ROSE LAW A PROFESSIONAL CORPORATION

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CLASS/COLLECTIVE/REPRESENTATIVE ACTION

COMPLAINT FOR DAMAGES, DECLARATORY RELIEF, RESTITUTION, AND CIVIL PENALTIES;

DEMAND FOR JURY TRIAL

Joseph W. Rose (SBN 232261) Lisa L. Bradner (SBN 197952) ROSE LAW A PROFESSIONAL CORPORATION 11335 Gold Express Dr., Ste. 135 Gold River, CA 95670 Telephone: (916) 273-1260 Facsimile: (916) 290-0148 Email: [email protected] Attorneys for Plaintiff s and the Plaintiff Class Individually and on behalf of all others similarly situated

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOHN HURTADO, [PLAINTIFF 2], [PLAINTIFF 3], [PLAINTIFF 4], individually and on behalf of all others similarly situated, Plaintiffs, v.

AERO AUTOMATIC SPRINKLER

COMPANY, and DOES 1 through 10, inclusive, Defendants. _____________________________________/

CASE NO.: TBA CLASS/COLLECTIVE/ REPRESENTATIVE ACTION [PROPOSED] COMPLAINT FOR DAMAGES, DECLARATORY RELIEF, RESTITUTION AND CIVIL PENALTIES 1. Violations of the FLSA (29 U.S.C.§

201);

2. Unpaid Overtime Wages (Cal. Lab. Code §§ 510, 218.6, and 1194);

3. Failure to Give Rest Breaks (Cal. Lab.

Code §§ 226.7);

4. Violations of Prevailing Wage Laws on Public Works Projects (Cal. Lab. Code §§ 1770 et seq.);

5. Failure to Furnish Accurate Wage

Statements (Cal. Lab. Code § 226)

6. Violation of Labor Code §206.5 7. Violation of Labor Code § 2802 8. Conversion; 9. Unfair Competition Law (Bus. & Prof.

Code §§ 17200 et seq.); and 10. Labor Code Private Attorneys General

Act (Lab. Code § 2699) DEMAND FOR JURY TRIAL

mailto:[email protected]

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Individual and representative Plaintiff s JOHN HURTADO, [PLAINTIFF 2],

[PLAINTIFF 3], [PLAINTIFF 4], (“Plaintiffs”), on behalf of themselves individually and all

others similarly situated, demanding a trial by jury, complain and plead upon information and

belief against Defendants AERO AUTOMATIC SPRINKLER COMPANY (“Aero”) and DOES

1 through 10, inclusive:

INTRODUCTION

1. This is a collective action for violations of the Fair Labor Standards Act

(“FLSA,” 29 U.S.C. § 216(b)), a class action under Federal Rules of Civil Procedure, Rule 23

(“Rule 23”) for violations of California law, and a representative action under the California

Labor Code Private Attorneys General Act (“PAGA,” Cal. Lab. Code, § 2699 et seq.) to recover

penalties for violations of California Labor laws, brought by Plaintiffs for themselves and on

behalf of all other similarly situated and aggrieved employees. The acts complained of occurred

within the last four (4) years preceding filing the Complaint.

2. Plaintiffs are current and former employees of Defendant Aero who worked as

fire sprinkler fitters on public works and private construction projects. Plaintiffs seek

certification of a collective action for similarly situated current and former employees for

recovery of wages, liquidated damages, penalties, costs, and attorney’s fees under the FLSA.

Plaintiffs seek certification of a class action under Rule 23, for violations of California law

including damages and remedies available under California Labor Code sections, 206, 226.7,

510, 558, 1194, 1197, 1197.1, plus interest, attorney’s fees and costs under California Labor

Code sections 1194 and 3336. Plaintiffs sue for themselves and on behalf of the other Aero

sprinkler fitters for monetary recovery, declaratory and for injunctive relief for violations of

California’s Unfair Competition Law (“UCL,” Bus. & Prof. Code § 17200 et seq.), including full

restitution and disgorgement of all compensation retained by Aero because of its unlawful,

fraudulent, and unfair business practices in California. Plaintiffs also sue for themselves and on

behalf of all other similarly situated aggrieved employees under the PAGA. Plaintiffs seek for

themselves and on behalf of similarly situated aggrieved employees who worked in California

exemplary damages under California Civil Code section 3294.

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JURISDICTION AND VENUE

3. This Court has original federal question jurisdiction under 28 U.S.C. section 1331

because Plaintiffs’ claims arise under the FLSA, 29 U.S.C. section 201. This court has

supplemental jurisdiction over all other claims because they are so related to the claims with

original jurisdiction that they form part of the same case or controversy. (28 U.S.C. §1367.) This

Court has personal jurisdiction in that each defendant maintains an office, transacts business, has

an agent, and/or is found in California, and is within the jurisdiction of this Court for purposes of

service of process. Venue in California is proper as the subject matter of this litigation and some

or all of the alleged facts, conduct, and statutory violations alleged occurred or otherwise

transpired in California, and defendants are subject to personal jurisdiction in California.

THE PARTIES

4. Plaintiffs are adults employed or formerly employed by Aero as fire sprinkler

fitters on public works and private construction projects in California within the four (4) years

preceding filing the Complaint. Plaintiffs and other similarly situated workers employed by Aero

in California are referred to collectively as the sprinkler fitters.

5. Defendant AERO AUTOMATIC SPRINKLER COMPANY is a Delaware

Company, with its principal place of business located in Phoenix, Arizona, and doing business

throughout California. Aero is listed by the California Contractors State License Board as a C16

Fire Protection Contractor, with license number 901529. Aero is a “person” as defined by

California Labor Code section 18, and by California Business and Professions Code section

17201. Aero is an “employer” within the meaning of the FLSA as an enterprise engaged in

interstate commerce and/or the production of goods for commerce within the meaning of the

FLSA and has had a gross volume of sales in excess of $500,000, and as defined by both the

California Labor Code and the California Industrial Welfare Commission’s (IWC) orders

regulating wages, hours, and working conditions.

6. In addition to Aero, Plaintiffs sue fictitiously DOES 1 through 10, because their

names, capacities, status, or facts showing them to be liable are not presently known. Plaintiffs

will amend this Complaint to show their true names and capacities, with appropriate charging

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language, when such information has been ascertained. Plaintiffs are informed and believe and

thereupon allege that each of the DOE Defendants is responsible in some manner for the

occurrences alleged and that Plaintiffs’ and Class Members’ damages as alleged are proximately

caused by such occurrences.

7. Within the last four years, Aero has been the employer and/or joint employer of

the sprinkler fitters within the meaning of the FLSA (29 C.F.R. § 791.2), California Labor Code,

and Division 2, and the applicable California IWC occupational Wage Order(s) in that the

Defendant Employers employed and/or exercised control over wages, hours, and working

conditions of the sprinkler fitters, suffered or permitted the work of Plaintiffs and others

similarly situated, and considering the total employment situation and economic realities of the

employment relationship. Aero is responsible for compliance with the FLSA, California Labor

Code and applicable IWC Wage Order(s).

AGENCY, JOINT VENTURE, ALTER EGO

8. At all times mentioned in the causes of action into which this paragraph is

incorporated by reference, on information and belief, every defendant was the principal, partner,

agent, servant, employee, co-conspirator, co-employer, and/or alter ego of the remaining

defendants. In doing the things alleged in the causes of action into which this paragraph is

incorporated by reference, every defendant was acting within the course and scope of this

agency, partnership, servant, employment, conspiracy and/or alter/ego and was acting with the

consent, permission, knowledge and/or authorization of the remaining defendants. All actions of

every defendant alleged in the causes of action into which this paragraph is incorporated by

reference were ratified and approved by the officers or managing agents of the remaining

defendants.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

9. On September 9, 2015, Plaintiffs, through the undersigned attorneys, mailed via

certified mail with return receipt, to Aero and the Labor and Workforce Development Agency

(LWDA), a notice of California Labor Code violations and intention to seek civil penalties under

the PAGA, for violations of Labor Code sections 226, 226.7, 510, 1194, 1771,1774,1776, and

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1777.5, which are provisions listed in Labor Code section 2699.5, and for violations of Labor

Code sections 1773.1 and 1777.7, which are not specifically listed under Labor Code section

2699.5. The notice enclosed a draft copy of this complaint to AERO and the LWDA.

10. On ________, the LWDA mailed a letter to the undersigned attorneys advising

the LWDA does not intend to investigate the allegations.

11. Under Labor Code section 2699.3, subpart (c), Aero had 33 days from Plaintiffs’

September 9, 2015, notice to give written notice by certified mail that it has cured the violations

of Labor Code sections 1773.1and 1777.7. More than 33 days have elapsed and AERO has not

given notice of cure.

FLSA COLLECTIVE ACTION

12. Plaintiffs intend to move for certification of a FLSA collective action. The

“collective action employees” are defined as:

All persons employed in California by Aero Fire Sprinkler Company as fire sprinkler fitters, during the three (3) years preceding filing the Complaint, who worked in excess of forty (40) hours in a seven (7) day work week without receiving overtime compensation as required by the Fair Labor Standards Act.

13. The FLSA collective action period is designated as the three (3) years

immediately preceding filing the Complaint, through the conclusion of trial on all issues

presented, based upon the allegation that violations of the FLSA as described more fully herein,

were willful and have been ongoing throughout that time.

14. During the FLSA collective action period, Aero had a consistent policy and

practice with respect to Plaintiffs and similarly situated aggrieved workers of willfully failing to

pay overtime wages for hours worked over forty (40) per seven (7) day work week in violation

of the FLSA.

15. This action is brought and may properly be maintained as a collective action

under the FLSA because Plaintiffs and the collective action employees are similarly situated fire

sprinkler fitters who were victims of the same decision, policy or plan to deny them overtime

wages.

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CALIFORNIA LABOR CODE CLASS ACTION

16. Plaintiffs intend to move for certification of a class action under Rule 23 for

violations of the California Labor Code, applicable regulations of the California Industrial

Welfare Commission, and the UCL, on behalf of themselves and all other similarly situated

sprinkler fitters. The “class employees” are defined as:

All persons employed in California by Aero Automatic Sprinkler Company as sprinkler fitters, during the four (4) years preceding filing the Complaint, who worked in excess of eight (8) hours per day, and/or forty (40) hours per week without receiving overtime compensation, did not receive full prevailing wages on public works jobs, did not receive rest breaks, did not receive accurate wage statements, did not receive reimbursement for work related expenses, and received paychecks with restrictive endorsements.

17. The class period is designated as the four (4) years immediately preceding filing

the Complaint, through the conclusion of trial on all issues presented, based upon the allegation

that violations of the California Labor Code, as described more fully herein, have been ongoing

throughout that time.

18. Plaintiffs reserve the right to amend or modify the class description with greater

specificity or division into subclasses or limitation to particular issues.

19. During the class period, Aero had a consistent policy and practice with respect to

Plaintiffs and class employees of:

a. Willfully failing to pay overtime wages for hours worked over forty (40)

hours per seven (7) day work week, and over eight (8) hours per day in violation of

California Labor Code section 510;

b. Willfully failing and/or refusing to provide compensated rest breaks in

violation of California Labor Code section 226.7 and IWC Wage Order 16-2001(11);

c. Willfully violating prevailing wage laws on public works projects,

including failure to give travel and subsistence pay, health and welfare, vacation, and

pension contributions to Plaintiffs and the class employees, and failing to employ

apprentices and/or make payments to apprenticeship or other training programs, in

violation of California Labor Code sections 1771, 1773.1, 1774, 1777.5, 1777.7, 1194

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and 2699;

d. Willfully failing to furnish accurate wage statements in violation of

California Labor Code section 226;

e. Willfully withholding and converting class employees’ wages for their

own use;

f. Willfully failing to reimburse sprinkler fitters for work-related use of

personal cell phones and cell phone plans, and for travel, meals and lodging while

traveling over 100 miles to work for weeks and months on Aero projects; and,

g. Willfully conditioning wages due and owing on a release of claims against

Aero.

20. This action is brought and may properly be maintained as a class action under

Rule 23 because there is a well-defined community of interest in the litigation and the proposed

class is easily ascertainable:

a. Numerosity: A class action is the only available method for the fair and

efficient adjudication of this controversy. The class employees are so numerous that joinder of all members is impractical, if not impossible; Plaintiffs are informed and believe, and on that basis allege that the total number of the class employees is approximately forty (40) but could be greater. Membership in the class will be determined based on analysis of Aero’s employee records, independent contractor agreements, and payroll records, and other records that Aero maintains.

b. Commonality: Plaintiffs and the class employees share a community of

interests, as there are several common questions and issues of fact and law which predominate over any questions and issues solely affecting individual employees. A class action is superior to other methods for a fair and efficient adjudication of the controversy. These common questions are set forth in paragraph 19(a)-(e) in this complaint.

c. Typicality: Plaintiffs’ claims are typical of the claims of the class

employees. Plaintiffs, and all class employees, sustained injuries and

damages arising out of and caused by Aero’s conduct in violation of

California law as alleged.

d. Superiority of Class Action: Since the damages suffered by individual

class employees, while not inconsequential, may be relatively small, the

expense and burden of individual litigation by each worker is likely to

render individual actions impractical. Should separate actions be brought

by each individual employee, the resulting multiplicity of lawsuits would

cause undue hardship and expense for the courts and the litigants. The

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prosecution of separate actions would also create a risk of inconsistent

rulings, which might be dispositive of the interests of other employees

who are not parties to those adjudications and/or may substantively

impede their ability to adequately protect their interests. Plaintiffs are

informed and believe, and based thereon allege, that Aero, in committing

the Labor Code violations, unfair business practices, and conversion

alleged regarding the class employees have acted and refused to act on

grounds applicable to all claims, making injunctive and monetary relief

appropriate for all class employees.

e. Adequacy of Representation: Plaintiffs in this class action are adequate

representatives of other similarly situated employees and the class

employees as a whole in that Plaintiffs’ claims are typical of those of the

class employees and Plaintiffs have the same interests as the class

employees. Plaintiffs are committed to vigorous prosecution, and have

retained competent counsel experienced in wage and hour litigation and

representative actions of this nature. Plaintiffs are not subject to any

individual defenses unique or distinct from those conceivably applicable

to the class employees. Plaintiffs anticipate no management difficulties.

PAGA REPRESENTATIVE ACTION

21. Plaintiffs bring this action under the PAGA on behalf of themselves and

all other aggrieved employees. Under the PAGA, Plaintiffs are not required seek

certification of a class or collective action. (Arias v. Superior Court (2009) 46 Cal.4th

969.)

22. The PAGA authorizes Plaintiffs to bring this action on behalf of

themselves and all other “aggrieved employees” to recover penalties on behalf of the

LWDA for violations of the California Labor Code, with seventy-five (75) percent of any

penalties collected paid to the LWDA, and the remaining twenty-five (25) percent

distributed to the aggrieved employees.

23. Plaintiffs will amend this complaint to allege complete exhaustion of

administrative remedies as set forth above at paragraphs 9 through 11 of this complaint.

24. The PAGA period is designated as the four (4) years immediately preceding filing

the Complaint, through the conclusion of trial on all issues presented, based upon the allegation

that violations of the California Labor Code, as described more fully herein, have been ongoing

throughout that time.

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COMMON FACTUAL ALLEGATIONS

25. Hereinafter the Plaintiffs, the “collective action employees,” the “class

employees” and the “aggrieved employees” shall all be collectively referred to as the “sprinkler

fitters.”

26. The sprinkler fitters worked for Aero on public works projects, including but not

limited to the California Department of Veterans Affairs (“CalVet Home”) and the California

Polytechnic University Center for Science (“CalPoly”), and on private construction jobs,

including but not limited to the Los Robles Hospital and Medical Center (“Los Robles”) and the

San Jose Regional Medical Center (“San Jose”).

27. The sprinkler fitters were paid prevailing wage of $32.65 per hour on public

works jobs and $22 to $24 per hour on private construction jobs.

28. The sprinkler fitters were routinely required by Aero to sign blank time cards.

Aero management employees would then enter 40 hours per week, and eight hours per day onto

the sprinkler fitters’ time cards, regardless of the fact that the actual number of hours worked

often exceeded eight hours in one work day and 40 hours in one work week.

29. Aero management employees would routinely assign sprinkler fitters’ hours

worked on one project to another project, and on one day to another day on time cards and on

certified payroll documents in order to avoid paying overtime wages and prevailing wages.

30. The sprinkler fitters were routinely denied overtime wages for hours worked in

excess of eight hours in one work day and 40 hours in one work week on both private and public

works jobs.

31. The sprinkler fitters were routinely deprived of required rest breaks during the

workday.

32. On public works projects, Aero failed and refused to make travel and subsistence

payments to sprinkler fitters for travel in excess of 100 miles from the worker’s residence in

violation of Labor Code section 1773.1 and failed to reimburse sprinkler fitters for work related

expenses in violation of Labor Code section 2802.

33. On public works projects, Aero willfully failed and refused to employ the proper

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number of apprentices and failed and refused to make training fund contributions in the amount

established in the prevailing wage rate publication for journeymen and apprentices in violation

of Labor Code sections 1777.5 and 1777.7.

34. In or about November and December 2014, Aero mailed paychecks to

approximately 100 sprinkler fitters for “underpayment of wages,” due to “payroll errors,” but

conditioned negotiating the paychecks on a waiver and release of all claims, known or unknown,

in favor of Aero, in violation of Labor Code section 206.5.

35. Aero’s policy and practice of willful violations of California Labor Codes and

conversion of sprinkler fitters’ wages, as described herein serve as predicate acts for application

of the UCL.

FIRST CAUSE OF ACTION

Violation of the Fair Labor Standards Act

29 U.S.C.§ 201 et seq.

(Against All Defendants)

36. Plaintiffs reallege and incorporate by reference the allegations of paragraphs 1

through 35 above as though fully set forth herein.

37. At all times relevant hereto, Aero violated the FLSA, and continues to violate the

FLSA, by willfully and systematically failing to pay the sprinkler fitters premium or over-time

wages for hours worked in excess of forty (40) in one work week.

38. As a proximate result of the aforementioned violations, the sprinkler fitters have

been damaged in an amount according to proof at the time of trial, but in an amount in excess of

the minimum jurisdiction of this Court.

WHEREFORE, Plaintiffs prays for judgment as set forth below.

SECOND CAUSE OF ACTION Unpaid Overtime Wages

Cal. Lab. Code §§ 510, 218.6, and 1194 (Against All Defendants)



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40. The sprinkler fitters were governed by the wage and overtime requirements of

Labor Code section 510 and IWC Wage Order No. 16 covering on-site construction occupations

(codified at 8 Cal.Code.Regs. 11060). Wage Order 16 requires employees must be paid overtime

of one and one-half times the employee’s regular rate of pay for all hours worked over eight (8)

hours in any workday and over forty (40) hours in one work week, and for the first eight (8)

hours worked on the seventh consecutive day of work in a workweek, and double the

employee’s regular rate of pay for all hours worked over twelve (12) hours in any workday.

41. During the last four years, Aero systematically denied the sprinkler fitters

overtime compensation for hours worked over eight (8) in one day and over forty (40) hours in

one work week.

42. The sprinkler fitters are entitled to recover the unpaid balance of the full amount

of the overtime wages, including interest thereon, penalties under Labor Code section 558 in the

amount of fifty dollars ($50) per initial violation per underpaid employee per pay period, and

one hundred dollars ($100) for each subsequent violation per employee per pay period,

reasonable attorney's fees, and costs of suit, under California Labor Code section 1194.

43. As a proximate result of the aforementioned violations, the sprinkler fitters have

been damaged in an amount according to proof at the time of trial, but in an amount in excess of

the minimum jurisdiction of this Court.

WHEREFORE, Plaintiffs pray for relief as set forth below.

THIRD CAUSE OF ACTION

Willful Failure to Give Mandated Rest Periods California Labor Code §§226.7




45. Labor Code section 226.7 mandates that no employer shall require any employee

to work during any meal or rest period mandated by an applicable order of the IWC.

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46. IWC Wage Order number 16-2001(11)(A), requires every employer to authorize

and permit all employees to take rest periods at a rate of ten (10) minutes per four (4) hours

worked, with no deduction from wages.

47. Labor Code section 226.7 and IWC Wage Order number 16-2001 (11)(D)

requires that if the employer fails to provide an employee a rest period in accordance with an

applicable order of the IWC, the employer shall pay the employee one additional hour of pay at

the employee’s regular rate of compensation for each work day that the rest period is not

provided.

48. During the last four years, Aero frequently denied the sprinkler fitters mandated

rest periods during the workday by requiring the sprinkler fitters to work through rest periods.

49. As a consequence of Aero’s willful conduct in not providing mandated rest

periods, the sprinkler fitters are entitled one additional hour of pay at the employee’s regular rate

of compensation for each work day that the rest period was not provided under Labor Code

section 226.7.

50. As a result of these violations, the sprinkler fitters have been damaged in an

amount according to proof, but over the minimum jurisdiction of this Court.


FOURTH CAUSE OF ACTION

Violations of Prevailing Wage Laws on Public Works Projects California Labor Code §§ 1720, 1770 - 1773.1, 1776, 1777, 1777.5, 1777.6




52. Public works construction is regulated by the Department of Industrial Relations,

Department of Labor Standards Research ("DLSR") which, pursuant to Labor Code sections

1770, 1771, 1773 and 1773.1, determines the prevailing per diem wage, the appropriate job

classification through “Scope of Work” and determines the rate of pay, including benefits, that

shall be paid to certain crafts and trades of employees, including sprinkler fitters.

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53. Aero has provided services on public works construction projects as defined by

California Labor Code section 1720, including, but not limited to the CalVet Home and CalPoly

projects in California, and others.

54. The sprinkler fitters worked on public works constructions projects as skilled

sprinkler fitters while in the employ of Aero.

55. Aero engaged in a pattern and practice of intentionally, willfully, and falsely

misreporting data about workers, including sprinkler fitters, who worked on public works

projects, on its certified payroll under Labor Code section 1776 to unlawfully avoid payment of

the required prevailing wage.

56. Aero engaged in a pattern and practice of intentionally and willfully failing and/or

refusing to pay its workers, including sprinkler fitters, who worked on public works projects the

prevailing wage rate required by Labor Code section 1771.

57. Aero has engaged in a pattern and practice of intentionally and willfully failing

and/or refusing to “keep accurate payroll records, showing the name, address, social security

number, work classification, straight time and overtime hours worked each day and each week,

and the actually per diem wages paid to each journeyman, apprentice, worker, or other employee

employed by [it] in connection with [Public Works projects]” involving work performed by its

employees, including the sprinkler fitters, as required by Labor Code section 1776. Compliance

with Labor Code section 1776 by Aero is a fundamental public policy of the State of California

because violations thereof are made misdemeanors by Labor Code section 1777.

58. Aero willfully refused to pay the correct minimum prevailing wage rate to

sprinkler fitters on public works jobs by falsely reporting days and hours worked on public

works projects.

59. Aero willfully failed and refused to make travel and subsistence payments to

sprinkler fitters for travel in excess of 100 miles from the worker’s residence in violation of

Labor Code section 1773.1.

60. Aero willfully failed and refused to employ the proper number of apprentices and

failed and refused to make training fund contributions in the amount established in the prevailing

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wage rate publication for journeymen and apprentices in violation of Labor Code sections

1777.5 and 1777.7.

61. Aero willfully failed and refused to make health and welfare, vacation and

pension contributions to the sprinkler fitters as required by Labor Code section 1773.1.

62. As a result of these unfair and unlawful business practices, Aero was able to

underbid public works projects and become the low bidder. Law abiding contractors have not

been able to compete fairly for jobs with Aero, who has been able to submit lower bids due to its

illegal cost-saving practices. Aero employees, including the sprinkler fitters, have suffered

damages on lost wages and benefits by these unlawful business practices.

63. The PAGA specifically authorizes a private right of action against Aero by the

sprinkler fitters, as aggrieved employees, for violations of Labor Code sections 1771, 1774, 1776

and 1777.5 (Cal. Lab. Code § 2699.5). The PAGA also authorizes a private right of action for

violations of Labor Code sections 1773.1 and 1777.7 after proper notice and opportunity to cure

(Cal. Lab. Code § 2699.3(c)).

64. In committing the foregoing acts, Aero was guilty of oppression, fraud or malice,

and, in addition to the actual damages caused thereby, the sprinkler fitters are entitled to recover

damages for the sake of example and by way of punishing Aero.

Wherefore, Plaintiffs pray for relief as set forth below.

FIFTH CAUSE OF ACTION

Failure to Furnish Accurate Wage Statements California Labor Code §§ 226




66. Labor Code section 226 (a) provides that every employer is required,

“semimonthly or at the time of each payment of wages,” to provide each employee an itemized

wage statement, including, inter alia, the total hours worked by the employee (except for

salaried employees), and “all applicable hourly rates in effect during the pay period and the

corresponding number of hours worked at each hourly rate by the employee.”

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67. During the time that the sprinkler fitters were employed by Aero, Aero willfully

failed to provide full and accurate itemized wage statements as required by Labor Code section

226(a) in that the wage statements provided did not include the correct hourly rates of pay in

effect during the pay period. The wage statements provided by Aero to the sprinkler fitters were

incomplete and defective in that they did not include and state accurate hourly rates (including

the proper overtime hourly rates) at which employees were paid, nor the correct “corresponding

number of hours worked at each hourly rate by the employee.” (Lab. Code § 226(a).)

68. Labor Code section 226, subd. (e) provides: “An employee suffering injury as a

result of a knowing and intentional failure by an employer to comply with [Lab. Code § 226,]

subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for

the initial pay period in which a violation occurs and one hundred dollars ($100) per employee

for each violation in a subsequent pay period, not exceeding an aggregate penalty of four

thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney fees.

69. Based on Aero’s conduct as alleged herein, Aero is liable under Labor Code

section 226(e) for damages and statutory penalties of at least $4,000, plus interest thereon,

attorney fees, and costs.

70. In addition, the PAGA authorizes a private right of action against Aero by

Plaintiffs and the sprinkler fitters, as aggrieved employees, for violations of Labor Code section

206(a). (Lab. Code § 2699.5.)

71. In committing the foregoing acts, Aero is guilty of oppression, fraud or malice,

and, in addition to the actual damages caused thereby, the sprinkler fitters are entitled to recover



SIXTH CAUSE OF ACTION

Violation of Labor Code section 206.5 (Against All Defendants)



73. Labor Code section 206.5 makes it a misdemeanor for an employer to require the

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execution of a release of a claim or right in exchange for wages due and makes any such release

“null and void.”

74. In or about November and December 2014, Aero mailed paychecks to

approximately 100 sprinkler fitters, acknowledging the paychecks were for “underpayment of

wages,” due to “payroll errors,” but conditioned negotiating the paychecks on a waiver and

release of any past, present or future, claims against Aero—known or unknown. This conduct

violated Cal. Labor Code section 206.5.

75. In committing the foregoing acts, Aero is guilty of a misdemeanor and, in

addition to the actual damages caused thereby, the sprinkler fitters are entitled to recover



SEVENTH CAUSE OF ACTION

Violation of Labor Code § 2802




77. California Labor Code section 2802 requires employers to indemnify employees

for all necessary expenditures or losses incurred by the employee in direct consequence of the

discharge of his or her duties.

78. Over the last four years, Aero routinely failed to adequately and fully reimburse

sprinkler fitters for necessary and required work-related expenditures, including but not limited

to, use of personal cell phones and cell phone plans, travel, mileage, meals and lodging while

traveling over 100 miles to work for weeks and months on Aero projects.

79. As a result of these violations, the sprinkler fitters have been damaged in an

amount according to proof, but over the minimum jurisdiction of this Court.


EIGHT CAUSE OF ACTION

Conversion (Against All Defendants)

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80. Plaintiffs reallege and incorporate by reference the allegations of paragraphs 1 through 79 above as though fully set forth herein.

81. At all relevant times, Aero owed a legal duty to its employees, including the

sprinkler fitters, to properly compensate them with at least minimum wages and/or overtime

wages for all hours worked as well as for travel and substance and other contributions on public

works projects. Aero knowingly and intentionally failed and refused to pay the sprinkler fitters

wages they were owed, withholding these sums and converting them to Aero’s own use. The

sprinkler fitters had the right to own and had the legal right to hold, possess and dispose of

wages withheld by Aero. The sprinkler fitters gained the right to hold, possess, and dispose of

the wages withheld while working in the service of Aero during the last four years.

82. In doing the acts and things alleged, Aero knowingly, willfully, and unlawfully

interfered with the sprinkler fitters’ rights to wages earned, and to own, possess and/or control

disposition of these sums. In doing the acts and things alleged, Aero knowingly, unlawfully and

intentionally took, appropriated, and converted the property (wages) of the sprinkler fitters for

Aero’s own use, purposes, and benefits. When the conversion took place, the sprinkler fitters

were entitled to such property. This conversion was oppressive, malicious and fraudulent, and

Aero’s legal obligation to pay these wages was concealed by Aero from the sprinkler fitters, and

each of them. Aero knew that the sprinkler fitters were entitled to the unpaid wages described

hereinabove and knowingly refused payment to the sprinkler fitters, instead using the money

they had to pay to the sprinkler fitters for Aero’s own purposes and benefits.

83. The exact wages unlawfully converted by Aero from the sprinkler fitters, and

each of them, can be made certain. The specific identifiable sum of money the sprinkler fitters

are entitled to varies by worker, and will be established according to proof.

84. The sprinkler fitters have been injured by this conversion by reliance on Aero’s

obligation to comply with the FLSA, California Labor Code and the applicable IWC Wage

Order(s). Plaintiffs and sprinkler fitters are entitled to all money converted by the Aero with

interest thereon, and any and all profits, whether direct or indirect, which Aero acquired by its

unlawful conversion. Aero’s actions constituting conversion were oppressive, malicious and

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fraudulent and were concealed by Aero from the sprinkler fitters as hereinabove alleged. The

sprinkler fitters have been injured by Aero’s oppressive, malicious, intentional and fraudulent

actions, entitling sprinkler fitters to punitive and exemplary damages.


NINTH CAUSE OF ACTION

Unfair Competition Law Business & Professions Code § 17200 et seq.




86. The Unfair Competition Law (“UCL”), Business and Professions Code section

17200 et seq., defines unfair competition to include any unlawful, unfair, or fraudulent business

act or practice. The UCL borrows violations from other statutes, and authorizes any person who

has suffered injury and who has lost money or property because of such unfair practices to sue

for relief under the statute. The UCL also provides that a court may enjoin acts of unfair

competition, issue declaratory and other equitable relief, and order restitution of money or

property acquired with unfair competition.

87. Aero has engaged in unfair business practices in California by practicing,

employing and utilizing the employment practices outlined in this complaint. Beginning on an

exact date unknown to Plaintiffs, but at least since year 2011 and continuing to the present day,

Aero has violated numerous state and federal laws and regulations governing wages, hours, and

conditions of employment.

88. As described hereinabove, Aero has committed the tort of conversion against

their employees, including Plaintiffs and sprinkler fitters.

89. Defendants’ violations of these laws serve as unlawful predicate acts, and have

resulted in economic harm and injury to all Plaintiffs and sprinkler fitters for Business and

Professions Code section 17200, and remedies are provided under Business and Professions

Code section 17203.

90. Plaintiffs are informed and believe and on that basis allege that, Aero has engaged

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in unlawful, deceptive, and unfair business practices prohibited by the UCL, including those set

forth, depriving the sprinkler fitters individually and as representatives of other members of the

general public the minimum working condition standards due to them under California labor

laws. Because of Aero’s unlawful, deceptive, and unfair business practices, Aero has gained an

unfair competitive advantage over other law abiding employers in the industry within California.

91. The sprinkler fitters are entitled to an injunction and other equitable relief against

such unlawful practices to prevent future damage, for which there is no adequate remedy at law,

and to avoid a multiplicity of lawsuits.

92. The illegal conduct alleged is continuing, and there are no indications Aero will

not continue such activity into the future. The sprinkler fitters allege that if Aero is not enjoined

from the conduct set forth in this complaint, it will continue to fail to provide to employees

minimum working condition standards due to them under California labor laws to the detriment

and damage of its employees while gaining an unfair competitive advantage over law abiding

employers in the same industry within California.

93. As a direct and proximate result of the aforementioned acts, Aero has received

and continues to hold ill-gotten gains belonging to the sprinkler fitters, in that Aero has profited

in that amount from its unlawful practices.

94. Business and Professions Code section 17203 provides that the Court may restore

to any person in interest any money or property which may have been acquired with such unfair

competition. The sprinkler fitters are entitled to restitution under Business and Professions Code

sections 17203 and 17208 for all wages unlawfully withheld from them during the four years

prior to filing this complaint. Plaintiffs will, upon leave of the Court, amend this complaint to

state such amounts when they become ascertained.

95. The sprinkler fitters’ success will enforce important rights affecting the public

interest, and in that regard, Plaintiffs sue for themselves and other employees in California

similarly situated. The sprinkler fitters seek and are entitled to unpaid overtime wages, prevailing

wages, penalties, injunctive relief, and any other remedy owing to them.

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96. To prevent Aero from profiting and benefiting from wrongful and illegal acts, an

order requiring Aero to disgorge all of the profits and gains it has reaped through unlawful and

unfair business practices is appropriate and necessary.


TENTH CAUSE OF ACTION

Labor Code Private Attorneys General Act California Labor Code § 2699 et seq.

(Against all Defendants)



98. Under Labor Code sections 2699(a) and 2699.3(c), the PAGA authorizes

Plaintiffs to bring this civil action on their own behalf and for other current and former

employees in California to recover civil penalties otherwise collected for violations of the Labor

Code by the LWDA or its departments, divisions, commissions, boards, agencies, or employees.

For all provisions of the Labor Code where a civil penalty is not expressly provided, there is

established under the PAGA at Labor Code section 2699(f) a civil penalty of one-hundred

dollars ($100) for each aggrieved employee per pay period for the initial violation hereinabove

alleged and two hundred dollars ($200) for each aggrieved employee in California per pay

period for each subsequent violation hereinabove alleged, with seventy-five (75) percent of any

penalties collected paid to the LWDA, and the remaining twenty-five (25) percent distributed to

the aggrieved employees.

WHEREFORE, Plaintiffs prays for judgment as set forth below.

PRAYER FOR RELIEF

Plaintiffs pray for relief:

As to all causes of action:

1. For compensatory damages to Plaintiffs and the sprinkler fitters;

2. For prejudgment interest on all sums awarded to the extent permitted by law;

3. For such other and further relief as the Court may deem proper;

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As to the First Cause of Action for Violations of the FLSA:

4. For compensatory damages;

5. For liquidated damages available under the FLSA;

6. For an award of reasonable attorney’s fees and costs, including expert witnesses,

under the FLSA;

7. For any further equitable relief in favor of the sprinkler fitters the Court deems

just and proper.

As to the Second Cause of Action Unpaid Overtime Wages:

8. For an award of all unpaid overtime wages due;

9. For an award of penalties under Labor Code section 558 in the amount of fifty

dollars ($50) per initial violation per underpaid employee per pay period, and one hundred

dollars ($100) for each subsequent violation per employee per pay period;

10. For an award of interest at ten percent per annum on the unpaid overtime wages

under Labor Code section 1194;

11. For an award of reasonable attorney’s fees and costs of suit under Labor Code

section 1194;

As to the Third Cause of Action for Failure to Give Mandated Rest Breaks:

12. For an award of one additional hour of pay at the employee’s regular rate of

compensation for each work day that the meal or rest period was not provided, under Labor

Code section 226.7, to each sprinkler fitter;

As to the Fourth Cause of Action for Unpaid Prevailing Wages:

13. For an award of all unpaid prevailing wages due to the sprinkler fitters;

14. For an award of civil penalties in the amount of $200 per calendar day, or portion

thereof, for each worker paid less than the prevailing wage under Labor Code section 1775.

15. For an award of interest at ten percent per annum on the unpaid undisputed wages

under Labor Code section 1194, as to each sprinkler fitter;

16. For an award of reasonable attorney’s fees and costs of suit under Labor Code

section 1194;

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As to the Fifth Cause of Action for Failure to Furnish Accurate Wage Statements:


18. For an award of fifty dollars ($50) for the initial pay period in which a violation

occurred and one hundred dollars ($100) per employee for each violation in a subsequent pay

period, not exceeding an aggregate penalty of four thousand dollars ($4,000);

19. For an award of reasonable attorney fees and costs under Labor Code sections

226 and 2699;

As to the Sixth Cause of Action for Violation of Labor Code Section 206.5:


21. For exemplary and punitive damages;

22. For a declaratory relief that any settlement and release agreements or restrictive

endorsements are declared null and void by this Court;

23. For an award of interest, reasonable attorney’s fees and costs of suit under

California Code of Civil Procedure section 1021.5;

As to the Seventh Cause of Action for Violation of Labor Code Section 2802:


24. For an award of civil penalties under Labor Code section 2699;



As to the Eighth Cause of Action for Conversion:


27. For an award of damages to the sprinkler fitters for their time and money

expended in pursuit of the return of their property, including reasonable attorney’s fees, under

Civil Code section 3336;

28. For an award of exemplary damages under Civil Code section 3294;

As to the Ninth Cause of Action for Unfair Competition:

29. For a judicial determination that Aero has violated the UCL and those violations

have resulted in economic harm and injury to the sprinkler fitters;

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30. For an order requiring Aero to pay restitution to the sprinkler fitters due to Aero’s

unlawful activities, under Business and Professions Code section 17203;

31. For an order requiring Aero to disgorge profits related to the unlawful

nonpayment of prevailing and overtime wages;

32. For an order declaring Aero’s employment practices as described above are

unlawful and requiring Aero to cease and desist from unlawful activities in violation of

California Business and Professions Code section 17200;




just and proper;

As to the Tenth Cause of Action under the PAGA:

35. For civil penalties as provided under Labor Code section 2699(f), to be

distributed 75 percent to the LWDA (for enforcement of labor laws and education of employers

and employees about their rights and responsibilities under the Labor Code) and 25 percent to

the sprinkler fitters;

36. For an award of reasonable attorney’s fees and costs, including expert witnesses,

under Labor Code section 2699(g)(1);


just and proper.

DATED: September ___, 2015 ROSE LAW

A PROFESSIONAL CORPORATION

By:

JOSEPH W. ROSE

LISA L. BRADNER

Attorneys for Plaintiffs and

the Sprinkler Fitters

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Plaintiff JOHN HURTADO, for himself and all others similarly situated aggrieved

employees demand a trial by jury.

DATED: September ____, 2015 ROSE LAW

A PROFESSIONAL CORPORATION

By: ________________________

JOSEPH W. ROSE

LISA L. BRADNER

Attorneys for Plaintiffs and

the Sprinkler Fitters

ROSE LAW A PROFESSIONAL CORPORATION

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