IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON COUNTY OF KING. Plaintiff Steven Burnett, by his undersigned counsel, for his class action complaint

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1 THE HONORABLE CATHERINE SHAFFER Department 0 0 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON COUNTY OF KING STEVEN BURNETT, individually and on behalf of all others similarly situated, v. Plaintiffs, PAGLIACCI PIZZA, INC., a Washington corporation, Defendant. NO. --- SEA AMENDED CLASS ACTION COMPLAINT Plaintiff Steven Burnett, by his undersigned counsel, for his class action complaint against Defendant Pagliacci Pizza, Inc., alleges as follows: I. INTRODUCTION. Nature of Action. Defendant Pagliacci Pizza, Inc., ( Defendant or Pagliacci ) is a pizzeria chain that employs hundreds of employees at dozens of locations in the greater Seattle area. Despite touting itself as a successful local company that knows how to take care of its customers and its employees, Pagliacci has engaged in a systematic scheme of wage and hour abuses against its pizza delivery drivers. These abuses include: () failing to provide delivery drivers with the rest breaks to which they are entitled; () failing to provide delivery drivers with the meal breaks to which they are entitled; () failing to pay delivery drivers the automatic delivery charge paid by customers; () failing to disclose to the customer that the AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

2 0 0 automatic delivery charge is retained by Defendant; () failing to pay delivery drivers all of the wages to which they are entitled, including all tips and gratuities; () failing to fully reimburse delivery drivers for their automobile expenses; and () unlawfully deducting from delivery drivers wages, including but not limited to, deductions for credit card processing fees, deductions for purported customer complaints, and deductions for automobile expenses. Defendant s deliberate failure to pay these driver employees their earned wages violates Washington law.. Plaintiff and Class members are current and former Pagliacci delivery drivers who have been victimized by Pagliacci s unlawful compensation practices. This lawsuit is brought as a class action under state law to recover unpaid wages owed to Plaintiff and those similarly situated. II. JURISDICTION AND VENUE. Jurisdiction. Defendant is within the jurisdiction of this Court. Defendant does business in the State of Washington and has operations in King County. Defendant is registered in the State of Washington. Defendant has obtained the benefits of the laws of the State of Washington and the Washington retail and labor markets. This Court also has jurisdiction over this action under the City of Seattle Wage Theft Ordinance, chapter.0 SMC. See SMC.0.00(A).. Venue. Venue is proper in King County because Defendant operates and transacts business in King County, and Plaintiff performed work for Defendant in King County.. Governing Law. The claims asserted on behalf of Plaintiff and Class members in this complaint are brought under state and municipal law causes of action and are governed by Washington law and Seattle s municipal ordinance.. Lack of CAFA Jurisdiction. Federal jurisdiction is inappropriate under the Class Action Fairness Act, U.S.C. (d)()(a), because more than two-thirds of the members of the proposed plaintiff class in the aggregate are citizens of Washington; Defendant is a defendant from whom significant relief is sought by members of the plaintiff class; the alleged AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

3 0 0 conduct of Defendant forms a significant basis for the claims asserted by the proposed plaintiff class; Defendant is a citizen of Washington; the principal injuries resulting from the alleged conduct were incurred in Washington; and during the three-year period preceding the filing of this action, no other class action has been filed asserting same or similar factual allegations against Defendant on behalf of the same or other persons. Alternatively, federal jurisdiction is inappropriate under the Class Action Fairness Act, U.S.C. (d)()(b), because two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and Defendant, are citizens of the state of Washington. III. PARTIES. Plaintiff Steven Burnett. Plaintiff worked as a delivery driver for Pagliacci from approximately October 0 to July 0. During the duration of his employment, Plaintiff was a resident of Washington. Plaintiff performed his work for Pagliacci in King County, Washington, within the geographical boundaries of the City of Seattle.. Defendant Pagliacci Pizza, Inc. Defendant Pagliacci is a Washington corporation that employs hundreds of employees at more than locations throughout King County, Washington, including within the geographical boundaries of the City of Seattle. IV. CLASS ACTION ALLEGATIONS. Class Definition. Pursuant to Washington Civil Rule, Plaintiff brings this case as a class action on behalf of a Class defined as follows: All individuals who are or have been employed as delivery drivers by Pagliacci in the State of Washington from October, 0 through the date of final disposition of this action. Excluded from the Class are any entity in which Defendant has a controlling interest or which has a controlling interest in Defendant, and Defendant s legal representatives, assignees, and successors. Also excluded are the judge to whom this case is assigned and any member of the judge s immediate family. AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

4 0 0. Numerosity. Plaintiff believes that more than one hundred persons have worked as delivery drivers for Pagliacci in Washington during the relevant time period.. Commonality. There are numerous questions of law and fact common to Plaintiff and Class members. These questions include, but are not limited to, the following: a. Whether Pagliacci has engaged in a common course of failing to provide Class members with a ten-minute rest break for every four hours of work; b. Whether Pagliacci has engaged in a common course of requiring Class members to work more than three consecutive hours without a rest break; c. Whether Pagliacci has engaged in a common course of failing to ensure that Class members take the rest breaks to which they are entitled; d. Whether Pagliacci has engaged in a common course of failing to provide Class members with a thirty-minute meal break for every five hours of work; e. Whether Pagliacci has engaged in a common course of failing to ensure that Class members take with the meal breaks to which they are entitled; f. Whether Pagliacci has engaged in a common course of discouraging Class members from taking the meal breaks to which they are entitled; g. Whether Pagliacci has engaged in a common course of failing to disclose to customers that all or part of the automatic delivery charges collected from customers are retained by Pagliacci, not paid directly to the delivery drivers serving the customers; h. Whether Pagliacci has engaged in a common course of retaining money received as automatic delivery charges and not distributing that money to delivery drivers but instead using it to cover costs of doing business; i. Whether Pagliacci has engaged in a common course of failing to pay Class members all of the wages to which they are entitled, include all tips and gratuities; j. Whether Pagliacci made unlawful deductions to the wages of Plaintiff and Class members; AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

5 0 0 k. Whether Pagliacci unlawfully reduced the wages of Plaintiff and Class members for credit card processing fees; l. Whether Pagliacci unlawfully reduced the wages of Plaintiff and Class members as a penalty for mistakes or customer complaints; m. Whether Pagliacci unlawfully reduced the wages of Plaintiff and Class members by failing to pay them reimbursements for their automobile expenses for all miles actually driven as a requirement of their employment; n. Whether Pagliacci has engaged in a common course of requiring Class members to over-report the amounts they received in cash tips; o. Whether Pagliacci failed to keep true and accurate records of the rate or rates of pay, gross wages, and all deductions for each pay period; p. Whether Pagliacci failed to furnish itemized pay statements to Plaintiff and Class members; q. Whether Pagliacci willfully deprived Plaintiff and the Class of the wages to which they were entitled; r. Whether Pagliacci has violated RCW..00; s. Whether Pagliacci has violated WAC --0; t. Whether Pagliacci has violated RCW..00; u. Whether Pagliacci has violated RCW..0; v. Whether Pagliacci has violated RCW..00; w. Whether Pagliacci has violated WAC --0; x. Whether Pagliacci has violated WAC --0; y. Whether Pagliacci has violated RCW..00; z. Whether Pagliacci has violated SMC.0.00; aa. Whether Pagliacci has violated SMC.0.0; bb. Whether Pagliacci has violated SMC.0.00; and AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

6 cc. The nature and extent of class-wide injury and the measure of 0 0 compensation for such injury.. Typicality. Plaintiff s claims are typical of the claims of the members of the Class because Plaintiff worked for Defendant in Washington as a delivery driver. The claims of Plaintiff, like the claims of the Class, arise out of the same common course of conduct by Defendant and are based on the same legal and remedial theories.. Adequacy. Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff has retained competent and capable attorneys who are experienced trial lawyers with significant experience in complex and class action litigation, including employment law. Plaintiff and his counsel are committed to prosecuting this action vigorously on behalf of the Class and have the financial resources to do so. Neither Plaintiff nor his counsel have interests that are contrary to or that conflict with those of the proposed Class.. Predominance. Pagliacci has engaged in a common course of wage and hour abuse toward Plaintiff and members of the Class. The common issues arising from this conduct that affect Plaintiff and members of the Class predominate over any individual issues.. Superiority. Plaintiff and Class members have suffered and will continue to suffer harm and damages as a result of Pagliacci s unlawful and wrongful conduct. Absent a class action, however, most Class members likely would find the cost of litigating their claims prohibitive. Class treatment is superior to multiple individual suits or piecemeal litigation because it conserves judicial resources, promotes consistency and efficiency of adjudication, provides a forum for small claimants, and deters illegal activities. There will be no significant difficulty in the management of this case as a class action. The Class members are readily identifiable from Pagliacci s records. V. SUMMARY OF FACTUAL ALLEGATIONS. Pagliacci has engaged in and continues to engage in, a common course of wage and hour abuse against its delivery driver employees in the state of Washington. AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

7 0 0. Failure to provide rest breaks. Pagliacci has engaged in a common course of failing to provide Plaintiff and Class members with a paid ten-minute rest break for every four hours of work.. Pagliacci has engaged in a common course of requiring or permitting Plaintiff and Class members to work more than three consecutive hours without a rest break.. Pagliacci has engaged in a common course of failing to ensure Plaintiff and Class members have taken the rest breaks to which they are entitled.. Pagliacci has engaged in a common course of failing to provide Plaintiff and Class members with ten minutes of additional pay for each missed rest break.. Each time a delivery driver misses a rest break, Pagliacci receives the benefit of 0 minutes worked without paying for the time worked.. Failure to provide meal breaks. Pagliacci has engaged in a common course of failing to provide Plaintiff and Class members with a thirty-minute meal break for every five hours of work.. Pagliacci has engaged in a common course of requiring or permitting Plaintiff and Class members to work more than five consecutive hours without a meal break.. Pagliacci has engaged in a common course of failing to ensure Plaintiff and Class members have taken the meal breaks to which they are entitled..0 Pagliacci has engaged in a common course of discouraging Plaintiff and Class members from taking the meal breaks to which they are entitled.. Pagliacci had and continues to have a policy and practice of requiring delivery drivers to sign its Employment Registration form. Pagliacci s Employment Registration form requires employees to select one of two options for their Meal Benefits. One of the options the Food and Beverage (FAB) Package, which is touted as Designed by Pagliacci informs the employee that in exchange for free food, the employee may choose to take his meal breaks (a) during [his] paid rest breaks, (b) just before or after [his] shift or (c) AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

8 0 0 with [his] manager s permission on an unpaid break. The other option the Basic Package provides that the employee can take an unpaid 0-minute meal break, but the employee must get in line, order and pay for [the] food and beverage like any other customer.. Pagliacci s required Employment Registration form asks (and, indeed, incentivizes) employees to agree to a meal-break system that violates the law. Specifically, Pagliacci s asks employees to agree to take their meal breaks outside of the parameters established by law or to displace their required rest breaks with meal breaks. This is contrary to Pagliacci s affirmative duty to ensure employees are provided with and take the rest and meal breaks to which they are entitled.. Collecting and keeping automatic Delivery Charges. Pagliacci has engaged in a common course of retaining customers money received as automatic delivery charges and not distributing those funds to its delivery drivers. Instead Pagliacci retains the delivery charges collected from customers for its own financial profit or benefit.. Pagliacci has engaged in a common course of collecting a delivery charge from its customers, which are imposed automatically on each customer s receipt.. Pagliacci has engaged in a common course of failing to disclose in itemized receipts or in menus provided to customers that all or part of the automatic delivery charge collected from customers is retained by Pagliacci and not paid directly to the delivery drivers serving the customers.. Pagliacci has engaged in a common course of failing to disclose in its itemized receipts or in menus provided to customers the amount of the automatic service charges, if any, paid to the employee or employees serving the customer.. Failing to pay delivery drivers all tips and gratuities. Pagliacci has engaged in a common course of failing to pay delivery drivers all of the wages to which they are entitled, including the full amount of tips and gratuities given to drivers by customers. AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

9 0 0. Pagliacci has a practice of operating mandatory tip-pools, a procedure whereby Pagliacci requires delivery drivers to give to non-delivery employees (such as kitchen staff) a percentage of the tips the drivers received from customers for delivery services.. Failure to reimburse drivers for necessary business expenses. Pagliacci has engaged in a common course of depriving Plaintiffs and Class members full reimbursement for all of their necessary business expenditures..0 Pagliacci requires their delivery drivers to maintain and pay for safe, legallyoperable, and insured automobiles when delivering pizza and other food items.. Pagliacci delivery drivers incur costs for gasoline, vehicle parts and fluids, automobile repair and maintenance services, automobile insurance, and depreciation while delivering pizzas for the primary benefit of Pagliacci.. Pagliacci s Driver Agreement form states that Pagliacci will pay me Washington State s current minimum wage per hour plus, for each properly completed delivery in my vehicle, a reimbursement for automobile expenses.. Properly completed delivery does not include cancelled deliveries, where the customer fails to answer the door or cancels the delivery after the driver is already en route.. Pagliacci does not track the actual miles driven by its delivery drivers. Instead, Pagliacci reimburses drivers a set amount for each delivery, regardless of distance. This method underestimates the automobile expenses per mile incurred by Plaintiff and Class members.. In 0, the IRS business mileage reimbursement rate was $0. cents; in 0, the rate was $0.; and in 0, the rate was $0. cents per mile. Likewise, reputable companies that study the cost of owning and operating a motor vehicle and/or reasonable reimbursement rates, including AAA, have determined that the average cost of owning and operating a vehicle ranged between $0. and $0. during the same period. These figures AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

10 0 0 represent a reasonable approximation of the average cost of owning and operating a vehicle for use in delivering pizzas.. The driving conditions associated with the pizza delivery business cause more frequent maintenance costs, higher costs due to repairs associated with driving, and more rapid depreciation from driving as much as, and in the manner of, a delivery driver. Pagliacci s delivery drivers further experience lower gas mileage and higher repair costs than the average driver used to determine the average cost of owning and operating a vehicle described above due to the nature of the delivery business, including frequent starting and stopping of the engine, frequent braking, short routes as opposed to highway driving, and driving under time pressures.. Pagliacci s per-delivery reimbursement rate has resulted in an unreasonable underestimation of delivery drivers automobile expenses, causing systematic violations of Washington law as to Plaintiff and Class members.. Plaintiff was paid $ per hour in 0, $ per hour in 0, and $ per hour in 0. During Plaintiff s period of employment, the per-delivery reimbursement rate ranged from $0. and $0. cents per delivery before any deductions for mistakes or customer complaints.. Plaintiff estimates he made approximately three deliveries per hour of approximately four miles per roundtrip. In addition, Plaintiff estimates that he did not receive any reimbursements for at least two cancelled deliveries per month..0 Thus, since at least 0, Pagliacci s average effective reimbursement rate for Plaintiff was approximately $0. per mile ($0. per delivery / miles per delivery) at most, or $0. per mile ($0. per delivery / miles per delivery) when Pagliacci cut Plaintiff s reimbursement rate in half as a penalty for purported mistakes or customer complaints.. Using the IRS rate of $0. for 0 as a reasonable approximation of the automobile expenses Plaintiff incurred delivering pizzas during that time period, every mile AMENDED CLASS ACTION COMPLAINT 0 Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

11 0 0 driven on the job decreased Plaintiff s net wages anywhere from approximately $0. ($0. - $.) to $0. ($0. - $0.).. Class members were all subject to the same reimbursement policy under which they did not receive full reimbursements for their necessary business expenses.. Pagliacci s reimbursement policy did not reimburse Plaintiff or Class members for even their out-of-pocket expenses, much less the other costs they incur to own and operate their vehicles, and thus Pagliacci uniformly fails to reimburse delivery drivers at any reasonable approximation of the cost of owning and operating their vehicles for Pagliacci s benefit.. Deductions for credit card processing fees. Pagliacci has made unlawful deductions from the wages of Plaintiff and Class members for tips that customers pay to delivery drivers by credit card.. When a driver delivers to a Pagliacci customer, the customer is given the option of paying a tip to the delivery driver. If the customer pays by credit card and writes in a tip on the receipt, the tip for the delivery driver is added to the customer s credit card charge.. When the shift ends, the driver enters his tips into Pagliacci s Luigi system. If a customer paid a tip by credit card, the Luigi system automatically deducts a credit card charge from the tip. As a result, Pagliacci pays the driver less than the actual amount paid by the customer.. Pagliacci has engaged in a common course of failing to disclose or itemize on delivery drivers paystubs the amount it deducts from tips paid by credit card.. Deductions from wages for mistakes or customer complaints. Pagliacci has made unlawful deductions from the wages of Plaintiff and Class members as a penalty for mistakes or customer complaints. AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

12 0 0. In addition to paying Plaintiff and Class members an hourly wage, Pagliacci pays its delivery drivers a flat amount for each delivery as a purported reimbursement for automobile expenses..0 Pagliacci has engaged in a common course of making deductions to a driver s per-delivery reimbursement for up to two weeks at a time as a penalty for mistakes or customer complaints.. Pagliacci has engaged in a common course of failing to disclose these deductions on delivery drivers paystubs.. Overtaxing cash tips. Pagliacci has engaged in a common course of requiring Plaintiff and Class members to over-report amounts received in cash tips.. At the end of a shift, Pagliacci requires delivery drivers to enter their tips into Pagliacci s Luigi system. If a driver receives any of his tips in cash, he is required by Pagliacci to report the amount received in cash tips or at least percent, if the amount actually received in cash tips is lower than percent. system.. Pagliacci taxes delivery drivers tips based on the amounts reported in the Luigi. As a result of Pagliacci s policy requiring delivery drivers to report at least percent in cash tips even when the amount actually received is less than percent, Pagliacci has overtaxed delivery drivers and thereby taken deductions not authorized by law. VI. FIRST CLAIM FOR RELIEF (Violations of RCW..00 and WAC --0 Failure to Provide Rest Periods). Plaintiff and the Class reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs.. RCW..00 provides that [t]he welfare of the state of Washington demands that all employees be protected from conditions of labor which have a pernicious effect on their health. The state of Washington, therefore, exercising herein its police and AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

13 0 0 sovereign power declares that inadequate wages and unsanitary conditions of labor exert such pernicious effect.. RCW..00 provides that [i]t shall be unlawful to employ any person in any industry or occupation within the state of Washington under conditions of labor detrimental to their health.. Pursuant to RCW..00 and WAC --00, conditions of labor means and includes the conditions of rest and meal periods for employees.. WAC --0 provides that employees shall be allowed certain paid rest periods during their shifts.. Under Washington law, Pagliacci has an obligation to provide employees with the rest breaks to which they are entitled.. Under Washington law, Pagliacci has an obligation to ensure that employees take the rest breaks to which they are entitled.. Under Washington law, Pagliacci has an obligation to provide employees with ten minutes of additional pay for each missed rest break.. By the actions alleged above, Pagliacci has violated the provisions of RCW..00 and WAC As a result of the unlawful acts of Defendant, Plaintiff and the Class have been deprived of compensation in amounts to be determined at trial and pursuant to RCW..00, Plaintiff and the Class are entitled to recovery of such damages, including interest thereon, as well as attorneys fees and costs. VII. SECOND CLAIM FOR RELIEF (Violations of RCW..00 and WAC --0 Failure to Provide Meal Periods). Plaintiff and the Class reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

14 0 0. RCW..00 provides that [t]he welfare of the state of Washington demands that all employees be protected from conditions of labor which have a pernicious effect on their health. The state of Washington, therefore, exercising herein its police and sovereign power declares that inadequate wages and unsanitary conditions of labor exert such pernicious effect.. RCW..00 provides that [i]t shall be unlawful to employ any person in any industry or occupation within the state of Washington under conditions of labor detrimental to their health.. Pursuant to RCW..00 and WAC --00, conditions of labor means and includes the conditions of rest and meal periods for employees.. WAC --0 provides that employees shall be allowed certain meal periods during their shifts.. Under Washington law, Pagliacci has an obligation to provide employees with the meal breaks to which they are entitled.. Under Washington law, Pagliacci has an obligation to ensure that employees take the meal breaks to which they are entitled.. Under Washington law, Pagliacci has an obligation to provide employees with thirty minutes of additional pay for each missed meal break.. By the actions alleged above, Pagliacci has violated the provisions of RCW..00 and WAC As a result of the unlawful acts of Defendant, Plaintiff and the Class have been deprived of compensation in amounts to be determined at trial and pursuant to RCW..00, Plaintiff and the Class are entitled to recovery of such damages, including interest thereon, as well as attorneys fees and costs. AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

15 0 0 VIII. THIRD CLAIM FOR RELIEF (Violation of RCW..00 Payment of Wages Less Than Entitled). Plaintiff and the Class reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs.. Under RCW..00, employers must pay employees all wages to which they are entitled under the Washington Minimum Wage Act (WMWA).. By the actions alleged above, Pagliacci has violated the provisions of RCW..00 by failing to pay any wage whatsoever to Plaintiff and Class members for their missed rest and meal breaks.. Pagliacci has also violated the provisions of RCW..00 by failing to pay Plaintiff and Class members all their tips and gratuities.. RCW..00 defines wage as compensation due to an employee by reason of employment, payable in legal tender of the United States or checks on banks convertible into cash on demand at full face value, subject to such deductions, charges, or allowances as may be permitted by rules of the director.. RCW..00 s broad definition of wage includes tips and gratuities.. Under Washington law, tips are wages that belong to the employee to whom they are given. gratuities.. RCW..00()(a) requires employers to pay to employees all tips and. Pagliacci s mandatory tip pooling policies, credit card charges for tips paid by credit card, and over-taxation of cash tips deprive delivery drivers of all the wages to which they are entitled in violation of RCW As a result of the unlawful acts of Pagliacci, Plaintiff and the Class have been deprived of compensation in amounts to be determined at trial and pursuant to RCW..00(), Plaintiff and the Class are entitled to recovery of such damages, including interest thereon, as well as attorneys fees and costs. AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

16 0 0 IX. FOURTH CLAIM FOR RELIEF (Violations of RCW..00,..00, and..0 Washington Service Charge Collection and Payment Requirements). Plaintiff and the Class reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs.. RCW..0 defines a service charge as a a separately designated amount collected by employers from customers that is for services provided by employees, or is described in such a way that customers might reasonably believe that the amounts are for such services. RCW..0 requires [a]n employer that imposes an automatic service charge related to food, beverages, entertainment, or porterage provided to a customer must disclose in an itemized receipt and in any menu provided to the customer the percentage of the automatic service charge that is paid or is payable directly to the employee or employees serving the customer.. If employers fail to warn customers via an itemized receipt and in any menu provided to the customer that an automatic service charge is not payable to the employees servicing the customer, then, under and by virtue of RCW..00() and RCW..00(), the money collected from the automatic service charge must be paid to the employees servicing the customer.. RCW..00() provides that [a]n employer must pay to its employees... all service charges as defined under RCW..0 except those that, pursuant to RCW..0, are itemized as not being payable to the employee or employees servicing the customer.. RCW..00() provides that [a]ny employer who pays any employee less than wages to which such employee is entitled under or by virtue of this chapter, shall be liable to such employee affected for the full amount of such wage rate, less any amount actually paid to such employee by the employer, and for costs and such reasonable attorney s fees as may be allowed by the court. AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

17 0 0. By the actions alleged above, Pagliacci has violated RCW..00(), RCW..00, and RCW..0 by collecting automatic delivery charges from customers while failing to disclose in itemized receipts or in menus provided to customers that all or part of these automatic service charges are retained by Pagliacci, not paid directly to the delivery drivers serving the customers.. As a result of the unlawful acts of Defendant, Plaintiff and the Class have been deprived of compensation in amounts to be determined at trial and pursuant RCW..00, Plaintiff and the Class are entitled to recovery of such damages, including interest thereon, as well as attorneys fees and costs. X. FIFTH CLAIM FOR RELIEF (Violation of RCW..00 and WAC --0 Unlawful Deductions and Rebates) 0. Plaintiff and the Class reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 0. Pursuant to RCW..00 and WAC --0, an employer may not make deductions from employee s wages except in limited circumstances. 0. Under Washington law, deductions and rebates must be identified and recorded openly and clearly in employee payroll records. WAC --0(); see also RCW..00; WAC --00(). 0. Defendant made deductions and collected rebates from the wages of Plaintiff and Class members, including but not limited to, deductions for purported mistakes and customer complaints, deductions for credit card processing fees, over-taxing cash tips as a result of Pagliacci s policy requiring delivery drivers to report more in cash tips than they actually received, and failing to reimburse drivers for all necessary business expenses. 0. By the actions alleged above, Pagliacci violated Washington law. 0. As a result of the unlawful acts of Defendant, Plaintiff and the Class have been deprived of compensation in amounts to be determined at trial. Pursuant to RCW..00 AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

18 0 0 and WAC --0, Plaintiff and the Class are entitled to recovery of such damages, including interest thereon, as well as attorneys fees under RCW..00 and costs. XI. SIXTH CLAIM FOR RELIEF (RCW..00 Willful Refusal to Pay Wages). Plaintiff and the Class reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs.. RCW..00 provides that any employer who willfully and with intent to deprive the employee of any part of his wages, pays any employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract is guilty of a misdemeanor.. RCW..00 provides that any employer who violates the foregoing statute shall be liable in a civil action for twice the amount of wages withheld, together with costs of suit and reasonable attorneys fees.. The alleged unlawful actions by Defendant against Plaintiff and the Class, as set forth above, were committed willfully and with intent to deprive Plaintiff and the Class of part of their wages.. As such, based on the above allegations, Defendant violated the provisions of RCW As a result of the unlawful acts of Defendant, Plaintiff and the Class have been deprived of compensation in amounts to be determined at trial, and pursuant to RCW..00 are entitled to recovery of twice such amounts, including interest thereon, attorneys fees and costs. XII. SEVENTH CLAIM FOR RELIEF (Violations of SMC.0.00 Failure to Pay All Compensation Owed). Plaintiff and the Class reallege and incorporate by reference each and every allegation set forth in the preceding paragraphs. AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

19 0 0. SMC.0.00 provides that [a]n employer shall pay all compensation owed to an employee by reason of employment on an established regular pay day at no longer than monthly payment intervals.. SMC.0.0 provides that each time compensation is paid, an employer shall give written notice to the employee of all hours worked and all deductions taken by the employer for that pay period.. SMC.0.0 provides that the employer must also retain payroll records that document all hours worked by each employee, including straight-time and overtime hours, and records of all deductions taken from the employee s wages each pay period.. SMC.0.0 provides that the failure of an employer to comply with any requirement imposed upon it under Chapter.0 ( Wage Theft Ordinance ) constitutes a violation of the ordinance.. SMC.0.00(A) provides that any person or class of persons that suffers financial injury as a result of a violation of [the Wage Theft Ordinance]... may be awarded reasonable attorney fees and costs and such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any unpaid compensation plus interest due to the person and liquidated damages in an additional amount of up to twice the unpaid compensation..... By the actions alleged above, Defendant has violated the provisions of SMC.0.00 by failing to pay all compensation owed to Plaintiff and Class members by reason of their employment, including compensation for missed rest and meal breaks; compensation for all hours of work; full payment of all wages and tips; reimbursement for expenses; and compensation for unlawful deductions from wages owed.. As a result of the unlawful acts of Defendant, Plaintiff and members of the Class have been deprived of compensation in amounts to be determined at trial, and Plaintiff and members of the Class are entitled to the recovery of such damages, including interest AMENDED CLASS ACTION COMPLAINT Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0

20 0 0 thereon, an additional amount of twice the unpaid compensation, and attorneys fees and costs under SMC XIII. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on his own behalf and on behalf of the members of the Class, pray for a judgment against Pagliacci Pizza, Inc., as follows: A. Certify the proposed Class; B. Appoint Plaintiff as Class representative; C. Appoint the undersigned attorneys as Class counsel; D. Declare that the actions complained of herein violate Washington law; E. Award Plaintiff and Class members compensatory and exemplary damages; F. Award attorneys fees and costs to Plaintiff s attorneys, as allowed by law; G. Award pre-judgment and post-judgment interest to Plaintiff and Class members, as provided by law; and H. Grant such other and further relief as this Court deems necessary. RESPECTFULLY SUBMITTED AND DATED this 0th day of October, 0. By: /s/ Erika L. Nusser, WSBA #0 Toby J. Marshall, WSBA # tmarshall@terrellmarshall.com Erika L. Nusser, WSBA #0 enusser@terrellmarshall.com North th Street, Suite 00 Seattle, Washington 0 Telephone: (0) -0 Facsimile: (0) -0 Attorneys for Plaintiff AMENDED CLASS ACTION COMPLAINT 0 Case No. --- SEA North th Street, Suite 00 Seattle, Washington 0- TEL FAX 0..0