Opinion
Case No.: SACV 06-1152-CJC (PJWx).
June 5, 2009
JAMES P. CARTER, Paul, Hastings, Janofsky Walker, LLP, Costa Mesa, CA, Attorneys for the Defendants.
CAROL A. DEDEO, Deputy Solicitor for National Operations, Lawrence Brewster, Regional Solicitor, Daniel J. Chasek, Associate Regional Solicitor, Susan Seletsky, Attorney (CSBN #176106), Office of the Solicitor (Sol#0717696, United States Department of Labor, Los Angeles, California, Attorneys for the Plaintiff.
CONSENT JUDGMENT
Plaintiff Hilda L. Solis, Secretary of Labor, United States Department of Labor ("Secretary") and Defendants Padilla Construction, Inc., a California corporation; Padilla Construction of Nevada, Inc., a Nevada corporation; Ralph Padilla, an individual; and Joe Lopez, an individual (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). Among other things, the Secretary alleges that Defendants failed to treat time spent by employees at the construction yard as time worked, and allegedly failed to pay overtime. Defendants deny those allegations and all others asserted in the Secretary's Complaint.
B. Defendants have appeared by counsel and acknowledge receipt of a copy of the Secretary's Complaint.
C. 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.
D. The parties admit that the Court has jurisdiction over them and the subject matter of this civil action, and that venue lies in the Central District of California.
It is therefore, as agreed by the parties, and upon motion of the attorneys for the Secretary,
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, pursuant to FLSA § 17, 29 U.S.C. § 217, 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 or in the production of goods for 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 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 withhold the payment of $800,000.00 in unpaid overtime pay found by the Secretary to be due under the FLSA to the employees named on the attached Exhibit 1 for the period of time from July 1, 2003 to the present. Exhibit 1 shows the name of each employee, the gross back wage amount found by the Secretary to be due the employee, and the period covered by the Consent Judgment; and it is further
ORDERED, ADJUDGED, AND DECREED that judgment is hereby entered, pursuant to FLSA § 16(c), 29 U.S.C. § 216(c), in favor of the Secretary and against the Defendants in the total amount of $800,000.00 representing the back wages as described in paragraph 3 above; and it is further
ORDERED, ADJUDGED, AND DECREED that the Defendants, jointly and severally, shall not withhold $25,000.00 in civil money penalties assessed by the Secretary against Defendants, pursuant to FLSA § 16(e), 29 U.S.C. § 216(e), for violations of the overtime wage provisions of the FLSA found by the Secretary during the period of July 1, 2003 to present; and it is further
ORDERED that to satisfy the monetary portions of this Judgment, the Defendants, jointly and severally, shall deliver to the Secretary's authorized representatives (at the address below) an initial payment of $160,000.00 on or before June 5, 2009, with the balance plus annual interest of 2.5% to be paid in 19 quarterly installments thereafter starting on September 1, 2009. The last payment shall be made on March 1, 2014. The installment payment schedule is set forth on the attached Exhibit 2.
a. All payments shall be delivered to the Secretary's authorized represen tatives at the Wage and Hour Division, United States Department of Labor, 770 The City Drive, Suite 5710, Orange, CA, 92868, on or before the date the pay ments are due as set forth in Exhibit 2. Delivery by U.S. mail shall suffice, and shall be deemed timely made if post-marked by the date called for in Exhibit 2;
b. Payments 1, 3, 5, 7, 9, 11, 13, 15, 17, and 19 shall be made by a certified or cashier's check, or money order payable to the order of the "Wage Hour Div., Labor" and with "Padilla-BWs" written thereon;
c. Payments 2, 4, 6, 8, 10, 12, 14, 16, 18 and 20 shall be made by a certi fied or cashier's check, money order or Defendants' personal or company check, payable to the order of the "Wage Hour Div., Labor" and with "Padilla-BWs" written thereon;
i. Payment 2 is allocated between the backwage and civil penalty provisions of this Judgment. The backwage payment of $12,228.36 shall be made payable to the order of the "Wage Hour Div., Labor" and have "Padilla-BWs" written thereon. The payment of $25,000 for civil money penalties shall be made payable to the order of the "Wage Hour Div., Labor" and have "Padilla-CMPs" written thereon.
d. There will be no prepayment penalty for any payments made prior to their due date;
e. In the event of a default in the timely making of any of the payments required under this Judgment, the full amount which then remains unpaid, plus interest at the rate of ten percent (10%) per year, from the date of this Judgment until the full amount of this Judgment is paid in full, shall become due and payable upon the Secretary's sending by certified mail a written demand to the last business address of the Defendants then known to the Secretary;
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. The Secretary shall be responsible for deducting from the amounts paid to said persons the employees' share of F.I.C.A. and federal income taxes, and for remitting said deductions to the appropriate federal agencies. Any money not so paid within a period of one year from the date of receipt of the last such money due hereunder, because of an inability to locate the proper persons or because of their refusal to accept it, shall be deposited by the Secretary in a special deposit account for payment to the proper persons and upon such inability to pay within three years, shall then be deposited in the Treasury of the United States as miscellaneous receipts, pursuant to 29 U.S.C. § 216(c); and, it is further
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
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
ORDERED that this Court shall retain jurisdiction of this action for purposes of enforcing compliance with the terms of this Consent Judgment.
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: PADILLA CONSTRUCTION COMPANY By: __________________________ _________________________ Authorized Agent Date Its: ___________________________ For: PADILLA CONSTRUCTION COMPANY OF NEVADA By: __________________________ _________________________ Authorized Agent Date Its: ___________________________ ____________________________ _________________________ RALPH PADILLA Date ____________________________ _________________________ JOE LOPEZ Date PAUL, HASTINGS, JANOFSKY WALKER, LLP ____________________________Exhibit 1 FILED MANUALLY
SEE NOTICE OF MANUAL FILING OF EXHIBIT 1 TO CONSENT JUDGMENT