apple california labor code class action suit - amended complaint 4

8/12/2019 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

-2-FOURTH AMENDED CLASS ACTION COMPLAINT FOR DAMAGES


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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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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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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.


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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


[ 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

-15-FOURTH AMENDEDCLASS ACTION COMPLAINT FOR DAMAGES


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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.


[California Business & Professions Code 17200,et seq ]


reference, as though fully set forth herein, all of the preceding paragraphs of this Fourth Am


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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SIXTH CAUSE OF ACTION

PRIVATE ATTORNEY GENERAL ACT

(As against all Defendants)

[California Labor Code 2698, et. seq.]


reference, as though fully set forth herein, all of the preceding paragraphs of this Fourth Amended


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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apple california labor code class action suit - amended complaint 4

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