Welch et al v. Wal-Mart Associates, Inc., No. 2:2016cv02202 - Document 10 (E.D. Cal. 2016)
Court Description: ORDER granting 6 Stipulation and Proposed Order for Leave to File FAC. Signed by District Judge Vince Chhabria on 11/3/2016. (Law Clerk, VCLC2)
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Welch et al v. Wal-Mart Associates, Inc. Doc. 10 1 WILLIAM J. GOINES (SBN: 61290) goinesw@gtlaw.com 2 GREENBERG TRAURIG, LLP 1900 University Avenue, Fifth Floor 3 East Palo Alto, CA 94303 4 Tel: (650) 328-8500; Fax: (650) 328-8508 5 ROBERT J. HERRINGTON (SBN: 234417) herringtonr@gtlaw.com 6 GREENBERG TRAURIG, LLP 1840 Century Park East, Suite 1900 7 Los Angeles, CA 90067-2121 8 Tel: 310-586-7816; Fax: 310-586-0219 9 Attorneys for Defendant Wal-Mart Associates, Inc. 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 KELLY WELCH, PRISCILLA MACKSOUD, JON WUNDERLIN, CHRISTOPHER BRIXEY, DAVID LEDWITH, LISA GRESHAM,· GUILLERMINA AVITIA, CLAUDIA SOTO, TAMMY SANCHEZ, RANDY GIEFER, GERALD LALONDE, DIANE HOLLAND, JENNIE KEEN, GABRIEL SUCRE, JOHN KENYON, KURT JOHNSON, ROSA TREVINO, RHONDA JACKSON, MATTHEW BENCE, KISHON MONTEZ, LORAINE MCWHORTER, ARTURO CASTANEDA, ROD COUTURE, FRANCINE GIARDINO, BLONDELL ROBERTSON, KEVIN RYERSON, STEVEN CHAPMAN, ROSA TORRES, TERRIE WALKER, JUDY BALSAVICH, AMBER DOLAN AND MICHELLE HUMPHREYS, individuals, VC CASE NO.: 2:16−CV−02202−MCE−DB STIPULATION AND [PROPOSED] ORDER TO FILE FIRST AMENDED COMPLAINT Removed from Superior Court of the State of California for the County of San Joaquin Case No.: STK-CV-UOE-2016-6739 Action Removed: September 15, 2016 State Court Action Filed: July 11, 2016 Plaintiffs, v. WAL-MART ASSOCIATES, INC., a corporation; and DOES 1-50, inclusive, Defendants. 27 28 STIPULATION AND [PROPOSED] ORDER TO FILE FIRST AMENDED COMPLAINT CASE NO.: 2:16−CV−02202−MCE−DB Dockets.Justia.com 1 Plaintiffs Kelly Welch, Priscilla Macksoud, Jon Wunderlin, Christopher Brixey, David 2 Ledwith, Lisa Gresham, Guillermina Avitia, Claudia Soto, Tammy Sanchez, Randy Giefer, Gerald 3 Lalonde, Diane Holland, Jennie Keen, Gabriel Sucre, John Kenyon, Kurt Johnson, Rosa Trevino, 4 Rhonda Jackson, Matthew Bence, Kishon Montez, Loraine McWhorter, Arturo Castaneda, Rod 5 Couture, Francine Giardino, Blondell Robertson, Kevin Ryerson, Steven Chapman, Rosa Torres, 6 Terrie Walker, Judy Balsavich, Amber Dolan and Michelle Humphreys (collectively, “Plaintiffs”) 7 and Defendant Wal-Mart Associates, Inc. (“Defendant”) state as follows: 8 WHEREAS, Plaintiffs filed their Complaint in the Superior Court of the State of California, 9 County of San Joaquin, on July 11, 2016; 10 WHEREAS, Defendant’s counsel signed the Notice and Acknowledgment of Receipt of the 11 Summons and Complaint on August 16, 2016; 12 WHEREAS, Defendant filed its Answer to Plaintiffs’ Complaint in the Superior Court of the 13 State of California, County of San Joaquin, on September 15, 2016; 14 WHEREAS, after Defendant filed its Answer to Plaintiffs’ Complaint, it filed a Notice of 15 Removal in this Court on September 15, 2016 [Dkt. No. 1]; 16 WHEREAS, Plaintiffs now seek to file a First Amended Complaint to add a cause of action 17 pursuant to the Private Attorneys General Act (“PAGA”) and allegations pursuant to California 18 Business & Professions Code §§ 17200 et seq. for Defendant’s alleged failure to pay reporting time 19 wages; and 20 WHEREAS, Defendant does not oppose Plaintiffs’ request to file a First Amended 21 Complaint. 22 IT IS HEREBY AGREED AND STIPULATED by and between the Plaintiffs and Defendant 23 through their respective counsel of record, that: 24 25 26 27 1. Plaintiff may file a First Amended Complaint, a copy of which is attached hereto as Exhibit 1; and 2. Defendant’s response to the First Amended Complaint shall be filed within 30 days after the filing and service of the First Amended Complaint. 28 1 STIPULATION AND [PROPOSED] ORDER TO FILE FIRST AMENDED COMPLAINT CASE NO.: 2:16−CV−02202−MCE−DB 1 DATED: September 29, 2016 GREENBERG TRAURIG, LLP 2 By /s/William J. Goines William J. Goines Robert J. Herrington 3 4 5 Attorneys for Defendant Wal-Mart Associates, Inc. 6 7 8 DATED: September 29, 2016 BLUMENTHAL, NORDREHAUG & BHOWMIK 9 10 By /s/Victoria B. Rivapalacio Victoria B. Rivapalacio 11 12 Attorneys for Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 STIPULATION AND [PROPOSED] ORDER TO FILE FIRST AMENDED COMPLAINT CASE NO.: 2:16−CV−02202−MCE−DB 1 IT IS SO ORDERED. 2 November 3 3 Dated: _________________, 2016 4 5 HONORABLE VINCE CHHABRIA UNITED STATES DISTRICT JUDGE 6 7 8 9 LA 132751773v1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 STIPULATION AND [PROPOSED] ORDER TO FILE FIRST AMENDED COMPLAINT CASE NO.: 2:16−CV−02202−MCE−DB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT NO. 1. 1 5 BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B. Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 2255 Calle Clara La Jolla, CA 92037 Telephone: (858)551-1223 Facsimile: (858) 551-1232 Website: www.bamlawca.com 6 Attorneys for Plaintiffs 2 3 4 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALFIORNIA 10 11 12 13 14 15 16 17 18 19 20 KELLY WELCH, PRISCILLA MACKSOUD, JON WUNDERLIN, CHRISTOPHER BRIXEY, DAVID LEDWITH, LISA GRESHAM, GUILLERMINA AVITIA, CLAUDIA SOTO, TAMMY SANCHEZ, RANDY GIEFER, GERALD LALONDE, DIANE HOLLAND, JENNIE KEEN, GABRIEL SUCRE, JOHN KENYON, KURT JOHNSON, ROSA TREVINO, RHONDA JACKSON, MATTHEW BENCE, KISHON MONTEZ, LORAINE MCWHORTER, ARTURO CASTANEDA, ROD COUTURE, FRANCINE GIARDINO, BLONDELL ROBERSTON, KEVIN RYERSON, STEVEN CHAPMAN, ROSA TORRES, TERRIE WALKER, JUDY BALSAVICH, AMBER DOLAN, and MICHELLE HUMPHREYS, individuals, 21 Plaintiffs, Case No. 2:16-CV-02202-MCE-DB FIRST AMENDED COMPLAINT FOR: 1. UNFAIR COMPETITION IN VIOLATION OF CAL. BUS. & PROF. CODE §§ 17200 et seq.; 2. FAILURE TO PAY OVERTIME COMPENSATION IN VIOLATION OF CAL. LAB. CODE §§ 510, 1194 and 1198, et seq.; 3. FAILURE TO PROVIDE ACCURATE ITEMIZED STATEMENTS IN VIOLATION OF CAL. LAB. CODE § 226; and, 4. FAILURE TO PROVIDE WAGES WHEN DUE IN VIOLATION OF CAL. LAB. CODE §§ 201, 202 AND 203. 5. VIOLATION OF THE PRIVATE ATTORNEYS GENERAL ACT [LABOR CODE §§ 2698, et seq.]. 22 vs. 23 WAL-MART ASSOCIATES, INC., a Corporation, and DOES 1 through 50, DEMAND FOR A JURY TRIAL inclusive, 24 25 Defendants. 26 27 28 FIRST AMENDED COMPLAINT -1- Case No. 2:16-CV-02202 1 Plaintiffs Kelly Welch, Priscilla Macksoud, Jon Wunderlin, Christopher Brixey, David 2 Ledwith, Lisa Gresham, Guillermina Avitia, Claudia Soto, Tammy Sanchez, Randy Giefer, 3 Gerald Lalonde, Diane Holland, Jennie Keen, Gabriel Sucre, John Kenyon, Kurt Johnson, Rosa 4 Trevino, Rhonda Jackson, Matthew Bence, Kishon Montez, Loraine McWhorter, Arturo 5 Castaneda, Rod Couture, Francine Giardino, Blondell Robertson, Kevin Ryerson, Steven 6 Chapman, Rosa Torres, Terrie Walker, Judy Balsavich, Amber Dolan and Michelle Humphreys 7 ("PLAINTIFFS"), allege on information and belief, except for their own acts and knowledge 8 which are based on personal knowledge, the following: 9 10 11 THE PARTIES 1. Defendant Wal-Mart Associates, Inc. (“DEFENDANT”) is a corporation that all 12 relevant times mentioned herein conducted and continues to conduct substantial and regular 13 business throughout the State of California. 14 2. WAL-MART operates more than 11,000 stores in 27 countries around the world. 15 The company employs approximately 2.2 million associates and for the fiscal year ending in 16 January 2013, the company reported a net sales of $466.1 billion 17 3. Plaintiff Kelly Welch was employed by DEFENDANT in California as an 18 Assistant Store Manager from March of 2005 to January of 2015. At all times relevant during 19 her employment with DEFENDANT, Plaintiff Welch was classified as a salaried employee 20 exempt from overtime wages and other related benefits. 21 4. Plaintiff Priscilla Macksoud was employed by DEFENDANT in California as an 22 Assistant Store Manager from January of 2011 to September of 2013. At all times relevant 23 during her employment with DEFENDANT, Plaintiff Macksoud was classified as a salaried 24 employee exempt from overtime wages and other related benefits. 25 5. Plaintiff Jon Wunderlin has been employed by DEFENDANT in California as an 26 Assistant Store Manager from May of 2010. At all times relevant during his employment with 27 DEFENDANT, Plaintiff Wunderlin has been classified as a salaried employee exempt from 28 overtime wages and other related benefits. FIRST AMENDED COMPLAINT -2- Case No. 2:16-CV-02202 1 6. Plaintiff Christopher Brixey was employed by DEFENDANT in California as an 2 Assistant Store Manager from 1993 to August of 2012. At all times relevant during his 3 employment with DEFENDANT, Plaintiff Brixey was classified as a salaried employee exempt 4 from overtime wages and other related benefits. 5 7. Plaintiff David Ledwith has been employed by DEFENDANT in California as an 6 Assistant Store Manager since March of 2009. At all times relevant during his employment 7 with DEFENDANT, Plaintiff Ledwith has been classified as a salaried employee exempt from 8 overtime wages and other related benefits. 9 8. Plaintiff Lisa Gresham was employed by DEFENDANT in California as an 10 Assistant Store Manager from August of 2012 to March of 2014. At all times relevant during 11 her employment with DEFENDANT, Plaintiff Gresham was classified as a salaried employee 12 exempt from overtime wages and other related benefits. 13 9. Plaintiff Guillermina Avitia was employed by DEFENDANT in California as an 14 Assistant Store Manager from May of 2005 to February of 2014. At all times relevant during 15 her employment with DEFENDANT, Plaintiff Avitia was classified as a salaried employee 16 exempt from overtime wages and other related benefits. 17 10. Plaintiff Claudia Soto was employed by DEFENDANT in California as an 18 Assistant Store Manager from 2014 to January of 2016. At all times relevant during her 19 employment with DEFENDANT, Plaintiff Soto was classified as a salaried employee exempt 20 from overtime wages and other related benefits. 21 11. Plaintiff Tammy Sanchez was employed by DEFENDANT in California as an 22 Assistant Store Manager from May of 2008 to June of 2015. At all times relevant during her 23 employment with DEFENDANT, Plaintiff Sanchez was classified as a salaried employee 24 exempt from overtime wages and other related benefits. 25 12. Plaintiff Randy Giefer was employed by DEFENDANT in California as an 26 Assistant Store Manager from June of 2013 to July of 2015. At all times relevant during his 27 employment with DEFENDANT, Plaintiff Giefer was classified as a salaried employee exempt 28 from overtime wages and other related benefits. FIRST AMENDED COMPLAINT -3- Case No. 2:16-CV-02202 1 13. Plaintiff Gerald Lalonde was employed by DEFENDANT in California as an 2 Assistant Store Manager from 2011 to January of 2013. At all times relevant during his 3 employment with DEFENDANT, Plaintiff Lalonde was classified as a salaried employee 4 exempt from overtime wages and other related benefits. 5 14. Plaintiff Diane Holland was employed by DEFENDANT in California as an 6 Assistant Store Manager from 2006 to July of 2015. At all times relevant during her 7 employment with DEFENDANT, Plaintiff Holland was classified as a salaried employee 8 exempt from overtime wages and other related benefits. 9 15. Plaintiff Jennie Keen was employed by DEFENDANT in California as an 10 Assistant Store Manager from January of 2011 to February of 2013. At all times relevant during 11 her employment with DEFENDANT, Plaintiff Keen was classified as a salaried employee 12 exempt from overtime wages and other related benefits. 13 16. Plaintiff Gabriel Sucre was employed by DEFENDANT in California as an 14 Assistant Store Manager from 2007 to October of 2014. At all times relevant during his 15 employment with DEFENDANT, Plaintiff Sucre was classified as a salaried employee exempt 16 from overtime wages and other related benefits. 17 17. Plaintiff John Kenyon was employed by DEFENDANT in California as an 18 Assistant Store Manager from August of 2015 to November of 2015. At all times relevant 19 during his employment with DEFENDANT, Plaintiff Kenyon was classified as a salaried 20 employee exempt from overtime wages and other related benefits. 21 18. Plaintiff Kurt Johnson was employed by DEFENDANT in California as an 22 Assistant Store Manager from January of 2014 to June of 2015. At all times relevant during his 23 employment with DEFENDANT, Plaintiff Johnson was classified as a salaried employee 24 exempt from overtime wages and other related benefits. 25 19. Plaintiff Rosa Trevino has been employed by DEFENDANT in California as an 26 Assistant Store Manager since 2011. At all times relevant during her employment with 27 DEFENDANT, Plaintiff Trevino has been classified as a salaried employee exempt from 28 overtime wages and other related benefits. FIRST AMENDED COMPLAINT -4- Case No. 2:16-CV-02202 1 20. Plaintiff Rhonda Jackson has been employed by DEFENDANT in California as 2 an Assistant Store Manager since August of 2007. At all times relevant during her employment 3 with DEFENDANT, Plaintiff Jackson has been classified as a salaried employee exempt from 4 overtime wages and other related benefits. 5 21. Plaintiff Matthew Bence has been employed by DEFENDANT in California as 6 an Assistant Store Manager since June of 2012. At all times relevant during his employment 7 with DEFENDANT, Plaintiff Bence has been classified as a salaried employee exempt from 8 overtime wages and other related benefits. 9 22. Plaintiff Kishon Montez was employed by DEFENDANT in California as an 10 Assistant Store Manager from October of 2012 to July of 2014. At all times relevant during his 11 employment with DEFENDANT, Plaintiff Montez was classified as a salaried employee exempt 12 from overtime wages and other related benefits. 13 23. Plaintiff Loraine McWhorter has been employed by DEFENDANT in California 14 as an Assistant Store Manager since 2008. At all times relevant during her employment with 15 DEFENDANT, Plaintiff McWhorter has been classified as a salaried employee exempt from 16 overtime wages and other related benefits. 17 24. Plaintiff Arturo Castaneda has been employed by DEFENDANT in California 18 as an Assistant Store Manager since 2003. At all times relevant during his employment with 19 DEFENDANT, Plaintiff Castaneda has been classified as a salaried employee exempt from 20 overtime wages and other related benefits. 21 25. Plaintiff Rod Couture was employed by DEFENDANT in California as an 22 Assistant Store Manager from April of 1998 to April 2016. At all times relevant during his 23 employment with DEFENDANT, Plaintiff Couture was classified as a salaried employee 24 exempt from overtime wages and other related benefits. 25 26. Plaintiff Francine Giardino was employed by DEFENDANT in California as an 26 Assistant Store Manager from April of 2009 to September 2015. At all times relevant during 27 her employment with DEFENDANT, Plaintiff Giardino was classified as a salaried employee 28 exempt from overtime wages and other related benefits. Plaintiff Giardino has unused, accrued FIRST AMENDED COMPLAINT -5- Case No. 2:16-CV-02202 1 and vested vacation time when she left employment with DEFENDANT. DEFENDANT failed 2 to pay Plaintiff Giardino all of her unused, accrued and vested vacation wages upon termination 3 with DEFENDANT in violation of Cal. Lab. Code Section 203. 4 27. Plaintiff Blondell Robertson was employed by DEFENDANT in California as 5 an Assistant Store Manager from August of 2012 to February of 2016. At all times relevant 6 during her employment with DEFENDANT, Plaintiff Robertson was classified as a salaried 7 employee exempt from overtime wages and other related benefits. 8 28. Plaintiff Kevin Ryerson was employed by DEFENDANT in California as an 9 Assistant Store Manager from October of 2012 to March of 2016. At all times relevant during 10 his employment with DEFENDANT, Plaintiff Ryerson was classified as a salaried employee 11 exempt from overtime wages and other related benefits. 12 29. Plaintiff Steven Chapman was employed by DEFENDANT in California as an 13 Assistant Store Manager from July of 2013 to July of 2015. At all times relevant during his 14 employment with DEFENDANT, Plaintiff Chapman was classified as a salaried employee 15 exempt from overtime wages and other related benefits. 16 30. Plaintiff Rosa Torres has been employed by DEFENDANT in California as an 17 Assistant Store Manager from May of 2003. At all times relevant during her employment with 18 DEFENDANT, Plaintiff Torres has been classified as a salaried employee exempt from 19 overtime wages and other related benefits. 20 31. Plaintiff Terrie Walker was employed by DEFENDANT in California as an 21 Assistant Store Manager from February of 2005 to March 2016. At all times relevant during 22 her employment with DEFENDANT, Plaintiff Walker was classified as a salaried employee 23 exempt from overtime wages and other related benefits. 24 32. Plaintiff Judy Balsavich was employed by DEFENDANT in California as an 25 Assistant Store Manager from November of 2011 to May of 2016. At all times relevant during 26 her employment with DEFENDANT, Plaintiff Balsavich was classified as a salaried employee 27 exempt from overtime wages and other related benefits. 28 33. Plaintiff Amber Dolan was employed by DEFENDANT in California as an FIRST AMENDED COMPLAINT -6- Case No. 2:16-CV-02202 1 Assistant Store Manager from September of 2014 to May of 2016. At all times relevant during 2 her employment with DEFENDANT, Plaintiff Dolan was classified as a salaried employee 3 exempt from overtime wages and other related benefits. 4 34. Plaintiff Michelle Humphreys was employed by DEFENDANT in California as 5 an Assistant Store Manager from May of 2013 to February of 2015. At all times relevant during 6 her employment with DEFENDANT, Plaintiff Humphreys was classified as a salaried employee 7 exempt from overtime wages and other related benefits. 8 35. The statute of limitations on the claims of all PLAINTIFFS alleged herein have 9 been tolled since January 29, 2015 as a result of the filing of the class action complaint in 10 Cardoza v.Wal-Mart Associates, Inc., United State District Court Northern District of 11 California, Case No.15-CV-01634-SBA, and continue to be tolled to April 8, 2016. 12 36. The true names and capacities, whether individual, corporate, subsidiary, 13 partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are presently 14 unknown to the PLAINTIFFS who therefore sue these Defendants by such fictitious names 15 pursuant to Fed. Rl. Civ. Proc. 17. PLAINTIFFS will seek leave to amend this Complaint to 16 allege the true names and capacities of Does 1 through 50, inclusive, when they are ascertained. 17 PLAINTIFFS are informed and believe, and based upon that information and belief allege, that 18 the Defendants named in this Complaint, including DOES 1 through 50, inclusive, are 19 responsible in some manner for one or more of the events and happenings that proximately 20 caused the injuries and damages hereinafter alleged. 21 37. The agents, servants and/or employees of the Defendants and each of them acting 22 on behalf of the Defendants acted within the course and scope of his, her or its authority as the 23 agent, servant and/or employee of the Defendants, and personally participated in the conduct 24 alleged herein on behalf of the Defendants with respect to the conduct alleged herein. 25 Consequently, the acts of each Defendant are legally attributable to the other Defendants and 26 all Defendants are jointly and severally liable to PLAINTIFFS, for the loss sustained as a 27 proximate result of the conduct of the Defendants’ agents, servants and/or employees. 28 FIRST AMENDED COMPLAINT -7- Case No. 2:16-CV-02202 1 2 3 4 THE CONDUCT 38. The position of an Assistant Store Manager was represented by DEFENDANT to PLAINTIFFS and the other Assistant Store Managers as an exempt and a salaried position. 39. To perform their finite set of tasks, PLAINTIFFS did not engage in a supervisory 5 role given the constraints placed upon them by company policy. PLAINTIFFS had little, if any, 6 responsibility in determining what work was to be done by other employees or in what time 7 frame. Furthermore, PLAINTIFFS also did not have a distinct role in training other employees 8 or determining what training they were to receive. Lastly, PLAINTIFF and other Assistant 9 Store Managers did not have the ultimate authority to hire, fire, or promote employees, 10 determine their pay rates or benefits, or give raises as they were unable unilaterally make 11 employment-related, personnel decisions. Consequently, PLAINTIFFS did not have the 12 authority to decide whether or not an employee should be disciplined for an infraction without 13 first notifying upper management at DEFENDANT. Disciplinary decisions were made by the 14 human resources department or dictated by company policies. 15 recommendations were given little, if any, weight on all the above issues. As a result, 16 PLAINTIFFS were engaged in a type of work that required no exercise of independent 17 judgment or discretion as to any matter of significance. Therefore, PLAINTIFFS were 18 "managers" in name only because they did not have managerial duties or authority and should 19 therefore have been properly classified as non-exempt employees. 20 40. Overall, PLAINTIFFS’ PLAINTIFFS performed the finite set of tasks of greeting customers, handling 21 customer service requests and customer service complaints, answering phone calls, taking 22 inventory, receiving product shipments, assisting in the merchandising operation, printing out 23 reports and providing the reports to upper management, unlocking safes, counting money for 24 the cash register, conducting safety inspections by walking the store aisles, processing 25 merchandise returns, operating the customer care center, return desks and self-check-out areas 26 all in strict accordance with DEFENDANT’s company policies. PLAINTIFFS performed all 27 of their job functions according to established company policies, protocols and procedures. 28 PLAINTIFFS spent the vast majority of their day directly engaging with customers and dealing FIRST AMENDED COMPLAINT -8- Case No. 2:16-CV-02202 1 with customer service related issues. As Assistant Store Managers, PLAINTIFFS spent the 2 majority of their time performing the same job tasks as DEFENDANT’s hourly employees who 3 were paid overtime wages. 4 41. According to DEFENDANT’s company policy, while performing the job 5 functions of an Assistant Store Manager, PLAINTIFFS were and are required to work in excess 6 of eight (8) hours each workday and more than forty (40) hours each workweek. 7 8 9 42. PLAINTIFFS were not provided overtime compensation and other benefits required by law as a result of being classified as "exempt" by DEFENDANT. 43. As a matter of company policy, practice, and procedure, DEFENDANT has 10 unlawfully, unfairly and/or deceptively classified PLAINTIFFS as exempt based on job title 11 alone, failed to pay required overtime compensation and otherwise failed to comply with all 12 applicable labor laws with respect to PLAINTIFFS. 13 44. Although PLAINTIFFS primarily performed non-exempt clerical labor, 14 DEFENDANT instituted a blanket classification policy, practice and procedure by which 15 PLAINTIFFS were classified as exempt from overtime compensation and other related benefits. 16 By reason of this uniform exemption practice, policy and procedure applicable to PLAINTIFFS 17 who performed this non-exempt labor, DEFENDANT committed acts of unfair competition in 18 violation of the California Unfair Competition law, Cal. Bus. & Prof. Code §§ 17200, et seq. 19 (the "UCL"), by engaging in a company-wide policy, practice and procedure which failed to 20 properly classify PLAINTIFFS and thereby failed to pay them overtime wages for documented 21 overtime hours worked. The proper classification of these employees is DEFENDANT’s legal 22 burden. As a result of DEFENDANT’s intentional disregard of the obligation to meet this 23 burden, DEFENDANT failed to pay all required overtime compensation for work performed 24 by PLAINTIFFS and other Assistant Store Managers and violated the California Labor Code 25 and regulations promulgated thereunder as herein alleged. In addition, DEFENDANT failed to 26 provide all the legally required off-duty meal and rest breaks to PLAINTIFFS as required by 27 the applicable Wage Order and Labor Code. DEFENDANT does not have a policy or practice 28 which provided meal and rest breaks to PLAINTIFFS. As a result, DEFENDANT’s failure to FIRST AMENDED COMPLAINT -9- Case No. 2:16-CV-02202 1 provide PLAINTIFFS with legally required meal and rest breaks is evidenced by 2 DEFENDANT’s business records which contain no record of these breaks. 3 45. DEFENDANT, as a matter of law, has the burden of proving that (a) employees 4 are properly classified as exempt and that (b) DEFENDANT otherwise complied with 5 applicable laws. Other than the initial classification of PLAINTIFFS as exempt from being paid 6 overtime based on job title alone, DEFENDANT had no business policy, practice, or procedure 7 to ensure that PLAINTIFFS were properly classified as exempt, and in fact, as a matter of 8 corporate policy erroneously and unilaterally classified PLAINTIFFS as exempt based on job 9 title alone. 10 46. PLAINTIFFS employed by DEFENDANT were not primarily engaged in work 11 of a type that was or now is directly related to the management or general business operation 12 of the employer’s customers, when giving these words a fair but narrow construction. 13 PLAINTIFFS employed by DEFENDANT were also not primarily engaged in work of a type 14 that was or now is performed at the level of the policy or management of DEFENDANT. 15 PLAINTIFFS employed by DEFENDANT were also not primarily engaged in work requiring 16 knowledge of an advanced type in a field or science or learning customarily acquired by a 17 prolonged course of specialized intellectual instruction and study, but rather their work 18 primarily involves the performance of routine mental, manual, and/or physical processes. 19 PLAINTIFFS employed by DEFENDANT were also not primarily engaged in work that was 20 predominantly intellectual and varied in character, but rather was routine mental, manual, 21 mechanical, and/or physical work that was of such character that the output produced or the 22 result accomplished could be standardized in relation to a given period of time. 23 47. PLAINTIFFS were classified as exempt from California overtime and related laws 24 by DEFENDANT, however, these employees did not have managerial duties or authority. 25 PLAINTIFFS 26 PLAINTIFFS were tightly controlled by company policy and by their managers, did not 27 exercise discretion or independent judgment as to matters of significance, and their job duties 28 were not directly related to DEFENDANT’s management policies or general business operation. performed ongoing day-to-day non-exempt FIRST AMENDED COMPLAINT -10- activities. Furthermore, Case No. 2:16-CV-02202 1 48. PLAINTIFFS are and were uniformly classified and treated by DEFENDANT as 2 exempt at the time of hire and thereafter, DEFENDANT failed to take the proper steps to 3 determine whether PLAINTIFFS, were properly classified under the applicable Industrial 4 Welfare Commission Wage Order(s) and Cal. Lab. Code §§ 510, et seq. as exempt from 5 applicable California labor laws. Since DEFENDANT affirmatively and wilfully misclassified 6 PLAINTIFFS in compliance with California labor laws, DEFENDANT’s practices violated and 7 continue to violate California law. In addition, DEFENDANT acted deceptively by falsely and 8 fraudulently telling PLAINTIFFS that they were exempt from overtime pay when 9 DEFENDANT knew or should have known that this statement was false and not based on 10 known facts. DEFENDANT also acted unfairly by violating the California labor laws, and as 11 a result of this policy and practice, DEFENDANT also violated the UCL. In doing so, 12 DEFENDANT cheated the competition by paying PLAINTIFFS less than the amount 13 competitors paid who complied with the law and cheated PLAINTIFFS by not paying them in 14 accordance with California law. 15 49. When DEFENDANT required PLAINTIFFS to respond to work communications 16 after their scheduled workday, this results in a second reporting for work in a single workday. 17 In such a circumstance of a second reporting for work in a single workday, DEFENDANT fails 18 to pay these employees reporting time pay as required by Cal. Code Regs., tit. 8, § 11040. 19 Subdivision 5(B) states: “If an employee is required to report for work a second time in any one 20 workday and is furnished less than two (2) hours of work on the second reporting, said 21 employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not 22 be less than the minimum wage.” Cal. Code Regs., tit. 8, § 11040, subd. 5(B). DEFENDANT 23 failed to pay PLAINTIFFS reporting time wages due to them. 24 50. DEFENDANT also failed to provide PLAINTIFFS with a wage statement in 25 writing that accurately sets forth gross wages earned, all applicable hourly rates in effect during 26 the pay period and the corresponding number of hours worked at each hourly rate by 27 PLAINTIFFS. This conduct violated California Labor Code § 226. The pay stub also did not 28 accurately display anywhere the PLAINTIFFS’ overtime hours and applicable rates of overtime FIRST AMENDED COMPLAINT -11- Case No. 2:16-CV-02202 1 pay for the pay period. 2 51. By reason of this uniform conduct applicable to PLAINTIFFS, DEFENDANT 3 committed acts of unfair competition in violation of the California Unfair Competition law, Cal. 4 Bus. & Prof. Code §§ 17200, et seq. (the "UCL"), by engaging in a company-wide policy and 5 procedure which failed to correctly classify PLAINTIFFS as non-exempt. 6 classification of these employees is DEFENDANT’s burden. As a result of DEFENDANT’s 7 intentional disregard of the obligation to meet this burden, DEFENDANT failed to properly 8 calculate and/or pay all required overtime compensation for work performed by PLAINTIFFS 9 and violated the applicable Wage Order, the California Labor Code and the regulations 10 The proper promulgated thereunder as herein alleged. 11 12 JURISDICTION AND VENUE 52. 13 Venue is proper in this Court and judicial district pursuant to 28 U.S.C. § 1391 14 because DEFENDANT (i) currently maintains and at all relevant times maintained offices and 15 facilities in this judicial district and/or conducts substantial business in this judicial district, and 16 (ii) committed the wrongful conduct herein alleged in this judicial district against PLAINTIFFS. 17 Venue is also proper in this district because the complaint was initially filed in the Superior 18 Court of California, County of San Juaquin, but was later removed by DEFENDANT to this 19 Court. 20 21 FIRST CAUSE OF ACTION 22 For Unlawful Business Practices 23 [Cal. Bus. And Prof. Code §§ 17200 et seq.] 24 (By PLAINTIFFS and Against All Defendants) 25 26 27 28 53. PLAINTIFFS reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 53 of this Complaint. 54. DEFENDANT is a "person" as that term is defined under Cal. Bus. and Prof. FIRST AMENDED COMPLAINT -12- Case No. 2:16-CV-02202 1 2 Code § 17021. 55. California Business & Professions Code §§ 17200 et seq. (the "UCL") defines 3 unfair competition as any unlawful, unfair, or fraudulent business act or practice. Section 17203 4 authorizes injunctive, declaratory, and/or other equitable relief with respect to unfair 5 competition as follows: 6 7 8 9 10 11 Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition. California Business & Professions Code § 17203. 56. By the conduct alleged herein, DEFENDANT has engaged and continues to 12 engage in a business practice which violates California law, including but not limited to, the 13 applicable Wage Order(s), the California Code of Regulations and the California Labor Code 14 including Sections 201, 202, 203, 204, 226.7, 510, 512, 1194 & 1198, for which this Court 15 should issue declaratory and other equitable relief pursuant to Cal. Bus. & Prof. Code § 17203 16 as may be necessary to prevent and remedy the conduct held to constitute unfair competition, 17 including restitution of wages wrongfully withheld. DEFENDANT’s practices alleged herein 18 were also unfair within the meaning of the UCL because the DEFENDANT’s conduct was 19 contrary to important public policies of California, was immoral, unethical, oppressive, 20 unscrupulous, and the utility of which was outweighed to the harm of the conduct to 21 PLAINTIFFS. DEFENDANT’s practices alleged herein were deceptive within the meaning of 22 the UCL because PLAINTIFFS were likely to be deceived by DEFENDANT’s representations 23 that these employees were properly classified as exempt, were not entitled to overtime 24 compensation, and were paid in full for their work because such representations were not true. 25 57. By the conduct alleged herein DEFENDANT has obtained valuable property, 26 money, and services from PLAINTIFFS, and has deprived them of valuable rights and benefits 27 guaranteed by law, all to their detriment and to the benefit of DEFENDANT so as to allow 28 DEFENDANT to unfairly compete. Declaratory and injunctive relief is necessary to prevent FIRST AMENDED COMPLAINT -13- Case No. 2:16-CV-02202 1 and remedy this unfair competition, and pecuniary compensation alone would not afford 2 adequate and complete relief. 3 58. All the acts described herein as violations of, among other things, the California 4 Labor Code, California Code of Regulations, and the Industrial Welfare Commission Wage 5 Orders, were unlawful, were in violation of public policy, were immoral, unethical, oppressive, 6 and unscrupulous, and were likely to deceive employees, and thereby constitute deceptive, 7 unfair and unlawful business practices in violation of Cal. Bus. and Prof. Code §§ 17200, et seq. 8 59. By the conduct alleged herein, DEFENDANT’s practices were deceptive and 9 fraudulent in that DEFENDANT’s uniform policy and practice was to improperly classify as 10 exempt PLAINTIFFS, and DEFENDANT’s uniform policy and practice also failed to 11 accurately record all hours worked, and failed to provide the required amount of overtime 12 compensation and reporting time wages due to a systematic misclassification that cannot be 13 justified, pursuant to the applicable Cal. Lab. Code, and Industrial Welfare Commission 14 requirements in violation of Cal. Bus. Code Section 17200 et seq., and for which this Court 15 should issue injunctive and equitable relief, pursuant to Cal. Bus. & Prof. Code § 17203, 16 including restitution of wages wrongfully withheld. 17 60. By the conduct alleged herein, DEFENDANT’s practices were also unlawful, 18 unfair and deceptive in that DEFENDANT’s employment practices caused PLAINTIFFS to be 19 underpaid during their employment with DEFENDANT. 20 61. By the conduct alleged herein, DEFENDANT’s practices were also unfair and 21 deceptive in that DEFENDANT’s uniform policies, practices and procedures failed to provide 22 mandatory meal and/or rest breaks to PLAINTIFFS. 23 62. Therefore, PLAINTIFFS demand one (1) hour of pay for each workday in which 24 an off-duty meal period was not timely provided for each five (5) hours of work, and/or one (1) 25 hour of pay for each workday in which a second off-duty meal period was not timely provided 26 for each ten (10) hours of work. 27 28 63. PLAINTIFFS further demand one (1) hour of pay for each workday in which a rest period was not timely provided as required by law. FIRST AMENDED COMPLAINT -14- Case No. 2:16-CV-02202 1 64. PLAINTIFFS are entitled to, and do, seek such relief as may be necessary to 2 restore to them the money and property which DEFENDANT has acquired, or of which the 3 PLAINTIFFS have been deprived, by means of the above described unlawful and unfair 4 business practices, including earned but unpaid wages for all hours worked. 5 65. PLAINTIFFS, have no plain, speedy, and/or adequate remedy at law that will end 6 the unfair and unlawful business practices of DEFENDANT. Further, the practices herein 7 alleged presently continue to occur unabated. As a result of the unfair and unlawful business 8 practices described above, PLAINTIFFS have suffered and will continue to suffer irreparable 9 harm unless DEFENDANT is restrained from continuing to engage in these unfair and unlawful 10 business practices. In addition, DEFENDANT should be required to disgorge the unpaid 11 moneys, penalties and interest as required by law and make restitution to PLAINTIFFS. 12 13 SECOND CAUSE OF ACTION 14 For Failure To Pay Overtime Compensation 15 [Cal. Lab. Code §§ 510, 515, 1194 and 1198] 16 (By PLAINTIFFS and Against All Defendants) 17 18 66. PLAINTIFFS reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 66 of this Complaint. 19 67. 20 24 Eight hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. 25 68. 21 22 23 26 27 28 Cal. Lab. Code § 510 states in relevant part: Cal. Lab. Code § 551 states that, “Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” 69. Cal. Lab. Code § 552 states that, “No employer of labor shall cause his employees to work more than six days in seven.” FIRST AMENDED COMPLAINT -15- Case No. 2:16-CV-02202 1 70. Cal. Lab. Code § 515(d) provides: “For the purpose of computing the overtime 2 rate of compensation required to be paid to a nonexempt full-time salaried employee, the 3 employee's regular hourly rate shall be 1/40th of the employee's weekly salary.” 4 71. 5 7 Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit. 8 72. 6 Cal. Lab. Code § 1194 states: Cal. Lab. Code § 1198 provides: “The maximum hours of work and the standard 9 conditions of labor fixed by the commission shall be the maximum hours of work and the 10 standard conditions of labor for employees. The employment of any employee for longer hours 11 than those fixed by the order or under conditions of labor prohibited by the order is unlawful.” 12 73. DEFENDANT has intentionally and uniformly designated certain employees as 13 “exempt” employees, by their job title and without regard to DEFENDANT’s realistic 14 expectations and actual overall requirements of the job, including PLAINTIFFS who worked 15 on the production side of the DEFENDANT’s business. This was done in an illegal attempt to 16 avoid payment of overtime wages and other benefits in violation of the California Labor Code 17 and Industrial Welfare Commission requirements. 18 19 20 74. must be met and DEFENDANT has the burden of proving that: (a) (b) The employee must customarily and regularly direct the work of at least two (2) or more other employees; and, 23 24 The employee’s primary duty must be management of the enterprise, or of a customarily recognized department or subdivision; and, 21 22 For an employee to be exempt as a bona fide “executive,” all the following criteria (c) The employee must have the authority to hire and fire, or to command 25 particularly serious attention to his or his recommendations on such actions 26 affecting other employees; and, 27 28 (d) The employee must customarily and regularly exercise discretion and independent judgment; and, FIRST AMENDED COMPLAINT -16- Case No. 2:16-CV-02202 1 (e) 2 The employee must be primarily engaged in duties which meet the test of exemption. 3 None of PLAINTIFFS were or are an executive because they all fail to meet the requirements 4 of being an “executive” within the meaning of Order No. 4-2001. 5 6 7 75. criteria must be met and DEFENDANT has the burden of proving that: (a) (b) (c) (d) (e) The employee must execute special assignments and tasks under only general supervision; and, 16 17 The employee must perform, under only general supervision, work requiring special training, experience, or knowledge, or, 14 15 The employee must regularly and directly assist a proprietor or an exempt administrator; or, 12 13 The employee must customarily and regularly exercise discretion and independent judgment; and, 10 11 The employee must perform office or non-manual work directly related to management policies or general business operation of the employer; and, 8 9 For an employee to be exempt as a bona fide “administrator,” all of the following (f) The employee must be primarily engaged in duties which meet the test of exemption. 18 19 None of PLAINTIFFS were or are an administrator because they all fail to meet the 20 requirements for being an “administrator” under Order No. 4-2001. 21 76. The Industrial Welfare Commission, in Wage Order 4-2001, at section (1)(A)(3), 22 and Labor Code § 515, also set forth the requirements which must be complied with to place 23 an employee in the “professional” exempt category. For an employee to be “exempt” as a bona 24 fide “professional”, all the following criteria must be met and DEFENDANT has the burden of 25 proving that: 26 (a) The employee is primarily engaged in an occupation commonly recognized as a 27 learned or artistic profession. For the purposes of this subsection, “learned or 28 artistic profession” means an employee who is primarily engaged in the FIRST AMENDED COMPLAINT -17- Case No. 2:16-CV-02202 1 performance of: 2 1) Work requiring knowledge of an advanced type in a field or science or 3 learning customarily acquired by a prolonged course of specialized 4 intellectual instruction and study, as distinguished from a general 5 academic education and from an apprenticeship, and from training in the 6 performance of routine mental, manual, or physical processes, or work that 7 is an essential part or necessarily incident to any of the above work; or, 2) 8 Work that is original and creative in character in a recognized field of 9 artistic endeavor, and the result of which depends primarily on the 10 invention, imagination or talent of the employee or work that is an 11 essential part of or incident to any of the above work; and, 3) 12 Whose work is predominately intellectual and varied in character (as 13 opposed to routine mental, manual, mechanical, or physical work) and is 14 of such character cannot be standardized in relation to a given period of 15 time. 16 (b) independent judgment; and. 17 18 (c) 21 22 23 The employee earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. 19 20 The employee must customarily and regularly exercise discretion and 77. None of PLAINTIFFS were or are a professional because they all fail to meet the requirements of being a “professional” within the meaning of the applicable Wage Order. 78. PLAINTIFFS do not fit the definition of an exempt executive, administrative, or professional employee because: 24 (a) They did not work as executives or administrators; and, 25 (b) The professional exemption does not apply to the PLAINTIFFS because they did 26 not meet all the applicable requirements to work under the professional 27 exemption for the reasons set forth above in this Complaint. 28 79. During the class period, PLAINTIFFS worked more than eight (8) hours in a FIRST AMENDED COMPLAINT -18- Case No. 2:16-CV-02202 1 workday and in excess of forty (40) hours in a work week. 2 80. At all relevant times, DEFENDANT failed to pay PLAINTIFFS overtime 3 compensation for the hours they have worked in excess of the maximum hours permissible by 4 law as required by Cal. Lab. Code §§ 510 and 1198, even though PLAINTIFFS are regularly 5 required to work, and do in fact work, overtime hours. 81. 6 By virtue of DEFENDANT’s unlawful failure to pay additional compensation to 7 PLAINTIFFS, for their regular and overtime hours, PLAINTIFFS have suffered, and will 8 continue to suffer, an economic injury in amounts which are presently unknown to them and 9 which will be ascertained according to proof at trial. 82. 10 DEFENDANT knew or should have known that PLAINTIFFS were misclassified 11 as exempt and DEFENDANT systematically elected, either through intentional malfeasance or 12 gross nonfeasance, not to pay them for their overtime labor as a matter of uniform corporate 13 policy, practice and procedure. 83. 14 Cal. Lab. Code § 1194 establishes an employee’s right to recover unpaid wages, 15 including overtime compensation and interest thereon, together with the costs of suit. Cal. Lab. 16 Code § 1198 further states that the employment of an employee for longer hours than those 17 fixed by the Industrial Welfare Commission is unlawful. 84. 18 In performing the acts and practices herein alleged in violation of labor laws and 19 refusing to provide the requisite regular and overtime compensation, the DEFENDANT acted 20 and continues to act intentionally, oppressively, and maliciously toward PLAINTIFFS, with a 21 conscious and utter disregard of their legal rights, or the consequences to them, and with the 22 despicable intent of depriving them of their property and legal rights and otherwise causing 23 them injury in order to increase corporate profits at the expense of PLAINTIFFS. 24 /// 25 /// 26 /// 27 /// 28 FIRST AMENDED COMPLAINT -19- Case No. 2:16-CV-02202 1 THIRD CAUSE OF ACTION 2 For Failure to Provide Accurate Itemized Statements 3 [Cal. Lab. Code § 226] 4 (By Plaintiff Wunderlin, Plaintiff Soto, Plaintiff Sucre, Plaintiff Trevino, Plaintiff 5 Jackson, Plaintiff Bence, Plaintiff Kenyon, Plaintiff McWhorter, Plaintiff Couture, 6 Plaintiff Giardino, Plaintiff Robertson, Plaintiff Ryerson, Plaintiff Torres, Plaintiff 7 Balsavich and Plaintiff Dolan and Against All Defendants) 8 9 85. Plaintiff Wunderlin, Plaintiff Soto, Plaintiff Sucre, Plaintiff Trevino, Plaintiff Jackson, and Plaintiff Bence, Plaintiff Kenyon, Plaintiff McWhorter, Plaintiff Couture, 10 Plaintiff Giardino, Plaintiff Robertson, Plaintiff Ryerson, Plaintiff Torres, Plaintiff Balsavich 11 and Plaintiff Dolan reallege and incorporate by this reference, as though fully set forth 12 herein, paragraphs 1 through 85 of this Complaint. 13 14 86. Cal. Lab. Code § 226 provides that an employer must furnish employees with an "accurate itemized" statement in writing showing: 15 (1) gross wages earned, 16 (2) total hours worked by the employee, except for any employee whose 17 compensation is solely based on a salary and who is exempt from payment of 18 overtime under subdivision (a) of Section 515 or any applicable order of the 19 Industrial Welfare Commission, 20 (3) the number of piecerate units earned and any applicable piece rate if the employee 21 is paid on a piece-rate basis, 22 (4) all deductions, provided that all deductions made on written orders of the 23 employee may be aggregated and shown as one item, 24 (5) net wages earned, 25 (6) the inclusive dates of the period for which the employee is paid, 26 (7) the name of the employee and his or her social security number, except that by 27 January 1, 2008, only the last four digits of his or her social security number or an 28 employee identification number other than a social security number may be shown on FIRST AMENDED COMPLAINT -20- Case No. 2:16-CV-02202 1 the itemized statement, 2 (8) the name and address of the legal entity that is the employer, and 3 (9) all applicable hourly rates in effect during the pay period and the corresponding 4 number of hours worked at each hourly rate by the employee. 5 87. At all times relevant herein, DEFENDANT violated Cal. Lab. Code § 226, in 6 that DEFENDANT failed to provide an accurate wage statement in writing that properly and 7 accurately itemized the number of hours worked by Plaintiff Wunderlin, Plaintiff Soto, 8 Plaintiff Sucre, Plaintiff Trevino, Plaintiff Jackson, and Plaintiff Bence, Plaintiff Kenyon, 9 Plaintiff McWhorter, Plaintiff Couture, Plaintiff Giardino, Plaintiff Robertson, Plaintiff 10 Ryerson, Plaintiff Torres, Plaintiff Balsavich and Plaintiff Dolan at the effective regular 11 rates of pay and the effective overtime rates of pay. 12 88. DEFENDANT knowingly and intentionally failed to comply with Cal. Lab. 13 Code § 226, causing injury and damages to Plaintiff Wunderlin, Plaintiff Soto, Plaintiff 14 Sucre, Plaintiff Trevino, Plaintiff Jackson, and Plaintiff Bence, Plaintiff Kenyon, Plaintiff 15 McWhorter, Plaintiff Couture, Plaintiff Giardino, Plaintiff Robertson, Plaintiff Ryerson, 16 Plaintiff Torres, Plaintiff Balsavich and Plaintiff Dolan. These injuries and damages 17 include, but are not limited to, costs expended calculating the true hours worked and the 18 amount of employment taxes which were not properly paid to state and federal tax 19 authorities. These damages are difficult to estimate. Therefore, Plaintiff Wunderlin, 20 Plaintiff Soto, Plaintiff Sucre, Plaintiff Trevino, Plaintiff Jackson, and Plaintiff Bence, 21 Plaintiff Kenyon, Plaintiff McWhorter, Plaintiff Couture, Plaintiff Giardino, Plaintiff 22 Robertson, Plaintiff Ryerson, Plaintiff Torres, Plaintiff Balsavich and Plaintiff Dolan may 23 elect to recover liquidated damages of $50.00 for the initial pay period in which the violation 24 occurred, and $100.00 for each violation in subsequent pay period pursuant to Cal. Lab. 25 Code § 226, in an amount according to proof at the time of trial (but in no event more than 26 $4,000.00 for Plaintiff Wunderlin, Plaintiff Soto, Plaintiff Sucre, Plaintiff Trevino, Plaintiff 27 Jackson, and Plaintiff Bence, Plaintiff Kenyon, Plaintiff McWhorter, Plaintiff Couture, 28 Plaintiff Giardino, Plaintiff Robertson, Plaintiff Ryerson, Plaintiff Torres, Plaintiff Balsavich FIRST AMENDED COMPLAINT -21- Case No. 2:16-CV-02202 1 and Plaintiff Dolan individually herein). 2 3 FOURTH CAUSE OF ACTION 4 For Failure to Pay Wages When Due 5 [ Cal. Lab. Code §§ 201, 202, 203] 6 (By PLAINTIFFS Whose Employment Have Been Terminated with DEFENDANT and 7 Against All Defendants) 8 9 10 11 89. reallege and incorporate by reference, as though fully set forth herein, paragraphs 1 through 89 of this Complaint. 90. 14 15 16 17 18 19 20 Cal. Lab. Code § 200 provides that: As used in this article: 12 13 PLAINTIFFS whose employment have been terminated with DEFENDANT (a) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, Commission basis, or other method of calculation. (b) "Labor" includes labor, work, or service whether rendered or performed under contract, subcontract, partnership, station plan, or other agreement if the labor to be paid for is performed personally by the person demanding payment. 91. Cal. Lab. Code § 201 provides, in relevant part, that “If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” 92. Cal. Lab. Code § 202 provides, in relevant part, that: 25 If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting. Notwithstanding any other provision of law, an employee who quits without providing a 72-hour notice shall be entitled to receive payment by mail if he or she so requests and designates a mailing address. The date of the mailing shall constitute the date of payment for purposes of the requirement to provide payment within 72 hours of the notice of quitting. 26 93. 21 22 23 24 27 28 There was no definite term in PLAINTIFFS’ employment contracts whose employment have been terminated with DEFENDANT. 94. Cal. Lab. Code § 203 provides: FIRST AMENDED COMPLAINT -22- Case No. 2:16-CV-02202 1 2 3 4 5 6 7 8 9 10 11 12 13 If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. 95. required by law to PLAINTIFFS whose employment have been terminated with DEFENDANT. DEFENDANT willfully and intentionally failed to pay overtime wages as alleged herein, in violation of California Labor Code §§ 201& 202. 96. for not paying all wages due at time of termination for all employees who terminated employment and demands an accounting and payment of all overtime wages due, plus interest and statutory costs as allowed by law. FIFTH CAUSE OF ACTION 15 For Violation of the Private Attorneys General Act 16 18 19 20 21 22 23 24 25 26 27 28 Therefore, as provided by Cal Lab. Code § 203, PLAINTIFFS whose employment have been terminated with DEFENDANT demand thirty days of pay as penalty 14 17 DEFENDANT has not tendered payment of all overtime wages owed as [Cal. Lab. Code §§ 2698, et seq.] (By Plaintiffs Wunderlin, Soto, Sucre, Trevino, Jackson, Bence, Kenyon, McWhorter, Couture, Giardino, Robertson, Ryerson, Torres, Blasavich, Dolan and Against All Defendants) 97. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1-97, supra, as though fully set forth at this point. 98. PAGA is a mechanism by which the State of California itself can enforce state labor laws through the employee suing under the PAGA who do so as the proxy or agent of the state's labor law enforcement agencies. An action to recover civil penalties under PAGA is fundamentally a law enforcement action designed to protect the public and not to benefit private parties. The purpose of the PAGA is not to recover damages or restitution, but to create a means of "deputizing" citizens as private attorneys general to enforce the FIRST AMENDED COMPLAINT -23- Case No. 2:16-CV-02202 1 Labor Code. In enacting PAGA, the California Legislature specified that "it was ... in the 2 public interest to allow aggrieved employees, acting as private attorneys general to recover 3 civil penalties for Labor Code violations ..." Stats. 2003, ch. 906, § 1. Accordingly, PAGA 4 claims cannot be subject to arbitration. 5 99. Plaintiffs , and such persons that may be added from time to time who satisfy 6 the requirements and exhaust the administrative procedures under the Private Attorney 7 General Act, brings this Representative Action on behalf of the State of California with 8 respect to themselves and all individuals who are or previously were employed by 9 DEFENDANT as Assistant Store Managers and were classified as exempt employees in 10 California during the time period of July 11, 2015 until the present (the "AGGRIEVED 11 EMPLOYEES"). 12 100. As part of their business, DEFENDANT employs a fleet of "Warehouse 13 Supervisors.” PLAINTIFFS and other AGGRIEVED EMPLOYEES, as Warehouse 14 Supervisors, were primarily engaged in the core, day-to-day business activities of 15 DEFENDANT. The finite set of tasks required to be performed by the PLAINTIFFS and 16 other AGGRIEVED EMPLOYEES were greeting customers, handling customer service 17 requests and customer service complaints, answering phone calls, taking inventory, 18 receiving product shipments, assisting in the merchandising operation, printing out reports 19 and providing the reports to upper management, unlocking safes, counting money for the 20 cash register, conducting safety inspections by walking the store aisles, processing 21 merchandise returns, operating the customer care center, return desks and self-check-out 22 areas all in accordance with DEFENDANT’s established specific procedures and protocols 23 which governed and controlled every aspect of the work performed by the PLAINTIFFS and 24 other AGGRIEVED EMPLOYEES. 25 101. To perform their finite set of tasks, PLAINTIFFS and other AGGRIEVED 26 EMPLOYEES did not engage in a supervisory or managerial role given the constraints 27 placed upon them by company policy. PLAINTIFFS and other AGGRIEVED 28 EMPLOYEES did not determine what work was to be done by other employees or in what FIRST AMENDED COMPLAINT -24- Case No. 2:16-CV-02202 1 time frame. Furthermore, PLAINTIFFS and other AGGRIEVED EMPLOYEES also did 2 not have a distinct role in training other employees or determining what training they were 3 to receive. Lastly, PLAINTIFFS and other AGGRIEVED EMPLOYEES did not have the 4 authority to hire, fire, or promote employees, determine their pay rates or benefits, or give 5 raises as they were unable to make employment-related, personnel decisions. Consequently, 6 PLAINTIFFS and other AGGRIEVED EMPLOYEES did not have the authority to decide 7 whether or not an employee should be disciplined for an infraction. PLAINTIFFS and other 8 AGGRIEVED EMPLOYEES were not engaged in work of a type that was or now is directly 9 related to the management or general business operations of the DEFENDANT’s customers, 10 when giving these words a fair but narrow construction. PLAINTIFFS and other 11 AGGRIEVED EMPLOYEES were also not engaged in work of a type that was or now is 12 performed at the level of the policy or management of DEFENDANT. PLAINTIFFS and 13 other AGGRIEVED EMPLOYEES were also not engaged in work requiring knowledge of 14 an advanced type in a field or science or learning customarily acquired by a prolonged 15 course of specialized intellectual instruction and study, but rather their work involved the 16 performance of routine mental, clerical, and/or physical processes. PLAINTIFFS and other 17 AGGRIEVED EMPLOYEES were also not engaged in work that was intellectual and varied 18 in character, but rather was routine mental, clerical, and/or physical work that was of such 19 character that the output produced or the result accomplished can be standardized in relation 20 to a given period of time. The work of a Warehouse Supervisor of DEFENDANT was work 21 wherein the PLAINTIFFS and other AGGRIEVED EMPLOYEES were engaged in the day- 22 to-day business of DEFENDANT. Therefore, the PLAINTIFFS and other AGGRIEVED 23 EMPLOYEES should have been properly classified as non-exempt employees. 24 102. On July 20, 2016, Plaintiffs gave written notice by certified mail to the Labor 25 and Workforce Development Agency (the "Agency") and the employer of the specific 26 provisions of this code alleged to have been violated as required by Labor Code § 2699.3. 27 See Exhibit #1, attached hereto and incorporated by this reference herein. The statutory 28 waiting period for Plaintiffs to add these allegations to the Complaint has expired. As a FIRST AMENDED COMPLAINT -25- Case No. 2:16-CV-02202 1 result, pursuant to Section 2699.3, Plaintiffs may now commence a representative civil 2 action under PAGA pursuant to Section 2699 as the proxy of the State of California with 3 respect to all AGGRIEVED EMPLOYEES as herein defined. 103. 4 The policies, acts and practices heretofore described were and are an unlawful 5 business act or practice because Defendant (a) failed to properly record and pay Plaintiffs 6 and the other AGGRIEVED EMPLOYEES for all of the hours they worked, including 7 overtime hours in violation of the Wage Order, (b) failed to provide accurate itemized wage 8 statements, and (c) failed to timely pay wages, all in violation of the applicable Labor Code 9 sections listed in Labor Code §2699.5, including but not limited to Labor Code §§ 201, 202, 10 203, 204, 226(a), 226.7, 256, 510, 512, 1194, 1198 and the applicable Industrial Wage 11 Order(s), and thereby gives rise to statutory penalties as a result of such conduct. Plaintiffs 12 hereby seeks recovery of civil penalties as prescribed by the Labor Code Private Attorney 13 General Act of 2004 as the representative of the State of California for the illegal conduct 14 perpetrated on Plaintiffs and the other AGGRIEVED EMPLOYEES. 15 16 PRAYER FOR RELIEF WHEREFORE, PLAINTIFFS pray for judgment against each Defendant, jointly and 17 18 severally, as follows: 19 1. On behalf of PLAINTIFFS: A) 20 all sums unlawfuly withheld from compensation due to PLAINTIFFS; 21 B) 22 C) 24 28 An order temporarily, preliminarily and permanently enjoining and restraining DEFENDANT from engaging in similar unlawful conduct as set forth herein. 25 27 Disgorgement of DEFENDANT’s ill-gotten gains into a fluid fund for restitution of the sums incidental to DEFENDANT’s violations due to PLAINTIFFS; and, 23 26 An order requiring DEFENDANT to correctly calculate and pay all wages and 2. On behalf of PLAINTIFFS: A) Compensatory damages, according to proof at trial, including compensatory damages for overtime compensation due PLAINTIFFS plus interest thereon at the FIRST AMENDED COMPLAINT -26- Case No. 2:16-CV-02202 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 EXHIBIT #1 27 28 FIRST AMENDED COMPLAINT -29- Case No. 2:16-CV-01156 FACSIMILE (858) 551-1232 BLUMENTHAL, NORDREHAUG & BHOWMIK TELEPHONES (858) 551-1223 2255 CALLE CLARA LA JOLLA, CALIFORNIA 92037 GENERAL E-MAIL: bam@bamlawlj.com Web Site: www.bamlawca.com WRITERS E-MAIL: Nick@bamlawca.com WRITERS EXT: 5 July 20, 2016 CA1270 VIA EMAIL TO LWDA AND CERTIFIED MAIL TO DEFENDANT Labor and Workforce Development Agency PAGAfilings@dir.ca.gov Wal-Mart Associates, Inc. Certified Mail # 70142120000378195895 CT Corporation System 818 West Seventh Street, Suite 930 Los Angeles, CA 90017 Re: Notice Of Violations Of California Labor Code Sections §§ 201, 202, 203, 204, 226(a), 226.7, 510, 512, 1194, 1198, Violation of Industrial Wage Order 7(A)(3), Violation of the Applicable Industrial Welfare Commission Wage Order(s), and Pursuant To California Labor Code Section 2699.5. Dear Sir/Madam: Our offices represent Plaintiffs Jon Wunderlin, Claudia Soto, Gabriel Sucre, Rosa Trevino, Rhonda Jackson, Matthew Bence, John Kenyon, Lorraine McWhorter, Rod Couture, Francine Giardino, Blondell Robertson, Kevin Ryerson, Rosa Torres, Judy Blasavich and Amber Dolan (“Plaintiffs”), and other aggrieved employees in a lawsuit against Wal-Mart Associates, Inc. (“Defendant”). Plaintiffs were employed and suffered violations of the California Labor Code during the Private Attorney General Act period as described in the Complaint that is attached hereto. At all times relevant during their employment with Defendant, Plaintiffs were classified as salaried employees exempt from receiving overtime wages and the legally required meal and rest periods. Defendant, however, unlawfully failed to record and pay Plaintiffs and other aggrieved employees for all of the time they worked, including overtime worked. To date, Defendant has not fully paid Plaintiffs for all their overtime wages still owed to them or any penalty wages owed to them under California Labor Code § 203. As a consequence of the aforementioned violations, Plaintiffs further contend that Defendant failed to provide accurate wage statements to them, and other aggrieved employees, in violation of California Labor Code § 226(a). Additionally, Plaintiffs contend that Defendant failed to comply with Industrial Wage Order 7(A)(3) in that Defendant failed to keep time records showing when Plaintiffs began and ended each shift and meal period. Said conduct, in addition to the foregoing, violates Labor Code §§ 201, 202, 203, 204, 226(a), 226.7, 510, 512, 1194, 1198, Violation of the Applicable Industrial Welfare Commission Wage Order(s), and is therefore actionable under California Labor Code § 2699.3. A true and correct copy of the Complaint filed by Plaintiffs against Defendant, which (i) identifies the alleged violations, (ii) details the facts and theories which support the alleged violations, (iii) details the specific work performed by Plaintiffs, (iii) sets forth the people/entities, dates, classifications, violations, events, and actions which are at issue to the extent known to Plaintiffs, and (iv) sets forth the illegal practices used by Defendant is attached hereto. This information provides notice to the Labor and Workforce Development Agency of the facts and theories supporting the alleged violations for the agency’s reference. Plaintiffs therefore incorporate the allegations of the attached Complaint into this letter as if fully set forth herein. If the agency needs any further information, please do not hesitate to ask. This notice is provided to enable Plaintiffs to proceed with the Complaint filed in the San Joaquin County Superior Court Case No. STK-CV-VOE-2016-6739, against Defendant as authorized by California Labor Code § 2695, et seq. The filing fee of $75 is being mailed to the Department of Industrial Relations Accounting Unit with an identification of the Plaintiff, the Defendant and the attached notice. The pending lawsuit consists of other aggrieved employees. As counsel, our intention is to vigorously prosecute the claims as alleged in the complaint, and to procure civil penalties as provided by the Private Attorney General Statue of 2004 on behalf of Plaintiffs and all aggrieved California employees. Your earliest response to this notice is appreciated. If you have any questions of concerns, please do not hesitate to contact me at the above number and address. Respectfully, /s/Nicholas J. De Blouw Nicholas J. De Blouw, Esq. K:\D\Dropbox\Pending Litigation\Wal-Mart-Couture\l-paga-01.wpd
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