LFI/RoseArt: 1st Amended Complaint (Recovered)

Transcription

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Alan Harris (SBN 146079)
HARRIS & RUBLE
655 North Central Avenue
Glendale, California 91203
Telephone: 323.962.3777
Facsimile: 323.962.3004
aharris@harrisandruble.com
David S. Harris (SBN 215224)
NORTH BAY LAW GROUP
116 E. Blithedale Avenue, Suite 2
Mill Valley, California 94941
Telephone: 415.388.8788
Facsimile: 415.388.8770
dsh@northbaylawgroup.com
Attorneys for Plaintiffs
Leslie Veurink and Andrew Carr
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SONOMA
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LESLIE VEURINK and ANDREW
CARR, individually and on behalf
of all others similarly situated,
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Plaintiffs,
v.
BEVERLY HEALTH AND
REHABILITATION SERVICES,
INC., GOLDEN LIVINGCENTER
- PETALUMA, GGNSC
ADMINISTRATIVE SERVICES,
LLC, HOSPICE PREFERRED
CHOICE, INC. and DOES 1 to 10,
Defendants.
Case No. SCV 255496
FIRST AMENDED COMPLAINT –
CLASS ACTION AND
COLLECTIVE ACTION
1. Failure to Pay Minimum Wage and
Overtime Compensation, California
Labor Code
2. Failure to Provide Accurate Itemized
Wage Statements (Cal. Lab. Code § 226)
3. Failure to Pay Overtime
Compensation, Fair Labor Standards Act
4. Failure to Provide Proper Response to
Information Request (Cal. Lab. Code §
226(c))
5. Failure to Provide Adequate Meal
Periods
6. Failure to Provide Adequate Rest
Periods
7. Continuing Wages (Cal. Lab. Code §
203)
8. Violations of Section 17200 et seq. of
the California Business and Professions
Code
9. Retaliation and Wrongful
Termination in Violation of Cal. Lab.
Code § 1102.5
10. Retaliation and Wrongful
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FIRST AMENDED COMPLAINT
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Termination in Violation of California
Public Policy
11. Retaliation for Engaging in Protected
Activity—California Government Code
section 12940(g)
12. Sexual Orientation Discrimination—
California Government Code section
12940(a)
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DEMAND FOR JURY TRIAL
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Plaintiffs Leslie Veurink and Andrew Carr, by and through their undersigned
attorneys, alleges as follows:
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JURISDICTION AND VENUE
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This is a civil class action seeking continuing wages, restitution, injunctive
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relief, damages and attorneys’ fees and costs. Venue is proper in this judicial district,
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pursuant to California Business & Professions Code section 17203 and California Code
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of Civil Procedure sections 395(a) and 395.5. Defendants maintain an office, transact
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business, have an agent, or are found in the County of Sonoma and are within the
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jurisdiction of this Court for purposes of service of process. The unlawful acts alleged
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herein had a direct effect on and were committed within the County of Sonoma, State of
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California.
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PARTIES
2.
Plaintiff Leslie Veurink (hereinafter, “Veurink”) is an individual who,
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during the time periods relevant to this Complaint, was employed by Defendants within
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the City of Petaluma, State of California. Plaintiff is a resident of the State of California.
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3.
Plaintiff Andrew Carr (hereinafter “Carr”) is an individual who, during the
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time periods relevant to this Complaint, was employed by Defendants within the City of
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Petaluma, State of California. Plaintiff is a resident of the State of California. Plaintiffs
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Veurink and Carr are collectively referred to herein as “Plaintiffs.”
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4.
Defendant BEVERLY HEALTH AND REHABILITATION SERVICES,
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INC. (“BHRS”) was and is a California Corporation doing business within the State of
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California. BHRS is headquartered in Fort Smith, Arkansas. Plaintiff is informed and
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believes and thereupon alleges that BHRS holds the skilled nursing facility license for a
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number of Golden Living facilities throughout California, including without limitation
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Defendant GOLDEN LIVINGCENTER – PETALUMA (“GLCP”). Plaintiff is informed
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and believes and thereupon alleges that in addition to holding the skilled nursing facility
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license and owning and operating GLCP, it also holds the skilled nursing facility license
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and owns and operates, without limitation, all of the following Golden LivingCenters in
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California: Golden LivingCenter – Bakersfield, Golden LivingCenter - Chateau in
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Stockton, Golden LivingCenter - Galt, Golden LivingCenter - London House Sonoma,
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Golden LivingCenter - Napa, Golden LivingCenter - Portside of Stockton, Golden
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LivingCenter - San Jose, and Golden LivingCenter - Santa Rosa.
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GGNSC Administrative Services, LLC is a Delaware limited liability
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company, authorized to do business in California. Defendant Hospice Preferred Choice,
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Inc. is a Delaware corporation, authorized to do business in California. Hereinafter
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BHRS, GLCP, GGNSC Administrative Services, LLC and Hospice Preferred Choice,
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Inc. shall be collectively referred to as “Defendants.”
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6.
The true names and/or capacities, whether individual, corporate, associate or
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otherwise, of defendants Does 1 to 10 inclusive, are unknown to Plaintiffs at this time,
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who therefore sues said defendants by such fictitious names. When the true names and
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capacities of said defendants have been ascertained, Plaintiffs will amend this complaint
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accordingly. Plaintiffs are informed and believes and thereupon alleges that each
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defendant designated herein as a Doe is responsible, negligently, intentionally,
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contractually, or in some other actionable manner, for the events and happenings
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hereinafter referred to, and caused injuries and damages proximately thereby to Plaintiffs
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as is hereinafter alleged, either through said defendants' own wrongful conduct or through
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the conduct of their agents, servants, employees, representatives, officers or attorneys, or
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in some other manner.
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NATURE OF THE CASE
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This action is brought as a class action and federal Fair Labor Standards Act
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(“FLSA”) collective action on behalf of all current and former hourly clinical employees
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of Defendants employed in California during the Class Period, i.e. from June 8, 2008 to
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May 23, 2014. This action is also brought as a collective action on behalf of all
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individuals who, at any time during the three years preceding the filing of the Carr
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Complaint, were or have been employed by Defendants in the State of California. As set
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forth in detail infra, this action is also brought as an individual action on behalf of
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Plaintiff Carr.
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8.
Defendants operate skilled nursing facilities throughout the State of
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California. These facilities purport to provide skilled and special services to the elderly
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and sick residents. Defendants’ services include but are not limited to nursing, physical
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therapy, speech therapy, occupational therapy, stroke rehabilitation, balance
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management, IV therapy, diabetes management, pain management, continence
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management dialysis care, and wound care. Additionally, Defendants provide residents
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with special services include dementia and Alzheimer’s care and long term care.
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Defendants’ facilities provide residents with a wide array of amenities including, without
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limitation, dining facilities, hairdressing, spiritual services, recreational and social
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activities and transportation.
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9.
Plaintiff Veurink worked as a Nurse at Defendants’ Golden LivingCenter
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facility in Petaluma, California (the “GLCP facility”) until her employment by
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Defendants ended. In Plaintiff Veurink’s capacity as a Nurse, she provided nursing care
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to the residents of the facility. Plaintiff Carr worked at Defendants’ GLCP facility from
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on or about October 2009 through on or about June 13, 2011, when his employment was
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terminated by Defendants. In his capacity as an employee for Defendants, Plaintiff Carr
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worked as a Licensed Vocational Nurse or “LVN.” In Plaintiff Carr’s capacity as an
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LVN, he would provide nursing care to the residents of the GLCP facility. The services
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Plaintiffs provided included, without limitation, the following: administer medication,
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treatments, patient teaching and documentation; monitor 24-hour chart checks;
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assist/create facility forms (i.e., standardized orders for comfort care residents); organize
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pneumonia and influenza vaccine programs; patient teaching and documentation; assist
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doctors with bedside procedures (i.e., central line insertion, lumbar punctures); drug
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administration to patients; IV pumps; injections & immunizations; maintenance of
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tracheotomy patients; blood glucose monitoring; post-surgical coronary care;
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maintenance of AV fistulas; oxygen therapy; chest, NB/sump peg tubes; maintenancy of
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psychiatric patients and families; wound care; basic life support; geriatric care;
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patient/family education; care plan administration; admissions transfers and discharges;
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transcription of physicians’ orders, coordinate patient transportation; and attended
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educational classes to maintain LVN duties.
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10.
Defendants provide their residents assigned, trained staff. The staff must be
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available to the residents 24 hours per day, 7 days per week. Indeed, there is always an
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employee who is responsible for a resident’s care. Due to the Defendants’ promise to
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provide around-the-clock services, Defendants’ employees are instructed that they may
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not leave their floor or assigned area for any reason unless another employee relieves
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them.
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The State of California also has laws that require certain types of facilities,
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like those run by Defendants, to maintain minimal staffing ratios for particular categories
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of residents that are under their care. Thus, in certain areas within Defendants’ facilities,
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higher staffing ratios must be maintained in order to comply with California law.
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12.
Due to the strict 24-hour monitoring policy of residents, Defendants’
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employees cannot take a meal or rest break unless another employee comes to relieve
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them of their duties. Furthermore, Defendants’ own written policy states that
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Defendants’ management will schedule a meal period for each employee who is
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scheduled to work more than a five-hour shift. Thus, Defendants’ employees, including
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Plaintiff, were unable to take their meal or rest periods unless and until scheduled and
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approved by management, and until another employee came to relieve them. Similarly,
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with respect to rest breaks, Defendants’ written policy states that it is the responsibility of
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the department head or immediate supervisor to schedule paid fifteen-minute rest periods
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for each four hours of working time. Once again, however, Defendants’ employees could
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not take a rest period unless and until it was scheduled and approved by management, and
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until another employee came to relieve them.
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13.
Defendants both failed to employ an adequate number of employees and had
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no provisions or ability to consistently allow and/or provide an employee with rest
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breaks. In addition, Defendants failed to provide a one-hour wage premium to Plaintiff
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and other employees for those times when an employee did not receive a meal or rest
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break. Furthermore, Defendants’ employees were regularly unable to take a 30-minute
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meal break and had to eat their meal in their assigned area while continuing to monitor
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their residents. In those rare instances when employees were relieved of their
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responsibilities and provided with a meal break, many times the meal break was either
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not provided to Defendants’ employees within the first five hours of the shift, or, the
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employees did not receive a full 30-minute break during which the employee was
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relieved of all duties, and, in addition, when working shifts in excess of ten or fifteen
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hours per day, the Defendants’ employees were not properly provided the required rest
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and meal periods.
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14.
In those instances (1) when an employee was required to work through the
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meal break, (2) when an employee was required to come back from a meal break before
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they were able to finish their entire 30-minute meal period, or (3) when an employee did
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not receive their meal break within the first five hours of their workday or an additional
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meal break for each subsequent five-hour period, Defendants largely failed to provide
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their employees with one additional hour of pay at the employee’s regular rate of
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compensation for each work day that the proper 30-minute meal period was not provided
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to the employee. For example, attached hereto as Exhibit 1 is a copy of one of Plaintiff
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Carr’s timecards. As set forth therein, on July 17, 18 and 23, Plaintiff Carr did not
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receive his lunch break within the first five hours of his shifts, thereby entitling him to a
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one-hour wage premium.
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Additionally, it is the regular practice at Defendants’ facilities, including
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GLCP, for one of Defendants’ employees in charge of time-keeping and payroll to go
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into Defendants’ electronic time keeping system and manually insert or change a “punch
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in” and “punch out” on an employee’s time card to make it appear as though the
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employee took their entire 30-minute meal break, even though no such break was
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provided by Defendants. Defendants would make these changes to employee time cards
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without obtaining the approval of the employee. Defendants’ own written policy requires
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that in order to change an employee’s time or to add a missed punch, they must fill out a
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Time Clock Adjustment form, which requires that all corrections be initialed by both the
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employee and the employee’s supervisor. However, in almost all such instances,
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employees’ time was changed to make it appear as though they received their 30-minute
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meal break even though no such meal break was provided and the employee and
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supervisor did not sign a Time Clock Adjustment form. Employees are owed a one-hour
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wage premium, as well as owed regular overtime wages for the on-duty meal period, for
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all of the above violations.
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16.
At the end of a regularly scheduled shift, Plaintiffs and other employees
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were often not done with the work required for that day. For example, Plaintiffs often
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needed to complete “charting” even though the scheduled shift had been completed.
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Employees, including Plaintiffs, were required to punch out and then come back and
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finish their charting. In such instances, Plaintiffs and other employees were not paid
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minimum wage and/or overtime wages for their time spent working off the clock.
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Further, Defendant failed to properly compute the applicable regular rate when
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determining the overtime wage rate to pay its employees, including Plaintiffs.
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17.
At all relevant times mentioned herein, section 510 (a) of the California
Labor Code provided:
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Eight hours of labor constitutes a day’s work. Any work in excess of eight
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hours in one workday and any work in excess of 40 hours in any one
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workweek and the first eight hours worked on the seventh day of work in
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any one workweek shall be compensated at the rate of at least one and
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one-half times the regular rate of pay for an employee. Any work in
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excess of 12 hours in one day shall be compensated at the rate of no less
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than twice the regular rate of pay for an employee. In addition, any work
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in excess of eight hours on any seventh day of a workweek shall be
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compensated at the rate of no less than twice the regular rate of pay of an
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employee. Nothing in this section requires an employer to combine more
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than one rate of overtime compensation in order to calculate the amount to
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be paid to an employee for any hour of overtime work. The requirements
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of this section do not apply to the payment of overtime compensation to
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an employee working pursuant to any of the following
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(1) An alternative workweek schedule adopted pursuant to Section 511.
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(2) An alternative workweek schedule adopted pursuant to a collective
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bargaining agreement pursuant to Section 514.
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Cal. Lab. Code § 510.
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In regard to Plaintiffs’ employment, the provisions of subparagraphs (1) and
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(2) of section 510 of the California Labor Code were inapplicable because no alternative
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workweek schedule had been adopted pursuant to section 511, and Plaintiffs’
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employment to which reference is hereinafter made was not governed by any collective
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bargaining agreement.
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19.
At all relevant times mentioned herein, section 1194 of the California Labor
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Code provided:
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Notwithstanding any agreement to work for a lesser wage, any employee
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receiving less than the legal minimum wage or the legal overtime
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compensation applicable to the employee is entitled to recover in a civil
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action the unpaid balance of the full amount of this . . . overtime
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compensation, including interest thereon, reasonable attorney’s fees, and
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costs of suit.
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Cal. Lab. Code § 1194. At all relevant times mentioned herein, section 1194.2 of
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the California Labor Code provided:
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(a) In any action under . . . Section 1194 to recover wages because of the
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payment of a wage less than the minimum wage fixed by an order of the
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commission, an employee shall be entitled to recover liquidated damages in
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an amount equal to the wages unlawfully unpaid and interest thereon.
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Cal. Lab. Code § 1194.2.
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20.
Notwithstanding the foregoing requirements of law, Plaintiffs were routinely
denied proper payment of minimum wage or overtime wages. For example, Plaintiffs
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were not compensated for all work performed after the scheduled work shift.
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Additionally: (1) Plaintiffs and other employees were not compensated for time the
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employee worked during a meal break in those instances when an improper change or
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additional improper punch was added to Plaintiffs’ time cards to make it appear as though
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Plaintiffs received a 30 minute meal break and (2) Plaintiffs and other employees were
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not routinely paid the full overtime rate to which they were entitled, Defendant failing to
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properly compute the applicable regular rate.
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21.
Accordingly, at all times relevant hereto, sections 510, 515, 1194, and 1198
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of the California Labor Code and 8 California Code of Regulations section 110501
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required (1) the payment of wages equal to one-and-one-half times an employee’s regular
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rate of pay for all hours worked in excess of eight per day or forty per week and (2) the
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payment of wages equal to double the employee’s regular rate of pay for all hours
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worked in excess of twelve per day and for all hours worked in excess of eight on the
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seventh day of work in any one workweek.
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22.
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[N]o employer shall employ any of his employees who in any workweek is
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engaged in commerce or in the production of goods for commerce, or is
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employed in an enterprise engaged in commerce or in the production of
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Similarly, at all times relevant hereto, the FLSA provided:
Section 11070 sets forth the relevant Industrial Welfare Commission Wage Order.
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goods for commerce, for a workweek longer than forty hours unless such
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employee receives compensation for his employment in excess of the hours
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above specified at a rate not less than one and one-half times the regular rate
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at which he is employed
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29 U.S.C. § 207(a)(1).
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At all times relevant hereto, sections 226.7 and 512 of the California Labor
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Code, as well as 8 California Code of Regulations section 11050, required employers to
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provide employees with a first meal period of not less than thirty minutes, during which
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the employees are to be relieved of all duty, before the employees work more than five
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hours per day. Sections 226.7 and 512 of the California Labor Code, as well as 8
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California Code of Regulations section 11050, also required employers to provide a
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second meal period of not less than thirty minutes, during which the employees are again
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to be relieved of all duty, before the employees work more than ten hours per day.
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According to the Regulation:
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Notwithstanding any other provision of this order, employees in the health care
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industry who work shifts in excess of eight (8) total hours in a workday may
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voluntarily waive their right to one of their two meal periods. In order to be valid,
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any such waiver must be documented in a written agreement that is voluntarily
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signed by both the employee and the employer. The employee may revoke the
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waiver at any time by providing the employer at least one day’s written notice. The
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employee shall be fully compensated for all working time, including any on-the-
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job meal period, while such a waiver is in effect.
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24.
At all times relevant hereto, sections 226.7 and 512 of the California Labor
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Code, as well as 8 California Code of Regulations section 11050, required employers to
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provide employees with ten-minute rest periods, during which the employees are relieved
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of all duty, for each four hours of work or fraction thereof. As alleged herein, Defendants
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intentionally and improperly failed to provide meal and rest periods to its employees in
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violation of the California Labor Code and California Code of Regulations.
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25.
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Code provided:
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If an employer willfully fails to pay, without abatement or reduction, in
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accordance with Sections 201, 201.5, 202 and 202.5, any wages of an
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employee who is discharged or who quits, the wages of the employee shall
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continue as a penalty from the due date thereof at the same rate until paid or
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until action therefor is commenced; but the wages shall not continue for
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more than 30 days.
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26.
Plaintiffs contend that the failure of Defendants to pay them within the time
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provided by sections 201 and 202 of the California Labor Code has been and is “willful”
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within the meaning of section 203 of the California Labor Code and that, accordingly,
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Plaintiffs are entitled to the “continuing wages” provided for by section 203.
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27.
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Code provided:
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The maximum hours of work and the standard conditions of labor fixed by
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the [Industrial Welfare Commission] shall be the maximum hours of work
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and the standard conditions of labor for employees. The employment of any
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employee for longer hours than those fixed by [an] order or under conditions
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of labor prohibited by [an] order is unlawful.
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28.
At all relevant times mentioned herein, Wage Order Number 5 (as
periodically amended) applied to Plaintiffs. 8 Cal. Code Reg. § 11050.
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Wage Order 5 requires a one-hour wage premium for each day that an
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employee is not provided with a mandated ten-minute rest period per four-hour work
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period or major fraction thereof. Additionally, Wage Order 5 requires a one-hour wage
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premium for each day that an employee is not provided with a mandated thirty-minute
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meal period for any shift that is longer than five hours. Finally, Wage Order 5 requires
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that those who are employed more than eight (8) hours in any workday or more than 40
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hours in any workweek receive overtime compensation.
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30.
The right to rest periods and meal periods has been codified in sections
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226.7 and 512 of the California Labor Code. At all relevant times mentioned herein,
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section 512(a) provided:
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An employer may not employ an employee for a work period of more than
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five hours per day without providing the employee with a meal period of not
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less than 30 minutes, except that if the total work period per day of the
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employee is no more than six hours, the meal period may be waived by
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mutual consent of both the employer and employee. An employer may not
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employ an employee for a work period of more than 10 hours per day
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without providing the employee with a second meal period of not less than
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30 minutes, except that if the total hours worked is no more than 12 hours,
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the second meal period may be waived by mutual consent of the employer
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and the employee only if the first meal period was not waived.
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At all relevant times mentioned herein, section 226.7(b) provided:
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If an employer fails to provide an employee a meal period or rest period in
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accordance with an applicable order of the Industrial Welfare Commission,
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the employer shall pay the employee one additional hour of pay at the
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employee’s regular rate of compensation for each work day that the meal or
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rest period is not provided.
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31.
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Compensation for missed rest and meal periods constitutes wages within the
meaning of section 201 of the California Labor Code.
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32.
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Code provided:
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(a) Any employer or other person acting on behalf of an employer who
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violates, or causes to be violated, a section of this chapter or any provision
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regulating hours and days of work in any order of the Industrial Welfare
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Commission shall be subject to a civil penalty as follows: (1) For any initial
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violation, fifty dollars ($50) for each underpaid employee for each pay
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period for which the employee was underpaid in addition to an amount
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sufficient to recover underpaid wages. (2) For each subsequent violation,
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one hundred dollars ($100) for each underpaid employee for each pay period
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for which the employee was underpaid in addition to an amount sufficient to
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recover underpaid wages. (3) Wages recovered pursuant to this section shall
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be paid to the affected employee.
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33.
Plaintiffs contend that Defendants’ failure to comply with sections 510 and
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512 of the California Labor Code subjects Defendants to civil penalties pursuant to
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section 558.
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34.
At all times relevant hereto, sections 226, 1174, and 1174.5 of the California
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Labor Code required employers to keep records of and provide employees with itemized
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wage statements showing the total hours worked.
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35.
Plaintiffs also contend that Defendants’ failure to comply with section 226
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of the California Labor Code subjects Defendants to civil penalties pursuant to section
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226.3 of the California Labor Code. At all relevant times mentioned herein, section 226
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of the California Labor Code provided:
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(a) Every employer shall, semimonthly or at the time of each payment of
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wages, furnish each of his or her employees, either as a detachable part of
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the check, draft, or voucher paying the employee’s wages, or separately
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when wages are paid by personal check or cash, an itemized statement in
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writing showing (1) gross wages earned, (2) total hours worked by the
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employee, except for any employee whose compensation is solely based on
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a salary and who is exempt from payment of overtime under subdivision (a)
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of Section 515 or any applicable order of the Industrial Welfare
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Commission, (3) the number of piece-rate units earned and any applicable
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piece rate if the employee is paid on a piece-rate basis, (4) all deductions,
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provided, that all deductions made on written orders of the employee may be
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aggregated and shown as one item, (5) net wages earned, (6) the inclusive
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dates of the period for which the employee is paid, (7) the name of the
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employee and his or her social security number, (8) the name and address of
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the legal entity that is the employer, and (9) all applicable hourly rates in
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effect during the pay period and the corresponding number of hours worked
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at each hourly rate by the employee. The deductions made from payments
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of wages shall be recorded in ink or other indelible form, properly dated,
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showing the month, day, and year, and a copy of the statement or a record of
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the deductions shall be kept on file by the employer for at least three years at
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the place of employment or at a central location within the State of
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California.
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....
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(e) An employee suffering injury as a result of a knowing and intentional
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failure by an employer to comply with subdivision (a) is entitled to recover
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the greater of all actual damages or fifty dollars ($50) for the initial pay
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period in which a violation occurs and one hundred dollars ($100) per
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employee for each violation in a subsequent pay period, not exceeding an
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aggregate penalty of four thousand dollars ($4,000), and is entitled to an
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award of costs and reasonable attorney’s fees.
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....
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(g) An employee may also bring an action for injunctive relief to ensure
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compliance with this section, and is entitled to an award of costs and
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reasonable attorney's fees.
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Cal. Lab. Code § 226. Defendants employed Plaintiffs and other employees but
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failed to provide them with the data required by section 226 of the California
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Labor Code. For example, Defendants failed to provide information concerning
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(1) all wages earned on account of meal and rest penalties, (2) the total hours
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worked by the employee, (3) information regarding the time and wages for work
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performed by Plaintiffs but not paid for by Defendants and (4) the correct overtime
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rate based on the correct “regular rate.” Exhibit 2 hereto reflects certain of
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Plaintiff Carr’s wage statements.
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36.
At all relevant times mentioned herein, section 226.3 of the California Labor
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Code provided:
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Any employer who violates subdivision (a) of Section 226 shall be subject to
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a civil penalty in the amount of two hundred fifty dollars ($250) per
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employee per violation in an initial citation and one thousand dollars
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($1,000) per employee for each violation in a subsequent citation, for which
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the employer fails to provide the employee a wage deduction statement or
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fails to keep the records required in subdivision (a) of Section 226. The civil
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penalties provided for in this section are in addition to any other penalty
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provided by law.
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Cal. Lab. Code § 226.3.
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37.
At all relevant times mentioned herein, section 204(a) of the California
Labor Code provided:
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All wages, other than those mentioned in Section 201, 202, 204.1, or 204.2,
19
earned by any person in any employment are due and payable twice during
20
each calendar month, on days designated in advance by the employer as the
21
regular paydays. Labor performed between the 1st and 15th days, inclusive,
22
of any calendar month shall be paid for between the 16th and the 26th day of
23
the month during which the labor was performed, and labor performed
24
between the 16th and the last day, inclusive, of any calendar month, shall be
25
paid for between the 1st and 10th day of the following month.
26
Cal. Lab. Code § 204(a). California Labor Code section 210 provides civil
27
penalties for violations of California Labor Code section 204.
28
15
1
38.
Defendants’ conduct of requiring additional work from Plaintiffs and Class
2
Members in the absence of minimum wage and overtime pay, knowingly and
3
intentionally failing to provide accurate itemized wage statements, failing to provide
4
adequate meal and rest periods, and willfully failing to pay wages earned and unpaid
5
promptly upon employees’ termination or resignation violates the above-referenced
6
provisions of California law and also constitutes unfair competition and unlawful, unfair,
7
and fraudulent acts and practices within the meaning of section 17200 et seq. of the
8
California Business and Professions Code.
9
10
CLASS-ACTION ALLEGATIONS
39.
The class represented by Plaintiffs (hereinafter referred to as the “Class”)
11
consists of all current and former hourly clinical employees of Beverly Health and
12
Rehabilitation Services, Inc., GGNSC Administrative Services, LLC and Hospice
13
Preferred Choice, Inc., employed in California during the Class Period, i.e. from June 8,
14
2008 to May 23, 2014. The class excludes 1) any individual who is a Plaintiff in
15
pending litigation against Golden Living in federal or state court involving claims under
16
the FLSA or California Labor Code or who executed a court-approved waiver of claims
17
in any such case, and 2) any individual who chose to opt-in and receive a settlement
18
payment in the case of Jarrett v. GGSNC Holdings, LLC, 2:12-cv-04105-BP, pending in
19
the United States District Court for the Western District of Missouri. (such persons
20
referred to hereafter as “Class Members” and such period referred to hereafter as “Class
21
Period”).
22
40.
Plaintiffs contend that the failure of Defendants to provide the data required
23
by section 226 of the California Labor Code entitles each Class Member to either actual
24
damages or statutory damages, whichever is greater.
25
41.
Plaintiffs contend that Defendants’ failure to pay wages as provided by
26
section 226.7 of the California Labor Code entitles each Class Member to payment of
27
such earned but unpaid wages owing on account of missed rest periods and meal breaks.
28
16
1
42.
Plaintiffs contend that Defendants’ failure to pay minimum wages and
2
overtime wages as provided by sections 204, 514 and 1194 of the California Labor Code
3
entitles each Class Member to payment of such earned but unpaid wages, Defendants
4
having, inter alia, failed to consider unpaid wages owed on account of missed rest
5
periods and meal breaks in computing the overtime rate applicable to Plaintiffs and Class
6
Members.
7
43.
Plaintiffs contend that the failure of Defendants to make final wage
8
payments within the time provided by sections 201 and/or 202 of the California Labor
9
Code has been and is “willful” within the meaning of section 203 of the California Labor
10
Code and that, accordingly, each Class Member who has had his or her employment with
11
Defendants terminated is entitled to the “continuing wages” for which provision is made
12
by section 203 of the California Labor Code.
13
44.
The number of Class Members is great, believed to be approximately 1,000
14
persons. It therefore is impractical to join each Class Member as a named plaintiff.
15
Nevertheless, the number of Class Members is not so great as to make certification
16
unmanageable. Accordingly, utilization of a class action is the most economically
17
feasible means of determining the merits of this litigation.
18
45.
Despite the numerosity of the Class Members, the Class Members are
19
readily ascertainable through an examination of the records that Defendants are required
20
by law to keep. Likewise, the dollar amount owed to each Class Member is readily
21
ascertainable by an examination of those same records. The Defendants’ records reflect
22
the name and address of its employees, along with a description of their job duties.
23
46.
Common questions of fact and of law predominate in the claims of Class
24
Members over individual issues regarding the money owed to each Class Member. Some
25
of the common issues herein are described in Paragraph 44, infra.
26
47.
There is a well-defined community of interest in the questions of law and
27
fact common to the Class Members. Some of the common issues herein are described in
28
Paragraph 48, infra.
17
1
48.
Plaintiffs’ claims are typical of the claims of the Class Members, which
2
claims all arise from the same general operative facts, namely, Defendants did not
3
compensate its employees as required by the California Labor Code and the Fair Labor
4
Standards Act. Plaintiffs have no conflict of interest with the other Class Members or
5
Class Members and Plaintiffs and Plaintiffs’ counsel are able to represent the interests of
6
the other Class Members fairly and adequately.
7
49.
A class action is a superior method for the fair and efficient adjudication of
8
this controversy. The persons within the Class are so numerous that joinder of all of
9
them is impracticable. The disposition of all claims of the members of the class in a class
10
action, rather than in individual actions, benefits the parties and the court. The interest of
11
the Class Members in controlling the prosecution of separate claims against Defendant is
12
small when compared with the efficiency of a class action. The claims of each individual
13
Class Member are too small to litigate individually, and the commencement of separate
14
actions in this Court would lead to an undue burden on scarce judicial resources. Further,
15
the alternative of individual proceedings before the California Labor Commissioner is
16
impractical inasmuch as that agency has insufficient resources to process such claims
17
promptly and, under the provisions of California Labor Code section 98.2, if the
18
individual class members were to succeed in obtaining awards in their favor, such awards
19
are subject to appeal as a matter of right for a de novo trial, leading to a multiplicity of
20
such trials. Further, absent class treatment, employees will most likely be unable to
21
secure redress given the time and expense necessary to pursue individual claims, and
22
individual Class Members will likely be unable to retain counsel willing to prosecute
23
their claims on an individual basis, given the small amount of recovery. As a practical
24
matter, denial of class treatment will lead to denial of recovery to the individual Class
25
Members.
26
50.
Community of Interest; Existence and Predominance of Common
27
Questions of Law or Fact. Common questions of fact and law exist as to all Class
28
Members that predominate over any questions affecting only individual Class Members.
18
1
These common legal and factual questions do not vary among Class Members and may
2
be determined without reference to the individual circumstances of any Class Member.
3
The questions include, but are not limited to, the following:
4
(a) Was such Class Member an employee of BHRS?
5
(b) Was such Class Member provided a wage statement that complied with section
6
226 of the California Labor Code?
7
(b) Was such Class Member entitled to continuing wages from Defendants?
8
(c) Was such Class Member paid his or her wages as provided by sections 201
9
and/or 202 of the California Labor Code?
10
(d) Did Defendants fail to timely pay Class members their overtime wages?
11
(e) Did Defendants fail to pay Class Members for work performed after a work
12
13
14
15
16
shift and/or during a lunch?
(f) Did Defendants fail to provide Class Members with an appropriate thirtyminute, uninterrupted meal break within the first five hours of the work period?
(g) Did Defendants fail to provide Class Members with a mandated ten-minute rest
period per four-hour work period?
17
(h) Did Defendants fail to follow the requirements of the applicable Wage Order?
18
(i) Did Defendants commit unlawful business acts or practices within the meaning
19
20
of California Business and Professions Code sections 17200 et seq.?
51.
Numerosity of the Class. The Members of the Class are so numerous that
21
the individual joinder of all of them is impracticable. Although the exact number and
22
identities of Class Members are unknown to Plaintiffs at this time and can only be
23
ascertained through appropriate discovery directed to defendants, Plaintiffs believe and
24
therefore allege that there are at least 1,000 Class Members.
25
52.
Typicality of Claims. Plaintiffs’ claims are typical of the claims of
26
Members of the Class, and Plaintiffs’ interests are consistent with and not antagonistic to
27
those of the other Class Members whom they seek to represent. Plaintiffs and all
28
Members of the Class have sustained damages and face irreparable harm arising from
19
1
Defendants’ common course of conduct as complained of herein. The damages sustained
2
by each Member of the Class were caused directly by Defendants’ wrongful conduct, as
3
alleged herein.
4
53.
Adequacy of Representation. Plaintiffs will fairly and adequately protect
5
the interests of the Class Members. Their claims are not antagonistic to those of the
6
Class Members. Also, Plaintiffs have retained attorneys who are experienced in the
7
prosecution of class actions, including employment class actions, and Plaintiffs intend to
8
prosecute this action vigorously.
9
54.
Superiority. A class action is superior to other available methods for the
10
fair and efficient adjudication of this controversy because individual litigation of the
11
claims of all Class Members is impracticable. Even if every Class Member could afford
12
individual litigation, the court system could not. It would be unduly burdensome to the
13
courts in which individual litigation of numerous cases would proceed. Moreover,
14
individualized litigation would present the potential for varying, inconsistent, or
15
contradictory judgments, and it would magnify the delay and expense to all parties and to
16
the court system resulting from multiple trials of the same factual issues. By contrast, the
17
conduct of this action as a class action, with respect to some or all of the issues presented
18
herein, presents few management difficulties, conserves the resources of the parties and
19
of the court system, and protects the rights of each Class Member. Plaintiffs anticipate
20
no difficulty in the management of this action as a class action.
21
55.
The interest of each Class Member in controlling the prosecution of his or
22
her individual claim against Defendants is small when compared with the efficiency of a
23
class action. The prosecution of separate actions by individual Class Members may
24
create a risk of adjudications with respect to them that would, as a practical matter, be
25
dispositive of the interests of the other Class Members not parties to such adjudications or
26
that would substantially impair or impede the ability of such non-party Class Members to
27
protect their interests.
28
56.
The prosecution of individual actions by Class Members would establish
20
1
2
inconsistent standards of conduct for Defendants.
57.
Defendants have acted or refused to act in respects generally applicable to
3
the Class, thereby making appropriate final and injunctive relief or corresponding
4
declaratory relief with regard to Class Members as a whole, as requested herein.
5
Likewise, Defendants’ conduct as described above is unlawful, continuing, and capable
6
of repetition, and it will continue unless restrained and enjoined by the Court.
7
58.
In addition to asserting class-action claims, pursuant to California Business
8
and Professions Code section 17200 et seq., Plaintiffs assert a claim on behalf of the
9
general public. Plaintiffs seek to enjoin Defendants from engaging in the unfair,
10
unlawful, and/or deceptive business practices alleged in this Complaint, as well as to
11
require Defendants to pay restitution of all monies wrongfully obtained by it through its
12
unfair, unlawful, and/or deceptive business practices. A representative action is
13
necessary and appropriate because Defendants have engaged in the wrongful acts
14
described herein as a general business practice.
15
16
FLSA COLLECTIVE-ACTION ALLEGATIONS
59.
In this collective action, Plaintiffs seek to represent all current and former
17
hourly clinical employees of Defendants, employed in the State of California during the
18
period from June 8, 2008 to May 23, 2014 (the “Collective Action Members”).
19
60.
Plaintiffs are similarly situated with the Collective Action Members in that:
20
(a) Plaintiffs and the Collective Action Members were employed by Defendants; (b)
21
Plaintiffs and the Collective Action Members were not paid their wages for actual hours
22
worked; (c) Plaintiffs and the Collective Action Members were not paid for work
23
performed after a regularly scheduled work shift and for hours worked during their lunch
24
break; (d) Defendants knowingly and willfully violated provisions of the FLSA, by not
25
paying Plaintiffs and the Collective Action Members their wages; (e) As a result of
26
Defendants’ practice of withholding compensation for all hours worked, Plaintiffs and the
27
Collective Action Members have been similarly damaged in that they have not received
28
timely payment in full of their earned wages.
21
1
61.
This action is maintainable as an “opt-in” collective action pursuant to 29
2
U.S.C. § 216(b) as to claims for liquidated damages, costs and attorneys’ fees under the
3
FLSA.
4
62.
All individuals employed by Defendants should be given notice and be
5
allowed to give their consent in writing, i.e., “opt in,” to the collective action pursuant ot
6
29 U.S.C. § 216(b).
7
8
9
PLAINTIFF CARR’S INDIVIDUAL CLAIMS AGAINST DEFENDANTS
63.
Plaintiff Carr began working for Defendants in October 2009 as an LVN.
10
Not long after beginning his employment, Plaintiff Carr became concerned regarding the
11
medical services being provided to the residents of GLCP. In particular, Plaintiff Carr
12
was concerned that proper procedures were not being followed by coworkers and that as
13
a result, the residents were not receiving the level of medical treatment that was required,
14
both as represented by Defendants to their residents and families, as well as in
15
accordance with California law. Carr first began reporting his concerns to the Director
16
of Nursing and then to the Administrator onsite at GLCP. Unfortunately, Plaintiff Carr’s
17
concerns and reports to onsite management would largely fall on deaf ears. As such,
18
Plaintiff Carr began escalating his complaints and concerns, reporting them to the
19
BHRS’s local human resources department. Still, little, if anything, was done by
20
Defendants in response to Plaintiff’s complaints and reports.
21
64.
Throughout the course of his employment with Defendants, and without
22
limitation, Plaintiff Carr reported to Defendants’ onsite management and/or directly to
23
Defendants’ corporate offices, issues regarding all of the following:
24
25
26
27
28
 Medical paperwork and reports regarding residents and Weekly Summaries
were not being done consistently;
 Medication carts were filthy with stains spilled from medications inside and
outside the cart;
 Employee time sheets were being altered in order to make it appear as
22
1
though the facility was maintaining the staffing ratios required under
2
California law;
 Certain employees were not taking adequate care of their residents and were
3
4
not maintaining clean resident rooms;
5
 Residents were not being turned according to the schedule;
6
 Restraints were not being applied correctly;
7
 Alarms were in place but not turned on;
8
 Residents were being left for hours and not changed after soiling themselves.
9
It got so bad that Plaintiff Carr reported that the urine smell got so bad that it
10
caused individuals to tear;
 Certain residents were not being given their medication in the doses
11
12
prescribed;
13
 Residents were not being provided with adequate fluids;
14
 Employees were using resident’s private property;
15
 CNAs were not answering resident call lights or alarms;
16
 CNAs would leave without notifying their head nurse, thereby leaving the
17
residents understaffed;
 Employees were stealing medication and/or the tracking logs did not reflect
18
19
the medications being destroyed;
20
 Medication profiles did not match medication cards;
21
 Reporting of poor nursing skills by certain coworkers; and
22
 Certain nurses were not maintaining adequate standards of hygiene.
23
65.
Plaintiff Carr also advised Defendants’ management that there was disparate
24
treatment of the employees by supervisors. For example, one employee would do
25
something wrong and not get written up for it. Then, another employee would do the
26
same thing and they would be disciplined. Additionally, at times Plaintiff Carr
27
complained to the Administrator regarding harsh and unfair treatment that he received at
28
the hands of the Director of Nursing.
23
1
66.
Additionally, throughout the tenure of Carr’s employment, Defendant’
2
management and coworkers would tease and torment Plaintiff Carr on account of his
3
sexual orientation. Coworkers would make comments regarding Plaintiff Carr being
4
“gay” and make fun of the way Plaintiff Carr walked, calling him a “queen.” Plaintiff
5
Carr is informed and believes and thereupon alleges that Defendants’ management would
6
meet behind closed doors and make derogatory comments regarding his sexual
7
orientation. As a result, Plaintiff Carr was treated differently by coworkers and
8
management. Defendants’ management was additionally aware of the discrimination,
9
harassment and teasing that Carr endured as a result of his sexual orientation, yet
10
11
management did nothing to step in and stop the behavior.
67.
The complaints and reports that Carr made to management and to the
12
corporate offices caused individuals and the GLCP facility to come under scrutiny. As a
13
result, management attacked Plaintiff Carr and began laying a foundation for his
14
termination. Beginning in April 2011, Plaintiff Carr was written up for frivolous and
15
unsubstantiated rule violations by the Director of Nursing. These write ups, however,
16
were done solely in order to lay a false foundation to terminate Plaintiff Carr’s
17
employment. Indeed, Plaintiff Carr was the “squeaky wheel” and Defendants and their
18
management did not want to deal with Carr continuously reporting and complaining
19
about patient abuse and health violations regarding Defendants’ facility and employees.
20
As a result, on June 13, 2011, Plaintiff Carr’s employment was terminated by the
21
Director of Nursing. When Plaintiff asked for an explanation regarding the reason for his
22
termination, the Director of Nursing stated “you just don’t fit in here, Andy.” In reality,
23
Plaintiff Carr was terminated on account of the fact that he reported patient abuse and
24
health violations related to Defendants’ facility, residents and employees.
25
68.
Plaintiff Carr is informed and believes and thereupon alleges that shortly
26
after his termination, there was a comprehensive audit and investigation at the GLCP
27
facility wherein employees from corporate offices came to the facility in order to
28
investigate many of the allegations and complaints that were raised by Carr during the
24
1
course of his employment. Plaintiff Carr is informed and believes and thereupon alleges
2
that as a result of this corporate investigation, disciplinary actions were taken and many
3
of his allegations and complaints were substantiated.
4
69.
The California Fair Employment and Housing Act (“FEHA”) strictly
5
prohibits, among other things, (1) retaliating and terminating an employee on account of
6
the employee engaging in an protected activity by reporting patient abuse, and (2)
7
discriminating, harassing and/or retaliating against an employee based on actual or
8
perceived sexual orientation. Indeed, under FEHA, Defendants are liable for any such
9
harassment, discrimination or retaliation in the course of Plaintiff Carr’s employment.
10
70.
On account of the illegal harassment, discrimination and retaliation that
11
Plaintiff Carr endured at the hands of Defendants’ management, Defendant is liability to
12
Plaintiff Carr for compensatory and putative damages. Plaintiff Carr seeks to recover,
13
among other things, all lost wages that he has sustained since this date.
14
71.
On or about June 5, 2012, Carr filed a complaint with the Department of Fair
15
Employment and Housing (“DFEH”) against BHRS and GLCP on account of
16
Defendants’ discrimination, harassment, retaliation and illegal termination.
17
Contemporaneous with the filing of this complaint, on June 5, 2012, the DFEH issued
18
Notices of Case Closure and Right-To-Sue Notices regarding Plaintiff Carr’s complaint.
19
Copies of the relevant documentation are attached hereto as Exhibits 3 and 4.
20
FIRST CLAIM FOR RELIEF
21
(As against All Defendants on behalf of Plaintiffs and the Class -- Failure to Pay
22
Minimum Wages and Overtime Compensation, California Labor Code)
23
72.
24
reference.
25
73.
The paragraphs of this Complaint are re-alleged and incorporated by
Pursuant to Labor Code section 1194(a), Plaintiffs may bring a civil action
26
for overtime wages directly against the employer in Plaintiffs’ name without first filing a
27
claim with the Department of Labor.
28
25
1
74.
At all times herein relevant, the sections of the California Labor Code and of
2
the California Code of Regulations referenced herein applied to the employment of
3
Plaintiff and Class Members.
4
75.
Pursuant to Labor Code section 1198, it is unlawful to employ persons for
5
longer than the hours set by the Industrial Welfare Commission or under conditions
6
prohibited by the California Code of Regulations.
7
76.
At all times herein relevant, sections 510, 515, 1194, and 1198 of the
8
California Labor Code and 8 California Code of Regulations section 11050 provided for
9
the payment of minimum wages and overtime wages equal to one-and-one-half times an
10
employee’s regular rate of pay for all hours worked over eight per day or forty per week,
11
as well as for the payment of overtime wage equal to double the employee’s regular rate
12
of pay for all hours worked in excess of twelve in any day and for all hours worked in
13
excess of eight on the seventh day of work.
14
77.
Under the provisions of sections 510, 515, 1194, and 1198 of the California
15
Labor Code and 8 California Code of Regulations section 11050, Plaintiffs and each
16
Class Member should have received minimum and overtime wages in a sum according to
17
proof.
18
78.
Defendants owe Plaintiffs and each Class Member minimum and overtime
19
wages pursuant to sections 510, 515, 1194, and 1198 of the California Labor Code and 8
20
California Code of Regulations section 11050 according to proof at trial of the hours
21
worked for the period of time from four years prior to the filing of the Complaint to date.
22
79.
Defendants have failed and refused, and continues to fail and refuse, to pay
23
Plaintiffs and Class Members the amounts that are owed. Defendants’ failure to pay
24
Plaintiffs and each Class Member who has quit his or her employment with Defendants
25
or whose employment has been terminated by Defendants violates California Labor Code
26
sections 201 and 202, which therefore subjects Defendants to continuing-wages liability
27
pursuant to section 203 of the California Labor Code for the period of time from four
28
years prior to the filing of the Complaint to date.
26
1
80.
Plaintiffs, individually and on behalf of others similarly situated, request
2
payment of overtime compensation according to proof, interest, attorney’s fees, and costs
3
pursuant to Labor Code section 1194(a).
4
81.
Plaintiffs and the Class also request relief as described below.
5
SECOND CLAIM FOR RELIEF
6
(As against All Defendants on behalf of Plaintiffs and the Class -- Failure to Provide
7
Accurate Itemized Wage Statements)
8
82.
9
reference.
10
83.
At all times herein relevant, section 226 of the California Labor Code and 8
11
California Code of Regulations section 11050 required that employers provide employees
12
with itemized wage statements showing (1) all wages earned on account of meal and rest
13
penalties, (2) the total hours worked by the employee, and (3) information regarding the
14
time and wages for work performed by Plaintiffs but not paid for by Defendants.
15
Moreover, Labor Code section 226(e) provided that, if an employer knowingly and
16
intentionally fails to provide a statement detailing (1) all wages earned on account of
17
meal and rest penalties, (2) the total hours worked by the employee, and (3) information
18
regarding the time and wages for work performed by Plaintiffs but not paid for by
19
Defendants, then the employee is entitled to recover the greater of all actual damages or
20
$50 for the initial violation and $100 for each subsequent violation, up to a maximum of
21
$4,000.
22
84.
Defendants have knowingly and intentionally failed to furnish Plaintiffs and
23
Class Members with timely, itemized statements showing (1) all wages earned on
24
account of meal and rest penalties, (2) the total hours worked by the employee, (3)
25
information regarding the time and wages for work performed by Plaintiffs but not paid
26
for by Defendants, and (4) all correct, applicable hourly rates based on the proper
27
calculation of the regular rate. As a result, Defendants are liable to Plaintiffs and Class
28
Members for the liquidated damages for which provision is made by Labor Code section
27
1
226(e) for the period of time from the three years prior to the filing of the Complaint to
2
date.
3
85.
Plaintiffs and the Class Members request relief as described below.
4
THIRD CLAIM FOR RELIEF
5
(As against All Defendants on behalf of Plaintiffs and members of the
6
Collective Action – Failure to Pay Overtime Compensation, Fair Labor
7
Standards Act)
8
86.
9
reference.
10
87.
During their employment with Defendants, Plaintiffs and Collective Action
11
Members were required to work hours in excess of forty hours a week, without the
12
payment of minimum and/or overtime wages and other benefits.
13
88.
Accordingly, Plaintiffs, individually and on behalf of others similarly
14
situated, requests payment of minimum and/or overtime compensation according to
15
proof, attorney’s fees, and costs pursuant to 29 U.S.C. § 216(b).
16
FOURTH CLAIM FOR RELIEF
17
(As against all Defendants on behalf of Plaintiff Veurink -- Failure to Provide
18
Proper Response to Information Request (Cal. Lab. Code §226(c)))
19
89.
20
reference.
21
90.
In December of 2013, pursuant to the provisions of section 226(c) of the
22
California Labor Code, Plaintiff Veurink properly requested of the Defendants that her
23
employment records be provided to her. Despite proper request, only a handful of the
24
responsive documents were produced to her.
25
91.
Accordingly, Plaintiff Veurink, individually, requests payment of $750 as
26
for which provision is made by section 226(f) of the California Labor Code (“[a] failure
27
by an employer to permit a current or former employee to inspect or copy records within
28
the time set forth in subdivision (c) entitles the current or former employee or the Labor
28
1
Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty from the
2
employer”).
3
FIFTH CLAIM FOR RELIEF
(As against all Defendants on behalf of Plaintiffs and the Class -- Failure to Provide
Adequate Meal Periods)
4
5
92.
6
reference.
7
93.
At all times herein relevant, section 226.7 of the California Labor Code and
8
8 California Code of Regulations section 11050 provided that employees must be
9
provided a first meal period of not less than thirty minutes before working more than five
10
hours per day and a second meal period of not less than thirty minutes before working
11
more than ten hours per day. Sections 226.7 and 512 of the California Labor Code, as
12
well as 8 California Code of Regulations section 11050, also required employers to
13
provide a second meal period of not less than thirty minutes, during which the employees
14
are again to be relieved of all duty, before the employees work more than ten hours per
15
day. According to the Regulation:
16
Notwithstanding any other provision of this order, employees in the health
17
care industry who work shifts in excess of eight (8) total hours in a workday
18
may voluntarily waive their right to one of their two meal periods. In order
19
to be valid, any such waiver must be documented in a written agreement that
20
is voluntarily signed by both the employee and the employer. The employee
21
may revoke the waiver at any time by providing the employer at least one
22
day’s written notice. The employee shall be fully compensated for all
23
working time, including any on-the-job meal period, while such a waiver is
24
in effect.
25
94.
Because Defendants failed to provide the required meal breaks to Plaintiffs
26
and other Class Members, Defendants are liable to them for one hour of additional pay at
27
the regular rate of compensation for each workday that the proper meal periods were not
28
provided, pursuant to Labor Code section 226.7 and California Code of Regulations
29
1
section 11050, for the period of time from three years prior to the filing of the Complaint
2
to date.
3
95.
4
SIXTH CLAIM FOR RELIEF
5
(As against All Defendants on behalf of Plaintiffs and the Class -- Failure to Provide
6
Adequate Rest Periods)
7
96.
8
reference.
9
97.
At all times herein relevant, section 226.7 of the California Labor Code and
10
8 California Code of Regulations section 11050 provided that employees must receive
11
rest periods of ten minutes for each four hours of work or major fraction thereof.
12
98.
Because Defendants failed to provide the required rest breaks, it is liable to
13
Plaintiffs and other Class Members for one hour of additional pay at the regular rate of
14
compensation for each workday that the proper rest periods were not provided, pursuant
15
to Labor Code section 226.7 and California Code of Regulations section 11050, for the
16
period of time from the three years prior to the filing of the Complaint to date.
17
99.
18
SEVENTH CLAIM FOR RELIEF
19
(As against All Defendants on behalf of Plaintiffs and the Class -- Continuing Wages
20
under Section 203 of the California Labor Code)
21
22
23
100. The paragraphs of this Complaint are re-alleged and incorporated by
reference.
101. At all times herein relevant, Labor Code sections 201 and 202 provided that
24
employees must receive wages earned and unpaid promptly upon termination or
25
resignation.
26
102. Because Defendants have willfully failed to pay wages earned and unpaid
27
promptly upon termination or resignation, Defendants are liable for continuing wages
28
under Labor Code section 203 for the period of time from four years prior to the filing of
30
1
2
3
the Complaint to date.
103. Plaintiffs and the Class Members request relief under the provisions of
Section 203 of the California Labor Code as described below.
4
EIGHTH CLAIM FOR RELIEF
5
(As against All Defendants on behalf of Plaintiffs and the Class -- Violations of
6
Section 17200 et seq. of the California Business and Professions Code)
7
8
reference.
9
105. Defendants’ acts constitute a continuing and ongoing unlawful activity
10
prohibited by section 17200 et seq. of the California Business and Professions Code, and
11
they justify restitution and the issuance of an injunction pursuant to section 17203 of the
12
Business and Professions Code.
13
106. Labor Code section 90.5(a) articulates the public policy of this State to
14
enforce minimum labor standards vigorously, including the requirements to pay
15
minimum wages, overtime wages and benefits pursuant to Labor Code sections 510, 515,
16
1194, and 1198; the requirements to provide accurate itemized wage statements and to
17
keep payroll records pursuant to Labor Code sections 226, 226.3, 1174, and 1174.5; the
18
requirement to provide adequate meal and rest periods pursuant to Labor Code sections
19
226.7 and 512; and the requirement to pay wages earned and unpaid promptly pursuant to
20
Labor Code section 203. Defendants’ conduct of requiring certain employees to work an
21
excessive amount of hours in the absence of overtime, without providing accurate
22
itemized wage statements, without providing adequate meal and rest periods, and without
23
paying wages earned and unpaid promptly upon termination or resignation directly
24
violates state law. Furthermore, the Defendants’ systematic violations of the FLSA
25
constitute unfair competition and/or unlawful and unfair acts and practices within the
26
meaning of section 17200 et seq. of the California Business and Professions Code.
27
28
107. Through the wrongful and illegal conduct alleged herein, Defendants have
acted contrary to the public policy of this State.
31
1
108. Defendants engaged in unlawful business acts and practices by violating
2
California law, including but not limited to, sections 201, 202, 203, 204, 226, 226.7, 510,
3
512, 515, 1174, 1194, and 1198 of the California Labor Code and 8 California Code of
4
Regulations section 11050.
5
109. Under the provisions of the section 17203 of the California Business and
6
Professions Code, Plaintiffs and each Class Member should receive restitution for
7
Defendants’ failure to pay overtime wages, Defendants’ failure to provide accurate
8
itemized wage statements and to keep payroll records, Defendants’ failure to provide
9
adequate meal and rest periods, and Defendants’ failure to provide wages earned and
10
unpaid promptly upon termination or resignation, in a sum according to proof for the
11
period of time from the four years preceding the filing of the Complaint to date.
12
110. As a result of Defendants’ violations of 17200 et seq. of the California
13
Business and Professions Code, Defendants have unjustly enriched themselves at the
14
expense of Plaintiffs, Class Members, and the general public.
15
111. To prevent this unjust enrichment, Defendants should be required to make
16
restitution to Plaintiffs and Class Members, as identified in this Complaint (and as will be
17
identified through discovery into Defendants’ books and records), for the period of time
18
from the four years preceding the filing of the Complaint to date.
19
112. Plaintiffs also request that the Court enter such orders or judgments as may
20
be necessary to restore to any person in interest any money that may have been acquired
21
by means of such unfair practices, as provided in section 17203 of the California
22
Business and Professions Code.
23
113. Plaintiffs and Class Members are “persons” within the meaning of section
24
17204 of the California Business and Professions Code, and each has standing to bring
25
this claim for relief.
26
114. Injunctive relief is necessary to prevent Defendants from continuing to
27
engage in unfair business practices, as alleged herein. Defendants have done, or are now
28
doing and will continue to do or cause to be done, the herein-described illegal acts unless
32
1
2
restrained or enjoined by the Court.
115. The conduct of Defendants, as alleged herein, has been and continues to be
3
deleterious to Plaintiffs, Class Members and the general public. By this action, Plaintiffs
4
seeks to enforce important rights affecting the public interest within the meaning of
5
section 1021.5 of the California Code of Civil Procedure.
6
116. Pursuant to section 17203 of the California Code of Civil Procedure,
7
Plaintiffs, on behalf of themselves and all current and former Class Members, requests
8
injunctive relief and restitution of all sums obtained by defendants in violation of section
9
17200 et seq. of the California Business and Professions Code for the period of time from
10
11
the four years preceding the filing of the Complaint to date.
117. Plaintiffs and the Class Members also request relief as described below.
12
NINTH CLAIM FOR RELIEF
13
(Retaliation and Wrongful Termination in Violation of California Labor Code
14
§ 1102.5 on Behalf of Plaintiff Carr only against all Defendants)
15
16
reference.
17
119. An employer may not retaliate against an employee for disclosing
18
Information to a government or law enforcement agency, where the employee has a
19
reasonable cause to believe that the information discloses a violation of a state or federal
20
statute, or a violation or noncompliance with a state or federal rule or regulation.
21
120. This is a claim for relief that arises out of retaliation by Defendants against
22
Plaintiff Carr on account of his continuous reporting of patient abuse and violations of
23
health and safety issues relating to Defendants’ facility, residents and employees.
24
121. California Labor Code section 1102.5 provides:
25
a. An employer may not make, adopt, or enforce any rule, regulation, or policy
26
preventing an employee from disclosing information to a government or law
27
enforcement agency, where the employee has reasonable cause to believe
28
that the information discloses a violation of state and federal statute, or a
33
1
2
violation or noncompliance with a state or a federal rule or regulation.
b. An employer may not retaliate against an employee for disclosing
3
information to a government or law enforcement agency, where the
4
employee has reasonable cause to believe that the information discloses a
5
violation of state or federal statute, or a violation or noncompliance with a
6
state or federal rule or regulation.
7
c. An employer may not retaliate against an employee for refusing to
8
participate in an activity that would result in a violation of state or federal
9
statute, or a violation or noncompliance with a state or federal rule or
10
regulation.
11
d. An employer may not retaliate against an employee for having exercised his
12
or her rights under subdivision (a), (b), or (c) in any former employment.
13
e. A report made by an employee of a government agency to his or her
14
employer is a disclosure of information to a government or law enforcement
15
agency pursuant to subdivisions (a) and (b).
16
f. In addition to other penalties, an employer that is a corporation or limited
17
liability company is liable for a civil penalty not exceeding ten thousand
18
dollars ($10,000) for each violation of this section.
19
g. This section does not apply to rules, regulations, or policies which
20
implement, or to actions by employers against employees who violate, the
21
confidentiality of the lawyer-client privilege of Article 3 (commencing with
22
Section 950), the physician-patient privilege of Article 6 (commencing with
23
Section 990) of Chapter 4 of Division 8 of the Evidence Code, or trade
24
secret information.
25
26
Cal. Lab. Code § 1102.5
122.
As a proximate result of Defendants’ wrongful conduct, Plaintiff Carr
27
has suffered, and continues to suffer, substantial damages and losses in earnings and job
28
benefits in an amount to be determined according to proof at the time of trial. Defendants
34
1
2
are also liable to pay penalties pursuant to California Labor Code section 1102.5(f).
123. In doing the acts herein alleged, Defendants acted with oppression, fraud,
3
malice, and in conscious disregard of the rights of Plaintiff Carr, and Plaintiff Carr is
4
therefore entitled to putative damages against Defendants in an amount appropriate to
5
punish and make an example of Defendants.
6
TENTH CLAIM FOR RELIEF
7
(Retaliation and Wrongful Termination in Violation of Public Policy on
8
Behalf of Plaintiff Carr only against all Defendants)
9
10
11
reference.
125.
Under California law, no employee can be terminated for a reason that is in
12
violation of a fundamental public policy. A fundamental public policy includes the
13
violation of any constitutional provision, statutory provision or regulation that is
14
concerned with a matter effecting society at large and that is fundamental, substantial and
15
well established at the time of termination. To this end, in California, there is a
16
fundamental and well-established public policy against retaliating against employees for
17
opposing unlawful activities, including, but not limited to, complaining about reporting
18
patient abuse and health violations related to Defendants’ facility, residents and
19
employees. This fundamental public policy is embodied in the California Constitution
20
and California statutory law. Adverse employment actions taken by an employer in
21
response to such activity are contrary to such public policy and are thus actionable under
22
the common law of California.
23
126. This is a claim for relief arises out of retaliation by Defendants against
24
Plaintiff Carr on account of Plaintiff Carr notifying Defendants and filing reports
25
regarding patient abuse and health, safety and employment violations that were occurring
26
at Defendants’ facility.
27
28
127. As set forth above, Defendants retaliated against Carr by terminating his
employment. In terminating Plaintiff Carr for reporting and complaining about patient
35
1
abuse and health, safety and employment violations that were occurring at Defendants’
2
facility, Defendants violated the fundamental public policies of the State of California,
3
including without limitation, California Labor Code section 1102.5, California Health
4
and Safety Code section 1278.5, California Government Code section 12940 et. seq.,
5
California Government Code sections 12940(a) and (g), the California Constitution and
6
other criminal and civil statutes.
7
128. As a proximate result of Defendants’ wrongful conduct, Plaintiff Carr has
8
suffered, and continues to suffer, substantial losses in earnings and job benefits in an
9
amount to be determined according to proof at the time of trial.
10
129. In doing the acts herein alleged, Defendants acted with oppression, fraud,
11
malice, and in conscious disregard of the rights of Plaintiff Carr, and Carr is therefore
12
entitled to punitive damages against Defendants in an amount appropriate to punish and
13
make an example of Defendants.
14
ELEVENTH CLAIM FOR RELIEF
15
(Retaliation for Engaging in Protected Activity – California Government
16
Code section 12940(g) and (h) on Behalf of Plaintiff Carr only against all
17
Defendants)
18
19
reference.
20
131. California Government Code § 12940(g) provides that it is an unlawful
21
employment practice for an employer to discharge, expel, or otherwise discriminate
22
against any person because the person has reported suspected patient abuse by health
23
facilities or community care facilities. Furthermore, California Government Code §
24
12940(h) provides that it is an unlawful employment practice for an employer to
25
“discharge, expel, or otherwise discriminate against any person because the person
26
opposed any practices forbidden under this part.”
27
28
132. Defendants employed Plaintiff Carr as an LVN at its facility in Petaluma.
Plaintiff Carr always performed his job well. Throughout the tenure of his employment,
36
1
however, Plaintiff Carr continuously reported and informed his supervisors and
2
Defendants’ management and Human Resources department regarding patient abuse that
3
was occurring at the GLCP. On or about June 13, 2011, Defendants terminated Carr's
4
employment in retaliation for his continued reports of patient abuse.
5
133. As a proximate result of the acts of Defendants, as described above, Plaintiff
6
Carr suffered economic damages, including lost wages and benefits, and other
7
compensatory damages. As a further proximate result of these acts of Defendants,
8
Plaintiff Carr has suffered humiliation, mental and physical distress, anxiety, nervousness
9
and severe emotional distress.
10
134. As a further proximate result of the above-described acts of Defendants,
11
Plaintiff Carr has necessarily incurred attorney's fees and costs. Pursuant to the provisions
12
of California Government Code § 12965(b), Carr is entitled to the reasonable value of
13
such attorney's fees and costs.
14
135. The above-described acts of Defendants were willful, intentional, and
15
malicious and done with the intent to vex, injure and annoy Plaintiff Carr. Said acts were
16
done in willful disregard of Plaintiff Carr's rights and Defendants were aware that their
17
acts were illegal and were done in conscious disregard of Plaintiff Carr's rights.
18
Therefore, this case warrants the imposition of exemplary and punitive damages in an
19
amount sufficient to punish said Defendants and to deter others from engaging in similar
20
conduct.
21
TWELFTH CLAIM FOR RELIEF
22
(Sexual Orientation Discrimination—California Government Code section
23
12940(a) and (h) on Behalf of Plaintiff Carr only against all Defendants)
24
25
26
136. The allegations contained in this Complaint are hereby incorporated by this
reference as if fully set forth herein.
137. This cause of action is brought pursuant to California Government Code
27
section 12940(a), which makes it illegal to discriminate on the basis of sexual orientation.
28
Furthermore, California Government Code § 12940(h) provides that it is an unlawful
37
1
employment practice for an employer to “discharge, expel, or otherwise discriminate
2
against any person because the person opposed any practices forbidden under this part.”
3
138. Defendants, by and through its agents and employees, discriminated against
4
Plaintiff Carr based on his sexual orientation by performing the things, acts, and
5
omissions herein alleged.
6
139. As a direct and proximate result of the conduct of these Defendants, and
7
each of them, Plaintiff Carr suffered discrimination and harassment in the course of his
8
employment and was eventually terminated, resulting in him suffering emotional anguish
9
and distress, loss of income, and other special and general damages, all in an amount to
10
11
be proven at trial.
140. In doing the things herein alleged, the conduct of Defendants was despicable
12
and Defendants acted towards Plaintiff Carr with malice, oppression, fraud, and with a
13
willful and conscious disregard of Carr’s rights, entitling him to an award of punitive and
14
exemplary damages pursuant to California Civil Code section 3294 and Government
15
Code section 12940.
16
17
18
141. Pursuant to Government Code section 12965(b), Plaintiff Carr requests an
award of attorney's fees against Defendants.
142. Plaintiff Carr also requests the relief as described below.
19
PRAYER FOR RELIEF
20
WHEREFORE, Plaintiffs prays for judgment against Defendants as follows:
21
22
As to the First Claim for Relief:
1.
For damages in an amount according to proof at time of trial representing the
23
amount of unpaid minimum wage and overtime compensation owed to Plaintiffs and
24
Class Members for the period of time from June 8, 2008 to May 23, 2014; For interest
25
calculated according to law on any unpaid minimum wage and overtime compensation
26
due from the day such amounts were due for the period of time from June 8, 2008 to May
27
23, 2014; For reasonable attorney’s fees and costs of bringing this suit pursuant to section
28
1194(a) of the Labor Code.
38
1
2
As to the Second Claim for Relief:
2.
For damages in an amount according to proof at time of trial for not
3
providing accurate itemized wage statements to Plaintiffs and Class Members for the
4
period of time from June 8, 2008 to May 23, 2014; For reasonable attorney’s fees and the
5
costs of bringing this suit pursuant to section 226(e) of the California Labor Code.
6
As to the Third Claim for Relief:
7
3.
8
amount of unpaid overtime compensation owed to Plaintiffs and Class Members for the
9
period of time from June 8, 2008 to May 23, 2014; For liquidated damages pursuant to
10
29 U.S.C. § 216(b); For attorney’s fees and the costs of bringing this suit pursuant to 29
11
U.S.C. § 216(b).
12
As to the Fourth Claim for Relief:
13
4.
For damages in an amount of $750 representing the penalty to which
14
Plaintiff Veurink is entitled on account of Defendants’ failure to comply with her request
15
for data pursuant to the provisions of section 226 (c) of the California Labor Code; For
16
attorney’s fees and the costs of bringing this suit pursuant to the provisions of section 226
17
(h) of the California Labor Code, as well as an injunction requiring Defendants’
18
compliance with the requirements of the statute.
19
As to the Fifth Claim for Relief:
20
5.
21
amount of unpaid compensation owed to Plaintiffs and Class Members for inadequate
22
meal periods for the period of time from June 8, 2008 to May 23, 2014; For interest
23
calculated according to law on any unpaid compensation due from the day such amounts
24
were due for inadequate meal periods for the period of time from June 8, 2008 to May 23,
25
2014; For reasonable attorney’s fees and the costs of bringing this suit.
26
As to the Sixth Claim for Relief:
27
28
6.
amount of unpaid overtime compensation owed to Plaintiffs and Class Members for
39
1
inadequate rest periods for the period of time from June 8, 2008 to May 23, 2014; For
2
interest calculated according to law on any overtime compensation due from the day such
3
amounts were due for inadequate rest periods for the period of time from three years prior
4
to filing the Complaint to date; For reasonable attorney’s fees and the costs of bringing
5
this suit.
6
As to the Seventh Claim for Relief:
7
7.
For continuing wages pursuant to California Labor Code section 203 for
8
each instance of the willful failure to pay wages; For the costs of bringing this suit.
9
As to the Eighth Claim for Relief:
10
11
12
8.
For an order requiring Defendants to show cause, if any, why they should
not be enjoined, as set forth herein above, during and after the pendency of this action.
9.
For an order that Defendants pay restitution of sums to Plaintiffs and to each
13
Class Member for Defendants’ past failure to pay overtime wages, withholding taxes,
14
matching funds, Social Security, Medicare, Unemployment, and Worker’s Compensation
15
premiums in violation of section 17200 et seq., in an amount according to proof, for the
16
period of time from June 8, 2008 to May 23, 2014.
17
10.
For an order that Defendants pay restitution of sums to Plaintiffs and to each
18
Class Member for Defendants’ past failure to provide accurate itemized wage statements
19
and to keep payroll records in violation of section 17200 et seq., in an amount according
20
to proof, for the period of time from June 8, 2008 to May 23, 2014.
21
11.
For an order that Defendants pay restitution to Plaintiffs and to each Class
22
Member for Defendants’ past failure to provide adequate meal and rest periods in
23
violation of section 17200 et seq., in an amount according to proof, for the period of time
24
from June 8, 2008 to May 23, 2014.
25
12.
For an order that Defendants pay restitution to Plaintiffs and to each Class
26
Member for Defendants’ past willful failure to pay wages earned and unpaid promptly
27
upon termination or resignation in violation of section 17200 et seq., in an amount
28
according to proof, for the period of time from June 8, 2008 to May 23, 2014.
40
1
2
As to the Ninth Claim for Relief:
13.
That, under the Ninth Cause of Action, it be adjudged that Defendants
3
violated California Labor Code section 1102.5 and Plaintiff Carr be awarded general and
4
compensatory damages in an amount according to proof at time of trial, penalties as well
5
as punitive damages against Defendants in an amount appropriate to punish and make an
6
example of Defendants.
7
As to the Tenth Claim for Relief:
8
9
14.
That, under the Tenth Cause of Action, it be adjudged that Defendants
violated public policy and Plaintiff Carr be awarded general and compensatory damages
10
in an amount according to proof at time of trial, as well as punitive damages against
11
Defendants in an amount appropriate to punish and make an example of Defendants.
12
As to the Eleventh Claim for Relief:
13
15.
For a money judgment to Plaintiff Carr representing compensatory and
14
general damages including lost wages, earnings retirement benefits and other employee
15
benefits, and all other sums of money, together with interest on these amounts, according
16
to proof; For a money judgment to Plaintiff Carr for mental pain and anguish and
17
emotional distress, according to proof; For an award of exemplary and punitive damages
18
to Plaintiff Carr, according to proof; For costs of suit and attorney's fees; and For pre-
19
judgment and post-judgment interest.
20
As to the Twelfth Claim for Relief:
21
16.
For a money judgment to Plaintiff Carr representing compensatory damages
22
including lost wages, earnings retirement benefits and other employee benefits, and all
23
other sums of money, together with interest on these amounts, according to proof; For a
24
money judgment to Plaintiff Carr for mental pain and anguish and emotional distress,
25
according to proof; For an award of exemplary and punitive damages, according to proof;
26
For costs of suit and attorney's fees; and for pre-judgment and post-judgment interest.
27
As to All Claims for Relief:
28
17.
Costs of suit and disbursements incurred, all interest as allowed by law,
41
1
where available and proper, for attorneys' fees and costs incurred pursuing these claims,
2
and for such other and further rei ief as this Court may deem fit and proper.
3
4
5
DATED: September 16, 20 15
HARRIS & RUBLE
N9f-TH
GROUP
BF
~~(/\~
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
42
PROOF OF SERVICE
1
2
3
I am attorney for the plaintiffs herein, over the age of eighteen years, and not a pa~ to
the within action. My business address is 116 E. Blitheoale A venue, Suite No. 2, Mill
Valley, CA 94941. On September 18, 2015, I served the within documents:
NOTICE OF LODGING (PROPOSED) FIRST AMENDED COMPLAINT
4
5
Hand Delivery: I caused such envelope to be delivered by hand in person to:
6
N/A
7
Facsimile: I caused such envelope to be delivered by e-mail or fax to:
8
N/A.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I am readily familiar with the Firm's practice of collection and processing
correspondence for mailing. Under tliat practice it would be deposited w1th the U.S.
Postal Service on that same day with postage thereon fully prepaid in the ordinary
course of business, addressed as follows:
Sharon Bauman
Manatt, Phelps & Phillips, LLP
1 Embarcadero Center
30th Floor
San Francisco, CA 94111
I declare under penalty of perj_u:ry that t~e ab9ve is true and correct. Executed on
September 18,2015, at Mill Valley, Cahfornm.

LFI/RoseArt: 1st Amended Complaint (Recovered)

Transcription

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