RANDALL CRANE (Cal. Bar No. 0) rcrane@cranelaw.com LEONARD EMMA (Cal. Bar No. ) lemma@cranelaw.com LAW OFFICE OF RANDALL CRANE 0 Grand Avenue, Suite 0 Oakland, California -0 Telephone: () -0 Facsimile: () - Email: cranelaw@aol.com Attorneys for Plaintiffs KIMBERLY MCCLELLAN et al. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 0 GRAND AVENUE, SUITE 0 OAKLAND, CA KIMBERLY MCCLELLAN and LAURA LOVELESS, individually and on behalf of all others similarly situated, v. Plaintiffs, SFN GROUP, INC., SFN PROFESSIONAL SERVICES, LLC, and SPHERION ATLANTIC ENTERPRISES, LLC, all doing business as SPHERION, and SPHERION, a business entity form unknown, and DOES 1 through 0, inclusive, Defendants. FIRST AMENDED COMPLAINT BASED ON VIOLATIONS OF: (i) (ii) California Labor Code; and California Business & Professions Code CLASS ACTION AMENDED AS OF COURSE PURSUANT TO FRCP (a)(1)(b) DEMAND FOR JURY TRIAL [Complaint Filed //] [Alameda County Case No. RG] Plaintiffs KIMBERLY MCCLELLAN ( McClellan ) and LAURA LOVELESS ( Loveless ) (collectively Plaintiffs ), individually and on behalf of all others similarly situated, allege: NATURE OF THE CASE 1. This is a class action seeking (1) recovery of unpaid overtime compensation; () civil penalties for failure to provide accurate, itemized wage statements; () waiting time penalties; () restitution; () interest; and () reasonable attorneys fees and costs.. This Complaint asserts claims against SFN GROUP, INC., SFN PROFESSIONAL SERVICES, LLC, and SPHERION ATLANTIC ENTERPRISES, LLC, all doing business as - 1 -
SPHERION, and SPHERION, a business entity form unknown, and DOES 1 through 0, inclusive ( Defendants ), for (a) violations of California Labor Code and Industrial Wage Commission ( IWC ) Orders; and (b) violations of the Unfair Competition Law ( UCL ), California Business & Professions Code 0 et seq.. This action is brought as a class action on behalf of two classes of employees. The first class consists of all persons who, at any time during the four () years preceding the filing of this Complaint up to and including the present, were employed by Defendants as a Client Services Representative within the State of California and did not receive overtime compensation, itemized wage statements, meal and rest periods, and/or payment of unpaid wages due upon termination of their employment. The first class thus includes those employees with the job titles 0 GRAND AVENUE, SUITE 0 OAKLAND, CA Client Services Specialist, Client Services Manager, and similar or equivalent designations. The second class consists of all persons who, at any time during the four () years preceding the filing of this Complaint up to and including the present, were employed by Defendants as a Manager within the State of California and did not receive overtime compensation, itemized wage statements, meal and rest periods, and/or payment of unpaid wages due upon termination of their employment. The second class thus includes those employees with the job titles Branch Manager, On Premises Manager, and similar or equiva gnations.. There is a sub-class of the first class, consisting of members of the first class whose employment with Defendants has been terminated. There is also a sub-class of the second class, consisting of members of the second class whose employment with Defendants has been terminated.. At all times relevant herein, Labor Code and ions 10, and corresponding IWC Wage Orders, required payment of overtime wages equal to one and onehalf times an employee s regular rate of pay for all hours worked over eight () hours per day, or forty (0) hours in a work week, and for payment of overtime wages equal to double the employee s regular rate of pay for all hours worked in excess of twelve () hours in any work day and for all hours worked in excess of eight () hours on the seventh ( th ) day of work in any one (1) work week. As alleged herein, Defendants have intentionally and improperly designated - -
their client services representatives and managers, including Plaintiffs and members of the classes, as exempt employees in order to avoid payment of overtime wages and other benefits, in violation of the Labor Code, the Code of Regulations, and IWC Wage Orders.. At all times relevant hereto, Labor Code,., 1 and 1. and IWC Wage Orders required employers to keep records of and provide employees with itemized wage statements showing total hours worked in each pay period. As alleged herein, Defendants have intentionally and improperly designated their client services representatives and managers, including Plaintiffs and the classes, as exempt employees in order to avoid keeping records of and providing employees with itemized wage statements showing total hours worked, in violation of the Labor Code and IWC Wage Orders. 0 GRAND AVENUE, SUITE 0 OAKLAND, CA. Plaintiffs are informed and believe and thereon allege that Defendants have a consistent and uniform policy, practice and custom of willingly failing to pay the earned and unpaid wages of all class members. Plaintiffs are informed and believe and thereon allege that Defendants have willfully failed to pay the earned and unpaid wages of such individual class members, including overtime pay. Plaintiffs and other members of the classes did not secret or absent themselves from Defendants, nor refuse to accept the earned and unpaid wages from Defendants. Accordingly, Defendants are liable for waiting time penalties for the unpaid wages pursuant to Labor Code for members of the classes who have separated from employment with Defendants.. In this class action, Plaintiffs seek damages and penalties for violations of the Labor Code, and payment of restitution and/or disgorgement of all sums wrongfully obtained by Defendants violation of the UCL. JURISDICTION. Plaintiffs do not allege that this Court has jurisdiction over this controversy. On November,, Plaintiffs filed this action in Alameda County Superior Court, Case No. RG. On December 0,, Defendants removed this action to this Court pursuant to U.S.C. (d)(), alleging federal jurisdiction pursuant to the Class Action Fairness Act of 0. - -
. Alameda County Superior Court has personal jurisdiction over the parties. McClellan is and was at all relevant times herein a resident of the State of California. Loveless is and was at all relevant times herein a resident of the State of California. Defendants systematically and continually do business in the State of California and County of Alameda as Spherion.. Venue is proper in Alameda County Superior Court because Cal. Civ. Proc. Code and., and case law interpreting those sections, provides that if a foreign corporation fails to designate with the office of the California Secretary of State a principal place of business in California, it is subject to being sued in any county that a plaintiff desires. On information and belief, Defendants are foreign corporations that have failed to designate a principal place of business with the office of the Secretary of State. 0 GRAND AVENUE, SUITE 0 OAKLAND, CA. Venue is proper in Alameda County Superior Court because Plaintiff McClellan resides in Oakland and her employment with Defendants was at Defendants Spherion office location in Oakland. INTRADISTRICT ASSIGNMENT. This civil action arose in Alameda County, was filed in Alameda County Superior Court, and was subsequently removed by Defendant pursuant to U.S.C. (d)(). THE PARTIES. Plaintiff Kimberly McClellan is a California resident. McClellan worked as a Client Services Representative at Defendants branch office located in Oakland, Ca ifornia, from approximately August 0 to approximately June. ll times, McClellan was paid a fixed amount for all hours worked. McClellan consistently worked more than 0 hours per week. McClellan received no additional compensation for all of the hours she worked over eight () in a day and/or 0 in a week. Defendants failed to track hours worked by McClellan.. Plaintiff Laura Loveless is a California resident. Loveless worked as a Branch Manager at Defendants branch office located in Sacramento, California, from approximately May 0 to approximately June. At all times, Loveless was paid a fixed amount for all hours worked. Loveless consistently worked more than 0 hours per week. Loveless received no additional compensation for all of the hours she worked over eight () in a day and/or 0 in a week. - -
Defendants failed to track hours worked by Loveless.. Defendant SFN GROUP, INC., is a Delaware corporation that does business in the State of California and the county of Alameda as Spherion.. Defendant SFN PROFESSIONAL SERVICES, LLC, is a Delaware limited liability company that does business in the State of California and the county of Alameda as Spherion.. Defendant SFN ATLANTIC ENTERPRISES, LLC, is a Delaware limited liability company that does business in the State of California and the county of Alameda as Spherion.. Defendant SPHERION, a business entity form unknown, does business in the State of California and the county of Alameda as Spherion.. Plaintiffs do not know the true names or capacities of Defendants sued herein as Does 1 0 GRAND AVENUE, SUITE 0 OAKLAND, CA through 0, inclusive and Plaintiffs sue these Defendants by such fictitious names. Plaintiffs will seek to amend this Complaint and include these Doe Defendants true names and capacities as soon as they can be reasonably ascertained. Doe Defendants may include other individuals or entities holding an ownership interest in the Defendants business. Doe Defendants may include other joint employer entities. Each fictitiously named Defendant is responsible in some manner for the conduct alleged herein and for the injuries suffered by the Plaintiffs and the general public.. Unless otherwise alleged in this complaint, Plaintiffs are informed and believe, and on that basis allege that, at all times relevant herein, Defendants were each the agents and employees of their co-defendants and in doing the things alleged in this complaint were acting within the course and scope of that agency and employment. FACTUAL BACKGROUND. While employed by Defendants, McClellan routinely worked more than hours per day and 0 hours per week.. While employed by Defendants, Loveless routinely worked more than hours per day and 0 hours per week.. McClellan was not engaged in activities that would exempt her from entitlement to overtime compensation under California law.. Loveless was not engaged in activities that would exempt her from entitlement to - -
overtime compensation under California law.. Defendants failed to keep time cards or other time records and failed to provide McClellan with itemized wage statements showing total hours she worked in each pay period. Instead, the wage statements showed 0 hours of work per week regardless of the number of hours she worked.. Defendants failed to keep time cards or other time records and failed to provide Loveless with itemized wage statements showing total hours she worked in each pay period. Instead, the wage statements showed 0 hours of work per week regardless of the number of hours she worked.. Each week that Defendants misclassified McClellan and Loveless as exempt, 0 GRAND AVENUE, SUITE 0 OAKLAND, CA Defendants violated California laws by failing to compensate them for overtime compensation and, as a result, increased their profitability and kept their overhead to a minimum level, all of which occurred at the expense of McClellan and Loveless.. Upon their separation from employment with Defendants, neither McClellan nor Loveless secreted or absented themselves from Defendants, nor did they refuse to accept the earned and unpaid wages from Defendants. 0. Defendants conduct of requiring additional work from McClellan and Loveless in the absence of overtime pay and knowingly and intentionally failing to provide accurate itemized wage statements violates California law and constitutes unfair competition and unlawful, unfair and fraudulent acts and practices within the meaning of the UCL. 1. Plaintiffs are informed and believe that Defendants ha d uniform policy, practice and custom with regard to the facts alleged herein and that all individuals in each of the Classes suffered the same treatment as alleged by McClellan and Loveless. / / / / / / / / / / / / / / / - -
. Plaintiff McClellan brings this action individually and as a class action on behalf of the First Class defined as follows: All persons who were employed by Defendants as a Client Services Specialist, Client Services Manager, or a similar or equivalent designation within the State of California at any time during the four () years preceding the filing of the original Complaint in this matter, up to and including the present. (The First Class ). There is a Sub-Class of the First Class, consisting of members of the First Class whose employment with Defendants has been terminated.. Plaintiff Loveless brings this action individually and as a class action on behalf of the Second Class defined as follows: CLASS ACTION ALLEGATIONS 0 GRAND AVENUE, SUITE 0 OAKLAND, CA All persons who were employed by Defendants as a Branch Manager, On Premise Manager, or a similar or equivalent designation within the State of California at any time during the four () years preceding the filing of the original Complaint in this matter, up to and including the present. (The Second Class ). There is a Sub-Class of the Second Class, consisting of members of the Second Class whose employment with Defendants has been terminated.. Numerosity of the Classes. The Classes are so numerous that individual joinder of all members would be impractical under the circumstances of this case. While the exact number of Class members is unknown to Plaintiffs at this time and can only be ascertained after discovery directed to Defendants, Plaintiffs believe and therefore allege that the Classes consist of over 0 individuals each.. Typicality of Claims. Plaintiffs claims are typical of the claims of the members of the Classes, and Plaintiffs interests are consistent with and not antagonistic to those of the other Class members they seek to represent. Plaintiffs and all class members have sustained damages and face irreparable harm arising out of Defendants common course of conduct as alleged herein. The damages sustained by each member of each Class was caused directly by Defendants wrongful conduct, as alleged herein.. Adequacy of Representation. Plaintiffs will fairly and adequately protect the interests of Class members. Plaintiffs claims are not antagonistic to those of the Class members. Plaintiffs - -
have retained attorneys who are experienced in the prosecution of class actions, including wage and hour class actions, and Plaintiffs intend to prosecute this action vigorously.. Community of Interest; Existence and Predominance of Common Questions of Law or Fact. Common questions of law and fact exist as to all Class members that predominate over any questions affecting only individual Class members. 0. Superiority. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since individual litigation of the claims of each Class member is impracticable. 1. Plaintiffs request permission to amend the complaint to include other individuals as class representatives. Plaintiffs further requests permission to amend the complaint to revise the 0 GRAND AVENUE, SUITE 0 OAKLAND, CA Plaintiff Class definitions as appropriate after discovery. FIRST CAUSE OF ACTION (Failure to Pay Overtime Compensation). Plaintiffs hereby incorporate each and every allegation contained above, and re-allege said allegations as if fully set forth herein.. During the four years preceding the filing of the orig l Compliant in this matter, and at all relevant times in this Complaint, Plaintiffs were not exempt from receiving overtime compensation.. During the four years preceding the filing of the orig l Compliant in this matter, and at all relevant times in this Complaint, Defendants required Plaintiffs to work in excess of hours per day, and/or in excess of 0 hours per week in violation of Labor Code.. During the four years preceding the filing of the orig l Compliant in this matter, and at all relevant times in this Complaint, Plaintiffs were entitled to receive one-and-one half times the hourly wage for each hour worked past hours in one day, one-and-one half times the hourly wage for each hour worked past 0 hours in one week, and twice the hourly wage for each hour worked past hours in one day and for all hours over during their seventh consecutive day of work in one week.. During the four years preceding the filing of the orig l Compliant in this matter, and at - -
all relevant times in this Complaint, Defendants violated Labor Code when they failed to pay Plaintiffs overtime wages for work performed in excess of hours per day and/or for work performed in excess of 0 hours per week, and within the time frame set forth under the law. As a consequence for violating Labor Code, Defendants are subject to all applicable penalties including those specified pursuant to Labor Code. The exact amount of the applicable penalties will be proved at time of trial.. During the four years preceding the filing of the original Compliant in this matter, and at all relevant times in this Complaint, Defendants violated Labor Code when they failed to pay Plaintiffs all wages earned for labor in excess of the normal work period no later than the pay day for the next regular payroll period. As a consequence for violating Labor Code, 0 GRAND AVENUE, SUITE 0 OAKLAND, CA Defendants are subject to all applicable penalties inc ied pursuant to Labor Code. The exact amount of the applicable penalties will be proved at time of trial.. During the four years preceding the filing of the original Compliant in this matter, and at all relevant times in this Complaint, Defendants intentionally refused to pay overtime wages to Plaintiffs in order to receive an economic benefit in violation of Labor Code. As a consequence for violating Labor Code, Defendants are subject to all applicable civil penalties including those specified pursuant to Labor Code.. The exact amount of the applicable penalties will be proved at time of trial.. During the four years preceding the filing of the origina in this matter, Defendants were and are Plaintiffs employer within the meaning of Labor Code and violated or caused to be violated a provision or provisions or Part, Chapter 1, of the Labor Code regulating hours and days of work and, as such, are liable to each member of the Plaintiff Class for each such violation as set forth in Labor Code, in addition to an amount sufficient to recover underpaid wages. The exact amount of the applicable penalties will be proved at time of trial. 0. Plaintiffs seek and are entitled to interest on all due and unpaid wages pursuant to Labor Code.. 1. Pursuant to Labor Code, Plaintiffs seek to recover in a civil action the unpaid - -
balance of the full amount of the unpaid overtime compensation, including interest thereon, reasonable attorney s fees, and costs of suit. WHEREFORE, Plaintiffs pray for judgment against Defendants as hereinafter requested. SECOND CAUSE OF ACTION (Failure to Provide Itemized Wage Statements). Plaintiffs hereby incorporate each and every allegation contained above, and re-allege said allegations as if fully set forth herein.. At all material times, Labor Code and IWC Wage Orders required that employers provide employees with itemized wage statements showing total hours worked. Labor Code (e) provides that if an employer knowingly and intentionally fails to provide a statement 0 GRAND AVENUE, SUITE 0 OAKLAND, CA itemizing the total hours worked by the employee, then the employee is entitled to recover the greater of all actual damages or $0 for the initial v ion and $0 for each subsequent violation, up to $,000, plus costs and reasonable attorney s fees.. Defendants knowingly and intentionally failed to furnish Plaintiffs with timely, itemized statements showing the total hours worked by each of them, as required by Labor Code (a). As a result, Defendants are liable to Plaintiffs for the amounts provided by Labor Code (e). WHEREFORE, Plaintiffs pray for judgment against Defendants as hereinafter requested. THIRD CAUSE OF ACTION (Failure to Timely Pay Final Wages). Plaintiffs hereby incorporate each and every allegation contained above, and re-allege said allegations as if fully set forth herein.. Labor Code 1 requires employers, including Defendants, to pay all wages earned and unpaid immediately upon discharge or layoff of an employee.. Labor Code requires employers, including Defendants, to pay all wages earned and unpaid no later than hours of receiving an employee s notice of intent to quit or immediately at the time of quitting if the employee provided at least hours notice of intent to quit.. Plaintiff members of the Sub-Class did not receive all wages earned and unpaid at the time they were terminated or within hours of giving notice of intent to quit. - -
. Plaintiff members of the Sub-Class are still owed wages and premiums as described herein. 0. Defendants violated Labor Code 1 or and IWC Wage Orders when they failed to pay all earned and unpaid wages to employees who were discharged or quit or were laid off, including Plaintiff members of the Sub-Class. 1. As a consequence of violating Labor Code 1 or, Defendants are subject to all applicable civil penalties including those specified pursuant to Labor Code. The exact amount of the applicable penalties will be proven at t ial. WHEREFORE, Plaintiffs pray for judgment against Defendants as hereinafter requested. 0 GRAND AVENUE, SUITE 0 OAKLAND, CA FOURTH CAUSE OF ACTION (Violation of the Unfair Competition Law). Plaintiffs hereby incorporate each and every allegation contained above, and re-allege said allegations as if fully set forth herein.. At all material times, Plaintiffs are and were affected Plaintiffs with injuries in fact within the meaning of Business & Professions Code.. Plaintiffs allege, on information and belief, that during the last four years and to the present date, Defendants knowingly engaged in unlawful business practices and unlawful labor practices as described above to reduce their overall costs of doing business.. The acts of the Defendants, as herein alleged, constitute unlawful, unfair and fraudulent business practices in that they deprive Pla unfairly compete in the marketplace. ffs of lawfully earned wages in order to. Defendants violations of California law, as alleged herein, constitute unlawful business practices because such violations were done in a systematic manner and under the color of a business decision to the detriment of Plaintiffs.. Defendants acts, as alleged herein, are acts of unfair competition within the meaning of the Business and Professions Code.. As a result of Defendants unlawful, unfair, and fraudulent business practices, and unfair competition within the meaning of Business and Professions Code 0 et seq., - -
Plaintiffs have suffered the loss and enjoyment of their lawful property in the form of wages and other compensation earned and yet unpaid, all in an to be proved a time of trial.. As a result of the unfair business practices of Defendants as alleged herein, Plaintiffs are entitled to restitution of their property. 0. Plaintiffs have incurred and, during the pendency of this action, will continue to incur expenses for attorneys fees and costs herein. Such attorneys fees and costs are necessary for the prosecution of this action and will result in a benefit to Plaintiffs and other individuals lawfully classified as bona fide employees in California. Plaintiffs are, therefore, entitled to reasonable attorneys fees as private attorneys general under Cal ia Code of Civil Procedure.. WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: 0 GRAND AVENUE, SUITE 0 OAKLAND, CA AS TO THE FIRST CAUSE OF ACTION: 1. For compensatory damages in an amount according to pro ial representing the amount of unpaid overtime compensation owed to Plaintiffs and members of the Classes for the three () years preceding the filing of this Complaint, up to and including the present;. For interest calculated according to law on any overtime compensation due from the day such amounts were due for the three () years preceding the filing of the original Complaint, up to and including the present;. For reasonable attorneys fees and the costs of bringing this suit, pursuant to Labor Code (a) and Civ. Proc. Code.; and. For statutory interest. AS TO THE SECOND CAUSE OF ACTION:. For compensatory damages in an amount according to pro ial to Plaintiffs and Class members for failure to provide accurate, itemized wage statements during the three () years preceding the filing of the original Complaint, up to and including the present;. For the amounts provided by Labor Code (e) for the three () years preceding the filing of the original Complaint, up to and including the present;. For reasonable attorneys fees and the costs of bringing this suit, pursuant to Civ. Proc. Code.; and - -
. For statutory interest and penalties. AS TO THE THIRD CAUSE OF ACTION:. For consequential damages according to proof as set forth in Labor Code 1, et seq. (and all applicable California IWC Wage Orders relating to overtime wages due and owing);. For reasonable attorneys fees, expenses and costs;. For waiting time penalties pursuant to Labor Code ; and. For interest accrued to date. AS TO THE FOURTH CAUSE OF ACTION:. For an order that Defendants pay restitution and/or disgorgement of sums to Plaintiffs and to each Class member for Defendants past failure to pay overtime wages in violation of the UCL, 0 GRAND AVENUE, SUITE 0 OAKLAND, CA in an amount according to proof, for the four () years preceding the filing of the original Complaint, up to and including the present;. For attorneys fees pursuant to Cal. Civ. Proc. Code.. AS TO ALL CAUSES OF ACTION: Plaintiffs, on behalf of themselves and all others sim larly situation, pray for judgment against Defendants as follows:. That the Court issue an Order certifying the Plaintiff Classes herein, and any subclasses thereof, appointing the Plaintiffs as representatives of all others similarly situated, and appointing the law firm representing the Plaintiffs as counsel for the members of the Classes;. For compensatory damages according to proof;. For special damages according to proof;. For an award of restitution and/or disgorgement according to proof;. For the costs of bringing the suit;. For reasonable attorneys fees; and. For such other and further relief this Court may deem just and proper. / / / / / / / / / - -
DEMAND FOR JURY TRIAL Plaintiffs demand a trial by jury as to all issues so triable. Dated: January, LAW OFFICES OF RANDALL CRANE /S/ Randall Crane Randall Crane Attorneys for Plaintiffs 0 GRAND AVENUE, SUITE 0 OAKLAND, CA - -
PROOF OF SERVICE I, Elizabeth Noah, declare: 1. I am employed in the City of Oakland and County of Alameda, in the State of California by Law Office of Randall Crane located at 0 Grand Avenue, Suite 0, Oakland, CA.. I am over the age of eighteen years and I am not a party to the within cause.. I am readily familiar with Law Office of Randall Crane s practice for collection and processing of correspondence and documents for mailing with the United States Postal Service, which in the normal course of business, provides for the deposit of all correspondence and documents with the United States Postal Service on the same day they are collected and processed for mailing.. On January,, at the Law Office of Randall Crane located at the above-referenced address, I served the attached FIRST AMENDED COMPLAINT on the interested parties in said cause by: 0 GRAND AVENUE, SUITE 0 OAKLAND, CA personal delivery by messenger service of the document(s) listed above to the person(s) at the address(es) set forth below: XX placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in accordance with the firm s practice of collection and processing correspondence for mailing to the person(s) at the address(es) set forth below: facsimile transmission pursuant to Rule 0 of the California Rules of Court on this date before :00 p.m. (PST) of the document(s) listed by facsimile machine, telephone number () -, and which transmission was reported as complete and without error (copy of which is attached), to facsimile number(s) set forth below: consigning the document(s) listed above to an express delivery service for guaranteed delivery on the next business day to the person(s) at the address(es) set forth below: Michael L. Gallon Sheppard, Mullin Richter & Hampton, LLP 01 Avenue of the Stars, Ste. 00 Los Angeles, Ca 00 I declare under penalty of perjury that the foregoing is true and correct. Executed on January, in Oakland, California. _/S/ Elizabeth Noah - -
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