This case was last updated from Santa Clara County Superior Courts on 08/08/2019 at 13:26:38 (UTC).

Bradford, et al. v. Swissport Fueling, Inc.

Case Summary

On 10/12/2018 Bradford filed a Labor - Other Labor lawsuit against Swissport Fueling, Inc. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Kuhnle, Thomas. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******6218

  • Filing Date:

    10/12/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Kuhnle, Thomas

 

Party Details

Plaintiffs

Fuller, Jorden

Bradford, Jameisha

Defendant

Swissport Fueling, Inc.

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorneys

Grombacher, Kiley Lynn

Emerson, Taylor Lindsey

Bradley, Marcus Joseph

Defendant Attorneys

Sulzer, Kenneth Dawson

Hamilton, Sarah Kepner

Lawler, Christin Anne

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Proof of Service: Summons DLR (Civil)

Proof of Service of Summons Complaint: Comment: Proof of Service of Summons/Complaint

Order

Order Granting Plaintiffs' Administrative Motion to File Under Seal Selected Evidence: Comment: Order Granting Plaintiffs' Administrative Motion to File Under Seal Selected Evidence in Consent to Joint Forms - signed/TEK

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

Civil Lawsuit Notice

Civil Lawsuit Notice: Comment: 1st CMC set for 1/25/19 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

Declaration

Declaration: Comment: Declaration of Taylor L. Emerson In Support of Motion to File Under Seal

Motion: Seal

Motion Seal: Comment: Administrative Motion to File Under Seal

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

Civil Case Cover Sheet: Comment: COMPLEX

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

Stipulation and Order

Stipulation to Continue CMC: Comment: Stipulation re Continuance of June 21, 2019 CMC

Amended Complaint Filed - No Fee

First Amended Complaint: Comment: First Amended Complaint

Order

Order Granting Plaintiff Leave to File First Amended Complaint: Comment: Order Granting Plaintiff Leave to File First Amended Complaint - signed/TEK

Minute Order

Minutes Non-Criminal:

Statement: Case Management Conference

Joint CMC Statement: Comment: JOINT Case Management Statement

Order: Proposed

Proposed Order: Comment: Proposed Order re Granting Plaintiff Leave to File First Amended Complaint

Stipulation and Order

Stipulation Granting Plaintiff Leave to File First Amended Complaint: Comment: Stipulation Granting Plaitniff Leave to File First Amended Complaint

Notice

Notice CMC 6-21-19 at 10am in D5: Comment: CMC set for 6/21/19 at 10am in D5

Notice: Appearance

Swissport Fueling Inc. Notice of Appearance:

9 More Documents Available

 

Docket Entries

  • 10/18/2019
  • Conference: Case Management - Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Comment: (2nd CMC) Proposed Wage and Hour Class Action. Discovery and responsive pleading deadline stayed, as of 10/16/18, when the case was deemed complex. First Amended Complaint filed 6/4/19; Answer thereto filed 7/8/19. Mediation set for 9/30/19 with Jeffrey Ross.

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  • 07/08/2019
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  • Answer/Response (No Fee) - Answer to First Amended Complaint: Comment: Answer to Amended Complaint

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  • 06/06/2019
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  • Order - Order Continuing CMC from 6-21-19 to 10-18-19: Comment: Orer Continuing CMC from 6/21/19 to 10/18/19 - signed/TEK

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  • 06/06/2019
  • View Court Documents
  • Notice - Notice CMC reset from 6-21-19 to 10-18-19: Comment: CMC reset from 6/21/19 to 10/18/19

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  • 06/05/2019
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  • Stipulation and Order - Stipulation to Continue CMC: Comment: Stipulation re Continuance of June 21, 2019 CMC

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  • 06/04/2019
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  • Amended Complaint Filed - No Fee - First Amended Complaint: Comment: First Amended Complaint

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  • 06/04/2019
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  • Order - Order Granting Plaintiff Leave to File First Amended Complaint: Comment: Order Granting Plaintiff Leave to File First Amended Complaint - signed/TEK

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  • 05/30/2019
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  • Stipulation and Order - Stipulation Granting Plaintiff Leave to File First Amended Complaint: Comment: Stipulation Granting Plaitniff Leave to File First Amended Complaint

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  • 01/29/2019
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  • Notice - Notice CMC 6-21-19 at 10am in D5: Comment: CMC set for 6/21/19 at 10am in D5

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  • 01/25/2019
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  • Conference: Case Management - Minutes Non-Criminal: Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Result: Held; Comment: (1st CMC)

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3 More Docket Entries
  • 12/18/2018
  • View Court Documents
  • Proof of Service: Summons DLR (Civil) - Proof of Service of Summons Complaint: Comment: Proof of Service of Summons/Complaint

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  • 10/16/2018
  • View Court Documents
  • Order - Order Granting Plaintiffs' Administrative Motion to File Under Seal Selected Evidence: Comment: Order Granting Plaintiffs' Administrative Motion to File Under Seal Selected Evidence in Consent to Joint Forms - signed/TEK

    Read MoreRead Less
  • 10/16/2018
  • View Court Documents
  • Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

    Read MoreRead Less
  • 10/16/2018
  • View Court Documents
  • Civil Lawsuit Notice - Civil Lawsuit Notice: Comment: 1st CMC set for 1/25/19 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

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  • 10/12/2018
  • Filed Under Seal - Comment: Declaration of Taylor L. Emerson In Support of Motion to File Under Seal *** SEALING ORDER ISSUED 10/16/18

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  • 10/12/2018
  • View Court Documents
  • Declaration - Declaration: Comment: REDACTED Declaration of Taylor L. Emerson In Support of Motion to File Under Seal

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  • 10/12/2018
  • View Court Documents
  • Motion: Seal - Motion Seal: Comment: Administrative Motion to File Under Seal

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  • 10/12/2018
  • View Court Documents
  • Summons: Issued/Filed - Summons Issued Filed:

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  • 10/12/2018
  • View Court Documents
  • Civil Case Cover Sheet - Civil Case Cover Sheet: Comment: COMPLEX

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  • 10/12/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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Complaint Information

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BRADLEY/GROMBACHER, LLP Marcus J. Bradley, Esq. (SBN 174156) Kiley L. Grombacher, Esq. (SBN 245960) Taylor L. Emerson, Esq. (SBN 225303) 2815 Townsgate Road, Suite 130 Westlake Village, California 91361 Telephone: (805)270-7100

Facsimile: (805) 270-7589 mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com temerson@bradleygrombacher.com

E-FILED

10/12/2018 2:38 PM Clerk of Court

Superior Court of CA, County of Santa Clara

18CV336218

Reviewed By: R. Walker

Attorneys for Plaintiffs, JAMEISHA BRADFORD and JORDEN FULLER

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

JAMEISHA BRADFORD, an individual and JORDEN FULLER, an individual on their

own behalf and on behalf of all others similarly situated,

Plaintiffs,

V.

SWISSPORT FUELING, INC., a Delaware

corporation; and DOES 1 through 50, inclusive,

Defendants.

-1-

1.

caseNo. 18CV336218

CLASS AND COLLECTIVE ACTION

COMPLAINT FOR:

Meal and Rest Break Violations (Labor Code §§ 200, 226.7, 512, and 12 CCR § 11040);

Failure to Pay Overtime Compensation (Welfare Commission Orders and Labor Code §§ 510, 1194);

Failure to Provide Proper Wage Statement (California Labor Code § 226(a));

Unfair Business Practices (Business and Professions Code § 17200);

Failure to Pay Wages at Time of Termination (California Labor Code §§ 201-203); and

Failure to Pay All Wages and Overtim Compensation in Violation of the Fair Labor Standards Act (“FLSA”)

DEMAND FOR JURY TRIAL

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All allegations in this Class Action and Collective Action Complaint ("Complaint™) are based upon information and belief, except for those allegations which pertain to the plaintiffs named herein and their counsel. Plaintiffs’ information and belief is based upon, inter alia, the investigation conducted to date by plaintiffs and their counsel. Each allegation in this Complaint either has evidentiary support or is likely to have evidentiary support after a reasonable opportunity for further investigation and discovery. Plaintiffs JAMEISHA BRADFORD (“Bradford”) and JORDEN FULLER (“Fuller”) (collectively, “Plaintiffs”), on behalf of

themselves and all others similarly situated, alleges as follows:

INTRODUCTION

1. This matter is brought as a class action pursuant to California Code of Civil

Procedure § 382, on behalf of Plaintiffs and the members of the plaintiff class, which is defined more specifically below, but which is comprised, generally, of all former and current non-exempt employees of Defendant SWISSPORT FUELING, INC., a Delaware corporation and/or its subsidiaries (“Swissport Fueling”) and DOES 1 through 50, inclusive (collectively, “Defendants™).

2. “Class Period” is defined as the time from October 12, 2014 through the date that judgment is entered, based upon information and belief that the violations of the California Labor Code, as described more fully hereinafter, began long before October 12, 2014 and are continuing. Plaintiffs herein reserves the right to amend this Complaint to reflect a different Class Period as discovery in this matter proceeds.

3. “FLSA Class Period” is defined as the time from October 12, 2015 through the date that judgment is entered, based upon information and belief that the violations of the FLSA, as described more fully hereinafter, began long before October 12, 2015 and are continuing. Plaintiff herein reserves the right to amend this Complaint to reflect a different FLSA Class Period as discovery in this matter proceeds.

4. Plaintiffs seek relief on behalf of themselves and the members of the plaintiff class as a result of employment policies, practices and procedures more specifically described below,

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Califormia Department of Industrial Relations, Industrial Welfare Commission, and Division of Labor Standards, and which have resulted in the failure of Defendants to pay Plaintiff and members of the plaintiff class all wages due to them. Said employment policies, practices and procedures are generally described as follows: a. Defendants failed to provide Plaintiffs and members of the plaintiff class with timely meal and rest breaks (California Labor Code §§ 200, 226.7, 512, 12 CCR § 11040, and 29 U.S.C. §201, et. seq.); b. Defendants routinely failed to pay Plaintiffs and members of the plaintiff class correct overtime compensation (Welfare Commission Orders and California Labor Code §§ 510, 1194); ¢. Defendants failed to pay Plaintiffs and members of the plaintiff class all final wages in a timely fashion (California Labor Code §§201-203); and, d. Defendants failed to provide Plaintiffs and members of the plaintiff class with proper wage statements (California Labor Code § 226(a)).

5. Plaintiffs also seeks relief for themselves and the FLSA Class under the FLSA to remedy Defendants' actions of failure to pay Plaintiffs and the members of the FLSA Class all overtime wages due to them.

6. The policies, practices and customs of Defendants described above and below have resulted in unjust enrichment of Defendants and an unfair business advantage over businesses that routinely adhere to the structures of the California Labor Code, California Business and Professions Code, and Fair Labor Standards Act.

JURISDICTION AND VENUE

7. This Court has jurisdiction over this matter pursuant to the provisions of the California Labor Code, as well as California Business & Professions Code § 17200.

8. Venue 1s proper in Santa Clara County because the acts which give rise to this litigation occurred in this county and Defendant Swissport Fueling, Inc. does business in Santa Clara County.

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THE PARTIES

9. Bradford is over the age of eighteen and a resident of Qakland, California. Plaintiff Bradford alleges that she was employed by Defendants as a “Fueling Agent” in the San Francisco Airport from approximately September 2016 to October 14, 2017. Bradford was a full-time non- exempt employee who worked overtime on a routine basis. Plaintiff Bradford’s written consent to join this action as to Cause of Action One pursuant to 29 U.S.C. § 216(b) is attached hereto as Exhibit “A” (with private information redacted).

10. Fuller is over the age of eighteen and a resident of Salinas, California. Fuller alleges that he was employed by Defendants as a “Fueling Agent” in the San Jose Airport from approximately September 2017 to April 2018. Fuller was a full-time non-exempt employee who worked overtime on a routine basis. Plaintiff Fuller’s written consent to join this action as to Cause of Action One pursuant to 29 U.S.C. § 216(b) is attached hereto as Exhibit “B” (with private information redacted).

11. According to http://www.Swissport.com, Swissport USA is the largest provider of ground and cargo handling services in the aviation industry. Swissport provides services on behalf of approximately 835 client-companies and handles around 230 million passengers and 4.1 million flights (movements) per year. Swissport operates around 133 warehouses and moves approximately 4.3 million tons of cargo. Swissport has a workforce of around 62,000 personnel and is active in more than 280 stations in 48 countries across five continents. Swissport is divided into six (6) sections, including Ground Handling, Cargo, Fueling, Executive Aviation, Security and Maintenance.

12. According to Swissport’s website http://www.swissport.com/products- services/products-services/fuelling-services/ (Searched on October 8, 2018), “Fuelling” include the following activities: “into-plane fueling services airlines, airports and fuel supplies; and full service fueling needs including both on and off airport fuel storage and distribution systems. Services include: “Into plane fueling; Maintenance and operations (M&O) of fuel systems: Fuelling of all types of aircraft with fixed hydrant cart, hydrant trucks and tanker truck; GSE Fuel Ln 2

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Fuel Facility Construction Oversight, Fuel Facility Commissioning and start-up: Technical Audits and inspections; Cathodic Protection Surveys; Pipeline Management; Jet Fuel Certification; Fuel Consortium Financial Management; Deicing Services; and, Environmental Inspection and Monitoring Services.”

13. The members of the proposed class are likewise current and former employees of Swissport Fueling., employed by Defendants within.California during the Class Period as non- exempt employees.

14. Plaintiffs are ignorant of the true names, capacities, relationships and extent of participation in the conduct herein alleged of the Defendants sued herein as DOES 1 through 50, inclusive, but on information and belief, alleges that said Defendants are in some manner legally responsible for the unlawful actions, policies, and practices alleged herein, and therefore sues such Defendants by such fictitious names. Plaintiffs are informed and believes, and thereon alleges, that each Defendant named herein was the agent of the other, and the agent of all Detendants. Plaintiffs are further informed and believes, and thereon alleges, that each Defendant was acting within the course and scope of said agency at all relevant times herein, for the benefit of themselves, each other, and the other Defendants, and that each Defendant’s actions as alleged herein was authorized and ratified by the other Defendants.

FACTUAL ALLEGATIONS

15. Plaintiffs incorporate all preceding paragraphs as though fully set forth herein. 16. Plaintiffs and the members of the plaintiff class were and are classified by

Defendants as non-exempt employees, pursuant to the provisions of the California Labor Code

and the orders and standards promulgated by the California Department of Industrial Relations, Industrial Welfare Commission, and Division of Labor Standards. As non-exempt employees, Plaintiff and members of the plaintiff class are entitled to certain benefits, including mandated meal and rest breaks. In addition, said statutory provisions, wage orders, regulations and standards obligate the employer to maintain accurate records of the hours worked by employees. Defendants’ Failure to Provide Meal and Rest Breaks

17. Plantiffs allege that Defendants routinely understaffed the shifts worked by28

Plaintiffs and the members of the plaintiff classes making it difficult to take meal and rest breaks at the times designated by the California Labor Code, which are set forth below. Plaintiffs and the members of the plaintiff class were unable to stop to take meal and rest breaks or else it would cause delays with the flight schedules. The lack of sufficient employees to deal with the volume of airport fueling needs was a constant issue that Defendants have not resolved. Plaintiffs allege that if they and other members of the plaintiff class attempted to take meal breaks then they would be warned that airport fueling needs takes priority over everything else.

18. Plaintiffs are further informed and believe, and based thereon allege, that as a matter of policy and/or practice, Defendants routinely failed to provide Plaintiffs and the members of the plaintiff class, with meal and rest periods during which they were relieved of all duties by requiring them to remain on duty.

19. At all times, relevant hereto, California Labor Code § 226.7 and IWC Wage Order, number 9-2001, section 12, required employers to authorize, permit, and provide a ten (10) minute paid rest for each four (4) hours of work, during which employees are relieved of all duties.

20. At all times, relevant hereto, California Labor Code § 226.7(b) and IWC Wage Order, number 9-2001, section 12 required employers to pay one hour of additional pay at the regular rate of compensation for each employee and each workday that a proper rest period is not provided.

21. Plaintiffs are further informed and believe, and based thereon allege, that Defendants failed to effectively communicate the California rest period requirements to Plaintiff and the members of the plaintiff class. Plaintiffs are further informed and believe, and based thereon allege that throughout the relevant time period Defendants failed to provide rest periods.

22. Throughout the Class Period, Plaintiffs and the members of the plaintiff class were routinely denied the rest breaks they were entitled to under California law.

23. Specifically, throughout the Class Period, Defendants regularly:

a. Failed to provide paid rest periods of ten (10) minutes during which Plaintiffs and the members of the plaintiff class were relieved of all duties28

middle of the shift;

b. Failed to pay Plaintiffs and the members of the plaintiff class one (1) hour of pay at their regular rate of compensation for each workday that a rest period was not permitted.

¢. Failed to provide Plaintiffs and the members of the plaintiff class with a first meal period of not less than thirty (30) minutes during which they are relieved of all duties before working more than five (5) hours;

d. Failed to provide Plaintiffs and the members of the plaintiff class with a second meal period of not less than thirty (30) minutes during which they are relieved of all duties before working more than ten (10) hours per day;

e. Failed to pay Plaintiffs and the members of the plaintiff class one hour of pay at their regular rate of compensation for each workday that a meal period was not provided; and

f. Failed to accurately record all meal periods.

Defendants’ Failure to Pay Overtime Compensation

24. Plantiffs allege that Defendants routinely understaffed the shifts worked by Plaintiffs and the members of the Plaintiff classes making it impossible to complete their job duties within an eight (8) hour shift. Plaintiffs allege that given the lack of employees combined with the heavy airport traffic and significant time sensitive job duties, it was impossible for them to leavedesignated shift or else the airline fueling services would be impacted causing delays in the flights. The lack of sufficient staffing to perform job duties was a constant issue that Defendants still have not resolved. Indeed, Plaintiffs and the members of the plaintiff class were reprimanded for not being able to complete job duties in the scheduled time period, but Defendants failed to provide sufficient staffing to perform all the job duties required. Given the nature of the job duties and the number of people not completing them would affect, Plaintiffs and the other members of the plaintiff class would routinely stay hours after the scheduled shift ended to ensure that all job duties were completed in order to not impact airport activities. Despite

voicing these concerns to Defendants, Defendants have not taken any action to correct the N kA W N

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practices.

25. Plaintiffs allege that they and the members of the plaintiff class were not paid for overtime on a routine basis.

26. Califorma Labor Code § 1194 provides that an employee receiving less than the legal overtime compensation 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.

27. California Labor Code § 510(a) states: “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.” California Labor Code § 510(a) further states: “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.” California Labor Code § 510(a) further states: “[A]ny 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.”

28. Throughout the Class Period, Wage Order No. 9-2004, Section (3)(A)(1)(a-c)

provided for payment of overtime wages equal to one and one-half (1 1/2) times an employee’s

regular rate of pay for all hours worked over eight (8) hours per day and/or forty (40) hours in a workweek, and/or for payment of overtime wages equal to double the employee’s regular rate of pay for all hours worked in excess of twelve (12) hours in any workday and/or for all hours worked in excess of eight (8) hours on the seventh (7th) day of work in any one workweek.

29. Defendants classified Plaintiffs and plaintiff class members as non-exempt, therefore they were entitled to overtime compensation for all hours worked in excess of the hours and time specified in the Wage Order, statutes and regulations identified herein.

30. As a matter of policy and/or practice, Defendants routinely suffered or permitted Plaintiffs and the members of the plaintiff class members to work portions of the day during which they were subject to Defendants’ control, and failed to compensate them. Accordingly, o

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plaintiff class, and thus failed to pay overtime wages for the actual amount of overtime hours worked. Defendants’ Failure to Provide Accurate Wage Statements

31. As aresult of the meal and rest break, and overtime violations, described above, Plaintifts and the members of the Plaintiff Class were, and are, routinely provided wage statements which do not truly and accurately reflect the number of hours worked by them, or the wages due to them. Defendants’ Failure to Pay All Wages Due at Termination of Employment

32. At all times, relevant hereto, California Labor Code § 201 required an employer that discharges an employee to pay compensation due and owing to said employee immediately upon discharge. California Labor Code § 202 requires an employer to pay an employee who quits any compensation due and owing to said employee within seventy-two (72) hours of an employee’s resignation. California Labor Code § 203 provides that if an employer willfully fails to pay compensation promptly upon discharge or resignation, as required under Sections 201 and 202, then the employer is liable for waiting time penalties in the form of continued compensation for up to thirty (30) work days.

33. Defendants willfully and knowingly failed to pay Plaintiffs and the members of the plaintiff class, upon termination of employment, all accrued compensation. Facts Regarding Willfulness

34. Plaintiffs are informed and believe and based thereon allege that Defendants are and was advised by skilled lawyers, other professionals, employees with human resources background and advisors with knowledge of the requirements of California wage and hour laws.

35. Plamtiffs are informed and believe and based thereon allege that at all relevant times, Defendants knew or should have known, that the plaintiff class members, including Plaintiff, were entitled to receive duty-free meal periods within the first five (5) hours of any shift of six (6) or more hours worked, and that any failure to do so requires Defendants to pay Plaintiffs and the members of the plaintiff class one (1) hour of wages per day for untimely, missed, or on-

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36. Plaintiffs are further informed and believe, and based thereon allege that at all relevant times, Defendants knew or should have known, that the plaintiff class members, including Plaintiffs, were and are entitled to one (1) ten (10) minute rest break for each shift of four (4) hours or more, and that any failure to allow said breaks requires Defendants to pay the plaintiff class members, including Plaintiffs, one (1) hour of wages per day for missed or on-duty rest breaks.

37. Plaintifts are further informed and believe, and based thereon allege that at all relevant times, Defendants knew or should have known, that the plaintiff class members, including Plaintiffs, were and are entitled to overtime wages when working in excess of eight (8) hours a day.

38. Plantiffs are further informed and believe, and based thereon allege that at all relevant times, Defendants knew or should have known, that the plaintiff class members, including Plaintiffs, were and are entitled to meal and rest breaks.

Plaintiffs’ Exhaustion of Administrative Remedies

39. Plaintiffs are currently complying with the procedures for bringing suit specified in California Labor Code § 2699.3. By letter dated October 12, 2018, required notice to the Labor and Workforce Development Agency (“LWDA™) and Defendants of the specific provisions of the California Labor Code alleged to have been violated, including the facts and theories to support the alleged violations.

40. This Complaint will be amended when more than sixty-five (65) days have passed since the date the notice was mailed to Defendants and the LWDA, if the LWDA chooses not to investigate the allegations herein.

CLASS ACTION ALLEGATIONS

41. Plaintiffs incorporate all preceding paragraphs as though fully set forth herein.

42. Plaintiffs bring this action on behalf of themselves and all others similarly situated as a class action, pursuant to California Code of Civil Procedure §382. The classes which Plaintiffs seek to represent are composed of, and defined as follows: ~N SN e W

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Plaintiff Class:

All employees who were or are employed by Defendant during the Class Period in California as “non-exempt employees.” As used in this class definition, the term "non-exempt employee" refers to those who Defendant has classified as non-exempt from the overtime wage provisions of the California Labor Code.

Terminated Sub-Class:

All members of the Plaintiff Class whose employment ended during the Class Period.

(collectively “Plaintiff class™ or “Class Members™)

43. The Class Period is the period from October 12, 2014, through and including the date judgment is rendered in this matter.

44. The class i1s so numerous that the individual joinder of all members is impracticable. While the exact number and identification of class members are unknown to Plaintiff at this time and can only be ascertained through appropriate discovery directed to Defendant, Plaintiffs are informed and believes that the class includes potentially hundreds of members.

45. Common questions of law and fact exist as to all members of the class which predominate over any questions affecting only individual members of the class. These common legal and factual questions, which do not vary from class member to class member, and which may be determined without reference to the individual circumstances of any class member, include, but are not limited to, the following:

a. Whether Plaintiffs and the members of the plaintiff class are subject to and entitled to the benefits of California wage and hour statutes;

b. Whether Defendants failed to pay all wages employees had earned;

©. Whether Defendants maintained accurate records of the hours worked by employees;27

46.

to Plaintiffs and the members of the plaintiff class;

Whether Defendants failed to maintain accurate records of work performed by members of the Class in violation of California Labor Code §1174;

Whether Defendants failed to pay Plaintiffs and the members of the plaintiff class

all final wages in a timely fashion;

. Whether Defendants routinely failed to pay Plaintiffs and the members of the

plaintiff class correct overtime compensation;

. Whether Defendants failed to pay Plaintiffs and the members of the plaintiff class

all final wages in a timely fashion; Whether Defendants failed to provide Plaintiffs and the members of the plaintiff class with proper wage statements; Whether Defendants unlawfully and/or willfully deprived Plaintiffs and the members of the plaintiff class of meal and rest breaks and pay for missed breaks

pursuant to California Labor Code §§ 200, 226.7, 512, and 12 CCR § 11040;

. Whether Defendants unlawfully and/or willfully failed to promptly pay

compensation owing to Plaintiffs and members of the Terminated Sub Class upon termination of their employment, in violation of California Labor Code §§ 201- 203;

Whether Defendants unlawfully and/or willfully failed to provide Plaintiffs and the members of the Plaintiff Class with true and proper wage statements upon

payment of wages, in violation of California Labor Code §226;

. Whether Plaintiffs and the members of the Plaintiff Class sustained damages, and

if so, the proper measure of such damages, as well as interest, penalties, costs,

attorneys’ fees, and equitable relief; and

. Whether Defendants’ conduct as alleged herein violates the Unfair Business

Practices Act of California, Bus. & Prof. Code § 17200, et seq.

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from Defendant’s common policies, practices, procedures, protocols, routines, and rules which were applied to other class members as well as Plaintiffs. Plaintiffs seek recovery for the same type of losses, injuries, and damages as were suffered by other members of the plaintiff class.

47. Plaintiffs are adequate representatives of the proposed classes because they are both members of the class, and their interests do not conflict with the interests of the members she seeks to represent. Plaintiffs have retained competent counsel, experienced in the prosecution of complex class actions, and together Plaintiffs and their counsel intends to prosecute this action vigorously for the benefit of the classes. The interests of the Class Members will fairly and adequately be protected by Plaintiffs and their attorneys.

48. A class action is superior to other available methods for the fair and efficient adjudication of this litigation since individual litigation of the claims of all Class Members is impracticable. It would be unduly burdensome to the courts if these matters were to proceed on an individual basis, because this would potentially result in hundreds of individuals, repetitive lawsuits. Further, individual litigation presents the potential for inconsistent or contradictory judgments, and the prospect of a “race to the courthouse,” and an inequitable allocation of recovery among those with equally meritorious claims. By contrast, the class action device presents far fewer management difficulties, and provides the benefit of a single adjudication, economics of scale, and comprehensive supervision by a single court.

49. The various claims asserted in this action are additionally or alternatively certifiable under the provisions of the California Code of Civil Procedure § 382 because:

a. The prosecution of separate actions by hundreds of individual class members would create a risk or varying adjudications with respect to individual class members, thus establishing incompatible standards of conduct for Defendants, and

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impede the ability of such non-party class members to protect their

interests.

COLLECTIVE ACTION ALLEGATIONS

50. Plaintiffs hereby incorporate each and every allegation contained above and realleges said allegations as if fully set forth herein.

51. Plaintiffs further bring this suit as a Collective Action under the Fair Labor and Standards Act, 29 U.S.C. § 201, et seq., (“FLSA”) on behalf of the “FLSA Class” defined as:

FLSA Class:

All persons who were, are, or will be employed by Defendants as “non-exempt employees™ in the United States within the applicable limitations period, which is three years preceding the filing of the original Complaint herein plus such additional time as may be provided pursuant to equitable tolling.

52. Plaintiffs allege that during the FLSA Class Period, they are and

were:

(A.) individuals who resided in the United States of America; (B.) were employed as “non-exempt” employees for Defendants in the United

States within the three years preceding the filing of the complaint herein;

(C.) worked more than 40 hours in any given week;

(D.) did not receive all overtime compensation for all hours worked over 40 hours in any given week;

(E.) worked regular hours for which they received no pay whatsoever;

(F.) are members of the FLSA Collective Class as defined in the preceding paragraph in this Complaint; and,

(G.) have signed a consent to sue that shall have been filed in this court.

48. All claims involving the FLSA Collective Class have been brought and may properly be maintained as a collective action under 29 U.S.C. § 216, because there is a well- [\

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ascertainable by examination of the employment records that Defendants are required to maintain by law, including but not limited to employee time clock reports and payroll records.

FIRST CAUSE OF ACTION MEAL AND REST BREAK VIOLATIONS

(CALIFORNIA LABOR CODE §§ 200, 226.7, 512, and 12 CCR § 11040) (By Plaintiffs and Members of the Plaintiff class Against All Defendants)

53. Plaintiffs incorporate all preceding paragraphs as though fully set forth herein.

54. California Labor Code § 226.7(a) provides that “No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.”

55. California Labor Code § 512 provides that “An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee 1s no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.”

56. California Labor Code § 512 further provides that “An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”

57. Califorma Labor Code § 516 provides that the Industrial Welfare Commission may adopt or amend working condition orders with respect to meal periods for any workers in California consistent with the health and welfare of those workers.

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agreement shall state that the employee may, in writing, revoke the agreement at any time.”

59. Section (D) of Wage Order No. 9-2004, Section 11 provides that “If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.”

60. California Labor Code § 226.7(a) provides that “No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.”

61. California Labor Code § 516 provides that the Industrial Welfare Commission may adopt or amend working condition orders with respect to rest periods for any workers in California consistent with the health and welfare of those workers.

62. IWC Wage Order, number 9-2004, section 12 required employers to authorize, permit, and provide a ten (10) minute paid rest for each four (4) hours of work, during which employees are relieved of all duties.

63. At all times, relevant hereto, California Labor Code § 226.7(b) and IWC Wage Order, number 9-2004, section 12(B) required employers to pay one hour of additional pay at the regular rate of compensation for each employee and each workday that a proper rest period is not provided.

64. Throughout the Class Period, Plaintiffs and the members of the plaintiff class consistently worked over five (5) hours per work period, and therefore, were entitled to a meal period of not less than thirty (30) minutes prior to exceeding five (5) hours of employment.

65. Throughout the Class Period, Plaintiffs and the members of the plaintiff class sometimes worked over ten (10) hours per work period, and therefore, were entitled to a second meal period of not less than thirty (30) minutes.

66. Throughout the Class Period, Plaintiffs and the members of the plaintiff class did not waive their meal periods, by mutual consent with Defendants or otherwise.28

the applicable Wage Order.

68. Detfendants failed to compensate Plaintiffs and the members of the plaintiff class with premium wages when meal periods were missed, short, or late.

69. Pursuant to Sections 11 and 12 of Wage Order No. 9-2004, and California I.abor Code § 226.7(b) (which requires, in the event that “an employer fails to provide an employee a meal or rest period in accordance with an applicable order of the industrial Welfare Commission, the employer shall the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided”), the members of the Class are entitled to damages in an amount equal to one (1) hour of wages per missed meal period,proven at trial.

70. At all times relevant to this Complaint, each Defendants failed, and has continued to fail, to timely provide Plaintiff and members of the plaintiff class with meal periods.

71. Thus, throughout the Class Period, Defendants regularly:

(a) Failed to provide paid rest periods of ten (10) minutes during whic Plaintiffs and the members of the plaintiff class were relieved of all dutie for each four (4) hours of work; and

(b) Failed to pay Plaintiffs and the members of the plaintiff class one (1) hou of pay at their regular rate of compensation for each workday that a res period was not permitted.

72. As a direct and proximate result of the acts and/or omissions of each Defendants, Plaintiffs and Class Members have been deprived of meal and rest period wages due in amounts to be determined at trial.

73. Pursuant to California Labor Code §§ 226.7, 512, and Wage Order 9-2004, as a result of Defendants’ failure to pay Plaintiff and Class Members for all meal periods and rest periods, Plaintiffs and all Class Members are entitled to recover the unpaid meal and rest period wages, plus interest, fees and costs thereon. $a

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SECOND CAUSE OF ACTION FAILURE TO PAY OVERTIME WAGES

(By Plaintiffs and Members of the Plaintiff class Against All Defendants)

74. Plaintiffs incorporate all preceding paragraphs as though fully set forth herein.

75, Califorma Labor Code § 510(a) states: “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.” California Labor Code § 510(a) further states: “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.” California Labor Code § 510(a) further states: “[A]ny 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.”

76. Defendants have failed and refused to pay to Plaintiffs and each member of the plaintiff class all overtime wages due to them in compliance with California Labor Code including, but not limited to, failing to pay all overtime accrued. Based upon information and belief, Plaintiffs and the other members of the plaintiff class were not routinely paid overtime when they worked in excess of eight (8) hours in a given day.

77. As a direct and proximate result of the acts and/or omissions of each Defendants, Plaintiffs and each member of the plaintiff class has been deprived of overtime wages due in amounts to be determined at trial.

78. The applicable overtime requirements fixed by the commission for Plaintiffs and the plaintiff class, are found in Wage Order 9-2004.

THIRD CAUSE OF ACTION FAILURE TO PROVIDE ACCURATE WAGE STATEMENTS

VIOLATION OF CALIFORNIA LABOR CODE 226(a) (By Plaintiffs and Members of the Plaintiff class Against All Defendants)

80. Plaintiffs incorporate all preceding,paragraphs as though fully set for herein.

81. California Labor Code §226(a) sets forth reporting requirements for employers when they pay wages, as follows:

"Every employer shall . . . at the time of each payment of wages, furnish his or her

employees . . . an itemized statement in writing showing (1) gross wages earned;

(2) total hours worked by the employee . . .”

Section (¢) provides:

"An employee suffering injury as a result of a knowing and intentional failure by

an employer to comply with subdivision (a) shall be entitled to recover the greater

of all actual damages or fifty dollars ($50) for the initial pay period in which a

violation occurs and one hundred dollars ($100) per employee for each violation

in a subsequent pay period, not exceeding an aggregate penalty of four thousand

dollars ($4000), and shall be entitled to an award of costs and reasonable attorneys’

fees."

82. Plaintiffs and the members of the Plaintiff Class were damaged by this failure to provide accurate wage statements because, among other things, Plaintiffs and the members of the Plaintiff Class were unable to determine the proper amount of wages owed to them, and whether they had received full compensation therefore.

83. Based upon information and belief, Plaintiffs and the other members of the plaintiff class were not provided wage statements at any time during their employment with Defendants.

84. Plaintiffs and members of the Plaintiff Class request recovery of California Labor Code §226(e) penalties according to proof, as well as interest, attorneys’ fees and costs pursuant N e W o

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interest permitted by statute.

FOURTH CAUSE OF ACTION

UNFAIR COMPETITION: CALIFORNIA BUSINESS AND

PROFESSIONS CODE § 17200, etc.

(By Plaintiffs, the Plaintiff class, and the General Public, Against All Defendants)

85. Plaintiffs re-allege and incorporate all preceding paragraphs as though fully set forth herein.

86. Section 17200 of the California Business and Professions Code prohibits any unlawful, unfair or fraudulent business act or practice.

87. Plaintiffs bring this cause of action in a representative capacity on behalf of the general public and the persons affected by the unlawful and unfair conduct described herein. Plamtiff and members of the plaintiff class have suffered, and continue to suffer, injury in fact and monetary damages because of Defendants’ actions.

88. The actions by Defendants as herein alleged amount to conduct which is unlawful and a violation of law. As such, said conduct amounts to unfair business practices in violation of Business and Professions Code § 17200, ef seq.

89. Defendants’ conduct as herein alleged has damaged Plaintiffs and the members of the Plaintiff Class by denying them wages due and payable, by failing to provide proper meal and rest breaks, by failing to pay overtime. Defendants’ actions are thus substantially injurious to Plaintiff and the members of the Plaintiff Class, causing them injury in fact and loss of money.

90. Because of such conduct, Defendants have unlawfully and unfairly obtained monies due to the Plaintiff and the members of the plaintiff class.

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unfair competition as defined by § 17200, et seq., of the Business and Professions Code, by and among other things, engaging in the acts and practices described above.

93. Defendants’ course of conduct, acts, and practices in violation of the California law as mentioned in each paragraph above constitutes a separate and independent violation of § 17200, etc., of the Business and Professions Code.

94. The harm to Plamtiffs and the members of the plaintiff class of being wrongfully denied lawfully earned and unpaid wages outweighs the utility, if any, of Defendants’ policies and practices and, therefore, Defendants’ actions described herein constitute an unfair business practice or act within the meaning of Business and Professions Code § 17200.

95. Defendants’ conduct described herein threatens an incipient violation of California’s wage and hour laws, and/or violates the policy or spirit of such laws, or otherwise significantly threatens or harms competition.

96. Defendants’ course of conduct described herein further violates Business and Professions Code § 17200 in that it is fraudulent, improper, and unfair.

97. The unlawful, unfair, and fraudulent business practices and acts of Defendants as described herein-above have injured Plaintiffs and members of the plaintiff class in that they were wrongfully denied the timely and full payment of wages due to them.

FIFTH CAUSE OF ACTION FAILURE TO PAY WAGES AT TIME OF

TERMINATION (California Labor Code §§ 201-203) (By Plaintiffs and Members of the Terminated Sub-Class Against All Defendants)

98. Plaintiffs re-allege and incorporate all preceding paragraphs as though fully set forth herein.

99. At all times, relevant herein, Defendants were required to pay its employees all wages owed 1n a timely fashion duringtheir employment, pursuant to California Labor Code §§ 201-203.

100. As a pattern and practice, Defendants regularly failed to pay Plaintiffs and the wn Lo

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201-203, and accordingly owe waiting time penalties pursuant to California Labor Code § 203.

101. The conduct of Defendants and their agents and managerial employees as described herein was willful, and in violation of the rights of Plaintiffs and the individual members of the Terminated Sub Class.

102. Plaintiffs are informed and believe, and based thereon alleges, that Defendants’ willful failure to pay wages due and owing them upon separation from employment results in a continued payment of wages up to thirty (30) days from the time the wages were due. Therefore, Plaintiffs and class members who have separated from employment are entitled to compensation pursuant to California Labor Code § 203.

SIXTH CAUSE OF ACTION FAILURE TO PAY ALL WAGES AND OVERTIME COMPENSATION IN VIOLATION OF THE FAIR LABOR STANDARDS ACT

(Against Defendants on behalf of Plaintiffs and Proposed Members of the Plaintiff Class)

103. Plaintiffs re-allege and incorporate all preceding paragraphs as though fully set forth herein.

104. The Fair Labor Standards Act, 29 U.S.C. §201, et. seq., states that an employee must be compensated for all hours worked, including straight time compensation and overtime compensation. (29 C.F.R. §778.223 and 29 C.F.R. §778.315.) This Court has concurrent jurisdiction over claims involving the Fair labor Standards Act pursuant to 29 U.S.C. §216.

105. Plaintiffs also bring this lawsuit as a collective action under the Fair Standards Labor Act, 29 U.S.C. §201, et. seq. (the “FLSA”), on behalf of all persons who were, are, or will be employed by Defendants in a non-exempt hourly position during the period commencing three years prior to the filing of this Complaint to and through a date of judgment, who performed work in excess of forty (40) hours in one week and did not receive all compensation as required by the FLSA for the hours worked. To the extent equitable, tolling operates to toll claims by the against the collective employees against the Defendants, the collective statute of limitations should be

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106. Questions of law and fact common to collective employees as a whole include, but are not limited to the following:

a. Whether Defendants’ policies and practices failed to accurately record all hours worked by Plaintiffs and other collective employees;

b. Whether Defendants’ policies and practices were to write down the time worked by Plaintiffs and collective employees;

C. Whether Defendants failed to adequately compensate collective employees for all hours worked as required by the FLSA, including the time worked through their meal and rest periods;

d. Whether Defendants failed to include all remuneration in calculating the appropriate rates overtime and straight time;

& Whether Defendants should be should be enjoined from continuing the practices which violate the FLSA; and

f. Whether Defendants are liable to the collective employees.

107. The Fifth Cause of Action for the violations of the FLSA may be brought and maintained as an “opt-in” collection action pursuant to Section 16(b) of FLSA, 29 U.S.C. 216(b), for all claims asserted by the representative Plaintiffs because the claims of Plaintiffs are similar to the claims of collective employees.

108. Plaintiffs and collective employees are similarly situated, have substantially similar job requirements and pay provisions, and are subject Defendants’ common and uniform policy and practice of failing to pay for all actual time worked and wages earned, failed to accurately record all hours worked by these employees in violation of the FLSA and the Regulations implementing the Act as enacted by the Secretary of Labor, and for failing to include all remuneration in calculating overtime rates and straight time rates of employees.

109. Defendants are engaged in communication, business, and transmission throughout the United States and are, therefore, engaged in commerce within the meaning of 29 U.S.C. §203(b). | v A W N

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violation of the FLSA. The conduct by Defendants which violated the FL.SA was willful.

111. Plantiffs and collective employees regularly worked in excess of forty (40) hours in a workweek. Pursuant to the Fair Labor Standards Act, 29 U.S.C. §201, et. seq., Plaintiffs and the collective employees are entitled to compensation for all hours actually worked, and are also entitled to wages at a rate not less than one and one-half times their regular rate of pay for all hours worked in excess of forty (40) hours in any workweek.

112. Plaintiffs and collective employees were all paid to Defendants on an hourly basis for the hours worked up to forty (40) in a workweek, but Plaintiffs and collective employees worked more than forty (40) hours per workweek, and were not paid compensation for all hours worked, including overtime hours. Defendants also failed to pay Plaintiffs, and collective employees, compensation for the hours they worked performing duties primarily for the benefit of the employer during meal and rest periods.

113. For the purposes of the Fair Labor Standards Act, the employment practices of Defendants were and are uniform throughout California and the United States in all respects material to the claims asserted in this Complaint.

114. Defendants violated the Fair Labor Standards Act by failing to pay hourly employees for all hours worked, including overtime hours, as alleged herein above.

115. Asaresult of Defendants” failure to pay overtime compensation for hours worked, as required by the FLSA, Plaintiffs and collective employees were damaged in an amount to be proved at trial.

116. Plaintiffs, therefore, demands that he and collective employees be paid overtime compensation as required by the FLSA for every hour of overtime in any workweek for which he was not compensated, compensation for meal and rest periods, compensation for miscalculation of overtime and straight time, plus liquidated damages, interest and statutory costs as provided by law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, on behalf of themselves, and on behalf of the members of the

Plamtiff Class, prays for judgment against Defendants as follows: aN

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1. For an order certifying the proposed class;

2. For nominal damages;

3. For equitable relief, in the nature of declaratory relief, restitution of all monies due

to Plaintiffs and members of the plaintiff class, and disgorgement of profits from the unlawful business practices of Defendants, and accounting; 4. For penalties as permitted by the California Labor Code, and the regulations, standards and applicable wage orders promulgated thereunder, specifically including, but not limited to, for penalties permitted by California Labor Code §§ 200-203, 226, 226.3, 226.7, 510, 512(a), 551, 552,558, 1197 and 1198;

5. For interest as permitted by statute, including California Labor Code § 218.6;

6. For costs of suit and expenses incurred herein as permitted by statute, including California Labor Code §§ 226 and 1194;

7. For attorney’s fees as permitted by statute, including California Labor Code §§ 226 and 1194; and

8. For all such other and further relief that the Court may deem just and proper.

DATED: October 12, 2018 BRADLEY/GROMBACHER, LLP

By: &—_—__“

Marcus J. Bradley, Esq. Kiley L. Grombacher, Esq. Taylor L. Emerson, Esq. Attorneys for Plaintiff

JURY DEMAND

Plaintiff demands a trial by jury on all issues so triable as a matter of right.

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