termination in violation of california 1 amended complaint… · first amended complaint 1 alan...

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FIRST AMENDED COMPLAINT

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Alan Harris (SBN 146079) HARRIS & RUBLE 655 North Central Avenue Glendale, California 91203 Telephone: 323.962.3777 Facsimile: 323.962.3004 [email protected]

David S. Harris (SBN 215224) NORTH BAY LAW GROUP 116 E. Blithedale Avenue, Suite 2 Mill Valley, California 94941 Telephone: 415.388.8788 Facsimile: 415.388.8770 [email protected]

Attorneys for Plaintiffs Leslie Veurink and Andrew Carr

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SONOMA

LESLIE VEURINK and ANDREW CARR, individually and on behalf of all others similarly situated,

Plaintiffs,

v.

BEVERLY HEALTH AND REHABILITATION SERVICES, INC., GOLDEN LIVINGCENTER - PETALUMA, GGNSC ADMINISTRATIVE SERVICES, LLC, HOSPICE PREFERRED CHOICE, INC. and DOES 1 to 10,

Defendants.

Case No. SCV 255496

FIRST AMENDED COMPLAINT – CLASS ACTION AND COLLECTIVE ACTION

1. Failure to Pay Minimum Wage andOvertime Compensation, California Labor Code 2. Failure to Provide Accurate ItemizedWage Statements (Cal. Lab. Code § 226) 3. Failure to Pay OvertimeCompensation, Fair Labor Standards Act 4. Failure to Provide Proper Response toInformation Request (Cal. Lab. Code § 226(c)) 5. Failure to Provide Adequate MealPeriods 6. Failure to Provide Adequate RestPeriods 7. Continuing Wages (Cal. Lab. Code §203) 8. Violations of Section 17200 et seq. ofthe California Business and Professions Code 9. Retaliation and WrongfulTermination in Violation of Cal. Lab. Code § 1102.5 10. Retaliation and Wrongful

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Termination in Violation of California Public Policy 11. Retaliation for Engaging in Protected Activity—California Government Code section 12940(g) 12. Sexual Orientation Discrimination—California Government Code section 12940(a)

DEMAND FOR JURY TRIAL

Plaintiffs Leslie Veurink and Andrew Carr, by and through their undersigned

attorneys, alleges as follows:

JURISDICTION AND VENUE

1. This is a civil class action seeking continuing wages, restitution, injunctive

relief, damages and attorneys’ fees and costs. Venue is proper in this judicial district,

pursuant to California Business & Professions Code section 17203 and California Code

of Civil Procedure sections 395(a) and 395.5. Defendants maintain an office, transact

business, have an agent, or are found in the County of Sonoma and are within the

jurisdiction of this Court for purposes of service of process. The unlawful acts alleged

herein had a direct effect on and were committed within the County of Sonoma, State of

California.

PARTIES

2. Plaintiff Leslie Veurink (hereinafter, “Veurink”) is an individual who,

during the time periods relevant to this Complaint, was employed by Defendants within

the City of Petaluma, State of California. Plaintiff is a resident of the State of California.

3. Plaintiff Andrew Carr (hereinafter “Carr”) is an individual who, during the

time periods relevant to this Complaint, was employed by Defendants within the City of

Petaluma, State of California. Plaintiff is a resident of the State of California. Plaintiffs

Veurink and Carr are collectively referred to herein as “Plaintiffs.”

4. Defendant BEVERLY HEALTH AND REHABILITATION SERVICES,

INC. (“BHRS”) was and is a California Corporation doing business within the State of

California. BHRS is headquartered in Fort Smith, Arkansas. Plaintiff is informed and

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believes and thereupon alleges that BHRS holds the skilled nursing facility license for a

number of Golden Living facilities throughout California, including without limitation

Defendant GOLDEN LIVINGCENTER – PETALUMA (“GLCP”). Plaintiff is informed

and believes and thereupon alleges that in addition to holding the skilled nursing facility

license and owning and operating GLCP, it also holds the skilled nursing facility license

and owns and operates, without limitation, all of the following Golden LivingCenters in

California: Golden LivingCenter – Bakersfield, Golden LivingCenter - Chateau in

Stockton, Golden LivingCenter - Galt, Golden LivingCenter - London House Sonoma,

Golden LivingCenter - Napa, Golden LivingCenter - Portside of Stockton, Golden

LivingCenter - San Jose, and Golden LivingCenter - Santa Rosa.

5. GGNSC Administrative Services, LLC is a Delaware limited liability

company, authorized to do business in California. Defendant Hospice Preferred Choice,

Inc. is a Delaware corporation, authorized to do business in California. Hereinafter

BHRS, GLCP, GGNSC Administrative Services, LLC and Hospice Preferred Choice,

Inc. shall be collectively referred to as “Defendants.”

6. The true names and/or capacities, whether individual, corporate, associate or

otherwise, of defendants Does 1 to 10 inclusive, are unknown to Plaintiffs at this time,

who therefore sues said defendants by such fictitious names. When the true names and

capacities of said defendants have been ascertained, Plaintiffs will amend this complaint

accordingly. Plaintiffs are informed and believes and thereupon alleges that each

defendant designated herein as a Doe is responsible, negligently, intentionally,

contractually, or in some other actionable manner, for the events and happenings

hereinafter referred to, and caused injuries and damages proximately thereby to Plaintiffs

as is hereinafter alleged, either through said defendants' own wrongful conduct or through

the conduct of their agents, servants, employees, representatives, officers or attorneys, or

in some other manner.

NATURE OF THE CASE

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7. This action is brought as a class action and federal Fair Labor Standards Act

(“FLSA”) collective action on behalf of all current and former hourly clinical employees

of Defendants employed in California during the Class Period, i.e. from June 8, 2008 to

May 23, 2014. This action is also brought as a collective action on behalf of all

individuals who, at any time during the three years preceding the filing of the Carr

Complaint, were or have been employed by Defendants in the State of California. As set

forth in detail infra, this action is also brought as an individual action on behalf of

Plaintiff Carr.

8. Defendants operate skilled nursing facilities throughout the State of

California. These facilities purport to provide skilled and special services to the elderly

and sick residents. Defendants’ services include but are not limited to nursing, physical

therapy, speech therapy, occupational therapy, stroke rehabilitation, balance

management, IV therapy, diabetes management, pain management, continence

management dialysis care, and wound care. Additionally, Defendants provide residents

with special services include dementia and Alzheimer’s care and long term care.

Defendants’ facilities provide residents with a wide array of amenities including, without

limitation, dining facilities, hairdressing, spiritual services, recreational and social

activities and transportation.

9. Plaintiff Veurink worked as a Nurse at Defendants’ Golden LivingCenter

facility in Petaluma, California (the “GLCP facility”) until her employment by

Defendants ended. In Plaintiff Veurink’s capacity as a Nurse, she provided nursing care

to the residents of the facility. Plaintiff Carr worked at Defendants’ GLCP facility from

on or about October 2009 through on or about June 13, 2011, when his employment was

terminated by Defendants. In his capacity as an employee for Defendants, Plaintiff Carr

worked as a Licensed Vocational Nurse or “LVN.” In Plaintiff Carr’s capacity as an

LVN, he would provide nursing care to the residents of the GLCP facility. The services

Plaintiffs provided included, without limitation, the following: administer medication,

treatments, patient teaching and documentation; monitor 24-hour chart checks;

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assist/create facility forms (i.e., standardized orders for comfort care residents); organize

pneumonia and influenza vaccine programs; patient teaching and documentation; assist

doctors with bedside procedures (i.e., central line insertion, lumbar punctures); drug

administration to patients; IV pumps; injections & immunizations; maintenance of

tracheotomy patients; blood glucose monitoring; post-surgical coronary care;

maintenance of AV fistulas; oxygen therapy; chest, NB/sump peg tubes; maintenancy of

psychiatric patients and families; wound care; basic life support; geriatric care;

patient/family education; care plan administration; admissions transfers and discharges;

transcription of physicians’ orders, coordinate patient transportation; and attended

educational classes to maintain LVN duties.

10. Defendants provide their residents assigned, trained staff. The staff must be

available to the residents 24 hours per day, 7 days per week. Indeed, there is always an

employee who is responsible for a resident’s care. Due to the Defendants’ promise to

provide around-the-clock services, Defendants’ employees are instructed that they may

not leave their floor or assigned area for any reason unless another employee relieves

them.

11. The State of California also has laws that require certain types of facilities,

like those run by Defendants, to maintain minimal staffing ratios for particular categories

of residents that are under their care. Thus, in certain areas within Defendants’ facilities,

higher staffing ratios must be maintained in order to comply with California law.

12. Due to the strict 24-hour monitoring policy of residents, Defendants’

employees cannot take a meal or rest break unless another employee comes to relieve

them of their duties. Furthermore, Defendants’ own written policy states that

Defendants’ management will schedule a meal period for each employee who is

scheduled to work more than a five-hour shift. Thus, Defendants’ employees, including

Plaintiff, were unable to take their meal or rest periods unless and until scheduled and

approved by management, and until another employee came to relieve them. Similarly,

with respect to rest breaks, Defendants’ written policy states that it is the responsibility of

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the department head or immediate supervisor to schedule paid fifteen-minute rest periods

for each four hours of working time. Once again, however, Defendants’ employees could

not take a rest period unless and until it was scheduled and approved by management, and

until another employee came to relieve them.

13. Defendants both failed to employ an adequate number of employees and had

no provisions or ability to consistently allow and/or provide an employee with rest

breaks. In addition, Defendants failed to provide a one-hour wage premium to Plaintiff

and other employees for those times when an employee did not receive a meal or rest

break. Furthermore, Defendants’ employees were regularly unable to take a 30-minute

meal break and had to eat their meal in their assigned area while continuing to monitor

their residents. In those rare instances when employees were relieved of their

responsibilities and provided with a meal break, many times the meal break was either

not provided to Defendants’ employees within the first five hours of the shift, or, the

employees did not receive a full 30-minute break during which the employee was

relieved of all duties, and, in addition, when working shifts in excess of ten or fifteen

hours per day, the Defendants’ employees were not properly provided the required rest

and meal periods.

14. In those instances (1) when an employee was required to work through the

meal break, (2) when an employee was required to come back from a meal break before

they were able to finish their entire 30-minute meal period, or (3) when an employee did

not receive their meal break within the first five hours of their workday or an additional

meal break for each subsequent five-hour period, Defendants largely failed to provide

their employees with one additional hour of pay at the employee’s regular rate of

compensation for each work day that the proper 30-minute meal period was not provided

to the employee. For example, attached hereto as Exhibit 1 is a copy of one of Plaintiff

Carr’s timecards. As set forth therein, on July 17, 18 and 23, Plaintiff Carr did not

receive his lunch break within the first five hours of his shifts, thereby entitling him to a

one-hour wage premium.

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15. Additionally, it is the regular practice at Defendants’ facilities, including

GLCP, for one of Defendants’ employees in charge of time-keeping and payroll to go

into Defendants’ electronic time keeping system and manually insert or change a “punch

in” and “punch out” on an employee’s time card to make it appear as though the

employee took their entire 30-minute meal break, even though no such break was

provided by Defendants. Defendants would make these changes to employee time cards

without obtaining the approval of the employee. Defendants’ own written policy requires

that in order to change an employee’s time or to add a missed punch, they must fill out a

Time Clock Adjustment form, which requires that all corrections be initialed by both the

employee and the employee’s supervisor. However, in almost all such instances,

employees’ time was changed to make it appear as though they received their 30-minute

meal break even though no such meal break was provided and the employee and

supervisor did not sign a Time Clock Adjustment form. Employees are owed a one-hour

wage premium, as well as owed regular overtime wages for the on-duty meal period, for

all of the above violations.

16. At the end of a regularly scheduled shift, Plaintiffs and other employees

were often not done with the work required for that day. For example, Plaintiffs often

needed to complete “charting” even though the scheduled shift had been completed.

Employees, including Plaintiffs, were required to punch out and then come back and

finish their charting. In such instances, Plaintiffs and other employees were not paid

minimum wage and/or overtime wages for their time spent working off the clock.

Further, Defendant failed to properly compute the applicable regular rate when

determining the overtime wage rate to pay its employees, including Plaintiffs.

17. At all relevant times mentioned herein, section 510 (a) of the California

Labor Code provided:

Eight hours of labor constitutes a day’s work. Any work in excess of eight

hours in one workday and any work in excess of 40 hours in any one

workweek and the first eight hours worked on the seventh day of work in

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any one workweek shall be compensated at the rate of at least one and

one-half times the regular rate of pay for an employee. Any work in

excess of 12 hours in one day shall be compensated at the rate of no less

than twice the regular rate of pay for an employee. In addition, any work

in excess of eight hours on any seventh day of a workweek shall be

compensated at the rate of no less than twice the regular rate of pay of an

employee. Nothing in this section requires an employer to combine more

than one rate of overtime compensation in order to calculate the amount to

be paid to an employee for any hour of overtime work. The requirements

of this section do not apply to the payment of overtime compensation to

an employee working pursuant to any of the following

(1) An alternative workweek schedule adopted pursuant to Section 511.

(2) An alternative workweek schedule adopted pursuant to a collective

bargaining agreement pursuant to Section 514.

Cal. Lab. Code § 510.

18. In regard to Plaintiffs’ employment, the provisions of subparagraphs (1) and

(2) of section 510 of the California Labor Code were inapplicable because no alternative

workweek schedule had been adopted pursuant to section 511, and Plaintiffs’

employment to which reference is hereinafter made was not governed by any collective

bargaining agreement.

19. At all relevant times mentioned herein, section 1194 of the California Labor

Code provided:

Notwithstanding any agreement to work for a lesser wage, any employee

receiving less than the legal minimum wage or the legal overtime

compensation applicable to the employee is entitled to recover in a civil

action the unpaid balance of the full amount of this . . . overtime

compensation, including interest thereon, reasonable attorney’s fees, and

costs of suit.

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Cal. Lab. Code § 1194. At all relevant times mentioned herein, section 1194.2 of

the California Labor Code provided:

(a) In any action under . . . Section 1194 to recover wages because of the

payment of a wage less than the minimum wage fixed by an order of the

commission, an employee shall be entitled to recover liquidated damages in

an amount equal to the wages unlawfully unpaid and interest thereon.

Cal. Lab. Code § 1194.2.

20. Notwithstanding the foregoing requirements of law, Plaintiffs were routinely

denied proper payment of minimum wage or overtime wages. For example, Plaintiffs

were not compensated for all work performed after the scheduled work shift.

Additionally: (1) Plaintiffs and other employees were not compensated for time the

employee worked during a meal break in those instances when an improper change or

additional improper punch was added to Plaintiffs’ time cards to make it appear as though

Plaintiffs received a 30 minute meal break and (2) Plaintiffs and other employees were

not routinely paid the full overtime rate to which they were entitled, Defendant failing to

properly compute the applicable regular rate.

21. Accordingly, at all times relevant hereto, sections 510, 515, 1194, and 1198

of the California Labor Code and 8 California Code of Regulations section 110501

required (1) the payment of wages equal to one-and-one-half times an employee’s regular

rate of pay for all hours worked in excess of eight per day or forty per week and (2) the

payment of wages equal to double the employee’s regular rate of pay for all hours

worked in excess of twelve per day and for all hours worked in excess of eight on the

seventh day of work in any one workweek.

22. Similarly, at all times relevant hereto, the FLSA provided:

[N]o employer shall employ any of his employees who in any workweek is

engaged in commerce or in the production of goods for commerce, or is

employed in an enterprise engaged in commerce or in the production of

1 Section 11070 sets forth the relevant Industrial Welfare Commission Wage Order.

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goods for commerce, for a workweek longer than forty hours unless such

employee receives compensation for his employment in excess of the hours

above specified at a rate not less than one and one-half times the regular rate

at which he is employed

29 U.S.C. § 207(a)(1).

23. At all times relevant hereto, sections 226.7 and 512 of the California Labor

Code, as well as 8 California Code of Regulations section 11050, required employers to

provide employees with a first meal period of not less than thirty minutes, during which

the employees are to be relieved of all duty, before the employees work more than five

hours per day. Sections 226.7 and 512 of the California Labor Code, as well as 8

California Code of Regulations section 11050, also required employers to provide a

second meal period of not less than thirty minutes, during which the employees are again

to be relieved of all duty, before the employees work more than ten hours per day.

According to the Regulation:

Notwithstanding any other provision of this order, employees in the health care

industry who work shifts in excess of eight (8) total hours in a workday may

voluntarily waive their right to one of their two meal periods. In order to be valid,

any such waiver must be documented in a written agreement that is voluntarily

signed by both the employee and the employer. The employee may revoke the

waiver at any time by providing the employer at least one day’s written notice. The

employee shall be fully compensated for all working time, including any on-the-

job meal period, while such a waiver is in effect.

24. At all times relevant hereto, sections 226.7 and 512 of the California Labor

Code, as well as 8 California Code of Regulations section 11050, required employers to

provide employees with ten-minute rest periods, during which the employees are relieved

of all duty, for each four hours of work or fraction thereof. As alleged herein, Defendants

intentionally and improperly failed to provide meal and rest periods to its employees in

violation of the California Labor Code and California Code of Regulations.

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Code provided:

If an employer willfully fails to pay, without abatement or reduction, in

accordance with Sections 201, 201.5, 202 and 202.5, any wages of an

employee who is discharged or who quits, the wages of the employee shall

continue as a penalty from the due date thereof at the same rate until paid or

until action therefor is commenced; but the wages shall not continue for

more than 30 days.


26. Plaintiffs contend that the failure of Defendants to pay them within the time

provided by sections 201 and 202 of the California Labor Code has been and is “willful”

within the meaning of section 203 of the California Labor Code and that, accordingly,

Plaintiffs are entitled to the “continuing wages” provided for by section 203.


Code provided:

The maximum hours of work and the standard conditions of labor fixed by

the [Industrial Welfare Commission] shall be the maximum hours of work

and the standard conditions of labor for employees. The employment of any

employee for longer hours than those fixed by [an] order or under conditions

of labor prohibited by [an] order is unlawful.


28. At all relevant times mentioned herein, Wage Order Number 5 (as

periodically amended) applied to Plaintiffs. 8 Cal. Code Reg. § 11050.

29. Wage Order 5 requires a one-hour wage premium for each day that an

employee is not provided with a mandated ten-minute rest period per four-hour work

period or major fraction thereof. Additionally, Wage Order 5 requires a one-hour wage

premium for each day that an employee is not provided with a mandated thirty-minute

meal period for any shift that is longer than five hours. Finally, Wage Order 5 requires

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that those who are employed more than eight (8) hours in any workday or more than 40

hours in any workweek receive overtime compensation.

30. The right to rest periods and meal periods has been codified in sections

226.7 and 512 of the California Labor Code. At all relevant times mentioned herein,

section 512(a) provided:

An employer may not employ an employee for a work period of more than

five hours per day without providing the employee with a meal period of not

less than 30 minutes, except that if the total work period per day of the

employee is no more than six hours, the meal period may be waived by

mutual consent of both the employer and employee. An employer may not

employ an employee for a work period of more than 10 hours per day

without providing the employee with a second meal period of not less than

30 minutes, except that if the total hours worked is no more than 12 hours,

the second meal period may be waived by mutual consent of the employer

and the employee only if the first meal period was not waived.

At all relevant times mentioned herein, section 226.7(b) provided:

If an employer fails to provide an employee a meal period or rest period in

accordance with an applicable order of the Industrial Welfare Commission,

the employer shall pay the employee one additional hour of pay at the

employee’s regular rate of compensation for each work day that the meal or

rest period is not provided.

31. Compensation for missed rest and meal periods constitutes wages within the

meaning of section 201 of the California Labor Code.


Code provided:

(a) Any employer or other person acting on behalf of an employer who

violates, or causes to be violated, a section of this chapter or any provision

regulating hours and days of work in any order of the Industrial Welfare

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Commission shall be subject to a civil penalty as follows: (1) For any initial

violation, fifty dollars ($50) for each underpaid employee for each pay

period for which the employee was underpaid in addition to an amount

sufficient to recover underpaid wages. (2) For each subsequent violation,

one hundred dollars ($100) for each underpaid employee for each pay period

for which the employee was underpaid in addition to an amount sufficient to

recover underpaid wages. (3) Wages recovered pursuant to this section shall

be paid to the affected employee.

33. Plaintiffs contend that Defendants’ failure to comply with sections 510 and

512 of the California Labor Code subjects Defendants to civil penalties pursuant to

section 558.

34. At all times relevant hereto, sections 226, 1174, and 1174.5 of the California

Labor Code required employers to keep records of and provide employees with itemized

wage statements showing the total hours worked.

35. Plaintiffs also contend that Defendants’ failure to comply with section 226

of the California Labor Code subjects Defendants to civil penalties pursuant to section

226.3 of the California Labor Code. At all relevant times mentioned herein, section 226

of the California Labor Code provided:

(a) Every employer shall, semimonthly or at the time of each payment of

wages, furnish each of his or her employees, either as a detachable part of

the check, draft, or voucher paying the employee’s wages, or separately

when wages are paid by personal check or cash, an itemized statement in

writing showing (1) gross wages earned, (2) total hours worked by the

employee, except for any employee whose compensation is solely based on

a salary and who is exempt from payment of overtime under subdivision (a)

of Section 515 or any applicable order of the Industrial Welfare

Commission, (3) the number of piece-rate units earned and any applicable

piece rate if the employee is paid on a piece-rate basis, (4) all deductions,

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provided, that all deductions made on written orders of the employee may be

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

dates of the period for which the employee is paid, (7) the name of the

employee and his or her social security number, (8) the name and address of

the legal entity that is the employer, and (9) all applicable hourly rates in

effect during the pay period and the corresponding number of hours worked

at each hourly rate by the employee. The deductions made from payments

of wages shall be recorded in ink or other indelible form, properly dated,

showing the month, day, and year, and a copy of the statement or a record of

the deductions shall be kept on file by the employer for at least three years at

the place of employment or at a central location within the State of

California.

. . . .

(e) An employee suffering injury as a result of a knowing and intentional

failure by an employer to comply with subdivision (a) is entitled to recover

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

employee for each violation in a subsequent pay period, not exceeding an

aggregate penalty of four thousand dollars ($4,000), and is entitled to an

award of costs and reasonable attorney’s fees.

. . . .

(g) An employee may also bring an action for injunctive relief to ensure

compliance with this section, and is entitled to an award of costs and

reasonable attorney's fees.

Cal. Lab. Code § 226. Defendants employed Plaintiffs and other employees but

failed to provide them with the data required by section 226 of the California

Labor Code. For example, Defendants failed to provide information concerning

(1) all wages earned on account of meal and rest penalties, (2) the total hours

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worked by the employee, (3) information regarding the time and wages for work

performed by Plaintiffs but not paid for by Defendants and (4) the correct overtime

rate based on the correct “regular rate.” Exhibit 2 hereto reflects certain of

Plaintiff Carr’s wage statements.

36. At all relevant times mentioned herein, section 226.3 of the California Labor

Code provided:

Any employer who violates subdivision (a) of Section 226 shall be subject to

a civil penalty in the amount of two hundred fifty dollars ($250) per

employee per violation in an initial citation and one thousand dollars

($1,000) per employee for each violation in a subsequent citation, for which

the employer fails to provide the employee a wage deduction statement or

fails to keep the records required in subdivision (a) of Section 226. The civil

penalties provided for in this section are in addition to any other penalty

provided by law.

Cal. Lab. Code § 226.3.

37. At all relevant times mentioned herein, section 204(a) of the California

Labor Code provided:

All wages, other than those mentioned in Section 201, 202, 204.1, or 204.2,

earned by any person in any employment are due and payable twice during

each calendar month, on days designated in advance by the employer as the

regular paydays. Labor performed between the 1st and 15th days, inclusive,

of any calendar month shall be paid for between the 16th and the 26th day of

the month during which the labor was performed, and labor performed

between the 16th and the last day, inclusive, of any calendar month, shall be

paid for between the 1st and 10th day of the following month.

Cal. Lab. Code § 204(a). California Labor Code section 210 provides civil

penalties for violations of California Labor Code section 204.

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38. Defendants’ conduct of requiring additional work from Plaintiffs and Class

Members in the absence of minimum wage and overtime pay, knowingly and

intentionally failing to provide accurate itemized wage statements, failing to provide

adequate meal and rest periods, and willfully failing to pay wages earned and unpaid

promptly upon employees’ termination or resignation violates the above-referenced

provisions of California law and also constitutes unfair competition and unlawful, unfair,

and fraudulent acts and practices within the meaning of section 17200 et seq. of the

California Business and Professions Code.

CLASS-ACTION ALLEGATIONS

39. The class represented by Plaintiffs (hereinafter referred to as the “Class”)

consists of all current and former hourly clinical employees of Beverly Health and

Rehabilitation Services, Inc., GGNSC Administrative Services, LLC and Hospice

Preferred Choice, Inc., employed in California during the Class Period, i.e. from June 8,

2008 to May 23, 2014. The class excludes 1) any individual who is a Plaintiff in

pending litigation against Golden Living in federal or state court involving claims under

the FLSA or California Labor Code or who executed a court-approved waiver of claims

in any such case, and 2) any individual who chose to opt-in and receive a settlement

payment in the case of Jarrett v. GGSNC Holdings, LLC, 2:12-cv-04105-BP, pending in

the United States District Court for the Western District of Missouri. (such persons

referred to hereafter as “Class Members” and such period referred to hereafter as “Class

Period”).

40. Plaintiffs contend that the failure of Defendants to provide the data required

by section 226 of the California Labor Code entitles each Class Member to either actual

damages or statutory damages, whichever is greater.

41. Plaintiffs contend that Defendants’ failure to pay wages as provided by

section 226.7 of the California Labor Code entitles each Class Member to payment of

such earned but unpaid wages owing on account of missed rest periods and meal breaks.

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42. Plaintiffs contend that Defendants’ failure to pay minimum wages and

overtime wages as provided by sections 204, 514 and 1194 of the California Labor Code

entitles each Class Member to payment of such earned but unpaid wages, Defendants

having, inter alia, failed to consider unpaid wages owed on account of missed rest

periods and meal breaks in computing the overtime rate applicable to Plaintiffs and Class

Members.

43. Plaintiffs contend that the failure of Defendants to make final wage

payments within the time provided by sections 201 and/or 202 of the California Labor

Code has been and is “willful” within the meaning of section 203 of the California Labor

Code and that, accordingly, each Class Member who has had his or her employment with

Defendants terminated is entitled to the “continuing wages” for which provision is made

by section 203 of the California Labor Code.

44. The number of Class Members is great, believed to be approximately 1,000

persons. It therefore is impractical to join each Class Member as a named plaintiff.

Nevertheless, the number of Class Members is not so great as to make certification

unmanageable. Accordingly, utilization of a class action is the most economically

feasible means of determining the merits of this litigation.

45. Despite the numerosity of the Class Members, the Class Members are

readily ascertainable through an examination of the records that Defendants are required

by law to keep. Likewise, the dollar amount owed to each Class Member is readily

ascertainable by an examination of those same records. The Defendants’ records reflect

the name and address of its employees, along with a description of their job duties.

46. Common questions of fact and of law predominate in the claims of Class

Members over individual issues regarding the money owed to each Class Member. Some

of the common issues herein are described in Paragraph 44, infra.

47. There is a well-defined community of interest in the questions of law and

fact common to the Class Members. Some of the common issues herein are described in

Paragraph 48, infra.

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48. Plaintiffs’ claims are typical of the claims of the Class Members, which

claims all arise from the same general operative facts, namely, Defendants did not

compensate its employees as required by the California Labor Code and the Fair Labor

Standards Act. Plaintiffs have no conflict of interest with the other Class Members or

Class Members and Plaintiffs and Plaintiffs’ counsel are able to represent the interests of

the other Class Members fairly and adequately.

49. A class action is a superior method for the fair and efficient adjudication of

this controversy. The persons within the Class are so numerous that joinder of all of

them is impracticable. The disposition of all claims of the members of the class in a class

action, rather than in individual actions, benefits the parties and the court. The interest of

the Class Members in controlling the prosecution of separate claims against Defendant is

small when compared with the efficiency of a class action. The claims of each individual

Class Member are too small to litigate individually, and the commencement of separate

actions in this Court would lead to an undue burden on scarce judicial resources. Further,

the alternative of individual proceedings before the California Labor Commissioner is

impractical inasmuch as that agency has insufficient resources to process such claims

promptly and, under the provisions of California Labor Code section 98.2, if the

individual class members were to succeed in obtaining awards in their favor, such awards

are subject to appeal as a matter of right for a de novo trial, leading to a multiplicity of

such trials. Further, absent class treatment, employees will most likely be unable to

secure redress given the time and expense necessary to pursue individual claims, and

individual Class Members will likely be unable to retain counsel willing to prosecute

their claims on an individual basis, given the small amount of recovery. As a practical

matter, denial of class treatment will lead to denial of recovery to the individual Class

Members.

50. Community of Interest; Existence and Predominance of Common

Questions of Law or Fact. Common questions of fact and law exist as to all Class

Members that predominate over any questions affecting only individual Class Members.

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These common legal and factual questions do not vary among Class Members and may

be determined without reference to the individual circumstances of any Class Member.

The questions include, but are not limited to, the following:

(a) Was such Class Member an employee of BHRS?

(b) Was such Class Member provided a wage statement that complied with section

226 of the California Labor Code?

(b) Was such Class Member entitled to continuing wages from Defendants?

(c) Was such Class Member paid his or her wages as provided by sections 201

and/or 202 of the California Labor Code?

(d) Did Defendants fail to timely pay Class members their overtime wages?

(e) Did Defendants fail to pay Class Members for work performed after a work

shift and/or during a lunch?

(f) Did Defendants fail to provide Class Members with an appropriate thirty-

minute, uninterrupted meal break within the first five hours of the work period?

(g) Did Defendants fail to provide Class Members with a mandated ten-minute rest

period per four-hour work period?

(h) Did Defendants fail to follow the requirements of the applicable Wage Order?

(i) Did Defendants commit unlawful business acts or practices within the meaning

of California Business and Professions Code sections 17200 et seq.?

51. Numerosity of the Class. The Members of the Class are so numerous that

the individual joinder of all of them is impracticable. Although the exact number and

identities of Class Members are unknown to Plaintiffs at this time and can only be

ascertained through appropriate discovery directed to defendants, Plaintiffs believe and

therefore allege that there are at least 1,000 Class Members.

52. Typicality of Claims. Plaintiffs’ claims are typical of the claims of

Members of the Class, and Plaintiffs’ interests are consistent with and not antagonistic to

those of the other Class Members whom they seek to represent. Plaintiffs and all

Members of the Class have sustained damages and face irreparable harm arising from

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Defendants’ common course of conduct as complained of herein. The damages sustained

by each Member of the Class were caused directly by Defendants’ wrongful conduct, as

alleged herein.

53. Adequacy of Representation. Plaintiffs will fairly and adequately protect

the interests of the Class Members. Their claims are not antagonistic to those of the

Class Members. Also, Plaintiffs have retained attorneys who are experienced in the

prosecution of class actions, including employment class actions, and Plaintiffs intend to

prosecute this action vigorously.

54. Superiority. A class action is superior to other available methods for the

fair and efficient adjudication of this controversy because individual litigation of the

claims of all Class Members is impracticable. Even if every Class Member could afford

individual litigation, the court system could not. It would be unduly burdensome to the

courts in which individual litigation of numerous cases would proceed. Moreover,

individualized litigation would present the potential for varying, inconsistent, or

contradictory judgments, and it would magnify the delay and expense to all parties and to

the court system resulting from multiple trials of the same factual issues. By contrast, the

conduct of this action as a class action, with respect to some or all of the issues presented

herein, presents few management difficulties, conserves the resources of the parties and

of the court system, and protects the rights of each Class Member. Plaintiffs anticipate

no difficulty in the management of this action as a class action.

55. The interest of each Class Member in controlling the prosecution of his or

her individual claim against Defendants is small when compared with the efficiency of a

class action. The prosecution of separate actions by individual Class Members may

create a risk of adjudications with respect to them that would, as a practical matter, be

dispositive of the interests of the other Class Members not parties to such adjudications or

that would substantially impair or impede the ability of such non-party Class Members to

protect their interests.

56. The prosecution of individual actions by Class Members would establish

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inconsistent standards of conduct for Defendants.

57. Defendants have acted or refused to act in respects generally applicable to

the Class, thereby making appropriate final and injunctive relief or corresponding

declaratory relief with regard to Class Members as a whole, as requested herein.

Likewise, Defendants’ conduct as described above is unlawful, continuing, and capable

of repetition, and it will continue unless restrained and enjoined by the Court.

58. In addition to asserting class-action claims, pursuant to California Business

and Professions Code section 17200 et seq., Plaintiffs assert a claim on behalf of the

general public. Plaintiffs seek to enjoin Defendants from engaging in the unfair,

unlawful, and/or deceptive business practices alleged in this Complaint, as well as to

require Defendants to pay restitution of all monies wrongfully obtained by it through its

unfair, unlawful, and/or deceptive business practices. A representative action is

necessary and appropriate because Defendants have engaged in the wrongful acts

described herein as a general business practice.

FLSA COLLECTIVE-ACTION ALLEGATIONS

59. In this collective action, Plaintiffs seek to represent all current and former

hourly clinical employees of Defendants, employed in the State of California during the

period from June 8, 2008 to May 23, 2014 (the “Collective Action Members”).

60. Plaintiffs are similarly situated with the Collective Action Members in that:

(a) Plaintiffs and the Collective Action Members were employed by Defendants; (b)

Plaintiffs and the Collective Action Members were not paid their wages for actual hours

worked; (c) Plaintiffs and the Collective Action Members were not paid for work

performed after a regularly scheduled work shift and for hours worked during their lunch

break; (d) Defendants knowingly and willfully violated provisions of the FLSA, by not

paying Plaintiffs and the Collective Action Members their wages; (e) As a result of

Defendants’ practice of withholding compensation for all hours worked, Plaintiffs and the

Collective Action Members have been similarly damaged in that they have not received

timely payment in full of their earned wages.

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61. This action is maintainable as an “opt-in” collective action pursuant to 29

U.S.C. § 216(b) as to claims for liquidated damages, costs and attorneys’ fees under the

FLSA.

62. All individuals employed by Defendants should be given notice and be

allowed to give their consent in writing, i.e., “opt in,” to the collective action pursuant ot

29 U.S.C. § 216(b).

PLAINTIFF CARR’S INDIVIDUAL CLAIMS AGAINST DEFENDANTS

63. Plaintiff Carr began working for Defendants in October 2009 as an LVN.

Not long after beginning his employment, Plaintiff Carr became concerned regarding the

medical services being provided to the residents of GLCP. In particular, Plaintiff Carr

was concerned that proper procedures were not being followed by coworkers and that as

a result, the residents were not receiving the level of medical treatment that was required,

both as represented by Defendants to their residents and families, as well as in

accordance with California law. Carr first began reporting his concerns to the Director

of Nursing and then to the Administrator onsite at GLCP. Unfortunately, Plaintiff Carr’s

concerns and reports to onsite management would largely fall on deaf ears. As such,

Plaintiff Carr began escalating his complaints and concerns, reporting them to the

BHRS’s local human resources department. Still, little, if anything, was done by

Defendants in response to Plaintiff’s complaints and reports.

64. Throughout the course of his employment with Defendants, and without

limitation, Plaintiff Carr reported to Defendants’ onsite management and/or directly to

Defendants’ corporate offices, issues regarding all of the following:

Medical paperwork and reports regarding residents and Weekly Summaries

were not being done consistently;

Medication carts were filthy with stains spilled from medications inside and

outside the cart;

Employee time sheets were being altered in order to make it appear as

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though the facility was maintaining the staffing ratios required under

California law;

Certain employees were not taking adequate care of their residents and were

not maintaining clean resident rooms;

Residents were not being turned according to the schedule;

Restraints were not being applied correctly;

Alarms were in place but not turned on;

Residents were being left for hours and not changed after soiling themselves.

It got so bad that Plaintiff Carr reported that the urine smell got so bad that it

caused individuals to tear;

Certain residents were not being given their medication in the doses

prescribed;

Residents were not being provided with adequate fluids;

Employees were using resident’s private property;

CNAs were not answering resident call lights or alarms;

CNAs would leave without notifying their head nurse, thereby leaving the

residents understaffed;

Employees were stealing medication and/or the tracking logs did not reflect

the medications being destroyed;

Medication profiles did not match medication cards;

Reporting of poor nursing skills by certain coworkers; and

Certain nurses were not maintaining adequate standards of hygiene.

65. Plaintiff Carr also advised Defendants’ management that there was disparate

treatment of the employees by supervisors. For example, one employee would do

something wrong and not get written up for it. Then, another employee would do the

same thing and they would be disciplined. Additionally, at times Plaintiff Carr

complained to the Administrator regarding harsh and unfair treatment that he received at

the hands of the Director of Nursing.

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66. Additionally, throughout the tenure of Carr’s employment, Defendant’

management and coworkers would tease and torment Plaintiff Carr on account of his

sexual orientation. Coworkers would make comments regarding Plaintiff Carr being

“gay” and make fun of the way Plaintiff Carr walked, calling him a “queen.” Plaintiff

Carr is informed and believes and thereupon alleges that Defendants’ management would

meet behind closed doors and make derogatory comments regarding his sexual

orientation. As a result, Plaintiff Carr was treated differently by coworkers and

management. Defendants’ management was additionally aware of the discrimination,

harassment and teasing that Carr endured as a result of his sexual orientation, yet

management did nothing to step in and stop the behavior.

67. The complaints and reports that Carr made to management and to the

corporate offices caused individuals and the GLCP facility to come under scrutiny. As a

result, management attacked Plaintiff Carr and began laying a foundation for his

termination. Beginning in April 2011, Plaintiff Carr was written up for frivolous and

unsubstantiated rule violations by the Director of Nursing. These write ups, however,

were done solely in order to lay a false foundation to terminate Plaintiff Carr’s

employment. Indeed, Plaintiff Carr was the “squeaky wheel” and Defendants and their

management did not want to deal with Carr continuously reporting and complaining

about patient abuse and health violations regarding Defendants’ facility and employees.

As a result, on June 13, 2011, Plaintiff Carr’s employment was terminated by the

Director of Nursing. When Plaintiff asked for an explanation regarding the reason for his

termination, the Director of Nursing stated “you just don’t fit in here, Andy.” In reality,

Plaintiff Carr was terminated on account of the fact that he reported patient abuse and

health violations related to Defendants’ facility, residents and employees.

68. Plaintiff Carr is informed and believes and thereupon alleges that shortly

after his termination, there was a comprehensive audit and investigation at the GLCP

facility wherein employees from corporate offices came to the facility in order to

investigate many of the allegations and complaints that were raised by Carr during the

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course of his employment. Plaintiff Carr is informed and believes and thereupon alleges

that as a result of this corporate investigation, disciplinary actions were taken and many

of his allegations and complaints were substantiated.

69. The California Fair Employment and Housing Act (“FEHA”) strictly

prohibits, among other things, (1) retaliating and terminating an employee on account of

the employee engaging in an protected activity by reporting patient abuse, and (2)

discriminating, harassing and/or retaliating against an employee based on actual or

perceived sexual orientation. Indeed, under FEHA, Defendants are liable for any such

harassment, discrimination or retaliation in the course of Plaintiff Carr’s employment.

70. On account of the illegal harassment, discrimination and retaliation that

Plaintiff Carr endured at the hands of Defendants’ management, Defendant is liability to

Plaintiff Carr for compensatory and putative damages. Plaintiff Carr seeks to recover,

among other things, all lost wages that he has sustained since this date.

71. On or about June 5, 2012, Carr filed a complaint with the Department of Fair

Employment and Housing (“DFEH”) against BHRS and GLCP on account of

Defendants’ discrimination, harassment, retaliation and illegal termination.

Contemporaneous with the filing of this complaint, on June 5, 2012, the DFEH issued

Notices of Case Closure and Right-To-Sue Notices regarding Plaintiff Carr’s complaint.

Copies of the relevant documentation are attached hereto as Exhibits 3 and 4.

FIRST CLAIM FOR RELIEF

(As against All Defendants on behalf of Plaintiffs and the Class -- Failure to Pay

Minimum Wages and Overtime Compensation, California Labor Code)

72. The paragraphs of this Complaint are re-alleged and incorporated by

reference.

73. Pursuant to Labor Code section 1194(a), Plaintiffs may bring a civil action

for overtime wages directly against the employer in Plaintiffs’ name without first filing a

claim with the Department of Labor.

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74. At all times herein relevant, the sections of the California Labor Code and of

the California Code of Regulations referenced herein applied to the employment of

Plaintiff and Class Members.

75. Pursuant to Labor Code section 1198, it is unlawful to employ persons for

longer than the hours set by the Industrial Welfare Commission or under conditions

prohibited by the California Code of Regulations.

76. At all times herein relevant, sections 510, 515, 1194, and 1198 of the

California Labor Code and 8 California Code of Regulations section 11050 provided for

the payment of minimum wages and overtime wages equal to one-and-one-half times an

employee’s regular rate of pay for all hours worked over eight per day or forty per week,

as well as for the payment of overtime wage equal to double the employee’s regular rate

of pay for all hours worked in excess of twelve in any day and for all hours worked in

excess of eight on the seventh day of work.

77. Under the provisions of sections 510, 515, 1194, and 1198 of the California

Labor Code and 8 California Code of Regulations section 11050, Plaintiffs and each

Class Member should have received minimum and overtime wages in a sum according to

proof.

78. Defendants owe Plaintiffs and each Class Member minimum and overtime

wages pursuant to sections 510, 515, 1194, and 1198 of the California Labor Code and 8

California Code of Regulations section 11050 according to proof at trial of the hours

worked for the period of time from four years prior to the filing of the Complaint to date.

79. Defendants have failed and refused, and continues to fail and refuse, to pay

Plaintiffs and Class Members the amounts that are owed. Defendants’ failure to pay

Plaintiffs and each Class Member who has quit his or her employment with Defendants

or whose employment has been terminated by Defendants violates California Labor Code

sections 201 and 202, which therefore subjects Defendants to continuing-wages liability

pursuant to section 203 of the California Labor Code for the period of time from four

years prior to the filing of the Complaint to date.

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80. Plaintiffs, individually and on behalf of others similarly situated, request

payment of overtime compensation according to proof, interest, attorney’s fees, and costs

pursuant to Labor Code section 1194(a).

81. Plaintiffs and the Class also request relief as described below.

SECOND CLAIM FOR RELIEF

(As against All Defendants on behalf of Plaintiffs and the Class -- Failure to Provide

Accurate Itemized Wage Statements)


reference.

83. At all times herein relevant, section 226 of the California Labor Code and 8

California Code of Regulations section 11050 required that employers provide employees

with itemized wage statements showing (1) all wages earned on account of meal and rest

penalties, (2) the total hours worked by the employee, and (3) information regarding the

time and wages for work performed by Plaintiffs but not paid for by Defendants.

Moreover, Labor Code section 226(e) provided that, if an employer knowingly and

intentionally fails to provide a statement detailing (1) all wages earned on account of

meal and rest penalties, (2) the total hours worked by the employee, and (3) information

regarding the time and wages for work performed by Plaintiffs but not paid for by

Defendants, then the employee is entitled to recover the greater of all actual damages or

$50 for the initial violation and $100 for each subsequent violation, up to a maximum of

$4,000.

84. Defendants have knowingly and intentionally failed to furnish Plaintiffs and

Class Members with timely, itemized statements showing (1) all wages earned on

account of meal and rest penalties, (2) the total hours worked by the employee, (3)

information regarding the time and wages for work performed by Plaintiffs but not paid

for by Defendants, and (4) all correct, applicable hourly rates based on the proper

calculation of the regular rate. As a result, Defendants are liable to Plaintiffs and Class

Members for the liquidated damages for which provision is made by Labor Code section

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226(e) for the period of time from the three years prior to the filing of the Complaint to

date.

85. Plaintiffs and the Class Members request relief as described below.

THIRD CLAIM FOR RELIEF

(As against All Defendants on behalf of Plaintiffs and members of the

Collective Action – Failure to Pay Overtime Compensation, Fair Labor

Standards Act)


reference.

87. During their employment with Defendants, Plaintiffs and Collective Action

Members were required to work hours in excess of forty hours a week, without the

payment of minimum and/or overtime wages and other benefits.

88. Accordingly, Plaintiffs, individually and on behalf of others similarly

situated, requests payment of minimum and/or overtime compensation according to

proof, attorney’s fees, and costs pursuant to 29 U.S.C. § 216(b).

FOURTH CLAIM FOR RELIEF

(As against all Defendants on behalf of Plaintiff Veurink -- Failure to Provide

Proper Response to Information Request (Cal. Lab. Code §226(c)))


reference.

90. In December of 2013, pursuant to the provisions of section 226(c) of the

California Labor Code, Plaintiff Veurink properly requested of the Defendants that her

employment records be provided to her. Despite proper request, only a handful of the

responsive documents were produced to her.

91. Accordingly, Plaintiff Veurink, individually, requests payment of $750 as

for which provision is made by section 226(f) of the California Labor Code (“[a] failure

by an employer to permit a current or former employee to inspect or copy records within

the time set forth in subdivision (c) entitles the current or former employee or the Labor

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Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty from the

employer”).

FIFTH CLAIM FOR RELIEF

(As against all Defendants on behalf of Plaintiffs and the Class -- Failure to Provide

Adequate Meal Periods)


reference.

93. At all times herein relevant, section 226.7 of the California Labor Code and

8 California Code of Regulations section 11050 provided that employees must be

provided a first meal period of not less than thirty minutes before working more than five

hours per day and a second meal period of not less than thirty minutes before working

more than ten hours per day. Sections 226.7 and 512 of the California Labor Code, as

well as 8 California Code of Regulations section 11050, also required employers to

provide a second meal period of not less than thirty minutes, during which the employees

are again to be relieved of all duty, before the employees work more than ten hours per

day. According to the Regulation:

Notwithstanding any other provision of this order, employees in the health

care industry who work shifts in excess of eight (8) total hours in a workday

may voluntarily waive their right to one of their two meal periods. In order

to be valid, any such waiver must be documented in a written agreement that

is voluntarily signed by both the employee and the employer. The employee

may revoke the waiver at any time by providing the employer at least one

day’s written notice. The employee shall be fully compensated for all

working time, including any on-the-job meal period, while such a waiver is

in effect.

94. Because Defendants failed to provide the required meal breaks to Plaintiffs

and other Class Members, Defendants are liable to them for one hour of additional pay at

the regular rate of compensation for each workday that the proper meal periods were not

provided, pursuant to Labor Code section 226.7 and California Code of Regulations

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section 11050, for the period of time from three years prior to the filing of the Complaint

to date.


SIXTH CLAIM FOR RELIEF

(As against All Defendants on behalf of Plaintiffs and the Class -- Failure to Provide

Adequate Rest Periods)


reference.

97. At all times herein relevant, section 226.7 of the California Labor Code and

8 California Code of Regulations section 11050 provided that employees must receive

rest periods of ten minutes for each four hours of work or major fraction thereof.

98. Because Defendants failed to provide the required rest breaks, it is liable to

Plaintiffs and other Class Members for one hour of additional pay at the regular rate of

compensation for each workday that the proper rest periods were not provided, pursuant

to Labor Code section 226.7 and California Code of Regulations section 11050, for the

period of time from the three years prior to the filing of the Complaint to date.


SEVENTH CLAIM FOR RELIEF

(As against All Defendants on behalf of Plaintiffs and the Class -- Continuing Wages

under Section 203 of the California Labor Code)


reference.

101. At all times herein relevant, Labor Code sections 201 and 202 provided that

employees must receive wages earned and unpaid promptly upon termination or

resignation.

102. Because Defendants have willfully failed to pay wages earned and unpaid

promptly upon termination or resignation, Defendants are liable for continuing wages

under Labor Code section 203 for the period of time from four years prior to the filing of

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the Complaint to date.

103. Plaintiffs and the Class Members request relief under the provisions of

Section 203 of the California Labor Code as described below.

EIGHTH CLAIM FOR RELIEF

(As against All Defendants on behalf of Plaintiffs and the Class -- Violations of

Section 17200 et seq. of the California Business and Professions Code)


reference.

105. Defendants’ acts constitute a continuing and ongoing unlawful activity

prohibited by section 17200 et seq. of the California Business and Professions Code, and

they justify restitution and the issuance of an injunction pursuant to section 17203 of the

Business and Professions Code.

106. Labor Code section 90.5(a) articulates the public policy of this State to

enforce minimum labor standards vigorously, including the requirements to pay

minimum wages, overtime wages and benefits pursuant to Labor Code sections 510, 515,

1194, and 1198; the requirements to provide accurate itemized wage statements and to

keep payroll records pursuant to Labor Code sections 226, 226.3, 1174, and 1174.5; the

requirement to provide adequate meal and rest periods pursuant to Labor Code sections

226.7 and 512; and the requirement to pay wages earned and unpaid promptly pursuant to

Labor Code section 203. Defendants’ conduct of requiring certain employees to work an

excessive amount of hours in the absence of overtime, without providing accurate

itemized wage statements, without providing adequate meal and rest periods, and without

paying wages earned and unpaid promptly upon termination or resignation directly

violates state law. Furthermore, the Defendants’ systematic violations of the FLSA

constitute unfair competition and/or unlawful and unfair acts and practices within the

meaning of section 17200 et seq. of the California Business and Professions Code.

107. Through the wrongful and illegal conduct alleged herein, Defendants have

acted contrary to the public policy of this State.

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108. Defendants engaged in unlawful business acts and practices by violating

California law, including but not limited to, sections 201, 202, 203, 204, 226, 226.7, 510,

512, 515, 1174, 1194, and 1198 of the California Labor Code and 8 California Code of

Regulations section 11050.

109. Under the provisions of the section 17203 of the California Business and

Professions Code, Plaintiffs and each Class Member should receive restitution for

Defendants’ failure to pay overtime wages, Defendants’ failure to provide accurate

itemized wage statements and to keep payroll records, Defendants’ failure to provide

adequate meal and rest periods, and Defendants’ failure to provide wages earned and

unpaid promptly upon termination or resignation, in a sum according to proof for the

period of time from the four years preceding the filing of the Complaint to date.

110. As a result of Defendants’ violations of 17200 et seq. of the California

Business and Professions Code, Defendants have unjustly enriched themselves at the

expense of Plaintiffs, Class Members, and the general public.

111. To prevent this unjust enrichment, Defendants should be required to make

restitution to Plaintiffs and Class Members, as identified in this Complaint (and as will be

identified through discovery into Defendants’ books and records), for the period of time

from the four years preceding the filing of the Complaint to date.

112. Plaintiffs also request that the Court enter such orders or judgments as may

be necessary to restore to any person in interest any money that may have been acquired

by means of such unfair practices, as provided in section 17203 of the California

Business and Professions Code.

113. Plaintiffs and Class Members are “persons” within the meaning of section

17204 of the California Business and Professions Code, and each has standing to bring

this claim for relief.

114. Injunctive relief is necessary to prevent Defendants from continuing to

engage in unfair business practices, as alleged herein. Defendants have done, or are now

doing and will continue to do or cause to be done, the herein-described illegal acts unless

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restrained or enjoined by the Court.

115. The conduct of Defendants, as alleged herein, has been and continues to be

deleterious to Plaintiffs, Class Members and the general public. By this action, Plaintiffs

seeks to enforce important rights affecting the public interest within the meaning of

section 1021.5 of the California Code of Civil Procedure.

116. Pursuant to section 17203 of the California Code of Civil Procedure,

Plaintiffs, on behalf of themselves and all current and former Class Members, requests

injunctive relief and restitution of all sums obtained by defendants in violation of section

17200 et seq. of the California Business and Professions Code for the period of time from

the four years preceding the filing of the Complaint to date.

117. Plaintiffs and the Class Members also request relief as described below.

NINTH CLAIM FOR RELIEF

(Retaliation and Wrongful Termination in Violation of California Labor Code

§ 1102.5 on Behalf of Plaintiff Carr only against all Defendants)


reference.

119. An employer may not retaliate against an employee for disclosing

Information to a government or law enforcement agency, where the employee has a

reasonable cause to believe that the information discloses a violation of a state or federal

statute, or a violation or noncompliance with a state or federal rule or regulation.

120. This is a claim for relief that arises out of retaliation by Defendants against

Plaintiff Carr on account of his continuous reporting of patient abuse and violations of

health and safety issues relating to Defendants’ facility, residents and employees.

121. California Labor Code section 1102.5 provides:

a. An employer may not make, adopt, or enforce any rule, regulation, or policy

preventing an employee from disclosing information to a government or law

enforcement agency, where the employee has reasonable cause to believe

that the information discloses a violation of state and federal statute, or a

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violation or noncompliance with a state or a federal rule or regulation.

b. An employer may not retaliate against an employee for disclosing

information to a government or law enforcement agency, where the

employee has reasonable cause to believe that the information discloses a

violation of state or federal statute, or a violation or noncompliance with a

state or federal rule or regulation.

c. An employer may not retaliate against an employee for refusing to

participate in an activity that would result in a violation of state or federal

statute, or a violation or noncompliance with a state or federal rule or

regulation.

d. An employer may not retaliate against an employee for having exercised his

or her rights under subdivision (a), (b), or (c) in any former employment.

e. A report made by an employee of a government agency to his or her

employer is a disclosure of information to a government or law enforcement

agency pursuant to subdivisions (a) and (b).

f. In addition to other penalties, an employer that is a corporation or limited

liability company is liable for a civil penalty not exceeding ten thousand

dollars ($10,000) for each violation of this section.

g. This section does not apply to rules, regulations, or policies which

implement, or to actions by employers against employees who violate, the

confidentiality of the lawyer-client privilege of Article 3 (commencing with

Section 950), the physician-patient privilege of Article 6 (commencing with

Section 990) of Chapter 4 of Division 8 of the Evidence Code, or trade

secret information.

Cal. Lab. Code § 1102.5

122. As a proximate result of Defendants’ wrongful conduct, Plaintiff Carr

has suffered, and continues to suffer, substantial damages and losses in earnings and job

benefits in an amount to be determined according to proof at the time of trial. Defendants

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are also liable to pay penalties pursuant to California Labor Code section 1102.5(f).

123. In doing the acts herein alleged, Defendants acted with oppression, fraud,

malice, and in conscious disregard of the rights of Plaintiff Carr, and Plaintiff Carr is

therefore entitled to putative damages against Defendants in an amount appropriate to

punish and make an example of Defendants.

TENTH CLAIM FOR RELIEF

(Retaliation and Wrongful Termination in Violation of Public Policy on

Behalf of Plaintiff Carr only against all Defendants)


reference.

125. Under California law, no employee can be terminated for a reason that is in

violation of a fundamental public policy. A fundamental public policy includes the

violation of any constitutional provision, statutory provision or regulation that is

concerned with a matter effecting society at large and that is fundamental, substantial and

well established at the time of termination. To this end, in California, there is a

fundamental and well-established public policy against retaliating against employees for

opposing unlawful activities, including, but not limited to, complaining about reporting

patient abuse and health violations related to Defendants’ facility, residents and

employees. This fundamental public policy is embodied in the California Constitution

and California statutory law. Adverse employment actions taken by an employer in

response to such activity are contrary to such public policy and are thus actionable under

the common law of California.

126. This is a claim for relief arises out of retaliation by Defendants against

Plaintiff Carr on account of Plaintiff Carr notifying Defendants and filing reports

regarding patient abuse and health, safety and employment violations that were occurring

at Defendants’ facility.

127. As set forth above, Defendants retaliated against Carr by terminating his

employment. In terminating Plaintiff Carr for reporting and complaining about patient

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abuse and health, safety and employment violations that were occurring at Defendants’

facility, Defendants violated the fundamental public policies of the State of California,

including without limitation, California Labor Code section 1102.5, California Health

and Safety Code section 1278.5, California Government Code section 12940 et. seq.,

California Government Code sections 12940(a) and (g), the California Constitution and

other criminal and civil statutes.

128. As a proximate result of Defendants’ wrongful conduct, Plaintiff Carr has

suffered, and continues to suffer, substantial losses in earnings and job benefits in an

amount to be determined according to proof at the time of trial.

129. In doing the acts herein alleged, Defendants acted with oppression, fraud,

malice, and in conscious disregard of the rights of Plaintiff Carr, and Carr is therefore

entitled to punitive damages against Defendants in an amount appropriate to punish and

make an example of Defendants.

ELEVENTH CLAIM FOR RELIEF

(Retaliation for Engaging in Protected Activity – California Government

Code section 12940(g) and (h) on Behalf of Plaintiff Carr only against all

Defendants)


reference.

131. California Government Code § 12940(g) provides that it is an unlawful

employment practice for an employer to discharge, expel, or otherwise discriminate

against any person because the person has reported suspected patient abuse by health

facilities or community care facilities. Furthermore, California Government Code §

12940(h) provides that it is an unlawful employment practice for an employer to

“discharge, expel, or otherwise discriminate against any person because the person

opposed any practices forbidden under this part.”

132. Defendants employed Plaintiff Carr as an LVN at its facility in Petaluma.

Plaintiff Carr always performed his job well. Throughout the tenure of his employment,

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however, Plaintiff Carr continuously reported and informed his supervisors and

Defendants’ management and Human Resources department regarding patient abuse that

was occurring at the GLCP. On or about June 13, 2011, Defendants terminated Carr's

employment in retaliation for his continued reports of patient abuse.

133. As a proximate result of the acts of Defendants, as described above, Plaintiff

Carr suffered economic damages, including lost wages and benefits, and other

compensatory damages. As a further proximate result of these acts of Defendants,

Plaintiff Carr has suffered humiliation, mental and physical distress, anxiety, nervousness

and severe emotional distress.

134. As a further proximate result of the above-described acts of Defendants,

Plaintiff Carr has necessarily incurred attorney's fees and costs. Pursuant to the provisions

of California Government Code § 12965(b), Carr is entitled to the reasonable value of

such attorney's fees and costs.

135. The above-described acts of Defendants were willful, intentional, and

malicious and done with the intent to vex, injure and annoy Plaintiff Carr. Said acts were

done in willful disregard of Plaintiff Carr's rights and Defendants were aware that their

acts were illegal and were done in conscious disregard of Plaintiff Carr's rights.

Therefore, this case warrants the imposition of exemplary and punitive damages in an

amount sufficient to punish said Defendants and to deter others from engaging in similar

conduct.

TWELFTH CLAIM FOR RELIEF

(Sexual Orientation Discrimination—California Government Code section

12940(a) and (h) on Behalf of Plaintiff Carr only against all Defendants)

136. The allegations contained in this Complaint are hereby incorporated by this

reference as if fully set forth herein.

137. This cause of action is brought pursuant to California Government Code

section 12940(a), which makes it illegal to discriminate on the basis of sexual orientation.

Furthermore, California Government Code § 12940(h) provides that it is an unlawful

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employment practice for an employer to “discharge, expel, or otherwise discriminate

against any person because the person opposed any practices forbidden under this part.”

138. Defendants, by and through its agents and employees, discriminated against

Plaintiff Carr based on his sexual orientation by performing the things, acts, and

omissions herein alleged.

139. As a direct and proximate result of the conduct of these Defendants, and

each of them, Plaintiff Carr suffered discrimination and harassment in the course of his

employment and was eventually terminated, resulting in him suffering emotional anguish

and distress, loss of income, and other special and general damages, all in an amount to

be proven at trial.

140. In doing the things herein alleged, the conduct of Defendants was despicable

and Defendants acted towards Plaintiff Carr with malice, oppression, fraud, and with a

willful and conscious disregard of Carr’s rights, entitling him to an award of punitive and

exemplary damages pursuant to California Civil Code section 3294 and Government

Code section 12940.

141. Pursuant to Government Code section 12965(b), Plaintiff Carr requests an

award of attorney's fees against Defendants.

142. Plaintiff Carr also requests the relief as described below.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs prays for judgment against Defendants as follows:

As to the First Claim for Relief:

1. For damages in an amount according to proof at time of trial representing the

amount of unpaid minimum wage and overtime compensation owed to Plaintiffs and

Class Members for the period of time from June 8, 2008 to May 23, 2014; For interest

calculated according to law on any unpaid minimum wage and overtime compensation

due from the day such amounts were due for the period of time from June 8, 2008 to May

23, 2014; For reasonable attorney’s fees and costs of bringing this suit pursuant to section

1194(a) of the Labor Code.

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As to the Second Claim for Relief:

2. For damages in an amount according to proof at time of trial for not

providing accurate itemized wage statements to Plaintiffs and Class Members for the

period of time from June 8, 2008 to May 23, 2014; For reasonable attorney’s fees and the

costs of bringing this suit pursuant to section 226(e) of the California Labor Code.

As to the Third Claim for Relief:


amount of unpaid overtime compensation owed to Plaintiffs and Class Members for the

period of time from June 8, 2008 to May 23, 2014; For liquidated damages pursuant to

29 U.S.C. § 216(b); For attorney’s fees and the costs of bringing this suit pursuant to 29

U.S.C. § 216(b).

As to the Fourth Claim for Relief:

4. For damages in an amount of $750 representing the penalty to which

Plaintiff Veurink is entitled on account of Defendants’ failure to comply with her request

for data pursuant to the provisions of section 226 (c) of the California Labor Code; For

attorney’s fees and the costs of bringing this suit pursuant to the provisions of section 226

(h) of the California Labor Code, as well as an injunction requiring Defendants’

compliance with the requirements of the statute.

As to the Fifth Claim for Relief:


amount of unpaid compensation owed to Plaintiffs and Class Members for inadequate

meal periods for the period of time from June 8, 2008 to May 23, 2014; For interest

calculated according to law on any unpaid compensation due from the day such amounts

were due for inadequate meal periods for the period of time from June 8, 2008 to May 23,

2014; For reasonable attorney’s fees and the costs of bringing this suit.

As to the Sixth Claim for Relief:


amount of unpaid overtime compensation owed to Plaintiffs and Class Members for

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inadequate rest periods for the period of time from June 8, 2008 to May 23, 2014; For

interest calculated according to law on any overtime compensation due from the day such

amounts were due for inadequate rest periods for the period of time from three years prior

to filing the Complaint to date; For reasonable attorney’s fees and the costs of bringing

this suit.

As to the Seventh Claim for Relief:

7. For continuing wages pursuant to California Labor Code section 203 for

each instance of the willful failure to pay wages; For the costs of bringing this suit.

As to the Eighth Claim for Relief:

8. For an order requiring Defendants to show cause, if any, why they should

not be enjoined, as set forth herein above, during and after the pendency of this action.

9. For an order that Defendants pay restitution of sums to Plaintiffs and to each

Class Member for Defendants’ past failure to pay overtime wages, withholding taxes,

matching funds, Social Security, Medicare, Unemployment, and Worker’s Compensation

premiums in violation of section 17200 et seq., in an amount according to proof, for the

period of time from June 8, 2008 to May 23, 2014.

10. For an order that Defendants pay restitution of sums to Plaintiffs and to each

Class Member for Defendants’ past failure to provide accurate itemized wage statements

and to keep payroll records in violation of section 17200 et seq., in an amount according

to proof, for the period of time from June 8, 2008 to May 23, 2014.

11. For an order that Defendants pay restitution to Plaintiffs and to each Class

Member for Defendants’ past failure to provide adequate meal and rest periods in

violation of section 17200 et seq., in an amount according to proof, for the period of time

from June 8, 2008 to May 23, 2014.

12. For an order that Defendants pay restitution to Plaintiffs and to each Class

Member for Defendants’ past willful failure to pay wages earned and unpaid promptly

upon termination or resignation in violation of section 17200 et seq., in an amount

according to proof, for the period of time from June 8, 2008 to May 23, 2014.

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As to the Ninth Claim for Relief:

13. That, under the Ninth Cause of Action, it be adjudged that Defendants

violated California Labor Code section 1102.5 and Plaintiff Carr be awarded general and

compensatory damages in an amount according to proof at time of trial, penalties as well

as punitive damages against Defendants in an amount appropriate to punish and make an

example of Defendants.

As to the Tenth Claim for Relief:

14. That, under the Tenth Cause of Action, it be adjudged that Defendants

violated public policy and Plaintiff Carr be awarded general and compensatory damages

in an amount according to proof at time of trial, as well as punitive damages against

Defendants in an amount appropriate to punish and make an example of Defendants.

As to the Eleventh Claim for Relief:

15. For a money judgment to Plaintiff Carr representing compensatory and

general damages including lost wages, earnings retirement benefits and other employee

benefits, and all other sums of money, together with interest on these amounts, according

to proof; For a money judgment to Plaintiff Carr for mental pain and anguish and

emotional distress, according to proof; For an award of exemplary and punitive damages

to Plaintiff Carr, according to proof; For costs of suit and attorney's fees; and For pre-

judgment and post-judgment interest.

As to the Twelfth Claim for Relief:

16. For a money judgment to Plaintiff Carr representing compensatory damages

including lost wages, earnings retirement benefits and other employee benefits, and all

other sums of money, together with interest on these amounts, according to proof; For a

money judgment to Plaintiff Carr for mental pain and anguish and emotional distress,

according to proof; For an award of exemplary and punitive damages, according to proof;

For costs of suit and attorney's fees; and for pre-judgment and post-judgment interest.

As to All Claims for Relief:

17. Costs of suit and disbursements incurred, all interest as allowed by law,

1 where available and proper, for attorneys' fees and costs incurred pursuing these claims,

2 and for such other and further rei ief as this Court may deem fit and proper.

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DATED: September 16, 20 15 HARRIS & RUBLE N9f-TH BF GROUP

~~(/\~

42 FIRST AMENDED COMPLAINT

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PROOF OF SERVICE

I am attorney for the plaintiffs herein, over the age of eighteen years, and not a pa~ to the within action. My business address is 116 E. Blitheoale A venue, Suite No. 2, Mill Valley, CA 94941. On September 18, 2015, I served the within documents:

NOTICE OF LODGING (PROPOSED) FIRST AMENDED COMPLAINT

Hand Delivery: I caused such envelope to be delivered by hand in person to:

N/A

Facsimile: I caused such envelope to be delivered by e-mail or fax to:

N/A.

I am readily familiar with the Firm's practice of collection and processing correspondence for mailing. Under tliat practice it would be deposited w1th the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business, addressed as follows:

Sharon Bauman Manatt, Phelps & Phillips, LLP 1 Embarcadero Center 30th Floor San Francisco, CA 94111

I declare under penalty of perj_u:ry that t~e ab9ve is true and correct. Executed on September 18,2015, at Mill Valley, Cahfornm.

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