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Andrew J. Sokolowski (SBN 226685)
Andrew.Sokolowski@capstonelawyers.com
Jennifer R. Bagosy (SBN 223145)
Jennifer.Bagosy@capstonelawyers.com
Suzy E. Lee (SBN 271120)
Suzy.Lee@capstonelawyers.com
Capstone Law APC
1875 Century Park East, Suite 1000
Los Angeles, California 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
Attorneys for Plaintiff Mishelle Neverson
SUPERIOR COURT OF THE STATE OF CALIFORNIA
1 PH OES
ACSA JUTOQUGIRO. CLERK
i
FOR THE COUNTY OF SAN JOAQUIN
MISHELLE NEVERSON, as an aggrieved
employee pursuant to the Private Attorneys
General Act (“PAGA”),
Plaintiff,
vs.
EE
Case No.: Oe ww HSSY
PAGA ENFORCEMENT ACTION
(1) Claim for Civil Penalties for Violations
of California Labor Code, Pursuant to
PAGA, §§ 2698, ef seq
BROOKDALE SENIOR LIVING Jury Trial Demanded
COMMUNITIES, INC., a Delaware
corporation; EMERITUS CORPORATION,
a Washington corporation; and DOES 1
through 10, inclusive,
Defendants.
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Plaintiff Mishelle Neverson, as an aggrieved employee and on behalf of all other
aggrieved employees, alleges as follows:
JURISDICTION AND VENUE
1, This is an enforcement action under the Labor Code Private Attorneys General
Act of 2004, California Labor Code sections 2698 et seg. (“PAGA”) to recover civil penalties
and any other available relief on behalf of Plaintiff, the State of California, and other current
and former employees who worked for Defendants in California as non-exempt, hourly-paid
employees at a skilled nursing facility and against whom one or more violations of any
provision in Division 2 Part 2 Chapter | of the Labor Code or any provision regulating hours
and days of work in the applicable Industrial Welfare Commission (“IWC”) Wage Order were
committed, as set forth in this complaint, at any time between one year prior to the filing of
this complaint until judgment (‘“non-party Aggrieved Employees”). Plaintiff's share of civil
penalties sought in this action does not exceed $75,000.
2. This Court has jurisdiction over this action pursuant to the California
Constitution, Article VI, section 10. The statute under which this action is brought does not
specify any other basis for jurisdiction.
3. This Court has jurisdiction over all Defendants because, on information and
belief, Defendants are either citizens of California, have sufficient minimum contacts in
California, or otherwise intentionally avail themselves of the California market so as to render
the exercise of jurisdiction over them by the California courts consistent with traditional
notions of fair play and substantial justice. There is no basis for federal diversity jurisdiction
in this action given that the State of California, as the real party in interest in this action, is not
a “citizen” for purposes of satisfying diversity jurisdiction. Urbino v. Orkin Servs. of Cal.,
726 F.3d 1118, 1123 (9th Cir. Cal. 2013). Urbino also holds that civil penalties cannot be
aggregated to satisfy the amount in controversy requirement for federal diversity jurisdiction
in this action, and that diversity jurisdiction cannot be established when Plaintiffs’ share of the
civil penalties attributable to violations personally suffered are less than $75,000. a. at 1122.
4, Venue is proper in this Court, because Defendants employ persons in this
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PAGA COMPLAINTcounty and employed Plaintiff in this county, and thus a substantial portion of the transactions
and occurrences related to this action occurred in this county.
5. California Labor Code sections 2698 et seg., the “Labor Code Private Attorneys
General Act of 2004” (“PAGA”), authorize aggrieved employees to sue as private attorneys
general their current or former employers for various civil penalties for violations of various
provisions in the California Labor Code.
THE PARTIES
6. Plaintiff MISHELLE NEVERSON is a resident of Tracy, in San Joaquin
County, California. Defendants employed Plaintiff as a non-exempt, hourly-paid Resident
Programs Assistant and Activities Director from approximately June 2015 to October 2016 at
their facility located in Tracy, California. Plaintiff typically worked eight (8) hours or more
per day, five (5) days or more per week, and approximately forty (40) hours per week. At the
time Plaintiff's employment with Defendants ended, she earned $11.00 per hour. Plaintiff's
job duties included, without limitation, planning activities for the residents, taking residents
on field trips, performing general clerical work, and providing resident care as needed.
7. Defendant BROOKDALE SENIOR LIVING COMMUNITIES, INC. was and
is, upon information and belicf, a Delaware corporation, and at all times hereinafter
mentioned, an employer whose employees are engaged throughout this county, the State of
California, or the various states of the United States of America.
8. Defendant EMERITUS CORPORATION was and is, upon information and
belief, a Washington corporation, and at all times hereinafter mentioned, an employer whose
employees are engaged throughout this county, the State of California, or the various states of
the United States of America.
9 Plaintiff is unaware of the true names or capacities of the Defendants sued
herein under the fictitious names DOES 1 through 10, but will seek leave of this Court to”
amend the complaint and serve such fictitiously named Defendants once their names and
capacities become known.
10. Plaintiff is informed and believes, and thereon alleges, that DOES 1] through 10
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PAGA COMPLAINTSoo ew NN WH FF YH NY =
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13
are the partners, agents, owners, shareholders, managers, or employees of BROOKDALE
SENIOR LIVING COMMUNITIES, INC. and EMERITUS CORPORATION at all relevant
times,
11. Plaintiff is informed and believes, and thereon alleges, that each and all of the
acts and omissions alleged herein was performed by, or is attributable to, BROOKDALE
SENIOR LIVING COMMUNITIES, INC., EMERITUS CORPORATION, and/or DOES 1
through 10 (collectively “Defendants” or “BROOKDALE”), each acting as the agent,
employee, alter ego, and/or joint venturer of, or working in concert with, each of the other co-
Defendants and was acting within the course and scope of such agency, employment, joint
venture, or concerted activity with legal authority to act on the others’ behalf. The acts of any
and all Defendants were in accordance with, and represent, the official policy of Defendants.
12. At all relevant times, Defendants, and each of them, ratified each and every act
or omission complained of herein. At all relevant times, Defendants, and each of them, aided
and abetted the acts and omissions of each and all the other Defendants in proximately causing
the damages herein alleged.
13. Plaintiff is informed and believes, and thereon alleges, that each of said
Defendants is in some manner intentionally, negligently, or otherwise responsible for the acts,
omissions, occurrences, and transactions alleged herein.
14. Under California law, Defendants are jointly and severally liable as employers
for the violations alleged herein because they have each exercised sufficient control over the
wages, hours, working conditions, and employment status of Plaintiff and other non-party
Aggrieved Employees. Each Defendant had the power to hire and fire Plaintiff and other non-
party Aggrieved Employees, supervised and controlled their work schedule and/or conditions
of employment, determined their rate of pay, and maintained their employment records.
Defendants suffered or permitted Plaintiff and other non-party Aggrieved Employees to work
and/or “engaged” Plaintiff and other non-party Aggrieved Employees so as to create a
common-law employment relationship. As joint employers of Plaintiff and other non-party
Aggrieved Employees, Defendants are jointly and severally liable for the civil penalties and
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PAGA COMPLAINTall other relief available to Plaintiff and other non-party Aggrieved Employees under the law.
15. Plaintiff are informed and believe, and thereon allege, that at all relevant times,
Defendants, and each of them, have acted as joint employers with respect to Plaintiff and other
non-party Aggrieved Employees because Defendants have:
(a) jointly exercised meaningful control over the work performed by
Plaintiff and other non-party Aggrieved Employees;
(b) jointly exercised meaningful control over Plaintiff and other non-party
Aggrieved Employees’ wages, hours, and working conditions, including
the quantity, quality standards, speed, scheduling, and operative details
of the tasks performed by Plaintiff and other non-party Aggrieved
Employees;
(c) jointly required that Plaintiff and other non-party Aggrieved Employees
perform work which is an integral part of Defendants’ businesses; and
(d) jointly exercised control over Plaintiff and other non-party Aggrieved
Employees as a matter of economic reality in that Plaintiff and other
non-party Aggrieved Employees were dependent on Defendants, who
shared the power to set the wages of Plaintiff and other non-party
Aggrieved Employees and determine their working conditions, and who
jointly reaped the benefits from the underpayment of their wages and
noncompliance with other statutory provisions governing their
employment.
16. Plaintiff is informed and believes, and further alleges, that at all relevant times
there has existed a unity of interest and ownership between Defendants such that any
individuality and separateness between the entities has ceased.
17. BROOKDALE SENIOR LIVING COMMUNITIES, INC., EMERITUS
CORPORATION, and DOES 1 through 10 are therefore alter egos of each other.
18. Adherence to the fiction of the separate existence of Defendants would permit
an abuse of the corporate privilege, and would promote injustice by protecting Defendants
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PAGA COMPLAINTfrom liability for the wrongful acts committed by it under the name BROOKDALE.
19. Plaintiffs further allege, upon information and belief, that BROOKDALE
SENIOR LIVING COMMUNITIES, INC. and EMERITUS CORPORATION share the same
business address at 111 Westwood Place, Suite 400, Brentwood, TN, 39027, and also share
the same agent for service of process, Corporation Service Company, 2710 Gateway Oaks
Drive, Suite 150N, Sacramento, CA, 95833.
PAGA REPRESENTATIVE ALLEGATIONS
20. Defendants are a Delaware corporation which operate skilled nursing facilities
throughout California, and are either parent or sibling companies to approximately twelve (12)
other skilled nursing companies, including Chancellor Health Care and Merrill Gardens,
which operate in California.
21. Upon information and belief, Defendants maintain a single, centralized Human
Resources department at their corporate headquarters in Brentwood, Tennessee, which is
responsible for collecting and processing all new hire paperwork, and communicating and
implementing Defendants’ company-wide policies, including timekeeping policies and meal
and rest break policies, to employees throughout California.
22. In particular, Plaintiff and other non-party Aggrieved Employees, on
information and belief, received the same standardized documents and/or written policies.
Upon information and belief, the usage of standardized documents and/or written policies,
including new hire documents, indicate that Defendants dictated policies at the corporate level
and implemented them company-wide, regardless of their employees’ assigned locations or
positions. Upon information and belief, Defendants set forth uniform policies and procedures
in several documents provided at an employee’s time of hire. At the time Plaintiff was hired,
she received a Meal & Rest Break Acknowledgment and an Associate Handbook Receipt and
Acknowledgment page for her signature, informing her that she would be subject to the
policies and rules listed in her new hire documents.
23. On information and belief, all transactions regarding hiring, terminations,
promotions, pay increases, and employee transfers, etc., relating to Defendants’ California
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PAGA COMPLAINTemployees were submitted to and processed by Defendants’ HR department in Brentwood,
Tennessee. Additionally, on information and belief, Defendants’ corporate records, business
records, data, and other information related to Defendants, including, in particular, HR records
pertaining to Defendants’ California employees, are also maintained at Defendants’ corporate
headquarters in Brentwood, Tennessee.
24. Upon information and belief, Defendants maintain a centralized Payroll
department at their corporate headquarters in Brentwood, Tennessee, which processes payroll
for all non-exempt, hourly-paid employees working for Defendants at their various locations
in California, including Plaintiff and other non-party Aggrieved Employees. Based upon
information and belief, Defendants issued the same formatted wage statements to all non-
exempt employees in California, irrespective of their work location. Upon information and
belief, Defendants process payroll for departing employees in the same manner throughout the
State of California, regardless of the manner in which each employee’s employment ends.
25. Defendants continue to employ non-exempt, hourly-paid employees at skilled
nursing facilities within California.
26. Plaintiff is informed and believes, and thereon alleges, that at all times herein
mentioned, Defendants were advised by skilled lawyers and other professionals, employees
and advisors knowledgeable about California labor and wage law, employment and personnel
practices, and about the requirements of California law.
27, Plaintiff is informed and believes, and thereon alleges, that Plaintiff and other
non-party Aggrieved Employees were not paid for all hours worked because all hours worked
were not recorded.
28. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or
should have known that Plaintiff and other non-party Aggrieved Employees were entitled to
receive certain wages for overtime compensation and that they were not receiving certain
wages for overtime compensation,
29. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or
should have known that Plaintiff and other non-party Aggrieved Employees were entitled to
Page 6
PAGA COMPLAINTbe paid at a regular rate of pay, and corresponding overtime rate of pay, that included all
forms of remuneration paid to Plaintiff and other non-party Aggrieved Employees, including
incentive pay and/or other forms of compensation.
30. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or
should have known that Plaintiff and other non-party Aggrieved Employees were entitled to
receive at least minimum wages for compensation and that they were not receiving at least
minimum wages for work that was required to be done off-the-clock. In violation of the
California Labor Code, Plaintiff and other non-party Aggrieved Employees were not paid at
least minimum wages for work done off-the-clock.
31. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or
should have known that Plaintiff and other non-party Aggrieved Employees were entitled to
meal periods in accordance with the Labor Code or payment of one (1) additional hour of pay
at their regular rates of pay when they were not provided with timely, uninterrupted, thirty
(30) minute meal periods and that Plaintiff and other non-party Agerieved Employees were
not provided with all meal periods or payment of one (1) additional hour of pay at their
regular rates of pay when they did not receive a timely, uninterrupted, thirty (30) minute meal
period. ,
32. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or
should have known that Plaintiff and other non-party Aggrieved Employees were entitled to
rest periods in accordance with the Labor Code and applicable IWC Wage Order or payment
of one (1) additional hour of pay at their regular rates of pay when they were not provided
with a compliant rest period and that Plaintiff and other non-party Aggrieved Employees were :
not provided compliant rest periods or payment of one (1) additional hour of pay at their
regular rates of pay when they were not provided a compliant rest period.
33. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or
should have known that Plaintiff and other non-party Aggrieved Employees were entitled to
receive complete and accurate wage statements in accordance with California law. In
violation of the California Labor Code, Plaintiff and other non-party Aggrieved Employees
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PAGA COMPLAINTwere not provided complete and accurate wage statements.
34. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or
should have known that they had a duty to maintain accurate and complete payroll records in
accordance with the Labor Code and applicable IWC Wage Order, but willfully, knowingly,
and intentionally failed to do so.
35, Plaintiff is informed and believes, and thereon alleges, that Defendants knew or
should have known that Plaintiff and other non-party Aggrieved Employees were entitled to
timely payment of all wages earned upon termination of employment. In violation of the
California Labor Code, Plaintiff and other non-party Aggrieved Employees did not receive
payment of all wages due, including, but not limited to, overtime wages, minimum wages, and
meal and rest period premiums, within permissible time periods.
36. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or
should have known that Plaintiff and other non-party Aggrieved Employees were entitled to
timely payment of wages during their employment. In violation of the California Labor Code,
Plaintiff and other non-party Aggrieved Employees did not receive payment of all wages,
including, but not limited to, overtime wages, minimum wages, and meal and rest period
premiums, within permissible time periods.
37. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or
should have known that they had a duty to cover the costs and expenses Plaintiff and other
non-party Aggrieved Employees incurred obtaining mandatory pre-employment physical
examinations but willfully, knowingly, and intentionally failed to do so.
38. Plaintiff is informed and believes, and thereon alleges that Defendants knew or
should have known that Plaintiff and other non-party Aggrieved Employees were entitled to
receive reimbursement for all business-related expenses and costs they incurred during the
course and scope of their employment, and that they did not receive reimbursement of
applicable business-related expenses and costs they incurred.
39. Plaintiff is informed and believes, and thereon alleges, that at all times herein
mentioned, Defendants knew or should have known that they had a duty to provide Plaintiff
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PAGA COMPLAINTand other non-party Aggrieved Employees with written notice of the material terms of their
employment with Defendants as required by the California Wage Theft Prevention Act, but
willfully, knowingly, and intentionally failed to do so.
40. Plaintiff is informed and believes, and thereon alleges, that at all times herein
mentioned, Defendants knew or should have known that they had a duty to compensate
Plaintiff and other non-party Aggrieved Employees for all hours worked, and that Defendants
had the financial ability to pay such compensation, but willfully, knowingly, and intentionally
failed to do so, and falsely represented to Plaintiff and other non-party Aggrieved Employees
that they were properly denied wages, all in order to increase Defendants’ profits.
41. Atall times herein set forth, PAGA provides that any provision of law under
the Labor Code and applicable IWC Wage Order that provides for a civil penalty to be
assessed and collected by the LWDA for violations of the California Labor Code and
applicable IWC Wage Order may, as an alternative, be recovered by aggrieved employees in a
civil action brought on behalf of themselves and other current or former employees pursuant
to procedures outlined in California Labor Code section 2699.3.
42. PAGA defines an “aggrieved employee” in Labor Code section 2699(c) as “any
person who was employed by the alleged violator and against whom one or more of the
alleged violations was committed.”
43, Plaintiff and other current and former employees of Defendants are “aggrieved
employees” as defined by Labor Code section 2699(c) in that they are all Defendants’ current
or former employees and one or more of the alleged violations were committed against them.
44. Pursuant to California Labor Code sections 2699.3 and 2699.5, an aggrieved
employee, including Plaintiff, may pursue a civil action arising under PAGA after the
following requirements have been met:
(a) The aggrieved employee shall give written notice by online filing
(hereinafter “Employee’s Notice”) to the LWDA and by certified mail
to the employer of the specific provisions of the California Labor Code
alleged to have been violated, including the facts and theories to support
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PAGA COMPLAINTthe alleged violations.
(b) An aggrieved employee’s notice filed with the LWDA pursuant to
2699,3(a) and any employer response to that notice shall be
accompanied by a filing fee of seventy-five dollars ($75).
(c) | The LWDA shall provide notice (hereinafter “LWDA Notice”) to the
employer and the aggrieved employee by certified mail that it does not
intend to investigate the alleged violation within sixty (60) calendar
days of the postmark date of the Employee’s Notice. Upon receipt of
the LWDA Notice, or if the LWDA Notice is not provided within sixty-
five (65) calendar days of the postmark date of the Employee’s Notice,
the aggrieved employee may commence a civil action pursuant to
California Labor Code section 2699 to recover civil penalties in addition
to any other penalties to which the employee may be entitled.
45. Pursuant to California Labor Code sections 2699.3(c), aggrieved employees,
through Plaintiff, may pursue a civil action arising under PAGA for violations of any
provision other than those listed in Section 2699.5 after the following requirements have been
met:
(a) The aggrieved employee or representative shall give written notice by
online filing to the LWDA and by certified mail to the employer of the
specific provisions of the California Labor Code alleged to have been
violated (other than those listed in Section 2699.5), including the facts
and theories to support the alleged violation.
(b) An aggrieved employee’s notice filed with the LWDA pursuant to
2699.3(c) and any employer response to that notice shall be
accompanied by a filing fee of seventy-five dollars ($75).
(c) | The employer may cure the alleged violation within thirty-three (33)
calendar days of the postmark date of the notice. The employer shall
give written notice by certified mail within that period of time to the
Page 10
PAGA COMPLAINTaggrieved employee or representative and the agency if the alleged
violation is cured, including a description of actions taken, and no civil
action pursuant to Section 2699 may commence. If the alleged violation
is not cured within the 33-day period, the employee may commence a
civil action pursuant to Section 2699.
46. On February 22, 2017, Plaintiff provided written notice by online filing to the
LWDA and by certified mail to Defendants of the specific provisions of the California Labor
Code alleged to have been violated, including facts and theories to support the alleged
violations, in accordance with California Labor Code section 2699.3. A true and correct copy
of Plaintiff's written notice to the LWDA and Defendants dated February 22, 2017, is attached
hereto as “Exhibit 1.”
47. As of the filing date of this complaint, over 65 days have passed since Plaintiff
sent the LWDA Notice described above, and the LWDA has not responded that it intends to
investigate Plaintiff's claims and Defendants have not cured the violations.
48. Thus, Plaintiff has satisfied the administrative prerequisites under California
Labor Code sections 2699.3(a) and 2699.3(c) to recover civil penalties against Defendants, in
addition to other remedies, for violations of California Labor Code sections 201, 202, 203,
204, 222.5, 226(a), 226.7, 510, 512(a), 1174(d), 1182.12, 1194, 1197, 1197.1, 1198, 2802, and
2810.5.
49. Labor Code section 558 (a) provides “[a]ny employer or other person acting on
behalf of an employer who violates, or causes to be violated, a section of this chapter or any
provision regulating hours and days of work in any order of the Industrial Welfare
Commission shall be subject to a civil penalty as follows: (1) For any initial violation, fifty
dollars ($50) for each underpaid employee for each pay period for which the employee was
underpaid in addition to an amount sufficient to recover underpaid wages. (2) For cach
subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay
period for which the employee was underpaid in addition to an amount sufficient to recover
underpaid wages.” Labor Code section 558(c) provides “[t]he civil penalties provided for in
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PAGA COMPLAINTa aA we
this section are in addition to any other civil or criminal penalty provided by law.”
50. Defendants, at all times relevant to this complaint, were employers or persons
acting on behalf of an employer(s) who violated Plaintiff and other non-party Aggrieved
Employees’ rights by violating various sections of the California Labor Code as set forth
above.
51. As set forth below, Defendants have violated numerous provisions of both the
Labor Code sections regulating hours and days of work as well as the applicable IWC Wage
Order.
52. Pursuant to PAGA, and in particular, California Labor Code sections 2699(a),
2699.3(a), 2699.3(c), 2699.5, and section 558, Plaintiff, acting in the public interest as a
private attorney general, seeks assessment and collection of civil penalties for herself, all other
non-party Aggrieved Employees, and the State of California against Defendants, in addition to
other remedies, for violations of California Labor Code sections 201, 202, 203, 204, 222.5,
226(a), 226.7, 510, $12(a), 1174(d), 1182.12, 1194, 1197, 1197.1, 1198, 2802, and 2810.5.
FIRST CAUSE OF ACTION
For Civil Penalties, Pursuant to California Labor Code §§ 2698, et seq.
(Against all Defendants)
53. Plaintiff incorporates by reference and re-alleges as if fully stated herein each
and every allegation set forth above.
54. California Labor Code §§ 2698, ef seg. (‘PAGA”) permits Plaintiff to recover
civil penalties for the violation(s) of the Labor Code sections enumerated in Labor Code
section 2699.5. Section 2699.5 enumerates Labor Code sections 201, 202, 203, 204, 222.5,
226(a), 226.7, 510, 512(a), 1174(d), 1194, 1197, 1197.1, 1198, and 2802. Labor Code section
2699.3(c) permits aggrieved employees, including Plaintiff, to recover civil penalties for
violations of those Labor Code sections not found in section 2699.5, including sections
1182.12, and 2810.5.
55. Defendants’ conduct, as alleged herein, violates numerous sections of the
California Labor Code, including, but not limited to, the following:
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PAGA COMPLAINT(a)
(b)
(d)
)
(g)
(h)
@
Violation of Labor Code sections 510, 1198, and the applicable IWC
wage order for Defendants’ failure to compensate Plaintiff and other
non-party Aggrieved Employees with all required overtime pay as set
forth below;
Violation of Labor Code sections 1182.12. 1194, 1197, 1197.1, 1198,
and the applicable IWC wage order for Defendants’ failure to
compensate Plaintiff and other non-party Aggrieved Employees with at
least minimum wages for all hours worked as set forth below;
Violation of Labor Code sections 226.7, 512, 1198, and the applicable
IWC wage order for Defendants’ failure to provide Plaintiff and other
non-party Aggrieved Employees with meal and/or rest periods, as set
forth below;
Violation of Labor Code sections 226(a), 1198, and the applicable IWC
wage order for failure to provide accurate and complete wage statements
to Plaintiff and other non-party Aggrieved Employees, as set forth
below;
Violations of Labor Code sections 1174(d), 1198, and the applicable
IWC wage order for failure to maintain payroll records as set forth
below;
Violation of Labor Code section 204 for failure to pay all earned wages
during employment as set forth below;
Violation of Labor Code sections 201, 202, and 203 for failure to pay all
earned wages upon termination as set forth below;
Violations of Labor Code section 222.5 for failing to pay the costs of
mandatory pre-employment physical examinations as set forth below;
Violation of Labor Code section 2802 for failure to reimburse Plaintiff
and other non-party Aggrieved Employees for all business expenses
necessarily incurred, as set forth below; and
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PAGA COMPLAINTff Ww oN
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@ Violations of Labor Code section 2810.5(a)(1)(A)-(C) for failure to
provide written notice of information material to Plaintiff and other non-
party Aggrieved Employees’ employment with Defendants, as set forth
below.
FAILURE TO PAY OVERTIME
VIOLATION OF LABOR CODE SECTIONS 510 AND 1198
56. Labor Code section 1198 makes it illegal to employ an employee under
conditions of labor that are prohibited by the applicable wage order. California Labor Code
section 1198 requires that “. . . the standard conditions of labor fixed by the commission shall
be the . . . standard conditions of labor for employees. The employment of any employee...
under conditions of labor prohibited by the order is unlawful.”
57. California Labor Code section 1198 and the applicable [WC Wage Order
provide that it is unlawful to employ persons without compensating them at a rate of pay
either time-and-one-half or two-times that person’s regular rate of pay, depending on the
number of hours worked by the person on a daily or weekly basis.
58. Specifically, the applicable IWC Wage Order provides that Defendants are and
were required to pay Plaintiff and other non-party Aggrieved Employees working more than
eight (8) hours in a day or more than forty (40) hours in a workweek, at the rate of time and
one-half (11%) for all hours worked in excess of eight (8) hours in a day or more than forty (40)
hours in a workweek.
59, The applicable IWC Wage Order further provides that Defendants are and were
required to pay Plaintiff and other non-party Aggrieved Employees working more than twelve
(12) hours in a day, overtime compensation at a rate of two (2) times their regular rate of pay.
An employee’s regular rate of pay includes all remuneration for employment paid to, or on
behalf of, the employes, including non-discretionary bonuses and incentive pay.
60. California Labor Code section 510 codifies the right to overtime compensation
at one and one-half times the regular rate of pay for hours worked in excess of eight (8) hours
in a day or forty (40) hours in a week or for the first eight (8) hours worked on the seventh day
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PAGA COMPLAINTof work, and to overtime compensation at twice the employee’s regular rate of pay for hours
worked in excess of twelve (12) hours in a day or in excess of eight (8) hours in a day on the
seventh day of work.
61. During the relevant time-period, Defendants willfully failed to pay all overtime
wages owed to Plaintiff and other non-party Aggrieved Employees. During the relevant time-
period, Plaintiff and other non-party Aggrieved Employees were not paid overtime premiums
for all of the hours they worked in excess of eight (8) hours in a day, in excess of twelve (12)
hours in a day, and/or in excess of forty (40) hours in a week, because al! hours worked were
not recorded.
62, During the relevant-time-period, Defendants had a company-wide policy and/or
practice of staffing their locations strictly based on the labor hours allotted by each location’s
weekly labor or payroll budget, which has resulted in and continues to result in chronic
understaffing and a lack of break coverage, because there were too few employees on duty to
handle the workload and attend to clients and residents.
63. For example, Plaintiff was the only employee staffed to coordinate and plan
resident activities, a workload for which Defendants previously provided more than one
employee. As a result of Defendants’ company-wide failure to provide adequate break
coverage, Plaintiff and other aggrieved employees were rarely, if ever, permitted and
authorized to take timely, uninterrupted 30-minute meal periods during shifts in which they
were entitled to receive meal periods.
64. | Moreover, Defendants did not provide Plaintiff and other non-party Aggrieved
Employees with second 30-minute meal periods on days that they worked in excess of 10
hours in one day. During the relevant time-period, Plaintiff sometimes worked shifts in
excess of 10 hours and did not receive an uninterrupted second 30-minute meal period. Other
non-party Aggrieved Employees also worked in excess of 10 hours per day, but did not
receive a second uninterrupted 30-minute meal period on those days. Plaintiff and other non-
party Aggrieved Employees did not sign valid meal break waivers on days that they were
entitled to meal periods but were not relieved of all duties.
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PAGA COMPLAINTNo
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65. Also, Defendants’ labor or payroll budget policy required Plaintiff and other
non-party Aggrieved Employees to perform work duties prior to clocking in for their shifts,
during meal periods, and after clocking out at the end of their shifts. Plaintiff and other
aggrieved employees were required to clock out at their scheduled meal period start times
and/or at shift end times, upon threat of being disciplined, even though Plaintiff and other
aggrieved employees performed additional duties off-the-clock and were subject to
Defendants’ control during this time. The timekeeping program did not allow employees to
clock back in until the conclusion of the meal period, even if they came back to work early.
Plaintiff would regularly work during meal breaks and both before and after her shifts,
responding to Defendants’ management requests, cleaning up after activities, and responding
to resident requests, even though she was clocked out. She was also required to carry a
walkie-talkie and cell phone with her at all times, to be able to respond to requests.
66. Defendants knew or should have known that, as a result of these company-wide
practices, Plaintiff and other non-party Aggricved Employees were attending to residents and
performing other assigned duties during their meal periods, and thereby performing work for
which they were not paid. Defendants also knew, or should have known, that they did not
compensate Plaintiff and other non-party Aggrieved Employees for this off-the-clock work.
67. Because Plaintiff and other non-party Aggrieved Employees sometimes worked
shifts of eight (8) hours a day or more or forty (40) hours a week or more, some of this off-
the-clock work qualified for overtime premium pay. Therefore, Plaintiff and other non-party
Aggrieved Employees were not paid overtime wages for all of the overtime hours they
actually worked.
68. Also, Defendants did not pay Plaintiff and other non-party Aggrieved
Employees the correct overtime rate for the recorded overtime hours that they generated. For
example, Plaintiff's hourly wage was $11.00 per hour, which translates into an overtime
hourly rate of at least $16.50 per hour. However, a review of her wage records shows that she
was sometimes paid overtime rates of $14.16, $14.18, or $14.20 instead of $16.50.
69. Furthermore, in addition to an hourly wage, Defendants paid Plaintiff and other
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a
non-party Aggrieved Employees incentive pay and/or nondiscretionary bonuses. However, in
violation of the California Labor Code, Defendants failed to incorporate all remunerations,
including incentive pay and/or nondiscretionary bonuses, into the calculation of the regular
rate of pay for purposes of calculating the overtime wage rate. Therefore, during times when
Plaintiff and other non-party Aggrieved Employees worked overtime and received incentive
pay and/or nondiscretionary bonuses, Defendants failed to pay all overtime wages by paying a
lower overtime rate than required.
70. Defendants’ failure to pay Plaintiff and other non-party Aggrieved Employees
the balance of overtime compensation and failure to include all applicable remuneration in
calculating the regular rate of pay for overtime pay, as required by California law, violates the
provisions of California Labor Code sections 510 and 1198. Plaintiff and other non-party
Agerieved Employees are entitled to recover civil penalties pursuant to Labor Code sections
558 and/or 2699(a), (f)-(g).
FAILURE TO PAY MINIMUM WAGES
VIOLATION OF LABOR CODE SECTIONS 1182.12, 1194, 1197, 1197.1, AND 1198
71. At all relevant times, California Labor Code sections 1182.12, 1194, 1197,
1197.1, and 1198 provide that the minimum wage for employees fixed by the IWC is the
minimum wage to be paid to employees, and the payment of a wage less than the minimum so
fixed is unlawful. Compensable work time is defined in Wage Order No. 5 as “the time
during which an employee is subject to the control of an employer, and includes all the time
the employee is suffered or permitted to work, whether or not required to do so.” Cal. Code.
Regs. tit. 8, § 11050(2)(K) (defining “Hours Worked”).
72. As stated, due to Defendants’ staffing practices and resultant lack of meal break
coverage, Plaintiff and other non-party Agerieved Employees were forced to forego meal
periods and/or have their meal periods interrupted by work or delayed by work, and were not
relieved of all duties for unpaid meal periods, in order to attend to residents. In addition,
Defendants systematically failed to pay Plaintiff and other non-party Aggrieved Employees
for actual hours worked during unpaid meal periods because these hours were not always
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PAGA COMPLAINTya A ww wR w
correctly recorded. Also, as set forth above, Defendants’ policies required Plaintiff and other
non-party Aggrieved Employees to clock out for meal periods, upon threat of discipline, even
though Plaintiff and other non-party Aggrieved Employees performed additional duties and
were subject to Defendants’ control during this time.
73. In addition, Defendants maintained and implemented a company-wide policy of
requiring all newly-hired employees and/or prospective employees to undergo a mandatory
physical exam and TB test as a condition of employment. At all times, upon information and
belief, Defendants were in contro! of scheduling the date and time for the exam, selecting the
provider/facility where the exam was to take place, and determining the scope of the exam.
Defendants gave Plaintiff and other non-party Aggrieved Employees strict instructions to
obtain a TB test as a condition of their employment and Plaintiff and other non-party
Aggrieved Employees underwent the testing for the sole benefit of Defendants. However,
Defendants did not compensate Plaintiff and other non-party Aggrieved Employees for the
time they spent traveling to and from the physical exam or for the time they spent undergoing
the exam and TB testing.
74, Thus, Defendants did not pay at least minimum wages for off-the-clock hours
that qualified for overtime premium payment. Also, to the extent that these off-the-clock
hours did not qualify for overtime premium payment, Defendants did not pay at least
minimum wages for those hours worked off-the-clock in violation of California Labor Code
sections 1182.12, 1194, 1197, 1197.1, and 1198.
75. Defendants’ failure to pay Plaintiff and other non-party Aggrieved Employees
minimum wages violates California Labor Code sections 1182.12, 1194, 1197, 1197.1, and
1198. Plaintiff and other non-party Aggrieved Employees are therefore entitled to recover
civil penalties pursuant to sections 1197.1 and/or 2699(a), (f), and (g).
FAILURE TO PROVIDE AND RECORD MEAL PERIODS
VIOLATION OF LABOR CODE SECTIONS 226.7, 512(a), AND 1198
76. Atall relevant times herein set forth, the applicable IWC Wage Order(s) and
California Labor Code sections 226.7, 512(a), and 1198 were applicable to Plaintiff and non-
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PAGA COMPLAINTau aA WwW BR WN
party Aggrieved Employees’ employment by Defendants.
77. Atall relevant times herein set forth, California Labor Code section 512(a)
provides that an employer may not require, cause, or permit an employee to work for a period
of more than five (5) hours per day without providing the employee with a meal period of not
less than thirty (30) minutes, except that if the total work period per day of the employee is
not more than six (6) hours, the meal period may be waived by mutual consent of both the
employer and the employee. Under California law, first meal periods must start after no more
than five hours. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1041-1042 (Cal.
2012).
78, Atall relevant times herein set forth, California Labor Code section 226.7 and
512(a) provide that no employer shall require an employee to work during any meal period
mandated by an applicable order of the IWC.
79. Atall relevant times herein set forth, Labor Code sections 226.7 and 512(a) and
the applicable IWC Wage Order also require employers to provide a second meal break of not
less than thirty (30) minutes if an employee works over ten (10) hours per day or to pay an
employee one (1) additional hour of pay at the employee’s regular rate, except that if the total
hours worked is no more than twelve (12) hours, the second meal period may be waived by
mutual consent of the employer and the employee only if the first meal period was not waived.
80. As stated, Defendants’ company-wide failure to provide adequate meal break
coverage prevented Plaintiff and other non-party Aggrieved Employees from taking compliant
meal periods. As a result of these practices and/or policies, Plaintiff and other non-party
Aggrieved Employees were frequently required to clock out for their meal periods and
continue to perform their duties, such as attending to residents, without being able to take
timely, compliant meal periods. Additionally, Defendants discouraged and impeded Plaintiff
and other non-party Aggrieved Employees from taking compliant breaks by requiring them to
perform tasks, without providing them with meal break coverage.
81. Defendants also maintained and implemented, on a company-wide basis, a non-
compliant written meal period policy that prevented Plaintiff and other non-party Aggrieved
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PAGA COMPLAINTEmployees from taking compliant meal periods. Defendants’ written meal break policy states
that aggrieved employees are entitled to a 30-minute uninterrupted meal period if they work
“more than five (5) hours in a workday.” However, it fails to state that the meal break begin
prior to the end of the employee’s fifth (Sth) hour of work.
82, Further, Defendants did not provide Plaintiff and other non-party Aggrieved
Employees with second 30-minute meal periods on days that they worked in excess of 10
hours in one day. Plaintiff and other non-party Aggrieved Employees did not sign valid meal
break waivers on days that they were entitled to meal periods and were not relieved of all
duties,
83. At all times herein mentioned, Defendants knew or should have known that as a
result of these policies, Plaintiff and other non-party Aggrieved Employees were prevented
from being relieved of all duties and required to perform some of their assigned dutics during
meal periods and that they did not receive timely meal periods. For example, Plaintiff and
other non-party Aggrieved Employees were sometimes made to work over five (5) hours
straight before Defendants permitted and authorized them to take their meal periods, and
Plaintiff's meal periods were often missed, interrupted, or taken late. And as mentioned,
Plaintiff was required to carry a walkie-talkie and cell phone at all times, including during
meal periods, which further prevented her from being relieved of all duties. Plaintiff's meal
periods were also missed or interrupted to attend to residents and respond to management
requests. Defendants further knew or should have known they did not pay Plaintiff and/or
other non-party Aggrieved Employees meal period premium wages when meal periods were
missed, interrupted by work, and/or taken late.
84. Moreover, Defendants engaged in a systematic, company-wide practice and/or
policy to not pay meal period premiums owed when compliant meal periods were not
provided. Alternatively, to the extent that Defendants did pay Plaintiff and/or other non-party
Aggrieved Employees one (1) additional hour of premium pay for missed meal periods,
Defendants did not pay Plaintiff and/or other non-party Aggrieved Employees at the correct
rate of pay for premium wages because Defendants failed to include all forms of
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PAGA COMPLAINTwe Ww NH
Cc wow IUD
compensation, such as incentive pay and/or nondiscretionary bonuses, in the regular rate of
pay. Asa result, Defendants failed to provide Plaintiff and/or other non-party Aggrieved
Employees compliant meal periods and failed to pay the full meal period premiums due.
85. Defendants’ conduct violates the applicable IWC Wage Order, and California
Labor Code sections 226.7, 512(a), and 1198. Plaintiff and other non-party Aggrieved
Employees are entitled to recover civil penalties pursuant to sections 558 and/or 2699(a), (f),
and (g).
FAILURE TO PROVIDE REST PERIODS
VIOLATION OF LABOR CODE SECTIONS 226.7 AND 1198
86, Atall relevant times herein set forth, the applicable [WC Wage Order and
California Labor Code sections 226.7 and 1198 were applicable to Plaintiff and other non-
party Aggrieved Employees’ employment by Defendants.
87. Atall relevant times, the applicable IWC Wage Order provides that “[e]very
employer shall authorize and permit all employees to take rest periods, which insofar as
practicable shall be in the middle of each work period” and that the “rest period time shall be
based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4)
hours or major fraction thereof” unless the total daily work time is less than three and one-half
(3) hours.
88. Atall relevant times, California Labor Code section 226.7 provides that no
employer shall require an employee to work during any rest period mandated by an applicable
order of the California |WC. To comply with its obligation to provide rest periods under
California Labor Code section 226.7 and the applicable IWC Wage Order, an employer must
“relinquish any control over how employees spend their break time, and relieve their
employees of all duties — including the obligation that an employee remain on call. A rest
period, in short, must be a period of rest.” Augustus, et al. v. ABM Security Services, Inc., 2
Cal. Sth 257, 269-270 (2016).
89. Pursuant to the applicable IWC Wage Order and California Labor Code
section 226.7(b), Plaintiff and other non-party Aggrieved Employees are entitled to recover
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PAGA COMPLAINTfrom Defendants one (1) additional hour of pay at their regular rates of pay for each work day
that a required rest period was not provided.
90. During the relevant time-period, Defendants regularly failed to authorize and
permit Plaintiff and other non-party Aggrieved Employees to take a teri (10) minute rest
period per each four (4) hour period worked or major fraction thereof. As with meal periods,
Defendants’ staffing policies and practices prevented Plaintiff and other non-party Aggrieved
Employees from being relieved of all duty in order to take compliant rest periods. As a result,
Plaintiff would frequently work shifts in excess of three and one-half (3 4) hours and in
excess of six (6) hours without receiving all uninterrupted ten (10) minute rest periods to
which she was entitled. Plaintiff was very rarely able to take any kind of rest period because
she was essentially doing the job of two people, and constantly had to attend to residents and
perform her other job tasks. Plaintiff and other non-party Aggrieved Employees also would
sometimes work shifts in excess of ten (10) hours without receiving all uninterrupted ten (10)
minute rest periods to which they were entitled.
91. Defendants have also engaged in a company-wide practice and/or policy to not
pay rest periods premiums owed when compliant meal and rest periods are not provided.
Alternatively, to the extent that Defendants did pay Plaintiff and/or other non-party Aggrieved
Employees one (1) additional hour of premium pay for missed rest periods, Defendants did
not pay Plaintiff and/or other non-party Aggrieved Employees at the correct rate of pay for
premium wages because Defendants failed to include all forms of compensation, such as
incentive pay and/or nondiscretionary bonuses, in the regular rate of pay. Asa result, to the
extent Defendants paid Plaintiff and/or other non-party Aggrieved Employces premium pay
for missed rest periods, it did so at a lower rate than required by law. As a result, Plaintiff and
other non-party Aggrieved Employees were denied rest periods and Defendants failed to pay
the full rest period premiums due, in violation of Labor Code section 226.7 and the applicable
IWC Wage Order.
92. Defendants’ conduct violates the applicable IWC Wage Order and California
Labor Code sections 226.7 and 1198. Plaintiff and other non-party Aggrieved Employces are
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PAGA COMPLAINTtherefore entitled to recover civil penalties pursuant to section 2699(a), (f), and (g).
FAILURE TO PROVIDE AND MAINTAIN COMPLIANT
Preview
win Andrew J. Sokolowski (SBN 226685) Andrew.Sokolowski@capstonelawyers.com Jennifer R. Bagosy (SBN 223145) Jennifer.Bagosy@capstonelawyers.com Suzy E. Lee (SBN 271120) Suzy.Lee@capstonelawyers.com Capstone Law APC 1875 Century Park East, Suite 1000 Los Angeles, California 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 Attorneys for Plaintiff Mishelle Neverson SUPERIOR COURT OF THE STATE OF CALIFORNIA 1 PH OES ACSA JUTOQUGIRO. CLERK i FOR THE COUNTY OF SAN JOAQUIN MISHELLE NEVERSON, as an aggrieved employee pursuant to the Private Attorneys General Act (“PAGA”), Plaintiff, vs. EE Case No.: Oe ww HSSY PAGA ENFORCEMENT ACTION (1) Claim for Civil Penalties for Violations of California Labor Code, Pursuant to PAGA, §§ 2698, ef seq BROOKDALE SENIOR LIVING Jury Trial Demanded COMMUNITIES, INC., a Delaware corporation; EMERITUS CORPORATION, a Washington corporation; and DOES 1 through 10, inclusive, Defendants. ns REESE pais g On Ry 2 Ray G Ag V4 PAGA COMPLAINTCe ND HW BF Ww NY °o Plaintiff Mishelle Neverson, as an aggrieved employee and on behalf of all other aggrieved employees, alleges as follows: JURISDICTION AND VENUE 1, This is an enforcement action under the Labor Code Private Attorneys General Act of 2004, California Labor Code sections 2698 et seg. (“PAGA”) to recover civil penalties and any other available relief on behalf of Plaintiff, the State of California, and other current and former employees who worked for Defendants in California as non-exempt, hourly-paid employees at a skilled nursing facility and against whom one or more violations of any provision in Division 2 Part 2 Chapter | of the Labor Code or any provision regulating hours and days of work in the applicable Industrial Welfare Commission (“IWC”) Wage Order were committed, as set forth in this complaint, at any time between one year prior to the filing of this complaint until judgment (‘“non-party Aggrieved Employees”). Plaintiff's share of civil penalties sought in this action does not exceed $75,000. 2. This Court has jurisdiction over this action pursuant to the California Constitution, Article VI, section 10. The statute under which this action is brought does not specify any other basis for jurisdiction. 3. This Court has jurisdiction over all Defendants because, on information and belief, Defendants are either citizens of California, have sufficient minimum contacts in California, or otherwise intentionally avail themselves of the California market so as to render the exercise of jurisdiction over them by the California courts consistent with traditional notions of fair play and substantial justice. There is no basis for federal diversity jurisdiction in this action given that the State of California, as the real party in interest in this action, is not a “citizen” for purposes of satisfying diversity jurisdiction. Urbino v. Orkin Servs. of Cal., 726 F.3d 1118, 1123 (9th Cir. Cal. 2013). Urbino also holds that civil penalties cannot be aggregated to satisfy the amount in controversy requirement for federal diversity jurisdiction in this action, and that diversity jurisdiction cannot be established when Plaintiffs’ share of the civil penalties attributable to violations personally suffered are less than $75,000. a. at 1122. 4, Venue is proper in this Court, because Defendants employ persons in this Page 1 PAGA COMPLAINTcounty and employed Plaintiff in this county, and thus a substantial portion of the transactions and occurrences related to this action occurred in this county. 5. California Labor Code sections 2698 et seg., the “Labor Code Private Attorneys General Act of 2004” (“PAGA”), authorize aggrieved employees to sue as private attorneys general their current or former employers for various civil penalties for violations of various provisions in the California Labor Code. THE PARTIES 6. Plaintiff MISHELLE NEVERSON is a resident of Tracy, in San Joaquin County, California. Defendants employed Plaintiff as a non-exempt, hourly-paid Resident Programs Assistant and Activities Director from approximately June 2015 to October 2016 at their facility located in Tracy, California. Plaintiff typically worked eight (8) hours or more per day, five (5) days or more per week, and approximately forty (40) hours per week. At the time Plaintiff's employment with Defendants ended, she earned $11.00 per hour. Plaintiff's job duties included, without limitation, planning activities for the residents, taking residents on field trips, performing general clerical work, and providing resident care as needed. 7. Defendant BROOKDALE SENIOR LIVING COMMUNITIES, INC. was and is, upon information and belicf, a Delaware corporation, and at all times hereinafter mentioned, an employer whose employees are engaged throughout this county, the State of California, or the various states of the United States of America. 8. Defendant EMERITUS CORPORATION was and is, upon information and belief, a Washington corporation, and at all times hereinafter mentioned, an employer whose employees are engaged throughout this county, the State of California, or the various states of the United States of America. 9 Plaintiff is unaware of the true names or capacities of the Defendants sued herein under the fictitious names DOES 1 through 10, but will seek leave of this Court to” amend the complaint and serve such fictitiously named Defendants once their names and capacities become known. 10. Plaintiff is informed and believes, and thereon alleges, that DOES 1] through 10 Page 2 PAGA COMPLAINTSoo ew NN WH FF YH NY = poo 13 are the partners, agents, owners, shareholders, managers, or employees of BROOKDALE SENIOR LIVING COMMUNITIES, INC. and EMERITUS CORPORATION at all relevant times, 11. Plaintiff is informed and believes, and thereon alleges, that each and all of the acts and omissions alleged herein was performed by, or is attributable to, BROOKDALE SENIOR LIVING COMMUNITIES, INC., EMERITUS CORPORATION, and/or DOES 1 through 10 (collectively “Defendants” or “BROOKDALE”), each acting as the agent, employee, alter ego, and/or joint venturer of, or working in concert with, each of the other co- Defendants and was acting within the course and scope of such agency, employment, joint venture, or concerted activity with legal authority to act on the others’ behalf. The acts of any and all Defendants were in accordance with, and represent, the official policy of Defendants. 12. At all relevant times, Defendants, and each of them, ratified each and every act or omission complained of herein. At all relevant times, Defendants, and each of them, aided and abetted the acts and omissions of each and all the other Defendants in proximately causing the damages herein alleged. 13. Plaintiff is informed and believes, and thereon alleges, that each of said Defendants is in some manner intentionally, negligently, or otherwise responsible for the acts, omissions, occurrences, and transactions alleged herein. 14. Under California law, Defendants are jointly and severally liable as employers for the violations alleged herein because they have each exercised sufficient control over the wages, hours, working conditions, and employment status of Plaintiff and other non-party Aggrieved Employees. Each Defendant had the power to hire and fire Plaintiff and other non- party Aggrieved Employees, supervised and controlled their work schedule and/or conditions of employment, determined their rate of pay, and maintained their employment records. Defendants suffered or permitted Plaintiff and other non-party Aggrieved Employees to work and/or “engaged” Plaintiff and other non-party Aggrieved Employees so as to create a common-law employment relationship. As joint employers of Plaintiff and other non-party Aggrieved Employees, Defendants are jointly and severally liable for the civil penalties and Page 3 PAGA COMPLAINTall other relief available to Plaintiff and other non-party Aggrieved Employees under the law. 15. Plaintiff are informed and believe, and thereon allege, that at all relevant times, Defendants, and each of them, have acted as joint employers with respect to Plaintiff and other non-party Aggrieved Employees because Defendants have: (a) jointly exercised meaningful control over the work performed by Plaintiff and other non-party Aggrieved Employees; (b) jointly exercised meaningful control over Plaintiff and other non-party Aggrieved Employees’ wages, hours, and working conditions, including the quantity, quality standards, speed, scheduling, and operative details of the tasks performed by Plaintiff and other non-party Aggrieved Employees; (c) jointly required that Plaintiff and other non-party Aggrieved Employees perform work which is an integral part of Defendants’ businesses; and (d) jointly exercised control over Plaintiff and other non-party Aggrieved Employees as a matter of economic reality in that Plaintiff and other non-party Aggrieved Employees were dependent on Defendants, who shared the power to set the wages of Plaintiff and other non-party Aggrieved Employees and determine their working conditions, and who jointly reaped the benefits from the underpayment of their wages and noncompliance with other statutory provisions governing their employment. 16. Plaintiff is informed and believes, and further alleges, that at all relevant times there has existed a unity of interest and ownership between Defendants such that any individuality and separateness between the entities has ceased. 17. BROOKDALE SENIOR LIVING COMMUNITIES, INC., EMERITUS CORPORATION, and DOES 1 through 10 are therefore alter egos of each other. 18. Adherence to the fiction of the separate existence of Defendants would permit an abuse of the corporate privilege, and would promote injustice by protecting Defendants Page 4 PAGA COMPLAINTfrom liability for the wrongful acts committed by it under the name BROOKDALE. 19. Plaintiffs further allege, upon information and belief, that BROOKDALE SENIOR LIVING COMMUNITIES, INC. and EMERITUS CORPORATION share the same business address at 111 Westwood Place, Suite 400, Brentwood, TN, 39027, and also share the same agent for service of process, Corporation Service Company, 2710 Gateway Oaks Drive, Suite 150N, Sacramento, CA, 95833. PAGA REPRESENTATIVE ALLEGATIONS 20. Defendants are a Delaware corporation which operate skilled nursing facilities throughout California, and are either parent or sibling companies to approximately twelve (12) other skilled nursing companies, including Chancellor Health Care and Merrill Gardens, which operate in California. 21. Upon information and belief, Defendants maintain a single, centralized Human Resources department at their corporate headquarters in Brentwood, Tennessee, which is responsible for collecting and processing all new hire paperwork, and communicating and implementing Defendants’ company-wide policies, including timekeeping policies and meal and rest break policies, to employees throughout California. 22. In particular, Plaintiff and other non-party Aggrieved Employees, on information and belief, received the same standardized documents and/or written policies. Upon information and belief, the usage of standardized documents and/or written policies, including new hire documents, indicate that Defendants dictated policies at the corporate level and implemented them company-wide, regardless of their employees’ assigned locations or positions. Upon information and belief, Defendants set forth uniform policies and procedures in several documents provided at an employee’s time of hire. At the time Plaintiff was hired, she received a Meal & Rest Break Acknowledgment and an Associate Handbook Receipt and Acknowledgment page for her signature, informing her that she would be subject to the policies and rules listed in her new hire documents. 23. On information and belief, all transactions regarding hiring, terminations, promotions, pay increases, and employee transfers, etc., relating to Defendants’ California Page 5 PAGA COMPLAINTemployees were submitted to and processed by Defendants’ HR department in Brentwood, Tennessee. Additionally, on information and belief, Defendants’ corporate records, business records, data, and other information related to Defendants, including, in particular, HR records pertaining to Defendants’ California employees, are also maintained at Defendants’ corporate headquarters in Brentwood, Tennessee. 24. Upon information and belief, Defendants maintain a centralized Payroll department at their corporate headquarters in Brentwood, Tennessee, which processes payroll for all non-exempt, hourly-paid employees working for Defendants at their various locations in California, including Plaintiff and other non-party Aggrieved Employees. Based upon information and belief, Defendants issued the same formatted wage statements to all non- exempt employees in California, irrespective of their work location. Upon information and belief, Defendants process payroll for departing employees in the same manner throughout the State of California, regardless of the manner in which each employee’s employment ends. 25. Defendants continue to employ non-exempt, hourly-paid employees at skilled nursing facilities within California. 26. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, Defendants were advised by skilled lawyers and other professionals, employees and advisors knowledgeable about California labor and wage law, employment and personnel practices, and about the requirements of California law. 27, Plaintiff is informed and believes, and thereon alleges, that Plaintiff and other non-party Aggrieved Employees were not paid for all hours worked because all hours worked were not recorded. 28. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that Plaintiff and other non-party Aggrieved Employees were entitled to receive certain wages for overtime compensation and that they were not receiving certain wages for overtime compensation, 29. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that Plaintiff and other non-party Aggrieved Employees were entitled to Page 6 PAGA COMPLAINTbe paid at a regular rate of pay, and corresponding overtime rate of pay, that included all forms of remuneration paid to Plaintiff and other non-party Aggrieved Employees, including incentive pay and/or other forms of compensation. 30. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that Plaintiff and other non-party Aggrieved Employees were entitled to receive at least minimum wages for compensation and that they were not receiving at least minimum wages for work that was required to be done off-the-clock. In violation of the California Labor Code, Plaintiff and other non-party Aggrieved Employees were not paid at least minimum wages for work done off-the-clock. 31. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that Plaintiff and other non-party Aggrieved Employees were entitled to meal periods in accordance with the Labor Code or payment of one (1) additional hour of pay at their regular rates of pay when they were not provided with timely, uninterrupted, thirty (30) minute meal periods and that Plaintiff and other non-party Agerieved Employees were not provided with all meal periods or payment of one (1) additional hour of pay at their regular rates of pay when they did not receive a timely, uninterrupted, thirty (30) minute meal period. , 32. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that Plaintiff and other non-party Aggrieved Employees were entitled to rest periods in accordance with the Labor Code and applicable IWC Wage Order or payment of one (1) additional hour of pay at their regular rates of pay when they were not provided with a compliant rest period and that Plaintiff and other non-party Aggrieved Employees were : not provided compliant rest periods or payment of one (1) additional hour of pay at their regular rates of pay when they were not provided a compliant rest period. 33. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that Plaintiff and other non-party Aggrieved Employees were entitled to receive complete and accurate wage statements in accordance with California law. In violation of the California Labor Code, Plaintiff and other non-party Aggrieved Employees Page 7 PAGA COMPLAINTwere not provided complete and accurate wage statements. 34. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that they had a duty to maintain accurate and complete payroll records in accordance with the Labor Code and applicable IWC Wage Order, but willfully, knowingly, and intentionally failed to do so. 35, Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that Plaintiff and other non-party Aggrieved Employees were entitled to timely payment of all wages earned upon termination of employment. In violation of the California Labor Code, Plaintiff and other non-party Aggrieved Employees did not receive payment of all wages due, including, but not limited to, overtime wages, minimum wages, and meal and rest period premiums, within permissible time periods. 36. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that Plaintiff and other non-party Aggrieved Employees were entitled to timely payment of wages during their employment. In violation of the California Labor Code, Plaintiff and other non-party Aggrieved Employees did not receive payment of all wages, including, but not limited to, overtime wages, minimum wages, and meal and rest period premiums, within permissible time periods. 37. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that they had a duty to cover the costs and expenses Plaintiff and other non-party Aggrieved Employees incurred obtaining mandatory pre-employment physical examinations but willfully, knowingly, and intentionally failed to do so. 38. Plaintiff is informed and believes, and thereon alleges that Defendants knew or should have known that Plaintiff and other non-party Aggrieved Employees were entitled to receive reimbursement for all business-related expenses and costs they incurred during the course and scope of their employment, and that they did not receive reimbursement of applicable business-related expenses and costs they incurred. 39. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, Defendants knew or should have known that they had a duty to provide Plaintiff Page 8 PAGA COMPLAINTand other non-party Aggrieved Employees with written notice of the material terms of their employment with Defendants as required by the California Wage Theft Prevention Act, but willfully, knowingly, and intentionally failed to do so. 40. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, Defendants knew or should have known that they had a duty to compensate Plaintiff and other non-party Aggrieved Employees for all hours worked, and that Defendants had the financial ability to pay such compensation, but willfully, knowingly, and intentionally failed to do so, and falsely represented to Plaintiff and other non-party Aggrieved Employees that they were properly denied wages, all in order to increase Defendants’ profits. 41. Atall times herein set forth, PAGA provides that any provision of law under the Labor Code and applicable IWC Wage Order that provides for a civil penalty to be assessed and collected by the LWDA for violations of the California Labor Code and applicable IWC Wage Order may, as an alternative, be recovered by aggrieved employees in a civil action brought on behalf of themselves and other current or former employees pursuant to procedures outlined in California Labor Code section 2699.3. 42. PAGA defines an “aggrieved employee” in Labor Code section 2699(c) as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” 43, Plaintiff and other current and former employees of Defendants are “aggrieved employees” as defined by Labor Code section 2699(c) in that they are all Defendants’ current or former employees and one or more of the alleged violations were committed against them. 44. Pursuant to California Labor Code sections 2699.3 and 2699.5, an aggrieved employee, including Plaintiff, may pursue a civil action arising under PAGA after the following requirements have been met: (a) The aggrieved employee shall give written notice by online filing (hereinafter “Employee’s Notice”) to the LWDA and by certified mail to the employer of the specific provisions of the California Labor Code alleged to have been violated, including the facts and theories to support Page 9 PAGA COMPLAINTthe alleged violations. (b) An aggrieved employee’s notice filed with the LWDA pursuant to 2699,3(a) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). (c) | The LWDA shall provide notice (hereinafter “LWDA Notice”) to the employer and the aggrieved employee by certified mail that it does not intend to investigate the alleged violation within sixty (60) calendar days of the postmark date of the Employee’s Notice. Upon receipt of the LWDA Notice, or if the LWDA Notice is not provided within sixty- five (65) calendar days of the postmark date of the Employee’s Notice, the aggrieved employee may commence a civil action pursuant to California Labor Code section 2699 to recover civil penalties in addition to any other penalties to which the employee may be entitled. 45. Pursuant to California Labor Code sections 2699.3(c), aggrieved employees, through Plaintiff, may pursue a civil action arising under PAGA for violations of any provision other than those listed in Section 2699.5 after the following requirements have been met: (a) The aggrieved employee or representative shall give written notice by online filing to the LWDA and by certified mail to the employer of the specific provisions of the California Labor Code alleged to have been violated (other than those listed in Section 2699.5), including the facts and theories to support the alleged violation. (b) An aggrieved employee’s notice filed with the LWDA pursuant to 2699.3(c) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). (c) | The employer may cure the alleged violation within thirty-three (33) calendar days of the postmark date of the notice. The employer shall give written notice by certified mail within that period of time to the Page 10 PAGA COMPLAINTaggrieved employee or representative and the agency if the alleged violation is cured, including a description of actions taken, and no civil action pursuant to Section 2699 may commence. If the alleged violation is not cured within the 33-day period, the employee may commence a civil action pursuant to Section 2699. 46. On February 22, 2017, Plaintiff provided written notice by online filing to the LWDA and by certified mail to Defendants of the specific provisions of the California Labor Code alleged to have been violated, including facts and theories to support the alleged violations, in accordance with California Labor Code section 2699.3. A true and correct copy of Plaintiff's written notice to the LWDA and Defendants dated February 22, 2017, is attached hereto as “Exhibit 1.” 47. As of the filing date of this complaint, over 65 days have passed since Plaintiff sent the LWDA Notice described above, and the LWDA has not responded that it intends to investigate Plaintiff's claims and Defendants have not cured the violations. 48. Thus, Plaintiff has satisfied the administrative prerequisites under California Labor Code sections 2699.3(a) and 2699.3(c) to recover civil penalties against Defendants, in addition to other remedies, for violations of California Labor Code sections 201, 202, 203, 204, 222.5, 226(a), 226.7, 510, 512(a), 1174(d), 1182.12, 1194, 1197, 1197.1, 1198, 2802, and 2810.5. 49. Labor Code section 558 (a) provides “[a]ny employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission shall be subject to a civil penalty as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. (2) For cach subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.” Labor Code section 558(c) provides “[t]he civil penalties provided for in Page 11 PAGA COMPLAINTa aA we this section are in addition to any other civil or criminal penalty provided by law.” 50. Defendants, at all times relevant to this complaint, were employers or persons acting on behalf of an employer(s) who violated Plaintiff and other non-party Aggrieved Employees’ rights by violating various sections of the California Labor Code as set forth above. 51. As set forth below, Defendants have violated numerous provisions of both the Labor Code sections regulating hours and days of work as well as the applicable IWC Wage Order. 52. Pursuant to PAGA, and in particular, California Labor Code sections 2699(a), 2699.3(a), 2699.3(c), 2699.5, and section 558, Plaintiff, acting in the public interest as a private attorney general, seeks assessment and collection of civil penalties for herself, all other non-party Aggrieved Employees, and the State of California against Defendants, in addition to other remedies, for violations of California Labor Code sections 201, 202, 203, 204, 222.5, 226(a), 226.7, 510, $12(a), 1174(d), 1182.12, 1194, 1197, 1197.1, 1198, 2802, and 2810.5. FIRST CAUSE OF ACTION For Civil Penalties, Pursuant to California Labor Code §§ 2698, et seq. (Against all Defendants) 53. Plaintiff incorporates by reference and re-alleges as if fully stated herein each and every allegation set forth above. 54. California Labor Code §§ 2698, ef seg. (‘PAGA”) permits Plaintiff to recover civil penalties for the violation(s) of the Labor Code sections enumerated in Labor Code section 2699.5. Section 2699.5 enumerates Labor Code sections 201, 202, 203, 204, 222.5, 226(a), 226.7, 510, 512(a), 1174(d), 1194, 1197, 1197.1, 1198, and 2802. Labor Code section 2699.3(c) permits aggrieved employees, including Plaintiff, to recover civil penalties for violations of those Labor Code sections not found in section 2699.5, including sections 1182.12, and 2810.5. 55. Defendants’ conduct, as alleged herein, violates numerous sections of the California Labor Code, including, but not limited to, the following: Page 12 PAGA COMPLAINT(a) (b) (d) ) (g) (h) @ Violation of Labor Code sections 510, 1198, and the applicable IWC wage order for Defendants’ failure to compensate Plaintiff and other non-party Aggrieved Employees with all required overtime pay as set forth below; Violation of Labor Code sections 1182.12. 1194, 1197, 1197.1, 1198, and the applicable IWC wage order for Defendants’ failure to compensate Plaintiff and other non-party Aggrieved Employees with at least minimum wages for all hours worked as set forth below; Violation of Labor Code sections 226.7, 512, 1198, and the applicable IWC wage order for Defendants’ failure to provide Plaintiff and other non-party Aggrieved Employees with meal and/or rest periods, as set forth below; Violation of Labor Code sections 226(a), 1198, and the applicable IWC wage order for failure to provide accurate and complete wage statements to Plaintiff and other non-party Aggrieved Employees, as set forth below; Violations of Labor Code sections 1174(d), 1198, and the applicable IWC wage order for failure to maintain payroll records as set forth below; Violation of Labor Code section 204 for failure to pay all earned wages during employment as set forth below; Violation of Labor Code sections 201, 202, and 203 for failure to pay all earned wages upon termination as set forth below; Violations of Labor Code section 222.5 for failing to pay the costs of mandatory pre-employment physical examinations as set forth below; Violation of Labor Code section 2802 for failure to reimburse Plaintiff and other non-party Aggrieved Employees for all business expenses necessarily incurred, as set forth below; and Page 13 PAGA COMPLAINTff Ww oN ~ @ Violations of Labor Code section 2810.5(a)(1)(A)-(C) for failure to provide written notice of information material to Plaintiff and other non- party Aggrieved Employees’ employment with Defendants, as set forth below. FAILURE TO PAY OVERTIME VIOLATION OF LABOR CODE SECTIONS 510 AND 1198 56. Labor Code section 1198 makes it illegal to employ an employee under conditions of labor that are prohibited by the applicable wage order. California Labor Code section 1198 requires that “. . . the standard conditions of labor fixed by the commission shall be the . . . standard conditions of labor for employees. The employment of any employee... under conditions of labor prohibited by the order is unlawful.” 57. California Labor Code section 1198 and the applicable [WC Wage Order provide that it is unlawful to employ persons without compensating them at a rate of pay either time-and-one-half or two-times that person’s regular rate of pay, depending on the number of hours worked by the person on a daily or weekly basis. 58. Specifically, the applicable IWC Wage Order provides that Defendants are and were required to pay Plaintiff and other non-party Aggrieved Employees working more than eight (8) hours in a day or more than forty (40) hours in a workweek, at the rate of time and one-half (11%) for all hours worked in excess of eight (8) hours in a day or more than forty (40) hours in a workweek. 59, The applicable IWC Wage Order further provides that Defendants are and were required to pay Plaintiff and other non-party Aggrieved Employees working more than twelve (12) hours in a day, overtime compensation at a rate of two (2) times their regular rate of pay. An employee’s regular rate of pay includes all remuneration for employment paid to, or on behalf of, the employes, including non-discretionary bonuses and incentive pay. 60. California Labor Code section 510 codifies the right to overtime compensation at one and one-half times the regular rate of pay for hours worked in excess of eight (8) hours in a day or forty (40) hours in a week or for the first eight (8) hours worked on the seventh day Page 14 PAGA COMPLAINTof work, and to overtime compensation at twice the employee’s regular rate of pay for hours worked in excess of twelve (12) hours in a day or in excess of eight (8) hours in a day on the seventh day of work. 61. During the relevant time-period, Defendants willfully failed to pay all overtime wages owed to Plaintiff and other non-party Aggrieved Employees. During the relevant time- period, Plaintiff and other non-party Aggrieved Employees were not paid overtime premiums for all of the hours they worked in excess of eight (8) hours in a day, in excess of twelve (12) hours in a day, and/or in excess of forty (40) hours in a week, because al! hours worked were not recorded. 62, During the relevant-time-period, Defendants had a company-wide policy and/or practice of staffing their locations strictly based on the labor hours allotted by each location’s weekly labor or payroll budget, which has resulted in and continues to result in chronic understaffing and a lack of break coverage, because there were too few employees on duty to handle the workload and attend to clients and residents. 63. For example, Plaintiff was the only employee staffed to coordinate and plan resident activities, a workload for which Defendants previously provided more than one employee. As a result of Defendants’ company-wide failure to provide adequate break coverage, Plaintiff and other aggrieved employees were rarely, if ever, permitted and authorized to take timely, uninterrupted 30-minute meal periods during shifts in which they were entitled to receive meal periods. 64. | Moreover, Defendants did not provide Plaintiff and other non-party Aggrieved Employees with second 30-minute meal periods on days that they worked in excess of 10 hours in one day. During the relevant time-period, Plaintiff sometimes worked shifts in excess of 10 hours and did not receive an uninterrupted second 30-minute meal period. Other non-party Aggrieved Employees also worked in excess of 10 hours per day, but did not receive a second uninterrupted 30-minute meal period on those days. Plaintiff and other non- party Aggrieved Employees did not sign valid meal break waivers on days that they were entitled to meal periods but were not relieved of all duties. Page 15 PAGA COMPLAINTNo oe UN DH HM Rw 65. Also, Defendants’ labor or payroll budget policy required Plaintiff and other non-party Aggrieved Employees to perform work duties prior to clocking in for their shifts, during meal periods, and after clocking out at the end of their shifts. Plaintiff and other aggrieved employees were required to clock out at their scheduled meal period start times and/or at shift end times, upon threat of being disciplined, even though Plaintiff and other aggrieved employees performed additional duties off-the-clock and were subject to Defendants’ control during this time. The timekeeping program did not allow employees to clock back in until the conclusion of the meal period, even if they came back to work early. Plaintiff would regularly work during meal breaks and both before and after her shifts, responding to Defendants’ management requests, cleaning up after activities, and responding to resident requests, even though she was clocked out. She was also required to carry a walkie-talkie and cell phone with her at all times, to be able to respond to requests. 66. Defendants knew or should have known that, as a result of these company-wide practices, Plaintiff and other non-party Aggricved Employees were attending to residents and performing other assigned duties during their meal periods, and thereby performing work for which they were not paid. Defendants also knew, or should have known, that they did not compensate Plaintiff and other non-party Aggrieved Employees for this off-the-clock work. 67. Because Plaintiff and other non-party Aggrieved Employees sometimes worked shifts of eight (8) hours a day or more or forty (40) hours a week or more, some of this off- the-clock work qualified for overtime premium pay. Therefore, Plaintiff and other non-party Aggrieved Employees were not paid overtime wages for all of the overtime hours they actually worked. 68. Also, Defendants did not pay Plaintiff and other non-party Aggrieved Employees the correct overtime rate for the recorded overtime hours that they generated. For example, Plaintiff's hourly wage was $11.00 per hour, which translates into an overtime hourly rate of at least $16.50 per hour. However, a review of her wage records shows that she was sometimes paid overtime rates of $14.16, $14.18, or $14.20 instead of $16.50. 69. Furthermore, in addition to an hourly wage, Defendants paid Plaintiff and other Page 16 PAGA CoMPLAINTBR ww a non-party Aggrieved Employees incentive pay and/or nondiscretionary bonuses. However, in violation of the California Labor Code, Defendants failed to incorporate all remunerations, including incentive pay and/or nondiscretionary bonuses, into the calculation of the regular rate of pay for purposes of calculating the overtime wage rate. Therefore, during times when Plaintiff and other non-party Aggrieved Employees worked overtime and received incentive pay and/or nondiscretionary bonuses, Defendants failed to pay all overtime wages by paying a lower overtime rate than required. 70. Defendants’ failure to pay Plaintiff and other non-party Aggrieved Employees the balance of overtime compensation and failure to include all applicable remuneration in calculating the regular rate of pay for overtime pay, as required by California law, violates the provisions of California Labor Code sections 510 and 1198. Plaintiff and other non-party Agerieved Employees are entitled to recover civil penalties pursuant to Labor Code sections 558 and/or 2699(a), (f)-(g). FAILURE TO PAY MINIMUM WAGES VIOLATION OF LABOR CODE SECTIONS 1182.12, 1194, 1197, 1197.1, AND 1198 71. At all relevant times, California Labor Code sections 1182.12, 1194, 1197, 1197.1, and 1198 provide that the minimum wage for employees fixed by the IWC is the minimum wage to be paid to employees, and the payment of a wage less than the minimum so fixed is unlawful. Compensable work time is defined in Wage Order No. 5 as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” Cal. Code. Regs. tit. 8, § 11050(2)(K) (defining “Hours Worked”). 72. As stated, due to Defendants’ staffing practices and resultant lack of meal break coverage, Plaintiff and other non-party Agerieved Employees were forced to forego meal periods and/or have their meal periods interrupted by work or delayed by work, and were not relieved of all duties for unpaid meal periods, in order to attend to residents. In addition, Defendants systematically failed to pay Plaintiff and other non-party Aggrieved Employees for actual hours worked during unpaid meal periods because these hours were not always Page 17 PAGA COMPLAINTya A ww wR w correctly recorded. Also, as set forth above, Defendants’ policies required Plaintiff and other non-party Aggrieved Employees to clock out for meal periods, upon threat of discipline, even though Plaintiff and other non-party Aggrieved Employees performed additional duties and were subject to Defendants’ control during this time. 73. In addition, Defendants maintained and implemented a company-wide policy of requiring all newly-hired employees and/or prospective employees to undergo a mandatory physical exam and TB test as a condition of employment. At all times, upon information and belief, Defendants were in contro! of scheduling the date and time for the exam, selecting the provider/facility where the exam was to take place, and determining the scope of the exam. Defendants gave Plaintiff and other non-party Aggrieved Employees strict instructions to obtain a TB test as a condition of their employment and Plaintiff and other non-party Aggrieved Employees underwent the testing for the sole benefit of Defendants. However, Defendants did not compensate Plaintiff and other non-party Aggrieved Employees for the time they spent traveling to and from the physical exam or for the time they spent undergoing the exam and TB testing. 74, Thus, Defendants did not pay at least minimum wages for off-the-clock hours that qualified for overtime premium payment. Also, to the extent that these off-the-clock hours did not qualify for overtime premium payment, Defendants did not pay at least minimum wages for those hours worked off-the-clock in violation of California Labor Code sections 1182.12, 1194, 1197, 1197.1, and 1198. 75. Defendants’ failure to pay Plaintiff and other non-party Aggrieved Employees minimum wages violates California Labor Code sections 1182.12, 1194, 1197, 1197.1, and 1198. Plaintiff and other non-party Aggrieved Employees are therefore entitled to recover civil penalties pursuant to sections 1197.1 and/or 2699(a), (f), and (g). FAILURE TO PROVIDE AND RECORD MEAL PERIODS VIOLATION OF LABOR CODE SECTIONS 226.7, 512(a), AND 1198 76. Atall relevant times herein set forth, the applicable IWC Wage Order(s) and California Labor Code sections 226.7, 512(a), and 1198 were applicable to Plaintiff and non- Page 18 PAGA COMPLAINTau aA WwW BR WN party Aggrieved Employees’ employment by Defendants. 77. Atall relevant times herein set forth, California Labor Code section 512(a) provides that an employer may not require, cause, or permit an employee to work for a period of more than five (5) hours per day without providing the employee with a meal period of not less than thirty (30) minutes, except that if the total work period per day of the employee is not more than six (6) hours, the meal period may be waived by mutual consent of both the employer and the employee. Under California law, first meal periods must start after no more than five hours. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1041-1042 (Cal. 2012). 78, Atall relevant times herein set forth, California Labor Code section 226.7 and 512(a) provide that no employer shall require an employee to work during any meal period mandated by an applicable order of the IWC. 79. Atall relevant times herein set forth, Labor Code sections 226.7 and 512(a) and the applicable IWC Wage Order also require employers to provide a second meal break of not less than thirty (30) minutes if an employee works over ten (10) hours per day or to pay an employee one (1) additional hour of pay at the employee’s regular rate, except that if the total hours worked is no more than twelve (12) hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. 80. As stated, Defendants’ company-wide failure to provide adequate meal break coverage prevented Plaintiff and other non-party Aggrieved Employees from taking compliant meal periods. As a result of these practices and/or policies, Plaintiff and other non-party Aggrieved Employees were frequently required to clock out for their meal periods and continue to perform their duties, such as attending to residents, without being able to take timely, compliant meal periods. Additionally, Defendants discouraged and impeded Plaintiff and other non-party Aggrieved Employees from taking compliant breaks by requiring them to perform tasks, without providing them with meal break coverage. 81. Defendants also maintained and implemented, on a company-wide basis, a non- compliant written meal period policy that prevented Plaintiff and other non-party Aggrieved Page 19 PAGA COMPLAINTEmployees from taking compliant meal periods. Defendants’ written meal break policy states that aggrieved employees are entitled to a 30-minute uninterrupted meal period if they work “more than five (5) hours in a workday.” However, it fails to state that the meal break begin prior to the end of the employee’s fifth (Sth) hour of work. 82, Further, Defendants did not provide Plaintiff and other non-party Aggrieved Employees with second 30-minute meal periods on days that they worked in excess of 10 hours in one day. Plaintiff and other non-party Aggrieved Employees did not sign valid meal break waivers on days that they were entitled to meal periods and were not relieved of all duties, 83. At all times herein mentioned, Defendants knew or should have known that as a result of these policies, Plaintiff and other non-party Aggrieved Employees were prevented from being relieved of all duties and required to perform some of their assigned dutics during meal periods and that they did not receive timely meal periods. For example, Plaintiff and other non-party Aggrieved Employees were sometimes made to work over five (5) hours straight before Defendants permitted and authorized them to take their meal periods, and Plaintiff's meal periods were often missed, interrupted, or taken late. And as mentioned, Plaintiff was required to carry a walkie-talkie and cell phone at all times, including during meal periods, which further prevented her from being relieved of all duties. Plaintiff's meal periods were also missed or interrupted to attend to residents and respond to management requests. Defendants further knew or should have known they did not pay Plaintiff and/or other non-party Aggrieved Employees meal period premium wages when meal periods were missed, interrupted by work, and/or taken late. 84. Moreover, Defendants engaged in a systematic, company-wide practice and/or policy to not pay meal period premiums owed when compliant meal periods were not provided. Alternatively, to the extent that Defendants did pay Plaintiff and/or other non-party Aggrieved Employees one (1) additional hour of premium pay for missed meal periods, Defendants did not pay Plaintiff and/or other non-party Aggrieved Employees at the correct rate of pay for premium wages because Defendants failed to include all forms of Page 20 PAGA COMPLAINTwe Ww NH Cc wow IUD compensation, such as incentive pay and/or nondiscretionary bonuses, in the regular rate of pay. Asa result, Defendants failed to provide Plaintiff and/or other non-party Aggrieved Employees compliant meal periods and failed to pay the full meal period premiums due. 85. Defendants’ conduct violates the applicable IWC Wage Order, and California Labor Code sections 226.7, 512(a), and 1198. Plaintiff and other non-party Aggrieved Employees are entitled to recover civil penalties pursuant to sections 558 and/or 2699(a), (f), and (g). FAILURE TO PROVIDE REST PERIODS VIOLATION OF LABOR CODE SECTIONS 226.7 AND 1198 86, Atall relevant times herein set forth, the applicable [WC Wage Order and California Labor Code sections 226.7 and 1198 were applicable to Plaintiff and other non- party Aggrieved Employees’ employment by Defendants. 87. Atall relevant times, the applicable IWC Wage Order provides that “[e]very employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period” and that the “rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof” unless the total daily work time is less than three and one-half (3) hours. 88. Atall relevant times, California Labor Code section 226.7 provides that no employer shall require an employee to work during any rest period mandated by an applicable order of the California |WC. To comply with its obligation to provide rest periods under California Labor Code section 226.7 and the applicable IWC Wage Order, an employer must “relinquish any control over how employees spend their break time, and relieve their employees of all duties — including the obligation that an employee remain on call. A rest period, in short, must be a period of rest.” Augustus, et al. v. ABM Security Services, Inc., 2 Cal. Sth 257, 269-270 (2016). 89. Pursuant to the applicable IWC Wage Order and California Labor Code section 226.7(b), Plaintiff and other non-party Aggrieved Employees are entitled to recover Page 21 PAGA COMPLAINTfrom Defendants one (1) additional hour of pay at their regular rates of pay for each work day that a required rest period was not provided. 90. During the relevant time-period, Defendants regularly failed to authorize and permit Plaintiff and other non-party Aggrieved Employees to take a teri (10) minute rest period per each four (4) hour period worked or major fraction thereof. As with meal periods, Defendants’ staffing policies and practices prevented Plaintiff and other non-party Aggrieved Employees from being relieved of all duty in order to take compliant rest periods. As a result, Plaintiff would frequently work shifts in excess of three and one-half (3 4) hours and in excess of six (6) hours without receiving all uninterrupted ten (10) minute rest periods to which she was entitled. Plaintiff was very rarely able to take any kind of rest period because she was essentially doing the job of two people, and constantly had to attend to residents and perform her other job tasks. Plaintiff and other non-party Aggrieved Employees also would sometimes work shifts in excess of ten (10) hours without receiving all uninterrupted ten (10) minute rest periods to which they were entitled. 91. Defendants have also engaged in a company-wide practice and/or policy to not pay rest periods premiums owed when compliant meal and rest periods are not provided. Alternatively, to the extent that Defendants did pay Plaintiff and/or other non-party Aggrieved Employees one (1) additional hour of premium pay for missed rest periods, Defendants did not pay Plaintiff and/or other non-party Aggrieved Employees at the correct rate of pay for premium wages because Defendants failed to include all forms of compensation, such as incentive pay and/or nondiscretionary bonuses, in the regular rate of pay. Asa result, to the extent Defendants paid Plaintiff and/or other non-party Aggrieved Employces premium pay for missed rest periods, it did so at a lower rate than required by law. As a result, Plaintiff and other non-party Aggrieved Employees were denied rest periods and Defendants failed to pay the full rest period premiums due, in violation of Labor Code section 226.7 and the applicable IWC Wage Order. 92. Defendants’ conduct violates the applicable IWC Wage Order and California Labor Code sections 226.7 and 1198. Plaintiff and other non-party Aggrieved Employces are Page 22 PAGA COMPLAINTtherefore entitled to recover civil penalties pursuant to section 2699(a), (f), and (g). FAILURE TO PROVIDE AND MAINTAIN COMPLIANT