Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B. Blumenthal (State Bar #0) Kyle R. Nordrehaug (State Bar #) Aparajit Bhowmik (State Bar #0) Calle Clara La Jolla, CA Telephone: ()- Facsimile: () - UNITED EMPLOYEES LAW GROUP Walter Haines, Esq. (State Bar #0) Pine Ave, # Long Beach, CA 00 Telephone: () -0 Facsimile: () -00 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA YVETTE SMITH, TIM DODSON, MOLLA ENGER, as individuals, on behalf of themselves, and on behalf of all persons similarly situated, vs. Plaintiffs, KAISER FOUNDATION HOSPITALS, INC., also d/b/a KAISER PERMANENTE INFORMATION TECHNOLOGY, a California Corporation; and, KAISER FOUNDATION HEALTH PLAN, INC., a California Corporation, and Does to 0, Defendants. CASE No. 0-cv-0-LAB-JMA SECOND AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT. UNFAIR COMPETITION IN VIOLATION OF CAL. BUS. & PROF. CODE 0, et seq.;. FAILURE TO PAY OVERTIME COMPENSATION IN VIOLATION OF CAL. LAB. CODE 0,.,,, AND, et seq.;. FAILURE TO PROVIDE WAGES WHEN DUE IN VIOLATION OF CAL. LAB. CODE ;. FAILURE TO PROVIDE MEAL AND REST PERIODS IN VIOLATION OF CAL. LAB. CODE. AND ;. FAILURE TO PROVIDE ACCURATE ITEMIZED STATEMENTS IN VIOLATION OF CAL. LAB. CODE ;. FAILURE TO PAY OVERTIME COMPENSATION IN VIOLATION OF U.S.C., et seq.; and,. LABOR CODE PRIVATE ATTORNEY GENERAL ACT [Labor Code ] DEMAND FOR A JURY TRIAL 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of Plaintiffs Yvette Smith, Tim Dodson, and Molla Enger, on behalf of themselves, and all others similarly situated (hereinafter referred to as the PLAINTIFFS ) allege on information and belief, except for their own acts and knowledge, the following: 0 THE PARTIES. Kaiser Foundation Health Plan, Inc., hereinafter also referred to as DEFENDANTS, providing services under the Kaiser Permanente name, is the largest not-for-profit HMO in the United States. Kaiser Foundation Health Plan, Inc. now serves about. million members in states and Washington, D.C. The Oakland, California-based organization underwrites the Permanente Medical Groups, which, through the care of over,000 physicians, furnish medical care to Kaiser Permanente subscribers. Described as "an integrated health delivery system," Kaiser Permanente provides an array of services to membership by organizing and coordinating or providing subscribers' health care (including preventive medicine), and also providing other medical and pharmacy services through the network of Kaiser Foundation Hospitals and their subsidiaries.. Kaiser Foundation Hospitals, Inc. is also based in Oakland, California. Kaiser Foundation Hospitals, Inc. operates as a subsidiary of Kaiser Permanente and is a non-profit, public benefit corporation that owns and operates 0 community hospitals in California, Hawaii, and Oregon.. Kaiser Permanente Information Technology (KP-IT) is one of the Kaiser organizations responsible for Information Technology (IT) services and development throughout Kaiser Permanente and is a department of Kaiser Foundation Hospitals, Inc., also hereinafter referred to as the DEFENDANTS.. In 0, Kaiser Permanente announced that $. billion would be invested in advanced information and communication technology systems including electronic medical records, electronic appointment booking, electronic prescription refills and referral requests. The program represented one of the largest and most ambitious implementations of electronic medical records, in a move that was intended to transform the quality, safety and efficiency of healthcare services 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 delivered to Kaiser Permanente s. million members.. Epic Systems partnered with Kaiser Permanente to provide this next-generation system that includes web-based electronic medical records accessible online by both healthcare professionals and patients. This system, Kaiser Permanente HealthConnect, is an integrated clinical and administrative information management system that integrates the patients electronic medical record with their appointments, registration and billing information. The system links KP departments and facilities nationwide, providing KP physicians and care teams access to current and comprehensive patient information and providing KP members / on-line access to key portions of their medical record.. Plaintiff Yvette Smith was employed by Defendant Kaiser Foundation Hospitals, Inc. as a Business Applications Coordinator from July of 0 until October of 0. In or around October of 0, Plaintiff Smith, along with her other coworkers employed as Business Application Coordinators, were transferred to Kaiser Foundation Health Plan, Inc. Plaintiff has since been employed with Kaiser Foundation Health Plan, Inc. up to and until the present.. Upon receiving Plaintiff Smith and the other Business Application Coordinators as employees from Kaiser Foundation Hospitals, Inc., Kaiser Foundation Health Plan, Inc. gave Plaintiff Smith and the other employees the new job titles of Senior Business Application Coordinators.. Although Plaintiff Smith and her coworkers had previously been employed by Defendant Kaiser Foundation Hospitals, Inc., upon and after being put on the payroll of Defendant Kaiser Foundation Health Plan, Inc. and receiving the new titles of Senior Business Application Coordinators, the job duties of Plaintiff Smith and her fellow coworkers did not change.. The job titles of Business Application Coordinator given by Defendant Kaiser Foundation Hospitals Inc. and the job titles of Senior Business Application Coordinators (hereinafter collectively referred to as SBACs ) given by Defendant Kaiser Foundation Health Plan, Inc. were both described to Plaintiff Smith and the other SBACs as exempt and full time positions. 0. Plaintiff Tim Dodson was employed by Defendant Kaiser Foundation Health Plan, 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 Inc. as a Senior Business Applications Coordinator from September of 0 until May of 0.. Plaintiff Molla Enger was employed by Defendant Kaiser Foundation Health Plan, Inc. as an Analyst, also referred to as a Senior Analyst (hereinafter referred to as an Analyst ) from March of 0 until November of 0.. The Analyst position was described to Plaintiff Enger and the other Analysts as exempt and full time positions.. For both DEFENDANTS, the PLAINTIFFS functioned as working members on the production side of DEFENDANTS Information Technology ( IT ) Staff. The primary job duties of PLAINTIFFS and the other SBACs and Analysts employed by Kaiser Foundation Hospitals, Inc. and Kaiser Foundation Health Plan, Inc. were and are to provide training and technical support to hospital staff in connection with the Kaiser Permanente HealthConnect computer system ( HealthConnect ), which was installed as part of a procedure called GoLive. This project was instituted in order to ensure that all Kaiser Permanente facilities would use a common software system. Intermittently, DEFENDANTS would deploy PLAINTIFFS and other SBACs and Analysts in teams to Kaiser Permanente facilities in Northern California for month-long durations, where they, along with their team, provided training, technical support and assistance to hospital clinicians and staff in conjunction with the installation of the HealthConnect computer system during the GoLive procedure (the DEPLOYMENT ). Kaiser Permanente also employs this same GoLive procedure in various San Diego County facilities.. The work schedule during the DEPLOYMENTS lasted approximately four weeks where the PLAINTIFFS worked more than eight () hours a day and more than forty (0) hours each week. As a result of this rigorous work schedule, PLAINTIFFS and other similarly situated employees were often unable to take meal or rest breaks. Furthermore, PLAINTIFFS and the other team members were also required to deliver training sessions during their lunch periods called Lunch & Learns. The Lunch & Learns were deliberately scheduled during the meal periods so that the hospital clinicians and staff members could eat their lunch and learn about the HealthConnect system from the PLAINTIFFS, who were forced to deliver these training sessions during their meal periods. 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0. Prior to the GoLive, DEFENDANTS would also require PLAINTIFFS and their team members to participate in Technical Dress Rehearsals. During these sessions, PLAINTIFFS and their team members were required to test the software to ensure that the HealthConnect system was functioning properly. Any problems or defects would have to be reported back to the DEFENDANTS employees who had the technical expertise to diagnose and cure the defects. In order to test the equipment without disturbing the hospital staff, these Rehearsals took place either during meal periods, early in the morning, or late in the evening when the staff was not working in the department. This scheduling caused the workday, wherein PLAINTIFFS participated in the Technical Dress Rehearsals, to exceed eight () hours. Overall, the first two weeks of the DEPLOYMENT were consistently the most grueling. The five () to six () day workweek consisted of workdays which lasted as long as thirteen () hours. Both the third and fourth weeks of the DEPLOYMENT contained five () to six () workdays, during which PLAINTIFFS and their fellow team members worked approximately ten (0) hours each day. Physical demands of this position include and/or included standing, sitting, walking, and bending as needed to demonstrate how to use the HealthConnect computer systems to hospital staff. During the Class Periods as hereinafter defined, PLAINTIFFS and the members of their team worked and/or still work on the production side during the various DEPLOYMENTS, but are nevertheless classified by DEFENDANTS as exempt from overtime pay and worked more than eight () hours a day and more than forty (0) hours a week.. Plaintiffs Smith and Dodson and other SBACs were also required to remain on-call pursuant to the DEFENDANTS on-call rotation plan (the ROTATIONS ). According to the ROTATIONS, each staff member employed as a SBACs took turns performing on-call duties. The performance of each ROTATION lasted for an entire seven () day workweek, and was required to be undertaken by each SBAC Staff Member at least once every two () months. During this time, after returning home from at least an eight () hour work day, the SBACs were required to remain on stand-by for the entire night, every night of the week, for the entire week without additional compensation. Further, after working an entire workday on the Friday of the ROTATION, the SBACs were required to remain on call twenty-four () hours a day from Friday 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 evening until Monday morning, when they would report to the employer s work site for their regular workday. The effect of DEFENDANTS on-call rotational system is that, during the team members rotation, the employee is subject to receiving a call and is effectively precluded from engaging in any activity outside of work that would hinder his ability to immediately respond to the technical support call. This system places severe limitations on the activities of the SBACs and accordingly, their time is predominantly spent for the benefit of the DEFENDANTS. Each night of every ROTATION, the SBACs movements were severely geographically restricted by DEFENDANTS requirement that they respond to any work request receive via pager within thirty (0) minutes by phone to the person requesting technical support and then begin working on the technical support request at that time. Although most of the work requests could be attended to by using their laptops, DEFENDANTS required the SBACs to remain within thirty (0) minutes of the DEFENDANTS premises in case on-site technical support was needed. Each night, while on-call, the SBACs all were subjected to calls in conjunction with the unduly restrictive fixed, response time-limit that necessitated an answer to each call. As a result of the burden imposed by these duties, PLAINTIFFS and the SBACs of the CLASS could not easily trade their on-call responsibilities with another employee, as no one wanted this burden. Further, Plaintiffs Smith and Dodson and the SBACs were extremely restricted while on-call in the kind and extent of personal activities in which they could engage. Any personal activities which required longer than thirty (0) minutes to perform without interruption, and/or required more than thirty (0) minutes to travel to and from, including, but not limited to, going to see a movie in a theater, dining at a restaurant, engaging in organized sporting activities, participating in weddings, supplementing one s income with a second job, and/or attending to medical issues with the assistance of a doctor, dentist, or other professional, had to be avoided entirely while on-call. Another inconvenience imposed upon Plaintiffs Smith and Dodson and the SBACs was the inability to provide oneself with an entire night of uninterrupted sleep, as the technical support calls often came in past eleven o clock at night (:00 p.m.) From the DEFENDANTS facility. Despite these demanding conditions imposed by DEFENDANTS, regular and overtime compensation for (a) the hours worked during the ROTATIONS and (b) the on-call hours which restricted Plaintiffs Smith and 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 Dodson and the SBACs during the ROTATIONS as to be effectively engaged to wait, were withheld by DEFENDANTS from Plaintiffs Smith and Dodson and the SBACs.. Plaintiff Enger and the other Analysts were also required to remain on-call every day of every week of their employment. The Analysts were, therefore, required to remain on stand-by for the entire night, every night of the week, for the entire week without additional compensation. The effect of DEFENDANTS on-call requirement is that these employees were subject to receiving a call and were effectively precluded from engaging in any activity outside of work that would hinder his or her ability to immediately respond to the technical support call. This system placed severe limitations on the activities of the Analysts and accordingly, their time was predominantly spent for the benefit of the DEFENDANTS. Each night of every work week the Analysts movements were severely geographically restricted by DEFENDANTS requirement that they immediately respond to any work request received via pager to the person requesting the technical support and then begin working on the technical support request at that time. Although most of the work requests could be attended to by using their laptops, DEFENDANTS required the Analysts to remain within thirty (0) minutes of the DEFENDANTS premises in case on-site technical support was needed. Each night, while on-call, the Analysts all were subjected to calls in conjunction with the unduly restrictive fixed, response time-limit that necessitated an answer to each call. As a result of the burden imposed by these duties, Plaintiff Enger and the Analysts of the CLASS could not easily trade their on-call responsibilities with another employee, as no one wanted this burden. Further, Plaintiff Enger and the Analysts were extremely restricted while oncall in the kind and extent of personal activities in which they could engage. Any personal activities which required longer than thirty (0) minutes to perform without interruption, and/or required more than thirty (0) minutes to travel to and from, including, but not limited to, going to see a movie in a theater, dining at a restaurant, engaging in organized sporting activities, participating in weddings, supplementing one s income with a second job, and/or attending to medical issues with the assistance of a doctor, dentist, or other professional, had to be avoided entirely while on-call. Another inconvenience imposed upon Plaintiff Enger and the Analysts was the inability to provide oneself with an entire night of uninterrupted sleep, as the technical support 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 calls often came in past eleven o clock at night (:00 p.m.) from the DEFENDANTS facility. Despite these demanding conditions imposed by DEFENDANTS, regular and overtime compensation for on-call requirements, including time actually working while on-call, which restricted Plaintiff Enger and the Analysts during the ROTATIONS as to be effectively engaged to wait, were withheld by DEFENDANTS from Plaintiff Enger and the Analysts.. Plaintiffs Smith and Dodson bring this class action on behalf of themselves and a California Class consisting of all individuals who are or previously were employed either by Defendant Kaiser Foundation Hospitals, Inc. in a staff position as a Business Application Coordinator or by Defendant Kaiser Foundation Health Plan, Inc. as a Senior Business Application Coordinator or in any other similarly situated position (the SBACs ) (the SBAC CALIFORNIA CLASS ) in California during the period December, 0 to July, 0 (the SBAC CALIFORNIA CLASS PERIOD ).. Plaintiffs Enger brings this class action on behalf of herself and a California Class consisting of all individuals who are or previously were employed either by Defendant Kaiser Foundation Hospitals, Inc. or Defendant Kaiser Foundation Health Plan, Inc. as an Analyst or in any other similarly situated position (the Analysts ) (the ANALYST CALIFORNIA CLASS ) in California during the period beginning July, 0 through August 0, 0 (the ANALYST CLASS PERIOD ).. Both the SBAC CALIFORNIA CLASS and the ANALYST CALIFORNIA CLASS will hereinafter be referred to collectively as the CALIFORNIA CLASSES unless otherwise indicated. Both the SBAC CALIFORNIA CLASS PERIOD and the ANALYST CALIFORNIA CLASS PERIODS will hereinafter be referred to collectively as the CALIFORNIA CLASS PERIOD unless otherwise indicated.. As a matter of company policy, practice, and procedure, DEFENDANTS have unlawfully, unfairly and/or deceptively classified every SBAC and Analyst as exempt based on job title alone, failed to pay the required overtime compensation and otherwise failed to comply with all labor laws with respect to these SBACs and Analysts.. The Defendants named in this Complaint, including Does through 00, inclusive, 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of are, and at all times mentioned herein were, the agents, servants, and/or employees of each of the other defendants and that each defendant was acting within the course of scope of his, her or its authority as the agent, servant and/or employee of each of the other defendants (the DEFENDANTS ). Consequently, all the defendants are jointly and severally liable to the PLAINTIFFS and the other members of the CALIFORNIA CLASSES, for the losses sustained as a proximate result of DEFENDANTS conduct. 0 THE CONDUCT The Unlawful, Unfair, and/or Deceptive Failure to Have in Place a Company-Wide Policy, Practice and Procedure to Correctly Determine Whether PLAINTIFFS and the members of the CALIFORNIA CLASS were Properly Classified as Exempt. The primary duties required of the SBACs and Analysts are executed by the performance of non-exempt labor within a defined skill set, involving installation, troubleshooting, building, and training other users with respect to the operation of the KP HealthConnect system. Other duties included providing Go-live implementation, and also providing ongoing support, which includes / support and issue resolution.. Although PLAINTIFFS and the SBACs and Analysts primarily performed the nonexempt labor described herein above, DEFENDANTS instituted a blanket classification policy, practice and/or procedure by which these employees were all classified as exempt from overtime compensation. By reason of this uniform exemption practice, policy and procedure applicable to PLAINTIFFS and all other SBACs and Anlaysts who performed this non-exempt labor, DEFENDANTS committed acts of unfair competition in violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code 0 (the UCL ), by engaging in a company-wide policy, practice and procedure which failed to analyze the amount of non-exempt tasks performed by PLAINTIFFS and thereafter correctly determine whether the PLAINTIFFS and the California Class of similarly situated SBACs and Analysts were properly classified as exempt. The proper classification of these employees is the DEFENDANTS burden. As a result of DEFENDANTS intentional disregard of the obligation to meet this burden, DEFENDANTS failed to properly 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page 0 of 0 calculate and/or pay all required overtime compensation for work performed by the members of the CALIFORNIA CLASS and violated the Fair Labor Standards Act and the California Labor Code and regulations promulgated thereunder as herein alleged.. DEFENDANTS, as a matter of law, have the burden of proving that (a) employees are properly classified as exempt and that (b) DEFENDANTS otherwise complies with applicable laws. Other than the initial classification of the PLAINTIFFS and similarly situated SBACs and Analysts as exempt from being paid overtime based on job title alone, DEFENDANTS had no business policy, practice, or procedure to ensure that the PLAINTIFFS and similarly situated SBACs and Analysts were properly classified as exempt.. During their employment with DEFENDANTS, PLAINTIFFS worked on the production side of DEFENDANTS enterprise, performed non-exempt duties but were nevertheless classified by DEFENDANTS as exempt from overtime pay and worked more than eight () hours a day, forty (0) hours a week, and/or on the seventh (th) of a workweek. In addition, PLAINTIFFS were not provided with all required meal and rest period breaks during the CALIFORNIA CLASS PERIODS and also frequently were not provided with uninterrupted meal breaks.. PLAINTIFFS and the other SBACs and Analysts employed by DEFENDANTS were not primarily engaged in work of a type that was or now is directly related to management policies or general business operations, when giving these words a fair but narrow construction. PLAINTIFFS and the other SBACs and Analysts employed by DEFENDANTS were also not primarily engaged in work of a type that was or now is performed at the level of the policy or management of the DEFENDANTS. To the contrary, the work of these employees was work wherein PLAINTIFFS and members of the CALIFORNIA CLASSES were primarily engaged in the day to day business operations of the DEFENDANTS to keep the computers that perform the day to day work operating in accordance with the management policies and general business operations established by DEFENDANTS management.. The fact that the work and those of other similarly situated employees involved a computer and/or a specialized skill set in a defined technical area does not mean that the 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 PLAINTIFFS or other SBACs and Analysts employed by DEFENDANTS are exempt from overtime wages. Indeed, the exercise of discretion and independent judgment must be more than the use of a highly technical skill set described in a manual or other sources. The work that PLAINTIFFS and other SBACs and Analysts employed by DEFENDANTS were and are primarily engaged in performing day to day activities is the work that is required to be performed as part of the day to day business of DEFENDANTS. As a result, PLAINTIFFS and other SBACs and Analysts employed by DEFENDANTS were primarily engaged in work that falls squarely on the production side of the administrative/production worker dichotomy and should have been properly classified as non-exempt employees.. PLAINTIFFS and all members of the CALIFORNIA CLASS are and were uniformly classified and treated by DEFENDANTS as exempt at the time of hire and thereafter, DEFENDANTS failed to take the proper steps to determine whether PLAINTIFFS, and the other members of the similarly-situated CALIFORNIA CLASS, were properly classified under Industrial Welfare Commission Wage Order -0 and Cal. Lab. Code 0 et seq. and Section of the Fair Labor Standards Act (the FLSA ) as exempt from applicable federal and state labor laws. Since DEFENDANTS affirmatively and wilfully had in place a business policy, practice and procedure which failed to allow for an accurate determination of whether exempting PLAINTIFFS and the members of the CALIFORNIA CLASS complied with either the FLSA or the California Labor Laws, DEFENDANTS practices violated and continue to violate the law. In addition, the DEFENDANTS acted deceptively by falsely and fraudulently telling PLAINTIFFS and each member of the CALIFORNIA CLASS that they were exempt from overtime pay when DEFENDANTS knew or should have known that this statement was false and not based on known facts. The DEFENDANTS also acted unfairly by violating the labor laws of the United States and California. As a result of this policy and practice, DEFENDANTS violated the UCL. The Unfair, Unlawful and/or Deceptive Failure to Provide Accurate Wage Statements 0. DEFENDANTS provided and still provide PLAINTIFFS and similarly situated SBACs and Anlyasts with a paystub that fails to display all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the 0 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 PLAINTIFFS and similarly situated SBACs and Analysts. This conduct violates California Labor Code. The paystub also does not display anywhere PLAINTIFFS and similarly situated SBACs and Analysts overtime hours and applicable rates of overtime pay for the pay period. The Unfair, Unlawful and/or Deceptive Failure to Make Meal and Rest Periods Available. DEFENDANT s policies, practices, and procedures fail to make meal and rest periods available to PLAINTIFFS and the other SBACs and Analysts. By regularly scheduling meetings, activities or other work during the meal periods, DEFENDANTS fail to make available a full thirty (0) minute period in which the SBACs and Anlaysts are completely relieved of their duties and able to take an uninterrupted meal break.. By reason of this uniform conduct applicable to PLAINTIFFS and all members of the CALIFORNIA CLASSES, DEFENDANTS committed acts of unfair competition in violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code 0 (the UCL ), by engaging in a company-wide policy and procedure which failed to correctly determine whether the PLAINTIFFS and the CALIFORNIA CLASSES of similarly situated SBACs and Analysts were properly classified as exempt. The proper classification of these employees is the DEFENDANTS burden. As a result of DEFENDANTS intentional disregard of the obligation to meet this burden, DEFENDANTS failed to properly calculate and/or pay all required overtime compensation for work performed by the members of the CALIFORNIA CLASSES and violated the Fair Labor Standards Act and the California Labor Code and regulations promulgated thereunder as herein alleged. THE UCL REMEDIES. As a result of DEFENDANTS UCL violation, PLAINTIFFS, on behalf of themselves and the CALIFORNIA CLASS, seek disgorgement of DEFENDANTS ill-gotten gains into a fluid fund to recover all the money that DEFENDANTS were required by law to pay, but failed to pay, to PLAINTIFFS and all other CALIFORNIA CLASS members and restitution to PLAINTIFFS and the CALIFORNIA CLASS. PLAINTIFFS also seeks penalties and all other relief available to them and other similarly situated employees under California law. PLAINTIFFS 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 also seek declaratory relief finding that the employment practices and policies of the DEFENDANTS violate California law and injunctive relief to enjoin the DEFENDANTS from continuing to engage in such employment practices.. PLAINTIFFS and the members of the CALIFORNIA CLASS have no plain, speedy or adequate remedy at law and will suffer irreparable injury if DEFENDANTS are permitted to continue to engage in the unlawful acts and practices herein alleged. The illegal conduct alleged herein is continuing and to prevent future injury and losses, and to avoid a multiplicity of lawsuits, PLAINTIFFS are entitled to an injunction and other equitable relief, on behalf of himself and the CLASS, to prevent and enjoin such practices. PLAINTIFFS therefore request a preliminary and/or permanent injunction as the DEFENDANTS provides no indication that DEFENDANTS will not continue such wrongful activity in the future, along with restitution, penalties, interest, compensation and other equitable relief as provided by law. THE CALIFORNIA CLASSES. PLAINTIFFS bring the First Cause of Action for Unfair, Unlawful and Deceptive Business Practices pursuant to Cal. Bus. & Prof. Code 0, et seq. (the UCL ) as a class action, pursuant to Fed. R. Civ. Proc. (b)() and/or () on behalf of a California Class, defined as all those persons employed by DEFENDANTS as SBACs as hereinabove defined or under equivalent job title in California beginning from December, 0 and ending on July, 0 (the SBAC CALIFORNIACLASS PERIOD ) who were classified by DEFENDANTS as exempt, and who have been or may still be subject to the challenged exemption classification policies and practices used by DEFENDANTS (the SBAC CALIFORNIA CLASS ).. PLAINTIFFS further bring the First Cause of Action for Unfair, Unlawful and Deceptive Business Practices pursuant to Cal. Bus. & Prof. Code 0, et seq. (the UCL ) as a class action, pursuant to Fed. R. Civ. Proc. (b)() and/or () on behalf of a California Class, defined as all those persons employed by DEFENDANTS as Analysts as hereinabove defined or under equivalent job title in California beginning July, 0 and ending on August 0, 0 (the ANALYST CLASS PERIOD ) who were classified by Defendant as exempt, and who have been 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 or may still be subject to the challenged exemption classification policies and practices used by DEFENDANTS (the ANALYST CALIFORNIA CLASS ).. Both the SBAC CALIFORNIA CLASS and the ANALYST CALIFORNIA CLASS will hereinafter be referred to collectively as the CALIFORNIA CLASSES unless otherwise indicated. Both the SBAC CALIFORNIA CLASS PERIODS and the ANALYST CALIFORNIA CLASS PERIODS will hereinafter be referred to collectively as the CALIFORNIA CLASS PERIODS unless otherwise indicated.. To the extent equitable tolling operates to toll claims by the CALIFORNIA CLASSES against DEFENDANTS, the CALIFORNIA CLASS PERIODS should be adjusted accordingly.. DEFENDANTS, as a matter of corporate policy, practice and procedure, and in violation of the applicable Labor Code, Industrial Welfare Commission ( IWC ) Wage Order Requirements, and the applicable provisions of California law, intentionally, knowingly, and wilfully, engaged in a practice whereby DEFENDANTS unfairly, unlawfully, and deceptively failed to institute a practice to ensure that the employees employed in a position as an SBAC Staff Member properly were classified as exempt from the requirements of California Labor Code 0, et seq. 0. DEFENDANTS have the burden of proof that each and every employee is properly classified as exempt from the requirements of the Cal. Lab. Code 0, et seq. The DEFENDANTS, however, as a matter of uniform and systematic policy and procedure failed to have in place during the SBAC and ANALYST CLASS PERIODS and still fail to have in place a policy or practice to make any individual determination of exemption for any member of the CALIFORNIA CLASSES so as to satisfy their burden. Rather, the DEFENDANTS uniform policy and practice in place at all times during the SBAC AND ANALYST CLASS PERIODS and currently in place is to systematically classify each and every member of the CALIFORNIA CLASSES as exempt from the requirements of the California Labor Code 0, et seq., based on job title alone. This common business practice applicable to each and every member of the CALIFORNIA CLASSES can be adjudicated on a classwide basis as unlawful, unfair, and/or 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 deceptive under Cal. Business & Professions Code 0, et seq. (the UCL ) as causation, damages, and reliance are not elements of this claim.. At no time before, during or after the PLAINTIFFS employment with DEFENDANTS was any SBAC or Analyst reclassified as non-exempt from the applicable requirements of California Labor Code 0, et seq. after all members of the CALIFORNIA CLASSES were initially, uniformly, and systematically classified as exempt upon being hired.. Any individual declarations of any members of the CALIFORNIA CLASSES offered at this time purporting to indicate that one or more SBAC or Analyst may have been properly classified is of no force or affect absent evidence that DEFENDANTS had a uniform system in place to satisfy DEFENDANTS burden that DEFENDANTS, at all times had in effect a policy and practice to determine whether the members of the CALIFORNIA CLASSES were being properly classified as exempt pursuant to Cal. Lab. Code 0, et seq. Absent proof of such a system, DEFENDANTS business practice is uniformly unlawful, unfair and/or deceptive under the UCL and may be so adjudicated on a classwide basis. As a result of the UCL violations, the PLAINTIFFS and the members of the CALIFORNIA CLASSES are entitled to have this unfair business practice enjoined and to cause DEFENDANTS to disgorge their ill-gotten gains into a fluid fund and to restitute these funds to the PLAINTIFFS and the members of the CALIFORNIA CLASSES according to proof.. The CALIFORNIA CLASSES, each numbering more than 00 members, is so numerous that joinder of all SBACs and Analysts, is impracticable. (a) Violating the California Unfair Competition Laws, Cal. Bus. & Prof. Code 0, et seq. (the UCL ), by unlawfully, unfairly and/or deceptively having in place company policies, practices and procedures that uniformly classified PLAINTIFFS and the members of the CALIFORNIA CLASSES as exempt based on job title alone; (b) Committing an act of unfair competition in violation of the UCL, by unlawfully, unfairly, and/or deceptively failing to have in place a company policy, practice and procedure that accurately determined the amount of 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 (c) (d) (e) (f) (g) working time spent by PLAINTIFFS and the members of the CALIFORNIA CLASSES performing non-exempt labor; Committing an act of unfair competition in violation of the UCL, by having in place a company policy, practice and procedure that failed to reclassify as non-exempt those members of the CALIFORNIA CLASSES whose actual job duties are primarily comprised non-exempt job functions; Committing an act of unfair competition in violation of the UCL by violating Cal. Lab. Code 0, et seq. by failing to pay the correct overtime pay to PLAINTIFFS and the members of the CALIFORNIA CLASSES who were improperly classified as exempt; Committing an act of unfair competition in violation of the UCL by violating Cal. Lab. Code. and, by failing to provide PLAINTIFFS and the members of the CALIFORNIA CLASSES with meal and rest periods; Committing an act of unfair competition in violation of the UCL by violating Cal. Lab. Code by failing to provide PLAINTIFFS and the members of the CALIFORNIA CLASSES with an accurate itemized statement in writing showing the gross wages earned, the net wages earned, all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee; and, Committing an act of unfair competition in violation of the UCL by violating Cal. Lab. Code by failing to provide restitution of wages owed to the members of the CALIFORNIA CLASSES who were improperly classified as exempt and who have terminated their employment.. This Class Action meets the statutory prerequisites for the maintenance of a Class Action as set forth in Fed. R. Civ. Proc. (b)() and/or () in that: (a) The persons who comprise the CALIFORNIA CLASSES exceed 00 persons and are therefore so numerous that the joinder of all such persons is impracticable and the disposition of their claims as a class will benefit the 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 (b) (c) (d) parties and the Court; Nearly all factual, legal, statutory, declaratory and injunctive relief issues that are raised in this Complaint are common to the CALIFORNIA CLASSES will apply uniformly to every member of the CALIFORNIA CLASSES; The claims of the representative PLAINTIFFS are typical of the claims of each member of the CALIFORNIA CLASSES. PLAINTIFFS, like all other members of the CALIFORNIA CLASSES, were initially classified as exempt upon hiring based on job title alone and labored under DEFENDANTS systematic procedure that failed to analyze the compensation paid to PLAINTIFFS and the members of the CALIFORNIA CLASSES in order to determine whether the classification was properly made. PLAINTIFFS sustained economic injury as a result of DEFENDANTS employment practices. PLAINTIFFS and the members of the CALIFORNIA CLASSES were and are similarly or identically harmed by the same unlawful, deceptive, unfair and pervasive pattern of misconduct engaged in by the DEFENDANTS by deceptively advising all SBAC Class Members that they were exempt from overtime wages based on job title alone, and unfairly failing to pay overtime to employees who were improperly classified as exempt. The representative PLAINTIFFS will fairly and adequately represent and protect the interest of the CALIFORNIA CLASSES, and has retained counsel who are competent and experienced in Class Action litigation. There are no material conflicts between the claims of the representative PLAINTIFFS and the members of the CALIFORNIA CLASSES that would make class certification inappropriate. Counsel for the CALIFORNIA CLASSES will vigorously assert the claims of all Class Members.. In addition to meeting the statutory prerequisites to a Class Action, this action 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of is properly maintained as a Class Action pursuant to Fed. R. Civ. Proc. (b)() and/or (), in that: 0 (a) (b) Without class certification and determination of declaratory, injunctive, statutory and other legal questions within the class format, prosecution of separate actions by individual members of the CALIFORNIA CLASSES will create the risk of: ) Inconsistent or varying adjudications with respect to individual members of the CALIFORNIA CLASSES which would establish incompatible standards of conduct for the parties opposing the CALIFORNIA CLASS; and/or, ) Adjudication with respect to individual members of the CALIFORNIA CLASSES which would as a practical matter be dispositive of interests of the other members not party to the adjudication or substantially impair or impede their ability to protect their interests. The parties opposing the CALIFORNIA CLASSES have acted or refused to act on grounds generally applicable to the CALIFORNIA CLASSES, making appropriate class-wide relief with respect to the CALIFORNIA CLASSES as a whole in that the DEFENDANTS uniformly classified and treated the SBACs and Analysts as exempt and, thereafter, uniformly failed to take proper steps to determine whether the SBACs and Analysts were properly classified as exempt, and thereby denied these employees overtime wages as required by law; ) With respect to the First Cause of Action, the final relief on behalf of the CALIFORNIA CLASSES sought does not relate exclusively to disgorgement into a fluid fund restitution because through this claim PLAINTIFFS seeks declaratory relief holding that the DEFENDANTS policy and practices constitute unfair competition, along with declaratory relief, injunctive relief, and incidental 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 (c) equitable relief as may be necessary to prevent and remedy the conduct declared to constitute unfair competition; Common questions of law and fact exist as to the members of the CALIFORNIA CLASSES, with respect to the practices and violations of California Law as listed above, and predominate over any question affecting only individual members, and a Class Action is superior to other available methods for the fair and efficient adjudication of the controversy, including consideration of: ) The interests of the members of the CALIFORNIA CLASSES in individually controlling the prosecution or defense of separate actions in that the substantial expense of individual actions will be avoided to recover the relatively small amount of economic losses sustained by the individual members of the CALIFORNIA CLASSES when compared to the substantial expense and burden of individual prosecution of this litigation; ) Class certification will obviate the need for unduly duplicative litigation that would create the risk of: A. Inconsistent or varying adjudications with respect to individual members of the CALIFORNIA CLASSES, which would establish incompatible standards of conduct for the DEFENDANTS; and/or, B. Adjudications with respect to individual members of the CALIFORNIA CLASSES would as a practical matter be dispositive of the interests of the other members not parties to the adjudication or substantially impair or impede their ability to protect their interests; ) In the context of wage litigation because as a practical matter a substantial number of individual class members will avoid asserting 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 their legal rights out of fear of retaliation by DEFENDANTS, which may adversely affect an individual s job with DEFENDANTS or with a subsequent employer, the Class Action is the only means to assert their claims through a representative; and, ) A class action is superior to other available methods for the fair and efficient adjudication of this litigation because class treatment will obviate the need for unduly and unnecessary duplicative litigation that is likely to result in the absence of certification of this action pursuant to Fed. R. Civ. Proc. (b)().. This Court should permit this action to be maintained as a Class Action pursuant to Fed. R. Civ. Proc. (b)() and/or () because: (a) (b) (c) (d) (e) The questions of law and fact common to the CALIFORNIA CLASSES predominate over any question affecting only individual members because the DEFENDANTS employment practices were uniform and systematically applied with respect to the CALIFORNIA CLASSES; A Class Action is superior to any other available method for the fair and efficient adjudication of the claims of the members of the CALIFORNIA CLASSES because in the context of employment litigation a substantial number of individual Class members will avoid asserting their rights individually out of fear of retaliation or adverse impact on their employment; The members of the CALIFORNIA CLASSES exceed 00 people and are therefore so numerous that it is impractical to bring all members of the CALIFORNIA CLASSES before the Court; PLAINTIFFS, and the other members of the CALIFORNIA CLASSES, will not be able to obtain effective and economic legal redress unless the action is maintained as a Class Action; There is a community of interest in obtaining appropriate legal and equitable relief for the acts of unfair competition, statutory violations and other 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 (f) (g) (h) (i) improprieties, and in obtaining adequate compensation for the damages and injuries which DEFENDANTS actions have inflicted upon the CALIFORNIA CLASSES; There is a community of interest in ensuring that the combined assets of DEFENDANTS are sufficient to adequately compensate the members of the CALIFORNIA CLASSES for the injuries sustained; DEFENDANTS have acted or refused to act on grounds generally applicable to the CALIFORNIA CLASSES, thereby making final class-wide relief appropriate with respect to the CALIFORNIA CLASSES as a whole; The members of the CALIFORNIA CLASSES are readily ascertainable from the business records of DEFENDANT. The CALIFORNIA CLASSES consist of all DEFENDANTS SBACs and Analysts employed in California during the respective SBAC AND ANALYST CLASS PERIODS; and, Class treatment provides manageable judicial treatment calculated to bring a efficient and rapid conclusion to all litigation of all wage and hour related claims arising out of the conduct of DEFENDANTS as to the members of the CALIFORNIA CLASSES.. DEFENDANTS maintain records from which the Court can ascertain and identify by job title each of DEFENDANTS employees who as have been systematically, intentionally and uniformly subjected to DEFENDANTS corporate policy, practices and procedures as herein alleged. PLAINTIFFS will seek leave to amend the complaint to include any additional job titles of similarly situated employees when they have been identified. THE CALIFORNIA LABOR SUB-CLASSES. PLAINTIFFS further bring the Second, Third, Fourth, and Fifth causes of action on behalf of a subclass which consists of all members of the SBAC CALIFORNIA CLASSES who were employed by DEFENDANTS during the period December, 0 and ending on July, 0 ( SBAC CALIFORNIA LABOR SUB-CLASS PERIOD ), with 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 documented overtime hours who were classified by DEFENDANTS as exempt, and who performed work in excess of eight () hours in one day and/or forty (0) hours in one week and/or hours on the seventh (th) consecutive day of a workweek and did not receive overtime compensation as required by Labor Code Section 0 and Wage Order -0 (the SBAC CALIFORNIA LABOR SUB-CLASS ) pursuant to Fed. R. Civ. Proc. (b)().. PLAINTIFFS further bring the Second, Third, Fourth, and Fifth causes of action on behalf of a subclass which consists of all members of the ANALYST CALIFORNIA CLASS who were employed by DEFENDANTS during the period July, 0 and ending on the August 0, 0 (ANALYST CALIFORNIA LABOR SUB-CLASS PERIOD), with documented overtime hours who were classified by DEFENDANTS as exempt, and who performed work in excess of eight () hours in one day and/or forty (0) hours in one week and/or hours on the seventh (th) consecutive day of a workweek and did not receive overtime compensation as required by Labor Code Section 0 and Wage Order -0 (the ANALYST CALIFORNIA LABOR SUB- CLASS ) pursuant to Fed. R. Civ. Proc. (b)(). 0. Both the SBAC ANALYST CALIFORNIA LABOR SUB-CLASS and the ANALYST CALIFORNIA LABOR SUB-CLASS will hereinafter be referred to as the CALIFORNIA LABOR SUB-CLASSES unless otherwise indicated. Both the SBAC CALIFORNIA LABOR SUB-CLASS PERIOD and the ANALYST CALIFORNIA LABOR SUB- CLASS PERIOD will hereinafter be referred to as the CALIFORNIA LABOR SUB-CLASS PERIODS unless otherwise indicated.. DEFENDANTS, as a matter of corporate policy, practice and procedure, and in violation of the applicable California Labor Code ( Labor Code ), and Industrial Welfare Commission ( IWC ) Wage Order Requirements intentionally, knowingly, and wilfully, on the basis of job title alone and without regard to the actual overall requirements of the job, systematically classified PLAINTIFFS and the other members of the CALIFORNIA CLASSES and the CALIFORNIA LABOR SUB-CLASSES as exempt from overtime wages and other labor laws in order to avoid the payment of overtime wages by misclassifying their positions as exempt from overtime wages and other labor laws. To the extent equitable tolling operates to toll claims by 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 the CALIFORNIA CLASSES and CALIFORNIA LABOR SUB-CLASSES against DEFENDANTS, the CALIFORNIA LABOR SUB-CLASS PERIODS should be adjusted accordingly.. DEFENDANTS have intentionally and deliberately created a number of job levels and job titles such as Business Application Coordinators, Senior Business Application Coordinators, and Analysts. These titles were distributed in order to create the superficial appearance of a number of unique jobs, when in fact, these jobs are substantially similar and can be easily grouped together for the purpose of determining whether they are exempt from overtime wages. One of DEFENDANTS s purposes in creating and maintaining this multi-level job classification scheme is to create a roadblock to discovery and class certification for all employees similarly misclassified as exempt. DEFENDANTS has uniformly misclassified these CALIFORNIA CLASSES and CALIFORNIA LABOR SUB-CLASSES members as exempt and denied them overtime wages and other benefits to which non-exempt employees are entitled in order to unfairly cheat the competition and unlawfully profit.. DEFENDANTS maintain records from which the Court can ascertain and identify by job title each of DEFENDANTS s employees who as members of either the CALIFORNIA CLASSES and/or the CALIFORNIA LABOR SUB-CLASSES have been systematically, intentionally and uniformly misclassified as exempt as a matter of DEFENDANTS corporate policy, practices and procedures. PLAINTIFFS will seek leave to amend the complaint to include these additional job titles when they have been identified.. The CALIFORNIA LABOR SUB-CLASSES are so numerous that joinder of all members is impracticable.. Common questions of law and fact exist as to members of the CALIFORNIA LABOR SUB-CLASSES, including, but not limited, to the following: (a) Whether DEFENDANTS unlawfully failed to pay overtime compensation to members of the CALIFORNIA LABOR SUB-CLASSES in violation of the California Labor Code and applicable regulations and California Wage Order -0; 0-CV- LAB JMA
Case :0-cv-0-LAB -JMA Document Filed //0 Page of 0 (b) (c) (d) (e) (f) (g) (h) Whether the members of the CALIFORNIA LABOR SUB-CLASSES are non-exempt employees entitled to overtime compensation for overtime hours worked under the overtime pay requirements of California Law; Whether DEFENDANTS policy and practice of classifying the members of the CALIFORNIA LABOR SUB-CLASSES as exempt from overtime compensation and failing to pay the members of the CALIFORNIA LABOR SUB-CLASSES overtime violate applicable provisions of California law; Whether DEFENDANTS unlawfully failed to keep and furnish California members with accurate records of hours worked; Whether DEFENDANTS policy and practice of failing to pay members of the CALIFORNIA LABOR SUB-CLASSES all wages when due within the time required by law after their employment ended violates California law; Whether DEFENDANTS unlawfully failed to provide all required meal and rest periods to the members of the CALIFORNIA LABOR SUB-CLASSES ; Whether DEFENDANTS unlawfully failed to tender full payment and/or indemnification for all business expenses incurred as a consequence of performing their work for DEFENDANTS; and, The proper measure of damages and penalties owed to the members of the CALIFORNIA LABOR SUB-CLASSES.. DEFENDANT, as a matter of corporate policy, practice and procedure, classified all SBACs and Analysts as exempt from overtime wages and other labor laws. All SBACs and Analysts, including the PLAINTIFFS, performed the same primary functions and were paid by DEFENDANTS according to uniform and systematic company procedures, which, as alleged herein above, failed to correctly pay overtime compensation. This business practice was uniformly applied to each and every member of the CALIFORNIA LABOR SUB-CLASSES, and therefore, the propriety of this conduct can be adjudicated on a class-wide basis.. DEFENDANTS violated the rights of the CALIFORNIA LABOR SUB-CLASSES under California law by: 0-CV- LAB JMA