EDWARD M. CHEN, District Judge.
Plaintiffs Edgar Viceral and David Krueger, on behalf of themselves and all others similarly situated, ("Plaintiffs") and Defendant Mistras Group, Inc. ("Defendant") hereby respectfully submit this Stipulation to Amend the Complaint to (1) add David Krueger as a Named Plaintiff; (2) add Schneider Wallace Cottrell Konecky Wotkyns LLP as Class Counsel; and (3) add the claims asserted in the Krueger action, all of which shall relate back to the date of filing the original complaint.
WHEREAS Plaintiff Viceral filed this action against Defendant on April 13, 2015, in the Superior Court of California, San Francisco County as Edgar Viceral, et al. v. Mistras Group, Inc., et al., No. CGC-15-545291. (Ca. Super. Ct., San Francisco filed April 13, 2015). Viceral has been filed as a collective action under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., ("FLSA") and as a class action, in which Viceral alleges various violations of the California Labor Code, Specifically, he alleges that it is a proposed class and collective action challeng[ing] systematic illegal practices by Defendant wherein they willfully require employees to work overtime by requiring that employees take online training courses in addition to their regular work schedules but refuse to pay them for that time." Additionally, Viceral alleges that: "Defendant violated California law when they: (1) failed to pay proper overtime pay to the California Class; (2) failed to provide and properly compensate the California Class for rest periods; (3) failed to furnish proper wage statements for the California Class; (4) failed to pay all wages owed to the Terminated California Sub-Class at the end of their employment; and (5) violated California's Unfair Business Practice Act, California Business & Professions Code section 17200, et seq." Plaintiff Viceral also seeks penalties under California's Private Attorney General Act, California Labor Code §§ 2698 et seq. ("PAGA"). The wage claim in Viceral stems from Mistras's alleged requirement that employees complete certain Internet-based training programs in addition to their day-to-day duties and its failure to compensate proposed class and collective members for the time spent participating in this mandatory on-line training.
WHEREAS Defendant removed the state court action to this federal district court on May 15, 2015. (ECF Docket No. 1.)
WHEREAS Defendant filed its Notice of Other Action or Proceeding on May 27, 2015, alerting the Court and Parties of a related action: David Krueger, on behalf of himself and all others similarly situated v. Mistras Group, Inc., a Delaware corporation, and DOES 1 through 100, Case No. 2:15-cv-01069 (E.D. Cal. Apr. 10, 2015) proceeding before the Honorable Morrison C. England, Jr. in the United States District Court, Eastern District of California ("Krueger"). (ECF Docket No. 4.) Krueger was filed on April 10, 2015 in the Superior Court of California, County of Kern. (Krueger ECF Docket No. 1-2.) Krueger is a class action under Federal Rules of Civil Procedure Rule 23 in which Krueger alleges various violations of the California Labor Code. Specifically, Krueger focuses on Mistras's numerous alleged illegal wage and hour policies including Mistras's alleged California-wide illegal policy of failing to pay its non-exempt hourly employees for all time worked, including time they spend in Mistras' control traveling to and from customer worksites and while performing required training. Krueger alleges claims for: (1) failure to authorize and permit and/or make available meal periods; (2) failure to pay for all hours worked; (3) failure to pay overtime wages; (4) failure to provide accurate wage statements; (5) waiting time penalties; (6) unlawful business practices; and (7) penalties pursuant to § 2699(a), (e) of the PAGA. Plaintiff Krueger alleges that Mistras required the hourly workers to regularly work eight hours or more a day (including off-the-clock, overtime work, and driving time) and that Mistras failed to pay them accordingly. He also alleges that the workers were denied compliant meal periods. Mistras also allegedly failed to provide class members with itemized wage statements that reflect the actual hours worked and the amount of wages (including overtime) to which class members are entitled. In addition. Plaintiff Krueger contends that Mistras failed to pay all amounts owed following the workers' separation or termination.
WHEREAS Defendant also filed a Notice of Related Case on May 27, 2015 in the Krueger action, alerting the Court and Parties in that matter of the Viceral action. (Krueger ECF Docket No. 3.)
WHEREAS following the filing of these Notices, the Parties in both actions met and conferred on numerous occasions to address the relationship and possible coordination of the matters. The Parties agreed that the parties and some of the substantive claims in this matter overlap with the parties and substantive claims in the Krueger case, and that coordination of the two matters before a single Court is appropriate.
WHEREAS the Parties agreed that Krueger will be combined with Viceral before the Northern District of California by way of filing a consolidated amended complaint in Viceral and adding the Krueger parties, counsel, and claims, all of which shall relate back to the date of filing the original complaint. The Krueger Plaintiffs requested dismissal of the action before the Eastern District way of a stipulation agreed to by all Parties in both actions.
WHEREAS, on September 9, 2015, the Krueger Court granted the Krueger parties' stipulated request for dismissal and dismissed the case. (Krueger ECF Docket No. 17.)
WHEREAS Plaintiffs prepared a Consolidated Amended Complaint to be filed in Viceral, adding the Krueger parties and claims, and circulated it to Defendant for its review on October 5, 2015.
WHEREAS the Parties have conferred regarding Plaintiffs' proposed Consolidated Amended Complaint. Plaintiffs have agreed to limit the Class and Collective definitions to those non-exempt hourly employees working in the positions of examiners and technicians. This limitation is made without prejudice to Plaintiffs to later amend the definitions beyond this scope. Following its review of the proposed Consolidated Amended Complaint, Defendant provided Plaintiffs with its written consent permitting Plaintiffs to file it.
WHEREAS Defendant hereby gives its written consent under Federal Rule of Civil Procedure 15(a)(2) to Plaintiffs to file the Consolidated Amended Complaint.
WHEREAS Plaintiffs now present the Court with the Consolidated Amended Complaint.
WHEREAS Plaintiffs' proposed Consolidated Amended Complaint is submitted herewith as Exhibit 1.
WHEREAS the Parties agree that no additional service of the Consolidated Amended Complaint is required upon this Court's approval of the stipulation to amend the Complaint.
WHEREAS the Parties have agreed that Defendant's response to the Consolidated Amended Complaint will be due to be filed thirty (30) days from the Court's approval of this Stipulation.
AND WHEREFORE the Parties stipulate and agree that:
Plaintiffs may file the Consolidated First Amended Complaint, submitted herewith as Exhibit 1, which will be deemed filed and served as of the date of entry of the Order Granting Stipulation To Amend Complaint;
The Consolidated First Amended Complaint will be the operative pleading upon the date entry of the Court's order approving this stipulation;
Defendant's response to the Consolidated Amended Complaint will be filed thirty (30) days from the Court's approval of this Stipulation.
A Proposed Order is included below to this stipulation for the Court's signature.
Pursuant to the Parties' Stipulation to Amend the Complaint, and without waiver or limitation of any of the Parties' rights, claims, remedies or defenses in connection with this action, the Court finds good cause and approves the requested stipulation.
Plaintiffs may file the Consolidated First Amended Complaint, submitted herewith as Exhibit 1, which will be deemed filed and served as of the date of entry of this Order Granting Stipulation To Amend Complaint. The Consolidated First Amended Complaint (1) adds David Krueger as a Named Plaintiff; (2) adds Schneider Wallace Cottrell Konecky Wotkyns LLP as Class Counsel; and (3) adds the claims asserted in the Krueger action, all of which shall relate back to the date of filing the original complaint.
Defendant's response to the Consolidated Amended Complaint will be due to be filed thirty (30) days from the Court's approval of this Stipulation.
Plaintiffs Edgar Viceral ("Viceral") and David Krueger ("Krueger") (collectively "Plaintiffs") on behalf of themselves and all others similarly situated, hereby submit their Consolidated First Amended Class Action Complaint against Defendants Mistras Group, Inc., and DOES 1-100 (collectively "Defendants" or "Mistras") on behalf of themselves and all other similarly situated individuals employed by Defendants as non-exempt hourly examiners and technicians, for (1) violations of the California Labor Code, the California Business and Professions Code, and the applicable Wage Order(s) issued by the California Industrial Welfare Commission (hereinafter, the "IWC Wage Orders") including failure to pay all wages earned, failure to properly pay all overtime wages, failure to provide legally compliant meal and rest periods and corresponding premium pay, failure to provide accurate wage statements, failure to pay all wages owed upon termination or quit; and (2) violations of the Fair Labor Standards Act ("FLSA") including failure to pay proper overtime.
1. Plaintiffs file this Consolidated First Amended Complaint to coordinate the following two actions: Edgar Viceral, et al. v. Mistras Group, Inc., et al. and David Krueger, on behalf of himself and all others similarly situated v. Mistras Group, Inc., a Delaware corporation, and DOES I through 100, Case No. 2:15-cv-01069 (E.D. Cal. Apr. 10, 2015) to (1) add David Krueger as a Named Plaintiff; (2) add Schneider Wallace Cottrell Konecky Wotkyns LLP as Class Counsel; and (3) add the claims asserted in the Krueger action, all of which relate back to the original date of filing of Edgar Viceral, et al. v. Mistras Group, Inc., et al.
2. This proposed Class and Collective action challenges Defendants' systemic illegal employment practices wherein they willfully require Plaintiffs and the other putative class and collective action members to work off-the-clock, including overtime in excess of 40 hours per week, but refuse to pay Plaintiffs and the other putative class and collective action members for that time under the FLSA. Additionally, Plaintiffs allege that Defendants have violated California law when they: (1) fail to pay the California Class for all hours worked, including minimum wages, wages at the agreed rate and overtime wages; (2) fail to provide, authorize, or permit the California Class to take compliant meal and rest breaks, while also refusing to pay premium pay for these missed breaks; (3) fail to furnish compliant wage statements to the California Class; and (4) fail to timely pay all wages owed to the California Class Members, who have ended their employment. These violations amount to violations of California's Unfair Business Practices Act, California Business and Professions Code §§ 17200, et seq.
3. The Acts complained of herein have occurred, are presently occurring, and are expected to continue occurring through the date of judgment in this matter.
4. Plaintiffs seek full compensation on behalf of themselves and all others similarly situated for all unpaid wages and monetary amounts owed, including but not limited to: unpaid wages for time worked, unpaid overtime, premium pay for missed meal and rest periods, waiting-time penalties, and penalties under the California Private Attorneys General Act ("PAGA"). Plaintiffs also seek declaratory relief, and restitution. Finally, Plaintiffs seek reasonable attorneys' fees and costs under the FLSA, the California Labor Code, and California Code of Civil Procedure § 1021.5.
5. The FLSA authorizes private rights of action to recover damages for violation of the FLSA's wage and hour provisions, 29 U.S.C. § 216(b). This Court has original federal question jurisdiction under 28 U.S.C. § 1331. This Court has supplemental jurisdiction over the California state law claims under 28 U.S.C. § 1367(a) because they are so related to this action that they form part of the same case or controversy.
6. Venue is in this district is proper pursuant to 28 U.S.C. § 1391(b). At all material times, Defendant has been actively conducting business in the State of California and within the geographic area encompassing the Northern District of the State of California.
7. At all times relevant to this Consolidated First Amended Complaint, Plaintiffs were residents of the State of California.
8. Plaintiff Edgar Viceral is an individual over the age of eighteen. Viceral was employed by Defendant Mistras as a non-exempt non-destructive examiner. Viceral worked for Defendants in the County of San Francisco, California during the Class and Collective periods.
9. With respect to the FLSA claims, Viceral has consented to join this action by filing a written Consent to Join form with his initial complaint on April 13, 2015. (ECF Docket No. 1.)
10. Plaintiff David Krueger is an individual over the age of eighteen. Krueger was employed by Mistras as a non-exempt hourly employee, as a Level II Technician, in Bakersfield, California from approximately May 1, 2014 through October 26, 2014.
11. With respect to the FLSA claims, Krueger has consented to join this action by filing a written Consent to Join form on October 2, 2015. (ECF Docket No. 27.)
12. Plaintiffs were responsible for inspecting the piping of Mistras's customers to identify and evaluate defects. Defendants assigned Plaintiffs to work at Defendant's client's worksites. Defendants scheduled Plaintiffs to work around eighty hours every two weeks and between ten and twelve hours per day.
13. Similar to Plaintiffs, the other putative class and collective action members are current and former non-exempt hourly employees in California and throughout the United States, who worked as examiners and technicians.
14. Plaintiffs arc informed and believe that Mistras is a Delaware corporation and is an international company providing non-destructive testing ("NDT")_services to test integrity of energy, industrial and public infrastructure. In 2003, Mistras acquired CONAM Inspection. Mistras's NDT division does business throughout the United States, with its global headquarters in Princeton, New Jersey. Mistras has approximately 5,000 employees in over 100 hundred offices worldwide.
15. Plaintiffs are informed, believe, and thereon allege that Defendants provide standard and innovative NDT, inspection, and engineering services for its customers. Defendants do business in California. Plaintiffs are further informed, believe, and allege that Defendants employ other non-exempt hourly employees throughout California.
16. Mistras is a "person" as defined in California Labor Code § 18 and California Business and Professions Code § 17201. Mistras is also an "employer" as that term is used in the California Labor Code, the IWC Wage Orders, and the FLSA,
17. Plaintiff Viceral filed this action against Defendants on April 13, 2015, in the Superior Court of California, San Francisco County as Edgar Viceral, et al. v. Mistras Group, Inc., el al., No. CGC-15-545291. (Ca. Super, Ct., San Francisco filed April 13, 2015).
18. Defendants removed the state court action to this federal district court on May 15, 2015.
19. Defendants filed its Notice of Other Action or Proceeding on May 27, 2015, alerting the Court and Parties of a related action: David Krueger, on behalf of himself and all others similarly situated v. Mistras Group, Inc., a Delaware corporation, and DOES 1 through 100, Case No. 2:15-cv-01069 (E.D. Cal. Apr. 10, 2015) proceeding before the Honorable Morrison C. England, Jr. in the United States District Court, Eastern District of California ("Krueger").
20. Krueger was filed on April 10, 2015 in the Superior Court of California, County of Kern.
21. Defendants also filed a Notice of Related Case on May 27, 2015 in the Krueger action, alerting the Court and Parties in that matter of the Viceral action.
22. Following the filing of these Notices, the Parties in both actions met and conferred on numerous occasions to address the relationship and possible coordination of the matters. The Parties agreed that the Parties and claims in this matter overlap with the Parties and substantive claims in the Krueger case, and that coordination of the two matters before a single Court is appropriate. Specifically, the Parties agreed that Krueger will be combined with Viceral before the Northern District of California by way of filing this Consolidated First Amended Complaint in Viceral and adding the Krueger parties, claims, and counsel. The Krueger Plaintiffs would request dismissal of the action before the Eastern District by way of a stipulation.
23. On September 9, 2015, the Krueger Court granted the Krueger parties' stipulated request for dismissal and dismissed the case.
24. Mistras is a global provider of technology-enabled asset protection solutions used to evaluate the structural integrity of critical energy, industrial, and public infrastructure. Mistras provides standard and innovative NDT, inspection, and engineering services for its customers.
25. Mistras employs examiner-technicians, and other similarly-titled employees, to conduct NDT for structural integrity of energy, industrial and public infrastructure, such as oil and gas refineries, buildings, bridges, rollercoasters at theme parks, and other infrastructure requiring monitoring. Plaintiffs and the other putative class and collective action members conduct the testing on behalf of Mistras. Plaintiffs and the other putative class and collective action members typically work on-site of the Mistras customers while providing testing/monitoring services.
26. Plaintiff Edgar Viceral was employed by Defendant Mistras as a non-exempt hourly non-destructive technician examiner from October 5, 2009, to November 6, 2014. Plaintiff worked at the Dow Chemical Plant in Pittsburgh, California, and was later transferred to the Valero Refinery in Martinez, California. As an examiner-technician, Plaintiff conducted NDT for structural integrity of energy, industrial and public infrastructure, such as oil and gas refineries, buildings, bridges, rollercoasters at theme parks, and other infrastructure requiring monitoring. Viceral was paid at a rate of $27.00 an hour. While employed at Mistras, Plaintiff was required to complete online training courses at home, for which he was not paid any compensation. The online training courses were mandatory, not compensated, and Defendant has record of how many online training courses he completed during his employment. In addition, Plaintiff Viceral was not provided proper meal breaks, and frequently worked through meal and rest breaks.
27. Plaintiff David Krueger was employed by Mistras as a non-exempt hourly employee, as a Level II Technician, in Bakersfield, California from approximately May 1, 2014 through October 26, 2014. As a technician, Plaintiff was responsible for inspecting the piping of Mistras's customers to identify and evaluate defects, Mistras paid Plaintiff at a rate of $23.00 per Hour. Defendant hired Plaintiff to work based out of its office at 21215 Kratzmeyer Road, Bakersfield, California 93314. Defendant then assigned Plaintiff to work as a technician at Defendant's client's worksites in Kern County. Defendant scheduled Plaintiff to work 80 hours every two weeks on an alternative schedule. During the first week, Defendant scheduled Plaintiff to work nine hours per day on Monday through Thursday and eight hours per day on Friday. During the second week, Defendant scheduled Plaintiff to work nine hours per day Monday through Thursday. Defendant actually required Plaintiff to typically work approximately twelve hours per day Monday through Thursday during both weeks and approximately ten hours per day on Fridays. Plaintiff Krueger regularly worked over 40 hours per week, typically between 48 and 60 hours per week.
28. Similar to Plaintiffs, putative class and collective members are current and former examiners and technicians of Defendant who work as non-exempt hourly employees in the United States, including in California. Plaintiffs are informed, believe, and thereon allege that examiners and technicians generally work four to five days per work, up to twelve hours per day and thus over 40 hours per week. Plaintiffs arc informed, believe, and thereon allege that the policies and practices of Defendant Mistras have at all times been similar for Plaintiffs and other examiners and technicians.
29. Plaintiffs allege that Mistras has willfully engaged and continues to engage in policies and practices of not compensating Plaintiffs and the other putative class and collective action members for all hours worked or spent in the control of Mistras.
30. Plaintiffs and the other putative class and collective action members frequently work in excess of eight hours a day, typically between ten and twelve hours per day, and thus over 40 hours per week or 80 hours every two weeks, but do not receive compensation for all hours worked in compliance with the FLSA and/or California law.
31. Under one illegal common policy and practice. Plaintiffs and the other putative class and collective action members and are not compensated for all hours worked.
32. Defendants require Plaintiffs the other putative class and collective action members to participate in mandatory online training in addition to their day-to-day work, which often exceeds 40 hours per week. The purpose of online training is to certify Plaintiff's and the other putative class and collective action members to perform more complex tasks, for which Mistras then charges clients increased hourly rates. Many of the courses are mandatory and Mistras requires and keeps electronic logs of all time spent by Plaintiffs and the other putative class and collective action members to complete the online courses.
33. Despite mandating online training in addition to day-to-day work, Defendants maintain a policy and practice, which Plaintiffs allege to be common across all facilities nationwide, whereby Plaintiffs and the other putative class and collective action members are not paid for any time spent participating in mandatory online training.
34. As a result, Plaintiffs and other putative class and collective action members are required by Defendant Mistras to engage in this online training prior to and after working at minimum 40 hours per week. The additional time that Plaintiffs and putative class and collective action members spend completing mandated online training is regular time and overtime that goes unrecorded and uncompensated by Defendant Mistras under the FLSA and California law.
35. The above failure to pay for all time worked, including regular and overtime wages, for mandatory online training time is systematic and applied to Plaintiff's and the other putative class and collective action members and continues to be so.
36. Plaintiffs are informed and believe, and further based in part on personal observations, that their employment experiences with Defendants were the same or similar to other putative class and collective action members.
37. In addition, Defendants require Plaintiffs and the other putative class and collective action members to perform other significant work off-the-clock, including but not limited to travel and overtime work, which goes unrecorded and unpaid by Mistras.
38. In particular, Mistras requires Plaintiffs and the other putative class and collective action members to meet at designated meeting places each day, sometimes as early as 5:30 a.m. to drop off their personal vehicles and receive directives for the day. At these designated meeting sites, Mistras's management provides Plaintiffs and the other putative class and collective action members, with their work instructions and directives for the day. Mistras supervisors inform Plaintiffs and the other putative class and collective action members, of the worksites to which they are assigned to work for the day. Mistras management also provides other instructions regarding the particular tasks to be completed for the day.
39. After dropping off their personal vehicles at these designated meeting places as instructed, Mistras requires Plaintiffs and the other putative class and collective action members, to board company vans or trucks to be transported to the worksites to which they arc assigned for the day. Mistras prohibits Plaintiffs and the other putative class and collective action members, from traveling in their own vehicles to worksites, in addition to owning the vehicles, Mistras also pays for the expenses related to the vehicles including, but not limited to, fuel expenses. At the end of each day, Mistras instructs Plaintiffs and the other putative class and collective action members to re-board the Mistras vans and trucks at the worksites and drive and return to Mistras's designated meeting places.
40. Mistras requires Plaintiffs and the other putative class and collective action members, to undertake these daily roundtrips to get to various worksites each day. Plaintiffs and the other putative class and collective action members are subject to Defendants' control during this time and suffered or permitted to work. Plaintiffs and the other putative class and collective action members, arc not permitted to travel to worksites on their own with their own transportation.
41. The worksites to which Defendants assign Plaintiffs and the other putative class and collective action members to work at each day could be located miles away from Mistras's designated meeting place, as example sometimes between forty to fifty miles. Employees' travel time to each of the worksites could be upwards of approximately one hour in each direction. This travel time adds approximately two hours of work time to employees' workdays. However, mistras instructs Plaintiffs and the other putative class and collective action members to only record the time they are working at the worksites as their time worked. Mistras excludes travel time to and from Mistras's designated meeting points to worksites from the calculation of time worked. As a result, Plaintiffs and the other putative class and collective action members do not record and arc not compensated for travel time.
42. By requiring Plaintiffs and the other putative class and collective action members to take Defendants' transportation to worksites, Defendants subject Plaintiffs and the other putative class and collective action members to their control by determining when, where, and how Plaintiffs and the other putative class and collective action members are to travel. Such travel time constitutes hours worked by Class and Collective Members and is compensable.
43. Ultimately, Defendant Mistras schedules Plaintiffs and putative class and collective action members to work up to five days per week, nine hours per day. In actuality, Defendant Mistras requires Plaintiffs and putative class and collective action members to work upwards of twelve hours per day, five days per week, thus well in excess of 40 hours of week. However, Mistras instructs Plaintiffs and putative class and collective actions members not to record all time worked, including but not limited to that which is in excess of eight hours per day and 40 hours per week. As a result, Plaintiffs' and putative class and collective action members' regular time and overtime goes unrecorded and uncompensated under the FLSA and California law.
44. Plaintiffs are also informed, believe, and thereon allege that Mistras improperly purports to adopt and implement alternative workweek schedules to avoid properly compensating Plaintiffs and the other putative class and collective action members under California wage laws, including those regarding regular and overtime compensation.
45. Plaintiffs are informed, believe, and thereon allege that Defendants implement, including but not limited to, two-week alternating schedules, whereby Plaintiffs and the other putative class and collective action members are scheduled to work four nine-hour days plus one eight-hour day during the first week and four nine-hour days during the second week, for a total of 80 hours every two weeks. Mistras actually required and continues to require Plaintiffs and the other putative class and collective action members to work ten to twelve hours per day, respectively, under its alternative workweek schedules.
46. Defendants prohibit Plaintiffs and the other putative class and collective action members from recording the actual time they work, which is typically twelve hours per day. Defendants' management instructs employees that they can only record their time worked as eight or nine hours because management does not approve overtime work.
47. Plaintiffs are informed, believe, and thereon allege that Defendants unlawfully adopted and/or notified Plaintiffs and the other putative class and collective action members of its alternative workweek schedules.
48. Defendants unilaterally inform Plaintiffs and the other putative class and collective action members of their workweek schedules, without negotiation, requiring Plaintiffs and the other putative class and collective action members to work upwards of twelve hours per day.
49. Even if Defendants' alternative workweek schedule comports with all requirements of California law, Defendants' policies and practices are nevertheless unlawful for the other reasons set forth herein.
50. Defendants have other illegal policies and practices. Defendants further maintain a policy, custom and/or practice of not providing compliant meal periods to Plaintiffs and the other putative class and collective action members.
51. Despite long work days often lasting twelve hours, management instructs Plaintiffs and the other putative class and collective action members to take their meal periods in their sixth or seventh hour of work. In addition, Plaintiffs and the other putative class and collective action members routinely work more than ten hours, but Defendants do not make a second meal period available to them.
52. Defendants' policy, custom, and practice is to not pay Plaintiffs and the other putative class and collective action members the premium wage of one hour at their respective regular rates, when compliant meal periods are not authorized and permitted or could not be taken.
53. Like meal breaks, Defendants also have a policy, custom, and/or practice of not providing mandated second rest breaks for employees who work a shift of more than eight hours.
54. Defendants' policy, custom, and practice is to not pay Plaintiffs and the other putative class and collective action members the premium wage of one hour at their respective regular rates, when rest periods are not authorized and permitted or could not be taken.
55. Under another common policy and practice, Defendants fail to provide compliant itemized wage statements to Plaintiffs and the other putative class and collective action members.
56. Defendants issue itemized wage statements to Plaintiffs and the other putative class and collective action members every week, which is their pay cycle. The wage statements do not reflect any time spent participating in mandatory online training or time spent traveling to and from customers' worksites as previously alleged.
57. As a result of failing to pay for all time worked and failing to pay premium wages for meal and rest periods that were not compliant or not provided, Defendants issue inaccurate itemized wage statements to the Plaintiffs and the other putative class and collective action members who work such hours and/or who arc not provided with the meal and rest breaks. The wage statements also do not show all required information, including but not limited to all ours worked and corresponding rates of pay and are further not understandable.
58. Moreover, Defendants did not maintain adequate records of all wages earned, hours worked and meal breaks taken.
59. As a result of failing to pay for all time worked and failing to pay premium wages for meal and rest periods that are not compliant or not provided, Defendants fail to pay all earned wages to employees, whose employment with the Defendants terminated.
60. Plaintiffs are informed and believe and based thereon allege that Defendants are and were advised by skilled lawyers, other professionals, employees with human resources background and advisors with knowledge of the requirements of California and federal wage and hour laws.
61. Plaintiffs are informed and believe and based thereon allege that at all relevant times Defendants knew or should have known that Plaintiffs and the other putative class and collective action members were entitled to compensation for all hours worked, including minimum wages, wages at the agreed rate and overtime compensation.
62. Plaintiffs are informed and believe and based thereon allege that at all relevant times Defendants had a consistent policy or practice of failing to compensate Plaintiffs and the other putative class and collective action members for all hours worked.
63. Plaintiffs are informed and believe and based thereon allege that at all relevant times Defendants knew, or should have known, that Plaintiffs and the other putative class and collective action members were entitled to receive duty-free meal periods within the first five (5) hours of any shift of six (6) or more hours worked, and that any failure to do so requires Defendants to pay Plaintiffs one (1) hour of wages per day for untimely, missed, or on-duty meal periods.
64. Plaintiffs arc informed and believe and based thereon allege that at all relevant Defendants had a consistent policy or practice of failing to provide Plaintiffs and the other putative class and collective action members with compliant meal and rest periods and one (1) hour of wages per day for untimely, missed, or on-duty meal periods.
65. Defendants' unlawful conduct has been widespread, repeated, and willful throughout California. Defendant knew or should have known that its policies and practices have been unlawful and unfair.
66. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs.
67. Plaintiffs bring their first cause of action as a nationwide "opt-in" collective action pursuant to 29 U.S.C. § 216(b), on behalf of themselves and on behalf of the following class of persons (hereinafter, the "FLSA Class"):
68. The FLSA claim may be pursued by those who opt-in to this case, pursuant to 29 U.S.C. § 216(b).
69. Plaintiffs, on behalf of themselves and the members of the FLSA Class, seek relief on a collective basis challenging Defendants' policies and practices of failing to properly pay Plaintiffs and the other members of the FLSA Class for all hours worked, including minimum wages, wages at the agreed rate and overtime compensation for hours worked over 40 hours per week. The number and identity of other members of the FLSA Class yet to opt-in and consent to be party-plaintiffs may be determined from Defendants' records, and potential opt-ins may be easily and quickly notified of the pendency of this action.
70. Plaintiffs' claims for violations of the FLSA may be brought and maintained as an "opt-in" collective action pursuant to § 216(b) of the FLSA because Plaintiffs' FLSA claims are similar to the claims of the members of the FLSA Class.
71. Plaintiffs and the other members of the FLSA Class are similarly situated, as they have substantially similar job duties and requirements and are subject to a common policy, practice, or plan that requires them to perform work without compensation in violation of the FLSA.
72. Plaintiffs will fairly and adequately represent and protect the interests of the members of the FLSA Class, Plaintiffs have retained counsel competent and experienced in employment and wage and hour class action and collective action litigation.
73. Plaintiffs contemplate providing a notice or notices to all of the members of the FLSA Class, as approved by the Court, to be delivered through the United States mail. The notice or notices shall, among other things, advise each member of the FLSA Class that they shall be entitled to "opt in" to the FLSA action if they so request by the date specified within the notice, and that any judgment on the FLSA action, whether favorable or not, entered in this case will bind all of the FLSA Class members who timely request inclusion in the class,
74. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs.
75. Plaintiffs bring this action pursuant to Federal Rule of Civil Procedure 23 on behalf of themselves and on behalf of the following class of individuals:
76. Plaintiffs further seek to establish the following subclass defined as all members of the California Class who are no longer employed by Defendants herein.
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82. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs.
83. Defendants engaged in a widespread pattern, policy, and practice of violating the FLSA, as detailed in this Complaint.
84. At all times material herein, Plaintiffs and the other members of the FLSA Class were or have been covered employees entitled to the rights, protections, and benefits provided under the FLSA, within the meaning of 29 U.S.C. §§ 203(e) and 207(a).
85. At all times material hereto, Plaintiffs and the other members of the FLSA Class were engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a).
86. Defendants arc covered employers required to comply with the FLSA's mandates. Defendants are employers engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a). Defendants employed Plaintiffs and the members of the FLSA Class as their employees.
87. The FLSA requires that covered employees receive compensation for all hours worked and overtime compensation not less than one and one-half times the regular rate of pay for all hours worked in excess of 40 hours in a work week. 29 U.S.C. § 207(a)(1).
88. Defendants have violated the FLSA with respect to Plaintiffs and the other members of the FLSA Class, by, inter alia, failing to compensate Plaintiffs and the other members of the FLSA Class for all hours worked, including but not limited to training, and overtime hours, and, with respect to such hours, failing to pay the legally mandated minimum wage and/or overtime premium for work at one and one-half times their regular hourly wage for hours worked in excess of 40 hours per week.
89. Plaintiffs and the other members of the FLSA Class are entitled to damages equal to the mandated pay, including minimum wage, straight time, and overtime premium pay within the three years preceding the filing of the original complaint, plus periods of equitable tolling, because Defendants have acted willfully and knew or showed reckless disregard for whether the alleged conduct was prohibited by the FLSA.
90. Defendants have acted neither in good faith nor with reasonable grounds to believe that its actions and omissions were not a violation of the FLSA, and as a result thereof, Plaintiffs and the FLSA Class are entitled to recover an award of liquidated damages in an amount equal to the amount of unpaid overtime pay and/or prejudgment interest at the applicable rate. 29 U.S.C. § 216(b).
91. As a result of the aforesaid violations of the FLSA's provisions, pay, including minimum wage, straight time, and overtime compensation, has been unlawfully withheld by Defendants from Plaintiffs and the other members of the FLSA Class. Accordingly, Defendants are liable for unpaid wages, together with an amount equal as liquidated damages, attorneys' fees, and costs of this action.
92. Wherefore, Plaintiffs and the other members of the FLSA Class request relief as hereinafter provided.
93. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs.
94. Labor Code § 200 defines wages as "all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis or other method of calculation."
95. Labor Code § 1194(a) provides that an employee receiving less than the legal minimum wage is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage, including interest thereon, reasonable attorneys' fees, and costs of suit,
96. Pursuant to Labor Code § 1197, payment of less than the minimum wage fixed by the Labor Commission is unlawful, IWC Wage Order No. 16-2001(4)(A) states, "Every employer shall pay to each employee wages not less than nine dollars ($9.00) per hour for all hours worked, effective July 1, 2014, and not less than ten dollars ($10.00) per hour for all hours worked, effective January 1, 2016."
97. IWC Wage Order No. 16-2001(2)(J) defines hours worked as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." An employee has state law rights, including but not limited to, to be compensated for training time as well as time spent traveling from a designated meeting point to a worksite and from the worksite back to the meeting point.
98. Labor Code § 223 provides "[w]here any statute or contract requires an employer to maintain the designated wage scale, it shall be unlawful to secretly pay a lower wage while purporting to pay the wage designated by statute or by contract."
99. Defendants require Plaintiffs and the other members of the putative California class to perform work before, during, and after scheduled or paid shifts — including but not limited to attending pre-work meetings, completing required training programs, and traveling to and from Mistras' offices to worksites — off-the-clock without compensation for their work performed. In other words, Plaintiffs and the other members of the putative California Class are forced to perform work for the benefit of Defendants without compensation.
100. At all times material hereto, Defendants' failure to pay Plaintiffs and the other members of the putative California Class for all hours worked resulted in Plaintiffs and the other members of the putative California Class earning less than the legal minimum wage in the State of California. As a result, Defendants' conduct violates Labor Code §§ 1194, 1197, and 1198 and IWC Wage Order No. 16.
101. At all times material hereto, Defendants paid Plaintiffs and the other members of the putative California Class less than the agreed upon compensation owed to Plaintiffs and the other members of the putative California Class while purporting to pay the designated wage scale. As a result, Defendants' conduct violates Labor Code § 223.
102. Defendants owe Plaintiffs and the other members of the putative California Class minimum wages and liquidated damages pursuant to Labor Code §§ 1182.12, 1194, 1194.2 and 1197, IWC Wage Order No. 16-2001(4) due in amounts to be determined at trial during the three (3) years prior to the filing of the initial Complaint in this action. Defendants owe Plaintiffs and the other members of the putative California Class, wages at the designated rate pursuant to the Labor Code in amounts to be determined at trial.
103. In violation of California law, Defendants knowingly and willfully refuse to perform its obligations to provide Plaintiffs and the other members of the putative California Class with compensation for all time worked. Specifically, Defendants require their non-exempt hourly employees to perform off-the-clock work, knowing that such work is performed before, during, and after scheduled or paid shifts. Therefore, Defendants committed, and continue to commit, the acts alleged herein knowingly and willfully, and in conscious disregard of Plaintiffs' and the other putative California Class members' rights. Plaintiffs and the other members of the putative California Class are thus entitled to recover nominal, actual, and compensatory damages in amounts according to proof at time of trial.
104. Wherefore, Plaintiffs and the other members of the putative California Class request relief as hereinafter provided.
105. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs.
106. Labor Code § 510(a) provides as follows:
107. The IWC Wage Order 16-2001(3)(A)(1) states:
108. In addition, Labor Code § 511 and the IWC Wage Order 16-2001 govern alternative workweek schedules. The IWC Wage Order 16-2001(3)(B)-(C) states in relevant part:
109. Labor Code § 1194(a) provides as follows:
110. Labor Code § 200 defines wages as "all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis or other method of calculation." All such wages are subject to California's overtime requirements, including those set forth above.
111. Defendants regularly require Plaintiffs and the other California Class members to work in excess of eight hours in a day (including days that exceeded 12 hours in a work day and workweeks that included a seventh day of work) during the Class Period, including but not limited to attending pre-work meetings, completing required training programs and traveling to and from Mistras' offices to worksites off-the-clock. Defendants do not compensate Plaintiffs or the other California Class members for their time spent performing their work duties.
112. Defendants' failure to compensate Plaintiffs and the other California Class members for their time worked, including overtime work, violates Labor Code § 510 and the applicable Wage Order.
113. Plaintiffs and the other California Class members are entitled to recover the unpaid balance of the full amount of overtime compensation, including interest thereon, reasonable attorneys' fees, and costs of suit.
114. Defendant's policy and practice of requiring Plaintiffs and the other putative California Class members to perform work pursuant to alternative workweek schedules is also unlawful. Plaintiffs are informed, believe, and thereon allege that Defendants failed to comply with the requirements for implementation of alternative workweek schedules and improperly avoided California wage laws, including those regarding overtime compensation.
115. Defendants implement, including but not limited to, two-week alternating schedules, whereby Plaintiffs and the other putative California Class members arc scheduled to work four nine-hour days plus one eight-hour day during the first week and four nine-hour days during the second week, for a total of 80 hours every two weeks. Mistras actually required and continues to require Plaintiffs and the other putative California Class members to work ten to twelve hours per day, respectively, under its alternative workweek schedule. However, Defendants do not compensate Plaintiffs and the other putative California Class members at an overtime rate for those hours in excess of eight hours each day.
116. As a result of these unlawful policies, Plaintiffs and the other putative California Class members, have worked overtime hours for Defendants without being paid overtime premiums in violation of the Labor Code, applicable IWC Wage Orders, and other applicable law.
117. Defendants have knowingly and willfully refused to perform their obligations to compensate Plaintiffs and the other putative California Class members for all premium wages for overtime work. As a proximate result of the aforementioned violations, Defendants have damaged Plaintiffs and the other putative California Class Members in amounts to be determined according to proof at time of trial, but in an amount in excess of the jurisdictional requirements of this Court.
118. Defendants are liable to Plaintiffs and the other putative California Class Members herein for the unpaid overtime and civil penalties, with interest thereon. Furthermore, Plaintiffs are entitled to an award of attorneys' fees and costs as set forth below.
119. Wherefore, Plaintiffs and the other putative California Class Members request relief as hereinafter provided.
120. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs.
121. Labor Code §§ 226.7 and 512 and the applicable IWC Wage Orders prohibit employers from employing an employee for more than five hours without a 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 meal period of not less than thirty minutes.
122. Plaintiffs allege that they and other members of the putative California Class were routinely not relieved of all duty for an entire 30 minutes that the opportunity for meat periods took place long-after the beginning of the sixth hour of work and were not provided a second meal period.
123. Labor Code § 226.7 requires that Defendants provide Plaintiffs and each of the putative California Class member all meal periods specified in the applicable Wage Order. It also requires and that Plaintiffs and each of the other putative California Class members are to be paid one additional hour of pay at his/her regular rate of compensation as additional wages for meal periods that were not properly provided.
124. Despite these requirements, Defendants have knowingly and willfully refused to perform their obligations to authorize and permit Plaintiffs and the other members of the putative California Class to take the timely and compliant meal periods to which they are entitled.
125. Defendants have also failed to pay Plaintiffs and the other members of the putative California Class one hour of pay for each untimely, non-compliant meal period.
126. Defendant's conduct described herein violates California Labor Code §§ 226.7 and 512 and the applicable Wage Orders, Therefore, pursuant to Labor Code § 226.7(b), Plaintiffs and the other members of the putative California Class arc entitled to compensation for the failure to authorize and permit meal periods, plus interest, attorneys' fees, expenses, and costs of suit.
127. Wherefore, Plaintiffs and the other members of the putative California Class request relief as hereinafter provided.
128. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs.
129. The applicable Wage Order provides that every employer must authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time is based on the total hours worked each day, at the rate of ten minutes net rest time per four hours worked or major fraction thereof. The applicable Wage Order declares that such authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.
130. Labor Code § 226.7 and the applicable Wage Order direct that if the employer fails to provide a rest break in accordance with the applicable Wage Order, the employer shall pay one additional hour of pay at the employee's regular rate of compensation. Plaintiffs allege that Defendants did not authorize and permit the rest breaks required by the applicable Wage Order. Plaintiffs further allege that, notwithstanding any formal written policy to the contrary, Defendants' actual custom and business practice was to undermine any formal policy of providing rest breaks by pressuring Plaintiffs and the other members of the putative California Class to perform their duties in ways that omitted breaks, including, but not limited to, scheduling a heavy workload that made taking breaks extremely difficult, maintaining an informal anti-rest-break policy enforced through ridicule or reprimand, and exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.
131. Defendants did not pay Plaintiffs and the other putative California Class members the rest period premium of an additional hour of pay at the regular rate, whenever rest breaks were not authorized and provided, as required by the Labor Code and the applicable Wage Order.
132. Plaintiffs and the other putative California Class Members are entitled to be compensated for an hour of time, at their regular rate, for each occasion when Defendants failed to provide a required rest break plus interest, attorneys' fees, expenses and costs of suit.
133. Wherefore, Plaintiffs and other putative California Class members request relief as hereinafter provided.
134. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs.
135. Pursuant to the Labor Code and the applicable Wage Order, every employer must provide accurate itemized wage statements at the time employees are paid, showing accurate figures for, inter alia, gross wages earned, total hours worked, net wages earned, and all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.
136. Labor Code § 226(a) provides: 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 hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least four years at the place of employment or at a central location within the State of California.
137. Labor Code § 1174 requires that every person employing labor in this state shall keep (1) a record showing the names and addresses of all employees employed and the ages of all minors; (2) at a central location in the state or at the plants or establishments at which employees are employed, payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by and any applicable piece rate paid to, employees employed at the respective plants or establishments; (3) such records in accordance with rules established for this purpose by the commission, but in any case, on file for not less than three years. This statute also prevents an employer from prohibiting an employee from maintaining a personal record of hours worked, or, if paid on a piece-rate basis, piece-rate units earned. Defendants have willfully failed to keep the records required by § 1174.
138. Plaintiffs allege that they and the other putative California Class members did not receive accurate itemized wage statements, as required by law, in that the wage statements provided to them did not accurately reflect correct figures for gross wages earned, total hours worked, net wages earned, and/or all applicable hourly rates in effect with the corresponding number of hours worked at each hourly rate.
139. As alleged herein above, Defendants did not keep accurate timekeeping or payroll records and, at any rate, Defendants failed to provide accurate and complete information, as required by law, and Plaintiffs and the other putative California Class members could not easily and promptly determine from their wage statements, alone, that they had been properly paid.
140. This is because, in part, Defendants do not count as "hours worked" the off-the-clock time Plaintiffs and the other members of the putative California Class work, including time spent for mandated training and travel time. In addition, overtime hours worked and applicable overtime rates and premium pay for missed breaks is not listed on the wage statements, such that no calculations could be performed to derive the accurate times, rates, and pay that should have been part of their compensation. The information to make such determinations cannot be readily ascertained by the wage statement, standing alone, or without reference to other documents or information.
141. As a result of Defendants' failure to provide the accurate itemized wage statements required by law, Plaintiffs and the other putative California Class members have been injured in the manner set forth in the Labor Code in that they could not readily determine if they had been paid all earned wages for each pay period.
142. Plaintiffs and the other putative California Class members are entitled to the penalty set forth in Labor Code § 226(e), to the civil penalty set forth in Labor Code § 226.3, to the penalty set forth in the applicable Wage Order, to costs of suit, and reasonable attorneys' fees.
143. Wherefore, Plaintiffs and other putative California Class members request relief as hereinafter provided.
144. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs.
145. Labor Code §§ 201 and 202 require Defendants to pay their employees all wages due within 24 hours after a discharge or 72 hours after a resignation from employment, if the employee has given less than 72 hours' notice (or at the effective time of resignation if the employee has given at least 72 hours' notice of resignation). Labor Code § 203 provides that if an employer willfully fails to timely pay such wages the employer must, as a penalty, continue to pay the employee's daily wage as a penalty until the back wages are paid in full or an action is commenced. The penalty is capped at 30 days of wages.
146. Plaintiffs and the other putative California Class members are entitled to compensation for all wages earned, including without limitation, the unpaid straight time (minimum wages and designated rates), overtime, double time, premium wages for rest periods and reporting time pay not provided, but to date have not received such compensation,
147. More than 30 days have passed since the employment of Plaintiffs and other members of the putative California Subclass ended. Defendants have not paid Plaintiffs and each putative Subclass member all wages owed. As a consequence of Defendants' willful conduct in not paying Plaintiffs and each putative Subclass member all earned wages at the time their employment with Defendants ended, Plaintiffs and those putative Subclass members are entitled to 30 days' wages as a penalty under Labor Code § 203 and interest thereon.
148. Wherefore, Plaintiffs and other putative California Subclass members request relief as hereinafter provided.
149. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs,
150. Section 17200 of the California Business and Professions Code prohibits any unlawful, unfair or fraudulent business act or practice.
151. Plaintiffs and the other members of the putative California Class have suffered injury in fact and loss of wages and monies as a result of Defendants' actions.
152. The actions of Defendants, as herein alleged, amount to conduct which is unlawful and a violation of law. As such, said conduct constitutes unfair business practices, in violation of Business and Professions Code §§ 17200 et seq.
153. Defendants' conduct as herein alleged has damaged Plaintiffs and the other members of the putative California Class by denying them wages due and payable. As a result of such conduct, Defendants have unlawfully and unfairly obtained monies owed to Plaintiff and the other members of the putative California Class.
154. All members of the putative California Class can be identified by reference to payroll and related records in the possession of the Defendants. The amount of wages due to Plaintiffs and the other members of the putative California Class can be readily determined from Defendants' records. Plaintiffs and the members of the putative California Class are entitled to restitution of monies due and obtained by Defendants during the class period as a result of Defendants' unlawful and unfair conduct.
155. At all times material hereto, Defendants committed, and continue to commit acts of unfair competition as defined by §§ 17200 et seq. of the Business and Professions Code, by and among other things, engaging in the acts and practices described above.
156. Defendants' course of conduct, acts, and practices in violation of the California laws and regulations, as mentioned in each paragraph above, constitute distinct, separate and independent violations of §§ 17200 et seq. of the Business and Professions Code.
157. The harm to Plaintiffs and the other members of the putative California Class of being wrongfully denied lawfully earned but unpaid wages outweighs the utility, if any, of Defendants' policies and practices and, therefore, Defendants' actions described herein constitute unfair business practices or acts within the meaning of Business and Professions Code §§ 17200, et seq.
158. Defendants' conduct described herein threatens an incipient violation of California's wage and hour laws, and/or violates the policy or spirit of such laws, or otherwise significantly threatens or harms competition.
159. Defendants' course of conduct described herein further violates Bus. & Prof. Code §§ 17200, et seq., in that it is fraudulent, improper, and/or unfair.
160. The unlawful, unfair, and fraudulent business practices and acts of Defendants as described hereinabove have injured Plaintiffs and other members of the putative California Class in that they were wrongfully denied the timely and full payment of wages owed to them.
161. Defendants have been unjustly enriched as a direct result of their unlawful business practices alleged in this Complaint and will continue to benefit from those practices and have an unfair competitive advantage if allowed to retain the unpaid wages.
162. Business and Professions Code § 17203 provides that the Court may make such orders or judgments as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition.
163. As a direct and proximate result of the aforementioned acts and practices, Plaintiffs and the Class have suffered a loss of money and property, in the form of unpaid wages which arc due and payable to them.
164. Business and Professions Code § 17203 provides that the Court may restore to any person in interest any money or property which may have been acquired by means of such unfair competition. Plaintiffs and the other members of the putative California Class are entitled to restitution pursuant to Business and Professions Code § 17203 for all wages and payments unlawfully withheld from employees during the four-year period prior to the filing of this Complaint.
165. Plaintiffs' success in this action will enforce important rights affecting the public interest and, in that regard, Plaintiffs sue on behalf of themselves and others similarly situated. Plaintiffs and the other members of the putative California Class seek and are entitled to unpaid wages, declaratory relief, and all other equitable remedies owing to them.
166. Plaintiffs herein take the enforcement of these laws and lawful claims upon themselves. There is a financial burden involved in pursuing this action, the action is seeking to vindicate a public right, and it would be against the interests of justice to penalize Plaintiffs by forcing them to pay attorneys' fees from the recovery in this action. Attorneys' fees are appropriate pursuant to Code of Civil Procedure § 1021.5 and otherwise.
167. Wherefore, Plaintiffs and other putative California Class members request relief as hereinafter provided.
158. Plaintiffs re-allege and incorporate by reference all allegations in all preceding paragraphs.
159. This action arises out of the allegedly unlawful labor practices of Defendants in California. Through this private attorneys general action. Plaintiffs represent themselves, and other aggrieved employees of Defendants that were in California, against whom Defendants have allegedly committed labor law violations alleged herein. As a result of the allegedly unlawful conduct described herein, Plaintiffs now seek to recover civil penalties, including the value of unpaid wages, attorneys' fees and costs, pursuant to the Labor Code Private Attorneys General Act of 2004, Labor Code §§ 558 and 2698, et seq.
160. Labor Code § 2699(a) provides:
161. This PAGA claim is also brought against Defendants pursuant to provisions of the Labor Code including § 558 which permits liability of persons or employers who violate or cause to be violated Labor Code and IWC regulations. Labor Code § 558 provides:
162. Pursuant to California Labor Code §§ 2699(a) and (f), Plaintiffs and the other aggrieved employees of Defendants are entitled to, and seek to, recover civil penalties for Defendants' violations of California Labor Code §§ 200, 201, 202, 203, 226, 226.7, 512, 1174, 1198, and 2802, during the applicable limitations period in the following amounts:
163. Pursuant to California Labor Code § 2699(g), Plaintiff, on behalf of himself and the other aggrieved employees, are entitled to an award of reasonable attorneys' fees and costs.
164. Plaintiffs seek the aforementioned penalties on behalf of the State, other aggrieved employees, and themselves as set forth in Labor Code § 2699(h).
165. Defendants are liable to Plaintiffs, the and the State of California for the civil penalties set forth in this Complaint, with interest thereon. Plaintiffs are also entitled to an award of attorneys' fees and costs as set forth below.
166. Wherefore, Plaintiffs and the other aggrieved employees request relief as hereinafter provided.
WHEREFORE, Plaintiffs, on behalf of themselves, the FLSA Class, the Putative California Class and Subclass and other aggrieved employees pray for judgment against Defendants as follows:
Plaintiffs, on behalf of themselves and all other similarly situated, hereby demand a trial by jury in this case.
