Preview
Shaun Setareh (SBN 204514) FILED
shaun@setarehlaw.com
- SAN MATEO COUNTY
William M. Pao (SBN 219846)
william@setarehlaw.com MAR 2 7 2020
we
SETAREH LAW GROUP
315 South Beverly Drive, Suite 315 Clerk ot
Beverly Hills, California 90212
Telephone (310) 888-7771
Facsimile (310) 888-0109
Attorneys for Plaintiff
KIKI CHESS
Additional counsel listed on following page.
SUPERIOR COURT OF THE STATE OF CALIFORNIA.
10 FOR THE COUNTY OF SAN MATEO
11 UNLIMITED JURISDICTION
12 IN re MOBILEONE WAGE AND HOUR Judicial Council Coordination Proceedings No.
CASES, JCCP 5039
13
Coordination Proceeding Special Title (CRC Assigned For All Purposes to the Honorable
14 Rule 3.550) Marie S. Weiner, Department 2
15 Included Actions. CLASS ACTION
16 Kiki Chess vs. MobileOne LLC FIRST AMENDED CONSOLIDATED
San Mateo County Superior Court COMPLAINT
17 Case No. 18 CIV 02731
1 Failure to Provide Meal Periods (Lab. Code
18 Vivian Ly vs. MobileOne LLC §§ 204, 223, 226.7, 512 and 1198);
Sacramento Superior Court 2. Failure to Provide Rest Periods (Lab. Code
19 Case No. 34-2018-00243020 §§ 204, 223, 226.7 and 1198);
3. Failure to Pay Hourly Wages (Lab. Code §§
20 223, 510, 1194, 1194.2, 1197, 1997.1 and
1 198);
21 Failure to Pay- Vacation. Wages (Lab. Code
§ 227.3);
22 Failure to Pay Sick Time (Lab, Code §§: 246
et seq.)
23 Failure to Indemnify (Lab. Code § 2802);
Failure to Provide Accurate Written Wage
24 Statements (Lab. Code §§ 226(a));
8 Failure to Timely Pay All Final Wages
25 (Lab. Code §§ 201, 202 and 203);
9. Violation of Labor Code § 221
26 10. Unfair Competition (Bus. & Prof. Code §§
17200 et seq.);
27 11. Civil Penalties (Lab. Code §§ 2698 et seq.)
28 JURY TRIAL DEMANDED
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
DAVID YEREMIAN & ASSOCIATES, INC.
David Yeremian (SBN 226337)
david@yeremianlaw.com
Roman Shkodnik (SBN 285152)
roman@yeremianlaw.com
535 N. Brand Blvd., Suite 705
Glendale, California 91203
Telephone: (818) 230-8380
Facsimile: (818) 230-0308
UNITED EMPLOYEES LAW GROUP, PC
Walter Haines (SBN 71075)
whaines@uelg.com
5500 Bolsa Ave., Suite 201
Huntington Beach, CA 92649
Telephone: (310) 652-2242
10 Attorneys for Plaintiff
VIVIAN LY, on behalf of herself
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and others similarly situated
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FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
COMES NOW, Plaintiffs KIKI CHESS (“Chess”) and VIVIAN LY (Ly) (collectively
referred to as “Plaintiffs”) on behalf of themselves, all others similarly situated, and the general _
public, complain and allege as follows:
INTRODUCTION
1 Plaintiffs brings this class and representative action against Defendant MOBILEONE
LLC, an Arizona limited liability company, and DOES 1 through 50, inclusive (collectively referred
to as “Defendants”) for alleged violations of the Labor Code and Business and Professions Code.
As set forth below, Plaintiffs alleges that Defendants have
(1) failed to provide her and all other similarly situated individuals with meal
10 periods;
11 @) failed to provide them with rest periods;
12 (3) failed to pay them premium wages for missed meal and/or rest periods;
13 4) failed to pay them premium wages for missed meal and/or rest periods at the
14 regular rate of pay;
15 6) failed to pay them at least minimum wage for all hours worked;
16 © failed to pay them overtime wages at the correct rate;
17 ) failed to pay them double time wages at the correct rate;
18 (8) failed to pay them overtime and/or double time wages by failing to include all
19 applicable remuneration in calculating the regular rate of pay;
20 YO) . failed to pay them for all vested vacation pay;
21 (10) failed to reimburse them for all necessary business expenses;
22 (11) failed to provide them with accurate written wage statements; and
23 (12) failed to pay them all of their final wages following separation of
24 employment.
25 Based on these alleged Labor Code violations, Plaintiffs now brings this class and
26 || representative action to recover unpaid wages, restitution and related relief on behalf of themselves
27 || and all others similarly situated, and the general public.
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FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
JURISDICTION AND VENUE
2. This Court has subject matter jurisdiction to hear this case because the monetary ,
damages and restitution sought by Plaintiffs from Defendants’ conduct exceeds the minimal
jurisdiction of the Superior Court of the State of California.
3. Venue is proper in the County of SanMateo pursuant to Code of Civil Procedure
sections 395(a) and 395.5 in that liability arose this county because at least some of the transactions
that are the subject matter of this Complaint occurred therein and/or each defendant isfound,
maintains offices, transacts business and/or has an agent therein.
PARTIES
10 4 Plaintiff KIKI CHESS is, and at all relevant times mentioned herein, an individual
11 residing in the State of California and during the time period relevant to this Complaint was
12 employed by Defendants as a non-exempt employee within the State of California at Defendants’
13 facilities and offices in Sacramento, California.
14 5 Plaintiff VIVIAN LY has resided in California and during the time period relevant to
15 this Complaint was employed by Defendants as a non-exempt hourly employee within the State of
16 California at Defendants’ facilities and offices in Sacramento, California.
17 6 Plaintiffs are informed and believe, and thereupon allege that Defendant
18 MOBILEONE LLC is, and at all relevant times mentioned herein, an Arizona limited liability
19 company doing business in the State of California.
20 7 Plaintiffs are ignorant of the true names and capacities of the defendants sued herein
21 as DOES 1 through 50, inclusive, and therefore sues these defendants by such fictitious names.
22 Plaintiffs will amend this Complaint to allege the true names.and capacities of the DOE defendants
23 when ascertained. Plaintiffs are informed and believe, and thereupon allege that each of the
24 fictitiously named defendants are responsible in some manner for the occurrences, acts and
25 omissions alleged herein and that Plaintiffs’ alleged damages were proximately caused by these
26 defendants, and each of them: Plaintiffs will amend this complaint to allege both the true names
27 and capacities of the DOE defendants when ascertained.
28 8 Plaintiffs are informed and believe, and thereupon allege that, at all relevant times
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
mentioned herein, some or all of the defendants were the representatives, agents, employees,
partners, directors, associates, joint venturers, principals or co-participants of some or all of the
other defendants, and indoing the things alleged herein, were acting within the course and scope of
such relationship and with the full knowledge, consent and ratification by such other defendants.
9. Plaintiffs are informed and believe, and thereupon allege that, at all relevant times
mentioned herein, some of the defendants pursued a common course of conduct, acted in concert
and conspired with one another, and aided and abetted one another to accomplish the occurrences,
acts and omissions alleged herein.
CLASS ALLEGATIONS
10 10. This action has been brought and may be maintained as a class action pursuant to
11 Code of Civil Procedure section 382 because there is a well-defined community of interest among
12 the persons who comprise the readily ascertainable classes defined below and because Plaintiffs are
13 unaware of any difficulties likely to be encountered in managing this case as a class action.
14 11. Relevant Time Period: The relevant time period isdefined as the time period
15 beginning on or after July 6, 2016 until judgment is entered. 1
16 Hourly Employee Class: All persons employed by Defendants and/or any staffing agencies
and/or any other third parties in hourly or non-exempt positions in California during the
17 Relevant Time Period.
18 Non-Exempt Meal Period Sub-Class: All Hourly Employee Class members who
worked in a shift in excess of five hours during the Relevant Time Period.
19
Non-Exempt Rest Period Sub-Class: All Hourly Employee Class members who
20 worked a shift of at least three and one-half (3.5) hours during the Relevant Time
Period.
21
Non-Exempt Wage Statement Penalties Sub-Class: All Hourly Employee Class
22 members employed by Defendants in California during the period beginning one
year before the filing of this action and ending when final judgment is entered.
23
Non-Exempt Waiting Time Penalties Sub-Clas: : All Hourly Employee Class
24 members who separated from their employment with Defendants during the
Relevant Time Period
25
Non-Exempt Expense Reimbursement Sub-Class: All Hourly Employee Class
26 members who incurred expenses for using their own cellphones and/or vehicles for
employment purposes during the Relevant Time Period.
27
Non-Exempt Vacation Pay Sub-Class: All persons employed by Defendants in
28 California who earned paid vacation days, including but not limited to, “Floating
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
Holidays,” without receiving compensation for each vested paid vacation day during
the Relevant Time Period.
Non-Exempt Sick Time Sub-Class: All persons employed by Defendants in
California who earned paid sick time without receiving compensation for all accrued
sick time during the Relevant Time Period.
Non-Exempt UCL Class: All Hourly Employee Class members employed by
Defendants in California during the Relevant Time Period..
Misclassification Class: All persons employed by Defendants and/or any staffing agencies
and/or any other third parties in hourly or non-exempt positions who were misclassified as
managers during the time period beginning four years prior to the filing of this action.
Exempt Meal Period Sub-Class: All Misclassification Class members who
worked in a shift in excess of five hours during the time period beginning four years
prior to the filing of this action.
10 Exempt Rest Period Sub-Class: All Misclassification Class members who worked
a shift of at least three and one-half (3.5) hours during the time period beginning four
11 years prior to the filing of this action.
12 Exempt Wage Statement Penalties Sub-Class: AllMisclassification Class
members employed by Defendants in California during the period beginning one
13 year before the filing of this action and ending when final judgment is entered.
14 Exempt Waiting Time Penalties Sub-Class: All Misclassification Class members
who separated from their employment with Defendants during the time period
15 beginning four years prior to the filing of this action.
16 Exempt Expense Reimbursement Sub-Class: All Misclassification Class
members who incurred expenses for using their own cellphones and/or vehicles for
17 employment purposes during the time period beginning four years prior to the filing
of this action.
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Exempt Vacation Pay Sub-Class: All persons employed by Defendants in
19 California who earned paid vacation days, including but not limited to, “Floating
Holidays,” without receiving compensation for each vested paid vacation day during
20 the time period beginning four years prior to the filing of this action.
21 Exempt Sick Time Sub-Class: All persons employed by Defendants in California
who earned paid sick time without receiving compensation for all accrued sick time
22 during the time period beginning four years prior to the filing of this action.
23 Exempt UCL Class: All Misclassification Class members employed by
Defendants in California during the time period beginning four years prior to the
24 filing of this action.
25 12. Reservation of Rights: Pursuant to Rule of Court 3.765(b), Plaintiffs reserve the
26 right to amend or modify the class definitions with greater specificity, by further division into sub-
27 classes and/or by limitation to particular issues.
28 13, Numerosity: The class members are so numerous that the individual joinder of each
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
individual class member is impractical. While Plaintiffs do not currently know the exact number of
class members, Plaintiffs are informed and believes, and thereupon alleges that the actual number
exceeds the minimum required for numerosity under California law.
14.’ Commonality and Predominance: Common questions of law and fact exist as to
all class members and predominate over any questions which affect only individual class members.
These common questions include, but are not limited to:
A Whether Defendants maintained a policy or practice of failing to provide
employees with their meal periods;
Whether Defendants maintained a policy or practice of failing to provide
10 employees with their rest periods;
11 Whether Defendants failed to pay premium wages to class members when
12 they have not been provided with required meal and/or rest periods;
13 Whether Defendants failed to pay minimum and/or overtime wages to class
14 members as a result of policies that fail to provide meal periods in accordance
15 with California law;
16 Whether Defendants failed to pay minimum and/or overtime wages to class.
17 members for all time worked;
18 Whether Defendants failed to pay overtime wages to class members as a
19 result of incorrectly calculating their regular rates of pay;
20 Whether Defendants failed to pay premium wages to class members based on
21 their respective “regular rates of compensation” by not including
22 commissions and/or other applicable remuneration in calculating the rates at
23 which those wages are paid;
24 Whether Defendants failed to provide proportionate accruals for vested
25 vacation time for class members as required by California law;
26 Whether Defendants failed to reimburse class members for all necessary
27 business expenses incurred during the discharge of their duties;
28 Whether Defendants failed to provide class members with accurate written
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
wage statements as a result of providing them with written wage statements
with inaccurate entries for, among other things, amounts of gross and net
wages, and total hours worked;
Whether Defendants applied policies or practices that result in late and/or
incomplete final wage payments;
Whether Defendants violated Labor Code § 221;
‘Whether Defendants are liable to class members for waiting time penalties
under Labor Code section 203;
Whether class members are entitled to restitution of money or property that
10 Defendants may have acquired from them through unfair competition;
11 15. Typicality: Plaintiffs’ claims are typical of the other class members’ claims.
12 Plaintiffs are informed and believe and thereupon allege that Defendants have a policy or practice of
13 failing to comply with the Labor Code and Business and Professions Code as alleged in this
14 Complaint.
15 16. Adequacy of Class Representative: Plaintiffs are adequate class representatives in
16 that they have no interests that are adverse to, or otherwise conflict with, the interests of absent class
17 members and is dedicated to vigorously prosecuting this action on their behalf. Plaintiffs will fairly
18 and adequately represent and protect the iriterests of the other class members.
19 17. Adequacy of Class Counsel: Plaintiffs’ counsel are adequate class counsel in that
20 they have no known conflicts of interest with Plaintiffs or absent class members, are experienced in
21 wage and hour class action litigation, and are dedicated to vigorously prosecuting this action on
22 behalf of Plaintiffs and absent class members.
23 18. Superiority: A class action is vastly superior to other available means for fair and
24 efficient adjudication of the class members’ claims and would be beneficial to the parties and the
25 Court. Class action treatment will allow a number of similarly situated persons to simultaneously
26 and efficiently prosecute their common claims in a single forum without the unnecessary
27 duplication of effort and expense that numerous individual actions would entail. In addition, the
28 monetary amounts due to many individual class members are likely to be relatively small and would
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
thus make I difficult, if not impossible, for individual class members to both seek and obtain relief.
Moreover, a class action will serve an important public interest by permitting class members to
effectively pursue the recovery of monies owed to them. Further, a class action will prevent the
potential for inconsistent or contradictory judgments inherent in individual litigation.
GENERAL ALLEGATIONS
19, At all relevant times, Plaintiffs and the putative class are or were employees that
performed work for Defendant in California.
20. Upon information and belief, Plaintiffs alleges that the putative class were subject to
the same policies, working conditions, and corresponding wage and hour violations to which
10 Plaintiffs were subjected during their employment.
11 Plaintiff Chess
12 21, Plaintiff Chess worked for Defendants as a non-exempt, hourly employee from
13 approximately March 2015 through June 1, 2017. From March 2015 until May of 2016, Plaintiff
14 Chess worked for Defendant as a sales associate and was classified as a non-exempt employee. In
15 May of 2016, Defendant promoted Plaintiff Chess to Manager and misclassified her as an exempt
16 employee.
17 Plaintiff Ly
18 22. Plaintiff Ly was employed by Defendants as a non-exempt hourly employee within
19 the State of California at Defendants’ facilities and offices in Sacramento, California.
20 Clocking Out/Off-the-Clock
21 23. Plaintiffs and the putative class would be required to perform off-the-clock work
22 regularly after they had clocked out for their shifts. For example, Plaintiffs and the putative class
23 would be directed by a manager to complete remaining tasks for that day and tasks for the following
24 day after they had already clocked out for their shifts. Additionally, Defendants had a consistent
25 policy of failing to pay Employees for hours worked during alleged meal periods for which
26 Employees were consistently denied as they had to continue assisting customers after clocking out.
27 24, Defendants knew or should have known that Plaintiffs and the putative class were
28 not “on the clock” after they had clocked out and therefore should not have directed Plaintiffs and
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
the putative class to perform any additional work once they had clocked out.
25. Plaintiffs and the putative class were not paid for all hours worked as they were
required to clock out once their 8-hour shifts expired but continued working an additional 6-8 hours
after clocking out. As discussed above, Plaintiff and the putative class were also not paid for all
hours Additionally, Defendants had a consistent policy of failing to pay Employees for hours
worked during alleged real periods after clocking out.
26. As a result, Plaintiffs and the putative class were not paid for the time spent working
off-the-clock.
Off-the-Clock Work/Travel
10 27. Chess and the putative class were not paid all wages eamed as Defendants directed,
11 permitted or otherwise encouraged Chess and the putative class to perform off-the-clock work.
12 28. Chess and the putative class regularly worked off the clock. Defendants required
13 Chess and the putative class to travel to Sacramento, California twice a month for corporate
14 meetings. Defendants failed to compensate Chess and the putative class with all hourly and
1s overtime wages for time spent traveling to Sacramento, California for work purposes.
16 29. Specifically, Chess and the putative class spent traveled at least three and a half (3
17 1/2) hours traveling twice a month, yet they were not compensation for the time spent traveling.
18 30. As a result of performing off-the-clock work that was directed, permitted or
19 otherwise encouraged by Defendants, Chess and the putative class should have been paid for this
20 time. Instead, Defendants only paid Chess and the putative class based on the time they were
21 clocked in for their shifts and did not pay Chess and the putative class for any of the time spent
22 working off-the-clock.
23 31. Defendants knew or should have known that Chess and the putative class were
24 performing work before and after their scheduled work shifts and failed to pay Chess and the
25 putative class for these hours.
26 32. Defendants were aware of this practice and directed, permitted or otherwise
27 encouraged Chess and tlie putative class to perform off-the-clock work. As a result of Defendants’
28 policies and practices, Chess and the putative class were not paid for all hours worked.
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
Off-the-Clock Work/Post Shift
33. Chess and the putative class were not paid all wages earned as Defendants directed,
permitted or otherwise encouraged Chess and the putative class to perform off-the-clock work.
34, Chess and the putative class regularly worked after their scheduled work ended and
were not paid for this time. Chess and the putative class were instructed by their trainers and
managers to work after clocking out to ensure that their assigned duties for that day were completed
and to start on duties for the following day. As a result, Chess and the putative class continued
working after their scheduled work ended. Chess and the putative class regularly performed work
after their scheduled work hours and were not paid for this time. Chess and the putative class were
10 instructed to perform certain duties such as clean the stores, ensure all devices on the sales floor
11 were in order and other related duties after they had already clocked out and were not paid for the
12 time spent performing these additional duties.
13 35. As a result of performing off-the-clock work that was directed, permitted or
14 otherwise encouraged by Defendants, Chess and the putative class should have been paid for this
15 time. Instead, Defendants only paid Chess and the putative class based on the time they were
16 clocked in for their shifts and did not pay Chess and the putative class for any of the time spent
17 working off-the-clock.
18 36. Defendants knew or should have known that Plaintiffs and the putative class were
19 performing work before and after their scheduled work shifts and failed to pay Chess and the
20 putative class for these hours.
21 37. Defendants were aware of this practice and directed, permitted or otherwise
encouraged Plaintiffs and the putative class to perform off-the-clock work. As a result of
23 Defendants’ policies and practices, Chess and the putative class were not paid for all hours worked.
24 Misclassification as Exempt Employe
25 38. Chess and the putative class were also misclassified as exempt employees when in
26 fact they were non-exempt. Chess and the putative class regularly worked more than eight hours
27 each workday, and more than forty hours each workweek. Plaintiffs and the putative class were
28 paid a fixed and inadequate salary regardless of the hours they worked. For instance, Plaintiffs and
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
the putative class were paid every three (3) weeks in the amount of $3,500. This amount is below
the minimum wage requirements and Plaintiffs and the putative class members were not paid at
least two times the minimum wage for all hours worked.
39. Chess and the putative class did not perform duties, more than fifty percent (50%)
of the time, that would qualify them as exempt employees under the Professional, Executive or
Administrative exemptions.
40. Accordingly, Chess and the putative class were entitled to all the protections
afforded to them as non-exempt employees under California law.
4l. As a result of being misclassified as an exempt employee, the time spent by
10 Plaintiffs and the putative class were not accurately recorded by the timekeeping system utilized by
i Defendants and therefore resulted in the failure to pay Plaintiffs and the putative class for all hours
12 actually worked and overtime compensation.
13 Misclassification/Meal Periods
14 42. Chess and the putative class members were misclassified and not provided with
15 meal periods of at least thirty (30) minutes for each five (5) hour work period due to (1)
16 Defendants’ policy of misclassifying non-exempt employees ; (2) Defendants’ policy of not
17 scheduling each meal period as part of each work shift; (3) chronically understaffing each work
18 shift with not enough workers; (4) imposing so much work on each employee such that it made it
19 unlikely that an employee would be able to take their breaks if they wanted to finish their work on
20 time; and (5) no formal written meal and rest period policy that encouraged employees to take their
21 meal and rest periods.
22 43. As a result of Defendants’ policy, Chess and the putative class were regularly not
23 provided with uninterrupted meal periods of at least thirty (30) minutes for each five (5) hours
24 worked due to complying with Defendants’ productivity requirements that required Plaintiffs and
25 the putative class to work through their meal periods in order to complete their assignments on
26 time.
27 Misclassification/Rest Periods
28 44, Chess and the putative class members were misclassified and not provided with rest
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
periods of at least ten (10) minutes for each four (4) hour work period, or major fraction thereof,
due to (1) Defendants’ policy of misclassifying non-exempt employees; (2) Defendants’ policy of
not scheduling each rest period as part of each work shift; (3) chronically understaffing each work
shift with not enough workers; (4) imposing so much work on each employee such that it made it
unlikely that an employee would be able to take their breaks if they wanted to finish their work on
time; and (5) no formal written meal and rest period policy that encouraged employees to take their
meal and rest periods.
45. As a result of Defendants’ policy, Chess and the putative class were regularly not
provided with uninterrupted rest periods of at least ten (10) minutes for each four (4) hours worked.
10 due to complying with Defendants’ productivity requirements that required Chess and the putative
11 class to work through their rest periods in order to complete their assignments on time.
12 Missed Meal Periods
13 46. Plaintiffs and the putative class members were not provided with meal periods of at
14 least thirty (30) minutes for each five (5) hour work period due to (1) Defendants’ policy of not
15 scheduling each meal period as part of each work shift; (2) chronically understaffing each work
16 shift with not enough workers; (3) imposing so much work on each employee such that it made it
17 unlikely that an employee would be able to take their breaks if they wanted to finish their work on
18 time; and (4) no formal written meal and rest period policy that encouraged employees to take their
19 meal and rest periods.
20 47. As a matter of uniform and unlawful Company policy, Plaintiffs and the putative
21 class members were required to work during their meal periods and rest breaks, and they were not
22 compensated for this off the clock work.
23 48. As a result of Defendants’ policy, Plaintiffs and the putative class were regularly not
24 provided with uninterrupted meal periods of at least thirty (30) minutes for each five (5) hours
25 worked due to complying with Defendants’ productivity requirements that required Plaintiffs and
26 the putative class to work off-the-clock through their meal periods in order to complete their
27 assignments on time.
28 Ml
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
Missed Rest Periods
49. Plaintiffs and the putative class members were not provided with rest periods of at
least ten (10) minutes for each four (4) hour work period, or major fraction thereof, due to (1)
Defendants’ policy of not scheduling each rest period as part of each work shift; (2) chronically
understaffing each work shift with not enough workers; (3) imposing so much work on each
employee such that it made it unlikely that an employee would be able to take their breaks if they
wanted to finish their work on time; and (4) no formal written meal and rest period policy that
encouraged employees to take their meal and rest periods.
50. As a matter of uniform and unlawful Company policy, Plaintiffs and the putative
10 class members were required to work during their meal periods and rest breaks, and they were not
11 compensated for this off the clock work.
12 Si. As a result of Defendants’ policy, Plaintiffs and the putative class were regularly not
13 provided with uninterrupted rest periods of at least ten (10) minutes for each four (4) hours worked
14 due to complying with Defendants’ productivity requirements that required Plaintiffs and the
15 putative class to work through their rest periods in order to complete their assignments on time.
16 Vacation Pay
17 52. Chess and the putative class accrued vacation wages during their employment with
18 Defendants.
19 53. Under California law, vacation wages are considered a form of wages under Labor
20 Code section 200. Vested vacation pay and other similar forms of paid time off earned based on
21 labor performed are considered wages that cannot be subject to forfeiture without compensation for
22 forfeited days at the applicable rates required by law.
23 54, At all relevant times, Defendants maintained policies that provide for the unlawful
24 forfeiture of vested vacation pay in violation of Labor Code section 227.3 and Suastez v. Plastic
25 Dress-Up Co., (1982) 31 Cal. 3d 774.
26 55. Chess and the putative class are entitled to vacation accrued during their employment
27 with Defendants. Upon termination, Plaintiffs and the putative class were not paid out all accrued
28 vacation pay.
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
Sick Pay
56. Chess and the putative class accrued sick pay during their employment with
Defendants.
357. Under California law, vacation wages are considered a form of wages under Labor
Code section 200. Vested vacation pay and other similar forms of paid time off earned based on
labor performed are considered wages that cannot be subject to forfeiture without compensation for
forfeited days at the applicable rates required by law.
58. At all relevant times, Defendants maintained policies that provide for the unlawful
forfeiture of vested vacation pay in violation of Labor Code section 227.3 and Suastez v. Plastic
10 Dress-Up Co., (1982) 31 Cal. 3d 774.
11 59. Chess and the putative class are entitled to vacation accrued during their employment
12 with Defendants. Upon termination, Plaintiffs and the putative class were not paid out all accrued
13 vacation pay.
14 Regular Rate of Pay
15 60. The regular rate of pay under California law includes all remuneration for
16 employment paid to, on behalf of, the employee. This requirement includes, but is not limited, to,
17 nondiscretionary commissions, incentive pay, and/or nondiscretionary bonuses earned, personal
18 cellphone usage, personal vehicle usage and overtime hours worked.
19 61. During the applicable limitations period, Defendants violated the rights of Plaintiffs
20 and the putative class under the above-referenced Labor Code sections by failing to pay them
21 overtime wages for all overtime hours worked in violation of Labor Code §§ 510, 1194, and 1198
22 as a result of not correctly calculating their regular rate of pay to include all applicable
23 remuneration, including, but not limited to, nondiscretionary commissions, incentive pay, and/or
24 nondiscretionary bonuses earned and/or overtime hours worked.
25 62. During the applicable limitations period, Defendants violated the rights of Plaintiffs
26 and the putative class under the above-referenced Labor Code sections by failing to reimburse
27 them in violation of Labor Code § 2802 as a result of not correctly calculating their regular rate of
28 pay to include all applicable remuneration, including personal cellphone usage and personal
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
vehicle usage.
Expense Reimbursement
63. Chess and the putative class members were required to utilize their own personal
cellphones and vehicles to perform their job duties.
64. Chess and the putative class members were required to pay for personal cellphones
as a necessary condition of employment. Specifically, Chess and putative class were required to
have a mobile device that would allow them to download an application called “WhatsApp” in
order to stay connected to managers, assistant managers, sales associates and other corporate
bodies. Chess and the putative class members were required to stay constantly connected to
10 WhatsApp for internal communications and updates regarding daily operations, daily sales,
ll customer service and other related day to day work related communications.
12 65. Chess and the putative class members were insufficiently reimbursed for expenses
13 incurred due to their personal cellphone usage.
14 66. Chess and the putative class members were required to travel to Sacramento,
15 California twice a month for corporate meetings. Chess and the putative class members were not
16 reimbursed for travel expenditures.
17 67. In addition, Chess and the putative class members were not paid at least two times
18 the minimum wage for all hours worked.
19 68. Defendants failed to reimburse Chess and the putative class for such necessary
20 business expenses incurred by them.
21 Wage Statements
22 69. Plaintiffs and the putative class were not provided with accurate wage statements as
23 mandated by law pursuant to Labor Code section 226.
24 70. Defendants failed to comply with Labor Code section 226(a)(1) as “gross wages
25 earned” were not accurately reflected in that: all hours worked, including overtime, were not
26 included.
27 71. Defendants failed to comply with Labor Code section 226(a)(2) as “total hours
28 worked by the employee” were not accurately reflected in that: all hours worked, including
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
overtime, were not included.
72. Defendants failed to comply with Labor Code section 226(a)(5) as “net wages
earned” were not accurately reflected in that: all hours worked, including overtime, were not
included.
73. Defendants failed to comply with Labor Code-section 226(a)(9) as “all applicable
hourly rates in effect during the pay period and the corresponding number of hours worked at each
hourly rate by the employee” were not accurately reflected in that: all hours worked, including
overtime, were not included.
74. Additionally, the wage statements provided to Plaintiffs and the putative class were
10 confusing and required Plaintiffs and the putative class to engage in discovery and refer to outside
11 sources to verify whether their pay was correct and potentially resulting in a miscalculation by the
12 Plaintiffs and the putative class. Additionally, Defendants failed in their affirmative obligation to keep
13 accurate records of the correct overtime wages based on proper regular rate calculations that included
14 nondiscretionary commissions, incentive pay, and/or nondiscretionary bonuses earned, and the total
15 amount of compensation of Plaintiffs and the putative class. Moreover, the wage statements given to
16 Plaintiffs and the putative class by Defendants failed to accurately account for wages, overtime, and
17 premium pay for deficient meal periods and rest breaks, and automatically deducted wages for
18 alleged meal periods, all of which Defendants knew or reasonably should have known were owed to
19 Plaintiffs and the putative class, as alleged hereinabove.
20 FIRST CAUSE OF ACTION
21 FAILURE TO PROVIDE MEAL PERIODS
22 (Lab. Code §§ 004, 223, 226.7, 512 and 1198)
23 / (Plaintiffs, Non-Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class)
24 75. Plaintiffs incorporates by reference the preceding paragraphs of the Complaint as if
25 fully alleged herein.
26 76. At all relevant times, Plaintiffs and the Non-Exempt Meal Period Sub-Class and
27 Exempt Meal Period Sub-Class members have been non-exempt employees of Defendant entitled
28 to the full meal period protections of both the Labor Code and the applicable Industrial Welfare
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
Commission Wage Order.
77. Labor Code section 512 and Section 11 of the applicable IndustrialWelfare
Commission Wage Order impose anaffirmative obligation on employers to provide non-exempt
employees with uninterrupted, duty-free meal periods of at least thirty minutes for each work period
of five hours, and to provide them with two uninterrupted, duty-free meal periods of at least thirty
minutes for each work period of ten hours.
78. Labor Code section 226.7 and Section 11 of the applicable Industrial Welfare
Commission Wage Order (“Wage Order”) both prohibit employers from requiring employees to
work during required meal periods and require employers to pay non-exempt employees an hour of
10 premium wages on each workday that the employee is notprovided with the required meal period.
11 79. Compensation for missed meal periods constitutes wages within the meaning of
12 Labor Code section 200.
13 80. Labor Code section 1198 makes it unlawful to employ a person under conditions that
14 violate the applicable Wage Order.
15 81. Section 11 of the applicable Wage Order states:
16 “No employer shall employ any person for a work period of more than five (5) hours
without a meal period of not less than 30 minutes, except that when a work period of
17 not more than six (6) hours will complete the day’s work the meal period may be
waived by mutual consent of the employer and employee. Unless the employee is
18 relieved of all duty during a 30 minute meal period, the meal period shall be
considered an ‘on duty’ meal period and counted as time worked. An ‘on duty’ meal
19 period shall be permitted only when the nature of the work prevents an employee
from being relieved of all duty and when by written agreement between the parties
20 an on-the-job paid meal period is agreed to. The written agreement shall state that
the employee may, in writing, revoke the agreement at any time.”
21
22 82. At all relevant times, Plaintiffs were not subject to valid on-duty meal period
23 agreements. Plaintiffs are informed and believes that, at all relevant times, Non-Exempt Meal
24 Period Sub-Class and Exempt Meal Period Sub-Class members were not subject to valid on-duty
25 meal period agreements with Defendants.
26 83. Plaintiffs alleges that, at all relevant times during the applicable limitations period,
27 Defendants maintained a policy or practice of not providing Plaintiffs andmembers of the Non-
28 Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class with uninterrupted, duty-
FIRST AMENDED CONSOLIDATED CLASS ACT! TON COMPLAINT
free meal periods for at least thirty (30) minutes for each five (5) hour work period, as required by
Labor Code section 512 ad the applicable Wage Order.
84. Plaintiffs alleges that, at all relevant times during the applicable limitations period,
Defendants maintained a policy or practice of failing to pay premium wages to Non-Exempt Meal
Period Sub-Class and Exempt Meal Period Sub-Class members when they worked five (5) hours
without clocking out for any meal period.
85. Plaintiffs alleges that, at all relevant times during the applicable limitations period,
Defendants maintained a policy or practice of not providing Plaintiffs and members of the Non-
Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class with a second meal period
10 when they worked shifts of ten or more hours and failed to pay them premium wages as required by
11 Labor Code 512 and the applicable Wage Order.
12 86. At all relevant times, Defendants failed to pay Plaintiffs and the Non-Exempt Meal
13 Period Sub-Class and Exempt Meal Period Sub-Class members additional premium wages,
14 and/or were not paid premium wages at the employees’ regular rates of pay when required meal
15 periods were not provided.
16 87. Pursuant to Labor Code section 204, 218.6 and 226.7, Plaintiffs, on behalf of
17 themselves and the Non-Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class
18 members, seek to recover unpaid premium wages, interest thereon, and costs of suit.
19 88. Pursuant to Labor Code section 1194, Code of Civil Procedure section 1021.5, the
20 substantial benefit doctrine, and/or the common fund doctrine, Plaintiffs, on behalf of themselves
21 and the Non-Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class members,
22 seek to recover reasonable attorneys’ fees.
23 SECOND CAUSE OF ACTION
24 FAILURE TO PROVIDE REST PERIODS
25 (Lab. Code §§ 204, 223, 226.7 and 1198)
26 (Plaintiffs, Non-Exempt Rest Period Sub-Class and Exempt Rest Period Sub-Class)
27 89. Plaintiffs incorporate the preceding paragraphs of the Complaint as if fully alleged
28 herein.
FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
90. At all relevant times, Plaintiffs and the Non-Exempt Rest Period Sub-Class and
Exempt Rest Period Sub-Class members have been non-exempt employees of Defendants entitled
to the full rest period protections of both the Labor Code and the applicable Wage Order.
91. Section 12 of the applicable Wage Order imposes an affirmative obligation on
employers to permit and authorize employees to take required rest periods at a rate of no less than
ten minutes of net re
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Shaun Setareh (SBN 204514) FILED shaun@setarehlaw.com - SAN MATEO COUNTY William M. Pao (SBN 219846) william@setarehlaw.com MAR 2 7 2020 we SETAREH LAW GROUP 315 South Beverly Drive, Suite 315 Clerk ot Beverly Hills, California 90212 Telephone (310) 888-7771 Facsimile (310) 888-0109 Attorneys for Plaintiff KIKI CHESS Additional counsel listed on following page. SUPERIOR COURT OF THE STATE OF CALIFORNIA. 10 FOR THE COUNTY OF SAN MATEO 11 UNLIMITED JURISDICTION 12 IN re MOBILEONE WAGE AND HOUR Judicial Council Coordination Proceedings No. CASES, JCCP 5039 13 Coordination Proceeding Special Title (CRC Assigned For All Purposes to the Honorable 14 Rule 3.550) Marie S. Weiner, Department 2 15 Included Actions. CLASS ACTION 16 Kiki Chess vs. MobileOne LLC FIRST AMENDED CONSOLIDATED San Mateo County Superior Court COMPLAINT 17 Case No. 18 CIV 02731 1 Failure to Provide Meal Periods (Lab. Code 18 Vivian Ly vs. MobileOne LLC §§ 204, 223, 226.7, 512 and 1198); Sacramento Superior Court 2. Failure to Provide Rest Periods (Lab. Code 19 Case No. 34-2018-00243020 §§ 204, 223, 226.7 and 1198); 3. Failure to Pay Hourly Wages (Lab. Code §§ 20 223, 510, 1194, 1194.2, 1197, 1997.1 and 1 198); 21 Failure to Pay- Vacation. Wages (Lab. Code § 227.3); 22 Failure to Pay Sick Time (Lab, Code §§: 246 et seq.) 23 Failure to Indemnify (Lab. Code § 2802); Failure to Provide Accurate Written Wage 24 Statements (Lab. Code §§ 226(a)); 8 Failure to Timely Pay All Final Wages 25 (Lab. Code §§ 201, 202 and 203); 9. Violation of Labor Code § 221 26 10. Unfair Competition (Bus. & Prof. Code §§ 17200 et seq.); 27 11. Civil Penalties (Lab. Code §§ 2698 et seq.) 28 JURY TRIAL DEMANDED FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT DAVID YEREMIAN & ASSOCIATES, INC. David Yeremian (SBN 226337) david@yeremianlaw.com Roman Shkodnik (SBN 285152) roman@yeremianlaw.com 535 N. Brand Blvd., Suite 705 Glendale, California 91203 Telephone: (818) 230-8380 Facsimile: (818) 230-0308 UNITED EMPLOYEES LAW GROUP, PC Walter Haines (SBN 71075) whaines@uelg.com 5500 Bolsa Ave., Suite 201 Huntington Beach, CA 92649 Telephone: (310) 652-2242 10 Attorneys for Plaintiff VIVIAN LY, on behalf of herself i and others similarly situated 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT COMES NOW, Plaintiffs KIKI CHESS (“Chess”) and VIVIAN LY (Ly) (collectively referred to as “Plaintiffs”) on behalf of themselves, all others similarly situated, and the general _ public, complain and allege as follows: INTRODUCTION 1 Plaintiffs brings this class and representative action against Defendant MOBILEONE LLC, an Arizona limited liability company, and DOES 1 through 50, inclusive (collectively referred to as “Defendants”) for alleged violations of the Labor Code and Business and Professions Code. As set forth below, Plaintiffs alleges that Defendants have (1) failed to provide her and all other similarly situated individuals with meal 10 periods; 11 @) failed to provide them with rest periods; 12 (3) failed to pay them premium wages for missed meal and/or rest periods; 13 4) failed to pay them premium wages for missed meal and/or rest periods at the 14 regular rate of pay; 15 6) failed to pay them at least minimum wage for all hours worked; 16 © failed to pay them overtime wages at the correct rate; 17 ) failed to pay them double time wages at the correct rate; 18 (8) failed to pay them overtime and/or double time wages by failing to include all 19 applicable remuneration in calculating the regular rate of pay; 20 YO) . failed to pay them for all vested vacation pay; 21 (10) failed to reimburse them for all necessary business expenses; 22 (11) failed to provide them with accurate written wage statements; and 23 (12) failed to pay them all of their final wages following separation of 24 employment. 25 Based on these alleged Labor Code violations, Plaintiffs now brings this class and 26 || representative action to recover unpaid wages, restitution and related relief on behalf of themselves 27 || and all others similarly situated, and the general public. 28 || i 2 FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction to hear this case because the monetary , damages and restitution sought by Plaintiffs from Defendants’ conduct exceeds the minimal jurisdiction of the Superior Court of the State of California. 3. Venue is proper in the County of SanMateo pursuant to Code of Civil Procedure sections 395(a) and 395.5 in that liability arose this county because at least some of the transactions that are the subject matter of this Complaint occurred therein and/or each defendant isfound, maintains offices, transacts business and/or has an agent therein. PARTIES 10 4 Plaintiff KIKI CHESS is, and at all relevant times mentioned herein, an individual 11 residing in the State of California and during the time period relevant to this Complaint was 12 employed by Defendants as a non-exempt employee within the State of California at Defendants’ 13 facilities and offices in Sacramento, California. 14 5 Plaintiff VIVIAN LY has resided in California and during the time period relevant to 15 this Complaint was employed by Defendants as a non-exempt hourly employee within the State of 16 California at Defendants’ facilities and offices in Sacramento, California. 17 6 Plaintiffs are informed and believe, and thereupon allege that Defendant 18 MOBILEONE LLC is, and at all relevant times mentioned herein, an Arizona limited liability 19 company doing business in the State of California. 20 7 Plaintiffs are ignorant of the true names and capacities of the defendants sued herein 21 as DOES 1 through 50, inclusive, and therefore sues these defendants by such fictitious names. 22 Plaintiffs will amend this Complaint to allege the true names.and capacities of the DOE defendants 23 when ascertained. Plaintiffs are informed and believe, and thereupon allege that each of the 24 fictitiously named defendants are responsible in some manner for the occurrences, acts and 25 omissions alleged herein and that Plaintiffs’ alleged damages were proximately caused by these 26 defendants, and each of them: Plaintiffs will amend this complaint to allege both the true names 27 and capacities of the DOE defendants when ascertained. 28 8 Plaintiffs are informed and believe, and thereupon allege that, at all relevant times FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT mentioned herein, some or all of the defendants were the representatives, agents, employees, partners, directors, associates, joint venturers, principals or co-participants of some or all of the other defendants, and indoing the things alleged herein, were acting within the course and scope of such relationship and with the full knowledge, consent and ratification by such other defendants. 9. Plaintiffs are informed and believe, and thereupon allege that, at all relevant times mentioned herein, some of the defendants pursued a common course of conduct, acted in concert and conspired with one another, and aided and abetted one another to accomplish the occurrences, acts and omissions alleged herein. CLASS ALLEGATIONS 10 10. This action has been brought and may be maintained as a class action pursuant to 11 Code of Civil Procedure section 382 because there is a well-defined community of interest among 12 the persons who comprise the readily ascertainable classes defined below and because Plaintiffs are 13 unaware of any difficulties likely to be encountered in managing this case as a class action. 14 11. Relevant Time Period: The relevant time period isdefined as the time period 15 beginning on or after July 6, 2016 until judgment is entered. 1 16 Hourly Employee Class: All persons employed by Defendants and/or any staffing agencies and/or any other third parties in hourly or non-exempt positions in California during the 17 Relevant Time Period. 18 Non-Exempt Meal Period Sub-Class: All Hourly Employee Class members who worked in a shift in excess of five hours during the Relevant Time Period. 19 Non-Exempt Rest Period Sub-Class: All Hourly Employee Class members who 20 worked a shift of at least three and one-half (3.5) hours during the Relevant Time Period. 21 Non-Exempt Wage Statement Penalties Sub-Class: All Hourly Employee Class 22 members employed by Defendants in California during the period beginning one year before the filing of this action and ending when final judgment is entered. 23 Non-Exempt Waiting Time Penalties Sub-Clas: : All Hourly Employee Class 24 members who separated from their employment with Defendants during the Relevant Time Period 25 Non-Exempt Expense Reimbursement Sub-Class: All Hourly Employee Class 26 members who incurred expenses for using their own cellphones and/or vehicles for employment purposes during the Relevant Time Period. 27 Non-Exempt Vacation Pay Sub-Class: All persons employed by Defendants in 28 California who earned paid vacation days, including but not limited to, “Floating FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT Holidays,” without receiving compensation for each vested paid vacation day during the Relevant Time Period. Non-Exempt Sick Time Sub-Class: All persons employed by Defendants in California who earned paid sick time without receiving compensation for all accrued sick time during the Relevant Time Period. Non-Exempt UCL Class: All Hourly Employee Class members employed by Defendants in California during the Relevant Time Period.. Misclassification Class: All persons employed by Defendants and/or any staffing agencies and/or any other third parties in hourly or non-exempt positions who were misclassified as managers during the time period beginning four years prior to the filing of this action. Exempt Meal Period Sub-Class: All Misclassification Class members who worked in a shift in excess of five hours during the time period beginning four years prior to the filing of this action. 10 Exempt Rest Period Sub-Class: All Misclassification Class members who worked a shift of at least three and one-half (3.5) hours during the time period beginning four 11 years prior to the filing of this action. 12 Exempt Wage Statement Penalties Sub-Class: AllMisclassification Class members employed by Defendants in California during the period beginning one 13 year before the filing of this action and ending when final judgment is entered. 14 Exempt Waiting Time Penalties Sub-Class: All Misclassification Class members who separated from their employment with Defendants during the time period 15 beginning four years prior to the filing of this action. 16 Exempt Expense Reimbursement Sub-Class: All Misclassification Class members who incurred expenses for using their own cellphones and/or vehicles for 17 employment purposes during the time period beginning four years prior to the filing of this action. 18 Exempt Vacation Pay Sub-Class: All persons employed by Defendants in 19 California who earned paid vacation days, including but not limited to, “Floating Holidays,” without receiving compensation for each vested paid vacation day during 20 the time period beginning four years prior to the filing of this action. 21 Exempt Sick Time Sub-Class: All persons employed by Defendants in California who earned paid sick time without receiving compensation for all accrued sick time 22 during the time period beginning four years prior to the filing of this action. 23 Exempt UCL Class: All Misclassification Class members employed by Defendants in California during the time period beginning four years prior to the 24 filing of this action. 25 12. Reservation of Rights: Pursuant to Rule of Court 3.765(b), Plaintiffs reserve the 26 right to amend or modify the class definitions with greater specificity, by further division into sub- 27 classes and/or by limitation to particular issues. 28 13, Numerosity: The class members are so numerous that the individual joinder of each FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT individual class member is impractical. While Plaintiffs do not currently know the exact number of class members, Plaintiffs are informed and believes, and thereupon alleges that the actual number exceeds the minimum required for numerosity under California law. 14.’ Commonality and Predominance: Common questions of law and fact exist as to all class members and predominate over any questions which affect only individual class members. These common questions include, but are not limited to: A Whether Defendants maintained a policy or practice of failing to provide employees with their meal periods; Whether Defendants maintained a policy or practice of failing to provide 10 employees with their rest periods; 11 Whether Defendants failed to pay premium wages to class members when 12 they have not been provided with required meal and/or rest periods; 13 Whether Defendants failed to pay minimum and/or overtime wages to class 14 members as a result of policies that fail to provide meal periods in accordance 15 with California law; 16 Whether Defendants failed to pay minimum and/or overtime wages to class. 17 members for all time worked; 18 Whether Defendants failed to pay overtime wages to class members as a 19 result of incorrectly calculating their regular rates of pay; 20 Whether Defendants failed to pay premium wages to class members based on 21 their respective “regular rates of compensation” by not including 22 commissions and/or other applicable remuneration in calculating the rates at 23 which those wages are paid; 24 Whether Defendants failed to provide proportionate accruals for vested 25 vacation time for class members as required by California law; 26 Whether Defendants failed to reimburse class members for all necessary 27 business expenses incurred during the discharge of their duties; 28 Whether Defendants failed to provide class members with accurate written FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT wage statements as a result of providing them with written wage statements with inaccurate entries for, among other things, amounts of gross and net wages, and total hours worked; Whether Defendants applied policies or practices that result in late and/or incomplete final wage payments; Whether Defendants violated Labor Code § 221; ‘Whether Defendants are liable to class members for waiting time penalties under Labor Code section 203; Whether class members are entitled to restitution of money or property that 10 Defendants may have acquired from them through unfair competition; 11 15. Typicality: Plaintiffs’ claims are typical of the other class members’ claims. 12 Plaintiffs are informed and believe and thereupon allege that Defendants have a policy or practice of 13 failing to comply with the Labor Code and Business and Professions Code as alleged in this 14 Complaint. 15 16. Adequacy of Class Representative: Plaintiffs are adequate class representatives in 16 that they have no interests that are adverse to, or otherwise conflict with, the interests of absent class 17 members and is dedicated to vigorously prosecuting this action on their behalf. Plaintiffs will fairly 18 and adequately represent and protect the iriterests of the other class members. 19 17. Adequacy of Class Counsel: Plaintiffs’ counsel are adequate class counsel in that 20 they have no known conflicts of interest with Plaintiffs or absent class members, are experienced in 21 wage and hour class action litigation, and are dedicated to vigorously prosecuting this action on 22 behalf of Plaintiffs and absent class members. 23 18. Superiority: A class action is vastly superior to other available means for fair and 24 efficient adjudication of the class members’ claims and would be beneficial to the parties and the 25 Court. Class action treatment will allow a number of similarly situated persons to simultaneously 26 and efficiently prosecute their common claims in a single forum without the unnecessary 27 duplication of effort and expense that numerous individual actions would entail. In addition, the 28 monetary amounts due to many individual class members are likely to be relatively small and would FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT thus make I difficult, if not impossible, for individual class members to both seek and obtain relief. Moreover, a class action will serve an important public interest by permitting class members to effectively pursue the recovery of monies owed to them. Further, a class action will prevent the potential for inconsistent or contradictory judgments inherent in individual litigation. GENERAL ALLEGATIONS 19, At all relevant times, Plaintiffs and the putative class are or were employees that performed work for Defendant in California. 20. Upon information and belief, Plaintiffs alleges that the putative class were subject to the same policies, working conditions, and corresponding wage and hour violations to which 10 Plaintiffs were subjected during their employment. 11 Plaintiff Chess 12 21, Plaintiff Chess worked for Defendants as a non-exempt, hourly employee from 13 approximately March 2015 through June 1, 2017. From March 2015 until May of 2016, Plaintiff 14 Chess worked for Defendant as a sales associate and was classified as a non-exempt employee. In 15 May of 2016, Defendant promoted Plaintiff Chess to Manager and misclassified her as an exempt 16 employee. 17 Plaintiff Ly 18 22. Plaintiff Ly was employed by Defendants as a non-exempt hourly employee within 19 the State of California at Defendants’ facilities and offices in Sacramento, California. 20 Clocking Out/Off-the-Clock 21 23. Plaintiffs and the putative class would be required to perform off-the-clock work 22 regularly after they had clocked out for their shifts. For example, Plaintiffs and the putative class 23 would be directed by a manager to complete remaining tasks for that day and tasks for the following 24 day after they had already clocked out for their shifts. Additionally, Defendants had a consistent 25 policy of failing to pay Employees for hours worked during alleged meal periods for which 26 Employees were consistently denied as they had to continue assisting customers after clocking out. 27 24, Defendants knew or should have known that Plaintiffs and the putative class were 28 not “on the clock” after they had clocked out and therefore should not have directed Plaintiffs and FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT the putative class to perform any additional work once they had clocked out. 25. Plaintiffs and the putative class were not paid for all hours worked as they were required to clock out once their 8-hour shifts expired but continued working an additional 6-8 hours after clocking out. As discussed above, Plaintiff and the putative class were also not paid for all hours Additionally, Defendants had a consistent policy of failing to pay Employees for hours worked during alleged real periods after clocking out. 26. As a result, Plaintiffs and the putative class were not paid for the time spent working off-the-clock. Off-the-Clock Work/Travel 10 27. Chess and the putative class were not paid all wages eamed as Defendants directed, 11 permitted or otherwise encouraged Chess and the putative class to perform off-the-clock work. 12 28. Chess and the putative class regularly worked off the clock. Defendants required 13 Chess and the putative class to travel to Sacramento, California twice a month for corporate 14 meetings. Defendants failed to compensate Chess and the putative class with all hourly and 1s overtime wages for time spent traveling to Sacramento, California for work purposes. 16 29. Specifically, Chess and the putative class spent traveled at least three and a half (3 17 1/2) hours traveling twice a month, yet they were not compensation for the time spent traveling. 18 30. As a result of performing off-the-clock work that was directed, permitted or 19 otherwise encouraged by Defendants, Chess and the putative class should have been paid for this 20 time. Instead, Defendants only paid Chess and the putative class based on the time they were 21 clocked in for their shifts and did not pay Chess and the putative class for any of the time spent 22 working off-the-clock. 23 31. Defendants knew or should have known that Chess and the putative class were 24 performing work before and after their scheduled work shifts and failed to pay Chess and the 25 putative class for these hours. 26 32. Defendants were aware of this practice and directed, permitted or otherwise 27 encouraged Chess and tlie putative class to perform off-the-clock work. As a result of Defendants’ 28 policies and practices, Chess and the putative class were not paid for all hours worked. FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT Off-the-Clock Work/Post Shift 33. Chess and the putative class were not paid all wages earned as Defendants directed, permitted or otherwise encouraged Chess and the putative class to perform off-the-clock work. 34, Chess and the putative class regularly worked after their scheduled work ended and were not paid for this time. Chess and the putative class were instructed by their trainers and managers to work after clocking out to ensure that their assigned duties for that day were completed and to start on duties for the following day. As a result, Chess and the putative class continued working after their scheduled work ended. Chess and the putative class regularly performed work after their scheduled work hours and were not paid for this time. Chess and the putative class were 10 instructed to perform certain duties such as clean the stores, ensure all devices on the sales floor 11 were in order and other related duties after they had already clocked out and were not paid for the 12 time spent performing these additional duties. 13 35. As a result of performing off-the-clock work that was directed, permitted or 14 otherwise encouraged by Defendants, Chess and the putative class should have been paid for this 15 time. Instead, Defendants only paid Chess and the putative class based on the time they were 16 clocked in for their shifts and did not pay Chess and the putative class for any of the time spent 17 working off-the-clock. 18 36. Defendants knew or should have known that Plaintiffs and the putative class were 19 performing work before and after their scheduled work shifts and failed to pay Chess and the 20 putative class for these hours. 21 37. Defendants were aware of this practice and directed, permitted or otherwise encouraged Plaintiffs and the putative class to perform off-the-clock work. As a result of 23 Defendants’ policies and practices, Chess and the putative class were not paid for all hours worked. 24 Misclassification as Exempt Employe 25 38. Chess and the putative class were also misclassified as exempt employees when in 26 fact they were non-exempt. Chess and the putative class regularly worked more than eight hours 27 each workday, and more than forty hours each workweek. Plaintiffs and the putative class were 28 paid a fixed and inadequate salary regardless of the hours they worked. For instance, Plaintiffs and FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT the putative class were paid every three (3) weeks in the amount of $3,500. This amount is below the minimum wage requirements and Plaintiffs and the putative class members were not paid at least two times the minimum wage for all hours worked. 39. Chess and the putative class did not perform duties, more than fifty percent (50%) of the time, that would qualify them as exempt employees under the Professional, Executive or Administrative exemptions. 40. Accordingly, Chess and the putative class were entitled to all the protections afforded to them as non-exempt employees under California law. 4l. As a result of being misclassified as an exempt employee, the time spent by 10 Plaintiffs and the putative class were not accurately recorded by the timekeeping system utilized by i Defendants and therefore resulted in the failure to pay Plaintiffs and the putative class for all hours 12 actually worked and overtime compensation. 13 Misclassification/Meal Periods 14 42. Chess and the putative class members were misclassified and not provided with 15 meal periods of at least thirty (30) minutes for each five (5) hour work period due to (1) 16 Defendants’ policy of misclassifying non-exempt employees ; (2) Defendants’ policy of not 17 scheduling each meal period as part of each work shift; (3) chronically understaffing each work 18 shift with not enough workers; (4) imposing so much work on each employee such that it made it 19 unlikely that an employee would be able to take their breaks if they wanted to finish their work on 20 time; and (5) no formal written meal and rest period policy that encouraged employees to take their 21 meal and rest periods. 22 43. As a result of Defendants’ policy, Chess and the putative class were regularly not 23 provided with uninterrupted meal periods of at least thirty (30) minutes for each five (5) hours 24 worked due to complying with Defendants’ productivity requirements that required Plaintiffs and 25 the putative class to work through their meal periods in order to complete their assignments on 26 time. 27 Misclassification/Rest Periods 28 44, Chess and the putative class members were misclassified and not provided with rest FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT periods of at least ten (10) minutes for each four (4) hour work period, or major fraction thereof, due to (1) Defendants’ policy of misclassifying non-exempt employees; (2) Defendants’ policy of not scheduling each rest period as part of each work shift; (3) chronically understaffing each work shift with not enough workers; (4) imposing so much work on each employee such that it made it unlikely that an employee would be able to take their breaks if they wanted to finish their work on time; and (5) no formal written meal and rest period policy that encouraged employees to take their meal and rest periods. 45. As a result of Defendants’ policy, Chess and the putative class were regularly not provided with uninterrupted rest periods of at least ten (10) minutes for each four (4) hours worked. 10 due to complying with Defendants’ productivity requirements that required Chess and the putative 11 class to work through their rest periods in order to complete their assignments on time. 12 Missed Meal Periods 13 46. Plaintiffs and the putative class members were not provided with meal periods of at 14 least thirty (30) minutes for each five (5) hour work period due to (1) Defendants’ policy of not 15 scheduling each meal period as part of each work shift; (2) chronically understaffing each work 16 shift with not enough workers; (3) imposing so much work on each employee such that it made it 17 unlikely that an employee would be able to take their breaks if they wanted to finish their work on 18 time; and (4) no formal written meal and rest period policy that encouraged employees to take their 19 meal and rest periods. 20 47. As a matter of uniform and unlawful Company policy, Plaintiffs and the putative 21 class members were required to work during their meal periods and rest breaks, and they were not 22 compensated for this off the clock work. 23 48. As a result of Defendants’ policy, Plaintiffs and the putative class were regularly not 24 provided with uninterrupted meal periods of at least thirty (30) minutes for each five (5) hours 25 worked due to complying with Defendants’ productivity requirements that required Plaintiffs and 26 the putative class to work off-the-clock through their meal periods in order to complete their 27 assignments on time. 28 Ml FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT Missed Rest Periods 49. Plaintiffs and the putative class members were not provided with rest periods of at least ten (10) minutes for each four (4) hour work period, or major fraction thereof, due to (1) Defendants’ policy of not scheduling each rest period as part of each work shift; (2) chronically understaffing each work shift with not enough workers; (3) imposing so much work on each employee such that it made it unlikely that an employee would be able to take their breaks if they wanted to finish their work on time; and (4) no formal written meal and rest period policy that encouraged employees to take their meal and rest periods. 50. As a matter of uniform and unlawful Company policy, Plaintiffs and the putative 10 class members were required to work during their meal periods and rest breaks, and they were not 11 compensated for this off the clock work. 12 Si. As a result of Defendants’ policy, Plaintiffs and the putative class were regularly not 13 provided with uninterrupted rest periods of at least ten (10) minutes for each four (4) hours worked 14 due to complying with Defendants’ productivity requirements that required Plaintiffs and the 15 putative class to work through their rest periods in order to complete their assignments on time. 16 Vacation Pay 17 52. Chess and the putative class accrued vacation wages during their employment with 18 Defendants. 19 53. Under California law, vacation wages are considered a form of wages under Labor 20 Code section 200. Vested vacation pay and other similar forms of paid time off earned based on 21 labor performed are considered wages that cannot be subject to forfeiture without compensation for 22 forfeited days at the applicable rates required by law. 23 54, At all relevant times, Defendants maintained policies that provide for the unlawful 24 forfeiture of vested vacation pay in violation of Labor Code section 227.3 and Suastez v. Plastic 25 Dress-Up Co., (1982) 31 Cal. 3d 774. 26 55. Chess and the putative class are entitled to vacation accrued during their employment 27 with Defendants. Upon termination, Plaintiffs and the putative class were not paid out all accrued 28 vacation pay. FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT Sick Pay 56. Chess and the putative class accrued sick pay during their employment with Defendants. 357. Under California law, vacation wages are considered a form of wages under Labor Code section 200. Vested vacation pay and other similar forms of paid time off earned based on labor performed are considered wages that cannot be subject to forfeiture without compensation for forfeited days at the applicable rates required by law. 58. At all relevant times, Defendants maintained policies that provide for the unlawful forfeiture of vested vacation pay in violation of Labor Code section 227.3 and Suastez v. Plastic 10 Dress-Up Co., (1982) 31 Cal. 3d 774. 11 59. Chess and the putative class are entitled to vacation accrued during their employment 12 with Defendants. Upon termination, Plaintiffs and the putative class were not paid out all accrued 13 vacation pay. 14 Regular Rate of Pay 15 60. The regular rate of pay under California law includes all remuneration for 16 employment paid to, on behalf of, the employee. This requirement includes, but is not limited, to, 17 nondiscretionary commissions, incentive pay, and/or nondiscretionary bonuses earned, personal 18 cellphone usage, personal vehicle usage and overtime hours worked. 19 61. During the applicable limitations period, Defendants violated the rights of Plaintiffs 20 and the putative class under the above-referenced Labor Code sections by failing to pay them 21 overtime wages for all overtime hours worked in violation of Labor Code §§ 510, 1194, and 1198 22 as a result of not correctly calculating their regular rate of pay to include all applicable 23 remuneration, including, but not limited to, nondiscretionary commissions, incentive pay, and/or 24 nondiscretionary bonuses earned and/or overtime hours worked. 25 62. During the applicable limitations period, Defendants violated the rights of Plaintiffs 26 and the putative class under the above-referenced Labor Code sections by failing to reimburse 27 them in violation of Labor Code § 2802 as a result of not correctly calculating their regular rate of 28 pay to include all applicable remuneration, including personal cellphone usage and personal FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT vehicle usage. Expense Reimbursement 63. Chess and the putative class members were required to utilize their own personal cellphones and vehicles to perform their job duties. 64. Chess and the putative class members were required to pay for personal cellphones as a necessary condition of employment. Specifically, Chess and putative class were required to have a mobile device that would allow them to download an application called “WhatsApp” in order to stay connected to managers, assistant managers, sales associates and other corporate bodies. Chess and the putative class members were required to stay constantly connected to 10 WhatsApp for internal communications and updates regarding daily operations, daily sales, ll customer service and other related day to day work related communications. 12 65. Chess and the putative class members were insufficiently reimbursed for expenses 13 incurred due to their personal cellphone usage. 14 66. Chess and the putative class members were required to travel to Sacramento, 15 California twice a month for corporate meetings. Chess and the putative class members were not 16 reimbursed for travel expenditures. 17 67. In addition, Chess and the putative class members were not paid at least two times 18 the minimum wage for all hours worked. 19 68. Defendants failed to reimburse Chess and the putative class for such necessary 20 business expenses incurred by them. 21 Wage Statements 22 69. Plaintiffs and the putative class were not provided with accurate wage statements as 23 mandated by law pursuant to Labor Code section 226. 24 70. Defendants failed to comply with Labor Code section 226(a)(1) as “gross wages 25 earned” were not accurately reflected in that: all hours worked, including overtime, were not 26 included. 27 71. Defendants failed to comply with Labor Code section 226(a)(2) as “total hours 28 worked by the employee” were not accurately reflected in that: all hours worked, including FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT overtime, were not included. 72. Defendants failed to comply with Labor Code section 226(a)(5) as “net wages earned” were not accurately reflected in that: all hours worked, including overtime, were not included. 73. Defendants failed to comply with Labor Code-section 226(a)(9) as “all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee” were not accurately reflected in that: all hours worked, including overtime, were not included. 74. Additionally, the wage statements provided to Plaintiffs and the putative class were 10 confusing and required Plaintiffs and the putative class to engage in discovery and refer to outside 11 sources to verify whether their pay was correct and potentially resulting in a miscalculation by the 12 Plaintiffs and the putative class. Additionally, Defendants failed in their affirmative obligation to keep 13 accurate records of the correct overtime wages based on proper regular rate calculations that included 14 nondiscretionary commissions, incentive pay, and/or nondiscretionary bonuses earned, and the total 15 amount of compensation of Plaintiffs and the putative class. Moreover, the wage statements given to 16 Plaintiffs and the putative class by Defendants failed to accurately account for wages, overtime, and 17 premium pay for deficient meal periods and rest breaks, and automatically deducted wages for 18 alleged meal periods, all of which Defendants knew or reasonably should have known were owed to 19 Plaintiffs and the putative class, as alleged hereinabove. 20 FIRST CAUSE OF ACTION 21 FAILURE TO PROVIDE MEAL PERIODS 22 (Lab. Code §§ 004, 223, 226.7, 512 and 1198) 23 / (Plaintiffs, Non-Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class) 24 75. Plaintiffs incorporates by reference the preceding paragraphs of the Complaint as if 25 fully alleged herein. 26 76. At all relevant times, Plaintiffs and the Non-Exempt Meal Period Sub-Class and 27 Exempt Meal Period Sub-Class members have been non-exempt employees of Defendant entitled 28 to the full meal period protections of both the Labor Code and the applicable Industrial Welfare FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT Commission Wage Order. 77. Labor Code section 512 and Section 11 of the applicable IndustrialWelfare Commission Wage Order impose anaffirmative obligation on employers to provide non-exempt employees with uninterrupted, duty-free meal periods of at least thirty minutes for each work period of five hours, and to provide them with two uninterrupted, duty-free meal periods of at least thirty minutes for each work period of ten hours. 78. Labor Code section 226.7 and Section 11 of the applicable Industrial Welfare Commission Wage Order (“Wage Order”) both prohibit employers from requiring employees to work during required meal periods and require employers to pay non-exempt employees an hour of 10 premium wages on each workday that the employee is notprovided with the required meal period. 11 79. Compensation for missed meal periods constitutes wages within the meaning of 12 Labor Code section 200. 13 80. Labor Code section 1198 makes it unlawful to employ a person under conditions that 14 violate the applicable Wage Order. 15 81. Section 11 of the applicable Wage Order states: 16 “No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of 17 not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and employee. Unless the employee is 18 relieved of all duty during a 30 minute meal period, the meal period shall be considered an ‘on duty’ meal period and counted as time worked. An ‘on duty’ meal 19 period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties 20 an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.” 21 22 82. At all relevant times, Plaintiffs were not subject to valid on-duty meal period 23 agreements. Plaintiffs are informed and believes that, at all relevant times, Non-Exempt Meal 24 Period Sub-Class and Exempt Meal Period Sub-Class members were not subject to valid on-duty 25 meal period agreements with Defendants. 26 83. Plaintiffs alleges that, at all relevant times during the applicable limitations period, 27 Defendants maintained a policy or practice of not providing Plaintiffs andmembers of the Non- 28 Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class with uninterrupted, duty- FIRST AMENDED CONSOLIDATED CLASS ACT! TON COMPLAINT free meal periods for at least thirty (30) minutes for each five (5) hour work period, as required by Labor Code section 512 ad the applicable Wage Order. 84. Plaintiffs alleges that, at all relevant times during the applicable limitations period, Defendants maintained a policy or practice of failing to pay premium wages to Non-Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class members when they worked five (5) hours without clocking out for any meal period. 85. Plaintiffs alleges that, at all relevant times during the applicable limitations period, Defendants maintained a policy or practice of not providing Plaintiffs and members of the Non- Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class with a second meal period 10 when they worked shifts of ten or more hours and failed to pay them premium wages as required by 11 Labor Code 512 and the applicable Wage Order. 12 86. At all relevant times, Defendants failed to pay Plaintiffs and the Non-Exempt Meal 13 Period Sub-Class and Exempt Meal Period Sub-Class members additional premium wages, 14 and/or were not paid premium wages at the employees’ regular rates of pay when required meal 15 periods were not provided. 16 87. Pursuant to Labor Code section 204, 218.6 and 226.7, Plaintiffs, on behalf of 17 themselves and the Non-Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class 18 members, seek to recover unpaid premium wages, interest thereon, and costs of suit. 19 88. Pursuant to Labor Code section 1194, Code of Civil Procedure section 1021.5, the 20 substantial benefit doctrine, and/or the common fund doctrine, Plaintiffs, on behalf of themselves 21 and the Non-Exempt Meal Period Sub-Class and Exempt Meal Period Sub-Class members, 22 seek to recover reasonable attorneys’ fees. 23 SECOND CAUSE OF ACTION 24 FAILURE TO PROVIDE REST PERIODS 25 (Lab. Code §§ 204, 223, 226.7 and 1198) 26 (Plaintiffs, Non-Exempt Rest Period Sub-Class and Exempt Rest Period Sub-Class) 27 89. Plaintiffs incorporate the preceding paragraphs of the Complaint as if fully alleged 28 herein. FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT 90. At all relevant times, Plaintiffs and the Non-Exempt Rest Period Sub-Class and Exempt Rest Period Sub-Class members have been non-exempt employees of Defendants entitled to the full rest period protections of both the Labor Code and the applicable Wage Order. 91. Section 12 of the applicable Wage Order imposes an affirmative obligation on employers to permit and authorize employees to take required rest periods at a rate of no less than ten minutes of net re