apple california labor code class action suit - amended complaint 4
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JEFFREY L. HOGUE (SBN 234557)TYLER J. BELONG (SBN 234543)BRYCE A . DODDS (SBN 283491)HOGUE BELONG430 Nutmeg Street, Second Floor
San Diego, CA 92103Tel: (619) 2384720Fax: (619) 270-9856
Attorneys for Plaintiffs
BRANDON FELCZER, individually, )
RYAN GOLDMAN, individually, )RAMSEY HAWKINS, individually, and)JOSEPH LANE CARCO, on behalf of )themselves and all others similarlysituated,
)Plaintiffs,
)vs.
))
APP LE INC ., a California corporation; )and DOES 1 through 300, inclusive. )
)Defendants.
))))))))))))))))))
a
O C Pent c 6 2 1 3
E
CASE NO.: 37-2011-00102593-CU-0E-CTL
FOURTH AMENDED CLASS ACTIONCOMPLAINT FOR DAMAGES
1. Violation of California Labor Code 226.7512 Failure to Provide Meal Periods;
2. Violation of California Labor Code 226.7 Failure to Provide Rest Periods;
3. Violation of Labor Code 201-203 Failureto Pay all Wages Due Upon Ending ofEmployment;
4. California Labor Code 226 and 11741175 Failure to Provide A ccurate ItemizedEmp loyee W age Statements;
5. Violation of Business and Professions Code17200 et seq. U nfair Business Practices;and
6. Violation of Labor Code 2698, et seq.Private Attorney General Act.
DEMAND FOR JURY TRIAL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGOCENTRAL
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FOURTH AMENDED CLASS ACTION COMPLAINT FOR DAMAGES
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Plaintiffs Brandon Felczer, Ryan Goldman, Ramsey Hawkins, and Joseph Lane Carco
behalf themselves and all others similarly situated, and demanding trial by jury, complain an
allege upon information and b elief as follows:
INTRODUCTION
1. This is a class action brought by plaintiffs Brandon Felczer ( Felczer ), Ryan
Goldman ( Goldman ), Ram sey Hawk ins ( Hawk ins ), and Joseph Lane Carco ( C arco )
(collectively, Plaintiffs ), on behalf of themselves and all others similarly situated (collectiv
hereinafter referred to as Plaintiff Class or Plaintiff Subclass Nos. I - 3 ), wh o have susta
injuries or damages arising out of the defendant's deliberate violations of the wage a nd hour
of the State of California by,inter alia App le Inc.'s ( D efendant or Apple ) failure to properl
com pensate employees, including, but not limited to, compensation for missed m eal and res
periods, for its failure to furnish accurate itemized wage statements, and for not paying upo
ending em ployment.
2. Plaintiffs petition this Co urt to allow them to represent and prosecute claims
against Defendan t in class action proceedings on behalf of all those similarly situated who a
residents of the State of California.
JURISDICTION AND VENUE
3. This class action is brought pursuant to California Code of C ivil Procedure sec
382. The monetary d amages and restitution sought b y P laintiffs exceed the m inimal jurisdic
limits of the Superior Court.
4. This Co urt has jurisdiction over this action pursuan t to the California Constitut
Article VI, section 10, which grants the Superior Court, Original jurisdiction in all causes e
those given by statute to other courts. The statutes which this action is brough t do not spec
any other basis for jurisdiction.
5. This Court has jurisdiction over Defen dant because upon inform ation and belie
each party is either a citizen of California, has sufficient minimum contacts in California, or
otherwise intentionally avails itself of the California m arket so as to render the ex ercise of
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jurisdiction over it by the California courts consistent with traditional notions of fair play and
substantial justice.
6. Venue as to each defendant is proper in this judicial district pursuant to California
Code of Civil Procedure sections 395(a) and 395.5 as a portion of the acts complained of herein
occurred in the Coun ty of San Diego. The injuries to Plaintiffs and several others in the Plaintiff
Class occurred in the County of San Diego. Each d efendant either owns, maintains offices,
transacts business, has an agent or agents within the County of San Diego or otherwise is found
within the Coun ty of San Diego. Plaintiff Felczer was employed by Defendant in the County of
San Diego.
THE PARTIES
7. Plaintiffs Felczer, Goldman, Hawkins, and Carco are ind ividuals and residents of
the State of California. Plaintiffs Felczer, Goldman, Hawkins, and Carco at a ll relevant times have
been non-exempt employees of Apple.
8. Apple is a California corporation, with its principal place of business in California.
It employs approximately 18,000 non-exempt employees who reside in the State of California.
9. The true names and capacities, whether individual, corporate, partnership, associate
or otherwise of defendant DOES 1 through 300, inclusive, are unknown to Plaintiffs who therefore
sue Defendant by such fictitious names pursuant to California Code of Civil Procedure section
474. Plain tiffs will either seek leave to amend this Fourth Amended C lass Action Complaint or
file a DOE statement to allege the true names and capacities of DOES 1 through 300, inclusive,
when they are ascertained. Apple and DOES 1 through 300 may collectively be referred to as
"Defendants."
10. Plaintiffs are informed and believe, and based u pon that information and belief
allege, that each of the defendants named in this Fourth Amended Class Action Complaint,
including DOES 1 through 300, are responsible in some manner for one or more of the events that
proximately caused the injuries and damages hereinafter alleged.
11. Plaintiffs are informed and believe, and based u pon that information and belief
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FOURTH AMENDED CLASS ACTION COMPLAINT FOR DAMAGES
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allege, that each defendan t named in this Fourth Amended Class Action Complaint, including
DOES 1 through 300, inclusive, knowingly and willfully acted in concert, conspired and agreed
together among themselves and entered into a combination and systemized campaign of activity to
inter alia damage Plaintiffs, the Plaintiff Class (defined below), and the Plaintiff Subclasses
(defined below), and to otherwise consciously and/or recklessly act in derogation of the Plaintiff
Class' rights and the trust reposed by the Plain tiff Class in each of said Defendants, said acts being
negligently and/or intentionally inflicted. Said conspiracy, and Defendants' concerted actions,
were such that, to Plaintiff Class' information and belief, and to all appearances, Defendants, and
each of them, represented a unified body so that the actions of one defendant was accomplished in
concert with, and with knowledge, ratification, authorization and approval of each of the other
defendants.
12. Plaintiffs are informed and believe, and based upon that information and belief
allege, that each of the defendants named in this Fourth Amended Class Action Complaint,
including DOES 1 through 300, inclusive, are, and at all times mentioned herein were, the agent,
servant, alter ego, and/or employee of each of the other defendan ts and that each defendant was
acting within the course of scope of his, her, or its authority as the agent, servant and/or employee
of each of the other defendants. Consequently, all of the defendants are jointly and severally liable
to Plaintiffs, the Plaintiff Class, and the Plaintiff Subclass (as defined below) for the damages
incurred as a proximate result of their conduct.
FACTUAL ALLEGATIONS
13. Plaintiffs bring this Class Action against Defendants to recover for, among other
things, failure to provide meal and rest periods, failure to furnish accurate itemized wage
statements, and failure to timely pay wages on the end of employment, interest, attorneys' fees,
penalties, costs, and expenses on behalf of themselves, the Plaintiff Class, and the Plaintiff
Subclasses. Plaintiffs reserve all rights to name additional representatives.
14. Plaintiffs are former non-exempt employees of Apple, and DOES 1 through 300,
within the four (4) years preceding the filing of this action.
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FOURTH AMENDED CLASS ACTION COMPLAINT FOR DAMAGES
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15. Plaintiff Felczer worked for Apple from approx imately Septembe r 9, 2010 unt
November 23, 2011.
16. Plaintiff Goldman worked for Apple from approximately December 11, 2009 u
January 11, 2011.17. Plaintiff Haw kins worked for Apple from a pproximately October 2001 u ntil
November 13, 2012.
18. Plaintiff Carco w orked for Apple from approxim ately June 1999 until
approximately June 20, 2008.
19. At all times Plaintiffs and the Plaintiff Class were classified as non-exem pt u
the applicable Industrial W age Com mission Orders, California Regulations, and the Californ
Labor Code.
20. Defendants' meal period policy was facially non-compliant with the law and w
applied uniformly to all of its non-exempt employees. Defendants' meal period policy cause
Plaintiffs to work ov er five straight hours w ithout being afforded an opportunity to take a me
period. Plaintiffs have never been compensated the additional hour of their regular rate of p
during the occasions where they w ere required to work more than 5 hou rs without being pro
a meal period as required by California Labor Code section 226.7 and applicable IWC WageOrders.
21. Plaintiffs never w aived their right to a meal period.
22. Each non-exem pt employee is required to clock-in and clock-out during each m
period; thus, verification of Defenda nts' meal period violations herein alleged can be ascerta
23. Defendants' rest period policy was facially non-compliant with the law and w a
applied uniformly to all of its non-exempt employees. Apple's rest period policy caused Plai
to miss and/or take untimely rest periods for every four hours of w ork or ma jor fraction there
Plaintiffs have never bee n com pensated the additional hour of their regular rate of pay as req
by California Labor Code section 226.7 and applicable IWC Wage Orders during the occasio
where they w orked four hours or a m ajor fraction thereof without receiving a timely rest peri
24. Defendan t systematically failed to timely pay its employees u pon separation of
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major fraction thereof w ithout a rest period; (iii) not properly com pensating Plaintiffs upon t
day of em ployment, and (iv) furnishing inaccurate w age statements to P laintiffs in violation
Industrial We lfare Comm ission Orders, California Code of Regulations, and California Labo
Code sections 201, 202, 203, 226, 226.7, 232.5, 512, and 2698,et seg.32. Plaintiffs are informed, believe, and thereon allege that the acts and om issions
alleged herein were perform ed by, and/or attributable to, all Defendants, each acting as agent
and/or employees, and/or und er the direction and con trol of each of the other Defendants, an
said acts and failures to act were w ithin the course and scope of said agency, employm ent an
direction and control.
33. As a direct and proximate result of D efendants' unlawful actions, Plaintiffs, the
Plaintiff Class, and the Plaintiff Subclasses have been d enied wag es and have otherw ise been
damaged.
CLASS ALLEGATIONS
34. This class action is properly brought pursuant to the provisions of C alifornia C
of Civil Procedure section 382, and the procedural provisions of Rule 23 of the Federal Ru le
Civil Procedure, which hav e been adopted by the California Supreme C ourt for use by the tr
courts of this State. Plaintiffs bring this class action on behalf of them selves and all others
similarly situated, with Plaintiffs proceeding as the representative mem bers of the proposed c
defined as follows:
All current, former, or prospective non-exem pt employees in the S tate of Californiawho have w orked for Apple from Decem ber 16, 2007 up to and including the timeof trial for this matter without receiving com pensation for missed o r late mealperiods in violation of the California Labor Cod e and applicable wage orders.( Plaintiff Class. )
Plaintiffs also seek certification of the following subc lass:
All current, former, or prospective non-exempt em ployees in the State of Californiawho have w orked for Apple from Decem ber 16, 2007 up to and including the timeof trial for this matter without receiving com pensation for missed rest periods inviolation of the California Labor Cod e and applicable wage orders. ( PlaintiffSubclass No.1.")
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Plaintiffs, Felczer, Goldm an, and H awkins also seek ce rtification of the following
subclass:
All current, former, or prospective non-exempt em ployees in the State of Californiawho have w orked for Apple from D ecember 16, 2008 up to and including the timeof trial for this matter who w ere not timely paid all wages due to them uponseparation, in violation of California Labor Cod e sections. ( Plaintiff Subclass No.2. )
Plaintiffs also seek certification of the follow ing subclass:
All current, former, or prospective non-exempt em ployees in the State of Californiawho have w orked for Apple from D ecember 16, 2007 up to and including the timeof trial for this matter who w ere furnished an itemized w age statement that was n otin compliance with the California Labor Code an d applicable wage orders.( Plaintiff Subclass No. 3. )
Plaintiffs reserve the right under California Rules of Court, Rule 3.76 5 to amen d or m
the Class d escription w ith greater specificity or further d ivision into subclasses or limitation
particular issues.
35. This action has been brought and m ay properly be maintained as a class action
pursuant to the provisions of California Code of C ivil Procedure section 382, because there i
well-defined community of interest in the litigation and because the proposed class is easily
ascertainable, and for the other reasons explained in this Fourth Am ended C lass Action
Complaint.
36. The persons w ho com prise the Plaintiff Class are so nume rous that joinder of a
such persons would be unfeasible and impracticable. The membership of the entire Plaintiff
is approximately 18,000.
37. There are com mon q uestions of fact and law arising out of Defendants' conduc
described in this Fourth A mended Class Action C omplaint, as well as its continued practice
engaging in illegal payroll, wage and hour and break policies as to all members of the Plain
Class. The action focuses on the Defendants' systematic course of illegal payroll practices o
policies, which was applied to all non -exempt em ployees in violation of the Ca lifornia Indus
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Welfare Commission Wage Orders, California Code of Regulations, the California Labor Co
and the C alifornia Business and Professions Code w hich prohibits unfair business practices
from such violations.
38. urthermore, these common questions of law and fact predominate over questiaffecting only individual mem bers, including (without limitation):
a. Whether Apple's meal period policy was facially compliant under Californlaw;
b. Whether Apple's rest period policy was facially compliant under Californialaw;
c. Whether Apple's final paycheck policy was facially compliant under Califolaw;
d. Wh ether Apple had a comm on scheduling practice that made taking timelymeal periods extremely d ifficult;
e. Wh ether Apple had a practice of pressuring the Plaintiff Class to take late mperiods;
F. Whether Apple had a practice of pressuring Plaintiff Subclass No. 1 to forgrest periods;
g. Wh ether Apple had a practice of pressuring Plaintiff Subclass No. 1 to takeuntimely rest periods;
h. The num ber of hours per week the Plaintiff Class was expected to wo rk, anwhether or not that was reasonable;
i. The num ber of hours per day the Plaintiff Class was expected to work, andwhether or not that w as reasonable;
The allocation of the num ber of hours per day that the Plaintiff Class wasexpected to work, and w hether or not that was reasonab le;
k. Wh ether the Plaintiff Class ever worked m ore than 5 hou rs for Apple with30-minute m eal period;
I. Whether A pple failed to provide the Plaintiff Class with meal period penalpayments pursuant to Labor Code section 226.7 for all occasions where meperiods were not received u ntil after 5 hours into their shifts;
m. Whether Apple failed to provide Plaintiff Subclass No. I with statutory penpaymen ts pursuant to Labor Code section 226 .7 for all shifts where they didreceive a rest period every four ho urs or m ajor fraction thereof;
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n. Wh ether Apple failed to issue timely paym ents to the Plaintiff Class inviolation of California Labor Code section 202 ;
o. Wh ether Apple failed to issue timely paym ents to the Plaintiff Class in
violation of California Labor Code section 201 ; and
p. Wh ether Apple's labor policies violate California Labor Code section 232 .5
39. The defenses o f Defendants, to the extent that any such defense is applied, are
applicable generally to the who le Plaintiff Class and are not distinguishable in individual cla
40. The claims o f Plaintiffs herein are typical of the claims for the me mbers of the
Plaintiff Class as a wh ole, all of whom h ave incurred and/or w ill incur dam ages, including
irreparable harm, as a proximate or legal result of the common course of the conduct of
Defendants as complained of in this Fourth Am ended Class Action Com plaint. The claims
Plaintiffs are typical of Plaintiff Class because Defen dants subjected all of its non-exem pt
employe es to the identical violations of the California Industrial Welfare Com mission W age
Orders, California Code of R egulations, the California Labor Code, and the C alifornia Busin
and Professions C ode, which proh ibit unfair business practices arising from such violations.
41. Plaintiffs, on beh alf of them selves and all others similarly situated, will fairly a
adequately protect the interests of all mem bers of the Plaintiff Class, in connection with w hi
they have retained a ttorneys. Plaintiffs are able to fairly and adeq uately protect the interests
mem bers of the Plaintiff Class because it is in their best interests to prosecute the claims a lle
herein to obtain full compensation due to them for all services rendered and h ours worke d.
Further, Plaintiffs' counsel are adeq uate class coun sel as they h ave previously ce rtified, litiga
and tried many other wag e and hour class actions.
42. Under the facts and circum stances set forth above, class action proceedings are
superior to any other m ethods available for both fair and efficient adjudication of the rights o
class member w ho has, or in the past was, a non-exempt em ployee, inasmuch as joinder of
individual mem bers of the Plaintiff Class is not practical and, if the sam e were practical, said
Plaintiff Class mem bers could not individually afford the litigation, such that individual litig
wou ld be inappropriately burdensome, not only to said citizens, but also the courts of the nat
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43. To process individual cases would increase both the expenses and the delay no
only to class members, but also to Defendants and the Court In contrast, a class action of th
matter will avoid case manag emen t difficulties and provide m ultiple benefits to the litigating
parties, including efficiency, econo mies of scale, unitary adjudication with co nsistent resultsequal protection of the rights of each class memb er, all by way of the com prehensive and eff
supervision of the litigation by a single court.
44. There is a co mm unity of interest in obtaining appropriate legal and equitable re
for the comm on law an d statutory violations and other im proprieties, and in obtaining adequ
com pensation for the damages and injuries which Defend ants' actions have inflicted upon th
Plaintiff Class.
45. There is a com mu nity of interest in ensuring that the combined assets and avai
insurance of the Defend ants are sufficient to adequately com pensate the mem bers of Plaintif
Class for the injuries sustained.
46. Plaintiffs, the Plaintiff Class, and the P laintiff Subclasses are en titled to the mo
unlaw fully withheld from them . Further, the public is entitled to restitution and restitutionar
disgorgement of those funds being improperly withheld by D efendants, and each of them. T
action is brought as a representative action under the U nfair Com petition Law and the PrivatAttorney Gen eral Act for the benefit of the public.
47. Notice of the pendency a nd any result or resolution of the litigation can be prov
to Plaintiff Class and Subclass mem bers by the usual forms of publication or such other meth
of notice as deemed appropriate by the Court.
48. W ithout class certification, the prosecution of separate actions by individual
mem bers of the Plaintiff Class and Sub classes would create a risk of:
a. Inconsistent or varying adjudications with respect to individual memb ers ofPlaintiff Class and Subclasses that would establish incompatible standards conduct for Defend ants; or
b. Adjudications w ith respect to the individual mem bers of the Plaintiff Class Subclasses that w ould, as a practical matter, be disparities of the interests ofother mem bers not parties to the adjudication, or would sub stantially impairimpede their ability to protect their interest.
FOURTH AMENDED CLASS ACTION COMPLAINT FOR DAMAGES
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FIRST CAUSE O F ACTION
FOR FAILURE TO PROVIDE MEAL PERIODS
(Against All Defendants)
[California Labor Code 22 6.7, 512]
49. Plaintiffs and Plaintiff Class re-allege and incorporate by reference, as thou gh
set forth herein, all of the preceding paragraphs of this Fourth Am ended C lass Action Com p
50. This cause o f action is brought by P laintiffs and Plaintiff Class. This cause o f
action is pled against Defend ants.
51. Applicable IWC Wage Orders and California Code of Regulations require that
employ ers authorize and permit all employees to take a duty free m eal period of at least thir
minutes w ithin the first five (5) hours worked.52. California Labor Code section 512 provides that no em ployer shall employ any
person for a work period of m ore than five (5) hours without a duty free m eal period of not l
than 30 minutes.
53. Applicable IWC W age Orders and C alifornia Code of R egulations provide tha
an em ployer fails to provide an em ployee a duty free mea l period in accordance with this sec
the employer shall pay the employee one (1) hour of pay at the employee's regular rate of
com pensation for each workday that the meal period is not provided.
54. Further, Plaintiffs are entitled to damag es under C alifornia Labor Code section
226 .7 of one additional hour of pay at the em ployee's regular rate of pay for each duty free m
period that was not provided.
55. Defendan ts, and each of them, have intentionally and improperly denied m eal
periods to Plaintiffs and the Plaintiff Class in violation of all applicable W age Orders, C alifo
Regulations, and California Labor Code sections.56. For at least four years preceding the filing of this action, Defendants failed to
provide Plaintiffs and the Plaintiff Class meal periods as required by law.
57. By virtue of Defend ants' unlawful failure to provide timely m eal periods to the
Plaintiff Class, they have incurred, and w ill continue to incur, dama ges in amo unts which are
presently unknow n to the Plaintiff Class, but which exceed the jurisdictional limits of this C
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and which will be ascertained according to proof at trial.
58. The Plaintiff Class is informed, believes, and based upon that information and
belief alleges that Defendants, and each of them, purposely and knowingly elected not to
compensate Plaintiffs and the Plaintiff Class an additional hour of their regular rate of p y during
the occasions that they worked more than 5 straight hours.
59. Defendants, and each of them, acted intentionally, oppressively and maliciously
toward the Plaintiffs and the Plaintiff Class with a conscious disregard of their rights, or the
consequences to Plaintiffs and the Plaintiff Class, with the intent of depriving its non-exempt
employees of property and legal rights and otherwise causing the Plaintiffs and the Plaintiff Class
injury. Additionally , Plaintiffs and Plaintiff Class are entitled to seek and recover reasonable
attorneys' fees and costs pursuant to California Labor Code sections 218.5, 218.6, and 1198, and
penalties pursuant to California Labor Code sections 203, 226.7, and 558.
SECOND CAUSE OF ACTION
FOR FAILURE TO PROVIDE REST PERIODS
(Against All Defendants)
[ California Labor Code 226.7]
60. Plaintiffs and Plaintiff Subclass No. 1 re-allege and incorporate by reference, as
though fully set forth herein, all of the preceding paragraphs of this Fourth Amended Class Action
Complaint.
61. This cause of action is brought by Plaintiffs and Plain tiff Subclass No. 1. This
cause of action is pled against Defendants.
62. Applicable IWC Wage Orders and California Code of Regulations require that
employers authorize and permit all employees to take rest periods at the rate of ten (10) minutes
for every four (4) hours of work, or major fraction thereof.
63. Applicable IWC Wage Orders and California Code of Regulations provide that if
an employer fails to provide an employee rest periods in accordance with this section, the
employer shall pay the employee one (1) hour of pay at the employee's regular rate of
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compensation for each workday that the rest period is not provided. This remedies are codif
under California Labor Code section 226.7.
64. Defendan ts, and each of them, have intentionally and improperly denied rest
periods to Plaintiffs and to members of Plaintiff Subclass No. 1 in violation of the applicabWage-Orders and California Code of Regulations..
65. For at least four years preceding the filing this action, Defendants failed to pro
Plaintiffs and the Plaintiff Subclass No. 1 rest periods as required by law .
66. By virtue of the D efendants' unlawful failure to provide rest periods to Plaintif
and Plaintiff Subclass No. 1, Plaintiffs and Plaintiff Subclass No. 1 ha ve incurred, and w ill
continue to incur, damages in amounts w hich are presently unkno wn to Plaintiffs and Plain
Subclass No. 1, but w hich exceed the jurisdictional limits of this Court and w hich will be
ascertained according to proof at trial.
67. Plaintiffs and m emb ers of Plaintiff Subclass No. 1 are informed and believe, an
based upon that information and belief allege, that Defendants, and each of them, knew or sh
have know n that Plaintiffs and Plaintiff Subclass No. 1 were entitled to rest periods and purp
elected not to provide rest periods.
68. Defendan ts, and each of them, acted intentionally, oppressively and m aliciousltoward P laintiffs and Plaintiff Subclass No. 1 w ith a conscious disregard of their rights, or th
consequenc es to Plaintiffs and Plaintiff Subclass No. 1, with the intent of depriving Plaintiff
Plaintiff Subclass No. 1 of property and legal rights and otherw ise causing Plaintiffs and Pla
Subclass No. 1 harm.
69. Plaintiffs, themselves, and o n behalf of em ployees similarly situated, request
recovery of rest period compen sation pursuant to all applicable IWC Wa ge Orders, Californi
Code of Regulations, as well as the assessment of any statutory penalties against these
Defenda nts, and each of them, in a sum as provided by the California Labor Code and/or oth
statutes.
70. Further, Plaintiffs and Plaintiff Subclass No. 1 are en titled to seek an d recover
reasonable attorneys' fees and costs pursuant to California Labor Code sections 218 .5 and 11
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and penalties pursuant to California Labor Code sections 203, 226 , and 558.
THIRD CAUSE OF ACTION
FOR FAILURE TO PAY ALL WAGES DUE UPON ENDING EMPLOYMENT
(Against all Defendants)
[Violation of California Labor Code 201, 202, and 20 3]
71. Plaintiffs, Plaintiff Class, and Plaintiff Subclasses re-allege and incorporate by
reference, as though fully set forth herein, all of the preceding paragraphs of this Fourth A m
Class Action Complaint.
72. This cause o f action is brought by Plaintiff Felczer, Plaintiff Goldma n, Plainti
Hawkins, and Plaintiff Subclass No. 2. This cause of action is pled against Defendants.
73. California Labor Code section 201 requires an employer remit payment of wag
earned and unpaid immediately upon discharge.
74. California Labor Cod e section 202 requires that if an employee qu its his or her
employm ent, his or her wages shall becom e due and payable not later than 72 hours thereaft
unless the employee has given 72 ho urs previous notice of his or her intention to quit, in wh
case the employee is entitled to his or her wages at the time of quitting. Code section 202 re
that an employer remit paym ent to an employee w ho quits no later than 72 hours thereafter.75. Violations of C alifornia Labor Co de sections 201 and 202 is a violation of
California Labor Code section 203.
76. Plaintiffs Felczer, Goldman , Hawk ins, and Plaintiff Subclass No. 2 qu it or wer
discharged from their employm ent and no t paid timely. Since Defendants failed to timely pa
wages due, Plaintiff Felczer, Plaintiff Goldman , Plaintiff Haw kins, and Plaintiff Subclass No
are owed pe nalties pursuant to California Labor C ode section 203.
77. Defendants failed to pay said employees any premium payments or timely pay
pursuant to California Labor C ode sections 201 and 202. Thus, D efendants are liable for wa
time penalties. Defendants' failure to pay said wages within the required time was willful w
the meaning of C alifornia Labor Co de section 203.
78. Therefore, each of these em ployees is entitled to one day 's wages for each day
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or she was not timely paid all said wages due, up to a maximum of thirty days' wages for each
employee. Because none of said employees were ever compensated for meal periods they missed,
and were never paid other wages referred to in this Fourth Amended Class Action Complaint,
Plaintiff Felczer and Goldman, and each member of Plaintiff Subclass No. 2 is entitled to thirty
days' wages.
79. Plaintiffs Felczer, Goldman, and members of Plaintiff Subclass No. 2, therefore
request waiting time penalties for all Class Members no longer in Defendants' employ at the time
of Judgment.
FOURTH CAUSE OF ACTION
FAILURE TO PROVIDE ACCURATE ITEMIZED EMPLOYEE WAGE STATEMENTS(Against All Defendants)
[IWC Wage Order 4-2001(7)(A); California Code of Regulations, Title 8, 11040(7)(A);
California Labor Code 226, 1174-1175]
80. Plaintiffs and Plaintiff Subclass No. 3 re-allege and incorporate by reference, as
though fully set forth herein, all of the preceding paragraphs of this Fourth Amended Class Action
Complaint.
81. This cause of action is brought by Plaintiffs and P laintiff Subclass No. 3. This
cause of action is pled against Defendants.
82. Applicable IWC Wage Orders, California Code of Regulations and California
Labor Code section 226(a) each require Defendants to provide their employees with accurate
itemized wage statements containing various categories of information. By v irtue of Defendants'
unlawful pay practices of not compensating Plaintiffs, Plaintiff Class, and Plaintiff Subclass No. 1
for missed meal and rest periods, Defendants have inaccurately recorded gross wages earned and
net wages earned.
83. Defendants knowingly and intentionally omitted this information for Plaintiffs and
Plaintiff Subclass No. 3. Defendants' failure to comply with California Labor Code section 226
caused injury to Plaintiffs and Plaintiff Subclass No. 3 in an amount currently unascertainable.
84. California Labor Code section 1174 requires Defendants to maintain and preserve,
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in a centralized location, amo ng other items, records show ing the nam es and addresses of al
employ ees employed, payroll records showing the hours w orked daily by and the wage s pai
employees. Defendants have failed to comply w ith California Labor Code section 1174.
Defendants' failure to comply with California Labor Code section 1174 is a violation of Cal
Labor Code section 1175.
85. ecause Defend ants have know ingly and intentionally failed to comply with
California Labor Cod e section 226 , Plaintiffs and Plaintiff Subclass No. 3 are entitled to rec
the greater of all actual damag es or fifty dollars ($50) for the initial pay period in w hich a vi
occurred and one hu ndred dollars ($100) per employee for each violation in a subsequent pa
period, not exceeding an agg regate penalty of four thousand dollars ($4,000), for one year
preceding the filing of this action, and is entitled to an award o f costs and reasonab le attorne
fees pursuant to California Labor Co de section 226(e).
FIFTH CAUSE OF ACTION
FOR UNFAIR COMPETITION.
(Against All Defendants)
[California Business & Professions Code 17200,et seq ]
87. Plaintiffs, Plaintiff Class, and Plaintiff Subclasses re-allege and incorporate by
reference, as though fully set forth herein, all of the preceding paragraphs of this Fourth Am
Class Action Complaint.
88. This cause o f action is brought by Plaintiffs, the Plaintiff Class, and the P laint
Subclasses. This cause of action is pled against Defendants.
89. By and through the conduct described above, Plaintiffs, members of the Plaint
Class and the Plaintiff Subclasses, and all persons similarly situated have been deprived and
injured.
90. Violation of the California Labor Code is an Unfair Business Practice.
91. By and through their unfair, unlawful and/or fraudulent business practices
described herein, Defendants have obtained valuable property, money, and services from
Plaintiffs, mem bers of the Plaintiff Class and the Plaintiff Subclasses, and all persons similar
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situated, and have deprived Plaintiffs and m emb ers of the Plaintiff Class and Plaintiff Subcl
and all persons similarly situated of valuable rights and be nefits guaranteed by law , all to th
detriment.
92. All of the acts described h erein as violations of, among other things, the Califo
Labor Code, California Code of Regulations, and Industrial Welfare Commission Wage Orde
are unlawful an d in violation of public policy; and in addition are im moral, unethical, oppres
fraudulent and unscrupulous, and thereby constitute unfair, unlawful and/or fraudulent busin
practices in violation of California Business and Professions C ode sections 17200 ,et seq.
93. Plaintiffs, the Plaintiff Class, the P laintiff Subclasses, and all persons in interes
are entitled to, and do seek such relief as may be necessary to disgorge the profits which
Defendan ts have acqu ired, or of which P laintiffs, the Plaintiff Class, and the Plaintiff Subcla
have been deprived, by m eans of the above-described unfair, unlawful and/or fraudulent bus
practices.
94. Plaintiffs, the Plaintiff Class, and the Plaintiff Subclasses are further entitled to
do seek a declaration that the above described bu siness practices are unfair, unlawful and/or
fraudulent, and injunctive relief restraining D efendants, and each of them , from engaging in
the above-described un fair, unlawful and/or fraudulent business practices in the future.
95. Plaintiffs, the Plaintiff Class, and the P laintiff Subclasses hav e no plain, speedy
and/or adequate remed y at law to redress the injuries which they have suffered as a conseque
of Defendants' unfair, unlawful and/or fraudulent business practices. As a result of the unfai
unlawful an d/or fraudulent business practices described above, the P laintiffs, the Plaintiff Cl
and the Plaintiff Subclasses have suffered and w ill continue to suffer irreparable harm unless
Defend ants, and each of them, are restrained from con tinuing to engage in said unfair, unlaw
and/or fraudulent business practices.
96. Plaintiffs, Plaintiff Class, and the Plaintiff Subclasses also allege that if D efend
are not enjoined from the co nduct set forth herein above, Defendan ts will continue to fail to
com pensate their non-exempt employees for m issed meal and rest periods, and will continue
provide their employees with unlawful w age statements.
97. Plaintiffs, Plaintiff Class, and Plaintiff Subclasses request that the C ourt issue a-18-
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preliminary and perman ent injunction prohibiting Defendan ts, and each of them, from requi
Plaintiffs and Plaintiff Class to work m ore than five hours without a duty free m eal period a
without com pensating them w ith one hour of pay at their regular rate of pay for each workda
the meal or rest period is not provided within the five hour wo rk period.
98. Plaintiffs Felczer, Goldman , Hawkins, and P laintiff Subclass Num ber 2 reques
the Court issue a preliminary and perm anent injunction prohibiting Defend ants, and each of
from continuing to issue untimely payments to any employees whose employment has ended
99. Plaintiffs, the Plaintiff Class, and the P laintiff Subclasses also request that the
Cou rt order the Defendan ts to, as restitution, disgorge all illegally obtained m onies from fail
pay taxes, state disability insurance premium s, and unemploy ment taxes, obtained by way o
violation of California Business & P rofessions Code sections17200,et seq
100. Plaintiffs, the Plaintiff Class, and the P laintiff Subclasses also requ est an order
Defend ants identify, locate and m ake restitution to affected mem bers of the general public
nationwide, and specifically subscribers to the registry, all funds and the value of all things o
property acquired by the acts of unfair com petition and deceptive practices set forth above, a
additional orders necessary to accom plish this purpose, pursuant to California Business &
Professions Code section 17203.
101. Plaintiffs, the Plaintiff Class, and the P laintiff Subclasses also requ est an order
Defenda nts disgorge any profits arising from acts of unfair competition.
102. For the four (4) years preced ing the filing of this action, as a result of Defenda
unfair business practices, Plaintiffs, the Plaintiff Class, and Plaintiff Subclasses have inc urr
dam ages, and request damage s and/or restitution of all monies and profits to be disgorged fr
Defend ants in an amou nt according to proof at time of trial.
///
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///
///
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SIXTH CAUSE OF ACTION
PRIVATE ATTORNEY GENERAL ACT
(As against all Defendants)
[California Labor Code 2698, et. seq.]
103. Plaintiffs, Plaintiff Class, and Plaintiff Subclasses re-allege and incorporate by
reference, as though fully set forth herein, all of the preceding paragraphs of this Fourth Amended
Class Action Complaint.
104. Pursuant to California Labor Code section 2699, any civil penalties for violations
of the California Labor Code may be assessed by the Labor and Workplace Development Agency
("LWDA"). As an alternative, any former or cu rrent employee may n otify the LWDA in writing
of the alleged labor code violations. If no notice from the LWDA is received after a period of 33
days, a civil action may be commenced by any current and certain former employees.
105. Plaintiff Felczer has brought this action on behalf of himself, and the Plaintiff Class
for recovery of compensation for missed meal periods and civil penalties permitted under
California Labor Code sections 2698, et seq
106. Plaintiff Hawkins has brought this action on behalf of himself, the Plaintiff Class,
and Plaintiff Subclass No. 1, for Apple's failure to provide meal and rest breaks. Plaintiff Hawkins
also brings this action on behalf of himself, and on behalf of all other aggrieved non-exempt
employees due to Apple's prohibition to distribute or discuss anything about their working
conditions at Apple.
107. Pursuant to California Labor Code section 512, Defendants had to make a 30
minute duty free meal period available for Plaintiffs and Plaintiff Class. California Labor Code
section 226.7 provides that the failure to do so obligates an employer to compensate that employee
an extra hour of pay at his or her regular rate of pay. Defendants have not complied with this
provision.
108. Plaintiffs Felczer and Hawkins have brought this claim after complying with the
provisions of California Labor Code section 2699.3.
109. Plaintiffs Felczer and Hawkins, and Plaintiff Class are entitled to civil penalties
under California Labor Code section 2699(f), except if a penalty is already set forth in the
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California Labor Code. Ca lifornia Labor Code section 232.5 do not prescribe any civil penalties.
Therefore, Plaintiffs Felczer and Hawkins represent, as private attorneys general, all current and
former non-exempt employees of Apple within the State of California who are entitled to civil
penalties under California Labor Code section 2699(0 as a result of each violation alleged in this
Cause of Action.
110. Additionally, as a result of the foregoing violations by Defendants, Plaintiffs, the
Plaintiff Class, and Plaintiff Subclass No. 1 , are entitled to reasonable attorneys' fees and costs,
pursuant to California Labor Code section 2699(g)(I).
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, the Plaintiff Class, and the Plaintiff Subclasses pray for judgment
as follows:
I. that the Court determine that this action may be maintained as a class action;
2. that judgment be entered for wages for Plaintiffs and each member of PlaintiffClass and Plaintiff Subclasses;
3. For nominal damages;
4. For compensatory damages;
5. For restitution of all monies due to Plaintiffs, Plaintiff Class, and PlaintiffSubclasses, and disgorged profits from the unlawful business practices ofDefendants;
6. For penalties pursuant to California Labor Code sections 202, 203, 218.5,218.6, 221, 226, 226.7, 512, 558, and 2699(f);
7. For Declaratory relief as described herein;
8. For Injunctive relief as described herein;
9. For interest accrued to date;
10. For costs of suit and expenses incurred herein pursuant to California LaborCode sections 218.5, 226, and 1194;
11. For reasonable attorneys' fees pursuant to California Labor Code sections218.5, 226, 1194; and 2699(g); and
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12. For all such other and further relief the Court may deem just and proper.
Dated: October 8 2013 HOGUE BELONG
By Ai A 1 1 2JEF l r 0 SQ.Y e J. BELONG ESQ.
BR e A. DODDS, ESQ.
Attorneys for Plaintiffs
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DEMAND FOR JURY TRIAL
Plaintiffs hereby d eman d a jury trial.
Dated: October 8, 2013 HOGUE BELONG
By:JE L' OG I14 , ESQ.
R BELONG , ESQ.BR E A. DODDS, ESQ.Attorneys for Plaintiffs
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