Professional Documents
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44. Cal. Lab. Code § 1194 states:
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FIRST AMENDED CLASS ACTION COMPLAINT
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“Notwithstanding any agreement to work for a lesser wage, any employee
1 receiving less than the legal minimum wage or the legal overtime
compensation applicable to the employee is entitled to recover in a civil action
2 the unpaid balance of the full amount of this minimum wage or overtime
compensation, including interest thereon, reasonable attorney's fees, and costs
3 of suit.”
4
45. In addition, Labor Code Section 558 provides:
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(a) Any employer or other person acting on behalf of an employer who
6 violates, or
causes to be violated, a section of this chapter or any provision regulating
7 hours and
days of work in any order of the Industrial Welfare Commission shall be
8 subject to a civil penalty as follows:
9 (1) For any initial violation, fifty dollars ($50) for each underpaid
employee for each pay period for which the employee was underpaid in
10 addition to an amount sufficient to recover underpaid wages.
11 (2) For each subsequent violation, one hundred dollars ($100)
for each underpaid employee for each pay period for which the
12 employee was underpaid in addition to an amount sufficient to
recover underpaid wages.
13
(3) Wages recovered pursuant to this section shall be paid to the
14 affected employee.
15 (b) If upon inspection or investigation the Labor Commissioner
determines that a person had paid or caused to be paid a wage for
16 overtime work in violation of any provision of this chapter, or any
provision regulating hours and days of work in any order of the
17 Industrial Welfare Commission, the Labor Commissioner may issue a
citation. The procedures for issuing, contesting, and enforcing
18 judgments for citations or civil penalties issued by the Labor
Commissioner for a violation of this chapter shall be the same as those
19 set out in Section 1197.1.
20 (c) The civil penalties provided for in this section are in addition to any
other civil or criminal penalty provided by law.
21
22 46. DEFENDANT has intentionally and uniformly failed to pay PLAINTIFF
23 and the other members of the CALIFORNIA LABOR SUBCLASS, who are classified as
24 non-exempt employees, the correct amount of overtime required by law. In fact,
25 DEFENDANT has previously been cited by governmental agencies for similar violations of
26 applicable labor laws. DEFENDANT miscalculates the overtime rate applicable to the
27 overtime hours worked by these employees which hours are documented on their wage
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FIRST AMENDED CLASS ACTION COMPLAINT
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statements and thereby incorrectly pays the members of the CALIFORNIA LABOR
1
SUBCLASS a reduced amount of overtime compensation. This was done in an illegal
2
attempt to avoid payment of overtime wages and other benefits in violation of the Cal. Lab.
3
Code and Industrial Welfare Commission requirements.
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47. No member of the CALIFORNIA LABOR SUBCLASS was or is an
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executive, administrator, professional or computer professional because they all fail to meet
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the requirements established by Order No. 4-2001 for such an exemption. PLAINTIFF, and
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other members of the CALIFORNIA LABOR SUBCLASS, do not fit the definition of an
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exempt executive, administrative, or professional employee because:
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(a) They primary duties necessitated the performance of manual labor, and
10
therefore the Technicians did not work as executives or administrators; and,
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(b) The professional exemption articulated in Wage Order No. 4, section
12
(1)(A)(3)(h) and Labor Code § 515, and the professional exemption articulated in Cal. Lab.
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Code § 515.5, does not apply to PLAINTIFF, or to the other members of the CALIFORNIA
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LABOR SUBCLASS, because they are either computer software employees paid less than
15
the requisite amount set forth in Cal. Lab. § 515.5(a)(4) and under subdivision
16
(1)(A)(3)(h)(iv) of Order No. 4, and/or did not otherwise meet all the applicable
17
requirements to work under the exemption of computer software employee for the reasons
18
set forth above in this Complaint.
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48. During the class period, the PLAINTIFF, and other members of the
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CALIFORNIA LABOR SUBCLASS, worked more that eight (8) hours in a workday,
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and/or more than forty (40) hours in a workweek and also worked on the seventh (7th) day of
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a workweek without compensation. This overtime work is documented on their wage
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statements but was paid incorrectly as herein alleged.
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49. At all relevant times, DEFENDANT systematically and uniformly, as a matter
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of company policy and practice, failed to correctly calculate and pay PLAINTIFF, and other
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CASE No. 30-2008-00097717
members of the CALIFORNIA LABOR SUBCLASS, the required amount of overtime
1
compensation for the hours they have worked in excess of the maximum hours permissible
2
by law as required by Cal. Lab. Code §§ 510 and 1198, even though PLAINTIFF, and the
3
other members of the CALIFORNIA LABOR SUBCLASS, were regularly required to
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work, and did in fact work, overtime hours.
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50. By virtue of DEFENDANT’s unlawful failure to fully pay the required
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compensation to the PLAINTIFF, and the other members of the CALIFORNIA LABOR
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SUBCLASS for the documented overtime hours worked, the PLAINTIFF, and the other
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members of the CALIFORNIA LABOR SUBCLASS, have suffered, and will continue to
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suffer, an economic injury in amounts which are presently unknown to them and which will
10
be ascertained according to proof at trial.
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51. DEFENDANT knew or should have known that PLAINTIFF, and the other
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members of the CALIFORNIA LABOR SUBCLASS, were not paid the correct amount of
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overtime compensation because DEFENDANT’s uniform calculation failed to comply with
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the established legal requirements and regulations concerning the calculation of overtime
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compensation, and therefore, either through intentional malfeasance or gross nonfeasance,
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elected not to fully pay them for their overtime labor as a matter of uniform corporate
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policy, practice and procedure.
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52. Therefore, PLAINTIFF, and the other members of the CALIFORNIA LABOR
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SUBCLASS, request recovery of overtime compensation according to proof, interest,
20
attorney’s fees and cost pursuant to Cal. Lab. Code §1194(a), as well as the assessment of
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any statutory penalties against DEFENDANT, in a sum as provided by the Cal. Lab. Code
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and/or other statutes. Further, as provided by Cal lab. Code § 203, on behalf of employees
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in the CALIFORNIA LABOR SUBCLASS who have terminated their employment, these
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employees are also entitled to thirty days of pay as penalty for not paying all wages due at
25
time of termination and demand an accounting and payment of all wages due, plus interest.
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53. In performing the acts and practices herein alleged in violation of labor laws
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and refusing to provide the requisite overtime compensation, the DEFENDANT acted and
1
continues to act intentionally, oppressively, and maliciously toward the PLAINTIFF, and
2
toward the other members of the CALIFORNIA LABOR SUBCLASS, with a conscious and
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utter disregard of their legal rights, or the consequences to them, and with the despicable
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intent of depriving them of their property and legal rights and otherwise causing them injury
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in order to increase corporate profits at the expense of PLAINTIFF and the members of the
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CALIFORNIA LABOR SUBCLASS.
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THIRD CAUSE OF ACTION
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For Failure to Provide Accurate Itemized Statements
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[Cal. Lab. Code § 226]
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(By PLAINTIFF and the CALIFORNIA LABOR SUBCLASS
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and against All Defendants)
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54. PLAINTIFF, and the other members of the CALIFORNIA LABOR
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SUBCLASS, reallege and incorporate by this reference, as though fully set forth herein,
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paragraphs 1 through 53 of this Complaint. This cause of action is brought on behalf of
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PLAINTIFF and the CALIFORNIA LABOR SUBCLASS.
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55. Cal. Labor Code § 226 provides that an employer must furnish employees
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with
19
an “accurate itemized statement in writing showing:
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(1) gross wages earned,
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(2) total hours worked by the employee, except for any employee whose
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compensation is solely based on a salary and who is exempt from payment of
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overtime under subdivision (a) of Section 515 or any applicable order of the
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Industrial Welfare Commission,
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(3) the number of piecerate units earned and any applicable piece rate if the employee
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is paid on a piece-rate basis,
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(4) all deductions, provided that all deductions made on written orders of the
1
employee may be aggregated and shown as one item,
2
(5) net wages earned,
3
(6) the inclusive dates of the period for which the employee is paid,
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(7) the name of the employee and his or her social security number, except that by
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January 1, 2008, only the last four digits of his or her social security number or an
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employee identification number other than a social security number may be shown on
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the itemized statement,
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(8) the name and address of the legal entity that is the employer, and
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(9) all applicable hourly rates in effect during the pay period and the corresponding
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number of hours worked at each hourly rate by the employee.”
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56. At all times relevant herein, DEFENDANT violated Labor Code § 226, in that
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DEFENDANT failed to properly and accurately itemize the gross wages earned, the net
13
wages earned, and all applicable hourly rates in effect during the pay period and the
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corresponding number of hours worked at each hourly rate by the employee.
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57. DEFENDANT knowingly and intentionally failed to comply with Labor Code
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§ 226, causing damages to PLAINTIFF, and the other members of the CALIFORNIA
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LABOR SUBCLASS. These damages include, but are not limited to, costs expended
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calculating the true hours worked and the amount of employment taxes which were not
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properly paid to state and federal tax authorities. These damages are difficult to estimate.
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Therefore, PLAINTIFF, and the other members of the CALIFORNIA LABOR SUBCLASS
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may recover liquidated damages of $50.00 for the initial pay period in which the violation
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occurred, and $100.00 for each violation in subsequent pay period pursuant to Labor Code §
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226, in an amount according to proof at the time of trial (but in no event more than
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$4,000.00 for PLAINTIFF and each respective member of the CALIFORNIA LABOR
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SUBCLASS herein) plus reasonable attorney’s fees and costs pursuant to Labor Code §
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CASE No. 30-2008-00097717
226(g).
1
2
FOURTH CAUSE OF ACTION
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For Failure to Provide Indemnification of Business Expenses
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[Cal. Lab. Code § 2802]
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(By PLAINTIFF and the CALIFORNIA CLASS and against All Defendants)
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58. PLAINTIFF, and the other members of the CALIFORNIA CLASS,
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reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1
8
through 57 of this Complaint. This cause of action is brought on behalf of PLAINTIFF and
9
the CALIFORNIA CLASS.
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59. Pursuant to Cal. Labor Code § 2802, DEFENDANTS are required to
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reimburse PLAINTIFFS and other members of the CALIFORNIA CLASS for the expenses
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incurred by them in the performance of their job duties, including but not limited to
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expenses incurred by the use of their vehicles, mileage, cell phone usage, equipment
14
purchases, and telephone usage resulting from the performance of their job duties, at a
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reasonable rate.
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60. At all times relevant herein, DEFENDANT violated Labor Code § 2802, in
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that during the last four years, PLAINTIFFS and the other members of the CALIFORNIA
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CLASS have been required to personally incur and pay for these expenses in the discharge
19
of their employment duties all without reimbursement from the DEFENDANT.
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DEFENDANT’s company policy and practice was not to pay employees such
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reimbursement for business expenses and instead to even deduct expenses from employee
22
wage sums in violation of Cal. Labor Code §221 and the regulations of the Industrial
23
Welfare Commission.
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61. As a proximate result of the aforementioned violations, PLAINTIFF, and the
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other members of the CALIFORNIA CLASS, have been damaged in an amount according
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to proof at trial. Pursuant to Labor Code § 2802, PLAINTIFF and the other members of the
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CALIFORNIA CLASS are entitled to recover the full amount of expenses they incurred in
1
the course of the job duties, plus reasonable attorneys’ fees, costs of suit and interest thereon
2
from the date the expense was incurred.
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FIFTH CAUSE OF ACTION
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Labor Code Private Attorneys General Act
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[Cal. Labor Code § 2698]
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(By PLAINTIFF and the CALIFORNIA CLASS and against All Defendants)
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62. PLAINTIFF, and the other members of the CALIFORNIA CLASS,
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reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1
10
through 61 of this Complaint. This cause of action is brought on behalf of PLAINTIFF and
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the CALIFORNIA CLASS.
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63. On September 16, 2008, PLAINTIFF gave written notice by certified mail to
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the Labor and Workforce Development Agency (the “LWDA”) and the employer of the
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specific provisions of this code alleged to have been violated as required by Labor Code §
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2699.3. On or about October 24, 2008, PLAINTIFF received notice from the LWDA that
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the LWDA does not intend to investigate PLAINTIFF’s allegations. A true and correct
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copy of this LWDA letter is attached hereto as Exhibit #1. As a result, pursuant to Section
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2699.3, PLAINTIFF may now commence a civil action pursuant to Section 2699.
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64. The policies, acts and practices heretofore described were and are an unlawful
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business act or practice because DEFENDANTS’ failure to pay wages, failure to provide
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rest and meal period breaks, failure to pay wages and compensation for work without rest
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and meal period breaks and failure to provide accurate wage statements and maintain
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accurate time records for PLAINTIFF and the other members of the CLASS violates
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applicable Labor Code sections and gives rise to statutory penalties as a result of such
25
conduct, including but not limited to penalties as provided by Labor Code §§ 221, 226,
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226.7, 450, 558, 1174, 1194, 2802, applicable Industrial Welfare Commission Wage Orders.
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PLAINTIFF, as an aggrieved employee, hereby seeks recovery of civil penalties as
1
prescribed by the Labor Code Private Attorney General Act of 2004 on behalf of themselves
2
and other current and former employees of DEFENDANTS which comprise the CLASS,
3
against whom one or more of the violations of the Labor Code was committed. In addition,
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PLAINTIFF, as an aggrieved employee, hereby seeks recovery of civil penalties as
5
prescribed by the Labor Code Private Attorney General Act of 2004 on behalf of the State of
6
California and/or the LWDA, to the fullest extent available under the law.
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PRAYER
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WHEREFOR, PLAINTIFF prays for judgment against each Defendant, jointly and
10
severally, as follows:
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A) Compensatory damages, according to proof at trial due PLAINTIFF and the
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other members of the CALIFORNIA LABOR SUBCLASS, during the
13
applicable CLASS PERIOD plus interest thereon at the statutory rate;
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B) Restitution, according to proof at trial, due PLAINTIFF and the other
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members of the CALIFORNIA LABOR SUBCLASS, during the applicable
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CLASS PERIOD plus interest thereon at the statutory rate;
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C) On behalf of the CALIFORNIA CLASS, declaratory, injunctive and other
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equitable relief, pursuant to Cal. Bus. & Prof. Code § 17203, as may be
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necessary to prevent and remedy the conduct held to constitute unfair
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competition.
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D) On behalf of the CALIFORNIA CLASS, an order temporarily, preliminarily
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and permanently enjoining and restraining DEFENDANT from engaging in
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practices which violate the UCL and similar unlawful conduct as set forth
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herein;
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E) An order requiring DEFENDANT to provide an accounting of all hours
26
worked, all wages, and all sums unlawfully withheld from compensation due
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