This case was last updated from Santa Clara County Superior Courts on 08/14/2019 at 07:49:59 (UTC).

Ornelas v. Maplebear, Inc. (d/b/a Instacart)

Case Summary

On 02/07/2018 Ornelas filed a Labor - Other Labor lawsuit against Maplebear, Inc d/b/a Instacart. 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:

    ******3046

  • Filing Date:

    02/07/2018

  • 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

Plaintiff

Ornelas, Jose

Defendants

Maplebear, Inc.

Inc., Maplebear,

Other

Superior Court of California-County of Santa Clara

Attorney/Law Firm Details

Plaintiff Attorneys

McHenry, Sean Desmond

Hoyer, Richard Anderson

Haines, Walter L

Hicks, Ryan Lee

Defendant Attorneys

Pham, Kristina

Riechert, Julia Collins

Other Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Statement: Case Management Conference

JCMCS 2018 06 08 v4.pdf: Comment: HRG 6/8/18 Joint Case Management Conference Statement

Proof of Service

POS ADR Complex Docs.pdf: Comment: Proof of Service Complex and ADR Docs

Notice: Appearance

Notice Appearance:

Notice

Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 6/8/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle)

Order: Deeming Case Complex

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

Notice

Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 6/8/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle)

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

CCCS - Signed.pdf: Comment: COMPLEX

Notice

Notice CMC reset from 5-24-19 to 8-30-19: Comment: CMC reset from 5/24/19 to 8/30/19

Statement

Joint CMC Statement: Comment: JOINT STATUS CONFERENCE STATEMENT

Notice

Notice CMC reset from 1-11-19 to 5-24-19: Comment: CMC reset from 1/11/19 to 5/24/19

Statement: Case Management Conference

Joint CMC Statement: Comment: Joint Status Conference Statement

Notice

Notice CMC reset from 10-5-18 to 1-11-19: Comment: CMC reset from 10/5/18 to 1/11/19

Statement: Case Management Conference

Joint CMC Statement: Comment: Joint Status Conference Statement

Stipulation and Order

Stipulation and Order re Belaire Notice: Comment: Stipulation & Order re Belaire Notice - signed/TEK

Stipulation and Order

Stipulation and Protective Order: Comment: Stipulation & Protective Order - signed/TEK

Notice

Notice CMC set for 10-5-18 at 10am in D5: Comment: CMC set for 10/5/18 at 10am in D5

6 More Documents Available

 

Docket Entries

  • 08/30/2019
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  • Conference: Case Management - Joint CMC Statement: Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Comment: (2nd CMC) Representative PAGA action. Discovery stayed and responsive pleading deadline stayed, as of 2/8/18, when the case was deemed complex. Informal discovery permitted, as of 6/8/18. Mediation with Judge Cahill (JAMS/SF) set for 7/26/19.

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  • 05/20/2019
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  • Notice - Notice CMC reset from 5-24-19 to 8-30-19: Comment: CMC reset from 5/24/19 to 8/30/19

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  • 05/17/2019
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  • Statement - Joint CMC Statement: Comment: JOINT STATUS CONFERENCE STATEMENT

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  • 01/07/2019
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  • Notice - Notice CMC reset from 1-11-19 to 5-24-19: Comment: CMC reset from 1/11/19 to 5/24/19

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  • 01/02/2019
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  • Statement: Case Management Conference - Joint CMC Statement: Comment: Joint Status Conference Statement

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  • 09/26/2018
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  • Notice - Notice CMC reset from 10-5-18 to 1-11-19: Comment: CMC reset from 10/5/18 to 1/11/19

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  • 09/26/2018
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  • Statement: Case Management Conference - Joint CMC Statement: Comment: Joint Status Conference Statement

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  • 09/17/2018
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  • Stipulation and Order - Stipulation and Order re Belaire Notice: Comment: Stipulation & Order re Belaire Notice - signed/TEK

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  • 07/13/2018
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  • Stipulation and Order - Stipulation and Protective Order: Comment: Stipulation & Protective Order - signed/TEK

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  • 06/08/2018
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  • Conference: Case Management - JCMCS 2018 06 08 v4.pdf: Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Result: Held; Comment: (1st CMC) Representative PAGA action. Discovery stayed and responsive pleading deadline stayed, as of 2/8/18, when the case was deemed complex.

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  • 06/08/2018
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  • Notice - Notice CMC set for 10-5-18 at 10am in D5: Comment: CMC set for 10/5/18 at 10am in D5

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  • 06/08/2018
  • Minute Order

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  • 06/01/2018
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  • Statement: Case Management Conference - JCMCS 2018 06 08 v4.pdf: Comment: HRG 6/8/18 Joint Case Management Conference Statement

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  • 05/25/2018
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  • Proof of Service - POS ADR Complex Docs.pdf: Comment: Proof of Service Complex and ADR Docs

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  • 04/03/2018
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  • Notice: Appearance - Notice Appearance:

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  • 02/08/2018
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  • Order: Deeming Case Complex - Order Deeming Case Complex & Staying Discovery: Comment: and Staying Discovery and Responsive Pleading Deadline signed/TEK

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  • 02/07/2018
  • View Court Documents
  • Notice - Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 6/8/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle)

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  • 02/07/2018
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  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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  • 02/07/2018
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  • Summons: Issued/Filed - Summons Issued Filed:

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  • 02/07/2018
  • View Court Documents
  • Civil Case Cover Sheet - CCCS - Signed.pdf: Comment: COMPLEX

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Complaint Information

E-FILED

2/7/2018 11:41 AM

HOYER & HICKS Clerk of Court Richard A. Hoyer (SBN 151931) Superior Court of CA, rhoyer@ hoyerlaw.com County of Santa Clara

Ryan L. Hicks (SBN 260284) rhicks@ hoyerlaw.com 18C.V323046_

Sean D. McHenry (SBN 284175) Reviewed By: R. Walker smchenry@ hoyerlaw.com

Nicole B. Gage (SBN 318005)

ngage@ hoyerlaw.com

4 Embarcadero Center, Suite 1400

San Francisco, CA 94111

tel (415) 766-3539

fax (415) 276-1738

UNITED EMPLOYEES LAW GROUP, PC Walter Haines (SBN 71075)

walter@ whaines.com

5500 Bolsa Avenue, Suite 201 Huntington Beach, CA 92649

tel (562) 256-1047

fax (562) 256-1006

Attorneys for P laintiff

JOSE ORNELAS SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA

JOSE ORNELAS, on behalf of himself and Case No. 18C V323046

all Aggrieved Employees and the State of

California, REPRESENTATIVE ACTION P laintiff, COMPLAINT FOR PRIVATE

ATTORNEY GENERAL ACT

VS. PENALTIES BASED ON VIOLATIONS

OF THE CALIFORNIA LABOR CODE

MAPLEBEAR, INC. (d/b/a/ INSTACART) and DOES 1-25, [Cal. Labor Code §2698] Defendants. DEMAND FOR J URY TRIAL

TO ALL PARTIES AND ATTORNEYS OF RECORD: Pursuant to Labor Code §§ 2698, etseq. (‘PAGA”), Plaintiff JOSE ORNELAS (“Plaintiff” or “Ornelas”), on behalf of himself, all other Aggrieved Employees, and the state of California, by INSTACART) (hereinafter “Instacart”) and DOES 1-25 (collectively “Defendants”), seeking to recover penalties under the PAGA for Defendant’s violations of the California Labor Code and applicable Industrial Welfare Commission (“IWC") Wage Orders. Plaintiff complains and alleges as follows:

INTRODUCTION

1. This is a representative action complaint against Defendant to challenge its policies and practices of; (1) failing to pay its non-exempt employees who work as In-Store shoppers for all hours worked, including overtime compensation; (2) failing to authorize, permit, and/or make available to such employees the meal periods to which they are entitled by law and failing to pay premium wages for these missed breaks; (3) failing to provide such employees with accurate, itemized wage statements; and (5) failing to pay all wages after these employees voluntarily or involuntarily terminated their employment with Defendant. P laintiff and the other Aggrieved E mployees are current and former non-exempt employees who work as In-Store Shoppers at Defendant’s locations in California during the applicable period. Plaintiff alleges that Defendant has engaged in unlawful patterns and practices of failing to provide legally compliant meal periods, provide premium wages for such missed meal periods, pay overtime compensation as required by the California Labor Code and numerous other violations of that Code. 2. Defendant operates a retail delivery service whereby customers order items from Defendant’s mobile phone application (“app”) and or its website www.instacart.com. Defendant then assigns via an app the customer orders to its employees who fill the orders by shopping, purchasing, and ultimately delivering items to the customers. 3. Plaintiff and the Aggrieved Employees worked as In-Store Shoppers who filled customers’ orders. They were requiredtrack both customer orders and the time they spent working. The app automatically clocked them in and began recording their time as they shopped. It would then generate a timesheet which Defendant used to calculate their wages. 4, Oftentimes, however, the app would malfunction and fail to properly record the time worked out, meaning Plaintiff and the Aggrieved Employees’ timesheets did not reflect the hours that they actually worked.

5. The app was also supposed to automatically notify employees that they could take a thirty- minute off-duty meal period before the fifth hour of work; however, the app often failed to do so. Instead, the app would continue to instruct P laintiff and the Aggrieved Employees to fill new customer orders, resulting in their frequently working over five hours without a meal period.

0. Plaintiff often worked in excess of six hours per day and was routinely denied timely and compliant off-duty meal periods and the requisite pay for working through such breaks. In addition, Plaintiff performed off-the-clock work, including overtime work for which he was not adequately compensated, due to Defendant’'s app malfunctioning.

7. Defendant routinely refuses to authorize, permit, and/or make available to Plaintiff and the Aggrieved Employees timely and compliant off-duty thirty-minute meal periods as required by law. Under California law, generally, non-exempt employees are to receive one thirty-minute unpaid meal break atthe conclusion of every five hours of labor performed. Defendant frequently violates California law in this respect.

8. Defendant engages in illegal behavior with respect to wage statements as well: failing to provide such employees with accurate, itemized wage statements, due to the consistent malfunctioning of the app with respect to meal periods and time worked.

9. Defendant has also failed to pay all wages after these employees voluntarily or involuntarily terminated their employment with Defendant.

10. As a result of these violations, Defendant is liable for additional, various other penalties under the Labor Code which Plaintiff seeks on behalf of himself and all other Aggrieved Employees under PAGA.

PARTIES

12. Plaintiff | ose Ornelas was, atall relevant times herein, a resident of the State of California and employed by Defendantto work as an In-Store Shopper atits Whole Foods locations in Los Altos and San ] ose, California. 13. Defendant MAPLEBEAR, INC. is a Delaware Corporation that does business in California under the name INSTACART and is headquartered at 50 Beale Street, Suite #600 in San Francisco, CA. Instacart maintains ongoing business throughout California, and claims to currently provide services and employ workers in over 430 cities throughout this state. 14. At all relevant times, Defendant has done business under the laws of California, has had places of business in the State of California. Defendant is a “person” as defined in California Labor Code § 18. Defendantis also an “employer” as thatterm is used in the California Labor Code and the IWC's Wage Orders. 15. P laintiff does not know the true names and capacities of Defendants sued herein as DOES 1-25 and therefore sues these defendants by such fictitious names. P laintiff will amend this Complaint to allege their true identities and capacities when ascertained. Plaintiff is informed and believes, and on that basis alleges, that each of these fictitiously named defendants is responsible in some manner for the occurrences alleged herein and thereby proximately caused Plaintiff's and Aggrieved Employees’ injuries alleged herein. 16. P laintiff is informed and believes, and on that basis alleges, that, at all relevant times, each of the defendants was the agent or employee of each of the remaining defendants, and, in doing the things herein alleged was acting within the course and scope of such employment, and that Defendants authorized ratified, and approved, expressly orimplicitly, all of the conduct alleged herein. 17. Whenever and wherever reference is made in this Complaint to any act or failure to act by a Defendant or co-Defendant, such allegations and references shall also be deemed to mean the acts and/or failures to act by each Defendant acting individually, jointly and severally. 18. P laintiff brings this case as a representative action seeking penalties for the State of California permitted by law, as an aggrieved employee who held the position identified and did not receive legally compliant meal periods or appropriate compensation for his work.

URISDICTION AND VENUE

19. The amount of damages sought herein is greater than $25,000. Hence, this case is within the unlimited jurisdiction of this Court. 20. This Court has jurisdiction over the parties and claims involved in this action because P laintiff is a resident of California and Defendant is headquartered in San Francisco, California. 21. Venue is properin Santa Clara County pursuantto California Code of Civil Procedure § 395.5 because the unlawful acts alleged herein occurred in Santa Clara County.

FACTUAL ALLEGATIONS

22. Defendant operates an app through which customers can order products from various retail and grocery stores in California and have them delivered to their home. 23, As an In-Store Shopper, Plaintiff received customers’ orders through Defendant's app and shopped for the requested items. 24, When Plaintiff began working for Defendant on approximately September 14, 2016, he was based primarily at a Whole Foods in Los Altos, California. After a few months, he was transferred to a Whole Foods in San ] ose, California, which became his primary shopping location. P laintiff worked approximately six days per week, on average. 25. When In-Store Shoppers like Plaintiff receive an order through the Instacart app, the app automatically clocks them in to work and records their time as they shop, generating a timesheet that is used to calculate their compensation. 20. The app is designed to track the hours that employees work and automatically notify them when to take an off-duty meal period; however, it often malfunctioned. 27. W hen Plaintiff was employed by Defendant, the app would fail to track his time appropriately and regularly failed to notify him that he was permitted to take an off-duty meal period. Due to the requirements of the application, there was often no time that Plaintiff could stop working as the app the orders or the app would cancel his shift. P laintiff was often required to work over five consecutive hours without a thirty-minute off duty meal period, in violation of California law. 28. Oftentimes, the Instacart app would also cancel a job that was still being carried out. Sometimes the app would notify Plaintiff that the shift had been cancelled. More often, he would try to click on the order to continue and the app would say “error”and cancel his shift. W hen this occurred, P laintiff continued to shopreflect the time he spent working. As a result, his timesheets do not accurately reflect the hours he worked and he was not compensated appropriately. According to his timesheets, the app canceled approximately one in three jobs, showing that P laintiff worked zero hours for such orders when he was, in fact, carrying out his job duties. These inaccurate timesheets prevented P laintiff from receiving compensation for his work. 29. During P laintiff's final weeks of employment with Defendant, Defendant began to acknowledge that there were problems with the app. Employees would often receive notices to updateglitches; however, none of the updates solved the problems as P laintiff was still missing meal periods and having jobs cancelled up through and during his last days of employment during August 2017. Upon information and belief, to this day Defendant is still working out issues with the app and it continues to malfunction regularly. 30. All Aggrieved Employees suffered from Defendant’s unlawful practices in the same ways as P laintiff because they were all requiredperform their job duties. 31. Defendant failed to provide Plaintiff and Aggrieved Employees with legally compliant thirty- minute meal periods before the fifth hour of work due to malfunctions with the app. 32. Defendant failed to provide accurate, itemized wage statements to Plaintiff and Aggrieved Employees. 33. Defendant failed to pay all wages owed to Plaintiff and terminated or resigned Aggrieved Employees.

PAGA ALLEGATIONS

34, On November 7, 2017, Plaintiff provided notice to the Labor Workforce and Development Agency ("LWDA") and also to Defendant of his intent to seek penalties pursuantto PAGA as required notice of that intent. Sixty-five days have passed since Plaintiff provided the LWDA notice on November 7, 2017, but Plaintiff did not receive any notice that the LW DA intended to investigate his allegations. Hence, pursuant to Cal. Labor Code § 2699.3(a)(2)(a-c), Plaintiff now has the right to bring a claim for PAGA penalties.

35. P laintiff brings all causes of action as representative claims for penalties and relief under the

PAGA. Plaintiff seeks penalties and relief on behalf of all Aggrieved E mployees, initially defined as:

All current and former non-exempt employees of Defendant who worked as

In-Store Shoppers in the State of California during the applicable time

period of November 7, 2016, until resolution of this action. (the “Aggrieved

Employees”)

30. There are questions of law and fact common to Plaintiff are applicable to all Aggrieved Employees. These common questions of law and fact include, without limitation:

a. Whether Defendant fails to compensate the Aggrieved Employees for all hours worked, including overtime compensation, in violation of the Labor Code and Wage Orders;

b. W hether Defendant fails to authorize and permit, make available, and/or provide the Aggrieved Employees meal periods to which they are entitled in violation of the Labor Code and Wage Orders;

C. W hether Defendant fails to provide the Aggrieved Employees with timely, accurate itemized wage statements in violation of the Labor Code and Wage Orders and fails to keep accurate timekeeping records;

d. W hether Defendant fails to pay the Aggrieved Employees all wages due upon the end of their employment in violation of the Labor Code and Wage Orders;

e. The proper formula for calculating restitution, damages, and penalties owed to P laintiff and the Aggrieved Employees as alleged herein.

37. As described herein, during the Period one year prior to the filing of this action, Defendant's wage and hour practices with respect to Plaintiffs and other Aggrieved Employees violated Labor Code §§ 201(a), 203(a), 210, 226, 226.3, 226.7, 512(a), 558, 558(a), 1174(d), 1174.5 and 2699(f).

38. Labor Code §§ 2699(a) and (g) authorize an Aggrieved Employee to bring a civil action to sections Plaintiffs are entitled to recover civil penalties for Defendant’s violations of the Labor Code as described hereinabove. 39. Pursuantto Labor Code § 2699(g), Plaintiffs are entitled to an award of reasonable attorneys’ fees and costs in connection with their claim for civil penalties.

FIRST CAUSE OF ACTION PAGA PENALTIES FOR FAILURE TO PAY WAGES OWED (BY PLAINTIFF AND THE AGGRIEVED EMPLOYEES)

Plaintiff incorporates each of the foregoing paragraphs as though fully set forth herein

below.

40, California Labor Code § 210 provides:

Every person who fails to pay the wages of each employee as provided in Sections 201.3, 204, 204(b), 204.1, 204.2, 205, 205.5, and 1197.5 shall be subjectto a civil penalty as follows: (1) for any initial violation, one hundred dollars ($100) for each failure to pay each employee; (2) for each subsequent violation, or any willful or intentional violation, two hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld.

41. Here, Defendant knowingly and willfully refused to pay P laintiff and the Aggrieved Employees all wages due by using inaccurate timesheets generated by the faulty app to calculate compensation. Thus, Defendant is subject to the above-mentioned penalties.

42, California Labor Code § 558 provides:

Any employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial W elfare Commission shall be subject to a civil penalty as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. (2) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. (3) Wages recovered pursuant to this section shall be paid to the affected employee.

43. Defendant has knowingly and willfully refused to pay P laintiff and the Aggrieved Employees all wages due, including overtime for hours worked in excess of eight (8) hours in a day and/or forty (40) hours worked in a week in violation of the applicable wage order. Defendant violated the Labor 44, W herefore, Plaintiff and the Aggrieved Employees request relief as hereinafter provided.

SECOND CAUSE OF ACTION PAGA PENALTIES FOR FAILURE TO PROVIDE MEAL PERIODS (BY PLAINTIFF AND THE AGGRIEVED EMPLOYEES)

Plaintiff incorporates each of the foregoing paragraphs as though fully set forth herein below. 45, California Labor Code §§ 226.7 and 512 and the applicable IWC Wage Order require Defendant to authorize, permit, and/or make available timely and compliant off-duty meal periods to its employees. Labor Code §§ 226.7 and 512 and the IWC Wage Order prohibit employers from employing an employee for more than five hours without an off-duty meal period of not less than thirty minutes, and from employing an employee more than ten hours per day without providing the employee with a second off-duty meal period of not less than thirty minutes. Unless the employee is relieved of all duty during the thirty-minute meal period, the employee is considered “on duty” and the meal period is counted as time worked under the applicable wage order. 46, Under Labor Code § 226.7(b) and the applicable Wage Order, an employer who fails to authorize and permit a required meal period must, as compensation, pay the employee one hour of pay at the employee’s regular rate of compensation for each workday that the meal period was not provided. 47. Despite these requirements, Defendant has knowingly and willfully refused to perform its obligations to provide Plaintiff and the Aggrieved Employees with timely and compliant off-duty meal periods to which they are entitled. P laintiff and the Aggrieved Employees routinely work through their meal periods. Furthermore, Defendant knowingly inserted meal periods that employees did not take into the timekeeping records without informing the employees of the manipulations. 48. Defendant has also failed to pay P laintiff and the Aggrieved Employees one hour of premium wages for each date on which a compliant off-duty meal period was not provided. 49, Defendant’s conduct described herein violates California Labor Code §§ 226.7 and 512 and Code § 226.7(b), Plaintiff and the Aggrieved Employees are entitled to compensation for the failure to provide meal periods, plus interest, attorneys’ fees, expenses, and costs of suit. 50. W herefore, Plaintiff and the Aggrieved Employees request relief as hereinafter provided.

THIRD CAUSE OF ACTION PAGA PENALTIES FOR WAITING TIME PENALTIES (BY PLAINTIFF AND THE AGGRIEVED EMPLOYEES)

Plaintiff incorporates each of the foregoing paragraphs as though fully set forth herein below.

51. Labor Code § 201 provides:

If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.

52. Labor Code § 202 provides:

If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.

53. Labor Code § 203 provides, in relevant part:

If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.

54, Plaintiff and some of the Aggrieved Employees have left their employment with Defendant during the statutory period, at which time Defendant owed them unpaid wages. These earned, but unpaid, wages derive from uncompensated overtime, time spent working through their meal periods, and from other uncompensated time spent performing other work-related activities.

55. Defendant willfully refused, and continues to refuse, to provide Plaintiff and the Aggrieved Employees with overtime pay, meal period premium pay, and payment for unrecorded work performed. In particular, as alleged above, Defendantis aware P laintiff and the Aggrieved Employees regularly work in excess of eight hours per day and/or forty hours per week yet affirmatively refuses actually provided; itis aware that P laintiff and the Aggrieved E mployees miss or have interrupted their meal periods as a result of Defendant’s unlawful policies and practices, but Defendant, nevertheless, refuses to authorize premium pay for missed or interrupted meal periods. Indeed, there is not even any method for reporting non-compliant meal periods or seeking premium pay for same. Likewise, as alleged above, although Defendant knew, and continues to know, full well that Plaintiff and the Aggrieved Employees performed off-the-clock work whenever the app malfunctioned and they worked without pay, but Defendant still refuses to pay Plaintiff and the Aggrieved Employees for the off-the-clock work performed. 50. Accordingly, Defendant willfully refused and continues to refuse to pay those Aggrieved Employees that left their employment with Defendant all the wages that were due and owing them upon the end of their employment. As a result of Defendant’s actions, Plaintiff and the aggrieved former employees have suffered and continue to suffer substantial losses, including lost earnings and interest. 57. Defendant’s willful failure to pay the former employees the wages due and owing them constitutes a violation of Labor Code §§ 201-202. As a result, Defendant is liable to them under the PAGA for all penalties owing pursuantto Labor Code §§ 201-203. 58. In addition, Labor Code § 203 provides that an employee’s wages will continue as a penalty up to thirty days from the time the wages were due. Therefore, the former employees are entitled to penalties via PAGA pursuantto Labor Code § 203, plus interest. 59. W herefore, Plaintiff and the Aggrieved E mployees request relief as hereinafter provided.

FOURTH CAUSE OF ACTION PAGA PENALTIES FOR ITEMIZED WAGE STATEMENT AND RECORDKEEPING VIOLATIONS (BY PLAINTIFF AND THE AGGRIEVED EMPLOYEES)

Plaintiff incorporates each of the foregoing paragraphs as though fully set forth herein

below. 63. employee begins and ends each work period, meal periods, split shift intervals and total daily hours worked, and also total hours worked in the payroll period and applicable rates of pay, including

premium wages for meal period violations. Defendant has failed to maintain accurate records of the

Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, (3) the number of piece-rate units earned and any applicable piece rate if the employee is 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 piece-rate rates in effect during the pay period and the corresponding number of hours worked at each piece-rate 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 four years at the place of employment or at a central location within the State of California.

Labor Code § 226(e) provides:

An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is 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 ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.

Labor Code § 226.3 provides that:

Any employer who violates subdivision (a) of Section 226 shall be subjectto a civil penalty in the amount of two hundred fifty dollars ($250) per employee per violation in an initial citation and one thousand dollars ($1,000) per employee for each violation in a subsequent citation, for which the employer fails to provide the employee a wage deduction statement or fails to keep the records required in subdivision (a) of Section 226. The civil penalties provided for in this section are in addition to any other penalty provided by law. In enforcing this section, the Labor Commissioner shall take into consideration whether the violation was inadvertent,discretion, may decide not to penalize an employer for a first violation when that violation was due to a clerical error or inadvertent mistake.

The applicable wage order also requires all employers to keep accurate records of when the 04. Defendant has failed to provide timely, accurate, itemized wage statements to P laintiff and the Aggrieved Employees in accordance with Labor Code § 226(a) and the IWC Wage Order. In particular, the wage statements the Defendant provides its employees, including to Plaintiff and the Aggrieved Employees, do not accurately reflect the actual hours worked, actual gross wages earned, or actual net wages earned. This is because, in part, Defendant’s app malfunctioned and did not record hours worked that would require compensation, including overtime compensation, and because there are no premium wages for non-compliant/missed meal periods, or compensation for meal periods which were falsely inserted into timekeeping records, but not actually provided to P laintiff and the Aggrieved Employees.

65. Defendant’s failure to comply with Labor Code § 226(a) was and continues to be knowing and intentional. Although, as alleged herein, Defendant was aware that Plaintiff and the Aggrieved Employees performed work that was uncompensated, and were entitled to premium pay for missed meal periods, yet Defendant systematically failed to include this time worked and pay in P laintiff's wage statements.

00. P laintiff and the Aggrieved Employees have suffered injury as a result of Defendant’s knowing and intentional failure to provide timely, accurate itemized wage statements to Plaintiff and the Aggrieved Employees in accordance with Labor Code § 226(a). In particular, the injury stemming from Defendant’'s violations is evidenced by this live and active dispute regarding unpaid wages, including, overtime pay, between the Parties. As a result of Defendant’s violations, Plaintiff and the Aggrieved Employees are required to undertake the difficult and costly task of attempting to reconstruct Defendant’s incomplete and inaccurate time and pay records to ensure that they are paid for all hours worked as required by California law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of himself and the Aggrieved Employees prays for relief

as follows:

I

1. Penalties, including damages and restitution according to proof at trial for all unpaid wages

and other injuries, as provided by the California Labor Code via PAGA;

. For a declaratory judgment that Defendant has violated the California Labor Code and

public policy as alleged herein;

. For an equitable accounting to identify, locate, and restore to all current and former

P laintiffs the wages they are due under the PAGA, with interest thereon;

For an order awarding Plaintiff and the Aggrieved Employees compensatory damages, including lost wages, earnings, and other employee benefits, restitution, and all other sums of money owed to Plaintiff and the Aggrieved Employees under the PAGA, together with interest on these amounts, according to proof;

For an order awarding Plaintiff and the Aggrieved Employees any other civil penalties available under the PAGA based on the unlawful conduct alleged hereinabove, with interest thereon;

For an award of reasonable attorneys’ fees as provided by the California Labor Code including PAGA;

For all costs of suit;

DEMAND FOR J URY TRIAL

P laintiff hereby demands a jury trial on all claims and issues for which Plaintiff on behalf of himself and the Aggrieved Employees is entitled to a jury trial.

R espectfully submitted,

Date: February 7, 2018 HOYER & HICKS .