Preview
1 MELMED LAW GROUP P.C.
Jonathan Melmed (SBN 290218)
2 jm@melmedlaw.com
Laura Supanich (SBN 314805)
3 lms@melmedlaw.com
Maria Burciaga (SBN 334545)
4 mb@melmedlaw.com
1801 Century Park East, Suite 850
5 Los Angeles, California 90067
Phone: (310) 824-3828
6 Fax: (310) 862-6851
7 Attorneys for Plaintiffs and the Putative Class
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF KERN
10 DIANA MORFIN and GABRIELA GARCIA, Case Number:
individuals on behalf of themselves and all
11 Class Action Complaint For:
others similarly situated,
12
1. Failure to Pay All Minimum Wages,
Plaintiffs,
13
2. Failure to Pay All Overtime Wages,
14 v.
3. Failure to Provide Rest Periods and Pay
15 DELANO DISTRICT SKILLED NURSING Missed Rest Period Premiums,
16 FACILITY, a business of unknown formation; 4. Failure to Provide Meal Periods and Pay
and DOES 1 TO 50,
17 Missed Meal Period Premiums,
18 Defendants. 5. Failure to Maintain Accurate Employment
Records,
19
6. Failure to Pay Wages Timely during
20
Employment,
21
7. Failure to Pay All Wages Earned and
22 Unpaid at Separation,
23 8. Failure to Furnish Accurate Itemized Wage
24 Statements,
25 9. Failure to Pay Sick Leave, and
26 10. Violations of California’s Unfair
Competition Law (Bus. & Prof. Code, §§
27
17200–17210).
28
29
1
30 CLASS ACTION COMPLAINT
1 Demand for Jury Trial
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
2
30 CLASS ACTION COMPLAINT
1 Plaintiffs Diana Morfin and Gabriela Garcia (collectively “Plaintiffs”), on behalf of themselves
2 and all other similarly situated employees within the State of California, complain and allege of
3 defendants Delano District Skilled Nursing Facility and Does 1 to 50 (collectively, “Defendants”), and
4 each of them, as follows:
5 I. INTRODUCTION
6 1. This is a class action complaint brought pursuant to California Code of Civil Procedure
7 section 382.
8 2. The “Class Period” as used herein, is defined as the period from four years prior to the
9 filing of this action and continuing into the present and ongoing. Defendants’ violations of California’s
10 laws as described more fully below have been ongoing throughout the Class Period and are still
11 ongoing.
12 3. Plaintiffs bring this class action on behalf of themselves and the following class: All
13 individuals who are or were employed by Defendants as non-exempt employees in California during
14 the Class Period (the “Class Members”). (Code Civ. Proc., § 382.)
15 4. Plaintiffs bring this action on behalf of themselves and the Class Members, as a class
16 action, against Defendants for:
17 A. Failure to pay all minimum wages,
18 B. Failure to pay all overtime wages,
19 C. Failure to provide rest periods and pay missed rest period premiums,
20 D. Failure to provide meal periods and pay missed meal period premiums,
21 E. Failure to maintain accurate employment records,
22 F. Failure to pay wages timely during employment,
23 G. Failure to pay all wages earned and unpaid at separation,
24 H. Failure to furnish accurate itemized wage statements,
25 I. Failure to fully pay all sick leave wages, and
26 J. Violations of California’s Unfair Competition Law (“UCL”) (Bus. & Prof.
27 Code, §§ 17200–17210).
28
29
3
30 CLASS ACTION COMPLAINT
1 5. Plaintiffs are informed and believe and thereon allege that the California Industrial
2 Welfare Commission (“IWC”) Wage Orders applicable to the facts of this case are IWC Wage Orders
3 4-2001 and/or 5-2001 (the “Applicable Wage Orders”) and possibly others that may be applicable.
4 (Cal. Code of Regs., tit. 8, §§ 11040, 11050.) Plaintiffs reserve the right to amend or modify the
5 definition of “Applicable Wage Orders” with greater specificity or add additional IWC Wage Orders
6 if additional applicable wage orders are discovered in litigation.
7 II. JURISDICTION & VENUE
8 6. This Court has subject matter jurisdiction over all causes of action asserted herein
9 pursuant to Article VI, section 10, of the California Constitution and Code of Civil Procedure section
10 410.10 because this is a civil action in which the matter in controversy, exclusive of interest, exceeds
11 $25,000, and because each cause of action asserted arises under the laws of the State of California or
12 is subject to adjudication in the courts of the State of California.
13 7. This Court has personal jurisdiction over Defendants because Defendants have caused
14 injuries in the County of Kern and the State of California through their acts, and by their violation of
15 the California Labor Code and California state common law. Defendants transact millions of dollars of
16 business within the State of California. Defendants own, maintain offices, transact business, have an
17 agent or agents within the County of Kern, and/or otherwise are found within the County of Kern, and
18 Defendants are within the jurisdiction of this Court for purposes of service of process.
19 8. Venue as to Defendants is proper in this judicial district, pursuant to section 395 of the
20 Code of Civil Procedure. Defendants operate within California and do business within Kern County,
21 California. The unlawful acts alleged herein have a direct effect on Plaintiffs and all of Defendants’
22 employees identified above within Kern County and surrounding counties where Defendants may
23 remotely operate.
24 9. This matter is not appropriate for removal under the Class Action Fairness Act (28
25 U.S.C. § 1332) as the amount in controversy for Plaintiffs’ and the Class Members’ claims, in
26 aggregate, is less than $5 million. Additionally, all the allegations herein occurred in the State of
27 California. As such, even if the amount in controversy did exceed $5 million this matter would still not
28 be appropriate for removal under the “local controversy” exception to the Class Action Fairness Act.
29
4
30 CLASS ACTION COMPLAINT
1 (28 U.S.C. § 1332, subd. (d)(4)(A).)
2 III. THE PARTIES
3 A. PLAINTIFF
4 10. At all relevant times, Plaintiffs, who are over the age of 18, were and currently are
5 citizens of California residing in the State of California. Defendants employed Plaintiffs as non-exempt
6 hourly employees in the County of Kern.
7 11. Plaintiffs bring this action on behalf of themselves and the following class pursuant to
8 section 382 of the Code of Civil Procedure as follows: All individuals who are or were employed by
9 Defendants as non-exempt employees in California during the Class Period (the “Class Members”).
10 12. The Class Members, at all times pertinent hereto, are or were employees of Defendants
11 during the relevant statutory period.
12 B. DEFENDANTS
13 13. Plaintiffs are informed and believe and thereon allege that Defendants were authorized
14 to and doing business in Kern County and is and/or was the legal employer of Plaintiffs and the other
15 Class Members during the applicable statutory periods. Plaintiffs and the other Class Members were,
16 and are, subject to Defendants’ policies and/or practices complained of herein and have been deprived
17 of the rights guaranteed to them by: California Labor Code sections 201, 202, 203, 204, 210, 226,
18 226.3, 226.7, 246, 256, 510, 512, 1174, 1185, 1194, 1194.2, 1197, 1197.1, 1198, 1198.5, 1199, and
19 others that may be applicable; California Business and Professions Code sections 17200 through 17210
20 (“UCL”); and the Applicable Wage Orders (Cal. Code of Regs., tit. 8, §§ 11040, 11050).
21 14. Plaintiffs are informed and believe, and based thereon allege, that during the Class
22 Period, Defendants did (and continue to do) business in the State of California, County of Kern.
23 Defendants’ operations are headquartered in Kern County.
24 15. Plaintiffs do not know the true names or capacities, whether individual, partner, or
25 corporate, of the defendants sued herein as Does 1 to 50, inclusive, and for that reason, said defendants
26 are sued under such fictitious names, and Plaintiffs will seek leave from this Court to amend this
27 complaint when such true names and capacities are discovered. Plaintiffs are informed, and believe,
28 and thereon allege, that each of said fictitious defendants, whether individual, partners, or corporate,
29
5
30 CLASS ACTION COMPLAINT
1 were responsible in some manner for the acts and omissions alleged herein, and proximately caused
2 Plaintiffs and the other Class Members to be subject to the unlawful employment practices, wrongs,
3 injuries, and damages complained of herein.
4 16. Plaintiffs are informed, and believe, and thereon allege, that at all times mentioned
5 herein, Defendants were and/or are the employers of Plaintiffs and the other Class Members. At all
6 times herein mentioned, each of said Defendants participated in the doing of the acts hereinafter alleged
7 to have been done by the named Defendants. Furthermore, the Defendants, and each of them, were the
8 agents, representatives, and employees of each and every one of the other Defendants, and at all times
9 herein mentioned were acting within the course and scope of said agency, representation, and
10 employment. Defendants, and each of them, approved of, condoned, or otherwise ratified every one of
11 the acts or omissions complained of herein.
12 17. Plaintiffs are further informed, and believe, and thereon allege, that at all times
13 mentioned herein, that Defendants, and each of them, are the alter egos of one another and that there
14 existed and now exists a unity of interest and ownership between them such that the individuality and
15 separateness of each of them has ceased. Plaintiffs are further informed, and believe, and thereon allege,
16 that at all times mentioned herein, that Defendants, and each of them, have been and now are mere
17 shells and naked frameworks that their principal uses for the conduct of that Defendant’s own business,
18 property, and affairs, for which Defendants, and each of them, have concealed and misrepresented their
19 identities as the entities responsible for their ownership, management, and financial interests.
20 18. Plaintiffs are further informed, and believe, and thereon allege, that at all times
21 mentioned herein, Defendants, and each of them, were members of and engaged in a joint venture,
22 partnership, and common enterprise, and acting within the course and scope of and in pursuance of said
23 joint venture, partnership, and common enterprise. Further, Plaintiffs are informed, and believe, and
24 thereon allege, that all Defendants were joint employers for all purposes of Plaintiffs and the other
25 Class Members.
26 IV. COMMON FACTS & ALLEGATIONS
27 19. Plaintiffs and the other Class Members (collectively, the “Class Members”) are, and
28 were at all relevant times, employed by the Defendants within the State of California.
29
6
30 CLASS ACTION COMPLAINT
1 20. The Class Members are, and were, at all relevant times, non-exempt employees for the
2 purposes of minimum wages, overtime, rest breaks, meal periods, and the other claims alleged in this
3 complaint.
4 21. Specifically, Plaintiffs were employed by Defendants within the statutory Class Period,
5 working as hourly, non-exempt certified nursing assistant for Defendants.
6 A. MINIMUM WAGE VIOLATIONS
7 22. Labor Code section 1197 requires employees to be paid at least the minimum wage fixed
8 by the IWC, and any payment of less than the minimum wage is unlawful. Similarly, Labor Code
9 section 1194 entitles “any employee receiving less than the legal minimum wage . . . to recover in a
10 civil action the unpaid balance of the full amount of this minimum wage.” Likewise, the Applicable
11 Wage Orders also obligate employers to pay each employee minimum wages for all hours worked.
12 (Cal. Code of Regs., tit. 8, §§ 11040, 11050.) Labor Code section 1198 makes unlawful the employment
13 of an employee under conditions that the IWC Wage Orders prohibit.
14 23. These minimum wage standards apply to each hour that employees work. Therefore, an
15 employer’s failure to pay for any particular time worked by an employee is unlawful, even if averaging
16 an employee’s total pay over all hours worked, paid or not, results in an average hourly wage above
17 minimum wage. (Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, 324.)
18 24. Here, Defendants failed to fully conform their pay practices to the requirements of the
19 law during the relevant statutory periods. The Class Members were not compensated for all hours
20 worked including, but not limited to, all hours they were subject to the control of Defendants and/or
21 suffered or permitted to work under the California Labor Code and the Applicable Wage Orders.
22 25. Labor Code sections 1194, subdivision (a), and 1194.2, subdivision (a), provide that an
23 employer who has failed to pay its employees the legal minimum wage is liable to pay those employees
24 the unpaid balance of the unpaid wages as well as liquidated damages in an amount equal to the wages
25 due and interest thereon.
26 26. When employees, such as the Class Members, are not paid for all hours worked under
27 Labor Code section 1194, they are entitled to recover minimum wages for the time which they received
28 no compensation. (See Sillah v. Command International Security Services (N.D. Cal. 2015) 154
29
7
30 CLASS ACTION COMPLAINT
1 F.Supp.3d 891 [employees suing for failure to pay overtime could recover liquidated damages under
2 Labor Code section 1194.2 if they also showed they were paid less than minimum wage].)
3 27. Labor Code section 1197.1 authorizes employees who are paid less than the minimum
4 wage fixed by an applicable state or local law, or by an order of the IWC, a civil penalty, among other
5 damages, as follows:
6 (1) “For any initial violation that is intentionally committed, one hundred
7 dollars ($100) for each underpaid employee for each pay period for
8 which the employee is underpaid.”
9 (2) “For each subsequent violation for the same specific offense, two
10 hundred fifty dollars ($250) for each underpaid employee for each pay
11 period for which the employee is underpaid regardless of whether the
12 initial violation is intentionally committed.” (Lab. Code, § 1197.1, subd.
13 (a).)
14 28. As set forth above, Defendants failed to fully compensate the Class Members for all
15 minimum wages. Accordingly, the Class Members are entitled to recover liquidated damages for
16 violations of Labor Code section 1197.1.
17 29. Based upon these same factual allegations, the Class Members are likewise entitled to
18 penalties under Labor Code sections 1199.
19 B. OVERTIME VIOLATIONS
20 30. Labor Code section 510 requires employers to compensate employees who work more
21 than eight hours in one workday, forty hours in a workweek, and for the first eight hours worked on
22 the seventh consecutive day no less than one and one-half times the regular rate of pay for an employee.
23 (Lab. Code, § 510, subd. (a).) Further, Labor Code section 510 obligates employers to compensate
24 employees at no less than twice the regular rate of pay when an employee works more than twelve
25 hours in a day or more than eight hours on the seventh consecutive day of work. (Lab. Code, § 510,
26 subd. (a).) These rules are also reflected in the Applicable Wage Orders.
27 31. In accordance with Labor Code section 1194 and the Applicable Wage Orders, the Class
28 Members could not then agree and cannot now agree to work for a lesser wage than the amount
29
8
30 CLASS ACTION COMPLAINT
1 provided by Labor Code sections 510 or the Applicable Wage Orders.
2 32. Here, Defendants violated their duty to accurately and completely compensate the Class
3 Members for all overtime worked. The Class Members periodically worked hours that entitled them to
4 overtime compensation under the law but were not fully compensated for those hours.
5 33. Moreover, during the relevant statutory periods, Defendants had a policy and practice
6 of failing to pay overtime wages at the proper rate when it actually paid overtime. Specifically, when
7 Defendants paid overtime wages to the Class Members, Defendants failed to include all compensation
8 when calculating the regular rate of pay used in overtime calculations and when paying overtime.
9 34. For instance, the Class Members would often receive, along with their hourly rates of
10 pay for their working hours, additional renumeration and/or non-discretionary bonus pay. Defendants,
11 however, calculated the regular rate of pay for the Class Members without factoring into the regular
12 rate of pay all other non-hourly pay earnings received during the pay period. As a result, the Class
13 Members were underpaid overtime wages when they worked in excess of eight hours in any workday
14 and/or forty hours in a workweek when such additional forms of renumeration were earned. By its
15 practice of periodically requiring the Class Members to work in excess of eight hours in a workday
16 and/or forty hours in a workweek without compensating them at the rate of one and one-half (1½) their
17 regular rate of pay, Defendants willfully violated the provisions of Labor Code sections 510, 1194, and
18 1199.
19 35. These actions were and are in clear violation of California’s overtime laws as set forth
20 in Labor Code sections 510, 1194, 1199, and the Applicable Wage Orders. (Cal. Code of Regs., tit. 8,
21 §§ 11040, 11050.) As a result of Defendants’ faulty policies and practices, the Class Members were
22 not compensated for all hours worked or paid accurate overtime compensation.
23 C. REST BREAK VIOLATIONS
24 36. Pursuant to Labor Code section 226.7 and the Applicable Wage Orders, Defendants
25 were and are required to provide the Class Members with compensated, duty-free rest periods of not
26 less than ten minutes for every major fraction of four hours worked. Under the Applicable Wage
27 Orders, an employer must authorize and permit all employees to take ten minute duty free rest periods
28 for every major fraction of four hours worked. (Cal. Code of Regs., tit. 8, §§ 11040, 11050.)
29
9
30 CLASS ACTION COMPLAINT
1 37. Likewise, Labor Code section 226.7 provides that “[a]n employer shall not require an
2 employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute,
3 or applicable regulation, standard, or order of the Industrial Welfare Commission . . . .” (Lab. Code, §
4 226.7, subd. (b).) Labor Code section 226.7 also provides that employers must pay their employees one
5 additional hour of pay at the employee’s regular rate for each workday that a “meal or rest or recovery
6 period is not provided.” (Lab. Code, § 226.7, subd. (c).) The “regular rate” for these purposes must
7 factor in all nondiscretionary payments for work performed by the employee, including non-
8 discretionary bonuses, commissions, and other forms of wage payments exceeding the employees’ base
9 hourly rate. (Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858, 878.) Thus, the Wage
10 Orders set when and for how long the rest period must take place and the Labor Code establishes that
11 violations of the IWC Wage Orders are unlawful and sets forth the premium pay employer must pay
12 their employees when employers fail to provide rest periods.
13 38. The California Supreme Court has held that, during required rest periods, “employers
14 must relieve their employees of all duties and relinquish any control over how employees spend their
15 break time.” (Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 260.) Relinquishing
16 control over employees during rest periods requires that employees be “free to leave the employer’s
17 premises” and be “permitted to attend to personal business.” (Id. at p. 275.) The Brinker Court
18 explained in the context of rest breaks that employer liability attaches from adopting an unlawful
19 policy:
20 “An employer is required to authorize and permit the amount of rest break time
21 called for under the wage order for its industry. If it does not—if, for example,
22 it adopts a uniform policy authorizing and permitting only one rest break for
23 employees working a seven-hour shift when two are required—it has violated
24 the wage order and is liable.” (Brinker Rest. Corp. v. Superior Court (2012) 53
25 Cal.4th 1004, 1033.)
26 39. Here, Defendants periodically did not permit the Class Members to take compliant duty-
27 free rest breaks, free from Defendants’ control as required by Labor Code section 226.7, the Applicable
28 Wage Orders, and applicable precedent. (See Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th
29
10
30 CLASS ACTION COMPLAINT
1 257, 269 [concluding that “during rest periods employers must relieve employees of all duties and
2 relinquish control over how employees spend their time.”].) At all relevant times, the Class Members
3 were periodically not provided with legally-compliant and timely rest periods of at least ten minutes
4 for each four hour work period, or major fraction thereof due to Defendants’ unlawful rest period
5 policies/practices. The Class Members were often expected and required to continue working through
6 rest periods to meet the expectations Defendants and finish the workday. In some cases when the Class
7 Members worked more than ten hours in a shift, Defendants failed to authorize and/or permit a third
8 mandated rest period. As a result, the Class Members were periodically unable to take compliant rest
9 periods.
10 40. In such cases where Defendants did not offer the Class Members the opportunity to
11 receive a compliant off-duty rest period, “the court may not conclude employees voluntarily chose to
12 skip those breaks.” (Alberts v. Aurora Behavioral Health Care (2015) 241 Cal.App.4th 388, 410 (2015)
13 [“If an employer fails to provide legally compliant meal or rest breaks, the court may not conclude
14 employees voluntarily chose to skip those breaks.”]; Brinker Rest. Corp. v. Superior Court, supra, 53
15 Cal.4th at p. 1033 [“No issue of waiver ever arises for a rest break that was required by law but never
16 authorized; if a break is not authorized, an employee has no opportunity to decline to take it.”].)
17 41. In addition to failing to authorize and permit compliant rest periods, the Class Members
18 were not compensated with one hour’s worth of pay at their regular rate of compensation when they
19 were not provided with a compliant rest period in accordance with Labor Code section 226.7,
20 subdivision (c). Thus, Defendants have violated Labor Code section 226.7 and the Applicable Wage
21 Orders.
22 42. Based on the foregoing, Plaintiffs seek to recover, on behalf of themselves and other
23 non-exempt employees, rest period premiums and penalties.
24 D. MEAL BREAK VIOLATIONS
25 43. Labor Code section 512 and the Applicable Wage Orders require employers to provide
26 employees with a thirty-minute uninterrupted and duty-free meal period within the first five hours of
27 work. (Lab. Code, § 512, subd. (a) [“An employer shall not employ an employee for a work period of
28 more than five hours per day without providing the employee with a meal period of not less than 30
29
11
30 CLASS ACTION COMPLAINT
1 minutes . . . .”]; Cal. Code of Regs., tit. 8, §§ 11040, 11050 [“No employer shall employ any person
2 for a work period of more than five (5) hours without a meal period of not less than 30 minutes . . . .”].)
3 Additionally, an employee who works more than ten hours per day is entitled to receive a second thirty-
4 minute uninterrupted and duty-free meal period. (Lab. Code, § 512, subd. (a) [“An employer shall not
5 employ an employee for a work period of more than 10 hours per day without providing the employee
6 with a second meal period of not less than 30 minutes . . . .”].)
7 44. “An on-duty meal period is permitted only when the nature of the work prevents an
8 employee from being relieved of all duty and the parties agree in writing to an on-duty paid meal
9 break.” (Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, 932.) The written agreement must
10 include a provision allowing the employee to revoke it at any time. (Ibid.) Generally, the California
11 Department of Industrial Relations, Division of Labor Standards Enforcement (“DLSE”) and courts
12 have “found that the nature of the work exception applies: (1) where the work has some particular
13 external force that requires the employee to be on duty at all times, and (2) where the employee is the
14 sole employee of a particular employer.” (Id. at p. 945, internal quotation marks omitted; Abdullah v.
15 U.S. Security Associates, Inc. (9th Cir. 2013) 731 F.3d 952, 958–959.) “[I]t is the employer’s obligation
16 to determine whether the nature of the work prevents an employee from being relieved before requiring
17 an employee to take an on-duty meal period.” (Lubin v. The Wackenhut Corp., supra, 5 Cal.App.5th at
18 p. 946.)
19 45. Here, the Class Members were never asked to sign any enforceable document agreeing
20 to an on-duty meal period. Moreover, nothing in the nature of their work involved the kind of “external
21 force” that might justify on-duty meal breaks. (Lubin v. The Wackenhut Corp., supra, 5 Cal.App.5th at
22 p. 945.) Nevertheless, Defendants periodically did not provide compliant off-duty meal periods within
23 the first five hours of work for the Class Members.
24 46. As with rest breaks, meal breaks must be duty-free. (Brinker Restaurant Corp. v.
25 Superior Court (2012) 53 Cal.4th 1004, 1035 [“The IWC’s wage orders have long made a meal period’s
26 duty-free nature its defining characteristic.”].) Relinquishing control over employees during meal
27 periods requires that employees be “free to leave the employer’s premises” and be “permitted to attend
28 to personal business.” (Augustus v. ABM Security Services, Inc., supra, 2 Cal.5th at p. 275.) Under
29
12
30 CLASS ACTION COMPLAINT
1 Labor Code section 512, if an employer maintains a uniform policy that does not authorize and permit
2 the amount of meal time called for under the law (as specified in the Labor Code and/or applicable
3 IWC Wage Order), “it has violated the wage order and is liable.” (Brinker Restaurant Corp. v. Superior
4 Court, supra, 53 Cal.4th at p. 1033.)
5 47. During the applicable statutory periods here, the Class Members were periodically
6 denied legally-compliant and timely off-duty meal periods of at least thirty minutes due to Defendants’
7 unlawful meal period policy and practices. As a result of Defendants’ uniform meal period policies and
8 practices, the Class Members were often not permitted to take compliant first meal periods before the
9 end of the fifth hour of work. The Class Members were also periodically not permitted to take second
10 meal periods for shifts in excess of ten hours. Defendants thus violated Labor Code section 512 and
11 the Applicable Wage Orders by failing to advise, authorize, or permit the Class Members to receive
12 thirty-minute, off-duty meal periods within the first five hours of their shifts.
13 48. Labor Code section 226.7 provides that “[a]n employer shall not require an employee
14 to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or
15 applicable regulation, standard, or order of the Industrial Welfare Commission.” (Lab. Code, § 226.7,
16 subd. (b).) Labor Code section 226.7, subdivision (c), and the Applicable Wage Orders further obligate
17 employers to pay employees one additional hour of pay at the employee’s regular rate of compensation
18 for each workday that the meal period is not provided. (Lab. Code, § 226.7, subd. (c); Cal. Code of
19 Regs., tit. 8, §§ 11040, 11050 [“If an employer fails to provide an employee a meal period in accordance
20 with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay
21 at the employee’s regular rate of compensation for each workday that the meal period is not
22 provided.”].) The “regular rate” for these purposes must factor in all nondiscretionary payments for
23 work performed by the employee, including non-discretionary bonuses, commissions, and other forms
24 of wage payments exceeding the employees’ base hourly rate. (Ferra v. Loews Hollywood Hotel, LLC
25 (2021) 11 Cal.5th 858, 878.)
26 49. Accordingly, for each day that the Class Members did not receive compliant meal
27 periods, they were and are entitled to receive meal period premiums pursuant to Labor Code section
28 226.7 and the Applicable Wage Orders. Defendants, however, failed to pay the Class Members
29
13
30 CLASS ACTION COMPLAINT
1 applicable meal period premiums for many workdays that the employees did not receive a compliant
2 meal period. Thus, Defendants have violated Labor Code section 226.7 and the Applicable Wage
3 Orders.
4 50. Based on the foregoing, Plaintiffs seek to recover, on behalf of themselves and other
5 non-exempt employees, meal period premiums and penalties.
6 E. UNTIMELY WAGES DURING EMPLOYMENT
7 51. Labor Code section 204 expressly requires employers who pay employees on a weekly,
8 biweekly, or semimonthly basis to pay all wages “not more than seven calendar days following the
9 close of the payroll period.” Labor Code section 210, subdivision (a), makes employers who violate
10 Labor Code section 204 subject to a penalty of:
11 “(1) For any initial violation, one hundred dollars ($100) for each failure to
12 pay each employee.
13 “(2) For each subsequent violation, or any willful or intentional violation, two
14 hundred dollars ($200) for each failure to pay each employee, plus 25
15 percent of the amount unlawfully withheld.” (Lab. Code, § 210, subd.
16 (a).)
17 52. Notably, the penalty provided by Labor Code section 210 is “[i]n addition to, and
18 entirely independent and apart from, any other penalty provided in this article . . . .” (Lab. Code, § 210,
19 subd. (a).)
20 53. Due to Defendants’ failure to pay the Class Members the wages described above, along
21 with rest and meal break premiums, Defendants failed to timely pay the Class Members within seven
22 calendar days following the close of payroll in accordance with Labor Code section 204 on a regular
23 and consistent basis. (See Parson v. Golden State FC, LLC (N.D. Cal., May 2, 2016, No. 16-CV-00405-
24 JST) 2016 WL 1734010, at p. *3–5, 2016 U.S. Dist. LEXIS 58299 [finding that a failure to pay rest
25 period premiums can support claims under Labor Code sections 203 and 204].)
26 F. UNTIMELY WAGES AT SEPARATION
27 54. Labor Code section 203 provides “if an employer willfully fails to pay . . . any wages
28 of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty”
29
14
30 CLASS ACTION COMPLAINT
1 for up to thirty days. (Lab. Code § 203; Mamika v. Barca (1998) 68 Cal.App.4th 487, 492.) As a result
2 of Defendants’ failure to pay the Class Members for the wages described above, along with rest and
3 meal break premiums, Defendants violated and continue to violate Labor Code section 203.
4 55. Due to Defendants’ faulty pay policies, those Class Members whose employment with
5 Defendants concluded were not compensated for each and every hour worked at the appropriate rate.
6 Defendants have failed to pay formerly-employed Class Members whose sums were certain at the time
7 of termination within at least seventy-two hours of their resignation and have failed to pay those sums
8 for thirty days thereafter.
9 G. WAGE STATEMENT VIOLATIONS
10 56. Defendants also failed to provide accurate itemized wage statements in accordance with
11 Labor Code sections 226, subdivisions (a)(1), (2), (5), and (9). Labor Code section 226, subdivision
12 (a), obligates employers, semi-monthly or at the time of each payment to furnish an itemized wage
13 statement in writing showing:
14 (1) The gross wages earned;
15 (2) The total hours worked by the employee;
16 (3) The number of piece-rate units earned and any applicable piece rate if
17 the employee is paid on a piece rate basis;
18 (4) All deductions, provided that all deductions made on written orders of
19 the employee may be aggregated and shown as one item;
20 (5) The net wages earned;
21 (6) The inclusive dates of the period for which the employee is paid;
22 (7) The name of the employee and only the last four digits of his or her social
23 security number or an employee identification number other than a social
24 security number;
25 (8) The name and address of the legal entity that is the employer; and
26 (9) All applicable hourly rates in effect during the pay period and the
27 corresponding number of hours worked at each hourly rate by the
28 employee.
29
15
30 CLASS ACTION COMPLAINT
1 57. Due to Defendants’ failure to pay the Class Members properly as described above, the
2 wage statements issued do not indicate the correct amount of gross wages earned, total hours worked,
3 or the net wages earned, or the applicable hourly rates in effect during the pay period and the
4 corresponding number of hours worked at each hourly rate. Thus, Defendants have violated Labor
5 Code section 226, subdivisions (a)(1), (2), (5), and (9).
6 58. Defendants also failed to include the accrued sick hours on the wage statements
7 provided to the Class Members as required by Labor Code section 246, subdivision (i).
8 59. In addition to Labor Code section 226, subdivision (a), Defendants also knowingly and
9 intentionally failed to provide the Class Members with accurate itemized wage statements in violation
10 of Labor Code section 226, subdivision (e). Defendants knew that they were not providing the Class
11 Members with wage statements required by California law but nevertheless failed to correct their
12 unlawful practices and policies. (See Garnett v. ADT LLC (E.D. Cal. 2015) 139 F.Supp.3d 1121, 1134
13 [finding the defendant knowingly and intentionally violated Labor Code section 226 because the
14 “[d]efendant knew that it was not providing total hours worked to plaintiff or other employees paid on
15 commission” even though it believed that employees paid solely on commission or commission and
16 salary “are exempt and therefore we do not record hours on a wage statement.”].)
17 H. RECORDKEEPING VIOLATIONS
18 60. Labor Code section 226, subdivision (a), requires employers to keep an accurate record
19 of, among other things, all hours worked by employees. Labor Code section 226.3 provides, in pertinent
20 part, as follows:
21 “Any employer who violates subdivision (a) of Section 226 shall be subject to a
22 civil penalty in the amount of two hundred fifty dollars ($250) per employee per
23 violation in an initial citation and one thousand dollars ($1,000) per employee
24 for each violation in a subsequent citation, for which the employer fails to
25 provide the employee a wage deduction statement or fails to keep the records
26 required in subdivision (a) of Section 226. The civil penalties provided for in
27 this section are in addition to any other penalty provided by law.” (Lab. Code, §
28 226.3, emphasis added.)
29
16
30 CLASS ACTION COMPLAINT
1 61. Likewise, Labor Code section 1174, subdivision (d), requires every employer, including
2 Defendants, to:
3 “Keep, at a central location in the state or at the plants or establishments at which
4 employees are employed, payroll records showing the hours worked daily by
5 and the wages paid to, and the number of piece-rate units earned by and any
6 applicable piece rate paid to, employees employed at the respective plants or
7 establishments. These records shall be kept in accordance with rules established
8 for this purpose by the commission, but in any case shall be kept on file for not
9 less than three years. An employer shall not prohibit an employee from
10 maintaining a personal record of hours worked, or, if paid on a piece-rate basis,
11 piece-rate units earned.” (Lab. Code, § 1174, subd. (d), emphasis added.)
12 62. As explained in detail above, Defendants failed to provide the Class Members with
13 accurate itemized wage statements. Defendants did so, in part, because they failed to accurately track
14 hours worked by the Class Members. Defendants have thus failed to keep accurate records of the “total
15 hours worked by the employee[s]” in violation of Labor Code section 226, subdivision (a), and are
16 therefore subject to the penalties provided by Labor Code section 226.3. These penalties are “in
17 addition to any other penalty provided by law.” (Lab. Code, § 226.3.)
18 63. The failure to accurately track hours worked also resulted in a failure of Defendants to
19 keep a record of all “payroll records showing the hours worked daily by” Defendants’ employees,
20 including Plaintiffs and the other Class Members, in violation of Labor Code section 1174, subdivision
21 (d).
22 I. SICK PAY VIOLATIONS
23 64. Labor Code section 246 provides that every employee who works in California for the
24 same employer for 30 or more days within a year from the commencement of employment is entitled
25 to paid sick days. (Lab. Code, § 246, subd. (a).) These paid sick days generally accrue at a rate of not
26 less than one hour per every 30 hours worked, and must be paid out using the employees’ regular rate
27 of pay. (Lab. Code, § 246, subds. (b), (l).) The “regular rate of pay” for these purposes must factor in
28 all nondiscretionary payments for work performed by the employee, including non-discretionary
29
17
30 CLASS ACTION COMPLAINT
1 bonuses, commissions, and other forms of wage payments exceeding the employees’ base hourly rate.
2 (Lab. Code, § 246, subds. (l)(1), (2); see, e.g., Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th
3 858, 878.)
4 65. Here, Defendants employed the Class Members for 30 or more days within a year from
5 the commencement of employment. Defendants nevertheless failed to fully pay the Class Members for
6 all sick pay that was lawfully earned and accrued.
7 66. By failing to fully pay accrued sick time, Defendants have underpaid the Class Members
8 and have violated California Labor Code provisions including, but not limited to, section 246.
9 V. CLASS ACTION ALLEGATIONS
10 67. As mentioned above, Plaintiffs bring this action on behalf of themselves and the Class
11 Members pursuant to section 382 of the Code of Civil Procedure.
12 68. Numerosity/Ascertainability: The Class Members are so numerous that joinder of all
13 members would be unfeasible and not practicable. The membership of the class is unknown to Plaintiffs
14 at this time; however, it is estimated that the number of Class Members is greater than 100 individuals.
15 The identity of such membership is readily ascertainable via inspection of Defendants’ employment
16 records.
17 69. Common Questions of Law and Fact Predominate/Well Defined Community of
18 Interest: There are common questions of law and fact as to Plaintiffs and all other similarly situated
19 non-exempt employees, which predominate over questions affecting only individual members
20 including, without limitation to:
21 A. Whether Defendants’ pay policies/practices resulted in a failure to pay the Class
22 Members for all hours worked, including all minimum wages;
23 B. Whether Defendants’ pay policies/practices resulted in a failure to pay the Class
24 Members for all required overtime wages at the Class Members’ regular rate of pay;
25 C. Whether Defendants’ rest period policies and practices afforded legally
26 compliant rest periods or compensation in lieu thereof;
27 D. Whether Defendants’ meal period policies and practices afforded legally
28 compliant meal periods or compensation in lieu thereof;
29
18
30 CLASS ACTION COMPLAINT
1 E. Whether Defendants maintained accurate employment records;
2 F. Whether Defendants timely paid all wages during employment;
3 G. Whether Defendants timely paid all wages earned and unpaid at separation;
4 H. Whether Defendants furnished legally-compliant wage statements to the Class
5 Members pursuant to Labor Code section 226;
6 I. Whether Defendants fully paid all sick pay wages as required by Labor Code
7 section 246; and
8 J. Whether Defendants’ violations of the Labor Code and the Applicable Wage
9 Orders amounted to a violation of California’s UCL.
10 70. Predominance of Common Questions: Common questions of law and fact
11 predominate over questions that affect only individual Class Members. The common questions of law
12 set forth above are numerous and substantial and stem from Defendants’ uniform policies and practices
13 applicable to each individual class member, such as Defendants’ uniform policy and practice of failing
14 to pay for all hours worked, Defendants’ uniform policies and practices which failed to provide
15 compliant rest periods, Defendants’ uniform policies and practices which failed to provide compliant
16 meal periods, Defendants’ failure to provide accurate itemized wage statements, Defendants’ uniform
17 policies and practices which failed to provide complete and accurate sick pay, and others. As such, the
18 common questions predominate over individual questions concerning each individual class member’s
19 showing as to his or her eligibility for recovery or as to the amount of his or her damages.
20 71. Typicality: The claims of Plaintiffs are typical of the claims of the Class Members
21 because Plaintiffs were employed by Defendants as non-exempt employees in California during the
22 statute(s) of limitation applicable to each cause of action pleaded in this complaint. As alleged herein,
23 Plaintiffs, like the other Class Members, were deprived of minimum, regular, and overtime wages
24 because of Defendants’ unlawful timekeeping policies and practices, were deprived of rest periods and
25 premium wages in lieu thereof, were deprived of meal periods and premium wages in lieu thereof, were
26 subject to Defendants’ uniform rest period policies and practices, were subject to Defendants’ uniform
27 meal period policies and practices, were not provided accurate itemized wage statements, were not paid
28 all wages in full and on time, were not paid all sick pay wages as required by law, and were subject to
29
19
30 CLASS ACTION COMPLAINT
1 other similar policies and practices to which the Class Members were subject.
2 72. Adequacy of Representation: Plaintiffs are fully prepared to take all necessary steps
3 to represent fairly and adequately the interests of the Class Members. Moreover, Plaintiffs’ attorneys
4 are ready, willing, and able to fully and adequately represent the Class Members and Plaintiffs.
5 Plaintiffs’ attorneys have prosecuted numerous wage-and-hour class actions in state and federal court
6 in the past and are committed to vigorously prosecuting this action on behalf of the Class Members.
7 73. Superiority: The California Labor Code is broadly remedial in nature and serves an
8 important public interest in establishing minimum working conditions and standards in California.
9 These laws and labor standards protect the average working employee from exploitation by employers
10 who have the responsibility to follow the laws and who may seek to take advantage of superior
11 economic and bargaining power in setting onerous terms and conditions of employment. The nature of
12 this action and the format of laws available to Pl
Preview
1 MELMED LAW GROUP P.C. Jonathan Melmed (SBN 290218) 2 jm@melmedlaw.com Laura Supanich (SBN 314805) 3 lms@melmedlaw.com Maria Burciaga (SBN 334545) 4 mb@melmedlaw.com 1801 Century Park East, Suite 850 5 Los Angeles, California 90067 Phone: (310) 824-3828 6 Fax: (310) 862-6851 7 Attorneys for Plaintiffs and the Putative Class 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF KERN 10 DIANA MORFIN and GABRIELA GARCIA, Case Number: individuals on behalf of themselves and all 11 Class Action Complaint For: others similarly situated, 12 1. Failure to Pay All Minimum Wages, Plaintiffs, 13 2. Failure to Pay All Overtime Wages, 14 v. 3. Failure to Provide Rest Periods and Pay 15 DELANO DISTRICT SKILLED NURSING Missed Rest Period Premiums, 16 FACILITY, a business of unknown formation; 4. Failure to Provide Meal Periods and Pay and DOES 1 TO 50, 17 Missed Meal Period Premiums, 18 Defendants. 5. Failure to Maintain Accurate Employment Records, 19 6. Failure to Pay Wages Timely during 20 Employment, 21 7. Failure to Pay All Wages Earned and 22 Unpaid at Separation, 23 8. Failure to Furnish Accurate Itemized Wage 24 Statements, 25 9. Failure to Pay Sick Leave, and 26 10. Violations of California’s Unfair Competition Law (Bus. & Prof. Code, §§ 27 17200–17210). 28 29 1 30 CLASS ACTION COMPLAINT 1 Demand for Jury Trial 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 2 30 CLASS ACTION COMPLAINT 1 Plaintiffs Diana Morfin and Gabriela Garcia (collectively “Plaintiffs”), on behalf of themselves 2 and all other similarly situated employees within the State of California, complain and allege of 3 defendants Delano District Skilled Nursing Facility and Does 1 to 50 (collectively, “Defendants”), and 4 each of them, as follows: 5 I. INTRODUCTION 6 1. This is a class action complaint brought pursuant to California Code of Civil Procedure 7 section 382. 8 2. The “Class Period” as used herein, is defined as the period from four years prior to the 9 filing of this action and continuing into the present and ongoing. Defendants’ violations of California’s 10 laws as described more fully below have been ongoing throughout the Class Period and are still 11 ongoing. 12 3. Plaintiffs bring this class action on behalf of themselves and the following class: All 13 individuals who are or were employed by Defendants as non-exempt employees in California during 14 the Class Period (the “Class Members”). (Code Civ. Proc., § 382.) 15 4. Plaintiffs bring this action on behalf of themselves and the Class Members, as a class 16 action, against Defendants for: 17 A. Failure to pay all minimum wages, 18 B. Failure to pay all overtime wages, 19 C. Failure to provide rest periods and pay missed rest period premiums, 20 D. Failure to provide meal periods and pay missed meal period premiums, 21 E. Failure to maintain accurate employment records, 22 F. Failure to pay wages timely during employment, 23 G. Failure to pay all wages earned and unpaid at separation, 24 H. Failure to furnish accurate itemized wage statements, 25 I. Failure to fully pay all sick leave wages, and 26 J. Violations of California’s Unfair Competition Law (“UCL”) (Bus. & Prof. 27 Code, §§ 17200–17210). 28 29 3 30 CLASS ACTION COMPLAINT 1 5. Plaintiffs are informed and believe and thereon allege that the California Industrial 2 Welfare Commission (“IWC”) Wage Orders applicable to the facts of this case are IWC Wage Orders 3 4-2001 and/or 5-2001 (the “Applicable Wage Orders”) and possibly others that may be applicable. 4 (Cal. Code of Regs., tit. 8, §§ 11040, 11050.) Plaintiffs reserve the right to amend or modify the 5 definition of “Applicable Wage Orders” with greater specificity or add additional IWC Wage Orders 6 if additional applicable wage orders are discovered in litigation. 7 II. JURISDICTION & VENUE 8 6. This Court has subject matter jurisdiction over all causes of action asserted herein 9 pursuant to Article VI, section 10, of the California Constitution and Code of Civil Procedure section 10 410.10 because this is a civil action in which the matter in controversy, exclusive of interest, exceeds 11 $25,000, and because each cause of action asserted arises under the laws of the State of California or 12 is subject to adjudication in the courts of the State of California. 13 7. This Court has personal jurisdiction over Defendants because Defendants have caused 14 injuries in the County of Kern and the State of California through their acts, and by their violation of 15 the California Labor Code and California state common law. Defendants transact millions of dollars of 16 business within the State of California. Defendants own, maintain offices, transact business, have an 17 agent or agents within the County of Kern, and/or otherwise are found within the County of Kern, and 18 Defendants are within the jurisdiction of this Court for purposes of service of process. 19 8. Venue as to Defendants is proper in this judicial district, pursuant to section 395 of the 20 Code of Civil Procedure. Defendants operate within California and do business within Kern County, 21 California. The unlawful acts alleged herein have a direct effect on Plaintiffs and all of Defendants’ 22 employees identified above within Kern County and surrounding counties where Defendants may 23 remotely operate. 24 9. This matter is not appropriate for removal under the Class Action Fairness Act (28 25 U.S.C. § 1332) as the amount in controversy for Plaintiffs’ and the Class Members’ claims, in 26 aggregate, is less than $5 million. Additionally, all the allegations herein occurred in the State of 27 California. As such, even if the amount in controversy did exceed $5 million this matter would still not 28 be appropriate for removal under the “local controversy” exception to the Class Action Fairness Act. 29 4 30 CLASS ACTION COMPLAINT 1 (28 U.S.C. § 1332, subd. (d)(4)(A).) 2 III. THE PARTIES 3 A. PLAINTIFF 4 10. At all relevant times, Plaintiffs, who are over the age of 18, were and currently are 5 citizens of California residing in the State of California. Defendants employed Plaintiffs as non-exempt 6 hourly employees in the County of Kern. 7 11. Plaintiffs bring this action on behalf of themselves and the following class pursuant to 8 section 382 of the Code of Civil Procedure as follows: All individuals who are or were employed by 9 Defendants as non-exempt employees in California during the Class Period (the “Class Members”). 10 12. The Class Members, at all times pertinent hereto, are or were employees of Defendants 11 during the relevant statutory period. 12 B. DEFENDANTS 13 13. Plaintiffs are informed and believe and thereon allege that Defendants were authorized 14 to and doing business in Kern County and is and/or was the legal employer of Plaintiffs and the other 15 Class Members during the applicable statutory periods. Plaintiffs and the other Class Members were, 16 and are, subject to Defendants’ policies and/or practices complained of herein and have been deprived 17 of the rights guaranteed to them by: California Labor Code sections 201, 202, 203, 204, 210, 226, 18 226.3, 226.7, 246, 256, 510, 512, 1174, 1185, 1194, 1194.2, 1197, 1197.1, 1198, 1198.5, 1199, and 19 others that may be applicable; California Business and Professions Code sections 17200 through 17210 20 (“UCL”); and the Applicable Wage Orders (Cal. Code of Regs., tit. 8, §§ 11040, 11050). 21 14. Plaintiffs are informed and believe, and based thereon allege, that during the Class 22 Period, Defendants did (and continue to do) business in the State of California, County of Kern. 23 Defendants’ operations are headquartered in Kern County. 24 15. Plaintiffs do not know the true names or capacities, whether individual, partner, or 25 corporate, of the defendants sued herein as Does 1 to 50, inclusive, and for that reason, said defendants 26 are sued under such fictitious names, and Plaintiffs will seek leave from this Court to amend this 27 complaint when such true names and capacities are discovered. Plaintiffs are informed, and believe, 28 and thereon allege, that each of said fictitious defendants, whether individual, partners, or corporate, 29 5 30 CLASS ACTION COMPLAINT 1 were responsible in some manner for the acts and omissions alleged herein, and proximately caused 2 Plaintiffs and the other Class Members to be subject to the unlawful employment practices, wrongs, 3 injuries, and damages complained of herein. 4 16. Plaintiffs are informed, and believe, and thereon allege, that at all times mentioned 5 herein, Defendants were and/or are the employers of Plaintiffs and the other Class Members. At all 6 times herein mentioned, each of said Defendants participated in the doing of the acts hereinafter alleged 7 to have been done by the named Defendants. Furthermore, the Defendants, and each of them, were the 8 agents, representatives, and employees of each and every one of the other Defendants, and at all times 9 herein mentioned were acting within the course and scope of said agency, representation, and 10 employment. Defendants, and each of them, approved of, condoned, or otherwise ratified every one of 11 the acts or omissions complained of herein. 12 17. Plaintiffs are further informed, and believe, and thereon allege, that at all times 13 mentioned herein, that Defendants, and each of them, are the alter egos of one another and that there 14 existed and now exists a unity of interest and ownership between them such that the individuality and 15 separateness of each of them has ceased. Plaintiffs are further informed, and believe, and thereon allege, 16 that at all times mentioned herein, that Defendants, and each of them, have been and now are mere 17 shells and naked frameworks that their principal uses for the conduct of that Defendant’s own business, 18 property, and affairs, for which Defendants, and each of them, have concealed and misrepresented their 19 identities as the entities responsible for their ownership, management, and financial interests. 20 18. Plaintiffs are further informed, and believe, and thereon allege, that at all times 21 mentioned herein, Defendants, and each of them, were members of and engaged in a joint venture, 22 partnership, and common enterprise, and acting within the course and scope of and in pursuance of said 23 joint venture, partnership, and common enterprise. Further, Plaintiffs are informed, and believe, and 24 thereon allege, that all Defendants were joint employers for all purposes of Plaintiffs and the other 25 Class Members. 26 IV. COMMON FACTS & ALLEGATIONS 27 19. Plaintiffs and the other Class Members (collectively, the “Class Members”) are, and 28 were at all relevant times, employed by the Defendants within the State of California. 29 6 30 CLASS ACTION COMPLAINT 1 20. The Class Members are, and were, at all relevant times, non-exempt employees for the 2 purposes of minimum wages, overtime, rest breaks, meal periods, and the other claims alleged in this 3 complaint. 4 21. Specifically, Plaintiffs were employed by Defendants within the statutory Class Period, 5 working as hourly, non-exempt certified nursing assistant for Defendants. 6 A. MINIMUM WAGE VIOLATIONS 7 22. Labor Code section 1197 requires employees to be paid at least the minimum wage fixed 8 by the IWC, and any payment of less than the minimum wage is unlawful. Similarly, Labor Code 9 section 1194 entitles “any employee receiving less than the legal minimum wage . . . to recover in a 10 civil action the unpaid balance of the full amount of this minimum wage.” Likewise, the Applicable 11 Wage Orders also obligate employers to pay each employee minimum wages for all hours worked. 12 (Cal. Code of Regs., tit. 8, §§ 11040, 11050.) Labor Code section 1198 makes unlawful the employment 13 of an employee under conditions that the IWC Wage Orders prohibit. 14 23. These minimum wage standards apply to each hour that employees work. Therefore, an 15 employer’s failure to pay for any particular time worked by an employee is unlawful, even if averaging 16 an employee’s total pay over all hours worked, paid or not, results in an average hourly wage above 17 minimum wage. (Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, 324.) 18 24. Here, Defendants failed to fully conform their pay practices to the requirements of the 19 law during the relevant statutory periods. The Class Members were not compensated for all hours 20 worked including, but not limited to, all hours they were subject to the control of Defendants and/or 21 suffered or permitted to work under the California Labor Code and the Applicable Wage Orders. 22 25. Labor Code sections 1194, subdivision (a), and 1194.2, subdivision (a), provide that an 23 employer who has failed to pay its employees the legal minimum wage is liable to pay those employees 24 the unpaid balance of the unpaid wages as well as liquidated damages in an amount equal to the wages 25 due and interest thereon. 26 26. When employees, such as the Class Members, are not paid for all hours worked under 27 Labor Code section 1194, they are entitled to recover minimum wages for the time which they received 28 no compensation. (See Sillah v. Command International Security Services (N.D. Cal. 2015) 154 29 7 30 CLASS ACTION COMPLAINT 1 F.Supp.3d 891 [employees suing for failure to pay overtime could recover liquidated damages under 2 Labor Code section 1194.2 if they also showed they were paid less than minimum wage].) 3 27. Labor Code section 1197.1 authorizes employees who are paid less than the minimum 4 wage fixed by an applicable state or local law, or by an order of the IWC, a civil penalty, among other 5 damages, as follows: 6 (1) “For any initial violation that is intentionally committed, one hundred 7 dollars ($100) for each underpaid employee for each pay period for 8 which the employee is underpaid.” 9 (2) “For each subsequent violation for the same specific offense, two 10 hundred fifty dollars ($250) for each underpaid employee for each pay 11 period for which the employee is underpaid regardless of whether the 12 initial violation is intentionally committed.” (Lab. Code, § 1197.1, subd. 13 (a).) 14 28. As set forth above, Defendants failed to fully compensate the Class Members for all 15 minimum wages. Accordingly, the Class Members are entitled to recover liquidated damages for 16 violations of Labor Code section 1197.1. 17 29. Based upon these same factual allegations, the Class Members are likewise entitled to 18 penalties under Labor Code sections 1199. 19 B. OVERTIME VIOLATIONS 20 30. Labor Code section 510 requires employers to compensate employees who work more 21 than eight hours in one workday, forty hours in a workweek, and for the first eight hours worked on 22 the seventh consecutive day no less than one and one-half times the regular rate of pay for an employee. 23 (Lab. Code, § 510, subd. (a).) Further, Labor Code section 510 obligates employers to compensate 24 employees at no less than twice the regular rate of pay when an employee works more than twelve 25 hours in a day or more than eight hours on the seventh consecutive day of work. (Lab. Code, § 510, 26 subd. (a).) These rules are also reflected in the Applicable Wage Orders. 27 31. In accordance with Labor Code section 1194 and the Applicable Wage Orders, the Class 28 Members could not then agree and cannot now agree to work for a lesser wage than the amount 29 8 30 CLASS ACTION COMPLAINT 1 provided by Labor Code sections 510 or the Applicable Wage Orders. 2 32. Here, Defendants violated their duty to accurately and completely compensate the Class 3 Members for all overtime worked. The Class Members periodically worked hours that entitled them to 4 overtime compensation under the law but were not fully compensated for those hours. 5 33. Moreover, during the relevant statutory periods, Defendants had a policy and practice 6 of failing to pay overtime wages at the proper rate when it actually paid overtime. Specifically, when 7 Defendants paid overtime wages to the Class Members, Defendants failed to include all compensation 8 when calculating the regular rate of pay used in overtime calculations and when paying overtime. 9 34. For instance, the Class Members would often receive, along with their hourly rates of 10 pay for their working hours, additional renumeration and/or non-discretionary bonus pay. Defendants, 11 however, calculated the regular rate of pay for the Class Members without factoring into the regular 12 rate of pay all other non-hourly pay earnings received during the pay period. As a result, the Class 13 Members were underpaid overtime wages when they worked in excess of eight hours in any workday 14 and/or forty hours in a workweek when such additional forms of renumeration were earned. By its 15 practice of periodically requiring the Class Members to work in excess of eight hours in a workday 16 and/or forty hours in a workweek without compensating them at the rate of one and one-half (1½) their 17 regular rate of pay, Defendants willfully violated the provisions of Labor Code sections 510, 1194, and 18 1199. 19 35. These actions were and are in clear violation of California’s overtime laws as set forth 20 in Labor Code sections 510, 1194, 1199, and the Applicable Wage Orders. (Cal. Code of Regs., tit. 8, 21 §§ 11040, 11050.) As a result of Defendants’ faulty policies and practices, the Class Members were 22 not compensated for all hours worked or paid accurate overtime compensation. 23 C. REST BREAK VIOLATIONS 24 36. Pursuant to Labor Code section 226.7 and the Applicable Wage Orders, Defendants 25 were and are required to provide the Class Members with compensated, duty-free rest periods of not 26 less than ten minutes for every major fraction of four hours worked. Under the Applicable Wage 27 Orders, an employer must authorize and permit all employees to take ten minute duty free rest periods 28 for every major fraction of four hours worked. (Cal. Code of Regs., tit. 8, §§ 11040, 11050.) 29 9 30 CLASS ACTION COMPLAINT 1 37. Likewise, Labor Code section 226.7 provides that “[a]n employer shall not require an 2 employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, 3 or applicable regulation, standard, or order of the Industrial Welfare Commission . . . .” (Lab. Code, § 4 226.7, subd. (b).) Labor Code section 226.7 also provides that employers must pay their employees one 5 additional hour of pay at the employee’s regular rate for each workday that a “meal or rest or recovery 6 period is not provided.” (Lab. Code, § 226.7, subd. (c).) The “regular rate” for these purposes must 7 factor in all nondiscretionary payments for work performed by the employee, including non- 8 discretionary bonuses, commissions, and other forms of wage payments exceeding the employees’ base 9 hourly rate. (Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858, 878.) Thus, the Wage 10 Orders set when and for how long the rest period must take place and the Labor Code establishes that 11 violations of the IWC Wage Orders are unlawful and sets forth the premium pay employer must pay 12 their employees when employers fail to provide rest periods. 13 38. The California Supreme Court has held that, during required rest periods, “employers 14 must relieve their employees of all duties and relinquish any control over how employees spend their 15 break time.” (Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 260.) Relinquishing 16 control over employees during rest periods requires that employees be “free to leave the employer’s 17 premises” and be “permitted to attend to personal business.” (Id. at p. 275.) The Brinker Court 18 explained in the context of rest breaks that employer liability attaches from adopting an unlawful 19 policy: 20 “An employer is required to authorize and permit the amount of rest break time 21 called for under the wage order for its industry. If it does not—if, for example, 22 it adopts a uniform policy authorizing and permitting only one rest break for 23 employees working a seven-hour shift when two are required—it has violated 24 the wage order and is liable.” (Brinker Rest. Corp. v. Superior Court (2012) 53 25 Cal.4th 1004, 1033.) 26 39. Here, Defendants periodically did not permit the Class Members to take compliant duty- 27 free rest breaks, free from Defendants’ control as required by Labor Code section 226.7, the Applicable 28 Wage Orders, and applicable precedent. (See Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 29 10 30 CLASS ACTION COMPLAINT 1 257, 269 [concluding that “during rest periods employers must relieve employees of all duties and 2 relinquish control over how employees spend their time.”].) At all relevant times, the Class Members 3 were periodically not provided with legally-compliant and timely rest periods of at least ten minutes 4 for each four hour work period, or major fraction thereof due to Defendants’ unlawful rest period 5 policies/practices. The Class Members were often expected and required to continue working through 6 rest periods to meet the expectations Defendants and finish the workday. In some cases when the Class 7 Members worked more than ten hours in a shift, Defendants failed to authorize and/or permit a third 8 mandated rest period. As a result, the Class Members were periodically unable to take compliant rest 9 periods. 10 40. In such cases where Defendants did not offer the Class Members the opportunity to 11 receive a compliant off-duty rest period, “the court may not conclude employees voluntarily chose to 12 skip those breaks.” (Alberts v. Aurora Behavioral Health Care (2015) 241 Cal.App.4th 388, 410 (2015) 13 [“If an employer fails to provide legally compliant meal or rest breaks, the court may not conclude 14 employees voluntarily chose to skip those breaks.”]; Brinker Rest. Corp. v. Superior Court, supra, 53 15 Cal.4th at p. 1033 [“No issue of waiver ever arises for a rest break that was required by law but never 16 authorized; if a break is not authorized, an employee has no opportunity to decline to take it.”].) 17 41. In addition to failing to authorize and permit compliant rest periods, the Class Members 18 were not compensated with one hour’s worth of pay at their regular rate of compensation when they 19 were not provided with a compliant rest period in accordance with Labor Code section 226.7, 20 subdivision (c). Thus, Defendants have violated Labor Code section 226.7 and the Applicable Wage 21 Orders. 22 42. Based on the foregoing, Plaintiffs seek to recover, on behalf of themselves and other 23 non-exempt employees, rest period premiums and penalties. 24 D. MEAL BREAK VIOLATIONS 25 43. Labor Code section 512 and the Applicable Wage Orders require employers to provide 26 employees with a thirty-minute uninterrupted and duty-free meal period within the first five hours of 27 work. (Lab. Code, § 512, subd. (a) [“An employer shall not employ an employee for a work period of 28 more than five hours per day without providing the employee with a meal period of not less than 30 29 11 30 CLASS ACTION COMPLAINT 1 minutes . . . .”]; Cal. Code of Regs., tit. 8, §§ 11040, 11050 [“No employer shall employ any person 2 for a work period of more than five (5) hours without a meal period of not less than 30 minutes . . . .”].) 3 Additionally, an employee who works more than ten hours per day is entitled to receive a second thirty- 4 minute uninterrupted and duty-free meal period. (Lab. Code, § 512, subd. (a) [“An employer shall not 5 employ an employee for a work period of more than 10 hours per day without providing the employee 6 with a second meal period of not less than 30 minutes . . . .”].) 7 44. “An on-duty meal period is permitted only when the nature of the work prevents an 8 employee from being relieved of all duty and the parties agree in writing to an on-duty paid meal 9 break.” (Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, 932.) The written agreement must 10 include a provision allowing the employee to revoke it at any time. (Ibid.) Generally, the California 11 Department of Industrial Relations, Division of Labor Standards Enforcement (“DLSE”) and courts 12 have “found that the nature of the work exception applies: (1) where the work has some particular 13 external force that requires the employee to be on duty at all times, and (2) where the employee is the 14 sole employee of a particular employer.” (Id. at p. 945, internal quotation marks omitted; Abdullah v. 15 U.S. Security Associates, Inc. (9th Cir. 2013) 731 F.3d 952, 958–959.) “[I]t is the employer’s obligation 16 to determine whether the nature of the work prevents an employee from being relieved before requiring 17 an employee to take an on-duty meal period.” (Lubin v. The Wackenhut Corp., supra, 5 Cal.App.5th at 18 p. 946.) 19 45. Here, the Class Members were never asked to sign any enforceable document agreeing 20 to an on-duty meal period. Moreover, nothing in the nature of their work involved the kind of “external 21 force” that might justify on-duty meal breaks. (Lubin v. The Wackenhut Corp., supra, 5 Cal.App.5th at 22 p. 945.) Nevertheless, Defendants periodically did not provide compliant off-duty meal periods within 23 the first five hours of work for the Class Members. 24 46. As with rest breaks, meal breaks must be duty-free. (Brinker Restaurant Corp. v. 25 Superior Court (2012) 53 Cal.4th 1004, 1035 [“The IWC’s wage orders have long made a meal period’s 26 duty-free nature its defining characteristic.”].) Relinquishing control over employees during meal 27 periods requires that employees be “free to leave the employer’s premises” and be “permitted to attend 28 to personal business.” (Augustus v. ABM Security Services, Inc., supra, 2 Cal.5th at p. 275.) Under 29 12 30 CLASS ACTION COMPLAINT 1 Labor Code section 512, if an employer maintains a uniform policy that does not authorize and permit 2 the amount of meal time called for under the law (as specified in the Labor Code and/or applicable 3 IWC Wage Order), “it has violated the wage order and is liable.” (Brinker Restaurant Corp. v. Superior 4 Court, supra, 53 Cal.4th at p. 1033.) 5 47. During the applicable statutory periods here, the Class Members were periodically 6 denied legally-compliant and timely off-duty meal periods of at least thirty minutes due to Defendants’ 7 unlawful meal period policy and practices. As a result of Defendants’ uniform meal period policies and 8 practices, the Class Members were often not permitted to take compliant first meal periods before the 9 end of the fifth hour of work. The Class Members were also periodically not permitted to take second 10 meal periods for shifts in excess of ten hours. Defendants thus violated Labor Code section 512 and 11 the Applicable Wage Orders by failing to advise, authorize, or permit the Class Members to receive 12 thirty-minute, off-duty meal periods within the first five hours of their shifts. 13 48. Labor Code section 226.7 provides that “[a]n employer shall not require an employee 14 to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or 15 applicable regulation, standard, or order of the Industrial Welfare Commission.” (Lab. Code, § 226.7, 16 subd. (b).) Labor Code section 226.7, subdivision (c), and the Applicable Wage Orders further obligate 17 employers to pay employees one additional hour of pay at the employee’s regular rate of compensation 18 for each workday that the meal period is not provided. (Lab. Code, § 226.7, subd. (c); Cal. Code of 19 Regs., tit. 8, §§ 11040, 11050 [“If an employer fails to provide an employee a meal period in accordance 20 with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay 21 at the employee’s regular rate of compensation for each workday that the meal period is not 22 provided.”].) The “regular rate” for these purposes must factor in all nondiscretionary payments for 23 work performed by the employee, including non-discretionary bonuses, commissions, and other forms 24 of wage payments exceeding the employees’ base hourly rate. (Ferra v. Loews Hollywood Hotel, LLC 25 (2021) 11 Cal.5th 858, 878.) 26 49. Accordingly, for each day that the Class Members did not receive compliant meal 27 periods, they were and are entitled to receive meal period premiums pursuant to Labor Code section 28 226.7 and the Applicable Wage Orders. Defendants, however, failed to pay the Class Members 29 13 30 CLASS ACTION COMPLAINT 1 applicable meal period premiums for many workdays that the employees did not receive a compliant 2 meal period. Thus, Defendants have violated Labor Code section 226.7 and the Applicable Wage 3 Orders. 4 50. Based on the foregoing, Plaintiffs seek to recover, on behalf of themselves and other 5 non-exempt employees, meal period premiums and penalties. 6 E. UNTIMELY WAGES DURING EMPLOYMENT 7 51. Labor Code section 204 expressly requires employers who pay employees on a weekly, 8 biweekly, or semimonthly basis to pay all wages “not more than seven calendar days following the 9 close of the payroll period.” Labor Code section 210, subdivision (a), makes employers who violate 10 Labor Code section 204 subject to a penalty of: 11 “(1) For any initial violation, one hundred dollars ($100) for each failure to 12 pay each employee. 13 “(2) For each subsequent violation, or any willful or intentional violation, two 14 hundred dollars ($200) for each failure to pay each employee, plus 25 15 percent of the amount unlawfully withheld.” (Lab. Code, § 210, subd. 16 (a).) 17 52. Notably, the penalty provided by Labor Code section 210 is “[i]n addition to, and 18 entirely independent and apart from, any other penalty provided in this article . . . .” (Lab. Code, § 210, 19 subd. (a).) 20 53. Due to Defendants’ failure to pay the Class Members the wages described above, along 21 with rest and meal break premiums, Defendants failed to timely pay the Class Members within seven 22 calendar days following the close of payroll in accordance with Labor Code section 204 on a regular 23 and consistent basis. (See Parson v. Golden State FC, LLC (N.D. Cal., May 2, 2016, No. 16-CV-00405- 24 JST) 2016 WL 1734010, at p. *3–5, 2016 U.S. Dist. LEXIS 58299 [finding that a failure to pay rest 25 period premiums can support claims under Labor Code sections 203 and 204].) 26 F. UNTIMELY WAGES AT SEPARATION 27 54. Labor Code section 203 provides “if an employer willfully fails to pay . . . any wages 28 of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty” 29 14 30 CLASS ACTION COMPLAINT 1 for up to thirty days. (Lab. Code § 203; Mamika v. Barca (1998) 68 Cal.App.4th 487, 492.) As a result 2 of Defendants’ failure to pay the Class Members for the wages described above, along with rest and 3 meal break premiums, Defendants violated and continue to violate Labor Code section 203. 4 55. Due to Defendants’ faulty pay policies, those Class Members whose employment with 5 Defendants concluded were not compensated for each and every hour worked at the appropriate rate. 6 Defendants have failed to pay formerly-employed Class Members whose sums were certain at the time 7 of termination within at least seventy-two hours of their resignation and have failed to pay those sums 8 for thirty days thereafter. 9 G. WAGE STATEMENT VIOLATIONS 10 56. Defendants also failed to provide accurate itemized wage statements in accordance with 11 Labor Code sections 226, subdivisions (a)(1), (2), (5), and (9). Labor Code section 226, subdivision 12 (a), obligates employers, semi-monthly or at the time of each payment to furnish an itemized wage 13 statement in writing showing: 14 (1) The gross wages earned; 15 (2) The total hours worked by the employee; 16 (3) The number of piece-rate units earned and any applicable piece rate if 17 the employee is paid on a piece rate basis; 18 (4) All deductions, provided that all deductions made on written orders of 19 the employee may be aggregated and shown as one item; 20 (5) The net wages earned; 21 (6) The inclusive dates of the period for which the employee is paid; 22 (7) The name of the employee and only the last four digits of his or her social 23 security number or an employee identification number other than a social 24 security number; 25 (8) The name and address of the legal entity that is the employer; and 26 (9) All applicable hourly rates in effect during the pay period and the 27 corresponding number of hours worked at each hourly rate by the 28 employee. 29 15 30 CLASS ACTION COMPLAINT 1 57. Due to Defendants’ failure to pay the Class Members properly as described above, the 2 wage statements issued do not indicate the correct amount of gross wages earned, total hours worked, 3 or the net wages earned, or the applicable hourly rates in effect during the pay period and the 4 corresponding number of hours worked at each hourly rate. Thus, Defendants have violated Labor 5 Code section 226, subdivisions (a)(1), (2), (5), and (9). 6 58. Defendants also failed to include the accrued sick hours on the wage statements 7 provided to the Class Members as required by Labor Code section 246, subdivision (i). 8 59. In addition to Labor Code section 226, subdivision (a), Defendants also knowingly and 9 intentionally failed to provide the Class Members with accurate itemized wage statements in violation 10 of Labor Code section 226, subdivision (e). Defendants knew that they were not providing the Class 11 Members with wage statements required by California law but nevertheless failed to correct their 12 unlawful practices and policies. (See Garnett v. ADT LLC (E.D. Cal. 2015) 139 F.Supp.3d 1121, 1134 13 [finding the defendant knowingly and intentionally violated Labor Code section 226 because the 14 “[d]efendant knew that it was not providing total hours worked to plaintiff or other employees paid on 15 commission” even though it believed that employees paid solely on commission or commission and 16 salary “are exempt and therefore we do not record hours on a wage statement.”].) 17 H. RECORDKEEPING VIOLATIONS 18 60. Labor Code section 226, subdivision (a), requires employers to keep an accurate record 19 of, among other things, all hours worked by employees. Labor Code section 226.3 provides, in pertinent 20 part, as follows: 21 “Any employer who violates subdivision (a) of Section 226 shall be subject to a 22 civil penalty in the amount of two hundred fifty dollars ($250) per employee per 23 violation in an initial citation and one thousand dollars ($1,000) per employee 24 for each violation in a subsequent citation, for which the employer fails to 25 provide the employee a wage deduction statement or fails to keep the records 26 required in subdivision (a) of Section 226. The civil penalties provided for in 27 this section are in addition to any other penalty provided by law.” (Lab. Code, § 28 226.3, emphasis added.) 29 16 30 CLASS ACTION COMPLAINT 1 61. Likewise, Labor Code section 1174, subdivision (d), requires every employer, including 2 Defendants, to: 3 “Keep, at a central location in the state or at the plants or establishments at which 4 employees are employed, payroll records showing the hours worked daily by 5 and the wages paid to, and the number of piece-rate units earned by and any 6 applicable piece rate paid to, employees employed at the respective plants or 7 establishments. These records shall be kept in accordance with rules established 8 for this purpose by the commission, but in any case shall be kept on file for not 9 less than three years. An employer shall not prohibit an employee from 10 maintaining a personal record of hours worked, or, if paid on a piece-rate basis, 11 piece-rate units earned.” (Lab. Code, § 1174, subd. (d), emphasis added.) 12 62. As explained in detail above, Defendants failed to provide the Class Members with 13 accurate itemized wage statements. Defendants did so, in part, because they failed to accurately track 14 hours worked by the Class Members. Defendants have thus failed to keep accurate records of the “total 15 hours worked by the employee[s]” in violation of Labor Code section 226, subdivision (a), and are 16 therefore subject to the penalties provided by Labor Code section 226.3. These penalties are “in 17 addition to any other penalty provided by law.” (Lab. Code, § 226.3.) 18 63. The failure to accurately track hours worked also resulted in a failure of Defendants to 19 keep a record of all “payroll records showing the hours worked daily by” Defendants’ employees, 20 including Plaintiffs and the other Class Members, in violation of Labor Code section 1174, subdivision 21 (d). 22 I. SICK PAY VIOLATIONS 23 64. Labor Code section 246 provides that every employee who works in California for the 24 same employer for 30 or more days within a year from the commencement of employment is entitled 25 to paid sick days. (Lab. Code, § 246, subd. (a).) These paid sick days generally accrue at a rate of not 26 less than one hour per every 30 hours worked, and must be paid out using the employees’ regular rate 27 of pay. (Lab. Code, § 246, subds. (b), (l).) The “regular rate of pay” for these purposes must factor in 28 all nondiscretionary payments for work performed by the employee, including non-discretionary 29 17 30 CLASS ACTION COMPLAINT 1 bonuses, commissions, and other forms of wage payments exceeding the employees’ base hourly rate. 2 (Lab. Code, § 246, subds. (l)(1), (2); see, e.g., Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 3 858, 878.) 4 65. Here, Defendants employed the Class Members for 30 or more days within a year from 5 the commencement of employment. Defendants nevertheless failed to fully pay the Class Members for 6 all sick pay that was lawfully earned and accrued. 7 66. By failing to fully pay accrued sick time, Defendants have underpaid the Class Members 8 and have violated California Labor Code provisions including, but not limited to, section 246. 9 V. CLASS ACTION ALLEGATIONS 10 67. As mentioned above, Plaintiffs bring this action on behalf of themselves and the Class 11 Members pursuant to section 382 of the Code of Civil Procedure. 12 68. Numerosity/Ascertainability: The Class Members are so numerous that joinder of all 13 members would be unfeasible and not practicable. The membership of the class is unknown to Plaintiffs 14 at this time; however, it is estimated that the number of Class Members is greater than 100 individuals. 15 The identity of such membership is readily ascertainable via inspection of Defendants’ employment 16 records. 17 69. Common Questions of Law and Fact Predominate/Well Defined Community of 18 Interest: There are common questions of law and fact as to Plaintiffs and all other similarly situated 19 non-exempt employees, which predominate over questions affecting only individual members 20 including, without limitation to: 21 A. Whether Defendants’ pay policies/practices resulted in a failure to pay the Class 22 Members for all hours worked, including all minimum wages; 23 B. Whether Defendants’ pay policies/practices resulted in a failure to pay the Class 24 Members for all required overtime wages at the Class Members’ regular rate of pay; 25 C. Whether Defendants’ rest period policies and practices afforded legally 26 compliant rest periods or compensation in lieu thereof; 27 D. Whether Defendants’ meal period policies and practices afforded legally 28 compliant meal periods or compensation in lieu thereof; 29 18 30 CLASS ACTION COMPLAINT 1 E. Whether Defendants maintained accurate employment records; 2 F. Whether Defendants timely paid all wages during employment; 3 G. Whether Defendants timely paid all wages earned and unpaid at separation; 4 H. Whether Defendants furnished legally-compliant wage statements to the Class 5 Members pursuant to Labor Code section 226; 6 I. Whether Defendants fully paid all sick pay wages as required by Labor Code 7 section 246; and 8 J. Whether Defendants’ violations of the Labor Code and the Applicable Wage 9 Orders amounted to a violation of California’s UCL. 10 70. Predominance of Common Questions: Common questions of law and fact 11 predominate over questions that affect only individual Class Members. The common questions of law 12 set forth above are numerous and substantial and stem from Defendants’ uniform policies and practices 13 applicable to each individual class member, such as Defendants’ uniform policy and practice of failing 14 to pay for all hours worked, Defendants’ uniform policies and practices which failed to provide 15 compliant rest periods, Defendants’ uniform policies and practices which failed to provide compliant 16 meal periods, Defendants’ failure to provide accurate itemized wage statements, Defendants’ uniform 17 policies and practices which failed to provide complete and accurate sick pay, and others. As such, the 18 common questions predominate over individual questions concerning each individual class member’s 19 showing as to his or her eligibility for recovery or as to the amount of his or her damages. 20 71. Typicality: The claims of Plaintiffs are typical of the claims of the Class Members 21 because Plaintiffs were employed by Defendants as non-exempt employees in California during the 22 statute(s) of limitation applicable to each cause of action pleaded in this complaint. As alleged herein, 23 Plaintiffs, like the other Class Members, were deprived of minimum, regular, and overtime wages 24 because of Defendants’ unlawful timekeeping policies and practices, were deprived of rest periods and 25 premium wages in lieu thereof, were deprived of meal periods and premium wages in lieu thereof, were 26 subject to Defendants’ uniform rest period policies and practices, were subject to Defendants’ uniform 27 meal period policies and practices, were not provided accurate itemized wage statements, were not paid 28 all wages in full and on time, were not paid all sick pay wages as required by law, and were subject to 29 19 30 CLASS ACTION COMPLAINT 1 other similar policies and practices to which the Class Members were subject. 2 72. Adequacy of Representation: Plaintiffs are fully prepared to take all necessary steps 3 to represent fairly and adequately the interests of the Class Members. Moreover, Plaintiffs’ attorneys 4 are ready, willing, and able to fully and adequately represent the Class Members and Plaintiffs. 5 Plaintiffs’ attorneys have prosecuted numerous wage-and-hour class actions in state and federal court 6 in the past and are committed to vigorously prosecuting this action on behalf of the Class Members. 7 73. Superiority: The California Labor Code is broadly remedial in nature and serves an 8 important public interest in establishing minimum working conditions and standards in California. 9 These laws and labor standards protect the average working employee from exploitation by employers 10 who have the responsibility to follow the laws and who may seek to take advantage of superior 11 economic and bargaining power in setting onerous terms and conditions of employment. The nature of 12 this action and the format of laws available to Pl