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`Case 2:20-at-00470 Document 1 Filed 05/13/20 Page 1 of 27
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`STAN S. MALLISON (Bar No. 184191)
` StanM@TheMMLawFirm.com
`HECTOR R. MARTINEZ (Bar No. 206336)
` HectorM@TheMMLawFirm.com
`JUAN GAMBOA (Bar No. 327352)
` JGamboa@TheMMLawFirm.com
`MALLISON & MARTINEZ
`1939 Harrison Street, Suite 730
`Oakland, California 94612-3547
`Telephone: (510) 832-9999
`Facsimile: (510) 832-1101
`
`Attorneys for Plaintiffs
`
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA—DISTRICT OF SACRAMENTO
`
`
`
`Plaintiffs LUIS BARAJAS, MARIA VARGAS,
`and ELBA VIZCAINO on behalf of a class of
`similarly situated individuals,
`
`
`
`Plaintiffs,
`
`
`vs.
`
`BLUE DIAMOND GROWERS INC, DENISE
`HORN, PATRICIA AGUILAR and RESHAM
`KLAIR individually; and DOES 1 through 40,
`inclusive,
`
`
`
`
`Defendants.
`
` Case No.
`
`CLASS ACTION COMPLAINT:
`1. Violation of the Fair Labor Standards
`Act: Failure to Pay Overtime Wages
`2. Failure to Pay Minimum Wages
`3. Failure to Pay Overtime Wages
`4. Failure to Provide Rest Periods or Pay
`Additional Wages in Lieu Thereof
`5. Failure to Provide Meal Periods or Pay
`Additional Wages in Lieu Thereof
`6. Failure to Pay All Wages Earned at
`Termination or Resignation
`7. Violation of Unfair Competition Law
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` DEMAND FOR JURY TRIAL
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`1.
`Plaintiffs LUIS BARAJAS, MARIA VARGAS and ELBA VIZCAINO (“Plaintiffs”)
`brings this action against BLUE DIAMOND GROWERS INC., DENISE HORN, PATRICIA
`AGUILAR, and RESHAM KLAIR individually, and DOES 1 through 40, inclusive (collectively
`hereafter “Defendants”), individually and on behalf of all Class Members employed under common
`circumstances and facts. The allegations made in this Complaint are based on the knowledge of
`Plaintiffs LUIS BARAJAS, MARIA VARGAS and ELBA VIZCAINO except those allegations
`made on information and belief, which are based on the investigation of their counsel.
`
`I. NATURE OF THE ACTION
`
`2.
`This is a wage and hour class action to vindicate the rights afforded employees by
`federal and California labor law. This action is brought by Plaintiffs LUIS BARAJAS, MARIA
`VARGAS and ELBA VIZCAINO for themselves and on behalf of a Class of similarly situated
`individuals against Defendants for systemic violations of federal and California labor law.
`3.
`This action revolves around the systemic failure by Defendants to pay California
`non-exempt employees, including Plaintiffs and the Class, in conformance with federal and
`California law. Defendant BLUE DIAMOND GROWERS INC. and DOES 1 through 40 employed
`Plaintiffs and the Class directly and/or are liable under California Labor Code § 558.1 and are
`referred collectively herein as “EMPLOYER DEFENDANTS.” Plaintiffs allege that Defendants
`BLUE DIAMOND GROWERS INC., DENISE HORN, PATRICIA AGUILAR and RESHAM
`KLAIR and Does 1 through 40 are “persons” who violated or caused to be violated California Labor
`Code §§ 558, and 1197.1 and the Industrial Welfare Commission (IWC) Wage Orders.
`4.
`The core violations Plaintiffs LUIS BARAJAS, MARIA VARGAS and ELBA
`VIZCAINO allege against the EMPLOYER DEFENDANTS BLUE DIMAOND GROWERS INC.
`are: (1) violation of the Fair Labor Standards Act (FLSA): failure to pay all overtime wages owed;
`(2) failure to pay all minimum wages owed; (3) failure to pay all overtime wages owed; (4) failure
`to provide rest periods or pay additional wages; (5) failure to provide meal periods or pay additional
`wages; (6) failure to pay all wages earned at termination or resignation; and (7) violation of Unfair
`Competition Law.
`
`5.
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`The core violations Plaintiffs LUIS BARAJAS, MARIA VARGAS and ELBA
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`VIZCAINO alleges against Defendants DENISE HORN, PATRICIA AGUILAR and RESHAM
`KLAIR are, including but not limited to, causing the: (2) failure to pay all minimum wages owed;
`(3) failure to pay all overtime wages owed; (3) failure to provide rest periods or pay additional
`wages; (4) failure to provide rest periods or pay additional wages; (5) failure to pay all wages earned
`at termination or resignation; and (6) failure to pay all wages earned at termination or resignation.
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`6.
`INC. and
`EMPLOYER DEFENDANT BLUE DIAMOND GROWERS
`DEFENDANTS DENISE HORN, PATRICIA AGUILAR and RESHAM KLAIR have refused to
`pay the wages due and owed to Plaintiffs LUIS BARAJAS, MARIA VARGAS and ELBA
`VIZCAINO and similarly situated employees under the express provisions of the California Labor
`Code, which in turn has resulted in additional Labor Code violations entitling Plaintiffs and other
`similarly situated employees to prompt payment of wages and penalties.
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`7.
`Plaintiffs, for themselves and the Class, also seek injunctive relief requiring each
`Defendant to comply with all applicable California labor laws and regulations in the future and
`preventing the EMPLOYER DEFENDANTS from engaging in and continuing to engage in
`unlawful and unfair business practices. Plaintiffs also seek declaratory relief enumerating each
`EMPLOYER DEFENDANTS’ violations so that the EMPLOYER DEFENDANTS and the general
`public will have clarity and guidance with regards to EMPLOYER DEFENDANTS’ future
`employment practices.
`II. JURISDICTION AND VENUE
`
`8.
`This Court has subject matter jurisdiction based on federal question jurisdiction
`pursuant to 28 U.S.C. § 1331 covering claims arising under the Fair Labor Standards Act (“FLSA”),
`29 U.S.C. §§ 201, et seq.
`
`9.
`This Court has supplemental jurisdiction over the California state law claims under
`28 U.S.C. § 1367, because these claims are so related to the federal claims that they form part of
`the same case and controversy under Article III of the U.S. Constitution.
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`10. This Court is empowered to grant declaratory relief pursuant to 28 U.S.C. § 2201.
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`11. Venue is proper in the Eastern District of California pursuant to 28 U.S.C. § 1391
`because this District is the district in which at least one of the EMPLOYER DEFENDANTS and
`Plaintiffs reside and a district in which a substantial part of the events or omissions giving rise to
`the claims occurred.
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`INTRADISTRICT ASSIGNMENT
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`12. This case is properly assigned to the Sacramento Division of this Court because the
`action arose in Stanislaus, California. Local Rule 120(d).
`III. PARTIES
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`Plaintiffs
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`13.
`Plaintiff LUIS BARAJAS is a resident of Stanislaus County, California. At relevant
`times herein, he has been employed by Defendant BLUE DIAMOND GROWERS INC. as an
`employee at facilities owned, leased, and/or operated by Defendant BLUE DIAMOND GROWERS
`INC. in and around Stanislaus, California, and has been employed by Defendants BLUE
`DIAMOND GROWERS INC. as a non-exempt employee. During the relevant time period, Plaintiff
`LUIS BARAJAS worked for Defendants BLUE DIAMOND GROWERS INC. within the County
`of Stanislaus as a non-exempt employee. He performed work for BLUE DIAMOND GROWERS
`at various times during the relevant time period through the present and, among other things, was
`not paid appropriately over the period of his employment. Plaintiff LUIS BARAJAS is an aggrieved
`employee who has been subjected to the violations and unlawful employment practices described
`herein, and who, as a result, has suffered injury in fact and loss of money and property.
`
`14.
`Plaintiff MARIA VARGAS is a resident of Stanislaus County, California. At
`relevant times herein, she has been employed by Defendant BLUE DIAMOND GROWERS INC.
`as an employee at facilities owned, leased, and/or operated by Defendant BLUE DIAMOND
`GROWERS INC. in and around Stanislaus, California, and has been employed by Defendants
`BLUE DIAMOND GROWERS INC. as a non-exempt employee. During the relevant time period,
`Plaintiff MARIA VARGAS worked for Defendants BLUE DIAMOND GROWERS within the
`County of Stanislaus as a non-exempt employee. She performed work for BLUE DIAMOND
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`GROWERS at various times during the relevant time period through the present and, among other
`things, was not paid appropriately over the period of her employment. Plaintiff MARIA VARGAS
`is an aggrieved employee who has been subjected to the violations and unlawful employment
`practices described herein, and who, as a result, has suffered injury in fact and loss of money and
`property.
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`15.
`Plaintiff ELBA VIZACAINO is a resident of Stanislaus County, California. At
`relevant times herein, she has been employed by Defendant BLUE DIAMOND GROWERS INC.
`as an employee at facilities owned, leased, and/or operated by Defendant BLUE DIAMOND
`GROWERS INC. in and around Stanislaus, California, and has been employed by Defendants
`BLUE DIAMOND GROWERS as a non-exempt employee. During the relevant time period,
`Plaintiff ELBA VIZCAINO worked for Defendants BLUE DIAMOND GROWERS within the
`County of Stanislaus as a non-exempt employee. She performed work for BLUE DIAMOND
`GROWERS at various times during the relevant time period through the present and, among other
`things, was not paid appropriately over the period of her employment. Plaintiff ELBA VIZCAINO
`is an aggrieved employee who has been subjected to the violations and unlawful employment
`practices described herein, and who, as a result, has suffered injury in fact and loss of money and
`property.
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`Defendants
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`16. The following allegations as to the Defendants are made on information and belief,
`and are likely to have evidentiary support after a reasonable opportunity for further investigation or
`discovery.
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`17. At all relevant times, BLUE DIAMOND GROWERS is a California corporation,
`which conducted and conducts business by operating an almond processing plant in California.
`BLUE DIAMOND GROWERS operates almond processing plants in Salida, Sacramento and
`Turlock and maintains a business address of 1802 C Street, Sacramento CA, 95811. At all relevant
`times, BLUE DIAMOND GROWERS owned, controlled, or operated a business or establishment
`that employed persons within the meaning of IWC Wage Order 8, 8 Cal. Code of Regs. § 11050
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`and operated as a direct employer of Plaintiffs LUIS BARAJAS, MARIA VARGAS and ELBA
`VIZCAINO and other similarly situated employees. Hereinafter, “EMPLOYER DEFENDANT”
`shall refer to Defendant BLUE DIAMOND GROWERS. During all relevant times alleged herein,
`BLUE DIAMOND GROWERS employed Plaintiffs LUIS BARAJAS, MARIA VARGAS and
`ELBA VIZCAINO and similarly situated persons as non-exempt employees and committed in
`California and in this District the acts and/or caused the violations complained of herein. Plaintiffs
`also allege that BLUE DIAMOND GROWERS is a “person” who violated or caused to be violated
`California Labor Code §§ 558, 1197.1, and IWC Wage Order 8.
`
`18. At all relevant times, DENISE HORN, an individual, conducted and conducts
`business in Stanislaus County and maintains a business address of 4800 Sisk Road, Salida,
`California 95356. At all relevant times, DENISE HORN conducted business in California. Plaintiffs
`allege that DENISE HORN, is a “person” who violated or caused to be violated California Labor
`Code §§ 558, 1197.1 and IWC Wage Order 8.
`
`19. At all relevant times, PATRICIA AGUILAR, an individual, conducted and conducts
`business in Stanislaus County and maintains a business address of 4800 Sisk Road, Salida,
`California 95356. At all relevant times, PATRICIA AGUILAR conducted business in California.
`Plaintiffs allege that PATRICIA AGUILAR, is a “person” who violated or caused to be violated
`California Labor Code §§558, 1197.1, and IWC Wage Order 8.
`
`20. At all relevant times, RESHAM KLAIR, an individual, conducted and conducts
`business in Stanislaus County and maintains a business address of 4800 Sisk Road, Salida,
`California 95356. At all relevant times, RESHAM KLAIR conducted business in California.
`Plaintiffs allege that RESHAM KLAIR, is a “person” who violated or caused to be violated
`California Labor Code §§558, 1197.1, and IWC Wage Order 8
`
`21. The true names and capacities, whether individual, corporate, associate, or
`otherwise, of Defendants sued herein as DOES 1 through 40, inclusive, are currently unknown to
`Plaintiffs, who therefore sues DOES 1 through 40 by such fictitious names under Federal Rule of
`Civil Procedure 15(c) and California Code of Civil Procedure § 474. Plaintiffs are informed and
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`believe, and based thereon allege, that each Defendant designated herein as a DOE is legally
`responsible in some manner for the unlawful acts referred to herein. Plaintiffs will seek leave of
`court to amend this Complaint to reflect the true names and capacities of the Defendants designated
`hereinafter as DOES when such identities become known.
`22.
`Plaintiffs and the Class bring this action pursuant to the Fair Labor Standards Act,
`California Labor Code and IWC wage orders, seeking unpaid minimum wages, regular wages,
`premium overtime wages, rest and meal period wages, statutory penalties, liquidated damages,
`declaratory, injunctive and other equitable relief, interest, reasonable attorneys’ fees, and costs of
`suit.
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`23.
`Plaintiffs and the Class, pursuant to the Unfair Competition Law (“UCL”), Business
`and Professions Code §§ 17200 et seq., also seek injunctive relief, declaratory relief, restitution,
`and restitutionary disgorgement of all wages earned by Plaintiff and the class but retained by the
`EMPLOYER DEFENDANT as a result of their failure to comply with the above laws.
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`24.
`Plaintiff is informed and believes, and based thereon alleges, that each Defendant
`acted in all respects pertinent to this action as the agent of the other Defendant, carried out a joint
`scheme, business plan, or policy in all respects pertinent hereto, and the acts of each Defendant are
`legally attributable to the other Defendant. “Defendant” herein means each of the Defendants as
`well as all of them.
`IV. FACTUAL BACKGROUND
`
`25. This is a class action pursuant to Federal Rules of Civil Procedure (“FRCP”), Rule
`23 to vindicate rights afforded to Plaintiffs and the Class by the Fair Labor Standards Act (29 U.S.C.
`§§201, et seq.), the California Labor Code, and California Business and Professions Code §§ 17200
`et seq. The claims of this lawsuit spring from a pattern of employer misconduct and wrongdoing
`that has characterized the labor system in much of the packing and hulling industry, where unpaid
`and improperly paid labor, as alleged herein, are commonplace and regular practices. The
`Defendants alleged herein pack and hull almonds. The unlawful practices and policies alleged are
`widespread and entrenched in the industry. The practices of the industry are uniform, or nearly
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`Case 2:20-at-00470 Document 1 Filed 05/13/20 Page 8 of 27
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`uniform among many packing and hulling facilities, at least in part due to organizations that spread
`improper employment practices. The following paragraphs detail specific violations of law
`comprising the wage-related claims applicable to Plaintiff and other similarly situated employees.
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`26.
`For at least four years prior to the filing of this action and through to the present,
`Defendants and their subsidiaries, parents, or affiliate companies have maintained and enforced
`unlawful labor policies against employees that revolve around Defendants’ compensation policies
`and their record-keeping procedures.
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`27. EMPLOYER DEFENDANTS failed to compensate Plaintiffs and the Class for all
`“hours worked” and failed to pay minimum wage and overtime premium wages for work performed
`in violation of federal and California wage and hour laws. This includes, but is not limited to,
`overtime hours worked that were either not compensated, or compensated at rates lower than the
`applicable overtime premium wage rate and/or without properly calculating the regular rate of pay
`for purposes of paying overtime, and hours that were not compensated at double the regular wage.
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`28.
`Plaintiffs, on behalf of themselves and the Class they seek to represent bring this
`action pursuant to California Labor Code §§ 201, 202, 203, 204, 205.5, 214, 216, 218, 218.6, 221,
`226, 226.7, 510, 512, 1174, 1194, 1194.2, 1197, 1199, and 2802 and Business & Professions Code
`§§ 17200 et seq. and seeks unpaid and underpaid overtime and double time wages, statutory
`penalties, liquidated damages, declaratory, injunctive and other equitable relief, reasonable
`attorneys’ fees and costs of suit, injunctive relief, declaratory relief, restitution, and disgorgement
`of all profits or benefits retained by Defendants as a result of their failure to comply with the above
`laws.
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`29.
`Plaintiffs allege that Defendant BLUE DIAMOND GROWERS is the employer with
`respect to Plaintiffs or other similarly situated employees. Plaintiff LUIS BARAJAS was employed
`with Defendant BLUE DIAMOND GROWERS from March 2005 until August 15, 2018. Plaintiff
`MARIA VARGAS was employed with Defendant BLUE DIAMOND GROWERS from January 1,
`2008 to March 25, 2018. Plaintiff ELBA VIZCAINO was employed with Defendant BLUE
`DIAMOND GROWERS from August 1997 to March 12, 2018.
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`30. On information and belief, Defendant BLUE DIAMOND GROWERS was on notice
`of the improprieties alleged herein by its employees, Plaintiffs and other similarly situated
`employees they seek to represent, and intentionally refused to rectify their unlawful policies.
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`31. The EMPLOYER DEFENDANT failure to compensate non-exempt employees for
`all “hours worked,” failure to pay for all hours worked at the required overtime or double time
`premium rate, in addition to the other violations alleged above, during all relevant times herein was
`willful and deliberate.
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`32. The EMPLOYER DEFENDANT failed to provide timely and uninterrupted meal
`periods or pay premium wages in lieu thereof. The EMPLOYER DEFENDANT also failed to
`provide timely and uninterrupted rest breaks or pay premium wages in lieu thereof.
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`33. The EMPLOYER DEFENDANT has made it difficult to account with precision for
`the unlawfully withheld wages due the EMPLOYER DEFENDANT’s non-exempt employees,
`including Plaintiffs, during all relevant times herein, because they have not implemented a record-
`keeping method to record all hours worked and wages earned by their employees as required for
`non-exempt employees by California Labor Code §§ 226 and 1174(d).
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`CLASS ACTION ALLEGATIONS
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`34.
`Plaintiffs brings this action on behalf of themselves and all others similarly situated
`as a class action on behalf of a Rule 23 opt-out California class and as an opt-in FLSA Collective
`Action pursuant to 29 U.S.C. §216 (b). Plaintiff seeks to represent the following Class and Collective
`composed of, and defined, as follows:
`
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`California Class: All persons who are employed or have been employed by
`BLUE DIAMOND GROWERS in the State of California who, within four (4)
`years of the filing of the Complaint in this case, have worked as non-exempt
`hourly employees and were not paid all lawful wages or not paid statutory
`penalties; and
`FLSA Collective: All persons who are employed or have been employed by
`BLUE DIAMOND GROWERS in the State of California who, within three (3)
`years of the filing of the Complaint in this case, have worked as non-exempt
`hourly employees and were not paid all lawful wages.
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`35.
`Plaintiffs may amend the above class definitions as permitted or required by this
`Court. This action has been brought and may properly be maintained as a class action under the
`provisions of Rule 23 of the Federal Rules of Civil Procedure and FLSA because there is a well-
`defined community of interest in the litigation and the proposed Class is easily ascertainable by
`means of Defendants’ records.
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`A. Numerosity
`36. The potential members of the above Class as defined are so numerous that joinder of
`all the members of the Class is impracticable. While the precise number of members of the Class
`has not been determined at this time, Plaintiff is informed and believes that the Class consists of
`several hundred to several thousand employees, the vast majority of them in the State of California,
`in positions as non-exempt employees dispersed throughout this Judicial District, and who are or
`have been affected by the unlawful practices as alleged herein.
`37. Accounting for employee turnover during the relevant periods necessarily increases
`this number substantially. On information and belief, Plaintiffs allege the Defendant’s employment
`records will provide information as to the number and location of the members of the Class. Joinder
`of all members of the proposed Class is not practicable.
`B. Commonality
`38. There are questions of law and fact common to the Class predominating over any
`questions affecting only individual Class Members. These common questions of law and fact
`include, without limitation:
`(a) Whether Defendants failed and continue to fail to pay overtime compensation
`in violation of the FLSA, 29 U.S.C. § 201, et seq.;
`(b) Whether Defendants violated the California Labor Code and applicable wage
`orders by not compensating non-exempt employees for “all hours worked”;
`(c) Whether Defendants violated the California Labor Code and applicable wage
`orders by compensating non-exempt employees at rates below the required overtime rate;
`(d) Whether Defendants violated the California Labor Code and applicable wage
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`orders by failing to provide daily rest periods to non-exempt employees for every four hours or major
`fraction thereof worked and failing to compensate said employees one hour’s wages in lieu of rest
`periods;
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`(e) Whether Defendants violated the California Labor Code and applicable wage
`orders by failing to provide a timely, complete, and uninterrupted meal period to non-exempt
`employees on days they worked in excess of five (5) hours per day without timely being provided a
`meal period before the fifth (5th) hour of work, and failing to compensate said employees one hour’s
`wages in lieu of timely, complete, and uninterrupted meal periods;
`(f) Whether Defendants violated the California Labor Code and applicable wage
`orders by failing to, among other violations, maintain accurate records of employees’ earned wages
`and work periods, itemize in wage statements all hours worked and wages earned, and accurately
`maintain records pertaining to Plaintiff and the Class she seeks to represent;
`(g) Whether Defendants violated the California Labor Code and applicable wage
`orders by failing to pay all earned wages and/or premium wages due and owing at the time that any
`Class member’s employment with Defendants terminated;
`(h) Whether Defendants violated California Business and Professions Code
`§§ 17200 et seq. by unlawfully deducting wages, or failing to pay wages to non-exempt employees
`and converting same to Defendants’ own use; unlawfully requiring non-exempt employees to work
`at wage rates below the minimum wage and converting same to Defendants’ own use; failing to
`provide rest and timely meal periods without compensating non-exempt employees one hour’s pay
`for each instance such periods were not provided and converting same to Defendants’ own use;
`failing to pay wages and compensation for denied rest periods and late meal periods due and owing
`at the time a Class Member’s employment with Defendants terminated; and failing to keep accurate
`records, causing injury to employees;
`(i) Whether Defendants violated Business and Professions Code §§ 17200 et seq.
`by violating the fundamental public policy underlying the California Labor Code and applicable
`wage orders;
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`(j) Whether Plaintiffs and the Class Members are entitled to declaratory,
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`COMPLAINT - DEMAND FOR JURY TRIAL
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`Case 2:20-at-00470 Document 1 Filed 05/13/20 Page 12 of 27
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`injunctive and other equitable relief pursuant to Business and Professions Code §§ 17200 et seq.;
`(k) Whether Plaintiffs and the Class Members are entitled to damages, restitution,
`statutory penalties, declaratory, injunctive and other equitable relief, attorney’s fees and costs, and
`other relief pursuant to the California Labor Code, the applicable wage orders, and Business and
`Professions Code §§ 17200, et seq.
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`C. Typicality
`34.
`The claims of the named Plaintiffs are typical of the claims of the Class. Plaintiffs
`and all members of the Class sustained injuries and damages arising out of and caused by
`Defendants’ common course of conduct in violation of California laws, regulations, and statutes as
`alleged herein.
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`D. Adequacy of Representation
`Plaintiffs will fairly and adequately represent and protect the interests of the members
`35.
`of the Class. Counsel who represent Plaintiffs are competent and experienced in litigating large
`employment class actions.
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`E. Superiority of Class Action
`A class action is superior to other available means for the fair and efficient
`36.
`adjudication of this controversy. Individual joinder of all Class Members is not practicable, and
`questions of law and fact common to the Class predominate over any questions affecting only
`individual members of the Class. Each member of the proposed Class has been damaged and is
`entitled to recovery by reason of Defendants’ unlawful policy and/or practice of failing to
`compensate Class Members for all wages earned and engaging in the unlawful practices herein
`complained of, and denying Class Members rest and meal periods without legal compensation.
`37.
`Class action treatment will allow those similarly situated persons to litigate their
`claims in the manner that is most efficient and economical for the parties and the judicial system. It
`is unlikely that individual class members have any interest in individually controlling separate
`actions in this case. Class members’ lack of knowledge of the legal system and limited economic
`resources would deprive most class members of the practical opportunity to pursue their claims were
`this class action not certified.
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`Case 2:20-at-00470 Document 1 Filed 05/13/20 Page 13 of 27
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`Plaintiffs are unaware of any difficulties that are likely to be encountered in the
`38.
`management of this action that would preclude its maintenance as a class action. The benefits of
`maintaining this action on a class basis far outweigh any administrative burden in managing the class
`action. Conducting the case as a class action would be far less burdensome than prosecuting
`numerous individual actions.
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`V. CLAIMS FOR RELIEF
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`FIRST CLAIM FOR RELIEF
`VIOLATION OF THE FAIR LABOR STANDARDS ACT: FAILURE TO PAY
`OVERTIME WAGES
`(FAIR LABOR STANDARDS ACT (FLSA), 29 U.S.C. §§ 201 et seq.)
`(ALL PLAINTIFFS AGAINST EMPLOYER DEFENDANT)
`Plaintiffs and the Class incorporate all preceding paragraphs as though fully set forth
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`39.
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`herein.
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`40. On information and belief and at all relevant times, the EMPLOYER DEFENDANT
`has been, and continues to be, an “employer” engaged in interstate “commerce” and/or in production
`of “goods” for “commerce” within the meaning of the FLSA, 29 U.S.C §203. At all relevant times,
`the EMPLOYER DEFENDANT employed, and continues to employ workers, including Plaintiffs
`and other similarly situated employees.
`41. The FLSA requires each covered employer,
`the EMPLOYER
`including
`DEFENDANT, to compensate all nonexempt employees at a rate of not less than one and one-half
`times the regular rate of pay for work performed in excess of forty hours in a workweek.
`42. The DEFENDANT EMPLOYER routinely requires and/or suffered or permitted
`Plaintiffs and similarly situated employees to work more than 40 hours per week, and routinely
`without paying them all overtime premium wages for hours worked in excess of 40 hours per week.
`43. At all relevant times, EMPLOYER DEFENDANTS, pursuant to its policies and
`practices, failed and refused to pay all overtime premiums to Plaintiffs and similarly situated
`employees for their hours worked in excess of forty hours per week.
`44. By failing to compensate Plaintiffs and similarly situated employees at a rate not less
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`COMPLAINT - DEMAND FOR JURY TRIAL
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`Case 2:20-at-00470 Document 1 Filed 05/13/20 Page 14 of 27
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`than one and one-half times the regular rate of pay for work performed in excess of forty hours in a
`workweek, the EMPLOYER DEFENDANT have violated, and continue to violate, the FLSA, 29
`U.S.C. §§201 et seq., including 29 U.S.C. §207(a)(1).
`45. As a direct and proximate result of the DEFENDANT EMPLOYER’s failure to pay
`proper wages under the FLSA, Plaintiffs and similarly situated employees incurred general damages
`in the form of lost overtime wages in an amount to be proved at trial.
`46. The DEFENDANT EMPLOYER’s intentionally, with reckless disregard for their
`responsibilities under the FLSA, and without good cause, failed to pay Plaintiffs and similarly
`situated employees their proper wages. The foregoing conduct, as alleged, constitutes a willful
`violation of the FLSA within the meaning of 29 U.S.C. § 255(a). Thus, the DEFENDANT
`EMPLOYER is liable to Plaintiffs and similarly situated employees for liquated damages in an
`amount equal to their lost wages over a three-year statute of limitations pursuant to 29 U.S.C. §§
`216(b) & 255(a) of the FLSA.
`47.
`Plaintiffs will concurrently file their signed Consent to Sue forms with this complaint
`pursuant to § 16(b) of the FLSA, 29 U.S.C. §§216(b) and 256. It is likely that other similarly situated
`individuals will sign consent forms and join as plaintiffs asserting FLSA claims in the future.
`48.
`Plaintiffs obtained legal assistance in order to bring this action on behalf of
`themselves and other similarly situated employees, and, as such is entitled to seek recovery of
`attorneys’ fees and costs of action to be paid by the EMPLOYER DEFENDANT, as provided by
`the FLSA, 29 U.S.C. § 216(b).
`49.
`Plaintiffs seek damages in the amount of