Cc3w yr auerwn i 12 13 14 15 7 18 19 20 21 22 23 24 25 26 27 28 BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B, Blumenthal (State Bar #068687) Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowamik (State Bar #248066) 2255 Calle Clara La Jolla, CA 92037 Telephone: (858)551-1223 Facsimile: (858) 551-1232 UAN 19 2071 Firmsite: www.bamlawea.com aye eyaanenst Attorneys for Plaintiff ment ea Bras ae oy HA. Rose SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA LLICVI92Z189 SURENDRA K. SHRIVASTAVA, an CASE No, individual, on behaif of himself and all persons similarly situated, CLASS ACTION COMPLAINT FOR: ae 1. UNFAIR COMPETITION IN Plaintiff, ‘VIOLATION OF CAL. BUS. & PROF. CODE §§ 17200 et seg; and, an 2. FAILURE TO PAY ACCRUED FRY’S ELECTRONICS, INC., a VACATION COMPENSATION IN, California Corporation; and Does 1 VIOLATION OF CAL. LAB. CODE §§ through 50, 201, 203, 216, 218.5 and 227.3. DEMAND FOR A JURY TRIAL Defendant. CLASS ACTION COMPLAINTSew rx aun ern lL 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Surendra K. Shrivastava ("PLAINTI ), an individual, alleges upon information and belief, except for his own acts and knowledge, the following, NATURE OF THE ACTION 1. Defendant Fry’s Electronics, Inc. hereinafter also referred to as "FRY’S" or "DEFENDANT" is a big-box retailer of computers, consumer electronics, and appliances. ‘The retail chain's extensive inventory includes computer software and components, industry magazines, movies and music, refrigerators, washers and dryers, small appliances, stereo equipment, and televisions, Plaintiff Surendra K. Shrivastava ("PLAINTIFF") was a non- exempt, hourly employee of FRY’S in California, PLAINTIFF, and all the other Class Members, suffered the loss and forfeiture of accrued vacation and holiday wages by not being paid correctly for all earned and accrued vacation and holiday wages by DEFENDANT in accordance with DEFENDANT’s vacation and holiday pay policy. 2, BRY’S vacation and holiday pay policy is subject fo California law, is not subject to ERISA and consequently not subject to or preempted by federal law. FRY’S falsely asserts in writing that it adopted « Voluntary Employees’ Beneficiary Association Trust (VEBA) Plan to provide v. ‘ion benefits to associates” and "because the VEBA plan is administered in accordance with federal lav, state laws concerning vacation do not apply to vacation benefits.” In order for the VEBA plan to preempt state regulation, the VEBA plan must fall within the scope of The Employee Retirement Income Security Act of 1974 (ERISA) which is a federal Jaw that sets minimum standards for pension plans in private industries, However, in California Hosp. Ass'n v. Henning, the Ninth Circuit Court of Appeals held that payment of vacation benefits from an employer's general assets is outside the scope of ERISA. Furthermore, in Massachusetts v. Morash, the United States Supreme Court adopted Henning’s reasoning holding that an employer’s vacation program did not constitute an "employee welfare benefit plan" within the meaning of ERISA, where vacation benefits were paid out of the employer’s general assets. Here, the VEBA plan adopted by FRY’S did not make direct, if any, payments of employees’ vacation benefits because FRY’S used the VEBA plan as a subterfuge to deny GLASS ACTION COMPLAINT ohCer anton 10 ret 12 13 14 15 16 ia 18 19 20 21 22 23 24 25 26 a7 28 separating employees payment of unpaid vacation wages. Instead, FRY’S provided vacation benefits to its employees out of FRY’S general assets as evidenced by its payroll check (see Exhibit A, attached hereto and incorporated by this reference herein). As aresult, a VEBA plan from which benefits are provided to employees out of the employer's general assets rather than out of the VEBA's funds is not maintained for the purpose of providing vacation benefits, and is not regulated by BRISA. FRY’S VEBA plan, therefore, is not a plan subject to ERISA and consequently not administered in accordance with federal law. 3. FRY’S vacation pay policy further sets forth in relevant part that "there is no carry-over of vacation benefits" and "any benefits and time off that are available to you but are not taken by your anniversary date following the date on which they were accrued will be forfeited." PRY’S holiday pay policy sets forth in relevant part that "Fry’s provides paid holidays for full-time associates who work at least an average of 32 hours per week" and “unused holiday pay benefits will not accumulate from year to year and will not be remitted at termination of employment." During the CLASS PERIOD, FRY’S had in place a company- wide "use it or lose it" vacation and holiday pay policy which provides for the forfeiture of vacation and holiday pay that is not used by the end of each calendar year whereby FRY’S does not allow employees to carry over any unused vacation and holiday paid time off from year to year. FRY’S unfair, deceptive and unlawful employment and wage practice cheats the PLAINTIFF, and the Class Members, out of their eamed vacation and holiday pay due in Violation of the California Labor Code and the California Business & Professions Code. The amount of vacation and holiday time that the PLAINTIFF and the Class Members earned and accumulated is evidenced by DEFENDANT’s business records, including by DEFENDANT’s database where all hours are documented and by the pay stubs each employee receives. 4. PLAINTIFF brings this Action against FRY’S on behalf of himself and on behalf ofa class consisting of all former non-exempt, hourly employees who worked forFRY’S in California whose employment terminated during the CLASS PERIOD and who were not paid for forfeited vacation and holiday time because of FRY’S "use it or lose it” vacation and holiday pay policy ("CLASS" or "Class Members"). The applicable "CLASS PERIOD" is defined as GLASS ACTION COMPLAINT 22.Seocwr)s iW 13 14 15 16 Ww 19 20 21 22 23 24 25 26 27 28 the period beginning on the date four (4) years prior to the filing of this Complaint and ending ona date as determined by the Court. PLAINTIFF brings this Class Action to fully compensate the Class Members for their losses incurred during the CLASS PERIOD caused by FRY’S uniform policy and practice which fails to compensate the PLAINTIFF, and the Class Members, for all earned and accrued vacation and holiday time. FRY’S uniform policy and practice alleged herein is an unfair, deceptive and unlawful practice whereby FRY’S retained and continues to retain wages due PLAINTIFF, and the Class Members, for all hours worked. PLAINTIFF, and the Class Members, seek an injunction enjoining such conduct by FRY’S in the future, relief for the named PLAINTIFF and Class Members who have been economically injured by DEFENDANT's past and current unlawful conduct, and all other appropriate legal and equitable relief. Tue Parties 5. Defendant Fry’s Electronics, Inc. ("FRY’S" or "DEFENDANT") was. founded in 1985 and is based and headquartered in San Jose, California. At all relevant times mentioned herein, FRY’S conducted and continues to conduct substantial and regular business throughout California. 6. The true names and capacities, whether individual, corporate, subsidiary, partnership, associate or otherwise of DEFENDANT Does | through 50, inclusive, are presently unknown to the PLAINTIFF who therefore sues these defendants by such fictitious names pursuant to Cal. Civ, Proc. Code § 474, PLAINTIFF will seek leave to amend this Complaint to allege the true names and capacities of Does 1 through 50, inclusive, when they are ascertained, PLAINTIFF is informed and believes, and based upon that information and belief alleges, that the defendants named in this Complaint, inchiding Does 1 through 50, inclusive, are responsible in some manner for one or more of the events and happenings that proximately caused the injuries and damages hereinafter alleged. 7. The agents, servants, and/or employees of DEFENDANT and each of them acting on behalf of DEFENDANT acted within the course and scope of his, her or its authority ‘GLASS ACTION COMPLAINTee 10 ul 12 13 14 15 16 W 18 19 20 21 22 23 24 25 26 27 28 as the agent, servant, and/or employee of DEFENDANT, and personally participated in the conduct alleged herein on behalf of DEFENDANT with respect to the conduct alleged herein, Consequently, DEFENDANT is jointly and severally liable to the PLAINTIFF and the other members of the CLASS, for the loss sustained as a proximate result of the conduct of DEFENDANT’ s agents, servants, and/or employees. 8. Atal relevant times mentioned herein, Surendra K, Shrivastava (*PLAINTIFF") resided in California. PLAINTIFF was employed by FRY’S in California as a non-exempt, hourly "Sales Associate" and "Tele-Sales Associate" from September 2006 to May 2010. ‘THe Conpucr 9. FRY’S systematically failed to correctly pay the PLAINTIFF and all the other Class Members for all earned and accrued vacation and holiday wages. FRY’S vacation pay policy sets forth in relevant part that "there is no carry-over of vacation benefits" and “any benefits and time off that are available to you but are not taken by your anniversary date following the date on which they were accrued will be forfeited." FRY’S holiday pay policy sets forth in relevant part that "Fry’s provides paid holidays for full-time associates who work at least an average of 32 hours per week" and “unused holiday pay benefits will not accumulate from year to year and will not be remitted at termination of employment." As a result, FRY’S does not allow employees to carry over any unused vacation and holiday time off from year to year because FRY’S vacation and holiday pay policy forces its employees to "use it or lose it." Consequently, FRY’S deceptive practice to deny paying the PLAINTIFF and the Class Members all vested vacation and holiday time, FRY’S failed to pay the PLAINTIFF and the Class Members all vested vacation and holiday time as wages, in violation of the California Business & Professions Code Sections 17200 et seq. This failure by DEFENDANT is believed to be the result of DEFENDANT’ unfair and deceptive refusal to provide compensation for eamed, accrued and vested vacation and holiday time. DEFENDANT perpetrated this deceitful and misleading practice to the detriment of the PLAINTIFF and the members of the CLASS. DEFENDANT’s uniform "use it or lose it" vacation and holiday pay policy and practice CLASS ACTION COMPLAINT “4oer A AHR YDH 10 it 12 13 14 15 16 17 18 19 20 21 22 jae 24 25 26 27 28 violated and continues to violate Section 17200 er seq. of the California Business & Professions Code, 10. — Inviolation of the applicable sections of the California Labor Code, FRY’S as a matter of corporate policy, practice and procedure, intentionally, knowingly and systematically failed to properly compensate the PLAINTIFF and the Class Members for all eamed and accumulated vacation and holiday time off because FRY’S had in place a company-wide "use it or lose it" vacation and holiday pay policy and practice. PLATNTIFF and the Class Members thereby forfeited earned wages as a result of DEFENDANT’s standardized policies, practices and procedures alleged herein. These uniform and systematic policies, practices and procedures of FRY’S were intended to purposefully avoid the payment of wages required by California law which allows FRY’S (o illegally profit and gain an unfair advantage over competitors. To the extent equitable tolling operates to toll claims by the CLASS against FRY’S, the CLASS PERIOD should be adjusted accordingly. 11, FRY’S has a uniform, company-wide policy and practice in California which provides for the forfeiture of vacation and holiday pay that is not used by the end of each calendar year whereby FRY’S does not allow employees to carry over any unused vacation and holiday paid time off from year to year. As aresult, DEFENDANT’s vacation and holiday pay policy and practice forces employees to “use it or lose it." This systematic and company-wide policy originating at the corporate level is the cause of the illegal pay practices as described herein, NS 12, PLAINTIFF brings this Action against Fry’s Electronics, Inc. pursuant to California Code of Civil Procedure, Section 382, on behalf of himself and on behalf of a class consisting of all former non-exempt, hourly employees who worked for FRY’S in California whose employment terminated during the CLASS PERIOD and who were not paid for vacation. and holiday time because of FRY’S “use it or lose it" vacation and holiday pay policy ("CLASS" or "Class Members"). The applicable "CLASS PERIOD" is defined as the period ‘CLASS ACTION COMPLAINTSe wrxaunerorn rT 12 13 14 1S 16 7 18 19 20 21 22 23 24 25 26 27 28 beginning on the date four (4) years prior to the filing of this Complaint and ending on a date as determined by the Court. 13, All former non-exempt, hourly employees working for FRY’S in California are similarly situated in that they were all subject to FRY’S uniform policy and systematic practice that required them to forfeit unused vacation and holiday paid time off and perform work without compensation as required by law. 14. During the CLASS PERIOD, FRY’S uniformly violated the rights of the PLAINTIFF and the Class Members under California law, without limitation, in the following manners: @ Violating Business & Professions Code Section 17200 et seq., by committing acts of unfair competition in violation of the California Labor Code and public policy, by failing to pay the PLAINTIFF and the Class Members wages forall earned and accumulated vacation and holiday time; (b) Violating California Labor Code Section 227.3, by failing to pay the PLAINTIFF and the Class Members vested vacation and holiday time upon termination; and, (©) Violating California Labor Code Sections 201, 202 and 203, by failing to tender full payment and/or restitution of wages owed to the employees whose employment with DEFENDANT has terminated. . 15, Asa result of FRY’S uniform policies, practices and procedures, there are numerous questions of law and fact common to all Class Members who worked for FRY’S in California during the CLASS PERIOD. ‘These questions include, but are not limited to, the following: (a) Whether FRY’S policies, practices and pattern of conduct described in this ‘Complaint was and is unlawful, (b) Whether FRY’S failed to compensate employees for all vacation pay earned and accumulated throughout the employment term; (©) Whether FRY’S failed to compensate employees for all holiday pay CLASS ACTION COMPLAINT@ © wo (g) @) a) @ earned and accumulated throughout the employment term; Whether FRY’S engaged ina common course of changing, altering and/or modifying the amount of vacation pay employees eamed and accumulated throughout the employment term; ‘Whether FRY’S engaged in acommon course of changing, altering and/or modifying the amount of holiday pay employees earned and accumulated throughout the employment term; Whether FRY’S engaged in a common course of misrepresenting that the PLAINTIEF and the Class Members are not entitled to all vacation pay camed and accumulated throughout the employment term; Whether FRY’S engaged in a common course of misrepresenting that employee vacation benefits are paid out of the employer’s VEBA plan and administered in accordance with federal law; Whether FRY’S engaged in a common course of misrepresenting that the PLAINTIEF and the Class Members are not entitled to all holiday pay carned and accumulated throughout the employment term; ‘Whether FRY’S has engaged in unfair competition by the above-listed conduct} and, Whether FRY’S conduct was willful. 16. This Class Action meets the statutory prerequisites for the maintenance of a Class Action as set forth in California Code of Civil Procedure, Section 382, in that: (a) ) © The persons who comprise the CLASS are so numerous that the joinder of all such persons is impracticable and the disposition of their claims as a class will benefit the parties and the Court; Nearly all factual, legal, statutory, declaratory and injunctive relief issues ‘that are raised in this Complaint are common to the CLASS and will apply uniformly to every member of the CLASS; ‘The claims of the representative PLAINTIFF are typical of the claims of ‘CLASS ACTION COMPLAINT 7(d) each member of the CLASS. PLAINTIFF, like all the other Class Members, was not correctly compensated for all hours worked because of DEFENDANT’s company policies and practices. PLAINTIFF sustained economic injuries arising from FRY’S violations of the laws of California. PLAINTIFF and the Class Members are similarly or identically harmed by the same unfair, deceptive, unlawful and pervasive pattern of misconduct engaged in by FRY’S; and, ‘The representative PLAINTIFF will fairly and adequately represent and protect the interest of the CLASS, and has retained counsel who are competent and experienced in Class Action litigation, There are no material conflicts between the claims of the representative PLAINTIFF and the Class Members that would make class certification inappropriate. Counsel for the CLASS will vigorously assert the claims of all Class Members. 17. Inaddition to meeting the statutory prerequisites to a Class Action, this Action is properly maintained as a Class Action pursuant to California Code of Civil Procedure, Section 382, in that: @ Without class certification and determination of declaratory, injunctive, statutory and other legal questions within the class format, prosecution of separate actions by individual members of the CLASS will create the risk off (Inconsistent or varying adjudications with respect to individual members of the CLASS which would establish incompatible standards of conduct for the parties opposing the CLASS; or, (ii) Adjudication with respect to individual members of the CLASS which would as a practical matter be dispositive of interests of the other members not party to the adjudication or substantially impair or impede their ability to protect their interests; CLASS ACTION COMPLAINT “810 rs 12 13 14 15 16 17 18 19 20 2. 22 23 24 25 26 27 28 (b) © The parties opposing the CLASS have acted on grounds generally applicable to the CLASS, making appropriate class-wide relief with respect to the CLASS as a whole in that FRY’S company policies and practices failed to compensate employees for all hours worked; and, Common questions of law and fact exist as to the Class Members and predominate over any question affecting only individual members, and Class Action is superior to other available methods for the fair and efficient adjudication of the controversy, including consideration of: (i) The interests of the members of the CLASS in individually controlling the prosecution or defense of separate actions; (ii) The extent and nature of any litigation concerning the controversy already commenced by or against members of the CLASS; (iii) The desirability or undesirability of concentrating the litigation of the claims in the particular forum; (iv) The difficulties likely to be encountered in the management of a Class Action; and, (v) The basis of FRY’S policies and practices uniformly applied to all Class Members. 18. This Court should permit this Action to be maintained as a Class Action. pursuant to California Code of Civil Procedure, Section 382, because: @ () © (d) The questions of law and fact common to the CLASS predominate over any question affecting only individual members; A Class Action is superior to any other available method for the fair and efficient adjudication of the claims of the members of the CLASS; The Class Members are so numerous that it is impractical to bring all Class Members before the Court; PLAINTIFF, and the Class Members, will not be able to obtain effective and economic legal redress unless the Action is maintained as a Class GEASS ACTION COMPLAINTAction; (e) There is a community of interest in obtaining appropriate legal and equitable relief for the common law and statutory violations and other improprieties, and in obtaining adequate compensation for the damages and injuries which FRY’S actions have inflicted upon the CLASS; (8 There is a community of interest in ensuring that the combined assets and available insurance of FRY’S are sufficient to adequately compensate the members of the CLASS for any injuries sustained; (g) FRY’S has acted or has refused to act on grounds generally applicable to the CLASS, thereby making final class-wide relief appropriate with respect to the CLASS as a whole; and, (b) The Class Members are readily ascertainable from the business records of FRY’S. The CLASS consists of all of FRY’S non-exempt, hourly employees who were subject to the above described uniform policies and practices in California during the applicable time period. JURISDICTION & VENUE 19. This Court has jurisdiction over this Action pursuant to the California Code of Civil Procedure, Section 410.10 and California Business & Professions Code, Section 17203. This Action is brought as a Class Action on behalf of similarly situated employees of Fry’s Electronics, Inc. pursuant to California Code of Civil Procedure, Section 382. 20. Venue is proper in this Court pursuant to California Code of Civil Procedure, Sections 395 and 395.5, because Fry’s Electronics, Inc. (i) currently maintains and at all relevaint times maintained offices and facilities in this County, and (ii) committed the wrongful conduct herein alleged in this County against members of the CLASS Fins Cause OF ACTION For Unlawful, Unfair and Deceptive Business Practices CLASS ACTION COMPLAINT “10-[Cal. Bus. And Prof. Code §§ 17200 et seq.} (By PLAINTIFF and the CLASS and against DEFENDANT) 21. PLAINTIFF, and the Class Members, reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 20 of this Complaint. 22, DEFENDANT is a "persons" as that term is defined under the California Business & Professions Code, Section 17021 23. Section 17200 of the California Business & Professions Code defines unfair competition as any unlawful, unfair, or fraudulent business act or practice, Section 17200 applies to violations of labor laws in the employment context. Section 17203 authorizes injunctive, declaratory, and/or other equitable relief with respect to unfair competition as follows: Any person who engages, has engaged, or proposes to engage in unfair hnaylmake such oro or judgments including tne sppodtiment oa eve vero may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have baen acquired by means of such unfair competition, 24. By the conduct alleged herein, FRY’S uniform policies and practices violated and continue to violate California law, including Sections 201,202, 203, and 227.3, for which this Court should issue equitable and injunctive relief, pursuant to Section 17203 of the California Business & Professions Code, including restitution of wages wrongfully withheld. 25. By the conduct alleged herein, FRY’S practices were unfair in that these practices violate public policy, are immoral, unethical, oppressive, unscrupulous or substantially injurious to employees, and are without valid justification or utility, for which this Court should issue equitable and injunctive relief, pursuant to Section 17203 of the California Business & Professions Code, including restitution of wages wrongfully withheld. 26. By the conduct alleged herein, FRY’S practices were deceptive and fraudulent in that FRY’S uniform practice was to represent to its employees that they were not entitled to compensation for all eared accumulated vacation and holiday time in accordance with DEFENDANT’s vacation and holiday pay policies, when in fact these representations were “CLASS ACTION COMPLAINT “ilefalse and likely to deceive, for which this Court should issue equitable and injunctive relief, pursuant to Section 17203 of the California Business & Professions Code, including restitution of wages wrongfully withheld. 27. By and through the unfair and unlawful business practices described herein, FRY'S has obtained valuable property, money, and services from the PLAINTIFF, and from the Class Members, and has deprived them of valuable rights and benefits guaranteed by law and contract, all to the detriment of the employees and o the benefit of DEFENDANT s0 as to allow DEFENDANT to unfairly compete against competitors who comply with the law. 28. All the acts described herein as violations of, among other things, the California Labor Code and the California Code of Regulations, are unlawful and in violation of public policy; and are immoral, unethical, oppressive, and unscrupulous, are deceptive, and thereby constitute unfair, deceptive and unlawful business practices in violation of the California Business & Professions Code, Sections 17200 et seg. DEFENDANT’s conduct was deceptive in that DEFENDANT misrepresented to the PLAINTIFF and the other members of the CLASS that it had "adopted a Voluntary Employees’ Beneficiary Association Trust (VEBA) Plan to provide vacation benefits to associates" when in fact FRY’S did not provide vacation benefits to employees out of the VEBA trust. FRY’S conduct was further deceptive in that DEFENDANT represented to the PLAINTIFF and the other members of the CLASS that paid vacation benefits were administered in accordance with federal law when in fact the VEBA plan does not preempt California law. FRYS was also deceptive in that DEFENDANT represented to the PLAINTIEF and the others members of the CLASS that they were not entitled to receive compensation for all hours worked, including wages for vacation and holiday paid time off. 29. PLAINTIFF, and the Class Members, are entitled to, and do, seek such relief as may be necessary to restore to them the money and property which DEFENDANT has acquired, or of which the PLAINTIFF, and the Class Members, have been deprived, by means of the described unlawful and unfair business practices. The relief sought in this cause of action includes payment of wages for hours worked by the Class Members, which includes both wages for vacation and holiday hours. CLASS ACTION COMPLAINT “12-v ee) 10 iB 12 13 14 15, 16 17 18 19 20 21 22 23 24 25 26 27 28 30. PLAINTIFR, and the Class Members, are further entitled to, and do, seek a declaration that the described business practices are unfair and unlawful and that an injunctive relief should be issued restraining FRY’S from engaging in any of these unfair and unlawful business practices in the future. 31. PLAINTIFF, and the Class Members, have no plain, speedy, and/or adequate remedy at law that will end the unfair and unlawful business practices of DEFENDANT. Further, the practices herein alleged presently continue to occur unabated. As a result of the unfair and unlawful business practices described herein, the PLAINTIFF, and the Class Members, have suffered and will continue to suffer irreparable harm unless DEFENDANT is restrained from continuing to engage in these unfair and unlawful business practices. In addition, compensation to the PLAINTIFF as well as to the other members of the CLASS. SECOND CAUSE OF ACTION For Failure to Pay Vacation Compensation [Cal. Lab. Code §§ 201, 202, 203 and 227.3] (By PLAINTIFF and the CLASS and against DEFENDANT) 32, PLAINTIFF, and the Class Members, reallege and incorporate by this reference, as though fully set forth herein, paragraphs 1 through 31 of this Complaint. 33. Cal. Lab, Code § 201 provides, "if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” 34. Cal, Lab. Code § 202 provides that if an employee quits his or her employment, “his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which ease the employee is entitled to his or her wages at the time of quitting," 35. Cal. Lab, Code § 203 provides, "if an employer wilfully fails to pay, without abatement or reduction, in accordance to Sections 201, 201.5, 202, and 205, any wages of an employee who is discharged or quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; CLASS ACTION COMPLAINTSeema anewrn 1 13 4 15 16 7 18 19 20 21 22 23 24 25 26 2 28 but the wages shall not continue for more than 30 days.” 36. Cal. Lab. Code § 227.3 provides that whenever a contract of employment of employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation time shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting cligibility or time served. 37. Atall times relevant hereto, DEFENDANT failed to pay the PLAINTIFF, and the Class Members, compensation for vested vacation time earned throughout their employment due to the PLAINTIFF, and the Class Members, upon employment termination in violation of Cal. Lab. Code §§ 201, 202, 203 and 227.3 38. PLAINTIFF, and the Class Members, are informed and believe, and based upon that information and belief allege, that DEFENDANT willfully and intentionally failed to pay these wages to the PLAINTIFF and the Class Members as required by Cal, Lab. Code §§ 201 and 202. 39. PLAINTIFF, and the Class Members, request recovery of the wage compensation for vested vacation leave, according to proof, interest, as well as the assessment of penalties against DEFENDANT, in a sum as provided by the Cal. Lab. Code § 203 and/or other statutes. PRAYER WHEREFOR, the PLAINTIFF prays for judgment against each Defendant, jointly and severally, as follows: 1. On behalf of the CLASS: A) That the Court certify action asserted by the CLASS as a Class Action pursuant to California Code of Civil Procedure, Section 382; B) — Anorder temporarily, preliminarily and permanently enjoining and restraining DEFENDANT from engaging in similar unlawful conduct as set forth herein; ©) Anorder requiring DEFENDANT to pay all sums unlawfully withheld from the PLAINTIEF and the other members of the CLASS; “CLASS ACTION COMPLAINT “14.Soe va aun eon uW 13 4 15 16 7 18 19 20 24 22 23 24 25 26 27 28 D) _ Disgorgement of DEFENDANT’s ill-gotten gains into a fluid fund for restitution of the sums incidental to DEFENDANT’s violations due PLAINTIFF and the Class Members; E) Payment of unpaid vacation wages to PLAINTIFF and the Class Members according to proof; and, E) Penalties payable to all terminated employees in the CLASS in accordance with Cal. Lab, Code § 203. 2. Onalll causes of action: A) — Anaward of interest, including prejudgment interest at the legal rate; B) — Anaward of penalties and cost of suit, but neither this prayer nor any other allegation or prayer in this Complaint is to be construed as a request, under any circumstance, that would result in a request for attorneys” fees under Cal. Lab, Code § 28.5; and, C) Such other and further relief as the Court deems just and equitable. Dated: January 18, 2011 BLUMENTHAL, NORDREHAUG & BHOWMIK Pe Norman B. Blumenthal Attorneys for Plaintist “CLASS ACTION COMPLAINT =15=FE JURY TRIAL PLAINTIFF demands a jury trial on issues triable to a jury. Dated: January 18, 2011 BLUMENTHAL, NORDREHAUG & BHOWMIK ‘Norman umenthal Attorneys for Plaintiff CLASS ACTION COMPLAINT =16-