Mahe v. The Hertz Corporation

Complaint Information

AYSE KUZUCUOGLU (SBN 251114) AK EMPLOYMENT LAW OFFICE

9 Pier, The Embarcadero, Suite 100 San Francisco, CA 94111

Tel: (415) 638-9471

E-mail: ayse@aklaw.co

Attorney for Plaintiff

E-FILED

10/4/2018 4:35 PM Clerk of Court

Superior Court of CA, County of Santa Clara

18CV 335826

Reviewed By: R. Walker

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

ANAFOLIAKI MAHE, individually, and on behalf of other similarly situated persons,

Plaintiff,

VS.

THE HERTZ CORPORATION, a Delaware corporation; and DOES 1 through 100, inclusive,

Defendants.

N’ N’ N’ N’ N N - - - N’ 18CV335826 CLASS ACTION COMPLAINT FOR DAMAGES

Case No.:

(1) Failure to Have Commission Plans Compliant with California Labor Code § 2751;

(2) Failure to Pay Commission Wages In Breach of Contract and California Labor Code §§ 221, 223;

(3) Unpaid Overtime in Violation of California Labor Code §§ 510 and 1198;

(4) Non-Compliant Wage Statements in Violation of California Labor Code § 226(a);

(5) Wages Not Timely Paid During Employment Violation of California Labor Code § 204;

(6) Final Wages Not Timely Paid in Violation of California Labor Code §§ 201 and 202;

(7) Failure To Keep Requisite Payroll Records Violation of California Labor Code§ 1174(d); Plaintiff ANAFOLIAKI MAHE (“Plaintiff”), by and through her attorneys, on behalf of herself and classes of those similarly situated hereby complain against Defendant THE HERTZ CORPORATION (hereinafter referred to as “Defendant” or “HERTZ”), a corporation doing business in

California, as follows:

L.

JURISDICTION AND VENUE

1. This class action 1s brought pursuant to the California Code of Civil Procedure § 382. The monetary damages and restitution sought by Plaintiff exceeds the minimal jurisdiction limits of the Superior Court and will be established according to proof at trial.

2. This case is properly before this Court because the matter involves issues of state law, and Defendant, presently and at all times relevant to this action, has conducted substantial and continuous commercial activities in the County of Santa Clara.

3. This Court has jurisdiction over Defendant because, upon information and belief, Defendant has sufficient minimum contacts in California, or otherwise intentionally avails itself of the California market so as to render the exercise of jurisdiction over it by the California courts consistent with traditional notions of fair play and substantial justice. Plaintiff worked for Defendant in Santa Clara County, California.

4. Venue is proper in this Court because, upon information and belief, Defendant has

agents, and/or transacts business in the State of California, County of Santa Clara.

11.

PARTIES

5. Plaintiff Anafoliaki Mahe is an individual residing in the State of California. Plaintiff worked for Defendant HERTZ from September 13, 2017 through August 24, 2018 as a Customer Service Representative in San Jose, California.

6. Defendant HERTZ, at all times herein mentioned, was and is, upon information and belief, a Delaware corporation, and at all times herein mentioned, an employer that employs individuals times herein mentioned, has maintained multiple places of business within the State of California, including in the County of Santa Clara.

7. At all relevant times, Defendant HERTZ was Plaintiff’s “employer” within the meaning of all applicable California state laws and statutes. Plaintiff alleges that Defendant directly or indirectly controlled or affected the working conditions, wages and working hours of Plaintiff and other class members.

8. At all times herein relevant, Defendant HERTZ and DOES 1 through 100, and each of them, were the agents, partners, joint venturers, joint employers, representatives, servants, employees, successors-in-interest, co-conspirators and assigns, each of the other, and at all times relevant hereto were acting within the course and scope of their authority as such agents, partners, joint venturers, joint employers, representatives, servants, employees, successors, co-conspirators and assigns, and all acts or omissions alleged herein were duly committed with the ratification, knowledge, permission, encouragement, authorization and consent of each defendant designated herein.

9. The true names and capacities, whether corporate, associate, individual or otherwise, of defendants DOES 1 through 100, inclusive, are unknown to Plaintiff who sue said defendants by such fictitious names. Plaintiff is informed and believes, and based on that information and belief alleges, that each of the Defendants designated as a DOE is legally responsible for the events and happenings referred to in this Complaint, and unlawfully caused the injuries and damages to Plaintiff and the other class members as alleged in this Complaint. Plaintiff will seek leave of court to amend this Complaint to show the true names and capacities when the same have been ascertained.

10. Defendant HERTZ and DOES 1 through 100 will hereiafter collectively be referred to

as “Defendants.”

1.

CLASS ACTION ALLEGATIONS

11. Plaintiff brings this action on her own behalf and on behalf of all other members of the general public similarly situated, and, thus, seek class certification under Code of Civil Procedure § 382. All current and former California-based employees of Defendants who were paid commissions and/or incentive compensation, including but not limited to Customer Service Representatives (“CSR”), all Frontline Sales and Service employees, and other sales personnel, at any time during the period of four years preceding the filing of this Complaint to final judgment.

13. Plaintiff reserves the right to establish subclasses as appropriate.

14. In violation of California wage and hour laws, Defendants’ wrongful acts against Plaintif:

and the class include:

a. failure to have commission plans in compliance with California Labor Code § 2751; b. failure to pay commission wages; c. failure to pay all overtime compensation due; d. failure to timely pay wages upon separation from employment; e. failure to timely pay wages upon separation from employment; f. failure to record, maintain, and timely furnish employees with wage statements and payroll records accurately showing their total hours worked; 15. Upon information and belief, the above violations are the result of centralized policies

and practices created and implemented by Defendants.

16. This action may be properly maintained as a class action pursuant to Code of Civil

Procedure § 382 because there is a well-defined community of interest in the litigation and the proposed

class is easily ascertainable.

a.

Numerosity: The potential members of the class as proposed are so numerous that joinder of all of its members is impracticable. The membership of the entire class is unknown to Plaintiff at this time; however, the class is estimated to be greater than one-hundred (100) individuals. The identities of class members are ascertainable through Defendants’ payroll, employment, and other records.

Typicality: Plaintiff has suffered the same violations and similar injuries as other class members arising out of and caused by Defendants’ common course of conduct in violation of law as alleged herein. interests are not antagonistic to the other class members. Plaintiff is represented by counsel who 1s competent and experienced in litigating wage and hour, and other employment class actions. Plaintiff has incurred, and during the pendency of this action will continue to incur, costs and attorneys’ fees, that have been, are, and will be necessarily expended for the prosecution of this action for the substantial benefit of each class member.

Superiority: A class action is superior to other available methods for the fair and efficient adjudication of this litigation because individual joinder of all class members 1s impractical. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of efforts and expense that numerous individual actions engender. Because the losses, injuries, and damages suffered by each of the individual class members are relatively small, the expenses and burden of individual litigation would make it extremely difficult, if not impossible, for the individual class members to simultaneously, efficiently, and without the unnecessary duplication of efforts and expense that redress the wrongs done to them. through actions to which they were not parties. The issues in this class action can be decided by means of common, class-wide proof. In addition, the Court can, and 1s

empowered to, fashion methods to efficiently manage this action as a class action.

17. Common questions of law and fact as to the class members predominate over questions

affecting only individual members. The following common questions of law or fact, among others, exist

as to the members of the class:

a.

b.

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Whether Defendants failed to have signed commission plans;

Whether Defendants’ commission agreements clearly set forth the method by which commissions will be computed and earned;

Whether Defendants failed to provide Plaintiff and class members with a signed copy of the commission agreement;

Whether Defendants had policies and practices of failing to pay their commissioned employees within the State of California for all earned commissions and rest breaks; Whether Defendants’ failure to pay commission wages, without abatement or reduction, in accordance with the California Labor Code, was willful;

Whether Defendants violated the Labor Code and applicable Wage Orders by failing to pay proper overtime compensation earned and due to class members;

Whether Defendants failed to timely pay all wages due to Plaintiff and the other class members during their employment;

Whether Defendants violated Labor Code § 1174 by failing to keep accurate records of class members’ wages, including commissions and overtime;

Whether Defendants failed to provide formerly employed class members with all wages due upon separation in violation of Labor Code §§ 201, 202 and 203; Whether Defendants failed to provide class members with accurate wage statements as required by Labor Code § 226; 1. Whether Defendants violated Business and Professions Code § 17200 by virtue of their violations of the Labor Code;

m. The appropriate amount of damages, restitution, and/or monetary penalties resulting from Defendants’ violation of California law; and

n. Whether Plaintiff and the other class members are entitled to compensatory damages

pursuant to the California Labor Code.

IV.

FACTUAL ALLEGATIONS

18. At all relevant times set forth herein, Defendants employed Plaintiff and other persons as hourly-paid, commissioned sales employees within the State of California. Defendants had and permitted Plaintiff and all other Class members to perform work for the benefit of Defendants. Defendants also exercised control over the wages, hours, and/or working conditions of the Class members, including the Plaintiff.

19. Defendants, jointly and severally, employed Plaintiff as an hourly-paid, non- exempt Customer Service Representative from approximately September 13, 2017 to approximately August 24, 2018 1n San Jose, California.

20. Defendants had the authority to hire and terminate Plaintiff and the other class members; to set work rules and conditions governing Plaintiff’s and the other class members’ employment and to supervise their daily employment activities.

21. Defendants exercised sufficient authority over the terms and conditions of Plaintiff’s and the other class members’ employment for them to be joint employers of Plaintiff and the other class members.

22. Defendants directly hired and paid wages and benefits to Plaintiff and the other class members.

23. Defendants continue to employ commissioned Customer Service Representatives and 24. Plaintiff is informed and believes and thereupon alleges that Defendants have uniformly subjected all class members to unlawful labor practices, as set forth below.

Failure to Have Commission Plans Compliant with California Labor Code § 2751

25. Defendants hired Plaintiff and the other class members as hourly-paid and commissioned sales employees, and failed to compensate them for all commission wages and overtime earned.

26. Defendants failed to provide Plaintiff and the class members a commission plan that was applicable to their employment. Plaintiff and the putative class members did not know how their commissions were calculated and had to ask their managers for copies of Defendants’ existing commission plan.

27. Defendants’ existing commission plan, applicable to Frontline Sales and Service employees and entitled “Incentive Compensation Plan Document” (“Commission Plan”), was not signed by the Company. Defendants also never asked Plaintiff and the class members to sign the Commission Plan.

28. Defendants Commission Plan contained language that was unclear and ambiguous. It also did not set forth the method by which commissions will be computed and earned.

Failure to Pay Commissions

29. Plaintiff 1s informed and believes, and based thereon alleges, that Defendants engaged in a uniform policy and systematic scheme of wage abuse against their commissioned employees. This scheme involved, inter alia, failing to pay them for all commission wages earned and accurate overtime rate in violation of California law.

30. Defendants’ Commission Plan provides the following:

“Commissionable Revenue, for the purposes of incentive calculation, is the revenue for ancillary products sold at the counter plus walk-up time and mileage (T&M). Products included are upgrades, LWD, LIS, P&P, ESP, AAO, PGPS, NVL/NAVIGATOR+, TABLET, SIRIUS, Tolls, PERS, DDW(CAN), WINTER TIRES (CAN) and FPO. Walk-up T&M is included for customers who do not currently hold a reservation.”

However, the term upgrades is not defined, and the Commission Plan does not explain how T&M 1is 31. Defendants’ Commission Plan also provides that a “Customer Satisfaction Modifier” will be included in calculation of employee commissions, but it is unclear how this amount 1s calculated. Specifically, the Commission Plan states, “The score 1s not expresses as a percentage but as an absolute number ranging between -100 and +100. Calculation for instance, if we have 25% Promoters, 55% Passives and 20% Detractors, the NPS will be +5.” This example does not provide sufficient explanation of how the number “+5” was reached and how this number factors into the calculation of Plaintiff’s and the class members’ commission wages.

32. While Plaintiff and class members’ commissions are tied to a commissionable goal, Plaintiff and class members were not informed of what their commissionable goals were.

33. Defendants unlawfully denied Plaintiff and class members their commission pay for “upgrades,” alleging that certain upgrades do not qualify as “Commissionable Revenue” under the Commission Plan. For example, when Plaintiff upgraded a customer’s reservation from a Class I to Class E, meaning she upgraded a customer from a Buick Lacrosse valued at $501.88 to an Infinity G4 valued at $3,538.84, thus earning Defendants an additional $3,036.96, Defendants denied Plaintiff commissions, claiming that this transaction did not qualify as an “upgrade” within the definition of “Commissionable Revenue” under Defendants’ Commission Plain. Since the Commission Plan does not define what qualifies as an “upgrade,” it is unclear what Defendants consider to be an “upgrade.”

34. Plaintiff 1s informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive all commission wages earned in full and that they were not receiving all of their earned commissions.

Failure to Pay Overtime

35. Plaintiff and the other class members worked over eight (8) hours in a day, and/or forty (40) hours in a week during their employment with Defendants.

36. Plaintiff 1s informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive certain wages for 37. Defendants failed to calculate all of Plaintiff’s and the class members’ earned commission wages in the calculation of their overtime wages. 38. Defendants knew or had reason to know that Plaintiff and the other class members were

being denied earned commissions and overtime.

39. Plaintiff and the other class members regularly worked more than eight hours per weekday.

40. Plaintiff and the other class members regularly worked more than forty hours per week.

41. Plaintiff and the other class members regularly were not compensated for their overtime

hours worked at the accurate overtime rate.

Failure to Timely Pay Wages During Employment

42. Plaintiff 1s informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive all wages owed to them during their employment within the time limits prescribed by law. Plaintiff and the other class members did not receive payment of all wages, including commission wages and overtime pay, within any time permissible under California Labor Code § 204.

Failure to Pay Wages Upon Separation of Employment

43, Plaintiff 1s informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive all wages owed to them upon discharge or resignation, including commission wages and overtime, and they did not, in fact, receive all such wages owed to them at the time of their discharge or resignation.

44. Defendants failed to pay Plaintiff and class members their final paycheck in a timely

manner.

Failure to Keep Accurate Time Records And Furnish Accurate Wage Statements and Payroll Records to Class Members

45. Plaintiff 1s informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive complete and practice, they did not receive complete and accurate wage statements from Defendants. The deficiencies included, inter alia, the failure to include the total wages and overtime earned by Plaintiff and the other class members.

46. Plaintiff 1s informed and believes, and based thereon alleges, that Defendants knew or should have known that Defendants had to keep complete and accurate payroll records for Plaintiff and the other class members in accordance with California law, but, in fact, did not keep complete and accurate payroll records.

47. Defendants’ failure to accurately keep and furnish Plaintiff and class members accurate wage statements was willful.

48. Plaintiff 1s informed and believes, and based thereon allege, that Defendants knew or should have known that they had a duty to compensate Plaintiff and the other class members pursuant to California law, and that Defendants had the financial ability to pay such compensation, but willfully, knowingly, and intentionally failed to do so, and falsely represented to Plaintiff and the other class members that they were properly denied wages, all in order to increase Defendants’ profits.

49. California Labor Code § 218 states that nothing in Article 1 of the Labor Code shall limit the right of any wage claimant to “sue directly . . . for any wages or penalty due to him [or her] under

this article.”

FIRST CAUSE OF ACTION

(Failure to Have Commission Plans Compliant With California Labor Code § 2751) (Against HERTZ and DOES 1 through 100)

50. Plamtiff incorporatess by reference the allegations contained in paragraphs 1 through 49, and each and every part thereof with the same force and effect as though fully set forth herein.

51. Pursuant to California Labor Code § 2751, employers must provide commissioned employees with a written agreement detailing how their commissions will be calculated and paid. This must give each such employee a signed copy of the commission agreement and obtain from the employee a signed receipt.

52. Defendants failed to provide Plaintiff and the class members a commission plan that was applicable to their employment. Plaintiff and the putative class members did not know how their commissions were calculated and had to ask their managers for copies of Defendants’ existing commission plan.

53. Defendants’ Commission Plan was not signed by the Company. Defendants also never asked Plaintiff and the class members to sign the Commission Plan.

54, Defendants Commission Plan contained language that was unclear and ambiguous. It also did not set forth the method by which commissions will be computed and earned.

55. Defendants have intentionally and willfully failed to have commission plans compliant with California Labor Code § 2751. As a result of Defendants’ violation of California Labor Code § 2751, Plaintiff and the other class members have suffered injury and damage to their statutorily- protected rights. More specifically, Plaintiff and the other class members have been injured by Defendants’ intentional and willful violation of California Labor Code § 2751 because they were denied both the right to confirm the accuracy of their commission wages and their statutory right to receive and agree to a written commission plan explaining calculation of their commission wages in a clear and

unambiguous manner.

SECOND CAUSE OF ACTION

(Failure to Pay Commissions In Breach of Contract And In Violation of California Labor Code) (Against HERTZ and DOES 1 through 100)

56. Platiff incorporates by reference the allegations contained in paragraphs 1 through 55, and each and every part thereof with the same force and effect as though fully set forth herein.

57. Plaintiff and class members earned commission wages within the meaning of California 58. HERTZ has knowingly, intentionally and willfully failed and refused to pay to Plaintiff and class members the full and complete amount of the commissions they earned. HERTZ has operated under and continues to operate under a common policy and plan of failing and refusing to pay fully ecarned commissions through the operation of its vague and ambiguous Commission Plan that has not been presented to Plaintiff and class members for review and signature.

59. Plaintiff and class members entered into written commission contracts with Defendant. These contracts provided that Defendant would pay commissions based on sales credited to Plaintiff and class members in accordance with the commission rates set forth in their Commission Plan.

60. Plaintiff and Class members have performed all of the duties and obligations required of them by HERTZ that would entitle them to receive commissions. Plaintiff and Class members have met all lawful conditions precedent to the earning of commissions. HERTZ has credited Plaintiff and Class members for sales that are encompassed by Defendants’ Commission Plan.

61. HERTZ managers change commission terms at any time as they wish, pursuant to their interpretation of the vague and ambiguous “Commissionable Revenue” terms in the Commission Plan. These provisions are void and unenforceable exculpatory clauses under California Civil Code § 1668.

62. Furthermore, these contract provisions that allow HERTZ to change commission terms at any time are unlawful, void and unenforceable under California Labor Code §§ 221, 223 and 2751.

63. Labor Code § 221 states: “It shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee.” California’s Industrial Welfare Commission Wage Orders prohibit employers from using earned wages to offset ordinary business costs.

64. HERTZ’s refusal to pay earned commissions, including by clawing back previously paid compensation, constitutes unlawful withholdings or deductions of earned wages in violation of § 221.

65. Labor Code § 223 states: “Where any statute or contract requires an employer to maintain the designated wage scale, it shall be unlawful to secretly pay a lower wage while purporting to pay the 66. HERTZ secretly underpays commission wages while purporting to follow the commission rates designated by contract in violation of § 223.

67. Labor Code § 2751 states, in pertinent part: “Whenever an employer enters into a contract of employment with an employee for services to be rendered within this state and the contemplated method of payment of the employee involves commissions, the contract shall be in writing and shall set forth the method by which the commissions shall be computed and paid.”

68. HERTZ relies on methods for the computation and payment of commissions that are not set forth in the commission contract in violation of § 2751.

69. Individually and collectively, Labor Code §§ 221, 223 and 2751 and Civil Code § 1668 invalidate HERTZ’s 1llegal contract provisions and give rise to Plaintiff and Class members’ claim for unpaid wages under the valid and enforceable terms of their written commission contracts.

70. Pursuant to California Labor Code §§ 200 et seq., Plaintiff and Class members are entitled to recover unpaid commissions, with interest, attorney’s fees, costs, penalties, all in an amount

to be proven at trial.

THIRD CAUSE OF ACTION

(Violation of California Labor Code §§ 510 and 1198) (Against PROTECT and DOES 1 through 100)

71. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 70, and each and every part thereof with the same force and effect as though fully set forth herein.

72. California Labor Code § 1198 and the applicable Industrial Welfare Commission (“IWC”) Wage Order provide that it is unlawful to employ persons without compensating them at a rate of pay either time-and-one-half or two-times that person’s regular rate of pay, depending on the number of hours worked by the person on a daily or weekly basis, including any incentive pay.

73. Specifically, the applicable IWC Wage Order provides that Defendants are and were eight (8) hours in a day or more than forty (4) hours in a workweek, at the rate of time-and-one-half for all hours worked in excess of eight (8) hours in a day or more than forty (40) hours in a workweek.

74. The applicable IWC Wage Order further provides that Defendants are and were required to pay Plaintiff and the other class members overtime compensation at a rate of two times their regular rate of pay for all hours worked in excess of twelve (12) hours in a day.

75. California Labor Code § 510 codifies the right to overtime compensation at one-and-one- half times the regular hourly rate for hours worked in excess of eight (8) hours in a day or forty (40) hours in a week or for the first eight (8) hours worked on the seventh day of work, and no overtime compensation at twice the regular hourly rate for hours worked in excess of twelve (12) hoursexcess of eight (8) hoursseventh day of work.

76. During the relevant time period, Plaintiff and the other class members worked in excess of eight (8) hours in a day, and/or in excess of forty (40) hours in a week.

77. During the relevant time period, Defendants had a policy and practice of not paying Plaintiff and other class members for all overtime hours worked at the rates requires by law. Such failure to pay overtime was intentional and willful, which included failure to properly calculating the overtime rate.

78. Defendants’ failure to pay Plaintiff and the other class members the unpaid balance of overtime compensation, as required by California laws, violates the provisions of California Labor Code §§ 510 and 1198.

79. Pursuant to California Labor Code § 1194, Plaintiff and the other class members are entitled to recover unpaid overtime compensation in an amount to be established at trial, as well as pre-

judgment interest, costs, and attorneys’ fees.

FOURTH CAUSE OF ACTION

(Violation of California Labor Code § 226(a)) (Against HERTZ and DOES 1 through 100)

0. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 79, 81. At all material times set forth herein, California Labor Code § 226(a) provides that every employer shall furnish each of his or her employees an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, (3) the number of piece-rate units carned and any applicable piece rate if the employee 1s paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California.

82. Defendants have intentionally and willfully failed to provide Plaintiff and the other class members with complete and accurate wage statements. The deficiencies include, but are not limited to, failure to include the total gross and net wages and overtime rate earned by Plaintiff and the other class members.

83. Asaresult of Defendants’ violation of California Labor Code § 226(a), Plaintiff and the other class members have suffered injury and damage to their statutorily- protected rights. More specifically, Plaintiff and the other class members have been injured by Defendants’ intentional and willful violation of California Labor Code § 226(a) because they were denied both their legal right to receive, and their protected interest in receiving, accurate and itemized wage statements pursuant to California Labor Code § 226(a).

84. Plaintiff and the other class members are entitled to recover from Defendants the greater of their actual damages caused by Defendants’ failure to comply with California Labor Code § 226(a), 85. Plaintiff and the other class members are also entitled to injunctive relief to ensure

compliance with this section, pursuant to California Labor Code § 226(g).

FIFTH CAUSE OF ACTION

(Violation of California Labor Code § 204) (Against HERTZ and DOES 1 through 100)

86. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 85, and each and every part thereof with the same force and effect as though fully set forth herein.

87. Atall times herein set forth, California Labor Code § 204 provides that all wages earned by any person in any employment between the 1% and 15" days, inclusive, of any calendar month, other than those wages due upon termination of an employee, are due and payable between the 16™ and the 26" day of the month during which the labor was performed.

88. At all times herein set forth, California Labor Code § 204 provides that all wages earned by any person in any employment between the 16th and the last day, inclusive, of any calendar month, other than those wages due upon termination of an employee, are due and payable between the 1st and the 10" day of the following month.

89. Atall times herein set forth, California Labor Code § 204 provides that all wages earned for labor in excess of the normal work period shall be paid no later than the payday for the next regular payroll period.

90. During the relevant time period, Defendants intentionally and willfully failed to pay Plaintiff and the other class members all wages due to them, within any time period permissible under California Labor Code § 204.

91. Plaintiff and the other class members are entitled to recover all remedies available for

violations of California Labor Code § 204.

SIXTH CAUSE OF ACTION

(Violation of California Labor Code §§ 201 and 202) (Against HERTZ and DOES 1 through 100)

92. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 91, 93. At all relevant times herein set forth, California Labor Code §§ 201 and 202 provide that if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately, and if an employee quits his or her employment, his or her wages shall become due and payable not later than seventy-two (72) hours thereafter, unless the employee has given seventy-two (72) hours 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.

94. During the relevant time period, Defendants intentionally and willfully failed to pay the Plaintiff and other class members who are no longer employed by Defendants their wages, earned and unpaid, within seventy-two (72) hours of their leaving Defendants’ employ.

95. Defendants’ failure to pay the Plaintiff and other class members who are no longer employed by Defendants’ their wages, earned and unpaid, within seventy-two (72) hours of their leaving Defendants’ employ, is in violation of California Labor Code §§ 201 and 202.

96. California Labor Code § 203 provides that if an employer willfully fails to pay wages owed, in accordance with § 201 and 202, then 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 is commenced; but the wages shall not continue for more than thirty (30) days.

97. Plaintiff and the other class members are entitled to recover from Defendants the statutory penalty wages for each day they were not paid, up to a thirty (30) day maximum pursuant to

California Labor Code § 203.

SEVENTH CAUSE OF ACTION

(Violation of California Labor Code § 1174(d)) (Against HERTZ and DOES 1 through 100)

98. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 97, and each and every part thereof with the same force and effect as though fully set forth herein.

99. Pursuant to California Labor Code § 1174(d), an employer shall keep, at a central location in the state or at the plants or establishments at which employees are employed, payroll records and any applicable piece rate paid to, employees employed at the respective plants or establishments. These records shall be kept in accordance with rules established for this purpose by the commission, but in any case shall be kept on file for not less than two years.

100. Defendants have intentionally and willfully failed to keep accurate and complete payroll records showing the hours worked daily and the wages paid to Plaintiff and the other class members. As a result of Defendants’ violation of California Labor Code § 1174(d), Plaintiff and the other class members have suffered injury and damage to their statutorily- protected rights. More specifically, Plaintiff and the other class members have been injured by Defendants’ intentional and willful violation of California Labor Code § 1174(d) because they were denied both their statutory right to have accurate

and complete payroll records.

EIGHTH CAUSE OF ACTION

(Violation of California Business & Professions Code §§ 17200, et seq.) (Against HERTZ and DOES 1 through 100)

101. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 100, and each and every part thereof with the same force and effect as though fully set forth herein.

102. Defendants’ conduct, as alleged herein, has been, and continues to be, unfair, unlawful and harmful to Plaintiff, other class members, to the general public, and Defendants’ competitors.

103. Accordingly, Plaintiff seeks to enforce important rights affecting the public interest within the meaning of Code of Civil Procedure § 1021.5.

104. Defendants’ activities as alleged herein are violations of California law, and constitute unlawful business acts and practices in violation of California Business & Professions Code § 17200, et seq.

105. A violation of California Business & Professions Code § 17200, ef seq. may be predicated on the violation of any state or federal law. In this case, Defendants’ policies and practices o failing to pay Plaintiff and the other class members all wages earned and property pay overtime violate California Labor Code §§ 200 and 204.1 and 510. Additionally, Moreover, Defendants’ policies and Code §§ 201, 202 and 204. Defendants also violated California Labor Code §§ 226(a), 226(b), 221 and 1174(d).

106. As aresult of the herein described violations of California law, Defendants unlawfully gained an unfair advantage over other businesses.

107. Plaintiff and the other class members have been personally injured by Defendants’ unlawful business acts and practices as alleged herein, including but not necessarily limited to the loss o money and/or property.

108. Pursuant to California Business & Professions Code §§ 17200, ef seq., Plaintiff and the other class members are entitled to restitution of the wages withheld and retained by Defendants during the statutory period of four years prior to the filing of this lawsuit, an award of attorneys’ fees pursuant

to California Code of Civil procedure § 1021.5 and other applicable laws and an award of costs.

DEMAND FOR JURY TRIAL

Plaintiff, individually, and on behalf of other members of the general public similarly situated

request a trial by jury.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of all other members of the general public similarly

situated, prays for relief and judgment against Defendants, jointly and severally, as follows: 1. Class Certification a. That this action be certified as a class action; b. That Plaintiff be appointed as the representative of the class; c. That counsel for Plaintiff be appointed as class counsel; and d. That Defendants provide to class counsel immediately the names and most current contact information (address, e-mail and telephone numbers) of all class members.

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a.

d.

C.

That the Court declare, adjudge and decree that Defendants violated California Labor Code § 2751 by willfully failing to provide Plaintiff and class member commission plans for review and signature that contain clear and unambiguous explanation of how

Detfendants calculate commissions;

. For applicable statutory penalties for Plaintiff and the other class members in the amount

as may be established according to proof at trial;

For reasonable attorneys’ fees and costs of suit incurred herein pursuant to California Labor Code § 1194(a);

For liquidated damages pursuant to California Labor Code § 1194.2;

For such other and further relief as the court may deem just and proper.

3. As to the Second Cause of Action

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a.

That the Court declare, adjudge and decree that Defendants violated California Labor Code §§ 221 and 223 by willfully failing to pay wages to Plaintiff and the other class

members;

. For general unpaid wages and such general and special damages as may be appropriate;

For statutory wage penalties pursuant to California Labor Code §§ 221 and 223 for Plaintiff and the other class members in the amount as may be established according to proof at trial;

For pre-judgment interest on any unpaid compensation from the date such amounts were due;

For reasonable attorneys’ fees and costs of suit incurred herein pursuant to California Labor Code § 1194(a); 4. As to the Third Cause of Action

a.

C.

That the Court declare, adjudge and decree that Defendants violated California Labor Code § 510 and 1198 and applicable IWC Wage Orders by willfully failing to pay all

overtime wages due to Plaintiff and the other class members;

. For general unpaid wages at overtime wage rates and such general and special damages

as may be appropriate;

For pre-judgment interest on any unpaid overtime compensation commencing from the date such amounts were due;

For reasonable attorneys’ fees and costs of suit incurred herein pursuant to California Labor Code §1194;

For such other and further relief as the court may deem just and proper.

5. As to the Fourth Cause of Action

a.

C.

f.

That the Court declare, adjudge and decree that Defendants violated the record keeping provisions of California Labor Code § 226(a) and applicable IWC Wage Orders as to Plaintiff and the other class members, and willfully failed to provide accurate itemized

wage statements thereto;

. For actual, consequential and incidental losses and damages, according to proof;

For statutory penalties pursuant to California Labor Code § 226(e);

For injunctive relief to ensure compliance with this section, pursuant to California Labor Code § 226(g);

For attorneys’ fees for violation of California Labor Code § 226(a); and

For such other and further relief as the court may deem just and proper.

6. As to the Fifth Cause of Action

a. That the Court declare, adjudge and decree that Defendants violated California Labor

Code § 204 by willfully failing to pay all compensation owed at the time required by

California Labor Code § 204 to Plaintiff and the other class members; C.

For pre-judgment interest on any unpaid compensation from the date such amounts were

due;

d. For attorneys’ fees for violation of California Labor Code § 204; and

C.

For such other and further relief as the court may deem just and proper.

7. As to the Sixth Cause of Action

a. That the Court declare, adjudge and decree that Defendants violated California Labor

C.

f.

Code §§ 201, 202, and 203 by willfully failing to pay all compensation owed at the time of termination of the employment of the other class members no longer employed by

Defendants;

. For all actual, consequential, and incidental losses and damages, according to proof;

For statutory wage penalties pursuant to California Labor Code §§ 203 for the other class members who have left Defendants’ employ;

For pre-judgment interest on any unpaid compensation from the date such amounts were due;

For attorneys’ fees for violation of California Labor Code §§ 201, 202, and 203; and

For such other and further relief as the court may deem just and proper.

8. As to the Seventh Cause of Action

a. That the Court declare, adjudge and decree that Defendants violated California § 1174(d)

C.

by willfully failing to keep accurate and complete payroll records and the other class

members as required by California Labor Code § 1174(d);

. For actual, consequential and incidental losses and damages, according to proof;

For statutory penalties pursuant to California Labor Code § 1174.5; For attorneys’ fees for violation of California Labor Code § 1174(d); and

For such other and further relief as the court may deem just and proper.

9. As to the Eighth Cause of Action

a. That the Court decree, adjudge and decree that Defendants violated California Business members all wages owed and overtime compensation due to them, failing to pay Plaintiff” and the other class members’ wages timely as required by California Labor Code §§ 201, 202 and 204 and by violating California Labor Code §§ 226(a), 221, 1174(d).

S

For restitution of unpaid wages to Plaintiff and all other class members and all pre-

judgment interest from the day such amounts were due and owing.

£

For the appointment of a receiver to receive, manage and distribute any and all funds disgorged from Defendants and determined to have been wrongfully acquired by

Defendants as a violation of California Business & Professions Code §§ 17200, et seq.

e

For reasonable attorneys’ fees and costs of suit incurred herein pursuant to California

Code of Civil Procedure § 1021.5.

@

For injunctive relief to ensure compliance with this section, pursuant to California

Business & Professions Code §§ 17200, et seq.

=

For such other and further relief as the court may deem just and proper.

Dated: OQctober 4, 2018 AK EMPLOYMENT LAW OFFICE

BY:

AYSE KUZUCUOGLU