DeclarationCal. Super. - 6th Dist.November 19, 2018©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO 180V338479 Santa Clara - Civil WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@workmanlawpc.com Rachel E. Davey (Bar #3 1 6096) rachel@workmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all others similarly situated Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/30/2019 3:20 PM Reviewed By: R. Walker Case #1 8CV338479 Envelope: 3589120 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, Plaintiff, VS. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. 1 No. 18CV338479 ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 DECLARATION OF ROBIN G. WORKMAN IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND REQUEST TO FILE FIRST AMENDED COMPLAINT Date: November 22, 20 1 9 Time: 9:00 a.m. Dept: 5 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO EXHIBIT A: EXHIBIT B: EXHIBIT C: EXHIBIT D: INDEX OF EXHIBITS Plaintiff” s Original Complaint Plaintiff s Proposed First Amended Class Action Complaint Settlement Agreement Proposed Class Notice 2 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO I, Robin G. Workman, declare as follows: 1. I am an attorney at law, duly licensed t0 practice before all the courts of the State 0f California, and am principal owner 0f the Workman Law Firm, PC, attorneys of record herein for Plaintiff Thomas Villareal (“Plaintiff”). The following is based on my personal knowledge, and if called upon t0 do so, I could and would competently testify thereto. 2. On November 19, 2018, my firm filed this action, Villareal v. Mission Trail Waste Systems, Ina, Santa Clara Superior Court Case N0. 18CV338479, against Defendant Mission Trail Waste Systems, Inc., 0n behalf 0f Plaintiff Thomas Villareal and those similarly situated aggrieved drivers. In the Complaint, Plaintiff alleges the following claims: (1) failure t0 provide meal periods; (2) failure t0 authorize and permit rest periods; (3) failure t0 maintain accurate payroll records; (4) failure to provide accurate, itemized wage statements; (5) failure t0 permit employees to inspect 0r copy their wage statements; (6) failure to permit employees t0 inspect their personnel records; (7) failure t0 timely pay all wages when due; (8) failure to pay all wages due at the time 0f termination; and, (9) illegally obtaining employees’ fingerprints as a prerequisite 0f their employment and furnishing these fingerprints t0 a third party. In the Complaint, Plaintiff alleges that these Violations 0f the California Labor Code further constitute Violations 0f the Private Attorneys General Act 0f 2004 (“PAGA”), California Labor Code section 2698, et. seq., and are unfair business practices, in Violation of California Business and Professions Code section 17200, et. seq. Attached hereto as Exhibit A is a true and correct copy 0f Plaintiff” s Class Action Complaint. 3. As part 0f the Settlement herein, the parties agreed, and stipulated, to allow Plaintiff to file a First Amended Complaint (“FAC”) which Plaintiff seeks permission t0 file, in connection With Plaintiff’ s motion for preliminary approval 0f this Settlement. As explained in the motion, When evaluating the records provided by Defendant, Plaintiff became aware of Defendant’s rounding practice regarding time entry. This claim was discussed at the mediation, and was part 0f the claims resolved in the Settlement. This FAC sets forth the claims resolved by the global Settlement, including time rounding, for which approval is 3 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO sought by the Court in this action. Attached hereto as Exhibit B is a true and correct copy of the (Proposed) First Amended Complaint. 4. Prior t0 the mediation, Defendant produced Plaintiff s personnel file, pay summaries, timecard report from January 1, 2016, to June 11, 2019, Defendant’s meal and rest break policies, collective bargaining agreements, Defendant’s biometric data policy, employee handbooks, Plaintiff” s record requests, applicable job description, and time and payroll records for all putative class members. After conducting an analysis of the materials Defendant produced, I drew on my experience in similar cases t0 assess the strengths and weaknesses of Plaintiff s claims. To assist in this process, my firm retained a class action damage expert, Berger Consulting Group (“BCG”). 5. On August 20, 2019, the parties participated in a full day mediation, conducted by David Rotman. Mr. Rotman is a well-respected wage and hour class action mediator. Although the Parties were unable t0 reach a settlement that day, through further negotiations, and additional assistance from Mr. Rotman, the parties ultimately agreed to the terms 0f a settlement. The parties thereafter executed a Memorandum of Understanding, memorializing the terms 0f the agreement. While the negotiations were professional, each party zealously advocated its positions. It was only through Mr. Rotman’s efforts that the parties reached this initial agreement. Following the mediation, the parties continued their negotiations t0 agree to a long-form agreement, the Settlement the parties present to this Court for approval. g paragraph 8 herein, Exhibit C. 6. The terms 0f the Settlement do not provide a basis to doubt its fairness. Those Who will receive benefits under the Settlement, 1.6., the Settlement Class, are Class Members Who do not exclude themselves from the Settlement. 7. The “Class Members” are all current and former non-exempt sanitation truck drivers employed by Defendant at any time during the Class Period from November 19, 2014, through the date of Preliminary Approval 0f the class action settlement. Defendant represents that there are 63 individuals Who are Class Members as 0f as of October, 2019. 4 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO 8. The Settlement Administrator will allocate the Individual Settlement Payments to the Participating Class Members in accordance with each Participating Class Member’s pro rata share 0f workweeks. In my opinion, the weighting of individual settlements based 0n workweeks is fair and reasonable, as this gives the Participating Class Members Who worked more weeks a greater percentage 0f the Settlement. Attached hereto as Exhibit C is a true and correct copy of the Settlement Agreement. 9. The Settlement Agreement provides for mailed notice t0 class members. The proposed Class notice provides an accurate, obj ective, and understandable explanation 0f the terms of Settlement and the methods by which class members may file obj ections to or request exclusion from the Settlement. The Settlement gives participating Class members 45 days, a period of time that Plaintiff believes is reasonable, t0 decide whether to opt out of and/or obj ect to the Settlement. A true and correct copy 0f the proposed class notice is attached hereto as Exhibit D. 10. The Workman Law Firm, PC is well qualified to act as class counsel. Ihave extensive experience in wage and hour class action litigation. In recognition 0f this fact, this Court appointed my firm as class counsel in Stilwell, et a1. V. First Alarm, Santa Clara County Superior Court Case N0. 2015-CV-281763 (order filed December 9, 2016), Robinson et a1. V. Energy Remodeling, Inc., et al., Santa Clara County Superior Court Case N0. 115CV287674 (order filed March 24, 2017), and Oliver V. Konica Minolta, Santa Clara Superior Court, Case N0. 114cv263183 (order filed October 8, 2015). In 2014, I tried an exemption class action to decision in the Sacramento County Superior Court, obtaining an $8.3 million judgment for a class 0f 122 claims adjusters in York Claims Service Wage and Hour Cases, Sacramento County Superior Court Judicial Council Coordination Proceeding N0. 4560 (order filed May 27, 2015). I graduated from Texas Tech School ofLaw in 1989, after which I clerked for the Honorable Jack Hightower 0f the Texas Supreme Court. I then worked as an associate for the international firms of Sonnenschein Nath & Rosenthal and Russin & Vecchi. I started my predecessor firm, Qualls & Workman, LLP, in 1996, and my current firm, Workman Law Firm, PC, in January 0f 2014. At both firms, my practice has specialized in prosecuting wage 5 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO and hour class action litigation. I routinely represent clients With respect t0 issues in this area of the law before both the California Courts 0f Appeal and the Ninth Circuit, as reflected in the published decisions of Alcantar V. Hobart, 800 F.3d 1047 (9th Cir. 2015), Reyes V. Macy’s, fl, 202 Cal. App. 4th 1119 (201 1); Kullar V. Foot Locker Retail, Inc., 191 Cal. App. 4th 1201 (201 1); and Bufil V. Dollar Financial Group, Inc., 162 Cal. App. 4th 1193 (2008). Rachel Davey, an associate at my firm, graduated from the University 0f San Francisco School ofLaw in 2016 and was admitted t0 the California Bar in 2017. Between 2005 and December 9, 2013, numerous courts appointed Qualls &Workman, LLP, With either Mr. Qualls, my former partner, 0r me as lead counsel, t0 act as class counsel in class action employment cases, including: Walsh V. IKON Office Solutions, Inc., San Francisco County Superior Court, Case N0. CGC 04 429428 (order filed April 21, 2006); Dell’Orfano V. IKON Office Solutions, Inc., United States District Court, Middle District Of Georgia, Case N0. 5:05-CV-00245 (order filed February 21, 2007); Lopez V. Market Wire, Inc., San Francisco County Superior Court, Case N0. CGC-O6-457732 (order filed August 15, 2007); Byrd V. Autotrader Publishing, et al., San Francisco County Superior Court, Case No. CGC 07-463062 (order filed March 21, 2008); Righetti V. Inside Track, Inc., San Francisco County Superior Court, Case N0. CGC-O6-456053 (order filed April 11, 2008); Dellmore V. Tovs “R” Us, et al., Alameda County Superior Court, Case N0. RG-O7-306616 (order filed May 30, 2008); Dudash V. Vamell Struck, et al., United States District Court, Central District of California, Case N0. C-04-02748 MHP, (order filed June 27, 2008); Garnica V. Wells Fargo Bank, NA, et a1., Santa Barbara County Superior Court, Case N0. D1264187 (order filed August 20, 2008); Louie V. Kaiser Permanente, et a1., United States District Court, Southern District 0f California, Case N0. 08CV0795 (order filed February 2, 2009); Ralston V. US-Reports, Inc., Alameda County Superior Court, Case N0. RG07328773 (order filed May 22, 2009); Wright V. Centerplate, Inc., Alameda County Superior Court, Case No. RG07356589 (order filed June 26, 2009); Tate V. Kaiser, Alameda County Superior Court, Case No. RG07318416 (order filed November 24, 2009); Maciel V. Vance Uniformed Protective Services, Inc., Garda Security, Inc., United States District Court, Northern District of California, Case N0. 3:09-CV-01498 (order filed December 18, 2009); 6 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO Mike V. Kaiser Permanente, United States District Court, Northern District 0f California, Case N0. C 08-5374 PJH (order filed December 23, 2009); Wolfe, et a1. V. California Check Cashing Stores Inc et a1., San Francisco County Superior Court, Case No. CGC-08-479518 (order filed February 19, 2010); Bufil V. Dollar Financial Group, Inc., San Francisco County Superior Court, Case N0. CGC-06-456053 (order filed March 11, 2010); Garnica, et a1. V. Verizon Wireless Telecom, Inc., et a1., San Francisco County Superior Court, Case No. CGC-08- 476827 (order filed March 19, 2010); Mann V. NEC Electronics America, Inc., Santa Clara County Superior Court, Case N0. 1-09-CV-132089 (order filed April 28, 2010); Hendren V. USA Checks Cashed, et al., Los Angeles County Superior Court, Case N0. BC 413393 (order filed May 25, 2010); Rivera V. Riverstone Resid. Group, et al., Alameda County Superior Court, Case No. RG08402872 (order filed July 6, 2010); Gonzales V. Lime Energy, San Francisco County Superior Court, Case N0. CGC-09-484745 (order filed December 17, 2010); Green V. Greyhound Lines, Inc., San Francisco County Superior Court, Case N0. CGC-09- 484924 (order filed March 11, 201 1); Manulevu, et a1. V. Professional Security Consultants, Los Angeles County Superior Court, Case N0. BC409603 (order filed May 16, 2012); Amezquita V. Classic Beverage and Distributing Group, Inc., Los Angeles County Superior Court, Case N0. BC412216 (order filed May 17, 2012); Young V. World Courier Ground, Inc., Alameda County Superior Court, Case No. RG1 1603420 (order filed August 2, 2012); Nolan V. Kayo Oil, San Francisco County Superior Court, Case N0. CGC-10-497445 (order filed April 12, 2013); Hall V. O.C. Jones & Sons, Inc., San Francisco County Superior Court, Case N0. CGC-12-523668 (order filed May 10, 2013); McCormack V. WinCo Holdings, Inc., Riverside County Superior Court, Case N0. RIC1200516 (order filed July 5, 2013); Cooper, et a1. V. Eastwestproto, Inc., et a1., Orange County Superior Court, Case N0. 30-2012-00552236- CU-OE-CXC (order filed August 26, 2013); Bunton V. Sephora, San Francisco County Superior Court, Case N0. CGC-10-497025 (order filed August 30, 2013); Morris V. Liguidagents, Alameda County Superior Court, Case N0. RG12638618 (order filed August 30, 2013); Martin V. Kasel Enterprises, et a1., Riverside County Superior Court, Case N0. RIC1210 121 (order filed October 28, 20 1 3); Vega V. Sensient Dehydrated Flavors, LLC, 7 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO Stanislaus County Superior Court, Case No. 684568 (order filed March 18, 2014); Nguyen V. JAG Footwear, et al., Alameda County Superior Court, Case N0. RG12649759 (order filed June 19, 2014); LaBoV V. Bare Escentuals, Inc., et a1, Alameda County Superior Court, Case N0. RG12638047 (order filed December 11, 2014). 11. Since I opened Workman Law PC, courts have continued t0 appoint my firm as class counsel. E Bennett V. Pride Bakeries, LLC, Orange County Superior Court, Case No. 30-2012-00595050-CU-OE-CXC (order filed April 22, 2014); Ambrus V. ACE Security, Riverside County Superior Court, Case N0. RIC1303852 (order filed November 14, 2014); Stokes V. CSE Holdings, Inc., et 211., San Francisco Superior Court, Case N0. CGC-13-530640 (order filed 0n December 15, 2014); Otts V. C.O.M.P.A.S.S., Alameda County Superior Court, Case No. RG1 1591441 (order filed January 9, 2015); Allen V. UtiliQuest, San Francisco County Superior Court, Case N0. CGC-12-525644 (order filed February 16, 2015); Stokes V. Interline, San Francisco County Superior Court, Case N0. CGC-12-523274 (order filed April 6, 2015); Battle V. Charming Charlie, San Diego Superior Court, Case N0. 37-2014-00005608 (order filed September 25, 2015); Oliver V. Konica Minolta, Santa Clara Superior Court, Case N0. 114cv263 1 83 (order filed October 8, 2015); Kissinger V. Foot Locker, San Francisco County Superior Court Case N0. CGC-09-487345 (order filed March 24, 2016); Fredrick V. ACE, Riverside Superior Court Case N0. RIC1505009 (order filed June 17, 2016); Alcantar V. Hobart Service, et a1., USDC Central District 0f California, EDCV 11-1600 PSG (SPX) (order filed June 22, 2016); Garnett V. ADT, USDC Eastern District 0f California Case N0. 2: 14-CV- 285 1 WBS (order filed June 28, 2016); Stilwell, et a1. V. First Alarm, Santa Clara County Superior Court Case N0. 2015-CV-281763 (order filed December 9, 2016); Murphy V. Care lst Health Plan, Alameda County Superior Court Case N0. RG15784123 (order filed January 13, 2017); Robinson, et a1. V. Energy Remodeling, Inc., et a1., Santa Clara County Superior Court Case N0. 115CV287674 (order filed March 24, 2017); Schuett V. ALLDATA, LLC, Alameda County Superior Court Case N0. RG15765228 (order filed April 7, 2017); Young V. World Courier Ground, Inc., et al., Alameda County Court Case Number RG1683 141 (Order filed May 26, 2017); Rvpka V. Volume Snacks, Inc., et a1., Sacramento County Superior Court Case 8 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO N0. 34-2015-00184135 (Order filed December 5, 2017); and Williams, et a1. V. ETC Institute, et_a1., San Francisco Superior Court, Case No. CGC-17- 563308 (order filed February 19, 2019) 12. Pursuant to the Settlement, Defendant Will pay a gross amount, the Gross Settlement Fund (“GSF”) 0f $750,000. The average rate ofpay for the drivers was approximately $40.00 per hour. Berger analyzed the maximum potential damages from the claims presented. The analysis revealed the following: For the rounding claim, there were 855 hours unpaid due t0 rounding. The maximum value 0f this claim is $60,684. Assuming a Violation for every day that Defendant auto-deducted a 30-minute meal break for all shifts in excess of 5 hours, the maximum damages for the meal period claim is $1,382,755. For the rest period claim, assuming a Violation every week, the damages arising from this claim are $320,000. The exchange of materials and information revealed that the other claims Plaintiff alleged d0 not have value. For example, it appears that Plaintiff is the only employee Who asked for a copy of his personnel file and did not receive same. In like vein, the exchange of materials revealed that Defendant did not provide fingerprint data to a third party. The only entity that used this data was an agent of Defendant, its payroll processor ADP. Even ADP only used an electronic signature, not the actual fingerprint. As such, the maximum damages for the claims presented, based 0n the assumptions stated, total $1,783,439. 13. The GSF 0f $750,000 results in an average payout of $7,000 per driver. I believe that this amount is a reasonable settlement. To put this amount in perspective, in the High-Tech Employee Antitrust Litigation, 2015 U.S. Dist. LEXIS 11805 1, *23 (N.D. Cal. Sept. 2, 2015), a case brought by employees alleging that their employers conspired t0 depress their wages, Which resulted in a $415,000,000 settlement, the class members received, 0n average, just $5,770 each. This Settlement, that provides class members with amounts higher than the amount received by class members in one of the largest class action settlements t0 recover wages for employees, militates in favor of a finding 0f reasonableness. This is particularly true since Defendant contends that it owes nothing t0 the drivers. Defendant is adamant that it complied With all California Labor Code provisions. 9 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO 14. Defendant asserted that it employed a permissible time rounding practice under See’s Candy Shops, Inc. V. Superior Court, 210 Cal.App.4th 889 (2012), and therefore no damages flowed from this claim. Defendant also asserted that Plaintiff did not present Viable meal 0r rest period claims, arguing that n0 meal period claims existed because putative class members are union employees subject t0 a valid collective bargaining agreement. Based on this fact, Defendant asserted that putative class members are exempt from the meal period requirements of California law pursuant t0 Labor Code section 512(6). Defendant also presented evidence which it asserted establishes that putative class members lost n0 pay due t0 the automatic 30-minute meal period deduction, as their union contract guaranteed eight hours 0fpay and drivers generally completed their route work in less than 7.5 hours. Taking this fact into account, Defendant calculated that even assuming that putative class members were never able t0 take a 30-minute meal period, the maximum potential damages for this claim would be only about $425,000, further arguing that even this figure was subj ect t0 significant reduction as Defendant believes that putative class members took 30-minute meal breaks on most, if not all workdays. Defendant therefore asserted that a more reasonable potential liability figure would be less than $100,000. Defendant also asserted that rest breaks were covered by the applicable collective bargaining agreement and that putative class members had ample opportunity to take such breaks. With respect t0 both claims, Defendant asserted that the claims were not suitable for class determination, insisting that individual issues predominated with respect t0 liability. 15. Ibelieve that the consideration, the GSF of $750,000, which represents 42% of the total maximum recovery as calculated by Plaintiff’ s expert, significantly more than Defendant’s estimate, and over 50% of What Plaintiff believes t0 be the strongest claim, the auto-deduction meal period claim, is a reasonable settlement. This is particularly true given the average amount Class Members Will receive is approximately $7,000. 16. The Settlement provides for payment t0 the drivers now, rather than a speculative payment years from now. If the litigation continued, and if Plaintiff were able to obtain class certification, and the class prevailed, payment would occur at some time in the 10 DECLARATION OF ROBIN G. WORKMAN \OWQONUI-PUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 future, as Defendant would no doubt appeal any adverse judgment. The same is true for representative claims. The Court of Appeal could disagree with a certification decision, 0r any part 0f a potential judgment. If the Court 0f Appeal overturned any part 0f the judgment, it could remand the matter t0 this Court for further proceedings that, again, could last indefinitely, including another appeal. This delay, and the risks inherent in continued litigation and the appellate process, led Plaintiff and Class Counsel t0 conclude that reaching this resolution is the best course 0f action. 17. The class representative enhancement sought for Mr. Villareal is reasonable given the risks he undertook t0 prosecute these claims and the work he performed t0 help obtain this recovery. Mr. Villareal agreed t0 prosecute this action despite 0f the significant risk of retaliation he faced. This is particularly true because Mr. Villareal, is a current employee. Mr. Villareal provided invaluable assistance in the prosecution 0f this case, obtained and provided documents, assisted in the preparation for mediation, met with me and others at my firm on numerous occasions, and timely responded to continual inquiries from me and others at my firm. T0 my knowledge, neither Mr. Villareal nor my firm have any conflicts 0f interest with any 0f the proposed class members. Mr. Villareal is also aware 0f his duties as class representative and actively participated in the prosecution 0f this case. 18. As set forth in the declaration of Eric Bishop of Rust Consulting, the proposed Settlement Administrator, Rust is experienced in class action settlement administration and is capable 0f handling the administration of this settlement. I declare under penalty 0f perjury under the laws; San Francisco, California. 11 DECLARATION OF ROBIN G. WORKMAN EXHIBIT A KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO WORKMAN LAW FIRM, PC Robin G. Workman (Bar # 145 8 1 0) robin@workmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@workmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all other similarly situated E-FILED 11/19/2018 3:48 PM Clerk of Court Superior Court of CA, County of Santa Clara 180V338479 Reviewed By: S. Alvarez SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, Plaintiff, VS. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. COMPLAINT -1- O 18CV338479 COMPLAINT Unlimited Civil Case The Amount Demanded Exceeds $25,000 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Plaintiff Thomas Villarreal (“Plaintiff”) by his attorneys, brings this action 0n behalf 0f himself, all others similarly situated, and the general public, 0n information and belief, except those allegations that pertain t0 the named Plaintiff and his attorneys (which are alleged 0n personal knowledge), hereby alleges as follows: JURISDICTIONAL ALLEGATIONS 1. This class action lawsuit arises from ongoing wrongful conduct by Defendant Mission Trail Waste Systems, Inc. (“Defendant”), by its unlawful (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7 and 512, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure t0 provide rest breaks, 0r provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code section 226.7, and section 12 0f applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiff’s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation 0f California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees t0 inspect 0r copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees t0 inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, in Violation 0f California Labor Code section 204; (8) failure t0 pay members 0f the proposed class all wages due at the time 0f termination in Violation 0f California Labor Code sections 201-203; and, (9) Violation 0f California Labor Code section 1051 in that Defendant obtained employees’ fingerprints as a prerequisite 0f their employment and shared these fingerprints with a third party. Said conduct violated each California Labor Code section as set forth in California Labor Code section 2699.5. Said conduct, in addition, constitutes Violations 0f California Labor Code sections 558 and 1198. The described conduct renders Defendant liable for civil penalties as set forth in California Labor Code sections 203, 210, 226(6), 226(f), 226.3, 558, 1054, 1174.5, 1198.5(k), 2699(a), 2699(f), and 2699.5. These failures further constitute unfair COMPLAINT -2- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO business practices, in Violation 0f California Business and Professions Code section 17200, et. seq., and Violations 0f California Labor Code section 2698, et. seq., the Private Attorneys General Act of 2004 (“the PAGA”), through which Plaintiff seeks civil penalties. 2. Defendant Mission Trail Waste Systems, Inc., is and at all and at all relevant times was, a corporation doing business within the State 0f California and is an employer under applicable Industrial Welfare Commission Orders. Defendant’s headquarters are located in Santa Clara, California. GENERAL ALLEGATIONS 3. This action seeks relief for unremedied Violations 0f California law, including, inter alia; damages, reimbursements, restitution, penalties, interest and attorneys’ fees, as appropriate, t0 members 0f the proposed classes, aggrieved employees, and t0 Victims 0f the practices at issue, who have not been provided statutory meal breaks, 0r compensation for missed meal breaks, as required by California Labor Code sections 226.7, 512, and 558; who have not been provided statutory rest breaks, 0r compensation for missed rest breaks, as required by California Labor Code sections 226.7 and 558; who have not been timely paid for all wages earned, even upon termination, in Violation 0f California Labor Code sections 201-204; who have not been furnished with accurate wage statements in Violation 0f California Labor Code section 226; who were not allowed t0 review and/or obtain a copy 0f their personnel file in Violation of California Labor Code section 1198.5; and, who were required t0 submit their fingerprints as a prerequisite 0f whose employment, which were shared with a third party in Violation 0f California Labor Code section 105 1. Plaintiff is informed and believes that the damages, reimbursements, restitution, penalties, interest and attorneys’ fees d0 not exceed an aggregate 0f $4,999,999.99 and that Plaintiffs individual claims d0 not exceed $74,999.99. 4. The names and capacities 0f defendants sued herein under California Code 0f Civil Procedure section 474 as Does 1 through 50, inclusive, are presently not known to Plaintiff, who therefore sues these defendants by such fictitious names. Plaintiff will seek t0 amend this Complaint and include these Doe defendants’ names and capacities when they are ascertained. Each fictitiously named defendant is responsible in some manner for the conduct alleged herein COMPLAINT -3- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO and for the injuries suffered by Plaintiff, the members 0f the class, aggrieved employees, and the general public. 5. At all times mentioned in the causes 0f action alleged herein, each and every Defendant was an agent and/or employee 0f each and every other Defendant. In doing the things alleged in the causes 0f action stated herein, each and every Defendant was acting within the course and scope 0f this agency 0r employment and was acting with the consent, permission and authorization 0f each 0f the remaining Defendants. A11 actions 0f each Defendant as alleged in the causes 0f action stated herein were ratified and approved by every other Defendant 0r their officers 0r managing agents. 6. Plaintiff is a current employee 0f Defendant. Defendant employs Plaintiff as an hourly-paid sanitary truck route driver in California. Plaintiff, and those similarly situated employees, drive routes t0 pick up waste in the Santa Clara, California, area. Defendant routinely requires Plaintiff, and similarly situated drivers, t0 work more than five hours per day without receiving mandated off-duty meal periods. Whether 0r not Plaintiff and similarly situated drivers indicate 0n their time sheets that they take statutory meal breaks, Defendant “auto-deducts” a 30- minute meal break from the daily hours worked by drivers, and does not pay drivers for that 30 minutes worked, 0r the one-hour 0fpremium pay at each driver’s regular rate 0f pay for forgoing the meal break. Although Defendant auto-deducts 30 minutes from Plaintiff’s, and similarly situated drivers’ wage statements for meal breaks, Plaintiff and similarly situated drivers routinely miss such meal breaks. This is because, t0 make it t0 all 0f the waste pick ups set by Defendant, and transport all 0f this waste t0 the dump Defendant designates before it closes, Plaintiff and similarly situated drivers cannot stop t0 take their statutory 30-minute uninterrupted meal breaks. Defendant is aware 0f this, because Defendant sets drivers’ route assignments. For these reasons, Defendant fails to provide Plaintiff and similarly situated drivers with uninterrupted 30-minute off-duty meal breaks. Plaintiff and similarly situated drivers sometimes also sometimes work “double shifts.” When this occurs, they often work in excess 0f 10 hours per day. When they d0 so, Defendant does not provide Plaintiff and those similarly situated drivers with a second meal period as required by Labor Code section 5 12 and the applicable Wage Order. When the drivers COMPLAINT -4- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO d0 not receive statutory meal breaks, Defendant does not pay Plaintiff, 0r those similarly situated drivers, with the additional hour 0f compensation as required by Labor Code sections 226.7 and 558 and the applicable Wage Order. As a result, Defendant did not pay Plaintiff, 0r those similarly situated drivers, with all wages due as required by Labor Code sections 201-204. 7. Defendant routinely requires Plaintiff, and similarly situated drivers, t0 work more than 3.5 hours per day without receiving mandated off-duty, uninterrupted rest periods, in Violation 0f California Labor Code sections 226.7, 558, 1198, and applicable Wage Orders. In addition, Plaintiff and similarly situated drivers often work in excess 0f 8 hours per day, even exceeding 12 hours per day, but Defendant does not authorize and permit them t0 take a second 0r third statutory rest break, respectively. Plaintiff and similarly situated drivers cannot take mandated 10-minute rest breaks because they d0 not have time t0 d0 so in order t0 meet the driving schedules set by Defendant. When the drivers d0 not receive uninterrupted 10-minute off- duty rest breaks, Defendant does not pay Plaintiff, 0r those similarly situated drivers, with the additional hour 0f compensation as required by Labor Code section 226.7 and applicable Wage Orders. As a result, Defendant did not pay Plaintiff, 0r those similarly situated drivers, with all wages due as required by Labor Code sections 201-204. 8. Because Defendant did not adequately keep records 0f Plaintiff” s and similarly situated drivers’ meal breaks taken and not taken, as required by Labor Code sections 226.7 and 512, Defendant failed t0 maintain accurate and complete payroll records, as required by Labor Code section 1174(d). This failure gives rise t0 civil penalties under Labor Code section 1174.5. 9. Defendant also failed t0 furnish accurate itemized statements t0 Plaintiff, and other similarly situated drivers, containing information as required by California Labor Code section 226. Because Defendant “auto-deducts” 30-minute meal breaks from drivers’ hours worked, and because Defendant does not pay the additional hour 0f compensation when drivers are not provided meal and/or rest breaks as required by Labor Code section 226.7 and applicable Wage Orders, the wage statements d0 not reflect all hours worked, all gross 0r net wages earned, 0r the hours worked and the corresponding hourly rates in Violation 0f Labor Code sections 226(a)(1), (2), (5), and (9). COMPLAINT -5- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 10. During Plaintiff” s employment in either 2017 or 20 1 8, Plaintiff requested Defendant permit him t0 inspect his payroll records for the last three years. Defendant failed t0 permit Plaintiff t0 inspect 0r copy all 0f the records he requested within 21 days, in Violation 0f California Labor Code section 226 subsection (c). Defendant violated subsection (c) with respect t0 other drivers’ requests for the same, because Defendant admitted it n0 longer has access t0 the records from 2016 and prior, because it changed payroll companies in 2016. Plaintiff and similarly situated drivers who were denied this request are therefore entitled t0 statutory penalties pursuant t0 section 226 subsection (f). 11. During Plaintiff” s employment, Plaintiff requested Defendant permit him t0 inspect his personnel records for the past three years, including records relating t0 his performance 0r t0 any grievance concerning him, maintained by Defendant, pursuant t0 California Labor Code section 1198.5. After 30 days, Defendant had provided Plaintiff with some, but not all 0f the personnel records Defendant is required t0 keep pursuant t0 section 1198.5. Because Defendant failed t0 permit Plaintiff, and similarly situated drivers t0 review their complete personnel files in Violation 0f section 1198.5, they are entitled t0 penalties pursuant t0 section 1198.5 subsection (k). 12. Because Defendant failed t0 pay Plaintiff and similarly aggrieved drivers an extra hour at the regular rate for forgone meal breaks and rest breaks, Defendant failed t0 timely pay Plaintiff and similarly aggrieved drivers all wages when due, in Violation 0f Labor Code section 204. Plaintiff therefore seeks t0 recover civil penalties for this Violation as a representative 0f the State, pursuant t0 Labor Code sections 210, 2699.3 and 2699.5. 13. Defendant failed t0 pay Plaintiff and proposed class members an extra hour at the regular rate for their forgone meal breaks and rest breaks. During the relevant period, the employment 0f many proposed class members with Defendant ended and they were not paid all wages due either immediately 0r within 72 hours 0f termination or resignation, in Violation of Labor Code sections 201 and 202. Plaintiff therefore seeks wages as civil penalties 0n behalf 0f those proposed class members who were not paid all wages due either immediately 0r within 72 of termination 0r resignation, pursuant t0 Labor Code section 203. COMPLAINT -6- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 14. During Plaintiff” s employment, Defendant violated California Labor Code section 1051 because Defendant obtained Plaintiff’s and all other hourly employees’ fingerprints on its ADP thumb scanning device, as a prerequisite 0f their employment. Defendant then shared these fingerprints with a third-party company. Defendant knowingly permitted this practice, in Violation of California Labor Code section 1052. 15. Given the Violations 0f the aforementioned Labor Code sections and Wage Orders, Defendant is therefore liable for unfair business practices, in Violation 0f California Business & Professions Code section 17200, et. seq. 16. Given the Violations 0f the aforementioned Labor Code sections and Wage Orders, Defendant is therefore liable for civil penalties set forth within, and authorized by, the PAGA, California Labor Code section 2698, et. seq. CLASS ALLEGATIONS 17. Plaintiff is, and during all relevant times, was, a resident 0f the State 0f California. Plaintiff sues on behalf 0f himself and the following subclasses 0f employees 0f Defendant in California: (a) all drivers employed by Defendant in California during the four years preceding the filing of this complaint t0 present; (b) A11 persons in the employ of Defendant in California who, from the one year preceding the filing 0f this complaint t0 the present, made requests t0 copy 0r inspect their records containing information employers must keep pursuant t0 Labor Code section 226 subsection (a); (c) A11 persons in the employ of Defendant in California who, from the one year preceding the filing 0f this complaint t0 the present, made requests t0 copy 0r inspect their personnel records; and (d) A11 persons in the employ of Defendant in California, from the four years preceding the filing 0f this complaint t0 present, who, as a condition 0f their employment, were required t0 provide their fingerprints, and who are/were COMPLAINT -7- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO required t0 use their fingerprints for the purposes 0f clocking in and out from work. 18. Because Plaintiff, in his employment with Defendant as a driver, was routinely required t0 work without statutory meal periods, for which Plaintiff was not properly compensated, was routinely required t0 work without statutory rest periods, for which Plaintiff was not properly compensated, was not permitted t0 inspect either his payroll records for the last three years 0r his complete personnel file for the past three years, failed t0 receive timely and accurate wage statements, and was not paid all wages earned when they were due, and was required t0 provide his fingerprints, which were used for time keeping purposes, as a condition of employment, Plaintiff’s claims are typical 0f the proposed class. 19. Plaintiff will fairly and adequately represent and protect the interests 0f the members 0f the proposed class in that he has n0 disabling conflict 0f interest that would be antagonistic t0 those 0f the other members 0f the proposed class. Plaintiff retained counsel who are competent and experienced in the prosecution 0f class action wage and hour Violations. 20. The proposed subclasses are sufficiently numerous and the class members are geographically dispersed throughout California, the joinder 0fwhom in one action is impracticable, such that the disposition 0fwhose claims in a class action will provide substantial benefits t0 both the parties and the Court. 21. There is a well-defined community 0f interest in the questions 0f law and fact involved affecting the parties t0 be represented. The questions 0f law and fact common t0 the proposed classes predominate over questions that may affect individual class members, include but are not limited t0 the following: (a) Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and the proposed class members COMPLAINT -8- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO (b) (C) (d) (e) (f) (g) (h) (i) (i) COMPLAINT Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 provide rest breaks, 0r provide compensation for missed rest breaks, t0 Plaintiff and the proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 maintain accurate payroll records for Plaintiff and proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 provide Plaintiff and proposed class members accurate itemized wage statements; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 permit employees t0 inspect 0r copy their wage statements; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 permit employees t0 inspect personnel records; Whether Defendant implemented and engaged in a practice whereby Defendant failed to timely pay Plaintiff and proposed class members all wages when due; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 pay proposed class members all wages due at the time 0f termination in Violation 0f California Labor Code sections 201-203; Whether Defendant implemented and engaged in a practice whereby Defendant obtained Plaintiff’s and proposed class members’ fingerprints as a prerequisite 0f their employment and shared these fingerprints with a third party; Whether the practices 0f Defendant as alleged herein violated, inflm, applicable provisions 0f the California Labor Code, including but not limited t0 sections 201-204, 226, 226.7, 512, 1051, 1174, 1198, 1198.5, the Unfair Competition Law codified in California Business and Professions Code section 17200, e_tfl, and the Private Attorneys General Act 0f 2004 (the PAGA), California Labor Code section 2698, e_tm -9- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 22. Plaintiff and the proposed class members have all similarly suffered irreparable harm and damages as a result 0f Defendant’s unlawful and wrongful conduct, including but not limited t0 Defendant’s pattern and practice 0f failure t0 provide rest and meal periods and compensation for work without rest and meal periods; pattern and practice 0f failing t0 furnish accurate itemized wages statements; pattern and practice 0f failing t0 permit employees t0 inspect complete records for the past three years 0f their payroll records and their personnel files within the statutory time frames required; pattern and practice 0f failing t0 provide accurate wage statements; pattern and practice 0f requiring employees t0 provide their finger prints as a condition 0f employment, and pattern and practice 0f failing t0 pay its employees all wages when due. These issues are common t0 all proposed class members, making class treatment especially appropriate. Because the actions 0f Defendant toward proposed class members follow common patterns, all 0f which are reflected in the records possessed by Defendant, this action will provide substantial benefits t0 all proposed class members. Absent this action, Defendant’s unlawful conduct will continue unremedied and uncorrected. FIRST CAUSE OF ACTION (Applicable t0 Subclass (a)) (Meal Break Violations: Cal. Lab. Code §§ 226.7 & 512 & Applicable Industrial Welfare Commission Wage Orders §11) 23. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 24. Throughout the approximately 20 years 0f Plaintiff” s employment with Defendant, Defendant engaged in a pattern and practice 0f requiring Plaintiff, and similarly situated drivers, t0 work more than five hours per day without receiving statutory 30-minute off-duty meal periods. Defendant also engaged in a pattern and practice 0f requiring Plaintiff and proposed class members t0 work more than 10 hours a day without providing Plaintiff and proposed class members with a second, statutory 30-minute off-duty meal break. Defendant likewise did not pay Plaintiff 0r proposed class members an additional hour 0f compensation when Plaintiff or proposed class members did not receive their statutory 30-minute off-duty meal breaks. This COMPLAINT -10- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO failure violated California Labor Code sections 226.7 and 5 12 and section 11 0f the applicable Wage Order. 25. Defendant requires Plaintiff and each 0f the proposed class members t0 adhere t0 a driving route for waste pick-ups. These routes often d0 not allow for off-duty 30-minute meal breaks. Additionally, in order t0 make it t0 all 0f the pick-up locations, while driving safely and within the speed limits, and make it t0 the dump by the designated time, drivers d0 not have time t0 take their statutory 30-minute off-duty meal breaks. As such, when Plaintiff and proposed class members drive these routes, they d0 not receive mandated 30-minute off-duty meal breaks. 26. Defendant is aware that drivers are often unable t0 take their statutory 30-minute off-duty meal breaks, but does not pay Plaintiff, 0r proposed class members, with the additional hour 0f compensation, as required by section 11 0f applicable Wage Orders and Labor Code sections 226.7 and 558. Instead, Defendant engages in the pattern and practice 0f “auto- deducting” 30 minutes 0f time worked for meal breaks. This Violation 0f section 11 0f applicable Wage Orders is also a Violation 0f Labor Code sections 558 and 1198, for which Defendant is liable for penalties under the PAGA, Labor Code section 2699 e_t fl. 27. As a result 0f Defendant’s failure t0 pay Plaintiff and proposed class members for missed meal periods, Defendant did not pay Plaintiff, 0r those similarly situated employees, with all wages due as required by Labor Code sections 201-204, for which Plaintiff seeks penalties pursuant t0 Labor Code sections 203, 210, 558, 1198, 2699.3, and 2699.5. 28. As Defendant augmented time sheets t0 reflect Plaintiff and proposed class members did not work during hours they did work, and did not pay Plaintiff 0r proposed class members the additional hour 0f compensation when they were not provided meal breaks as required by Labor Code sections 226.7 and 558, Defendant did not furnish Plaintiff 0r proposed class members with accurate wage statements, in Violation 0f Labor Code section 226 subsection (a), as the wage statements d0 not reflect all gross wages earned (§ 226(a)(1)), total hours worked (§ 226(a)(2)), 0r net wages earned (§ 226(a)(5)). COMPLAINT -1 1- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 29. As a result 0f Defendant’s failures, Plaintiff and the proposed class members are entitled t0 recover the additional hour 0f compensation as set forth in California Labor Code sections 226.7 and 558. 30. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. SECOND CAUSE OF ACTION (Applicable t0 Subclass (a)) (Rest Break Violations: Cal. Lab. Code §§ 226.7 & Applicable Industrial Welfare Commission Wage Orders §12) 3 1. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 32. During all relevant periods, Defendant routinely required Plaintiff and proposed class members t0 work more than 3.5 hours without providing Plaintiff and proposed class members with mandated 10-minute rest breaks. Defendant likewise did not pay Plaintiff or proposed class members an additional hour 0f compensation when Plaintiff 0r proposed class members did not receive the mandated 10-minute meal breaks. This failure violated section 12 0f applicable Wage Orders and California Labor Code section 226.7. This Violation 0f section 12 0f applicable Wage Orders is also a Violation 0f Labor Code section 1198, for which Defendant is liable for penalties under the PAGA, Labor Code section 2698 e_t fl. Plaintiff also seeks civil penalties for this Violation pursuant t0 Labor Code section 558, because Defendant violates “any provision regulating hours and days 0fwork in any order 0f the Industrial Welfare Commission,” here, section 12 0f applicable Wage Orders. 33. Defendant requires Plaintiff and each 0f the proposed class members t0 adhere t0 a driving route for waste pick-ups. These routes often d0 not allow for off-duty 10-minute rest breaks. Additionally, in order t0 make it t0 all 0f the pick-up locations, while driving safely and within the speed limits, and make it t0 the dump by the designated time, drivers d0 not have time t0 take their statutory 10-minute off-duty rest breaks. As such, when Plaintiff COMPLAINT -12- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO and proposed class members drive these routes, they d0 not receive mandated 10-minute off- duty rest breaks. 34. Defendant is aware that drivers are often unable t0 take their statutory 10- minute off-duty rest breaks, but does not pay Plaintiff, 0r proposed class members, with the additional hour 0f compensation, as required by applicable Wage Orders and Labor Code section 226.7. 35. As a result 0f Defendant’s failure t0 pay Plaintiff and proposed class members for missed rest periods, Defendant also did not pay Plaintiff, 0r proposed class members, with all wages due as required by Labor Code sections 201-204, for which Plaintiff seeks penalties pursuant t0 Labor Code sections 203, 210, 558, 1198, and 2698 et seq. 36. Because Defendant did not pay Plaintiff 0r proposed class members the additional hour 0f compensation when they were not provided rest breaks as required by Labor Code sections 226.7 and section 12 0f applicable Wage Orders, Defendant did not furnish Plaintiff 0r proposed class members with accurate wage statements, in Violation 0f Labor Code section 226(a), as the wage statements d0 not reflect all gross wages earned (§ 226(a)(1)), total hours worked (§ 226(a)(2)), 0r net wages earned (§ 226(a)(5)). 37. As a result 0f Defendant’s failures, Plaintiff and proposed class members are entitled t0 recover the additional hour 0f compensation as set forth in California Labor Code sections 226.7 and 558. 38. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. THIRD CAUSE OF ACTION (Applicable t0 Subclass (a)) (Inaccurate Wage Statements: Cal. Lab. Code § 226) 39. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 40. During the relevant time period, Defendant failed t0 pay Plaintiff, and proposed class members, with the additional hour 0f compensation owed when the class members did not COMPLAINT -13- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO receive mandated off-duty meal 0r rest breaks. In addition, because Defendant auto-deducted time for meal periods for which Plaintiffs and class members did not receive, Defendant routinely issued wage statements that did not accurately reflect all hours worked, 0r all gross 0r net wages earned. As such, Defendant failed t0 furnish accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226 subdivision (a) paragraphs (1) gross wages earned, (2) total hours worked, and (5) net wages earned. These failures caused Plaintiff and proposed class members t0 suffer injury as defined by California Labor Code section 226(e)(2)(B)(i). As a result 0f Defendant’s failures, Plaintiff and proposed class members are entitled t0 recover the penalties and attorneys’ fees as set forth in California Labor Code section 226(e)(1). 41. As a result 0f Defendant’s Violations 0f Labor Code section 226(a), Plaintiff and proposed class members are also entitled t0 recover the penalties, and interest thereon, as set forth in California Labor Code section 226.3. 42. Plaintiff also seeks penalties for Defendant’s Violations 0f Labor Code section 226 subsection (a), paragraphs (1), (2), and (5) pursuant t0 Labor Code sections 2699.3 and 2699.5, and attorneys’ fees pursuant t0 section 2699(g)(1). 43. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FOURTH CAUSE OF ACTION (Applicable t0 Subclass (b)) (Failure T0 Permit Employee Inspection Of Payroll Records: Cal. Lab. Code § 226(c)) 44. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 45 . During Plaintiff” s employment in either 2017 0r 2018, Plaintiff that requested Defendant permit him t0 inspect his payroll records for the last three years, as specified in Labor Code section 226 subsection (b). Defendant failed t0 permit Plaintiff t0 inspect 0r copy all of the records he requested within 21 days, in Violation 0f California Labor Code section 226 subsection (c). Defendant violated subsection (c) with respect t0 other drivers’ requests for the same, because COMPLAINT -14- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Defendant admitted it n0 longer has access t0 the records from 2016 and prior, because it changed payroll companies in 2016. Plaintiff and similarly situated drivers who were denied this request are therefore entitled t0 statutory penalties pursuant t0 section 226 subsection (f). 46. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FIFTH CAUSE OF ACTION (Applicable t0 Subclass (c)) (Failure T0 Permit Employee Inspection Of Personnel Records: Cal. Lab. Code § 1198.5) 47. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 48. During Plaintiff” s employment, Plaintiff requested that Defendant permit him t0 inspect his personnel records for the past three years, including records relating t0 his performance 0r t0 any grievance concerning him, maintained by Defendant, pursuant t0 California Labor Code section 1198.5. After 30 days, Defendant had provided Plaintiff with some, but not all 0f the personnel records Defendant is required t0 keep pursuant t0 section 1198.5. Because Defendant failed t0 permit Plaintiff, and similarly situated drivers t0 review their complete personnel files in Violation 0f section 1198.5, they are entitled t0 penalties pursuant t0 section 1198.5 subsection (k). 49. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. SIXTH CAUSE OF ACTION (Applicable t0 Subclass (d)) (Improper Acquisition And Use Of Employees’ Fingerprints: Violation 0f Cal. Lab. Code §§ 1051 and 1054) 50. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 5 1. During Plaintiff” s employment, Defendant obtained Plaintiff” s and proposed class members’ fingerprints 0n its thumb-scanning system, as a condition 0f their employment. Defendant shared these fingerprints with a third-party in Violation 0f California Labor Code section 105 1. COMPLAINT -15- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 52. Defendant is liable t0 Plaintiff, and proposed class members, for all recovery allowed by California Labor Code section 1054, including, but not limited t0, treble damages. 53. Plaintiff, and those similarly situated, are therefore entitled t0 the relief requested below. SEVENTH CAUSE OF ACTION (Applicable t0 all Subclasses) (Unlawful, Unfair And Fraudulent Business Practices: Business & Professions Code § 17200, e_tfl) 54. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 55. Business & Professions Code section 17200, e_tm, prohibits acts 0f unfair competition, defined as an “unlawful, unfair, 0r fraudulent business act 0r practice.” 56. The policies, acts and practices heretofore described were and are unlawful business acts 0r practices because Defendant’s (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 5 12, 558, 1198, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure t0 provide rest breaks, 0r provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7 558, 1198, and section 12 0f applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiff’s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation 0f California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees t0 inspect 0r copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees t0 inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, in Violation 0f California Labor Code section 204; (8) failure t0 pay members 0f the proposed class all wages due at the time 0f termination in Violation 0f California Labor Code COMPLAINT -16- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO sections 201-203; and, (9) Violation 0f California Labor Code section 1051 in that Defendant obtained employees’ fingerprints as a prerequisite 0f their employment and shared these fingerprints with a third party; Violate applicable Labor Code sections, Industrial Welfare Commission Wage Orders, the Private Attorneys General Act 0f 2004, Labor Code section 2698 e_tfl, and other provisions 0f California common and/or statutory law. Plaintiff reserves the right t0 allege additional statutory and common law Violations by Defendant. Such conduct is ongoing t0 this date. 57. Further, the policies, acts 0r practices described herein were and are an unfair business acts 0r practices because any justifications for Defendant’s illegal and wrongful conduct were and are vastly outweighed by the harm such conduct caused t0 Plaintiff, proposed class members, aggrieved employees, and the members 0f the general public. Such conduct is ongoing t0 this date. 58. As a result 0f its unlawful and/or unfair and/or fraudulent acts, Defendant reaps and continues t0 reap unfair benefits and illegal profits at the expense 0f Plaintiff and proposed class members. Defendant should be made t0 disgorge ill-gotten gains and provide restitution t0 Plaintiff and proposed class members for the wrongfully withheld wages pursuant t0 Business and Professions Code section 17203. 59. Accordingly, Plaintiff and proposed class members respectfully request that the Court award judgment and relief in their favor, t0 provide restitution, and other types 0f equitable relief. 60. Plaintiff and the proposed class members are therefore entitled t0 the relief requested below. EIGHTH CAUSE OF ACTION (Labor Code Private Attorneys General Act 0f 2004 (the “PAGA”): Cal. Lab. Code § 2698, et. seq.) 61. Plaintiff and the aggrieved employees incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 62. The policies, acts and practices heretofore described were and are unlawful because Defendant’s (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, COMPLAINT -17- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 5 12, 558, 1198, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure t0 provide rest breaks, 0r provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 558, 1198, and section 12 0f applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiffs and proposed class members’ payroll records showing hours worked daily and wages earned in Violation 0f California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees t0 inspect 0r copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees t0 inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, in Violation 0f California Labor Code section 204; (8) failure t0 pay members 0f the proposed class all wages due at the time of termination in Violation 0f California Labor Code sections 201-203; and, (9) Violation 0f California Labor Code section 1051 in that Defendant obtained employees’ fingerprints as a condition precedent t0 their securing and retaining employment and shared these fingerprints with a third party; Violate applicable Labor Code sections and gives rise t0 statutory and civil penalties as a result 0f such conduct, including but not limited t0 penalties as provided by Labor Code sections 203, 210, 226(6), 226(f), 226.3, 558, 1054, 1174.5, 1198.5(k), 2699(a), 2699(f), and 2699.5, and applicable Industrial Welfare Commission Wage Orders. Plaintiff, as an aggrieved employee, hereby seeks recovery 0f civil penalties as prescribed by the Labor Code Private Attorney General Act 0f 2004 0n behalf 0f himself and other current and former employees 0f Defendant against whom one 0r more 0f the Violations 0f the Labor Code was committed. Plaintiff further seeks attorneys’ fees t0 achieve the same, pursuant t0 Labor Code section 2699(g)(1). 63. On June 29, 2018, Plaintiff gave written notice t0 the California Labor and Workforce Development Agency by online submission through their website and by certified mail t0 Defendant, Mission Trail Waste Systems, Inc., 0f Labor Code Violations as prescribed by COMPLAINT -18- 3280\PLEADINGS\COMPLA|NT.DOC [\J \OOONQU‘I-hm 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Labor Code section 2699.3. Plaintiff has not received written notification by the LWDA 0f an intention t0 investigate the allegations set forth in Plaintiff s June 29, 2018, letter or written notice of cure by September 3, 201 8, 65 calendar days after the postmark date of the notice given t0 the LWDA, as prescribed by California Labor Code section 2699.3(a)(2)(A). PRAYER FOR RELIEF WHEREFORE Plaintiff prays for judgment and relief as follows: 1. An order certifying that the action may be maintained as a class action; 2. Compensatory and statutory damages, penalties and restitution, as appropriate and available under each cause of action, in an amount to be proven at trial based 0n, infl fig, the unpaid balance 0f compensation Defendant owes; 3. Reasonable attorneys’ fees pursuant to California Labor Code sections 218.5, 226(c)(1) and 2699(g)(1); 4. Costs 0fthis suit; 5 Pre- and post-judgment interest; and A 6. Such other and further relief as the Court deems just and proper. 7 Plaintiff is informed and believes that the damages, back wages, restitution, value 0f injunctive relief sought, penalties, interest and attorneys’ fees d0 not exceed an aggregate 0f $4,999,999.99 and that the pro-rata value 0f Plaintiff s individual claims, including damages, back wages, restitution, injunctive relief, interest, attorneys’ fees, and penalties, does not exceed $74,999.99. W Plaintiff hereby demands a trial by jury. Date: November 19, 201 8 WORKMAN LAW FIRM, c , / 0b . Wér‘ifnfa‘fi I Attorneysfor Thomas Villareal, and all others similarly situated COMPLAINT -19- 3280\PLEADINGS\COMPLAINT.Doc EXHIBIT B hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@workmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@workmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all other similarly situated SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, Plaintiff, VS. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. FIRST AMENDED COMPLAINT No. 18CV33 8479 ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 FIRST AMENDED COMPLAINT 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Thomas Villarreal (“Plaintiff’) by his attorneys, brings this action 0n behalf of himself, all others similarly situated, and the general public, on information and belief, except those allegations that pertain to the named Plaintiff and his attorneys (Which are alleged 0n personal knowledge), hereby alleges as follows: JURISDICTIONAL ALLEGATIONS 1. This class action lawsuit arises from ongoing wrongful conduct by Defendant Mission Trail Waste Systems, Inc. (“Defendant”), by its unlawful (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, to Plaintiff and proposed class members, as required by California Labor Code sections 226.7 and 5 12, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure to provide rest breaks, 0r provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code section 226.7, and section 12 0f applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiff s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation of California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees to inspect or copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees to inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages When due, in Violation 0f California Labor Code sections 204 and 510; (8) failure to pay members 0f the proposed class all wages due at the time of termination in Violation 0f California Labor Code sections 201-203; and, (9) Violation 0f California Labor Code section 105 1 in that Defendant obtained employees” fingerprints as a prerequisite 0f their employment and shared these fingerprints with a third party. Said conduct violated each California Labor Code section as set forth in California Labor Code section 2699.5. Said conduct, in addition, constitutes Violations 0f California Labor Code sections 558 and 1198. The described conduct renders Defendant liable for civil penalties as set forth in California Labor Code sections 203, 210, 226(6), 226(1), 226.3, 558, 1054, 1174.5, 1198.5(k), 2699(a), 2699(f), and 2699.5. These failures further constitute FIRST AMENDED COMPLAINT -2- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unfair business practices, in Violation 0f California Business and Professions Code section 17200, et. seq., and Violations 0f California Labor Code section 2698, et. seq., the Private Attorneys General Act of 2004 (“the PAGA”), through Which Plaintiff seeks civil penalties. 2. Defendant Mission Trail Waste Systems, Inc., is and at all and at all relevant times was, a corporation doing business within the State 0f California and is an employer under applicable Industrial Welfare Commission Orders. Defendant’s headquarters are located in Santa Clara, California. GENERAL ALLEGATIONS 3. This action seeks relief for unremedied Violations of California law, including, inter alia; damages, reimbursements, restitution, penalties, interest and attorneys’ fees, as appropriate, t0 members of the proposed classes, aggrieved employees, and t0 Victims 0f the practices at issue, Who have not been provided statutory meal breaks, 0r compensation for missed meal breaks, as required by California Labor Code sections 226.7, 5 12, and 558; Who have not been provided statutory rest breaks, 0r compensation for missed rest breaks, as required by California Labor Code sections 226.7 and 558; Who have not been timely paid for all wages earned, including for improper rounding of time, even upon termination, in Violation 0f California Labor Code sections 201-204; Who have not been furnished with accurate wage statements in Violation 0f California Labor Code section 226; Who were not allowed t0 review and/or obtain a copy 0f their personnel file in Violation 0f California Labor Code section 1198.5; and, Who were required t0 submit their fingerprints as a prerequisite 0fwhose employment, which were shared with a third party in Violation 0f California Labor Code section 105 1. Plaintiff is informed and believes that the damages, reimbursements, restitution, penalties, interest and attorneys’ fees d0 not exceed an aggregate of $4,999,999.99 and that Plaintiff’s individual claims d0 not exceed $74,999.99. 4. The names and capacities 0f defendants sued herein under California Code 0f Civil Procedure section 474 as Does 1 through 50, inclusive, are presently not known to Plaintiff, who therefore sues these defendants by such fictitious names. Plaintiff Will seek t0 amend this Complaint and include these Doe defendants’ names and capacities When they are ascertained. Each fictitiously named defendant is responsible in some manner for the conduct alleged herein FIRST AMENDED COMPLAINT -3- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and for the injuries suffered by Plaintiff, the members of the class, aggrieved employees, and the general public. 5. At all times mentioned in the causes 0f action alleged herein, each and every Defendant was an agent and/or employee 0f each and every other Defendant. In doing the things alleged in the causes 0f action stated herein, each and every Defendant was acting Within the course and scope 0f this agency or employment and was acting with the consent, permission and authorization 0f each of the remaining Defendants. A11 actions 0f each Defendant as alleged in the causes 0f action stated herein were ratified and approved by every other Defendant 0r their officers or managing agents. 6. Plaintiff is a current employee 0f Defendant. Defendant employs Plaintiff as an hourly-paid sanitary truck route driver in California. Plaintiff, and those similarly situated employees, drive routes t0 pick up waste in the Santa Clara, California, area. Defendant routinely requires Plaintiff, and similarly situated drivers, t0 work more than five hours per day Without receiving mandated off-duty meal periods. Whether or not Plaintiff and similarly situated drivers indicate 0n their time sheets that they take statutory meal breaks, Defendant “auto-deducts” a 30- minute meal break from the daily hours worked by drivers, and does not pay drivers for that 30 minutes worked, 0r the one-hour ofpremium pay at each driver’s regular rate 0f pay for forgoing the meal break. Although Defendant auto-deducts 3O minutes from Plaintiff’ s, and similarly situated drivers’ wage statements for meal breaks, Plaintiff and similarly situated drivers routinely miss such meal breaks. This is because, t0 make it t0 all of the waste pick ups set by Defendant, and transport all 0f this waste t0 the dump Defendant designates before it closes, Plaintiff and similarly situated drivers cannot stop t0 take their statutory 30-minute uninterrupted meal breaks. Defendant is aware of this, because Defendant sets drivers’ route assignments. For these reasons, Defendant fails to provide Plaintiff and similarly situated drivers with uninterrupted 30-minute off-duty meal breaks. Plaintiff and similarly situated drivers sometimes also sometimes work “double shifts.” When this occurs, they often work in excess 0f 10 hours per day. When they d0 so, Defendant does not provide Plaintiff and those similarly situated drivers With a second meal period as required by Labor Code section 5 12 and the applicable Wage Order. When the drivers FIRST AMENDED COMPLAINT -4- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 do not receive statutory meal breaks, Defendant does not pay Plaintiff, or those similarly situated drivers, with the additional hour 0f compensation as required by Labor Code sections 226.7 and 558 and the applicable Wage Order. As a result, Defendant did not pay Plaintiff, 0r those similarly situated drivers, with all wages due as required by Labor Code sections 201-204. 7. Defendant routinely requires Plaintiff, and similarly situated drivers, to work more than 3.5 hours per day without receiving mandated off-duty, uninterrupted rest periods, in Violation of California Labor Code sections 226.7, 558, 1198, and applicable Wage Orders. In addition, Plaintiff and similarly situated drivers often work in excess of 8 hours per day, even exceeding 12 hours per day, but Defendant does not authorize and permit them to take a second 0r third statutory rest break, respectively. Plaintiff and similarly situated drivers cannot take mandated 10-minute rest breaks because they do not have time t0 d0 so in order t0 meet the driving schedules set by Defendant. When the drivers do not receive uninterrupted 10-minute off- duty rest breaks, Defendant does not pay Plaintiff, or those similarly situated drivers, With the additional hour of compensation as required by Labor Code section 226.7 and applicable Wage Orders. As a result, Defendant did not pay Plaintiff, 0r those similarly situated drivers, With all wages due as required by Labor Code sections 201-204. 8. Because Defendant did not adequately keep records of Plaintiff” s and similarly situated drivers’ meal breaks taken and not taken, as required by Labor Code sections 226.7 and 5 12, Defendant failed to maintain accurate and complete payroll records, as required by Labor Code section 1174(d). This failure gives rise to civil penalties under Labor Code section 1174.5. 9. Defendant also failed t0 furnish accurate itemized statements to Plaintiff, and other similarly situated drivers, containing information as required by California Labor Code section 226. Because Defendant “auto-deducts” 30-minute meal breaks from drivers’ hours worked, and because Defendant does not pay the additional hour of compensation When drivers are not provided meal and/or rest breaks as required by Labor Code section 226.7 and applicable Wage Orders, the wage statements d0 not reflect all hours worked, all gross 0r net wages earned, or the hours worked and the corresponding hourly rates in Violation 0f Labor Code sections 226(a)(1), (2), (5), and (9). FIRST AMENDED COMPLAINT -5- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. During Plaintiff s employment in either 2017 or 2018, Plaintiff requested Defendant permit him to inspect his payroll records for the last three years. Defendant failed t0 permit Plaintiff to inspect 0r copy all 0f the records he requested within 21 days, in Violation 0f California Labor Code section 226 subsection (c). Defendant violated subsection (c) With respect t0 other drivers’ requests for the same, because Defendant admitted it n0 longer has access t0 the records from 2016 and prior, because it changed payroll companies in 2016. Plaintiff and similarly situated drivers Who were denied this request are therefore entitled to statutory penalties pursuant to section 226 subsection (f). 11. During Plaintiff s employment, Plaintiff requested Defendant permit him to inspect his personnel records for the past three years, including records relating t0 his performance 0r to any grievance concerning him, maintained by Defendant, pursuant to California Labor Code section 1198.5. After 30 days, Defendant had provided Plaintiff with some, but not all of the personnel records Defendant is required to keep pursuant to section 1198.5. Because Defendant failed to permit Plaintiff, and similarly situated drivers t0 review their complete personnel files in Violation of section 1198.5, they are entitled t0 penalties pursuant t0 section 1198.5 subsection (k). 12. Because Defendant failed to pay Plaintiff and similarly aggrieved drivers an extra hour at the regular rate for forgone meal breaks and rest breaks, Defendant failed t0 timely pay Plaintiff and similarly aggrieved drivers all wages when due, in Violation of Labor Code section 204. In addition, instead 0f paying Plaintiff and similarly situated drivers for all hours worked, Defendant engaged in a practice 0f rounding the time. This rounding practice was disproportionately in favor 0f Defendant. Given this practice, Defendant, for this additional reason, did not pay Plaintiff and similarly situated drivers for all hours worked in Violation 0f Labor Code sections 204, 510 and 1194. Plaintiff therefore seeks to recover civil penalties for this Violation as a representative 0f the State, pursuant to Labor Code sections 210, 2699.3 and 2699.5. 13. Defendant failed to pay Plaintiff and proposed class members an extra hour at the regular rate for their forgone meal breaks and rest breaks. During the relevant period, the employment 0fmany proposed class members With Defendant ended and they were not paid all wages due either immediately 0r Within 72 hours of termination or resignation, in Violation of FIRST AMENDED COMPLAINT -6- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Labor Code sections 201 and 202. Plaintiff therefore seeks wages as civil penalties 0n behalf 0f those proposed class members Who were not paid all wages due either immediately or within 72 0f termination 0r resignation, pursuant t0 Labor Code section 203. 14. During Plaintiff s employment, Defendant violated California Labor Code section 1051 because Defendant obtained Plaintiff’ s and all other hourly employees’ fingerprints 0n its ADP thumb scanning device, as a prerequisite 0f their employment. Defendant then shared these fingerprints with a third-party company. Defendant knowingly permitted this practice, in Violation 0f California Labor Code section 1052. 15. Given the Violations 0f the aforementioned Labor Code sections and Wage Orders, Defendant is therefore liable for unfair business practices, in Violation of California Business & Professions Code section 17200, et. seq. 16. Given the Violations 0f the aforementioned Labor Code sections and Wage Orders, Defendant is therefore liable for civil penalties set forth Within, and authorized by, the PAGA, California Labor Code section 2698, et. seq. CLASS ALLEGATIONS 17. Plaintiff is, and during all relevant times, was, a resident of the State of California. Plaintiff sues on behalf 0f himself and the following subclasses 0f employees 0f Defendant in California: (a) all drivers employed by Defendant in California during the four years preceding the filing 0f this complaint t0 present; (b) A11 persons in the employ of Defendant in California who, from the one year preceding the filing of this complaint to the present, made requests t0 copy or inspect their records containing information employers must keep pursuant t0 Labor Code section 226 subsection (a); (c) A11 persons in the employ 0f Defendant in California who, from the one year preceding the filing of this complaint t0 the present, made requests t0 copy 0r inspect their personnel records; and FIRST AMENDED COMPLAINT -7- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (d) A11 persons in the employ of Defendant in California, from the four years preceding the filing of this complaint t0 present, who, as a condition 0f their employment, were required t0 provide their fingerprints, and Who are/were required t0 use their fingerprints for the purposes 0f clocking in and out from work. 18. Because Plaintiff, in his employment With Defendant as a driver, was routinely required t0 work Without statutory meal periods, for which Plaintiff was not properly compensated, was routinely required t0 work Without statutory rest periods, for Which Plaintiff was not properly compensated, was subject to Defendant’s rounding system and was not paid for all hours worked, was not permitted t0 inspect either his payroll records for the last three years or his complete personnel file for the past three years, failed to receive timely and accurate wage statements, and was not paid all wages earned When they were due, and was required to provide his fingerprints, Which were used for time keeping purposes, as a condition of employment, Plaintiff s claims are typical of the proposed class. 19. Plaintiff Will fairly and adequately represent and protect the interests of the members 0f the proposed class in that he has no disabling conflict of interest that would be antagonistic to those of the other members of the proposed class. Plaintiff retained counsel Who are competent and experienced in the prosecution of class action wage and hour Violations. 20. The proposed subclasses are sufficiently numerous and the class members are geographically dispersed throughout California, the joinder ofwhom in one action is impracticable, such that the disposition 0fwhose claims in a class action Will provide substantial benefits t0 both the parties and the Court. 21. There is a well-defined community of interest in the questions 0f law and fact involved affecting the parties t0 be represented. The questions 0f law and fact common t0 the proposed classes predominate over questions that may affect individual class members, include but are not limited t0 the following: FIRST AMENDED COMPLAINT -8- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) (b) (C) (d) (f) (g) (h) (i) (j) Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and the proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 provide rest breaks, 0r provide compensation for missed rest breaks, to Plaintiff and the proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 maintain accurate payroll records for Plaintiff and proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 provide Plaintiff and proposed class members accurate itemized wage statements; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 permit employees to inspect or copy their wage statements; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 permit employees to inspect personnel records; Whether Defendant implemented and engaged in a practice whereby Defendant engaged in improper time rounding, thereby not paying employees for all time worked; Whether Defendant implemented and engaged in a practice whereby Defendant failed to timely pay Plaintiff and proposed class members all wages when due; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 pay proposed class members all wages due at the time of termination in Violation 0f California Labor Code sections 201-203; Whether Defendant implemented and engaged in a practice whereby Defendant obtained Plaintiff’ s and proposed class members’ fingerprints as a prerequisite of their employment and shared these fingerprints With a third party; FIRST AMENDED COMPLAINT -9- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (k) Whether the practices of Defendant as alleged herein violated, inflfl, applicable provisions 0f the California Labor Code, including but not limited to sections 201-204, 226, 226.7, 510, 512, 1051, 1174, 1198, 1198.5, the Unfair Competition Law codified in California Business and Professions Code section 17200, e_tfl, and the Private Attorneys General Act of 2004 (the PAGA), California Labor Code section 2698, e_tfl 22. Plaintiff and the proposed class members have all similarly suffered irreparable harm and damages as a result 0f Defendant’s unlawful and wrongful conduct, including but not limited t0 Defendant’s pattern and practice 0f failure t0 provide rest and meal periods and compensation for work Without rest and meal periods; pattern and practice 0f failing t0 filmish accurate itemized wages statements; pattern and practice of failing t0 permit employees t0 inspect complete records for the past three years 0f their payroll records and their personnel files within the statutory time frames required; pattern and practice 0f failing t0 provide accurate wage statements; pattern and practice 0f requiring employees t0 provide their finger prints as a condition 0f employment; pattern and practice 0f not paying employees for all time worked; and, pattern and practice of failing t0 pay its employees all wages when due. These issues are common to all proposed class members, making class treatment especially appropriate. Because the actions 0f Defendant toward proposed class members follow common patterns, all 0f Which are reflected in the records possessed by Defendant, this action will provide substantial benefits to all proposed class members. Absent this action, Defendant’s unlawful conduct Will continue unremedied and uncorrected. FIRST CAUSE OF ACTION (Applicable to Subclass (a)) (Meal Break Violations: Cal. Lab. Code §§ 226.7 & 512 & Applicable Industrial Welfare Commission Wage Orders §11) 23. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 24. Throughout the approximately 20 years 0f Plaintiff s employment With Defendant, Defendant engaged in a pattern and practice 0f requiring Plaintiff, and similarly situated drivers, t0 FIRST AMENDED COMPLAINT -10- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 work more than five hours per day without receiving statutory 30-minute off-duty meal periods. Defendant also engaged in a pattern and practice of requiring Plaintiff and proposed class members t0 work more than 10 hours a day without providing Plaintiff and proposed class members With a second, statutory 30-minute off-duty meal break. Defendant likewise did not pay Plaintiff or proposed class members an additional hour 0f compensation When Plaintiff 0r proposed class members did not receive their statutory 30-minute off-duty meal breaks. This failure violated California Labor Code sections 226.7 and 5 12 and section 11 0f the applicable Wage Order. 25. Defendant requires Plaintiff and each 0f the proposed class members t0 adhere to a driving route for waste pick-ups. These routes often d0 not allow for off-duty 30-minute meal breaks. Additionally, in order t0 make it to all 0f the pick-up locations, While driving safely and within the speed limits, and make it t0 the dump by the designated time, drivers d0 not have time t0 take their statutory 30-minute off-duty meal breaks. As such, When Plaintiff and proposed class members drive these routes, they do not receive mandated 30-minute off-duty meal breaks. 26. Defendant is aware that drivers are often unable to take their statutory 30-minute off-duty meal breaks, but does not pay Plaintiff, 0r proposed class members, with the additional hour of compensation, as required by section 11 0f applicable Wage Orders and Labor Code sections 226.7 and 558. Instead, Defendant engages in the pattern and practice 0f “auto- deducting” 30 minutes 0f time worked for meal breaks. This Violation 0f section 11 0f applicable Wage Orders is also a Violation of Labor Code sections 558 and 1198, for Which Defendant is liable for penalties under the PAGA, Labor Code section 2699 e_t fl. 27. As a result of Defendant’s failure to pay Plaintiff and proposed class members for missed meal periods, Defendant did not pay Plaintiff, 0r those similarly situated employees, With all wages due as required by Labor Code sections 201-204, for which Plaintiff seeks penalties pursuant to Labor Code sections 203, 210, 558, 1198, 2699.3, and 2699.5. 28. As Defendant augmented time sheets t0 reflect Plaintiff and proposed class members did not work during hours they did work, and did not pay Plaintiff or proposed class members the additional hour 0f compensation When they were not provided meal breaks as FIRST AMENDED COMPLAINT -1 1- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 required by Labor Code sections 226.7 and 558, Defendant did not furnish Plaintiff or proposed class members with accurate wage statements, in Violation 0f Labor Code section 226 subsection (a), as the wage statements d0 not reflect all gross wages earned (§ 226(a)(1)), total hours worked (§ 226(a)(2)), 0r net wages earned (§ 226(a)(5)). 29. As a result 0f Defendant’s failures, Plaintiff and the proposed class members are entitled to recover the additional hour of compensation as set forth in California Labor Code sections 226.7 and 558. 30. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. SECOND CAUSE OF ACTION (Applicable t0 Subclass (21)) (Rest Break Violations: Cal. Lab. Code §§ 226.7 & Applicable Industrial Welfare Commission Wage Orders §12) 3 1. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 32. During all relevant periods, Defendant routinely required Plaintiff and proposed class members to work more than 3.5 hours without providing Plaintiff and proposed class members with mandated 10-minute rest breaks. Defendant likewise did not pay Plaintiff 0r proposed class members an additional hour 0f compensation when Plaintiff 0r proposed class members did not receive the mandated 10-minute meal breaks. This failure violated section 12 0f applicable Wage Orders and California Labor Code section 226.7. This Violation 0f section 12 0f applicable Wage Orders is also a Violation 0f Labor Code section 1198, for Which Defendant is liable for penalties under the PAGA, Labor Code section 2698 e_t fl. Plaintiff also seeks civil penalties for this Violation pursuant t0 Labor Code section 558, because Defendant violates “any provision regulating hours and days of work in any order 0f the Industrial Welfare Commission,” here, section 12 0f applicable Wage Orders. 33. Defendant requires Plaintiff and each 0f the proposed class members to adhere t0 a driving route for waste pick-ups. These routes often d0 not allow for off-duty 10-minute FIRST AMENDED COMPLAINT -12- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rest breaks. Additionally, in order t0 make it t0 all of the pick-up locations, while driving safely and within the speed limits, and make it t0 the dump by the designated time, drivers d0 not have time to take their statutory 10-minute off-duty rest breaks. As such, when Plaintiff and proposed class members drive these routes, they d0 not receive mandated 10-minute off- duty rest breaks. 34. Defendant is aware that drivers are often unable to take their statutory 10- minute off-duty rest breaks, but does not pay Plaintiff, or proposed class members, With the additional hour of compensation, as required by applicable Wage Orders and Labor Code section 226.7. 35. As a result 0f Defendant’s failure t0 pay Plaintiff and proposed class members for missed rest periods, Defendant also did not pay Plaintiff, or proposed class members, with all wages due as required by Labor Code sections 201-204, for which Plaintiff seeks penalties pursuant t0 Labor Code sections 203, 210, 558, 1198, and 2698 et seq. 36. Because Defendant did not pay Plaintiff 0r proposed class members the additional hour 0f compensation When they were not provided rest breaks as required by Labor Code sections 226.7 and section 12 of applicable Wage Orders, Defendant did not furnish Plaintiff or proposed class members With accurate wage statements, in Violation 0f Labor Code section 226(a), as the wage statements d0 not reflect all gross wages earned (§ 226(a)(1)), total hours worked (§ 226(a)(2)), 0r net wages earned (§ 226(a)(5)). 37. As a result of Defendant’s failures, Plaintiff and proposed class members are entitled to recover the additional hour of compensation as set forth in California Labor Code sections 226.7 and 558. 38. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. THIRD CAUSE OF ACTION (Applicable to Subclass (a)) (Inaccurate Wage Statements: Cal. Lab. Code § 226) 39. Plaintiff and proposed class members incorporate by reference the allegations FIRST AMENDED COMPLAINT -13- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 40. During the relevant time period, Defendant failed to pay Plaintiff, and proposed class members, with the additional hour of compensation owed when the class members did not receive mandated off-duty meal or rest breaks. In addition, because Defendant auto-deducted time for meal periods for which Plaintiffs and class members did not receive, Defendant routinely issued wage statements that did not accurately reflect all hours worked, or all gross 0r net wages earned. As such, Defendant failed t0 furnish accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code section 226 subdivision (a) paragraphs (1) gross wages earned, (2) total hours worked, and (5) net wages earned. These failures caused Plaintiff and proposed class members t0 suffer injury as defined by California Labor Code section 226(c)(2)(B)(i). As a result 0f Defendant’s failures, Plaintiff and proposed class members are entitled to recover the penalties and attorneys’ fees as set forth in California Labor Code section 226(c)(1). 41. As a result of Defendant’s Violations 0f Labor Code section 226(3), Plaintiff and proposed class members are also entitled t0 recover the penalties, and interest thereon, as set forth in California Labor Code section 226.3. 42. Plaintiff also seeks penalties for Defendant’s Violations 0f Labor Code section 226 subsection (a), paragraphs (1), (2), and (5) pursuant t0 Labor Code sections 2699.3 and 2699.5, and attorneys’ fees pursuant t0 section 2699(g)(1). 43. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FOURTH CAUSE OF ACTION (Applicable t0 Subclass (b)) (Failure To Permit Employee Inspection Of Payroll Records: Cal. Lab. Code § 226(c)) 44. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 45. During Plaintiff” s employment in either 2017 0r 2018, Plaintiff that requested Defendant permit him to inspect his payroll records for the last three years, as specified in Labor FIRST AMENDED COMPLAINT -14- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code section 226 subsection (b). Defendant failed t0 permit Plaintiff t0 inspect or copy all of the records he requested Within 21 days, in Violation 0f California Labor Code section 226 subsection (c). Defendant violated subsection (c) with respect to other drivers’ requests for the same, because Defendant admitted it no longer has access t0 the records from 2016 and prior, because it changed payroll companies in 2016. Plaintiff and similarly situated drivers Who were denied this request are therefore entitled t0 statutory penalties pursuant t0 section 226 subsection (f). 46. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FIFTH CAUSE OF ACTION (Applicable t0 Subclass (c)) (Failure T0 Permit Employee Inspection Of Personnel Records: Cal. Lab. Code § 1198.5) 47. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 48. During Plaintiff” s employment, Plaintiff requested that Defendant permit him to inspect his personnel records for the past three years, including records relating t0 his performance 0r to any grievance concerning him, maintained by Defendant, pursuant t0 California Labor Code section 1198.5. After 30 days, Defendant had provided Plaintiff with some, but not all of the personnel records Defendant is required to keep pursuant t0 section 1198.5. Because Defendant failed to permit Plaintiff, and similarly situated drivers t0 review their complete personnel files in Violation of section 1198.5, they are entitled t0 penalties pursuant t0 section 1198.5 subsection (k). 49. Plaintiff and proposed class members are therefore entitled to the relief requested below. SIXTH CAUSE OF ACTION (Applicable t0 Subclass (d)) (Improper Acquisition And Use Of Employees’ Fingerprints: Violation 0f Cal. Lab. Code §§ 1051 and 1054) 50. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 5 1. During Plaintiff” s employment, Defendant obtained Plaintiff” s and proposed class members’ fingerprints 0n its thumb-scanning system, as a condition of their employment. FIRST AMENDED COMPLAINT -15- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant shared these fingerprints with a third-party in Violation 0f California Labor Code section 105 1. 52. Defendant is liable to Plaintiff, and proposed class members, for all recovery allowed by California Labor Code section 1054, including, but not limited t0, treble damages. 53. Plaintiff, and those similarly situated, are therefore entitled t0 the relief requested below. SEVENTH CAUSE OF ACTION (Applicable to Subclass (a)) (Failure T0 PaV All Wages Due, Including At Termination: Violation of Cal. Lab. Code 88 201-204, 510, 558 and 1194) 54. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 55. During the relevant time period, Defendant engaged in a pattern and practice of not paying Plaintiff, and those similarly situated employees, for all time worked, including at termination. Instead, Defendant automatically deducted 30 minutes for meal periods Whether 0r not such a meal period was actually taken and implemented a time rounding practice and policy that disproportionately favored Defendant. In addition, Defendant failed to pay Plaintiff, and those similarly situated employees, the one-hour premium due When meal and rest periods were not provided as required by law. As a result of these practices and policies, Defendant failed to pay all wages owed, including minimum wages and overtime, in Violation of California Labor Code sections 201-204, 5 10, 558, and 1194. 56. As a result 0f Defendant’s failures, Plaintiff and proposed class members are entitled to recover for all time worked pursuant to California Labor Code sections 201-202, 510 and 558. Plaintiff and the proposed class members are also entitled t0 recover waiting time penalties pursuant t0 California Labor Code section 203, and attorneys’ fees pursuant to California Labor Code section 218.5. 57. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FIRST AMENDED COMPLAINT -16- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH CAUSE OF ACTION (Applicable t0 all Subclasses) (Unlawful, Unfair And Fraudulent Business Practices: Business & Professions Code § 17200, e_t seg.) 58. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 59. Business & Professions Code section 17200, e_tfl, prohibits acts of unfair competition, defined as an “unlawful, unfair, 0r fraudulent business act 0r practice.” 60. The policies, acts and practices heretofore described were and are unlawful business acts or practices because Defendant’s (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 5 12, 558, 1198, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure t0 provide rest breaks, or provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7 558, 1198, and section 12 of applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiff s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation of California Labor Code section 1174; (4) failure to provide accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees to inspect or copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees to inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, including as a result 0f Defendant’s nonpayment of meal and rest period premiums, automatic 30-minute meal period time deductions, and time rounding policies and practices, in Violation of California Labor Code section 204, 510 and 1194; (8) failure to pay members of the proposed class all wages due at the time 0f termination in Violation of California Labor Code sections 201-203; and, (9) Violation 0f California Labor Code section 105 1 in that Defendant obtained employees’ fingerprints as a prerequisite 0f their employment and shared these fingerprints With a third party; Violate applicable Labor Code sections, Industrial Welfare FIRST AMENDED COMPLAINT -17- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Commission Wage Orders, the Private Attorneys General Act of 2004, Labor Code section 2698 e_tfl, and other provisions of California common and/or statutory law. Plaintiff reserves the right t0 allege additional statutory and common law Violations by Defendant. Such conduct is ongoing to this date. 61. Further, the policies, acts 0r practices described herein were and are an unfair business acts 0r practices because any justifications for Defendant’s illegal and wrongful conduct were and are vastly outweighed by the harm such conduct caused t0 Plaintiff, proposed class members, aggrieved employees, and the members of the general public. Such conduct is ongoing to this date. 62. As a result 0f its unlawful and/or unfair and/or fraudulent acts, Defendant reaps and continues to reap unfair benefits and illegal profits at the expense 0f Plaintiff and proposed class members. Defendant should be made to disgorge ill-gotten gains and provide restitution to Plaintiff and proposed class members for the wrongfully Withheld wages pursuant t0 Business and Professions Code section 17203. 63. Accordingly, Plaintiff and proposed class members respectfully request that the Court award judgment and relief in their favor, t0 provide restitution, and other types 0f equitable relief. 64. Plaintiff and the proposed class members are therefore entitled to the relief requested below. NINTH CAUSE OF ACTION (Labor Code Private Attorneys General Act 0f 2004 (the “PAGA”): Cal. Lab. Code § 2698, et. seq.) 65. Plaintiff and the aggrieved employees incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 66. The policies, acts and practices heretofore described were and are unlawful because Defendant’s (1) failure to provide meal breaks, or provide compensation for missed meal breaks, t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 5 12, 558, 1198, and section 11 of applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure to provide rest breaks, or provide compensation for missed rest breaks t0 FIRST AMENDED COMPLAINT -18- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 558, 1198, and section 12 of applicable Wage Orders; (3) failure t0 maintain accurate records of Plaintiff” s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation 0f California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure to permit employees to inspect or copy wage statements in Violation of California Labor Code section 226(0); (6) failure t0 permit employees t0 inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, including but not limited t0 nonpayment 0f wages due t0 Defendant’s time rounding policy and practice, in Violation 0f California Labor Code section 204, 5 10, and 1194; (8) failure to pay members 0f the proposed class all wages due at the time of termination in Violation of California Labor Code sections 201- 203; and, (9) Violation 0f California Labor Code section 1051 in that Defendant obtained employees’ fingerprints as a condition precedent to their securing and retaining employment and shared these fingerprints With a third party; Violate applicable Labor Code sections and gives rise t0 statutory and civil penalties as a result 0f such conduct, including but not limited to penalties as provided by Labor Code sections 203, 210, 226(6), 226(f), 226.3, 558, 1054, 1174.5, 1198.5(k), 2699(a), 2699(f), and 2699.5, and applicable Industrial Welfare Commission Wage Orders. Plaintiff, as an aggrieved employee, hereby seeks recovery of civil penalties as prescribed by the Labor Code Private Attorney General Act 0f 2004 0n behalf of himself and other current and former employees 0f Defendant against whom one 0r more 0f the Violations 0f the Labor Code was committed. Plaintiff further seeks attorneys’ fees t0 achieve the same, pursuant t0 Labor Code section 2699(g)(1). 67. On June 29, 2018, Plaintiff gave written notice to the California Labor and Workforce Development Agency by online submission through their website and by certified mail t0 Defendant, Mission Trail Waste Systems, Inc., of Labor Code Violations as prescribed by California Labor Code section 2699.3. Plaintiff has not received written notification by the LWDA 0f an intention t0 investigate the allegations set forth in Plaintiff” s June 29, 2018, letter or FIRST AMENDED COMPLAINT -19- 3280\PLEADINGS\FAC.DOC ©WN©M$WNH NNNNNNNNNr-‘r-tt-It-nu-‘HHflHfi OONONMJ>WNHO©OONONUI4>WNHO written notice of cure by September 3, 201 8, 65 calendar days after the postmark date 0f the notice given t0 the LWDA, as prescribed by California Labor Code section 2699.3(a)(2)(A). PRAYER FOR RELIEF WHEREFORE Plaintiff prays for judgment and relief as follows: 1. An order certifying that the action may be maintained as a class action; 2. Compensatory and statutory damages, penalties and restitution, as appropriate and available under each cause of action, in an amount to be proven at trial based on, inflfl, the unpaid balance of compensation Defendant owes; 3. Reasonable attorneys’ fees pursuant t0 California Labor Code sections 218.5, 226(c)(1), 1194 and 2699(g)(1); 4. Costs 0fthis suit; 5 Pre- and post-judgment interest; and 6. Such other and further relief as the Court deems just and proper. 7 Plaintiff is informed and believes that the damages, back wages, restitution, value of injunctive relief sought, penalties, interest and attorneys’ fees d0 not exceed an aggregate of $4,999,999.99 and that the pro-rata value 0f Plaintiff s individual claims, including damages, back wages, restitution, injunctive relief, interest, attorneys’ fees, and penalties, does not exceed $74,999.99. JURY DEMAND Plaintiff hereby demands a trial by jury. Date: October 30, 2019 _ W AN LAW FIRM, P" By: - / 4’ Rbb’ufifi’. Wfififn‘hfi/ Y Attorneysfor Thomas Vfllareal, and all others similarly situated FIRST AMENDED COMPLAINT -20- 3280\PLEADINGS\FAC.DOC EXHIBIT C \OOOQOUI-RUJNy-t NNNNNNNNNr-‘r-tr-‘r-tr-tr-tr-tb-tr-H OOQQUI-PUJNHOKOOOflaUl-PWNHO WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@w0rkmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@w0rkmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all others similarly Situated FELICIA R. REID (SBN 155481) freid@hkemp10vmentlaw.com MARGEAUX M. PELUSI (SBN 298724) mpelusi@hkemplovmentlaw.com HIRSCHFELD KRAEMER LLP 505 Montgomery Street, 13th Floor San Francisco, CA 941 11 T. 415-835-9000 F. 415-834-0443 Attorneysfor Defendant Mission Trail Waste Systems, Inc. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA THOMAS VILLAREAL, on behalf of himself and all others similarly situated, Plaintiff, vs. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. Case N0.: 18CV338479 ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 JOINT STIPULATION OF SETTLEMENT AND RELEASE IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff Thomas Villareal (“Plaintiff”), on behalf of himself and all others similarly situated, and Defendant Mission Trail Waste Systems, Inc. (“Defendant”), subj ect t0 the approval 0f the Court, that this 1 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O litigation is compromised and settled pursuant t0 the terms and conditions set forth below. DEFINITIONS 1. “Action” shall mean the case entitled Thomas Villareal v. Mission Trail Waste Systems, Ina, Case No. 18CV338479, pending in the Superior Court of the State of California for the County of Santa Clara. 2. “Agreement” shall refer t0 this document. 3. “Claims Administrator” shall mean the third-party administrator appointed by the Court to administer the Settlement under the terms 0f this Agreement. 4. “Class” shall mean shall mean all current and former non-exempt sanitation truck drivers employed by Defendant at any time during the Class Period, Which Defendant represents t0 be 63 individuals as of October 2019. Members 0f the Class are referred t0 herein as “Class Member” 0r “Class Members.” 5. “Class Period” shall mean the period from November 19, 2014, through the date 0f Preliminary Approval 0f the class action settlement. 6. “Complaint” shall mean the Complaint filed by Plaintiff on November 19, 2018, and any amendments thereto. 7. “Court” shall mean the Superior Court 0f the State 0f California for the County 0f Santa Clara. 8. “Defendant” shall refer t0 Defendant Mission Trail Waste Systems, Inc. 9. “Defendant’s Counsel” shall mean the law firm of Hirschfeld Kraemer LLP. 10. “Employer Payroll Contributions” shall mean those payroll taxes and other monetary contributions required by state and federal law t0 be made by an employer on wage payments, including but not limited t0 FICA, Medicare, FUTA, and SUTA, and any federal and state unemployment taxes, payable by Defendant with respect to amounts treated as wages under this Agreement. 11. “Fee and Expense Award” shall mean such award 0f attorneys’ fees and costs as the Court may authorize t0 be paid t0 Plaintiff’s Counsel for the services rendered t0 Plaintiff and 2 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O the Class in the Action, and the actual costs incurred by Plaintiff’s Counsel in the prosecution 0f the Action. 12. “Final Approval Order and Judgment” means the Order Granting Final Approval of the Class Settlement and Judgment issued by the Court within the meaning and for purposes of Code of Civil Procedure Section 904.1(3), and Rule 3.769 0f the California Rules of Court. 13. “Individual Settlement Payment” shall mean the total gross amount each Settlement Class Member is entitled to receive from the Net Settlement Fund under the terms of this Agreement. 14. “Net Settlement Fund” shall mean the settlement funds available for distribution to Settlement Class Members after deducting from the $750,000 Gross Settlement Fund provided herein the following, as approved by the Court: (1) the Administration Costs; (2) the Fee and Expense Award; (3) the PAGA Payment; and (4) the Incentive Award. 15. “Notice” shall mean the Court-approved form 0f notice to Class Members that will notify Class Members 0f the conditional certification 0f the Settlement Class, Preliminary Approval 0f the Settlement, the procedures for obj ecting t0 the Settlement, and scheduling 0f the Final Approval Hearing. 16. “PAGA Payment” shall mean the payment made t0 the California Labor and Workforce Development Agency, in the amount of 75% of that portion of the GSF allocated to settle claims brought pursuant t0 the Private Attorneys General Act, California Labor Code Section 2698 ez‘ seq. 17. “Parties” shall collectively refer t0 Plaintiff and Defendant. 18. “Payment Obligation and Class Release Date” means (a) if n0 Class Member files any obj ections to the Settlement, then the date upon Which the Court grants Final Approval 0f the Settlement; (b) if any Class Member files an obj ection but it is subsequently Withdrawn, then the date upon which the Court grants Final Approval 0f the Settlement, 0r (c) if an obj ection is filed, then the date Which is sixty-five (65) days after (i) service 0f notice of entry 0f the Final Approval Order and Judgment 0n the Parties to the Action and all obj ectors to the Settlement, if any, without 3 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O any appeals 0r requests for review being taken, 0r (ii) orders affirming said Final Approval Order and Judgment or denying review after exhaustion 0f all appellate remedies, if appeals 0r requests for review have been taken. 19. “Plaintiff” shall mean Thomas Villareal, the Class Representative in the Action. 20. “Plaintiff’s Counsel” 0r “Class Counsel” shall mean Robin Workman 0f the Workman Law Firm, P.C. 21. “Preliminary Approval” shall mean that the entry 0f and Order by the Court preliminarily approving the terms and conditions 0f this Agreement, including the manner of providing notice t0 Class Members. 22. “Settlement” shall mean the terms and conditions set forth in this Agreement. 23. “Settlement Class Members” 0r “Settlement Class” shall mean Class Members who have not excluded themselves from the Settlement in accordance with the requirements set forth herein. 24. “Qualifying Workweek” shall mean each week, 0r fraction thereof, an individual worked for Defendant in a position covered by the definition 0f Class Member during the Class Period. RECITALS 25. The Pleadings. The original Complaint in this matter was filed 0n November 19, 2018, by Plaintiff, 0n behalf of himself and all others similarly situated, asserting various wage and hour claims, including claims for meal and rest period Violations, failure to pay all hours worked, inaccurate wage statements, failure to permit inspection of payroll and personnel records under Labor Code sections 225 and 1198.5, and improper use of employee fingerprints under Labor Code sections 1051 and 1054, among others. The original Complaint also alleged unfair competition under Business & Professions Code § 17200 et seq.; and civil penalties under the Private Attorneys General Act, Labor Code § 2699 et seq. (“PAGA”). 26. Defendant’s Denials. Defendant denies all of the claims and allegations in the Complaint. Defendant denies that it has engaged in any illegal conduct whatsoever. Defendant 4 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O contends that (i) its policies and practices fully comply with all applicable laws; and (ii) Plaintiff and other Class Members have been fully compensated for all hours worked, have been provided accurate wage statements, and have been provided all 0f the meal and rest periods t0 Which they are entitled. Defendant contends, among other things, that it has complied at all times With the California Labor Code, the California Business and Professions Code, and all other laws, statutes, orders 0r regulations alleged in the Complaint. 27. Investigation and Informal Discoverv. The Parties conducted significant investigation of the facts and law both before and after the Action was filed. This included informal discovery that included but was not limited t0 review and analysis 0f the Defendant’s policies and procedures; applicable collective bargaining agreements; time and payroll records; review and analysis 0f employment records by counsel and experts; and interviews of Class Members and potential Witnesses. Counsel for the Parties have further investigated the applicable law as applied t0 the facts discovered regarding Plaintiff’s claims, the defenses thereto, and the damages and penalties claimed by Plaintiff in the Action. The Parties also exchanged extensive data and information regarding the Class claims prior t0 the mediation and in negotiating the Settlement, including data relevant to damages and their respective mediation briefs detailing the Parties’ legal theories and defenses. 28. Mediation. On August 20, 2019, the Parties attended and participated in good faith, arms’ length settlement discussions at an all-day mediation before Mediator David Rotman (“Mediator”). At the mediation, Plaintiff asserted additional claims based 0n Defendant’s time rounding practices and Defendant’s alleged failure t0 pay all wages due at termination. The Parties continued settlement efforts following the mediation, eventually reaching a settlement Whose terms are memorialized in a written Memorandum 0f Understanding (“MOU”), which are encompassed and superseded by this Agreement. The Parties believe and agree that this Settlement is a fair, adequate, and reasonable resolution 0f the Action and have arrived at this Settlement in arms-length negotiations, taking into account all relevant factors, present and potential, each side recognizing the risks of an adverse result should litigation continue. 5 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O 29. Non-Admissibilitv. This Agreement represents the compromise and settlement of highly disputed claims. Plaintiff claimed, and continues to claim, that his contentions have merit and give rise t0 Defendant’s liability, and Defendant claims and continues t0 claim that the claims lack factual and legal merit and that class certification is unwarranted. Nothing in this Agreement, the documents referenced in this Agreement, 0r any action taken to carry out this Agreement is, may be construed as, 0r may be used as, an admission, concession 0r other indication by or against Defendant 0f any fault, wrongdoing, or liability whatsoever, nor construed or used against the Plaintiff as t0 the merits 0r lack thereof 0f the claims he has asserted. Therefore, Whether 0r not the Settlement is finally approved, and except and t0 the extent that this Agreement becomes a release of claims as 0f the Payment Obligation and Class Release Date, as provided for herein, neither the Settlement, nor any 0f its terms, nor any document, statement, proceeding or conduct related t0 this Agreement, nor any reports 0r accounts thereof, shall be admissible in evidence for any purpose except for purposes 0f settling the Action, obtaining Preliminary and Final Approval 0r enforcing the terms 0f this Agreement. 30. No Publicigx. As a material term 0f the settlement, neither Plaintiff nor Plaintiff” s counsel will publicize this settlement by name (i.e. identifying Mission Trail Waste Systems, Inc.), 0r its industry and location (refuse and recycling collection and/or sanitation company operating in Santa Clara County), through a press release, posting 0n counsels’ website, in social media 0r by any other public means, other than Court filings and proceedings associated with the Settlement. Nothing in this provision is intended t0 prohibit (i) Plaintiff from discussing this Settlement With his spouse, attorneys or tax advisor; (ii) Plaintiff from discussing this Settlement with other Class Members after the Settlement has been preliminarily approved by the Court; (iii) Plaintiff” s Counsel from citing the Settlement in this case as evidence supporting her competence as counsel in wage/hour and/or class action matters in public court filings; 0r (iv) Plaintiff’s counsel from communicating With Class Members in this case 0r the Court in which this action is pending. SETTLEMENT COMPONENTS 6 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O 31. Conditional Certification 0f the Class. Solely for purposes of Settlement, the Parties agree t0 the certification of the following Class: all current and former non-exempt sanitation truck drivers employed by Defendant at any time during the period between November 18, 2014 through the date of Preliminary Approval, Which Defendant represents to be 63 employees as 0f October 2019. If, for whatever reason, the Settlement does not become final, the Parties’ stipulation t0 conditional class certification shall become null and void. 32. Gross Settlement Fund. Subject to the terms and conditions of this Agreement, and in full settlement 0f the Class claims and all Released Claims, the Defendant shall pay the total amount of Seven Hundred Fifty Thousand Dollars ($750,000.00) t0 create a Gross Settlement Fund (“GSF”). The GSF shall fully cover: (1) all Individual Settlement Payments; (2) the PAGA Payment; (3) the Fee and Expense Awards to Class Counsel; (4) all Administration Costs; and (5) the Incentive Award. The GSF does not include Employer Payroll Contributions 0n the wage portion of Individual Settlement Payments, Which Defendant shall pay separately, and there shall be no reversion t0 the Defendant. 33. PAGA Payment. Fifteen Thousand Dollars ($15,000.00) 0f the GSF is allocated to settle civil penalty claims pursuant t0 the Private Attorneys General Act of 2004, Cal. Lab. Code section 2699, et seq. The PAGA Payment shall consist 0f 75% 0f this allocation ($1 1,250.00), which shall be paid t0 the Labor & Workforce Development Agency (“LWDA”) as required by PAGA. The $3,750.00 remainder of the PAGA allocation shall become part 0f the Net Settlement Fund and distributed t0 the Class as part 0f the Individual Settlement Payments. 34. Individual Settlement Pavments to Class Members. The Net Settlement Fund (NSF), representing that part of the GSF remaining after deduction of court-approved Administration Costs, Fee and Expense Award, Incentive Award and the PAGA Payment, shall be distributed t0 Settlement Class Members through Individual Settlement Payments. The entire NSF shall be allocated to the payment of Individual Settlement Payments t0 Settlement Class Members. (i) Reasonable Allocation Formula. The Parties recognize and agree that the precise amounts 0f compensation claimed in this Action are difficult t0 7 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O 35. (ii) (iii) determine. The Parties agree that the formula for allocating the Individual Settlement Payments to Class Members provided herein is reasonable and that the payments provided herein are designed t0 provide a fair settlement for the Class as a whole, in light of the uncertainties regarding the calculation 0f alleged compensation to each Settlement Class Member Calculation 0f Individual Settlement Pavments. The Individual Settlement Payment Will be calculated based on the number of the Qualifying Workweeks worked by each Settlement Class Member. Each Class Member shall be entitled to a Percentage Share 0f the NSF, calculated by dividing the number 0f Qualifying Workweeks worked by the Settlement Class Member by the aggregate number of Qualifying Workweeks for the entire Class, and multiplying the resulting percentage by the value 0f the NSF. Each Class Member’s Qualifying Workweeks will be determined by reference t0 the Defendant’s records. Allocation and Taxes. The Individual Settlement Payments shall be allocated for tax purposes as follows: 25% t0 unpaid wages, which shall be subj ect to required state, federal and local Withholdings, and reported on Forms W-2 (“Wage Portion”); and 75% to interest, and penalties, not subj ect t0 withholding and reported 0n Forms 1099 (“Non-Wage Portion”). Employer Payroll Contributions shall be paid by Defendant 0n the wage portion of the Individual Settlement Payments separately and outside of the GSF. Fee and Expense Award. Defendant Will not object t0 an application by Plaintiff for an award 0f attorney’s fees not more than one-third of the GSF ($250,000.00) and for an award 0f costs and expenses not t0 exceed Twenty Thousand Dollars ($20,000.00) (collectively the “Fee and Expense Award”). 36. Incentive Award. Defendant will not object t0 an application by Plaintiff for an 8 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O award of not more than Five Thousand Dollars ($5,000.00) as an Incentive Award, in addition to any Individual Settlement Payment that Plaintiff is entitled t0 under this Agreement. The Incentive Award is in consideration of Plaintiff having initiated and pursued the Action, undertaking the risk 0f liability for attorneys’ fees and expenses in the event he was unsuccessful in the prosecution 0f the Action, and granting Defendant a general release of claims. The Incentive Award is not wages, shall not be subj ect t0 payroll Withholdings, and shall be reported on IRS Forms 1099. 37. Administration Costs. Rust Consulting shall serve as the Claims Administrator, subject t0 the Court’s approval. Administration Costs not t0 exceed $15,000.00 shall be paid from the GSF to the Claims Administrator for administering the settlement and otherwise performing duties under this Agreement. PRELIMINARY APPROVAL AND CLASS NOTICE 38. Preliminarv Approval. Class Counsel shall request a hearing before the Court to seek Preliminary Approval of the Settlement on the earliest practical date, currently anticipated t0 be November 22, 2019. In conjunction With such hearing, Class Counsel shall prepare a motion for preliminary approval to be submitted to the Court along with this Agreement, and any other documents necessary to implement the Settlement. The motion will request that the Court enter a Preliminary Approval Order, preliminarily approving the proposed Settlement, conditionally certifying the Class for settlement purposes only, conditionally appointing Plaintiff” s Counsel as Class Counsel, approving the Claims Administrator, and setting a date for the Final Approval Hearing. The Preliminary Approval Order shall also provide for Notice of the Settlement to be disseminated to Class Members as specified herein or as may otherwise by ordered by the Court, provided that such order is also acceptable to the Parties and consistent with the terms of this Agreement. Class Counsel shall submit a draft 0f the motion t0 Defendant’s Counsel at least five (5) business days prior t0 the filing deadline for review and input. 39. Amendment 0f Complaint. As part of or in advance of the Preliminary Approval motion, the Parties will stipulate t0 the filing 0f an amended complaint (“First Amended 9 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O Complaint”) expressly asserting claims that were asserted at the mediation and formed part 0f the negotiations and ultimate Settlement, including: (i) claims for waiting time penalties under Labor Code section 203; and (ii) claims for unpaid wages, including minimum wages and overtime, based on deductions due to time rounding and automatic deduction of a 30-minute meal period. 40. Notice t0 LWDA. At the same time the Preliminary Approval motion is filed, Plaintiff shall submit a copy 0f this Agreement t0 the LWDA pursuant t0 California Labor Code section 2699(1)(2). Plaintiff shall be responsible for any and all filing fees associated with notice to the LWDA, which shall be recoverable as part 0f the Fee & Expense Award. 41. Class List. Within ten (10) business days 0f the date 0f Preliminary Approval, the Defendant will provide the Claims Administrator with the names, most recent known mailing address, social security number, and the total number 0f Qualifying Workweeks 0f each Class Member during the Class Period (collectively the “Class List”). Each Class Member’s total Qualifying Workweeks will be derived from Defendant’s records. The Class List Will be treated as confidential by the Claims Administrator and Will not be disclosed by the Claims Administrator t0 anyone, except as may be required t0 applicable tax authorities, pursuant t0 the express written consent 0f the Defendant, by order of the Court, 0r as may be necessary to carry out the reasonable steps described in this Settlement t0 locate missing Class Members. 42. Notice t0 Class. Within twenty (20) calendar days after Preliminary Approval, the Claims Administrator shall mail a copy 0f the Notice in the form approved by the Court in its Preliminary Approval Order t0 all persons shown by Defendant’s records t0 be Class Members, Via first class U.S. mail, using the most current mailing address available. The Notice shall state the total number of Qualifying Workweeks for each Class Members, the total approximate amount each Class Member is estimated to be entitled to receive as their Individual Settlement Payment under the Settlement, and a procedure for disputing the number of Qualifying Workweeks (“Notice Packet”). (a) Returns and Remailing. Any Notices returned to the Claims Administrator as undelivered and bearing a forwarding address shall be re-mailed by the 10 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O Claims Administrator Within three (3) business days following receipt of the returned mail. For any Notices returned to the Claims Administrator Without a forwarding address, the Claims Administrator shall first conduct a National Change of Address search as required for undeliverable notices, followed by a computer/SSN and “skip trace” search t0 obtain an updated address, and shall promptly re-mail the Notices to any newly-found address or addresses Within three (3) business days. The re-mailed Notice shall be identical t0 the original Notice. The Claims Administrator shall undertake all reasonable efforts t0 locate and verify the addresses 0f Class Members and send a copy of the Notice t0 all Class Members. (b) Disputes as t0 Qualifying Workweeks. Class Members may dispute the number of Qualifying Workweeks listed 0n their Notices by producing evidence establishing the dates that the Class Member contends t0 have worked during the Class Period. The Claims Administrator shall notify counsel for the Parties of any disputes. If there is a dispute, the Defendant shall review its records and provide further information t0 the Claims Administrator, as necessary. Defendant’s records will be presumed t0 be determinative. Unless the Court orders otherwise, the Claims Administrator shall resolve any disputes and notify counsel for the Parties 0f its decision. (c) Informational Website. The Claims Administrator shall also set up a website, the URL for which is t0 be included in the Notice, containing this Agreement and related documents. Any costs incurred by having the Claims Administrator handle these administrative tasks shall be included in the Administration Costs approved by the Court. 43. Procedure for Obiecting to or Requesting Exclusion from the Settlement. Any Class Member or other person(s) purporting t0 act 0n behalf 0f a Class Member Who Wishes t0 obj ect t0 the Settlement, 0r t0 be excluded (opt-out) from the Settlement Class, must submit timely written obj ections and/or a request for exclusion and/or dispute information from the Settlement Class within forty-five (45) calendar days from the date Notice Packet is mailed (“Class Member Deadline”), using the following procedures: 11 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O (a) Obj ections. The Notice shall provide that any Class Member(s) and person(s) purporting t0 act 0n behalf 0f any Class Member(s) who wish t0 obj ect t0 the Settlement may submit to the Claims Administrator a written statement obj ecting t0 the Settlement, and any supporting briefs or other materials, on or before the Class Member Deadline. The Claims Administrator shall promptly provide copies 0f all such submissions t0 counsel for the Parties. Such obj ection shall state Whether the Class Member intends t0 appear at the Final Approval Hearing, and if it does not, the objecting Class Member shall not be permitted to appear. A Class Member who fails t0 submit a timely written obj ection shall be deemed to have waived any obj ections and shall be foreclosed from making any obj ection t0 the Settlement. (b) Exclusions. The Notice shall also provide that Class Members Who wish t0 exclude themselves (opt-out) from the Settlement must mail t0 the Claims Administrator n0 later than the Class Member Deadline a written statement requesting exclusion from the Settlement Class. The request must contain the name, address, and telephone number of the Class Member requesting exclusion, a statement that they wish to exclude themselves from the settlement and understand that by doing so they will not receive any settlement proceeds. Any request for exclusion postmarked later than forty-five (45) calendar days from the date the Notice is mailed by the Claims Administrator shall not be effective. In addition, any request for exclusion 0f a Class Member Who also submits an obj ection shall be deemed invalid. For any Class Member Who submits a deficient request for exclusion, the Claims Administrator shall notify the Class Member and give him or her fifteen (15) calendar days t0 cure any deficiency. The Claims Administrator will provide Plaintiff” s Counsel and Defendant’s Counsel the names 0f individuals who make timely, valid requests for exclusion. (c) Effect 0f Requesting 0r Failing t0 Request Exclusion. Class Members who submit a timely and valid request for exclusion (opt-out) shall not be part of the Settlement Class, will not receive a pro rata distribution from the NSF and Will not be allowed t0 obj ect t0 this Settlement. Class Members Who fail t0 submit a timely and valid request for exclusion in the manner described herein shall be Settlement Class Members, and shall be bound by all terms 0f 12 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O the Settlement and the Judgment, if the Settlement is approved by the Court. 44. Claims Administrator Reports. The Claims Administrator shall provide weekly status reports t0 counsel for the Parties, including (a) the number 0fNotice Packets mailed; (b) the number of obj ections received; and (c) the number of requests for exclusion received. At least ten (10) calendar days prior to the Final Approval Hearing, the Claims Administrator will provide a declaration showing due diligence setting forth its compliance With its obligations under this agreement, including with regard to: (i) mailing 0f the Notice; (ii) receipt 0f any valid requests for exclusion; and (iii) any inability t0 deliver the Notice to Class Members due t0 invalid addresses. Prior t0 the Final Approval Hearing, the Claims Administrator Will prepare and submit for filing in support of the motion a supplemental declaration as may be necessary 0r requested by counsel for the Parties. FINAL APPROVAL AND JUDGMENT 45. Motion for Final Approval and Hearing. After Preliminary Approval, notice t0 the Class and an opportunity for objection, a Final Approval Hearing shall be held 0n a date set by the Court t0 consider Final Approval 0f the Settlement, Whether and in What amount a Fee and Expense Award should be awarded t0 Plaintiff” s Counsel, whether and in what amount an Incentive Award should be awarded t0 the Plaintiff, and the merits 0f any objections t0 this Agreement and the Settlement set forth herein 0r any of its terms. In connection with the Final Approval Hearing, Class Counsel shall prepare and file a motion for final approval, which shall include the Report 0f the Claims Administrator. The motion shall be submitted in draft form t0 counsel for Defendants at least five (5) business days prior to the filing deadline for review and input. 46. Plaintiff’s Application for Fee and Expense Award and Incentive Award. Concurrent with the filing of the Motion for Final Approval, Plaintiff shall file with the Court any application for a Fee and Expense Award and Incentive Award authorized by this Agreement. 47. Judgment. Concurrent With Final Approval 0f the Settlement, the Parties shall obtain entry 0f a Final Approval Order and Judgment. The Judgment shall become final upon the 13 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O Payment Obligation and Class Release date, after which the Court shall retain jurisdiction: (i) to enforce the terms of this Agreement; (ii) address any Claims Administration matters that may arise; and (iii) address such post-Judgment matters as may be appropriate under the Court’s rules or applicable law. 48. LWDA Notice. Class Counsel shall submit a copy 0f the Court’s Final Approval Order and Judgment t0 the LWDA Within ten (10) business days 0f entry and shall pay all filing fees associated with such submissions, Which shall be recoverable as part 0f the Fee and Expense Award. EFFECTUATION OF SETTLEMENT 49. Computation 0f GSF Distribution and Employer Pavroll Contributions. Plaintiff shall immediately submit the Order of Final Approval and Judgment to the Claims Administrator, who shall calculate forthwith the amount 0f the NSF, the Individual Settlement Payments t0 the Settlement Class, and the amount 0f Employer Payroll Contributions on the wage portion of the Individual Settlement Payments. Within five (5) business days after the Payment Obligation and Class Release Date, the Claims Administrator shall provide such information t0 the Defendant, along with wiring instructions for submitting sufficient funds to cover the GSF and the Employer Payroll Contributions due. 50. Deposit 0f Settlement Funds. The GSF shall be paid in two installments. Within ten (10) business days of the Payment Obligation and Class Release Date 0r by April 30, 2020, Whichever is later, Defendant shall Wire 50% of the GSF t0 the Claims Administrator (“First Installment”). The remaining 50% shall be Wired to the Claims Administrator within four (4) months thereafter or 0n August 3 1 , 2020, whichever is later (“Second Installment”). This First Installment shall be distributed as follows: (i) the 75% Non-Wage Portion 0f the Individual Settlement Payments to Class Members; (ii) the Incentive Award to the Named Plaintiff; (iii) 50% 0f the Administration Costs t0 the Claims Administrator; and (iv) the PAGA Payment t0 the LWDA, With any remainder (“Remainder”) distributed with the Second Installment. The Remainder plus the Second Installment shall be distributed as follows: (i) the 25% Wage Portion 14 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O of the Individual Settlement Payments to Class Members; (ii) the Fee and Expense Award to Class Counsel; and (iii) the remaining 50% of Administration Costs t0 the Claims Administrator. 5 1. Individual Settlement Pavments. The Non-Wage portion (75%) 0f the Individual Settlement Payments shall be distributed by the Claims Administrator to Settlement Class Members no later than ten (10) business days from the date the Defendant pays the First Installment. The Wage Portion (25%) 0f the Individual Settlement Payments shall be distributed t0 Settlement Class Members no later than ten (10) business days from the date the Defendant pays the Second Installment. The Claims Administrator shall mail all Individual Settlement Payments t0 Settlement Class Members Via first class mail. 52. Pavment 0f Incentive Award t0 Plaintiff. Not later than ten (10) business days from Defendant’s payment of the First Installment, the Claims Administrator shall forward t0 Plaintiff, care 0f Class Counsel, a check reflecting any Incentive Award approved by the Court for Plaintiff. The Incentive Award shall be reported 0n an IRS 1099 Form t0 the appropriate taxing authorities, With a copy t0 Plaintiff. 53. PAGA Payment. Not later than ten (10) business days from Defendant’s payment 0f the First Installment, the Claims Administrator shall forward the PAGA Payment to the LWDA. 54. Administration Costs. Fifty percent (50%) of the Administration Costs as authorized by the Court shall be paid from the GSF to the Claims Administrator Within ten (10) days 0fpayment of the First Installment by Defendant, with the remaining 50% paid t0 the Claims Administrator upon completion 0f all duties required t0 be performed by the Claims Administrator under the terms of this Agreement, or as otherwise required by the Court. 55. Pavment 0f Fee and Expense Award. Not later than ten (10) business days from Defendant’s payment 0f the Second Installment, the Claims Administrator shall transmit Via wire transfer t0 Class Counsel the amount of the Court-approved Fee and Expense Award. The Fee and Expense Award shall be reported on an IRS 1099 Form to the appropriate taxing authorities, with a copy t0 Plaintiff” s Counsel. 56. Uncashed Checks. Any check issued t0 any Settlement Class Member shall 15 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O remain valid and negotiable for ninety (90) calendar days from the date of its issuance, but if not cashed within that time Will be void. Settlement Class Members Who failed t0 cash their checks Within the timelines provided shall nevertheless remain members 0f the Settlement Class and shall be bound by all the terms 0f this Agreement and the Court’s Final Approval Order and Judgment. The Claims Administrator shall perform a second distribution 0f funds 0n a pro rata basis to those Class Members Who cashed their individual settlement checks if the amount of the funds remaining due t0 uncashed checks is at least $4,500.00. Consistent With California Code of Civil Procedure section 384, the funds associated With any void, uncashed checks after a second distribution, 0r if the fimds remaining from the initial distribution are less than $4,500.00, shall be paid on a cypres basis to Legal Aid at Work, or such other charitable organization as approved by the Court. Upon completion 0f administration 0f the Settlement, the Claims Administrator shall provide written confirmation 0f such completion t0 the Court, Class Counsel and Defendant’s Counsel. RELEASES 57. Release bv the Settlement Class Members. As of the Payment Obligation and Class Release Date, Plaintiff and all Settlement Class Members (on behalf of each of them and each of their heirs, executors, administrators, and assigns) irrevocably and unconditionally fully release and forever discharge Defendant, and its past, present, and future parents, subsidiaries, divisions, and affiliates, and their respective past, present, and future officers, directors, employees, partners, shareholders, owners, agents, vendors, affiliates, insurers, legal representatives, and all 0f their successors (including persons or entities who may acquire it in the future), assigns, representatives, heirs, executors, and administrators and all other persons acting by, though, under 0r in concert with them (collectively, the “Released Parties”), from any and all claims, debts, rights, demands, obligations 0r liabilities 0f every nature and description, whether known 0r unknown, for wages, damages, penalties, liquidated damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution, or equitable relief arising out 0f the allegations set forth in the Action and Complaint t0 the extent that such claims arise 16 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O from Settlement Class Members’ employment with Defendant (the “Released Claims”). The Released Claims include, for example, any and all claims for: (a) failure t0 provide meal periods under Labor Code §§ 226.7, 5 12 and Wage Order 9-2001 section 11, or other applicable Wage Order; (b) failure to provide paid rest periods under Labor Code § 226.7, and Wage Order 9-2001; (c) failure to pay overtime wages under Labor Code §§ 5 10, 1194, and the Fair Labor Standards Act; (d) failure to pay all hours worked; (e) failure t0 provide or maintain accurate wage statements pursuant t0 California Labor Code § 226; (f) waiting time penalties under Labor Code § 203; (g) failure t0 permit inspection 0f payroll records under Labor Code section 226; (h) failure t0 permit inspection of personnel records under Labor Code section 1 198.5; (i) improper acquisition and use 0f employee fingerprints under Labor Code sections 1051 and 1054; (j) unfair business practices pursuant to California Business and Professions Code § 17200 based upon the foregoing alleged Violations; (k) associated civil penalties based 0n the foregoing alleged Violations under Labor Code §2699 et seq.; and (1) any additional claims that were 0r could have been asserted arising out of 0r based on the allegations set forth in the First Amended Complaint t0 the extent such claims and allegations arise from Class Members’ employment with Defendant during the Class Period. 58. Additional General Release 0f All Claims bv Named Plaintiff (a) As 0f the Payment Obligation and Class Release Date, and for the duration of the Class Period, Plaintiff (0n his own behalf and on behalf of his heirs, executors, 17 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O administrators, and assigns) knowingly and voluntarily releases and forever discharges the Released Parties from any and all claims, known and unknown, asserted and unasserted, that he has 0r may have had against Defendant 0r any 0f the Released Parties as defined in paragraph 57 above. Such claims include, but are not limited t0: breach 0f contract, whether written, oral or implied; Violation 0f public policy; tort claims, including but not limited t0 intentional infliction of emotional distress and negligent infliction 0f emotional distress, defamation, misrepresentation, and fraud; retaliation claims; common law claims; any other claims for damages, costs, fees, 0r other expenses, including attorneys’ fees; and any Violations 0f the following statutes, laws, and regulations: Title VII 0f the Civil Rights Act 0f 1964, as amended; The Civil Rights Act 0f 1991; Sections 1981 through 1988 0f Title 42 0f the United States Code, as amended; The Americans with Disabilities Act 0f 1990, as amended; The Age Discrimination in Employment Act of 1967, as amended; the Older Workers Benefit Protection Act; the Employment Retirement Income Security Act 0f 1974, as amended; the Occupational Safety and Health Act, as amended; the Sarbanes-Oxley Act 0f 2002; the Family and Medical Leave Act 0f 1993, as amended; the Fair Labor Standards Act; the California Fair Employment and Housing Act - Cal. Gov’t Code § 12900 et seq.; the California Family Rights Act - Cal. Govt. Code §12945.2 et seq.; the California Unruh Civil Rights Act - CiV. Code §51 et seq.; the California Whistleblower Protection Law - Cal. Lab. Code §1102-5(a) to (c); the California Occupational Safety and Health Act, as amended, California Labor Code § 6300 et seq., and any applicable regulations thereunder; the California Labor Code; the Labor Code Private Attorneys General Act 0f 2004 - Cal. Lab. Code § 2698 et seq.; California Labor Code § 132a; and any other federal, state, or local civil employment law, statute, regulation, or ordinance capable 0f being released by Plaintiff, excluding any claims that cannot be released as a matter 0f law. (b) T0 effect a full and complete general release as of all claims, Plaintiff expressly waives and relinquishes all rights and benefits of California Civil Code section 1542, and does s0 understanding and acknowledging the significance and consequence of specifically waiving rights under Civil Code section 1542, Which states as follows: 18 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O A general release does not extend t0 claims that the creditor 0r releasing party does not know 0r suspect to exist in his or her favor at the time of executing the release and that, if known by him or her would have materially affected his 0r her settlement With the debtor or released party. Thus, notwithstanding the provisions 0f Civil Code section 1542, and t0 implement a full and complete release and discharge, Plaintiff expressly acknowledges this Settlement is intended t0 include in its effect, without limitation, all known and unknown claims, including any claims that he does not know or suspect t0 exist in his favor against the Released Parties at the time 0f signing this Agreement, and that this Settlement contemplates the extinguishment 0f any such claim 0r claims. Plaintiff acknowledges that he may later discover facts different from 0r in addition t0 those now know 0r believe t0 be true regarding the matters released or described in this Agreement, and nonetheless agree that the releases and agreements contained in this Agreement shall remain fully effective in all respects notwithstanding any later discovery of any different or additional facts. TAXES AND OTHER CONSEQUENCES OF SETTLEMENT PAYMENTS 59. Tax Payments and Reporting Obligations. The Claims Administrator shall be responsible for making all necessary tax payments to governmental agencies, including but not limited t0 income taxes, required deductions and Withholdings, and Employer Payroll Contributions, as well as all tax reports and filings in connection with all payments made under this Agreement, including but not limited t0 issuance 0f Forms W-2 and 1099. 60. N0 Tax Advice. Neither Plaintiff s Counsel nor Defendant’s Counsel intend anything contained herein t0 constitute legal advice regarding the taxability of any amount paid hereunder, nor shall it be relied upon as such. The tax issues for each Settlement Class Member are unique, and each Settlement Class Member is advised t0 obtain tax advice from his 0r their own tax advisor With respect t0 any payments resulting from the Individual Settlement Payments. In addition, Defendant makes n0 representations 0r warranties 0r promises 0f any kind 0r nature regarding the taxability of any sums paid to Plaintiff and Plaintiff’s Counsel in settlement pursuant t0 this Agreement, the risk 0f which rests entirely with Plaintiff and Plaintiffs Counsel. 19 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O 61. Tax Obligations 0f Plaintiff and Plaintiff’s Counsel. Plaintiff and Plaintiff’s Counsel acknowledge and agree that they are and Will be responsible for the payment 0f any and all Federal, State, and Local taxes 0r penalties associated With their respective allocated portions 0f the payments described herein. The Parties acknowledge and agree that Plaintiff’s Counsel is not responsible for the payment 0f any 0r all Federal, State, and local taxes 0r penalties associated With the Incentive Award to Plaintiff and Individual Settlement Payments t0 Settlement Class Members. The Parties further acknowledge and agree that Plaintiff’s Counsel has n0 duty t0 indemnify, defend, or hold the Released Parties harmless from any and all claims by any Federal, State, 0r Local taxing authority that Plaintiff 0r Settlement Class Members failed t0 pay 0r underpaid their share 0f taxes associated With the payments set forth in this Agreement. In the event that the Defendant 0r any Released Party receives any notice 0r demand regarding a claim by a taxing authority that Plaintiff 0r Plaintiff” s Counsel has failed t0 pay 0r underpaid their share 0f any taxes associated With payments they received under this Agreement, the Defendant agrees to notify Plaintiff and Plaintiff’s Counsel so as t0 provide each 0f them with an opportunity t0 defend, at their expense, the Released Parties from any such claim based 0n their respective payments; provided, however, that the opportunity to defend the Released Parties shall not relieve Plaintiff or Plaintiff’s Counsel (or both, as applicable) 0f their obligation t0 indemnify and defend the Defendant and/or the Released Parties for their respective share. 62. Settlement Class Member Tax Obligations. Each Settlement Class Member will be responsible for paying all applicable state, local, and federal income taxes 0n all amounts the Settlement Class Member receives pursuant to this Agreement and shall not seek indemnification from Defendant or Plaintiff” s counsel in this regard. Should any taxing authority or agency determine that any Settlement Class Member owes additional personal income taxes and/or employee contributions on any portion of his or her Individual Settlement Payment based 011 a challenge t0 the allocation of wage and non-wage portions set forth in paragraph 34(iii) of this Agreement, such Settlement Class Member shall be solely responsible for the payment 0f his 0r her personal income taxes and/or employee contributions. Accordingly, if any taxing authority or 20 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O agency seeks such amounts from Defendant based on a challenge to the allocation 0fwage and non-wage portions 0f the Individual Settlement Payment, the Settlement Class Member shall reimburse Defendant for any of his 0r her personal income taxes and/or employee contributions that Defendant has actually made t0 any such taxing authority or agency. 63. N0 Effect 0n Emplovee Benefits. The Individual Settlement Payments available t0 Settlement Class Members and the Incentive Award paid to Plaintiff shall not be deemed t0 be “pensionable” earnings and shall not have any effect 0n the eligibility for, 0r calculation 0f, any 0f the employee benefits (e.g., vacations, holiday pay, retirement plans, etc.) of the Plaintiff 0r Class Members. The Parties agree that any Individual Settlement Payment 0r Incentive Award paid under the terms 0f this Agreement does not represent any modification 0f Settlement Class Members’ previously credited hours 0f service 0r other eligibility criteria under any employee pension benefit plan 0r employee welfare benefit plan sponsored by the Defendant, and any union- sponsored plan in Which Class Members participate(d) as a consequence of their employment by Defendant. Further, any Individual Settlement Payment or the Incentive Award paid hereunder shall not be considered “compensation” in any year for purposes of determining eligibility for, or benefit accrual within, an employee retirement benefit plan, employee welfare benefit plan, employee bonuses, or employee past, current, 0r future compensation levels. The Parties further agree that Plaintiff and all Settlement Class Members Will be deemed t0 have waived any claims 0r benefits under the Employee Retirement Income Security Act of 1974 (29 U.S.C §1001 et seq.) premised upon any and all amounts they receive under this Settlement as part of their Released Claims under this Agreement. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION AND TERMINATION 64. Nullification 0f Agreement. The Parties expressly agree that this Agreement shall be null and void, and shall not be enforceable, in the event: (i) the Court does not enter any order specified herein; or 21 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O (ii) the Court does not enter a Final Approval and Judgment order finally approving the Settlement as provided herein 0r as otherwise acceptable to the Parties; or (iii) The Judgment does not otherwise become final due to the non- occurrence 0f the Payment Obligation and Class Release Date. (a) The Defendant shall have the sole and exclusive right to rescind this Agreement and the Settlement if Class Members representing more than twenty percent (20%) of all Qualifying Workweeks opt-out of the Settlement. If the Defendant rescinds this Agreement pursuant t0 this provision, the Defendant shall be solely responsible for any and all costs incurred by the Claims Administrator. (b) If the Settlement does not become final for any reason, this Agreement shall be null and void ab initio, n0 Party shall be bound by the terms thereof, neither this Agreement nor the MOU shall be admissible 0r offered into evidence in the litigation or any other action for any purpose whatsoever, and any order or judgment entered by the Court in furtherance of this Settlement shall be treated as Withdrawn 0r vacated by stipulation 0f the Parties. In such case, the Parties shall be returned t0 their respective positions as 0f the date immediately prior t0 the execution 0f this Agreement and the MOU, the Parties shall proceed in all respects as if this Agreement had not been executed, and the Defendant shall have n0 obligation to make any payments provided in this Agreement. (c) Notwithstanding the foregoing, an appeal of, a modification 0f, a reversal 0n appeal, or the reduction of any Fee and Expense Award or Incentive Award shall not constitute grounds for cancellation and termination 0f this Agreement. GENERAL PROVISIONS 65. Cooperation. The Parties agree t0 cooperate in the settlement administration process, t0 use their best efforts to carry out the terms 0f this Settlement, and t0 make all reasonable efforts t0 control and minimize the costs and expenses in settlement administration. 66. N0 Solicitation 0f Obiections 0r Exclusions. Neither the Parties nor their counsel 22 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O or agents will contact Class Members for the purpose of attempting t0 influence them t0 not participate in this Settlement. If contacted by a Class Member, Counsel for the Parties and representatives 0f the Defendant may provide information or assistance regarding any aspect 0f the Settlement requested by the Class Member. At n0 time shall any of the Parties or their counsel, agents, or representatives solicit 0r otherwise encourage Class Members 0r any other persons (including but not limited t0 the State 0f California Labor & Workforce Development Agency) to submit written obj ections to the Settlement 0r requests for exclusion from the Settlement, 0r encourage Class Members or any other person t0 appeal from the Judgment. 67. General Duties 0f Claims Administrator. In addition to those obligations detailed elsewhere in this Agreement, the Clams Administrator shall consult With counsel for the Parties concerning any relevant issue, shall keep counsel for the Parties apprised of the status of the distributions 0f Individual Settlement Payments, and shall perform such other tasks as the Parties mutually agree or the Court orders the Claims Administrators t0 perform, including responding t0 questions from Class Members. 68. No Liabilitv for Carrving Out Settlement Terms. N0 person shall have any claim against the Parties based 0n mailings, distributions, and payments made, 0r any other action taken, in accordance With, or pursuant t0, this Agreement or any order 0f the Court. In addition, no person shall have any claim against the Parties or the Claims Administrator based 0n mailings, distributions, and payments made in accordance With this Agreement 0r any order 0f the Court. The Claims Administrator shall not be deemed t0 be an employee 0r agent of any Party. 69. Headings and Captions. The headings and captions contained in this Agreement are inserted for convenience and in no way define, limit, extend, or describe the scope of this Agreement 0r the intent 0f any provision thereof. 70. Interim Stav 0f Proceedings. Pending the Final Approval Hearing to be conducted by the Court, or earlier if for any reason the settlement contemplated by this Agreement Will not occur, the Parties agree t0 hold in abeyance all proceedings in the Action, except such proceedings as are necessary t0 implement and complete the Settlement, or t0 comply with any 23 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O Court Order. 71. Amendment 0r Modification. This Agreement may not be amended 0r modified in any respect except by a written instrument duly executed by all 0f the Parties t0 this Agreement or their counsel and approved by the Court. 72. Entire Agreement. This Agreement constitute the entire Agreement of the Parties With respect t0 the matters discussed herein, and n0 oral 0r written representations, warranties, 0r inducements have been made to any Party concerning this Agreement other than the representations, warranties, and covenants contained and memorialized in such documents. A11 prior or contemporaneous negotiations, agreements, understandings, and representations, Whether written 0r oral, are expressly superseded and are 0f no further force and effect. Each 0f the Parties acknowledges that it has not relied 0n any promise, representation, 0r warranty, express or implied, not contained in this Agreement. 73. Authorization t0 Enter into Settlement Agreement. Each signatory t0 this Agreement warrants and represents that he 0r they have the authority t0 execute this Agreement, thereby binding the respective party t0 take all appropriate action required 0r permitted t0 be taken by the Parties pursuant t0 this Agreement t0 effectuate its terms and to execute any other documents required t0 effectuate the terms of this Agreement. The Parties and their counsel agree to cooperate with each other and to use their best efforts to effect the implementation 0f this Agreement. 74. Binding Effect of the Agreement. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective heirs, legal representatives, executors, administrators, successors, and assigns. 75. Choice 0f Law. In determining the rights 0f the Parties hereto, this Agreement shall be governed by, construed, and interpreted in accordance with the laws of the State of California, without regard t0 the conflict 0f laws principles thereof. 76. Counterparts. This Agreement may be executed in one 0r more counterparts, each 0f which shall be an original, provided that counsel for the Parties shall exchange among 24 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOfloUl-RUJNy-A NNNNNNNNNHr-tr-‘r-tr-tr-tr-tr-tr-H OOQQUI-PUJNHOKOOOQONUI-PWNHO themselves original signed counterparts. 77. Representation bv Counsel and Cooperation in Drafting. A11 of the Parties acknowledge that they have been represented by counsel throughout negotiations and in the execution 0f this Agreement, and that this Agreement has been executed With the consent and advice 0f counsel. Each of the Parties has cooperated in the drafting and preparation of this Agreement. Hence, any rule Which construes ambiguities against the drafter shall have n0 force 0r effect. 78. Invaliditv 0f Anv Provision. If any provision 0f this Agreement is held to be invalid, void, 0r unenforceable, the remaining provisions shall continue in full force and effect. 79. Terminologv and Construction. A11 personal pronouns used in this Agreement, whether used in the masculine, feminine, or neutral gender, shall include all other genders, and the singular shall include the plural and Vice versa. 80. NLices. Any notices 0r other documents that must or may be transmitted to Plaintiff” s Counsel and/or Defendant’s Counsel, pursuant to any provision of this Agreement, shall be transmitted t0 each 0f the following: For documents to Defendant’s (301111531: For documents to Plaintiff’ counsel: L FeliCia R- Reid Robin G. Workman HIRSCHFELD KRAEMER LLP WORKMAN LAW FIRM P.C. 505 Montgomery Street, 13th Floor 177 Post Street, Suite 800 San Francisco, CA 941 11 5311 FfanCiSCO, CA 94108 Telephone: (415)835-9000 gelephfi’lnéi figflggiggg Facsimile: (415) 834-0443 mm“ 6- ( ) ‘ 81. The Parties and all counsel acknowledge and agree that for the purposes 0f any claims, actions, and/or proceedings arising out of this Agreement, notice provided t0 Plaintiff s Counsel shall be deemed to be notice to the Plaintiff. 82. The Parties and their Counsel will fully cooperate with each other and use their best efforts, including all efforts contemplated by this Settlement and any other efforts that may 25 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 IN.) CQWQQU‘IAL‘J .-.-n-._._-_.p--.-_. W‘MJONLJ‘I-KUJNL-A become neaessary or ordered by the Court, 0r otherwise, to accomplish the terms of this Settlement, including but not limited to, executing such documents am] taking such other action as may reasonably be necessary lo obtain preliminary and final approval Ofthis Settlement and 1,0 implement its terms. 83. 1t is agreed that, because the Class Members art: so numerous, it is impossil'fle 0r impractical to have each Class Member who does not timely and validly opt-out cxecuic this Agreement. Therefore, the Notice Packet will inform all Class Members 0f the binding nature 0f: the releases contained in this Agreement will have the same force and effect as i'l'this Agreement were executed by each Class Member who does not timely and validly opt-out. EXECUTION BY PARTIES AND COUNSEL The Parties and their counsel hereby execute this document to evidence their acceptance of and agreement to the Settlement memorialized i'n this Agreement. LLAREALTHOMASDate: October I 772019 Date: October 201.9 MISSION TRAIL. WASTE SYSTEMS, INC.HM: By: Louis Pcilcgrini Date: October {6/3019 Date: October” , 20l9 HIRSCHFBLD KRAEMER, LIP By: Felicia R. Reid Attorneysfor Dgféndam Mms‘ion Trail Wasie vatcms. Inc. 26 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO‘ ISC'V33 8479 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 become necessary or ordered by the Court, or otherwise, to accomplish the terms of this Settlement, including but not limited to, executing such documents and taking such other action as may reasonably be necessary to obtain preliminary and final approval of this Settlement and to implement its terms. 83. It is agreed that, because the Class Members are so numerous, it is impossible or impractical to have each Class Member who does not timely and validly opt-out execute this Agreement. Therefore, the Notice Packet will inform all Class Members of the binding nature of the releases contained in this Agreement will have the same force and effect as if this Agreement were executed by each Class Member who does not timely and validly opt-out. EXECUTION BY PARTIES AND COUNSEL The Parties and their counsel hereby execute this document to evidence their acceptance of and agreement to the Settlement memorialized in this Agreement. Date: October ,2019 THOMAS VILLAREAL Date: October 28, 2019 MISSION TRAIL WASTE SYSTEMS, INC Date: October , 2019 Louis Pellegrini WORKMAN LAW FIRM, PC By: Date: October 2019 Robin G. Workman Attorneys for Thomas Villarreal and all others similarly situated HIRSCHFERD :RA T>LP^ By: Felicia R. Reid Attorneys for Defendant Mission Trail Waste Systems, Inc. 26 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. I8CV338479 EXHIBIT D NOTICE OF PENDENCY OF CLASS ACTION SETTLEMENT AND FINAL APPROVAL HEARING Thomas Villareal v. Mission Trail Waste System, Inc., et al. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA (CASE NO. CGC-18CV338479) IF YOU WORKED FOR MISSION TRAIL WASTE SYSTEMS AS A SANITATION TRUCK DRIVER, YOU COULD GET A PAYMENT FROM A CLASS ACTION SETTLEMENT. This is a court-authorized notice. This is not a solicitationfrom a lawyer. If approved, a proposed Settlement will provide up to $750,000 to resolve a class action lawsuit filed against Mission Trail Waste Systems, Inc. (“Mission Trail” or “Defendant”) involving claims under California’s labor laws for alleged failure to provide meal and rest breaks and pay the extra hour 0f compensation for missed meal and rest breaks, failure t0 provide accurate wage statements, failure to pay all wages owed, failure to allow inspection of payroll and personnel records, and improper use of employees’ fingerprints for timekeeping purposes, 0n behalf of all current and former sanitation truck drivers who worked for Defendant in California from November 19, 2014 t0 date the Court grants preliminary approval of the Settlement (the “Class Period”). o The Settlement is a compromise. The two sides disagree 0n how much money, if any, might have been awarded if the lawsuit went to trial. The Court did not find that Defendant violated the law. Defendant denies that it did anything wrong and maintains that it complied at all times With applicable laws, rules, and regulations. 0 There is n0 money available now. Your legal rights are affected Whether you act 0r don't act. Read this notice carefully. 0 N0 RETALIA TION: Defendant will notfire, punish, retaliate, or otherwise discriminate against any employee because he 0r she chooses t0 participate in this Settlement, chooses not t0 participate, 0r objects t0 the Settlement. i YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT i Stay in this lawsuit. Await the outcome. Give up certain rights. DO NOTHING By doing nothing, you keep the possibility of getting money or benefits that may come from the Settlement. But, you give up any rights t0 sue Defendant separately about the same legal claims in this lawsuit. Get out 0f this lawsuit. Get no benefits from it. Keep your rights. ASK TO BE EXCLUDED If you ask to be excluded and money or benefits are later awarded, you won't share in those. But, you keep any rights to sue Defendant separately, at your own expense, about the same legal claims in this lawsuit. o This Notice explains your options - and the deadlines that you must meet. Questions? Call [Phone Number] Page 1 of 8 o The Court in charge 0f this case still must decide whether to grant final approval of the Settlement. Payments will be made if the Court approves the Settlement and after any appeals are resolved. Please be patient. o Any questions? Read 0n 0r call the Settlement Administrator, Rust Consulting, at (000) 000-0000 WHAT THIS NOTICE CONTAINS BASIC INFORMATION ............................................................................................................... Page 3 1. Why did I get this notice package? 2. What is this lawsuit about? 3. What is a class action and who is involved? WHO IS IN THE CLASS SETTLEMENT ............................................................................. Pages 3-4 4. How do I know if I am part of the Settlement? 5. Are there exceptions t0 being included? 6. I’m still not sure if I am included. THE SETTLEMENT BENEFITS - WHAT YOU GET ..................................................................... Pages 4-5 7. What does the Settlement provide? 8. What am I giving up t0 get a payment or stay in the Class? 9. How d0 I get a payment? 10. When would I get my payment? 1 1. How much Will my payment be? EXCLUDING YOURSELF FROM THE SETTLEMENT ........................................................ Page 5 12. How d0 I get out of the Settlement? 13. If I don't exclude myself, may I sue Defendant for the same thing later? 14. If I exclude myself, may I get money from this lawsuit? OBJECTING TO THE SETTLEMENT ...................................................................................... Page 6 15. How d0 I tell the Court that I don't like the Settlement? 16. What's the difference between obj ecting and excluding? IF YOU DO NOTHING ................................................................................................................. Page 6 17. What happens if I d0 nothing at all? THE LAWYERS REPRESENTING YOU ............................................................................. Pages 6-7 18. D0 I have a lawyer in this case? 19. Should I get my own lawyer? 20. How will the lawyers be paid? THE COURT'S FAIRNESS HEARING ...................................................................................... Page 7 21. When and where will the Court decide whether to approve the Settlement? 22. D0 I have to come t0 the hearing? 23. May I speak at the hearing? GETTING MORE INFORMATION ...................................................................................... Pages 7-8 24. Are more details available? Questions? Call [Phone Number] Page 2 of 8 BASIC INFORMATION .F Why did I get this notice package? - Defendant’s records show that you either currently work for Defendant, or previously worked for Defendant, as a sanitation truck driver in California during the Class Period. The Court authorized this Notice because you have a right to know about the proposed Settlement of this class action lawsuit, and about all of your options, before the Court decides whether to approve the Settlement. This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how t0 get them. E What is this lawsuit about? j The Santa Clara County Superior Court is in charge of the case. The lawsuit is known as Thomas Villareal v. Mission Trail Waste Systems, Ina, Case N0. 18CV338479. The lawsuit alleges that Defendants failed t0 maintain and provide accurate wage statements to employees; failed t0 provide meal and rest periods, 0r compensation for same; failed t0 pay all wages due; failed to allow inspection 0fpersonnel and payroll records; improperly used fingerprints for timekeeping; and, committed other Violations of California law. On November 22, 2019, at 9:00 a.m., in Department 5 0f the Superior Court 0f California, County of Santa Clara, the Court held a hearing where it provisionally approved the terms of the proposed Settlement, found that this case can fairly be settled 0n a class basis, approved this Notice, and scheduled a hearing where the Court will consider whether t0 grant “final approval” of the proposed Settlement. Further information about that hearing is set forth in section 21, below. L What is a class action and Who is involved? _ In a class action lawsuit, a person called a “Class Representative” (in this case Thomas Villareal) sues on behalf of other people Who have similar claims. The people together are a “Class” or “Class Members.” The individual who sues is called the Plaintiff. The company he 0r she sues (in this case Mission Trail Waste Systems, Inc.) is called the Defendant. One court resolves the issues for everyone in the Class-except for those people who exclude themselves from the Class, as described in Question 12 below. WHO IS IN THE CLASS SETTLEMENT?j How do I knowif I am part of the Settlement? i The Court decided that all current and former sanitation truck drivers 0f Defendant in California from November 19, 2018 to preliminary approval, are Class Members. E Are there exceptions to being included? I Only those employees 0f Defendant who meet the requirements of Question 4 are a part 0f the Settlement. If you exclude yourself from the Settlement pursuant to the instructions in Question 12, you will n0 longer be included in the Settlement. Questions? Call [Phone Number] Page 3 of 8 t’ I'm still not,- sme ifI am included. I If you are still not sure Whether you are included, you can get free help by calling or writing to the Settlement Administrator or lawyers in this case using the contact information provided in Questions 15 and 24. THE SETTLEMENT BENEFITS - WHAT YOU GETt What does the Settlement provide? j Under the proposed Settlement, Defendant agrees t0 pay $750,000 (the “Gross Settlement Amount”) to resolve Settlement Class Members’ claims. The Gross Settlement Amount includes: (a) expenses and fees 0f the Settlement Administrator up to $15,000; (b) an Incentive Award of up to $5,000 t0 Class Representative Villareal; (c) attorneys’ fees ofup to $250,000 and litigation costs not to exceed $20,000, to Class Counsel; and, (d) a PAGA payment to the State Labor & Workforce Development Agency (LWDA) 0f up t0 $ 1 5,000. The Court must approve these payments at the Final Approval Hearing. E What am I giving up to get a payment or stay in the Class? Z Unless you exclude yourself, you are staying in the Class, and that means that you can't sue, continue t0 sue, or be part of any other lawsuit against Defendant about the legal issues in this case. It also means that all of the Court's orders will apply t0 you and legally bind you. See Question 12 ifyou want t0 find out how to exclude yourself from the Class. Unless you exclude yourself, you will release all claims, demands, rights, liabilities, and any causes 0f action, whether known 0r unknown, arising from the claims alleged in this lawsuit, including, the failure to provide meal and rest breaks, the failure t0 pay for all wages owed, the failure t0 allow a review ofpersonnel files and payroll records, the use of fingerprints for timekeeping, and the failure to provide accurate itemized pay statements in violation 0f the California Labor Code, applicable Wage Order(s), the California Private Attorneys General Act, and the California Business and Professions Code section 17200 et seq. E How do I get a payment? To receive a settlement payment, you d0 not need t0 take any action. You must however keep a current address 0n file with the Settlement Administrator to ensure that you receive your settlement payment should the Court order final approval of the Settlement. If you move and the Settlement Administrator cannot locate a current address for you, you will not receive a payment. E0. When would I get my payment? i The Settlement Administrator Will send Individual Settlement Awards after the Court enters an order granting final approval 0f the Settlement. If there is an appeal 0f an order granting final approval 0f the Settlement, payments will be delayed until all appeals are resolved in favor of the Settlement. Please be patient. Bl. How much will my payment be? v! The distribution formula in the Settlement is based 0n the number 0f work weeks that you worked for Defendant as a sanitation truck driver during the Class Period as compared to the total number of work Questions? Call [Phone Number] Page 4 of 8 weeks worked by all Class Members for the same period. According t0 Defendant’s records, you worked a total 0f ## workweeks during the Class Period. Based on the settlement distribution formula, your estimated minimum Individual Settlement Payment under the terms of the Settlement Will be: $ Your Individual Settlement Payment may be higher or lower depending 0n a number of factors. Your Individual Settlement Payment will be paid in two installments. It is anticipated that the first payment would occur 0n 0r about April 30, 2020, and the second payment would occur on or about August 3 1 , 2020. Ifyou disagree with the number ofwork weeks, you may complete Section B of the Form and submit any records t0 the Settlement Administrator t0 support your claim. The amount 0f your individual settlement award reflected in this notice is just an estimate. Your payment may be higher or lower, depending on the Court’s rulings. EXCLUDING YOURSELF FROM THE SETTLEMENT If you don't want a payment from this Settlement, but you want to keep the right to sue or continue t0 sue Defendants, at your own expense about the legal issues in this case, then you must take steps to get out. This is called excluding yoursalf7 0r is sometimes referred to as opting out 0f the Settlement. E. How do I get out of the Settlement? _ To exclude yourself from the Settlement, you must send a letter stating that you want to be excluded from the Villareal v. Mission Trail Waste Systems Class Action settlement and that you understand that by doing so you will not receive any money from the settlement. Be sure t0 include your name, address, telephone number, and your signature. You must mail your exclusion request postmarked no later than <> to: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] IRE” I don't exclude myself, may] sue Defendant for the same thing later? g No. Unless you exclude yourself, you give up any right t0 sue Defendant for the claims this Settlement resolves. If you have a pending lawsuit against Defendant, speak to your lawyer in that case immediately. Remember, the exclusion deadline is <>. If you start your own lawsuit against Defendant after you exclude yourself, you’ll have to hire and pay your own lawyer for that lawsuit, and you’ll have to prove your claims. No. If you exclude yourself, you will not receive any money from this Settlement. But, you may sue, continue to sue, or be part of a different lawsuit against Defendant. E If I exclude myself, may I get money from this Settlement? Questions? Call [Phone Number] Page 5 of 8 OBJECTING TO THE SETTLEMENTt How d0 I‘tell the Court that I don't like the Settlement? _ As a Class Member, you may obj ect to the Settlement ifyou don't like any part 0f it. You must sign the obj ection and state the following: (1) your full name; (2) the dates of your employment; (3) the last four digits of your Social Security number or your Employee ID number; (4) your factual and legal basis for the obj ection with any supporting documents and evidence; and, (5) ifyou intend to appear at the Final Approval/Fairness Hearing. You must state that you obj ect t0 the Settlement in Thomas Villareal v. Mission Trail Waste Systems Class Action, Case No. 18CV338479. You must mail your objection postmarked n0 later than <> t0 the Settlement Administrator at the following address: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] r What is the difference between objecting and excluding? j Obj ecting is simply telling the Court that you don't like something about the Settlement. You can obj ect only if you stay in the Class. Excluding yourself is telling the Court that you don't want to be part of the Class. Ifyou exclude yourself, you cannot object because the case n0 longer affects you. You have 45 days from <> to obj ect or exclude yourself from the class. In other words, the deadline to mail your objection or request for exclusion is <>. IF YOU DO NOTHING I What happens ‘if I do nothing at all? I By doing nothing you choose to stay in the Class. If you stay in and the Court approves the Settlement, you Will receive a portion 0f the Settlement proceeds. Keep in mind that ifyou do nothing now, you Will not be able to sue, or continue t0 sue Defendant about the same legal claims that are the subj ect 0f this lawsuit. You will also be legally bound by all orders and judgments of the Court in this class action. THE LAWYERS REPRESENTING YOU l Do I have a lawyer in this case? l- The Court decided that the Workman Law Firm, PC, 177 Post Street, Suite 800, San Francisco, CA, 415-782- 3660, is qualified to represent you and all Class Members. You Will not be charged for these lawyers. The law firm is referred to as “Class Counsel.” They are experienced in handling similar cases against other employers. More information about the Workman Law Firm, PC, their practices, and their experience is available at www.workmanlawpc.com. You can also find the most important documents in this case, this notice, the complaint, etc., at this website. Questions? Call [Phone Number] Page 6 of 8 i Should I get my own lawyer‘é j You d0 not need t0 hire your own lawyer because Class Counsel is working for you. But, ifyou want your own lawyer, you will have to pay that lawyer. For example, you can ask him or her to appear in Court for you ifyou want someone other than Class Counsel to speak for you. m. How will the lawyers be paid? Class Counsel Will ask the Court to approve payment of attorneys’ fees not to exceed $250,000 and litigation costs not to exceed $20,000. THE COURT'S FAIRNESS HEARING The Court will hold a Final Approval Hearing to decide whether t0 approve the Settlement. You may attend and you may ask t0 speak, although you don't have to. l1 When and where will the court decide whether to approve- the- settlement? ----§ The Final Approval Hearing is scheduled t0 occur 0n , 2019,_ am. in Dept. 5 0f the Superior Court of California, County 0f Santa Clara, located at 191 N. First St, San Jose, California. The Court may continue 0r adjourn the final approval hearing without further notice to the Class. At this hearing the Court will consider Whether the Settlement is fair, reasonable and adequate. If there are objections, the Court will consider them. The Court Will listen t0 people who have asked t0 speak at the hearing. The Court may also decide how much to pay Class Counsel. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take. g Do I have to come to the Final Approval Hearing? _ No. Class Counsel will answer any questions the Court may have. But, you are welcome t0 come at your own expense. If you file an obj ection, you do not need t0 come t0 Court t0 talk about it. As long as you filed and mailed your written objection, the Court will consider your objection 0r may allow you t0 speak at the hearing. You may also pay your own lawyer to attend, but it's not necessary. E May I speak at the Final Approval Hearing? - You may ask the Court for permission t0 speak at the Final Approval Hearing. Unless the Court allows it, you cannot speak at the hearing ifyou excluded yourself. GETTING MORE INFORMATION I Meme details available? The Court-appointed Settlement Administrator for this Settlement is as follows: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] Questions? Call [Phone Number] Page 7 of 8 If you have questions, you may call the Settlement Administrator toll free at [TELEPHONE NUMBER]. Ask about the Villareal v. Mission Trail Waste Systems Class Action. You may also contact Class Counsel using the contact information provided in Question 15. PLEASE DO NOT CALL THE COURT. You may also View documents filed in this case, including the complete Settlement Agreement, on the Rust Consulting web site (fill in cite) website or the Court’s website at:www.scscourtorg/online services/case info.shtml. You may also review documents in person at the Office of the Clerk at the Superior Court of California, City and County of Santa Clara, 191 N. First St., San Jose, California 951 13, between the hours of 8:30 am. and 3:00 p.m., Monday through Friday, excluding Court holidays. Questions? Call [Phone Number] Page 8 of 8