Opinion
Case No. 09-07395 MAN.
December 1, 2009
For the Defendants: Each Defendant hereby appears, waives any defense herein, consents to the entry of this Judgment, and waives notice by the Clerk of Court: For: J.I. Gandara Transport, Inc., By: Authorized Agent, Its: President, J. Isabel Gandara.
For the plaintiff: CAROL DEDEO, Deputy Solicitor for National Operations, LAWRENCE BREWSTER, Regional Solicitor, DANIEL J. CHASEK, Associate Regional Solicitor, Attorneys for the Plaintiff.
CONSENT JUDGMENT
Plaintiff Hilda L. Solis, Secretary of Labor, United States Department of Labor ("Secretary"), and defendants J.I. Gandara Transport, Inc., a California corporation, and J. Isabel Gandara, individually and as managing agent of the corporate defendant (collectively, "defendants"), have agreed to resolve the matters in controversy in this civil action and consent to the entry of this Consent Judgment in accordance herewith:
A. The Secretary has filed a Complaint alleging that Defendants violated provisions of Sections 15(a)(2) and 15(a)(5) of the Fair Labor Standards Act of 1938, as amended ("FLSA"), 29 U.S.C. §§ 215(a)(2) and 215(a)(5).
B. Defendants acknowledge receipt of a copy of the Secretary's Complaint.
C. Defendants waive issuance and service of process and waive answer and any defenses to the Secretary's Complaint.
D. The Secretary and Defendants waive Findings of Fact and Conclusions of Law, and agree to the entry of this Consent Judgment in settlement of this action, without further contest.
E. Defendants admit that the Court has jurisdiction over the parties and subject matter of this civil action and that venue lies in the Central District of California.
It is therefore, upon motion of the attorneys for the Secretary, and for cause shown,
ORDERED, ADJUDGED, AND DECREED that the Defendants, their officers, agents, servants, and employees and those persons in active concert or participation with them who receive actual notice of this order (by personal service or otherwise) be, and they hereby are, permanently enjoined and restrained from violating the provisions of Sections 15(a)(2) and 15(a)(5) of the FLSA, 29 U.S.C. §§ 215(a)(2) and 215(a)(5), in any of the following manners:
1. Defendants shall not, contrary to FLSA § 7, 29 U.S.C. § 207, employ any employee who in any workweek is engaged in commerce, within the meaning of the FLSA, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, within the meaning of FLSA § 3(s), for any workweek longer than 40 hours unless such employee receives compensation for his or her employment in excess of 40 hours in such workweek at a rate not less than one and one-half times the regular rate at which he or she is employed.
2. Defendants shall not fail to make, keep, make available to authorized agents of the Secretary for inspection, transcription, and/or copying, upon their demand for such access, and preserve records of employees and of the wages, hours, and other conditions and practices of employment maintained, as prescribed by regulations issued, and from time to time amended, pursuant to FLSA §§ 11(c) and 15(a)(5), 29 U.S.C. §§ 211(c) and 215(a)(5) and the implementing regulations found in Title 29, Code of Federal Regulations, Part 516.
3. Defendants, jointly and severally, shall not continue to withhold the payment of $84,474.25 in overtime pay hereby found to be due under the FLSA to 33 employees, as a result of their employment by Defendants during the period of January 24, 2006 through January 23, 2009 as set forth in the attached Exhibit 1, showing the name of each employee and listing on the same line the gross backwage amount due the employee and the period covered by the Consent Judgment.
4. Defendants shall pay the backwages, plus 3% annual interest on the outstanding balance starting from November 10, 2009, when Defendants shall pay an initial payment of $23,789.67, until the backwages required under this Judgment are paid in full, as set forth in paragraph 5 below, and as set forth in attached Exhibit 2. Each payment shall be made by a certified or cashier's check or money order with the firm name and "Net BWs + Interest" written on each, payable to the order of the "Wage Hour Div., Labor," and delivered to the U.S. Department of Labor, Wage and Hour Division, 915 Wilshire Blvd. Suite 960, Los Angeles, CA 90017, on or before the date the payment is due.
5. Defendants shall deliver to the Wage and Hour Division, United States Department of Labor, 915 Wilshire Blvd. Suite 960, Los Angeles, CA, 90017, the following:
a. On or before November 10, 2009, a schedule in duplicate bearing the firm name (that is highlighted in the caption of this Judgment), employer identification number(s), address, and phone number of the defendants and showing the name, last known (home) address, social security number, gross backwage amount for each person listed in the attached Exhibit 1, the amounts of legal deductions for social security and withholding taxes thereon (that the defendants shall pay directly to the federal and state agencies entitled thereto), and the resulting net backwage amounts for each person listed in the attached Exhibit 1.
b. On or before November 10, 2009, and again on November 15, 2009 or before the 15th day of every month thereafter until the backwage recovery provisions of this Judgment have been satisfied in full for each person who is listed in the attached Exhibit 1, a certified or cashier's check or money order with the firm name and "Net BWs + Interest" written on each, payable to the order of the "Wage Hour Div., Labor," in the amounts reflected on Exhibit 2.
c. In the event of any default in the timely making of any payment due hereunder, the full gross amount (under the backwage provisions of this Judgment) that then remains unpaid (plus post-judgment interest, from the date of this Judgment until the full amount is paid in full, at the rate of 10 percent per annum on the full balance outstanding from time to time, from the date of this Judgment until this Judgment is paid in full) shall become due and payable upon sending by ordinary mail a written demand to the last business address of the Defendants known to the plaintiff; the manner of the immediate payment shall in the case of the back wages be a certified or cashier's check or money order with the firm name and civil action number from the caption on the first page of this Judgment and "net back wages" written thereon payable to the order of the "Wage Hour Div., Labor," and shall in the case of the interest on the back wages be a separate certified or cashier's check or money order with the firm name and civil action number and "backwage interest" written thereon payable to the order of the "Wage Hour Div., Labor."
d. The Secretary shall allocate and distribute the remittances, or the proceeds thereof, to the persons named in the attached Exhibit 1, or to their estates if that be necessary, in her sole discretion, and any money not so paid within a period of three years from the date of its receipt, because of an inability to locate the proper persons or because of their refusal to accept it, shall be then deposited in the Treasury of the United States, as miscellaneous receipts, pursuant to 29 U.S.C. § 216(c).
e. On or before October 15, 2011, and again on or before the 15th day of each of the four months thereafter until the civil money penalties for alleged overtime pay violations of this Judgment are satisfied in full, a certified or cashier's check or money order with the firm name and "OT/CMP" written thereon payable to the order of "Wage Hour Div., Labor," in the amount of $2,687.65 or $2,687.66 in payment of the civil money penalty assessed against the Defendants for alleged overtime pay violations, as reflected in Exhibit 3; and it is further
6. ORDERED that the filing, pursuit, and/or resolution of this proceeding with the entry of this Judgment shall not act as or be asserted as a bar to any action under FLSA § 16(b), 29 U.S.C. § 216(b), as to any employee not named on the attached Exhibit 1 nor as to any employee named on the attached Exhibit 1 for any period not specified therein; and, it is further
7. ORDERED that each party shall bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding, including but not limited to attorneys' fees, which may be available under the Equal Access to Justice Act, as amended; and, it is further
8. ORDERED that this Court shall retain jurisdiction of this action for purposes of enforcing compliance with the terms of this Consent Judgment.
Exhibit 1
NAMES PERIODS COVERED HEREIN AMOUNTS DUE
ALCARAZ LAZARO 1/29/2006 12/21/2008 9324.98 ARAUJO MILTON R 9/3/2006 10/21/2007 4306.73 CARDENAS RUDY B 10/14/2007 12/21/2008 1900.22 CARILLO ALEJANDRO 1/29/2006 3/19/2006 462.87 CASTILLO JESUS V 7/1/2007 12/21/2008 5746.02 CASTRO MARCO 1/21/2007 11/11/2007 1640.63 CISNEROS GERARDO 10/5/2008 10/19/2008 285.95 DE DE'LOERA JOSE 1/29/2006 10/12/2008 6986.76 DELGADO CARLOS H 5/25/2008 11/9/2008 2014.16 FLORES RITO RUBIO 1/29/2006 3/5/2006 147.28 GOMEZ RAYMUNDO 1/7/2007 1/28/2007 375.93 GONZALEZ FRANK 10/7/2007 9/14/2008 2859.48 GUDINO ALONSO M 3/12/2006 12/14/2008 7159.38 GUDINO JOSE 1/29/2006 11/19/2006 1891.74 GUTIERREZ RAMIRO P 1/29/2006 12/10/2006 1986.5 IGLESIAS JOEL 6/22/2008 12/21/2008 2915.45 MARTINEZ ELMER 7/1/2007 10/19/2008 5505.28 ELBER MASARIEGOS RODOLFO 12/10/2006 12/10/2006 33.61 FRANCISCO MELENDEZ A 2/12/2006 10/8/2006 1150.67 NAVARRETE APARICIO JOAQUIN 7/1/2007 12/21/2008 2744.25 OCHOA LUIS E 2/26/2006 3/12/2006 189.92 OSTORGA ARNOLDO A 7/22/2007 10/12/2008 3527.16 PEREZ FROYLAN 3/19/2006 11/11/2007 3264.34 POLIO EDWIN A 10/22/2006 12/24/2006 672.51 YOHALMO QUEZADA A 12/17/2006 5/11/2008 3909.45 RAMIREZ MOISES 9/21/2008 12/21/2008 1267.09 ROCHA ANTONIO 12/2/2007 12/21/2008 2991.43 RODRIGUEZ BENITO 1/7/2007 1/7/2007 50.67 ROSALES SOCORRO 7/8/2007 6/8/2008 3988.56 SALAZAR NOEL 12/31/2006 10/12/2008 4634.62 SOTO RONY 1/14/2007 7/22/2007 261.14 TABBI JOSEPH M 9/14/2008 9/21/2008 80.2 VALDEZ RUDY A 10/7/2007 10/21/2007 199.27