Fulcher v. Olan Mills (Original Complaint)

1 BLUMENTHAL, NORDREHAUG & RHOWMJ[K Norman B. Blumenthal (State Bar #068687)

2 KyleR. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066)

EIIOOHSED FILE:D

1\L !\ t·H: D /!, co tr rn y

3 2255 Calle Clara 2CII FEB 22 P/'1 3: 12

'CLERK OF THE SUPLf.no;~ CO!Jf~T La Jolla, CA 92037 4 Telephone: (858)55 1-1223

Facsimile: (858) 551-1232 5 Website: www.bamlawca.com

6 Attorneys for Plaintiff

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

liN AND FOR THE COUNTY OF ALAMEDA

ARIEL J. FULCHER, an individual, on CASE No. ________ _ behalf of himself and all persons similarly situated, CLASS ACTION COMPLAINT FOR:

1. UNFAIR COMPETITION IN Plaintiff, VIOLATION OF CAL. BUS. & PROF.

CODE§§ 17200 et seq.; vs. 2. FAILURE TO PAY OVERTIME

WAGES IN VIOLATION OF CAL. LAB. OLAN MILLS, INC.; and Does 1 through CODE§§ 510, 1194 & 1198; and, SO, 3. FAILURE TO PROVIDE

ACCURATE ITEMIZED WAGE Defendant. STATEMENTS IN VIOLATION OF

CAL. LAB. CODE § 226.

DEMAND FOR A JURY TRIAL

Plaintiff Ariel J. Fulcher ("PLAINTIFF"), an individual, alleges upon information and 26

belief, except for his own acts and knowledge which are based on personal knowledge, the 27 following:

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CLASS ACTION COMPLAINT

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NATURE OF THE ACTION

1. Defendant Olan Mills, Inc. hereinafter also referred to as "OLAN MILLS" or

"DEFENDANT" operates a network of professional portrait studios within Kmart, Belk, Macy's

and other stores throughout the United States and Puerto Rico. The company's products and

services include portrait CD's, portrait sizes, portrait galleries, greeting cards,

dreamprint/pastels, montage designs, sports cards and borders, portrait panels/ duets, treasures,

and black and white color enhanced products. OLAN MILLS also publishes church directories

to churches and other organizations as well as family portraits to their members. In addition,

the company offers its products and services online through the company website,

olanmills.com.

2. Plaintiff Ariel J. Fulcher was a non-exempt, hourly employee of OLAN MILLS

in California. During the CLASS PERIOD, OLAN MILLS did not have in place an immutable

timekeeping system to accurately record and pay the PLAINTIFF and the other Class Members

for the actual number of hours they worked each day. OLAN MILLS systematically and

unlawfully deleted and/or reduced the number of hours worked by employees in order to avoid

paying employees the applicable overt)me rates. OLAN MILLS reduced the number of hours

worked by employees by systematically clocking out employees before the end of their shift.

As a result, employees regularly worked offthe clock without compensation and OLAN MILLS

regularly recorded reduced hours in the timekeeping system by not recording overtime hours

worked in violation of Cal. Lab. Code § 226. Therefore, the PLAINTIFF and the Class

Members forfeited hours worked and did not receive compensation for all hours worked,

including but not limited to overtime hours worked. OLAN MILLS also failed to provide

mandatory uninterrupted thirty (30) minute meal breaks to the PLAINTIFF and the Class

Members. This practice was a direct result of OLAN MILLS' uniform policy and practice not

to properly staff the portrait studios so as to provide employees with uninterrupted thirty (30)

minute meal breaks. As a result, the PLAINTIFF and the Class Members forfeited mandatory

meal breaks each workday without additional compensation in accordance with

DEFENDANT's strict, corporate and uniform guidelines. OLAN MILLS' uniform policy and

CLASS ACTION COMPLAINT -2-

1 practice not to pay employees for all hours worked is evidenced by DEFENDANT's business

2 records and timekeeping system.

3 3. PLAINTIFF brings this Action against OLAN MILLS on behalf of himself

4 and on behalf of a class consisting of all non-exempt, hourly employees who worked for

5 OLAN MILLS in California during the CLASS PERIOD ("CLASS" or "Class Members").

6 PLAINTIFF brings this Class Action to fully compensate the Class Members for their losses

7 incurred during the CLASS PERIOD caused by OLAN MILLS' uniform policy and practice

8 which fails to compensate the PLAINTIFF, and the Class Members, for all hours worked.

9 OLAN MILLS' uniform policy and practice alleged herein is an unfair, deceptive and

10 unlawful practice whereby OLAN MILLS retained and continues to retain wages due

11 PLAINTIFF, and the Class Members, for all hours worked. PLAINTIFF, and the Class

12 Members, seek an injunction enjoining such conduct by OLAN MILLS in the future, relief

13 for the named PLAINTIFF and Class Members who have been economically injured by

14 DEFENDANT's past and current unlawful conduct, and all other appropriate legal and

15 equitable relief.

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1'HE PARTIES

Defendant Olan Mills, Inc. ("OLAN MILLS" or "DEFENDANT"), a

19 Delaware corporation, was founded in 1987 and is based and headquartered in Chattanooga,

20 Tennessee. At all relevant times mentioned herein, OLAN MILLS conducted and continues

21 to conduct substantial and regular business throughout California.

22 5. The true names and capacities, whether individual, corporate, subsidiary,

23 partnership, associate or otherwise of DEFENDANT Does 1 through 50, inclusive, are

24 presently unknown to the PLAINTIFF who therefore sues these defendants by such fictitious

25 names pursuant to Cal. Civ. Proc. Code§ 474. PLAINTIFF will seek leave to amend this

26 Complaint to allege the true names and capacities of Does 1 through 50, inclusive, when

27 they are ascertained. PLAINTIFF is informed and believes, and based upon that information

28 and belief alleges, that the defendants named in this Complaint, including Does 1 through


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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. The agents, servants, and/or employees of DEFENDANT and each of them

acting on behalf of DEFENDANT acted within the course and scope of his, her or its

authority as the agent, servant, and/or employee of DEFENDANT, and personally

participated in the conduct alleged herein on behalf of DEFENDANT with respect to the

conduct alleged herein. Consequently, DEFENDANT is jointly and severally liable to the

PLAINTIFF and the other members of the CLASS, for the loss sustained as a proximate

result of the conduct of DEFENDANT's agents, servants, and/or employees.

7. At all relevant times mentioned herein, Plaintiff Ariel J Fulcher

("PLAINTIFF") resided in California. PLAINTIFF was employed by OLAN MILLS in

California as a non-exempt, hourly Photographer from December 8, 2010 to December 23,

20 1 0. PLAINTIFF's job duties primarily consisted of handling the day-to-day studio

operation which involved answering messages, running the front desk, scheduling

appointments, distributing pick-ups and taking and viewing photographs. Plaintiff was paid

·on an hourly basis and generally worked twelve (12) to sixteen (16) hours each workday.

THE CONDUCT

8. OLAN MILLS systematically failed to correctly pay the PLAINTIFF and the

Class Members for all the hours they worked, including hours worked in excess of eight (8) in

a workday and forty ( 40) in a workweek. OLAN MILLS used a mutable timekeeping system

in which hours could be unilaterally erased or altered by OLAN MILLS such that there existed

no immutable timekeeping system that accurately recorded the true number ofhours worked by

the Class Members. OLAN MILLS' practice resulted in the Class Members not being able to

immutably record the accurate number of straight time hours worked and also hours in excess

of eight (8) per workday and forty ( 40) per workweek so that OLAN MILLS could avoid paying

the Class Members premium wages. OLAN MILLS also failed to provide mandatory

uninterrupted thirty (30) minute meal breaks to the PLAINTIFF and the Class Members each


1 workday. This practice was a direct result ofOLAN MILLS' uniform policy and practice to not

2 properly staff the portrait studios so as to provide employees with uninterrupted thirty (30)

3 minute meal breaks. As a result, the PLAINTIFF and the Class Members forfeited mandatory

4 meal breaks each workday without additional compensation in accordance with

5 DEFENDANT's strict, corporate and uniform guidelines

6 9. In violation of the applicable sections of the California Labor Code and the

7 requirements of the Industrial Welfare Commission ("IWC") Wage Order, OLAN MILLS as

8 . a matter of corporate policy, practice and procedure, intentionally, knowingly and systematically

9 failed to properly compensate the PLAINTIFF and the Class Members for all hours worked, by

10 systematically deleting and/or reducing the true number of hours worked by employees.

11 Specifically, OLAN MILLS had in place a mutable timekeeping system that did not accurately

12 record the true number of hours worked by employees. OLAN MILLS, in fact, reduced the

13 number ofhours worked by employees by systematically clocking out employees before the end

14 of their shift. As a result, employees regularly worked off the clock without compensation and

15 OLAN MILLS regularly recorded reduced hours in the timekeeping system by not recording

16 overtime hours worked in violation of Cal. Lab. Code § 226, Therefore, the PLAINTIFF and

17 the Class Members forfeited hours worked and did -not receive compensation for all hours

18 worked, including but not limited to overtime hours worked. This uniform policy and

19 systematic practice ofOLAN MILLS was intended to purposefully avoid the payment of wages

20 and premium wages required by California law which allows OLAN MILLS to illegally profit

21 and gain an unfair advantage over competitors. To the extent equitable tolling operates to toll

22 claims by the CLASS against OLAN MILLS, the CLASS PERIOD should be adjusted

23 accordingly.

24 10. OLAN MILLS instituted a company-wide policy whereby OLAN MILLS used

25 a mutable timekeeping system in which hours could be unilaterally erased or altered by OLAN

26 MILLS such that there existed no immutable timekeeping system that accurately recorded the

27 true number of hours worked by the Class Members. OLAN MILLS reduced the number of

28 hours worked by employees by systematically clocking out employees before the end of their


1 shift. As a result, employees regularly worked off the clock without compensation and OLAN

2 MILLS regularly recorded reduced hours in the timekeeping system by not recording overtime

3 hours worked in violation of California law. Therefore, the PLAINTIFF and the Class

4 Members forfeited hours worked and did not receive compensation for all hours worked,

5 including but not limited to overtime hours worked. In addition, OLAN MILLS failed to

6 provide mandatory uninterrupted thirty (30) minute meal breaks to the PLAINTIFF and the

7 Class Members each workday. This practice was a direct result of OLAN MILLS' uniform

8 policy and practice to not properly staff the portrait studios so as to provide employees with

9 uninterrupted thirty (30) minute meal breaks. As a result, the PLAINTIFF and the Class

10 Members forfeited mandatory meal breaks each workday without additional compensation in

11 accordance with DEFENDANT's strict, corporate and uniform guidelines. These systematic

12 and company-wide policies and practices originating at the corporate level are the cause of the

13 illegal pay practices as described herein.

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15 THE CLASS

16 11. PLAINTIFF brings this Action against OLAN MILLS pursuant to California

17 Code of Civil Procedure, Section 3 82, on behalf of himself and on behalf of a class consisting

18 of all non-exempt, hourly employees who worked for OLAN MILLS in California during the

19 CLASS PERIOD ("CLASS" or "Class Members"). The applicable "CLASS PERIOD" is

20 defined as the period beginning on the date four ( 4) years prior to the filing of this Complaint

21 and ending on a date as determined by the Court.

22 12. All non-exempt, hourly employees working for OLAN MILLS in California are

23 similarly situated in that they are all subject to OLAN MILLS' uniform policy and systematic

24 practice that requires them to perform work without compensation as required by law.

25 13. During the CLASS PERIOD, OLAN MILLS uniformly violated the rights of the

26 PLAINTIFF and the Class Members under California law, without limitation, in the following

27 manners:

28 (a) Violating California Code of Regulations, Title 8, Sections 1101 0(7)


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and 11 040(7) by failing to compensate the PLAINTIFF and the Class

Members for all hours worked, including straight time and overtime;

(b) Violating California Code of Regulations, Title 8, Sections 1101 0(7)

and 11040(7), by failing to have in place an immutable timekeeping

system capable of tracking, without mutation, all of the time the

PLAINTIFF and the Class Members work that is not subject to

unilateral modification and manipulation;

(c) Violating California Labor Code Sections 204, 206.5, 510 and 1198, by

failing to pay premium wages for hours worked in excess eight (8) in

any workday and forty ( 40) in any workweek;

(d) Violating California Labor Code Section 226, by failing to provide the

PLAINTIFF and the Class Members with accurate itemized wage

(e)

(f)

statements;

Violating California Labor Code Sections 201 and 202, by failing to

tender full payment and/or restitution of wages owed to employees

whose employment with DEFENDANT has terminated;

Violating Business & Professions Code Sections 17200 et seq., by

committing acts of unfair competition in violation of the California

Labor Code and public policy, by failing to provide the PLAINTIFF

and the Class Members with uninterrupted thirty (30) minute meal

breaks; and,

(g) Violating Business & Professions Code Sections 17200 et seq., hy

committing acts of unfair competition in violation of the California

Labor Code and public policy, by failing to pay the PLAINTIFF and the

Class Members wages for all hours worked as a result of clocking out

employees before the end of their shift.

27 14. As a result of OLAN MILLS' uniform policies, practices and procedures,

28 there are numerous questions of law and fact common to all Class Members who worked for


1 OLAN MILLS in California during the CLASS PERIOD. These questions include, but are

2 not limited to, the following:

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(a) Whether OLAN MILLS' policies, practices and pattern of conduct

described in this Complaint was and is unlawful;

(b) Whether OLAN MILLS failed to accurately pay the PLAINTIFF and

the Class Members for all hours worked, including overtime hours;

(c) Whether OLAN MILLS instructed, programmed, or permitted

employees to state an incorrect number of hours worked;

(d) Whether OLAN MILLS failed to maintain an immutable timekeeping

(e)

(f)

system so as to record true and accurate time records for employees;

Whether OLAN MILLS failedto maintain true and accurate time

records for all hours worked by the Class Members;

Whether OLAN MILLS failed to provide employees with uninterrupted

thirty (30) minute meal breaks;

(g) Whether OLAN MILLS failed to provide employees with accurate

itemized wage statements;

(h) Whether OLAN MILLS' compensatory time policy and practice

complies with the requirements ofLabor Code§ 204.3;

(i)

(j)

Whether OLAN MILLS has engaged in unfair competition by the

above-listed conduct; and,

Whether OLAN MILLS' conduct was willful.

22 15. This Class Action meets the statutory prerequisites for the maintenance of a

23 Class Action as set forth in California Code of Civil Procedure, Section 382, in that:

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(a) The persons who comprise the CLASS are so numerous that the joinder

of all such persons is impracticable and the disposition of their claims

as a class will benefit the parties and the Court;

(b) Nearly all factual, legal, statutory, declaratory and injunctive relief

issues that are raised in this Complaint are common to the CLASS and


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(c)

(d)

will apply uniformly to every member of the CLASS;

The claims of the representative PLAINTIFF are typical of the claims

of each member of the CLASS. PLAINTIFF, like all the other Class

Members, was not correctly compensated for all hours worked because

of DEFENDANT's company policies and practices the PLAINTIFF

sustained economic injuries arising from OLAN MILLS' violations of

the laws of California. PLAINTIFF and the Class Members are

similarly or identically harmed by the same unfair, deceptive, unlawful

and pervasive pattern of misconduct engaged in by OLAN MILLS; and,

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. There are no

material conflicts between the claims of the representative PLAINTIFF

and the Class Members that would make class certification

inappropriate. Counsel for the CLASS will vigorously assert the claims

of all Class Members.

In addition to meeting the statutory prerequisites to a Class Action, this Action

18 is properly maintained as a Class Action pursuant to California Code of Civil Procedure,

19 Section 3 82, in that:

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(a) Without class certification and determination of declaratory, injunctive,

statutory and other legal questions within the class format, prosecution

of separate actions by individual members of the CLASS will create the

risk of:

(i) Inconsistent or varying adjudications with respect to individual

members of the CLASS which would establish incompatible

standards of conduct for the parties opposing the CLASS; or,

(ii) Adjudication with respect to individual members of the CLASS

which would as a practical matter be dispositive of interests of


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(b)

(c)

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 on grounds generally

applicable to the CLASS, making appropriate class-wide relief with

respect to the CLASS as a whole in that OLAN MILLS' company

policies and practices failed to compensate employees for all hours

worked, and failed to properly apply the overtime rate of pay applicable

to all hours worked in excess of eight (8) in any workday and forty ( 40)

in any workweek; and,

Common questions of law and fact exist as to the Class Members and

predominate over any question affecting only individual members, and

Class Action is superior to other available methods for the fair and

efficient adjudication of the controversy, including consideration of:

(i) The interests of the members of the CLASS in individually

controlling the prosecution or defense of separate actions;

(ii) The extent and nature of any litigation concerning the

controversy already commenced by or against members of the

CLASS;

(iii) The desirability or undesirability of concentrating the litigation

of the claims in the patiicular forum;

(iv) The difficulties likely to be encountered in the management of a

Class Action; and,

(v) The basis of OLAN MILLS' policies and practices uniformly

applied to all Class Members.

This Court should permit this Action to be maintained as a Class Action

26 pursuant to California Code of Civil Procedure, Section 382, because:

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(a) The questions of law and fact common to the CLASS predominate over

any question affecting only individual members;


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(b)

(c)

(d)

(e)

(f)

(g)

(h)

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;

The Class Members are so numerous that it is impractical to bring all

Class Members before the Court;

PLAINTIFF, and the Class Members, will not be able to obtain effective

and economic 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 common law and statutory violations and other

improprieties, and in obtaining adequate compensation for the damages

and injuries which OLAN MILLS' actions have inflicted upon the

CLASS;

There is a community of interest in ensuring that the combined assets and

available insurance of OLAN MILLS are sufficient to adequately

compensate the members ofthe CLASS for any injuries sustained;

OLAN MILLS has acted or has refused to act on grounds generally

applicable to the CLASS, thereby making final class-wide relief

appropriate with respect to the CLASS as a whole; and,

The Class Members are readily ascertainable from the business records

ofOLAN MILLS. The CLASS consists of all ofOLAN MILLS' non-

exempt, hourly employees of OLAN MILLS in California who were

subject to the above described uniform policies and practices in

California during the applicable time period.

JURISDICTION & VENUE

This Court has jurisdiction over this Action pursuant to California Code of Civil

27 Procedure, Section 410.10 and California Business & Professions Code, Section 17203. This

28 Action is brought as a Class Action on behalf of similarly situated employees ofOlan Mills, Inc.


1 pursuant to California Code of Civil Procedure, Section 3 82.

2 19. Venue is proper in this Court pursuant to California Code of Civil Procedure

3 Sections 395 and 395.5, because Olan Mills, Inc. (i) currently maintains and at all relevant

4 times maintained offices and facilities in this County, and (ii) committed the wrongful

5 conduct herein alleged in this County against members of the CLASS.

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FIRST CAUSE OF ACTION

For Unlawful, Unfair and Deceptive Business Practices

[Cal. Bus. And Prof. Code §§ 17200 et seq.]

(By PLAINTIFF and the CLASS and against DEFENDANT)

PLAINTIFF, and the Class Members, reallege and incorporate by this reference,

12 as though fully set forth herein, paragraphs 1 through 19 of this Complaint.

13 21. DEFENDANT is a "persons" as that term is defined under the California

14 Business & Professions Code, Section 17021.

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22. Section 17200 of the California Business & Professions Code 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 or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice whtch constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.

24 23. By the conduct alleged herein, OLAN MILLS' uniform policies and practices

25 violated and continue to violate California law, and specifically provisions of the Wage Orders,

26 the California Labor Code, including Sections 201, 202, 204, 206.5, 510 and 1198, and the

27 California Code ofRegulations, Title 8, Sections 11010 and 11040, for which this Court should

28 issue equitable and injunctive relief, pursuant to Section 17203 of the California Business &


1 Professions Code, including restitution of wages wrongfully withheld.

2 24. By the conduct alleged herein, OLAN MILLS' practices were unfair in that these

3 practices violate public policy, are immoral, unethical, oppressive, unscrupulous or substantially

4 injurious to employees, and are without valid justification or utility, for which this Court should

5 issue equitable and injunctive relief, pursuant to Section 17203 of the California Business &

6 Professions Code, including restitution of wages wrongfully withheld.

7 25. By the conduct alleged herein, OLAN MILLS' practices were deceptive and

8 fraudulent in that OLAN MILLS' uniform practice was to represent to its employees that they

9 were not entitled to compensation for all hours worked, when in fact these representations were

10 false and likely to deceive, for which this Court should issue equitable and injunctive relief,

11 pursuantto Section 17203 of the California Business and Professions Code, including restitution

12 of wages wrongfully withheld.

13 26. By and through the unfair and unlawful business practices described herein,

14 OLAN MILLS has obtained valuable property, money, and services from the PLAINTIFF, and

15 from the Class Members, and has deprived them of valuable rights and benefits guaranteed by

16 law and contract, all to the detriment of the employees and to the benefit of DEFENDANT so

17 as to allow DEFENDANT to unfairly compete against competitors who comply with the law.

18 27. All the acts described herein as violations of, among other things, the California

19 Labor Code, California Code of Regulations, and the Industrial Welfare Commission Wage

20 Orders, are unlawful and in violation of public policy; and are immoral, unethical, oppressive,

21 and unscrupulous, are deceptive, and thereby constitute unfair, deceptive and unlawful business

22 practices in violation of the California Business and Professions Code, Sections 17200 et seq.

23 DEFENDANT's conduct was also deceptive in that DEFENDANT represented to the

24 PLAINTIFF and the others members of the CLASS thafthey were not entitled to report, record

25 and receive compensation for all hours worked, including overtime wages for hours worked in

26 excess of eight (8) in any workday and forty ( 40) in any workweek, and on the seventh (7th)

27 consecutive day. OLAN MILLS reduced the number of hours worked by employees by

28 systematically clocking out employees before the end of their shift. As a result, employees


1 regularly worked off the clock without compensation and OLAN MILLS regularly recorded

2 reduced hours in the timekeeping system by not recording overtime hours worked in violation

3 of California law. Olan Mills also failed to provide mandatory uninterrupted thirty (30) minute

4 meal breaks to the PLAINTIFF and the Class Members each workday. This practice was a

5 direct result of OLAN MILLS' uniform policy and practice to not properly staff the portrait

6 studios so as to provide employees with uninterrupted thirty (30) minute meal breaks. As a

7 result, the PLAINTIFF and the Class Members forfeited mandatory meal breaks each workday

8 without additional compensation in accordance with DEFENDANT's strict, corporate and

9 uniform guidelines.

10 28. PLAINTIFF, and the Class Members, are entitled to, and do, seek such relief as

11 may be necessary to restore to them the money and property which DEFENDANT has acquired,

12 or of which the PLAINTIFF, and the Class Members, have been deprived, by means of the

13 described unlawful and unfair business practices. The relief sought in this cause of action

14 includes payment of wages for hours worked by the Class Members, which includes both wages

15 for straight time and overtime hours.

16 29. PLAINTIFF, and the Class Members, are further entitled to, and do, seek a

17 declaration that the described business practices are unfair and unlawful and that an injunctive

18 relief should be issued restraining OLAN MILLS from engaging in any of these unfair and

19 unlawful business practices in the future.

20 30. PLAINTIFF, and the Class Members, have no plain, speedy, and/or adequate

21 remedy at law that will end the unfair and unlawful business practices of OLAN MILLS.

22 Further, the practices herein alleged presently continue to occur unabated. As a result of the

23 unfair and unlawful business practices described herein, the PLAINTIFF, and the Class

24 Members, have suffered and will continue to suffer irreparable harm unless OLAN MILLS is

25 restrained from continuing to engage in these unfair and unlawful business practices. In

26 addition, compensation to the PLAINTIFF as well as to the other members of the CLASS.

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§EOONID CAUSE OF ACTION

For FaiDlllre 'fo Pay Overtime Wages

(Cal. Lab. Code §§ 510, 1194 & 1198)

(By PLA][N'fiFF and the CLASS and against DEFENDANT)

5 31. PLAINTIFF, and the Class Members, reallege and incorporate by this reference,

6 as though fully set forth herein, paragraphs 1 through 30 ofthis Complaint.

7 32. PLAINTIFF, and the Class Members, bring a claim for DEFENDANT's willful

8 and intentional violations of the California Labor Code, Sections 510, 1194, 1198, and

9 California Code of Regulations, Title 8, Sections 11010 and 11040 for DEFENDANT's failure

10 to correctly compensate employees for all the hours they worked as a result ofDEFENDANT's

II uniform and systematic policy and practice to instruct employees not to record the true number

12 of hours they worked each workday.

13 33. Pursuant to California Labor Code Section 204, other applicable laws and

14 regulations, and public policy, an employer must timely pay its employees for all hours worked.

15 Labor Code Section 201 and 202 require DEFENDANT to pay all wages due to an employee

16 whose employment terminated.

17 34. California Labor Code Section 510 further provides that employees in California

18 shall not be employed more than eight (8) hours per workday and forty ( 40) hours per workweek

19 unless they receive additional compensation beyond their regular wages in amounts specified

20 by law.

21 35. California Labor Code Section 1194 establishes an employee's right to recover

22 unpaid wages, including overtime compensation and interest thereon, together with the costs

23 of suit. Section 1198 of the California Labor Code states that the employment of an employee

24 for longer hours than those fixed by the Industrial Welfare Commission is unlawful.

25 36. During the CLASS PERIOD, OLAN MILLS maintained a uniform wage practice

26 of paying the PLAINTIFF, and the Class Members, without regard to the number of hours they

27 actually worked. As set forth herein, DEFENDANT's policy and practice was to intentionally

28 and uniformly deny timely payment of wages due, including overtime wages, PLAINTIFF and


1 the Class Members, and OLAN MILLS in fact failed to pay these employees for all hours

2 worked.

3 37. OLAN MILLS' uniform pattern of unlawful wage and hour practices manifested,

4 without limitation, applicable to the CLASS as a whole, by implementing a uniform policy and

5 systematic practice that denied compensation to the Class Members, including the PLAINTIFF,

6 for all the hours they worked.

7 38. In committing these violations of the California Labor Code, OLAN MILLS

8 inaccurately under-reported the actual time worked and OLAN MILLS underpaid the actual

9 amount of hours worked, in violation of California Labor Code Section 206.5. OLAN MILLS

10 acted in an illegal attempt to avoid payment of earned wages, overtime compensation and other

11 benefits in violation of the California Labor Code, the Industrial Welfare Commission

12 requirements, and other applicable laws and regulations.

13 39. As a direct result ofOLAN MILLS' unlawful wage practices as alleged herein,

14 the PLAINTIFF and the Class Members did not receive proper compensation for all the hours

15 they actually worked for DEFENDANT's benefit.

16 40. California Labor Code Section 515 sets out various categories of employees who

17 are exempt from the overtime requirements of the law. None ofthese exemptions are applicable

18 to the PLAINTIFF and the Class Members. During the CLASS PERIOD, the PLAINTIFF and

19 the Class Members, were classified by DEFENDANT as non-exempt from overtime and

20 performed non-exempt job duties.

21 41. During the CLASS PERIOD, the PLAINTIFF and the Class Members were

22 classified as non-exempt from overtime by OLAN MILLS. None of the exemptions are

23 applicable to the CLASS based on their job duties. Further, the PLAINTIFF and the Class

24 Members are not subject to a valid collective bargaining agreement that would preclude the

25 causes of action contained herein this Complaint. Rather, the PLAINTIFF brings this Action

26 on behalf of himself and the members of the CLASS based on DEFENDANT's violations of

27 non-negotiable, non-waiveable rights provided by the state of California.

28 42. During the CLASS PERIOD, the PLAINTIFF and the Class Members worked


1 more hours than they were paid for and/or were paid less for hours worked that they were

2 entitled to, constituting a failure to pay all earned wages. During the CLASS PERIOD, the

3 PLAINTIFF, and the Class Members, regularly worked overtime hours.

4 43. DEFENDANT failed to accurately pay the PLAINTIFF and the Class Members

5 wages for all the hours they actually worked, including hours in excess of the maximum hours

6 permissible by law as required by the California Labor Code, Sections 510 and 1198, even

7 though the PLAINTIFF and the Class Members were regularly required to work, and did in fact

8 work, hours that OLAN MILLS never recorded, as evidenced by OLAN MILLS' business

9 records, timekeeping system and witnessed by employees.

10 44. By virtue of DEFENDANT's unlawful failure to pay compensation to the

11 PLAINTIFF and the Class Members accurately for the true number of hours they worked, the

12 PLAINTIFF and the Class Members have suffered and will continue to suffer an economic

13 injury in amounts which are presently unknown to them and which will be ascertained according

14 to proof at trial.

15 45. During the CLASS PERIOD, OLANMILLS knew or should have known that the

16 PLAINTIFF and the Class Members worked hours that they were not compensated for,

17 including hours in excess of eight (8) in any workday and forty ( 40) in any workweek. OLAN

18 MILLS systematically elected, either through intentional malfeasance or gross nonfeasance, not

19 to pay employees the correct amount for their labor as a matter of uniform, corporate policy,

20 practice and procedure, and to perpetrate this systematic scheme, OLAN MILLS refused to pay

21 employees for compensable work time.

22 46. In performing the acts and practices herein alleged in violation oflabor laws and

23 refusing to compensate the Class Members for all the hours they worked and provide the

24 requisite overtime compensation, OLAN MILLS acted and continues to act intentionally,

25 oppressively, and maliciously toward the PLAINTIFF, and toward the Class Members, with a

26 conscious of ami utter disregard for their legal rights, or the consequences to them, and with the

27 despicable intent of depriving them of their property and legal rights, and otherwise causing

28 them injury in order to increase corporate profits at the expense of the PLAINTIFF and the


1 Class Members.

2 47. OLAN MILLS' respective failure to accurately record the hours worked by the

3 CLASS and pay the proper amount of overtime compensation to the PLAINTIFF and the Class

4 Members violates IWC Wage Orders No. 1 and 4 and the California Labor Code, Sections 510,

5 1194 and 1198, and is therefore unlawful.

6 48. Therefore, the PLAINTIFF, and the Class Members, request recovery of unpaid

7 overtime compensation according to proof, interest, statutory costs, as well as the assessment

8 of any statutory penalties against DEFENDANT, in a sum as provided by the California Labor

9 Code and/or other applicable statutes. In addition, to the extent wages are determined to be

10 owed to the PLAINTIFF and the Class Members whose employment has terminated, these

11 employees are further entitled to waiting time penalties under Section 203 of the California

12 Labor Code, which are sought herein.

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THIRD CAUSE OF ACTION

For Failure to Provide Accurate l!temizel} Statements

[Cal. Lab. Code§ 226]

(By PLAINTIFF and the CLASS and against DEFENDANT)

PLAINTIFF, and the Class Members, reallege and incorporate by this reference,

19 as though fully set forth herein, paragraphs 1 through 48 of this Complaint.

20 50. Pursuant to the California Labor Code, Section 226, an employer must furnish

21 employees with an "accurate itemized statement in writing" showing all of the following items:

22 ( 1) gross wages earned, (2) total hours worked by the employee, except for any employee whose

23 compensation is solely based on a salary and who is exempt from payment of overtime under

24 subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission,

25 (3) the number ofpiecerate units earned and any applicable piece rat~ if the employee is paid

26 on a piece-rate basis, ( 4) all deductions, provided that all deductions made on written orders of

27 the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive

28 dates of the period for which the employee is paid, (7) the name of the employee and his or her


1 social security number, except that by January 1, 2008, only the last four digits of his or her

2 social security number or an employee identification number other than a social security number

3 may be shown on the itemized statement, (8) the name and address of the legal entity that is the

4 employer, and (9) all applicable hourly rates in effect during the pay period and the

5 corresponding number of hours worked at each hourly rate by the employee. See California

6 Labor Code § 226.

7 51. At all relevant times mentioned herein, OLAN MILLS violated California Labor

8 Code Section 226 with respect to the PLAINTIFF and the Class Members, without limitation,

9 in that OLAN MILLS inaccurately or completely failed to record and report all the hours they

10 actually worked on their pay stubs, including straight time and overtime hours worked, as well

11 as their gross wages earned.

12 52. This failure was the result of OLAN MILLS' intentional refusal to institute an

13 immutable timekeeping system to accurately record all hours worked by employees and OLAN

14 MILLS' orders and instructions to the PLAINTIFF and the Class Members to exclude and/or

15 delete the true amount of hours they worked, including overtime hours, from the actual hours

16 that should have been reported in the timekeeping system, and this miscalculation of the

17 applicable regular rate as herein alleged.

18 53. OLAN MILLS knowingly and intentionally failed to comply with California

19 Labor Code Section 226, causing damages to the PLAINTIFF and the Class Members. These

20 damages include, but are not limited to, unpaid wages for all hours actually worked, the costs

21 expended calculating the true hours worked and the amount of employment taxes which were

22 not properly paid to state and federal tax authorities. These damages may be difficult to

23 estimate. Therefore, the PLAINTIFF, and the Class Members, may recover liquidated damages

24 of $50.00 for the initial pay period in which the violation occurred, and $100.00 for each

25 violation in subsequent pay period pursuant to California Labor Code Section 226, in an amount

26 according to proof at the time of trial (but in no event more than $4,000.00 for the PLAINTIFF

27 and each respective member of the CLASS herein), plus statutory costs, pursuant to California

28 Labor Code Section 226(g).


1 PRAYER

2 WHEREFOR, the PLAINTIFF prays for judgment against each Defendant, jointly

3 and severally, as follows:

4 1. For the First Cause of Action:

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A) That the Court certify the First Cause of Action asserted by the CLASS as a

Class Action pursuant to California Code of Civil Procedure, Section 3 82;

B) An order temporarily, preliminarily and permanently enjoining and restraining

DEFENDANT from engaging in similar unlawful conduct as set forth herein;

and,

C) Disgorgement of DEFENDANT's ill-gotten gains into a fluid fund for

restitution of the sums incidental to DEFENDANT's violations due

PLAINTIFF and the Class Members.

For the Second and Third Causes of Action:

A) That the Court certify the Second and Third Causes of Action asserted by the

CLASS as a Class Action pursuant to California Code of Civil Procedure,

Section 382;

B) Damages for the full amount of unpaid overtime wages pursuant to Labor

Code§ 1194;

C) Penalties payable to all terminated employees in the CLASS in accordance

with Cal. Lab. Code§ 203; and,

D) The greater of all actual damages or fifty dollars ($50) for the initial pay

period in which a violation 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.

On all claims:

A) An award of interest, including prejudgment interest at the legal rate;

B) An award of penalties and cost of suit, but neither this prayer nor any other


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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; and,

Such other and further relief as the Court deems just and equitable.

Dated: February 17, 2011 6

BLUMENTHAL, NORDREHAUG & BHOWMIK ----------·--·-·--------~------····----

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~-==···----- -- ) By: "'\ --- -=--=-- ~=--·-

Norman B. Blumenthal ·---------~-Attorneys for Plaintiff -----.____


1 DEMANID FOR JlURY ']['RIAL

2 PLAINTIFF demands a jury trial on issues triable to a jury.

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Dated: February 17, 2011

Norman B. B1"nrnentha1 ·· "'·-Attorneys for Plaintiff


Documents

Fulcher v. Olan Mills (Original Complaint)