Preview
1 ILG Legal Office, P.C.
Stephen Noel Ilg (SBN 275599)
2 Sydney Wilberton (SBN 345803)
3 Nicolas Jupillat (SBN 335559)
156 South Spruce Avenue, Unit 206A
4 South San Francisco, CA 94080
Tel: (415) 580-2574
5 Fax: (415) 735-3454
6 Email: silg@ilglegal.com
Email: swilberton@ilglegal.com
7 Email: njupillat@ilglegal.com
8 Attorneys for Plaintiff Saad Mir
Tel: (415) 580-2574 | Email: help@ilglegal.com
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
ILG Legal Office, P.C.
10 COUNTY OF SAN MATEO
11
SAAD MIR, an individual, on behalf of Case No. 23-CIV-05072
12 himself,
FIRST AMENDED COMPLAINT
13
Plaintiff, 1. WILLFUL MISCLASSIFICATION
14 vs. OF EMPLOYEES (Lab. Code § 226.8);
2. FAILURE TO COMPENSATE FOR
15 GO MAPS, INC. d/b/a GO INC. & GO ALL HOURS WORKED (Lab. Code
CAR INSURANCE INC., a Delaware §§ 200-204, 216, 223, 225.5, 500, 510,
16 558, 1197, 1194, 1198; IWC Wage
corporation, Kevin Pomplun, an individual, Orders);
17 and DOES 1 through 100, inclusive, 3. FAILURE TO PAY OVERTIME
WAGES (Lab. Code §§ 200-204, 210,
18 Defendants. 216, 223, 225.5, 500, 510, 558, 1194,
1198; IWC Wage Orders);
19 4. FAILURE TO MAINTAIN
ACCURATE RECORDS (Lab. Code
20 §§ 1174, 1174.5);
5. FAILURE TO FURNISH WAGE
21 AND HOUR STATEMENTS (Lab.
Code §§ 226(e), 226.3);
22 6. FAILURE TO PAY FINAL WAGES
ON TIME (Lab. Code §§ 201 et seq.);
23 7. FAILURE TO REIMBURSE
BUSINESS EXPENSES (Lab. Code §
24 2802);
8. UNFAIR BUSINESS PRACTICES
25 (Bus. & Prof. Code §§ 17200 et seq.);
9. PRIVATE ATTORNEYS GENERAL
26 ACT (Lab. Code §§ 2698 et seq.).
27 JURY TRIAL DEMANDED
28
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Mir v. Go Maps, Inc.
First Amended Complaint
1 This Complaint is brought by Plaintiff Saad Mir (“Plaintiff” and/or “Mr. Mir”), on
2 behalf of himself, against his former employers, Defendant Go Maps, Inc. (“Go Maps”),
3 Defendant Kevin Pomplun (“Mr. Pomplun”), and DOES 1-100, inclusive (“DOE Defendants”)
4 (collectively “Defendants”). Plaintiff hereby demands a jury trial on all causes of action.
5 Plaintiff alleges the following:
6 PLAINTIFF
7 1. At all times material herein, Plaintiff Mir was and is a competent adult and
8
resident of the State of California, San Mateo County. Plaintiff began working for Defendants as
Tel: (415) 580-2574 | Email: help@ilglegal.com
9
a Software Engineer on April 17, 2023. While working for Defendants, Plaintiff’s job duties
ILG Legal Office, P.C.
10
included but were not limited to: developing multiple components of Go Maps’ software
11
12 systems.
13 DEFENDANTS
14
2. At all times material herein, Defendant Go Maps was and is a Delaware
15
corporation registered to do business in the State of California, including but not limited to
16
17 conducting business within San Mateo County, with its corporate headquarters located in Los
18 Angeles, California. Defendant Go Maps is in the insurance and software (“insurtech”) industry.
19 On information and belief, Defendant Go Maps is an “insurtech” company that uses an app-
20 based marketing platform to sell and transact its insurance business for third-party insurance
21
company Topa. Go Maps performs all the functions necessary for the sale, service,
22
management, and claims handling of Topa’s private passenger automobile policies that are sold
23
to the public through the Go Maps app. At all relevant times alleged herein, Plaintiff is informed
24
25 and believes that Defendant Go Maps is authorized to and does conduct business in the State of
26 California in the “insurtech” industry, including but not necessarily limited to San Mateo,
27
28
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Mir v. Go Maps, Inc.
First Amended Complaint
California. At one point, the Go Maps/Topa program had more than 10,000 California
1
2 customers representing the vast majority of its approximately 12,000 policies nationwide.
3 3. At all times material herein, Plaintiff is informed and believes that Defendant
4 Kevin Pomplun was and is a resident of the State of California. Mr. Pomplun is Go Maps’ CEO.
5 4. The defendants identified as DOES 1 through 100, inclusive, were, at all times
6
herein-mentioned, agents, business affiliates, successors- and/or predecessors-in-interest,
7
officers, directors, partners, and/or managing agents of some or each of the remaining
8
Tel: (415) 580-2574 | Email: help@ilglegal.com
defendants. Plaintiff is informed and believes and, on that basis, alleges that, at all times herein-
9
ILG Legal Office, P.C.
10 mentioned, each of the defendants identified as DOES 1 through 100, inclusive, employed,
11 and/or exercised control over the conditions of Plaintiff which led to the instant lawsuit and
12 which are described herein. In doing the acts herein alleged, each Defendant is liable and
13
responsible to Plaintiff for the acts of every other Defendant. The true names and capacities of
14
the DOE Defendants, whether individual, corporate, associate or otherwise, are unknown to
15
Plaintiff who therefore sues such DOE Defendants by fictitious names pursuant to California
16
Code of Civil Procedure section 474. Plaintiff is informed and believes that the DOE
17
18 Defendants are residents of the State of California. Plaintiff will amend this complaint to show
19 such DOE Defendants’ true names and capacities when they are known.
20 5. Plaintiff is informed and believes and thereon alleges that, unless otherwise
21
indicated, each Defendant was the agent and/or employee of every other Defendant within the
22
course and scope of said agency and/or employment, with the knowledge and/or consent of said
23
Defendant.
24
25 6. To the extent any allegation contradicts another allegation, they are to be
26 construed as “alternative” theories.
27 //
28
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Mir v. Go Maps, Inc.
First Amended Complaint
1 JURISDICTION AND VENUE
2 7. This Court is the proper Court, and this action is properly filed in the Superior
3
Court for the State of California for the County of San Mateo, because Defendant Go Map
4
transacts business within this county and Plaintiff performed work for Defendants and
5
experienced the legal violations that are the subject of this Complaint in San Mateo County.
6
7 8. This Court has jurisdiction over the Plaintiff’s claims for damages, interest
8 thereon, related penalties, injunctive and other equitable relief, restitution of ill-gotten benefits
Tel: (415) 580-2574 | Email: help@ilglegal.com
9 arising from Defendants’ unlawful, unfair, and/or fraudulent business practices, and attorneys’
ILG Legal Office, P.C.
10 fees and costs pursuant to, inter alia., California Business and Professions Code sections 17200-
11
17208, and the statutes cited herein.
12
13 EXHAUSTION OF ADMINISTRATIVE REMEDIES
14 9. Pursuant to California Labor Code section 2699.5, Plaintiff has exhausted all
15 administrative remedies and satisfied all private, administrative and judicial prerequisites to the
16
institution of this action, insofar as such prerequisites pertain to Plaintiff’s cause of action
17
brought pursuant to the Private Attorney General’s Act (“PAGA”), California Labor Code
18
sections 2699 et seq. Plaintiff has complied with the procedures for bringing suit specified in
19
20 California Labor Code section 2699.3. Plaintiff has given written notice, by certified mail, to the
21 Labor and Workforce Development Agency (“LWDA”) and to Defendants of the specific
22 provisions of the California Labor Code alleged to have been violated, including the facts and
23 theories to support those violations. More than 65 days have passed, and no response has been
24
received from the LWDA. Accordingly, Plaintiff has satisfied all prerequisites to pursuing
25
PAGA claims.
26
10. Plaintiff has satisfied all private, administrative and judicial prerequisites to the
27
28 institution of this action.
-4-
Mir v. Go Maps, Inc.
First Amended Complaint
11. The California Workers’ Compensation Act does not preempt this action because
1
2 Defendants’ unlawful practices, as alleged herein, are not risks or conditions of employment.
3 Plaintiff is not required to satisfy any further private, administrative, or judicial prerequisites to
4 the institution of this action, insofar as such prerequisites pertain to any of the remaining causes
5 of action in this complaint.
6
FACTS REGARDING PLAINTIFF’S INDIVIDUAL CAUSES OF ACTION
7
8 12. Plaintiff began his employment with Defendants on April 17, 2023. At all times
Tel: (415) 580-2574 | Email: help@ilglegal.com
9 during his employment with Defendants, Plaintiff was performing his job duties satisfactorily
ILG Legal Office, P.C.
10 and received positive performance reviews.
11
13. Saad Mir began working as a Software Engineer for Go Maps, Inc. on April 17,
12
2023, as an Independent Contractor (“full-time consultant,” as stated in his employment
13
contract) paid $145.00 per hour. Mr. Mir developed multiple components of Go Map’s software
14
15 systems, some of which are still used to run their business.
16 14. All Go Maps employees work from home because the company does not have
17 any physical offices. Mr. Mir worked full-time, eight hours per day, as stated in his employment
18 contract. He was paired to work under the direction of two full-time Go Maps employees and
19
was expected to work the same 9 a.m. to 5 p.m. hours as his co-workers; this includes attending
20
(1) daily morning Zoom meetings to (a) report the results of the previous day’s work, and (b)
21
receive new work assignments for the following day, as well as (2) weekly all-hands meetings
22
23 which all employees were required to attend. Additionally, on multiple occasions, Go Maps’
24 CEO Kevin Pomplun and Go Maps’ Vice President of Engineering asked Mr. Mir to continue
25 working past business hours and during weekends, which he did without question. Furthermore,
26
Mr. Mir’s employment contract specified that “[c]onsultant shall accrue and receive 4 weeks off
27
to be scheduled and approved in advance with manager.”
28
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Mir v. Go Maps, Inc.
First Amended Complaint
15. After being assigned to build a new system component on May 10, 2023, Mr.
1
2 Mir worked through the following week (with daily reporting) to complete the assigned project.
3 On May 18, 2023, Mr. Pomplun stated that he did not like the new component; later that same
4 day, Sunondo Ghosh, Go Maps’ Vice President of Engineering, invited Mr. Mir into a Zoom
5 meeting to explain that the company is terminating his employment.
6
16. Mr. Mir has been a career Software Engineer for close to thirty years. His work
7
consistently receives high performance evaluations, including most recently written and verbal
8
Tel: (415) 580-2574 | Email: help@ilglegal.com
communications from Go Maps’ managers praising Mr. Mir’s work. The company's Vice
9
ILG Legal Office, P.C.
10 President of Engineering, Sunondo Ghosh, who had hired Mr. Mir, even texted him that he "did
11 great work and [would] get paid." Sometime after that, however, Mr. Ghosh conveyed verbally
12 that the "CEO didn't want to pay [Mr. Mir]." Mr. Ghosh added "I don't know what's going on."
13
Mr. Mir’s employment with Go Maps is the first time an employer has ever denied payment of
14
his wages.
15
17. Additionally, despite the fact that Plaintiff and all other workers at the company
16
worked remotely, Defendant never covered any portion of Plaintiff’s business-related expenses,
17
18 including cell phone, cell phone usage plan, or internet usage plan.
19 18. In total, Mr. Mir has performed 192.00 hours of work for Go Maps. Despite
20 requesting payment multiple times, he has not received any form of compensation throughout
21
the entire course of his employment with Go Maps and after his termination on May 18, 2023.
22
FIRST CAUSE OF ACTION
23 WILLFUL MISCLASSIFICATION OF EMPLOYEES
24 (Lab. Code §§ 201, 226.8)
25 (On behalf of Plaintiff as an individual against all Defendants)
26 19. Plaintiff incorporates in this cause of action each and every allegation of the
27 preceding paragraphs, with the same force and effect as though fully set forth herein.
28
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Mir v. Go Maps, Inc.
First Amended Complaint
20. California Labor Code section 226.8(a)(1) provides, “It is unlawful for any
1
2 person or employer to willfully misclassify an individual as an independent contractor.”
3 21. California Labor Code section 226.8(i)(4) provides, “‘Willful misclassification’
4 means avoiding employee status for an individual by voluntarily and knowingly misclassifying
5 that individual as an independent contractor.”
6
22. California Labor Code section 226.8(b) provides, “If a person or employer has
7
willfully misclassified an individual as an independent contractor, the person or employer shall
8
Tel: (415) 580-2574 | Email: help@ilglegal.com
be subject to a civil penalty of not less than five thousand dollars ($5,000) and not more than
9
ILG Legal Office, P.C.
10 fifteen thousand dollars ($15,000) for each violation, in addition to any other penalties or fines
11 permitted by law.”
12 23. California Labor Code section 226.8(c) provides, “If the person or employer has
13
engaged in or is engaging in a pattern or practice willfully misclassifying individuals as
14
independent contractors, the person or employer shall be subject to a civil penalty of not less
15
than ten thousand dollars ($10,000) and not more than twenty-five thousand dollars ($25,000)
16
for each violation, in addition to any other penalties or fines permitted by law.”
17
18 24. In Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 416 P.3d 1
19 (2018), the California Supreme Court by adopted the "ABC test" for ascertaining whether
20 workers were employees or independent contractors. That test permits businesses to classify
21
workers as independent contractors only if they (a) are "free from the control and direction of
22
the hirer," (b) perform work "that is outside the usual course of the hiring entity's business," and
23
(c) are "customarily engaged in an independently established trade, occupation, or business." Id.
24
25 at 34. If a business cannot make that showing, its workers are deemed employees, in which case
26 the business must comply with certain requirements—"paying federal Social Security and
27 payroll taxes, unemployment insurance taxes and state employment taxes, providing worker's
28
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Mir v. Go Maps, Inc.
First Amended Complaint
compensation insurance, and ... complying with numerous state and federal statutes and
1
2 regulations governing the wages, hours, and working conditions of employees." Id. at 5.
3 25. Before Dynamex, California courts applied the multi-factor test established in
4 S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399 (1989). Under
5 Borello, a worker's status turned primarily on the hiring entity's right to control the worker. Id.
6
at 403–04. But courts also looked to several "secondary indicia" of employment, including the
7
hiring entity’s right to discharge workers at will, the length of the workers’ services, and
8
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whether the work was part of the hiring entity's regular business. Id. at 404. Importantly, no
9
ILG Legal Office, P.C.
10 factor was dispositive; courts engaged in a case-by-case evaluation of the arrangement at issue.
11 Id. at 407.
12 26. Although Dynamex was initially limited to wage orders, with Borello applying
13
outside that context, the California legislature codified the ABC test and expanded its
14
applicability through the enactment of Assembly Bill 5 (“AB 5”), which amended Section 3351
15
of the California Labor Code and added Section 2750.3 to the California Labor Code.
16
27. AB 5 did not apply Dynamex across the board, but specified that the Borello
17
18 standard would continue governing many occupations and industries. See generally Cal. Lab.
19 Code § 2750.3.
20 28. Plaintiff satisfies both the ABC test and the Borello test in the determination that
21
he was improperly classified as an independent contractor.
22
29. Each Defendant was aware of its obligations under the California Labor Code.
23
30. Each Defendant was given notice of its violations, yet chose to ignore its
24
25 obligations under California law.
26 31. Each Defendant devised a scheme and plan to usurp and violate California Labor
27 laws so that they could achieve maximum profits at the expense of Plaintiff.
28
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Mir v. Go Maps, Inc.
First Amended Complaint
32. Defendants violated Labor Code section 226.8 by willfully misclassifying
1
2 Plaintiff and others as independent contractors.
3 33. Defendants engaged in subterfuge to avoid Plaintiff’s employee status, among
4 other factors that establish an Employer and Employee relationship.
5 34. Defendants exercised the same dominion and control over every employee that
6
Defendant employed during the liability period.
7
35. At all times during the liability period, Plaintiff was subjected to unlawful,
8
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improper and illegal deductions from his wages by Defendants.
9
ILG Legal Office, P.C.
10 36. At all times during the liability period, Plaintiff was unlawfully, illegally and
11 wrongfully required to bear the costs of Defendants business expenses which Defendant did not
12 reimburse to him.
13
37. Defendants have engaged in a pattern and practice of misclassifying their
14
employees as independent contractors to avoid the taxes, insurance and other costs that
15
accompany employee status.
16
38. Labor Code section 1198 provides that, “The maximum hours of work and the
17
18 standard conditions of labor fixed by the commission shall be the maximum hours of work and
19 the standard conditions of labor for employees. The employment of any employee for longer
20 hours than those fixed by the order or under conditions of labor prohibited by the order is
21
unlawful.”
22
39. Plaintiff is entitled to all damages, penalties, interest, and attorney fees as a result
23
of Defendants’ violations of the Labor Code and it is requested that this Court issue an Order to
24
25
Preview
1 ILG Legal Office, P.C. Stephen Noel Ilg (SBN 275599) 2 Sydney Wilberton (SBN 345803) 3 Nicolas Jupillat (SBN 335559) 156 South Spruce Avenue, Unit 206A 4 South San Francisco, CA 94080 Tel: (415) 580-2574 5 Fax: (415) 735-3454 6 Email: silg@ilglegal.com Email: swilberton@ilglegal.com 7 Email: njupillat@ilglegal.com 8 Attorneys for Plaintiff Saad Mir Tel: (415) 580-2574 | Email: help@ilglegal.com 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA ILG Legal Office, P.C. 10 COUNTY OF SAN MATEO 11 SAAD MIR, an individual, on behalf of Case No. 23-CIV-05072 12 himself, FIRST AMENDED COMPLAINT 13 Plaintiff, 1. WILLFUL MISCLASSIFICATION 14 vs. OF EMPLOYEES (Lab. Code § 226.8); 2. FAILURE TO COMPENSATE FOR 15 GO MAPS, INC. d/b/a GO INC. & GO ALL HOURS WORKED (Lab. Code CAR INSURANCE INC., a Delaware §§ 200-204, 216, 223, 225.5, 500, 510, 16 558, 1197, 1194, 1198; IWC Wage corporation, Kevin Pomplun, an individual, Orders); 17 and DOES 1 through 100, inclusive, 3. FAILURE TO PAY OVERTIME WAGES (Lab. Code §§ 200-204, 210, 18 Defendants. 216, 223, 225.5, 500, 510, 558, 1194, 1198; IWC Wage Orders); 19 4. FAILURE TO MAINTAIN ACCURATE RECORDS (Lab. Code 20 §§ 1174, 1174.5); 5. FAILURE TO FURNISH WAGE 21 AND HOUR STATEMENTS (Lab. Code §§ 226(e), 226.3); 22 6. FAILURE TO PAY FINAL WAGES ON TIME (Lab. Code §§ 201 et seq.); 23 7. FAILURE TO REIMBURSE BUSINESS EXPENSES (Lab. Code § 24 2802); 8. UNFAIR BUSINESS PRACTICES 25 (Bus. & Prof. Code §§ 17200 et seq.); 9. PRIVATE ATTORNEYS GENERAL 26 ACT (Lab. Code §§ 2698 et seq.). 27 JURY TRIAL DEMANDED 28 -1- Mir v. Go Maps, Inc. First Amended Complaint 1 This Complaint is brought by Plaintiff Saad Mir (“Plaintiff” and/or “Mr. Mir”), on 2 behalf of himself, against his former employers, Defendant Go Maps, Inc. (“Go Maps”), 3 Defendant Kevin Pomplun (“Mr. Pomplun”), and DOES 1-100, inclusive (“DOE Defendants”) 4 (collectively “Defendants”). Plaintiff hereby demands a jury trial on all causes of action. 5 Plaintiff alleges the following: 6 PLAINTIFF 7 1. At all times material herein, Plaintiff Mir was and is a competent adult and 8 resident of the State of California, San Mateo County. Plaintiff began working for Defendants as Tel: (415) 580-2574 | Email: help@ilglegal.com 9 a Software Engineer on April 17, 2023. While working for Defendants, Plaintiff’s job duties ILG Legal Office, P.C. 10 included but were not limited to: developing multiple components of Go Maps’ software 11 12 systems. 13 DEFENDANTS 14 2. At all times material herein, Defendant Go Maps was and is a Delaware 15 corporation registered to do business in the State of California, including but not limited to 16 17 conducting business within San Mateo County, with its corporate headquarters located in Los 18 Angeles, California. Defendant Go Maps is in the insurance and software (“insurtech”) industry. 19 On information and belief, Defendant Go Maps is an “insurtech” company that uses an app- 20 based marketing platform to sell and transact its insurance business for third-party insurance 21 company Topa. Go Maps performs all the functions necessary for the sale, service, 22 management, and claims handling of Topa’s private passenger automobile policies that are sold 23 to the public through the Go Maps app. At all relevant times alleged herein, Plaintiff is informed 24 25 and believes that Defendant Go Maps is authorized to and does conduct business in the State of 26 California in the “insurtech” industry, including but not necessarily limited to San Mateo, 27 28 -2- Mir v. Go Maps, Inc. First Amended Complaint California. At one point, the Go Maps/Topa program had more than 10,000 California 1 2 customers representing the vast majority of its approximately 12,000 policies nationwide. 3 3. At all times material herein, Plaintiff is informed and believes that Defendant 4 Kevin Pomplun was and is a resident of the State of California. Mr. Pomplun is Go Maps’ CEO. 5 4. The defendants identified as DOES 1 through 100, inclusive, were, at all times 6 herein-mentioned, agents, business affiliates, successors- and/or predecessors-in-interest, 7 officers, directors, partners, and/or managing agents of some or each of the remaining 8 Tel: (415) 580-2574 | Email: help@ilglegal.com defendants. Plaintiff is informed and believes and, on that basis, alleges that, at all times herein- 9 ILG Legal Office, P.C. 10 mentioned, each of the defendants identified as DOES 1 through 100, inclusive, employed, 11 and/or exercised control over the conditions of Plaintiff which led to the instant lawsuit and 12 which are described herein. In doing the acts herein alleged, each Defendant is liable and 13 responsible to Plaintiff for the acts of every other Defendant. The true names and capacities of 14 the DOE Defendants, whether individual, corporate, associate or otherwise, are unknown to 15 Plaintiff who therefore sues such DOE Defendants by fictitious names pursuant to California 16 Code of Civil Procedure section 474. Plaintiff is informed and believes that the DOE 17 18 Defendants are residents of the State of California. Plaintiff will amend this complaint to show 19 such DOE Defendants’ true names and capacities when they are known. 20 5. Plaintiff is informed and believes and thereon alleges that, unless otherwise 21 indicated, each Defendant was the agent and/or employee of every other Defendant within the 22 course and scope of said agency and/or employment, with the knowledge and/or consent of said 23 Defendant. 24 25 6. To the extent any allegation contradicts another allegation, they are to be 26 construed as “alternative” theories. 27 // 28 -3- Mir v. Go Maps, Inc. First Amended Complaint 1 JURISDICTION AND VENUE 2 7. This Court is the proper Court, and this action is properly filed in the Superior 3 Court for the State of California for the County of San Mateo, because Defendant Go Map 4 transacts business within this county and Plaintiff performed work for Defendants and 5 experienced the legal violations that are the subject of this Complaint in San Mateo County. 6 7 8. This Court has jurisdiction over the Plaintiff’s claims for damages, interest 8 thereon, related penalties, injunctive and other equitable relief, restitution of ill-gotten benefits Tel: (415) 580-2574 | Email: help@ilglegal.com 9 arising from Defendants’ unlawful, unfair, and/or fraudulent business practices, and attorneys’ ILG Legal Office, P.C. 10 fees and costs pursuant to, inter alia., California Business and Professions Code sections 17200- 11 17208, and the statutes cited herein. 12 13 EXHAUSTION OF ADMINISTRATIVE REMEDIES 14 9. Pursuant to California Labor Code section 2699.5, Plaintiff has exhausted all 15 administrative remedies and satisfied all private, administrative and judicial prerequisites to the 16 institution of this action, insofar as such prerequisites pertain to Plaintiff’s cause of action 17 brought pursuant to the Private Attorney General’s Act (“PAGA”), California Labor Code 18 sections 2699 et seq. Plaintiff has complied with the procedures for bringing suit specified in 19 20 California Labor Code section 2699.3. Plaintiff has given written notice, by certified mail, to the 21 Labor and Workforce Development Agency (“LWDA”) and to Defendants of the specific 22 provisions of the California Labor Code alleged to have been violated, including the facts and 23 theories to support those violations. More than 65 days have passed, and no response has been 24 received from the LWDA. Accordingly, Plaintiff has satisfied all prerequisites to pursuing 25 PAGA claims. 26 10. Plaintiff has satisfied all private, administrative and judicial prerequisites to the 27 28 institution of this action. -4- Mir v. Go Maps, Inc. First Amended Complaint 11. The California Workers’ Compensation Act does not preempt this action because 1 2 Defendants’ unlawful practices, as alleged herein, are not risks or conditions of employment. 3 Plaintiff is not required to satisfy any further private, administrative, or judicial prerequisites to 4 the institution of this action, insofar as such prerequisites pertain to any of the remaining causes 5 of action in this complaint. 6 FACTS REGARDING PLAINTIFF’S INDIVIDUAL CAUSES OF ACTION 7 8 12. Plaintiff began his employment with Defendants on April 17, 2023. At all times Tel: (415) 580-2574 | Email: help@ilglegal.com 9 during his employment with Defendants, Plaintiff was performing his job duties satisfactorily ILG Legal Office, P.C. 10 and received positive performance reviews. 11 13. Saad Mir began working as a Software Engineer for Go Maps, Inc. on April 17, 12 2023, as an Independent Contractor (“full-time consultant,” as stated in his employment 13 contract) paid $145.00 per hour. Mr. Mir developed multiple components of Go Map’s software 14 15 systems, some of which are still used to run their business. 16 14. All Go Maps employees work from home because the company does not have 17 any physical offices. Mr. Mir worked full-time, eight hours per day, as stated in his employment 18 contract. He was paired to work under the direction of two full-time Go Maps employees and 19 was expected to work the same 9 a.m. to 5 p.m. hours as his co-workers; this includes attending 20 (1) daily morning Zoom meetings to (a) report the results of the previous day’s work, and (b) 21 receive new work assignments for the following day, as well as (2) weekly all-hands meetings 22 23 which all employees were required to attend. Additionally, on multiple occasions, Go Maps’ 24 CEO Kevin Pomplun and Go Maps’ Vice President of Engineering asked Mr. Mir to continue 25 working past business hours and during weekends, which he did without question. Furthermore, 26 Mr. Mir’s employment contract specified that “[c]onsultant shall accrue and receive 4 weeks off 27 to be scheduled and approved in advance with manager.” 28 -5- Mir v. Go Maps, Inc. First Amended Complaint 15. After being assigned to build a new system component on May 10, 2023, Mr. 1 2 Mir worked through the following week (with daily reporting) to complete the assigned project. 3 On May 18, 2023, Mr. Pomplun stated that he did not like the new component; later that same 4 day, Sunondo Ghosh, Go Maps’ Vice President of Engineering, invited Mr. Mir into a Zoom 5 meeting to explain that the company is terminating his employment. 6 16. Mr. Mir has been a career Software Engineer for close to thirty years. His work 7 consistently receives high performance evaluations, including most recently written and verbal 8 Tel: (415) 580-2574 | Email: help@ilglegal.com communications from Go Maps’ managers praising Mr. Mir’s work. The company's Vice 9 ILG Legal Office, P.C. 10 President of Engineering, Sunondo Ghosh, who had hired Mr. Mir, even texted him that he "did 11 great work and [would] get paid." Sometime after that, however, Mr. Ghosh conveyed verbally 12 that the "CEO didn't want to pay [Mr. Mir]." Mr. Ghosh added "I don't know what's going on." 13 Mr. Mir’s employment with Go Maps is the first time an employer has ever denied payment of 14 his wages. 15 17. Additionally, despite the fact that Plaintiff and all other workers at the company 16 worked remotely, Defendant never covered any portion of Plaintiff’s business-related expenses, 17 18 including cell phone, cell phone usage plan, or internet usage plan. 19 18. In total, Mr. Mir has performed 192.00 hours of work for Go Maps. Despite 20 requesting payment multiple times, he has not received any form of compensation throughout 21 the entire course of his employment with Go Maps and after his termination on May 18, 2023. 22 FIRST CAUSE OF ACTION 23 WILLFUL MISCLASSIFICATION OF EMPLOYEES 24 (Lab. Code §§ 201, 226.8) 25 (On behalf of Plaintiff as an individual against all Defendants) 26 19. Plaintiff incorporates in this cause of action each and every allegation of the 27 preceding paragraphs, with the same force and effect as though fully set forth herein. 28 -6- Mir v. Go Maps, Inc. First Amended Complaint 20. California Labor Code section 226.8(a)(1) provides, “It is unlawful for any 1 2 person or employer to willfully misclassify an individual as an independent contractor.” 3 21. California Labor Code section 226.8(i)(4) provides, “‘Willful misclassification’ 4 means avoiding employee status for an individual by voluntarily and knowingly misclassifying 5 that individual as an independent contractor.” 6 22. California Labor Code section 226.8(b) provides, “If a person or employer has 7 willfully misclassified an individual as an independent contractor, the person or employer shall 8 Tel: (415) 580-2574 | Email: help@ilglegal.com be subject to a civil penalty of not less than five thousand dollars ($5,000) and not more than 9 ILG Legal Office, P.C. 10 fifteen thousand dollars ($15,000) for each violation, in addition to any other penalties or fines 11 permitted by law.” 12 23. California Labor Code section 226.8(c) provides, “If the person or employer has 13 engaged in or is engaging in a pattern or practice willfully misclassifying individuals as 14 independent contractors, the person or employer shall be subject to a civil penalty of not less 15 than ten thousand dollars ($10,000) and not more than twenty-five thousand dollars ($25,000) 16 for each violation, in addition to any other penalties or fines permitted by law.” 17 18 24. In Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 416 P.3d 1 19 (2018), the California Supreme Court by adopted the "ABC test" for ascertaining whether 20 workers were employees or independent contractors. That test permits businesses to classify 21 workers as independent contractors only if they (a) are "free from the control and direction of 22 the hirer," (b) perform work "that is outside the usual course of the hiring entity's business," and 23 (c) are "customarily engaged in an independently established trade, occupation, or business." Id. 24 25 at 34. If a business cannot make that showing, its workers are deemed employees, in which case 26 the business must comply with certain requirements—"paying federal Social Security and 27 payroll taxes, unemployment insurance taxes and state employment taxes, providing worker's 28 -7- Mir v. Go Maps, Inc. First Amended Complaint compensation insurance, and ... complying with numerous state and federal statutes and 1 2 regulations governing the wages, hours, and working conditions of employees." Id. at 5. 3 25. Before Dynamex, California courts applied the multi-factor test established in 4 S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399 (1989). Under 5 Borello, a worker's status turned primarily on the hiring entity's right to control the worker. Id. 6 at 403–04. But courts also looked to several "secondary indicia" of employment, including the 7 hiring entity’s right to discharge workers at will, the length of the workers’ services, and 8 Tel: (415) 580-2574 | Email: help@ilglegal.com whether the work was part of the hiring entity's regular business. Id. at 404. Importantly, no 9 ILG Legal Office, P.C. 10 factor was dispositive; courts engaged in a case-by-case evaluation of the arrangement at issue. 11 Id. at 407. 12 26. Although Dynamex was initially limited to wage orders, with Borello applying 13 outside that context, the California legislature codified the ABC test and expanded its 14 applicability through the enactment of Assembly Bill 5 (“AB 5”), which amended Section 3351 15 of the California Labor Code and added Section 2750.3 to the California Labor Code. 16 27. AB 5 did not apply Dynamex across the board, but specified that the Borello 17 18 standard would continue governing many occupations and industries. See generally Cal. Lab. 19 Code § 2750.3. 20 28. Plaintiff satisfies both the ABC test and the Borello test in the determination that 21 he was improperly classified as an independent contractor. 22 29. Each Defendant was aware of its obligations under the California Labor Code. 23 30. Each Defendant was given notice of its violations, yet chose to ignore its 24 25 obligations under California law. 26 31. Each Defendant devised a scheme and plan to usurp and violate California Labor 27 laws so that they could achieve maximum profits at the expense of Plaintiff. 28 -8- Mir v. Go Maps, Inc. First Amended Complaint 32. Defendants violated Labor Code section 226.8 by willfully misclassifying 1 2 Plaintiff and others as independent contractors. 3 33. Defendants engaged in subterfuge to avoid Plaintiff’s employee status, among 4 other factors that establish an Employer and Employee relationship. 5 34. Defendants exercised the same dominion and control over every employee that 6 Defendant employed during the liability period. 7 35. At all times during the liability period, Plaintiff was subjected to unlawful, 8 Tel: (415) 580-2574 | Email: help@ilglegal.com improper and illegal deductions from his wages by Defendants. 9 ILG Legal Office, P.C. 10 36. At all times during the liability period, Plaintiff was unlawfully, illegally and 11 wrongfully required to bear the costs of Defendants business expenses which Defendant did not 12 reimburse to him. 13 37. Defendants have engaged in a pattern and practice of misclassifying their 14 employees as independent contractors to avoid the taxes, insurance and other costs that 15 accompany employee status. 16 38. Labor Code section 1198 provides that, “The maximum hours of work and the 17 18 standard conditions of labor fixed by the commission shall be the maximum hours of work and 19 the standard conditions of labor for employees. The employment of any employee for longer 20 hours than those fixed by the order or under conditions of labor prohibited by the order is 21 unlawful.” 22 39. Plaintiff is entitled to all damages, penalties, interest, and attorney fees as a result 23 of Defendants’ violations of the Labor Code and it is requested that this Court issue an Order to 24 25