Free Consent Judgment - District Court of California - California

Case 4:07-cv-04991-CW

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Filed 10/03/2007

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LAWRENCE BREWSTER, Regional Solicitor MARY K. ALEJANDRO, Deputy Regional Solicitor DAVID M. KAHN, Counsel for ESA Programs California State Bar Number 230957 United States Department of Labor Office of the Solicitor 90 Seventh St., Suite 3-700 San Francisco, California 94103 Telephone: (415) 625-7756 Facsimile: (415) 625-7772 email: [email protected] Attorneys for Plaintiff, Elaine L. Chao, Secretary United States Department of Labor UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ELAINE L. CHAO, Secretary of Labor, ) Case No.: United States Department of Labor, ) ) CONSENT JUDGMENT Plaintiff, ) v. ) ) GENTILIA, INC. d/b/a NORTH ) BEACH PIZZA PIER 39, a corporation, and ALTAMIR SOUZA, an individual, ) ) ) Defendants. ) ) ) ) 1. The plaintiff, ELAINE L. CHAO, Secretary of Labor, United States Department of Labor ("Secretary"), has filed a Complaint alleging violations of the minimum wage, overtime and recordkeeping provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201, et seq. ("FLSA"). //
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2. Defendants GENTILIA, INC. and ALTAMIR SOUZA (collectively "Defendants"), have appeared by counsel and acknowledge receipt of a copy of the Secretary's Complaint. 3. Defendants have waived issuance and service of process and their right to file an answer or otherwise defend this action. 4. The parties waive the entry of findings of fact and conclusions of law and agree to the entry of this Consent Judgment in settlement of this action, without contest. 5. Defendants agree to the entry of this Judgment in settlement of this action. 6. Defendants admit that the Court has jurisdiction over the parties and subject matter of this civil action and that venue lies in the Northern District of California. It is, therefore, upon motion of the attorneys for the Secretary and for cause shown: ORDERED, ADJUDGED, AND DECREED that Defendants, their officers, agents, servants, and employees and those persons in active concert or participation with them who receive actual notice of this order (by personal service or otherwise) be, and they hereby are, permanently enjoined and restrained from violating the provisions of Sections 15(a)(2) and 15(a)(5) of the Fair Labor Standards Act of 1938, as amended ("FLSA"), 29 U.S.C. §§ 215(a)(2) and 215(a)(5), in any of the following manners: 1. Defendants shall not, contrary to Section 6 of the Act, 29

U.S.C. §206, pay any employee who in any workweek is engaged in commerce or in the production of goods for commerce, within the meaning of the Act, wages at
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a rate less than $5.15 an hour (or at a rate less than such other applicable minimum rate as may hereafter be established by amendment to the Act). 2. Defendants shall not, contrary to Section 7 of the FLSA, 29

U.S.C. §207, employ any employee who in any workweek is engaged in commerce or in the production of goods for commerce, within the meaning of the FLSA, for any workweek longer than 40 hours unless such employee receives compensation for his or her employment in excess of 40 hours in such workweek at a rate not less than one and one-half times the regular rate at which he or she is employed. 3. Defendants shall not fail to make, keep, make available (to

authorized agents of the Secretary for inspection, transcription, and/or copying, upon their demand for such access), and preserve (for a period of three years) records of employees and of the wages, hours, and other conditions and practices of employment maintained, as prescribed by regulations issued, and from time to time amended, pursuant to Sections 11(c) and 15(a)(5) of FLSA, 29 U.S.C. §211(c) and §215(a)(5), and the implementing regulations found in Title 29, Code of Federal Regulations, Part 516. 4. Defendants shall not continue to withhold the payment of

$17,495.65 in unpaid minimum wage and overtime pay hereby found to be due under the FLSA to employees of Defendants listed on Exhibit A, attached hereto, for the periods listed thereon. The Secretary acknowledges that Defendants have made such payments of $17,495.65 directly to their employees and on April 8, 2007 provided evidence of such payment to the Department of Labor. 5. Further, judgment is entered against the Defendants in favor of

Secretary in the amount of $2,805.00 in civil money penalties agreed to be due pursuant to section 16(e)(2) of the Act. The Secretary acknowledges that
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Defendants made such payment of $2,805.00 on July 2, 2007. IT IS ORDERED that the filing, pursuit, and/or resolution of this proceeding with the entry of this Consent Judgment shall not act as or be asserted as a bar to any action under Section 16(b) of FLSA, 29 U.S.C. §216(b), as to any employee not named on the attached Exhibit A, nor as to any employee named on the attached Exhibit A for any period not specified herein for the backwage recovery provisions hereof; and it is further IT IS ORDERED that each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding, including but not limited to attorneys' fees, which may be available under the Equal Access to Justice Act, as amended; and it is further // // // // // // // // // // // // // //
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ORDERED that this Court shall retain jurisdiction of this action for purposes of enforcing compliance with the terms of this Consent Judgment.

Dated: this 3rd day of October, 2007

____________________________ United States District Judge

The Defendants hereby appear, waive service of process and any answer or defense herein, consent to the entry of this Judgment, and waive notice by the Clerk of Court, all on this _____ day of July, 2007. GENTILIA, INC., Defendant

JONATHAN L. SNARE Acting Solicitor of Labor LAWRENCE BREWSTER Regional Solicitor

_________________________ DAVID M. KAHN Counsel for ESA Programs Attorneys for the Plaintiff U.S. Department of Labor

By ___________________________ Its Duly-Authorized Agent

______________________________ ALTAMIR SOUZA, Defendant

______________________________ LAURA E. INNES Attorney for Defendants
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EXHIBIT A
Last Name Gutierrez-Lopez Larchenkava Miranda Montes Mowra Santos First Name Oscar Veronica Fabio Jesus Jesse W. Carlos BWs Due $2,817.50 $66.15 $7,928.10 $5,706.69 $636.36 $340.85 Violation Begin Date 10/23/2004 7/30/2005 10/8/2005 2/12/2005 7/30/2005 7/30/2005 Violation End Date 5/6/2006 8/13/2005 9/9/2006 9/9/2006 9/10/2005 8/27/2005

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