. H. PEIVIELTON 5 Beverly Hills, Califomia 90212 Deputy Clerk Telephone (310) 888-7771 6 Facsimile (310)888-0109 7 Attomeys for Plaintiff TOMAS R. ARANA 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SACRAMENTO 11 COMPLEX CrVIL LITIGATION 12 13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persons CU-OE-GDS 14 similarly situated, Assigned For All Purposes to the Honorable 15 Plaintiff, David de Alba, Department 41 V. 16 DECLARATION OF WILLIAM M. PAO HEALTH NET OF CALIFORNIA, INC., a IN SUPPORT OF PLAINTIFF 17 Califomia Corporation; and Does 1 through OPPOSITION TO MOTION TO STRIKE 50, inclusive, TOMAS R. ARANA'S REPRESENTATIVE 18 PAGA CLAIMS Defendants. 19 Date: April 3, 2020 BY FAX Time: 1:30 p.m. 20 TOMAS R. ARANA, on behalf of himself, all Courtroom: Department 41 others similarly situated. 21 Original Complaint Filed: April 5,2017 Plaintiff, FAC Filed: June 29, 2017 22 Consolidated Complaint Filed: Dec. 21, 2017 23 HEALTH NET OF CALIFORNIA, INC., a 24 Califomia corporation; and DOES 1-50, inclusive, 25 Defendants. 26 27 28 DECLARATION OF WILLIAM M. PAO IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATTVE PAGA CLAIMS 1 DECLARATION OF WILLIAM M. PAD 2 I,,WilliarnM. Pao, .declare as follovvs: - 3 L I aril an attomey duly licensed to practice law in m Califoiniai arn a member ofthe bar of; 4 this Court and an attomey of record for Plaintiff. Except for those matters stated on inform^on arid 5 belief, vyhich I am infonned and believe to be tme and cprrecti I have personal knowledge of all mattersX 6 set fdrtii heteiii, If called as a wdtaess, I could and 7 2~. Ttds PjxlaratiOn is submitted ih . 8. Tomas R. :Arana'5 Representative PAGA Claims. ^ - 9 3; AttacKted as Exhibit 1 is a tme arid correct copy of Plaintiffs; May 9i 20l7PAGA'Notice; 10 to was uploaded to the LATO •w 4: Attached as Exhibtt 2 is a tme arid conrect copy of Plaintiff^^^^ 1 12 Notice that was uploaded to^^^ LWDA and mailed to Defendant Health Net 6f California, Inc. ' 13 I declare urider.penalty of perjury, under the laws of the State of .Califomia, that the foregoirig is 14 true and Qorrecti ^ ' . 15 Executed this 16th day of April 2020, at Los Angeles, California. ' ' 16 17; 18 William M. Pao 19; :20 21 22: 23- 24. 26' 27 28 PLAINTIFFIS OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTIONTO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS EXHIBIT 1 9454 WILSHIRE BLVI) S E T A W E H BEVERLY HUXS.CA 90212 TEL: (310) 888-7771 FAX: (310)888-0109 LAW GROUP WWW.SETAREHLAW.COM *SENT VIA ONLINE SUBMISSION AND CERTIFIED MAIL* May 9, 2017 PAGA Administrator Califomia Labor and Workforce Pevelppment Agency 1515 Clay Street, Suite 801 Oakland, Caiiforhia 94612 Heahh Net, Inc. C T Corporalion Systern 818 West 7th Street, Suite 930 Los Angeles, California 90017- Re: Arana v. Rbalth Net-, Inc. To Whom It May Concern: Pursuant to the Labor Code Private Attorheys.Qerie Act pifi2004. Labor Code section 2698, i?/ seq., Tomas R. Arana ("^Arana") provides notice;on>Bhai^^^^ on behalf Of all sirhilarly situated, current arid tbririer eiriployeesfin Ca^^^^ of Health Net, Inc. ("Health :l>jet!'):.alleged violations of Labor Code/sectiOns 201,202, 203, 204, 223, 226(a),,226.7, 510, 512y 558, 1 j 94,. 1197, 11,97.1, 1198, arid 1199. Araha is ah individual who was employed by Health Net in an hourly ppsitionras a Customer SeFviceparf: Rest Periods: (A) Every erriployei" shall aiithbrize and pennit all employees to take rest periods, which irisbfaf as practicable shall be iri.the iriiddle ofieach wprk period. The authorized rest period tim(S;shall be based Oh=the total hours wPrked.daily at the ratopften (10) rriirKutes net jest'tirne per four (4) hours or major fraction thereof. However, ,a rest ,period need not be'authorized Labor and Workforce Development Agency / Health Net, Inc. May9,20l7Page6of 18 for employees whose total daily vyork tihie isless than three land oriCrhalf (3 1/2) hours. Authorized rest period time shall be counted as hours worked fOr which there shall be ho deduction from wages. (B) If an employer fails to provide an erriployee a restperiod iri accordance with the applicable provisions of this Order, the eniployer shall pay the employee one (I) hour of pay atthe employee's regular rate of compensation for each work day-that the rest period is not provided^ In addition, Labor Code § 226:7 states: :Ca) Nb employer shal I' require any employee to work during any, meal pr rest peripd mandated by an appiicabie order of -the Industrial Welfare Commission. (b) If an employerTalils to provide an eniployee a meal period or rest period in accordance with an applicable order of .the lridustrial Welfare Coriimission, the employer shall-pay the erriployee one additional hour of pay at the employee's regular rate of compensation for each-work day that the meal or rest period isriotprovided. Asa result of being improperly claissified as exempt, Arana and the aggrieved employees were not'provided all pf ,their rest breaks to which they were entitled: FleailthNet's%ritten policies failed to advise Arana and the aggrieved eniployees of their legal rights to take i-est periods iri accordance with GaHfprnia law. As a result of these policies and practices, ,Heaith;Net failed to provide Araria^arid .the aggrieved ernployees with,.n.etres^ of at leas.t;teniniinutes for each four hour Work period. Or hiajbr portion thereof, arid! hayejfm^^ to pay -them. premium wages at their regular rates pf pay prt wbi-kdays they failed to provide tliem ,with required,rest periods. Health Net's policies and,practices lack adequate safeguards tb ensure th.at!employees are relieved of their duties for all required rest periods and'.are paiit additiorial wages;when rest periPds are nPt provided., A'ccordingiy, Arana now seeks civil penalties for these Labor Code .yiolatiOhS; that Health Net has corhmitted against him and aggrieved einployees as?follows: 1., Tor alljinitial violation's of Labor Code § 204,, $100:00 for each ^aggrieved employee-per ,pay period for each yiqlation,(penalties,set;,by Labor 2; For all subsequent viblations of Labor Code § 204, •$200' 00 for:each\aggrieyed ernployee, plus 25% of the amouiit unlawfully withheld fi'om each'aggrieveci eiriplbyee, per pay peripd for eachzviolatipn (penalties set by.Labor Cod Labor and Workforce Development Agency / Health Net, Inc. May9,2017Page7of 18 3. For all initial violations,'of Labor Code § 223 that are deemed to be neither willfiil nor interitional, $ 100.00 for each aggrieved employee per pay period for each violation (penalties setby Labor Code § 225-5); 4.. For all initial violatibris of Labor Code § 223 that are deemed to be either willfiil or intentional, $200.00 for each aggrieved employee, plus 25% of the amountunlawfully withheld from,each aggrieved, einployee, per pay period for each violation (penalties set by Labor Code § 225.5); 5: FOraif subsecjuerit violations of Labor Code § 223, regardless of whether the initial, violation,of Labor Code § 223 is deernied to be either willful or intentional,;$200;00 for each aggrieved employee, plus 25% of the: amount uriiawfully withheld froiri^each aggrieved employee, per pay period fbr .each violation (perialties set by Labor Code § 225.5); 6. For all iriitial VioliatiOns of Labor .Code §§ 226.7 and 1198, $ 100:00 fpr each aggrieved employee per pay peribd'fbr:,each viblation (penalties set by Labor Code § 2699(f)(2)); and 7. For aill subsequent violations of Labor Code § § 226.7 and 1198, $2OO;0O .for each aggrieved employee per pay period for each violation (penalties set by Labor Code § 2699(0(2)). Failures to Pay Hourly and Overtime Wages (Lab. Code §§ 204,223,510, 1 i94,1197, arid 1198) Labor Code §. 204 provides tiiat; all wages (except as provided fpr -under Labpr Code § § 201- 202) eamed by ariy persori,iri ^tiy eiriployirient become due and payable twice during each .cal.en.dar month, on.days designated in advance by the emplbyer as the^regular.paydays, except thaf wages earned jfor labor in exces_s of the'nornial work periodishallibepaidrhb later tliari:the payday for thejriext'regular payroll,periPd. Labor Code § .223 .states, Where any statute or contract requires an emplbyer to maintain the designated wage'scale, it:shail be unlawfiil to secretly pay a lower wage while:purp.orting to: jpay;the wage, designated ;byi statute of by contract. InTeleyant parti'Sectipn 2 of the'Wage Order states, "Hours wpi'ked"^rrieans the:time during which an employee/Js subject to the' :cOntro.l of an eniplOyei;, ahd includes all the time the efripl()yeea's suffered or perrnitted to work, whether orriot,requiredtp do so. Labor and Workforce Development Agency / Heajth Net, Inc. May9,2017Page86f 18 In relevant part; S.ecfion 4 of the Wage. Order states, (A) Every ;employer shall pay to each emplpyee wages npt less than seven dollars and fifty-cents ($7.5JO) per hour for all houi's worked, effective January 1, 2007, and,not,less tbari eight dollars ($8.O0) per hour for all.hOiirs worked, effective Janiiary 1> 2p08[.] (B) Every-eriiplbyer-shall pay "to-each ernployee, on the .established payday for the period irivolved,>ribt less than .the applicableLiriinimum wage for all hpurs worked ih,the payroll period, whether;the'remuneratiori is nieasiired by time,,piece, cpmrnission; or otherwise. in relevant part. Labor (Code § 1194:stateSj (a).,Nptwithstanding:ariy agreement to work for a: lesser .wage, any employee receiving less than the legal rninirnUrri wage.or the legal Overtime compensation applicable to .the ernployee,is entitled to recpver in a civil action the unpaid balance of" thc/fiill "arriourit of this iriinimum wage or overtime compensatibn, including interest thereon, reasonable" attomey's fees, arid costs of suit. In relevant part. Labor Code § 1197 states,. The miniriiiiiri Wage fof employees fixed by the commission is the minimum wage to be paid to employees, and the paymerit ofa less wage than the miriimum so fixedjs unlawfii):. In releyarit part,; LaborCbde §, 1198 states, The emplpjanentof any employee;... under xonditibns of labor prohibited by the [Wage-Order] js unlawful-; In relevant partj/Sectibri 3 ofthe Wage Order'states, (A)-Paily Oyertime - General Provisions ( I ) ,TheTollowirig bvertinie prbvisibris,are applicablie to'employees 18 years of age or^byer ahd tofemployees \ 6?or, 17 year^ bf age who are not required by law to attend school, andiare'.riO Otherwise prohibited„by law from engaging in the subject wprk. Such employees shall not be ernployed m_ore than ei^^t (8) hours in ariy wbfkdayoi^m^bre than 40 hours;in any workweek;uri!ess'the employee receives orie and brie-half (1 Vi) times such ehiplbyee'stegularTate of pay for all hours.: worked over 4Q hours in the wOrkweek. E i ^ t (8);ihoufis of labor constitutes a day's worH.vEmpjpyment beypndl eight (S) hours in;any wo/kday or more thari six (6) days in-any workweek is permissible provided the employee:is coriiperisated for silch overtime at.'riot: less than: Labor and Workforce Development Agency / Health Net, Inc. May9,20r7Page9of 18 (a) One and one-half (1 '/2).times the employee's regular rate of pay for all hours worked in excess of eight (8) hours iip to and including 12 hours in ariy workday, arid fof the first eight (8) hours worked on the seventh (7"') consecutive day of wOrk in a workweek; arid (b) Ppuble the ernplpyee's regular rale;pf pay for all hoiirs worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day pf wprk?in a workvyeek. In conjunction, these provisions Of the Labor Coide requifeierriprbyefs to pay rion-exempt emplpyees no I ess than their agreed-upPn or, statutorily hiandated wage;rates for all houi^s wbi-ked, including hours.spent working "oftrthe-clock"' (before punching in or after punching out on a tinie clock) Wheri tlie employer knows pr reasonably should know that ernployees are Working during those hours. Mdhllion v. Royal Packing Co., 22 Gai.4th.5755 585 (2000). Payment For All Hours Worked: As a result of beirig imprbperly misclassified as exempt;. Arana and the agpieved employees were not paid,for all hoUi-s worked: Overtime and Double Time As a,result of beirig improperly miscla'ssified as exempt, Arana and the aggrieved emplpyees were not paid overtime coiriperisatioh fbr all bveitiirie, hoiirs worked. Moreover, Afaiia and the aggrieved employees were npt paid^double time,;cpriipensation.for all double tirrie. worked. Afaria arid the aggrieved employees would wprk.ten or more hours each day and were not paid, bvertime:or double tirne corripensatibri. Regular Rate of Pay The regular rate of pay under Galifomia! law includes "all rernujieratipn,;fpr em^ .On behaTi;pf,.the emplPyeer O.L. 20^^^^^^ iriclude% but is not limited, to^ commiSsibns andrion-di'scfetioriarybbriuses. See. e:g.,. Himiington Memorial Hosp. v. Superior Cqur^t, 13j. Gal,,App.4th :893, 904^-65,(2005)! In relevant part,. Labor Code § 1198 states,, Theemployrnent of any ernployee,under.conditions of labor prohibited by the ,[Wage'Order];is rinlawfiil. At all relevant times. Health Net.violated the.above-refefericed Labbr'Cbde sectioris by failing to pay Arana and the aggrieved employees for all hpuris worked, .includirig,-,butjribt limited to, overtime hburs. While emplbyed' jby Health,Net; Arana^andiaggrieyed employees, received hourly wages and other remunefatiori, including, but nbtnecessarily limijted to, non-discretionary Labor and Workforce Deyelopment Agency/ Health Net, Inc. May9,2017Page lO of 18 bonuses and/or other apiplicable remuneration that mustbe included when calculating their regular rates of pay. However, Health Net corisisteritly failed to include all applicable forfns of remuneration including, but not limited to, non-discrefionary bonuses, when calculatirig their regular rates of pay. :Specifica}ly,, Araha received periodic bonuses for the completion of certain projects., These bonuses were paid .tp him by Health Net ,arid should have been included iri determining his regular rate:of pay. However, Health Net.has failed to include suchbcinus payments ih, deterrriiriirig his regular rate of pay when paying prerniurn wages for rn'issed m.eal andrest periods arid overtime coriipensatibri. Meal Periods As a result of its failures to proxdde meal periods jn accordarice: With Califorriia law and to accurately record the starting and stopping tirnes of all work periods, Companyfailed to' compensate Arana arid the aggrieved erriployees with all hourly and pyertirne .wage.S/fpr .time spent working during unpaid meal periods. Off-the-Clock During the applicable limitations period, Arana and the aggrieved employees.had to work.bff- the-clock because they were nOt paid forall hours worked including,,butriotlifnitedtb,. the company failingito pay them for time spent waiting to clock in during the regular co.urse of business. Specifically, Arana and the aggrieved employees were required fo bbOt up'theirWriipU b'eginning of each shift; log in with, tiieir credentials, wait.fpr the computer to'finish bbptin^ up, arid bVerituallly start the prbgram that would allow them tp;elpck-in.for,the day. Jhis prpces.s could take anywhere ifromfifteen(15) minutes to thifty.(30):rriiriutes daily .-;time which was not :paid by Health Net. 'In addition, Araria arid the aggrieved emplpyees were directed^^ inaccurately record all, hours worked. Specifically,.'Health Net directed its ernplpyees tp utilize a.rounding; ipra'etice that rourids time to theriexthour. Foi- example,, if an erilplbyee is scheduled tp work at;^ -9:QQ a:m. an.d :arriyes fo wbrk late at 9:1,0 a.m., ,that emplOyee..is..rei9uired"tP rburid;tirrie tb tlie. next;hour - whi.ch would be 10:00 a:m. even though that employee wpUld be working frbm 9,:-l 6 tavm. through-16:00 a.m; Accordingly, time spent working b-y Arana arid the.aggrieyei.eiriplbyees^wereriot accuriateiy recorded and tliey were not paid for all actual hours worked. Accordingly; Araria now^seeks civil perialties forthese Labbf-Godievviblations that Health Net has cornniitted.against'him ,and..aggrieyed ernployees as foliows:- Labor and Workforce Development Agency/ Health Net, Inc. May 9, 2017Page 11 of f8 1. For all initial violations of Labor Code § 204, $100.00 for each aggrieved employee per pay period for each violatiori (penalties set by Labor Code § 210); 2. : For all subsequent violations of Labor Code § 204, $200.00 for each aggrieved employee, plus 25% ofthe amountunlawfully withheld from each aggrieved ernployee, pei^ pay period for each violation (penialties set by Labor Code § 210); 3 . For all initial yiolations of Labor Code § "223 that are deemed to be neither willful nor intentional, Sl pO.pp for each aggrieved employ^^ per pay period for each violation (perialties set by Labor Code § 225.5); 4. For.all iriitial violatibris pf LabOr Code § 223 that are deiemed to be either willfiil Or intentipnai, f$2pp,.0p for each aggrieved.employee^ plus 25% of the amount unlawfiilly witlilield-from each aggrieved employee, per pay period for each violation (penalties set by Labor Code §:225.5);; 5. For ;all- subsequent yiolations; pf Labpr Code § 223, jegardless.of vyhether the initial yiplatibn of Labpr Gpde § 223 is deemed to be either wiflful or intentional, $200.00 for each, aggrieved employee, plus 25% of the amount unlawfully withheld frorri each .aggrieved eiriplbyee, per pay period for each violation (perialties set by Labor Code § ;225.5,); 6. Fprial| iriitialyiplations pfLabor Code § 5 fO, $50.00 fpr each aggrieved employee per pay period for each vibiafion (penalties set by Labor Code § 558(a)( l)-(2)); 7: For all subsequent viblations of Labor Code § 510^ $1 OO.pO for each aggrieved ,empioyee (per pay peripd fpr,each yiplatiop (penalties.set by Labor Code § 558(a)(;i)-(2));', 8: Forall ihitiai yiblatibris of Labor Code §§ 1194 ahd 1198, $l60;00 fbreach aggrieved .ernployee perpay period fbr each Viblation (perialties set by Labor Code § 2699(f)(2)); 9;^ iFpr .all'Subsequerit.violations^of Labor Code §§ l,194;and 1-198, $2p0:p0 for each aggrieved eriiployee perpay period for each violation (penalties set by Labor Cbde>§' 2699(f)(2));; TO^^For alliinitial . Violations of Labor Code § 1197 dieemed to be'inteiitional ,; $ lOp.OO for each aggrieved ieriiployee perjpay, period for each violation (perialties set by Labor Cbdie g; T19^.1.)i.and 1,1 .'For all'subse<]uent yiolations. of Labor Code § 1197; regardless of whether the initial violation is deemed to; be interitional, $250:00 for each aggrieved employee per pay period for each violatiori (perialties set by Labor Code 1197.T(a)(I )-(2)). Failure .to Pav Premium. Waiges at the Regular Ratte of Pay (Lab/Gode §§^23, 226.7,,512, a^^ Labor and Workforce Dievelopment Agency / Health Net, Inc. May 9, 2017Page 12 of 18 Labor Code §= 223 states,- Where.any,statute or contract requires an employer to maintain the designated wagei scale, it shall be unlawfiil to secretly pay a lowei' wajge while purporting to pay the wage;desigriated by statute, or by .contract. In.relevant part,!Labor Gode:§ .5'l2 states: An; employer •may,hbt ern'plpy an eiriployee'for a-Wbrk period of more than five hours per day without providirig the .einployee with a meal period of not less thari 30 iriiriutes, except tfiat if the tPtal work period per ;day of the employee is no more than six hours;, the.meal period may be waiyed by mutual cpnsent of bpth the employer and employee:-An ernployer may not; employ an employee for a work period of more thairi fO houfsbf Labbf Code Sectibri 223 that are deemed to be;neither willful nor:intentional, SiOQ.OG'^fbr ,eabh.aggrieved,emplb.yee;per'pay pe^ (penalties set by Labor Code Section 225.5); 2) For all iriitial viblatioris bf Labor Cocle.S.e^^^ 223 that are deemed to be either willfiiLof intentional, iS200.00 for each aggfieyedleiriployee, plus 25%:otthe"ampunf unlawfully withheld frorii each^aggrieved emplbyee, :per pay periodTbr'each violation (penalties set by Labor Code Section>225.5); '3). Fbf all subsequent? viblations Of Labor CbdeiSection 223i regardless;;bf whether the initial violation of Mbpr Gode'Siecfion 223 is deemed to be'either willfuTpr'iritentipnal, $200:00 fpr each aggrieved employee,;plus 25% pfithe anipuntunlawfully.withheld from each aggrieved ernployee, per pay peribd for each violatibri.(penalties>set:by" Labbr Code Sectiori 225.5); Labor and Workforce.Development Agericy / Health Net, Inc. May 9,2017Page 14 of 18 4) For all initial violations Of Labor Code Section 226.7, $ 100.00 for each aiggrieved employee per pay period for each violation (penalties set by Labor Code Section .2699(0(2)); 5) Fbr'all subsequent violations of Labor Code Secbon 226:7, $200:00 for each aggrieved employee per pay period for each violation (penalties set by Labor Code Section 2699(0(2)); 6) FOr:ail initial violations of Labor Code. Section 512^ $5P:0() for^each'aggrieved employee per pay period for each violation (penalties set by Labor iCpde Section 558(a)(l )-(2));, 7) Fbr ail subseqiieriti viblations of Laboi- Code Section 512, $100:00 foi" each aggrieved employee per pay'period, for each violation (penalties set^.by;Section 558(a)( 1 )-(2)); 8) ForfaU initial violations of Labor Code Sectipn 1198, $ 100.00 for each aggrieved employee per. pay period for each violation (penalties setby Labor Code Section 2699(0(2))j:arid =9) Fbr all subsequent violations of Labor Code Section 1198,,$200.00 for each aggrieved employee per payperiod for each violation (penalties set by Labor Code Sectibn. 2699(0(2)): FAILURE TO PROVIDE.ACCURATE WRITTEN WAGE STATEMENTS Labor Code § .226(a) requires an.employe provide andemployee, either semiiribrithly or at"the tirne of each wagepaytnenti with an accuratearid iteiriized .written'wage;sfatement tha shows:' 1,. Gross wages eamed; i. ,N,o,t paid for aU .OT hours and hpurs wprked , accordingly gross wages were not provided ii. All applicable rneal/rest ,break premiums not paid and sp^grpss wages earned riot accurate iii;. Time was rounded in unfair and unneutral manner therefore gross wages.npi accurate 2. TotaLhoursnyorked by the employee, exceptvfor any.erriplbyee whose cOfnpensatiori is solely baised on a salary arid whb is exempt from paymerit of bVertiririe'.urider subdivision (ia) of Section, 515 or:any:applicable order:of the Iridustriaf Welfare Commission; i:, Total hours worked failed tb reflect all Hourly and Overtime hours worked' ii., Time was rounded in unfair and unneutral nianrier-tW total hours worked not reflected Labor and Workforce Development Agericy / Health Net, Inc. May9,2017Page 15of 18 .3. The number of piece fate units eamed and any applicable piece fate if the employee is paiid;ori a piece-rate basis; 4. All deductions, provided that all deductions made on written orders of the eniplpyee rnay be.aggregated and shown as one item; 5. Net wages earned, i:, Nbt paid fpr all hourly and pyertime hours worked, accordingly riet, wages were iricoffect. it Time;was rounded in unfair and unneutral manner therefore net wages not acciifateiy reflected iii. .A;PpIicable:meal and rest break premiums not paid therefore.net wages.,npt accUraitely reflected 6. The inclusive dates^ofthe^period for which the emplbyee is paid, 7. The hafne of the employee and his or her social security number, except that by January 1, 2008, only tfie. last four digits of his or her social security nuniber or .an employeeJidentificatipn number other tlian a social security nurnberrii'aybe shown on the iterriized statement; 8. The namethe-:clbck'' wbrk.d^^ abpve, by,failing.tO pay.;efriplOyees'r^ fa'irt^^.Health'^Netvhas faileditb provide Arana arid the,aggfi'eved eriiployees with writfen:'wage; statements thatlcbmply with the requirements of Labor Cbde § ,226(a): The wage,staifements:of Araria'andjthe aggrieved employees'have not/accurately reflected theirapplicable ,rates pf pay^ hours worked, and tlieiampurits bf theirnet and gross wages. .Accbfdingly. Arana nOW seeks civil penalties for !Health Net;S:Viblations of Labor Code(§ 226(a) as follows:, " 1. Fbr-all; violatibnsibf LabbrCbde; §; 226(a actiorifiled,inaccbfdance.-with the pfbcediires set forth in Labbr Code § 26993 results in ari initial cita&^ .OrJits:e.quiyalentj $250.00 for each employee for each violation (Labor Code § 226.3); or Labor and Workforce Developmerit Agency / Health Net, Inc. May 9,2017Page 16 of 18 2. For all violations of Labor Code § 226(a) if a civil action filed in accordance With'tlVe, procedures set forth in Labpr Code § 2699,3 results in a subsequent citation or its equivalent, $l.OO0.0Q for each employee for each violation (Labor Code § 226.3). LATE OR INCOMPLETE FINAL WAGES FOLLOWING SEPARATION OF EMPLOYMENT Labor Code § 201, requires;an:employer to pay all earned and unpaid wages to a discharged employee iminediately at the time of discharge. Labor Code § 202 feqiiifes ari ernployer to pay'all earned and unpaid Wages tp'an emplbyee who quits after giving at;;least 72 hoiirs-notice all earned and. unpaid wages at the time of.quittirig. Labor Code § 202 requires an. employer to; pay all earned and unpaid'wages tb an employee who quits afterless thari 72-hours-notice all eafned arid unpaid wages withiri 72 hours of giving notice bfqUittirig. Labor Code §, 203 prpvides that an employee's wages shall coritiriue as a penalty from when.they first became due at the same'rate until,paid for up;to.30 days when an eriiployer 'willfiilly fails tb timely pay all carried arid .unpaid wages in accbrdahee with Labor Code section 20l or 202. By failing to timely.furnish;Ara_nC£uid aggrieved employees with any final paycheck and/orwith final,paychecks that include,all eamed and unpaid wages, inicluding, but notriecessarilylimited to, ail earned arid unpaid hourly, bYerti'rrie, and/br preriiium wages, Health Net has violated Labor code §§ 201 and 202. Accordiiigly;,Arana npwseekspiyil penalties fbrHealth Net's yiolations of LaborCode §§201, 202, and 203 as follows;. 1. For all initial Viblatibrisiof ;Labbr Code §§ 201, 202, and 203^ $1 OO.Op fpr each aggrieved, emplpyee per pay peribd,=for each violation (Labor Code § 2699(0(2)); and 2. For all subsequent viblatioris of Labof Code §§, 201,202,;and 203, $2()0.00 for each aggrieved ernployee per,;pay period for each yiolatipn (Labor Code § 2699(0(2));^ Under Galifomia Labpr'Code i§ 2'56;;the Labor Commissioriier shall impose a ciVil perialty in an .amount not exceeding30 days:' pay as Waitirigttime;urider the terrris of Section 203. Health Net willfully fai led. to timely fu'rriish' Afana arid aggri'eved iemplpyees with any final paycheck timely, arid/or Withfinal;paychebks that ihclude all eamed and unpaid; wages, including, but npt; riecessarily limited to, alii eairied and unpaid^houriy, overtime, and/Or premiuiri Wages; Health Net has violated Labor Codie §.§ 201 202,;and 203. Accbfdingly, the aggrieved eriiployees,seek to recover tiie wagesjaridcpehaltieslof Sectiori'256.;^0 aggrieved eriiployees. Cal. Lab. Codie §§ 2699; 2699:.3, iand 2699.5. Labor and Workforce Development Agericy / Health Net, Inc. May9, 2bl7Page 17of 18 Arana is an individual who was employed by Health Net in ah hourly positioh within the past year. At all relevant times. Health Net employed persons, conducted business in, and engaged in illegal labor and payroll practices and policies in .Galifomia. VIOLATIONS OF LABOR CODE S558 Afaria is an individual who was employed by Health Net in an hourly position,;during all relevant times. At all relevant times, HeaUh Net jointly employed.persons, conducted business in; and engaged-in illegal labor and payroll practices, and pohcies in Califoriiia. Under Califomia Labor Code § 558, any persori acting bri behalf of an eriiployer who violates or causes to be violated a provision of the Labor Code regulating hours apd days of work in any Order of the Industrial Welfare Commission shall be subject to civil penahies and be ordered to pay all unpaid wages; Health Net failed to prpvide the aggrieved employees.irieal arid/or rest breaks, minimum and overtime wages, and other Wage violations. Accordirigly, the ajggrieved- employees seekto recoVer the wages and penalties of Section 558 ori behalf bf herself and other aggrieved employees. Gal. Lab. Code §§ 2699, 2695.3, and 2699:5, VIOLATIONS OF LABOR CODE §1199 Labor Code § 1199 sfates: Every employer or other person acting either individually bf as ari pfficer,,agerit; or employee of another persori is guilty of a misdemeanor and is piiriishable by a fine of not less than one hundred dollars ($100) or by iriiprjsonrnent forribt'lessthan 30 days, or by both, who does any pf the-followirig: (a) Reqiiires or causes any eiriployee tb work for longer hours thari those fixed, or undef;cbnditibris of labor prohibited by ari Order of the commission.- (b) Pays of causes to be paid to any emplbyee; a wage less'than the iriiniirium;fixed by an order of the cbmmissiOri. i(c) Violates or refiises or neglects to comply with;any. prpyision of thi,s,,chapler or.any-qrd#,or ni^l ,of thetcpnimission: By'failing tb'tiiriely fufriisil Araha arid ag^ieved;ernplbyees with unpaid wages,:including;.buf riot.rieceissarily'limited to, all earned and unpaid hourly^ overtime, and yacatipn w,ages:and/or premium wages ait tlie regular rate of pay,;HealthtNet's criminial conduct has vipla^ted Labor qod.e§1199.; Labor and Workforce Development Agency / Health Net, Inc; May9,26i7Pagel8bf 18 1. For all jnitial.yiplatipns of Labor Code § 1199 can find an.employer liable for a misderneanor and is punishable by afirieof $100.00 or by imprisonment for nof less than 30;days of by bbth.(LaborCode§ 1199) VIOLATIONS OF LABOR CODE §256 Arana is ari iridividudl who was eriiplbyed by Health Net in an;hburiy positipriwithin the past year. At alLrelevant times, Health Net employed persons, conducted biisiriess iri, and engaged iri illegal labpr^and payroll,practices and policies;iri Callifomia. Under Califpmia Labor Code § 256, .tfie. Labor Commissioner shall impose a; civil penalty in an afriouritribtiexceedingiO diays' pay as waiting time under the terms of S.ectiori 203. Health Net willfuily failed, to timeLy fiimish Arana and aggrieyed emplpyees with anyifirial paycheick tirriely, arid/or with final paychecks that include all eamed and unpaid wages, including, but not inecessarily limited to, all earned and Unpaid hourly,pVertiriie, vacation, and/pr prerniurn wages- and/orvacatibri pay, Health Net has violated Labbr Code §§ 201,202, and; 203. Accprdingly, the aggrieved'erii^plpyees seek t recover the wages and penalties of Section 256 ori behalf of herself arid otheriaggrieved employees. Gal. Lab: Gpde:§§ 2699,2699:3, arid 2699.5. CONCLUSION Aisriotedabove, this letter constitutes:the required nptjce under the Labor Cbde PriVate- Attbrrieys General Act of 20p4;,Insofar as this letter is difiected toward HealthNet . please be; advised that Arana will seek both reasonable: attonieys' fees arid costs;urider Labor Code § 2699(g)(1) in a civil actiori should,the LWDA decline to pUrsue this matter: Siribefely, Shauri Setareh, Esq/ "'' EXHIBIT 2 9454 -WILSHIRE BLVD S E X A R H H BEVERLY HILLS, CA 90212 TEL: (310) 888-7771 LAW GROUP FAX: (3,0)88^1.09 WWW.SETAREHLAW.COM *SENT VIA ONLINE SUBiVliSSiON AND CERTIFIED MAIL* July 12, 2017 PAGA Administrator Califorriia Labor and Workforce Deyeloprnent Agency 1515 Clay Street, Suite 801 Oakland, Califomia 94612 Heahh Net of California, Inc. C:T Corporation System 818 West 7th Street. Suite 930 Los Angeles, California 90017 Re: Arana y. HNGA ofCalifoirnia, Ihc. To Whom .lt iVlay-Cbricefri: Pursuantto the Labor'Gode Pnvate Attomeys General Act bf 2004..Labor Code section 269.i8, et sc^;, Tomas R. Arana ("Ar£ma") prpvides not^ of himself and on behalf of all sifnilarly situated current arid.ffpriner employees in California ("aggrieved ernpioyees''),pf Health Net of California; Inc. (''I^NCA") alleged viblations of Labor Code sections 201, 202, 203, 204; 223, 226(a);;226.7, 510, 512, 558, 1194, 1197, i;i 97:;i ,, 1198, and 1199. . Aranaiis; an incii vidua! , who'was .employed^ hourly position as a Customer Service Representative frbm ap^fbximately. February 25, to approximately Noverhber 15,2015, when he was promotj^d to an Analyst, a salaried .exeriipt position, Araria and.the;,aggriev«l eniplbyees=were;nbt;paid at the proper fates set'by'the Divisibn?bf Labpr Standards Enfprceriierit. At all.relevant times, HNGA emp!pyed|^persOris; conducted arid engaged in illegal labor and payroirpractices and-po^^^ Galifomia: Arana and aggrieved elriployees;are "iemploye^^ iapplicable Wblfare Cpmrnission'Orde eriiployees" within the meariirig of Labor Cbde section' 2699(c): At all relieyanttimes, Arana arid aggrieved icrriployees have b;een,rion-exempteriiplbyees entitled to'^the.fiin prptectipns of both the Labof Code arid the Wage Order., As- set forth below, HNGA failed to comply with the Labor Code sections as described herein below. Accordingly, Araria now seeks civil penaihies for H N C A ' S alleged violations ofthe Labor Code. Labor and Workforce Development Agency / Health Net of Califomia. Inc. July 12, 2017 Page 2 of 17 Failure to Provide Meal Periods (Lab. Code §§ 204, 223, 226.7,512 and 1198) Labor Code section 204 provides that all wages (except as proyided fPr under Labor Code sections 201-202) earned by any person.in ariy emplOyrifierit becorne due and payable t'wice during each calendar month, on days designated in advarice by the,employer as the regular paydays, except that wages earned for labor in excess of fhe normal work; period shall be paid no, later thari the payday for the next regular payroll period.. Labor Code section 223 states: Wliere any statute or contract requires an ernployer to maintaiiri the desigiiated wage scale„it shall be unlawfiil to secretly pay a loWer wage while puipbrting to pay the wage designated by statute or by contract. In relevant part, Section 2 of the'Wage Order.states: "Hours workied" means the time during which an.employee is subject to the control of an employer, and iricludes all the time the employee is suffered or perrnitted tp work, whether or not required to do so. In relevant part. Labor Gbde, section 1198;states: The employment of any employee . under coriditipris of labor prohibited bythe. [Wage.Order] is unlawfiiL, In relevant part; Labor Code sectibn 512 states; Aricemployer may not ernploy an eiriplbyeie fbr a .wofk,peripd\of:^ hburs per day without; prpyidirig fhe ernployee widi a meallperiod of^^^^ less-than 30 minutes, except that if the total wprHiperiod per day Of theieriiplpyee is np mprerthari six hoiirs, tlie rrieal period inay be waiyed by mutual corisent bf both the ernployer and; em ployee. An ehiplbyer inay-hot em^^ emplpyee fpr a work-period of more than. lOhours per'day .witlibiit pfbvidirigtheemployee witli a .second meal period of not less t.han^304minutes, exceptthat ifthe total, hburs' worked is no more than 12 hours, tiie.second rneaLperipd rnay be waiyeid by :mutual consent of the employer arid tiie emplbyeepnly ifthefirsferneal.period, was ?ribt waivecl. In: relevant part,..Section f l of the Wage.Order states: Meal Periods: (A) No employer .shal I employ aiiy person fpr a work peribd of mpre than sfive (5) hours without .a ineaLperiod of not less; than 30 miriutes, except that when a work period ofriotriiorethan six (6) hpurst:wi}l complete the day's work the meal peripd may be .waived by miitual consent of the employer Labor and Workforce Development Agency/Health Net of Califomia, Inc. July 12, 2017 Page 3 of 17 and the eiriplbyee. Unless the employee is relieved of all duty during a 3.0 minute meal period, the meal period shall be considered an "bn duty" meal period and counted as time worked. An "on duty"riiealperiod shall be perrnitted,only when the nature of the work prevents an employee from being relieved of all duty and when 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 erriplbyer fails to provide an employee a meal-period in accordance with the applicable provisions of this order, the eriiployer shall pay the employee one; (1.) hour of pay at the employee's regular fate of cbriipensation ;for each workday that the meal period is not provided. Irijaddition, LaborCode sectiori 226.7 states; (a) No employer shall require any employee to work during any meal or rest peribd mandated by an applicable order of the Industrial -Welfare Comfnissibri. (b) If an employer fails to provide an employee a meal peribd.or rest period in accordance with.ari applicable order of the Industrial Welfare Gbinririission, the employer shall pay the employee one additional hour of pay af the employee's regular rate of coriiipensation for each work day that; the meal or rest period isriotproyided. HNCA's: writteri policies failed tp adyiseArana arid the aggrieved employees bf their-le^^^ :tb take meal-periods in,accordance witli Califorriia law. iSpeicificaHy, HN.CA did riot pfovide its rionrexempt employees with an uriintermpted rneal period of at least thirty (30);miriiites ancJ did not'prOvide its non-exempt employees with an opportunity to tiake ari :uninfemipfed meal peribd of^at;least thirty ,(;30)sdue ,to the excessive Worklbad.imposed on Araria arid tEe'aggrieved' employees. .Furthefmore,.,as a result:ofbeing;iriisclassified as .exempt, Araria and the aggrieved^ernployees. wereriotIpfbvidiedall offheir:rneal breaks to which they were entitled. Mbrebver, HNGA failed to. keep.accurate.record.bf all hours worked,,iricluding meal periods. Further; rAraria/andfthe aggrieved employees were riot told to clock in or oiit for meal peribdsyiripr were thfey told to keep tracklbf whether pr nof they took ariiealperibd. Due to the workload and pressure to get their work.done,.Afaria,and the.;aggrieved employees were: frequently fecjjuii-ed'tb Work thro,ugh':their meaLperiods. Due; to this policy and/or practiicei Afaria and the aggrieved ieriiplbyees were foiitinely denjed uninterrupted, duty-free meal periods of at least,thirty (30)riiinuteswhile eriipibyed by HNGA. .In addition, wlien Arana and the aggrieved .eriiplOyees were not timely provided with a rneal peripd, Hl)ieA failed, to pay them legally required premiiim wages. "These failiifes result, in part, ffbrri pblicies,and;pra.ctices:that lack adequate safeguards to ensure that employees are relieved of all duty fbfriiealperiods and. are paid additional wages wheri meal periods are not provided. Labor and Workforce Development Agency / Health Net of Califomia, Inc. July 12,2017 Page 4 of 17 Arana and the iaggrieved empioyees were not subject to valid on-duty meal period agreements with HNGA. California law fequifes thatriiealperiod waivers be documented.in a written agreement that is voluntarily signed by both the employee and employer. The written agreement riiust state that the employee may, in writing, revoke the agreement at any time. 8 Cal. Code Regs. § i 1046(11). Arana and the aggrieyed employees did not execute lawful meal, period wajvers in:accordance with Califoriiia law. Accordingly; Arana now seeksvci vii penalities for these Labor Code viblations that HNGA has cornmitted ajgairist him and aggrieved employees as follows: 1. Fpr all initial violatibris of Labor Code section 204, $100.00 for each aggrieved erifiplpyee, per pay period for eadh viblation (penalties set by Labor Code § 210); 2. For iali subsequent violations of Labor Code §' 204, $200.00 for each aggrieved einployee, plus 25% bf.the ainburit unlawfiilly withheld from each aggrieved emplpyiee, per pay peripd for each violatiori (penalties;set by Labor Code § 210). 3. For all initial violations pf Labor Code § 223 that are deemed to be neither willfijl nor interitional, $100.00 for each aggrieved ernployee per pay period for each violatiori (penalties set by Labor Code § 225.5); 4. For all initial, violations of LaborCodei§ 223 that afe deemed tO;be either willful or intentional,.$200.p0 for each aggrieved ernployee, plus 25% ofthe ariiburit unlawfully withheldifrbiri each aggrieved emplpyee, per pay period for each violation (perialties set' by Labor Code § 225.5); 5. For all subsequent yiolations pf Labor C^^ § 223, regafdless of whether the initial Viblatibn of Labor Code §-223 is deemed to be either willful or intentional, $200:00 for each aggnevedf^empilbyee.'pius 25% bf the, amount unlawfiilly withheld ffoiriieach aggrieved employee, per pay period for each violatibn (penalties set'by. Labor Gode §. 225:5); 6. For ail iriitial yiplatiohs of Labor Code §§ 226.7 and 1198, $ 100:00 foreiaeh aggrieved employeeiper pay period for eadh violation (perialties set by Labor Code §:2699i(0(2)); 7. For all subsequent yiplatipns of Labor Code §§ 226.7 and 1198,.$2pp.p0 for each aggrieved employee per pay period for each violation (perialties set ijy Latior Code § i699(f)(m 8. For^all initial violations of.Labor (Cbde,§ 512, $50.00ifbr each aggrieved employeeiper pay peripd for each viplatipn ( Labor Code .§ 558(a)(l )-;(2)); and 9. Fori^ll ;Subseqtieht;viOlatibri"s of Labor Code § 512;;$ 100.00 for eachiaggrieVed employee per pay period for each violiatiori.(Labor Code § 558(a)(l )-(2)). Failure to Provide Rest Periods (Lab. Code §§ 204, 223, 226.7, and 1198) Labor and Workforce Development Agency / Health Net of Califomia, Inc. July 12,2017 Page 5 of 17 Labor Code § 204 provides that all wages (except as provided for under Labor Code §§ 201- 202) eamed by any persori in any employment'become due and payable twice.during each calendar month, on days designated in advance by the employer as the regular paydays, except that wages earned for labor in excess of the nonrial work period shall be paid no later than the payday fof the next regular payroll period- Labor Code § 223 states. Where any statute or contract requires an emplbyer tp maintain the designated wage scale, it shall be unlawfiil.tp secretly pay a Ibvviep wage while purporting to pay the wage designated by statute or by contract. In relevant part^ Section 2 pf the Wage Order states, "Hours: worked" means'thetime duririg which an eriiplbyee is subject to the control bf ari eriiplbyer,-'and 'includes;alf the time, the.employee is suffered or permitted.to work, wlietheror not required to do so. Iri relevant part; Labor Code § 1198 states. The employment bf any employee .. . under cpriditionspf labor prohibited by the [Wage Order] is unlawfiil. Sectibn 12 ofthe Wage.Order provides,; in relevant part: Rest Periods: (A) Every emplpyer shall: authorize and permit all-eriiployees to take rest periods, whichnnspfar as;practicable shiall be in .theriiiddleof each work period, the authorized,rest peripd ^Um^ shall be based bn.the tbtal hours worked daily at.the;rate;ofteri,(:l:0).minutes;net rest tiine.per four (4) hours orniajor ffacfion therebf However, a rest peribd need npt be iauthori'zed for eriiployeesiwhose total daily worlc;tinie is less thian three,and one-half (3 1/2) hours. Authorized rest period time shall be cbiirited as hoiirs worked fof which tliefie shall, be-no deductiori from,vvages. (B) ' If ari employer fails to provide an employee;a rest peribd in accordance with; the .applicabl§;proyisions pf this Order, the employer shall pay the eriiployee;bri^:(;T) hour of payiat the;emplb regular fatie bf compensation for each wbrk :day;thaf tho rest p.eribd.,is;not provided. In addition, Labof Code § 226:7 states: (a) No employer shall reqiiire.ariy^eiriployee to