throbber
Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 1 of 22 Page ID #:1
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`MAYALL HURLEY P.C.
`ROBERT J. WASSERMAN (SBN: 258538)
`rwasserman@mayallaw.com
`WILLIAM J. GORHAM (SBN: 151773)
`wgorham@mayallaw.com
`JENNY D. BAYSINGER (SBN: 251014)
`jbaysinger@mayallaw.com
`2453 Grand Canal Boulevard
`Stockton, California 95207-8253
`Telephone: (209) 477-3833
`Facsimile: (209) 473-4818
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`Attorneys for Plaintiff Amber Pope and the Putative Class
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`Plaintiffs,
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`AMBER POPE,
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`vs.
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`PRIME NOW, LLC; and DOES 1-100,
`inclusive,
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`Defendants.
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`Case No.:
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`CLASS AND COLLECTIVE ACTION
`COMPLAINT
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`1. FAILURE TO PAY OVERTIME
`2. FAILURE TO PROVIDE MEAL AND
`REST PERIODS
`3. FAILURE TO FURNISH ACCURATE
`ITEMIZED WAGE STATEMENTS
`4. UNLAWFUL BUSINESS PRACTICES
`5. CIVIL PENALTIES PURSUANT TO
`LABOR CODE SECTION 2698, ET SEQ.
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`Plaintiff Amber Pope brings this class action against Prime Now, LLC and Does 1 through
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`100, for violations of the Fair Labor Standards Act, the California Labor Code, and the Business and
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`Professions Code.
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`1.
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`Amber Pope (“Plaintiff”) is and at all times relevant herein was employed in Los
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`PARTIES
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`Angeles County, California, and was an “employee” as defined by the Fair Labor Standards Act
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`(“FLSA”), the California Labor Code (“Labor Code”), and the applicable California Industrial Wage
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`Commission (“IWC”) Order(s).
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`/ / /
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`Class and Collective Action and Complaint – Page 1 of 15
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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 2 of 22 Page ID #:2
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`2.
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`Prime Now, LLC (“Defendant” or “Prime”) is a limited liability company organized
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`and existing under the laws of Delaware, with its principal place of business located at 410 Terry
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`Avenue N, Seattle, Washington, which does business in California and throughout the United States.
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`3.
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`At all times relevant herein, Prime has been an “employer” as defined by the Fair Labor
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`Standards Act (“FLSA”), the California Labor Code (“Labor Code”), and the applicable California
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`Industrial Wage Commission (“IWC”) Order(s).
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`4.
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`5.
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`Prime and Does 1-100 are collectively referred to as Defendants.
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`Plaintiff is not aware of the true names and capacities of the Defendants sued herein as
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`Does 1 through 100, whether individual, corporate, associate, or otherwise and therefore sues such
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`Defendants by these fictitious names. Plaintiff will amend this Complaint to allege their true names
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`and capacities when ascertained. Plaintiff is informed and believes, and on that basis alleges, that
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`each of the fictitiously named Defendants is responsible in some manner for the occurrences herein
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`alleged and that Plaintiff’s injuries and damages herein alleged were legally caused by such
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`Defendants. Unless otherwise indicated, each Defendant was acting within the course and scope of
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`said agency and/or employment, with the knowledge and/or consent of said co-Defendant.
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`6.
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`Plaintiff is informed and believes and thereupon alleges that at all times mentioned
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`herein, each of the Defendants, including each Doe Defendant, was acting as the agent, servant,
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`employee, partner and/or joint venturer of and was acting in concert with each of the remaining
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`Defendants, including each Doe Defendant, in doing the things herein alleged, while at all times acting
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`within the course and scope of such agency, service, employment partnership, joint venture and/or
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`concert of action. Each Defendant, in doing the acts alleged herein, was acting both individually and
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`within the course and scope of such agency and/or employment, with the knowledge and/or consent of
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`the remaining Defendants.
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`JURISDICTION AND VENUE
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`7.
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`This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331, and 29
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`U.S.C. § 216(b). This court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367. This Court
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`further has jurisdiction pursuant to 28 U.S.C. § 1332(d) as there is diversity of citizenship between
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`Prime and Pope and the amount in controversy exceeds $5,000,000. Venue is proper in this court
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`Class and Collective Action and Complaint – Page 2 of 15
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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 3 of 22 Page ID #:3
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`pursuant to 28 U.S.C. § 1391(b) because the unlawful acts alleged herein took place in Los Angeles
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`County, California and Plaintiff’s place of employment with Prime was within this District. Plaintiff
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`hereby demands a jury trial.
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`GENERAL ALLEGATIONS
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`Plaintiff was hired by Prime in or around April 2020.
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`Throughout her employment, Plaintiff was a non-exempt employee. As such, she was
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`entitled to be paid at least minimum wage for every hour she worked and overtime as appropriate
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`based on her “regular rate of pay.”
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`10.
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`Throughout her employment, however, Plaintiff and Prime’s other non-exempt
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`employees were not paid for overtime based on the appropriate regular rate.
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`11.
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`Pope and Prime’s other California non-exempt employees were often eligible for and at
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`times received non-discretionary bonuses, commissions, and other items of compensation (such as
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`“surge premiums” and other shift differentials). Exhibit A.
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`12.
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`Specifically, Prime paid Pope an additional $2.00 per hour for certain shifts she worked
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`(identified as “Additionalpay” on her wage statements), along with providing “surge premiums” for
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`certain hours that were worked. These promised amounts were essentially shift premiums paid to
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`incentivize Plaintiff and Prime’s other non-exempt employees to work additional hours and/or less
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`desirable shifts.
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`13.
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`Throughout Pope’s employment, Prime failed to properly calculate and pay the
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`overtime wages owed to Plaintiff and its other non-exempt employees.
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`Specifically, pursuant to its uniform policy, practice and procedure, Prime failed to
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`include commissions, non-discretionary bonuses and other items of compensation when determining
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`Plaintiff and its other non-exempt employees’ “regular rate of pay” for purposes of overtime.
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`15.
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`For example, during the weekly pay period of May 17-23, 2020, Ms. Pope earned
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`“additional pay of $2.00 for each of the 37.97 hours she worked, earned a “surge premium” of $3.00 for
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`each of 13.50 hours worked, a “surge premium” of $5.00 for 4.50 hours she worked and a rate of
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`$30.00 for 2.83 hours that she worked. Exh. A. Pope had a total of $750.79 in earnings for 37.97 hours
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`of work, equating to a regular rate of $19.77 and an overtime premium of $9.88 per hour. Prime Now,
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`Class and Collective Action and Complaint – Page 3 of 15
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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 4 of 22 Page ID #:4
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`however, only paid Pope at the “overtime premium” rate of $5.63 per hour, significantly less than the
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`premium required by her regular rate. Id.
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`Pope and Prime’s other non-exempt employees were frequently denied the opportunity to take
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`off-duty meal periods of at least thirty (30) minutes because job responsibilities would not allow for
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`such. The fact meal periods were not provided is underscored by Prime’s payment of meal period
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`premiums to Pope on occasion. Under California law, there is no lawful choice between providing the
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`opportunity for meal periods and paying meal period premiums. Kirby v. Immoos Fire Protection, Inc.
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`53 Cal.4th 1244 (2012).
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`16.
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`Because of the violations set forth above, and as evidenced in the sample of Plaintiff’s
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`wage statements attached hereto as Exhibit A, the wage statements furnished by Prime to its non-
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`exempt California employees violated California Labor Code section 226(a) insofar as they failed to
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`accurately show:
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`a. The gross wages earned, in violation of section 226(a)(1);
`b. The total hours worked by the employee in violation of section 226(a)(2);
`c. The net wages earned, in violation of section 226(a)(5); and
`d. All applicable hourly rates in effect during the pay period and the corresponding
`number of hours worked at each hourly rate in violation of section 226(a)(9).
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`Prime was, at all times relevant herein, aware of the requirements of California Labor
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`Code section 226.
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`Prime has, at all times relevant herein, furnished wage statements to each of its non-
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`exempt California employees pursuant to an established set of policies, procedures and practices.
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`Plaintiff and Prime’s other non-exempt California employees, both current and former,
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`have suffered injury as a result of Prime’s knowing and intentional failure to comply with California
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`Labor Code section 226(a).
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`Plaintiff and Prime’s other non-exempt California employees, both current and former,
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`were unable to promptly and easily determine their gross wages earned from the wage statements
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`furnished by Prime.
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`Plaintiff and Prime’s other non-exempt California employees, both current and former,
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`have suffered injury as a result of Prime’s knowing and intentional failure to furnish wage statements
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`Class and Collective Action and Complaint – Page 4 of 15
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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 5 of 22 Page ID #:5
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`accurately showing the gross wages earned by them in violation of California Labor Code section
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`226(a)(1).
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`22.
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`Plaintiff and Prime’s other non-exempt California employees, both current and former,
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`who worked overtime, were unable to promptly and easily determine their total hours worked from the
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`wage statements furnished by Prime.
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`23.
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`Plaintiff and Prime’s other non-exempt California employees, both current and former,
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`who worked overtime, have suffered injury as a result of Prime’s knowing and intentional failure to
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`furnish wage statements accurately showing their total hours worked in violation of California Labor
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`Code section 226(a)(2).
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`24.
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`Plaintiff and Prime’s other non-exempt California employees, both current and former,
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`were unable to promptly and easily determine their net wages earned from the wage statements
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`furnished by Prime.
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`Plaintiff and Prime’s other non-exempt California employees, both current and former,
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`have suffered injury as a result of Prime’s knowing and intentional failure to furnish wage statements
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`accurately showing the net wages earned by them in violation of California Labor Code section
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`226(a)(5).
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`26.
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`Plaintiff and Prime’s other non-exempt California employees, both current and former,
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`were unable to promptly and easily determine all applicable hourly rates in effect during the pay
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`period and the corresponding number of hours worked at each hourly rate from the wage statements
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`furnished by Prime.
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`Plaintiff and Prime’s other non-exempt California employees, both current and former,
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`have suffered injury as a result of Allen Distribution’s knowing and intentional failure to furnish wage
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`statements accurately showing all applicable hourly rates in effect during the pay period and the
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`corresponding number of hours worked at each hourly rate in violation of section 226(a)(9).
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`As a result of the failure to properly calculate and pay overtime and doubletime
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`premiums, Prime failed to pay Pope and its other current and former employees whose employment
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`has ended all wages due and owing at the time of separation within the time parameters mandated by
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`Labor Code sections 201 and 202.
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`Class and Collective Action and Complaint – Page 5 of 15
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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 6 of 22 Page ID #:6
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`29.
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`From at least four years prior to the filing of this action, Prime has adopted and
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`employed unfair business practices. These unfair business practices include, but are not limited to,
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`failing to pay employees for all hours worked, failing to pay for all overtime hours worked, failing to
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`properly calculate and pay all overtime wages and sick pay due, and failing to provide compliant meal
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`and rest breaks, or to pay the premiums associated therewith, and failure to reimburse for all business
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`expenses.
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`COLLECTIVE ACTION ALLEGATIONS
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`30.
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`Plaintiff seeks to maintain the second cause of action as an “opt-in” collective action
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`pursuant to 29 U.S.C section 216(b) as to claims for overtime, liquidated damages (or, alternatively,
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`interest) and attorneys’ fees under the FLSA. In addition to Plaintiff, numerous other current and
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`former hourly, non-exempt employees of Defendant were not paid all the overtime they are owed.
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`Plaintiff is a representative of those other current and former employees and are acting on behalf of
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`their interests as well as their own in bringing this action. These similarly situated employees are
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`known to Defendant, are readily identifiable, and may be located through Defendant’s records. These
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`similarly situated employees may be readily notified of this action, and allowed to opt in pursuant to
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`29 U.S.C. § 216(b), for purpose of collectively adjudicating their claims for overtime compensation,
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`liquidated damages (or, alternatively, interest), and attorneys’ fees under the FLSA.
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`CLASS ACTION ALLEGATIONS
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`31.
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`Plaintiff seeks to maintain this action as a class action as to the First through Fourth
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`Causes of Action. Plaintiff brings this action, on behalf of himself and all others similarly situated, as
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`a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. The putative classes which
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`Plaintiff seeks to represent consist of the following:
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`a.
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`All current and former non-exempt employees of Prime who earned
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`commissions, non-discretionary bonuses, or other items of compensation and
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`worked overtime during one or more pay periods between December 1, 2016
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`and the date of trial (the “Regular Rate Class”);
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`b.
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`All current and former non-exempt California employees of Prime who earned
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`commissions, non-discretionary bonuses, or other items of compensation and
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`Class and Collective Action and Complaint – Page 6 of 15
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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 7 of 22 Page ID #:7
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`worked overtime during one or more pay periods between December 1, 2016
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`and the date of trial (the “California Regular Rate Class”);
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`c.
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`All members of the California Regular Rate Class whose employment with
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`Prime ended at any time between December 1, 2017 and the date of trial (the
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`“California Former Employee SubClass”); and
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`d.
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`All members of the California Regular Rate Class who received one or more
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`wage statements between December 1, 2019 through the date of trial (the
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`“California Wage Statement SubClass”).
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`The Regular Rate Class, California Regular Rate Class, California Former Employee SubClass, and
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`California Wage Statement SubClass are collectively referred to as the Class.
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`The class of persons is so numerous that joinder of all members is impracticable, and
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`the disposition of their claims in a class action is a benefit to the parties and to the Court. Plaintiff is
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`informed and believes, and based thereon alleges, that Defendant employ well over 5,000 employees
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`who satisfy the class definition. Although the exact number and identity of class members is not
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`presently known, they can be identified in Defendants’ records through coordinated discovery
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`pursuant to this class action.
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`33.
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`This action may be maintained as a class action pursuant to Rule 23 of the Federal
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`Rules of Civil Procedure because the questions of law and fact which are common to class members
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`clearly predominate over any questions affecting only individual members and because a class action
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`is superior to other available methods for adjudicating the controversy.
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`34.
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`There are numerous common questions of law and fact arising out of Defendant’s
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`conduct. This class action focuses on Defendant’s systematic: (a) failure to properly calculate and pay
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`overtime/doubletime to their non-exempt employees, (b) failure to pay California employees all wages
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`due and owing at separation; and (c) failure to provide accurate itemized wage statements.
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`35.
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`Furthermore, common questions of fact and law predominate over any questions
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`affecting only individual members of the class. The predominating common or class-wide questions
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`of law and fact include the following:
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`a.
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`Whether Defendant failed to properly calculate and pay its non-exempt
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`employees’ overtime pay in accordance with the requirements of the FLSA;
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`Class and Collective Action and Complaint – Page 7 of 15
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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 8 of 22 Page ID #:8
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`b.
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`Whether items of additional remuneration such as “surge premiums” and
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`“additionalpay” were non-discretionary and thus needed to be included in
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`“regular rate of pay”;
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`c.
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`Whether Defendant failed to properly calculate and pay its non-exempt
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`California employees’ overtime pay;
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`d.
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`Whether the wage statements Defendant furnished to their California employees
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`comply with Labor Code section 226;
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`e.
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`Whether the miscalculations in overtime pay rates resulted in outstanding wages
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`due and owing at separation;
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`f.
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`Whether Defendant willfully withheld those wages that were due and owing at
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`separation;
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`g.
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`h.
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`i.
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`Whether the alleged violations constitute unfair business practices;
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`Whether the Class is entitled to injunctive relief; and
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`Whether the Class is entitled to unpaid wages, statutory penalties and/or
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`restitutionary relief, and the amount of the same.
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`36.
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`Plaintiff’s claims are typical of the claims of the members of the Class as a whole, all of
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`whom have sustained and/or will sustain damage and injury as a proximate and/or legal result of the
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`alleged violations of Defendant. Plaintiff’s claims are typical of those of the Class because Defendant
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`subjected Plaintiff and each member of the Class to the same violations alleged herein.
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`37.
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`The defenses of Defendant, to the extent that such defenses apply, are applicable
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`generally to the whole Class and are not distinguishable as to the proposed class members.
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`38.
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`Plaintiff will fairly and adequately protect the interests of all members of the Class, and
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`has retained attorneys with extensive experience in litigation, including class and representative
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`actions. Plaintiff has no interests that conflict with those of the Class. Plaintiff is able to fairly and
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`adequately protect the interests of all members of the class because it is in his best interest to prosecute
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`the claims alleged herein in order to obtain the full compensation due themselves and the other class
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`members.
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`Class and Collective Action and Complaint – Page 8 of 15
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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 9 of 22 Page ID #:9
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`39.
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`A class action is superior to any other method available for fairly and efficiently
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`adjudicating the controversy because 1) joinder of individual class members is not practicable, 2)
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`litigating the claims of individual class members would be unnecessarily costly and burdensome and
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`would deter individual claims, 3) litigating the claims of individual class members would create a risk
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`of inconsistent or varying adjudications that would establish incompatible standards of conduct for
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`Defendants, 4) class members still working for Defendants may be fearful of retaliation if they were to
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`bring individual claims, 5) class members would be discouraged from pursuing individual claims
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`because the damages available to them are relatively small, and 6) public policy encourages the use of
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`the class actions to enforce employment laws and protect individuals who, by virtue of their
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`subordinate position, are particularly vulnerable.
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`40.
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`Judicial economy will be served by maintenance of this lawsuit as a class action. To
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`process numerous virtually identical individual cases will significantly increase the expense on the
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`Court, the class members, and Defendant, all while unnecessarily delaying the resolution of this
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`matter. There are no obstacles to effective and efficient management of this lawsuit as a class action
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`by this Court and doing so will provide multiple benefits to the litigating parties including, but not
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`limited to, efficiency, economy, and uniform adjudication with consistent results.
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`41.
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`Notice of a certified class action and any result or resolution of the litigation can be
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`provided to class members by mail, email, publication, or such other methods of notice as deemed
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`appropriate by the Court.
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`FIRST CAUSE OF ACTION
`VIOLATION OF FAIR LABOR STANDARDS ACT AND
`CALIFORNIA LABOR CODE §§ 510 & 1198
`(Failure to Pay Overtime)
`Against Defendant on Behalf of the Regular Rate Class and the California Regular Rate Class
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`Plaintiff hereby realleges and incorporates by reference each and every allegation set
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`42.
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`forth above as though fully set forth herein, except as said paragraphs are inconsistent with the
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`allegations of this cause of action.
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`43.
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`The Fair Labor Standards Act, 29 USC §§ 201 et seq. and 29 CFR §§ 778 et seq.,
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`requires time-and-a-half pay for the time an employee works over forty hours a week.
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`Class and Collective Action and Complaint – Page 9 of 15
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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 10 of 22 Page ID #:10
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`44.
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`Pursuant to California Labor Code section 510, any work in excess of eight hours in
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`one workday and any work in excess of 40 hours in any one workweek and the first eight hours
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`worked on the seventh day of work in any one workweek shall be compensated at the rate of no less
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`than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours
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`in one day shall be compensated at the rate of no less than twice the regular rate of pay for an
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`employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be
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`compensated at the rate of no less than twice the regular rate of pay of an employee.
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`45.
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`Pursuant to California Labor Code section 1198, the maximum hours of work and
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`standard conditions of labor fixed by the commission shall be the maximum hours of work and the
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`standard conditions of labor for employees and the employment of any employee for longer hours than
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`those fixed by the commission or under conditions of labor prohibited by the order is unlawful.
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`46.
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`During the relevant time period, Plaintiff and Defendant’s other non-exempt employees
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`regularly worked overtime.
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`47.
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`During the relevant time period, Defendant intentionally and willfully failed to pay all
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`overtime wages due to Plaintiff and its non-exempt employees.
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`48. Wherefore, Plaintiff and the other members of the Regular Rate Class and California
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`Regular Rate Class have been injured as set forth above and request relief as hereafter provided.
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`SECOND CAUSE OF ACTION
`VIOLATION OF LABOR CODE §§ 201, ET SEQ.
`(Failure to Pay All Wages Due and Owing at End of Employment)
`Against Defendant on Behalf of the California Former Employee SubClass
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`49.
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`Plaintiff hereby realleges and incorporates by reference each and every allegation set
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`forth above as though fully set forth herein, except as said paragraphs are inconsistent with the
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`allegations of this cause of action.
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`50.
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`California Labor Code section 201 provides that if an employer discharges an employee,
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`the wages earned and unpaid at the time of discharge are due and payable immediately.
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`51.
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`California Labor Code section 202 requires an employer to pay an employee all earned
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`wages within 72 hours of the employee quitting his or her employment, or immediately at the time of
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`quitting if the employee has given 72 hours previous notice of his or her intention to quit.
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`Class and Collective Action and Complaint – Page 10 of 15
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`

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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 11 of 22 Page ID #:11
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`52.
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`As set forth above, Plaintiff and the other members of the California Regular Rate Class
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`were not properly paid all overtime wages due throughout their respective employments. As a result,
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`members of the California Former Employee SubClass necessarily had outstanding wages due and
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`owing at the time they separated from employment with Prime; those wages remain outstanding.
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`53.
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`As a result, members of the California Former Employee SubClass were not timely paid
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`all of their earned but unpaid wages when their employment with Defendant ended
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`54. Wherefore, Plaintiffs and the other members of the California Former Employee
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`SubClass have been injured as set forth above and request relief as hereafter provided.
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`THIRD CAUSE OF ACTION
`VIOLATION OF LABOR CODE § 226(a)
`(Failure to Furnish Accurate Itemized Wage Statements)
`Against Defendants on behalf of the California Wage Statement Class
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`Plaintiff hereby realleges and incorporates by reference each and every allegation set
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`55.
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`forth above as though fully set forth herein, except as said paragraphs are inconsistent with the
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`allegations of this cause of action.
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`56.
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`Pursuant to California Labor Code section 226(a) “every employer shall, semimonthly
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`or at the time of each payment of wages, furnish each of his or her employees, either as a detachable
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`part of the check, draft, or voucher paying the employee’s wages, or separately when the wages are
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`paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages
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`earned, (2) total hours worked by the employee [. . .], (3) the number of piece-rate units earned and
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`any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, (5) net wages
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`earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the
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`employee and only the last four digits of his or her social security number or an employee
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`identification number, (8) the name and address of the legal entity that is the employer [. . .], (9) all
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`applicable hourly rates in effect during the pay period and corresponding number of hours worked at
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`each hourly rate by the employee and, if the employer is a temporary services employer [. . .], the rate
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`of pay and the total hours worked for each temporary services assignment.”
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`57.
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`An employee suffering injury as a result of the knowing and intentional failure by an
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`employer to comply with Labor Code section 226(a) is entitled to recover the greater of all actual
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`Class and Collective Action and Complaint – Page 11 of 15
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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 12 of 22 Page ID #:12
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`damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred
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`dollars ($100) per employee for each violation in a subsequent pay period, not to exceed the aggregate
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`penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable
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`attorney’s fees. Labor Code § 226(e)(1).
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`58.
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`An employee is deemed to suffer injury if the employer fails to provide a wage
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`statement or if the employer fails to provide accurate and complete information as required by any one
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`or more of the items (1) to (9), inclusive, of subdivision (a) and the employee cannot promptly and
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`easily determine from the wage statement alone, i) the amount of gross/net wages paid to the employee
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`during the pay period or any of the other information required to be provided pursuant to Labor Code
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`section 226(a) items (2) to (4), inclusive, (6) and (9), ii) deductions made by the employer, iii) the
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`name and address of the employer and iv) the name of the employee and the last four digits of his or
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`her social security number or employee identification number. Labor Code § 226(e)(2)(A) and (B)(i)-
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`(iv). “Promptly and easily determine” means a reasonable person would be able to readily ascertain
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`the information without reference to other documents or information. Labor Code § 226(e)(2)(C).
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`59.
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`As set forth above, Defendant intentionally and willfully failed to furnish accurate
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`itemized wage statements which complied with Labor Code section 226.
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`60. Wherefore, Plaintiff and the other members of the California Wage Statement Class
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`have been injured as set forth above and request relief as hereafter provided.
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`FOURTH CAUSE OF ACTION
`VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE §§ 17200 ET SEQ.
`(Unfair Business Practices)
`Against Defendant on behalf of the California Regular Rate Class
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`61.
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`Plaintiff hereby realleges and incorporates by reference each and every allegation set
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`forth above as though fully set forth herein, except as said paragraphs are inconsistent with the
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`allegations of this cause of action.
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`62.
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`The statutory violations, as alleged above, are unfair business practices within the
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`meaning of the Unfair Competition Law (Business and Professions Code sections 17200 et seq), and
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`include, but are not limited to failing to properly calculate and pay all overtime wages.
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`Class and Collective Action and Complaint – Page 12 of 15
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`

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`Case 2:20-cv-10912 Document 1 Filed 12/01/20 Page 13 of 22 Page ID #:13
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`63. Wherefore, Plaintiff and the other members of the California Regular Rate Class, the
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`Regular Rate Class have been damaged as set forth above and request relief as hereafter provided.
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`FIFTH CAUSE OF ACTION
`VIOLATION OF LABOR CODE SECTION 2698 ET SEQ.
`(Private Attorneys General Act)
`Against Defendant
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`Plaintiff hereby realleges and incorporates by reference each and every allegation set
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`64.
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`forth above as though fully set forth herein, except as said paragraphs are inconsistent with the
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`allegations of this cause of action.
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`65.
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`Pursuant to Labor Code section 2699(a), any provision of the Labor Code which
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`provides for a civil penalty to be assessed and collected by the LWDA for violations of the Labor Code
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`may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf
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`of himself or herself and other current or former employees pursuant to the procedures outlined in
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`Labor Code section 2699.3.
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`66.
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`Plaintiff was employed by Defendant and the alleged violations were committed against
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`her during her time of employment. Plaintiff is therefore aggrieved employees as defined by Labor
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`Code section 2699(c). Other current and former employees are also aggrieved employees in that one or
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`more of the alleged violations were also committed against them during their time of employment with
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`Defendant.
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`67.
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`On June 8, 2020, Pope sent a letter to Prime and the LWDA identifying specific
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`provisions of the Labor Code alleged to have been violated by Prime, along with the facts and theories
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`supporting those alleged violations. See Exhibit B. Specifically, Pope asserted that Prime violated
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`Labor Code sections 201-203, 204, 226, 226.7, 510, and 512.
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`68.
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`As of the filing of this Complaint, which is more than 65 days following June 8, 2020,
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`the LWDA has not provided any indication of

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