EDWARD M. CHEN, District Judge.
The parties to this lawsuit, by and through their respective counsel, do hereby stipulate for leave for to the filing of the Fourth Amended Complaint attached hereto as Exhibit A. The parties have agreed to the filing of the Fourth Amended Complaint for the purposes of (a) allowing Plaintiffs to add an additional Plaintiff, Marjorie Pontarolo, and (b) remove all references to Plaintiffs' claims under the federal Family and Medical Leave Act ("FMLA"), which were resolved and dismissed in a separate action.
It is further stipulated that Defendant will have until October 12, 2015 to file an answer or any other responsive pleading to Plaintiffs' Fourth Amended Complaint. Alternatively, Defendant may elect not to file a responsive pleading, in which case the Defendant's Answer on file will be deemed the responsive pleading to the Fourth Amended Complaint.
The proposed amended pleading is submitted, with the opposing party's consent, pursuant to Federal Rule of Civil Procedure 15(a)(2).
Pursuant to stipulation, Plaintiffs shall be granted leave to file the [Proposed] Fourth Amended Complaint attached as Exhibit A hereto, and the Clerk is directed to file said [Proposed] Fourth Amended Complaint.
Defendant will have until October 12, 2015 to file an answer or any other responsive pleading to Plaintiffs' Fourth Amended Complaint. Alternatively, Defendant may elect not to file a responsive pleading, in which case the Defendant's Answer on file will be deemed the responsive pleading to the Fourth Amended Complaint.
Plaintiffs Dean Alexander, Peter Allen, Albert Anaya, Suzanne Andrade, Jarrett Henderson, Ely Ines, Jorge Isla, Paul Infantino, Eric Jepson, Gupertino Magana, Bernard Mendoza, Jesse Padilla, Marjorie Pontarolo, Joey Rodriguez, Dale Rose, Allan Ross, Agostino Scalercio, and Anthony Ybarra, on behalf of themselves and similarly situated employees, and the general public allege as follows:
1. The California Labor Code provides legal rights to employees and requires employers to meet various legal obligations to their employees, such as the duty to reimburse their employees for all expenses necessarily incurred in connection with their employment (Lab. Code §2802), the duty to pay overtime premium pay for hours worked which exceed eight in any workday or forty in any workweek (Lab. Code §1194), the duty to provide workers compensation coverage (Lab. Code §§3200 et seq.), the duty to provide meal and rest breaks (Lab. Code §510, 226.7), the duty to avoid coercion in purchase of necessary equipment and materials (Lab. Code §450) and other legal obligations. Under settled law, employers may not avoid these legal obligations or interfere with the exercise of these rights by mis-classifying their employees as "independent contractors" if the employers treat workers as employees.
2. In 1999, a statewide class action entitled
3. Defendant FedEx Ground Package System, Inc. ("FEG"), and its division, FedEx Home Delivery ("FHD") (hereinafter together referred to as Defendant), is a Delaware corporation doing business as two national companies, affiliated with the Federal Express Corporation. FEG (including FHD) employs thousands of drivers to pick up and deliver packages for its customers throughout the United States. As a condition of employment, each FEG and FHD driver is required to sign a lengthy form contract entitled the "Pickup And Delivery Contractor Operating Agreement" that mis-characterizes each driver as an "independent contractor." These operating agreements were designed to conceal the true nature of the relationship between FEG and its drivers: that of employer and employee.
4. Despite FEG and FHD's control over virtually all material aspects of the employment relationship, and despite the unequivocal command of applicable statutes and case law to the effect that workers such as plaintiffs are entitled to the protections due employees under California law, and despite the finding of the Los Angeles Superior Court in the Estrada case that these drivers are employees, FEG and FHD continue to mis-classify their drivers as independent contractors. As a result, these drivers are deprived of the rights and protections guaranteed by California law to employees, and they are deprived of employer-financed workers compensation coverage and unemployment insurance benefits. Furthermore, the terms and conditions of their employment contract require these drivers to purchase, operate and maintain expensive trucks for FEG and FHD's exclusive benefit and to work under other unlawful conditions. FEG and FHD's mis-characterization of their drivers as independent contractors, the concealment and/or non-disclosure of the true nature of the relationship between FEG and FHD and its drivers and the attendant deprivation of substantial rights and benefits of employment are part of an on-going unfair, and/or unlawful and/or fraudulent business practice by FEG and FHD which this court should enjoin.
5. Plaintiffs Dean Alexander, Peter Allen, Albert Anaya, Suzanne Andrade, Jarrett Henderson, Ely Ines, Jorge Isla, Paul Infantino, Eric Jepson, Gupertino Magana, Bernard Mendoza, Jesse Padilla, Marjorie Pontorolo, Joey Rodriguez, Dale Rose, Allan Ross, Agostino Scalercio and Anthony Ybarra are residents of, Carmichael, Chico, Clovis, El Dorado Hills, Escondido, Folsom, Lahabra, Moreno Valley, Oceanside, Sacramento, San Diego, San Juan Santee, Capistrano, San Ramon, Union City, Vacaville, Yuba City in the State of California. Paul Infantino, Marjorie Pontarolo. Joey Rodriguez, and Agostino Scalercio were employed by FEG for all relevant times as pick-up and delivery drivers. Dean Alexander, Peter Allen, Albert Anaya, Suzanne Andrade, Jarrett Henderson, Ely Ines, Jorge Isla, Gupertino Magana, Bernard Mendoza, Jesse Padilla, Dale Rose, Allan Ross and Anthony Ybarra were and/or are employed by FHD for all relevant times as pick-up and delivery drivers. Together, they sue on behalf of themselves, as representatives of all similarly situated pickup and delivery drivers in the classes defined below, on behalf of the public and as private attorney generals pursuant to the Unfair Business Practices Act ("UBPA"), Cal. Bus. & Prof. Code §17200, et seq. and Cal. Labor Code § 2699.
6. Plaintiffs are informed and believe and on that basis allege that at all times herein defendant FEG (including its division FHD) has been and is a Delaware corporation authorized to do business and doing business in all fifty states including the state of California at various locations throughout the United States with its principal corporate headquarters in Pittsburgh, Pennsylvania. Plaintiffs are informed and believe and on that basis allege that at all times relevant herein defendant FEG and its division FHD operate a network of approximately 500 distribution hubs and local pick-up and delivery terminals throughout the United States with at least fifty employees within a 75-mile radius of each other. At all times relevant herein, defendant FEG and its division FHD have been and are employers of Plaintiffs within the meaning of California law.
7. The true names and capacities, whether individual, corporate, association or otherwise of defendants named herein as DOES 1 THROUGH 20, inclusive, are unknown to Plaintiffs and therefore Plaintiffs sue such DOES by fictitious names. Plaintiffs are informed, believe, and on that basis allege that these DOE defendants are California residents or corporations or entities doing business in the State of California, and that each is the agent of the other Defendants and that each is responsible for some or all of the acts and omissions alleged herein. Plaintiffs will amend this complaint to show the true names and capacities of these DOE defendants when they have been determined.
8. This court has jurisdiction over the subject matter and the parties pursuant to the Class Action Fairness Act of 2005 (CAFA), codified at 28 U.S.C. §§ 1332(d), 1453, and 1711-1715.
9. Because a substantial part of the events or omissions giving rise to the claims stated herein arose within this District, and a substantial number of the members of the class alleged herein work or worked for Defendant in facilities and operations maintained by Defendants within this District and within the Division and Courthouse to which this action has been assigned, venue is proper in this District pursuant to 28 U.S.C. § 1391(b), and assignment to the San Francisco Division or Oakland Division is proper pursuant to Local Rule 3-2(d).
10. Plaintiffs Alexander, Allen, Anaya, Andrade, Henderson, Ines, Isla, Infantino, Jeppson, Magana, Mendoza, Padilla, Rodriguez, Ross, Scalercio, and Ybarra bring a statewide class action on behalf of all persons who are now working or have worked for FEG and/or FHD as pick-up and delivery drivers within the State of California during the time period covered herein. Plaintiffs bring this class action on behalf of themselves and other similarly situated members of the class who have been similarly deprived of rights under California law by FEG and FHD in the manner described in this Complaint. For purposes of Plaintiffs' First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Causes of Action, as set forth below, Plaintiffs seek to certify a class comprised of:
Plaintiffs intend to include as members of the California statewide class (a) all FHD pick-up and delivery drivers who executed contracts to provide service to FHD between November 12, 2000 and the time of trial, (b) all FEG California pick-up and delivery drivers who began providing services to FEG after August 2, 2001 and were therefore never included in the
11. During the class period, Plaintiffs are informed and believe and on that basis allege that more than 2000 persons have worked for FEG and/or FHD as package pickup and delivery drivers in California and who fall within this class and whose identities may be ascertained from Defendant's' records.
12. For purposes of Plaintiffs' Second Cause of Action, as set forth below, Plaintiffs Alexander, Allen, Anaya, Andrade, Henderson, Ines, Isla, Magana, Mendoza, Padilla, Ross, and Ybarra seek to certify a sub-class of those identified in Paragraph 10 above comprised of:
13. During the class period Plaintiffs are informed and believe and on that basis allege that more than 800 persons have worked for FEG and/or FHD as pick-up and delivery drivers in California and who fall within the subclass identified in paragraph 12 and whose identities may be ascertained from Defendant's records. The subclass identified in paragraph 12 shall hereinafter be referred to as the "Overtime Subclass."
14. For purposes of Plaintiffs' Third Cause of Action, as set forth below, Plaintiffs Plaintiff Marjorie Pontarolo seeks to certify a sub-class of those identified in Paragraph 10 above comprised of:
15. During the class period Plaintiffs are informed and believe and on that basis allege that there are more than 400 persons who have worked for FEG and/or FHD as pick-up and delivery drivers in California, who fall within the subclass identified in paragraph 14, and whose identities may be ascertained from Defendant's records. The subclass identified in paragraph 14 shall hereinafter be referred to as the "meal and rest period subclass."
16. This action may be properly maintained as a class action under Federal Rule of Civil Procedure 23 and/or California Code of Civil Procedure Section 382 in that:
17. The claims of the named representative plaintiffs are typical of the claims of the members of the California class and subclasses. The named plaintiffs share the same interests as other members of the class and subclasses in this action because, like other class and subclass members, they have each been mis-classified, have been deprived of their legal rights, have been subjected to FEG and/or FHD's unlawful policies and procedures and suffered financial loss of thousands of dollars due to FEG and/or FHD's wrongful mis-classification. Given the significance of the deprivation of their rights, they have the incentive, and are committed, to vigorously prosecute this action. They have retained competent and experienced counsel who specialize in class action and employment litigation to represent themselves and the proposed class.
18. A class action is the only realistic method available for the fair and efficient adjudication of this controversy. The expense and burden of individual litigation makes it impracticable for members of the class to seek redress individually for the wrongful conduct herein alleged. Were each individual member required to bring a separate lawsuit, the resulting multiplicity of proceedings would cause undue hardship and expense for the litigants and the Court and create the risk of inconsistent rulings which would be contrary to the interest of justice and equity.
19. FEG is a national corporation, and FHD is a division thereof, whose business consists of package delivery and pick-up service to customers, using a single integrated nationwide network of transportation, sortation and communication facilities and integrating class members into those existing network of operations. Defendant FEG and/or its division FHD hired plaintiffs to timely deliver and pick up packages at times, locations and for amounts determined solely by FEG and/or FHD.
20. FEG and its division FHD employ or employed during the class period more than 14,000 pick-up and delivery drivers in the United States including, either presently or at material times in the past, each of the plaintiffs and members of the plaintiff class. FEG and FHD employ or employed during the class period more than 2,000 pick-up and delivery drivers in the State of California including, either presently or at material times in the past, each of the plaintiffs and members of the plaintiff class.
21. FEG and FHD retain the right to control the manner and means by which Plaintiffs and class members perform their jobs. Pick-up and delivery drivers work from a FEG or FHD terminal, where they are assigned packages for delivery and locations for pickups each day. FEG and FHD employ a variety of managerial and supervisory employees at their terminals who have supervisory responsibility over the drivers, their daily assignments and paperwork. Drivers also interact with other FEG and/or FHD personnel on a daily basis.
22. FEG and FHD unilaterally set the compensation to be paid to the pick-up and delivery drivers. Defendant pays drivers for the number of stops, deliveries and pick-ups made, as well as daily compensation for making themselves available for pickup and delivery work in geographic areas determined by FEG and FHD.
23. FEG and FHD unilaterally set the prices charged to their customers for the services rendered by Plaintiffs and plaintiff class members.
24. FEG and FHD have created and regularly updated a large number of written policies and procedures outside of the Operating Agreement that drivers are never given, but nonetheless govern the terms and conditions of their employment and compensation. FEG and FHD's written policies are contained in the FedEx Ground Manual, Operations Management Handbook, Settlement Manual and numerous other written and extra-contractual policies that are actively concealed from drivers and/or which FEG and FHD fail to disclose and/or provide to drivers that govern the relationship between FEG, FHD and the drivers. The other written handbooks and manuals and additional extra-contractual sources include, but are not limited, to written rules on "contractor" termination, directives and training provided to terminal managers, written rules on driver appearance (with illustrative poster), written and oral complaint procedures, memorandum and directives to terminal management and other rules concealed from and not provided to the drivers. When drivers do not follow an FEG or FHD rule or procedure, whether disclosed or undisclosed, known or unknown, they are subject to various types of punishment, some financial and some disciplinary, up to and including contract termination and/or non-renewal. FEG and FHD document such so-called violations of such rules on forms referred to as "Business Discussion Notes" and retain these documents in secret driver files called "DOT" files, along with myriad other documents which are likewise concealed from and not disclosed to the drivers.
25. Plaintiffs and Plaintiff class members provide services which are an integral part of FEG and FHD's business enterprise and they have no separate or distinct occupation or business. By providing vehicles with required FEG and FHD's colors, logos and advertising, by at least daily reporting to FEG and FHD terminal facilities, by interacting daily with FEG and FHD terminal managers and other employees, by reliably serving FEG and FHD's customers, by following FEG and FHD's controlled delivery routes and delivery and pick-up methods and schedules, by providing FEG and FHD sales personnel with customer leads, by using FEG and FHD scanners which enable Defendant's customers to track their packages, and in other material ways, Plaintiffs and Plaintiff class members have rendered, and continue to render, services to Defendant which are integral to the Defendant's package delivery system.
26. Each pick-up and delivery driver (referred to by FEG and FHD as a "P&D contractor") must sign a "Pick-Up and Delivery Contractor Operating Agreement" and Addenda thereto (referred to hereinafter as combined as "OA" or the "Operating Agreement") as a mandatory condition of employment. The date, time and place of execution of each driver's Operating Agreement is within the knowledge of FEG and FHD as each Agreement is maintained in the driver files described above, in the regular course of business. The Operating Agreement between each member of the plaintiff class and FEG or FHD is the same in all material respects. The Operating Agreement between Plaintiffs and FEG and between Plaintiffs and FHD contain all of the same identical material terms with only a few, minor and insubstantial differences.
27. The Operating Agreement contains various statements purporting to classify Plaintiffs and Plaintiff class members as independent contractors. At the same time, the Operating Agreement retains to the company, inter alia, the right to approve or disapprove any vehicle used to provide service, the right to approve or disapprove any driver or helper who provides service, the right to approve or disapprove the purchase or sale of any vehicle, the right to assign pickup and delivery stops to each driver, the right to temporarily or permanently transfer portions of any route to another with or without compensation, the right to determine when a driver has "too few" or "too many" packages to deliver or pick-up on a given day, the right to inspect vehicles and drivers for compliance with Company-promulgated appearance standards, the right to terminate the contract upon thirty days notice or whenever the company unilaterally determines that any provision of the contract has been "violated," amounting to the right to terminate at will, the right to require the use of communication equipment and the wearing of Company uniforms, the right to take a vehicle out of service, the right to review and evaluate "customer service" and to set and change standards of such service, the right to require drivers to perform service at "times" requested by customers and determined by FEG and FHD, the right to withhold pay for certain specified expenses, the right to require purchase of specified insurance and numerous other purchases by drivers, the right to require completion of specified paperwork, and other rights reserved to FEG and FHD.
28. The Operating Agreement also provides, among other things, that:
29. The Operating Agreement sets forth an initial term ranging from one to three years and is automatically renewed for successive terms of one year after the expiration of the initial term. The Agreement can be terminated either by mutual agreement or unilaterally by Defendant for alleged contract violations. Because FEG and FHD retain absolute unilateral control over contract interpretation and termination, the Agreement is an at-will employment relationship of indefinite duration.
30. The Operating Agreement is, and at all times mentioned herein, has been a contract of adhesion, drafted exclusively by Defendant and/or its legal counsel, with no negotiation with drivers who are required to sign the Agreement as a condition of employment. Plaintiffs and plaintiff class members are required to sign the form contract as is, without any changes made to the terms contained therein. Each year, drivers are required to sign additional Addenda which are likewise not subject to negotiation and are unilaterally drafted adhesion contract provisions. The Agreement is, and at all material times has been unlawful, unconscionable and fraudulent in form and effect.
31. Although the nature of the work performed by the plaintiff class makes detailed control by management unnecessary, Defendant in fact retains the right to control and exercise extensive control over the work of the drivers to fulfill Defendant's commitments to its customers.
32. Defendant's right of control over plaintiff class members is also retained and/or exercised by FEG and FHD as demonstrated by concealed and/or undisclosed extra-contractual sources such as Company written rules and policies and unwritten practices which supplement and fill gaps in the written contract.
33. Defendant periodically distributes memoranda and/or videotapes from management to all pickup and delivery drivers covering various topics including pick-up and delivery procedures, changes in selected company rules, procedures or programs, news regarding company growth or new customers with particular requirements and similar information. Nonetheless, Defendant has never distributed any memoranda to its pickup and delivery drivers explaining workers compensation procedures or notices or any other notification to employees required by law.
34. In order to take a limited amount of pre-scheduled time off without having to hire a temporary replacement driver, pickup and delivery drivers at FEG can pay Defendant $756 per year ($3 per day of work) to participate in its so-called "Time Off Program" which allows participating drivers to take two non-consecutive weeks off without hiring replacement drivers. During such pre-scheduled time off, Defendant provides replacement drivers to cover the driver's route for the scheduled week off. Defendant must approve the time off period far in advance; drivers sign up for weeks of "Time-off" under this program by seniority, once per year for the following year during a sign-up period. Such time off is not permitted to be used on an emergency basis or without advance scheduling.
35. On September 20, 2007, Defendant announced that, starting on October 26, 2007, it will terminate the contracts of all of its drivers who operate single work areas (approximately 1,000 positions) in California and that, as of May 31, 2008, it will conduct its California pickup and delivery business using only to drivers who operate multiple-work areas.
36. Defendant further announced that it was eliminating its single work area driver positions in California because of the "legal and regulatory environment in California" of which "the Estrada case is a part."
37. Defendant announced that it has no plans to terminate single work area drivers anywhere but California at the present time, but is always looking for ways "to strengthen [its] business model" nation-wide.
38. Defendant also announced that it would provide the terminated single work area drivers in California with so-called "voluntary transition incentives" of at least $25,000.00 (and in some cases more) provided they are willing to execute a broad release of claims in Defendant's favor contained in a document entitled, "Contractor Conversion and Release Agreement," copies of which were provided to the California single work area drivers, and provided they execute such agreement by no later than October 26, 2007. The "Contractor Conversion and Release Agreement" contains the following non-negotiable provision:
39. In addition, Defendant announced that existing California single work area drivers who want to acquire one or more additional routes must participate in a program called "Enhanced Primary Plus," under which participants must execute a document called a "compliance disclosure addendum." Defendant also announced that drivers who operate multiple work areas in California and across the county could participate in "Enhanced Primary Plus" and also would have to execute the "compliance disclosure addendum" if they did so.
40. The "compliance disclosure addendum" was not distributed to pick-up and delivery drivers on September 20, 2007 or made widely available.
41. The "compliance disclosure addendum" contains the following non-negotiable indemnification agreement in favor of Defendant:
42. Defendant has failed and refused to inform drivers that the "compliance disclosure addendum" includes such a provision and has affirmatively misled drivers regarding the meaning and effect of the "compliance disclosure addendum."
Plaintiffs hereby incorporate by reference paragraphs 1 through 42 above as if fully set forth herein, and, for a cause of action by all members of the plaintiff class, allege as follows:
43. While acting on the direct instruction of FEG and/or FHD and discharging their duties for FEG and/or FHD, Plaintiffs and plaintiff class members incurred work-related expenses including but not limited to the purchase or lease, maintenance, operating costs, and adornment of vehicles, insurance, communications equipment, "escrow accounts," and uniforms. Plaintiffs and class members necessarily incurred these substantial expenses as a direct result of performing their job duties for Defendant.
44. FEG and FHD have failed to indemnify or in any manner reimburse the plaintiff class members for these expenditures, and have knowingly inserted illegal contractual provisions as part of an unconscionable and illegal scheme designed to avoid its legal duty to indemnify its employees. By mis-classifying its employees as "independent contractors," and further by contractually requiring those employees to pay expenses which they incurred in direct consequence of the discharge of their duties for FEG/FHD and/or in obedience to the direction of FEG/FHD, FEG and FHD have violated and continue to violate Cal. Labor Code § 2802.
45. As a direct and proximate result of FEG and FHD's conduct, Plaintiffs and Plaintiff class members have suffered substantial losses according to proof, as well as pre-judgment interest, costs and attorney fees for the prosecution of this action.
WHEREFORE, Plaintiffs and the plaintiff class are entitled to damages in an amount to be ascertained at the trial of the matter according to proof.
Plaintiffs hereby incorporate by reference paragraphs 1 through 45 above as if fully set forth herein, and, for a cause of action by the identified overtime subclass of the plaintiff class, allege as follows:
46. Various Plaintiffs and Plaintiff class members operate vehicles with a gross vehicle weight rating of less than 10,001 pounds, including but not limited to P350, P400 and other small step package vans. Persons who operate such vehicles are not subject to the maximum hours regulations promulgated pursuant to the Federal Motor Carrier Safety Act and are therefore not exempt from the overtime requirements established by the California Labor Code and the California Industrial Welfare Commission ("IWC") Wage Order 9.
47. Plaintiffs and plaintiff class members who during the class period have operated vehicles with a gross vehicle weight rating of less than 10,001 pounds for Defendant FEG and/or FHD and are therefore are legally entitled to overtime compensation for all hours worked in excess of eight hours per day and all hours worked in excess of forty per work week under the California Labor Code and the California Industrial Welfare Commission ("IWC") Wage Order 9.
48. Plaintiffs and plaintiff class members who operate vehicles with a gross vehicle weight rating of less than 10,001 pounds have not been paid at the rate of time and one-half their regular rate of pay for all hours of overtime worked, in violation of California Labor Code §§510 and 1194 et seq. and IWC Wage Order 9.
49. As a direct and proximate result of the unlawful conduct of FEG and FHD, such Plaintiffs and such plaintiff class members have suffered substantial monetary losses, according to proof, and are further entitled to pre-judgment interest, recovery costs of suit and reasonable attorney fees as a result of their prosecution of this lawsuit.
50. As a further direct and proximate result of the unlawful failure to pay overtime compensation, such Plaintiffs and such plaintiff class members who were deprived of their overtime compensation and who have resigned or been terminated from their employment, are entitled to recover thirty additional days of pay pursuant to California Labor code §201 et seq. by virtue of FEG and FHD's failure to timely pay all wages due and owing upon resignation or termination.
WHEREFORE, Plaintiffs and the overtime subclass are entitled to damages in an amount to be ascertained at the trial of the matter according to proof.
Plaintiffs hereby incorporate by reference paragraphs 1 through 50 above as if fully set forth herein, and, for a cause of action by Plaintiffs, in their individual capacities, and Plaintiff Marjorie Pontarolo on behalf of herself and the identified meal and rest period subclass, allege as follows:
51. FEG and FHD required Plaintiffs and members of the meal and rest period subclass to work without any thirty minute unpaid meal period and/or either of two break periods as required by California Labor Codes §§510, 226.7 and California Industrial Welfare Commission Wage Order 9, which is applicable to Plaintiffs and the meal and rest period subclass.
52. By virtue of being deprived of such meal and rest periods, Plaintiffs and members of the meal and rest period subclass are entitled to recover up to two additional hours of pay at the regular rate of pay for each work day that such meal and/or rest periods were not provided. FEG and FHD have failed and refused to pay such additional compensation in violation of the aforesaid provisions of the Labor Code and IWC Wage Order 9.
53. As a direct and proximate result of FEG and FHD's conduct as alleged, Plaintiffs and members of the meal and rest period subclass have suffered substantial monetary losses, according to proof, plus pre-judgment interest, costs and reasonable attorney fees.
WHEREFORE, Plaintiffs and the meal and rest period subclass are entitled to damages in an amount to be ascertained at the trial of the matter according to proof.
Plaintiffs hereby incorporate by reference paragraphs 1 through 53 above as if fully set forth herein, and, for a cause of action by all members of the plaintiff class, allege as follows:
54. FEG and FHD have unlawfully withheld monies from the compensation earned by Plaintiffs and plaintiff class members for certain ordinary business expenses of FEG and FHD, including but not limited to "cargo claims" for the value of lost or damaged cargo and insurance claims in violation of California Labor Code §§ 221 and 223.
55. FEG and FHD have withheld said funds unlawfully without providing Plaintiffs and plaintiff class members with advance notice of the amounts, reasons or documentation of any justification for such deductions and absent any lawfully sufficient reason for such conduct.
As a direct and proximate result of FEG and FHD's conduct, Plaintiffs and plaintiff class members have suffered substantial losses and been deprived of compensation to which they were entitled, including monetary damages, pre-judgment interest, costs and reasonable attorney fees.
56. As a direct and proximate result of FEG and FHD's conduct, Plaintiffs and plaintiff class members who resigned or were terminated without being paid their full compensation, by virtue of such illegal deductions, are also entitled to thirty additional days of pay pursuant to California Labor Code §201-203.
WHEREFORE, plaintiffs and the plaintiff class are entitled to damages in an amount to be ascertained at the trial of the matter according to proof.
Plaintiffs hereby incorporate by reference paragraphs 1 through 56 above as if fully set forth herein, and, for a cause of action by all members of the plaintiff class, allege as follows:
57. FEG and FHD have compelled and/or coerced Plaintiffs and plaintiff class members to patronize FEG and/or FHD by requiring Plaintiffs and plaintiff class members to rent or purchase uniforms, scanners, van washing services, DOT inspections, and other equipment, services and material directly from FEG and FHD in violation of California Labor Code §450.
58. FEG and FHD have also compelled and/or coerced Plaintiffs and plaintiff class members to patronize preferred vendors of FEG/FHD for purchase or lease of vehicles and/or work accident and physical damage insurance in violation of California Labor Code §450. As a direct and proximate result of FEG and FHD's coercion, Plaintiffs and plaintiff class members have suffered substantial monetary damage, according to proof.
WHEREFORE, plaintiffs and the plaintiff class are entitled to damages in an amount to be ascertained at the trial of the matter according to proof.
Plaintiffs hereby incorporate by reference paragraphs 1 through 58 above as if fully set forth herein, and, for a cause of action by all members of the plaintiff class, allege as follows:
59. Plaintiffs and the class they represent were hired by FEG and FHD to work as "independent contractors" pursuant to the terms of the OA described above. In fact, Defendant knew or should have known, at all times, that the "independent contractor" classification in the Operating Agreement was and is improper and that, in fact, plaintiffs and all persons similarly situated were and are "employees" entitled to the benefits and protections of all laws enacted for employees. Plaintiffs are informed, believe and on that basis allege, that Defendant intentionally misled plaintiffs and the class they represent as to their employment status, or made such representations to Plaintiffs and plaintiff class members recklessly and/or negligently, and deliberately concealed from and/or failed to disclose to the pick-up and delivery drivers the extra contractual sources (including but not limited to the FedEx Ground Manual, Operations Management Handbook and Settlement Manual, other policies and secret driver files and other materials described above) that defined the employment relationship between plaintiffs and Defendant, all for the purpose of realizing unjust profits from plaintiffs' work and/or to avoid paying for its operating costs and payroll taxes to increase its competitiveness.
60. At all material times, FEG and FHD either knew, or should have known, that the material representation made to plaintiffs concerning their employment status, and the concealment and/or non-disclosure of material facts to plaintiffs concerning their employment status and plaintiffs' corresponding obligation to assume responsibility for all of their "own" employment-related expenses including but not limited to purchasing or leasing, operating and maintaining expensive trucks were false and fraudulent.
61. At all material times, Defendant intended to and did induce plaintiffs and the class they represent to reasonably and justifiably rely to their detriment on the false and fraudulent representations made to them by Defendant concerning their employment status and obligation to assume responsibility for all of employment related expenses including but not limited to purchasing or leasing, operating and maintaining expensive trucks and suffered damage as a direct and proximate result.
62. By its aforesaid conduct, Defendant is guilty of oppression, fraud and malice in violating Plaintiff rights and protections guaranteed by the California Labor Code and other applicable law.
WHEREFORE, Plaintiffs, on behalf of themselves, all others similarly situated, pray for relief as stated hereinafter.
Plaintiffs incorporate by reference Paragraphs 1 through 62 above as if fully set forth, and for a cause of action on behalf of all members of plaintiff class, allege as follows:
63. The California Unfair Business Practices Act (UBPA), Cal. Bus. & Prof. Code § 17200 et. seq. prohibits business and/or individuals from engaging in, inter alia, business practices which are unlawful, unfair or fraudulent.
64. By all of the foregoing alleged conduct of failing to indemnify Plaintiffs and class members for work-related expenses, by failing and refusing to provide plaintiffs and class members with workers compensation insurance and unemployment insurance benefits, by failing to pay overtime compensation to Plaintiffs and plaintiff class members who operate trucks with a gross vehicle weight rating of less than 10,001 pounds, by failing and refusing to provide meal and/or rest periods to plaintiffs and members of the meal and rest period subclass, by unlawfully deducting money from wages and coercing Plaintiffs and plaintiff class members to patronize Defendant and allied companies, by intentionally, reckless and/or negligently misrepresenting to Plaintiffs and plaintiff class members the true nature of their employment status, and by engaging in the other acts and conduct alleged above, FEG and FHD have committed, and are continuing to commit, ongoing unlawful, unfair and fraudulent business practices within the meaning of Cal. Bus. & Professions Code §17200 et seq.
65. As a direct and proximate result of the unfair business practices described above, Plaintiffs, members of the plaintiff class and the general public have all suffered significant losses and Defendant has been unjustly enriched.
66. Pursuant to Cal. Bus. & Prof. Code §17203, Plaintiffs, members of the plaintiff class, and the general public are entitled to: (a) restitution of money acquired by Defendant by means of their unfair business practices, in amounts not yet ascertained but to be ascertained at trial; (b) injunctive relief against Defendant's continuation of their unfair business practices, and (c) a declaration that Defendant's business practices are unfair within the meaning of the statute.
WHEREFORE, plaintiffs and the plaintiff class are entitled to relief as more fully set forth below.
Plaintiffs incorporate Paragraphs 1 through 66 of this Complaint as though fully set forth, and for a cause of action on behalf of themselves and all persons similarly situated, allege as follows:
67. By failing to indemnify Plaintiffs and class members for work-related expenses, by failing and refusing to provide plaintiffs and class members with workers compensation insurance and unemployment insurance benefits, by failing to pay overtime compensation to Plaintiffs and plaintiff class members who operate trucks weighting less than 10,000 pounds, by failing and refusing to provide meal and/or rest periods, by unlawfully deducting money from wages and coercing Plaintiffs and plaintiff class members to patronize Defendant and allied companies, and by engaging in the other acts and conduct alleged above, FEG has committed, and is continuing to commit, ongoing unlawful, unfair and fraudulent business practices within the meaning of Cal. Bus. & Professions Code §17200 et seq. Defendant, if not enjoined by this Court, will continue to engage in the said unlawful, unfair and fraudulent business practices in derogation of the rights of Plaintiffs, of class members and of the general public to be free from such improper and anti-competitive conduct.
68. Absent injunctive relief enjoining Defendant from engaging in the unlawful, unfair and fraudulent business practices described above, Plaintiffs, members of the class and the general public will be irreparably injured, the extent, nature and amount of such injury being impossible to ascertain.
69. Plaintiffs have no plain, speedy and adequate remedy at law.
70. For these reasons, preliminary and permanent injunctive relief is appropriate.
WHEREFORE, plaintiffs and plaintiff class are entitled to injunctive relief as more fully set forth below.
Plaintiffs incorporate Paragraphs 1 through 70 above as if fully set forth, and, for a cause of action, allege as follows:
71. An actual and substantial controversy exists between Plaintiffs and members of the Plaintiff class on the one hand, and Defendant on the other hand, as to the following matters:
72. Plaintiffs contend that in various ways, as alleged above, Defendant has violated federal and California law. Defendant contends the opposite. Declaratory relief is therefore appropriate.
WHEREFORE, plaintiffs pray for relief as more fully set forth below.
Plaintiffs incorporate Paragraphs 1 through 72 of this complaint as though fully set forth herein, and for a cause of action, allege as follows:
73. Plaintiffs and members of the plaintiff class are owed the un-reimbursed employment expenses as well as other amounts due, and statutory interest thereon.
74. Plaintiffs do not know the precise amount of compensation due to them and to each member of the class. Upon information and belief, Defendant possesses business records from which the amount of compensation due and owing to plaintiffs and members of the class can be determined.
75. The amount of statutory interest owed to plaintiffs and to each member of the class is based on the amount of compensation allegedly owed. This amount can only be determined by an accounting of Defendant FEG's books and records.
WHEREFORE, plaintiffs and plaintiff class pray for relief as more fully set forth below.
Plaintiffs incorporate Paragraphs 1 through 75 of this complaint as though fully set forth herein, and for a cause of action, allege as follows:
76. California Civil Code Section 2699 provides for the imposition of civil penalties for violations of the California Labor Code where there is no statute which specifically provides for the imposition of civil penalties in specified amounts to punish the alleged statutory violation;
77. By and through the conduct described above, including failing to indemnify plaintiffs and class members for their work-related expenses, by failing and refusing to provide plaintiffs and class members with workers compensation insurance and unemployment insurance benefits, by failing to pay overtime compensation to Plaintiffs and plaintiff class members who operate trucks with a gross vehicle weight rating of less than 10,001 pounds, by failing and refusing to provide meal and/or rest periods, by unlawfully deducting money from wages and coercing Plaintiffs and plaintiff class members to patronize Defendant and allied companies, Defendant has violated numerous provisions of the California Labor Code, including but not limited to Sections 221, 223, 226.7, 450, 510, 1194, and 2802 as detailed above.
78. Pursuant to California Labor Code Section 2699, Defendant is liable for civil penalties of $100 per aggrieved employee per pay period for each initial statutory violation described above, and $200 per aggrieved employee per pay period for each subsequent violation payable to the California General Fund, the Labor and Workforce Development Agency, and Plaintiffs and members of the Plaintiff class for each pay period commencing November 12, 2000 and for each subsequent pay period to the date of trial.
79. Plaintiffs have satisfied all of the prerequisites required for maintaining a civil suit to recover such penalties provided for in California Labor Code Section 2699.3. Plaintiffs, by and through their counsel, provided written notice by certified mail to the California Labor and Workforce Development Agency and Defendant of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation. Thereafter, in a letter dated December 23, 2004, the California Labor and Workforce Development Agency notified both Defendant and Plaintiffs' counsel that it does not intend to investigate the alleged violation. A true and correct copy of this letter is attached here as Exhibit B.
WHEREFORE plaintiffs and the plaintiff class pray for relief as more fully set forth below.
Plaintiffs incorporate Paragraphs 1 through 79 of this complaint as though fully set forth herein, and for a cause of action, allege as follows:
80. Plaintiffs, on behalf of themselves and a class of similarly-situated FXG pick-up and delivery drivers, have asserted their rights under California law, including by instituting, prosecuting and participating in the instant proceeding claiming that Defendant has, inter alia, failed to provide reimbursement for work-related expenses pursuant to California Labor Code § 2802, failed to pay overtime compensation pursuant to California Labor Code §§1194 and 510, failed to timely pay wages owed pursuant to California Labor Code § 201, deprived meal and break periods pursuant to California Labor Codes §§510, 226.7 and IWC 9, and made illegal deductions from wages pursuant to California Labor Code §221 and 223, engaged unlawful coercion in violation of California Labor Code §450 et seq., engaged in fraud, committed unfair business practices in violation of California Business and Professions Code §§17200 et. seq.
81. Plaintiffs' assertion of their rights on their own behalf and on behalf of a class of similarly-situated FXG pick-up and delivery drivers under California law, including their institution, prosecution, and/or participation in the instant proceeding, constitutes activity protected by public policies.
82. Because Plaintiffs asserted their rights on behalf of themselves and a class of similarly-situated FXG drivers under California law as described herein, including by instituting, prosecuting, and/or participating in the instant proceeding, Defendant has willfully and maliciously subjected and continues to subject Plaintiffs and class members to adverse employment actions including, inter alia, eliminating all single-work area driver positions and conditioning Plaintiffs' and class members' work and right to receive monies from Defendant on their agreement to waive and/or release legal claims against Defendant.
83. Plaintiffs and plaintiff class have suffered and will continue to suffer damages as a result of Defendant's unlawful conduct described herein and are entitled to damages according to proof.
84. In addition, Plaintiffs and plaintiff class members are entitled to an injunction. Defendant, if not enjoined by this Court, will continue to engage in the unlawful conduct described above in derogation of the rights of Plaintiffs and of class members to engage in activities protected by public policies.
85. If an injunction does not issue enjoining Defendant from engaging in the unlawful practices described above, Plaintiffs and members of the class will be irreparably injured, the extent, nature and amount of such injury being impossible to ascertain.
86. Plaintiffs have no plain, speedy and adequate remedy at law.
87. For these reasons, equitable relief is appropriate.
WHEREFORE Plaintiffs are entitled to relief as more fully set forth below.
Plaintiffs incorporate by reference Paragraphs 1 through 87 above as if fully set forth, and allege as follows:
88. By all of the foregoing alleged conduct of soliciting and attempting to enforce indemnification and release agreements from Plaintiffs, and by engaging in the other acts and conduct alleged above, FEG and FHD are, and are continuing to violate, inter alia, California Civil Code §1668.
89. Defendant, if not enjoined by this Court, will continue to engage in the said unlawful conduct in derogation of the rights of Plaintiffs.
90. Absent injunctive relief enjoining Defendant from engaging in the unlawful, conduct described above, Plaintiffs will be irreparably injured, the extent, nature and amount of such injury being impossible to ascertain.
91. Plaintiffs have no plain, speedy and adequate remedy at law.
92. For these reasons, preliminary and permanent injunctive relief is appropriate.
93. An actual and substantial controversy exists between Plaintiffs on the one hand, and Defendant on the other hand, as to the following matters:
94. Plaintiffs contend that in various ways, as alleged above, Defendant has violated California law. Defendant contends the opposite. Declaratory relief is therefore appropriate.
WHEREFORE, plaintiffs pray for relief as more fully set forth below.
Plaintiffs, on their own behalf, on behalf of each member of the plaintiff class, and as private attorneys general on behalf of the public, pray for judgment as follows:
1. For an order by the Court certifying the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh causes of action as statewide class action claims pursuant to Federal Rule of Civil Procedure 23 and/or California Code of Civil Procedure §382;
2. As to the First, Second, Third, Fourth, Fifth, Sixth and Seventh, Twelfth and Thirteenth Causes of Action, for an award to plaintiffs and all members of the class, the overtime subclass, and the meal and rest break subclass, of compensatory and punitive damages and other penalties in an amount which may be proven at trial, together with prejudgment interest at the maximum rate allowed by law, costs and reasonable attorney fees;
3. As to the Sixth Cause of Action for Fraud, for an award of punitive damages in an amount to be proven at trial;
4. As to the Seventh Cause of Action, for an order by the Court restoring and/or returning to plaintiffs and members of the class all of defendant's unfairly or illegally gotten profits measured by un-reimbursed expenses incurred, insurance premiums including for work accident and physical damage (deadhead) insurance, unpaid unemployment insurance benefits, monies unlawfully withheld from wages, unpaid overtime, a portion of self-employment tax paid by Plaintiffs and plaintiff class members which should have been paid by Defendant and other money due as part of a full restitutionary remedy;
5. As to the Eighth Cause of Action, for an order by the Court preliminarily and permanently enjoining Defendant from continuing their unfair, unlawful and/or fraudulent business practices;
6. As to the Tenth Cause of Action, for an accounting of all damages and/or restitution, and/or pre-judgment interest;
7. As to the Eleventh Cause of Action, for civil penalties as provided for in California Labor Code Section 2699;
8. As to the Twelfth Cause of Action, for equitable relief including a declaration that the waivers and releases sought by Defendant from Plaintiffs are unlawful and unenforceable and that Defendant's solicitation of such releases is unlawful and a Temporary Restraining Order and preliminary and permanent injunction prohibiting Defendant from soliciting or enforcing such waivers and releases;
9. For an award to plaintiffs of all of their costs and expenses incurred in this action, including reasonable attorneys' pursuant to applicable California law, including but not limited to Cal. Code of Civil Procedure §1021.5 and California Labor Code §§1194, 2802, 2699(f) and other laws; and
10. For such other and further relief as this Court deems just and proper.
Plaintiffs demand a trial by jury of all claims as to which they are entitled to jury trial.
