Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.April 2, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AEGIS LAW FIRM, PC KASHIF HAQUE, State Bar No. 218672 SAMUEL A. WONG, State Bar N0. 217 1 04 JESSICA L. CAMPBELL, State Bar N0. 280626 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Email: Jcampbell@aegislawfirm.com E-FILED 4/2/2021 11:23 AM Clerk of Court Superior Court of CA, County of Santa Clara 21 CV379043 Reviewed By: R. Walker Attorneys for Plaintiff Jason Amyx, individually, and 0n behalf 0f all others similarly situated. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JASON AMYX, individually and 0n behalf 0f all others similarly situated, Plaintiff, V. BOARDWALK AUTO CENTER, INC.; and DOES 1 through 20, inclusive, Defendants. 21 CV379043 Case No. CLASS ACTION COMPLAINT FOR: 1. Failure to Pay Minimum Wages; Failure t0 Pay Overtime Wages; . Failure t0 Provide Meal Periods; Failure t0 Permit Rest Breaks; Failure to Pay A11 Wages t0 Commission- Only 0r Piece-Rate Workers for Rest Breaks Failure t0 Reimburse Business Expenses; Failure to Provide Accurate Itemized Wage Statements; Failure t0 Pay All Wages Due Upon Separation 0f Employment; and Violation 0f Business and Professions Code §§ 17200, et seq. DEMAND FOR JURY TRIAL CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Jason Amyx, individually, and 0n behalf of others similarly situated, alleges as follows: NATURE OF ACTION AND INTRODUCTORY STATEMENT 1. Plaintiff Jason AmyX (“Plaintiff”) brings this putative class action against defendant Boardwalk Auto Center, Inc., and DOES 1 through 20, inclusive (collectively, “Defendants”), on Plaintiff’s own behalf and on behalf 0f a putative class of California citizens Who are and were employed by Defendants as non-exempt employees 0r employees paid in Whole 0r in part 0n a commission or piece rate basis throughout California. 2. Defendants are in the business of operating an automotive dealership. 3. Through this action, Plaintiff alleges that Defendants engaged in a systematic pattern 0f wage and hour Violations under the California Labor Code and Industrial Welfare Commission (“IWC”) Wage Orders, all of Which contribute t0 Defendants’ deliberate unfair competition. 4. Plaintiff is informed and believes, and thereon alleges, that Defendants have increased their profits by Violating state wage and hour laws by, among other things: (a) failing to pay all wages (including minimum wages and overtime wages); (b) failing to pay wages for non-productive time, including time spent in rest breaks; (c) failing t0 provide lawful meal periods 0r compensation in lieu thereof; (d) failing to authorize or permit lawful rest breaks 0r provide compensation in lieu thereof; (e) failing t0 pay wages t0 commission 0r piece-rate workers for time spent in rest breaks and/or recovery periods; (f) failing to reimburse necessary business-related costs; (g) failing t0 provide accurate itemized wage statements; and (h) failing to pay all wages due upon separation 0f employment. 5. Plaintiff seeks monetary relief against Defendants on behalf of himself and all others similarly situated in California t0 recover, among other things, unpaid wages, un- -1- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reimbursed business expenses, benefits, interest, attorneys’ fees, costs and expenses, and penalties pursuant t0 Labor Code §§ 201, 202, 203, 204, 210, 223, 226, 226.2, 226.7, 510, 512, 1182.12, 1194, 1194.2, 1197, 1198, 2800, and 2802, and Code 0f California Civil Procedure § 1021.5. JURISDICTION AND VENUE 6. This is a class action pursuant to California Code 0f Civil Procedure § 382. The monetary damages and restitution sought by Plaintiff exceeds the minimal jurisdictional limits 0f the Superior Court and will be established according t0 proof at trial. 7. This Court has jurisdiction over this action pursuant t0 the California Constitution, Article VI, § 10, which grants the Superior Court original jurisdiction in all causes except those given by statutes to other courts. The statutes under which this action is brought do not specify any other basis for jurisdiction. 8. This Court has jurisdiction over all Defendants because, upon information and belief, they are citizens of California, have sufficient minimum contacts in California, 0r otherwise intentionally avail themselves 0f the California market so as t0 render the exercise of jurisdiction over them by the California courts consistent with traditional notions 0f fair play and substantial justice. 9. Venue is proper in this Court because, upon information and belief, Defendants reside, transact business, or have offices in this county, and the acts and omissions alleged herein took place in this county. THE PARTIES 10. Plaintiff is a resident 0f California and worked for Defendants during the relevant time periods as alleged herein. 11. Plaintiff is informed and believes, and thereon alleges, that at all times hereinafter mentioned, Defendants were and are subject t0 the Labor Code and IWC Wage Orders as employers, whose employees were and are engaged throughout this county and the State 0f California. -2- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. Plaintiff is unaware 0f the true names 0r capacities 0f the defendants sued herein under the fictitious names DOES 1 through 20, but Will seek leave 0f this Court t0 amend this Complaint and serve such fictitiously named defendants once their names and capacities become known. 13. Plaintiff is informed and believes, and thereon alleges, that DOES 1 through 20 are or were the partners, agents, owners, shareholders, managers, 0r employees 0f Defendants at all relevant times. 14. Plaintiff is informed and believes, and thereon alleges, that each defendant acted in all respects pertinent t0 this action as the agent of the other defendant, carried out a joint scheme, business plan, 0r policy in all respects pertinent hereto, and the acts 0f each defendant are legally attributable to the other defendant. Furthermore, defendants in all respects acted as the employer and/or joint employer 0f Plaintiff and the class members. 15. Plaintiff is informed and believes, and thereon alleges, that each and all of the acts and omissions alleged herein were performed by, 0r are attributable to, Defendants and/or DOES 1 through 20, acting as the agent or alter ego for the other, With legal authority to act on the other’s behalf. The acts of any and all Defendants were in accordance With, and represent, the official policy 0f Defendants. 16. At all relevant times, Defendants, and each 0f them, acted within the scope of such agency or employment, or ratified each and every act 0r omission complained of herein. At all relevant times, Defendants, and each 0f them, aided and abetted the acts and omissions of each and all the other Defendants in proximately causing the damages herein alleged. 17. Plaintiff is informed and believes, and thereon alleges, that each 0f said Defendants is in some manner intentionally, negligently, or otherwise responsible for the acts, omissions, occurrences, and transactions alleged herein. CLASS ACTION ALLEGATIONS 18. Plaintiff brings this action under Code 0f Civil Procedure § 382 0n Plaintiff s own behalf and 0n behalf of all others similarly situated who were affected by Defendants’ Labor Code, Business and Professions Code §§ 17200, and IWC Wage Order Violations. -3- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19. A11 claims alleged herein arise under California law for Which Plaintiff seeks relief authorized by California law. 20. Plaintiff’s proposed class consists of and is defined as follows: m A11 California residents currently 0r formerly employed by Defendants in the State of California as non-exempt employees or employees paid in whole or in part on a commission or piece rate basis at any time between October 6, 20161 and the date 0f class certification (“Class”). 21. Plaintiff also seeks to certify the following subclasses 0f employees: Waiting Time Subclass A11 members 0f the Class Who separated their employment with Defendants at any time between October 6, 2017 and the date 0f class certification (“Waiting Time Subclass”). 22. Plaintiff reserves the right t0 modify or re-define the Class, establish additional subclasses, or modify 0r re-define any class or subclass definition as appropriate based on investigation, discovery, and specific theories of liability. 23. Members 0f the Class and the Waiting Time Subclass described above Will be collectively referred t0 as “Class Members.” 24. There are common questions 0f law and fact as t0 the Class Members that predominate over any questions affecting only individual members including, but not limited to, the following: (a) Whether Defendants failed t0 pay Plaintiff and Class Members all wages (including minimum wages and overtime wages) for all hours worked by Plaintiff and Class Members. 1 The statute of limitations for this matter was tolled between April 6, 2020 and October 1, 2020 pursuant t0 Cal. Rules 0f Court, Appendix I, Emergency Rule N0. 9. -4- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) Whether Defendants required Plaintiff and Class Members t0 work over eight (8) hours per day, over twelve (12) hours per day, and/or over forty (40) hours per week and failed to pay them overtime compensation for all overtime hours worked. (c) Whether Defendants failed t0 pay Plaintiff and Class Members for non- productive time, including time spent in rest breaks. (d) Whether Defendants deprived Plaintiff and Class Members of timely meal periods 0r required Plaintiff and Class Members to work through meal periods without legal compensation. (e) Whether Defendants deprived Plaintiff and Class Members 0f rest breaks or required Plaintiff and Class Members t0 work through rest breaks. (f) Whether Defendants failed t0 pay all wages to commission 0r piece-rate employees for time spent in rest breaks. (g) Whether Defendants failed t0 reimburse Plaintiff and Class Members for necessary business-related costs expended for the benefit of Defendants. (h) Whether Defendants failed t0 provide Plaintiff and Class Members accurate itemized wage statements. (i) Whether Defendants failed t0 timely pay the Waiting Time Subclass all wages due upon termination 0r Within seventy-two (72) hours of resignation. (j) Whether Defendants’ conduct was willful 0r reckless. (k) Whether Defendants engaged in unfair business practices in Violation 0f Business and Professions Code §§ 17200, et seq. 25. There is a well-defined community 0f interest in this litigation and the proposed Class and subclasses are readily ascertainable: (a) Numerosity: The Class Members are so numerous that joinder of all members is impractical. Although the members 0f the Class are unknown t0 Plaintiff at this time, 0n information and belief, the Class is estimated to be greater than fifty (50) individuals. The -5- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 identities 0f the Class Members are readily ascertainable by inspection 0f Defendants’ employment and payroll records. (b) Typicalitl: Plaintiffs claims (0r defenses, if any) are typical 0f the claims (01' defenses, if any) of the Class Members because Defendants’ failure t0 comply With the provisions 0f California’s wage and hour laws entitled each Class Member t0 similar pay, benefits, and other relief. The injuries sustained by Plaintiff are also typical 0f the injuries sustained by the Class Members, because they arise out 0f and are caused by Defendants’ common course 0f conduct as alleged herein. (c) Adeguacy: Plaintiff Will fairly and adequately represent and protect the interests 0f all Class Members because it is in Plaintiff’s best interest to prosecute the claims alleged herein to obtain full compensation and penalties due. Plaintiff’s attorneys, as proposed class counsel, are competent and experienced in litigating large employment class actions and versed in the rules governing class action discovery, certification, and settlement. Plaintiff has incurred and, throughout the duration of this action, Will continue to incur attorneys’ fees and costs that have been and will be necessarily expended for the prosecution of this action for the substantial benefit of the Class Members. (d) Superiority: The nature 0f this action makes use of class action adjudication superior to other methods. A class action Will achieve economies 0f time, effort, and expense as compared With separate lawsuits and Will avoid inconsistent outcomes because the same issues can be adjudicated in the same manner for the entire Class and Waiting Time Subclass at the same time. If appropriate, this Court can, and is empowered to, fashion methods t0 efficiently manage this case as a class action. (e) Public Policy Considerations: Employers in the State of California Violate employment and labor laws every day. Current employees are often afraid t0 assert their rights out of fear of direct or indirect retaliation. Former employees are fearful of bringing actions because they believe their former employers might damage their future endeavors through negative references and/or other means. Class actions provide class members who are not named -6- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in the complaint With a type 0f anonymity that allows for the Vindication of their rights While affording them privacy protections. GENERAL ALLEGATIONS 26. At all relevant times mentioned herein, Defendants employed Plaintiff and other California residents as non-exempt employees 0r employees paid in Whole 0r in part 0n a commission or piece rate basis throughout California at Defendants’ California business locati0n(s). 27. Defendants continue to employ non-exempt employees or employees paid in whole 0r in part on a commission 0r piece rate basis within California. 28. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, Defendants were advised by skilled lawyers, employees, and other professionals who were knowledgeable about California’s wage and hour laws, employment and personnel practices, and the requirements 0f California law. 29. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that Plaintiff and Class Members were entitled to receive wages for all time worked (including minimum wages and overtime wages) and that they were not receiving all wages earned for work that was required t0 be performed. In Violation of the Labor Code and IWC Wage Orders, Plaintiff and Class Members were not paid all wages (including minimum wages and overtime wages) for all hours worked, including, but not limited t0, non-productive time, as well as when Defendants required Plaintiff and Class Members t0 work off-the-clock, through meal periods, and during off-duty hours, but failed to compensate Plaintiff and Class Members for these hours. Further Defendants failed t0 properly calculate the overtime rate owed t0 Plaintiff and Class Members due to failure to properly included commissions, bonuses, and/or piece rate. 30. Plaintiff is informed and believes, and thereon alleges, that Defendants knew 0r should have known that Plaintiff and Class Members were entitled to receive all required meal periods or payment of one (1) additional hour of pay at Plaintiff’s and Class Members’ regular rate of pay When they did not receive a timely, uninterrupted meal period. In Violation of the -7- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Labor Code and IWC Wage Orders, Plaintiff and Class Members did not receive all meal periods or payment of one (1) additional hour of pay at Plaintiff’s and Class Members” regular rate 0f pay when they did not receive a timely, uninterrupted meal period. 31. Plaintiff is informed and believes, and thereon alleges, that Defendants knew 0r should have known that Plaintiff and Class Members were entitled t0 receive all rest breaks 0r payment 0f one (1) additional hour of pay at Plaintiff’s and Class Members’ regular rate 0f pay When a rest break was late, missed, 0r interrupted. In Violation 0f the Labor Code and IWC Wage Orders, Plaintiff and Class Members did not receive all rest breaks or payment 0f one (1) additional hour of pay at Plaintiff’s and Class Members’ regular rate 0f pay when a rest break was missed, late, or interrupted. 32. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known they had a duty to separately compensate Plaintiff and Class Members who were commission 0r piece-rate workers for time spent during rest breaks, When rest breaks were taken. In Violation of the Labor Code, Defendants did not pay commission 0r piece-rate workers for time spent during rest breaks, when rest breaks were taken. 33. Plaintiff is informed and believes, and thereon alleges, that Defendants knew 0r should have known that Plaintiff and Class Members were entitled to reimbursement and/or indemnification for all necessary business expenditures 0r losses as a direct consequence 0f the discharge of their duties, or of their obedience t0 the directions 0f Defendants. In Violation of the Labor Code and IWC Wage Orders, Plaintiff and Class Members incurred necessary business expenses 0r losses, but were not reimbursed nor indemnified 0f such expenses 0r losses that were incurred as a direct consequence of the discharge 0f their duties, or of their obedience t0 the directions of Defendants. 34. Plaintiff is informed and believes, and thereon alleges, that Defendants knew 0r should have known that Plaintiff and Class Members were entitled t0 receive itemized wage statements that accurately showed the following information pursuant to the Labor Code: (1) gross wages earned; (2) total hours worked by the employee; (3) the number 0f piece-rate units earned and any applicable piece rate if the employee is paid 0n a piece-rate basis; (4) all -8- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deductions, provided that all deductions made 0n written orders 0f the employee may be aggregated and shown as one item; (5) net wages earned; (6) the inclusive dates 0f the period for which the employee is paid; (7) the name 0f the employee and only the last four digits of his 0r her social security number or an employee identification number other than a social security number; (8) the name and address 0f the legal entity that is the employer; and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. In Violation 0f the Labor Code, Plaintiff and Class Members were not provided With accurate itemized wage statements. 35. Defendants knew or should have known that the Waiting Time Subclass was entitled t0 timely payment 0f wages due upon separation of employment. In Violation 0f the Labor Code, the Waiting Time Subclass did not receive payment 0f all wages within the permissible time periods. 36. Plaintiff is informed and believes, and thereon alleges, that Defendants knew 0r should have known they had a duty to compensate Plaintiff and Class Members, and Defendants had the financial ability t0 pay such compensation but willfully, knowingly, and intentionally failed t0 d0 so in order to increase Defendants’ profits. 37. Therefore, Plaintiff brings this lawsuit seeking monetary and injunctive relief against Defendants 0n Plaintiff’s own behalf and on behalf of all Class Members t0 recover, among other things, unpaid wages (including minimum wages and overtime wages), unpaid meal period premium payments, unpaid rest period premium payments, un-reimbursed business expenditures, interest, attorneys’ fees, penalties, costs, and expenses. FIRST CAUSE OF ACTION FAILURE TO PAY MINIMUM WAGES (Violation of Labor Code §§ 223, 1182. 12, 1194, 1194.2, 1197; Violation ofIWC Wage Order) 38. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. /// /// -9- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39. Labor Code §§ 1194 and 1197 provide that the minimum wage for employees fixed by the IWC is the minimum wage t0 be paid to employees, and the payment of a lesser wage than the minimum so fixed is unlawful. 40. Plaintiff and Class Members were employees entitled to the protections of Labor Code §§ 1194 and 1197. 41. During the relevant time period, Defendants failed t0 pay Plaintiff and Class Members all wages owed When Defendants did not pay for all hours worked, including, but not limited to, hours spent working off-the-clock, among others. 42. During the relevant time period, Defendants failed to pay at least minimum wage t0 Plaintiff and Class Members for all hours worked pursuant t0 Labor Code §§ 1194 and 1197. 43. Defendants’ failure to pay Plaintiff and Class Members the required minimum wage violates Labor Code §§ 1194 and 1197. Pursuant to these sections, Plaintiff and Class Members are entitled t0 recover the unpaid balance of their minimum wage compensation as well as interest, costs, and attorneys’ fees. 44. Pursuant t0 Labor Code § 1194.2, Plaintiff and Class Members are entitled to recover liquidated damages in an amount equal t0 the wages unlawfully unpaid and the accrued interest thereon. SECOND CAUSE OF ACTION FAILURE TO PAY OVERTIME (Violation 0f Labor Code §§ 223, 5 10, 1194, and 1198; Violation 0fIWC Wage Order) 45. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 46. Labor Code § 1198 and the applicable IWC Wage Order provide that it is unlawful t0 employ persons without compensating them at a rate of pay either one and one-half (11/2) 0r two (2) times the person’s regular rate 0f pay, depending on the number of hours worked by the person 0n a daily 0r weekly basis. 47. Specifically, the applicable IWC Wage Orders provide that Defendants are and were required t0 pay overtime compensation t0 Plaintiff and Class Members at the rate of one -10- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and one-half times (11/2) their regular rate 0f pay When working and for all hours worked in excess of eight (8) hours in a day 0r more than forty (40) hours in a workweek and for the first eight (8) hours 0fwork 0n the seventh day 0fwork in a workweek. 48. The applicable IWC Wage Orders further provide that Defendants are and were required t0 pay overtime compensation to Plaintiff and Class Members at a rate 0f two times their regular rate 0f pay when working and for all hours worked in excess 0f twelve (12) hours in a day 0r in excess 0f eight (8) hours on the seventh day 0fwork in a workweek. 49. California Labor Code § 510 codifies the right t0 overtime compensation at one and one-half (1 1/2) times the regular hourly rate for hours worked in excess of eight (8) hours in a day 0r forty (40) hours in a week and for the first eight (8) hours worked 0n the seventh consecutive day of work, and overtime compensation at twice the regular hourly rate for hours worked in excess of twelve (12) hours in a day 0r in excess 0f eight (8) hours in a day 0n the seventh day ofwork in a workweek. 50. Labor Code § 510 and the applicable IWC Wage Orders provide that employment of more than six days in a workweek is only permissible if the employer pays proper overtime compensation as set forth herein. 51. Plaintiff and Class Members were employees entitled t0 the protections 0f California Labor Code §§ 5 10 and 1194. 52. During the relevant time period, Defendants required Plaintiff and Class Members t0 work in excess 0f eight (8) hours in a day, forty (40) hours in a week, and/or 0n a seventh consecutive day of work, entitling them to overtime wages. 53. During the relevant time period, Defendants failed t0 pay Plaintiff and Class Members overtime wages for all overtime hours worked When Defendants failed to pay for time spent working off-the-clock, and during off-duty hours without being compensated for these hours. To the extent these hours qualify for the payment 0f overtime wages, Plaintiff and Class Members were not paid proper overtime wages. When Defendants paid overtime wages, they were sometimes miscalculated because, among other reasons, Defendants did not include all non-discretionary pay in the calculation. -11- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 54. In Violation 0f California law, Defendants knowingly and Willfillly refused to perform their obligations and compensate Plaintiff and Class Members for all wages earned and all hours worked. 55. Defendants’ failure to pay Plaintiff and Class Members the unpaid balance of overtime compensation, as required by California law, violates the provisions 0f Labor Code §§ 510 and 1198, and is therefore unlawful. 56. Pursuant to Labor Code § 1194, Plaintiff and Class Members are entitled to recover their unpaid overtime and double time compensation as well as interest, costs, and attorneys’ fees. THIRD CAUSE OF ACTION FAILURE TO PROVIDE MEAL PERIODS (Violation 0f Labor Code §§ 226.7 and 5 12; Violation ofIWC Wage Order § 11) 57. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 58. Labor Code § 226.7 provides that no employer shall require an employee to work during any meal period mandated by the IWC Wage Orders. 59. Section 11 0f the applicable IWC Wage Order states, “[n]0 employer shall employ any person for a work period of more than five (5) hours without a meal period 0f not less than 30 minutes, except that When a work period 0f not more than six (6) hours Will complete the day’s work the meal period may be waived by mutual consent 0f the employer and the employee.” 60. Labor Code § 5 12(a) provides that an employer may not require, cause, 0r permit an employee t0 work for a period 0f more than five (5) hours per day Without providing the employee With an uninterrupted meal period of not less than thirty (30) minutes, except that if the total work period per day 0f the employee is not more than six (6) hours, the meal period may be waived by mutual consent of both the employer and the employee. 61. Labor Code § 5 12(3) also provides that an employer may not employ an employee for a work period of more than ten (10) hours per day Without providing the employee With a -12- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 second meal period of not less than thirty (30) minutes, except that if the total hours worked is n0 more than twelve (12) hours, the second meal period may be waived by mutual consent 0f the employer and the employee only if the first meal period was not waived. 62. During the relevant time period, Plaintiff and Class Members did not receive compliant meal periods for working more than five (5) and ten (10) hours per day because their meal periods were missed, late, short, interrupted, and/or they were not permitted t0 take a second meal period. 63. Labor Code § 226.7(b) and section 11 0f the applicable IWC Wage Order require an employer to pay an employee one (1) additional hour of pay at the employee’s regular rate of compensation for each work day that a compliant meal period is not provided. 64. At all relevant times, Defendants failed to pay Plaintiff and Class Members meal period premiums for missed, late, and/or short meal periods pursuant t0 Labor Code § 226.7(b) and section 11 0f the applicable IWC Wage Order. 65. As a result of Defendants’ failure to pay Plaintiff and Class Members an additional hour 0f pay for each day a compliant meal period was not provided, Plaintiff and Class Members suffered and continue t0 suffer a loss 0f wages and compensation. FOURTH CAUSE OF ACTION FAILURE TO PERMIT REST BREAKS (Violation 0f Labor Code §§ 226.7; Violation 0fIWC Wage Order § 12) 66. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 67. Labor Code § 226.7(a) provides that n0 employer shall require an employee t0 work during any rest period mandated by the IWC Wage Orders. 68. Section 12 of the applicable IWC Wage Order states “[e]very employer shall authorize and permit all employees t0 take rest periods, Which insofar as practicable shall be in the middle 0f each work period[,]” and the “[a]uth0rized rest period time shall be based 0n the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours 0r major fraction thereof[,]” unless the total daily work time is less than three and one-half (3 1/2) hours. -13- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 69. During the relevant time period, Plaintiff and Class Members did not receive a ten (10) minute rest period for every four (4) hours or major fraction thereof worked, including working in excess of ten (10) hours in a day, because they were required t0 work through their rest periods and/or were not authorized t0 take their rest periods. 70. Labor Code § 226.7(b) and section 12 0f the applicable IWC Wage Order requires an employer to pay an employee one (1) additional hour of pay at the employee’s regular rate of compensation for each work day that a compliant rest period is not provided. 71. At all relevant times, Defendants failed to pay Plaintiff and Class Members rest period premiums for missed, late, and/or interrupted rest periods pursuant to Labor Code § 226.7(b) and section 12 0f the applicable IWC Wage Order. 72. As a result of Defendants’ failure to pay Plaintiff and Class Members an additional hour of pay for each day a compliant rest period was not provided, Plaintiff and Class Members suffered and continue t0 suffer a loss of wages and compensation. FIFTH CAUSE OF ACTION FAILURE TO PAY ALL WAGES TO COMISSION OR PIECE-RATE WORKERS FOR REST BREAKS (Violation 0f Labor Code § 226.2; Violation 0fIWC Wage Order) 73. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 74. Labor Code § 226.2 requires employees who are paid 0n a piece-rate basis t0 be compensated for rest and recovery periods and other nonproductive time separate from any piece-rate compensation. 75. Labor Code § 226.2(a) provides that employees compensated 0n a piece-rate basis shall be compensated for rest and recovery periods, and other nonproductive time separate from any piece-rate compensation. Employees shall be compensated at a regular hourly rate that is n0 less than the higher of: (a) An average hourly rate determined by dividing the total compensation for the workweek, exclusive of compensation for rest and recovery periods and any -14- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 premium compensation for overtime, by the total hours worked during the workweek, exclusive 0f rest and recovery periods. (b) The applicable minimum wage. 76. During the relevant time period, Plaintiff and Class Members Who were paid on a commission or piece-rate basis were not compensated for rest and recovery periods and other nonproductive time separate from any commission 0r piece-rate compensation. 77. At all relevant times, Defendants knowingly and intentionally failed to comply With Labor Code § 226.2 denying compensated rest and recovery periods to employees paid 0n a commission or piece-rate basis. 78. As a result 0f Defendants’ failure to pay Plaintiff and Class Members compensated rest and recovery periods, Plaintiff and Class Members suffered and continue to suffer a loss 0fwages and compensation. SIXTH CAUSE OF ACTION FAILURE TO REIMBURSE BUSINESS EXPENSES (Violation 0f Labor Code §§ 2800, 2802) 79. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 80. Labor Code § 2800 states that “[a]n employer shall in all cases indemnify his employee for losses caused by the employer’s want of ordinary care.” 81. Labor Code § 2802(a) states that “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence 0f the discharge 0f his 0r her duties, 0r 0f his 0r her obedience t0 the directions of the employer . . . .” 82. Labor Code § 2802(b) states that “[a]11 awards made by a court . . . for reimbursement 0f necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on Which the employee incurred the necessary expenditure 0r loss.” -15- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 83. Labor Code § 2802(0) states that “[f]or purposes 0f this section, the term “necessary expenditures 0r losses” shall include all reasonable costs, including, but not limited t0, attorney’s fees incurred by the employee enforcing the rights granted by this section.” 84. During the relevant time period, Plaintiff and Class Members incurred necessary business-related costs that were not fully reimbursed by Defendants, including, but not limited t0, cell phone and personal car use required for work. 85. In Violation of Labor Code §§ 2800 and 2802, Defendants failed t0 reimburse 0r indemnify Plaintiff and Class Members for their expenses due t0 Defendants’ knowing and intentional failure t0 reimburse necessary business expenditures in connection With Plaintiffs and Class Members’ work and job duties. 86. As a direct result, Plaintiff and Class Members have suffered and continue t0 suffer losses, and therefore seek complete reimbursement and indemnification of necessary business expenditures 0r losses, interest thereon at the required rate, and all reasonable costs in enforcing the rights under Labor Code § 2802, including, but not limited to attorneys’ fees. SEVENTH CAUSE OF ACTION FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS (Violation 0f Labor Code § 226) 87. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 88. Labor Code §226(a) requires Defendants t0 provide each employee With an accurate wage statement in writing showing nine pieces 0f information, including, the following: (1) gross wages earned, (2) total hours worked by the employee, (3) the number 0f piece-rate units earned and any applicable piece rate if the employee is paid 0n a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates 0f the period for Which the employee is paid, (7) the name 0f the employee and the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly -16- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rates in effect during the pay period and the corresponding number 0f hours worked at each hourly rate by the employee. 89. During the relevant time period, Defendants have knowingly and intentionally failed to comply With Labor Code § 226(a) 0n wage statements that were provided t0 Plaintiff and Class Members. The deficiencies include, among other things, the failure t0 correctly state the gross and net wages earned, piece rate pay and number 0f pieces, total hours worked, all applicable hourly rates in effect, and the number 0f hours worked at each hourly rate by Plaintiff and Class Members. 90. As a result of Defendants’ knowing and intentional failure to comply with Labor Code § 226(a), Plaintiff and Class Members have suffered injury and damage t0 their statutorily- protected rights. Specifically, Plaintiff and Class Members are deemed t0 suffer an injury pursuant to Labor Code § 226(6) where, as here, Defendants intentionally violated Labor Code § 226(a). Plaintiff and Class Members were denied both their legal right t0 receive, and their protected interest in receiving, accurate itemized wage statements under Labor Code § 226(a). In addition, because Defendants failed t0 provide the accurate rates 0f pay 0n wage statements, Defendants prevented Plaintiff and Class Members from determining if all hours worked were paid at the appropriate rate and the extent of the underpayment. Plaintiff had t0 file this lawsuit in order t0 analyze the extent of the underpayment, thereby causing Plaintiff t0 incur expenses and 10st time. Plaintiff would not have had t0 engage in these efforts and incur these costs had Defendants provided the accurate hours worked, wages earned, and rates 0f pay. This has also delayed Plaintiff” s ability t0 demand and recover the underpayment of wages from Defendants. 91. Plaintiff and Class Members are entitled t0 recover from Defendants the greater 0f all actual damages caused by Defendants’ failure to comply with Labor Code § 226(a) or fifty dollars ($50.00) for the initial pay period in Which a Violation occurred and one hundred dollars ($100.00) per employee for each Violation in subsequent pay periods in an amount not exceeding four thousand dollars ($4,000.00) per employee, plus attomeys’ fees and costs. 92. Defendants’ Violations 0f California Labor Code § 226(a) prevented Plaintiff and Class Members from knowing, understanding, and disputing the wages paid to them and resulted -17- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in an unjustified economic enrichment to Defendants. As a result of Defendants’ knowing and intentional failure to comply with California Labor Code § 226(a), Plaintiff and Class Members have suffered an injury, in the exact amount of damages and/or penalties t0 be shown according t0 proof at trial. EIGHTH CAUSE OF ACTION FAILURE TO PAY ALL WAGES DUE UPON SEPARATION OF EMPLOYMENT (Violation 0f Labor Code §§ 201, 202, and 203) 93. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 94. Labor Code §§ 201 and 202 provide that if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately, and that if an employee voluntarily leaves his 0r her employment, his or her wages shall become due and payable not later than seventy-two (72) hours thereafter, unless the employee has given seventy- two (72) hours previous notice of an intention to quit, in which case the employee is entitled to his or her wages at the time 0f quitting. 95. During the relevant time period, Defendants willfully failed to pay the Waiting Time Subclass all their earned wages upon termination, including, but not limited to, proper minimum wage and overtime compensation, meal period premiums, and rest period premiums either at the time of discharge 0r Within seventy-two (72) hours 0f their leaving Defendants’ employ. 96. Defendants’ failure to pay the Waiting Time Subclass all their earned wages at the time of discharge or Within seventy-two (72) hours of their leaving Defendants’ employ is in Violation of Labor Code §§ 201 and 202. 97. Labor Code § 203 provides that if an employer willfully fails t0 pay wages owed immediately upon discharge 0r resignation in accordance With Labor Code §§ 201 and 202, then the wages 0f the employee shall continue as a penalty from the due date at the same rate until paid or until an action is commenced; but the wages shall not continue for more than thirty (30) days. -18- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 98. Pursuant t0 Labor Code § 203, the Waiting Time Subclass is entitled t0 recover from Defendants the statutory penalty, Which is defined as the Waiting Time Subclass members’ regular daily wages at their regular hourly rate of pay for each day they were not paid, up t0 a maximum of thirty (3 0) days. NINTH CAUSE OF ACTION VIOLATION OF BUSINESS AND PROFESSIONS CODE $8 17200, ETSEQ. (Violation of Business and Professions Code §§ 17200, er seq.) 99. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 100. California Business and Professions Code §§ 17200, et seq., prohibits acts 0f unfair competition, which includes any “unlawful, unfair 0r fraudulent business act or practice . . 101. A Violation 0f California Business and Professions Code §§ 17200, et seq., may be predicated 0n a Violation of any state 0r federal law. In the instant case, Defendants’ policies and practices violated state law, causing Plaintiff and Class Members to suffer and continue to suffer injuries-in-fact. 102. Defendants’ policies and practices violated state law in at least the following respects: (a) Failing t0 pay all wages earned (including minimum wage and overtime wages) t0 Plaintiff and Class Members at the proper rate in Violation of Labor Code §§ 226.2, 223, 510, 1182.12, 1194, 1194.2, 1197, and 1198. (b) Failing to provide compliant meal periods Without paying Plaintiff and Class Members premium wages for every day said meal periods were not provided in Violation 0f Labor Code §§ 226.7 and 5 12. (c) Failing to authorize or permit compliant rest breaks Without paying Plaintiff and Class Members premium wages for every day said rest breaks were not authorized or permitted in Violation of Labor Code § 226.7. -19- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (d) Failing t0 pay wages t0 commission 0r piece-rate workers for time spent in rest breaks and/or recovery periods in Violation 0f Labor Code § 226.2. (e) Failing to reimburse Plaintiff and Class Members for necessary business- related expenses in Violation 0f Labor Code §§ 2800 and 2802. (f) Failing to provide Plaintiff and Class Members With accurate itemized wage statements in Violation 0f Labor Code § 226. (g) Failing t0 timely pay all earned wages to the members of the Waiting Time Subclass upon separation 0f employment in Violation 0f Labor Code §§ 201, 202, and 203. 103. As alleged herein, Defendants systematically engaged in unlawful conduct in Violation 0f the California Labor Code and IWC Wage Orders, such as failing t0 pay all wages (minimum and overtime wages), failing t0 provide meal periods and rest breaks or compensation in lieu thereof, failing t0 reimburse necessary business-related costs and expenses, failing t0 furnish accurate wage statements, and failing t0 pay all wages due and owing upon separation of employment in a timely manner t0 the Waiting Time Subclass, all in order t0 decrease their costs of doing business and increase their profits. 104. At all relevant times herein, Defendants held themselves out t0 Plaintiff and Class Members as being knowledgeable concerning the labor and employment laws 0f California. 105. At all times relevant herein, Defendants intentionally avoided paying Plaintiff and Class Members wages and monies, thereby creating for Defendants an artificially lower cost of doing business in order to undercut their competitors and establish and/or gain a greater foothold in the marketplace. 106. By Violating the foregoing statutes and regulations as herein alleged, Defendants’ acts constitute unfair and unlawful business practices under California Business and Professions Code §§ 17200, et seq. 107. As a result 0f the unfair and unlawful business practices 0f Defendants as alleged herein, Plaintiff and Class Members are entitled to injunctive relief, disgorgement, and restitution in an amount to be shown according t0 proof at trial. -20- CLASS ACTION COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 108. Plaintiff seeks to enforce important rights affecting the public interest Within the meaning 0f California Code of Civil Procedure § 1021.5. Defendants’ conduct, as alleged herein, has been and continues t0 be unfair, unlawful, and harmful to Plaintiff, Class Members, and the general public. Based 0n Defendants’ conduct as alleged herein, Plaintiff and Class Members are entitled to an award 0f attorneys’ fees pursuant to California Code 0f Civil Procedure § 1021.5. PRAYER FOR RELIEF On Plaintiff’s own behalf and on behalf 0f all others similarly situated, Plaintiff prays for relief and judgment against Defendants, jointly and severally, as follows: 1. For certification under California Code of Civil Procedure § 382 0f the proposed Class and any other appropriate subclass; 2. For appointment of Jason AmyX_as the class representative; 3. For appointment of Aegis Law Firm, PC, as class counsel for all purposes; 4. For compensatory damages in an amount according t0 proof at trial; 5. For an award of damages in the amount of unpaid compensation including, but not limited to, unpaid wages, unreimbursed expenses, benefits, and penalties; 6. For economic and/or special damages in an amount according to proof at trial; 7. For liquidated damages pursuant to Labor Code § 1194.2; 8. For statutory penalties t0 the extent permitted by law, including those pursuant t0 the Labor Code and IWC Wage Orders; 9. For injunctive relief as provided by the California Labor Code and California Business and Professions Code §§ 17200, et seq.; 10. For restitution as provided by Business and Professions Code §§ 17200, et seq.; 11. For an order requiring Defendants to restore and disgorge all funds t0 each employee acquired by means of any act 0r practice declared by this Court t0 be unlawful, unfair, or fraudulent and, therefore, constituting unfair competition under Business and Professions Code §§ 17200, et seq.; 12. For pre-judgment interest; -2 1 _ CLASS ACTION COMPLAINT OONON \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. For reasonable attomeys’ fees, costs of suit, and interest t0 the extent permitted by law, including, but not limited to, Code of Civil Procedure § 1021.5 and Labor Code §§ 226(e) and 1194; and 14. For such other relief as the Court deems just and proper. Dated: April 2, 2021 AEGIS LAW FIRM, PC Byrfl" Z‘M Jessica L. Campbell Attorneys for Plaintiff Jason Amyx DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial With respect to all issues triable of right by jury. Dated: April 2, 2021 AEGIS LAW FIRM, PC Byr%"Z‘M Jessica L. Campbell Attorneys for Plaintiff Jason Amyx -22- CLASS ACTION COMPLAINT
