Tuifua v. FS Palo Alto Employment, Inc.

Complaint Information

E-FILED

1/19/2018 8:38 AM Clerk of Court

WORKMAN LAW FIRM, PC Superior Court of CA, Robin G. Workman (Bar #145810) County of Santa Clara robin@workmanlawpc.com 18CV322009

rachel@workmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028

Attorneys for Plaintiff, Tevita Tuifua on behalf of himself and all other similarly situated

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA

. 18CV322009

TEVITA TUIFUA, on behalf of himself, and all

others similarly situated, CLASS ACTION COMPLAINT Plaintiff, Unlimited Civil Case The Amount Demanded Exceeds VS. $25,000

FS PALO ALTO EMPLOYMENT, INC., and Does 1 through 50, inclusive,

Defendants.

Plaintiff Tevita Tuifua (“Plaintiff”), by his attorneys, brings this action on behalf of himself and all other similarly situated and the general public, and on information and belief, except those allegations that pertain to the named Plaintiff and his attorneys (which are alleged on personal knowledge), hereby alleges as follows:

1. This class action arises from ongoing wrongful conduct by Defendant FS Palo Alto Employment, Inc. (“FS”) ("Defendant"), by its unlawful failure to pay employees compensation for work without meal and rest periods in violation of California Labor Code sections 512 and all hours worked and to timely pay all wages due in violation of California Labor Code section 204; and, failure to provide accurate itemized wage statements to Plaintiff and other similarly situated aggrieved employees containing information as required by California Labor Code sections 226, 226(a)(7), and 226.7. As his employer never paid the additional hour of compensation when employees were not provided meal and rest breaks as required by section 226.7, the wage statements did not reflect all gross or net wages earned. The wage statements further do not comply with section 226(a)(7), in that the employer neither lists the last four digits of the employees’ social security number nor an employee identification number on the wage statements. Unlike the other claims set forth herein that pertain solely to security guards such as Plaintiff, Plaintiff believes that his employer does not provide this information on wage statements for any of the employees, and Plaintiff seeks to represent these similarly situated aggrieved employees as well.

2 This action seeks relief for unremedied violations of California law, including, inter alia; damages, reimbursements, restitution, penalties, interest and attorneys’ fees, as appropriate, to members of the proposed class, aggrieved employees, and to victims of the practices at issuc, who have not received compensation for labor provided without meal and rest periods, and who have failed to receive accurate wage statements. Plaintiff is informed and believes that the damages, back wages, expense reimbursements, restitution, penalties, interest and attorneys’ fees do not exceed an aggregate of $4,999,999.99 and that the pro-rata value of Plaintiff’s individual claims, including damages, back wages, expense reimbursements, restitution, interest, attorneys’ fees, and penalties, does not exceed $74,999.99.

3. FS Palo Alto Employment, Inc. is, and at all relevant times was, doing business in the State of California and is an employer under applicable Industrial Welfare Commission Orders.

4, The names and capacities of Defendant sued herein under California Code of Civil Procedure section 474 as Does 1 through 50, inclusive, are presently not known to Plaintiff, who therefore sues these Defendants by such fictitious names. Plaintiff will seek to amend this Each of the fictitiously named Defendants is responsible in some manner for the conduct alleged herein and for the injuries suffered by Plaintiff, the members of the Class and the general public. 5. Plaintiff, on behalf of himself individually and on behalf of proposed class members and aggrieved employees, hercby alleges that Defendant failed to comply with its duty

to provide Plaintiff, and those similarly situated employees, with either meal breaks or rest breaks; failed to pay Plaintiff, or those similarly situated employees, with the additional hour of compensation as required by Labor Code section 226.7; failed to pay Plaintifl, or those similarly situated employees, with all wages due as required by Labor Code section 204; and, failed to provide accurate itemized statements to Plaintiff and other similarly situated aggrieved employees containing information as required by California L.abor Code sections 226, 226(a)(7), and 226.7. Plaintiff is an adequate and proper class representative. Plaintiff brings this action in his individual capacity, on behalf of all others similarly situated, as an aggrieved employee, and pursuant to California Business & Professions Code section 17204, on behalf of the general public.

6. Defendant employed Plaintiff as an hourly-paid security guard in California, within the four years of the filing of this complaint. While employed as an hourly-paid security guard by Defendant, Plaintiff, and other similarly situated security guards were not allowed to leave the premises for their lunch breaks. In addition, although the security guards are required to clock out for their lunch breaks, they are constantly interrupted with calls. Even though the security guards are interrupted, the time clock will not let them clock back in during what is scheduled for their lunch breaks, i.e., will not let them clock back in during the 30 minute period. As a result, the security guards do not receive 30 minute uninterrupted meal breaks. The records always reflect that 30 minute uninterrupted lunch breaks were taken, even when they were not. For the same reasons, security guards do not receive uninterrupted rest breaks. Security guards always have to wear radios, when they are on either break, and are constantly interrupted. As a result, they do not receive uninterrupted 10 minute rest breaks. When the security guards did not receive uninterrupted meal or rest breaks, Four Seasons never paid Plaintiff, or those similarly 226.7. As aresult, Defendant did not pay Plaintiff, or those similarly situated employees, with all wages due as required by Labor Code section 204. Plaintiff also alleges that Defendant failed to provide accurate itemized statements to Plaintiff and other similarly situated aggrieved employees containing information as required by California Labor Code sections 226. As Defendant never paid the additional hour of compensation when security guards were not provided meal and rest breaks as required by section 226.7, the wage statements did not reflect all gross or net wages earned. In addition, Defendant does not comply with section 226(a)(7) in that Defendant neither lists the last four digits of the employees’ social security number nor an employee identification number on the wage statements. Unlike the other claims set forth herein that pertain solely to security guards such as Plaintiff, Plaintiff believes that Defendant does not provide this information [or any of the employees, and Plaintiff seeks to represent these aggrieved employees as well.,

7. At all times mentioned in the causes of action alleged herein, cach and every Defendant was an agent and/or employee of each and every other Defendant. In doing the things alleged in the causes of action stated herein, each and every Defendant was acting within the course and scope of this agency or employment and was acting with the consent, permission and authorization of each of the remaining Defendants. All actions of each Defendant as alleged in the causes of action stated herein were ratified and approved by every other Defendant or their officers or managing agents.

8. This action seeks relief on behalf of two subclasses of persons in the employ of Defendant in California within four years preceding the filing of the action to the present comprised of the following employees:

a. Subclass A: Those persons employed by Defendant as non-exempt security guards; and, b. Subclass B: Those persons to whom Defendant issued wage statements.

9. The proposed subclasses are sufficiently numerous, consisting of more than 30 joinder of all proposed class members in one action is impracticable, and the disposition of whose

claims in a class action will provide substantial benefits to both the parties and the Court.

10. There is a well-defined community of interest in the questions of law and fact

involved affecting the parties to be represented. The questions of law and fact common to the

proposed subclasses predominate over questions that may affect individual class members,

including but not limited to the following:

a.

Whether Defendant implemented and engaged in a systematic practice whereby it unlawfully failed to provide meal periods to security guards as required by law and failed to pay employees compensation for the lack of meal periods;

Whether Defendant implemented and engaged in a systematic practice whereby it unlawfully failed to provide rest periods to security guards as required by law and failed to pay employees compensation for the lack of rest periods;

Whether Defendant implemented and engaged in a systematic practice whereby it failed to provide accurate itemized wage statements to security guards;

Whether Defendant implemented and engaged in a systematic practice whereby it did not comply with California Labor Code section 226(a)(7) in that the Defendant failed to provide wage statements to employees containing the last four digits of the employees’ social security number or an employee identification number on the wage statements; and,

Whether the systematic acts and practices of Defendant as alleged herein violated, inter alia, applicable provisions of the California Labor Code, including but not limited to sections 201, 202, 203, 204, 226, 226.7, 512, 1174, and 2698, et seq., applicable Industrial Welfare Commission Orders,

and California Business & Professions Code section 17200, et seq.

11. Because Plaintiff was routinely required to work without rest and/or meal periods,

COMPLAINT

SECOND CAUSE OF ACTION

(Violation Of California Labor Code Sections 226) Subclasses A & B

18. Plaintiff and the members of the proposed subclasses incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth heréein.

19. During the relevant time period, Defendant failed to provide accurate itemized statements to Plaintiff and other similarly situated employees containing information as required by California Labor Code sections 226, 226(a)(7) and 226.7. This failure caused Plaintiff and these similarly situated employees to suffer injury as defined by section 226(e)(2)(B)(1) & (iii).

20. When the security guards did not receive uninterrupted meal or rest breaks, Defendant never paid Plaintiff, or other members of subclass A, with the additional hour of compensation as required by Labor Code section 226.7. As a result, the Defendant did not pay Plaintiff, or those similarly situated employees, with all wages due as required by Labor Code section 204. As such, Defendant failed to list all gross and/or net wages on wage statements.

21. In addition, Defendant does not comply with section 226(a)(7) in that Defendant neither lists the last four digits of the social security number or an employee identification number on the wage statements of those employees in proposed subclass B.

22. Asaresult of Defendant’s failure, Plaintiff and the members of the proposed subclasses are entitled to recover the damages and penalties set forth in California Labor Code sections 226(e)(1) and 226.3.

23. Plaintiff and the members of the proposed subclasses are therefore entitled to the relief requested below.,

THIRD CAUSE OF ACTION

(Unlawful, Unfair And Fraudulent Business Practices Pursuant To Business & Professions Code Section 17200, et seq.) paragraphs of this Complaint as if fully set forth herein.

25. Business & Professions Code section 17200, et seq., prohibits acts of unfair competition, defined as an “unlawful, unfair, or fraudulent business act or practice.”

26. The policies, acts and practices heretofore described were and are unlawful business acts or practices because Defendant’s failure to provide meal periods, failure to pay compensation for work without meal periods, and failure to provide accurate itemized wage statements, violate applicable Labor Code sections, including but not limited to Labor Code sections 201, 202, 203, 204, 226, 226.7, 512, and 1174, applicable Industrial Welfare Commission Wage Orders, the Labor Code Private Attorneys General Act of 2004, Labor Code section 2698 et seq., and other provisions of California common and/or statutory law. Plaintiff reserves the right to allege additional statutory and common law violations by Defendant. Such conduct 1s ongoing to this date.

27. Further, the policies, acts or practices described herein were and are an unfair business act or practice because any justifications for Defendant’s illegal and wrongful conduct were and are vastly outweighed by the harm such conduct caused to Plaintiff, proposed class members, aggrieved employees, and the members of the general public. Such conduct is ongoing to this date.

28. As aresult of its unlawful and/or unfair and/or fraudulent acts, Defendant reaps and continues to reap unfair benefits and illegal profits at the expense of Plaintiff and proposed class members. Defendant should be made to disgorge ill-gotten gains and provide restitution to class members and Plaintiff for the wrongfully withheld wages pursuant to Business and Professions Code section 17203.

FOURTH CAUSE OF ACTION

(Labor Code Private Attorneys General Act of 2004: Labor Code Sec. 2698)

30. Plaintiff repeats and re-alleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein.

31. The policies, acts and practices heretofore described were and are unlawful because Defendant’s failure to provide employees rest and meal breaks; failure to pay employees compensation for work without meal and rest periods; failure to timely pay employees for all hours worked and to timely pay all wages due; and, failure to provide accurate itemized wage statements to Plaintiff and other similarly situated aggrieved employees violates applicable Labor Code sections and gives rise to statutory and civil penalties as a result of such conduct, including but not limited to penalties as provided by Labor Code sections 201, 202, 203, 204, 226, 226.7, 2698, 2699(1), and 2699.5, and applicable Industrial Welfare Commission Wage Orders. Plaintiff, as an aggrieved employee, hereby seeks recovery of civil penalties as prescribed by the Labor Code Private Attorney General Act of 2004 on behalf of himself and other current and former employees of Defendant against whom one or more of the violations of the Labor Code was committed.

32. On August 31, 2017, and October 13, 2017, Plaintiff gave written notice to the California Labor and Workforce Development Agency by online submission through their website and by certified mail to FS Palo alto Employment, Inc. of Labor Code violations as prescribed by California Labor Code section 2699.3. Plaintiff has not received written notification by the LWDA of an intention to investigate the allegations set forth in Plaintiff’s August 31, 2017, and October 13, 2017, letters or written notice of cure by December 18, 2017, as prescribed by California Labor Code section 2699.3.

PRAYER FOR RELIEF

WHEREFORE Plaintiff prays for judgment and relief as follows:

1. An order certifying that the action may be maintained as a class action;

2. Compensatory and statutory damages, penalties and restitution, as appropriate and available under each cause of action, in an amount to be proven at trial based on, inter alia, the 3. Reasonable attorneys’ fees pursuant to California Labor Code sections 218.5, 226, and 2698, et seq.;

5. Costs of this suit;

6 Pre- and post-judgment interest; and

7. Such other and further relief as the Court deems just and proper.

8 Plaintiff is informed and believes that the damages, back wages, restitution, value of injunctive relief sought, penalties, interest and attorneys’ fees do not exceed an aggregate of $4.,999,999.99 and that the pro-rata value of Plaintiff’s individual claims, including damages, back wages, restitution, injunctive relief, interest, attorneys’ fees, and penalties, does not exceed $74,999.99,

JURY DEMAND

Plaintiff hereby demands a trial by jury.

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Date: January 18, 2018 WORKMAN LAW FI ]

By: