Preview
1 POTTER HANDY LLP
Mark D. Potter (SBN 166317)
2 mark@potterhandy.com
James M. Treglio (SBN 228077)
3
jimt@potterhandy.com
4 8033 Linda Vista Rd, Suite 200
San Diego, CA 92111
5 (858) 375-7385
Fax: (888) 422-5191
6
Attorneys for Plaintiff and the Putative Class
7
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF SAN MATEO
9
PATRICIA ELLIS, individually and on behalf CASE NO:
10 of all others similarly situated,
CLASS ACTION AND REPRESENTATIVE
11
Plaintiff, ACTION COMPLAINT FOR
12
v. (1) WAITING TIME PENALTIES (LABOR
13 CODE § 201 – 203);
CITIBANK, N.A.; and DOES 1 to 100, (2) FAILURE TO PAY VACATION TIME
14 inclusive WAGES (LABOR CODE §§ 227.3;
(3) FAILURE TO PROVIDE PERSONNEL
15 RECORDS (LABOR CODE § 1198.5);
Defendants.
16 (4) FAILURE TO PROVIDE TIME AND
WAGE RECORDS (LABOR CODE §226);
17 (5) PAGA AND OTHER PENALTIES
(LABOR CODE §§ 2699, et seq., and 558)
18 AND
(6) UNFAIR COMPETITION IN
19 VIOLATION OF CALIFORNIA BUSINESS
& PROFESSIONS CODE §17200, ET SEQ.
20
DEMAND FOR JURY TRIAL
21
Plaintiff Patricia Ellis (“Plaintiff”), on behalf of herself, the State of California, and all
22
others similarly situated (hereinafter “Class Members”) complains and alleges as follows:
23
24
OVERVIEW OF CLAIMS
25
1. Plaintiff brings this action on behalf of herself and all others similarly situated, as a
26
class action, as a representative action pursuant to the Labor Code and on behalf of the California
27
general public, against Defendants Citibank, N.A.; and DOES 1 to 100 (collectively “Defendants”)
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PLAINTIFF’S CLASS ACTION COMPLAINT
1
1 for their (1) failure to pay all wages due to former employees; (2) failure to pay Plaintiff and her
2 fellow employees vacation time wages; (3) failure to provide personnel records to Plaintiff and her
3 fellow employees upon request; (4) failure to provide time and wage records to Plaintiff and her
4 fellow employees upon request; (5) violation of PAGA; and (6) unfair business practices based on
5 the foregoing. As a result of the foregoing, Defendants have violated California statutory laws as
6 described below.
7 2. The “Class Period” is designated as the period from four years prior to the filing of
8 this Complaint trough the trial date. Defendants’ violations of California’s wage and hour laws and
9 unfair competition laws, as described more fully below, have been ongoing throughout the Class
10 Period.
11 VENUE
12 3. Venue is proper in this county under section 395.5 of the California Code of Civil
13 Procedure. Many, if not all, of the putative Class Members were employed and/or performed work
14 during the Class Period by Defendants in San Mateo County. Many of the acts alleged herein
15 including Defendant’s failure to pay all wages due to former employees and vacation time wages,
16 and failure to provide personnel and time and wage records upon request, occurred in San Mateo
17 County. Venue is therefore proper in San Mateo County.
18 JURISDICTION
19 4. Defendants are within the jurisdiction of this Court. Defendants transact millions of
20 dollars as a global bank with presence throughout the country including the State of California, in
21 the County of San Mateo. Thus, Defendants have obtained the benefits of the laws of the State of
22 California. In addition, Plaintiff asserts no claims arising under federal law. Rather, Plaintiff
23 brings causes of action based solely on, and arising from, California law. The claims of the Class
24 are also based solely on California law described herein.
25 5. Further, this action is not amenable to federal jurisdiction pursuant to 28 U.S.C.
26 §1332, as (1) more than two-thirds of the members of the Class as defined below are citizens of the
27 state of California, (2) the defendants from whom significant relief is sought, whose alleged
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PLAINTIFF’S CLASS ACTION COMPLAINT
2
1 conduct forms a significant basis for the claims asserted by the Class, do business in the state of
2 California, and (3) the principal injuries resulting from the conduct alleged herein occurred in the
3 state of California.
4 THE PARTIES
5 A. The Plaintiff
6 6. Plaintiff is a California resident and, from 1979 until May 21, 2021, was employed
7 by Defendants in various capacities such as branch manager in California. At all relevant times,
8 Plaintiff was hired to provide services for Defendants. At all relevant times through the present,
9 and on-going, Defendants’ employees, including Plaintiff during her and their employment, did
10 not receive all wages owed upon termination and vacation time wages; and were not provided their
11 personnel and time and wage records upon request.
12 7. Plaintiff seeks to represent the following classes:
13 (a) all individuals who are or were employed by Defendant or its predecessor or
14 merged entities in California as hourly, non-exempt employees, who were not paid on time
15 after the end of their employment with Defendants during the Class Period (“waiting time
16 class members”);
17 (b) all individuals who are or were employed by Defendant or its predecessor or
18 merged entities in California as hourly, non-exempt employees, who were not paid their
19 vacation time wages during the Class Period (“vacation time wages class members”);
20 (c) all individuals who are or were employed by Defendant, or its predecessor or
21 merged entities in California as hourly, non-exempt employees, who were not provided
22 their personnel records upon request during the Class Period (“personnel records class
23 members”); and
24 (d) all individuals who are or were employed by Defendant, or its predecessor or
25 merged entities in California as hourly, non-exempt employees who were not provided
26 their time and wage records upon request during the Class Period (“time and wage records
27 class members”).
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PLAINTIFF’S CLASS ACTION COMPLAINT
3
1 (collectively referred to as “Class Members” and/or the “Class”);
2 B. The Defendants
3 8. Defendant Citibank N.A., is a global bank with presence in various countries. To
4 provide its services, Defendant employs branch managers, such as the Plaintiff and the Class
5 Members.
6 9. The true names and capacities, whether individual, corporate, associate, or
7 otherwise, of Defendants sued herein as DOES 1 to 50, inclusive, are currently unknown to
8 Plaintiff, who therefore sues Defendants by such fictitious names under Code of Civil Procedure §
9 474. Plaintiff is informed and believes, and based thereon alleges, that each of the Defendants
10 designated herein as a DOE is legally responsible in some manner for the unlawful acts referred to
11 herein. Plaintiff will seek leave of court to amend this Complaint to reflect the true names and
12 capacities of the Defendants designated hereinafter as DOES when such identities become known.
13 10. Plaintiff is informed and believes, and based thereon alleges, that each Defendant
14 acted in all respects pertinent to this action as the agent of the other Defendants, carried out a joint
15 scheme, business plan or policy in all respects pertinent hereto, and the acts of each Defendant are
16 legally attributable to the other Defendants. Furthermore, Defendants in all respects acted as the
17 employer and/or joint employer of Plaintiff and the Class Members.
18 11. California courts have recognized that the definition of “employer” for purposes of
19 enforcement of the California Labor Code goes beyond the concept of traditional employment to
20 reach irregular working arrangements for the purpose of preventing evasion and subterfuge of
21 California’s labor laws. Martinez v. Combs (2010) 49 Cal. 4th 35, 65. As such, anyone who
22 directly or indirectly, or through an agent or any other person, engages, suffers, or permits any
23 person to work or exercises control over the wages, hours, or working conditions of any person,
24 may be liable for violations of the California Labor Code as to that person. Cal. Labor Code §§558
25 and 558.1.
26 12. California law also permits and recognizes the piercing of a corporate veil between
27 sister companies and under the single enterprise rule. Hasso v. Hapke (2014) 227 Cal. App. 4th
28
PLAINTIFF’S CLASS ACTION COMPLAINT
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1 107, 155; Greenspan v. LADT, LLC (2010) 191 Cal. App. 4th 486, 512. The single enterprise rule
2 applies where “there are two or more personalities, there is but one enterprise; and that this
3 enterprise has been so handled that it should respond, as a whole, for the debts of certain
4 component elements of it.” Hasso 227 Cal. App. 4th at 155; Greenspan, 191 Cal. App. 4th at 512.
5 FACTUAL ALLEGATIONS
6 13. Plaintiff and Class Members are and were employed by Citibank, N.A., a global
7 bank with presence in various countries.
8 14. Plaintiff was hired by Defendants in 1979.
9 15. Plaintiff was last assigned as a branch manager in Defendants’ branch in Napa,
10 California.
11 16. Plaintiff was terminated by Defendants effective May 21, 2021. However, Plaintiff
12 only received her final paycheck from Defendants two weeks after she was terminated.
13 17. In addition, Plaintiff’s vacation time wages included in her final pay was not the
14 full amount due to Plaintiff.
15 18. On or about May 27, 2021, Plaintiff, through her counsel Potter Handy LLP, sent
16 Defendants a letter requesting for Plaintiff’s personnel, timekeeping, and payroll records (“First
17 Request”).
18 19. When Defendants did not respond to the First Request, Plaintiff, through Potter
19 Handy LLP, sent a second letter request to Defendants on July 7, 2021 (“Second Request”).
20 20. To date, however, Plaintiff has yet to receive copies of her personnel, timekeeping,
21 and payroll records from Defendants.
22 21. As discussed above, Plaintiff was terminated by Defendants effective May 21,
23 2021. However, Plaintiff only received her final paycheck from Defendants two weeks after she
24 was terminated. Thus, Defendant violated Labor Code § 203.
25 22. Labor Code § 203 provides “if an employer willfully fails to pay . . . any wages of
26 an employee who is discharged or who quits, the wages of the employee shall continue as a
27 penalty. ..” for up to 30 days. Lab. Code § 203; Mamika v. Barca, (1998) 68 Cal.App.4th 487,
28
PLAINTIFF’S CLASS ACTION COMPLAINT
5
1 492.
2 23. Due to Defendant’s faulty policies described above, all Class Members whose
3 employment with Defendant concluded were not compensated at the appropriate rate. Additionally,
4 Defendant has failed to pay all Class Members meal period premiums and rest period premiums,
5 whose sums were certain, at the time of termination or within seventy-two (72) hours of their
6 resignation and have failed to pay those sums for thirty (30) days thereafter.
7 24. Labor Code § 227.3 provides that “whenever a contract of employment or employer
8 policy provides for paid vacations, and an employee is terminated without having taken off his
9 vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance
10 with such contract of employment or employer policy respecting eligibility or time served;
11 provided, however, that an employment contract or employer policy shall not provide for forfeiture
12 of vested vacation time upon termination.”
13 25. However, when Plaintiff was terminated on May 21, 2021, Defendant failed to pay
14 her full vacation time wages in violation of Labor Code §§ 227.3.
15 26. Labor Code § 1198.5 provides as follows:
16 (a) Every current and former employee, or his or her representative, has
the right to inspect and receive a copy of the personnel records that the
17 employer maintains relating to the employee’s performance or to any
grievance concerning the employee. …
18
19 (k) If an employer fails to permit a current or former employee, or his or
her representative, to inspect or copy personnel records within the times
20 specified in this section, or times agreed to by mutual agreement as
provided in this section, the current or former employee or the Labor
21 Commissioner may recover a penalty of seven hundred fifty dollars ($750)
from the employer.
22
23 (l) A current or former employee may also bring an action for injunctive
relief to obtain compliance with this section, and may recover costs and
24 reasonable attorney’s fees in such an action. …
25
27. As discussed above, Plaintiff sent Defendants numerous requests for copies of her
26
personnel records. The First Request was sent on May 27, 2021 and the Second Request was sent
27
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PLAINTIFF’S CLASS ACTION COMPLAINT
6
1 on July 7, 2021. To date, however, Plaintiff has yet to receive copies of her personnel records from
2 Defendants.
3 28. Due to their failure to provide Plaintiff with copies of her personnel records upon
4 request, Defendants violated Labor Code § 1198.5.
5 29. Labor Code § 226 provides that:
6 (a) An employer, semimonthly or at the time of each payment of wages,
shall furnish to his or her employee, either as a detachable part of the
7 check, draft, or voucher paying the employee’s wages, or separately if
wages are paid by personal check or cash, an accurate itemized statement
8
in writing showing (1) gross wages earned, (2) total hours worked by the
9 employee, except as provided in subdivision (j), (3) the number of piece-
rate units earned and any applicable piece rate if the employee is paid on a
10 piece-rate basis, (4) all deductions, provided that all deductions made on
written orders of the employee may be aggregated and shown as one item,
11 (5) net wages earned, (6) the inclusive dates of the period for which the
employee is paid, (7) the name of the employee and only the last four
12
digits of his or her social security number or an employee identification
13 number other than a social security number, (8) the name and address of
the legal entity that is the employer and, ifthe employer is a farm labor
14 contractor, as defined in subdivision (b) of Section 1682, the name and
address of the legal entity that secured the services of the employer, and
15 (9) all applicable hourly rates in effect during the pay period and the
16 corresponding number of hours worked at each hourly rate by the
employee and, beginning July 1, 2013, if the employer is a temporary
17 services employer as defined in Section 201.3, the rate of pay and the total
hours worked for each temporary services assignment. The deductions
18 made from payment of wages shall be recorded in ink or other indelible
form, properly dated, showing the month, day, and year, and a copy of the
19 statement and the record of the deductions shall be kept on file by the
20 employer for at least three years at the place of employment or at a central
location within the State of California. For purposes of this subdivision,
21 “copy” includes a duplicate of the itemized statement provided to an
employee or a computer-generated record that accurately shows all of the
22 information required by this subdivision.
23 (b) An employer that is required by this code or any regulation adopted
24 pursuant to this code to keep the information required by subdivision (a)
shall afford current and former employees the right to inspect or receive a
25 copy of records pertaining to their employment, upon reasonable request
to the employer. The employer may take reasonable steps to ensure the
26 identity of a current or former employee. If the employer provides copies
of the records, the actual cost of reproduction may be charged to the
27
current or former employee.
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PLAINTIFF’S CLASS ACTION COMPLAINT
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1 (c) An employer who receives a written or oral request to inspect or
receive a copy of records pursuant to subdivision (b) pertaining to a
2 current or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the request.
3
A violation of this subdivision is an infraction. Impossibility of
4 performance, not caused by or a result of a violation of law, shall be an
affirmative defense for an employer in any action alleging a violation of
5 this subdivision. An employer may designate the person to whom a
request under this subdivision will be made. …
6
(f) A failure by an employer to permit a current or former employee to
7
inspect or receive a copy of records within the time set forth in subdivision
8 (c) entitles the current or former employee or the Labor Commissioner to
recover a seven-hundred-fifty-dollar ($750) penalty from the employer. …
9
10 30. As discussed above, Plaintiff sent Defendants numerous requests for copies of her
11 time and wage records. The First Request was sent on May 27, 2021 and the Second Request was
12 sent on July 7, 2021. To date, however, Plaintiff has yet to receive copies of her time and wage
13 records from Defendants.
14 31. Due to their failure to provide Plaintiff with copies of her time and wage records
15 upon request, Defendants violated Labor Code § 226.
16 CLASS ACTION ALLEGATIONS
17 32. Plaintiff brings this action, on behalf of herself and all others similarly situated, as a
18 class action pursuant to Code of Civil Procedure § 382.
19 33. Plaintiff seeks to represent the following classes:
20 (a) all individuals who are or were employed by Defendant or its predecessor or
21 merged entities in California as hourly, non-exempt employees, who were not paid on
22 time after the end of their employment with Defendants during the Class Period
23 (“waiting time class members”);
24 (b) all individuals who are or were employed by Defendant or its predecessor or
25 merged entities in California as hourly, non-exempt employees, who were not paid their
26 vacation time wages during the Class Period (“vacation time wages class members”);
27 (c) all individuals who are or were employed by Defendant, or its predecessor or
28
PLAINTIFF’S CLASS ACTION COMPLAINT
8
1 merged entities in California as hourly, non-exempt employees, who were not provided
2 their personnel records upon request during the Class Period (“personnel records class
3 members”); and
4 (d) all individuals who are or were employed by Defendant, or its predecessor or
5 merged entities in California as hourly, non-exempt employees who were not provided
6 their time and wage records upon request during the Class Period (“time and wage
7 records class members”).
8 34. This action has been brought and may properly be maintained as a class action
9 under Code of Civil Procedure § 382 because there is a well-defined community of interest in the
10 litigation, the proposed class is easily ascertainable, and Plaintiff is a proper representative of the
11 Class:
12 a. Numerosity: The potential members of the Class as defined are so
13 numerous that joinder of all the members of the Class is impracticable. While the precise number
14 of Class Members has not been determined at this time, Plaintiff is informed and believes that
15 Defendants have, on average, during the Class Period employed over 200 Class Members. The
16 Class Members are dispersed throughout California. Joinder of all members of the proposed
17 classes is therefore not practicable.
18 b. Commonality: There are questions of law and fact common to Plaintiff and
19 the Class that predominate over any questions affecting only individual members of the Class.
20 These common questions of law and fact include, without limitation:
21 i. Whether Defendants violated Section 203 of the Labor Code by failing to pay
22 members of the Waiting Time Penalty Subclass (those class members who have terminated their
23 employment with the Defendants) for all wages due to them upon their separation of employment
24 from Defendant;
25 ii. Whether Defendants violated Labor Code section 227.3 by failing to pay all
26 vacation time wages to each member of the Class in California during the Class Period;
27 iii. Whether Defendants violated Section 1198.5 of the Labor Code during the
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PLAINTIFF’S CLASS ACTION COMPLAINT
9
1 Class Period by failing to provide Plaintiff and the Class Members their personnel records upon
2 request;
3 iv. Whether Defendants violated Section 226 of the Labor Code during the
4 Class Period by failing to provide Plaintiff and the Class Members their time and wage records
5 upon request;
6 v. Whether Defendants engaged in an unfair practice and violated section
7 17200 of the California Business and Professions Code by failing to pay all wages due upon
8 termination to members of the Class in violation of Labor Code sections 201-203;
9 vi. Whether Defendants engaged in an unfair practice and violated section
10 17200 of the California Business and Professions Code by failing to pay all vacation time wages
11 due to members of the Class in violation of Labor Code sections 227.3;
12 vii. Whether Defendants engaged in an unfair practice and violated section
13 17200 of the California Business and Professions Code by failing to provide personnel records to
14 members of the Class upon request in violation of Labor Code section 1198.5;
15 viii. Whether Defendants engaged in an unfair practice and violated section
16 17200 of the California Business and Professions Code by failing to provide time and wage
17 records to members of the Class upon request in violation of Labor Code section 226;
18 ix. Whether Plaintiff and the Class are entitled to restitution under Business and
19 Professions Code § 17200;
20 x. The proper formula(s) for calculating damages, interest, and restitution
21 owed to Plaintiff and the Class Members;
22 xi. The nature and extent of class-wide damages.
23 c. Typicality: Plaintiff’s claims are typical of the claims of the Class. Both
24 Plaintiff and Class Members sustained injuries and damages, and were deprived of property rightly
25 belonging to them, arising out of and caused by Defendants’ common course of conduct in
26 violation of law as alleged herein, in similar ways and for the same types of unpaid wages.
27 d. Adequacy of Representation: Plaintiff is a member of the Class and will
28
PLAINTIFF’S CLASS ACTION COMPLAINT
10
1 fairly and adequately represent and protect the interests of the Class and Class Members.
2 Plaintiff’s interests do not conflict with those of Class and Class Members. Counsel who represent
3 Plaintiff are competent and experienced in litigating large wage and hour class actions, and other
4 employment class actions, and will devote sufficient time and resources to the case and otherwise
5 adequately represent the Class and Class Members.
6 e. Superiority of Class Action: A class action is superior to other available
7 means for the fair and efficient adjudication of this controversy. Individual joinder of all Class
8 Members is not practicable, and questions of law and fact common to the Class predominate over
9 any questions affecting only individual members of the Class. Each Class Member has been
10 damaged or may be damaged in the future by reason of Defendants’ unlawful policies and/or
11 practices. Certification of this case as a class action will allow those similarly situated persons to
12 litigate their claims in the manner that is most efficient and economical for the parties and the
13 judicial system. Certifying this case as a class action is superior because it allows for efficient and
14 full disgorgement of the ill-gotten gains Defendants have enjoyed by maintaining its unlawful
15 compensation policies and will thereby effectuate California’s strong public policy of protecting
16 employees from deprivation or offsetting of compensation earned in their employment. If this
17 action is not certified as a Class Action, it will be impossible as a practical matter, for many or
18 most Class Members to bring individual actions to recover monies unlawfully withheld from their
19 lawful compensation due from Defendants, due to the relatively small amounts of such individual
20 recoveries relative to the costs and burdens of litigation.
21 FIRST CAUSE OF ACTION
WAITING TIME PENALTIES FOR
22 FAILURE TO PAY WAGES DUE ON TERMINATION
[Cal. Labor Code §§ 201-203]
23
On Behalf of Plaintiff and the Waiting Time Penalty Subclass Against All Defendants
24
35. Plaintiff re-alleges and incorporates by reference each and every allegation set forth
25
in the preceding paragraphs.
26
36. The actionable period for this cause of action is three years prior to the filing of the
27
Complaint through the present, and on-going until the violations are corrected, or the subclass is
28
PLAINTIFF’S CLASS ACTION COMPLAINT
11
1 certified.
2 37. Sections 201 and 202 of the California Labor Code require Defendants to pay all
3 compensation due and owing to former employees in the Class during the actionable period for this
4 cause of action, at or around the time that their employment is terminated.
5 38. Section 203 of the California Labor Code provides that if an employer willfully
6 fails to pay compensation promptly upon discharge or resignation, as required by Sections 201 and
7 202, then the employer is liable for penalties in the form of continued compensation up to thirty
8 (30) work days.
9 39. As discussed above, Plaintiff was terminated by Defendants effective May 21,
10 2021. However, Plaintiff only received her final paycheck from Defendants two weeks after she
11 was terminated. Defendants willfully failed to timely pay Plaintiff and other members of the
12 Waiting Time Penalty Subclass (i.e., those members of the Class whose employment with
13 Defendants ended the actionable period for this cause of action) who are no longer employed by
14 Defendants prior to or upon termination or separation from employment with Defendants as
15 required by California Labor Code §§ 201 and 202.
16 40. As a result, Defendants are liable to Plaintiff and other members of the waiting time
17 penalty subclass who are no longer employed by Defendants for waiting time penalties amounting
18 to thirty (30) days wages for Plaintiff and each such subclass member pursuant to California Labor
19 Code § 203. See, e.g., DLSE Manual, 4.3.4 (Failure to pay any sort of wages due upon termination
20 entitles an employee to recover waiting time penalties).
21 SECOND CAUSE OF ACTION
FAILURE TO PAY VACATION TIME WAGES
22 [Cal. Labor Code § 227.3]
On behalf of Plaintiff and the Class Against All Defendants
23
24 41. Plaintiff re-alleges and incorporates by reference each and every allegation set forth
25 in the preceding paragraphs.
26 42. Labor Code § 227.3 provides that “whenever a contract of employment or employer
27 policy provides for paid vacations, and an employee is terminated without having taken off his
28 vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance
PLAINTIFF’S CLASS ACTION COMPLAINT
12
1 with such contract of employment or employer policy respecting eligibility or time served;
2 provided, however, that an employment contract or employer policy shall not provide for forfeiture
3 of vested vacation time upon termination.”
4 43. However, when Plaintiff was terminated on May 21, 2021, Defendant failed to pay
5 her full vacation time wages in violation of Labor Code §§ 227.3.
6 THIRD CAUSE OF ACTION
FAILURE TO PROVIDE PERSONNEL RECORDS UPON REQUEST
7 [Cal. Labor Code § 1198.5]
On behalf of Plaintiff, and the Class Against All Defendants
8
9 44. Plaintiff incorporates by this reference, as though fully set forth herein, the
10 preceding paragraphs of this Complaint.
11 45. Labor Code § 1198.5 provides as follows:
12 (a) Every current and former employee, or his or her representative, has
the right to inspect and receive a copy of the personnel records that the
13 employer maintains relating to the employee’s performance or to any
grievance concerning the employee. …
14
(k) If an employer fails to permit a current or former employee, or his or
15
her representative, to inspect or copy personnel records within the times
16 specified in this section, or times agreed to by mutual agreement as
provided in this section, the current or former employee or the Labor
17 Commissioner may recover a penalty of seven hundred fifty dollars ($750)
from the employer.
18
19 (l) A current or former employee may also bring an action for injunctive
relief to obtain compliance with this section, and may recover costs and
20 reasonable attorney’s fees in such an action. …
21
46. As discussed above, Plaintiff sent Defendants numerous requests for copies of her
22
personnel records. The First Request was sent on May 27, 2021 and the Second Request was sent
23
on July 7, 2021. To date, however, Plaintiff has yet to receive copies of her personnel records from
24
Defendants.
25
47. Due to their failure to provide Plaintiff with copies of her personnel records upon
26
request, Defendants violated Labor Code § 1198.5.
27
//
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PLAINTIFF’S CLASS ACTION COMPLAINT
13
1 FOURTH CAUSE OF ACTION
FAILURE TO PROVIDE TIME AND WAGE RECORDS UPON REQUEST
2 [Cal. Labor Code § 226]
On behalf of Plaintiff and the Class Against All Defendants
3
4 48. Plaintiff re-alleges and incorporates by reference each and every allegation set forth
5 in the preceding paragraphs.
6 49. Labor Code § 226 provides that:
7 (a) An employer, semimonthly or at the time of each payment of wages,
shall furnish to his or her employee, either as a detachable part of the
8 check, draft, or voucher paying the employee’s wages, or separately if
wages are paid by personal check or cash, an accurate itemized statement
9 in writing showing (1) gross wages earned, (2) total hours worked by the
employee, except as provided in subdivision (j), (3) the number of piece-
10
rate units earned and any applicable piece rate if the employee is paid on a
11 piece-rate basis, (4) all deductions, provided that all deductions made on
written orders of the employee may be aggregated and shown as one item,
12 (5) net wages earned, (6) the inclusive dates of the period for which the
employee is paid, (7) the name of the employee and only the last four
13 digits of his or her social security number or an employee identification
14 number other than a social security number, (8) the name and address of
the legal entity that is the employer and, ifthe employer is a farm labor
15 contractor, as defined in subdivision (b) of Section 1682, the name and
address of the legal entity that secured the services of the employer, and
16 (9) all applicable hourly rates in effect during the pay period and the
corresponding number of hours worked at each hourly rate by the
17 employee and, beginning July 1, 2013, if the employer is a temporary
18 services employer as defined in Section 201.3, the rate of pay and the total
hours worked for each temporary services assignment. The deductions
19 made from payment of wages shall be recorded in ink or other indelible
form
Preview
1 POTTER HANDY LLP Mark D. Potter (SBN 166317) 2 mark@potterhandy.com James M. Treglio (SBN 228077) 3 jimt@potterhandy.com 4 8033 Linda Vista Rd, Suite 200 San Diego, CA 92111 5 (858) 375-7385 Fax: (888) 422-5191 6 Attorneys for Plaintiff and the Putative Class 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SAN MATEO 9 PATRICIA ELLIS, individually and on behalf CASE NO: 10 of all others similarly situated, CLASS ACTION AND REPRESENTATIVE 11 Plaintiff, ACTION COMPLAINT FOR 12 v. (1) WAITING TIME PENALTIES (LABOR 13 CODE § 201 – 203); CITIBANK, N.A.; and DOES 1 to 100, (2) FAILURE TO PAY VACATION TIME 14 inclusive WAGES (LABOR CODE §§ 227.3; (3) FAILURE TO PROVIDE PERSONNEL 15 RECORDS (LABOR CODE § 1198.5); Defendants. 16 (4) FAILURE TO PROVIDE TIME AND WAGE RECORDS (LABOR CODE §226); 17 (5) PAGA AND OTHER PENALTIES (LABOR CODE §§ 2699, et seq., and 558) 18 AND (6) UNFAIR COMPETITION IN 19 VIOLATION OF CALIFORNIA BUSINESS & PROFESSIONS CODE §17200, ET SEQ. 20 DEMAND FOR JURY TRIAL 21 Plaintiff Patricia Ellis (“Plaintiff”), on behalf of herself, the State of California, and all 22 others similarly situated (hereinafter “Class Members”) complains and alleges as follows: 23 24 OVERVIEW OF CLAIMS 25 1. Plaintiff brings this action on behalf of herself and all others similarly situated, as a 26 class action, as a representative action pursuant to the Labor Code and on behalf of the California 27 general public, against Defendants Citibank, N.A.; and DOES 1 to 100 (collectively “Defendants”) 28 PLAINTIFF’S CLASS ACTION COMPLAINT 1 1 for their (1) failure to pay all wages due to former employees; (2) failure to pay Plaintiff and her 2 fellow employees vacation time wages; (3) failure to provide personnel records to Plaintiff and her 3 fellow employees upon request; (4) failure to provide time and wage records to Plaintiff and her 4 fellow employees upon request; (5) violation of PAGA; and (6) unfair business practices based on 5 the foregoing. As a result of the foregoing, Defendants have violated California statutory laws as 6 described below. 7 2. The “Class Period” is designated as the period from four years prior to the filing of 8 this Complaint trough the trial date. Defendants’ violations of California’s wage and hour laws and 9 unfair competition laws, as described more fully below, have been ongoing throughout the Class 10 Period. 11 VENUE 12 3. Venue is proper in this county under section 395.5 of the California Code of Civil 13 Procedure. Many, if not all, of the putative Class Members were employed and/or performed work 14 during the Class Period by Defendants in San Mateo County. Many of the acts alleged herein 15 including Defendant’s failure to pay all wages due to former employees and vacation time wages, 16 and failure to provide personnel and time and wage records upon request, occurred in San Mateo 17 County. Venue is therefore proper in San Mateo County. 18 JURISDICTION 19 4. Defendants are within the jurisdiction of this Court. Defendants transact millions of 20 dollars as a global bank with presence throughout the country including the State of California, in 21 the County of San Mateo. Thus, Defendants have obtained the benefits of the laws of the State of 22 California. In addition, Plaintiff asserts no claims arising under federal law. Rather, Plaintiff 23 brings causes of action based solely on, and arising from, California law. The claims of the Class 24 are also based solely on California law described herein. 25 5. Further, this action is not amenable to federal jurisdiction pursuant to 28 U.S.C. 26 §1332, as (1) more than two-thirds of the members of the Class as defined below are citizens of the 27 state of California, (2) the defendants from whom significant relief is sought, whose alleged 28 PLAINTIFF’S CLASS ACTION COMPLAINT 2 1 conduct forms a significant basis for the claims asserted by the Class, do business in the state of 2 California, and (3) the principal injuries resulting from the conduct alleged herein occurred in the 3 state of California. 4 THE PARTIES 5 A. The Plaintiff 6 6. Plaintiff is a California resident and, from 1979 until May 21, 2021, was employed 7 by Defendants in various capacities such as branch manager in California. At all relevant times, 8 Plaintiff was hired to provide services for Defendants. At all relevant times through the present, 9 and on-going, Defendants’ employees, including Plaintiff during her and their employment, did 10 not receive all wages owed upon termination and vacation time wages; and were not provided their 11 personnel and time and wage records upon request. 12 7. Plaintiff seeks to represent the following classes: 13 (a) all individuals who are or were employed by Defendant or its predecessor or 14 merged entities in California as hourly, non-exempt employees, who were not paid on time 15 after the end of their employment with Defendants during the Class Period (“waiting time 16 class members”); 17 (b) all individuals who are or were employed by Defendant or its predecessor or 18 merged entities in California as hourly, non-exempt employees, who were not paid their 19 vacation time wages during the Class Period (“vacation time wages class members”); 20 (c) all individuals who are or were employed by Defendant, or its predecessor or 21 merged entities in California as hourly, non-exempt employees, who were not provided 22 their personnel records upon request during the Class Period (“personnel records class 23 members”); and 24 (d) all individuals who are or were employed by Defendant, or its predecessor or 25 merged entities in California as hourly, non-exempt employees who were not provided 26 their time and wage records upon request during the Class Period (“time and wage records 27 class members”). 28 PLAINTIFF’S CLASS ACTION COMPLAINT 3 1 (collectively referred to as “Class Members” and/or the “Class”); 2 B. The Defendants 3 8. Defendant Citibank N.A., is a global bank with presence in various countries. To 4 provide its services, Defendant employs branch managers, such as the Plaintiff and the Class 5 Members. 6 9. The true names and capacities, whether individual, corporate, associate, or 7 otherwise, of Defendants sued herein as DOES 1 to 50, inclusive, are currently unknown to 8 Plaintiff, who therefore sues Defendants by such fictitious names under Code of Civil Procedure § 9 474. Plaintiff is informed and believes, and based thereon alleges, that each of the Defendants 10 designated herein as a DOE is legally responsible in some manner for the unlawful acts referred to 11 herein. Plaintiff will seek leave of court to amend this Complaint to reflect the true names and 12 capacities of the Defendants designated hereinafter as DOES when such identities become known. 13 10. Plaintiff is informed and believes, and based thereon alleges, that each Defendant 14 acted in all respects pertinent to this action as the agent of the other Defendants, carried out a joint 15 scheme, business plan or policy in all respects pertinent hereto, and the acts of each Defendant are 16 legally attributable to the other Defendants. Furthermore, Defendants in all respects acted as the 17 employer and/or joint employer of Plaintiff and the Class Members. 18 11. California courts have recognized that the definition of “employer” for purposes of 19 enforcement of the California Labor Code goes beyond the concept of traditional employment to 20 reach irregular working arrangements for the purpose of preventing evasion and subterfuge of 21 California’s labor laws. Martinez v. Combs (2010) 49 Cal. 4th 35, 65. As such, anyone who 22 directly or indirectly, or through an agent or any other person, engages, suffers, or permits any 23 person to work or exercises control over the wages, hours, or working conditions of any person, 24 may be liable for violations of the California Labor Code as to that person. Cal. Labor Code §§558 25 and 558.1. 26 12. California law also permits and recognizes the piercing of a corporate veil between 27 sister companies and under the single enterprise rule. Hasso v. Hapke (2014) 227 Cal. App. 4th 28 PLAINTIFF’S CLASS ACTION COMPLAINT 4 1 107, 155; Greenspan v. LADT, LLC (2010) 191 Cal. App. 4th 486, 512. The single enterprise rule 2 applies where “there are two or more personalities, there is but one enterprise; and that this 3 enterprise has been so handled that it should respond, as a whole, for the debts of certain 4 component elements of it.” Hasso 227 Cal. App. 4th at 155; Greenspan, 191 Cal. App. 4th at 512. 5 FACTUAL ALLEGATIONS 6 13. Plaintiff and Class Members are and were employed by Citibank, N.A., a global 7 bank with presence in various countries. 8 14. Plaintiff was hired by Defendants in 1979. 9 15. Plaintiff was last assigned as a branch manager in Defendants’ branch in Napa, 10 California. 11 16. Plaintiff was terminated by Defendants effective May 21, 2021. However, Plaintiff 12 only received her final paycheck from Defendants two weeks after she was terminated. 13 17. In addition, Plaintiff’s vacation time wages included in her final pay was not the 14 full amount due to Plaintiff. 15 18. On or about May 27, 2021, Plaintiff, through her counsel Potter Handy LLP, sent 16 Defendants a letter requesting for Plaintiff’s personnel, timekeeping, and payroll records (“First 17 Request”). 18 19. When Defendants did not respond to the First Request, Plaintiff, through Potter 19 Handy LLP, sent a second letter request to Defendants on July 7, 2021 (“Second Request”). 20 20. To date, however, Plaintiff has yet to receive copies of her personnel, timekeeping, 21 and payroll records from Defendants. 22 21. As discussed above, Plaintiff was terminated by Defendants effective May 21, 23 2021. However, Plaintiff only received her final paycheck from Defendants two weeks after she 24 was terminated. Thus, Defendant violated Labor Code § 203. 25 22. Labor Code § 203 provides “if an employer willfully fails to pay . . . any wages of 26 an employee who is discharged or who quits, the wages of the employee shall continue as a 27 penalty. ..” for up to 30 days. Lab. Code § 203; Mamika v. Barca, (1998) 68 Cal.App.4th 487, 28 PLAINTIFF’S CLASS ACTION COMPLAINT 5 1 492. 2 23. Due to Defendant’s faulty policies described above, all Class Members whose 3 employment with Defendant concluded were not compensated at the appropriate rate. Additionally, 4 Defendant has failed to pay all Class Members meal period premiums and rest period premiums, 5 whose sums were certain, at the time of termination or within seventy-two (72) hours of their 6 resignation and have failed to pay those sums for thirty (30) days thereafter. 7 24. Labor Code § 227.3 provides that “whenever a contract of employment or employer 8 policy provides for paid vacations, and an employee is terminated without having taken off his 9 vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance 10 with such contract of employment or employer policy respecting eligibility or time served; 11 provided, however, that an employment contract or employer policy shall not provide for forfeiture 12 of vested vacation time upon termination.” 13 25. However, when Plaintiff was terminated on May 21, 2021, Defendant failed to pay 14 her full vacation time wages in violation of Labor Code §§ 227.3. 15 26. Labor Code § 1198.5 provides as follows: 16 (a) Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the 17 employer maintains relating to the employee’s performance or to any grievance concerning the employee. … 18 19 (k) If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times 20 specified in this section, or times agreed to by mutual agreement as provided in this section, the current or former employee or the Labor 21 Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer. 22 23 (l) A current or former employee may also bring an action for injunctive relief to obtain compliance with this section, and may recover costs and 24 reasonable attorney’s fees in such an action. … 25 27. As discussed above, Plaintiff sent Defendants numerous requests for copies of her 26 personnel records. The First Request was sent on May 27, 2021 and the Second Request was sent 27 28 PLAINTIFF’S CLASS ACTION COMPLAINT 6 1 on July 7, 2021. To date, however, Plaintiff has yet to receive copies of her personnel records from 2 Defendants. 3 28. Due to their failure to provide Plaintiff with copies of her personnel records upon 4 request, Defendants violated Labor Code § 1198.5. 5 29. Labor Code § 226 provides that: 6 (a) An employer, semimonthly or at the time of each payment of wages, shall furnish to his or her employee, either as a detachable part of the 7 check, draft, or voucher paying the employee’s wages, or separately if wages are paid by personal check or cash, an accurate itemized statement 8 in writing showing (1) gross wages earned, (2) total hours worked by the 9 employee, except as provided in subdivision (j), (3) the number of piece- rate units earned and any applicable piece rate if the employee is paid on a 10 piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, 11 (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four 12 digits of his or her social security number or an employee identification 13 number other than a social security number, (8) the name and address of the legal entity that is the employer and, ifthe employer is a farm labor 14 contractor, as defined in subdivision (b) of Section 1682, the name and address of the legal entity that secured the services of the employer, and 15 (9) all applicable hourly rates in effect during the pay period and the 16 corresponding number of hours worked at each hourly rate by the employee and, beginning July 1, 2013, if the employer is a temporary 17 services employer as defined in Section 201.3, the rate of pay and the total hours worked for each temporary services assignment. The deductions 18 made from payment of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the 19 statement and the record of the deductions shall be kept on file by the 20 employer for at least three years at the place of employment or at a central location within the State of California. For purposes of this subdivision, 21 “copy” includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the 22 information required by this subdivision. 23 (b) An employer that is required by this code or any regulation adopted 24 pursuant to this code to keep the information required by subdivision (a) shall afford current and former employees the right to inspect or receive a 25 copy of records pertaining to their employment, upon reasonable request to the employer. The employer may take reasonable steps to ensure the 26 identity of a current or former employee. If the employer provides copies of the records, the actual cost of reproduction may be charged to the 27 current or former employee. 28 PLAINTIFF’S CLASS ACTION COMPLAINT 7 1 (c) An employer who receives a written or oral request to inspect or receive a copy of records pursuant to subdivision (b) pertaining to a 2 current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. 3 A violation of this subdivision is an infraction. Impossibility of 4 performance, not caused by or a result of a violation of law, shall be an affirmative defense for an employer in any action alleging a violation of 5 this subdivision. An employer may designate the person to whom a request under this subdivision will be made. … 6 (f) A failure by an employer to permit a current or former employee to 7 inspect or receive a copy of records within the time set forth in subdivision 8 (c) entitles the current or former employee or the Labor Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty from the employer. … 9 10 30. As discussed above, Plaintiff sent Defendants numerous requests for copies of her 11 time and wage records. The First Request was sent on May 27, 2021 and the Second Request was 12 sent on July 7, 2021. To date, however, Plaintiff has yet to receive copies of her time and wage 13 records from Defendants. 14 31. Due to their failure to provide Plaintiff with copies of her time and wage records 15 upon request, Defendants violated Labor Code § 226. 16 CLASS ACTION ALLEGATIONS 17 32. Plaintiff brings this action, on behalf of herself and all others similarly situated, as a 18 class action pursuant to Code of Civil Procedure § 382. 19 33. Plaintiff seeks to represent the following classes: 20 (a) all individuals who are or were employed by Defendant or its predecessor or 21 merged entities in California as hourly, non-exempt employees, who were not paid on 22 time after the end of their employment with Defendants during the Class Period 23 (“waiting time class members”); 24 (b) all individuals who are or were employed by Defendant or its predecessor or 25 merged entities in California as hourly, non-exempt employees, who were not paid their 26 vacation time wages during the Class Period (“vacation time wages class members”); 27 (c) all individuals who are or were employed by Defendant, or its predecessor or 28 PLAINTIFF’S CLASS ACTION COMPLAINT 8 1 merged entities in California as hourly, non-exempt employees, who were not provided 2 their personnel records upon request during the Class Period (“personnel records class 3 members”); and 4 (d) all individuals who are or were employed by Defendant, or its predecessor or 5 merged entities in California as hourly, non-exempt employees who were not provided 6 their time and wage records upon request during the Class Period (“time and wage 7 records class members”). 8 34. This action has been brought and may properly be maintained as a class action 9 under Code of Civil Procedure § 382 because there is a well-defined community of interest in the 10 litigation, the proposed class is easily ascertainable, and Plaintiff is a proper representative of the 11 Class: 12 a. Numerosity: The potential members of the Class as defined are so 13 numerous that joinder of all the members of the Class is impracticable. While the precise number 14 of Class Members has not been determined at this time, Plaintiff is informed and believes that 15 Defendants have, on average, during the Class Period employed over 200 Class Members. The 16 Class Members are dispersed throughout California. Joinder of all members of the proposed 17 classes is therefore not practicable. 18 b. Commonality: There are questions of law and fact common to Plaintiff and 19 the Class that predominate over any questions affecting only individual members of the Class. 20 These common questions of law and fact include, without limitation: 21 i. Whether Defendants violated Section 203 of the Labor Code by failing to pay 22 members of the Waiting Time Penalty Subclass (those class members who have terminated their 23 employment with the Defendants) for all wages due to them upon their separation of employment 24 from Defendant; 25 ii. Whether Defendants violated Labor Code section 227.3 by failing to pay all 26 vacation time wages to each member of the Class in California during the Class Period; 27 iii. Whether Defendants violated Section 1198.5 of the Labor Code during the 28 PLAINTIFF’S CLASS ACTION COMPLAINT 9 1 Class Period by failing to provide Plaintiff and the Class Members their personnel records upon 2 request; 3 iv. Whether Defendants violated Section 226 of the Labor Code during the 4 Class Period by failing to provide Plaintiff and the Class Members their time and wage records 5 upon request; 6 v. Whether Defendants engaged in an unfair practice and violated section 7 17200 of the California Business and Professions Code by failing to pay all wages due upon 8 termination to members of the Class in violation of Labor Code sections 201-203; 9 vi. Whether Defendants engaged in an unfair practice and violated section 10 17200 of the California Business and Professions Code by failing to pay all vacation time wages 11 due to members of the Class in violation of Labor Code sections 227.3; 12 vii. Whether Defendants engaged in an unfair practice and violated section 13 17200 of the California Business and Professions Code by failing to provide personnel records to 14 members of the Class upon request in violation of Labor Code section 1198.5; 15 viii. Whether Defendants engaged in an unfair practice and violated section 16 17200 of the California Business and Professions Code by failing to provide time and wage 17 records to members of the Class upon request in violation of Labor Code section 226; 18 ix. Whether Plaintiff and the Class are entitled to restitution under Business and 19 Professions Code § 17200; 20 x. The proper formula(s) for calculating damages, interest, and restitution 21 owed to Plaintiff and the Class Members; 22 xi. The nature and extent of class-wide damages. 23 c. Typicality: Plaintiff’s claims are typical of the claims of the Class. Both 24 Plaintiff and Class Members sustained injuries and damages, and were deprived of property rightly 25 belonging to them, arising out of and caused by Defendants’ common course of conduct in 26 violation of law as alleged herein, in similar ways and for the same types of unpaid wages. 27 d. Adequacy of Representation: Plaintiff is a member of the Class and will 28 PLAINTIFF’S CLASS ACTION COMPLAINT 10 1 fairly and adequately represent and protect the interests of the Class and Class Members. 2 Plaintiff’s interests do not conflict with those of Class and Class Members. Counsel who represent 3 Plaintiff are competent and experienced in litigating large wage and hour class actions, and other 4 employment class actions, and will devote sufficient time and resources to the case and otherwise 5 adequately represent the Class and Class Members. 6 e. Superiority of Class Action: A class action is superior to other available 7 means for the fair and efficient adjudication of this controversy. Individual joinder of all Class 8 Members is not practicable, and questions of law and fact common to the Class predominate over 9 any questions affecting only individual members of the Class. Each Class Member has been 10 damaged or may be damaged in the future by reason of Defendants’ unlawful policies and/or 11 practices. Certification of this case as a class action will allow those similarly situated persons to 12 litigate their claims in the manner that is most efficient and economical for the parties and the 13 judicial system. Certifying this case as a class action is superior because it allows for efficient and 14 full disgorgement of the ill-gotten gains Defendants have enjoyed by maintaining its unlawful 15 compensation policies and will thereby effectuate California’s strong public policy of protecting 16 employees from deprivation or offsetting of compensation earned in their employment. If this 17 action is not certified as a Class Action, it will be impossible as a practical matter, for many or 18 most Class Members to bring individual actions to recover monies unlawfully withheld from their 19 lawful compensation due from Defendants, due to the relatively small amounts of such individual 20 recoveries relative to the costs and burdens of litigation. 21 FIRST CAUSE OF ACTION WAITING TIME PENALTIES FOR 22 FAILURE TO PAY WAGES DUE ON TERMINATION [Cal. Labor Code §§ 201-203] 23 On Behalf of Plaintiff and the Waiting Time Penalty Subclass Against All Defendants 24 35. Plaintiff re-alleges and incorporates by reference each and every allegation set forth 25 in the preceding paragraphs. 26 36. The actionable period for this cause of action is three years prior to the filing of the 27 Complaint through the present, and on-going until the violations are corrected, or the subclass is 28 PLAINTIFF’S CLASS ACTION COMPLAINT 11 1 certified. 2 37. Sections 201 and 202 of the California Labor Code require Defendants to pay all 3 compensation due and owing to former employees in the Class during the actionable period for this 4 cause of action, at or around the time that their employment is terminated. 5 38. Section 203 of the California Labor Code provides that if an employer willfully 6 fails to pay compensation promptly upon discharge or resignation, as required by Sections 201 and 7 202, then the employer is liable for penalties in the form of continued compensation up to thirty 8 (30) work days. 9 39. As discussed above, Plaintiff was terminated by Defendants effective May 21, 10 2021. However, Plaintiff only received her final paycheck from Defendants two weeks after she 11 was terminated. Defendants willfully failed to timely pay Plaintiff and other members of the 12 Waiting Time Penalty Subclass (i.e., those members of the Class whose employment with 13 Defendants ended the actionable period for this cause of action) who are no longer employed by 14 Defendants prior to or upon termination or separation from employment with Defendants as 15 required by California Labor Code §§ 201 and 202. 16 40. As a result, Defendants are liable to Plaintiff and other members of the waiting time 17 penalty subclass who are no longer employed by Defendants for waiting time penalties amounting 18 to thirty (30) days wages for Plaintiff and each such subclass member pursuant to California Labor 19 Code § 203. See, e.g., DLSE Manual, 4.3.4 (Failure to pay any sort of wages due upon termination 20 entitles an employee to recover waiting time penalties). 21 SECOND CAUSE OF ACTION FAILURE TO PAY VACATION TIME WAGES 22 [Cal. Labor Code § 227.3] On behalf of Plaintiff and the Class Against All Defendants 23 24 41. Plaintiff re-alleges and incorporates by reference each and every allegation set forth 25 in the preceding paragraphs. 26 42. Labor Code § 227.3 provides that “whenever a contract of employment or employer 27 policy provides for paid vacations, and an employee is terminated without having taken off his 28 vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance PLAINTIFF’S CLASS ACTION COMPLAINT 12 1 with such contract of employment or employer policy respecting eligibility or time served; 2 provided, however, that an employment contract or employer policy shall not provide for forfeiture 3 of vested vacation time upon termination.” 4 43. However, when Plaintiff was terminated on May 21, 2021, Defendant failed to pay 5 her full vacation time wages in violation of Labor Code §§ 227.3. 6 THIRD CAUSE OF ACTION FAILURE TO PROVIDE PERSONNEL RECORDS UPON REQUEST 7 [Cal. Labor Code § 1198.5] On behalf of Plaintiff, and the Class Against All Defendants 8 9 44. Plaintiff incorporates by this reference, as though fully set forth herein, the 10 preceding paragraphs of this Complaint. 11 45. Labor Code § 1198.5 provides as follows: 12 (a) Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the 13 employer maintains relating to the employee’s performance or to any grievance concerning the employee. … 14 (k) If an employer fails to permit a current or former employee, or his or 15 her representative, to inspect or copy personnel records within the times 16 specified in this section, or times agreed to by mutual agreement as provided in this section, the current or former employee or the Labor 17 Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer. 18 19 (l) A current or former employee may also bring an action for injunctive relief to obtain compliance with this section, and may recover costs and 20 reasonable attorney’s fees in such an action. … 21 46. As discussed above, Plaintiff sent Defendants numerous requests for copies of her 22 personnel records. The First Request was sent on May 27, 2021 and the Second Request was sent 23 on July 7, 2021. To date, however, Plaintiff has yet to receive copies of her personnel records from 24 Defendants. 25 47. Due to their failure to provide Plaintiff with copies of her personnel records upon 26 request, Defendants violated Labor Code § 1198.5. 27 // 28 PLAINTIFF’S CLASS ACTION COMPLAINT 13 1 FOURTH CAUSE OF ACTION FAILURE TO PROVIDE TIME AND WAGE RECORDS UPON REQUEST 2 [Cal. Labor Code § 226] On behalf of Plaintiff and the Class Against All Defendants 3 4 48. Plaintiff re-alleges and incorporates by reference each and every allegation set forth 5 in the preceding paragraphs. 6 49. Labor Code § 226 provides that: 7 (a) An employer, semimonthly or at the time of each payment of wages, shall furnish to his or her employee, either as a detachable part of the 8 check, draft, or voucher paying the employee’s wages, or separately if wages are paid by personal check or cash, an accurate itemized statement 9 in writing showing (1) gross wages earned, (2) total hours worked by the employee, except as provided in subdivision (j), (3) the number of piece- 10 rate units earned and any applicable piece rate if the employee is paid on a 11 piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, 12 (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four 13 digits of his or her social security number or an employee identification 14 number other than a social security number, (8) the name and address of the legal entity that is the employer and, ifthe employer is a farm labor 15 contractor, as defined in subdivision (b) of Section 1682, the name and address of the legal entity that secured the services of the employer, and 16 (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the 17 employee and, beginning July 1, 2013, if the employer is a temporary 18 services employer as defined in Section 201.3, the rate of pay and the total hours worked for each temporary services assignment. The deductions 19 made from payment of wages shall be recorded in ink or other indelible form