Ego-Mm} i" may; 1 MICHAEL vow LOEWENFELDT (178665) MR ?3 MICHAELNG (237915) 2 CHEROKEE DM. MELTON (2432.65) KERR WAGSTAFFE LLP 3 100 Spear Street: Suite 1800 San Francisco, CA 94] 05?1528 Telephone: (415} 371~8500 Fax: (415) 371?0500 GARY E. MOSS (43002) MARY PATRICIA HOUGH (104542) LAW7 OFFICES OF MOSS HOUGH 7 Open Plaza . 601 Van Ness Ave, Suite 2030 8 San Francisco, CA 94102 Telephone: (415) 399?1] 10 9 Fax: (415) 399-1552 10 Attorneys for aintiffs - AJAY BATE-ILA, 11 GOVINDARAJAN, and PURNIMA KALIA 12 13 IN THE SUPERIOR COURT OF CALIFORNIA 14 FOR THE COUNTY OF SANTA CLARA 15 I CIVIL UNLIMITED JURISDICTION AJAY BATHLA, ANANDAKRISI-HQAN CLASS ACTION 1? GOWWARAJAN, and PURNIMA KALIA, M4, t. on behalf of themselves and those similarly C353 NOE 9 1 Simmd? COMPLAINT 19 Plaintiffs, 20 JURY TRIAL DEMANDED 11 vs. SILICON VALLEY SYSTECH, INC, a California Corporation, and DOES I though 23 inclusive, 24 Defendants. COMPLAINT .. 8 A A i: i: t. Plaintiffs Ajay Bathla, Anandakrishnan Govindarajan, and Purnirna Kalia (collectively, ??Plaintiffs?) allege, on behalf of themselves and others similarly situated, as follows: GENERAL ALLEGATIONS 1. Defendant Silicon Valley Systech, Inc. purports to be a ?global software services provider? offering ?services for design, development, integration, consulting and outsourcing of business applications that enable enterprises to solve mission?critical business problems.? In reality, SVS serves as nothing more than a staf?ng agency, hiring foreign professionals to work in the United States and placing them as temporary and contract workers with its clients, which include some of the country?s largest technology companies. Though SVS promisesmand certifies to the United States it will pay its employees even when they are not placed with SVS clients, it does not do so, refusing in some cases to pay its employees for months on end while the employees scramble to find their own placements. 2. SVS entices foreign professionals to this country with contracts of employment with SVS that promise high pay and generous bene?ts. In addition, SVS acts as the ernployer ?petitioner? for those professionals? applications for American visas under the program. The program allows a United States employer, like SVS, to hire foreign professionals on a temporary basis. 3. In order to be eligible to hire workers on visas, an employer like SVS must certify to the United States government that it meets certain conditions, and once it hires workers, it is then ect to certain regulations governing their employment. For example, the employer must certify to the government that it will pay its H-IB workers either the local ?prevailing wage? for the occupation in the geographic area of intended employment, or, the ?actual wage? the employer pays all other individuals with similar experience and quali?cations, whichever is higher. The employer is also forbidden by federal regulations from ?benching? 18 workers, that is, temporarily laying them off or not paying them during unproductive times when work is not available. 4. Based on promises, and after receiving written contracts from SVS guaranteeing their terms of employment, the foreign professionals themselves pay SVS for the COMPIAINT cost of applying for their visas, and incur other related expenses, including the cost of traveling to the United States. SVS never discloses that requiring such payments violates federal law. 5. Upon arrival, the new SVS employees discover circumstances far different from those promised by SVS. While SVS places them in a communal ?guest house? (a company- leased apartment shared by the new arrivals) in Santa Clara, California, it pays them no wages, at least not until they are placed with one of the technology companies with whom SVS contracts. I When there is no such contract or temporary work available, it falls to the newly arrived employees themselves to secure such positions. 6. Oftentimes, those positions are in distant locations, including out of state. SVS often requires the employees to pay their own travel costs, as well as to secure accommodations (also at their own expense) near the client company?s place of business. 7. In addition, once employees begin placements as contract or temporary workers with SVS clients, SVS pays them much. less than the salary they were promised in their employment contracts. SVS receives substantialpayments from its clients, usually on an hourly basis, for the employee?s work, but passes on to the employees only a small portion of that pay, keeping most of the income for itself. 8. employment contracts with its employees include an express provision stating that the contracts and. their enforcement are to be governed by California substantive law. As detailed below, misconduct violates California law and its express contracts with its employees. PARTIES 9. Plaintiff Ajay Bathla (?Bathla?) is a citizen of India and currently resides in San Diego, California. From approximately October 3, 2007 through approximately August 20, 2008, Bathla was employed by SVS in the United States pursuant to an visa. 10. Plaintiff Anandakrishnan Govindarajan (?Govindarajan?) is a citizen of India and currently resides in Philadelphia, Beginning approximately February 25, 2008'and 2. COMPLAINT KERR Chm??IRLLP continuing through the present, Govindarajan has been employed by SVS in the United States pursuant to an Visa. 11. Plaintiff Pumima Kalia (?Kalia?) is citizen of India and currently resides in Memphis, Tennessee. From approximately January 22, 2008 through approximately September 2, 2008, Kalia was employed by SVS in the United States pursuant to an H~l Visa. 12. Plaintiffs bring this action on behalf of themselves and on behalf of the following ascertainable class (the ?Class?) of similarly situated persons: all persons employed by SVS during the relevant statutory period pursuant to an H48 Visa. 13. Defendant SVS is a California corporation with its principal place of business in Santa Clara, California. 14. The true names and capacities, whether individual, corporate, associate or otherwise, of Defendants DOES 1 through 25, inclusive, are unknown to Plaintiffs, who therefore sue said Defendants by such fictitious names pursuant to California. Code of Civil Procedure section 474. Plaintiffs further allege that each of said. ?ctitious Defendants is in some manner responsible for the acts and occurrences herein set forth. Plaintiffs will amend this complaint to show these Defendants? true names and capacities when the same are ascertained, as well as the manner in which each fictitious Defendant is responsible. 15. Plaintiffs are informed and believe, and upon such basis allege, that at all times herein mentioned, each of the Defendants herein was an agent, servant, employee, co~ conspirator, partner, joint venturer wholly owned and controlled subsidiary and/or alter ego of each of the remaining Defendants, and was at all times acting within the course and. scope of said agency, service, employment, conspiracy, partnership and/or joint venture. 16. Defendants, and each of them, aided and abetted, encouraged and rendered substantial assistance in accomplishing the wrongful conduct and their wrongful goals and other wrongdoing complained of herein. In taking action, as particularized herein, to aid and abet and substantially assist the commission of these wrongful acts and other wrongdoings complained of, each of the defendants acted with an awareness of its primary wrongdoing and realized that its 3 COMPLAINT KERR .. A 5 rs conduct would substantially assist the accomplishment of the wrongful conduct, wrongful goals, and wrongdoing. VENUE l7. Venue is proper in the County of Santa Clara because Defendant SVS resides there. FACTS ABOUT SPECIFIC PLAINTIFFS Plaintiffand Class Representative Ajay Bathla 18. I Plaintiff Bathla holds a Masters degree in Computer Applications from Thapar Institute of Engineering and Technology. While he was living in lndia, Plaintiff Bathla was recruited by SVS to work as a Programmer/Analyst for SVS in the United States. 19. SVS provided Bathla with an offer letter and. employment contract detailing the terms and conditions of his position at SVS. The contract promised Bathla an annual salary of $62,000 and specified that he would be paid on the seventh and twenty?second of each month. The contract further stated that Bathla and his immediate family would be entitled to health insurance, paid vacation days, and accrued sick time. SVS also agreed to provide Bathla with two?weeks? notice in the event he was terminated for cause and required him to provide four? weeks notice of his intent to resign. 20. Bathla?s employment contract also stated he would be reimbursed for relocation expenses incurred in traveling to and from SVS customer sites. 2 l. The contract also required that, for at least two years after termination of his employment with SVS for whatever reason, Bathla would not solicit the business of or provide any software engineering, consulting or programming services to any SVS customer or employee. 22. On or about February 28, 2007, Bathla signed the employment c'ontract drafted. by SVS. Kailash Bahl (?Bahl?) signed the contract on behalf of SVS as its authorized signatory. 23. SVS petitioned the United States Department of Labor, the United States Department of Homeland Security, and the US. Citizenship and Immigration Services Department for approval of an visa for Bathla. As part of this process, SVS certi?ed to the 4 COMPIAINT ix.) U143 KERR a . o. A A United States government that Bathla would receive a salary of 62,000 beginning when Bathla entered the United States and arrived ready to begin work at SVS. I 24. SVS required that Bathla pay SVS $1,500 for the costs of applying for the visa. Bathla complied with that requirement.- 25. Bathla entered the United States and anived ready to begin work at SVS on or about October 3, 2007. Upon reporting for work at SVS, however, the company told Bathla that there were no assignments for him and that he would have to wait to be paid until SVS assigned. him to a project. 26. From approximately November 2007 to April 2008, Bathla lived at the ?guest house? operated by SVS in Santa Clara, California. During that time, as many as ten other SVS employees awaiting assignment to an SVS client lived in the three?bedroom, two?bathroom ?guest house.? 27. Shortly after his arrival in the United States, SVS promised Bathla that the company would pay him a $500 ?allowance? during the months he was living in the ?guest house? and not assigned to an SVS client. He received a $500 ?allowance? once, but otherwise was paid nothing from the time he arrived on approximately October 3, 2007 until April 2008. 28. SVS did little or nothing to secure an assignment for Bathla. Instead, the company forced him to ?nd a placement on his own. Bathla spent his days researching possible assignments, contacting potential clients, and training himself on new technical skills he and SVS believed would be in demand by SVS clients. After several months, Bathla ?nally managed to arrange a temporary contract assignment (through. a staf?ng agency, Aditi Staf?ng) with Microsoft Corporation in Bellevue, Washington. 29. The assignment with Microsoft began on or about April 14, 2008. However, SVS would not allow Bathla to accept this assignment unless he signed a new employment contract guaranteeing an annual salary of only $42,000. Bathla agreed to the $20,000 reduction in salary because he had not received any income since arriving in the United States and needed money. In addition, his visa was secured through SVS, and was ineligible for transfer until Bathla had worked a prescribed number of pay periods. 5 COMPLAINT a A 5 A 30. Bathla was paid approximately $20 per hour for the work he performed on the Microsoft assignment. On information and belief, Aditi Staf?ng paid SVS as much as $43 per hour for Bathla?s work, and Microsoft Corporation paid Aditi Staffing even more for his work. 3 l. Bathla?s assignment with Microsoft ended on or about July 22, 2008, and he returned to Santa Clara, California on or about July 29, 2008. From approximately July 29, 2008 until August 20, 2008, Bathla lived in the SVS ?guest house,? but received no assignments and did not receive any compensation from SVS. He did, however, continue to actively seek out placements and train himself on new computer skills. 32. SVS tried to require Bathla to sign a letter stating that he was on leave during the periods he was not assigned to a client and not being paid by SVS, even though Bathla was not on leave, continued to indicate that he was ready and willing to be assigned at any time, and continued his own efforts to secure an assignment with potential clients during those times. 33. SVS also instructed Bathla not to reveal to the Department of Labor that he had paid $1,500 to SVS for his visa. 34. Bathla resigned from SVS on or about August 20, 2008. At no point did he receive the full salary promised to him by SVS, nor did he ever receive any of the bene?ts promised to him. Plainti??and Class Representative Anandakirshnan Govindarajan 35. Plaintiff Govindarajan holds a Bachelor of Engineering degree in Computer Science from University of Madras. While he was living in India, Govindarajan was recruited by SVS to work as a Programmer/Analyst for SVS in the United States. 36. SVS provided Govindarajan with an offer letter and employment contract detailing the terms and conditions of his position at SVS. The contract promised Govindarajau an annual salary of $55,000 and speci?ed that he would be paid on the seventh and twenty- second of each month. The contract ?arther stated that G-ovindarajan and his immediate family would be entitled to health insurance, paid vacation days, and accrued sick time. SVS also agreed to provide Govindarajan with two?weeks? notice in the event he was terminated for cause and required him to provide four-weeks? notice of his intent to resign. 6 COMPLAINT KERR .. El} 1.1. 37. Govindarajan?s employment contract also stated he would be reimbursed for relocation expenses incurred in traveling to and from customer sites. 38. The contract also required that, for at least two years after termination of his employment with SVS for whatever reason, Govindarajan. would not solicit the business of or provide any software engineering, consulting or programming services to any SVS customer or employee. 39. Except for the differences in salary and indentifying information concerning Goyindaraj an, all material terms of offer letter to and employment contract with Govindaraj an were identical to its offer letter to and employment contract with Bathla. 40. Kailash Bahl signed the contract on behalf of SVS as the authorized signatory. 41. SVS petitioned. the United States Department of Labor, the United States Department of Homeland Security, and the U.S. Citizenship and Immigration Services Department for approval of an H-1B visa for Govindarajan. As part of this process, SVS certi?ed to the United States government that Govindarajan would receive a salary of 55,000 beginning when Govindarajan entered the United States and arrived ready to begin work at SVS. 42. SVS required that Govindarajari pay SVS 1,500 for the costs of applying for the visa. Govindaraj an complied. with that requirement. 43. Govindarajan entered the United States and arrived ready to begin work at SVS on or about February 25, 2008. Upon reporting for work at SVS, however, the company told Govindarajan that there were no assignments for him and that he would have to wait to be paid until SVS assigned him to a project. 44. From approximately February 25, 2008 through April ll, 2008, Govindarajan lived in the SVS ?guest house? in Santa Clara, California. During that time, Govindarajan searched for his own assignments, researching and contacting potential clients, and trained himself on new technical skills he and SVS believed would be in demand by SVS clients. 45. SVS directed Govindarajan to travel to Seattle, Washington to look for assignments, and he did so on approximately April 1 2008. SVS did not reimburse any of Govindarajan?s travel costs or accommodations in Seattle, which he paid himself. However, 7 COMPLAINT G?xk??Fx once in Seattle, Govindarajan was not assigned. to any projects and continued not to be paid by SVS, In addition, his visa was secured through SVS, and was ineligible for transfer until he had workeda prescribed number of pay periods. 46. Subsequently, SVS attempted to force Govindaraj an to sign a letter stating that he was on leave during the periods he was not assigned to a client and not being paid by SVS, even though Govindarajan was not on leave, continued to indicate that he was ready and willing to be assigned at any time, and continued his own efforts to secure an assignment with potential clients during those times. I 47. On or about December 5, 2008, Govindarajan relocated to Philadelphia, He continues to await an assignment from SVS, and continues his own efforts to secure an assignment With SVS clients. SVS did not reimburse any of Govindarajan?s travel costs or accommodations in Philadelphia, which he paid himself. 48. To date, Govindarajan has never been paid anything by SVS, nor has he received any of the bene?ts promised to him. Class Representative Pumima. Karlie 49. Plaintiff Kalia holds a Masters of Science degree in Computer Science from Kumkshetra University. While she was living in India, Kalia was recruited by SVS to work as a Programmer/Analyst for SVS in the United States. 50. SVS provided Kalia with an offer letter and employment contract detailing the terms and conditions of her position. at SVS. The contract promised Kalia an annual salary of $68,000 and speci?ed that she would be paid on the seventh and twenty?second of each month. . The contract further stated that Kalia and her immediate family would be entitled to health insurance, paid vacation days, and accrued sick time. SVS also agreed to provide Kalia with two?weeks? notice in the event she was terminated for cause and required her to provide fouin weeks? notice of her intent to resign. 51. Kalia?s employment contract also stated she would be reimbursed for relocation expenses incurred in traveling to and from customer sites. 8 COMPLAINT 52. The contract also required. that, for at least two years after termination of her 2 employment with SVS for whatever reason, Kalia would not solicit the business of or provide 3 any software engineering, consulting or programming services to any SVS customer or 4 employee. 5 53. Except for the differences in salary and indentifying information concerning 6 Kalia, all material terms of offer letters to and employment contracts with Kalia were 7 identical to its offer letter to and employment contract with Bathla and Govindarajan. 8 54. On or about March 16, 2007, Kalia signed the employment contract drafted by 9 SVS. Sachin Chauhan signed the contract on behalf of SVS as the authorized signatory. 10 55. SVS petitioned the United States Departrnent of Labor, the United States ll Department of Homeland Security, and. the US. Citizenship and Immigration Services, for 12 approval of an visa for Kalia. As part of this process, SVS certi?ed to the United States 1.3 government that Kalia would receive a salary of 68,000 for a period of employment beginning 14 when Kalia entered the United States and arrived ready to begin work at SVS. 15 56. SVS required that Kalia pay it $3,000 for the costs of applying for her visa and a 16 visa for her husband. 17 57. Kalia entered the United States with her husband and small child, and arrived 18 ready to begin work at SVS on or about January 22, 2008.. Upon reporting for work at SVS, 19 however, the company told Kalia that there were no assignments for her and that she would have 20 to wait to be paid until SVS assigned her to a project. 21 58. From approximately January 22, 2008 through March 4, 2008, Kalia lived in the 22 SVS ?guesthouse? in Santa Clara, California. During that time, Kalia searched for her own 23 assignments, researching and contacting potential clients, and trained herself on new technical 24 skills she and SVS believed would be in demand by SVS clients. 25 59. On February 26, 2008, Kalia was assigned her ?rst project in Minneapolis, 26 Minnesota. Before leaving for Minneapolis, SVS required Kalia to sign a new employment 27 contract lowering her annual salary to 62,000 a year. Kalia agreed to the reduction in salary 28 because she had not received any income since arriving in the United States and needed money. s. a. COMPLAINT tsaddition, her visa was secured through SVS, and was ineligible for transfer until Kalia had worked a prescribed number of pay periods. 60. Kalia worked for SVS in Minneapolis from approximately March 4, 2008 through March 7, 2008. Kalia was not paid any part of her promised salary during this time. Kalia returned to Santa Jose, California on March 30, 2008. 61. Kalia and her family eventually moved back into the SVS ?guesthouse.? From March. 7, 2008 to July 1, 2008, Kalia was not assigned to a client and did not receive her promised salary, though she continued her efforts to find an assignment with an SVS client. 62. As a result of her own efforts, Kalia found an assignment in Norfolk, Virginia, beginning on or about July 1, 2008 and ending on or about August 30, 2008. 63. Shortly after arriving in Norfolk, SVS attempted to force Kalia to sign a new employment contract stating that her salary was $55,000 per year. Although Kalia refused to sign a new contract, she was paid by SVS based wages equivalent to an annual salary of $55,000 per year during the time she worked in Norfolk, except for the period of July 1 through July 6, when she was not paid. at all. 64. SVS subsequently tried to require Kalia to sign a letter stating that she was on leave for the months she was not assigned to a client and not being paid by SVS, even though Kalia was not on leave, continued to indicate that she was ready and willing to be assigned at any time, and continued her own efforts to secure an assignment with potential clients during those times. 65. SVS directed Kalia to continue renting her apartment in Norfolk until SVS placed her on a new assignment. Kalia was told by SVS that she would be reimbursed for her rent and bill payments while in Virginia. 66. On or about September 3, 2008, SVS told Kalia that it had no other projects for her and that they were terminating her employment immediately. Kalia was not reimbursed for her September 2008 rent payment and living expenses in Norfolk. 67. At no point did Kalia receive the full salary promised to her by SVS, nor did she ever receive any of the bene?ts promised to her. 10 COMPLAINT is.) a .. A A i. CLASS ACTION ALLEGATIONS 68. This action is brought pursuant to Civil Procedure Code section 382. 69. Upon information and belief, SVS has recruited in a manner similar to its recruitment of Plaintiffs hundreds of other foreign professionals to come to the United States to work for SVS pursuant to Visas. 70. Upon information and belief, SVS signed employment contracts with each of. those foreign professionals promising a specific annual salary, health bene?ts, accrued vacation time, expense reimbursements and other work~related benefits and compensation, and otherwise made such promises orally and/or in writing. 71. SVS made other written and oral representations to Plaintiffs, and on information and belief to members of the Class, during the course of recruiting Class members, promising employment under the terms reflected in the written employment agreement with each Plaintiff and Class member. 72. The representations made by SVS and its agents were not true, and SVS and its agents knew when these representations were made that they were not true. I 73. SVS and its agents intended that Plaintiffs and Class members rely on these representations to their detriment. 74. Plaintiffs and those other foreign professionals justi?ably relied on written and oral promises, uprooted themselves (and sometimes, their families as well), traveled to this country, paid SVS signi?cant sums to obtain Visas, and/or incurred travel and other significant expenses in order to relocate to the United States for work. 75. employment contracts with Plaintiffs, and on information and. belief with other Class members, are expressly governed by California law pursuant to a choice?of?law provision in the contracts. California law therefore governs all of the claims described herein. '76. Plaintiffs, as well as members of the Class, were not paid by SVS wages owed to them during the time they were not assigned to one of clients. Pursuant to federal law, SVS is required to pay its employees? wages even for times when there is no work or insufficient work available for them. SVS violated that law, but also refused to pay Plaintiffs and 11 COMPLAINT Chm?i=- the Class members all of their wages even when they were assigned to and performing work for SVS clients. 77. Plaintiffs, as well as members of the Class, still have not received proper compensation, including wages due for accrued vacation time and reimbursements for health insurance and work?related expenses, for all the hours they worked while employed by SVS. 78. On information and belief, conduct as alleged herein is ongoing with respect to all Class members who are still employed by SVS. ?79. Plaintiffs, on behalf of themselves and members of. the Class, seek compensation for all unpaid wages and compensation due and owing, liquated and/or other damages, penalties as permitted by applicable law, interest, attorneys? fees and costs. 80. Plaintiffs are informed and believe, and on that basis allege, that members of the Class are so numerous that joinder of all members is impracticable. While the exact number of Class members is unknown to Plaintiffs at this time and can be only ascertained through discovery, Plaintiffs believe that there are more than one hundred members of the Class. 81. Plaintiffs? claims are typical of the claims of the Class, because Plaintiffs and all Class members sustained. damages that arise out of same pattern and practice of failing to provide its employees with promised wages and other compensation; making promises to provide employees with the compensation promised in their employment contracts knowing that such promises were false when made; inducing its 18 employees to relocate from out of the country and. incur expenses (including payments to SVS) in reliance on those false promises; failing to pay wages owed to its employees; failing to pay the minimum wage required by California law for all hours worked; requiring employees to sign employment contracts containing covenants not to compete and knowing such a term. or condition of employment is illegal; compelling and coercing H-IB workers to pay fees and costs associated with obtaining their H-1B visas; and failure to comply with the federal law regulating the wage requirements and conditions of employment for Visa holders. 12 COMPLAINT l. 82. Plaintiffs will fully and adequately protect the interests of the Class, and have retained class counsel who are experienced and competent in both class and employment 3 litigation. Plaintiffs have no interests that are contrary to or in con?ict with those of the Class. 4 83. Plaintiffs know of no dif?culty to be encountered in the management of this 5 action that would preclude its maintenance as a class action. 6 84. The likelihood. of individual Class members prosecuting separate claims is 7 remote, and individual members of the Class do not have a signi?cant interest in individually 8 controlling the prosecution of separate actions. Additionally, the prosecution of separate actions 9 by individual class members would create a risk of inconsistent and varying adjudications 10 concerning the subject ofthis action, which adjudications could establish incompatible standards ll of conduct for defendants under the law herein alleged. 12 85. There is a well~defined community of interest between Plaintiffs and the members 13 of the Class. Questions of law and fact common to the members of the Class predominate over 14 any questions that may affect only individual members, in that SVS acted in a manner generally 15 applicable to the entire Class. Among the questions of law and fact common to the Class are: 1.6 a. Whether SVS breached its employment agreements with Class members 17 by failing to abide by the terms and conditions set forth therein; 18 b. Whether SVS fraudulently induced Class members to travel to the United 19 States and incur related expenses by promising terms and conditions of 20 employment that SVS knew to be false when made; 21 c. Whether SVS failed to pay wages owed to Class members during the time 22 Class members were not assigned to work for an SVS client; 23 d. Whether SVS failed to pay minimum wages to Class members when due 24 I and owing; 25 e. Whether SVS required Class members to enter into contracts that illegally 26 restricted them from engaging in a lawful profession, trade, or business; 27 f. Whether SVS compelled or coerced the Class to pay fees to the employer 28 as a condition of employmentCOMPLAINT Whether SVS has failed to reimburse the Class for work-related expenses as required by California law; h. Whether California law should be applied to the claims of the Class against i. Whether Violations of federal and state law constitute unlawful, unfair, or fraudulent business practices; j. Whether members of the Class are entitled to relief for Violations of California and federal law and, if so, the proper relief 86. Accordingly, this action should be maintained as a class action. FIRST CAUSE OF ACTION Breach of Contract (By Plaintiffs and the Class Against All Defendants) 87. Plaintiffs, on behalf of themselves and the Class, re?allege and incorporate by reference all preceding paragraphs as if they were fully set forth herein. 88. For good. and valuable consideration, Plaintiffs and members of the Class entered into employment contracts with SVS. 89. By those contracts, SVS agreed. and was required to pay to its employees an annual salary of a sum certain. SVS was further required to provide health benefits, paid vacation and sick time, reimbursement of work?related expenses, two?weeks advance notice of any not-for-cause termination, and other consideration. 90. Plaintiffs and other members of the Class have duly performed all conditions, covenants, and agreements to be performed under the contract, save and except those excused by the acts and omissions of SVS. 91. As a direct and proximate result of breach of its express, material contractual obligations as alleged herein, including but not limited to, the failure to pay the wages, health bene?ts, accrued vacation wages, expense reimbursements, and to terminate employment pursuant to the terms and conditions set forth in said contracts, Plaintiffs and Class members have been injured and suffered damages in an amount to be proven at trial. 14 COMPLAINT 92. Wherefore, Plaintiffs pray for judgment as set forth below. SECOND CAUSE OF ACTION 3 Failure to Pay Wages Owed Labor Code 218, 218.5 218.6 4 (By Plaintiffs and the Class Against All Defendants) 5 93. Plaintiffs, on behalf of themselves and the Class, re~allege and incorporate by 6 reference all preceding paragraphs as if they were fully set forth herein. 7 94. During the time that Plaintiffs and. other members of the Class were employed by 8 SVS, or are now employed by SVS, SVS failed and continues to fail to timely pay Plaintiffs and 9 other members of the Class wages due to them as set forth herein. Pursuant to Labor Code 10 section 204, those wages were due to Plaintiffs and other members of the Class on a semi- 11 or in the alternative, basis, and carne due on the day prescribed by that section. 12 95. Under federal law, SVS was obligated to pay Plaintiffs and. other Class members 13 the wages promised to them and reported to the United States government in connection with 14 their applications for the entire duration of the reported period, including periods when 15 Plaintiffs and other Class members were not assigned to SVS clients. SVS failed to pay those 16 due and owing wages, along with other wages owed but not paid to Plaintiffs and other Class 17 members even during times they were assigned to SVS clients. 18 I 96. Pursuant to Labor Code section 218, Plaintiffs and. other members of the Class are 19 entitled to recover all wages owed; pursuant to Labor Code section 2i 86, interest thereon; and 20 pursuant to Labor Code section 218.5, attorneys? fees and costs, all in an amount to be proved at 21 trial. 22 9'7. Wherefore, Plaintiffs pray for judgment as set forth below. 23 THIRD CAUSE OF ACTION 24 Failure to Pay Minimum Wage ?w Labor Code 1.194 2.5 (By Plaintiffs and the Class Against All Defendants) 26 98. Plaintiffs, on behalf of themselves and the Class, re?allege and incorporate by 27 reference a4ll preceding paragraphs as if they were fully set forth herein. KERR gr I 5 a. COMPLAINT .. A A i. :3 99. Labor Code section 1194 requires employers to pay minimum wages to employees. Pursuant to that section, SVS was required to timely pay Plaintiff and every member of the Class minimum wages for all hours worked, but failed to do so. 100. Plaintiffs and members of the Class are entitled to payment of minimum wages for work performed for SVS, plus interest thereon, attorneys? fees and. costs, in an amount to be proved at trial. lOl. Wherefore, Plaintiffs pray for judgment as set forth below. FOURTH CAUSE OF ACTION Waiting Time Penalties - Labor Code 203 (By Plaintiffs and the Class Against All Defendants) 102. Plaintiffs, on behalf of themselves and the Class, re?allege and incorporate by reference all preceding paragraphs as if they were fully set forth herein. 103. At the time that Plaintiff Bathla resigned and. Plaintiff Kalia was terminated, and those other members of the Class no longer employed by SVS resigned or were terminated, SVS failed to pay Plaintiffs and Class members? any of the amounts due as set forth herein. failure to pay Plaintiffs and other members of the Class their contractually and/or statutorily guaranteed wages, unused and accrued vacation time, and reimbursern ent for workmrelated expenses violates Labor Code sections 201 and 202. 104. failure to pay the wages of Plaintiffs and other members of the Class was willful, and they are entitled to penalties under Labor Code section 203 which provides that an employee?s wages shall continue as a penalty until paid or for a period up to thirty days, whichever is shorter. 105. Wherefore, Plaintiffs pray for judgment as set forth below. FIFTH CAUSE OF ACTION Promissory Fraud/ Fraudulent Indueement (By Plaintiffs and the Class Against All Defendants) 106. Plaintiffs, on behalf of themselves and the Class, re?allege and incorporate by reference all preceding paragraphs as if they were fully set forth herein. l6 COMPLAINT KERR .. .. A A Chm?h 107. SVS and its agents, orally and in writing, willfully, falsely, and fraudulently represented and promised to Plaintiffs and Class members that if Plaintiffs and Class members accepted employment with SVS, SVS would employ and pay Plaintiffs and Class members the wages and other compensation and bene?ts re?ected in the written offer letters and employment agreements provided by SVS to Plaintiffs and other Class members. 108. false. 109. At the time those representations were made, SVS and its agents knew them to be By making those representations, SVS and. its agents intended to and did induce Plaintiffs and Class members to enter into employment contracts, incur expenses for travel, Visa and other costs, travel to the United States, and otherwise act to their detriment. 110. In reasonable reliance on these representations and promises of SVS and its agents, Plaintiffs and Class members did in fact enter into employment contracts, incur expenses for travel, Visa and other costs, travel to the United States, and otherwise act to their detriment. 111. As a proximate result of the representations of SVS and its agents, as alleged herein, Plaintiffs and Class members have sustained damages in an amount according to proof. ll2. In engaging in the acts alleged herein, SVS and its agents acted fraudulently, maliciously, oppressively and with callous and intentional disregard of the interests of Plaintiffs and other Class members, and ected them to unjust hardship and. emotional trauma, with knowledge that their conduct was substantially likely to vex, annoy, and injure Plaintiffs and the other Class members. With respect to any such conduct by its employees or agents, SVS, through its director(s) and/or managing agent(s), had advance knowledge of and/or ratified the wrong?il conduct. As such, Plaintiffs and members of the Class are entitled to punitive damages. ll3. Wherefore, Plaintiffs pray for judgment as set forth below. 17 COMPLAINT 1 SIXTH CAUSE OF ACTION 2 Solicitation of Employees by Misrepresentation. - Labor Code 970 3 (By Plaintiffs and the Class Against All Defendants) 4 114. Plaintiffs, on behalf of themselves and the Class, rewallege and incorporate by 5 reference all preceding paragraphs as if they were fully set forth herein. 6 115. SVS and its agents made representations to Plaintiffs, and on information and belief to members of the Class, about the kind, character and existence of work, the length of 8 time said work would last, and compensation therefore. 9 116. The representations made by SVS and its agents were not true and SVS and its 10 agents knew at the time that the representations were made that they were not true. 11 117. SVS and its agents made the misrepresentations for the purpose of in?uencing, 12 persuading and/or engaging Plaintiffs and Class members to change from a place outside this 13 state to a place within the state of California, from a place within-the state of California to 14 another place within the state of California, and/or from a place within the state of California to a 15 place outside the state of California for the purpose of working for SVS. 16 118. As a proximate result of the misrepresentations of SVS and. its agents, as alleged 1? herein, Plaintiffs and Class members have sustained damages in an amount to be proved at trial. 18 1 l9. Wherefore, Plaintiffs pray for judgment as set forth below. 19 SEVENTH CAUSE OF ACTION 20 Illegal Covenant Not To Compete - 21 Business Professions Code 16600; Labor Code 432.5 22 (By Plaintiffs and the Class Against All Defendants) 23 120. Plaintiffs, on behalf of themselves and the Class, rewallege and incorporate by 24 reference all preceding paragraphs as if they were fully set forth herein. 2.5 121. California law prohibits employment contracts that restrict an employee from 26 working for a competitor after completion of his or her employment or imposing penalties if the 27 employee does soCOMPLAINT 122. SVS required Plaintiffs andClass members to sign employment contracts that contained illegal covenants not to compete or solicit which SVS knew to be illegal. 123. Section 16600 of the Business and Professions Code prohibits ?every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind $3 124. Labor Code section 432.5 prohibits employers from requiring any employee for applicant for employment to agree in writing ?to any term or condition which is known by such employer to be prohibited. by law.? 125. By requiring Plaintiffs and Class members to Sign employment contracts that included illegal covenants not to compete, and wherefore SVS knew that such. covenants were illegal, SVS violated California law. 126. Wherefore, Plaintiffs pray for judgment as set forth below. EIGHTH CAUSE OF ACTION Labor Code 450 (By Plaintiffs and the Class Against All Defendants) 127. Plaintiffs, on behalf of themselves and the Class, re~allege and incorporate by reference all preceding paragraphs as if they were fully set forth herein. 128. it is unlawful under California law to compel or coerce an employee or job applicant to pay a fee or to purchase anything of value from the employer or anyone else. 129. Plaintiffs and members of the Class were required to pay SVS fees and costs allegedly associated with obtaining Visas in violation of California law. These fees were imposed as a condition of employment and as such violated California law. 130. Wherefore, Plaintiffs pray for judgment as set forth below. NINTH CAUSE OF ACTION Failure to Reimburse for Work-Related Expenses - Labor Code 2802 (By Plaintiffs and the Class Against All Defendants) 131. Plaintiffs, on behalf of themselves and the Class, re?allege and incorporate by reference all preceding paragraphs as if they were fully set forth herein. l9 COMPLAINT in} Chm-{LLP 132. California Labor Code section 2802 requires employers to reimburse its employees for ?all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer 133. SVS required. Plaintiffs and. members of the Class to pay expenses incurred by the employees in direct consequence of the discharge of their duties, including but not limited to, the costs of traveling to and from remote job sites, lodging while working at remote job sites, and immigration costs, including fees associated with obtaining H-1B visas. 134. SVS failed to reimburse Plaintiffs and members of the Class for all of these work- related expenses. Plaintiffs and members of the class are entitled to recover those work-related expenses in an amount to be proved at trial 135. ?Necessary expenditures or losses? also include, but are not limited to, the attorneys? fees incurred by the employee in enforcing Labor Code section 2802. Accordingly, Plaintiffs and the Class are also entitled to attorneys? fees pursuant to Labor Code section 2802. 136. Wherefore, Plaintiffs pray for judgment as set forth below. TENTH CAUSE OF ACTION For Unfair Business Practices Business Professions Code sections 17200 et seq. (By Plaintiffs and the Class Against All Defendants) 137. Plaintiffs, on behalf of themselves and the Class, re?allege and incorporate by reference all preceding paragraphs as if they were fully set forth herein. 138. This cause of action is brought pursuant. to Business and Professions Code sections 17200 et seq. 139. The pattern and practice of conduct of SVS as described above violates federal regulations governing the Visa program, including but not limited to, those provisions which give rise to an employer?s obligation to: pay the worker either the local ?prevailing wage? for the occupation in the geographic area of intended employment or the ?actual wage? the employer pays all other individuals with similar experience and qualifications, whichever is higher, and including health bene?ts and accrued vacation time, pursuant to 20 C.F.R. section 20 COMPLAINT 15.73 1; pay workers the actual cost of travel, meals, and incidental or miscellaneous expenses, for both workdays and non?workdays, pursuant to 20 C.F.R. 655.735; and to pay the required wage to workers in circumstances where that worker ?is not performing work and is in a nonproductive status due to a decision by the employer because of lack of assigned work) the employer is required to pay the salaried employee the hill pro-rate amount due, or to pay the hourly-wage employee for a full?time week (40 hours or such other number of hours as the employer can demonstrate to be full-time employment for hourly employees, or the full amount of the weekly salary for salaried employees) at the required. wage for the occupation listed on the [Labor Condition Application],? pursuant to 20 CPR. section 655.731. 140. The pattern and practice of conduct of SVS as described above also violates numerous laws and public policies of the State of California as set forth herein. 141. As a result, such conduct constitutes fraudulent, unfair, and unlawful business practices in Violation of Business Professions Code sections 17200 at seq. 142. In committing the unfair and unlawful business practices described above, SVS has been unjustly enriched and should be disgorged of its unjustly acquired gains, pursuant to Business Professions Code section 17203, in an amount to be determined at trial. Additionally, Plaintiffs and Class members seek restitution of the amounts that Defendants have improperly withheld from them by Virtue of their conduct in violation of this section. 143. Plaintiffs further request that the Court issue an injunction prohibiting Defendants and their of?cers, agents, successors, employees, representatives, and any and all persons acting in concert with it from continuing to engage in the practices described above. 144. Wherefore, Plaintiffs prey for judgment as set forth below. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf of themselves and the Class, pray for relief as follows: 1. Certification of this action as a class action on behalf of the Class; 2. Designation of Plaintiffs as representatives of the Class; 21 COMPLAINT Ll10. ll. 12. 13. Damages according to proof on the first, second, third, seventh, and eighth causes of action; Damages for expenses and the disruption of relocating, the loss of security and past income associated with former employment; Restitution of all wages and other amounts owing to Plaintiffs and the Class; Disgorgement of all gains unjustly acquired. by Defendants; All penalties available under California law; A declaratory judgment that the practices complained of in this complaint are unlawful under California law; An injunction. against Defendants and their of?cers, agents, successors, employees, representatives, and any and all persons acting in concert with it from engaging in each of the practices complained of in this complaint; Attorneys? fees and costs, including expert fees, and expenses as provided by California law, including but not limited to Labor Code sections 218.5 and 1194; Punitive damages; Prejudgrnent and post?judgment interest at the maximum. legal rate; and Such other relief as the Court deems just and proper. Plaintiffs hereby demand a jury trial. DATED: March 3, 2009 LAW OFFICES OF MOSS HOUGH KERR WAGSTAFFE LLP Attorneys for Plaintiffs AJAY BATHLA, ANANDAKRISHNAN GOVINDARAJ AN, and PURNIMA KALIA 22 COMPLAINT