violated California Labor Code 510 by failing to pay overtime Compensation to California Subclasses members who worked in excess of forty (40) hours per week/ and or eight (8) hours per day; c. Whether Defendant violated California Labor Code 510 by failing to pay overtime compensation to California Subclasses members based on an accurate overtime wage that includes their regular rate of pay; d. Whether Defendant violated California Labor Code 1174 by failing to keep accurate records of employees’ work hours for the California Break and Recordkeeping Subclass; e. Whether Defendant violated California Labor Code Sections 201 through 203 by failing to pay overtime wages due and owing to members of both the California Subclasses at the time that their respective employment relationship ended; f. Whether Plaintiff and members of California Subclasses are entitled to “waiting time” penalties pursuant to California Labor Code Section 203; g. Whether Defendant violated California Labor Code Section 510 failing to pay accurate wages to California Subclasses members when employees worked during their meal periods; h. Whether Defendant violated California Labor Code Section 226 by failing to provide semi-monthly itemized statements to California Case 2:16-cv-05158-R-SS Document 24-2 Filed 11/29/16 Page 21 of 44 Page ID #:306 - 21 - FIRST [Proposed] SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF AND RESTITUTION 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 Subclasses members of total hours worked by each and all applicable hourly rates in effect during the relevant pay period(s); i. Whether Defendant violated the meal and rest break provisions of Labor Code Sections 226.7 and 512 by failing to afford Plaintiff and the California Subclass members proper meal and rest periods; j. Whether Defendant violated California Business & Professions Code sections 17200 and 172

(b) In addition to the exceptions specified in subdivision (a), the Chief of the Division of Labor Standards Enforcement may, whenin his or her judgment hardship will result, exempt any employer or employees from the provisions of Sections 551 and 552. Additionally, part-time employees whoare exempt under Labor Code §556 from the requirements ofLabor Code §§551 and 552,are also eligible for 19 overtime under §510. Taken together, Labor Code §§554 and 556 exempt a large number of employees, and as such,it is not at all surprising that the State of California would enact laws to protect those employees from overwork as well.

If this is true, Respondent is admitting that the more restrictive California approach 1s the appropriate one. 18 It is non-controversial that a fluctuating workweek calculation under federal provisions, which call for overtime only for hours worked over 40 in a week, should be inapplicable in favor of those addressing overtime for hours worked over 8 in a day, as under California Labor Code § 510. The importance of the Skyline decision here is that in light of the tmportant differences between the state and federal approach, “we must assume that the [WCintended to imposea different standard for determining overtime than that allowed under the FLSA...” (Skyline, at 248).

As to the California Labor Code §§ 510 and 1198 claims (Unpaid Overtime): 1. 5. For generat unpaid wagesat overtime wagerates and such general and special damages as may be appropriate; For pre-judgmentinterest on any unpaid overtime compensation from the date such amounts were due; For reasonable attorney’s fees and for costs of suit incurred herein pursuantto California Labor Code § 1194{a); For civil penalties pursuant to California Labor Code § 2699(f) and (g) in the amount of $100 dollars for each violation per pay period for theinitial violation and $200 for each aggrieved employee perpay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code §§ 510, 1194 and 1198; and For such otherand furtherrelief as the Arbitrator may deem equitable and appropriate. As to the California Labor Code §§ 201 and 202 claims (Non-payment of Wages Upon Termination): w Forall actual, consequential and incidental losses and damages, according to proof; For statutory penalties pursuant to California Labor Code § 203 for Plaintiff and all other class members whohaveleft Defendants’ employ; For costs of suit incurred herein; Forcivil penalties pursuant to California Labor Code § 2699(f} and (g) in the amount of $100 dollars for each violation perpayperiod for theinitial violation and $200 for each aggrieved employee per pay period for each subsequentviolation, plus costs and attorneys’ fees for violation of California Labor Code §§ 201, 202 and 203; and For such otherandfurtherrelief as the Arbitrator may deem equitable and appropriate.

; accord Advanced–Tech Sec. Servs., Inc. v. Superior Court, 163 Cal. App. 4th 700, 707, 77 (2008) (holding that California courts look to U.S. Department of Labor regulations interpreting the “regular rate” of pay under the FLSA to interpret that term as used in California Labor Code § 510); Huntington Memorial Hosp. v. Superior Court, 131 Cal. App. 4th 893, 902-03 (2005) (summarizing California administrative position that failure of California Industrial Welfare Commission to define the regular rate indicates an intent that California adhere to the FLSA definition; applying section 207 to determine regular rate under California law); Alonzo v. Maximus, Inc., 832 F. Supp. 2d 1122, 1129 (C.D. Cal. 2011) (finding federal law defining and interpreting “regular rate” under the FLSA governs bonus/overtime claim); Vazquez v. TWC Admin.

(quotations and citations omitted). First, Plaintiff’s letter is short on factual allegations and does not state all the legal theories in support of Plaintiff’s overtime claim, instead simply stating: Mr. Garcia is a former employee of [Wal-Mart]. During his employment, [Wal-Mart] has failed to pay Mr. Garcia and other aggrieved employees the proper amount of straight time and overtime wages. [Wal-Mart] has violated various sections of the Labor Code, including §§ 510 and 1194, by failing to provide Mr. Garcia and all other aggrieved employees overtime compensation for work over 8 hours in a day and/or over 40 hours in a week, without a valid exemption. Furthermore, Mr. Garcia alleges that [Wal- Mart] failed to abide by the Wage Order, as it fails to pay overtime premiums on short shifts when its Distribution Center employees work over 8 hours but less than 10 hours in a shift.

As a result, the court held that “[t]he issue here is not how overtime rates are calculated but whether the Case 2:11-cv-09686-R-FFM Document 9 Filed 02/06/12 Page 20 of 23 Page ID #:317 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 17 2159535v1/012862 result of the calculation complies with California law, i.e., whether Gregory is paid at premium wage rates for ‘[a]ny work in excess of eight hours in one workday and any work in excess of 40 hours in any one work week,’ as required by California law.” Gregory, 317 F.3d at 1053 (quoting Cal. Labor Code § 510) (citation omitted) (emphases in original). Here, by contrast, there are ambiguous terms in the CBA that must be interpreted first before a court could resolve whether Plaintiff’s claims are exempted from and not cognizable under California law.

(OB, 13-21; see Murphy, 40 Cal.4th at 1104 (“If denied twopaid rest periods in an eight-hour workday, an employeeessentially performs 20 minutes of ‘free’ work”) (emphasis added).) Indeed, in insisting that “the legal overtime compensation” exclusively references the section 510 rate (IAB, 16, 34-3 7),'' and arguing that no authority exists for interpreting that phrase to include meal and rest pay, Immoos completely ignores Murphy. (IAB,37; see, supra, 4, 7-8.)

For example, the typical wage and hourviolation alleged by employees seeking redress pursuant to the wage and hour lawsare based ona statutory or Wage Order requirement applicable to “employers.” (See e.g. Cal. Lab. Code §§ 226, 510, 512.) Those 38 4814-7609-4277.

The latter three entities are indirect subsidiaries of FMCNA. 3. The San Diego Action asserts class claims on behalf of all California non-exempt employees and former employees of Fresenius-affiliated dialysis clinics and vascular centers, allegedly from October 12, 2008 through the present, for, inter alia, (1) failure to pay all wages and overtime wages (Cal. Labor Code §§ 510, 1194, 1198); (2) failure to provide meal periods (Cal. Labor Code §§ 226.7, 512); (3) failure to pay accurate itemized wage statements (Cal. Labor Code §§ 226, 1174, 1175); (5) failure to pay all wages due upon ending of employment (Cal. Case 2:17-cv-04341-JVS-E Document 13-2 Filed 06/19/17 Page 2 of 4 Page ID #:164 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 78372537_1 2 2:17-CV-04341 JVS (Ex) DECLARATION OF DAVID H. STERN IN SUPPORT OF MOTION TO DISMISS OR STAY Labor Code §§ 201-203); and (6) unfair business practices (Cal. Bus. & Prof. Code §17200). 4. Fresenius challenged the pleadings in the San Diego Action, demurring and moving to strike portions of the operative complaints in 2014. The court in the San Diego Action ruled on these motions in 2014.