OK per Sip a-t- 1 | BLUMENTHAL, NORDREHAUG & BHOWMIK FILED. ou ‘Norman B. Blumenthal (State Bar #068687) CURE 2) Kyle R. Nordrehaug (State Bar #205975) cena HoSTICe CENTER ;parajit Bhowmik (State Bar #248066 3 | 2255 Calle Clara : FEB 01 2011 La Jolla, CA 92037 4} Telephone: (858)551-1223 Macao concten con Facsimile: (858) 551-1232 G Quad . BY 4 FRAUSTO 65 | Monnens for Pitt 7 8 9 10 i: SUPERIOR COURT OF CALIFORNIA : IN AND FOR THE COUNTY OF ORANGE 13 | NEIL AQUINO; on behalf of himself, and on | CASE No. 30-2010-00395420-CU-OK-CXC behalf of all persons similarly situated, 4 FIRST AMENDED COMPLAINT FOR Plaintist, DAMAGES, RESTITUTION, AND Is INJUNCTIVE RELIEF: vs. ()_ UNFAIR COMPETITION IN 16 VIOLATION OF CAL. BUS. & PROF, MACY’S INC., and DOES | through 50, CODE § 17200 ET. SEQ. 17 (2) FAILURE TO PAY STRAIGHT Defendant. ‘TIME AND OVERTIME WAGES IN VIOLATION OF CAL, LAB. CODE §§ 204, 210, 218, $10, 1194 & 1198; (3) FAILURE TO PROVIDE MEAL AND REST PERIODS IN VIOLATION OF CAL, LAB. CODE §§ 226.7 AND $12; and (4). FAILURE TO PROVIDE. ACCURATE ITEMIZED STATEMENTS IN VIOLATION OF CAL. LAB. CODE § 226, (3) FAILURE TO REIMBURSE EMPLOYFES FOR REQUIRED EXPENSES IN VIOLATION OF CAL. LAB, CODE § 2802 and, (6) LABOR CODE PRIVATE ad GENERAL ACT [Labor Code DEMAND FOR A JURY TRIAL, 28 FIRST AMENDED ComeranntCe raw non 10 ul 2 13 4 15 16 7 18 19 20 21 22 23 25 26 27 28 Plaintiff Neil Aquino, an individual, alleges upon information and belief, except for his own acts and knowledge, the following NATURE OF THE ACTION 1. Macy's Inc, (“DEFENDANT or “MACYS”) is one of the world’s largest retail organizations, operating retail stores and Intemet websites that sell a wide range of merchandise including apparel, accessories, cosmetics, home furnishings, and other consumer goods. To protect its assets and improve profitability at retail department stores throughout Californie, MACY'S retains Loss Prevention Employees at all of its retail locations. During the CLASS PERIOD, MACY’S systematically failed to record and pay Plaintiff Neil Aquino (“PLAINTIFF”) and other Loss Prevention Employees for the actual number of hours worked, including straight time, reporting time, and overtime, MACY'S intentionally and improperly failed to pay the Loss Prevention Employees for all straight-time and overtime with respect to time worked off the clock, controlled on-call, split shifts, and reporting toa MACY’S location, ese employees were unlawfully instructed to record reduced hours on their time sheets by not recording and reporting all of the hours they worked, including ‘overtime hours, in violation of California Labor Code Section 206.5, because MACY'S management insisted that the retail store locations were over budget on employee hours. MACY'S policy and pructice to instructemployees to not record all hours worked is evidenced by the retail stores’ records, ‘Throughout the CLASS period, MACY'S also engaged in x common course of conduct in violation of California law by denying and interrupting mandatory breaks without additional compensation, as well as by refusing and failing to indemnify Loss Prevention Employees for necessary expenses incurred in the discharge of duties. 2. PLAINTIFF brings this action against MACY'S under California Code of Civit Procedure, Section 382, on behalf of himself and a class consisti 1g of all individuals who currently ‘work or previously worked for MACY'S as a Loss Prevention Employee at a retail store in California (he "CLASS") during the CLASS PERIOD as defined herein, MACY'S uniform poticy and practice alleged herein is deceptive, unfair, and an unlawful practice whereby MACY’S retained and continues to retain wages due PLAINTIFF, and the other Loss Prevention Employees, for all hours worked, including overtime hours, PLAINTIFF, and the other Loss Prevention Employees, seek an injunction FIRST AMENDED ComMLAINT ole‘enjoining such conduct by MACY’S in the future, relief for the named PLAINTIFF and all members of the CLASS who have been economically injured by DEFENDANT's past and current unlawful conduct, and all other appropri equitable relief. THE PARTIES & CONDUCT 3. Defendant Macy's, Inc.( "DEFENDANT or "MACY'S" is one of the nation’s premier retailers, operating about 810 department stores and furniture galleries throughout the United States and with fiscal 2009 sales of approximately $23.5 billion. MACY'S is organized under the laws of Delaware, with its principal executive offices located in Cincinnati, Ohio. At all relevant times ‘mentioned herein, MACY'S conducted and continues to conduct substantial and regular business in California, operating over 135 retail department stores in the state, ineluding stores in Orange County, California, 4, The true names and capacities, whether individual, corporate, subsidiary, partnership, associate or otherwise of Defendant Does | through 50, inclusive, are unknown to the PLAINTIFF who therefore sues these by their fictitious names, The PLAINTIFF will seek leave to amend this ‘Complaint to allege the true names and capacities of Does | through 50, inclusive, when they are ascertained, 5, PLAINTIFF is informed and believes, and based upon that information and betiet’ alleges, that the DEFENDANT named in this Complaint, including Does | through 50, inclusive, are responsible in some manner for one or more of the events and happenings that proximately caused the Injuries and damages hereinafter alleged, 6. PLAINTIFF is informed and believes, and based upon that information end belie!’ alleges, that the DEFENDANT named in this Complaint, including Does 1 through 50, inclusive, are, ‘and at all times mentioned herein were, the agents, servants, and/or employees of cach of the other defendants and that each defendant was acting within the course of scope of his, hers or its authority as the agent, servant and/or employee of each of the other defendants. Consequently, all the defendants are jointly and severally liable to the PLAINTIFFS and the other members of the CLASS, for the juries sustained as a result of DEFENDANT's conduct. DEFENDANT, including Does | through $0, FIRST AMENDED ConPLAnT 2B 4 15 16 7 18 19 20 an 22 23 24 25 26 27 28 are referred to herein as "MACY’S" or "DEFENDANT." 7. Atall relevant times mentioned herein, Plaintiff Neil Aquino ("PLAINTIFF") resided in California. PLAINTIFF wes employed ina Loss Prevention position for MACY'S in California from 2002 to 2010, as follows: From March 2002 to November 2003, PLAINTIFF was a "Loss Prevention Agent’; from November 2003 to August 2004, PLAINTIFF was a "Store Staff Investigator”, from ‘August 2004 to April 2008, PLAINTIFF was a "Loss Prevention Manager"; from March 2009 to June 2009, PLAINTIEF was a "Senior Agent" and he occassionally filled in as a “Loss Prevention Manager”; and from Junc 2009 to January 2010, PLAINTIFF was a "Loss Prevention Manager" for MACY'S in California, Asa “Loss Prevention Agent,” “Store Staff Investigator,” and “Senior Agent,” PLAINTIFF was paid on an hourly basis. As a “Loss Prevention Manager,” PLAINTIFF was paid on 4 salary basis, but was classified by MACY'S as non-exempt from overtime throughout his entive ‘employment, even when he was paid on a salary basis. 8. To maintain MACY’S loss prevention procedures at all ofits retail department stores throughout California, MACY'S hires indi iduals with the titles "Loss Prevention Manager,” "Loss Prevention Agent," “Loss Prevention Opencr/Closer," "Senior Agont," "Loss Prevention Security Associate," "Loss Prevention Security Agent," "Dirootor of Loss Prevention,” "Assistant Loss Prevention Supervisor," and "Store Staff Investigator" (collectively referred to herein as "Loss Prevention Employees"). PLAINTIFF brings this class action on behalf of himself and a class consisting of all individuals who currently work or previously worked for MACY'S as a Loss Prevention Employee at a retail store in California (the "CLASS") during the CLASS PERIOD. The class period applicable to this CLASS is defined as the petiod beginning four (4) years prior to the filing of this Complaint and ending on the date of as determined by the Court (the "CLASS PERIOD"). 9. All Loss Prevention Employees are similarly situated in that they share common job duties and descriptions and are all subject to MACY’S uniform policy and practice that requires them to perform work, including overtime, without compensation. Loss Prevention Employees are primarily responsible for dete resolving and reporting matters inthe area of safety, inventory shortage, cash handling and theft, end for providing customer service as per MACY'S standards. All Loss Prev ion Employees share a common chain of command in that they all report to a Disttict Director of Loss FIRST AMENDED Commtaint oeEF Swe en aAnenvun 13 14 15 16 7 18 19 20 au 22 23 24 25 26 a7 28 Prevention and/or DEFENDANT's Communication Center according to DEFENDANT’ uniform, rigid reporting protocols. ‘The significant physical demands of being a Loss Prevention Employee involve regularly standing for long periods, walking, running, crouching, stooping, kneeling, erawling, and reaching, All of these job duties are non-exempt job duties and to the extent they are paid on a salary basis, MACY”S nevertheless classifies Loss Prevention Employees as non-exempt during the CLASS PERIOD, 10. The requirement to work overtime by Loss Prevention Employees was frequent and ‘unavoidable due to the inherent nature of their primary responsibilities and DEFENDANT"s uniform guidelines and protocols for executing their primary responsibilities. Loss Prevention Employees are regularly required to work overtime hours in otder to complete their job duties, including before and after their shifls, as well as on their meal and rest breaks. 11, MACY'S exercises a uniform practice of instructing its executives and managers to restrict the amount of overtinte to be paid within a retail store and only permits a finite number ofhours ‘or amount of money that can be paid to the Loss Prevention Employees. These systematic and company-wide policies originating at the corporate level were a cause of the illegal pay practices as described herein. Despite the fact that the PLAINTIFF, and the members of the CLASS, are non- ‘exempt from overtime and paid on an hourly basis, MACY'S fails to pay them for all hours worked, including hours in excess of eight (8) in a workday, forty (40) in a workweek, or on a seventh (7%) consecutive day. MACY’S uniform policy and practice demands that Loss Prevention Employees perform job duties a al hours of the day, even during mandatory meal and rest breaks. Throughout the CLASS PERIOD, MACY'S failed to accurately record all hours worked by the Loss Prevention Employees, failed to have in place a system which eccurately recorded all hours worked by the Loss Prevention Employees, filed to pay the L.oss Prevention Employees wages dite forall hours worked, and instituted a company wide poliey whereby the Loss Prevention Employees were ordered to delete and/or not report and record regular and overtime hours worked. 12, MACY'S uniformly violated the rights of the PLAINTIFF and members of the CLASS under California law by failing to compensate therm for all hours workod, including overtime, failing to provide mandatory meal and/or rest breaks, and failing to reimburse these employees for necessary FIRST AMENDED CommLAIT1 | expenses- without limitation, in the following manners applicable to the CLASS as a whole: 2 (@) _ DEFENDANT’s uniform practice involves using a Call List to contact Loss 3 Prevention Employees at all hours regarding slarm activations. The Loss 4 Prevention Employees are requiced to follow DEFENDANT’ detailed, uniform 5 protocols and procedures in response to alarm activations. Often times, Loss 6 Prevention Employees must physically arrive on site to respond to the alarm 7 ‘activations. Both on and off site, DEFENDANT uniform policy demands that 8 these employees use their personal vehicles and cellular phones to resolve alarm 9 activations. MACY'S does not pay the Loss Prevention Employees forall hours 10 ‘worked in connection with resolving alarm activations, including hours worked i IL during mandatory meal and/or rest breaks and beyond eight (8) hours a 12 ‘workday, forty (40) hours a workweek, or on seven (7) consecutive days. Nor 13 does MACY’S reimburse these employees for the expenses they incur while 4 resolving such alarm activations, 15 (b) Asset forth by MACY’S uniform policy and procedures, whenever security= 16 related incidents occur, Loss Prevention Employees must followsstriet reporting 7 protocols. For example, they must immediately, among other things-~ record all 18 thefis, detentions, arrests, and witness statements, make electronic journal 19 entries, document ll pertinent details ina case narrative, and communicate with 20 and report to the District Director of Loss Prevention, the Communications 21 Center, and other corporate personnel, MACY'S does not pay the Loss ; 2 Prevention Employees for atl hours worked in connection with the time it takes ' 23 to resolve such incidents and follow MACY'S uniform, rigid reporting | 4 protocols, including hours worked during mandatory meal and/or rest breaks and 25 beyond eight (8) hours a workday, forty (40) hours a workweek, or on seven (7) 26 consecutive days. 27 (©) Loss Prevention Employees are responsible for closing stores and ensuring 28 FIRST AMENDED COPA25 @) © that all employees and customers safely leave the retail stores. They ure also responsible for reporting all pertinent details to MACY’S before they leave the location, MACY'S does not pay the Loss Prevention Employees for all hours worked in connection with closing stores and reporting incidents, including, time worked beyond eight (8) hours in a day, in excess of forty (40) hours in a ‘week, or on seven (7) consceutive days, PLAINTIFF, and the members of the CLASS, must travel to the stores where they are assigned to work, topolice stations to retrieve stolen merehandise, and to MACY'S retail stores. in response to alarms and other secutity issues MACY'S does not pay the Loss Prevention Employees for all houts worked in conection with traveling, including for hours worked in excess of eight (8) in a day, forty (40) in a week and on seven (7) consecutive days. Nor does MACY'S indemnify PLAINTIFF, and the members of the CLASS, for necessary expenses incurred in connection with such traveling, MACY'S uniform policy and practice is to require all Loss Prevention Employees to bring and immediately respond to handheld radios and pagers on both meal and rest breaks. MACY'S also has a uniform practice of keeping Call Lists with the personal cellular phone numbers of Loss Prevention Employees at each respective retail location in California. Even when these employees ate ‘on mandatory meal and/or rest breaks, MACY'S exercises a uniform practice of interrupting such breaks, but does not pay these employees additional ‘compensation, Nor does MACY’S indemnify these employees forthe expenses incurred as a result of using theit personal ceilalar phones in performing job duties during meal and rest periods. MACY'S could easily and accurately record the actual time worked by all Loss 26 } Prevention Employees. MACY'S, however, has failed to install an immutable time-keeping system that 27 || was not subject to manipulation. MACY’S also made false representations to the PLAINTIFF, and the 28 | members of the CLASS, that they were not entitled to compensation for all hours worked, including TIRST AMENDED ComPcainSow aaueen ML 1B 4 1s 16 17 18 19 20 2 22 23 25 26 a 28 overtime, In light of MACY'S failure to accurately record time worked, MACY'S failed to provide accurate wage statements to Loss Prevention Employees identifying all hours worked. CLASS ALLEGATIONS 14, To protect its assets, improve profitability, and enforce uniform security and safety programs for employees and customers at its retail department stores throughout California, MACY"S hires individuals with the titles "Loss Prevention Manager," “Loss Prevention Agent," "Loss Prevention Openet/Closer,” "Senior Agent," "Loss Prevention Security Associate," "Loss Prevention Security Agent," "Director of Loss Prevention," "Assistant Loss Prevention Supervisor” and "Store Staff Investigator" (collectively referred to herein as "Loss Prevention Employees"), Plaintiff Neil Aquino (PLAINTIFP”) brings this class action on behalf of himself and a class consisting of all individuals ‘who currently work or previously worked for MACY’S as.a Loss Prevention Employee ata retail store in California (the "CLASS") during the CLASS PERIOD. The class period applicable to this CLAS: is defined as the period beginning four (4) years prior tothe filing of this Complaint and ending on the date of as determined by the Court (the "CLASS PERIOD"). 15, Throughout the CLASS PERIOD, PLAINTIFF and the members of the CLASS were non-exempt from overtime and/or paid on an hourly basis by MACY"S, These employees always performed the standardized job duties of non-exempt and hourly employees, which is to perform manual and clerical labor to detect, resolve and report matters in the area of safety, inventory shortage, ‘cash handling and theft, and for providing customer service as per MACY'S standards, During the CLASS PERIOD, MACY'S systematically failed to record and pay PLAINTIFF and the members of | the CLASS for the actual number of hours work including straight time, reporting time, and overtime, MACY’S intentionally and improperly failed to pay the Loss Prevention Employees forall hours worked, including overtime, with respect to time spent offthe clock, on-call, working splitshifts, sand reporting back to work for second shifts ina single workday. These employees were unlawfully instructed to record reduced hours on theirtime sheets by not recording the overtime hoursthey worked in violation of California Labor Code Section 206.5, because MACY’S management contended that the retail store locations were over budget on employee hours, MACY'S policy and practice to instruct TIRST AMENDED ComPLanTSewra auveen ir 2 13 4 15 16 7 18 19 20 a 22 23 4 25 26 27 28 employees to not record all hours worked is evidenced by the records of the retail stores. MACY'S also violated California law by denying and interrupting the mandatory breaks without compensating Loss Prevention employees, as well as by refusing and failing to indemnify Loss Prevention Employees for necessary expenses incurred in the discharge of duties for the benefit of DEFENDANT, such as cellular phone usage and personal vehicle usage. 16, The California Legislature has commanded that “all wages... eamed by any person in any employmentare due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays,” and further that “[a}ny work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek...shall be compensated at the rate cof no less than one and one-half times the regular rate of pay for an employee.” Cal, Lab. Code §§ 204 and 510(a). The Industrial Welfare Commission (“IWC”), however, is statutorily authorized to “establish exemptions from the requirement that an overtime rate of compensation be paid... .for executive, administrative, and professional employees, provided [inter alia} that the employee is primarily engaged in duties that meet the test of the exemption, and] customarily and regularly ‘exercises discretion and independent judgment in performing those duties...” Cal, Lab. Code § 510(a). Neither the PLAINTIFP, nor the members of the CLASS, qualify for exemption from the above req were considered by MACY’S to be non-exempt from overtime and/or paid by MACY’S on an hourly ments, Throughout the CLASS PERIOD, all members of the CLASS, including PLAINTIFF, basis, 17, DEFENDANT, 2s amatier of company policy, practice and procedure, and in violation of the applicable Labor Code, “IWC” Wage Order Requirements, and the applicable provisions of California law, intentionally, knowingly, and wilfully engaged in a practice whereby DEFENDANT failed to pay for all hours worked by PLAINTIFF and the members of the CLASS, failed to institute 4 practice fo ensure that all hours worked were accurately recorded, and systematically instructed these Loss Prevention Employees to exclude overtime hours worked and reporting time from the employees" timerecords. Although from time to ime PLAINTIFF and some members of the CLASS may receive pre-approved overtime or are compensated for time worked off the clock, DEFENDANT as a matter ‘of corporate policy and practice failed to compensate PLAINTIFF and the members of the CLASS for FIRST AMENDED COMPLATTT aswera nun 10 ML 12 1B 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 all hours worked, including hours worked hous in excess of eight (8) in a workday, forty (40) in a ‘workweek, or on seven (7) consacutive days, even though DEFENDANT enjoyed the benefit of this ‘work, required employees to perform this work and permitted or suffered to permit this overtime work, 18 DEFENDANT has the legal burden to establish that each and every non-exempt and hourly employee is paid for all hours worked and to accurately record all hours worked by such employees. The DEFENDANT, however, asa matter of uniform and systematic policy and procedure failed and still fails to have in place during the CLASS PERIOD a policy or practice to accurately record hours worked so as to satisfy its burden. Rather than satisfying its burden, the DEFENDANT’s uniform policy and practice in place at al times during the CLASS PERIOD and currently in place is to systematically instruct employees to record no more than eight (8) hours work each workday and no ‘more than forty (40) hours work each workweek in order to avoid DEFENDANT? obligation to pay overtime wages to Loss Prevention Employees. Thiis common business practice applicable to cach and every CLASS member can be adjudicated on a class-wide basis as unlawful, unfair, and/or deceptive ‘under the California Business & Professions Code, Section 17200 et seq, (the “UCL”)-- as causation, damages, and reliance are not elements of this claim. 19, At no time before, during or after the PLAINTIFFs employment with DEFENDANT, ‘was the compensation for any member of the CLASS properly recaleulated so as to compensate the employee for all hours worked as required by California Labor Code Sections 204 and 510, et seq, 20. The CLASS, numbering more than 100 members, is so numerous that joinder of all members of the CLASS is impracticable, 21, DEFENDANT uniformly violated the rights ofthe CLASS under California law, There are numerous questions of law and fact common to all Loss Prevention Employees. These questions include, but are not limited to, the following: (@) Whether MACY’S policies, practices and pattern of conduct described in this Complaint was and is illegal, (b) Whether MACY'S hes engaged in common course of failing to record and pay PLAINTIFF and the members of the CLASS for all time worked, including overtime, off the clock, splitshifts, controlled on-call, and reporting to locations; FIRST AMENDED CoumcaInT 9.Seer nunern ll 13 4 15 16 17 18 19 20 2 22 24 25 26 27 28 (©) Whether MACY'S has engaged in a common course of requiring or permitting its Loss Prevention Employees to work off the clock without compensation; @ Whether MACY'S has engaged in a common course of requiring or permitting its Loss Prevention Employees not to report all hours worked; (©) Whether MACY’S has engaged ina common course of failing to maintain true and accurate time records for all hours worked by its Loss Prevention Employees; (© Whether MACY’S has engaged in a common course of failing to provide Loss Prevention Employees with accurate itemized wage statements; (@ Whether MACY'S has engaged ina common course of altering the time records of its Loss Prevention Employees; (b) Whether MACY’S has engaged in a common course of feiling to provide its Loss Prevention Employees with rest breaks; (Whether MACY'S has engaged in a common course of failing to provide its Loss Prevention Employees with uninterrupted off duty meal breaks; Whether MACY'S has engaged ina common course of failing to pay all its Loss Prevention Employees all wages due upon ter ation; (&) Whether MACY’S has engaged in a common course of failing to indemnify Loss Prevention Employees for all necessary expenses incurred in the discharge of their duties; (Whether MACY’S has engaged in unfair competition by the abovectisted conduct; and (m) — Whether MACY’S conduct was willful. 22, This Class Action meets the statutory prerequisites for the maintenance of a Class Action as set forth in California Code of Ci i] Procedure, Section 382, in that: (@) The persons who comprise the CLASS exceed 100 persons and are therefore so humerous that the joinder of all such persons is impracticable end the disposition of their claims as a class will benefit the parties and the Court; FIRST AMENDED CommanntSowa anerun 13 14 15 16 17 18 19 20 2 22 23 24 25 26 27 28 () ©) @ Nearly all factual, legal, statutory, declaratory and injunctive relief issues are raised in this Complaint are common to the CLASS will apply uniformly to every member of the CLASS; ‘The claims of the representative PLAINTIFF are typical of the claims of each momber of the CLASS. PLAINTIFF, like all the members of the CLASS, was classified by MACY’S as non-exempt and/or paid by MACY’S on an hourly basis, and was subjected to the DEFENDANT practice and policy which failed topay all wages due the CLASS forall hours worked, including overtime hours, failed to provide members of the CLASS with uninterrupted meal and rest breaks, failed to indemnity members of the CLASS for necessary expenses, and failed to accurately record all hours worked by the CLASS and ordered employees to exclude certain hours worked, including overtime, from their time sheots, PLAINTIFF sustained economic injury as a result of DEFENDANT's Unlawful employment practices. PLAINTIFF and the members of the CLASS were and are similarly or identically harmed by the same unlawful, deceptive, unfair and pervasive pattern of misconduct engaged in by DEFENDANT. ‘The representative PLAINTIFF will fairly and adequately represent and protect the interest of the CLASS, and has retained counsel who are competent and experienced in class action litigation. “Phere are no material conflicts between the claims of the representative PLAINTIFE and the members of the CLASS ‘that would make class certification inappropriate. Counsel for the CLASS will vigorously assert the claims of all members of the CLASS. 23. In addition to meeting the statutory prerequisites to a Class Action, this action is properly maintained as a class action pursuant to California Code of Civil Procedure, Section 382, in that: (a) Without class certification and determination of declaratory, injunctive, statutory FIRST AMENDED CONPLAINTul 12 13 14 15 16 7 18 19 20 2 22 23 24 2s 26 a7 28 (b) © and other legal questions within the class format, prosecution of separate actions by individual members of the CLASS will create the tisk of: (Inconsistent or varying adjudications with respectto individual members ‘of the CLASS which would establish incompatible standards of conduct for the parties opposing the CLASS; and/or, (i) Adjuidication with respect to individual members of the 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 CLASS have acted or refused to act on grounds ‘generally applicable to the CLASS, making appropriate class-wide relief with respect fo the CLASS as a whole in that the DEFENDANT uniformly failed to pay all wages duc, including overtime, for all hours worked by the members of the CLASS by refusing to accurately record all hours worked; , the final reliefon behalf of the @ With respect to the First Cause of Acti CLASS sought does not relate exclusively to restitution because through this claim PLAINTIFF seck declaratory relief holding that the DEFENDANT's policy and practices constitute unfair competition, along with 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 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: @ The interests of the menabers of the CLASS in individually controlling the prosecution or defense of separate actions in that the substantial FIRST AMENDED COMPLAINT 12wor aneon 10 1 12 13 14 1s 16 7 18 19 20 21 22 23 24 25 26 27 28 Gi) Gil) ww expense of individual actions will be avoided to recover the relatively small amount of economic losses sustained by the individual CLASS ‘members when compared (o 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 CLASS, which would establish incompatible standards of conduct for the DEFENDANT; and/or, (b) Adjudications with respect to individual members of the CLASS would asa practical matter be dispositive of the interests of the ‘other members not parties tothe adjudication or substantially impair or impede their ability to protect their interests; In the context of wage litigation because substantial mumber of individuat CLASS members will avoid asserting their legal rights out of fear of retaliation by DEFENDANT, which may adversely affect an individual's job with DEFENDANT or with a subsequent employer, the ‘lass 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 California Code of Civil Procedure, Section 382. 24, This Court should permit this action to be maintained as a Class Action pursuant to California Code of Civil Procedure, Section 382, because: (@) The questions of law and fact common to the CLASS predominate over any question affecting only individual members because the DEFENDANT'S employment practices were uniformly and systematically applied with respect iNT FIRST AMENDED Conee rane on 10 2 B 14 15 16 17 18, 19 20 2 22 23 24 25 26 27 28 ) © @ © oO ® (a) to the entire CLASS; A class action is superior to any other available method for the fair and efficient ‘adjudication of the claims of the members of the CLASS because in the context ‘of employment litigation a substantial number of individual CLASS members will avoid asserting their right ividually out of fear of retaliation or adverse impact on their employment; The members of the CLASS exceed [00 people and are therefore so numerous that it is impractical to bring all members of the CLASS before the Court; PLAINTIFF, and the other CLASS members, will not beable to obtain effective and economie 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 improprieties, and in obtaining adequate compensation for the damages and injuries which DEFENDANT’s actions have inflicted upon the CLASS; There is a community of interest in ensuring that the combined assets of DEFENDANT ave sufficient to adequately compensate the members of the CLASS for the injuries sustained; DEFENDANT has acted or refuused to act on grounds generally applicable to theCLASS, thereby making final class-wide reli the CLASS as a whole; appropriate with respect to ‘The members of the CLASS are readily ascertainable from the business records, ‘of DEFENDANT and business records of the DEPENDANT will identify and establish membership in the CLASS; 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 CLASS. MACY’S maintains records from which the Court can ascertain and identify by job FIRST AMENDED Conanttitle each of the Loss Prevention Employees who have been systematically, intentionally and uniformly subjected to DEPENDANT's unlawful 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 such employees have been identified. 26. DEFENDANT, as matter of corporate policy, practice and procedure, failed to pay the ‘members of the CLASS the wages due for all hours worked by disciplining employees for recording all hours worked and by refusing to institute a system for the accurate record of hours worked that could not be manipulated and altered so as to deny the payment of wages due. Al! employees in the class, uding the PLAINTIFF, performed the same primary functions under the same guidelines and were paid by DEFENDANT according to uniform and systematic company procedures, which, as alleged herein above, failed to correctly pay all regular, overtime, as well as reporting time compensation due and still owing. DEFENDANT intentionally, knowingly, and willy engaged in practice whereby DEFENDANT failed to pay forall hours worked by PLAINTIFF and the members of the CLASS, failed to provide mandatory meal and rest breaks, failed to indemnify employees for necessary expenses, failed to institute a practice to ensure that all hours worked by Loss Prevention Employees were accurately recorded, and systematically instructed these employees to exclude overtime hours worked, This business practice was uniformly applied to each and every member of the CLASS, and therefore, the propriety of this conduct can be adjudicated on a class-wide basis. JURISDICTION AND VENUE 27. This Court has jurisdiction over tis action pursuant to the California Code of Procedure, Section 410,10, This action is brought as a class action on behalf of similarly situated employees of MACY'S pursuant tothe California Code of Civil brings Procedure, Section 382. PLAINTIFF action on his own behalf, on behalf of all persons jn the CLASS as herein defined. 28. Venue is proper in this Court pursuant to California Code of Civil Procedure Sections 395 and 395.5 because the DEFENDANT has and at all relevant time maintained offices and facilities in Orange County, Californie, committed wrongful conduct herein alleged in Orange County, California against members of the CLASS, FIRST AMENDED CommLaInt “1SFS owe aan evn 1B 4 15 16 17 18, 19 20 ai 22 23 24 25 26 27 28 FRsT Cause oF ACTION For Unlawful Business Practices [Cal, Bus. And Prof, Code § 17200, et. seq.) (By PLAINTIFF and the CLASS and against AUl Defendants) 29. PLAINTIFF, and the other members of the CLASS, reallege and incorporate by this, ‘reference, as though fully set forth herein, paragraphs 1 through 28 of this Complaint. 30. DEFENDANT isa “persons” as that term is defined under the California Business and Professions Code, Section 17021. 31. Cal, Bus, & Prof, Code Section 17200 defines unfair competition as any unlawful, unfair, or fraudulent business act or practice. Section 17200 applies to violations of labor laws in the employment context, 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 ot 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, ors may be necessary to restore to any person in interest any money or property, real or personal, which may have been aequited by means of such unfair competition, Cal. Bus, & Prof. Code § 17203. 32, Atall times relevant hereto, by and through the conduct described her DEFENDANT engaged in unfair and unlawful practices in violation of the California Business and Profession Code, Section 17200 et. seq. by failing to: (a) pay PLAINTIFF and the members of the CLASS wages due for all hours worked, including overtime; (b) accurately record all hours worked, including overtime; (¢) provide, as well as by interrupting, mandatory meal and rest breaks without compensating employees; and indemnify employees for expenses incurred in the performance of job duties for DEFENDANT’s benefit. DEFENDANT’s unlawful and deceptive conduct deprived the PLAINTIFF and the members of the CLASS of fundamental rights and privileges and caused them ‘economic injury as herein alleged, DEFENDANT engeged in unfair competition by withholding ‘compensation for all hours worked. DEFENDANT further engaged in unfair and unlawful business practices by failing to keep accurate information and time tecords and failing to accurately itemize the TIRST AMENDED ConPcAInT =16=Coa aurun 10 ul 12 B 4 15 16 7 18 19 20 2 2B 24 25 27 28 total hours worked by DEFENDANTs employees, in violation of California law. As herein alleged, DEFENDANT’s conduct was unlawful in that, with respect to all Loss Prevention Employees, DEFENDANT uniformly violated California law and regulations, inchiding but not limited to the California Labor Code, Sections 201, 202, 206.5, 216, 204, 218, 226, 226.7, 510, 512, 1102.5, 1174, 1175, 1198, 2802, and the California Code of Regulations, Title 8, Section 11040(7). Because DEFENDANT ordered and requires these employees to submit time sheets which the DEFENDANT. knows to be false because the time sheets exclude all hours worked, including overtime hours, DEFENDANT's pattern of conduct and systematic practices violate the California Labor Code, Section 206.8. 33. By and through the unfair and unlawful business practices described herein, DEFENDANT obtained valuable property, money, and services from the PLAINTIFF, and the members of the CLASS, and has deprived them of valuable rights and benefits guaranteed by law and contract, all to the detriment of the employees and to the benefit of DEFENDANT s0 as to allow DEFENDANT to unfairly compete against competitors who comply with the law 34, All the acts described herein as violations of, among other things, the California Labor Code and Industrial Welfare Commission Wage Order, are unlawful and in violation of public policy; and in addition are immoral, unethical, oppressive, end unscrupulous, and thereby constitute unfair and unlawful business practices in violation of the California Business and Professions Code, Section 17200 et, seq, DEPENDANT’s conduct was also deceptive in that DEPENDANT represented to PLAINTIFF and the members of the CLASS that they were not entitled to report, record and receive compensation for all hours worked, including overtime wages for hours worked in excess of eight (8) hours in a workday, forty (40) hours in a work week, and on seven (7) consecutive days. 35. PLAINTIFF, and the members of the CLASS, are entitled to, and do, seek such relief as may be necessary to restore to them the money and property which DEFENDANT have acquired, or of which PLAINTIFF, and the members of the CLASS, have been deprived, by means of the above described unfair and unlawful business practices, 36. PLAINTIFF, and the members of the CLASS, are further entitled to, and do, seek a declaration that the above described business practices are unfair and unlawful and seek injunctive FIRST AMENDED ComnlAntSew raraueon u 12 13 14 15 16 17 18 19 21 23 24 26 27 28 relief to enjoin DEFENDANT fiom engaging in any of these unfair and unlawful business practices in the fate, 37, PLAINTIFF, and the members of the CLASS, have no plain, speedy, and/or adequate remedy at law that will end the unfair and unlawful business practices of DEFENDANT. Asa result of the unfair and unlawful business practices described above, PLAINTIFF, and the members of the 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 wages to PLAINTIFF, and the members of the CLASS. SECOND CAUSE OF ACTION For Failure To Pay Straight Time and Overtime Wages [Cal, Lab. Code §§ 204, 210, 218, 510, 1194 & 1198] (By PLAINTIFF and the CLASS and Against all Defendants) 38. PLAINTIFF, and the other members of the CLASS, reallege and incorporate by this reference, as though fully set forth herein, paragraphs | through 37 of this Complaint. 39. PLAINTIFF, and the members of the CLASS, bring a claim for DEPENDANT's willful tentional violations of the Califomnia Labor Code, Sections 204, 210, 10, $15, $58, 1194, and California Industrial Wage Order No. 4 & C.C.R. § 11040, as amended throughout the CLASS PERIOD) for DEFENDANT’ failure to pay them for all hours worked, including hours in excess of eight (8) per workday, forty (40) per workweek, and on seven (7) consecutive days. 40. Pursuantto the California Labor Code, other appticable laws and regulations, and public policy an employer must pay its employees for all hours worked. Cal. Lab. Code § 204. 41. California Labor Code Section 510 further provides that employees in California shall fnot be employed more than eight (8) hours in any workday, forty (40) hours in a workweek, and on seven (7) consecutive days unless they receive additional compensation beyond their regular wages in amounts specified by law. 42, Califomia Labor Code Section 1194 establishes an employee’s right to recover unpaid FIRST AMENDED CommANT 18wo araunesun 10 MW 12 B 14 15 16 7 18 19 20 2 22 23 24 25 26 27 28 wages, including overtime compensation and interest thereon, together with the costs of uit. California Labor Code Section 1198 states that the employment of an employee for longer hours than those fixed by the Industrial Welfare Commission is unlawful, 43. During the CLASS PERIOD, MACY'S maintained a uniform practice of paying PLAINTIFF, and the other members of the CLASS, without regard to the number of hours actually worked. As sot forth herein, DEFENDANT’ policy and practice was to intentionally and uniformly deny payment of wages due for houts worked, including overtime hours worked, PLAINTIFF and the members of the CLASS, and in fact failed to pay these employees for all hours worked, including hours worked in excess of eight (8) hours in any workday, forty (40) hours in a workweek, and on seven (7) consecutive days, DEFENDANT's uniform pattern of unlawful wage and hour practices manifested, without limitation, in the following respects applicable to the CLASS as a whole: @ Not compensating Loss Prevention Employees for all hours worked, including overtime; (b) _Requiting Loss Prevention Employees to work straight time and overtime off the clock, both before and after shifts, as well as during unpaid meal and rest breaks, without pay on a systematic and daily basis; (©) Failing to record and compensate Loss Prevention Employees for working split shifts; @ Failing to record and compensate Loss Prevention Employees for reporting time, including time spent reporting back to work for a second shift in a workday; and, (©) Failing t0 compensate Loss Prevention Employees for controlled on-call straight-time and overtime. 44, In committing these violations of the Labor Code, MACY'S required PLAINTIPF and members of the CLASS to inaccurately under-report the amount of time worked and MACY'S underpaid the actual amount of hours worked. MACYS acted in an illegal attempt to avoid payment of earned wages, overtime compensation and other benefits in violation of the California Labor Code and Industrial Welfare Commission requirements. FIRST AMENDED CommrAINToe aan non 10 M 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 45. Asa direct result of MACY'S unlawfitl practices as alleged herein, PLAINTIFF and members of the CLASS did not receive compensation for all hours actually worked for MACY'S, including hours worked in excess of eight (8) in a workday, forty (40) in a workweek, and on seven (7) consecutive days. 46, California Labor Code Section 515 sets out various categories of employees who are ‘exempt from the overtime requirements of the law. None of these exemptions are applicable to PLAINTIFF and the members of the CLASS. During the CLASS petiod, PLAINTIFF, and the members of the CLASS, were paid on an hourly basis and/or classified as non-exempt by DEFENDANT. 47. During the CLASS PERIOD, the PLAINTIFF, and the members of the CLASS, worked ‘more hours than they were paid for, constituting a failure to pay all earned wages. During the CLASS PERIOD, the PLAINTIFF, and the members of the CLASS, regularly worked more than eight (8) hours in any workday, forty (40) hours in a workweok, and on seven (7) consecutive days. 48, DEFENDANT failed to pay PLAINTIFF, and the members of the CLASS, wages for all the hours they have actually worked, including hours in excess of the maximum hours permissible by law as required by the California Labor Code, Sections 510 and 1198, even though PLAINTIFE and the members of the CLASS were regularly required to work, and did in fact work, off the clock and overtime hoursas evidenced by MACY’S uniform policy and procedures, log-in records, alarm records, phone records, communications, and witnessed by management. 49. By virtue of DEFENDANT"s unlawful failure to pay additional compensation to the PLAINTIFF, and the members of the CLASS, for the number of hours actually worked, the PLAINTIFF, and the members of the 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 50. During the CLASS PERIOD, DEFENDANT knew or should have known that PLAINTIFF, and the members of the CLASS, worked hours in excess of eight (8) hours in any ‘workday, forty (40) hours in a workweek, and on seven (7) consecutive days. DEFENDANT systematically elected, either through intentional malfeasance or gross nonfeasanee, not to pay them FIRST AMENDED Conmran -20-Caer aur on 10 12 13 4 15 16 7 18 19 20 21 2 23 4 26 27 28 for their labor as a matter of uniform corporate policy, practive and procedure, and to perpetrate this scheme, DEFENDANT refused to institute a system for recording of hours worked that is not subject to manipulation or alteration by DEFENDANT and/or DEFENDANT’s management, 51, In performing the acts and practices herein alleged in violation of labor laws and rofusing to compensate employees for all hours worked and provide the req! fe overtime compensation, the DEFENDANT acted and continues to act tentionally, oppressively, and ‘maliciously toward the PLAINTIFF, and toward the members of the 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 orderto increase corporate profits at the expense of PLAINTIFF and the members of the CLASS. 52, PLAINTIFF, and the members of the CLASS, request recovery of wages due and ‘applicable overtime compensation according to proof, interest, and costs, as well as the assessment of any and all available statutory penalties against DEFENDANT, in a sum as provided by the Labor Code and/or other statutes, 53. MACY'S respective failure to pay the correct amount of straight-time hourly wages permits acivil suit to recover wages due to the PLAINTIFR, and all the members of the CLASS, under California Labor Code Sections 204 and 218, as well as recovery of interest, 54, MACY’S failure to pay the correct amount of overtiine violates [WC Wage Order No. 4 (8 CCR. § 11040, as amended during the CLASS PERIOD), and California Labor Code Sections 204, 210, 218, $10, 1194 and 1198, and is therefore unlawful, 55. Therefore, PLAINTIFF, and the other members of the CLASS, request recovery of overtime compensation according to proof, interest, statutory costs, as well as the assessment of any statutory penalties against DEFENDANT, in a sum as provided by the Cal, Lab. Code and/or other statutes. To the extent overtime compensation is determined to be owed to PLAINTI and other members of the CLASS whose employment has been terminated, these employees would also be entitled to waiting time penalties under Section 203 of the California Labor Code. Further, PLAINTIFF, and the other members of the CLASS, are entitled to seek and recover statutory costs. FIRST AMENDED CoCera awn 10 12 13 14 15 16 Ww 18 19 20 21 23 24 25 27 28 56. ‘Tuyep Cause OF ACTION For Failure To Provide Mandatory Meal and Rest Periods {Cal, Lab. Code §§ 226.7 & 512} (By PLAINTIFF and the CLASS and Against All Defendants) PLAINTIFF, and the other members of the CLASS, reallege and incorporate by this reference, as though fully set forth herein, parageaphs | through $5 of this Complaint. 3. 38. Cal, Lab, Code Section 512 provides, in relevant part: ‘An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal petiod of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of ‘both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meat period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period ‘was not waived. Section I! of the Order 1-2001 of the Industrial Wage Commission (the “Wage Order") provides, in relevant part: Meal Periods: (A) Noemployer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the ‘meal period may be waived by mutual consent of the employer and the employee. (B) — Anemployer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than thirty (30) minutes, except that if the total hours worked is no ‘more than twelve (12) hours, the second meal period may be waived by mutual consent of the employer and the employee only ifthe first meal period was not waived. {C)__ Unless the employee is relieved of all duty during a 30 minute meal period, the FIRST AMENDED ConcaCaran on 10 uw 12 1B 4 15 16 7 18 19 2 22 23 24 25 26 27 28 ©) ‘meal period shall be considered an "on duty" meal period and counted as time worked, An “on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by Written agreement between the parties an on-the-job paid meal period is agreed 10. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. {fan employer fails to provide an employee a meal period in accordance with the applicable provisions ofthis order, the employer shall pay the employee one (I) hourof pay at the employee's regular rate of compensati n for each workday ‘that the meal period is not provided. 59. Section 12 of Order 1-2001 of the Industrial Wage Commission (the “Wage Order”) provides, in relevant part: Rest Periods: @ 6) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily ‘work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. Ifan employer fails to provide an employee a rest period in accordance with the applicable provisions ofthis Order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each work day that the rest period is not provided. 60. Cal. Lab. Code § 226.7 provides: @ ‘No-employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission, FIRST AMENDED COMPLAINTCe rane on 10 i 12 13 4 15 16 7 18, 19 20 aL 22 23 24 2s 26 a1 28 (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the ‘employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is, not provided 61, Although DEFENDANT provides some meal periods, DEFENDANT has intentionally and improperly failed to provide all meal periods without any work or duties to PLAINTIFF and the ‘other members of the CLASS as requited by law, and by failing to do so DEFENDANT violated the provisions of Section 226.7 of the California Labor Code 62, Throughout the CLASS PERIOD, it was DEFENDANT’s uniform policy and practice to interrupt the meal and rest breaks of the PLAINTIFF and the members of the CLASS. DEFENDANT'S uniform practice requires PLAINTIFF and the members of the CLASS to respond to handheld radios, pagers, and personal cellular phones that DEPENDANT requires them to carry on such breaks, DEFENDANT also required PLAINTIFF and the other class MEMBERS to work off the clock, This means that all the Loss Prevention Employees were required to work, without pay, during times that they should have been on their meal and rest, At all relevant times during the CLASS PERIOD, DEFENDANT failed to provide any compensated work time for interrupting such breaks. 63, PLAINTIFF demands on behalf of himself and the members of the CLASS, one (1) hour of premium pay for each workday in which @ meal petiod was not provided for each five (5) hours of work, FOURTH. CAUSE OF ACTION For Failure to Provide Accurate Itemized Statements [Cal, Lab. Code § 226] (By PLAINTIFF and the CLASS and against DEFENDANT) 64, PLAINTIFF, and the other members of the CLASS, reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 63 of this Complaint, 65. Cal, Labor Code Section 226 provides that an employer must furnish employees with FIRST AMENDED ComPLaINTCer anneen 10 uw 12 13 4 15 16 Ww 18, 19 20 a 22 23 24 25 26 27 28 “an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, (3) the number of piece rate units earned and any applicable piece rate ifthe employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employoe may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security ‘number of an cmployce identification number other than a social security number may be shown on the itemized statement, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employes.” 66, _Atall times relevant herein, DEFENDANT violated Labor Code Section 226 with respect to PLAINTIFF and the members of the CLASS, without limitation, in that DEFENDANT inaccurately or completely failed to record and report: (a) Allhours actually worked on their pay stubs, including st t-time and overtime: (b) time worked off the clock; (¢) split shifts; (4) controlled on- call time; (¢) reporting time; and (f) start and ent times for mandated breaks. 67. This fuilure by DEFENDANT was the result of DEFENDANT’s intentional refusal to institute a system for accurately recording hour worked and DEPENDANT" orders and instruetions {o the members of the CLASS to exclude and delete all hours worked, including overtime, offthe clock, ‘on call, and reporting time from the hours reported on their time sheets, 68. DEFENDANT knowingly and intentionally failed to comply with California Labor Code Section 226, causing damages to PLAINTIFF, and the members of the CLASS. These damages include, but are not limited to, unpaid wages for hours actually worked, the costs expended calculating the true hours worked and the amount of employment taxes which were not properly paid to state and federal tax authorities, ‘These damages may be difficult to estimate. ‘Therefore, PLAINTIFF, and the members of the CLASS, may recover liquidated damages of $50.00 for the initial pay period in which the violation occurred, and $100.00 for each violation in subsequent pay petiod pursuant to California Labor Code Section 226, in an amount according to proof atthe time of trial (but in no event more than ‘$4,000.00 for PLAINTIFF and each respective member of the CLASS herein), plus costs, pursuant FIRST AVENDED CovrcanrrSeow rauevn = B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 California Labor Code S BOF. For Failure to Reimburse Employees for Necessary Expenses [Cal, Lab, Code § 2802] (By PLAINTIFF and the CLASS and Against All Defendants) 69. PLAINTIFF, and the other members of the CLASS, reallege and incorporate by this reference, as though fully sot forth herein, paragraphs | through 68 of this Complaint, 70. Pursuant to California Labor Code Section 2802, DEFENDANT is required to reimburse PLAINTIFF, and the members of the CLASS, for expenses incurred by them in the performance of their job duties (which may included but is not limited to the following expenses: vehicles usage, mileage, meals, office supplies, advertising, cell phone usage, and home office expenses). 71, During the CLASS PERIOD, DEFENDANT had a uniform policy and procedure whereby PLAINTIFF and the members of the CLASS were required to personally incur and pay for expenses during the performance of their employment duties, all without reimbursement ftom DEFENDANT. Similarly, DEFENDANT did not reimburse PLAINTIFF and the members of the CLASS for other business expenses incurred as.a condition of andi the discharge of their employment duties 72, Atall relevant times, PLAINTIFF and the CLASS were required to have and pay for a coll phone and cellular plan, which was for the benefit of DEFENDANT and which was so that DEFENDANT andior its corporate officers could contact and keep track of the Loss Prevention Employees at all times, Even though DEFENDANT’s uniform potiey and procedure demands that PLAINTIFF and members of the CLASS frequently use their personal cell phones to dispose of loss prevention issues during, before and after scheduled shifts, as well as during rest and meal periods, DEFENDANT?s uniform practice was to not indemnify these employees for such expenses. 7. DEI IDANT did not reimburse PLAINTIFF and the members of the CLASS for the cost and use of their personal vehicles within the course and scope of their employment, such as to TIRST AMENDED COMPLAINTSewrauewn i 13 14 15 16 17 18 19 20 21 22 2B 4 28 26 27 28 report back to one of DEFENDANTS locations to resolve a scourity alarm issue, deliver reports, and travel time, 74, Asa proximate result ofthe aforementioned violations, PLAINTIFF and the members of the CLASS have been damaged in an amount according to proof at the time of tral. 75. DEFENDANT’s patiom, practice and uniform administration of corporate policy regarding failure to reimburse business expenses as described herein is unlawful and creates an entitlement, Pursuant to Labor Code Section 2802, PLAINTIFF and the members of the CLASS are ‘entitled to recover from DEFENDANT the full amount of the expenses they incurred in the course of their job duties, plus interest, and costs of suit IX’ ‘TION Labor Code Private Attorneys General Act of 2004 [Cal. Lab. Code § 2698 et. seq.) 76, Plaintiff incorporates by reference the allegations set forth in paragraphs 1-75, supra, as though fully set forth at this point. 77. Plaintiff brings this representative action on behalf of himself and on behalf of all individuals who are or previously were employed by Defendants as Loss Prevention Employees in California during the applicable statutory period as determined by the Court (the "Agatieved Employees"). 78. Plaintifis gave written notice by certified mail to the Labor and Workforce Development Agency (the "Agency") and the employer of the specific provisions of this code alleged {to have been violated as required by Labor Code § 2699.3, ‘The statutory waiting period for PlaintifT todd these allegations to the Complaint has expired, Asa result, pursuant to Section 2699.3, Plaintifts may now commence a civil action pursuant to Section 2699. 79. The policies, acts and practices heretofore described were and are an unlawful business act or practice because Defendant's failure to provide reimbursement of business expenses as well as the failure by to insttute.a system for accurately recording hour worked and DEFENDANT's orders and instructions to the members of the CLASS to exclude and delete all hours worked, including, FIRST AMENDED ComFCANTCe ewaneen 10 12 B 14 15 16 7 18 19 20 2 2 23 24 25 26 27 28 overtime, off the clock, on call, and reporting time from the hours reported on their time sheets violate the applicable Labor Code sections listed in Labor Code §2699.5 as set forth hereinabove and thereby gives rise to statutory ponaltiesas aresult of such conduct, Plaintiff, as an aggrieved employee, hereby seeks recovery of civil penalties as prescribed by the Labor Code Private Attomey General Act of 2004 ‘on behalf of himself and other Aggrieved Employees, against whom one or more ofthe violations of the Labor Code was committed. PRAYER WHEREFOR, PLAINTIFF prays for judgment against each Defendant, jointly and severally, as follows: 1. On behalf of the CLASS: A) That the Court certify action asserted by the CLASS as a class action pursuant t0 the: California Cods of Civil Procedure, Section 38: B) An order temporarily, preliminarily and permanently enjoining and restraining DEFENDANT from engaging in similar unlawful conduct as set forth herein; ©) Anorder requ from PLAINTIFF and the other members of the CLASS; ing DEFENDANT to pay all wages and all sums unlawfully withheld D) Disgorgement of DEFENDANT” ill-gotten gains into a fluid fund for restitution of the ‘sums incidental to DEFENDANT's violations due to PLAINTIFF and to the other members of the CLASS; EB) Compensatory damages, according to proof at tral, including compensatory damages for both regular and overtime compensation and reporting time wages due PLAINTIFF and the other members of the CLASS, during the applicable CLASS PERIOD plus interest thereon at the statutory rates F) One (1) hour of pay for cach workday in which a meal period was not provided to. PLAINTIFF and each member of the CLASS for each five (5) hours of work; G) One (1) hour of pay for each workday in which a rest period was not provided to PLAINTIFF and each member of the CLASS as required by law; THIRST ARTENDED ConrLainruM Mt ut uw uw » y 0 Ly ‘The wages ofall terminated employees due to members of the CLASS asa penalty from the due date thereof at the same rate until paid or until an action therefor is commenced in accordance with Cal, Lab. Code § 203; ‘The greater of all actual damages or fifty dollars ($50) for the initial pay petiod in whieh a vi ‘occurs and one hundred dollars ($100) per each member of the CLASS for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and an award of costs for violations of Cal, Lab. Code § 226; ‘The amount of the expenses PLAINTIFF and each member of the CLASS incurred in the course of their job duties, plus interest, and costs of suit; Extra wage compensation at the rate of one how's pay at the minimum wage for each member of the CLASS who worked split shifts, ‘Two (2) hours at the regular rate of pay for members of the CLASS who reported for work and were fur ed less than two (2) hours of work or were required to report for work a second time in any one workday and furnished less than two (2) hours of work ‘on the second reporting, On all claims: A) 8) ° ‘An award of interest, including prejudgment interest at the legel rate. ‘An award of penalties, statutory damages, cost of suit, but neither this prayer nor any ‘other allegation or prayer in this Complaint is to be construed as a request, under any circumstance, that would result in a request for attorneys’ fees under Cal, Lab, Code § 218.5; Such other and further relief as the Court deems just and equitable. FIRST AMENDED Comma -29-Cw wan ren 10 12 13 14 1 16 u 18 19 20 a 2 2B 24 28 26 27 28 3. On the Sixth Cause of Acti A. Recovery of civil penalties as prescribed by the Labor Code Private Attorney General Act of 2004, Dated: January 28, 2011 BLUMENTHAL, NORDREHAUG & BHOWMIK By:_Norman B. Blumenthal ‘Norman B. Blumenthal Attomeys for Plaintiff FIRST AMENDED COMPLAINT “30DEMAND FOR JURY. PLAINTIFF demands a jury trial on issues triable to a jury. Dated: January 28, 2011 BLUMENTHAL, NORDREHAUG & BHOWMIK By:_Norman B, Blumenthal ‘Norman B. Blumenthal Attorneys for Plaintiff FIRST AMENDED COMPLAINT “31+