SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SONOMA

Transcription

1 1 1 Alan Harris (SBN ) HARRIS & RUBLE North Central Avenue Glendale, California 1 Telephone:.. Facsimile:..00 aharris@harrisandruble.com David S. Harris (SBN ) NORTH BAY LAW GROUP 1 E. Blithedale Avenue, Suite Mill Valley, California 1 Telephone:.. Facsimile:..0 dsh@northbaylawgroup.com Attorneys for Plaintiffs Leslie Veurink and Andrew Carr SUPERIOR COURT OF THE STATE OF CALIFORNIA LESLIE VEURINK and ANDREW CARR, individually and on behalf of all others similarly situated, v. Plaintiffs, BEVERLY HEALTH AND REHABILITATION SERVICES, INC., GOLDEN LIVINGCENTER - PETALUMA, GGNSC ADMINISTRATIVE SERVICES, LLC, HOSPICE PREFERRED CHOICE, INC. and DOES 1 to, Defendants. COUNTY OF SONOMA Case No. SCV CLASS ACTION AND COLLECTIVE ACTION 1. Failure to Pay Minimum Wage and Overtime Compensation, California Labor Code. Failure to Provide Accurate Itemized Wage Statements (Cal. Lab. Code ). Failure to Pay Overtime Compensation, Fair Labor Standards Act. Failure to Provide Proper Response to Information Request (Cal. Lab. Code (c)). Failure to Provide Adequate Meal Periods. Failure to Provide Adequate Rest Periods. Continuing Wages (Cal. Lab. Code ). Violations of Section 0 et seq. of the California Business and Professions Code. Retaliation and Wrongful Termination in Violation of Cal. Lab. Code.. Retaliation and Wrongful 1

2 1 1 Termination in Violation of California Public Policy. Retaliation for Engaging in Protected Activity California Government Code section 0(g). Sexual Orientation Discrimination California Government Code section 0(a) DEMAND FOR JURY TRIAL Plaintiffs Leslie Veurink and Andrew Carr, by and through their undersigned attorneys, alleges as follows: JURISDICTION AND VENUE 1. This is a civil class action seeking continuing wages, restitution, injunctive relief, damages and attorneys fees and costs. Venue is proper in this judicial district, pursuant to California Business & Professions Code section and California Code of Civil Procedure sections (a) and.. Defendants maintain an office, transact business, have an agent, or are found in the County of Sonoma and are within the jurisdiction of this Court for purposes of service of process. The unlawful acts alleged herein had a direct effect on and were committed within the County of Sonoma, State of California. PARTIES. Plaintiff Leslie Veurink (hereinafter, Veurink ) is an individual who, during the time periods relevant to this Complaint, was employed by Defendants within the City of Petaluma, State of California. Plaintiff is a resident of the State of California.. Plaintiff Andrew Carr (hereinafter Carr ) is an individual who, during the time periods relevant to this Complaint, was employed by Defendants within the City of Petaluma, State of California. Plaintiff is a resident of the State of California. Plaintiffs Veurink and Carr are collectively referred to herein as Plaintiffs.. Defendant BEVERLY HEALTH AND REHABILITATION SERVICES, INC. ( BHRS ) was and is a California Corporation doing business within the State of California. BHRS is headquartered in Fort Smith, Arkansas. Plaintiff is informed and

3 1 1 believes and thereupon alleges that BHRS holds the skilled nursing facility license for a number of Golden Living facilities throughout California, including without limitation Defendant GOLDEN LIVINGCENTER PETALUMA ( GLCP ). Plaintiff is informed and believes and thereupon alleges that in addition to holding the skilled nursing facility license and owning and operating GLCP, it also holds the skilled nursing facility license and owns and operates, without limitation, all of the following Golden LivingCenters in California: Golden LivingCenter Bakersfield, Golden LivingCenter - Chateau in Stockton, Golden LivingCenter - Galt, Golden LivingCenter - London House Sonoma, Golden LivingCenter - Napa, Golden LivingCenter - Portside of Stockton, Golden LivingCenter - San Jose, and Golden LivingCenter - Santa Rosa.. GGNSC Administrative Services, LLC is a Delaware limited liability company, authorized to do business in California. Defendant Hospice Preferred Choice, Inc. is a Delaware corporation, authorized to do business in California. Hereinafter BHRS, GLCP, GGNSC Administrative Services, LLC and Hospice Preferred Choice, Inc. shall be collectively referred to as Defendants.. The true names and/or capacities, whether individual, corporate, associate or otherwise, of defendants Does 1 to inclusive, are unknown to Plaintiffs at this time, who therefore sues said defendants by such fictitious names. When the true names and capacities of said defendants have been ascertained, Plaintiffs will amend this complaint accordingly. Plaintiffs are informed and believes and thereupon alleges that each defendant designated herein as a Doe is responsible, negligently, intentionally, contractually, or in some other actionable manner, for the events and happenings hereinafter referred to, and caused injuries and damages proximately thereby to Plaintiffs as is hereinafter alleged, either through said defendants' own wrongful conduct or through the conduct of their agents, servants, employees, representatives, officers or attorneys, or in some other manner. NATURE OF THE CASE

4 1 1. This action is brought as a class action and federal Fair Labor Standards Act ( FLSA ) collective action on behalf of all current and former hourly clinical employees of Defendants employed in California during the Class Period, i.e. from June, 0 to May, 1. This action is also brought as a collective action on behalf of all individuals who, at any time during the three years preceding the filing of the Carr Complaint, were or have been employed by Defendants in the State of California. As set forth in detail infra, this action is also brought as an individual action on behalf of Plaintiff Carr.. Defendants operate skilled nursing facilities throughout the State of California. These facilities purport to provide skilled and special services to the elderly and sick residents. Defendants services include but are not limited to nursing, physical therapy, speech therapy, occupational therapy, stroke rehabilitation, balance management, IV therapy, diabetes management, pain management, continence management dialysis care, and wound care. Additionally, Defendants provide residents with special services include dementia and Alzheimer s care and long term care. Defendants facilities provide residents with a wide array of amenities including, without limitation, dining facilities, hairdressing, spiritual services, recreational and social activities and transportation.. Plaintiff Veurink worked as a Nurse at Defendants Golden LivingCenter facility in Petaluma, California (the GLCP facility ) until her employment by Defendants ended. In Plaintiff Veurink s capacity as a Nurse, she provided nursing care to the residents of the facility. Plaintiff Carr worked at Defendants GLCP facility from on or about October 0 through on or about June 1,, when his employment was terminated by Defendants. In his capacity as an employee for Defendants, Plaintiff Carr worked as a Licensed Vocational Nurse or LVN. In Plaintiff Carr s capacity as an LVN, he would provide nursing care to the residents of the GLCP facility. The services Plaintiffs provided included, without limitation, the following: administer medication, treatments, patient teaching and documentation; monitor -hour chart checks;

5 1 1 assist/create facility forms (i.e., standardized orders for comfort care residents); organize pneumonia and influenza vaccine programs; patient teaching and documentation; assist doctors with bedside procedures (i.e., central line insertion, lumbar punctures); drug administration to patients; IV pumps; injections & immunizations; maintenance of tracheotomy patients; blood glucose monitoring; post-surgical coronary care; maintenance of AV fistulas; oxygen therapy; chest, NB/sump peg tubes; maintenancy of psychiatric patients and families; wound care; basic life support; geriatric care; patient/family education; care plan administration; admissions transfers and discharges; transcription of physicians orders, coordinate patient transportation; and attended educational classes to maintain LVN duties.. Defendants provide their residents assigned, trained staff. The staff must be available to the residents hours per day, days per week. Indeed, there is always an employee who is responsible for a resident s care. Due to the Defendants promise to provide around-the-clock services, Defendants employees are instructed that they may not leave their floor or assigned area for any reason unless another employee relieves them.. The State of California also has laws that require certain types of facilities, like those run by Defendants, to maintain minimal staffing ratios for particular categories of residents that are under their care. Thus, in certain areas within Defendants facilities, higher staffing ratios must be maintained in order to comply with California law.. Due to the strict -hour monitoring policy of residents, Defendants employees cannot take a meal or rest break unless another employee comes to relieve them of their duties. Furthermore, Defendants own written policy states that Defendants management will schedule a meal period for each employee who is scheduled to work more than a five-hour shift. Thus, Defendants employees, including Plaintiff, were unable to take their meal or rest periods unless and until scheduled and approved by management, and until another employee came to relieve them. Similarly, with respect to rest breaks, Defendants written policy states that it is the responsibility of

6 1 1 the department head or immediate supervisor to schedule paid fifteen-minute rest periods for each four hours of working time. Once again, however, Defendants employees could not take a rest period unless and until it was scheduled and approved by management, and until another employee came to relieve them. 1. Defendants both failed to employ an adequate number of employees and had no provisions or ability to consistently allow and/or provide an employee with rest breaks. In addition, Defendants failed to provide a one-hour wage premium to Plaintiff and other employees for those times when an employee did not receive a meal or rest break. Furthermore, Defendants employees were regularly unable to take a 0-minute meal break and had to eat their meal in their assigned area while continuing to monitor their residents. In those rare instances when employees were relieved of their responsibilities and provided with a meal break, many times the meal break was either not provided to Defendants employees within the first five hours of the shift, or, the employees did not receive a full 0-minute break during which the employee was relieved of all duties, and, in addition, when working shifts in excess of ten or fifteen hours per day, the Defendants employees were not properly provided the required rest and meal periods. 1. In those instances (1) when an employee was required to work through the meal break, () when an employee was required to come back from a meal break before they were able to finish their entire 0-minute meal period, or () when an employee did not receive their meal break within the first five hours of their workday or an additional meal break for each subsequent five-hour period, Defendants largely failed to provide their employees with one additional hour of pay at the employee s regular rate of compensation for each work day that the proper 0-minute meal period was not provided to the employee. For example, attached hereto as Exhibit 1 is a copy of one of Plaintiff Carr s timecards. As set forth therein, on July, and, Plaintiff Carr did not receive his lunch break within the first five hours of his shifts, thereby entitling him to a one-hour wage premium.

7 1 1. Additionally, it is the regular practice at Defendants facilities, including GLCP, for one of Defendants employees in charge of time-keeping and payroll to go into Defendants electronic time keeping system and manually insert or change a punch in and punch out on an employee s time card to make it appear as though the employee took their entire 0-minute meal break, even though no such break was provided by Defendants. Defendants would make these changes to employee time cards without obtaining the approval of the employee. Defendants own written policy requires that in order to change an employee s time or to add a missed punch, they must fill out a Time Clock Adjustment form, which requires that all corrections be initialed by both the employee and the employee s supervisor. However, in almost all such instances, employees time was changed to make it appear as though they received their 0-minute meal break even though no such meal break was provided and the employee and supervisor did not sign a Time Clock Adjustment form. Employees are owed a one-hour wage premium, as well as owed regular overtime wages for the on-duty meal period, for all of the above violations.. At the end of a regularly scheduled shift, Plaintiffs and other employees were often not done with the work required for that day. For example, Plaintiffs often needed to complete charting even though the scheduled shift had been completed. Employees, including Plaintiffs, were required to punch out and then come back and finish their charting. In such instances, Plaintiffs and other employees were not paid minimum wage and/or overtime wages for their time spent working off the clock. Further, Defendant failed to properly compute the applicable regular rate when determining the overtime wage rate to pay its employees, including Plaintiffs.. At all relevant times mentioned herein, section (a) of the California Labor Code provided: Eight hours of labor constitutes a day s work. Any work in excess of eight hours in one workday and any work in excess of 0 hours in any one workweek and the first eight hours worked on the seventh day of work in

8 1 1 any one workweek shall be compensated at the rate of at least one and one-half times the regular rate of pay for an employee. Any work in excess of hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. Nothing in this section requires an employer to combine more than one rate of overtime compensation in order to calculate the amount to be paid to an employee for any hour of overtime work. The requirements of this section do not apply to the payment of overtime compensation to an employee working pursuant to any of the following (1) An alternative workweek schedule adopted pursuant to Section. () An alternative workweek schedule adopted pursuant to a collective bargaining agreement pursuant to Section 1. Cal. Lab. Code.. In regard to Plaintiffs employment, the provisions of subparagraphs (1) and () of section of the California Labor Code were inapplicable because no alternative workweek schedule had been adopted pursuant to section, and Plaintiffs employment to which reference is hereinafter made was not governed by any collective bargaining agreement.. At all relevant times mentioned herein, section 1 of the California Labor Code provided: 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... overtime compensation, including interest thereon, reasonable attorney s fees, and costs of suit.

9 1 1 Cal. Lab. Code 1. At all relevant times mentioned herein, section 1. of the California Labor Code provided: (a) In any action under... Section 1 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. Cal. Lab. Code 1... Notwithstanding the foregoing requirements of law, Plaintiffs were routinely denied proper payment of minimum wage or overtime wages. For example, Plaintiffs were not compensated for all work performed after the scheduled work shift. Additionally: (1) Plaintiffs and other employees were not compensated for time the employee worked during a meal break in those instances when an improper change or additional improper punch was added to Plaintiffs time cards to make it appear as though Plaintiffs received a 0 minute meal break and () Plaintiffs and other employees were not routinely paid the full overtime rate to which they were entitled, Defendant failing to properly compute the applicable regular rate.. Accordingly, at all times relevant hereto, sections,, 1, and of the California Labor Code and California Code of Regulations section 10 1 required (1) the payment of wages equal to one-and-one-half times an employee s regular rate of pay for all hours worked in excess of eight per day or forty per week and () the payment of wages equal to double the employee s regular rate of pay for all hours worked in excess of twelve per day and for all hours worked in excess of eight on the seventh day of work in any one workweek.. Similarly, at all times relevant hereto, the FLSA provided: [N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of 1 Section 10 sets forth the relevant Industrial Welfare Commission Wage Order.

10 1 1 goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed U.S.C. (a)(1).. At all times relevant hereto, sections. and of the California Labor Code, as well as California Code of Regulations section 10, required employers to provide employees with a first meal period of not less than thirty minutes, during which the employees are to be relieved of all duty, before the employees work more than five hours per day. Sections. and of the California Labor Code, as well as California Code of Regulations section 10, also required employers to provide a second meal period of not less than thirty minutes, during which the employees are again to be relieved of all duty, before the employees work more than ten hours per day. According to the Regulation: Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight () total hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one day s written notice. The employee shall be fully compensated for all working time, including any on-thejob meal period, while such a waiver is in effect.. At all times relevant hereto, sections. and of the California Labor Code, as well as California Code of Regulations section 10, required employers to provide employees with ten-minute rest periods, during which the employees are relieved of all duty, for each four hours of work or fraction thereof. As alleged herein, Defendants intentionally and improperly failed to provide meal and rest periods to its employees in violation of the California Labor Code and California Code of Regulations.

11 1 1. At all relevant times mentioned herein, section of the California Labor Code provided: If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 1, 1., and., any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until action therefor is commenced; but the wages shall not continue for more than 0 days. Cal. Lab. Code.. Plaintiffs contend that the failure of Defendants to pay them within the time provided by sections 1 and of the California Labor Code has been and is willful within the meaning of section of the California Labor Code and that, accordingly, Plaintiffs are entitled to the continuing wages provided for by section.. At all relevant times mentioned herein, section of the California Labor Code provided: The maximum hours of work and the standard conditions of labor fixed by the [Industrial Welfare Commission] shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by [an] order or under conditions of labor prohibited by [an] order is unlawful. Cal. Lab. Code.. At all relevant times mentioned herein, Wage Order Number (as periodically amended) applied to Plaintiffs. Cal. Code Reg Wage Order requires a one-hour wage premium for each day that an employee is not provided with a mandated ten-minute rest period per four-hour work period or major fraction thereof. Additionally, Wage Order requires a one-hour wage premium for each day that an employee is not provided with a mandated thirty-minute meal period for any shift that is longer than five hours. Finally, Wage Order requires

12 1 1 that those who are employed more than eight () hours in any workday or more than 0 hours in any workweek receive overtime compensation. 0. The right to rest periods and meal periods has been codified in sections. and of the California Labor Code. At all relevant times mentioned herein, section (a) provided: 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 0 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 hours per day without providing the employee with a second meal period of not less than 0 minutes, except that if the total hours worked is no more than 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. At all relevant times mentioned herein, section.(b) provided: If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee s regular rate of compensation for each work day that the meal or rest period is not provided. 1. Compensation for missed rest and meal periods constitutes wages within the meaning of section 1 of the California Labor Code.. At all relevant times mentioned herein, section of the California Labor Code provided: (a) Any employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare

13 1 1 Commission shall be subject to a civil penalty as follows: (1) For any initial violation, fifty dollars ($0) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. () For each subsequent violation, one hundred dollars ($0) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. () Wages recovered pursuant to this section shall be paid to the affected employee.. Plaintiffs contend that Defendants failure to comply with sections and of the California Labor Code subjects Defendants to civil penalties pursuant to section.. At all times relevant hereto, sections, 1, and 1. of the California Labor Code required employers to keep records of and provide employees with itemized wage statements showing the total hours worked.. Plaintiffs also contend that Defendants failure to comply with section of the California Labor Code subjects Defendants to civil penalties pursuant to section. of the California Labor Code. At all relevant times mentioned herein, section of the California Labor Code provided: (a) 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 itemized statement in writing showing (1) gross wages earned, () total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section or any applicable order of the Industrial Welfare Commission, () the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, () all deductions, 1

14 1 1 provided, that all deductions made on written orders of the employee may be aggregated and shown as one item, () net wages earned, () the inclusive dates of the period for which the employee is paid, () the name of the employee and his or her social security number, () the name and address of the legal entity that is the employer, and () all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California..... (e) An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($0) for the initial pay period in which a violation occurs and one hundred dollars ($0) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($,000), and is entitled to an award of costs and reasonable attorney s fees..... (g) An employee may also bring an action for injunctive relief to ensure compliance with this section, and is entitled to an award of costs and reasonable attorney's fees. Cal. Lab. Code. Defendants employed Plaintiffs and other employees but failed to provide them with the data required by section of the California Labor Code. For example, Defendants failed to provide information concerning (1) all wages earned on account of meal and rest penalties, () the total hours 1

15 1 1 worked by the employee, () information regarding the time and wages for work performed by Plaintiffs but not paid for by Defendants and () the correct overtime rate based on the correct regular rate. Exhibit hereto reflects certain of Plaintiff Carr s wage statements.. At all relevant times mentioned herein, section. of the California Labor Code provided: Any employer who violates subdivision (a) of Section shall be subject to a civil penalty in the amount of two hundred fifty dollars ($0) per employee per violation in an initial citation and one thousand dollars ($1,000) per employee for each violation in a subsequent citation, for which the employer fails to provide the employee a wage deduction statement or fails to keep the records required in subdivision (a) of Section. The civil penalties provided for in this section are in addition to any other penalty provided by law. Cal. Lab. Code... At all relevant times mentioned herein, section (a) of the California Labor Code provided: All wages, other than those mentioned in Section 1,,.1, or., earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays. Labor performed between the 1st and th days, inclusive, of any calendar month shall be paid for between the th and the th day of the month during which the labor was performed, and labor performed between the th and the last day, inclusive, of any calendar month, shall be paid for between the 1st and th day of the following month. Cal. Lab. Code (a). California Labor Code section 0 provides civil penalties for violations of California Labor Code section.

16 1 1. Defendants conduct of requiring additional work from Plaintiffs and Class Members in the absence of minimum wage and overtime pay, knowingly and intentionally failing to provide accurate itemized wage statements, failing to provide adequate meal and rest periods, and willfully failing to pay wages earned and unpaid promptly upon employees termination or resignation violates the above-referenced provisions of California law and also constitutes unfair competition and unlawful, unfair, and fraudulent acts and practices within the meaning of section 0 et seq. of the California Business and Professions Code. CLASS-ACTION ALLEGATIONS. The class represented by Plaintiffs (hereinafter referred to as the Class ) consists of all current and former hourly clinical employees of Beverly Health and Rehabilitation Services, Inc., GGNSC Administrative Services, LLC and Hospice Preferred Choice, Inc., employed in California during the Class Period, i.e. from June, 0 to May, 1. The class excludes 1) any individual who is a Plaintiff in pending litigation against Golden Living in federal or state court involving claims under the FLSA or California Labor Code or who executed a court-approved waiver of claims in any such case, and ) any individual who chose to opt-in and receive a settlement payment in the case of Jarrett v. GGSNC Holdings, LLC, :-cv-0-bp, pending in the United States District Court for the Western District of Missouri. (such persons referred to hereafter as Class Members and such period referred to hereafter as Class Period ). 0. Plaintiffs contend that the failure of Defendants to provide the data required by section of the California Labor Code entitles each Class Member to either actual damages or statutory damages, whichever is greater. 1. Plaintiffs contend that Defendants failure to pay wages as provided by section. of the California Labor Code entitles each Class Member to payment of such earned but unpaid wages owing on account of missed rest periods and meal breaks.

17 1 1. Plaintiffs contend that Defendants failure to pay minimum wages and overtime wages as provided by sections, 1 and 1 of the California Labor Code entitles each Class Member to payment of such earned but unpaid wages, Defendants having, inter alia, failed to consider unpaid wages owed on account of missed rest periods and meal breaks in computing the overtime rate applicable to Plaintiffs and Class Members.. Plaintiffs contend that the failure of Defendants to make final wage payments within the time provided by sections 1 and/or of the California Labor Code has been and is willful within the meaning of section of the California Labor Code and that, accordingly, each Class Member who has had his or her employment with Defendants terminated is entitled to the continuing wages for which provision is made by section of the California Labor Code.. The number of Class Members is great, believed to be approximately 1,000 persons. It therefore is impractical to join each Class Member as a named plaintiff. Nevertheless, the number of Class Members is not so great as to make certification unmanageable. Accordingly, utilization of a class action is the most economically feasible means of determining the merits of this litigation.. Despite the numerosity of the Class Members, the Class Members are readily ascertainable through an examination of the records that Defendants are required by law to keep. Likewise, the dollar amount owed to each Class Member is readily ascertainable by an examination of those same records. The Defendants records reflect the name and address of its employees, along with a description of their job duties.. Common questions of fact and of law predominate in the claims of Class Members over individual issues regarding the money owed to each Class Member. Some of the common issues herein are described in Paragraph, infra.. There is a well-defined community of interest in the questions of law and fact common to the Class Members. Some of the common issues herein are described in Paragraph, infra.

18 1 1. Plaintiffs claims are typical of the claims of the Class Members, which claims all arise from the same general operative facts, namely, Defendants did not compensate its employees as required by the California Labor Code and the Fair Labor Standards Act. Plaintiffs have no conflict of interest with the other Class Members or Class Members and Plaintiffs and Plaintiffs counsel are able to represent the interests of the other Class Members fairly and adequately.. A class action is a superior method for the fair and efficient adjudication of this controversy. The persons within the Class are so numerous that joinder of all of them is impracticable. The disposition of all claims of the members of the class in a class action, rather than in individual actions, benefits the parties and the court. The interest of the Class Members in controlling the prosecution of separate claims against Defendant is small when compared with the efficiency of a class action. The claims of each individual Class Member are too small to litigate individually, and the commencement of separate actions in this Court would lead to an undue burden on scarce judicial resources. Further, the alternative of individual proceedings before the California Labor Commissioner is impractical inasmuch as that agency has insufficient resources to process such claims promptly and, under the provisions of California Labor Code section., if the individual class members were to succeed in obtaining awards in their favor, such awards are subject to appeal as a matter of right for a de novo trial, leading to a multiplicity of such trials. Further, absent class treatment, employees will most likely be unable to secure redress given the time and expense necessary to pursue individual claims, and individual Class Members will likely be unable to retain counsel willing to prosecute their claims on an individual basis, given the small amount of recovery. As a practical matter, denial of class treatment will lead to denial of recovery to the individual Class Members. 0. Community of Interest; Existence and Predominance of Common Questions of Law or Fact. Common questions of fact and law exist as to all Class Members that predominate over any questions affecting only individual Class Members.

19 1 1 These common legal and factual questions do not vary among Class Members and may be determined without reference to the individual circumstances of any Class Member. The questions include, but are not limited to, the following: (a) Was such Class Member an employee of BHRS? (b) Was such Class Member provided a wage statement that complied with section of the California Labor Code? (b) Was such Class Member entitled to continuing wages from Defendants? (c) Was such Class Member paid his or her wages as provided by sections 1 and/or of the California Labor Code? (d) Did Defendants fail to timely pay Class members their overtime wages? (e) Did Defendants fail to pay Class Members for work performed after a work shift and/or during a lunch? (f) Did Defendants fail to provide Class Members with an appropriate thirtyminute, uninterrupted meal break within the first five hours of the work period? (g) Did Defendants fail to provide Class Members with a mandated ten-minute rest period per four-hour work period? (h) Did Defendants fail to follow the requirements of the applicable Wage Order? (i) Did Defendants commit unlawful business acts or practices within the meaning of California Business and Professions Code sections 0 et seq.? 1. Numerosity of the Class. The Members of the Class are so numerous that the individual joinder of all of them is impracticable. Although the exact number and identities of Class Members are unknown to Plaintiffs at this time and can only be ascertained through appropriate discovery directed to defendants, Plaintiffs believe and therefore allege that there are at least 1,000 Class Members.. Typicality of Claims. Plaintiffs claims are typical of the claims of Members of the Class, and Plaintiffs interests are consistent with and not antagonistic to those of the other Class Members whom they seek to represent. Plaintiffs and all Members of the Class have sustained damages and face irreparable harm arising from

20 1 1 Defendants common course of conduct as complained of herein. The damages sustained by each Member of the Class were caused directly by Defendants wrongful conduct, as alleged herein.. Adequacy of Representation. Plaintiffs will fairly and adequately protect the interests of the Class Members. Their claims are not antagonistic to those of the Class Members. Also, Plaintiffs have retained attorneys who are experienced in the prosecution of class actions, including employment class actions, and Plaintiffs intend to prosecute this action vigorously.. Superiority. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because individual litigation of the claims of all Class Members is impracticable. Even if every Class Member could afford individual litigation, the court system could not. It would be unduly burdensome to the courts in which individual litigation of numerous cases would proceed. Moreover, individualized litigation would present the potential for varying, inconsistent, or contradictory judgments, and it would magnify the delay and expense to all parties and to the court system resulting from multiple trials of the same factual issues. By contrast, the conduct of this action as a class action, with respect to some or all of the issues presented herein, presents few management difficulties, conserves the resources of the parties and of the court system, and protects the rights of each Class Member. Plaintiffs anticipate no difficulty in the management of this action as a class action.. The interest of each Class Member in controlling the prosecution of his or her individual claim against Defendants is small when compared with the efficiency of a class action. The prosecution of separate actions by individual Class Members may create a risk of adjudications with respect to them that would, as a practical matter, be dispositive of the interests of the other Class Members not parties to such adjudications or that would substantially impair or impede the ability of such non-party Class Members to protect their interests.. The prosecution of individual actions by Class Members would establish

21 1 1 inconsistent standards of conduct for Defendants.. Defendants have acted or refused to act in respects generally applicable to the Class, thereby making appropriate final and injunctive relief or corresponding declaratory relief with regard to Class Members as a whole, as requested herein. Likewise, Defendants conduct as described above is unlawful, continuing, and capable of repetition, and it will continue unless restrained and enjoined by the Court.. In addition to asserting class-action claims, pursuant to California Business and Professions Code section 0 et seq., Plaintiffs assert a claim on behalf of the general public. Plaintiffs seek to enjoin Defendants from engaging in the unfair, unlawful, and/or deceptive business practices alleged in this Complaint, as well as to require Defendants to pay restitution of all monies wrongfully obtained by it through its unfair, unlawful, and/or deceptive business practices. A representative action is necessary and appropriate because Defendants have engaged in the wrongful acts described herein as a general business practice. FLSA COLLECTIVE-ACTION ALLEGATIONS. In this collective action, Plaintiffs seek to represent all current and former hourly clinical employees of Defendants, employed in the State of California during the period from June, 0 to May, 1 (the Collective Action Members ). 0. Plaintiffs are similarly situated with the Collective Action Members in that: (a) Plaintiffs and the Collective Action Members were employed by Defendants; (b) Plaintiffs and the Collective Action Members were not paid their wages for actual hours worked; (c) Plaintiffs and the Collective Action Members were not paid for work performed after a regularly scheduled work shift and for hours worked during their lunch break; (d) Defendants knowingly and willfully violated provisions of the FLSA, by not paying Plaintiffs and the Collective Action Members their wages; (e) As a result of Defendants practice of withholding compensation for all hours worked, Plaintiffs and the Collective Action Members have been similarly damaged in that they have not received timely payment in full of their earned wages.

22 This action is maintainable as an opt-in collective action pursuant to U.S.C. (b) as to claims for liquidated damages, costs and attorneys fees under the FLSA.. All individuals employed by Defendants should be given notice and be allowed to give their consent in writing, i.e., opt in, to the collective action pursuant ot U.S.C. (b). PLAINTIFF CARR S INDIVIDUAL CLAIMS AGAINST DEFENDANTS. Plaintiff Carr began working for Defendants in October 0 as an LVN. Not long after beginning his employment, Plaintiff Carr became concerned regarding the medical services being provided to the residents of GLCP. In particular, Plaintiff Carr was concerned that proper procedures were not being followed by coworkers and that as a result, the residents were not receiving the level of medical treatment that was required, both as represented by Defendants to their residents and families, as well as in accordance with California law. Carr first began reporting his concerns to the Director of Nursing and then to the Administrator onsite at GLCP. Unfortunately, Plaintiff Carr s concerns and reports to onsite management would largely fall on deaf ears. As such, Plaintiff Carr began escalating his complaints and concerns, reporting them to the BHRS s local human resources department. Still, little, if anything, was done by Defendants in response to Plaintiff s complaints and reports.. Throughout the course of his employment with Defendants, and without limitation, Plaintiff Carr reported to Defendants onsite management and/or directly to Defendants corporate offices, issues regarding all of the following: Medical paperwork and reports regarding residents and Weekly Summaries were not being done consistently; Medication carts were filthy with stains spilled from medications inside and outside the cart; Employee time sheets were being altered in order to make it appear as

23 1 1 though the facility was maintaining the staffing ratios required under California law; Certain employees were not taking adequate care of their residents and were not maintaining clean resident rooms; Residents were not being turned according to the schedule; Restraints were not being applied correctly; Alarms were in place but not turned on; Residents were being left for hours and not changed after soiling themselves. It got so bad that Plaintiff Carr reported that the urine smell got so bad that it caused individuals to tear; Certain residents were not being given their medication in the doses prescribed; Residents were not being provided with adequate fluids; Employees were using resident s private property; CNAs were not answering resident call lights or alarms; CNAs would leave without notifying their head nurse, thereby leaving the residents understaffed; Employees were stealing medication and/or the tracking logs did not reflect the medications being destroyed; Medication profiles did not match medication cards; Reporting of poor nursing skills by certain coworkers; and Certain nurses were not maintaining adequate standards of hygiene.. Plaintiff Carr also advised Defendants management that there was disparate treatment of the employees by supervisors. For example, one employee would do something wrong and not get written up for it. Then, another employee would do the same thing and they would be disciplined. Additionally, at times Plaintiff Carr complained to the Administrator regarding harsh and unfair treatment that he received at the hands of the Director of Nursing.

24 1 1. Additionally, throughout the tenure of Carr s employment, Defendant management and coworkers would tease and torment Plaintiff Carr on account of his sexual orientation. Coworkers would make comments regarding Plaintiff Carr being gay and make fun of the way Plaintiff Carr walked, calling him a queen. Plaintiff Carr is informed and believes and thereupon alleges that Defendants management would meet behind closed doors and make derogatory comments regarding his sexual orientation. As a result, Plaintiff Carr was treated differently by coworkers and management. Defendants management was additionally aware of the discrimination, harassment and teasing that Carr endured as a result of his sexual orientation, yet management did nothing to step in and stop the behavior.. The complaints and reports that Carr made to management and to the corporate offices caused individuals and the GLCP facility to come under scrutiny. As a result, management attacked Plaintiff Carr and began laying a foundation for his termination. Beginning in April, Plaintiff Carr was written up for frivolous and unsubstantiated rule violations by the Director of Nursing. These write ups, however, were done solely in order to lay a false foundation to terminate Plaintiff Carr s employment. Indeed, Plaintiff Carr was the squeaky wheel and Defendants and their management did not want to deal with Carr continuously reporting and complaining about patient abuse and health violations regarding Defendants facility and employees. As a result, on June 1,, Plaintiff Carr s employment was terminated by the Director of Nursing. When Plaintiff asked for an explanation regarding the reason for his termination, the Director of Nursing stated you just don t fit in here, Andy. In reality, Plaintiff Carr was terminated on account of the fact that he reported patient abuse and health violations related to Defendants facility, residents and employees.. Plaintiff Carr is informed and believes and thereupon alleges that shortly after his termination, there was a comprehensive audit and investigation at the GLCP facility wherein employees from corporate offices came to the facility in order to investigate many of the allegations and complaints that were raised by Carr during the

25 1 1 course of his employment. Plaintiff Carr is informed and believes and thereupon alleges that as a result of this corporate investigation, disciplinary actions were taken and many of his allegations and complaints were substantiated.. The California Fair Employment and Housing Act ( FEHA ) strictly prohibits, among other things, (1) retaliating and terminating an employee on account of the employee engaging in an protected activity by reporting patient abuse, and () discriminating, harassing and/or retaliating against an employee based on actual or perceived sexual orientation. Indeed, under FEHA, Defendants are liable for any such harassment, discrimination or retaliation in the course of Plaintiff Carr s employment. 0. On account of the illegal harassment, discrimination and retaliation that Plaintiff Carr endured at the hands of Defendants management, Defendant is liability to Plaintiff Carr for compensatory and putative damages. Plaintiff Carr seeks to recover, among other things, all lost wages that he has sustained since this date. 1. On or about June,, Carr filed a complaint with the Department of Fair Employment and Housing ( DFEH ) against BHRS and GLCP on account of Defendants discrimination, harassment, retaliation and illegal termination. Contemporaneous with the filing of this complaint, on June,, the DFEH issued Notices of Case Closure and Right-To-Sue Notices regarding Plaintiff Carr s complaint. Copies of the relevant documentation are attached hereto as Exhibits and. FIRST CLAIM FOR RELIEF (As against All Defendants on behalf of Plaintiffs and the Class -- Failure to Pay Minimum Wages and Overtime Compensation, California Labor Code). The paragraphs of this Complaint are re-alleged and incorporated by reference.. Pursuant to Labor Code section 1(a), Plaintiffs may bring a civil action for overtime wages directly against the employer in Plaintiffs name without first filing a claim with the Department of Labor.

26 1 1. At all times herein relevant, the sections of the California Labor Code and of the California Code of Regulations referenced herein applied to the employment of Plaintiff and Class Members.. Pursuant to Labor Code section, it is unlawful to employ persons for longer than the hours set by the Industrial Welfare Commission or under conditions prohibited by the California Code of Regulations.. At all times herein relevant, sections,, 1, and of the California Labor Code and California Code of Regulations section 10 provided for the payment of minimum wages and overtime wages equal to one-and-one-half times an employee s regular rate of pay for all hours worked over eight per day or forty per week, as well as for the payment of overtime wage equal to double the employee s regular rate of pay for all hours worked in excess of twelve in any day and for all hours worked in excess of eight on the seventh day of work.. Under the provisions of sections,, 1, and of the California Labor Code and California Code of Regulations section 10, Plaintiffs and each Class Member should have received minimum and overtime wages in a sum according to proof.. Defendants owe Plaintiffs and each Class Member minimum and overtime wages pursuant to sections,, 1, and of the California Labor Code and California Code of Regulations section 10 according to proof at trial of the hours worked for the period of time from four years prior to the filing of the Complaint to date.. Defendants have failed and refused, and continues to fail and refuse, to pay Plaintiffs and Class Members the amounts that are owed. Defendants failure to pay Plaintiffs and each Class Member who has quit his or her employment with Defendants or whose employment has been terminated by Defendants violates California Labor Code sections 1 and, which therefore subjects Defendants to continuing-wages liability pursuant to section of the California Labor Code for the period of time from four years prior to the filing of the Complaint to date.

27 Plaintiffs, individually and on behalf of others similarly situated, request payment of overtime compensation according to proof, interest, attorney s fees, and costs pursuant to Labor Code section 1(a). 1. Plaintiffs and the Class also request relief as described below. SECOND CLAIM FOR RELIEF (As against All Defendants on behalf of Plaintiffs and the Class -- Failure to Provide Accurate Itemized Wage Statements). The paragraphs of this Complaint are re-alleged and incorporated by reference.. At all times herein relevant, section of the California Labor Code and California Code of Regulations section 10 required that employers provide employees with itemized wage statements showing (1) all wages earned on account of meal and rest penalties, () the total hours worked by the employee, and () information regarding the time and wages for work performed by Plaintiffs but not paid for by Defendants. Moreover, Labor Code section (e) provided that, if an employer knowingly and intentionally fails to provide a statement detailing (1) all wages earned on account of meal and rest penalties, () the total hours worked by the employee, and () information regarding the time and wages for work performed by Plaintiffs but not paid for by Defendants, then the employee is entitled to recover the greater of all actual damages or $0 for the initial violation and $0 for each subsequent violation, up to a maximum of $,000.. Defendants have knowingly and intentionally failed to furnish Plaintiffs and Class Members with timely, itemized statements showing (1) all wages earned on account of meal and rest penalties, () the total hours worked by the employee, () information regarding the time and wages for work performed by Plaintiffs but not paid for by Defendants, and () all correct, applicable hourly rates based on the proper calculation of the regular rate. As a result, Defendants are liable to Plaintiffs and Class Members for the liquidated damages for which provision is made by Labor Code section

28 1 1 (e) for the period of time from the three years prior to the filing of the Complaint to date.. Plaintiffs and the Class Members request relief as described below. THIRD CLAIM FOR RELIEF (As against All Defendants on behalf of Plaintiffs and members of the Collective Action Failure to Pay Overtime Compensation, Fair Labor Standards Act). The paragraphs of this Complaint are re-alleged and incorporated by reference.. During their employment with Defendants, Plaintiffs and Collective Action Members were required to work hours in excess of forty hours a week, without the payment of minimum and/or overtime wages and other benefits.. Accordingly, Plaintiffs, individually and on behalf of others similarly situated, requests payment of minimum and/or overtime compensation according to proof, attorney s fees, and costs pursuant to U.S.C. (b). FOURTH CLAIM FOR RELIEF (As against all Defendants on behalf of Plaintiff Veurink -- Failure to Provide Proper Response to Information Request (Cal. Lab. Code (c))). The paragraphs of this Complaint are re-alleged and incorporated by reference. 0. In December of 1, pursuant to the provisions of section (c) of the California Labor Code, Plaintiff Veurink properly requested of the Defendants that her employment records be provided to her. Despite proper request, only a handful of the responsive documents were produced to her. 1. Accordingly, Plaintiff Veurink, individually, requests payment of $0 as for which provision is made by section (f) of the California Labor Code ( [a] failure by an employer to permit a current or former employee to inspect or copy records within the time set forth in subdivision (c) entitles the current or former employee or the Labor

29 1 1 Commissioner to recover a seven-hundred-fifty-dollar ($0) penalty from the employer ). FIFTH CLAIM FOR RELIEF (As against all Defendants on behalf of Plaintiffs and the Class -- Failure to Provide Adequate Meal Periods) reference.. The paragraphs of this Complaint are re-alleged and incorporated by. At all times herein relevant, section. of the California Labor Code and California Code of Regulations section 10 provided that employees must be provided a first meal period of not less than thirty minutes before working more than five hours per day and a second meal period of not less than thirty minutes before working more than ten hours per day. Sections. and of the California Labor Code, as well as California Code of Regulations section 10, also required employers to provide a second meal period of not less than thirty minutes, during which the employees are again to be relieved of all duty, before the employees work more than ten hours per day. According to the Regulation: Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight () total hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one day s written notice. The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a waiver is in effect.. Because Defendants failed to provide the required meal breaks to Plaintiffs and other Class Members, Defendants are liable to them for one hour of additional pay at the regular rate of compensation for each workday that the proper meal periods were not provided, pursuant to Labor Code section. and California Code of Regulations

30 1 1 section 10, for the period of time from three years prior to the filing of the Complaint to date.. Plaintiffs and the Class Members request relief as described below. SIXTH CLAIM FOR RELIEF (As against All Defendants on behalf of Plaintiffs and the Class -- Failure to Provide Adequate Rest Periods). The paragraphs of this Complaint are re-alleged and incorporated by reference.. At all times herein relevant, section. of the California Labor Code and California Code of Regulations section 10 provided that employees must receive rest periods of ten minutes for each four hours of work or major fraction thereof.. Because Defendants failed to provide the required rest breaks, it is liable to Plaintiffs and other Class Members for one hour of additional pay at the regular rate of compensation for each workday that the proper rest periods were not provided, pursuant to Labor Code section. and California Code of Regulations section 10, for the period of time from the three years prior to the filing of the Complaint to date.. Plaintiffs and the Class Members request relief as described below. SEVENTH CLAIM FOR RELIEF (As against All Defendants on behalf of Plaintiffs and the Class -- Continuing Wages under Section of the California Labor Code) 0. The paragraphs of this Complaint are re-alleged and incorporated by reference. 1. At all times herein relevant, Labor Code sections 1 and provided that employees must receive wages earned and unpaid promptly upon termination or resignation.. Because Defendants have willfully failed to pay wages earned and unpaid promptly upon termination or resignation, Defendants are liable for continuing wages under Labor Code section for the period of time from four years prior to the filing of 0

31 1 1 the Complaint to date.. Plaintiffs and the Class Members request relief under the provisions of Section of the California Labor Code as described below. EIGHTH CLAIM FOR RELIEF (As against All Defendants on behalf of Plaintiffs and the Class -- Violations of Section 0 et seq. of the California Business and Professions Code). The paragraphs of this Complaint are re-alleged and incorporated by reference.. Defendants acts constitute a continuing and ongoing unlawful activity prohibited by section 0 et seq. of the California Business and Professions Code, and they justify restitution and the issuance of an injunction pursuant to section of the Business and Professions Code.. Labor Code section 0.(a) articulates the public policy of this State to enforce minimum labor standards vigorously, including the requirements to pay minimum wages, overtime wages and benefits pursuant to Labor Code sections,, 1, and ; the requirements to provide accurate itemized wage statements and to keep payroll records pursuant to Labor Code sections,., 1, and 1.; the requirement to provide adequate meal and rest periods pursuant to Labor Code sections. and ; and the requirement to pay wages earned and unpaid promptly pursuant to Labor Code section. Defendants conduct of requiring certain employees to work an excessive amount of hours in the absence of overtime, without providing accurate itemized wage statements, without providing adequate meal and rest periods, and without paying wages earned and unpaid promptly upon termination or resignation directly violates state law. Furthermore, the Defendants systematic violations of the FLSA constitute unfair competition and/or unlawful and unfair acts and practices within the meaning of section 0 et seq. of the California Business and Professions Code.. Through the wrongful and illegal conduct alleged herein, Defendants have acted contrary to the public policy of this State. 1

32 1 1. Defendants engaged in unlawful business acts and practices by violating California law, including but not limited to, sections 1,,,,,.,,,, 1, 1, and of the California Labor Code and California Code of Regulations section 10.. Under the provisions of the section of the California Business and Professions Code, Plaintiffs and each Class Member should receive restitution for Defendants failure to pay overtime wages, Defendants failure to provide accurate itemized wage statements and to keep payroll records, Defendants failure to provide adequate meal and rest periods, and Defendants failure to provide wages earned and unpaid promptly upon termination or resignation, in a sum according to proof for the period of time from the four years preceding the filing of the Complaint to date. 1. As a result of Defendants violations of 0 et seq. of the California Business and Professions Code, Defendants have unjustly enriched themselves at the expense of Plaintiffs, Class Members, and the general public. 1. To prevent this unjust enrichment, Defendants should be required to make restitution to Plaintiffs and Class Members, as identified in this Complaint (and as will be identified through discovery into Defendants books and records), for the period of time from the four years preceding the filing of the Complaint to date. 1. Plaintiffs also request that the Court enter such orders or judgments as may be necessary to restore to any person in interest any money that may have been acquired by means of such unfair practices, as provided in section of the California Business and Professions Code.. Plaintiffs and Class Members are persons within the meaning of section of the California Business and Professions Code, and each has standing to bring this claim for relief.. Injunctive relief is necessary to prevent Defendants from continuing to engage in unfair business practices, as alleged herein. Defendants have done, or are now doing and will continue to do or cause to be done, the herein-described illegal acts unless

33 1 1 restrained or enjoined by the Court. 1. The conduct of Defendants, as alleged herein, has been and continues to be deleterious to Plaintiffs, Class Members and the general public. By this action, Plaintiffs seeks to enforce important rights affecting the public interest within the meaning of section. of the California Code of Civil Procedure. 1. Pursuant to section of the California Code of Civil Procedure, Plaintiffs, on behalf of themselves and all current and former Class Members, requests injunctive relief and restitution of all sums obtained by defendants in violation of section 0 et seq. of the California Business and Professions Code for the period of time from the four years preceding the filing of the Complaint to date. 1. Plaintiffs and the Class Members also request relief as described below. NINTH CLAIM FOR RELIEF (Retaliation and Wrongful Termination in Violation of California Labor Code. on Behalf of Plaintiff Carr only against all Defendants) 1. The paragraphs of this Complaint are re-alleged and incorporated by reference. 1. An employer may not retaliate against an employee for disclosing Information to a government or law enforcement agency, where the employee has a reasonable cause to believe that the information discloses a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. 1. This is a claim for relief that arises out of retaliation by Defendants against Plaintiff Carr on account of his continuous reporting of patient abuse and violations of health and safety issues relating to Defendants facility, residents and employees. 1. California Labor Code section. provides: a. An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state and federal statute, or a

34 1 1 violation or noncompliance with a state or a federal rule or regulation. b. An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. c. An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. d. An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment. e. A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b). f. In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($,000) for each violation of this section. g. This section does not apply to rules, regulations, or policies which implement, or to actions by employers against employees who violate, the confidentiality of the lawyer-client privilege of Article (commencing with Section 0), the physician-patient privilege of Article (commencing with Section 0) of Chapter of Division of the Evidence Code, or trade secret information. Cal. Lab. Code. 1. As a proximate result of Defendants wrongful conduct, Plaintiff Carr has suffered, and continues to suffer, substantial damages and losses in earnings and job benefits in an amount to be determined according to proof at the time of trial. Defendants

35 1 1 are also liable to pay penalties pursuant to California Labor Code section.(f). 1. In doing the acts herein alleged, Defendants acted with oppression, fraud, malice, and in conscious disregard of the rights of Plaintiff Carr, and Plaintiff Carr is therefore entitled to putative damages against Defendants in an amount appropriate to punish and make an example of Defendants. TENTH CLAIM FOR RELIEF (Retaliation and Wrongful Termination in Violation of Public Policy on Behalf of Plaintiff Carr only against all Defendants) 1. The paragraphs of this Complaint are re-alleged and incorporated by reference. 1. Under California law, no employee can be terminated for a reason that is in violation of a fundamental public policy. A fundamental public policy includes the violation of any constitutional provision, statutory provision or regulation that is concerned with a matter effecting society at large and that is fundamental, substantial and well established at the time of termination. To this end, in California, there is a fundamental and well-established public policy against retaliating against employees for opposing unlawful activities, including, but not limited to, complaining about reporting patient abuse and health violations related to Defendants facility, residents and employees. This fundamental public policy is embodied in the California Constitution and California statutory law. Adverse employment actions taken by an employer in response to such activity are contrary to such public policy and are thus actionable under the common law of California. 1. This is a claim for relief arises out of retaliation by Defendants against Plaintiff Carr on account of Plaintiff Carr notifying Defendants and filing reports regarding patient abuse and health, safety and employment violations that were occurring at Defendants facility. 1. As set forth above, Defendants retaliated against Carr by terminating his employment. In terminating Plaintiff Carr for reporting and complaining about patient

36 1 1 abuse and health, safety and employment violations that were occurring at Defendants facility, Defendants violated the fundamental public policies of the State of California, including without limitation, California Labor Code section., California Health and Safety Code section 1., California Government Code section 0 et. seq., California Government Code sections 0(a) and (g), the California Constitution and other criminal and civil statutes. 1. As a proximate result of Defendants wrongful conduct, Plaintiff Carr has suffered, and continues to suffer, substantial losses in earnings and job benefits in an amount to be determined according to proof at the time of trial.. In doing the acts herein alleged, Defendants acted with oppression, fraud, malice, and in conscious disregard of the rights of Plaintiff Carr, and Carr is therefore entitled to punitive damages against Defendants in an amount appropriate to punish and make an example of Defendants. ELEVENTH CLAIM FOR RELIEF (Retaliation for Engaging in Protected Activity California Government Code section 0(g) and (h) on Behalf of Plaintiff Carr only against all Defendants). The paragraphs of this Complaint are re-alleged and incorporated by reference.. California Government Code 0(g) provides that it is an unlawful employment practice for an employer to discharge, expel, or otherwise discriminate against any person because the person has reported suspected patient abuse by health facilities or community care facilities. Furthermore, California Government Code 0(h) provides that it is an unlawful employment practice for an employer to discharge, expel, or otherwise discriminate against any person because the person opposed any practices forbidden under this part.. Defendants employed Plaintiff Carr as an LVN at its facility in Petaluma. Plaintiff Carr always performed his job well. Throughout the tenure of his employment,

37 1 1 however, Plaintiff Carr continuously reported and informed his supervisors and Defendants management and Human Resources department regarding patient abuse that was occurring at the GLCP. On or about June 1,, Defendants terminated Carr's employment in retaliation for his continued reports of patient abuse. 1. As a proximate result of the acts of Defendants, as described above, Plaintiff Carr suffered economic damages, including lost wages and benefits, and other compensatory damages. As a further proximate result of these acts of Defendants, Plaintiff Carr has suffered humiliation, mental and physical distress, anxiety, nervousness and severe emotional distress. 1. As a further proximate result of the above-described acts of Defendants, Plaintiff Carr has necessarily incurred attorney's fees and costs. Pursuant to the provisions of California Government Code (b), Carr is entitled to the reasonable value of such attorney's fees and costs. 1. The above-described acts of Defendants were willful, intentional, and malicious and done with the intent to vex, injure and annoy Plaintiff Carr. Said acts were done in willful disregard of Plaintiff Carr's rights and Defendants were aware that their acts were illegal and were done in conscious disregard of Plaintiff Carr's rights. Therefore, this case warrants the imposition of exemplary and punitive damages in an amount sufficient to punish said Defendants and to deter others from engaging in similar conduct. TWELFTH CLAIM FOR RELIEF (Sexual Orientation Discrimination California Government Code section 0(a) and (h) on Behalf of Plaintiff Carr only against all Defendants) 1. The allegations contained in this Complaint are hereby incorporated by this reference as if fully set forth herein. 1. This cause of action is brought pursuant to California Government Code section 0(a), which makes it illegal to discriminate on the basis of sexual orientation. Furthermore, California Government Code 0(h) provides that it is an unlawful

38 1 1 employment practice for an employer to discharge, expel, or otherwise discriminate against any person because the person opposed any practices forbidden under this part. 1. Defendants, by and through its agents and employees, discriminated against Plaintiff Carr based on his sexual orientation by performing the things, acts, and omissions herein alleged. 1. As a direct and proximate result of the conduct of these Defendants, and each of them, Plaintiff Carr suffered discrimination and harassment in the course of his employment and was eventually terminated, resulting in him suffering emotional anguish and distress, loss of income, and other special and general damages, all in an amount to be proven at trial.. In doing the things herein alleged, the conduct of Defendants was despicable and Defendants acted towards Plaintiff Carr with malice, oppression, fraud, and with a willful and conscious disregard of Carr s rights, entitling him to an award of punitive and exemplary damages pursuant to California Civil Code section and Government Code section 0.. Pursuant to Government Code section (b), Plaintiff Carr requests an award of attorney's fees against Defendants.. Plaintiff Carr also requests the relief as described below. PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays for judgment against Defendants as follows: As to the First Claim for Relief: 1. For damages in an amount according to proof at time of trial representing the amount of unpaid minimum wage and overtime compensation owed to Plaintiffs and Class Members for the period of time from June, 0 to May, 1; For interest calculated according to law on any unpaid minimum wage and overtime compensation due from the day such amounts were due for the period of time from June, 0 to May, 1; For reasonable attorney s fees and costs of bringing this suit pursuant to section 1(a) of the Labor Code.

39 1 1 As to the Second Claim for Relief:. For damages in an amount according to proof at time of trial for not providing accurate itemized wage statements to Plaintiffs and Class Members for the period of time from June, 0 to May, 1; For reasonable attorney s fees and the costs of bringing this suit pursuant to section (e) of the California Labor Code. As to the Third Claim for Relief:. For damages in an amount according to proof at time of trial representing the amount of unpaid overtime compensation owed to Plaintiffs and Class Members for the period of time from June, 0 to May, 1; For liquidated damages pursuant to U.S.C. (b); For attorney s fees and the costs of bringing this suit pursuant to U.S.C. (b). As to the Fourth Claim for Relief:. For damages in an amount of $0 representing the penalty to which Plaintiff Veurink is entitled on account of Defendants failure to comply with her request for data pursuant to the provisions of section (c) of the California Labor Code; For attorney s fees and the costs of bringing this suit pursuant to the provisions of section (h) of the California Labor Code, as well as an injunction requiring Defendants compliance with the requirements of the statute. As to the Fifth Claim for Relief:. For damages in an amount according to proof at time of trial representing the amount of unpaid compensation owed to Plaintiffs and Class Members for inadequate meal periods for the period of time from June, 0 to May, 1; For interest calculated according to law on any unpaid compensation due from the day such amounts were due for inadequate meal periods for the period of time from June, 0 to May, 1; For reasonable attorney s fees and the costs of bringing this suit. As to the Sixth Claim for Relief:. For damages in an amount according to proof at time of trial representing the amount of unpaid overtime compensation owed to Plaintiffs and Class Members for

40 1 1 inadequate rest periods for the period of time from June, 0 to May, 1; For interest calculated according to law on any overtime compensation due from the day such amounts were due for inadequate rest periods for the period of time from three years prior to filing the Complaint to date; For reasonable attorney s fees and the costs of bringing this suit. As to the Seventh Claim for Relief:. For continuing wages pursuant to California Labor Code section for each instance of the willful failure to pay wages; For the costs of bringing this suit. As to the Eighth Claim for Relief:. For an order requiring Defendants to show cause, if any, why they should not be enjoined, as set forth herein above, during and after the pendency of this action.. For an order that Defendants pay restitution of sums to Plaintiffs and to each Class Member for Defendants past failure to pay overtime wages, withholding taxes, matching funds, Social Security, Medicare, Unemployment, and Worker s Compensation premiums in violation of section 0 et seq., in an amount according to proof, for the period of time from June, 0 to May, 1.. For an order that Defendants pay restitution of sums to Plaintiffs and to each Class Member for Defendants past failure to provide accurate itemized wage statements and to keep payroll records in violation of section 0 et seq., in an amount according to proof, for the period of time from June, 0 to May, 1.. For an order that Defendants pay restitution to Plaintiffs and to each Class Member for Defendants past failure to provide adequate meal and rest periods in violation of section 0 et seq., in an amount according to proof, for the period of time from June, 0 to May, 1.. For an order that Defendants pay restitution to Plaintiffs and to each Class Member for Defendants past willful failure to pay wages earned and unpaid promptly upon termination or resignation in violation of section 0 et seq., in an amount according to proof, for the period of time from June, 0 to May, 1. 0

41 1 1 As to the Ninth Claim for Relief: 1. That, under the Ninth Cause of Action, it be adjudged that Defendants violated California Labor Code section. and Plaintiff Carr be awarded general and compensatory damages in an amount according to proof at time of trial, penalties as well as punitive damages against Defendants in an amount appropriate to punish and make an example of Defendants. As to the Tenth Claim for Relief: 1. That, under the Tenth Cause of Action, it be adjudged that Defendants violated public policy and Plaintiff Carr be awarded general and compensatory damages in an amount according to proof at time of trial, as well as punitive damages against Defendants in an amount appropriate to punish and make an example of Defendants. As to the Eleventh Claim for Relief:. For a money judgment to Plaintiff Carr representing compensatory and general damages including lost wages, earnings retirement benefits and other employee benefits, and all other sums of money, together with interest on these amounts, according to proof; For a money judgment to Plaintiff Carr for mental pain and anguish and emotional distress, according to proof; For an award of exemplary and punitive damages to Plaintiff Carr, according to proof; For costs of suit and attorney's fees; and For prejudgment and post-judgment interest. As to the Twelfth Claim for Relief:. For a money judgment to Plaintiff Carr representing compensatory damages including lost wages, earnings retirement benefits and other employee benefits, and all other sums of money, together with interest on these amounts, according to proof; For a money judgment to Plaintiff Carr for mental pain and anguish and emotional distress, according to proof; For an award of exemplary and punitive damages, according to proof; For costs of suit and attorney's fees; and for pre-judgment and post-judgment interest. As to All Claims for Relief:. Costs of suit and disbursements incurred, all interest as allowed by law, 1

42 where available and proper, for attorneys' fees and costs incurred pursuing these claims, and for such other and further rei ief as this Court may deem fit and proper. II 1 1 DATED: September, HARRIS & RUBLE Nf-TH BF GROUP ~~(/\~

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50

51

52

53

54

55

56

57

58