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1 BLUMENTHAL, NORDREHAUG & BHOWMIK LLP
Norman Blumenthal (SBN 068687)
2 nomi@bamlawca.com
2255 Calle Clara
MED/ENOORSEI
3 LaJolla,CA 92037
Tel: 858.551.1223 DEC 2 1 2017
•4 Fax: 858.551.1232
5
By:
Attomeys for Plaintiff Deputy Cler*
ANDREA SPEARS
6
SETAREH LAW GROUP
7 Shaun Setareh (SBN 204514)
shaun(^setarehlaw.com
8 H. Scott Leviant (SBN 200834)
scott@setarehlaw.com
9 9454 Wilshire Boulevard, Suite 907
Beverly Hills, Califomia 90212
10 Telephone (310) 888-7771
Facsimile (310) 888-0109
11
Attomeys for Plaintiff,
12 TOMAS R. ARANA
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SACRAMENTO
15 UNLIMITED JURISDICTION
16 ANDREA SPEARS, an individual, on behalf Consol. No. 34-2017-00210560-CU-OE-GDS
of herself and on behalf of all persons
17 similarly situated. Assigned For All Purposes to the Honorable
Alan G. Perkins, Department 35
18 Plaintiff,
Amended As a Matter of Right Pursuant to
19
v. Labor Code Section 2699.3(a)(2)(C)
20 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1 through
CLASS ACTION LBi 0 FA'^
5Y Wlr^^Ih.
21 50, inclusive. CONSOLIDATED COMPLAINT FOR:
22 Defendants. 1. Failure to Provide Meal Periods (Lab. Code
§§ 204,223,226.7, 512, and 1198);
..23' 2. Failure to Provide Rest Periods (Lab. Code
TOMAS R. ARANA, on behalf of himself, all §§204,223,226.7, and 1198);
24 others similarly situated. 3. Failure to Pay Hourly Wages (Lab. Code
§§223,510, 1194, 1194.2, 1197, 1997.1,
25 Plaintiff, and 1198);
4. Failure to Provide Accurate Written Wage
26
vs. Statements (Lab. Code § 226(a));
5. Failure to Timely Pay All Final Wages
27 HEALTH NET OF CALIFORNL\, INC., a (Lab. Code §§ 201-203);
Califomia corporation; and DOES 1 through 6. Unfair Competition (Bus. & Prof. Code §§
28 50, inclusive, \7200, et seq.);
1. Civ. Penalties (Lab. Code §§ 2698, etseq.)
Defendant.^. JURY TRIAL DEMANDED
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 Plaintiffs, Andrea Spears and Tomas R. Arana (referred to as "Plaintiffs"), on behalf of
2 themselves, all others similarly situated, and the general public, complain and allege as follows:
3 INTRODUCTION
4 1. Plaintiffs brings this class and representative action against defendant Health Net
5 of Califomia, Inc., a Califomia corporation (referred to as "Health Net") and Does 1 through 50,
e inclusive (collectively referred to as "Defendants") for alleged violations of the Labor Code and
7 Business and Professions Code. As set forth below. Plaintiffs allege that Defendants failed to
8 provide them and all other similarly situated individuals with meal periods, failed to provide
9 them with rest periods, failed to pay premium wages for missed meal and/or rest periods, failed
10 to pay them for all hours worked, failed to pay overtime wages at the correct rate, failed to pay
11 double time wages at the correct rate, failed to provide them with accurate written wage
12 statements, and failed to timely pay them all of their final wages following separation of
13 employment. Plaintiff Arana also alleges that Defendants misclassified him and all similarly
14 situated individuals as exempt employees when they were, in fact, non-exempt employees who
15 were entitled to meal and rest periods and overtime compensation. Based on these alleged
16 violations. Plaintiffs now bring this class and representative action to recover unpaid wages,
17 restitution, and related relief on behalf of themselves, all others similarly , situated, and the
18 general public.
19 JURISDICTION AND VENUE
20 2. This Court has subject matter jurisdiction to hear this case because Plaintiffs are
21 informed and believe, and based thereon allege, that the monetary damages and restitution sought
22 herein for Defendants' conduct exceeds the minimal jurisdictional limits of the Superior Court.
23 3. Venue is proper in Sacramento County pursuant to Code of Civil Procedure
24 sections 395(a) and 395.5 in that liability arose in Sacramento County because at least some of the
25 transactions that are the subject matter of this Complaint occurred therein and/or each defendant is
26 found, maintains offices, transacts business, and/or has an agent therein.
27 ///
28 ///
1
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 PARTIES
2 5. Defendant Health Net of Califomia, Inc. is a Califomia corporation authorized to
3 do business in Califomia.
4 6. Plaintiffs are ignorant of the tme names, capacities, relationships, and extent of
5 participation in the conduct alleged herein, ofthe defendants sued as Does 1 through 50,
6 inclusive, but are informed and believe that said defendants are legally responsible for the
7 conduct alleged herein and therefore sues these defendants by suchfictitiousnames. Plaintiffs
8 will amend this complaint to allege both the tme names and capacities ofthe Doe defendants
9 when ascertained.
10 7. Plaintiffs are informed and believe that each defendant acted in all respects
11 pertinent to this action as the agent of the other defendants, carried out a joint scheme, business
12 plan or policy in all respects pertinent hereto, and that the acts of each defendant are legally
13 attributable to each ofthe other defendants.
14 CLASS ALLEGATIONS
15 8. This action has been brought and may be maintained as a class action pursuant to
16 Code of Civil Procedure section 382 because there is a well-defined community of interest
17 among the persons who comprise the readily ascertainable classes defined below and because
18 Plaintiffs are unaware of any difficulties likely to be encountered in managing this case as a
19 class action.
20 9. Action: The Action is defined as the suit filed on April 5,2017 with the
21 Sacramento County Superior Court, Case No. 34-2017-00210560, on behalf of Plaintiffs, all
22 others similarly situated against Health Net, Inc.
23 10. Relevant Time Period: The relevant time period is defined as the time period
24 beginning four years prior to the filing of the Action until judgment is entered.
25 11. The class and sub-class members are defined as follows:
26 Non-Exempt Class: All persons employed by Health Net of Califomia, Inc. and
Health Net, Inc. and/or any staffing agencies and/or any other third parties in
27 hourly or non-exempt positions in Califomia during the Relevant Time Period.
28 Non-Exempt Meal Period Sub-Class: All Non-Exempt Class members
who worked a shift in excess offivehours during the Relevant Time
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1
Period.
2 Non-Exempt Rest Period Sub-Class: All Non-Exempt Class members
who worked a shift of at least three and one-half (3.5) hours during the
3 Relevant Time Period.
4 Non-Exempt Wage Statement Penalties Sub-Glass: All Non-Exempt
Class members employed by Defendants in Califomia during the period
5 beginning one year before the filing of the Action and ending when final
judgment is entered.
6
Non-Exempt Waiting Time Penalties Sub-Class: All Non-Exempt
7 Class members who separated from their employment with Defendants
during the period beginning three years before the filing of the Action and
8 ending when final judgment is entered.
9 Exempt Class: All persons employed by Health Net of Califomia, Inc. and
Health Net, Inc. and/or any staffing agencies and/or any other third parties in
10 Califomia as a Business Analyst, Systems Analyst, Contact Center Analyst or
Analyst during the Relevant Time Period.
11
Exempt Meal Period Sub-Class: All Exempt Class members who
12 worked a shift in excess offivehours during the Relevant Time Period.
13 Exempt Rest Period Sub-Class: All Exempt Class members who
worked a shift of at least three and one-half (3.5) hours during the
14 Relevant Time Period.
15 Exeinpt Wage Statement Penalties Sub-Class: All Exempt Class
members employed by Defendants in Califomia during the period
16 beginning one year before the filing of the Action and ending when final
judgment is entered.
17
Exempt Waiting Time Penalties Sub-Class: All Exempt Class members
18 who separatedfromtheir employment with Defendants (luring the period
beginnmg three years before the filing of the Action and ending when final
19. judgment is entered.
20 Rounding Class: All persons employed by Health Net of Califomia, Inc. and
Health Net, Inc. and/or any staffing agencies.and/or any other third parties in
21 Califomia whose hours worked were affected by Defendants' rounding practices
during the Relevant Time Period.
22
UCL Class: All Non-Exempt Class, Exempt Class and Rounding Class members
23 employed by Defendants in Califomia during the Relevant Time Period.
24 12. Reservation of Rights: Pursuant to Rule of Court 3.765(b), Plaintiffs reserve the
25 right to amend or modify the class definitions with greater specificity, by further division into
26 sub-classes, and/or by limitation to particular issues.
27 13. Numerositv: The class members are so numerous that the individual joinder of
28 each individual class member is impractical. While Plaintiffs do not currently know the exact
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 number of class members, Plaintiffs are informed and believe that the actual number exceeds
2 the minimum required for numerosity under Califomia law.
3 14. Commonality and Predominance: Common questions of law and fact exist as to
4 all class members and predominate over any questions which affect only individual class
5 members. These common questions include, but are not limited to:
6 A. Whether Defendants maintained a policy or practice of failing to provide
7 employees with their meal periods;
8 B. Whether Defendants maintained a policy or practice of failing to provide
9 employees with their rest periods;
10 C. Whether Defendants failed to pay premium wages to class members
11 when they have not been provided with required meal and/or rest periods;
12 D. Whether Defendants failed to pay minimum and/or overtime wages to
13 class members as a result of policies that fail to provide meal periods in
14 accordance with Califomia law;
15 E. Whether Defendants used payroll formulas that systematically fail to
16 account for non-discretionary bonuses and/or other applicable
17 remuneration when calculating regular rates of pay for class members;
18 F. Whether Defendants failed to pay overtime wages to class members as a
19 result of incorrectly calculating their regular rates of pay;
20 G. Whether Defendants have failed to pay premium wages to class members
21 based on their respective "regular rates of compensation" by not
22 including commissions and/or income in calculating the rates at which
23 those wages are paid;
24 H. Whether Defendants failed to provide class members with accurate
25 written wage statements as a result of providing them with written wage
26 statements with inaccurate entries for, among other things, amounts of
27 gross and net wages, and total hours worked;
28 I. Whether Defendants applied policies or practices that result in late and/or
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 incompletefinalwage payments;
2 J. Whether Defendants are liable to class members for waiting time
3 penalties under Labor Code section 203;
4 K. Whether class members are entitled to restitution of money or property
5 that Defendants may have acquiredfromthem through unfair
6 competition.
7 15. Typicality: Plaintiffs' claims are typical ofthe other class members' claims.
8 Plaintiffs are informed and believe and thereon allege that Defendants have a policy or practice
9 of failing to comply with the Labor Code and the Business and Professions Code as alleged
10 herein.
11 16. Adequacy of Class Representative: Plaintiffs are adequate class
12 representatives in that they have no interests that are adverse to, or otherwise conflict with, the
13 interests of absent class members and is dedicated to vigorously prosecuting this action oh their
14 behalf. Plaintiffs will fairly and adequately represent and protect the interests of the other class
15 members.
16 17. Adequacy of Class Counsel: Plaintiffs' counsel are adequate class counsel in
17 that they have no known conflicts of interest with Plaintiffs or absent class members, are
18 experienced in wage and hour class action litigation, and are dedicated to vigorously
19 prosecuting this action on behalf of Plaintiffs and absent class members.
20 18. Superiority: A class action is vastly superior to other available means for fair
21 and efficient adjudication of the class members' claims and would be beneficial to the parties
22 and the Court. Class action treatment will allow a number of similarly situated persons to
23 simultaneously and efficiently prosecute their common claims in a single forum without the
24 unnecessary duplication of effort and expense that numerous individual actions would entail. In
25 addition, the monetary amounts due to many individual class members are likely to be relatively
26 small and would thus make it difficult, if not impossible, for individual class members to both
27 seek and obtain relief. Moreover, a class action will serve an important public interest by
28 permitting class members to effectively pursue the recovery of moneys owed to them. Further,
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 a class action will prevent the potential for inconsistent or contradictory judgments inherent in
2 individual litigation.
3 GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
4 19. Plaintiff Arana was hired by Defendants on or about Febmary 25, 2008 as a
5 hourly, non-exempt employee who worked at a call center in Califomia.
6 20. On or about November 16, 2015, Plaintiff Arana was promoted to a salary,
7 exempt position.
8 21. Plaintiff Spears was hired by Defendants in December of 2013 and worked for
9 Defendants up to October of 2016 as an hourly, non-exempt employee in Califomia.
10 Clock In Process
11 22. Plaintiffs and putative class were trained to clock in for each work shift using the
12 desktop computer assigned to them. Plaintiffs and the putative class were required tofirsttum
13 on their computer and wait for it to load. It generally took approximately five to ten minutes for
14 it to boot up to the Windows log in prompt.
15 23. After Plaintiffs and the putative class entered their usemame and password, their
16 computer would proceed to load to the desktop while other programs were started in the
17 background automatically as part of the normal boot up process. It generally took another five
18 to ten minutes for it to complete the entire boot up cycle.
19 24. Occasionally, Plaintiffs and the putative class would encounter login errors or
20 computer crashes that would require them to restart the entire boot up process. The entire time
21 spent booting up the computer would not be accurately recorded and therefore resulted in
22 Plaintiffs and the putative class not being paid for all hours worked while waiting for the
23 computer the boot up.
24 25. After the computer successfully booted up. Plaintiffs and the putative class
25 would be required to log in to other programs such as CareMark, CSI and Marks.
26 26. After logging into the above-referenced programs. Plaintiffs and the putative
27 class would finally log in to a program called "Convergence" which is the program that is used
28 by all the call center employees for making and receiving customer service calls. It is only upon
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 logging into Convergence will an employee be recognized as being "clocked in" by Defendants,
2 which is the time recognized as the actual start time for each workday and when Plaintiffs and
3 the putative class would begin to be paid by Defendants.
4 27. Accordingly, by the time Plaintiffs and the putative class logged into
5 Convergence,fifteento thirty minutes or more may have already passed - all of which were not
6 properly recorded as time worked and which resulted in Plaintiffs and the putative class not
7 being paid for all hours worked by Defendants.
8 Clock Out Process
9 28. Sirnilarly, upon clocking out for each work shift. Plaintiffs and the putative class
10 were required to shutdown their computers by following a sequence of steps. First, they were
11 required to log out of Convergence. Upon logging out of Convergence, each employee was
12 deemed to be "clocked out," which is the time recognized as the actual end time for each
13 workday and when Plaintiffs and the putative class would stop being paid by Defendants.
14 29. After logging out of Convergence, Plaintiffs and the putative class would then
15 log out of the other programs they had open during their work shift. After all the programs
16 were shutdown, they would then shut down the computer.
17 30. Accordingly, after Plaintiffs and the putative class logged out of Convergence,
18 they were required to spend approximatelyfiveto ten minutes to shut down other programs and
19 the computer - all of which were not properly recorded as time worked and which resulted in
20 Plaintiffs and the putative class not being paid for all hours worked by Defendants.
21 Misclassification as Exempt Employee
22 31. Plaintiff Arana and the putative Exempt Class were also misclassified as exempt
23 employees when in fact they were non-exempt. Plaintiff Arana and the putative Exempt Class
24 regularly worked more than eight hours each workday, and more than forty hours each
25 workweek. Plaintiff Arana and the putative Exempt Class were paid afixedsalary regardless of
26 the hours they worked and were not paid any overtime compensation.
27 32. Plaintiff Arana and the putative Exempt Class did not perform duties, more than
28 fifty percent (50%) of the time, that would qualify them as exempt employees under the
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 Professional, Executive or Administrative exemptions. Accordingly, Plaintiff Arana and the
2 putative Exempt Class were entitled to all the protections afforded to them as non-exempt
3 employees under Califomia law.
4 33. As a result of being misclassified as an exempt employee, the time spent by
5 Plaintiff Arana and the putative Exempt Class were not accurately recorded by the timekeeping
6 system utilized by Defendants and therefore resulted in the failure to pay Plaintiff Arana and the
7 putative Exempt Class for all hours actually worked and overtime compensation.
8 Improper Rounding Practices
9 34. Moreover, beginning January 1,2017, Defendants began to utilize a rounding
10 practice that required Plaintiffs and the putative class to round their start times to the next hour.
11 For example, if an employee was scheduled to work at 9:00 a.m., that employee had a six
12 minute grace period to clock in for their shift by that time. If this employee attempts to clock in
13 after the expiration of the grace period, the employee's start time would be rounded to the next
14 hour which would be 10:00 a.m. even though the employee commenced work at 9:10 a.m.
15 35. Plaintiffs are informed and believe, and thereupon allege, that Defendants have
16 not, did not, and do not keep records of actual hours worked by Plaintiffs and the putative class.
17 In the absence of records showing actual hours worked. Plaintiffs and the putative class are
18 unable to ascertain whether (1) Defendants' rounding practices comply with Califomia law; (2)
19 whether Defendants' rounding practices resulted over a period of time, in failure to compensate
20 Plaintiffs and the putative class properly for all the time they actually worked; and (3) whether
21 Plaintiffs and the putative class were properly paid for all hours worked.
22 Missed Meal Periods
23 36. Plaintiffs and the putative class members were not provided with meal periods of
24 at least thirty (30) minutes for eachfive(5) hour work period due to (1) Defendants' policy of
25 not scheduling each meal period as part of each work shift; (2) chronically understaffing each
26 work shift with not enough workers; (3) imposing so much work on each employee such that it
27 made it unlikely that an employee would be able to take their breaks if they wanted to finish
28 their work on time; and (4) no formal written meal and rest period policy that encouraged
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 employees to take their meal and rest periods.
2 37. As a result of Defendants' policy. Plaintiffs and the putative class were regularly
3 not provided with unintermpted meal periods of at least thirty (30) minutes for eachfive(5)
4 hours worked due to complying with Defendants' productivity requirements that required
5 Plaintiffs and the putative class to work through their meal periods in order to complete their
6 assignments on time.
7 Missed Rest Periods
8 38. Plaintiffs and the putative class members were not provided with rest periods of
9 at least ten (10) minutes for each four (4) hour work period, or majorfractionthereof, due to (1)
10 Defendants' policy of not scheduling each est period as part of each work shift; (2) chronically
1-1 understaffing each work shift with not enough workers; (3) imposing so much work on each
12 employee such that it made it unlikely that an employee would be able to take their breaks if
13 they wanted tofinishtheir work on time; and (4) no formal written meal and rest period policy
14 that encouraged employees to take their meal and rest periods.
15 39. As a result of Defendants' policy. Plaintiffs and the putative class were regularly
16 not provided with unintermpted rest periods of at least ten (10) minutes for each four (4) hours
17 worked due to complying with Defendants' productivity requirements that required Plaintiffs
18 and the putative class to work through their rest periods in order to complete their assignments
19 on time.
20 Regular Rate of Pay
21 40. The regular rate of pay under Califomia law includes all remuneration for
22 employment paid to, on behalf of, the employee. This requirement includes, but is not limited,
23 to, commissions and non-discretionary bonuses.
24 41. During the applicable limitations period. Defendants violated therightsof
25 Plaintiffs and the putative class under the above-referenced Labor Code sections by failing to
26 pay them overtime wages for all overtime hours worked in violation of Labor Code §§510,
27 1194, and 1198 as a result of not correctly calculating their regular rate of pay to include all
28 applicable remuneration, including, but not limited to, non-discretionary bonuses and/or shift
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 differential pay.
2 FIRST CAUSE OF ACTION
3 FAILURE TO PROVIDE MEAL PERIODS
4 (Lab. Code §§ 204,223,226.7,512 and 1198)
5 (Plaintiffs, Non-Exempt Meal Break Sub-Class, Exempt Meal Break Sub-Class)
6 42. Plaintiffs incorporate the preceding paragraphs of the Complaint as if fully
7 alleged herein. Specifically, Plaintiffs incorporate paragraphs 11 and 12 ofthe Complaint as if
8 fully alleged herein.
9 43. At all relevant times. Plaintiffs and the Non-Exempt Meal Break Sub-Class and
10 Exempt Meal Break Sub-Class members have been non-exempt employees of Defendants
11 entitled to the full meal period protections of both the Labor Code and the Industrial Welfare j
12 Commission Wage Order 5-2001 ("Wage Order").
13 44. Labor Code section 512 and section 11 ofthe applicable Wage Order impose an
14 affirmative obligation on employers to provide non-exempt employees with unintermpted, duty-
15 free, meal periods of at least thirty minutes for each work period offivehours, and to provide
16 them with two unintermpted, duty-free, meal periods of at least thirty minutes for each work
17 period of ten hours..
18 45. Labor Code section 226.7 and section 11 ofthe the applicable Wage Order both
-19 prohibit employers from requiring employees to work during required meal periods and require
20 employers to pay non-exempt employees an hour of premium wages on each workday that the
21 employee is not provided with the required meal period.
22 46. Compensation for missed meal periods constitutes wages within the meaning of
23 the Labor Code section 200.
24 47. Labor Code section 1198 makes it unlawful to employ a person under conditions
25 that violate the Wage Order.
26 48. Section 11 ofthe applicable Wage Order states:
27 "No employer shall employ any person for a work period of more than five (5) hours
without a meal period of not less than 30 mninutes, except that when a work period of ^
28 not more than six (6) hours will complete the day's work the meal period may be waived
by mutual consent ofthe employer and employee. Unless the employee is relieved of iall
10
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 duty during a 30 minute meal period, the meal period shall be considered an "on duty"
meal period and counted as time worked. An "on duty" meal period shall be permitted
2 only when the nature of the work prevents an employeefrombeing relieved of all duty
and when by written agreement between the parties an on-the-job paid meal period is
3 agreed to. The written agreement shall state that the employee may, in writing, revoke
the agreement at any time." 8 Cal. Code Regs. § 11040(11).
4
5 49. At all relevant times, Plaintiffs were not subject to a valid on-duty meal period
6 agreement. Plaintiffs are informed and believe that, at all relevant times, Non-Exempt Meal
7 Break Sub-Class and Exempt Meal Break Sub-Class members were not subject to valid on-duty
8 meal period agreements with Defendants.
9 50. Plaintiffs allege that, at relevant times during the applicable limitations period.
10 Defendants maintained a policy or practice of not providing Plaintiffs and members of the Non-
11 Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Class with unintermpted meal
12 periods of at least thirty (30) minutes for eachfive(5) hour work period, as required by Labor
13 Code section 512 and the applicable Wage Order.
14 51. Plaintiffs allege that at all relevant times during the applicable limitations period
15 and as matters of policy and practice, Defendants have failed to pay premium wages to Non-
16 Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Class members when they worked
17 five (5) hours without clocking out for any meal period.
18 52. Plaintiffs allege that at all relevant times during the applicable limitations period
19 and as matters of policy and practice. Defendants employed Non-Exempt Meal Break Sub-Class
20 and Exempt Meal Break Sub-Class members for shifts of ten (10) or more hours without
21 providing them with second meal periods and without paying them premium wages, as required
22 by Labor Code section 512 and the applicable Wage Order.
23 53. Moreover, Defendants written policies do not provide that employees must take
24 theirfirstmeal break before the end of thefifthhour of work, that they are entitled to a second
25 meal break if they work a shift of over ten (10) hours, or that the second meal period must
26 commence before the end ofthe tenth hour of work, unless waived.
27 54. At all relevant times. Defendants failed to pay Plaintiffs and Non-Exempt Meal
28 Break Sub-Class and Exempt Meal Break Sub-Class members additional premium wages,
11
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 and/or were not paid premium wages at the employees' regular rates of pay when required meal
2 periods were not provided.
3 55. Pursuant to Labor Code sections 204,218.6 and 226.7, Plaintiffs, on behalf of
4 themselves and the Non-Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Class
5 members, seek to recover unpaid premium wages, interest thereon, and costs of suit.
6 56. Pursuant to Labor Code section 1194, Code of Civil Procedure section 1021.5,
7 the substantial benefit doctrine, and/or the common fiind doctrine. Plaintiffs, on behalf of
8 themselves and the Meal Break Sub-Class members, seek to recover reasonable attomeys' fees.
9 SECOND CAUSE OF ACTION
10 FAILURE TO PROVIDE REST PERIODS
11 (Lab. Code §§ 204,223,226.7 and 1198)
12 (Plaintiffs, Non-Exempt Rest Break Sub-Class and Exempt Rest Break Sub-Class)
13 57. Plaintiffs incorporate the preceding paragraphs of the Complaint as if fully
14 alleged herein. Specifically, Plaintiffs incorporate paragraphs 13 and 14 of the Complaint as if
15 fiilly alleged herein.
16 58. At all relevant times. Plaintiffs and Non-Exempt Rest Break Sub-Class and
17 Exempt Rest Break Sub-Class members have been non-exempt employees of Defendants
18 entitled to the full rest period protections of both the Labor Code and the applicable Wage
19 Order.
20 59. Section 12 of the applicable Wage Order imposes an affirmative obligation on
21 employers to permit and authorize employees to take required rest periods at a rate of ho less
22 than ten minutes of net rest time for each four hour work period, or major portion thereof, that
23 must be in the middle of each work period insofar as is practicable.
24 60. Labor Code section 226.7 and section 12 of the applicable Wage Order both
25 prohibit employers from requiring employees to work during required rest periods and require
26 employers to pay non-exempt employees an hour of premium wages at the employees regular
27 rate of pay, on each workday that the employee is not provided with the required rest period(s).
28 61. Compensation for missed rest periods constitutes wages within the meaning of
12
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 the Labor Code section 200.
2 62. Labor Code section 1198 makes it unlawful to employ a person under conditions
3 that violate the Wage Order.
4 63. Plaintiffs allege that at relevant times during the applicable limitations period.
' 5 Defendants maintained a policy or practice of not providing members ofthe Non-Exempt Rest
6 Break Sub-Class and Exempt Rest Break Sub-Class members with net rest periods of a least ten
7 (10) minutes for each four (4) hour work period, or major portion thereof, as required by the
8 Wage Order.
9 64. At all relevant times. Defendants failed to pay Plaintiffs and other Non-Exempt
10 Rest Break Sub-Class and Exempt Rest Break Sub-Class members additional premium wages
11 when required rest periods were not provided.
12 65. Specifically, Defendants written policies do not provide that employees may take
13 a rest break for each four hours worked, or majorfractionthereof, and that rest breaks should be
14 taken in the middle of each work period insofar as practicable.
15 66. Plaintiffs and the Non-Exempt Rest Break Sub-Class and Exempt Rest Break
16 Sub-Class members were not provided with rest periods of at least ten (10) minutes for each
17 four (4) hour work period, pr majorfractionthereof, due to (1) Defendants' policy of not
18 scheduling each est period as part of each work shift; (2) chronically understaffing each work
19 shift with not enough workers; (3) imposing so much work on each employee such that it made
20 it unlikely that an employee would be able to take their breaks if they wanted tofinishtheir
21 work on time; and (4) no formal written meal and rest period policy that encouraged employees
22 to take their meal and rest periods.
23 67. As a result of Defendants' policy. Plaintiffs and the Non-Exempt Rest Break
24 Sub-Class and Exempt Rest Break Sub-Class were regularly not provided with unintermpted
25 rest periods of at least ten (10) minutes for each four (4) hours worked due to complying with
26 Defendants' productivity requirements that required Plaintiffs and Non-Exempt Rest Break
27 Sub-Class and Exempt Rest Break Sub-Class to work through their rest periods in order to
28 complete their assignments on time.
13
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 68. Pursuant to Labor Code sections 204,218.6 and 226.7, Plaintiffs, on behalf of
2 themselves and Non-Exempt Rest Break Sub-Class and Exempt Rest Break Sub-Class
3 members, seek to recover unpaid premium wages, interest thereon, and costs of suit.
4 69. Pursuant to Labor Code section 1194, Code of Civil Procedure section 1021.5,
5 the substantial benefit doctrine, and/or the common fund doctrine, Plaintiffs, on behalf of
6 themselves and Non-Exempt Rest Break Sub-Class and Exempt Rest Break Sub-Class
7 members, seek to recover reasonable attomeys' fees.
8 TfflRD CAUSE OF ACTION
9 FAILURE TO PAY HOURLY AND OVERTIME WAGES
10 (Lab. Code §§ 223, 510,1194,1197 and 1198)
11 (By Plaintiffs, Non-Exempt Class, Exempt Class and Rounding Class)
12 70. Plaintiffs incorporate the preceding paragraphs of the Complaint as if fully
13 alleged herein.
14 71. At all relevant times. Plaintiffs and Non-Exempt Class, Exempt Class and
15 Rounding Class members are or have been non-exempt employees of Defendants entitled to the
16 full protections of the Labor Code and the applicable Wage Orders.
17 72. Section 2 of the applicable Wage Order defines "hours worked" as "the time
18 during which an employee is subject to the control of an employer, and includes all the time the
19 employee is suffered or permitted to work, whether or not required to do so."
20 73. Section 4 of the applicable Wage Order requires an employer to pay non-exempt
21 employees at least the minimum wage set forth therein for all hours worked, which consist of all
22 hours that an employer has actual or constmctive knowledge that employees are working.
23 74. Labor Code section 1194 invalidates any agreement between an employer and an
24 employee to work for less than the minimum or overtime wage required under the applicable
25 Wage Orders.
26 75. Labor Code section 1194.2 entitles non-exempt employees to recover liquidated
27 damages in amounts equal to the amounts of unpaid minimum wages and interest thereon in
28 addition to the underlying unpaid mmimum wages and interest thereon.
14
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 76. Labor Code section 1197 makes it unlawful for an employer to pay an employee
2 less than the minimum wage required under the applicable Wage Orders for all hours worked
3 during a payroll period.
4 77. Labor Code section 1197.1 provides that it is unlawful for any employer or any
5 other person acting either individually or as an officer, agent, or employee of another person, to
6 pay an employee, or cause an employee to be paid, less than the applicable minimum wage.
7 78. Labor Code section 1198 makes it imlawful for employers to employ employees
8 under conditions that violate the Wage Order.
9 79. Labor Code section 204 requires employers to pay non-exempt employees their
10 earned wages for the normal work period at least twice during each calendar month on days the
11 employer designates in advance and to pay non-exempt employees their eamed wages for labor
12 performed in excess of the normal work period by no later than the next regular payday.
13 80. Labor Code section 223 makes it unlawfiil for employers to pay their employees
14 lower wages than required by contract or statute while purporting to pay them legal wages.
15 81. Labor Code section 510 and section 3 of the applicable Wage Order require
16 employers to pay non-exempt employees overtime wages of no less than one and one-half times
17 their respective regular rates of pay for all hours worked in excess of eight hours in one
18 workday, all hours worked in excess of forty hours in one workweek, and/or for thefirsteight
19 hours worked on the seventh consecutive day of one workweek.
20 82. Labor Code section 510 and section 3 of the applicable Wage Order also require
21 employers to pay non-exempt employees overtime wages of no less than two times their
22 respective regular rates of pay for all hours worked in excess of twelve hours in one workday
23 and for all hours worked in excess of eight hours on a seventh consecutive workday during a
24 workweek.
25 83. Plaintiffs are informed and believe that, at all relevant times, Defendants have
26 applied centrally devised policies and practices to them and Non-Exempt Class, Exempt Class
27 and Rounding Class members with respect to working conditions and compensation
28 arrangements.
15
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 84. At all relevant times, Defendants failed to pay hourly wages to Plaintiffs for all
2 time worked, including, but not limited to, overtime work, at statutory and/or agreed rates by
3 suffering or permitting them to work during unpaid meal periods, and/or by failing to properly
4 pay Plaintiffs and Non-Exempt Class, Exempt Class and Rounding Class members all overtime
5 hours worked.
6 85. Plaintiffs are informed and believe that, at all relevant times and as matters of
7 policy and/or practice. Defendants have failed also to pay hourly wages to Non-Exempt Class,
8 Exempt Class and Rounding Class members for all time worked, including, but not limited to,
9 overtime work, at statutory and/or agreed rates by suffering or permitting them to work during
10 unpaid meal periods.
11 86. At all relevant times. Plaintiffs and Non-Exempt Class, Exempt Class and
12 Rounding Class members have been non-exempt employees of Defendants and entitled to the
13 fiill protections of both the Labor Code and the Wage Order.
14 87. Labor Code § 512 and Section 11 of the Wage Order impose an
15 affirmative obligation on employers to provide non-exempt employees with unintermpted, duty-
16 free, meal periods of at least thirty minutes for each work period offiveor more hours, and to
17 provide them with two unintermpted, duty-free, meal periods of at least thirty minutes for each
18 work period of more than ten hours.
19 88. Labor Code § 226.7 and Section 11 ofthe Wage Order prohibit an
20 employerfromrequiring its employees to work during required meal periods and also require
21 employers to pay non-exempt employees an additional hour of premium wages at the
22 employee's regular rate of compensation on each workday that the employee is not provided
23 with a meal period.
24 89. Section 12 ofthe Wage Order imposes an affirmative obligation on
25 employers to permit and authorize employees to take required rest periods at a rate of no less
26 than ten minutes of net rest time for each four hour work period, or major portion thereof, that
27 must be in the middle of each work period insofar as is practicable.
28 90. Labor Code § 226.7 and Section 12 of the Wage Order prohibit an
16
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 employer from requiring its employees to work during required rest periods and also require
2 employers to pay non-exempt employees an additional hour of premium wages at the
3 employee's regular rate of compensation on each workday that the employee is not provided
4 with a rest period.
5 91. Califomia law uses the terms "compensation" and "pay" interchangeably
6 and requires that all applicable remuneration, including, but not limited to, commissions and
7 non-discretionary bonuses, be included when calculating an employee's regular rate of pay.
8 92. At all relevant times. Defendants paid Plaintiffs premium wages based on
9 a rate of compensation that did not reflect, among other things, non-discretionary bonuses
10 and/or shift differential pay as required by Labor Code § 226.7(b) and Sections 11 and 12 of the
11 Wage Order on the occasions when Defendants paid them premium wages in lieu of meal
12 and/or rest periods.
13 93. Plaintiffs are informed and believe and thereon allege that, at all relevant
14 times. Defendants have maintained a policy and practice of paying Non-Exempt Class, Exempt
15 Class and Rounding Class members premium wages based on rates of compensation that have
16 not reflected non-discretionary bonuses and/or shift differential pay as required by Labor Code
17 § 226.7(b) and Sections 11 and 12 of the Wage Order on the occasions when Defendants paid
18 them premium wages in lieu of meal and/or rest periods.
19 94. Pursuant to Labor Code § 1194, Code of Civil Procedure § 1021.5, the
20 substantial benefit doctrine, and/or the common fund doctrine. Plaintiffs, on behalf of
21 themselves and Non-Exempt Class, Exempt Class and Rounding Class members, seek to
22 recover reasonable attomeys' fees.
23 FOURTH CAUSE OF ACTION
24 FAILURE TO PROVIDE ACCURATE WRITTEN WAGE STATEMENTS
25 (Lab. Code § 226)
26 (By Plaintiffs, Non-Exempt Wage Statement Penalties Sub-Class, Exempt Wage Statement
27 Penalties Sub-Class and Rounding Class)
28 95. Plaintiffs incorporate the preceding paragraphs of the Complaint as if fully
17
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1. alleged herein.
2 96. Labor Code § 226(a) states in pertinent part the following:
3 "(a) every employer shall, semimonthly or at the time of each payment of wages, furnish
each of his or her employees, either as a detachable part of the check, draft, or voucher
4 paying the employee's wages, or separately when wages are paid by personal check or
cash, an accurate itemized statement in writing showing (1) gross wages eamed, (2) total
5 hours worked by the employer, except for an employee whose compensation is solely
based on a salary and who is exemptfrompayment of overtime under subdivision (a) of
6 section 515 or any applicable order of the Industrial Welfare Commission, (3) the
number of piece-rate units eamed and any applicable piece rate if the employee is aid on
7 a piece-rate basis, (4) all deductions, provided that all deductions made on written orders
of the employee may be aggregated and shown as one time, (5) net wages eamed, (6) the
8 inclusive dates of the period for which the employee is paid, (7) the name ofthe
employee and only the last four digits of his or her social security number or an
9 employee identification number omer than a social security number, (8) the name and
address of the legal entity that is the employer and, ifthe employer."
10
11 97. Plaintiffs are informed and believe that, at all relevant times. Defendants have
12 failed to provide Non-Exempt Wage Statement Penalties Sub-C
Preview
1 BLUMENTHAL, NORDREHAUG & BHOWMIK LLP Norman Blumenthal (SBN 068687) 2 nomi@bamlawca.com 2255 Calle Clara MED/ENOORSEI 3 LaJolla,CA 92037 Tel: 858.551.1223 DEC 2 1 2017 •4 Fax: 858.551.1232 5 By: Attomeys for Plaintiff Deputy Cler* ANDREA SPEARS 6 SETAREH LAW GROUP 7 Shaun Setareh (SBN 204514) shaun(^setarehlaw.com 8 H. Scott Leviant (SBN 200834) scott@setarehlaw.com 9 9454 Wilshire Boulevard, Suite 907 Beverly Hills, Califomia 90212 10 Telephone (310) 888-7771 Facsimile (310) 888-0109 11 Attomeys for Plaintiff, 12 TOMAS R. ARANA 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SACRAMENTO 15 UNLIMITED JURISDICTION 16 ANDREA SPEARS, an individual, on behalf Consol. No. 34-2017-00210560-CU-OE-GDS of herself and on behalf of all persons 17 similarly situated. Assigned For All Purposes to the Honorable Alan G. Perkins, Department 35 18 Plaintiff, Amended As a Matter of Right Pursuant to 19 v. Labor Code Section 2699.3(a)(2)(C) 20 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1 through CLASS ACTION LBi 0 FA'^ 5Y Wlr^^Ih. 21 50, inclusive. CONSOLIDATED COMPLAINT FOR: 22 Defendants. 1. Failure to Provide Meal Periods (Lab. Code §§ 204,223,226.7, 512, and 1198); ..23' 2. Failure to Provide Rest Periods (Lab. Code TOMAS R. ARANA, on behalf of himself, all §§204,223,226.7, and 1198); 24 others similarly situated. 3. Failure to Pay Hourly Wages (Lab. Code §§223,510, 1194, 1194.2, 1197, 1997.1, 25 Plaintiff, and 1198); 4. Failure to Provide Accurate Written Wage 26 vs. Statements (Lab. Code § 226(a)); 5. Failure to Timely Pay All Final Wages 27 HEALTH NET OF CALIFORNL\, INC., a (Lab. Code §§ 201-203); Califomia corporation; and DOES 1 through 6. Unfair Competition (Bus. & Prof. Code §§ 28 50, inclusive, \7200, et seq.); 1. Civ. Penalties (Lab. Code §§ 2698, etseq.) Defendant.^. JURY TRIAL DEMANDED Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 Plaintiffs, Andrea Spears and Tomas R. Arana (referred to as "Plaintiffs"), on behalf of 2 themselves, all others similarly situated, and the general public, complain and allege as follows: 3 INTRODUCTION 4 1. Plaintiffs brings this class and representative action against defendant Health Net 5 of Califomia, Inc., a Califomia corporation (referred to as "Health Net") and Does 1 through 50, e inclusive (collectively referred to as "Defendants") for alleged violations of the Labor Code and 7 Business and Professions Code. As set forth below. Plaintiffs allege that Defendants failed to 8 provide them and all other similarly situated individuals with meal periods, failed to provide 9 them with rest periods, failed to pay premium wages for missed meal and/or rest periods, failed 10 to pay them for all hours worked, failed to pay overtime wages at the correct rate, failed to pay 11 double time wages at the correct rate, failed to provide them with accurate written wage 12 statements, and failed to timely pay them all of their final wages following separation of 13 employment. Plaintiff Arana also alleges that Defendants misclassified him and all similarly 14 situated individuals as exempt employees when they were, in fact, non-exempt employees who 15 were entitled to meal and rest periods and overtime compensation. Based on these alleged 16 violations. Plaintiffs now bring this class and representative action to recover unpaid wages, 17 restitution, and related relief on behalf of themselves, all others similarly , situated, and the 18 general public. 19 JURISDICTION AND VENUE 20 2. This Court has subject matter jurisdiction to hear this case because Plaintiffs are 21 informed and believe, and based thereon allege, that the monetary damages and restitution sought 22 herein for Defendants' conduct exceeds the minimal jurisdictional limits of the Superior Court. 23 3. Venue is proper in Sacramento County pursuant to Code of Civil Procedure 24 sections 395(a) and 395.5 in that liability arose in Sacramento County because at least some of the 25 transactions that are the subject matter of this Complaint occurred therein and/or each defendant is 26 found, maintains offices, transacts business, and/or has an agent therein. 27 /// 28 /// 1 Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 PARTIES 2 5. Defendant Health Net of Califomia, Inc. is a Califomia corporation authorized to 3 do business in Califomia. 4 6. Plaintiffs are ignorant of the tme names, capacities, relationships, and extent of 5 participation in the conduct alleged herein, ofthe defendants sued as Does 1 through 50, 6 inclusive, but are informed and believe that said defendants are legally responsible for the 7 conduct alleged herein and therefore sues these defendants by suchfictitiousnames. Plaintiffs 8 will amend this complaint to allege both the tme names and capacities ofthe Doe defendants 9 when ascertained. 10 7. Plaintiffs are informed and believe that each defendant acted in all respects 11 pertinent to this action as the agent of the other defendants, carried out a joint scheme, business 12 plan or policy in all respects pertinent hereto, and that the acts of each defendant are legally 13 attributable to each ofthe other defendants. 14 CLASS ALLEGATIONS 15 8. This action has been brought and may be maintained as a class action pursuant to 16 Code of Civil Procedure section 382 because there is a well-defined community of interest 17 among the persons who comprise the readily ascertainable classes defined below and because 18 Plaintiffs are unaware of any difficulties likely to be encountered in managing this case as a 19 class action. 20 9. Action: The Action is defined as the suit filed on April 5,2017 with the 21 Sacramento County Superior Court, Case No. 34-2017-00210560, on behalf of Plaintiffs, all 22 others similarly situated against Health Net, Inc. 23 10. Relevant Time Period: The relevant time period is defined as the time period 24 beginning four years prior to the filing of the Action until judgment is entered. 25 11. The class and sub-class members are defined as follows: 26 Non-Exempt Class: All persons employed by Health Net of Califomia, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in 27 hourly or non-exempt positions in Califomia during the Relevant Time Period. 28 Non-Exempt Meal Period Sub-Class: All Non-Exempt Class members who worked a shift in excess offivehours during the Relevant Time Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 Period. 2 Non-Exempt Rest Period Sub-Class: All Non-Exempt Class members who worked a shift of at least three and one-half (3.5) hours during the 3 Relevant Time Period. 4 Non-Exempt Wage Statement Penalties Sub-Glass: All Non-Exempt Class members employed by Defendants in Califomia during the period 5 beginning one year before the filing of the Action and ending when final judgment is entered. 6 Non-Exempt Waiting Time Penalties Sub-Class: All Non-Exempt 7 Class members who separated from their employment with Defendants during the period beginning three years before the filing of the Action and 8 ending when final judgment is entered. 9 Exempt Class: All persons employed by Health Net of Califomia, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in 10 Califomia as a Business Analyst, Systems Analyst, Contact Center Analyst or Analyst during the Relevant Time Period. 11 Exempt Meal Period Sub-Class: All Exempt Class members who 12 worked a shift in excess offivehours during the Relevant Time Period. 13 Exempt Rest Period Sub-Class: All Exempt Class members who worked a shift of at least three and one-half (3.5) hours during the 14 Relevant Time Period. 15 Exeinpt Wage Statement Penalties Sub-Class: All Exempt Class members employed by Defendants in Califomia during the period 16 beginning one year before the filing of the Action and ending when final judgment is entered. 17 Exempt Waiting Time Penalties Sub-Class: All Exempt Class members 18 who separatedfromtheir employment with Defendants (luring the period beginnmg three years before the filing of the Action and ending when final 19. judgment is entered. 20 Rounding Class: All persons employed by Health Net of Califomia, Inc. and Health Net, Inc. and/or any staffing agencies.and/or any other third parties in 21 Califomia whose hours worked were affected by Defendants' rounding practices during the Relevant Time Period. 22 UCL Class: All Non-Exempt Class, Exempt Class and Rounding Class members 23 employed by Defendants in Califomia during the Relevant Time Period. 24 12. Reservation of Rights: Pursuant to Rule of Court 3.765(b), Plaintiffs reserve the 25 right to amend or modify the class definitions with greater specificity, by further division into 26 sub-classes, and/or by limitation to particular issues. 27 13. Numerositv: The class members are so numerous that the individual joinder of 28 each individual class member is impractical. While Plaintiffs do not currently know the exact Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 number of class members, Plaintiffs are informed and believe that the actual number exceeds 2 the minimum required for numerosity under Califomia law. 3 14. Commonality and Predominance: Common questions of law and fact exist as to 4 all class members and predominate over any questions which affect only individual class 5 members. These common questions include, but are not limited to: 6 A. Whether Defendants maintained a policy or practice of failing to provide 7 employees with their meal periods; 8 B. Whether Defendants maintained a policy or practice of failing to provide 9 employees with their rest periods; 10 C. Whether Defendants failed to pay premium wages to class members 11 when they have not been provided with required meal and/or rest periods; 12 D. Whether Defendants failed to pay minimum and/or overtime wages to 13 class members as a result of policies that fail to provide meal periods in 14 accordance with Califomia law; 15 E. Whether Defendants used payroll formulas that systematically fail to 16 account for non-discretionary bonuses and/or other applicable 17 remuneration when calculating regular rates of pay for class members; 18 F. Whether Defendants failed to pay overtime wages to class members as a 19 result of incorrectly calculating their regular rates of pay; 20 G. Whether Defendants have failed to pay premium wages to class members 21 based on their respective "regular rates of compensation" by not 22 including commissions and/or income in calculating the rates at which 23 those wages are paid; 24 H. Whether Defendants failed to provide class members with accurate 25 written wage statements as a result of providing them with written wage 26 statements with inaccurate entries for, among other things, amounts of 27 gross and net wages, and total hours worked; 28 I. Whether Defendants applied policies or practices that result in late and/or Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 incompletefinalwage payments; 2 J. Whether Defendants are liable to class members for waiting time 3 penalties under Labor Code section 203; 4 K. Whether class members are entitled to restitution of money or property 5 that Defendants may have acquiredfromthem through unfair 6 competition. 7 15. Typicality: Plaintiffs' claims are typical ofthe other class members' claims. 8 Plaintiffs are informed and believe and thereon allege that Defendants have a policy or practice 9 of failing to comply with the Labor Code and the Business and Professions Code as alleged 10 herein. 11 16. Adequacy of Class Representative: Plaintiffs are adequate class 12 representatives in that they have no interests that are adverse to, or otherwise conflict with, the 13 interests of absent class members and is dedicated to vigorously prosecuting this action oh their 14 behalf. Plaintiffs will fairly and adequately represent and protect the interests of the other class 15 members. 16 17. Adequacy of Class Counsel: Plaintiffs' counsel are adequate class counsel in 17 that they have no known conflicts of interest with Plaintiffs or absent class members, are 18 experienced in wage and hour class action litigation, and are dedicated to vigorously 19 prosecuting this action on behalf of Plaintiffs and absent class members. 20 18. Superiority: A class action is vastly superior to other available means for fair 21 and efficient adjudication of the class members' claims and would be beneficial to the parties 22 and the Court. Class action treatment will allow a number of similarly situated persons to 23 simultaneously and efficiently prosecute their common claims in a single forum without the 24 unnecessary duplication of effort and expense that numerous individual actions would entail. In 25 addition, the monetary amounts due to many individual class members are likely to be relatively 26 small and would thus make it difficult, if not impossible, for individual class members to both 27 seek and obtain relief. Moreover, a class action will serve an important public interest by 28 permitting class members to effectively pursue the recovery of moneys owed to them. Further, Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 a class action will prevent the potential for inconsistent or contradictory judgments inherent in 2 individual litigation. 3 GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 4 19. Plaintiff Arana was hired by Defendants on or about Febmary 25, 2008 as a 5 hourly, non-exempt employee who worked at a call center in Califomia. 6 20. On or about November 16, 2015, Plaintiff Arana was promoted to a salary, 7 exempt position. 8 21. Plaintiff Spears was hired by Defendants in December of 2013 and worked for 9 Defendants up to October of 2016 as an hourly, non-exempt employee in Califomia. 10 Clock In Process 11 22. Plaintiffs and putative class were trained to clock in for each work shift using the 12 desktop computer assigned to them. Plaintiffs and the putative class were required tofirsttum 13 on their computer and wait for it to load. It generally took approximately five to ten minutes for 14 it to boot up to the Windows log in prompt. 15 23. After Plaintiffs and the putative class entered their usemame and password, their 16 computer would proceed to load to the desktop while other programs were started in the 17 background automatically as part of the normal boot up process. It generally took another five 18 to ten minutes for it to complete the entire boot up cycle. 19 24. Occasionally, Plaintiffs and the putative class would encounter login errors or 20 computer crashes that would require them to restart the entire boot up process. The entire time 21 spent booting up the computer would not be accurately recorded and therefore resulted in 22 Plaintiffs and the putative class not being paid for all hours worked while waiting for the 23 computer the boot up. 24 25. After the computer successfully booted up. Plaintiffs and the putative class 25 would be required to log in to other programs such as CareMark, CSI and Marks. 26 26. After logging into the above-referenced programs. Plaintiffs and the putative 27 class would finally log in to a program called "Convergence" which is the program that is used 28 by all the call center employees for making and receiving customer service calls. It is only upon Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 logging into Convergence will an employee be recognized as being "clocked in" by Defendants, 2 which is the time recognized as the actual start time for each workday and when Plaintiffs and 3 the putative class would begin to be paid by Defendants. 4 27. Accordingly, by the time Plaintiffs and the putative class logged into 5 Convergence,fifteento thirty minutes or more may have already passed - all of which were not 6 properly recorded as time worked and which resulted in Plaintiffs and the putative class not 7 being paid for all hours worked by Defendants. 8 Clock Out Process 9 28. Sirnilarly, upon clocking out for each work shift. Plaintiffs and the putative class 10 were required to shutdown their computers by following a sequence of steps. First, they were 11 required to log out of Convergence. Upon logging out of Convergence, each employee was 12 deemed to be "clocked out," which is the time recognized as the actual end time for each 13 workday and when Plaintiffs and the putative class would stop being paid by Defendants. 14 29. After logging out of Convergence, Plaintiffs and the putative class would then 15 log out of the other programs they had open during their work shift. After all the programs 16 were shutdown, they would then shut down the computer. 17 30. Accordingly, after Plaintiffs and the putative class logged out of Convergence, 18 they were required to spend approximatelyfiveto ten minutes to shut down other programs and 19 the computer - all of which were not properly recorded as time worked and which resulted in 20 Plaintiffs and the putative class not being paid for all hours worked by Defendants. 21 Misclassification as Exempt Employee 22 31. Plaintiff Arana and the putative Exempt Class were also misclassified as exempt 23 employees when in fact they were non-exempt. Plaintiff Arana and the putative Exempt Class 24 regularly worked more than eight hours each workday, and more than forty hours each 25 workweek. Plaintiff Arana and the putative Exempt Class were paid afixedsalary regardless of 26 the hours they worked and were not paid any overtime compensation. 27 32. Plaintiff Arana and the putative Exempt Class did not perform duties, more than 28 fifty percent (50%) of the time, that would qualify them as exempt employees under the Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 Professional, Executive or Administrative exemptions. Accordingly, Plaintiff Arana and the 2 putative Exempt Class were entitled to all the protections afforded to them as non-exempt 3 employees under Califomia law. 4 33. As a result of being misclassified as an exempt employee, the time spent by 5 Plaintiff Arana and the putative Exempt Class were not accurately recorded by the timekeeping 6 system utilized by Defendants and therefore resulted in the failure to pay Plaintiff Arana and the 7 putative Exempt Class for all hours actually worked and overtime compensation. 8 Improper Rounding Practices 9 34. Moreover, beginning January 1,2017, Defendants began to utilize a rounding 10 practice that required Plaintiffs and the putative class to round their start times to the next hour. 11 For example, if an employee was scheduled to work at 9:00 a.m., that employee had a six 12 minute grace period to clock in for their shift by that time. If this employee attempts to clock in 13 after the expiration of the grace period, the employee's start time would be rounded to the next 14 hour which would be 10:00 a.m. even though the employee commenced work at 9:10 a.m. 15 35. Plaintiffs are informed and believe, and thereupon allege, that Defendants have 16 not, did not, and do not keep records of actual hours worked by Plaintiffs and the putative class. 17 In the absence of records showing actual hours worked. Plaintiffs and the putative class are 18 unable to ascertain whether (1) Defendants' rounding practices comply with Califomia law; (2) 19 whether Defendants' rounding practices resulted over a period of time, in failure to compensate 20 Plaintiffs and the putative class properly for all the time they actually worked; and (3) whether 21 Plaintiffs and the putative class were properly paid for all hours worked. 22 Missed Meal Periods 23 36. Plaintiffs and the putative class members were not provided with meal periods of 24 at least thirty (30) minutes for eachfive(5) hour work period due to (1) Defendants' policy of 25 not scheduling each meal period as part of each work shift; (2) chronically understaffing each 26 work shift with not enough workers; (3) imposing so much work on each employee such that it 27 made it unlikely that an employee would be able to take their breaks if they wanted to finish 28 their work on time; and (4) no formal written meal and rest period policy that encouraged Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 employees to take their meal and rest periods. 2 37. As a result of Defendants' policy. Plaintiffs and the putative class were regularly 3 not provided with unintermpted meal periods of at least thirty (30) minutes for eachfive(5) 4 hours worked due to complying with Defendants' productivity requirements that required 5 Plaintiffs and the putative class to work through their meal periods in order to complete their 6 assignments on time. 7 Missed Rest Periods 8 38. Plaintiffs and the putative class members were not provided with rest periods of 9 at least ten (10) minutes for each four (4) hour work period, or majorfractionthereof, due to (1) 10 Defendants' policy of not scheduling each est period as part of each work shift; (2) chronically 1-1 understaffing each work shift with not enough workers; (3) imposing so much work on each 12 employee such that it made it unlikely that an employee would be able to take their breaks if 13 they wanted tofinishtheir work on time; and (4) no formal written meal and rest period policy 14 that encouraged employees to take their meal and rest periods. 15 39. As a result of Defendants' policy. Plaintiffs and the putative class were regularly 16 not provided with unintermpted rest periods of at least ten (10) minutes for each four (4) hours 17 worked due to complying with Defendants' productivity requirements that required Plaintiffs 18 and the putative class to work through their rest periods in order to complete their assignments 19 on time. 20 Regular Rate of Pay 21 40. The regular rate of pay under Califomia law includes all remuneration for 22 employment paid to, on behalf of, the employee. This requirement includes, but is not limited, 23 to, commissions and non-discretionary bonuses. 24 41. During the applicable limitations period. Defendants violated therightsof 25 Plaintiffs and the putative class under the above-referenced Labor Code sections by failing to 26 pay them overtime wages for all overtime hours worked in violation of Labor Code §§510, 27 1194, and 1198 as a result of not correctly calculating their regular rate of pay to include all 28 applicable remuneration, including, but not limited to, non-discretionary bonuses and/or shift Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 differential pay. 2 FIRST CAUSE OF ACTION 3 FAILURE TO PROVIDE MEAL PERIODS 4 (Lab. Code §§ 204,223,226.7,512 and 1198) 5 (Plaintiffs, Non-Exempt Meal Break Sub-Class, Exempt Meal Break Sub-Class) 6 42. Plaintiffs incorporate the preceding paragraphs of the Complaint as if fully 7 alleged herein. Specifically, Plaintiffs incorporate paragraphs 11 and 12 ofthe Complaint as if 8 fully alleged herein. 9 43. At all relevant times. Plaintiffs and the Non-Exempt Meal Break Sub-Class and 10 Exempt Meal Break Sub-Class members have been non-exempt employees of Defendants 11 entitled to the full meal period protections of both the Labor Code and the Industrial Welfare j 12 Commission Wage Order 5-2001 ("Wage Order"). 13 44. Labor Code section 512 and section 11 ofthe applicable Wage Order impose an 14 affirmative obligation on employers to provide non-exempt employees with unintermpted, duty- 15 free, meal periods of at least thirty minutes for each work period offivehours, and to provide 16 them with two unintermpted, duty-free, meal periods of at least thirty minutes for each work 17 period of ten hours.. 18 45. Labor Code section 226.7 and section 11 ofthe the applicable Wage Order both -19 prohibit employers from requiring employees to work during required meal periods and require 20 employers to pay non-exempt employees an hour of premium wages on each workday that the 21 employee is not provided with the required meal period. 22 46. Compensation for missed meal periods constitutes wages within the meaning of 23 the Labor Code section 200. 24 47. Labor Code section 1198 makes it unlawful to employ a person under conditions 25 that violate the Wage Order. 26 48. Section 11 ofthe applicable Wage Order states: 27 "No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 mninutes, except that when a work period of ^ 28 not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent ofthe employer and employee. Unless the employee is relieved of iall 10 Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted 2 only when the nature of the work prevents an employeefrombeing relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is 3 agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time." 8 Cal. Code Regs. § 11040(11). 4 5 49. At all relevant times, Plaintiffs were not subject to a valid on-duty meal period 6 agreement. Plaintiffs are informed and believe that, at all relevant times, Non-Exempt Meal 7 Break Sub-Class and Exempt Meal Break Sub-Class members were not subject to valid on-duty 8 meal period agreements with Defendants. 9 50. Plaintiffs allege that, at relevant times during the applicable limitations period. 10 Defendants maintained a policy or practice of not providing Plaintiffs and members of the Non- 11 Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Class with unintermpted meal 12 periods of at least thirty (30) minutes for eachfive(5) hour work period, as required by Labor 13 Code section 512 and the applicable Wage Order. 14 51. Plaintiffs allege that at all relevant times during the applicable limitations period 15 and as matters of policy and practice, Defendants have failed to pay premium wages to Non- 16 Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Class members when they worked 17 five (5) hours without clocking out for any meal period. 18 52. Plaintiffs allege that at all relevant times during the applicable limitations period 19 and as matters of policy and practice. Defendants employed Non-Exempt Meal Break Sub-Class 20 and Exempt Meal Break Sub-Class members for shifts of ten (10) or more hours without 21 providing them with second meal periods and without paying them premium wages, as required 22 by Labor Code section 512 and the applicable Wage Order. 23 53. Moreover, Defendants written policies do not provide that employees must take 24 theirfirstmeal break before the end of thefifthhour of work, that they are entitled to a second 25 meal break if they work a shift of over ten (10) hours, or that the second meal period must 26 commence before the end ofthe tenth hour of work, unless waived. 27 54. At all relevant times. Defendants failed to pay Plaintiffs and Non-Exempt Meal 28 Break Sub-Class and Exempt Meal Break Sub-Class members additional premium wages, 11 Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 and/or were not paid premium wages at the employees' regular rates of pay when required meal 2 periods were not provided. 3 55. Pursuant to Labor Code sections 204,218.6 and 226.7, Plaintiffs, on behalf of 4 themselves and the Non-Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Class 5 members, seek to recover unpaid premium wages, interest thereon, and costs of suit. 6 56. Pursuant to Labor Code section 1194, Code of Civil Procedure section 1021.5, 7 the substantial benefit doctrine, and/or the common fiind doctrine. Plaintiffs, on behalf of 8 themselves and the Meal Break Sub-Class members, seek to recover reasonable attomeys' fees. 9 SECOND CAUSE OF ACTION 10 FAILURE TO PROVIDE REST PERIODS 11 (Lab. Code §§ 204,223,226.7 and 1198) 12 (Plaintiffs, Non-Exempt Rest Break Sub-Class and Exempt Rest Break Sub-Class) 13 57. Plaintiffs incorporate the preceding paragraphs of the Complaint as if fully 14 alleged herein. Specifically, Plaintiffs incorporate paragraphs 13 and 14 of the Complaint as if 15 fiilly alleged herein. 16 58. At all relevant times. Plaintiffs and Non-Exempt Rest Break Sub-Class and 17 Exempt Rest Break Sub-Class members have been non-exempt employees of Defendants 18 entitled to the full rest period protections of both the Labor Code and the applicable Wage 19 Order. 20 59. Section 12 of the applicable Wage Order imposes an affirmative obligation on 21 employers to permit and authorize employees to take required rest periods at a rate of ho less 22 than ten minutes of net rest time for each four hour work period, or major portion thereof, that 23 must be in the middle of each work period insofar as is practicable. 24 60. Labor Code section 226.7 and section 12 of the applicable Wage Order both 25 prohibit employers from requiring employees to work during required rest periods and require 26 employers to pay non-exempt employees an hour of premium wages at the employees regular 27 rate of pay, on each workday that the employee is not provided with the required rest period(s). 28 61. Compensation for missed rest periods constitutes wages within the meaning of 12 Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 the Labor Code section 200. 2 62. Labor Code section 1198 makes it unlawful to employ a person under conditions 3 that violate the Wage Order. 4 63. Plaintiffs allege that at relevant times during the applicable limitations period. ' 5 Defendants maintained a policy or practice of not providing members ofthe Non-Exempt Rest 6 Break Sub-Class and Exempt Rest Break Sub-Class members with net rest periods of a least ten 7 (10) minutes for each four (4) hour work period, or major portion thereof, as required by the 8 Wage Order. 9 64. At all relevant times. Defendants failed to pay Plaintiffs and other Non-Exempt 10 Rest Break Sub-Class and Exempt Rest Break Sub-Class members additional premium wages 11 when required rest periods were not provided. 12 65. Specifically, Defendants written policies do not provide that employees may take 13 a rest break for each four hours worked, or majorfractionthereof, and that rest breaks should be 14 taken in the middle of each work period insofar as practicable. 15 66. Plaintiffs and the Non-Exempt Rest Break Sub-Class and Exempt Rest Break 16 Sub-Class members were not provided with rest periods of at least ten (10) minutes for each 17 four (4) hour work period, pr majorfractionthereof, due to (1) Defendants' policy of not 18 scheduling each est period as part of each work shift; (2) chronically understaffing each work 19 shift with not enough workers; (3) imposing so much work on each employee such that it made 20 it unlikely that an employee would be able to take their breaks if they wanted tofinishtheir 21 work on time; and (4) no formal written meal and rest period policy that encouraged employees 22 to take their meal and rest periods. 23 67. As a result of Defendants' policy. Plaintiffs and the Non-Exempt Rest Break 24 Sub-Class and Exempt Rest Break Sub-Class were regularly not provided with unintermpted 25 rest periods of at least ten (10) minutes for each four (4) hours worked due to complying with 26 Defendants' productivity requirements that required Plaintiffs and Non-Exempt Rest Break 27 Sub-Class and Exempt Rest Break Sub-Class to work through their rest periods in order to 28 complete their assignments on time. 13 Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 68. Pursuant to Labor Code sections 204,218.6 and 226.7, Plaintiffs, on behalf of 2 themselves and Non-Exempt Rest Break Sub-Class and Exempt Rest Break Sub-Class 3 members, seek to recover unpaid premium wages, interest thereon, and costs of suit. 4 69. Pursuant to Labor Code section 1194, Code of Civil Procedure section 1021.5, 5 the substantial benefit doctrine, and/or the common fund doctrine, Plaintiffs, on behalf of 6 themselves and Non-Exempt Rest Break Sub-Class and Exempt Rest Break Sub-Class 7 members, seek to recover reasonable attomeys' fees. 8 TfflRD CAUSE OF ACTION 9 FAILURE TO PAY HOURLY AND OVERTIME WAGES 10 (Lab. Code §§ 223, 510,1194,1197 and 1198) 11 (By Plaintiffs, Non-Exempt Class, Exempt Class and Rounding Class) 12 70. Plaintiffs incorporate the preceding paragraphs of the Complaint as if fully 13 alleged herein. 14 71. At all relevant times. Plaintiffs and Non-Exempt Class, Exempt Class and 15 Rounding Class members are or have been non-exempt employees of Defendants entitled to the 16 full protections of the Labor Code and the applicable Wage Orders. 17 72. Section 2 of the applicable Wage Order defines "hours worked" as "the time 18 during which an employee is subject to the control of an employer, and includes all the time the 19 employee is suffered or permitted to work, whether or not required to do so." 20 73. Section 4 of the applicable Wage Order requires an employer to pay non-exempt 21 employees at least the minimum wage set forth therein for all hours worked, which consist of all 22 hours that an employer has actual or constmctive knowledge that employees are working. 23 74. Labor Code section 1194 invalidates any agreement between an employer and an 24 employee to work for less than the minimum or overtime wage required under the applicable 25 Wage Orders. 26 75. Labor Code section 1194.2 entitles non-exempt employees to recover liquidated 27 damages in amounts equal to the amounts of unpaid minimum wages and interest thereon in 28 addition to the underlying unpaid mmimum wages and interest thereon. 14 Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 76. Labor Code section 1197 makes it unlawful for an employer to pay an employee 2 less than the minimum wage required under the applicable Wage Orders for all hours worked 3 during a payroll period. 4 77. Labor Code section 1197.1 provides that it is unlawful for any employer or any 5 other person acting either individually or as an officer, agent, or employee of another person, to 6 pay an employee, or cause an employee to be paid, less than the applicable minimum wage. 7 78. Labor Code section 1198 makes it imlawful for employers to employ employees 8 under conditions that violate the Wage Order. 9 79. Labor Code section 204 requires employers to pay non-exempt employees their 10 earned wages for the normal work period at least twice during each calendar month on days the 11 employer designates in advance and to pay non-exempt employees their eamed wages for labor 12 performed in excess of the normal work period by no later than the next regular payday. 13 80. Labor Code section 223 makes it unlawfiil for employers to pay their employees 14 lower wages than required by contract or statute while purporting to pay them legal wages. 15 81. Labor Code section 510 and section 3 of the applicable Wage Order require 16 employers to pay non-exempt employees overtime wages of no less than one and one-half times 17 their respective regular rates of pay for all hours worked in excess of eight hours in one 18 workday, all hours worked in excess of forty hours in one workweek, and/or for thefirsteight 19 hours worked on the seventh consecutive day of one workweek. 20 82. Labor Code section 510 and section 3 of the applicable Wage Order also require 21 employers to pay non-exempt employees overtime wages of no less than two times their 22 respective regular rates of pay for all hours worked in excess of twelve hours in one workday 23 and for all hours worked in excess of eight hours on a seventh consecutive workday during a 24 workweek. 25 83. Plaintiffs are informed and believe that, at all relevant times, Defendants have 26 applied centrally devised policies and practices to them and Non-Exempt Class, Exempt Class 27 and Rounding Class members with respect to working conditions and compensation 28 arrangements. 15 Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 84. At all relevant times, Defendants failed to pay hourly wages to Plaintiffs for all 2 time worked, including, but not limited to, overtime work, at statutory and/or agreed rates by 3 suffering or permitting them to work during unpaid meal periods, and/or by failing to properly 4 pay Plaintiffs and Non-Exempt Class, Exempt Class and Rounding Class members all overtime 5 hours worked. 6 85. Plaintiffs are informed and believe that, at all relevant times and as matters of 7 policy and/or practice. Defendants have failed also to pay hourly wages to Non-Exempt Class, 8 Exempt Class and Rounding Class members for all time worked, including, but not limited to, 9 overtime work, at statutory and/or agreed rates by suffering or permitting them to work during 10 unpaid meal periods. 11 86. At all relevant times. Plaintiffs and Non-Exempt Class, Exempt Class and 12 Rounding Class members have been non-exempt employees of Defendants and entitled to the 13 fiill protections of both the Labor Code and the Wage Order. 14 87. Labor Code § 512 and Section 11 of the Wage Order impose an 15 affirmative obligation on employers to provide non-exempt employees with unintermpted, duty- 16 free, meal periods of at least thirty minutes for each work period offiveor more hours, and to 17 provide them with two unintermpted, duty-free, meal periods of at least thirty minutes for each 18 work period of more than ten hours. 19 88. Labor Code § 226.7 and Section 11 ofthe Wage Order prohibit an 20 employerfromrequiring its employees to work during required meal periods and also require 21 employers to pay non-exempt employees an additional hour of premium wages at the 22 employee's regular rate of compensation on each workday that the employee is not provided 23 with a meal period. 24 89. Section 12 ofthe Wage Order imposes an affirmative obligation on 25 employers to permit and authorize employees to take required rest periods at a rate of no less 26 than ten minutes of net rest time for each four hour work period, or major portion thereof, that 27 must be in the middle of each work period insofar as is practicable. 28 90. Labor Code § 226.7 and Section 12 of the Wage Order prohibit an 16 Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 employer from requiring its employees to work during required rest periods and also require 2 employers to pay non-exempt employees an additional hour of premium wages at the 3 employee's regular rate of compensation on each workday that the employee is not provided 4 with a rest period. 5 91. Califomia law uses the terms "compensation" and "pay" interchangeably 6 and requires that all applicable remuneration, including, but not limited to, commissions and 7 non-discretionary bonuses, be included when calculating an employee's regular rate of pay. 8 92. At all relevant times. Defendants paid Plaintiffs premium wages based on 9 a rate of compensation that did not reflect, among other things, non-discretionary bonuses 10 and/or shift differential pay as required by Labor Code § 226.7(b) and Sections 11 and 12 of the 11 Wage Order on the occasions when Defendants paid them premium wages in lieu of meal 12 and/or rest periods. 13 93. Plaintiffs are informed and believe and thereon allege that, at all relevant 14 times. Defendants have maintained a policy and practice of paying Non-Exempt Class, Exempt 15 Class and Rounding Class members premium wages based on rates of compensation that have 16 not reflected non-discretionary bonuses and/or shift differential pay as required by Labor Code 17 § 226.7(b) and Sections 11 and 12 of the Wage Order on the occasions when Defendants paid 18 them premium wages in lieu of meal and/or rest periods. 19 94. Pursuant to Labor Code § 1194, Code of Civil Procedure § 1021.5, the 20 substantial benefit doctrine, and/or the common fund doctrine. Plaintiffs, on behalf of 21 themselves and Non-Exempt Class, Exempt Class and Rounding Class members, seek to 22 recover reasonable attomeys' fees. 23 FOURTH CAUSE OF ACTION 24 FAILURE TO PROVIDE ACCURATE WRITTEN WAGE STATEMENTS 25 (Lab. Code § 226) 26 (By Plaintiffs, Non-Exempt Wage Statement Penalties Sub-Class, Exempt Wage Statement 27 Penalties Sub-Class and Rounding Class) 28 95. Plaintiffs incorporate the preceding paragraphs of the Complaint as if fully 17 Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1. alleged herein. 2 96. Labor Code § 226(a) states in pertinent part the following: 3 "(a) every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher 4 paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages eamed, (2) total 5 hours worked by the employer, except for an employee whose compensation is solely based on a salary and who is exemptfrompayment of overtime under subdivision (a) of 6 section 515 or any applicable order of the Industrial Welfare Commission, (3) the number of piece-rate units eamed and any applicable piece rate if the employee is aid on 7 a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one time, (5) net wages eamed, (6) the 8 inclusive dates of the period for which the employee is paid, (7) the name ofthe employee and only the last four digits of his or her social security number or an 9 employee identification number omer than a social security number, (8) the name and address of the legal entity that is the employer and, ifthe employer." 10 11 97. Plaintiffs are informed and believe that, at all relevant times. Defendants have 12 failed to provide Non-Exempt Wage Statement Penalties Sub-C