Opinion
CASE NO. 1:09-CV-01662-OWW-SKO.
July 30, 2010
MELISSA M. HARNETT (Bar No. 164309), GREGORY SCARLETT (Bar No. 131486), JORDAN S. ESENSTEN (Bar No. 264645), WASSERMAN, COMDEN, CASSELMAN ESENSTEN, L.L.P., Tarzana, California.
CRAIG ACKERMANN (Bar No. 229832), TATIANNA HERNANDEZ (Bar No. 255322), ACKERMANN TILAJEF, P.C., Los Angeles, CA, Attorneys for Plaintiff, LEE BOND, individually and others similarly situated.
CLASS ACTION ORDER GRANTING LEAVE TO FILE FIRST AMENDED COMPLAINT
Pursuant to the Parties' Stipulation, and good cause appearing therefore, the court hereby GRANTS Plaintiffs leave to file the First Amended Putative Class Action Complaint, attached as Exhibit A to the Parties' Stipulation. Plaintiff's First Amended Putative Class Action Complaint shall be deemed filed and served on Defendant on the date this Order is signed by the Court. Defendant will have twenty-one (21) days from the date that the Court enters this Order to file its Answer to the First Amended Complaint.
IT IS SO ORDERED.
EXHIBIT A
mharnett@wcclaw.com WASSERMAN, COMDEN, CASSELMAN ESENSTEN, L.L.P. cja@laborgators.com ACKERMAN TILAJEF, P.C. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FIRST AMENDED PUTATIVE CLASS ACTION COMPLAINT FOR: (1) FAILURE TO PROVIDE TIMELY OFF-DUTY MEAL PERIODS (CAL. LABOR CODE §§ 226.7, 512; IWC WAGE ORDER NO. 7); (2) FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS (CAL. LABOR CODE §§ 226, 226.3); (3) FAILURE TO PAY WAGES DUE AT TIME OF TERMINATION (CAL. LABOR CODE, §§ 201-203); (4) FAILURE TO PAY ALL WORKING TIME DUE TO ILLEGAL AUTOMATIC DEDUCTIONS FROM WAGES (CAL. LABOR CODE §§ 1194 and 1194.2); and (5) UNFAIR/UNLAWFUL/FRAUDULENT BUSINESS PRACTICES (CAL. BUS. PROF. CODE, § 17200); AND DEMAND FOR JURY TRIAL
MELISSA M. HARNETT (Bar No. 164309) 5567 Reseda Boulevard, Suite 330 Post Office Box 7033 Tarzana, California 91357-7033 Telephone: (818) 705-6800 Facsimile: (818) 345-0162 CRAIG J. ACKERMANN (Bar No. 229832) 1180 South Beverly Drive, Suite 610 Los Angeles, California 90035 Telephone: (310) 277-0614 Facsimile: (310) 277-0635 Attorneys for Plaintiffs LEE BOND and RICHARD JAMES BURKHART and the putative class LEE BOND and RICHARD JAMES CASE NO. 1:09-CV-01662-OWW-SKO BURKHART, individually and on behalf of all others similarly situated, Plaintiffs, vs. FERGUSON ENTERPRISES, INC., a corporation, Defendants.Plaintiffs LEE BOND ("Bond") and RICHARD JAMES BURKHART ("Burkhart") (collectively "Plaintiffs"), by and through their undersigned attorneys and for their First Amended class action Complaint against Defendant FERGUSON ENTERPRISES, INC. ("Ferguson" or "Defendant"), hereby allege as follows:
I. NATURE OF ACTION
1. Plaintiffs bring this action on behalf of themselves, individually, and as a class action on behalf of all other similarly situated, against Defendant Ferguson for its failure to provide timely off-duty meal periods to its California truck drivers; its failure to pay its California truck drivers for missed, on-duty and untimely meal periods; its failure to issue accurate itemized wage statements to California truck drivers; its failure to pay California truck drivers all wages due as a result of illegal automatic deductions for meal breaks that were missed or shorter than 30 minutes; its failure to pay California truck drivers all wages due to them upon termination or separation of employment; and other deceptive and fraudulent business practices. As a result of these acts or omissions, Defendant has violated California statutory laws as described below.
II. JURISDICTION AND VENUE
2. Venue is proper in this county under California Business and Professions (B P") Code § 17203 and California Code of Civil Procedure §§ 395(a) and 395.5. Defendant owns and operates more than 100 locations in California. Many of the acts, as well as the course of conduct charged herein, occurred in Kern County, California.
3. Defendant is within the jurisdiction of this Court. Defendant transacts millions of dollars of business transporting and supplying building and plumbing materials throughout the State of California. Thus, Defendant has obtained the benefits of the laws of the State of California and the building industry in California.
4. The total amount in controversy for the named Plaintiffs' claims is less than twenty-five thousand dollars ($25,000). In addition, Plaintiffs assert no claims arising under federal law. Rather, Plaintiffs bring causes of action based solely on, and arising from, California law. The claims of the class are also individual claims for violations of California law described herein. These claims do not unite or enforce a single title or right, but rather arise from Defendant's systemic failure to provide timely off-duty meal periods to drivers and its failure to pay its drivers for missed, untimely and on-duty meal periods. illegal deductions from wages, waiting time penalties and penalties for issuing inaccurate itemized wage statements. However, the total amount sought for the Class exceeds $7 million and, therefore, jurisdiction is proper in federal court pursuant to diversity jurisdiction and the Class Action Fairness Act ("CAFA").
III. THE PARTIES
5. Plaintiff Lee Bond was employed as a truck driver by Defendant from January 18, 2008 through March 30, 2009 and was based in Bakersfield, California. On a regular basis throughout his employment, Plaintiff Bond and his fellow California truck drivers were not properly compensated by Defendant for missed, untimely and/or on-duty meal period, and did not receive accurate itemized wage statements. Significantly, upon separation from employment with Defendant, Plaintiff Bond also did not receive all wages due to him.
6. Plaintiff Richard James Burkhart was employed as a truck driver by Defendant from July 2007 thought February 2008, and was based in Culver City, California. On a daily basis throughout his employment, Plaintiff Burkhart and his fellow California truck drivers were not properly compensated by Defendant for missed, untimely and/or on-duty meal period, and did not receive accurate itemized wage statements. In addition, Plaintiff Burkhart's wages, like his fellow truck drivers, were subject to automatic deductions of exactly 30 minutes per day based on the incorrect assumption that he and other drivers always took 30 minute meal breaks during their daily shifts; in fact, it was often impossible for drivers to take any off-duty meal period throughout their shifts. Significantly, upon separation from employment with Defendant, Plaintiff Burkhart also did not receive all wages due to him.
7. Defendant, a Virginia corporation, is a national leader in the building and plumbing supply and distribution industry. In California, Defendant operates out of more than 100 locations and transacts tens of millions of dollars per year of business in California.
IV. CLASS ACTION ALLEGATIONS
8. Plaintiffs bring this case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of a class consisting of: all current and former employees of Ferguson who were based at Ferguson's California locations, and whose primary job responsibility at any time during the period from July 15, 2005 through the present (the "Class Period" unless otherwise stated), included delivering materials in California by driving on road.
9. Plaintiffs believe that there are approximately 600 current and former employees in the putative Class. Given Ferguson's systemic failure to comply with California law regarding meal periods, itemized wage statements, payment for all hours worked/illegal deductions, and wages due upon termination, the members of the putative Class are so numerous that joinder of all members is impractical.
10. Plaintiffs' claims are typical of the claims of the members of the putative Class, because they were truck drivers who, like other members of the putative Class, sustained damages arising out of (a) Defendant's failure to provide timely statutory off-duty meal periods; (b) Defendant's failure to pay for missed, untimely or on-duty meal periods; (c) Defendant's failure to provide accurate itemized wage statements to drivers during the Class Period as result of Defendant's failure to pay for missed, untimely or on-duty meal periods and for all hours worked; (d) Defendant's failure to pay wages for all time worked as a result of its illegal automatic deduction of 30 minutes on from all drivers' daily wages; and (e) Defendant's failure to pay all wages due upon termination to former employees who are members of the putative Class.
11. Plaintiffs will fairly and adequately represent the interests of the putative Class. Plaintiffs have no conflict of interest with any member of the putative Class. Plaintiffs have retained counsel competent and experienced in complex, class action litigation.
12. Common questions of law and fact exist as to all members of the putative Class, and predominate over any questions solely affecting individual members of the putative Class. Among the questions of law and fact common to Plaintiffs and the putative Class are:
a. Whether Defendant engaged in a pattern or practice of failing to provide timely, off-duty meal periods to Plaintiffs and the members of the putative Class who worked as truck drivers in California during the Class Period;
b. Whether Defendant engaged in a pattern or practice of failing to ensure that Plaintiffs and the members of the putative Class who worked as truck drivers in California during the Class Period were relieved of duties for statutory off-duty meal periods on a timely basis;
c. Whether Defendant engaged in a pattern or practice of failing to properly compensate Plaintiffs and the members of the putative Class who worked as truck drivers in California during the Class Period for missed, untimely or on-duty meal periods as required by California law;
d. Whether Defendant violated Cal. Labor Code § 226.7 by failing to ensure that Plaintiffs and the members of the putative Class who worked as truck drivers in California during the Class Period were relieved of duties for timely off-duty meal periods;
e. Whether Defendant violated Cal. Labor Code § 512 by failing to ensure that Plaintiffs and the members of the putative Class who worked as truck drivers in California during the Class Period were relieved of duties for timely off-duty meal periods;
f. Whether Defendant violated California Industrial Welfare Commission ("IWC") Order Number 7, section 11 by failing to ensure that Plaintiffs and the members of the putative Class who worked as truck drivers in California during the Class Period were relieved of duties for timely off-duty meal periods;
g. Whether Defendant engaged in unfair business acts and practices, and thereby violated B P Code § 17200, et seq., by failing to ensure that Plaintiffs and the members of the putative Class who worked as truck drivers in California during the Class Period were relieved of duties for statutory off-duty meal periods on a timely basis;
h. Whether Defendant violated 1194 and 1194.2 of the Labor Code by adopting a policy of automatically deducting 30 minutes of time from all drivers' wages based on the incorrect assumption that drivers always took off-duty meal breaks of at least 30 minutes on a daily basis, notwithstanding the fact that Defendant was aware that its drivers regularly worked shifts throughout the Class Period without taking any off-duty meal period;
i. Whether Defendant maintained accurate time records of off-duty meal breaks taken by Plaintiffs and the members of the putative Class during the Class Period in accordance with Section 7 of IWC Wage Order No. 7;
j. Whether Defendant's policy of automatically deducting 30 minutes of working time for lunch breaks constituted a failure to pay wages due for drivers who missed meal breaks in violation of Section 1194 of the Cal. Labor Code;
k. Whether Defendant is obligated to pay liquidated damages under Labor Code § 1194.2 to Plaintiffs and members of the putative Class based on its failure to pay them for all hours worked;
l. Whether Defendant's policy of automatically deducting 30 minutes from working time of all drivers for "lunch breaks" despite the fact that drivers consistently missed meal periods constituted an illegal deduction from wages in violation of Labor Code § 221;
m. Whether Defendant violated B P Code § 17200, et seq., by automatically deducting 30 minutes of working time from drivers for "lunch breaks" despite the fact that drivers consistently were not provided and/or missed their meal periods;
n. Whether Defendant violated Labor Code Section 226(a) by issuing inaccurate itemized wage statements to Plaintiffs and members of the putative Class that failed to include payments for missed or on-duty meal periods among wages earned and that contained deductions for "lunch breaks" that were never taken or provided throughout the Class Period;
o. Whether Defendant violated Labor Code §§ 201, 202 and 203 by failing to pay Plaintiffs and members of the putative Class who worked as truck drivers in California during the Class Period, and whose employment with Ferguson has ended, their full wages due upon their respective separations from employment with Ferguson;
p. Whether Plaintiffs and the members of the putative Class are entitled to injunctive relief; and
q. The nature and extent of class-wide injury and the measure of damages for the injury.
13. Class action treatment is superior to any alternative to ensure the fair and efficient adjudication of the controversy alleged herein. Such treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without duplication of effort and expense that numerous individuals would entail. No difficulties are likely to be encountered in the management of this class action that would preclude its maintenance as a class action, and no superior alternative exists for the fair and efficient adjudication of this controversy. The putative Class members are readily identifiable from Defendant's employee rosters and/or payroll records.
Under California law. Defendant must keep payroll records for all employees for at least two years. See, Cal. Labor Code § 1174(d). In addition, Section 7(c) of IWC Wage Order No. 7 requires Defendant to maintain accurate records of, inter alia, meal breaks taken by employees for a minimum of three years.
14. Defendant's actions are generally applicable to the entire putative Class. Prosecution of separate actions by individual members of the putative Class creates the risk of inconsistent or varying adjudications of the issues presented herein, which, in turn, would establish incompatible standards of conduct for Defendant.
15. Because joinder of all members is impractical, a class action is superior to other available methods for the fair and efficient adjudication of this controversy. Furthermore, the amounts at stake for many members of the putative Class, while substantial, may not be sufficient to enable them to maintain separate suits against Defendant.
V. FACTUAL ALLEGATIONS
16. Plaintiffs and the members of the putative Class were employed as truck drivers in California by Defendant at various times during the Class Period.
17. At any one time over the duration of the Class Period, Defendant employed between 220 to 301 truck drivers at all of its California locations. Defendant current employs approximately 220 drivers at its locations in California. During the Class Period, Defendant's drivers earned approximately $15 per hour.
18. These truck drivers' job responsibilities included making deliveries of building, plumbing, construction and waterworks supplies, materials and products to various contractors, retailers, wholesalers, builders, manufacturers, and large industrial businesses throughout California.
19. During the Class Period, Plaintiffs and other drivers employed by Defendant, typically worked five days per week and fifty-two weeks per year. During the Class Period, Plaintiffs and the members of the Class made deliveries for Defendant exclusively within the State of California.
20. During some portions of the Class Period, Defendant failed to clearly communicate to Plaintiffs and the members of the Class about their right to an off-duty 30 minute meal period before the fifth or even sixth hour of their shift.
21. On a daily basis throughout the Class Period, Defendant failed to affirmatively relieve Plaintiffs and the members of the Class for off-duty meal periods of at least thirty minutes on or before the fifth or even sixth hour of their shifts.
22. On approximately 50% of all drivers' routes throughout the Class Period, Plaintiffs and the members of the Class were unable to take their first off-duty meal break of thirty minutes on or before the fifth or even sixth hour of work, due to the rigorous requirements of their delivery schedule(s) and/or the instructions of their dispatchers. Indeed, Defendant's delivery schedules impeded drivers' ability to take their off-duty 30 minute meal breaks in a timely fashion and drivers were forced to either take a late meal break or, on a significant portion of all routes, to take no off duty meal breaks at all.
23. As a result, on a daily basis throughout the Class Period, Plaintiff and the members of the Class frequently missed their mandatory 30 minute off-duty meal periods and either failed to eat at all (i.e., they entirely missed their off-duty meal break) or they ate their meals on-duty while driving or at the end of their shifts.
24. In addition, during the Class Period, Defendant failed to secure signed on-duty meal period agreements from Plaintiffs and other members of the Class. Nor would such agreements (assuming arguendo they had been obtained) have been legally effective, since the nature of the work at issue here did not and does not prevent Defendant from scheduling a truck driver for an off-duty thirty minute meal period on or before the fifth or sixth hour of their shifts.
25. On a daily basis during the Class Period, Plaintiffs and the members of the Class punched time-cards reflecting all of their on-duty and off-duty time. Upon information and belief, the drivers' time cards show that, on approximately 50% of all routes, drivers' were not able to take off-duty meal breaks by the fifth or even sixth hour and, on approximately 25% of all routes, drivers were not able to take, and did not take, any off-duty meal breaks throughout their shifts.
26. On information and belief, the drivers' time-cards during the Class Period demonstrate that Defendant often failed to provide drivers with their timely meal period of no less than thirty minutes on or before the fifth or even sixth hour of work as required by California law. Stated otherwise, Defendant's records show that, at least half of the time, timely, off-duty 30 minute meal periods were taken by its truck drivers, including but not limited to Plaintiffs.
Under Labor Code Section 1174 and section 7 of IWC Wage Order Mo. 7, employers in California have a duty to keep accurate time and meal period records. "[W]here the employer's records are inaccurate or inadequate . . . an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Hernandez v. Mendoza 199 Cal.App.3d 721, 727 (1988).
27. Because Defendant was aware of drivers' time-cards and used them for payroll purposes, Defendant is and has been for a number of years fully aware that its drivers were and are missing their timely off-duty 30 minute meal periods at least 50% of the time. Nevertheless, Defendant did and does little, if anything, to self-police and ensure that its drivers are relieved of duties on a daily basis for their meal periods; instead, Defendant's policy is to assume, unless told otherwise by drivers, that a 30 minute meal break was taken by all drivers. The assumption that all drivers regularly take timely 30 minute meal periods is refuted by the drivers' time-card punches, including Plaintiffs' time cards, yet Defendant continues to use its incorrect assumptions for purposes of calculating payroll, thereby depriving drivers of pay for working time on days when they were unable to take any off-duty meal period throughout the day.
28. In other words, Defendant has a uniform policy of automatically deducting thirty minutes of working time for lunch breaks that they incorrectly assume were taken regardless of whether or not the Class members actually took or were not able to take their off-duty 30 minute meal breaks at any time during their shifts.
29. Because Defendant's drivers are all often unable to take any off-duty thirty minute lunch break throughout their shifts, Defendant's automatic deduction policy results in underpayment and/or illegal deductions from wages on a class wide basis.
30. Defendant's delivery schedules and dispatchers cause drivers to work through their meal periods, and the company does not ensure that drivers are relieved of duties on a daily basis for their off-duty 30 minute meal periods in a timely fashion, despite being on notice that drivers are not clocking out and taking their statutory meal periods on a timely basis. Accordingly, throughout the Class Period, Plaintiff and members of the Class worked numerous shifts without legally-required, timely off-duty meal periods with the knowledge and acquiescence of Defendant.
31. Defendant failed to compensate drivers, including Plaintiff, for missed, untimely and/or on-duty meal periods in the amount of one hour of pay at each driver's regular rate of pay for each missed and/or on-duty meal period over the last four years.
32. Defendant has adopted, and is using, unfair business practices to minimize hourly-paid drivers' compensation and increase profits. Among these unfair business practices are: causing drivers to work without receiving timely and adequate off-duty 30 minute meal periods before the fifth or even sixth hour of their shifts; failing to pay drivers for missed and/or untimely or on-duty meal periods; and automatically and illegally deducting from working time for lunch breaks that Defendant incorrectly assumed were taken despite the fact that drivers often were not able to take their 30 minute off-duty meal breaks at all, let alone before the fifth or sixth hour of their shifts.
33. Defendant knew or should have known that its drivers have been precluded from taking their off-duty meal periods in a timely fashion and/or were not taking any meal breaks on a substantial number of days during the Class Period. As noted, this knowledge is reflected, inter alia, in the Class members' time-cards and punches, which are generated regularly by drivers and submitted to Defendant in the regular course of business.
34. In addition, Defendant's failure to compensate Plaintiffs and the members of the Class for missed and/or on-duty meal periods and its policy of automatically deducting from wages for lunch breaks despite the fact that many drivers consistently were unable to take any off-duty meal periods at any time during their shifts also caused Defendant to issue inaccurate itemized wage statements to Plaintiffs and the members of the Class in violation of California law. Specifically, the itemized wage statements issued to Plaintiffs and the members of the Class by Defendant have consistently failed to include missed or on-duty meal period payments as "wages earned" and have also consistently contained deductions from working time for lunch breaks that were never provided or taken, thereby making the total "hours worked" amounts inaccurate on all of the wage statements issued to drivers throughout the Class Period.
35. Although Plaintiffs' employment with Defendant ended in February 2008 and on March 30, 2009, Defendant has never compensated them or any other members of the Class who are no longer employed by Defendant for the wages due to them as a result of their numerous missed, untimely or on-duty meal breaks, nor has Defendant compensated the members of the Class who are no longer employed by Defendant for the days on which they missed all off-duty meal periods, or were only able to take lunch breaks less than 30 minutes, but still had their wages subject to automatic deductions in the amount of 30 minutes per day.
VI. CHARGING ALLEGATIONS FIRST CAUSE OF ACTION Failure to Provide Timely 30 Minute Off-Duty Meal Periods and/or Pay Premium Pay For Missed, Untimely on On-Duty Meal Periods (IWC Wage Order No. 7; Cal. Labor Code §§ 226.7, 512)36. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs.
37. The actionable period for this cause of action is July 15, 2006 through the present.
38. California Labor Code § 226.7(a) provides, "No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission."
39. IWC Order No. 7-2001(11)(A) provides, in relevant part: "No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee." Cal. Code Regs., tit. 8, § 11010(11)(A).
40. IWC Order No. 7-2001(11)(c) further provides, in relevant part: "Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an `on duty' meal period and counted as time worked." Cal. Code Regs., tit. 8, § 11010(11)(C).
41. Section 512(a) of the California Labor Code provides, in relevant part, that:
"An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived."
42. California courts interpreting Section 11(A) of the IWC Wage Orders, Section 512 of the Labor Code, and Section 226.7 of the Labor Code have concluded that California employers must (1) "clearly communicate the authorization and permission [to take the meal period] to its employees," Bufil v. Dollar Financial Group (2008) 162 Cal. App. 4th 1193, 1999; and (2) "ensure that workers are actually relieved of all duty" for thirty minutes per day on or before the fifth hour of their shifts., Cicairos v. Summit Logistics (2005) 133 Cal.App.4th 949, 962 (". . . the defendant's obligation to provide Plaintiff with an adequate meal period is not satisfied by assuming that the meal periods were taken, because employers have `an affirmative obligation to ensure that workers are actually relieved of all duty" (DLSE Opinion Letter, 2002.01.28, p. 1); They also have a duty under Wage Order No. 7 to record their employees' meal periods.").
The suggestion that employees need not be relieved from duties for their statutory meal breaks within the first five or even six hours of an employees' shift is unpersuasive in light of the plain language of Labor Code § 512(b), which allows meal periods to commence after 6 hours only under with permission of the Labor Commissioner. See, Labor Code § 512(b) ("Notwithstanding subdivision (a), the Industrial Welfare Commission may adopt a working condition order permitting a meal period to commence after six hours of work if the commission determines that the order is consistent with the health and welfare of the affected employees.").
43. As alleged herein, during certain portions of the Class Period, Defendant failed to clearly communicate to its drivers about their right to an off-duty 30 minute meal period before the fifth or sixth hour of work. Moreover, throughout the Class Period, Defendant failed to affirmatively relieve drivers of duties for their off-duty 30 minute meal periods on or before the fifth or even sixth hour of work. Furthermore, due to their delivery schedules and routes, as well as instructions from their dispatchers, Plaintiffs and the members of the putative Class were routinely required to work through their meal periods and/or eat while on-duty or at the end of their routes, at the direction of Defendant and/or with its knowledge and acquiescence.
44. By its actions in failing to inform drivers about their meal break rights, failing to relieve drivers of duties for their off-duty 30 minute meal periods and by requiring drivers to work through meal periods, Defendant has violated California Labor Code § 226.7 and is liable to Plaintiffs and the Class.
45. As a result of the unlawful acts of Defendant, Plaintiffs and the putative Class have been deprived of timely off-duty meal periods, and are entitled to recovery under Cal. Labor Code § 226.7(b) and Section 11 of the Wage Order in the amount of one additional hour of pay at the employee's regular rate of compensation for each work period during each day in which Defendant failed to provide drivers with statutory timely off-duty meal periods.
46. In Murphy v. Kenneth Cole Productions, 40 Cal 4th 1094, 1114 (2007), the California Supreme Court held that the "additional hour of pay" for failure to provide an employee with meal or rest periods constitutes a wage," rather than a "penalty," and, accordingly, is governed by the three-year statute of limitations set forth in C.C.P. § 338(a).
47. Cal. Labor Code § 218 authorizes Plaintiffs and the members of the putative Class to bring a private right of action to recover wages due based on the deprivation of timely meal periods under Cal. Labor Code § 226.7(b).
48. Plaintiffs seek the relief set forth below.
SECOND CAUSE OF ACTION Failure to Issue Accurate Itemized Wage Statements (Cal. Labor Code §§ 226 and 226.3)
49. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs.
50. Section 226(a) of the California Labor Code provides:
"Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, (3) the number of piece-rate units earned, (4) all deductions, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of the hours worked at each hourly rate by the employee."
51. Section 226(e) provides that an employee is entitled to recover $50 for initial pay period in which a violation of Section 226 occurs and $100 for each subsequent pay period, not to exceed $4,000, as well as an award of costs and reasonable attorney's fees, for all pay periods in which the employer knowingly and intentionally failed to provide accurate itemized statements to the employee causing the employee to suffer injury.
52. As set forth above, during the Class Period, Defendant knowingly provided Plaintiffs and members of the putative Class with bi-weekly inaccurate itemized wage statements containing inaccurate information regarding the wages earned by Plaintiff and members of the Class in that the payments owed to Plaintiffs and the members of the Class for missed, untimely and/or on-duty meal periods were not included in gross wages earned by Plaintiffs and the Class, and Defendant took 30 minute deductions from wages of drivers automatically despite the fact that drivers consistently worked through meal periods.
53. Defendant's failure to provide Plaintiffs and members of the putative Class with accurate itemized wage statements during the Class Period has caused Plaintiffs and the members of the Class to incur economic damages in that they were not aware that they were owed and not paid compensation for missed, untimely or on-duty meal periods, and they failed to receive pay for all time worked. In addition, Defendant provided inaccurate information regarding hours worked which masked their underpayment of wages to Plaintiff and the putative Class. See Brewer v. Premier Golf Properties, 168 Cal. App. 4th 1243, 1254, n. 9 (2008) (wage statement claim may be triggered by failure to include missed meal period premium pay on wage statements); Cicairos v. Summit Logistics, 133 Cal. App. 4th 949, 954 (Cal. App. 3d Dist. Oct. 27, 2005) ("If it is left to the employee to add up the daily hours shown on the time cards or other records so that the employee must perform arithmetic computations to determine the total hours worked during the pay period, the requirements of section 226 would not be met.").
54. As a result of Defendant's issuance of inaccurate itemized wage statements to Plaintiff and members of the putative Class in violation of Labor Code § 226(a), Plaintiffs and the members of the putative Class are each entitled to recover from Defendant, pursuant to § 226(e) of the Labor Code, an initial penalty of $50 and subsequent penalties of $100, up to an amount not exceeding an aggregate penalty of $4000 per Plaintiff and per every member of the putative Class. Plaintiffs seek the relief set forth below.
THIRD CAUSE OF ACTION Failure to Pay All Compensation Due Upon Separation of Employment (Cal. Labor Code §§ 201- 203)
55. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs.
56. Sections 201 and 202 of the California Labor Code require Defendant to pay all compensation due and owing to former drivers at or around the time each driver's employment is terminated or ends. Section 203 of the California Labor Code provides that if an employer willfully fails to pay compensation promptly upon discharge or resignation, as required by Sections 201 and 202, then the employer is liable for penalties in the form of continued compensation up to thirty (30) work days. Because Section 203 penalties are subject to a three year statute of limitations under California law, the actionable period (i.e., the "Class Period") for this cause of action is from July 15, 2006 through the present.
57. On April 16, 2007, following the decision in Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094, 1114 (2007), the DLSE issued a Memorandum in which Deputy Chief Lupe Almaraz wrote, in pertinent part:
"The Murphy decision, by implication, allows employees who are LC 226.7 pay at the time of termination, to recover waiting time penalties pursuant to LC 203 if all final wages are not paid in accordance with LC 201/202."
The DLSE's position was subsequently adopted by the DLSE Manual in Section 4.3.4.1.
58. In Brewer v. Premier Golf Properties, 168 Cal. App. 4th 1243, 1254, n. 9 (2008), the California Court of Appeal seemingly also adopted this position when it noted:
"To the extent section 226.7 imposes a requirement to compensate the employee with premium wage(s) intended to compensate employees for the missed meal or rest breaks, Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th at p. 1114, and the employer failed to pay the employee an additional compensation required by section 226.7, the additional penalties applicable for `pay stub' violations or other defaults in the payment of wages due (such as the waiting time penalties under section 203) are arguably triggered."
59. Defendant willfully failed to pay Plaintiffs and other members of the putative Class for their missed, untimely and/or on-duty meal periods and for wages due for all time worked upon their termination or separation of employment with Defendant as required by California Labor Code §§ 201 and 202.
60. As a result, Defendant is now liable to Plaintiffs and other members of the putative Class whose employment with Defendant has ended for penalties pursuant to California Labor Code § 203 in the maximum amount of thirty days wages for each putative Class member who is no longer employed by Defendant. Plaintiffs seek the relief set forth below.
FOURTH CAUSE OF ACTION Failure to Pay Wages Due/Illegal Deduction from Wages (Cal. Labor Code §§ 1194, 1194.2, 221; IWC Wage Order No. 7)
61. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs.
62. The actionable period for this cause of action is July 15, 2006 through the present.
63. Section 1194 of the California Labor Code provides:
Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees and costs of suit.
64. Section 1194.2 of the California Labor Code provides:
In any action under Section 1193.6 or Section 1194 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. Nothing in this subdivision shall be construed to authorize the recovery of liquidated damages for failure to pay overtime compensation.
65. Section § 221 of the California Labor Code provides: "It shall be unlawful for any employer to collect or receive from an employee any part of wages therefore paid by said employer to said employee."
66. As set forth above, throughout the Class Period, Defendant Ferguson automatically deducted 30 minutes of working time from all drivers' pay on a daily basis based on an incorrect assumption that drivers all took 30 minute meal periods on a daily basis and notwithstanding the fact that drivers often missed off-duty meal periods throughout their shifts or took meal breaks of less than 30 minutes.
67. In failing to pay Plaintiffs and Class members for all the hours worked as reflected on their time-cards, Defendant Ferguson operated in bad faith and without a reasonable basis to believe that drivers were not entitled to compensation for all hours worked. Accordingly, pursuant to Sections §§ 1194 and 1194.2 of the California Labor Code, Plaintiffs and the Class are entitled to recover unpaid wages, and liquidated damages in an additional amount equal to the amount wages unlawfully withheld.
68. Pursuant to Section § 1194 of the Labor Code, Plaintiffs and the Class are also entitled to recover interest, costs, and attorneys' fees associated with this cause of action.
69. Pursuant to Labor Code section § 218.5, Plaintiffs and Class Members are entitled to recover their wages owed. i.e. those that were subject to illegal deductions from wages for "lunch breaks", despite the fact that they consistently worked through or missed their meal breaks.
70. Plaintiffs seek the relief set forth below.
FIFTH CAUSE OF ACTION Unfair/Unlawful/Fraudulent Business Practices (Cal. Bus. Prof. Code § 17200 et seq.)
71. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs.
72. B P Code § 17200, et seq., prohibits any unlawful, unfair, or fraudulent business practices.
73. Labor Code § 90.5(a) states that it is the public policy of California to enforce vigorously minimum labor standards in order to ensure employees are not required to work under substandard and unlawful conditions, and to protect employers who comply with the law from those who attempt to gain competitive advantage at the expense of their workers by failing to comply with minimum labor standards.
74. Through its actions alleged herein, Defendant has engaged in unfair competition within the meaning of B P Code § 17200, because Defendant's conduct has violated state wage and hour laws as herein described. Indeed, Defendant's conduct as herein alleged has damaged Plaintiffs and members of the putative Class by wrongfully denying them timely off-duty meal periods and failing to pay them for missed and/or on-duty meal periods, by illegally deducting 30 minutes from working time of all drivers despite the fact that drivers consistency missed meal breaks, and failure to compensate drivers for all hours worked and therefore was substantially injurious to Plaintiffs and the members of the putative Class.
75. Under B P Code § 17208, the statute of limitations for a claim under Section 17200 is four years prior to the filing of the Complaint. Accordingly, the actionable period (i.e., the "Class Period") for this cause of action is July 15, 2005 through the present.
76. Beginning at a date unknown to Plaintiffs, but at least as early as July 15, 2005, Defendant committed, and continues to commit, acts of unfair competition, as defined in B P Code § 17200, et seq., by, inter alia, engaging in the acts and practices described hereinabove.
77. Defendant engaged in unfair competition in violation of B P Code § 17200, et seq., by violating, inter alia, each of the following: (a) Cause of Action One as stated above; (b) Labor Code § 226.7; (c) Cal. Labor Code § 512; (d) Labor Code § 1194; (e) Labor Code § 221; and, (f) California IWC Orders No. 7-2001 (as amended on January 1, 2003, January 1, 2004, January 1, 2005 and January 1, 2006).
78. Defendant's course of conduct, acts and practices in violation of the California laws mentioned in each paragraph above constitute separate and independent violations of B P § 17200, et seq.
79. The harm to Plaintiffs and members of the putative Class in being wrongfully denied timely off-duty meal periods, not being compensated for missed and/or on-duty meal periods, and not being compensated for the total hours worked outweighs the utility, if any, of Defendant's policies and/or practices. Therefore, Defendant's actions described herein constitute an unfair business practices or acts within the meaning of B P Code § 17200, et seq.
80. The unlawful, unfair and fraudulent business practices and acts of Defendant, as described hereinabove, have injured Plaintiffs and other members of the putative Class, in that they were wrongfully denied wages due for missed, untimely and on-duty meal periods.
81. Plaintiffs seek the relief set forth below.
VII. DEMAND FOR JURY TRIAL
82. Plaintiffs hereby demand a trial by jury for all issues so triable.
VIII. PRAYER FOR RELIEF
Wherefore, Plaintiffs, on behalf of himself and the members of the Class, prays for judgment against Defendant as follows:
1. An Order that this action may proceed and be maintained as a class action;
2. On the First Cause of Action:
a. A declaratory judgment that Defendant has violated California Labor Code § 226.7, § 512 and the IWC Wage Order No. 7-2001;
b. Pursuant to Cal. Labor Code § 226.7 and Section 11 of IWC Wage Order No. 7, an award to Plaintiffs and the Class Members for an additional hour of pay at the employee's regular rate of compensation for each day that meal periods were missed or not provided or were on-duty during the Class Period;
c. Pursuant to Cal. Labor Code Section § 218.6, an award of all accrued interest from the date that the wages were due and payable at the legal interest rate; and
d. An award to Plaintiffs and the Class of reasonable attorneys' fees and costs pursuant to Cal. Labor Code § 218.5 and/or other applicable state laws.
3. On the Second Cause of Action
a. A declaratory judgment that Defendant violated Labor Code §§ 226 and 226.3 by issuing inaccurate weekly wage statements to Plaintiffs and other members of the Class;
b. An award to Plaintiffs and other members of the Class of $50 for each initial pay period in which a violation of Section 226 occurred and $100 for each subsequent pay period in which a violation of Section 226 occurred, not to exceed $4,000 for each member of the Class, as well as an award of costs and reasonable attorney's fees.
4. On the Third Cause of Action:
a. A declaratory judgment that Defendant violated Labor Code §§ 201 through 203 for willful failure to pay compensation to Plaintiffs and other members of the Class who are no longer employed by Ferguson; and
b. An award to Plaintiffs and other members of the Class of payments due to them as waiting time penalties pursuant to California Labor Code § 203.
5. On the Fourth Cause of Action:
a. A declaratory judgment that Ferguson has violated California Labor Code §§ 1194, 221 and IWC Wage Order No. 7-2001;
b. Pursuant to Cal. Labor Code § 1194, an award to Plaintiffs and the Class Members for all wages wrongfully withheld from them for their unpaid hours worked at the employee's regular rate of compensation for each day on which Defendant automatically deducted 30 minutes of working time from drivers during the Class Period;
c. Pursuant to Cal. Labor Code Section § 1194.2, an award of liquidated damages to Plaintiffs and the Class in an additional amount equal to all wages wrongfully withheld from them for their unpaid hours of working time at the employee's regular rate of compensation for each day on which Defendant automatically deducted 30 minutes of working time from drivers during the Class Period;
d. Pursuant to Cal. Labor Code Section § 1194, an award to Plaintiffs and the Class of reasonable attorneys' fees, interest, and costs.
e. Pursuant to Cal. Labor Code Section §§ 221 and 218.5, an award of wages owed plus interest and reasonable attorney fees to Plaintiffs and Class members based on Defendant's illegal deduction of thirty minutes of working time from drivers.
6. On the Fifth Cause of Action:
a. An Order requiring Defendant, its agents, servants, and employees, and all persons acting, directly or indirectly, in concert with them, to restore and disgorge all funds to each member of the Class acquired by means of any act or practice declared by this Court to be unlawful, unfair or fraudulent and therefore constituting unfair competition under B P Code § 17200 et seq.;
b. For injunctive relief pursuant to B P Code § 17203, consisting of, inter alia, a declaration that Defendant has engaged in unlawful and unfair and fraudulent business acts and practices in violation of B P Code § 17200 et seq.; and
c. Restitution, including, but not limited to, the relief permitted by the California IWC Wage Order No. 7-2001, that is, that Defendant be made to pay one hour of pay for each missed meal period of a Class Member during the Class Period; and that Defendant pay for all wages illegally deducted based on the incorrect assumption that drivers took off-duty 30 minute meal periods.
7. An award to Plaintiffs and the Class members of their attorneys' fees and costs of suit to the extent permitted by law, including, but not limited to, Cal. Code of Civil Procedure §§ 1021.5, and Labor Code §§ 218; and
8. All other relief as this Court deems proper.