This case was last updated from Santa Clara County Superior Courts on 08/08/2019 at 14:13:02 (UTC).

Provencio v. Too Faced Cosmetics, LLC

Case Summary

On 10/23/2018 Provencio filed a Labor - Other Labor lawsuit against Too Faced Cosmetics, LLC. 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:

    ******6593

  • Filing Date:

    10/23/2018

  • 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

Provencio, Rose

Defendant

Too Faced Cosmetics, LLC

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorney

Allen, Kevin Robert

Defendant Attorney

Donelan, Caroline P

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Notice CMC reset from 8-9-19 to 12-6-19: Comment: CMC reset from 8/9/19 to 12/6/19

Notice

Notice CMC reset from 5-24-19 to 8-9-19: Comment: CMC reset from 5/24/19 to 8/9/19

Notice

Notice CMC 5-24-19 at 10am in D5: Comment: CMC set for 5/24/19 at 10am in D5

Statement: Case Management Conference

Joint CMC Statement: Comment: Joint

Proof of Service

Proof of Service: Comment: Proof of Service re Civil Lawsuit Notice

Substitution: Attorney

Substitution of Attorneys: Comment: Substitution of Attorney

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 2/8/19 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

181024 CCCS.pdf: Comment: COMPLEX

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies): Comment: Complaint

 

Docket Entries

  • 10/04/2019
  • 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 10/26/18, when the case was deemed complex. Responsive pleadings due 2/22/19. Mediation set for 8/20/19 with Judge Steven Rottman.

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  • 08/06/2019
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  • Notice - Notice CMC reset from 8-9-19 to 12-6-19: Comment: CMC reset from 8/9/19 to 12/6/19

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  • 05/15/2019
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  • Notice - Notice CMC reset from 5-24-19 to 8-9-19: Comment: CMC reset from 5/24/19 to 8/9/19

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  • 02/13/2019
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  • Notice - Notice CMC 5-24-19 at 10am in D5: Comment: CMC set for 5/24/19 at 10am in D5

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  • 02/08/2019
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  • Conference: Case Management - Joint CMC Statement: Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Result: Held; Comment: (1st CMC) Proposed Wage and Hour Class Action. Discovery and responsive pleading deadline stayed, as of 10/26/18, when the case was deemed complex.

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  • 02/08/2019
  • Minute Order

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

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  • 12/07/2018
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  • Proof of Service - Proof of Service: Comment: Proof of Service re Civil Lawsuit Notice

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  • 12/07/2018
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  • Substitution: Attorney - Substitution of Attorneys: Comment: Substitution of Attorney

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  • 11/26/2018
  • Answer (Unlimited) (Fee Applies) - Comment: To Complaint ; Atty Donclan

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  • 10/26/2018
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  • 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

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  • 10/23/2018
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  • Civil Lawsuit Notice - Civil Lawsuit Notice: Comment: 1st CMC set for 2/8/19 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

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  • 10/23/2018
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  • Summons: Issued/Filed - Summons Issued Filed:

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  • 10/23/2018
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  • Civil Case Cover Sheet - 181024 CCCS.pdf: Comment: COMPLEX

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  • 10/23/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies): Comment: Complaint

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Complaint Information

KEVIN R. ALLEN, SBN 237994 DANIEL VELTON, SBN 267890 VELTON ZEGELMAN P.C. 1261 Lincoln Ave., Suite 208

San Jose, CA 95125

Tel. (408) 505-7892

Fax (408) 228-1930 kallen@vzfirm.com dvelton@vzfirm.com

Attorneys for Representative Plaintiff and the Plaintiff Class

E-FILED

10/23/2018 11:57 AM Clerk of Court

Superior Court of CA, County of Santa Clara

18CV336593

Reviewed By: R. Walker

IN THE SUPERIOR COURT IN THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA (UNLIMITED JURISDICTION)

ROSE PROVENCIO, on behalf of herself and |Case No. 18c V336593

all others similarly situated, Plaintiff, Vs.

TOO FACED COSMETICS, LLC, a Delaware Limited Liability Company, and DOES 1 through 50, inclusive,

Defendants.

CLASS ACTION COMPLAINT

1.

Failure to Pay Wages Owed Including

Overtime Pay (Cal. Lab. Code §¢§ 510,

1194, 1198, 1771, 1174 and California Wage Orders);

Failure to Pay Wages for Missed Meal Periods (Cal. Lab. Code § 226.7),

. Failure to Pay Wages for Missed Rest

Periods (Cal. Lab. Code § 226.7), Failure to Reimburse Business Expenses (Cal. Lab. Code § 2802); Failure to Provide Accurate Itemized Wage Statements (Cal. Lab. Code § 226),

Waiting Time Penalties (Cal. Lab. Code §§ 201, 202, 203);

Unfair Competition (Cal. Bus. & Prof. Code $§ 17200 et seq.),

Civil Penalties Under Private Attorney General Act (Cal. Lab. Code 5§ 2698 et seq.).

JURY TRIAL DEMANDED.

1

PRELIMINARY STATEMENT

1. This case involves defendant-employer’s deliberate scheme to misclassify its Makeup Artists as independent contractors, thereby denying them the fundamental protections due to employees under California law. This class action seeks to enjoin the defendant’s unlawful conduct, to obtain restitution of unpaid wages and unlawful deductions made from Makeup Artist’s pay, and to prosecute a private enforcement action to collect civil penalties under the Labor Code Private Attorney General Act (“PAGA”) against Defendant Too Faced Cosmetics, LLC, and DOES 1 through 50, inclusive (hereafter, collectively referred to as “Defendants”), under the California Labor Code, the California Industrial Welfare Commission’s (“IWC’’) Wage Orders, the California Business & Professions Code (Section 17200 ef seq.), and other statutes and regulations applicable to non-exempt employees in the State of California.

2. This combined class and PAGA enforcement action 1s brought against Defendants — who require Makeup Artists to work sales promotion events at retailers like Sephora USA, Inc., Macy’s, Inc., and Ulta Beauty, Inc. — for engaging in a pattern and practice of willfully misclassifying its Makeup Artists, including plaintiff Rose Provencio, as independent contractors, instead of affording them their true status as employees, thus denying these works the basic wage- and-hour rights and protections guaranteed to employees by the California Labor Code and the IWC’s applicable Wage Order.

3. The result of Defendants’ misclassification scheme is that Plaintiffs and other similarly situated Makeup Artists were, and are, routinely denied payment of all earned wages, including: (1) the compensation earned but left unpaid, pursuant to California law’s requirement that employees be paid at least the minimum wage for each hour worked; (i1) the premium wages earned for each day an employee is deprived an uninterrupted, duty-free meal period mandated by California law; (i11) the premium wages earned for each day an employee is deprived an uninterrupted, duty-free rest period mandated by California law; and (iv) failure to reimburse Makeup Artist for all job related business expenses. Instead, Defendants have taken such wages

1 owed to Plaintiffs and other similarly-situated Makeup Artists and unlawfully converted the funds for Defendants’ own use and benefit, in order to maximize profits and gain an unfair business advantage over their competitors at the expense of Defendants’ own employees. By their unlawful misclassification scheme, Defendants also evaded their obligation to provide Workers’ Compensation protection to these employees.

4. Defendants’ acts and omissions, as described herein, violate provisions of the

California Labor Code, including sections 201, 202, 204, 226, 226.7, 226.8, 512, 1197 and 2802; violate the applicable Wage Orders issued by the California Industrial Welfare Commission, including Wage Order 7-2001; and amount to unfair and unlawful business practices prohibited

by the California Business and Professions Code, sections 17200 et seq.

5. Plaintiffs now bring this class action, on behalf of themselves and a class of similarly situated former and current Makeup Artists who over whom Defendants retain and exercise a level of control such that they are properly deemed employees under California law (hereafter collectively referred to as “Makeup Artists”), to recover the unpaid wages owed to the Makeup Artists by Defendants, to recover unreimbursed expenses incurred by Makeup Artists in performance of their job duties for Defendants, and to collect all applicable statutory penalties for Defendants’ myriad violations of the California Labor Code, including recordkeeping penalties under Labor Code section 226 and waiting-time penalties under Labor Code section 203.

6. Also, pursuant to the California Labor Code Private Attorney General Act of 2004 (Cal. Lab. Code §§ 2698 et seq.), Plaintiff seeks to assess and collect—on behalf of the California Labor and Workforce Development Agency and each aggrieved Makeup Artist—the applicable civil penalties for Defendants’ Labor Code violations committed against Plaintiff, and other former and current Makeup Artists, who were willfully misclassified by Defendants as

independent contractors 7. The “Class Period” is defined four years presiding the filing date of this Complaint through the date of trial, based upon the allegations that the violations of California’s wage and

hour laws, as described more fully below, have been ongoing through that time.

JURISDICTION AND VENUE

8. This Court has jurisdiction over this action because the amount in controversy exceeds $25,000. 9. Pursuant to California Code of Civil Procedures § 395(a), venue 1s proper in the

County of Santa Clara because Defendants’ obligations and liability arose, at least in part, therein, and because the alleged injuries sustained by Representative Plaintiff, as well as other Class Members, occurred in the County of Santa Clara.

THE PARTIES

10. The Representative Plaintiff brings this action against Defendant for engaging in uniform policy and systematic scheme of wage abuse against their Makeup Artists in California. This scheme involved, inter alia, denying Plaintiff regular and overtime compensation for all applicable hours worked, statutory meal and rest periods or payment in compensation thereof, reimbursement for business expenses, accurate wage statements, and associated waiting time penalties for violations thereof as mandated under California law.

11. As used throughout this Complaint, the term “Class Members” refers to the Representative Plaintiff herein, as well as each and every person eligible for membership in the Class described and defined herein.

12. Plaintiff Rose Provencio i1s a natural person who worked for Defendant as a Makeup Artist from approximately April 12, 2017 through April 2018. During this time Plaintiff was assigned by Defendants to perform work, and did in fact perform work, at Sephora branded retail location(s) in the Bay Area.

13. At all times herein relevant, the Representative Plaintiffperson within the Class as further described and defined herein.

3 14. While employed by Defendant, Representative Plaintiff was not paid for travel time or reimbursed for mileage incurred using her personal vehicle, was subject to unpaid security checks upon clocking in and out of shifts, was required to provide her own uniform/costume without reimbursement, was required to use her personal cell phone for work purposes without reimbursement, was required to purchase and use “Too Faced” branded cosmetics without reimbursement, and was denied off-duty meal periods and rest breaks (or break penalty wages in lieu thereof) which she was entitled under California law.

15. Representative Plaintiff 1s informed and believes, and based thereon, alleges that at all times herein relevant, Defendant Too Faced Cosmetics, LLC was a registered Delaware limited liability company with regional headquarters in Irvine, California. Defendants required their Makeup Artists to work at various cosmetic retailers throughout California and the San Francisco Bay Area including but not limited to retailers such as Sephora USA, Inc., Macy’s, Inc., and Ulta Beauty, Inc.

16. The true and correct names and capacities of DOES 1 through 50, inclusive, are unknown to Representative Plaintiff, who therefore sues said Defendants by said fictitious names. Representative Plaintiff is informed and believes and thereon alleges that each of said fictitious Defendants caused injury and damages to Representative Plaintiff.

17. Defendants DOES 1 through 10 are individuals employed by Defendant.

18. At all times relevant herein, Defendants DOES 11-50 inclusive were and are employer(s) and person(s) within the definition of California Labor Code § 18, the applicable Industrial Wage Order, and California Business and Professions Code § 17201.

19. The Representative Plaintiff is informed and believes and, on that basis, alleges that at all relevant times herein referenced, each of the Defendants DOES 1 through 50, were the agents, employees, supervisors, employers, alter egos, and/or joint ventures of the remaining defendants, and were acting both individually and in the course and scope of such relationship, and/or as an integrated enterprise, and/or as joint employers, with the knowledge and/or consent

4 of the remaining Defendant. Plaintiff alleges that each defendant sued in this action, including each defendant sued by the fictitious names DOES 1 through 50, inclusive, is directly or indirectly responsible on some manner for the occurrences, controversies and damages alleged herein, in various capacities, including but not limited to serving as a joint employer, joint tortfeasor, single enterprise, alter ego, or agents of the other defendants. Each defendant approved, participated in, controlled, or ratified the acts of all other defendants.

ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

20. Defendant Too Faced Cosmetics, LLC distributes cosmetics in the United States and globally, both online and through various retailers such as, without limitation, Sephora USA, Inc., Macy’s, Inc., and Ulta Beauty, Inc.

21. During the Class Period, Defendant Too Faced Cosmetics, LLC used dozens of Makeup Artists in California who it treated, and continues to treat, as independent contractors. The Makeup Artists were responsible for generating retail sales, through events and artistry/product education on the Too Faced Cosmetics product line. Plaintiff 1s informed and believes, and based thereupon, alleges, that Too Faced Cosmetics, LLC’s Makeup Artists outside the United States are referred to as Beauty Consultants and performed generally the same role as the Makeup Artists in the United States but were, instead, classified as Defendants’ employees.

22. Plaintiff is informed and believes, and based thereupon alleges, that Plaintiff and the other Makeup Artists in California received specific instructions from Too Faced Cosmetics, LLC for each event which included the i1dentity of the Makeup Artists assigned to the event, the start and end times of the event, the location of the event, the uniform (aka “costume”) they were expected to wear, the Makeup and other cosmetics they were supposed to sell at the event, and, generally, everything they were expected to do throughout the event. Too Faced Cosmetics, LLC provided sales goals for each event.

23. Plaintiff 1s informed and believes, and based thereupon alleges, that Too Faced Cosmetics, LLC required Plaintiff and the other Makeup Artists in California to purchase and

S wear “Too Faced” branded cosmetics when performing their job duties for Too Faced Cosmetics, LLC. Plaintiff and other Makeup Artists were not reimbursed for all costs incurred purchasing the makeup and other cosmetics from Too Faced Cosmetics, LLC in violation of the law.

24. Plaintiff was required to use her personal cell phone for scheduling shifts and completing time sheets but was never reimbursed for use of her personal cell phone.

25. Plaintiff is informed, and based thereupon alleges, that Too Faced Cosmetics, LLC required Plaintiff and certain other Makeup Artists in California to download and use an application on their smart phone (i.e., “TSheets”) to track and report their hours worked. Defendants keep and maintain these records. Makeup Artists were required to allow the application to track them using the phone’s GPS feature and the application had to be running at all times during the Makeup Artist’s shift. If the application was closed, the Makeup Artist logged out, or the GPS signal was lost — which might occur because a Class Member’s phone ran out of power — then the Makeup Artist was automatically clocked out. Plaintiff and Makeup Artists incurred costs associated with the required business use of their personal cell phones (including costs associated with data and talk usage) but were not reimbursed by Too Faced Cosmetics, LLC for this use.

26. Plaintiff is informed, and based thereupon alleges, that Too Faced Cosmetics, LLC required Plaintiff and the other Makeup Artists in California to use their personal vehicles to drive to/from events to perform their job duties for Too Faced Cosmetics, LLC. Plaintiff and Makeup Artists incurred costs associated with the required business use of their personal vehicles (i.e., gas, oil, lease payments, repairs, tires, vehicle depreciation, insurance) but were not reimbursed by Too Faced Cosmetics, LLC for these costs.

27. Plaintiff is informed, and based thereupon alleges, that Too Faced Cosmetics, LLC required Plaintiff and the other Makeup Artists in California to undergo security inspections, upon

entering and exiting retail stores and events they were required to work at, without compensation. 28. Plaintiff and Makeup Artists were also compensated at a premium overtime rate of all overtime hours worked.

29. Plaintiff is informed, and based thereupon alleges, that Too Faced Cosmetics, LLC did not provide Plaintiff and the other Makeup Artists in California with all lawfully required meal periods and rest breaks, even when Plaintiff and the other Makeup Artists in California worked shifts that would otherwise have warranted such breaks. Plaintiff is informed, and based thereupon alleges, that Too Faced Cosmetics, LLC sometimes provided Class Members with lunch and sometimes scheduled meal periods in advance but, even when this occurred, the meal periods were often late and Class Members were not permitted to go off duty during their meal period.

30. As a condition of working for Too Faced Cosmetics, LLC, Plaintiff and other Makeup Artists were required to sign an “Independent Makeup Artist Agreement” that Too Faced Cosmetics, LLC unilaterally prepared (hereinafter the “IC Agreement’), under which they were made to acknowledge their status as independent contractors. A sample of the IC Agreement between Rose Provencio and Too Faced Cosmetics, LLC is attached hereto as Exhibit “A.”

31. The IC Agreement deceptively plays lip service to Makeup Artist’s ostensible independence and states that “the Company shall determine the work to be done by the Contractor, but the Contractor shall determine the legal means by which the Contractor accomplished the work specific by the Company.” In actual practice, Defendants significantly control all details of the work performed by the Makeup Artists, as discussed herein

32. Under the IC Agreement, Makeup Artists are required to assume Too Faced Cosmetics, LLC’s responsibilities to pay operational expenses, such as car-related expenses, telephone expenses, and makeup artist supply expenses.

33. The IC Agreement requires Makeup Artists to assume all risks associated with their job duties and, specifically, to indemnify and hold harmless the company, its directors and officers, and its agents and employees from (1) from any and all claims, causes of action, losses, damage, liabilities, costs and expenses, including attorney fees, arising from breach of the representations

7 set forth in the IC Agreement, as well as (2) “any and all claims, causes of action, losses, damage, liabilities, costs and expenses, including attorney fees, arising from the death of or injury to any person, from damage to or destruction of property, or from breach of the warranties.... arising from the provision of services by Contractor, its agents or employees.”

34, The IC Agreement purported to allow Too Faced Cosmetics, LLC to assignobligations under the IC Agreement without the need for the Makeup Artist’s consent. In contrast, the IC Agreement required the Company’s consent before a Makeup Artist assigned any rights or duties under the IC Agreement.

35. The IC Agreement purported to require Makeup Artists to furnish “furnish the Company with current certificates of coverage of the Contractor, and proof of payment by the Contractor, for workers compensation insurance, general liability insurance, motor vehicle insurance and such other insurance as the Company may require from time to time. The Contractor shall maintain all such insurance coverage and shall furnish the Company with certificates of renewal coverage and proofs of premium payments.”

36. Defendants unilaterally set Makeup Artists’s pay rates, which are not negotiable as would be expected in a true independent contractor relationship. Plaintiff was

37. Makeup Artists who work for Too Faced Cosmetics, LLC are integrated into Defendants’ regular business operations and are essential to Defendants’ operations.

38. Defendants impose various policies, instructions, and work rules on Makeup Artists, disobedience of which would result in workers discipline, including warnings, suspension, and up to termination. Defendants maintain the right to terminate and can easily terminate Makeup Artists at any time for seemingly insignificant grounds.

39. In reality, Defendants control the means, manner, and methods by which the Makeup Artists perform their work for Defendants. Nevertheless, Defendants have willfully misclassified Makeup Artists as independent contractors, in order to minimize costs and unduly maximize profits at the expense of its workforce.

8 40. Through their unlawful misclassification scheme, Defendants avoid the costs of providing workers compensation insurance to Makeup Artists, denying such employees much needed protection in the event of work-related injuries or illness. The scheme also allows Defendants to deprive Plaintiff and other Makeup Artists of fundamental rights, such as the right to minimum wages, the right to mandated meal periods, the right to mandated rest breaks, the right to premium wages for missed meal periods and rest breaks, the right to accurate itemized wage statements, the right to prompt payment of full wages within the time limits designated by the law, the right to paid sick leave and other types of family and medical leave, and the right to workers compensation insurance guaranteed to employees under various provisions of the California Labor Code and the applicable Wage Order.

41. In fact, Defendants did not implement and have no policy or practice at all for providing off-duty meal and rest breaks to Makeup Artists, as required by law. Accordingly, Defendants did not implement, nor have in place, any policy or practice at all of paying premium wages to Makeup Artists for meal or rest break violations. Defendants uniformly engaged in these violations of law against Makeup Artists for the entire duration of the applicable class period.

42. During her employment, Representative Plaintiff routinely worked for Defendant without being provided with a timely thirty-minute uninterrupted, duty-free meal period during meal period eligible shifts, and without being paid one (1) hour of pay at the employee’s regular rate of compensation for each work day that the meal period was not provided. Representative Plaintiff alleges, on information and belief, that these meal break violations were the result of policies and procedures that applied uniformly to all Makeup Artists during the Class Period.

43. During her employment, Representative Plaintiff routinely worked for Defendant without being provided with a timely uninterrupted, duty-free ten-minute rest period every four hours during eligible shifts, and without being paid one (1) hour of pay at the employee’s regular

rate of compensation for each work day that the rest period was not provided. Representative Plaintiff alleges, on information and belief, that these rest period violations were the result of policies and procedures that applied uniformly to all Makeup Artists during the Class Period.

44, Representative Plaintiff often worked more than 8 hours in one single day. Defendant’s illegal time-shaving and security check policies, its failure to provide uninterrupted meal and rest periods created a willful, systemic failure to compensate Makeup Artists for all hours worked during their shifts. Representative Plaintiff alleges, on information and belief, that Defendants routinely and systematically failed to pay the legally required minimum wage for all hours worked and the associated overtime premiums for hours worked in excess of 8 hours per day and 40 hours per week.

45. Representative Plaintiff did not receive wage statements reflected the actual number of hours worked and the lawful wage due thereon.

CLASS ACTION ALLEGATIONS

46. Representative Plaintiff suit as a class action on behalf of herself and of the class of individuals that are defined as all individuals who (1) signed an “Independent Makeup Artist Agreement” with Too Faced Cosmetics, LLC in California at any time during the Class Period, (2) performed work for Too Faced Cosmetics, LLC as a Makeup Artist in California during the Class Period, and (3) were classified by Defendants as an independent contractor instead of an employee (hereinafter referred to as “Class Members™). In addition, Plaintiff may seek to certify one or more subclasses, including a subclass of all Class Members who are no longer employed by Defendants. Plaintiff further reserves the right to amend or modify the class description or establish further subclasses as appropriate.

47. Defendant and its officers and directors are explicitly excluded from the Class defined in the preceding paragraph.

48. The Representative Plaintiff brings this action on behalf of herself and as a class action, pursuant to California Code of Civil Procedure § 382, on behalf of all persons similarly situated and proximately damaged by the unlawful conduct described therein.

10 49. This action has been brought and may be properly maintained as a class action pursuant to California Code of Civil Procedure § 382 because there is a well-defined community of interest in the litigation and the proposed class is easily ascertainable as follows:

50. Numerosity: A class action is the only available method for the fair and efficient adjudication of this controversy. The Class Members are so numerous that joinder of all members 1s impractical, if not impossible, insofar as Representative Plaintiff is informed and believes and, on that basis, alleges that there are sufficient Class Members to meet the numerosity requirement. Membership in the Class will be determined upon analysis of employee and payroll, among other records maintained by Defendants.

51. Commonality: The Representative Plaintiff and the Class Members share a community of interests, in part, since there are numerous common questions and issues of law and fact which predominate over any individualized questions concerning individual members thereby making a class action superior to other available methods for the fair and efficient adjudication of the controversy. Consequently, class certification 1s proper under Section 382. These common questions include, but are not limited to:

a. Whether Defendants intentionally misclassified the Class Members as “independent contractors” instead of “employees”;

b. Whether Defendants required Class Members to sign “Independent Contractor Agreements” that DEFENDANT knew were unlawful;

c. The nature and extent of Defendant’s supervision and control over the Class Members;

d. The nature and extent of the duties and responsibilities Defendants imposed upon the Class Members;

e. Whether Defendant failed to indemnify the Class Members’ expenses,

including expenses relating to business use of their personal vehicles and cell phone expenses, incurred by the Class Members relating to their work

for Defendants;

-

Whether Defendants failed to provide and maintain accurate itemized wage statements for the Class Members;

Whether Defendants failed to provide meal periods to the Class Members; Whether Defendants failed to provide rest periods to the Class Members;

1. Whether Defendants failed to provide overtime wages to the Class

Members;

j. Whether Defendants failed to pay compensation to the Class Members for time spent in security inspections and for travel time;

k. Whether Defendants failed to keep and provide accurate records of Class

Members’ hours of work and wage statements;

l. Whether Defendants failed to pay timely wages to the Class Members during their employment;

m. Whether Class Members are entitled to “waiting time” penalties, pursuant

to California Labor Code section 203;

n. Whether DEFENDANT’S treatment of the Class Members violates Wage Order 5, the California Labor Code, the Civil Code, and/or the Business & Professions Code; and

0. Whether class-wide injunctive relief 1s an appropriate remedy by which to

prevent and/or halt the violations alleged herein from continuing. 52. Typicality: The Representative Plaintiff’s claims are typical of the proposed Class Members whom said Plaintiff seeks to represent. The Representative Plaintiff and Class Members sustained damages arising out of and caused by Defendant’s common course of conduct in

violation of the law, as alleged herein. 53. Superiority of a Class Action: Since the damages suffered by individual Class Members, while not inconsequential, may be relatively small, the expense and burden of individual litigation by each member makes or may make 1t impractical for Class Members to seek redress individually for the wrongful conduct alleged herein. Should separate actions be brought, or be required to be brought, by each individual Class Member, the resulting multiplicity of lawsuits would cause undue hardship and expense for the Court and the litigants. The prosecution of separate actions would also create a risk of inconsistent rulings which might be dispositive of the interests of other Class Members who are not parties to the adjudications and/or may substantially impede their ability to adequately protect their interests.

54, Adequacy of Representation: The Representative Plaintiff in this class action i1s an adequate representative of the Plaintiff Class in that the Representative Plaintiff’s claims are typical of those of the Plaintiff Class and the Representative Plaintiff has the same interest in the litigation of this case as the Class Members. The Representative Plaintiff is committed to vigorous prosecution of this case and has retained competent counsel who are experienced in conducting litigation of this nature. The Representative Plaintiff is not subject to any individual defenses unique from those conceivably applicable to Class Members as a whole. The Representative Plaintiff anticipates no management difficulties in this litigation.

CAUSES OF ACTION FIRST CAUSE OF ACTION

Unpaid Wages (Violation of California Wage Order and Cal. Lab. Code §§ 510, 1194, 1197, 1198)

55. Representative Plaintiff incorporates in this cause of action each and every

allegation of the preceding paragraphs with the same force and effect as though fully set forth

herein. 56. At all relevant times, Defendant was aware of, and were under a duty to comply with, the provisions of the California Labor Code including, but not limited to, California Labor Code Sections 510, 1194, 1198, 1771, and 1774.

57. California Labor Code § 510(a), in pertinent part, provides: “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.”

58. California Labor Code § 1194(a), in pertinent part, provides: “Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.”

59. Labor Code section 1194.2 entitles an employee receiving less than the minimum wage to recover liquidated damages in an amount equal to the unpaid minimum wages and interest thereon.

60. Labor Code § 1197 makes it unlawful to pay an employee less than the minimum wage, as established by the Industrial Welfare Commission, for each hour worked

61. California Labor Code § 1198, in pertinent part, provides: “The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order 1s unlawful.”

62. As a result of Defendants’ improper pay policy and/or practices, as described herein, Defendants failed to pay Plaintiffs and other Class Members any compensation at all for

hours worked, including but not limited to travel time, time spent communicating with the Company outside of their scheduled shift, and time spent in uncompensated security inspections, as described more fully herein.

63. Plaintiff is informed and believe, and based thereon allege, that Defendants’ failure to pay the minimum wage for each hour worked, as described herein, was done willfully.

64. Additionally, as a result of Defendants’ failure to pay Plaintiffs and other misclassified Makeup Artists the minimum wages for all hours worked, these workers were not timely paid all earned wages as required by Labor Code section 204.

65. During the Class Period, Representative Plaintiff and Class Members worked, on many occasions, in excess of 8 hours in a workday and/or 40 hours in a workweek. As such many of the unpaid hours described in this cause of action should have been paid at the Plaintiff and/or Class Members’ premium overtime rate of pay. The precise number of overtime hours will be proven at trial.

66. During the Class Period, Defendant refused and/or failed to compensate Representative Plaintiff and Class Members for all of the overtime wages earned, in violation of the applicable IWC Wage Order and provisions of the California Labor Code.

67. By refusing to compensate Representative Plaintiff and Class Members for all wages earned, Defendant violated those California Labor Code provisions cited herein as well as the applicable IWC Wage Order(s).

68. As a direct and proximate result of Defendant’s unlawful conduct, as set forth herein, Representative Plaintiff and the Class Members sustained damages, including for unpaid minimum wage and unpaid premium overtime wages, in an amount to be established at trial, and are entitled to recover attorneys’ fees and costs of suit.

Wherefore, the Representative Plaintiff prays for judgment as set forth below.

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SECOND CAUSE OF ACTION

Failure to Provide Meal Periods or Pay Wages for Missed Meal Periods (Violation of California Wage Orders and Cal. Lab. Code § 226.7, 512) 69. Representative Plaintiff re-alleges and incorporates each and every allegation of the preceding paragraphs with the same force and effect as though fully set forth herein.

70. As alleged herein, Defendant has maintained a policy and/or practice whereby

Representative Plaintiff and Class Members were and are misclassified as independent contractors. As such, Defendant has systematically failed and/or refused to provide Class Members, including Plaintiff, to take an uninterrupted, off-duty meal breaks of at least 30 consecutive minutes in duration for all shifts in excess of 5 hours, as guaranteed to them as

employees under California Labor Code Section 226.7 and 512, and Wage Order 7-2001.

71. Wage Order 7-2001, paragraph 11, requires an employer to pay an employee an additional hour of compensation for every shift in which said employee was not authorized or permitted to take a mandated a meal period. California Labor Code section 226.7, subdivision (b), likewise requires an employer to pay an employee an additional hour of compensation for every shift that a meal period mandated by the California Wage Orders 1s not provided.

72. At all relevant times herein, Defendant failed or refused to provide Representative

Plaintiff and Class with additional compensation for missed meal periods required by

California Labor Code Section 226.7 and 512, and Wage Order 7-2001.

73. Based on Defendant’s conduct, as alleged herein, Defendant is liable to the

Representative Plaintiff and Class Members for their unpaid premium wages for missed

meal periods, pursuant to California Labor Code Section 226.7 and 512, and Wage Order

7-2001.Wherefore, the Representative Plaintiff prays for judgment as set forth below.

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THIRD CAUSE OF ACTION

Failure to Authorize and Permit Rest Periods or Pay Wages for Missed Rest Periods (Cal. Lab. Code § 226.7) 74. Representative Plaintiff re-alleges and incorporates each and every allegation of the preceding paragraphs with the same force and effect as though fully set forth herein.

75. As alleged herein, Defendant has maintained a policy and/or practice whereby

Representative Plaintiff and Class Members were and are misclassified as independent contractors. As such, Defendant has systematically failed and/or refused to authorize or permit Class Members, including Plaintiff, to take an uninterrupted 10-mnute rest break for every 4 hours worked or major fraction thereof, as guaranteed to them as employees under California Labor

Code Section 226.7 and Wage Order 7-2001.

76. Wage Order 9-2011, paragraph 12, requires an employer to pay an employee an additional hour of compensation for every shift in which said employee was not authorized or permitted to take a mandated rest period. California Labor Code section 226.7, subdivision (b), likewise requires an employer to pay an employee an additional hour of compensation for every shift that a rest period mandated by the California Wage Orders is not provided.

77. At all relevant times herein, Defendant failed or refused to provide Representative

Plaintiff and Class with additional compensation for missed rest periods required

by California Labor Code Section 226.7 and Wage Order 7-2001.

78. Based on Defendant’s conduct, as alleged herein, Defendant is liable to the

Representative Plaintiff and Class Members for their unpaid premium wages for

missed rest periods, pursuant to California Labor Code Section 226.7 and Wage Order

7-2001.Wherefore, the Representative Plaintiff prays for judgment as set forth below.

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FOURTH CAUSE OF ACTION

Failure to Reimburse Business Expenses (Cal. Lab. Code § 2802)

79. Representative Plaintiff re-alleges and incorporates each and every allegation of the preceding paragraphs with the same force and effect as though fully set forth herein.

0. Pursuant to California Labor Code section 2802, Defendant is required to indemnify Representative Plaintiff and other Class Members for the expenses and losses incurred during the performance of their job duties. The purpose of this statute is to prevent employers from passing their operating expenses on to their employees. See Gattuso v. Harte-Hanks, Shoppers, Inc. (2007) 42 Cal.4th.554, 562.

81. In violation of Labor Code section 2802, Defendant required Representative Plaintiff and Class members to pay expenses for which they should have been reimbursed under the law including, but not limited to, costs incurred using their personal vehicles and personal cell phones for business purposes, costs associated with payroll taxes and insurance, and costs incurred purchasing “Too Faced” branded makeup, as alleged more fully herein.

82. Representative Plaintiff and Class Members seek to recover these expenses from Defendant, plus interest thereon, reasonable attorneys’ fees, and costs, in an amount to be proven at trial.

Wherefore, the Representative Plaintiff prays for judgment as set forth below.

FIFTH CAUSE OF ACTION

Failure to Provide Accurate Itemized Wage Statements (Cal. Lab. Code § 226)

83. Representative Plaintiff re-alleges and incorporates each and every allegation of the preceding paragraphs with the same force and effect as though fully set forth herein.

84, Section 226(a) of the California Labor Code requires Defendant to itemize in wage statements all deductions made from wages earned by Representative Plaintiff and Class

18 Members, and to accurately report total hours worked, and wages earned, by such employees. Defendant has knowingly and intentionally failed to comply with Labor Code 226(a) by not providing Class Members with accurate wage statements that included all of the required information.

85. By failing to keep adequate records, as required by Labor Code 226(a), Defendant has injured Representative Plaintiff and Class Members, and made it confusing and difficult to calculate the unpaid wages earned and expenditures not indemnified by Defendant (including wages, interest, and penalties thereon) due to Representative Plaintiff and Class Members.

86. Representative Plaintiff and Class Members seek to recover the statutory penalties provided by Labor Code section 226(a) for the wage statement violations committed by Defendant.

Wherefore, the Representative Plaintiff prays for judgment as set forth below.

SIXTH CAUSE OF ACTION

For Waiting Time Penalties (Cal. Lab. Code §§ 201, 202, 203)

87. Representative Plaintiff re-alleges and incorporates each and every allegation of the preceding paragraphs with the same force and effect as though fully set forth herein.

88. Sections 201-204 of the California Labor Code require employers to promptly pay all wages owing to an employee at the conclusion of employment.

9. Plaintiff and many of the proposed Class Members are no longer working for Defendant. These former employees were either discharged, quit, or otherwise terminated their employment with Defendant.

90. Defendant’s failure to pay Plaintiff and Class Members who are no longer working for Defendant all wages owing to these former employees, as alleged above, were willful.

91. Plaintiff and other Class Members no longer working for Defendant are therefore entitled to penalties against Defendant, in an amount to be proven at trial, pursuant to Labor Code

19 section 203, which provides that an employee’s wages shall continue as a penalty until paid, for a period of up to thirty days from the time they were due.

Wherefore, the Representative Plaintiff prays for judgment as set forth below.

SEVENTH CAUSE OF ACTION

Unfair Business Practices Under the Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200 ef seq.)

92. Representative Plaintiff re-alleges and incorporates each and every allegation of the preceding paragraphs with the same force and effect as though fully set forth herein.

93. California has an important public policy of protecting the welfare of employees, and thus provides for necessary meal and rest periods and that statutorily-guaranteed wages be paid for all hours worked and for missed meal and rest periods. See Cal. Lab. Code §§ 226.7, 512 & 1197. Defendant’s willful misclassification scheme, through which Makeup Artists are denied mandated meal and rest periods, premium wages for missed meal and rest periods, and the legally- mandated wages (including overtime wages) for all hours worked, has been, and continues to be, unfair, unlawful, and harmful to Representative Plaintiff and, the proposed Class Members, and the general public. Representative Plaintiff and Class Members seek to enforce important rights affecting the public interest within the meaning of Code of Civil Procedure section 1021.5.

94. A violation of California Business & Professions Code sections 17200 ef seq. may be predicated on the violation of any state or federal law. Defendant’s activities, as alleged herein, are violations of California law, and constitute unlawful business acts and practices in violation of California Business & Professions Code sections 17200 ef seq.

95. Representative Plaintiff and Class Members are low wage workers dependent on Defendant for their livelihood, and do not have the same bargaining advantage as their employer. Defendant’s misclassification of Representative Plaintiff and Class Members as independent contractors, when these Makeup Artists are truly employees subject to strict control by Defendant, 1s unlawful and unfair. By devising a subterfuge where Class Members are required to sign an IC

20 Agreement under which Class Members are labelled as independent contractors, Defendant 1s able to avoid its obligations to abide by the minimum employee-protection thresholds set by State, including provisions regarding mandated meal and rest periods, earned premium wages for missed meal and rest periods, guaranteed overtime wage compensation for hours worked, and prohibitions against forcing employees to incur costs arising from Defendant’s own business activities. Throughout the time relevant to this action, Defendant, as described herein, has failed and/or refused to abide by the minimum-employee protections that have long been set forth in California law.

96. Defendant’s misclassification scheme allows Defendant to strip Representative

Plaintiff and Class Members of their fundamental employment rights, such as the rights to overtime wages, mandated meal and rest periods, premium wages for missed meal and rest periods, itemized wage statements, and the prompt payment of full wages within time limits set by law, as provided under various provisions of the Labor Code and Wage Order 7-2001. Defendant also willfully deprived Representative Plaintiff and Class. Under their unlawful scheme, Defendant is further able to evade their other legal responsibilities as employers, and instead shift the burden of paying the costs of self-employment and unemployment taxes onto

Representative Plaintiff and Class Members.

97. With its unlawful scheme, Defendant 1s able to unjustly keep and appropriate for itself significant amounts of money that otherwise should have been paid to Class Members as wages. Defendant is also able to illegally pass on business operational costs, such as those incurred for use of their personal vehicles and personal cell phones for business purposes, in violation of Labor Code section 2802. To the extent that Defendant requires Class Members to waive the benefits of said statute, Defendant also violates Labor Code section 2804.

98. Defendant’s unfair business practices have reaped undue benefits and illegal profits, and unjustly enriched Defendant, at the expense of Representative Plaintiff, Class Members, and the public. Representative Plaintiff and Class Members have been personally

21 injured by Defendant’s unlawful business acts and practices, as alleged herein, including but not necessarily limited to the loss of money or property.

99. Pursuant to California Business & Professions Code sections 17200 et segq., Representative Plaintiff and Class Members currently working for Defendant, are entitled to preliminary and permanent injunctive relief enjoining Defendant from continuing to commit their illegal acts, and for an accounting for and restitution of the monies unlawfully withheld and retained by Defendant. Representative Plaintiff and Class Members are also entitled to disgorgement of illegally acquired profits during the Class Period. Representative Plaintiff and Class Members are also entitled to an award of attorneys’ fees and costs pursuant to the common fund doctrine, California Code of Civil Procedure section 1021.5 and other applicable laws.

Wherefore, the Representative Plaintiff prays for judgment as set forth below.

EIGHTH CAUSE OF ACTION

For Recovery of Civil Penalties Under the Labor Code Private Attorney General Act (Cal. Lab. Code §§ 2698 et seq.)

100. Representative Plaintiff re-alleges and incorporates each and every allegation of the preceding paragraphs with the same force and effect as though fully set forth herein.

101. As aresult of the acts alleged herein, Representative Plaintiff and Class Members, as aggrieved employees within the meaning of Labor Code section 2699, subdivision (c), on behalf of themselves and other current or former Makeup Artists of Defendant, seek the recovery of civil penalties against Defendant pursuant to California Labor Code sections 2698 et seq., for the following knowing and intentional violations of the California Labor Code:

a. For willfully misclassifying Makeup Artists, including Representative Plaintiff and Class Members, as independent contractors, and engaging in a pattern or practice of committing said unlawful acts, in violation of Labor

Code section 226.8; For failing to provide required meal periods to Representative Plaintiff and

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Class Members in violation of Labor Code sections 226.7 and 512, and paragraph 11 of Wage Order 7-2001;

For failing to pay Representative Plaintiff and Class Members the

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additional hour of compensation earned for every shift that a mandated meal period was denied, in violation of Labor Code section 226.7(b) and paragraph 11 of Wage Order 7-2001;

For failing to authorize and/or permit required rest periods to

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Representative Plaintiff and Class Members in violation of Labor Code section 226.7 and paragraph 12 of Wage Order 7-2001;

For failing to pay Representative Plaintiff and Class Members the

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additional hour of compensation earned for every shift that a mandated rest period was denied, in violation of Labor Code section 226.7(b) and

paragraph 12 of Wage Order 7-2001;

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For failing to indemnify Representative Plaintiff and Class Members for expenditures incurred by such employees in direct consequence of their discharge of duties, including costs incurred for forced use of personal vehicles and personal cell phones for business purposes, in violation of Labor Code sections 2800, 2802, and 2804;

For failing to maintain for and provide to Representative Plaintiff and Class

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Members the accurate, itemized wage statements required by Labor Code

section 226. 102. The above-referenced civil penalties shall include the recovery of amounts specified in the applicable sections of the Labor Code, and if not specifically provided, those under

section 2699(f), and shall include those amounts sufficient to recover underpaid wages, including all necessary expenditures or losses incurred by Representative Plaintiff and Class Members pursuant to Labor Code sections 510, 226, 2802, and 2699, subdivisions (a) and (f).

103. Representative Plaintiff and Class Members reserve their rights to allege any additional and all other violations of the Labor Code and the Wage Order as may be disclosed in discovery and as a result of additional investigation that may be pursued in this action.

104. On or about October 23, 2018 Representative Plaintiff sent a letter by Certified Mail to Defendant Too Faced Cosmetics, LLC, and via substituted service through the Secretary State its agent for service of process, Tammy Storino, giving notice of Defendants’ Labor Code and Wage Order violations, as alleged herein. A copy of said PAGA letter was also submitted on the same date to the California Labor and Workplace Development Agency (“LWDA™), via the online filing system required by the PAGA statute.

105. The above referenced PAGA notice to Defendant and the LWDA gave notice of Representative Plaintiff’s intent to prosecute a private enforcement action to assess and recover civil penalties under PAGA in the event the LWDA, following review, declines to investigate

the asserted violations of the California Labor Code and Wage Order 7-2001.

106. Representative Plaintiff will file an amended complaint after the LWDA has been afforded the opportunity to consider Plaintiff’s notice of Defendant’s Labor Code violations, and of Plaintiff’s intent to prosecute a private enforcement action for civil penalties under PAGA. If the LWDA declines to investigate, Plaintiff will prosecute this PAGA cause of action against Defendants, pursuant to California Labor Code section 2699.3, subdivision (a)(2)(A).

107. Representative Plaintiff was compelled to retain the services of counsel to file this court action to protect their interests and those of Defendant’s other former and current Makeup Artists, and to assess and collect the civil penalties owed by Defendant. Representative Plaintiff has thereby incurred attorneys’ fees and costs, which she 1s entitled to recover under Labor Code section 2699.

Wherefore, the Representative Plaintiff prays for judgment as set forth below.

PRAYER FOR RELIEF

WHEREFORE, Representative Plaintiff and Class Members pray for damages for

judgment against DEFENDANT as follows:

1. That the Court declare, adjudge, and decree that this action is a proper class action and certify the proposed class and/or any appropriate subclasses under California Code of Civil Procedure § 382;

2. That the Court declare, adjudge, and decree that Defendant violated the provisions of the California Labor Code and the applicable California Industrial Welfare Commission Wage Order(s) as to the Representative Plaintiff and Class Members as alleged herein;

3. That the Court make an award to the Plaintiff Class of unpaid minimum, overtime, and double-time wage compensation (pursuant to California Labor Code §§ 510, 1194);

4. That the Court make an award to the Plaintiff Class of one hour of pay at each employee’s regular rate of compensation for each workday on which a meal period(s) was not provided (pursuant to California Labor Code § 226.7);

5. That the Court make an award to the Plaintiff Class of “waiting time” penalties (pursuant to California Labor Code § 203);

6. That the Court make an award to the Plaintiff Class for failure to provide accurate wage statements (pursuant to Labor Code § 226);

7. That the Court order Defendant to pay restitution to the Plaintiff Class, pursuant to California Business and Professions Code §§ 17200-17208;

8. That the Court enjoin Defendants, ordering them to cease and desist from unlawful activities in violation of California Business and Professions Code § 17200, ef seq.;

9. That the Court order Defendants to pay penalties pursuant to the Private Attorneys General Act, California Labor Code §§ 2698-2699, et seq. including penalties for willful and intentionally misclassifying its Makeup Artists as independent contractors pursuant to Labor Code Section 226.8.

10. For all other Orders, findings and determinations identified and sought in this Complaint;

11. For interest on the amount of any and all economic losses, at the prevailing legal rate;

12. For reasonable attorneys’ fees, pursuant to California Labor Code §§ 218.5, 1194, 2699 et. seq. and/or California Code of Civil Procedure §1021.5; and;

13. For costs of suit and any and all such other relief as the Court deems just and

proper.

Dated: October 23, 2018 VELTON ZEGELMAN, P.C.

DEMAND FOR JURY TRIAL

Plaintiff hereby demands trial of this matter by jury to the extent authorized by law.

Dated: October 23, 2018 VELTON ZEGELMAN, P.C.

Kevin R. Allen, Esq. Attorneys for Plaintiffs and the Plaintiff Classpage 28 can't be parsed

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