Free Amended Complaint - District Court of California - California

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BLUMENTHAL & NORDREHAUG Norman B. Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 2255 Calle Clara La Jolla, CA 92037 Telephone: (858)551-1223 Facsimile: (858) 551-1232 UNITED EMPLOYEES LAW GROUP Walter Haines (State Bar #71705) 65 Pine Ave, #312 Long Beach, CA 90802 Telephone: (562) 256-1047 Facsimile: (562) 256-1006 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ANGELA PITTARD, on behalf of herself, and on behalf of all persons similarly situated, Plaintiffs, vs. ORANGE COUNTY HOMECARE, a California limited liability corporation, doing business as SALUS HOMECARE and SALUS HEALTHCARE; and, Does 1 to 10, CASE No. 08 CV 1398 J (WMc) FIRST AMENDED CLASS AND COLLECTIVE ACTION COMPLAINT FOR: 1. UNFAIR COMPETITION IN VIOLATION OF CAL. BUS. & PROF. CODE § 17200, et seq. 2. FAILURE TO PAY OVERTIME WAGES IN VIOLATION OF CAL. LAB. CODE §§ 510, et seq.; 3. FAILURE TO PROVIDE WAGES WHEN DUE IN VIOLATION OF CAL. LAB. CODE § 203; 4. FAILURE TO PROVIDE ACCURATE ITEMIZED STATEMENTS IN VIOLATION OF CAL. LAB. CODE § 226; 5. FAILURE TO PROVIDE MEAL AND REST PERIODS IN VIOLATION OF CAL. LAB. CODE § 226.7 AND 512; 6. FAILURE TO PAY COMPENSATION IN VIOLATION OF 29 U.S.C. § 201, et seq.; DEMAND FOR A JURY TRIAL

Defendants.

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Plaintiff Angela Pittard alleges on information and belief, except for her own acts and knowledge, the following: THE PARTIES 1. Defendant ORANGE COUNTY HOMECARE, also doing business as SALUS

HOMECARE and SALUS HEALTHCARE (hereinafter referred to as "SALUS" or "DEFENDANTS"), is a California limited liability corporation with offices in Los Angeles, Orange County, and San Diego. 2. SALUS conducted and continues to conduct substantial and regular business

throughout California. DEFENDANT is an enterprise that affects commerce by engaging in the enterprise of employment of persons in domestic service in households and by regularly and recurrently receiving or transmitting interstate communications. 3. SALUS is a non-medical service company that provides general housekeeping

assistance to senior citizens to facilitate the activities of daily living. The services provided by SALUS encompass the comprehensive assistance to the client, effectually managing all aspects of the client's daily living needs. These services are provided by the "Caregivers" who are employed by SALUS. SALUS is able to deliver a Caregiver to the home of a client and have a case manager assigned to the client within 24 hours. 4. The typical services that are provided by the Caregivers to the clients are cooking and

serving meals, performance of errands, home maintenance, housekeeping, mail organization, transportation, making appointments for the client, pet care, home deliveries, laundry, bathing, showering, grooming, dressing, toileting, exercising, physical therapy, ambulation, and medication reminders. As a result, the Caregivers essentially take care of every domestic need of the client. 5. Plaintiff Angela Pittard ("PLAINTIFF") was employed by SALUS between July of

2006 and March of 2008 in the state of California in the position of "Caregiver." 6. On a weekly basis, substantially more than twenty percent (20%) of the time of

PLAINTIFF was spent performing general housekeeping duties as a domestic servant, separate from assisting the client as a personal attendant and without the assistance of the client. As shown by Exhibit 1, attached hereto and incorporated by this reference herein, the PLAINTIFF was required 2
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to, without the participation of the client: (a) cook breakfast, lunch and dinner; (b) run errands, which includes grocery shopping and picking up prescriptions; (c) perform homemaking, which includes laundry/washing/drying/folding; (d) clean the restroom, which includes the toilet, sink, bathtub/shower, emptying of the trash, and sweeping/mopping the floor; (e) clean the kitchen, which includes cleaning the sink, washing the dishes, wiping the counter, wiping the stove top, wiping the refrigerator, cleaning the inside of the microwave, loading the dishwasher, emptying the dishwasher, sweep/mopping the floor, and emptying the trash; (f) clean the living area, which includes vacuuming, dusting, changing bed linens, and wiping mirrors; and (g) pet care. 7. PLAINTIFF performed this grueling manual labor without the assistance of the

client, without taking meal or rest breaks, and pursuant to a schedule that mandated this manual labor to be performed twelve (12) hours per day, six (6) days per week, at the rate of $10-$12 per hour. Although PLAINTIFF does not know exactly why her rate of pay varies between $10-$12 per hour, this rate does not fluctuate based on the overtime work she performed. Although she worked more than eight (8) in one day, and more than forty (40) in one week, SALUS did not pay PLAINTIFF premium pay for these overtime hours worked because SALUS had initially classified her as exempt based on job title alone. PLAINTIFF'S performance of general housekeeping services was on a weekly basis comprised of more than twenty percent (20%) of her time worked, thus rendering her ineligible for exemption from overtime under the California Wage Order or the Fair Labor Standards Act. In order to avoid determining the actual amount of time PLAINTIFF performed general housekeeping services, SALUS did not allow PLAINTIFF to indicate the actual amount of time she spent performing each task listed on Exhibit #1. Instead, SALUS ordered that only a mark be placed in the box for each service performed. As a result, SALUS did not actually analyze the services performed by PLAINTIFF to ensure that the classification of PLAINTIFF as exempt was, in fact, properly based on the amount of general housekeeping services that she actually performed. 8. The Defendants named in this Complaint, and as Does 1 through 10, inclusive,

are, and at all times mentioned herein were, the agents, servants, and/or employees of each of the other Defendant and each Defendant was acting within the course of scope of his, her or its authority 3
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as the agent, servant and/or employee of each of the other Defendant. Consequently, all the Defendants named herein (the "DEFENDANTS") are jointly and severally liable to the PLAINTIFF and the other members of the CALIFORNIA CLASS, for the losses sustained as a proximate result of DEFENDANTS' conduct as herein alleged.

THE CONDUCT 9. PLAINTIFF and the other Caregivers were and are employed as working members

on the production side of DEFENDANTS' business. The primary job duties of PLAINTIFF and other Caregivers were and are to perform, by manual labor, general housekeeping duties without the assistance of the client. As a result, PLAINTIFF and the other Caregivers were not and currently are not primarily involved in providing companionship services. Instead, PLAINTIFF and the other Caregivers were and currently are primarily involved in providing day to day, routine, and general, domestic household work. This work was and still is executed primarily by the performance of manual labor within a defined skill set, involving meal preparation, bed making, washing of clothes, and other general housekeeping services as outlined in Exhibit #1. Physical demands of the position include standing, sitting, walking, bending, lifting, scrubbing, gardening, moving furniture, and intensive cleaning. 10. As a Caregiver on the production side of the DEFENDANTS' business, PLAINTIFF

and the other members of the CALIFORNIA CLASS worked a substantial amount of overtime hours working twelve (12) hour shifts, six (6) days per week. Nevertheless, PLAINTIFF and the other members of the CALIFORNIA CLASS were never fully paid the overtime compensation to which they were entitled because DEFENDANTS denied PLAINTIFF and the other members of the CALIFORNIA CLASS overtime wages by uniformly classifying all of them as exempt based solely on job title alone. This classification was made based on job title alone, rather than on the services performed by PLAINTIFF and the other members of the CALIFORNIA CLASS, because SALUS had in place and still has in place a policy and procedure that fails to determine whether the general housekeeping services that are performed by the Caregivers exceed 20% of the overall work performed. As shown by Exhibit #1, attached hereto, DEFENDANTS instructed PLAINTIFF and 4
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the other members of the CALIFORNIA CLASS not to record the amount of time spent performing all services during the day and only to designate the work performed with a mark. SALUS, therefore, through a systematic procedure of willful blindness, failed and still fails to properly determine the actual ratio of time spent performing companionship services, as compared to general housekeeping services. As a result, the classification of PLAINTIFF and each and every member of the CALIFORNIA CLASS as exempt is based on job title alone and not on the actual services that were provided by the PLAINTIFF and the members of the CALIFORNIA CLASS after being hired and placed into a particular household. Thereafter, no reevaluation or reclassification analysis regarding the propriety of the exempt status was performed by SALUS for PLAINTIFF or for any other member of the CALIFORNIA CLASS because the company's business model was and still is to classify all Caregivers as exempt based on job title alone and not on actual work performed. As a result, PLAINTIFF and the members of the CALIFORNIA CLASS were not fully compensated for hours of overtime work as required by law in excess of eight (8) hours a day, forty (40) hours a week, or for hours worked on the seventh (7th) consecutive day of a workweek. 11. Plaintiff Angela Pittard ("PLAINTIFF") brings this class action on behalf of

herself and a California class consisting of all individuals who are or previously were employed by Defendant SALUS (hereinafter referred to as "DEFENDANTS") in a staff position as a Caregiver, or in any other similarly situated position (the "Caregivers") (the "CALIFORNIA CLASS" or "CLASS") during the Class Period. The class period applicable to this CALIFORNIA CLASS is defined as the period beginning four years prior to the filing of this Complaint and ending on the date of as determined by the Court (the "CLASS PERIOD"). As a matter of company policy and practice, DEFENDANTS have unlawfully, unfairly and deceptively classified every Caregiver 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 Caregivers. 12. Individuals in these Caregiver positions are and were employees who are entitled to

regular, and overtime compensation and prompt payment of amounts that the employer owes an employee when the employee quits or is terminated, and other compensation and working conditions that are prescribed by law. Although DEFENDANTS require their employees employed 5
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as Caregivers, and other similarly situated positions, to work more than forty (40) hours a week, eight (8) hours in a workday, and /or on the seventh (7th) day of a workweek, as a matter of company policy and practice, DEFENDANTS consistently and uniformly failed and still fail to implement a practice and procedure that accurately determines whether the correct overtime compensation is paid to these Caregivers as the law requires. The PLAINTIFF and known members of the CALIFORNIA CLASS currently work or previously worked in California at times during the CLASS PERIOD for DEFENDANTS and DEFENDANTS' practices and procedures are and were common throughout California at all times during the CLASS PERIOD. 13. In this action, PLAINTIFF, on behalf of herself and the CALIFORNIA CLASS,

seeks to recover all the compensation that DEFENDANTS were required by law to provide, but failed to provide, to PLAINTIFF and all other CALIFORNIA CLASS members. PLAINTIFF also seeks penalties and all other relief available to her and other similarly situated employees under California law. PLAINTIFF also seeks declaratory relief finding that the employment practices and policies of the DEFENDANTS violate California law and injunctive relief to enjoin the DEFENDANT from continuing to engage in such employment practices. 14. PLAINTIFF and all members of the CALIFORNIA CLASS are and were uniformly

classified and treated by DEFENDANT as exempt at the time of hire and thereafter, DEFENDANTS failed to take the proper steps to determine whether PLAINTIFF, and the other members of the similarly-situated CALIFORNIA CLASS, were properly classified under Industrial Welfare Commission Wage Order 15-2001 and Cal. Lab. Code §§ 510 et seq. and Section 13(a)(5) of the Fair Labor Standards Act (the "FLSA") as exempt from applicable federal and state labor laws. Under both the FLSA and California Labor Law, these employees may only be classified as exempt if the combined general housekeeping duties performed by the Caregiver do not exceed 20% of the weekly working time spent by the Caregiver. Since DEFENDANTS affirmatively and wilfully failed to determine whether exempting PLAINTIFF 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. As a result of this policy and practice, DEFENDANTS failed and still fail to pay overtime in accordance with applicable law. 6
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15.

By reason of this uniform conduct applicable to PLAINTIFF and all CALIFORNIA

CLASS members, DEFENDANTS committed acts of unfair competition in violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 (the "UCL"), by engaging in a company-wide policy and procedure which failed to correctly determine whether the PLAINTIFF and the CALIFORNIA CLASS of similarly situated Caregivers were properly classified as exempt. The proper classification of these employees is the DEFENDANTS' burden under both the FLSA and the California Labor Code. As a result of DEFENDANTS' willful 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 CLASS and violated the FLSA and the California Labor Code and regulations promulgated thereunder as herein alleged. 16. PLAINTIFF 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, PLAINTIFF is entitled to an injunction and other equitable relief, on behalf of herself and the CLASS, to prevent and enjoin such practices. PLAINTIFF therefore requests 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 CLASS 17. Plaintiff Angela Pittard ("PLAINTIFF") brings this class action on behalf of

herself and all individuals who are or previously were employed by DEFENDANT as Caregivers and other similarly situated positions in California during the period four years prior to the filing of this Complaint and ending on the date as determined by the Court ("CALIFORNIA CLASS PERIOD" or "CLASS PERIOD"), who were classified by Defendant as exempt, and who have been or may be subject to the challenged exemption classification policies and practices used by 7
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Defendant (the "CALIFORNIA CLASS"). To the extent equitable tolling operates to toll claims by the CALIFORNIA CLASS against DEFENDANTS, the CLASS PERIOD should be adjusted accordingly. 18. 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 DEFENDANT unfairly, unlawfully, and deceptively failed to institute a practice to ensure that the employees employed in a position as a Caregiver properly were classified as exempt from the requirements of California Labor Code §§ 510, et seq. 19. DEFENDANTS have the burden of proof that each and every employee is properly

classified as exempt from the requirements of the Cal. Lab. Code §§ 510, et seq. The DEFENDANTS, however, as a matter of uniform and systematic policy and procedure failed to have in place during the CALIFORNIA CLASS PERIOD and still fail to have in place a policy or practice to make any individual determination of exemption for any California Class Members so as to satisfy their burden. Rather, the DEFENDANTS' uniform policy and practice in place at all times during the CALIFORNIA CLASS PERIOD and currently in place is to systematically classify each and every California Class Member as exempt from the requirements of the California Labor Code §§ 510, et seq., based on job title alone. This common business practice applicable to each and every California Class Member can be adjudicated on a classwide basis as unlawful, unfair, and/or deceptive under the UCL as causation, damages, and reliance are not elements of this claim. 20. At no time before, during or after the PLAINTIFF'S employment with

SALUS was any Caregiver reclassified as non-exempt from the applicable requirements of California Labor Code §§ 510, et seq. after each California Class Member was initially, uniformly, and systematically classified as exempt upon being hired. 21. Any individual declarations of any California Class Members offered at this time

purporting to indicate that one or more Caregivers 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 8
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determine whether the California Class Members were being properly classified as exempt pursuant to Cal. Lab. Code §§ 510, 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 PLAINTIFF and the California Class Members 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 PLAINTIFF and the California Class Members according to proof. 22. The CALIFORNIA CLASS, numbering more than 100 members, is so numerous

that joinder of all Caregivers is impracticable. 23. DEFENDANTS uniformly violated the rights of the CALIFORNIA CLASS

under California law by: (a) Violating the California Unfair Competition Laws, Cal. Bus. & Prof. Code § 17200, et seq., by unlawfully, unfairly and/or deceptively having in place company policies, practices and procedures that uniformly classified PLAINTIFF and the members of the CALIFORNIA CLASS as exempt based on job title alone; (b) Committing an act of unfair competition in violation of the California Unfair Competition Laws, Cal. Bus. & Prof. Code § 17200 et seq., by unlawfully, unfairly, and/or deceptively having in place a company policy, practice and procedure that failed to accurately catalogue, inventory, list or otherwise determine whether the general housekeeping services performed by PLAINTIFF and the members of the CALIFORNIA CLASS exceeded 20% of the overall weekly work performed; (c) Committing an act of unfair competition in violation of the California Unfair Competition Laws, Cal. Bus. & Prof. Code §§ 17200 et seq., by having in place a company policy, practice and procedure that failed to reclassify as non-exempt members of the CALIFORNIA CLASS whose general housekeeping services exceeded 20% of the overall weekly work performed; 9
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(d)

Violating Cal. Lab. Code §§510, et seq. by failing to pay the correct overtime pay to PLAINTIFF and the members of the CALIFORNIA CLASS who were improperly classified as exempt;

(e)

Violating Cal. Lab. Code §§ 226.7 and 512, by failing to provide PLAINTIFF and the members of the CALIFORNIA CLASS who were improperly classified as exempt with meal and rest periods;

(f)

Violating Cal. Lab. Code § 226 by failing to provide PLAINTIFF and the members of the CALIFORNIA CLASS who were improperly classified as exempt 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,

(f)

Violating Cal. Lab. Code § 203 by failing to provide restitution of wages owed to PLAINTIFF and the members of the CALIFORNIA CLASS 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. 23(b)(2) and/or (3) in that: (a) The persons who comprise the CALIFORNIA CLASS exceed 100 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 parties and the Court; (b) Nearly all factual, legal, statutory, declaratory and injunctive relief issues that are raised in this Complaint are common to the CALIFORNIA CLASS will apply uniformly to every member of the CALIFORNIA CLASS; (c) The claims of the representative PLAINTIFF are typical of the claims of each member of the CALIFORNIA CLASS. PLAINTIFF, like all other members of the CALIFORNIA CLASS, was initially classified as exempt upon hiring 10
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based on job title alone and labored under DEFENDANTS' systematic procedure that failed to analyze the job functions actually performed in order to determine whether the classification was properly made. PLAINTIFF sustained economic injury as a result of DEFENDANTS' employment practices. PLAINTIFF and the members of the CALIFORNIA CLASS were and are similarly or identically harmed by the same unlawful, deceptive, unfair and pervasive pattern of misconduct engaged in by the DEFENDANT by (1) compelling all Caregivers to fill out a timesheet that is not designed to record the percentages of time spent performing general housekeeping work, (2) deceptively advising all Caregivers that they were exempt from overtime wages, and, (3) unfairly failing to pay overtime to employees who were improperly classified as exempt. The representative PLAINTIFF will fairly and adequately represent and protect the interest of the CALIFORNIA CLASS, and has retained counsel who are competent and experienced in Class Action litigation. There are no material conflicts between the claims of the representative PLAINTIFF and the members of the CALIFORNIA CLASS that would make class certification inappropriate. Counsel for the CALIFORNIA CLASS will vigorously assert the claims of all Class Members. In addition to meeting the statutory prerequisites to a Class Action, this action

is properly maintained as a Class Action pursuant to Fed. R. Civ. Proc. 23(b)(2) and/or (3), in that: (a) 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 CLASS will create the risk of: 1) Inconsistent or varying adjudications with respect to individual members of the CALIFORNIA CLASS which would establish incompatible standards of conduct for the parties opposing the 11
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CALIFORNIA CLASS; and/or, Adjudication with respect to individual members of the CALIFORNIA CLASS 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 CLASS have acted or refused to act on grounds generally applicable to the CALIFORNIA CLASS, making appropriate class-wide relief with respect to the CALIFORNIA CLASS as a whole in that the DEFENDANT uniformly classified and treated the Caregivers as exempt and, thereafter, uniformly failed to take proper steps to determine whether the Caregivers were properly classified as exempt, and thereby denied these employees overtime wages as required by law; 1) With respect to the First Cause of Action, the final relief on behalf of the CALIFORNIA CLASS sought does not relate exclusively to restitution because through this claim Plaintiff seeks declaratory relief holding that the DEFENDANTS' policy and practices constitute unfair competition, along with declaratory relief, injunctive relief, and incidental 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 CLASS, 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: 1) The interests of the members of the CALIFORNIA CLASS in individually controlling the prosecution or defense of separate actions 12
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in that the substantial expense of individual actions will be avoided to recover the relatively small amount of economic losses sustained by the individual CALIFORNIA CLASS members 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 CLASS, which would establish incompatible standards of conduct for the DEFENDANTS; and/or, B. Adjudications with respect to individual members of the CALIFORNIA CLASS 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 a substantial number of individual class members will avoid asserting 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. 23(b)(3). This Court should permit this action to be maintained as a Class Action 13
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pursuant to Fed. R. Civ. Proc. 23(b)(2) and/or (3) because: (a) The questions of law and fact common to the CALIFORNIA CLASS predominate over any question affecting only individual members because the DEFENDANTS' employment practices were uniform and systematically applied with respect to the CALIFORNIA CLASS; (b) 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 CLASS 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; (c) The members of the CALIFORNIA CLASS exceed 100 people and are therefore so numerous that it is impractical to bring all members of the CALIFORNIA CLASS before the Court; (d) PLAINTIFF, and the other CALIFORNIA CLASS members, will not be able to obtain effective and economic legal redress unless the action is maintained as a Class Action; (e) There is a community of interest in obtaining appropriate legal and equitable relief for the acts of unfair competition, statutory violations and other improprieties, and in obtaining adequate compensation for the damages and injuries which DEFENDANT's actions have inflicted upon the CALIFORNIA CLASS; (f) There is a community of interest in ensuring that the combined assets of DEFENDANT are sufficient to adequately compensate the members of the CALIFORNIA CLASS for the injuries sustained; (g) DEFENDANT has acted or refused to act on grounds generally applicable to the CALIFORNIA CLASS, thereby making final class-wide relief appropriate with respect to the CALIFORNIA CLASS as a whole; (h) The members of the CALIFORNIA CLASS are readily ascertainable from 14
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the business records of DEFENDANT. The CALIFORNIA CLASS consists of all DEFENDANTS' Caregivers employed in California during the CLASS PERIOD; 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 CLASS. 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. PLAINTIFF 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-CLASS PLAINTIFF further brings the Second, Third, Fourth, and Fifth causes of action on

behalf of a subclass which consists of all members of the CALIFORNIA CLASS who were employed by Defendant SALUS during the period three (3) years prior to the filing of the complaint and ending on the date as determined by the Court (CALIFORNIA LABOR SUB-CLASS PERIOD), with overtime hours who were classified by Defendant as exempt, and who performed work in excess of eight (8) hours in one day and/or forty (40) hours in one week and/or hours on the seventh (7th) consecutive day of a workweek and did not receive overtime compensation as required by Labor Code Section 510 and Wage Order 4-2001 (the "CALIFORNIA LABOR SUBCLASS") pursuant to Fed. R. Civ. Proc. 23(b)(3). 29. SALUS, 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 PLAINTIFF and other members of the CALIFORNIA CLASS and CALIFORNIA LABOR SUBCLASS as 15
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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 the CALIFORNIA LABOR SUBCLASS against SALUS, the CALIFORNIA LABOR SUB-CLASS should be adjusted accordingly. 30. To the extent that SALUS has created a number of job levels and/or job titles for

Caregivers to create the superficial appearance of a number of unique jobs, when in fact, these jobs are substantially similar, these job titles can be easily grouped together for the purpose of determining whether they are exempt from overtime wages. SALUS has uniformly misclassified these CALIFORNIA CLASS and CALIFORNIA LABOR SUBCLASS 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. 31. SALUS maintains records from which the Court can ascertain and identify by job

title each of SALUS' employees who as CALIFORNIA CLASS and CALIFORNIA LABOR SUBCLASS members have been systematically, intentionally and uniformly misclassified as exempt as a matter of DEFENDANTS' corporate policy, practices and procedures. PLAINTIFF will seek leave to amend the complaint to include these additional job titles when they have been identified. 32. The CALIFORNIA LABOR SUB-CLASS is so numerous that joinder

of all members, which number over 100 Caregivers, is impracticable. 33. Common questions of law and fact exist as to members of the CALIFORNIA

LABOR SUB-CLASS, including, but not limited, to the following: (a) Whether DEFENDANTS unlawfully failed to pay overtime compensation to members of the CALIFORNIA LABOR SUB-CLASS in violation of the California Labor Code and applicable regulations, Cal. Lab. Code §§ 201, 202, 203, 226, 510 and California Wage Order 15-2001; (b) Whether the members of the CALIFORNIA LABOR SUB-CLASS are nonexempt employees entitled to overtime compensation for overtime hours worked under the overtime pay requirements of California Law; 16
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(c)

Whether DEFENDANTS' policy and practice of classifying the SUBCLASS members as exempt from overtime compensation and failing to pay the CALIFORNIA LABOR SUB-CLASS members overtime violate applicable provisions of California law;

(d)

Whether DEFENDANTS unlawfully failed to keep and furnish California members with accurate records of hours worked;

(e)

Whether DEFENDANTS' policy and practice of failing to pay members of the CALIFORNIA LABOR SUB-CLASS all wages when due within the time required by law after their employment ended violates California law;

(f)

Whether DEFENDANTS unlawfully failed to provide all required meal and rest periods to the members of the CALIFORNIA LABOR SUB-CLASS; and,

(g)

Whether DEFENDANTS unlawfully failed to tender full payment and/or restitution of wages owed or in the manner required by California law to the members of the CALIFORNIA LABOR SUBCLASS who have terminated their employment; and,

(h)

The proper measure of damages and penalties owed to the members of the CALIFORNIA LABOR SUB-CLASS.

DEFENDANT, as a matter of corporate policy, practice and procedure,

classified all Caregivers as non-exempt from overtime wages and other labor laws, and therefore are legally required to pay overtime as required by law and comply with all other labor laws and regulations with respect to these employees. All Caregivers, including the PLAINTIFF, performed the same primary functions and were paid by DEFENDANT 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 SUBCLASS, and therefore, the propriety of this conduct can be adjudicated on a classwide basis. 35. DEFENDANT violated the rights of the CALIFORNIA LABOR SUBCLASS 17
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under California law by: (a) Violating Cal. Lab. Code §§ 510, et seq. by misclassifying and thereby failing to pay PLAINTIFF and the members of the CALIFORNIA LABOR SUBCLASS the correct overtime pay for a work day longer than eight (8) hours and/or a workweek longer than forty (40) hours, and also for all hours worked on the seventh (7th) day of a workweek for which DEFENDANT is liable pursuant to Cal. Lab. Code § 1194; and (b) Violating Cal. Lab. Code § 203, which provides that when an employee is discharged or quits from employment, the employer must pay the employee all wages due without abatement, by failing to tender full payment and/or restitution of wages owed or in the manner required by California law to the members of the CALIFORNIA LABOR SUBCLASS who have terminated their employment; (c) Violating Cal. Lab. Code §§ 226.7 and 512, by failing to provide PLAINTIFF and the members of the CALIFORNIA LABOR CLASS who were improperly classified as exempt with meal and rest periods; (d) Violating Cal. Lab. Code § 226 by failing to provide PLAINTIFF and the members of the CALIFORNIA LABOR CLASS who were improperly classified as exempt 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, (e) Violating Cal. Lab. Code § 203 by failing to provide restitution of wages owed to members of the CALIFORNIA LABOR SUBCLASS who were improperly classified as exempt and who have terminated their employment. 36. This Class Action meets the statutory prerequisites for the maintenance of a

Class Action as set forth in Fed. R. Civ. Proc. 23(b)(3), in that: (a) The persons who comprise the CALIFORNIA LABOR SUBCLASS exceed 18
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100 individuals 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 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 LABOR SUBCLASS and will apply uniformly to every member of the CALIFORNIA LABOR SUBCLASS; The claims of the representative PLAINTIFF are typical of the claims of each member of the CALIFORNIA LABOR SUBCLASS. PLAINTIFF, like all other members of the CALIFORNIA LABOR SUBCLASS, performed general housekeeping duties greater than 20% of her weekly activities, and was improperly classified as exempt and denied overtime pay as a result of DEFENDANT's systematic classification practices. PLAINTIFF and all other members of the CALIFORNIA LABOR SUBCLASS sustained economic injuries arising from DEFENDANT's violations of the laws of California; and, The representative PLAINTIFF will fairly and adequately represent and protect the interest of the CALIFORNIA LABOR SUBCLASS, and has retained counsel who are competent and experienced in Class Action litigation. There are no material conflicts between the claims of the representative PLAINTIFF and the members of the CALIFORNIA LABOR SUBCLASS that would make class certification inappropriate. Counsel for the CALIFORNIA LABOR SUBCLASS will vigorously assert the claims of all Class Members. In addition to meeting the statutory prerequisites to a Class Action, this action

is properly maintained as a Class Action pursuant to Fed. R. Civ. Proc. 23(b)(3), in that: (a) Without class certification and determination of declaratory, injunctive, statutory and other legal questions within the class format, prosecution of 19
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (c) (b)

separate actions by individual members of the CALIFORNIA LABOR SUBCLASS will create the risk of: 1) Inconsistent or varying adjudications with respect to individual members of the CALIFORNIA LABOR SUBCLASS which would establish incompatible standards of conduct for the parties opposing the CALIFORNIA LABOR SUBCLASS; or, 2) Adjudication with respect to individual members of the CALIFORNIA LABOR SUBCLASS 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 LABOR SUBCLASS have acted or refused to act on grounds generally applicable to the CALIFORNIA SUBCLASS, making appropriate class-wide relief with respect to the SUBCLASS as a whole in that the DEFENDANTS uniformly classified and treated the Caregivers as exempt and, thereafter, uniformly failed to take proper steps to determine whether the Caregivers were properly classified as exempt, and thereby denied these employees overtime wages as required by law; Common questions of law and fact predominate as to the members of the CALIFORNIA LABOR SUBCLASS, 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: 1) The interests of the members of the CALIFORNIA LABOR SUBCLASS in individually controlling the prosecution or defense of separate actions in that the substantial expense of individual actions 20
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will be avoided to recover the relatively small amount of economic losses sustained by the individual CALIFORNIA LABOR SUBCLASS members 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 LABOR SUBCLASS, which would establish incompatible standards of conduct for the DEFENDANTS; and/or, B. Adjudications with respect to individual members of the CALIFORNIA LABOR SUBCLASS 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 a substantial number of individual class members will avoid asserting 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. 23(b)(3). This Court should permit this action to be maintained as a Class Action pursuant to 21
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Fed. R. Civ. Proc. 23(b)(3) because:

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(a)

The questions of law and fact common to the CALIFORNIA LABOR SUBCLASS predominate over any question affecting only individual members;

(b)

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 LABOR SUBCLASS 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;

(c)

The members of the CALIFORNIA LABOR SUBCLASS exceed 100 individuals and are therefore so numerous that it is impractical to bring all members of the CALIFORNIA LABOR SUBCLASS before the Court;

(d)

PLAINTIFF, and the other CALIFORNIA LABOR SUBCLASS members, will not be able to obtain effective and economic legal redress unless the action is maintained as a Class Action;

(e)

There is a community of interest in obtaining appropriate legal and equitable relief for the acts of unfair competition, statutory violations and other improprieties, and in obtaining adequate compensation for the damages and injuries which DEFENDANT's actions have inflicted upon the CALIFORNIA LABOR SUBCLASS;

(f)

There is a community of interest in ensuring that the combined assets of DEFENDANT are sufficient to adequately compensate the members of the CALIFORNIA LABOR SUBCLASS for the injuries sustained;

(g)

DEFENDANT has acted or refused to act on grounds generally applicable to the CALIFORNIA LABOR SUBCLASS, thereby making final class-wide relief appropriate with respect to the CALIFORNIA LABOR SUBCLASS as a whole;

(h)

The members of the CALIFORNIA LABOR SUBCLASS are readily 22
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ascertainable from the business records of DEFENDANTS. The CALIFORNIA LABOR SUBCLASS consists of those Caregivers with documented overtime who were subjected to the DEFENDANT's overtime miscalculation practices; 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 DEFENDANT as to the members of the CALIFORNIA LABOR SUBCLASS.

JURISDICTION AND VENUE This Court has original jurisdiction over PLAINTIFF'S state law class claims

pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332 in that although the majority of the CALIFORNIA CLASS is comprised of residents of California, at least one member of the CALIFORNIA CLASS is a citizen of a state other than California, there are more than 100 individuals in the CALIFORNIA CLASS and the amount in controversy in this complaint exceeds the sum or value of $ 5,000,000. 40. This Court has jurisdiction pursuant to 28 U.S.C.§1331 over PLAINTIFF'S

collective claims brought pursuant to the FLSA, 29 U.S.C. §201, et seq. 41. Venue is proper in this district pursuant to 28 U.S.C. § 1391 because

DEFENDANTS (i) are subject to personal jurisdiction in this District and therefore, reside in this District and/or (ii) committed the wrongful conduct against certain members of the CLASS in San Diego County, California. FIRST CAUSE OF ACTION For Unlawful Business Practices [Cal. Bus. And Prof. Code § 17200 et seq.] (By PLAINTIFF and the CALIFORNIA CLASS and against All Defendants) 42. PLAINTIFF, and the other members of the CALIFORNIA CLASS,

reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 41 23
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of this Complaint. This cause of action is brought on behalf of PLAINTIFF and the CALIFORNIA CLASS. 43. § 17021. 44. California Business & Professions Code § 17200 et seq. (the "UCL") DEFENDANTS are "persons" as that term is defined under Cal. Bus. and Prof. Code

defines unfair competition as any unlawful, unfair, or fraudulent business act or practice. Section 17203 authorizes injunctive, declaratory, and/or other equitable relief with respect to unfair competition as follows: Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition. California Business & Professions Code § 17203. 45. Through the conduct alleged herein, DEFENDANTS have engaged in an

unlawful, unfair, and/or deceptive business practice by violating California law, including but not limited to provisions of the Wage Orders, the Regulations implementing the Fair Labor Standards Act as enacted by the Secretary of Labor, the California Labor Code, the Code of Federal Regulations and the California Code of Regulations, the opinions of the Department of Labor Standards Enforcement, California Labor Code § 226, California Labor Code § 226.7, and California Labor Code § 203 by unfairly violating the public policy of the state of California to take all reasonable steps to properly classify employees as exempt or non-exempt and by deceptively telling the PLAINTIFF and the members of the CALIFORNIA CLASS that they were all exempt when DEFENDANT knew this statement to be untrue, for which this Court should issue declaratory, injunctive and other equitable relief, pursuant to Cal. Bus. & Prof. Code § 17203, as may be necessary to prevent and remedy the conduct held to constitute unfair competition. 24
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46.

By and through the unlawful, unfair, and/or deceptive business practices

described herein, DEFENDANTS have obtained valuable property, money, and services from the PLAINTIFF, and the other members of the CALIFORNIA CLASS, and has deprived them of valuable rights and benefits guaranteed by law, all to their detriment and to the benefit of DEFENDANTS so as to allow DEFENDANTS to unfairly compete. Declaratory and injunctive relief is necessary to prevent and remedy this unfair competition, and pecuniary compensation alone would not afford adequate and complete relief. 47. All the acts described herein as violations of, among other things, the

Cal. Lab. Code, California Code of Regulations, and the Industrial Welfare Commission Wage Orders, are unlawful, are in violation of public policy, are immoral, unethical, oppressive, and unscrupulous, and are likely to deceive employees, and thereby constitute deceptive, unfair and unlawful business practices in violation of Cal. Bus. and Prof. Code § 17200 et seq. 48. PLAINTIFF, and the other members of the CALIFORNIA CLASS, are further

entitled to, and do, seek a declaration that the above described business practices are deceptive unfair and/or unlawful and that an injunctive relief should be issued restraining DEFENDANT from engaging in any of these deceptive, unfair and unlawful business practices in the future. 49. PLAINTIFF, and the other members of the CALIFORNIA CLASS, have no

plain, speedy, and/or adequate remedy at law that will end the unfair and unlawful business practices of DEFENDANT. Further, the practices herein alleged presently continue to occur unabated. As a result of the unfair and unlawful business practices described above, PLAINTIFF, and the other members of the CALIFORNIA CLASS, have suffered and will continue to suffer irreparable harm unless DEFENDANT is restrained from continuing to engage in these unfair and unlawful business practices. In addition, DEFENDANT should be required to disgorge the unpaid moneys into a fluid fund and to make restitution to PLAINTIFF, and the other members of the CALIFORNIA CLASS.

25
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SECOND CAUSE OF ACTION For Failure To Pay Overtime Compensation [Cal. Lab. Code §§ 204, 210, 510, 1194, 1197 and 1198] (By PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS and Against all Defendants) 50. PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-CLASS,

reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 49 of this Complaint. 51. Cal. Lab. Code § 204 requires employers to pay employees for all hours worked as

follows: "all wages... ...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." Cal. Lab. Code § 510 further provides that employees in California shall not be employed more than eight (8) hours in any workday or forty (40) hours in a workweek or on a seventh (7th) consecutive workday of a workweek unless they receive additional compensation beyond their regular wages in amounts specified by law. 52. Cal. Lab. Code § 551 states that, "Every person employed in any occupation of labor

is entitled to one day's rest therefrom in seven." 53. Cal. Lab. Code § 552 states that, "No employer of labor shall cause his employees to

work more than six days in seven." 54. Cal. Lab. Code § 1194 states: Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit. Cal. Lab. Code § 1198 provides: The maximum hours of work and the standard conditions of labor fixed by the 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 26
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fixed by the order or under conditions of labor prohibited by the order is unlawful. DEFENDANTS have intentionally and uniformly designated certain employees as

"exempt" from receiving wages for all hours worked and from receiving certain other rights, by their job title and without regard to DEFENDANTS' realistic expectations, the requirements of the job, and the method of payment made by DEFENDANTS, including PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS who worked on the production side of the DEFENDANTS' business enterprise. This was done in an illegal attempt to avoid payment of regular and overtime wages and other benefits in violation of the Cal. Lab. Code and Industrial Welfare Commission requirements. 57. Pursuant to Wage Order 15-2001, only employees whose primary job duties meet the

test of exemption as a(n) "executive," "administrator," "professional," or as a "personal attendant" may be exempt from the provisions of the Wage Order that require the payment of minimum wage and overtime. The primary job duties of the PLAINTIFF and the members of the CALIFORNIA LABOR SUB-CLASS would not qualify these employees to meet any of these exemptions. 58. For an employee to be exempt as a bona fide "executive," all the following criteria

must be met and DEFENDANTS have the burden of proving that: (a) The employee's primary duty must be management of the enterprise, or of a customarily recognized department or subdivision; and, The employee must customarily and regularly direct the work of at least two (2) or more other employees; and, The employee must have the authority to hire and fire, or to command particularly serious attention to his or his recommendations on such actions affecting other employees; and, The employee must customarily and regularly exercise discretion and independent judgment; and, The employee must be primarily engaged in duties which meet the test of exemption.

No member of the CALIFORNIA LABOR SUB-CLASS was or is an executive because they all fail to meet the requirements of being an "executive" within the meaning of Order No. 15-2001. 27
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59.

For an employee to be exempt as a bona fide "administrator," all of the following

criteria must be met and DEFENDANTS have the burden of proving that: (a) The employee must perform office or non-manual work directly related to management policies or general business operation of the employer; and, (b) The employee must customarily and regularly exercise discretion and independent judgment; and, (c) The employee must regularly and directly assist a proprietor or an exempt administrator; or, (d) The employee must perform, under only general supervision, work requiring special training, experience, or knowledge, or, (e) The employee must execute special assignments and tasks under only general supervision; and, (f) The employee must be primarily engaged in duties which meet the test of exemption.

No member of the CALIFORNIA LABOR SUB-CLASS was or is an administrator because they all fail to meet the requirements for being an "administrator" under Order No. 15-2001. 60. The Industrial Welfare Commission, ICW Wage Order 15-2001 also sets forth the

requirements which must be complied with to place an employee in the "professional" exempt category. For an employee to be exempt as a bona fide professional, all the following criteria must be met: (a) The employee must primarily perform work that is intellectual or creative and that requires the exercise of discretion and independent judgment. (b) The employee must be licensed of certified by the state of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching or accounting. No member of the CALIFORNIA LABOR SUB-CLASS was or is a professional because they all fail to meet the requirements for being an "professional" under Order No. 15-2001. 61. PLAINTIFF, and other members of the CALIFORNIA LABOR SUB-CLASS, do not 28
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fit the definition of an exempt executive, administrative, or professional employee because: (a) These employees performed no managerial or administrative (exempt) duties; (b) Their work hours are spent performing non-exempt duties, including but not limited to performing manual labor; (c) They do not have the discretion or independent judgment, in that they must follow exacting and comprehensive company-wide policies and procedures which dictate every aspect of their work day; (d) They do not have the authority to hire and/or fire other personnel; and, (e) PLAINTIFF and the other members of the CALIFORNIA LABOR CLASS did not earn a monthly salary equivalent to two (2) times the state minimum wage for full-time employment. 62. PLAINTIFF, and other members of the CALIFORNIA LABOR SUB-CLASS, are

not personal attendants within the meaning of Wage Order 15 because a significant amount of work, i.e. more than 20% of their weekly time, is spent performing certain general housekeeping duties without the assistance of the client. As shown by Exhibit 1, the PLAINTIFF and members of the CALIFORNIA LABOR SUBCLASS are required to, without the participation of the client: (a) cook breakfast, lunch and dinner; (b) run errands, which includes grocery shopping and picking up prescriptions; (c) perform homemaking, which includes laundry/washing/drying/folding; (d) clean the restroom, which includes the toilet, sink, bathtub/shower, emptying of the trash, sweeping/mopping the floor; (e) clean the kitchen, which includes cleaning the sink, washing the dishes, wiping the counter, wiping the stove top, wiping the refrigerator, cleaning the inside of the microwave, loading the dishwasher, emptying the dishwasher, sweep/mopping the floor, emptying the trash; (f) clean the living area, which includes vacuuming, dusting, changing bed linens, wiping mirrors; and (g) pet care. 63. During the class period, the PLAINTIFF, and other members of the CALIFORNIA

LABOR SUBCLASS, worked more than eight (8) hours in a workday and/or forty (40) hours in a work week and/or on the seventh (7th) consecutive day of a workweek. 29
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64.

At all relevant times, DEFENDANTS failed to pay PLAINTIFF, and other members

of the CALIFORNIA LABOR SUBCLASS, overtime compensation for the hours they worked in excess of the maximum hours permissible by law as required by Cal. Lab. Code §§ 510 and 1198, et seq. and the Wage Order, even though PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-CLASS, worked regular hours at the private households of DEFENDANTS' clients, and did in fact work overtime hours for DEFENDANTS. 65. By virtue of DEFENDANTS' unlawful failure to pay additional compensation to the

PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-CLASS, for their overtime hours, the PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-CLASS, have suffered, and will continue to suffer, an economic injury in amounts which are presently unknown to them and which will be ascertained according to proof at trial. 66. DEFENDANTS knew or should have known that PLAINTIFF, and the other

members of the CALIFORNIA LABOR SUB-CLASS, were misclassified as exempt from wages and DEFENDANTS systematically elected, either through intentional malfeasance or gross nonfeasance, not to pay them for their labor as a matter of uniform corporate policy, practice and procedure. 67. Therefore, PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-

CLASS, request recovery of regular and overtime compensation according to proof, interest, attorney's fees and costs pursuant to Cal. Lab. Code § 1194(a), as well as the assessment of any statutory penalties against DEFENDANTS, in a sum as provided by the Cal. Lab. Code and/or other statutes. 68. In performing the acts and practices herein alleged in violation of labor laws and

refusing to provide the requisite overtime compensation, the DEFENDANTS acted and continue to act intentionally, oppressively, and maliciously toward the PLAINTIFF, and toward the other members of the CALIFORNIA LABOR SUB-CLASS, with a conscious and utter disregard of their legal rights, or the consequences to them, and with the despicable intent of depriving them of their property and legal rights and otherwise causing them injury in order to increase corporate profits at the expense of PLAINTIFF and the members of the CALIFORNIA LABOR SUB-CLASS. 30
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